R v Forsyth - [2013] ACTSC 174

R v ADAM TONY FORSYTH
[2013] ACTSC 174 (30 August 2013)

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – assault occasioning actual bodily harm – accused claimed to have acted in self-defence – accused did not believe that it was necessary to act as he did in self-defence – any belief that it was necessary in self-defence to act as the accused did was not reasonable – self-defence excluded beyond reasonable doubt by evidence accepted by court – accused found guilty of assault occasioning actual bodily harm.

Evidence Act 1995 (Cth) s 41(1)(c)

Crimes Act 1900 (ACT) s 24
Supreme Court Act 1933 (ACT) s 68C

Brown v. United States of America (1920) 256 U.S 335 [65 Law Ed. 961]

Dal Cortivov The Queen [2010] ACTCA 14

Dziduchv The Queen (1990) 47 A Crim R 378

Fleming v R (1998) 197 CLR 250

Mulcahy v The Queen [2012] ACTCA 3

R v Howe (1958) 100 CLR 448

Zecevic v DPP (1987) 162 CLR 645

No. SCC 437 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 30 August 2013

IN THE SUPREME COURT OF THE )
) No. SCC 437 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R
v
ADAM TONY FORSYTH

ORDER

Judge:  Penfold J
Date:  30 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

On the charge that on 19 November 2007 Adam Tony Forsyth assaulted Stephen Patafta and thereby occasioned actual bodily harm to him – a verdict of guilty be entered.

Introduction

The accused Adam Tony Forsyth was arraigned before me on one charge of assaulting Stephen Patafta on 19 November 2007 and thereby occasioning actual bodily harm under s 24 of the Crimes Act 1900 (ACT).

The accused pleaded not guilty.

Trial by judge alone

Election

The accused elected to be tried by judge alone.

Procedures for trial

Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v R (1998) 197 CLR 250); and
(c)the judge must take into account any directions, warnings and comments that would, under a Territory law, have had to be given or made to a jury in the case.

In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and they are set out in the Appendix to this judgment.

Background

The basic facts of the incident were not in dispute.

The accused had driven to the Canberra suburb of Fyshwick, and was attempting to park his car in Wollongong Street, close to the intersection with Gladstone Street. The complainant, who was driving a truck, turned off Gladstone Street into Wollongong Street and found his way blocked by the accused’s car. The complainant blew his horn at the accused, who did not move his car out of the complainant’s way. The complainant got out of his truck and walked towards the accused’s car. The accused got out of his car and walked towards the truck. The two men met, and punches were thrown. In the encounter, the complainant sustained, among other things, substantial bruising and a chipped tooth. When the encounter finished, several members of the public who had witnessed parts of the incident came to the complainant’s aid, and gave him their contact details.

The details of the incident, and their significance, was the subject of dispute. Specifically, the accused conceded that he hit the complainant a number of times, but says that he acted in self-defence.

The evidence

Evidence was given by:

(a)The complainant, Stephen Patafta
(b)Bart Black
(c)Janine Slater
(d)Martin Slater
(e)Julia Southcombe
(f)Constable Kristen Egan, the informant
(g)The accused, Adam Forsyth.

Stephen Patafta (the complainant)

Mr Patafta gave evidence that he had responded to having his path blocked by Mr Forsyth’s car by first blowing his horn and then yelling, in the direction of the car, words along the lines of “what the fucking hell are you doing, mate”. At that point, the driver of the car had “given him the finger” (which he demonstrated by raising a loose fist with the middle finger upright). Mr Patafta rejected the proposition that the driver’s gesture was one intended to convey that he, Mr Patafta, should drive around the car that was blocking him. Mr Patafta conceded that his own behaviour was inappropriate, in these words:

Well, if you look at human society I suppose it is inappropriate but at the time what else was I meant to do? I couldn’t get around the individual. The individual had pretty much stopped in front of me where ‑ what could I do? I was trying to carry on with my work.

Mr Patafta said that he stopped his car about one and a half car lengths behind the car that was blocking him. He got out of his truck and walked towards the driver of the car, meeting him about half-way between the two vehicles. He gave the following evidence of what happened next:

MR SAHU KHAN: When you walked towards him and then when you got close to each other what happened?‑‑‑Well within, maybe, I don’t know, a metre, he’s just launched himself just full on and smack, do you know what I mean, just got me straight in ‑ ‑ ‑
The witness is demonstrating to his chest area ‑ ‑ ‑?‑‑‑Straight in to here and knocked me back, and smacked me right here ‑ ‑ ‑
HER HONOUR: With the closed fist?‑‑‑Yes, Ma’am.
You’re demonstrating?‑‑‑Totally and utterly just ‑ well, I wasn’t totally prepared, doubled me over big time. The next thing I ‑ ‑ ‑
MR SAHU KHAN: And the next ‑ yes, sir, I’ll take you through your evidence. Were you expecting any physical altercation?‑‑‑God, no, I thought we’d, you know, there was just going to be a little bit of lip here and, you know, tell the bloke to carry on, you know, there’s a truck behind you, mate, you know, pull your head in.
And when you say that he had hit you with a closed fist in that area, the sternum area that you demonstrated?‑‑‑Yes.
Was it a hard, was it just a push, or a full punch, or ‑ ‑ ‑?‑‑‑No, it was ‑ ‑ ‑
How would you describe it?‑‑‑It was one of the hardest punches I’ve ever had in my life, mate. This bloke totally and utterly doubled me over with that punch.
Sorry?‑‑‑This bloke totally and utterly doubled me over with that first punch.
And how did you react to that first punch, what did you do?‑‑‑Well I didn’t have any time to react, within seconds I’d already had three more to the head by then, I’d gone ga‑ga. By the time I’d sort of got my bearings and everything back together again, the individual was still pounding me and I’ve just sort of bent my knees and put both my arms over my head to just ‑ all I could do was protect myself, there’s no way in the world I could do anything, the bloke was just too fast, too strong. It was just ‑ it’s like being in a movie, mate; it just totally and utterly knocked the living ‑ can I say the word “shit” because it knocked the living shit out of me?
HER HONOUR: You should use whatever language ‑ ‑ ‑?‑‑‑Yes. It just knocked the living shit out of me.
All these punches, were they with closed fist?‑‑‑Most definitely.
Where were they aimed at, do you know?‑‑‑Beg your pardon?
Where were they aimed at? Where were you taking these punches?‑‑‑Well, like I said, I can explain to you the first, you know, four punches was “Bang”, three to the head; after that I went gaga. As I’ve come around, I could still feel punches getting blown into me, as I’ve raised my arms, bent my knees. Punches were going up across my ribs, my arms. My right arm ended up swollen after the incident, so my arms were copping it. As my arms were copping it, my fist ‑ you know, as I’m holding like this, my fist has gone smack into my teeth, and then again I’ve sort of gone all blurry and out of it again, but I could still keep him ‑ he was just pounding away into the ribs, you know what I mean? It was like, mate, yes, absolutely just not necessary. Totally and utterly knocked the living shit out of me.
Did you drop down to the ground?‑‑‑No. I’ve got the feeling, thank Christ, that my truck ‑ my truck was behind me. Either that or, I don’t know what, willpower; something stopped me from hitting the ground. What it is, to ‑ to this day, I have no idea. You know what I mean?
This may be a difficult question for you to answer but can you give us some indication as to how many punches were thrown?‑‑‑I can’t answer that exactly but I’d have to say anywhere, you know ‑ that I can remember, between 10 and 20 punches, you know what I mean, that I can physically remember.

Mr Patafta gave evidence about the injuries he had sustained:

Could you tell the Court the injuries you suffered as a result of this assault?‑‑‑Like I said, my ‑ a lot of soft‑tissue injury in my right arm, all up and down both sides of my ribs, broken nose, chipped teeth. There was probably a fair few chipped teeth. One ‑ one tooth was actually fractured, where ‑ the dentist did pull out, you know, removed, after the incident, of course. Like, I couldn’t sitting in a dentist chair for a while because I was ‑ the body was pretty pounded, I was pretty sore for a bit.
Can I just stop you? You mentioned about the chipped tooth. Which tooth was that?‑‑‑There’s a few. I’ve got ‑ there’s probably about four teeth all in together that were chipped, where ‑ the dentist has, you know, already repaired all that, and, like ‑ then I said this tooth here, the last one at the back ‑ I can’t really tell you what teeth they are or whatever, you know, I’m not a dentist, but that last one at the back here was fractured and had to be extracted.
How soon after this incident was that particular tooth in the back removed, roughly?‑‑‑Maybe 12 months, just before 12 months. Like I said, I wasn’t on the dentist chair for a while because of how sore the rest of my body was; I couldn’t actually sit in the dentist chair.
So far as the chipped tooth, that had occurred, that you noticed, at that time?‑‑‑Definitely happened at the time, yes, because afterwards I was like spitting bits of teeth out of my mouth. You know what I mean? Chipped teeth did actually happen there and then.
You’ve mentioned something about your nose?‑‑‑Yes.
Can you give us a little bit more on that?‑‑‑Well, all I can say is, like, afterwards, when I did get back to work, I was still having plenty of problems with my nose. I just, you know, tried to carry on doing my daily ‑ you know, daily ‑ dailies, working, carrying on; finding things a lot harder. My nose was getting worse, my breathing, sense of smell; everything was just starting to go away on me, so the doctor did a CT scan on my nose and that’s when they found there was, you know, the breakage in my nose and a cyst was growing in ‑ in my sinuses as well, from all the blockage, and that’s what was making me sick and feeling very unwell.

In cross-examination, Mr Patafta said that as he approached the other driver he had his arms out at his sides, demonstrating a distance identified by counsel as about eight inches away from his hips, with his palms open. Mr Patafta denied that he got close to the driver, or “in his face”, saying that “this individual launched himself ... from a metre away”.

Mr Patafta described a first blow to his chest or sternum, then three blows to his head, after which he “went all gaga”. He conceded that his memory of what happened for a period after being hit in the head was affected by the blows, and agreed that his evidence about how many times he was struck was a “guesstimate”.

Mr Patafta in cross-examination described how he responded to the actions of the other driver:

In relation to what you were doing whilst being struck, do you agree that you continued to push towards, move your body towards, the person who was striking you?‑‑‑The only thing I was doing ‑ like I said, my arms were in front, my knees were bent and all I was doing was just keeping that forward momentum because the last thing I wanted to do was end up on my ‑ on the ground, mate.
You agree that keeping forward momentum involved trying to keep the distance between you and the person striking you as small as you could?‑‑‑Most definitely, because then he wouldn’t have as much power to, bloody, smack into me. That was my whole theory on how I protected myself.
The way you were protecting yourself involved continuing to move towards the person?‑‑‑Not continually, no. Like I said, all I had was my arms up in front of my face, my knees were bent, I was pretty much like this and all I was doing was just, you know, keeping that ‑ as I was getting struck all over the place, all I was doing was just keeping ‑ trying to keep my body up ‑ afloat, you know what I mean, keep on my two feet.
Do you agree that in relation to the way you described that in the police statement that you’ve prepared and signed was, “try to push forward towards him”?‑‑‑Yes, I think I wrote something like that, with my knees, yes, when I was in the ‑ sort of in the position.
You agree you were pushing forward towards him, in terms of the way you were putting the momentum of your body?‑‑‑I was trying to, Yes, but I kept getting smacked back, every time I went forward I was getting smacked back, every time I went forward ‑ ‑ ‑
And that’s right, isn’t it, you’d go forward, you’d be hit back?‑‑‑Yes, I was ‑ ‑ ‑
You’d go forward, you’d be hit back?‑‑‑Yes, pretty much, Yes.
Yet you kept going forward, didn’t you?‑‑‑It was like I said, the only thing I could do, the position I was in, the only way I could protect myself, was to keep my body tense, keep my knees bent, keep my arms above my head to protect my head. And like my feet weren’t going forward, my knees were the things that I was pushing forward with, that is what I was trying to state there.
Now you’re demonstrating them, just for the benefit of the tape, you had your right hand with a clenched fist ‑ ‑ ‑?‑‑‑No, that’s ‑ ‑ ‑
‑ ‑ ‑ held up in front of your?‑‑‑both. Both. I can’t lift this shoulder.
I see, okay?‑‑‑Yes, I can’t lift this shoulder up above, Yes.
Okay, so I accept you can’t lift it now but at the time just ‑ ‑ ‑?‑‑‑All right, like that, with two arms. Do you know what I mean, and my ‑ ‑ ‑
So the witness is now indicating with his right hand but indicating clenched fist in front of his forehead, bent elbow, but held up so that his fist is in front of his forehead and right eye area, and he’s indicated orally that at the time he had his left hand in a similar position on the left side of his face, however he can’t demonstrate that today because of some other shoulder injury.
...
MR KUKULIES‑SMITH: Which is that his feet were planted but he was bending his knees moving up and down by bending ‑ his body was going in up and down, sort of bobbing motion as the knees bent and then straightened again. And there was also some bending and straightening from the lower back in the demonstration that was given‑‑‑Well, yes, what I just showed you that’s how, you know – like I said, all I was doing was that, just holding myself and I was getting the living shit kicked out of me. What else was I meant to do? I was just trying to protect my body, do you know what I mean?

Mr Patafta described the end of the encounter as follows:

MR KUKULIES‑SMITH: Now in terms of where the event finished up and how the event finished up, there was an exchange, a verbal exchange, between you and the person who was punching you, wasn’t there?‑‑‑At the end I ‑ the last thing I do remember at the end, this is true, once the witnesses had ran in and all that he was standing there all, you know, hyped up, and once I sort of got to see him standing there in front of me I sort of just looked at him and just sort of went, “Right, you’re fucked, brother”. Do you know what I mean, like, where the hell did that come from? What the hell was all that about? Do you know what I mean? Like, one punch, hey, fine, we probably wouldn’t even be sitting here, do you know what I mean? But what happened to me that day was just totally not necessary.
Now in terms of that, there was something that was said before the, “You’re fucked, brother”, comment. Between the two of you there was an exchange to the effect of, “enough”, and that’s when the punches stopped, wasn’t it?‑‑‑I don’t remember ever yelling out “enough”, mate, not me. Maybe one of the witnesses might have yelled it out or something, mate, but I’ve ‑ at that stage I hadn’t said anything until I’d sort of got back and got my bearings together and that was the only time I said something, I never yelled out “enough”, or to those words.

He said that by the end, he was up against the front of his truck, and that only the truck kept him on his feet rather than on the ground.

Mr Patafta said that he was 6 feet and 1 inch tall, and at the time of the incident he would have weighed around 102 or 103 kg, which he agreed made him reasonably solidly built.

Mr Patafta gave evidence in cross-examination about his intentions when he got out of his truck:

MR KUKULIES‑SMITH: Now in answer to one of the questions a few minutes ago, you said if there’d been one punch we wouldn’t be here today?‑‑‑Well I don’t think I would have suffered the injuries that I did incur from all the others. Like that first punch did totally and utterly knock me to the living, you know, doubled me over as I’ve said previously, mate, you know, if he’d backed off after that he might have got in his car and gone on his merry way and I would have jumped in my truck and gone on my merry way, as long as, you know, who knows, that’s just pre ‑ you know, I’m just saying that looking back.
So does that reflect then that you accept your conduct warranted that first punch?‑‑‑I don’t think any of my conduct warranted that first punch. I was not in any way I was going to hit this individual why was he going to hit me? I didn’t show any aggression towards him except for, you know, like the talking part, but at no time was I going to hit this individual. Like I said, I wouldn’t jeopardise it.
But you accepted just then, implicit, you said, “I wasn’t going to hit him”, but you accept you were verbally abusing him and then getting out of your truck to go out and confront him?‑‑‑Yes, I’m not stating that I wasn’t going to confront him, I was going to say to the individual, “Dude, pull your head in, mate, you’ve got a truck behind you”, you know, “the traffic is backing up all the way back up on to”, you know, “off Wollongong Street, you know, “I’m just trying to organise things”.
So ‑ ‑ ‑?‑‑‑I’ve gone about ‑ if I’ve gone about it the wrong way what can I do, but I was just trying to get out of the situation that I was in. Like I said, if there wasn’t any traffic coming down Wollongong Street, mate, I would have put my foot down and gone right around the individual.
And you were aggressive and upset by his behaviour, weren’t you?‑‑‑I wasn’t aggressive, I was upset. I was upset. More annoyed, do you know what I mean?
You snapped, didn’t you, that’s why you got out of the truck?‑‑‑I didn’t snap, sir. Listen, mate, I didn’t snap. I got out of the truck to get this individual to move on.
And you got out of the truck to get him to move on however it was necessary to get him to move on, didn’t you?‑‑‑No, not ‑ no, not however it was necessary, I’m sorry.

Defence counsel put to Mr Patafta that he was exaggerating his injuries, having regard to the fact that his description of his injuries as given in the committal hearing in the Magistrates Court in November 2008 did not mention some of the injuries of which he had given evidence at trial:

In relation to the questions you were asked at that time, and that was in November 2008, one of the questions you were asked was “Did you receive any injuries?” Do you remember being asked that?‑‑‑Yes.
At that time your answer was, “A slight concussion, bruising on the arm and head, broken teeth, sore ribs.”?‑‑‑Right.
Do you accept that?‑‑‑Yes.
No mention at all at that time of any injury, break or otherwise, to your nose?‑‑‑Because that had come afterwards. Surgery on the nose wasn’t done until 2010. At that stage we were still trying to find out what was going on because I was at work, wasn’t being ‑ you know, wasn’t very comfortable at work, some days I couldn’t even get to work, and then, once ‑ you know, CT scans and ‑ and going to specialists and doctors and all that, was found out ‑ and then surgery was done at the end of 2010.
Your nose had nothing to do with this incident, did it?‑‑‑My nose was fine until ‑ until this incident happened. That’s ‑ that’s all ‑ ‑ ‑
Your nose was still fine and you still made no complaint about your nose as at 17 November 2008?‑‑‑At that stage my doctor had already known that my nose and all that was sore, and it wasn’t until, like I said, we went through all the ‑ because it was a workers comp thing, it has to go through all its, you know, due because ‑ to take place, and then from ‑ when I did have the surgery, it was in ‑ like I said, the end of 2010, and my nose was fine beforehand.
The only reason you’re attempting now to link this nose injury to this incident is to exaggerate the ferocity of the attack and the damage that was done to you?‑‑‑No. I don’t have to exaggerate, mate; it’s fair dinkum. It took place. It was violent at its most. I don’t have to exaggerate it at all.

Mr Patafta conceded in cross-examination that after the three blows to his head at the beginning of the encounter, some of the contact with his head might have been made by his own hands, which he was holding clenched in front of his face in a defensive posture, being forced into contact with his head as they blocked blows from the car driver. However, he rejected the proposition that he had only been hit once in the head by the driver, maintaining that the encounter began with a blow to the sternum then three punches to his head thrown by the driver.

Mr Patafta’s evidence was that he and the car driver had been yelling at each other, but that he had not even managed to complete a question about whether the car driver couldn’t see his yellow truck before he was hit.

Mr Patafta said that “to this day, I regret getting out of the truck”, but denied that this was because, having got out of the truck, he found himself dealing with someone who “was physically able to look after himself”.

Bart Black

Bart Black was driving on Wollongong Street at the time of the incident. He saw a small black car and a yellow truck facing towards him, and as he approached, saw them stop.

He said that the truck would not have been able to continue along the street without going around the car. Mr Black was at most 10 metres away from the car. He saw the driver of the car turning around and gesticulating with his hand, specifically with the middle finger up. He said this “was obviously at the truck driver behind, who had beeped his horn.” Mr Black said he had slowed right down because he was worried about where the truck might go, and saw the driver of the car and the truck driver both get out of their vehicles. The car driver was over 6 feet tall and with a big solid build. He saw the driver of the car approach towards the truck driver and lay two punches on the truck driver. He went on:

Two punches being laid by whom?‑‑‑By the driver onto the truck driver. And, as I went past ‑ the truck driver was curled up in a ball like that, protecting himself, and that’s when I went past and then I saw another few punches being laid as I went past, in my rear‑view mirror.
Before you saw anything in the rear‑vision mirror, can you again just tell us, what did you see as you were passing?‑‑‑The truck ‑ the driver of the car walked up to the truck driver, and it was pretty quick, and lay in two punches.
HER HONOUR: Do you want to describe those for the transcript?
MR SAHU KAHN: Yes. The witness is demonstrating with both his right and left hands?‑‑‑Yes, it was a right‑hand punch and a left‑hand punch.
HER HONOUR: While we’re at this, there was also a demonstration earlier that wasn’t described. You saw a couple of punches thrown and then you saw the truck driver curled up?‑‑‑Curled up in a ball, with his ‑ he was protecting his head.
Thank you. The witness has got two hands over his head, opened up.
MR SAHU KAHN: Did the car driver stop throwing punches or did he continue with this?‑‑‑As I went past I saw him continue punching as ‑ in my rear‑vision mirror as I drove past.
When you say that you say that you saw both of them getting out of the car and both approach each other, how were they walking towards each other?‑‑‑I didn’t see the truck driver approach. I saw the truck driver just stay at his door and the car driver approached the truck driver.
You were, at that time, in motion?‑‑‑I was in motion, going past, yes.
You’ve already demonstrated swinging your arms right and left. How would you describe them?‑‑‑Solid punches, you know, yes.
When you say “solid”, how are you able to say they were solid punches?‑‑‑I heard them as I went past; like, I was conscious of the fact that I could hear the thud of the punch, you know. That was ‑ I only heard the two punches as I drove past; like, I was aware of how solid they were by the fact that I could hear them.
Did you see the truck driver do anything to the car driver?‑‑‑No. He just curled up in a ball, like, put his hands over his head and protected his head.
Immediately prior to him putting his hands in the fashion that you’ve described, did you see him throw any punches?‑‑‑No, I didn’t.
Did you hear anything that was said?‑‑‑I didn’t hear anything that was said, no. There was yelling. I didn’t make out any words and I didn’t know who was yelling.

Asked to explain why he had then done a U-turn and pulled into the car park next to where the truck driver had parked to give the truck driver his details, he said:

Well, looked like a pretty savage assault and I just thought I’d better go and give him my details, so ‑ if he needed, you know ‑ just seemed like the right thing to do.

Mr Black described seeing that the truck driver had red marks on all the side of his face and on his arm.

Asked about the quality of his recollection of the incident, Mr Black said that it was “great”, because “I remember seeing an assault, seeing the punches, that has stayed with me.” Later he said that the events were “not a blur”, and that he remembered “the savagery of the punches”.

In cross-examination Mr Black agreed that in his police statement he described seeing the car driver gesture to the truck driver to go around him, and that he had half expected the truck driver might then go around, crossing into his lane of the road in order to do so. However, he said, his car by then was too close to the other car, and there wasn’t enough room for the truck driver to go around without him reversing his car, for which there was no space. Mr Black said that he had also seen the car driver raise his middle finger towards the truck driver.

Mr Black said that he did not see which of the two drivers got out of his vehicle first.

Mr Black believed that he saw punches being thrown as his car moved past where the two vehicles were stopped, noting that “I only saw one person punching”. He said he did not see the truck driver move past the door of his truck, but conceded, when told that Mr Patafta said he had moved beyond the front of his truck, that his memory was “clouded”. He said he saw some of the punches in his rear vision mirror, being the outside driver’s side mirror. Mr Black agreed that he could not have seen the incident in his rear vision mirror if it was immediately in front of the truck, and repeated that in his rear vision mirror he could see “the driver from behind with his hands over his head being punched”.

Mr Black said he saw more than two punches, possibly four, five, or six. He described seeing two punches, then the truck driver curling up, and punches coming in and around his body, from fists held at about shoulder or chest level. Mr Black said he could see the direction in which the punches were going, and saw the force of the punches. He agreed that the truck driver did not become unconscious, but said that he appeared to be being punched on the side of the face rather than in the temple. He saw punches going from both fists.

Mr Black was sure he had seen some punches directly and some in the mirror, but accepted that he could not be absolutely sure as to the order in which he saw punches by the different means. In his police statement he had said that he saw some punches using the mirror and then turned around and saw further punches directly, and accepted that that was what had happened. He agreed that his memory as to the order in which things happened was hazy.

Janine Slater

Janine Slater and her husband were standing on the footpath outside a shop in Wollongong Street when they saw a car with New South Wales registration, and behind it a small yellow truck. The two vehicles were only a metre apart. Ms Slater said she heard horns and voices yelling, and then saw the truck driver get out of the truck and move towards the front of his truck. The driver of the car then got out and walked swiftly towards the truck driver. The man from the car was about 6 feet, 1 or 2 inches tall, and of very muscular build. She described the truck driver having his hands out with open palms on each side.

Ms Slater saw the man from the car approach the truck driver and begin to punch him. The truck driver did not throw any punches. The car driver used two closed fists, directed at the truck driver’s head, face and upper torso. She saw roughly 20 to 25 very quick punches. The truck driver was in a defensive position protecting his face. At this point in her evidence, Ms Slater demonstrated by standing with her arms bent at the elbows up towards her head, and with fists clenched in front of her face. Ms Slater said her husband yelled out “I can see what’s going on” and the car driver stopped, got into his car and drove away.

Ms Slater said she did not see the truck driver throw any punch, saying “he was only protecting himself”. Ms Slater observed some injuries, including quite a lot of swelling to the forearm. His left temple was very swollen, he had bruising to his face, he was holding his rib area, and he looked like he was in a lot of pain.

In cross-examination Ms Slater said that her memory of the incident was quite firm in her mind despite the passage of time. She confirmed her recollection that the two vehicles were very close to each other. After the truck driver had got out of his car, she heard swearing from both parties. She heard the truck driver swearing at the car driver, in words that included “fuck”.

Ms Slater said she saw the truck driver approaching the car, but he didn’t get very far (“just a wee bit”) beyond the front of his truck; he didn’t get to the car. He walked slowly, with his arms out, saying “what’s going on”. Ms Slater again demonstrated the truck driver’s action as lifting his hands, with palms upwards, from about elbow height up towards just below shoulder height, with his arms outstretched. She said that the two men were yelling and shouting at each other, but the truck driver did not come right up to the car driver as the car driver got out of the car.

Ms Slater said that, initially, both vehicle horns were being used. She did not see the car driver gesturing out the window to the truck driver to go around him, but she demonstrated that both drivers had made hand gestures involving a raised middle finger.

Ms Slater was sure that there were more than 10 punches thrown, and that the truck driver had injuries on both sides of his head and face, including swelling to his left temple.

Ms Slater gave the following evidence:

Did you observe that in response to each punch, the body, not the feet, but the body of the truck driver was pushed away from the driver of the car? Do you agree, don’t agree or you don’t recall?‑‑‑Would you say it again please?
Do you agree that in response or as a result of each punch by the car driver to the truck driver the body of the truck driver was pushed or moved away from the car driver?‑‑‑Yes, yes.
And immediately following each punch the truck driver, in the position that you have described with his hands over his head ‑ ‑ ‑?‑‑‑Protecting himself.
Moved himself, moved his body back towards ‑ ‑ ‑?‑‑‑No.
You don’t accept that?‑‑‑No.
In relation to the truck driver, did the feet of the truck driver move at all or were they firmly planted throughout?‑‑‑They were moving as well back.
Moving back?‑‑‑Just ‑ ‑ ‑
So, is what you’re describing a situation where the truck driver ‑ over the curse of these punches being thrown?‑‑‑M’mm.
From the first to the last?‑‑‑M’mm.
Over that period of time the truck driver is moving backwards?‑‑‑Yes, because he was being punched.
So you say throughout he was moving backwards?‑‑‑He was moving around, yes. Not backwards, around. Doubling over.
From the starting position to the ending position did he move towards his back so behind him, that is the truck driver, or did he move further in the direction he was facing?‑‑‑Back.
And how far did he move back over the duration of the punches?‑‑‑He was just wobbly, being punched, so near there.
So he didn’t really move his feet back?‑‑‑Yes, moving around, back.
Moving around?‑‑‑Back.
You don’t really remember do you?‑‑‑Yes, yes.
Well, how far did he move back?‑‑‑He was just moving as he was being punched.
So sometimes he moved backwards, sometimes he moved forwards, then?‑‑‑He was just ‑ and sometimes he was doubled over, yes.

Martin Slater

Martin Slater was with his wife Janine on the footpath. He heard shouting, then saw a car stopped in the road with a yellow truck behind it. The truck driver was yelling out the window towards the car driver. The car driver leaned out the window and yelled back, “gave him the old-fashioned finger”, and the truck driver got out of his truck.

The truck driver walked towards the car shouting, and the car driver got out and started shouting back. They came close to each other towards the back of the car, with the truck driver making what Mr Slater described as “a sort of questioning gesture”, with his arms out from the elbows with open palms, below the hips. The truck driver wasn’t walking fast. They met at the back of the car, there was shouting for a few seconds and then the car driver punched the truck driver. Mr Slater said: “It looked like he just punched him in the head, hard, really hard.” Mr Slater said the car driver:

...was a good 16/17 stone, he was a big boy. Punched the driver. The driver immediately went down into a defensive pose, head down, arms up, trying to cover up.

Mr Slater went on:

The witness is demonstrating, your Honour, with both the hands, with his ‑ ‑ ‑?‑‑‑Just like that, bent over, forward. The driver just laid into him. It went ‑ it ‑ there was just punch after punch, going at the head, going under the body, trying to knock the guard out the way to get to the body. It looked like ‑ exactly like he knew what he was doing; it was that ‑ I ‑ I’ve seen fights and this guy knew what he was doing; this wasn’t just a slapping fight. He hit him as hard as he could. His fists were clenched; he was just pounding the bloke repeatedly. It was obscene to watch.
How far away were you from this when you were making these observations?‑‑‑I was across the road, so ‑ ‑ ‑
From where you’re sitting?‑‑‑Where I’m sitting, it was probably, sort of, over ‑ sort of diagonal distance across there, to the corner, that sort of distance. We were outside the shop and they were over the road. I was ‑ it was one of those stunt moments, where you see something kick off and you want to get involved and you want to help somebody but this boy was going ape‑shit and he obviously was big ‑ I was out ‑ it was my wife’s birthday, ... and we didn’t know whether to get involved, and having to watch somebody beat somebody who was obviously older, weaker, had no idea on how to defend himself ‑ was sickening to watch.
Did you at any stage see the truck driver try to assault ‑ ‑ ‑?‑‑‑He had nothing. He didn’t start anything, he didn’t throw any punches, he didn’t raise his hands. It was a shouting match and then it was just a punch to the head and then it was all over, from that point. The bloke could have walked away and he would have probably just dropped down on his knees but he was just ‑ just ‑ looked like ‑ if someone’s being held up with punches ‑ he was just being laid into repeatedly. Must have been 20‑30 seconds of just punch after punch; he never got out of the defensive pose. He had no chance whatsoever.
In your estimation, sir, how many punches would you say?‑‑‑There must have been at least 15/20. They were just coming in hard and fast.
Do you know why and how it stopped?‑‑‑I started shouting at the guy. I wanted to make him aware that I had seen him. I didn’t want to get involved and get my face punched in as well so I started shouting and screaming across the road trying to get his attention and make him aware that there were people were witnessing this. After a few seconds of that he wasn’t stopping so I started moving across the road, just the thought was, “Fuck, I’m going to have to get involved. This isn’t stopping.” So, I was walking across the road. At some point he either realised what was going on ‑ somebody got out of the passenger car, there was somebody else in the car, somebody had got out of the passenger side. I am not sure if he’d seen that something had happened to get him to come out of the car. The car driver at that point stopped what he was doing, turned around, went back, jumped in the car. The passenger got back into the car and they sped off down the road.

Mr Slater described his observations of the truck drive’s injuries:

MR SAHU KHAN: All right, and after the car had left did you attend to the truck driver?‑‑‑Yes, after the truck driver and after we sort of the business end of getting the truck off the road and getting the details down I started noticing that he was a bit battered and bruised and there was scrapings sort of his head and he was starting to swell. He looked dazed and disorientated. I have had some first aid training in my time and I started getting worried that he was concussed. Just doing finger tracking moving in front of his eyes trying to see if he could track a finger he was not able to do that properly. His eyes were dilated, they were pinpricks, he was not at all there mentally so I don’t know why but I dare say he was going into shock or something, I was getting him to sit down and calm down and just trying to ‑ trying to get him relaxed and calm. He had already previously phoned the police from the truck and we were waiting for them to turn up and just trying to keep him relaxed, keeping our eye on him, make sure that he didn’t go into shock, that he didn’t start vomiting or other things that can happen with concussion.

In cross-examination Mr Slater said that by the time he was paying attention to the incident the vehicles were stationary. The first yelling he heard was from the truck driver. The yelling was annoyed, unhappy, irritated but it was not “come and punch my face in”. The situation escalated when the car driver started yelling and swearing back, and “gave him the finger”. The truck driver did not confront the car driver; Mr Slater said:

It was more a questioning approach of “what the bloody hell are you doing?” kind of thing. It wasn’t aggressive, he wasn’t running at him, he wasn’t making any threatening moves to him.

Mr Slater agreed that the truck driver may have said something along the lines of “what the fuck are you up to”, but denied that it was confrontational or aggressive, saying that his impression was that the truck driver “wanted to understand what the bloody hell was going on”.

Mr Slater gave evidence that the two drivers met around the back of the car, but agreed that, if he said in his original statement, “around the rear door”, then that’s probably where it was. The two vehicles, he said, were around one to one and a half car lengths apart, more than a metre apart but it was hard to say exactly how much. The truck driver had got out of his vehicle first and so had walked further than the car driver. There was screaming and shouting from both sides at that point.

Mr Slater said that the car driver threw the first punch. From Mr Slater’s angle it looked as if it was a punch up towards the head, but he could not be sure of where it was aimed. However he could see who threw the first punch. Mr Slater said he had watched the assault take place and saw the punches go in, but his main concern was not to identify exactly which area of the body each punch connected with, saying “He was getting punched repeatedly. I watched this occur”.

Mr Slater disputed defence counsel’s proposition that after each punch, the truck driver remained standing, saying:

No, I don’t agree he remained standing. Again, it’s a definitional problem of “standing”. If you call doubled‑over, with your hands in front of your face, your knees bent, trying not to go down on the floor so you can just …(inaudible)… standing ‑ he was on two feet. He wasn’t standing up straight like somebody who hadn’t been punched in the head repeatedly a bunch of times, no.
After each punch, do you accept that his body, the truck driver, was moved by the momentum of the punch, away from the body of the car driver?‑‑‑There is ‑ moved away to some extent from the punches, there’d be a bit of backing off but how far is very, very hard to say. It didn’t really seem like an important detail at the time.
I suggest to you that after each of those occasions he moved his body back towards the truck driver, counter ‑ sorry, towards the car driver, countering that momentum. So in essence, and if you can just listen, in essence what we have was punch, back, move back forward then punch again ‑ ‑ ‑?‑‑‑No, not in a million years. That’s laughable. No. The man took a punch, he went down and he was just trying to stay alive. He was not recoiling back again, he was just if anything moving backwards with punches. I don’t know ‑ that was just not a scenario that happened in any reality, especially not this one.

Mr Slater responded to a suggestion that he was exaggerating:

In relation to the number of punches, I suggest to you that you’re exaggerating greatly the number of punches that were actually thrown and that in fact the number of punches was around six?‑‑‑You can suggest all you like, it doesn’t change what I saw. These punches went in hard and fast and brutally repeatedly. This wasn’t a few little taps and walk off, this was violent and repetitive for a period of 20 to 30 seconds. As I’ve stated in my statement and on the stand.

Defence counsel’s efforts to undermine Mr Slater’s evidence were unsuccessful, even when his questions verged on being disallowable under s 41(1)(c) of the Evidence Act 1995 (Cth) (still in force in the ACT at the time of this trial) as being “belittling, insulting or otherwise inappropriate”, as exemplified in the following extract:

You accept that that is, in the circumstances where he’s got out of his truck and he’s approached the car, inherently confrontational?‑‑‑No.
You don’t accept that?‑‑‑I don’t accept that at all. You’re trying to put words into my mouth. It was ‑ it was ‑ it was like “What the bloody hell are you doing?” We ‑ we’re getting a very …(inaudible)… situation of semantics here and understanding of “confrontational” and “aggression” but, without a more rigorous definition, it’s extremely hard to know what you’re exactly getting at. To my impression of somebody ‑ it was not “I’m going up to punch you.” It was a confrontation in the fact that he wanted to understand what the bloody hell was going on but not a confrontation as in “I am going to go and punch you in the head.” I hope that clarifies things.
You perhaps want to suggest that the truck driver was engaged in the Socratic method of learning and thought he’d go and ask some questions. Is that what you’re trying to suggest?‑‑‑He was, you know, questioning “What the bloody hell are you doing?” If it’s Socratic or not I’ll leave up to the philosophers.

Julia Southcombe

Julia Southcombe (formerly Julia Black) had been with her then husband Bart Black and their two children in their car on Wollongong Street. She saw the truck and the car, and estimated they were about 5 to 10 metres apart. She saw the driver of the car “doing a lot of gesturing ... waving the truck to go around him”. The truck could not go around the car because the Blacks’ car was approaching on the other side of the road. When the Blacks’ car had just passed the car but was still approaching the front of the truck, Ms Southcombe saw the truck driver, still inside the truck; she said he was:

motioning...like “what do you want me to do? I can’t – can’t go anywhere” type thing.

She saw the car driver put his middle finger up, out the window.

Ms Southcombe said that then, the truck driver got out of his vehicle, but didn’t get even three metres past his truck, and the man from the black car got out and punched him. She described the punches as follows:

When you say he started punching him, how did he do that, did you see?‑‑‑He punched him in the head ‑ sorry, he punched him in the stomach and then started punching ‑ like, really letting go on his ‑ on his head and the driver was ducking down like that, to cover his head.
The witness is demonstrating with her two arms, with the closed fist ‑ ‑ ‑?‑‑‑Sorry, he was defending himself ‑ well, as best he could.
HER HONOUR: This is just for the transcript. We can hear what you’re saying but we’re not filming you?‑‑‑Okay. Sorry.
MR SAHU‑KHAN: When you say “the stomach”, are you able to say exactly where or in the area of the stomach?‑‑‑No. No. I mean, all I saw was a punch. He bent over and put his arms up over his head.
The first punch, you said it was in the stomach?‑‑‑Yes.
When you say “stomach”, are you referring to a particular area or ‑ ‑ ‑?‑‑‑Well, I’m, you know ‑ between his chest and his ‑ you know, his hip.
Did you see the truck driver do anything to the car driver?‑‑‑No. He ‑ he was backing away whilst the driver was punching him; he was backing away, trying to get back to his truck.
How was he punching, are you able to demonstrate? Was it with both hands ‑ ‑ ‑?‑‑‑How was he punching? He was ‑ ‑ -
Yes ‑ or with one?‑‑‑Bull swings, bull swings.
Bull swings?‑‑‑Bull swings, yes, big ‑ ‑ ‑
What do you mean by “bull swings”?‑‑‑Big round punches.
With both hands?‑‑‑Yes.
With closed fists?‑‑‑Yes.
Are you able to say how many punches would have been thrown?‑‑‑No.
Was it one, many, two, three?‑‑‑Many. It wasn’t ‑ ‑ ‑
How did it appear to you ‑ ‑ ‑?‑‑‑Sorry, it wasn’t just one punch, there was a few.
How did it appear to you, this punching?‑‑‑Very aggressive.
Why do you use the word “aggressive”?‑‑‑Because it’s not something you see every day.
Was there any attempt by the truck driver to hit back?‑‑‑No

Ms Southcombe did not recall any horns beeping.

Ms Southcombe said that their car was travelling slowly. She could see the car driver punching the truck driver. She agreed that the punching took place over a very short period of time, but couldn’t say whether about six punches was consistent with her recollection.

Ms Southcombe agreed that the detail of the punches was partly obscured from her view by the truck driver, and that she was not certain of the overall number of the punches, but said she could recall “the head shots”, and confirmed that there was more than one of those. She believed that the two men had met pretty much in the middle between the two vehicles, rather than towards the rear door of the car, but conceded that someone who was “side on” was in a better position than she was to assess where the two men were standing in relation to the two vehicles.

Constable Kristen Egan

Constable Kristen Egan spoke to Mr Forsyth on the day of the incident. Her witness statement was received in evidence by consent. Her police notebook recorded that Mr Forsyth said to her “Some truck driver hit me”, but that she had included this in her witness statement as “A truck driver assaulted me”. Constable Egan conceded that her recollection of events was not perfect, but was sure that Mr Forsyth had not said “some truck driver tried to hit me”, pointing out that this was a very different statement from the one she had recorded. She agreed that Mr Forsyth’s comments to her indicated that he might have been the victim in the incident.

Adam Forsyth (the accused)

Mr Forsyth gave evidence that at the time of the incident, he was in Canberra from Western Australia, on an Australian Institute of Sport scholarship, and had hired a car so he could go to Fyshwick to buy a mattress. He was looking for an on-street car park on Wollongong St near Makin’ Mattresses. After his second attempt to reverse park, he became aware of a truck behind him, beeping. He also heard some yelling, which he generally described as “something, fuck, something, something, something, fuck”, and looked in his rear-view mirror. He saw that the truck driver had his head out his window and was yelling. Mr Forsyth said:

What did you do, if anything, at that time?---Well, I put as much of my arm out as I could and waved him past, to go round me, because, as I said, I was trying to park, because I remember he was blocking me to park, so I couldn’t reverse up within there. So I said, “Go around me, because I’m trying to park”.
...
Were you saying anything at that time?---No. I was just - I might have said - I’m not - I can’t recall if I said anything but I might have said, “I’m looking for a park. Just go round,” waved my hand.

When the truck-driver tooted his horn again, Mr Forsyth said, he “thought the appropriate reaction was to give him the finger out the window”, which he did.

Mr Forsyth described his encounter with Mr Patafta:

Now, what - what do you recall happening next?---Well, then I sat back in the car and I put my seatbelt on, out of habit - I remember putting my seatbelt on, which is kind of silly when you’re reverse parking, and I looked in the rear-vision mirror and I saw him getting out of his car. I went to my mate, “This guy’s getting out of his ute - out of his truck,” thinking it was an unappropriate reaction to get out of his car - car. Then I undid my seatbelt and he was storming towards me and, as I got out of my car, so it would have been at the back of my front door - that’s where I met him; it was right at my - sort of the rear end of the back door, so in the middle between the two doors, and that’s when he was yelling and he was waving his hands and pointing and yelling at me, and that’s when I - - -
For the benefit of the tape, the witness just raised his right hand above his shoulder area - his right hand just above his forehead area?---He was yelling quite loudly and very aggressively. I - I remember the spit of his mouth landing in my face, so he was very close to me, and he was waving his hands, so I didn’t know whether he was going to strike me or not and so I - I gave him a combination out of instinct, and - and that’s when he came forward again some more, so then I hit him again with another combination, in the body, because I remember he come forward with his hands up and - and then I hit him until he backed off and then, when he completely backed off, I said – or used the word “enough,” I said – and I said, “That’s enough,” and then I got in my car and left.

Mr Forsyth said that the truck driver was “a big guy”, yelling very loudly and making a number of comments that were not complimentary, including about Mr Forsyth’s driving, and was “screaming at the top of his lungs and very aggressively”.

Mr Forsyth explained his reference to “[giving] him a combination out of instinct”: it emerged that “a combination” referred to three punches, being “left hand, right hand and a left hook”, and that the reference to acting “out of instinct” reflected that Mr Forsyth was a trained boxer. Mr Forsyth said:

In terms of the number of punches, are you able to recall how many punches?---Well, I think the first amount of punches was three, because it was left hand, right hand and a left hook, which is a common combination I use, but then, when he kept coming forward with his hands up, you know - then I hit him to the body and it wouldn’t have been much more than - than six more punches, so nine in total, and I remember - when he finally started backing off, because he was coming forward - he finally started backing off. That’s when I said, “Have you had enough?” you know, and he was like just backing off. He’s - actually, he’s leaning against the boot of my car and then I said, “Right,” and then I - then I sort of left.
You just indicated he had his hands up?---Yes.
Where did he have his hands up? Are you able to demonstrate where his hands were?---Well, he had his hands, both fists, on his mouth, just below the nose, or maybe even above his eyes, like that, or - I think it was more like that.
The witness has just indicated with clenched fists - firstly, when he made the comment about the mouth, he had the second knuckles on the fingers resting on the top lip area and then subsequently said - or up around the eyes and moved those knuckles up to basically where his eyebrows are on each side, the left over the left eyebrow and the right over the right eyebrow.
Now you’re certain in relation to his fists, that he had clenched fists?‑‑‑Yes.
And you’ve indicated that he was coming towards you, or kept coming towards you - - -?---Yes.
- - - I think was your words. What do you mean by that?---Well he was coming towards me, I remember at one stage I’d hit him in the body, and stood back and he was coming and he threw - he just threw a left punch up, threw it out. It wasn’t very – well, he was - I missed it, then I thought, “What, does this guy still want a fight? Why’s he still coming at me?” And that’s when I hit him in the body and he sort of went back, went back on the back of my car, and I sort of said, “Have you had enough now?” And he went – like I guess he went, “Yes.”
Now was anything - what happened at that point?---Well, at that point I jumped in the car and I left - I left.
Now was anything else said by either of you?---Well he said, “You’re fucked, brother.”
So he said that?---Yes after the “enough” was said then I remember I backed off and give us about maybe four or five feet between us and he gone, “You’re fucked brother.”
And in relation to his tone, do you recall his tone when he said that?---Yes it was like the tone, “I’m going to get you later,” sort of tone.

Mr Forsyth was asked why he had responded to Mr Patafta as he did:

Now, why did you get out of your car?---Well in hindsight, with all this going on I probably should have just driven off, but at the time he’s coming towards me and I didn’t want to get caught with my seatbelt on in my car and him punching me through my window, so I jumped out to meet him face to face, like – like a man.
You said you didn’t want to get caught in your car?---That’s right.
What do you mean by that?---Well if you had your seatbelt on, and he came up to your car and - I mean he’s a big guy, you know, he’s 105 kilos at six foot one, you know, so it’s a big guy storming up with a goatee. A big, burly truck driver storming up to me, and if I got caught in my car with my seatbelt on he’s just punched me through my window then I could have got seriously hurt.
And did you think that was going to happen?---Yes, I did.
In terms of the amount of time we’re talking about that these - you’ve just described a thought process?---Yes.
In terms of the time when he got out of the truck and you became aware that he was coming towards the car to when you got out of the car, are you able to say how long that actually was?‑‑‑Well I put my seatbelt in - back into the seatbelt clip, looked in my rear vision mirror, saw this truck driver’s door open, his legs already on the ground when the truck door was open, so I’ve put my seatbelt out, opened my door, got out of my car. And by that time he’s met me at my back door, so I presume four seconds, five seconds.
So this happened over a short period of time?---Yes well his truck wasn’t that far behind me because I couldn’t reverse park.
...
Why did you throw the punches that you threw?---I guess it was out of instinct that I threw the punches. I’ve – like I’ve - he was - like I said, he was in my face and he’s a big guy, you know. I could feel the spit from his mouth coming onto my face. So, he invaded my personal space by a lot and he was a big guy, like I said, he was very aggressive and I wasn’t taking those chances.
And by that, what chance did you think you were taking if you hadn’t hit him?---Well, of him hitting me and knocking me out, because he looked like he was going to hit me.

In cross-examination, Mr Forsyth said that, at the time of the trial, he had been a boxer for 10 years. He was asked about his ability to defend himself:

And as a boxer, part of the training is how to defend yourself whilst - if anybody throws a punch at you?---Yes you’re right, but boxing - - -
Will you just listen to my question first, sir? Part of the training as a boxer is how to defend yourself when somebody is definitely there, assaulting - punching?---That’s correct, but boxing is also in a controlled environment. In the boxing ring you have a referee, you have gloves on and head gear. It’s not on a street environment where the big guy is trying to attack you.

Mr Forsyth was asked about his evidence that Mr Patafta had thrown a punch at him:

When did he do that?---I think he threw the punch after my first combination, or he threw the punch after I said, “That’s enough,” and then he came back and threw a punch which missed me and then I said, “Have we had enough?”
So he - according to your own evidence, that punch that you are referring to that he threw was after everything happened?---No he never hit me, he never hit me that punch.
Sorry?---He never hit me with the punch, he just threw it.
Would you just listen to my question please?---I thought you said that it was the punch he hit you with.
Just listen to my question, yes?--Sorry.
Yes. According to your evidence, he threw the punch after you said, “That’s enough”?---Yes.
And that was right at the end?---Yes.
After whatever you did to him?---Yes.
Prior to that he did not throw any punch at you?---Well, he looked like he was going to throw a punch, his hands were raised.
Would you listen to my question please? Did he or did he not throw a punch at you prior to then?---No.
Thank you. After you had thrown your first punch, you say that he put his hand up. First of all you demonstrated with your closed fist, to his mouth?---Yes.
And then you said that he didn’t move it further up?---I am not sure if he was at his mouth or above his eyes.
You …(indistinct)… - - -?---Yes, it was four and a half years ago.
All right, so as far as you were concerned after the first punch, that’s what he did?---Yes.
Why did you have to keep on hitting him?---Because he kept coming forward at me in an aggressive manner.
With his hands still like that?---Yes.
So here is a man, according to your evidence, after the first punch that you threw, he put his hand up and do we take it that it was because he tried to protect himself?---Yes.
Thank you. He is protecting himself, not throwing any punch, not saying anything, and you keep on hitting him?---Well, why would he want to come closer to me?

Would you just, you answer the question, I’m asking the questions?---I’m answering the question. If he is coming towards me, then I presume he still wants to fight, or he would have backed off.
Was he standing up like that demonstrating - with his hand up like that to his mouth and you knew he was defending himself and you said that he was still moving forward, taking steps, or just his body movement?---Well, his body was moving forward and I presumed he was stepping forward too.
Well, let’s not presume anything at the moment?---Well, I didn’t look at his feet.
You’re giving evidence, sir. Was he taking a step forward or was his body, as you say, his body movement?---I would say he was taking steps.
Taking steps?---Yes.
Okay, so earlier on, when you said it was body movement, what did you mean by that?---Well, his body had moved forward because he was taking steps.

Mr Forsyth was asked about the evidence given by prosecution witnesses. He denied that Mr Patafta had walked towards him with his arms out and open palms, saying something like “what are you doing, dude”. He denied that Mr Patafta had walked towards him at all, repeating his earlier evidence that Mr Patafta had come “storming” towards him. He rejected the proposition that Mr Patafta had not thrown any punches at him. He denied that Mr Patafta finished up leaning against the front of his truck at the end of the encounter.

Asked about his state of mind during the incident, Mr Forsyth gave this evidence:

And I put to you that you did not have any fear at all with your background, with your training, with your experience, that you had any fear of being assaulted by the complainant in this matter?---Like I said, it is a big difference. One’s in controlled environment, the boxing ring, and the other was a six foot one guy with 105 kilos coming towards me in a car park on the road. It’s a big difference.
You consider yourself quite a skilful boxer don’t you?---Yes.
When he got out of his truck, the truck driver, did you have any real concerns about your safety?---Yes.
Why did you just not drive off, you were in the car?---Well, obviously in hindsight I probably should have driven off. I wouldn’t be here today but at the time, you are thinking about the guy who’s just got out of his truck and is running towards you, storming towards you, a big guy so you want to – you want to meet him man to man, you don’t think of driving off and at the split second I had to decide.
Do you agree now that it was an overreaction of the situation by you?---No.
Having thrown the first punch, he’s defending himself and you keep on hitting him?---I threw the first punch and he kept coming towards me, so I don’t think that’s overreaction. If you watch a Mike Tyson boxing fight, it’s a common way of fighting, is coming over with full defence and then throwing a punch after.

Mr Forsyth said that there was a passenger in his car who had witnessed the incident, but on his lawyer’s advice he had not taken that person to talk to police. The Crown case was put to Mr Forsyth:

I suggest to you, Mr Forsyth, that you, for reasons best known to you, you were very angry with the truck driver and you wanted to display your skills?---I have better places to display my skills than on a truck driver.
That’s what you did; you abused your skills and you assaulted the truck driver?---That’s not true.

Mr Forsyth in re-examination said that it was possible to throw a punch from the defensive position adopted by Mr Patafta, and that such a thing was common.

Finally, at the end of his evidence, Mr Forsyth made the following unsolicited comments:

I’d like to say also that my back was at the door of my car because of my front door, so I had nowhere to go. So, when he kept coming towards me with - with his thing up like that, with his fists up against his chin, I had nowhere to go except to keep punching him until he backed off, and then I stopped, straightaway, as soon as he backed off.

Mr Forsyth had not, before this point, made any reference to being blocked in between the open driver’s door and Mr Patafta in any of his descriptions of the course of the incident (see, for instance, his evidence quoted at [67] above).

Other evidence

Several statements were admitted into evidence by consent, being:

(a)statements from two staff members of Avis Car Rentals describing the circumstances in which Mr Forsyth had rented a car on the morning of 19 November 2007 (these appear to have been relevant to identifying Mr Forsyth as the driver of the car);
(b)three police officers involved in investigating the incident; two of the statements attached photographs taken in investigations, including of Mr Patafta’s injuries;
(c)a report from Dr Catherine Sansum of her examination of Mr Patafta the day after the incident; and
(d)a witness statement made by Mr Slater.

Dr Sansum reported on her examination of Mr Patafta as follows:

General examination revealed the following injuries:
1.There was a tender, swollen area over the mid area of his right ulna (forearm). This swollen area was approximately 10 x 5 cm in size.
2.There was swelling and tenderness over the right temporo-mandibular joint (just in front of his right ear). This was causing pain when he attempted to open his mouth.
3.There were two 3cm long scratch abrasions overlying the swollen area in point 2 above.
4.There was a small red mark on the right side of his nose.
5.There was a 1.5 x 1.5 cm faint red bruise just below the right cheek bone.
6.There was a 2 x 2 cm red/blue bruise on the outer aspect of his upper left eyelid.
7.There was tenderness over the lower aspect of the centre and left side of the front of his chest.
8.Mr Patafta described an awareness of the presence of a chipped lower left molar. I was not able to visualise this due to the inability for him to adequately open his mouth.

Discussion
Most of the injuries to Mr Patafta are bruises. Bruises represent areas of haemorrhage under the skin. It is impossible to age bruises with any degree of accuracy.
Mr Patafta was seen approximately 24 hours after the alleged assault. It is possible that the areas of swelling and tenderness represent bruising that is not yet obvious.
The injuries to Mr Patafta are the result of blunt trauma. It is possible that some of the injuries might have been sustained accidentally; as a result of a fall or contact with objects. However the injury pattern (the number, the type and their location) would suggest that some or all of the injuries could have been the result of an assaultive event as described in the history.

Sergeant David Williams’ statement described attending the scene of the incident and taking photographs of, among other things, a damaged pair of glasses belonging to Mr Patafta that he saw on the footpath near where Mr Patafta was then sitting.

General comments about evidence

This case is somewhat unusual in that, as well as the complainant and the accused, evidence has been given by four eye-witnesses, people who simply happened to be passing when the altercation developed between the complainant and the accused and whose independence from those events has not been challenged.

Those witnesses observed the events from several different physical perspectives, but also from different mental or intellectual perspectives. By this I mean that their understanding of relevant issues, their own immediate interests and therefore the matters that concerned them about the incident were varied, and presumably affected their general recall of the incident.

For instance, the context in which Mr Black observed the incident was that he was concerned by the possibility that the driver of the yellow truck would pull out on to his (Mr Black’s) side of the road and thereby endanger Mr Black, his wife and their children. Ms Southcombe may have had the same general concerns, but as the passenger was presumably not so directly focussed as Mr Black on how to respond to that possibility.

Mr and Ms Slater were simply standing on the footpath, and not in any immediate danger. Their recollections seem to have been affected by their own backgrounds and possibly interests. For instance, Mr Slater said that he’d “seen fights and this guy knew what he was doing”, and his evidence about the altercation included more details about the actions of the two men than his wife’s evidence. Both of them, however, revealed a particular concern about the injuries suffered by the complainant (Ms Slater said she was quite concerned that Mr Patafta’s left temple was very swollen), and in Mr Slater’s case especially a working knowledge of first aid issues (see his evidence quoted at [45] above).

Perhaps for these reasons, the accounts given by the four independent witnesses vary as to a number of matters of detail. Except by reference to the locations from which they viewed the incident, I can identify no basis on which to conclude that any of those witnesses are measurably more or less reliable, or more or less credible, than any of the others. The minor inconsistencies in some aspects of their evidence, in my view, indicate not that any of them is unreliable or unworthy of belief, but that there was no collusion among the four independent witnesses or even any relevant “cross-pollination” between the two pairs of witnesses who, at the time of the assault, had been in relationships with each other.

Efforts by defence counsel to undermine the credibility of the independent witnesses by challenging them about peripheral issues was in my view unsuccessful. For instance, Ms Slater’s credibility was not at all undermined by defence counsel pointing out that in her witness statement that she had said that she had “made a point of noting the registration details of the blue car” when in fact she had only noted a couple of the registration numbers and that the car had NSW registration. On the other hand her credibility was if anything enhanced by her certainty, despite cross-examination, that Mr Patafta had swelling to his left temple and not only to the right side of his face, given that her observation seemed to be borne out by the subsequent evidence of Dr Sansum’s record (at [75] above) of an injury to the side of Mr Patafta’s left eye.

The two protagonists, the complainant and the accused, each gave evidence which, unsurprisingly, at least sought to put their own roles in the incident in the most favourable light. In particular, it seemed that in each case the evidence involved exaggerating to some extent the aggression displayed by the other participant, and for this reason I discounted the evidence of each man to some degree. However, the overall impression produced by the evidence of the independent witnesses was dramatically closer to the impression conveyed by Mr Patafta’s evidence than to that conveyed by Mr Forsyth’s evidence, and that has influenced my more general assessment of the evidence given by each man .

I note the absence of supporting evidence for Mr Patafta’s claim that his later medical problems were also attributable to the blows inflicted by Mr Forsyth, but make no finding whether Mr Patafta had in fact exaggerated the extent and severity of his injuries, or whether the absence of evidence for the ongoing problems he reported reflected only inadequate preparation or questioning by the prosecution. Accordingly, I have not treated the absence of that supporting evidence for Mr Patafta’s claim as damaging to his credibility; however, I emphasise that in this matter little hangs on Mr Patafta’s credibility, because of the extent to which his version of events is consistent with the evidence of the four independent witnesses.

As already noted, I discounted Mr Forsyth’s evidence to some extent for what did seem to me, having regard to what the independent witnesses said, a significant degree of exaggeration about Mr Patafta’s aggression and Mr Forsyth’s apprehension as a result of that aggression. After that discounting, however, Mr Forsyth’s evidence struck me as generally reliable about how he had assaulted Mr Patafta and in particular about the state of mind he brought to bear on the circumstances in which he found himself.

Defence counsel submitted to the effect that in order to find Mr Forsyth guilty, I had to be satisfied that his account of the incident could be excluded. This seems to me to be an over-simplification of the matter. Apart from anything else, the question whether the prosecution has excluded the possibility that Mr Forsyth acted in self-defence raises three main issues:

(a)What actually happened?
(b)What were Mr Forsyth’s beliefs? and
(c)Were those beliefs reasonable?

Each of those issues needs to be addressed by reference to the relevant evidence that I accept, and I can see no basis for the proposition that all of them must be addressed, as a single package, by reference to a single package of evidence, being either the evidence of Mr Forsyth or the evidence of the complainant and the other witnesses. In this context I note the direction I have given myself, set out at [5] of the Appendix as follows:

In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.

Findings of fact

Having considered the evidence of the various witnesses in the light of the comments made above about their credibility and reliability, I make findings as set out below.

The circumstances

I find that the two vehicles were stopped a few metres apart. There is no basis on which I could make a more specific finding, and I can see no need to do so.

I find that both men were over six feet tall, with Mr Forsyth being slightly taller and some years younger. Mr Forsyth was a trained boxer with 10 years experience, and was in Canberra on a scholarship to the AIS (although there is no evidence before me that his scholarship related to boxing, and a reference in one of the police statements to Mr Forsyth saying that at the AIS he was doing rowing).

The initial interaction

I find that Mr Patafta blew his horn, and leaned out his truck window and yelled at Mr Forsyth, asking what was going on.

I find that bad language was used by both men, but probably first by Mr Patafta. Offensive gestures were exchanged, but before making offensive gestures Mr Forsyth had used his hand to signal to Mr Patafta that he should drive around Mr Forsyth’s car. I note Mr Patafta’s explanation in his evidence that he could not go around Mr Forsyth’s car because there was traffic approaching in the oncoming lane.

I find that Mr Patafta got out of his truck and approached Mr Forsyth’s car, and that he did so in a spirit of inquiry rather than aggression. This was evidenced by his stance of arms out to his side and with open palms (described by Ms Slater as noted at [34] above and Mr Slater at [43] above, as well as by Mr Patafta himself at [13]). Although Mr Patafta’s “questioning” of Mr Forsyth was neither polite nor in any sense conciliatory, Mr Forsyth’s evidence that Mr Patafta was “waving his hands” does not seem to describe a threatening gesture.

I reject the evidence constituted by Mr Forsyth’s demonstration in court of Mr Patafta having his right hand above his shoulder or head area, because it is inconsistent with the evidence of the independent witnesses. However, even if I accepted this part of Mr Forsyth’s evidence, I would not interpret it as describing a man who was planning to assault Mr Forsyth using his fists or whom Mr Forsyth might have believed to be planning such an assault. I claim no expertise in relation to fist fights (or indeed fights more generally), but it seems to me highly unlikely as a matter of physics that such a mode of conflict would involve blows aimed from above the assailant’s head; such blows would have little force behind them, and would be unlikely to connect with the target unless the target was at least five to 10 centimetres taller than the assailant, which is not the present case.

I find that Mr Patafta walked at least purposefully towards Mr Forsyth. I am satisfied that the word “amble”, used by the Slaters to describe Mr Patafta’s movement (which is defined by the Macquarie Dictionary Online com.au/canberra @919FF82, viewed 22 August 2013, as “an easy or gentle pace”), is not necessarily inconsistent with a purposeful walk, although it may understate Mr Patafta’s demeanour to some degree.

Defence counsel’s submission that it “beggars belief that [Mr Patafta] was ambling” because he “had clearly got very angry”, seems to beg the question. Mr Patafta conceded that he was upset and annoyed, and the other independent witnesses mentioned yelling, shouting and bad language, one of them describing the yelling as “annoyed, unhappy, irritated”, but there no evidence describing him as angry. In the absence of such evidence, it is unsustainable to suggest that direct evidence about how Mr Patafta walked should be rejected as unbelievable because Mr Patafta was clearly very angry.

I find that Mr Forsyth got out of his car and walked back towards Mr Patafta, but that he did not walk more than a few steps before meeting Mr Patafta. However, I reject Mr Forsyth’s claim that when he hit Mr Patafta, his (Mr Forsyth’s) back was at the front door of his car and that (by implication, because that door was open) he “had nowhere to go except to keep punching him”.

Mr Forsyth hits Mr Patafta

I find that as soon as Mr Forsyth got within range of Mr Patafta, Mr Forsyth hit Mr Patafta three times, being a left-handed punch, a right-handed punch and a left hook, and then followed with a second “combination” (another series of three punches) and then further very quick punches. There were not as many punches as the 25 suggested by Ms Slater as the maximum, but Mr Forsyth threw at least the nine punches he explicitly conceded and possibly more, noting his evidence (at [62] above) that after the first two “combinations”, he hit Mr Patafta until he “completely backed off”.

I find that this engagement took place in the vicinity of the back of Mr Forsyth’s car; whether it began or concluded beside Mr Forsyth’s passenger door or around the back of Mr Forsyth’s car, does not seem to be significant, but I have already (at [97] above]) excluded the possibility that it took place in the space between the driver’s doorway and the driver’s door of Mr Forsyth’s car.

Not only is the exact location of Mr Forsyth’s attack on Mr Patafta not significant as such, but it does not seem to be significant in relation to the credibility of the witnesses who located the conflict towards the front of Mr Patafta’s truck. For instance, Ms Slater was sure that the two men met at the front of Mr Patafta’s truck, but her recollection was that the two vehicles were only about a metre apart – on that basis, the effect of her evidence that the two men met close to the front of Mr Patafta’s truck is not significantly different from that of Mr Slater’s evidence that they met at the back of Mr Forsyth’s car (evidence which Mr Slater later adjusted to confirm his police statement to the effect that they met towards the rear door of Mr Forsyth’s car) and Mr Black’s concession that given what he could see in his rear view mirror, Mr Patafta must have been closer to the rear of Mr Forsyth’s car than to the front of his truck.

I find that Mr Patafta had no opportunity to respond to Mr Forsyth’s blows except by adopting a defensive position with his hands in front of his head. Mr Black said Mr Patafta “curled up in a ball ... put his hands over his head and protected his head” [25]; Ms Slater demonstrated Mr Patafta’s posture by holding her arms up to her head with fists clenched in front of her face [35]. Mr Slater described Mr Patafta going down “into a defensive pose, head down, arms up, trying to cover up” [43]. Ms Southcombe said that Mr Patafta “bent over and put his arms up over his head” [55].

I find that as well as trying to protect his face and head, Mr Patafta also tried to stay upright by rocking forward on his feet to counter the effects of Mr Forsyth’s blows.

The end of the encounter

I find that after a matter of seconds (perhaps as many as the 20 to 30 seconds suggested by Mr Slater), Mr Forsyth stopped his assault on Mr Patafta, possibly because of Mr Slater calling out that he was watching. I reject Mr Forsyth’s evidence that at the end of the engagement, Mr Patafta threw one punch at Mr Forsyth but missed him; such an attempt by Mr Patafta is not mentioned by any other witness, and Mr Forsyth’s evidence was inconsistent about whether he hit Mr Patafta once or several times more after this attempt or whether the attempt came after he had ceased hitting Mr Patafta.

I find that when he stopped hitting Mr Patafta, Mr Forsyth said “Enough”, “That’s enough” or “Have you had enough now?” (all phrases suggested by Mr Forsyth in his evidence), and Mr Patafta responded with words along the lines of “You’re fucked, brother”. Mr Forsyth then got into his car and drove away.

I find that by the time Mr Forsyth stopped hitting Mr Patafta, Mr Patafta was still on his feet only because he was supported by a vehicle, either his truck or the back of Mr Forsyth’s car.

Actual bodily harm

I find that Mr Patafta suffered actual bodily harm as a result of the assault, being scratching and bruising as reported by Dr Sansum.

Self-defence

The law

The starting point for dealing with self-defence in relation to an offence not covered by the Criminal Code 2002 (ACT) provision for self-defence is Zecevic v DPP (1987) 162 CLR 645 (Zecevic) at 661, where the High Court (Wilson, Dawson and Toohey JJ) said:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

Counsel also noted that, once the evidence discloses the possibility that the act concerned was done in self-defence, the burden is on the prosecution to exclude self-defence by proving beyond reasonable doubt that the act was not done in self-defence (Dziduchv The Queen (1990) 47 A Crim R 378 (Dziduch) at 381).

The prosecutor drew my attention to Mulcahy v The Queen [2012] ACTCA 3 (Mulcahy), in which the ACT Court of Appeal at [10] approved the trial judge’s directions to himself about how self-defence should be dealt with. Those directions were as follows:

[26]     The accused does not need to prove that he acted in self-defence, rather the Crown must prove that the accused did not act in self-defence. The Crown may prove that the accused did not act in self-defence by proving either:
(1)       that the accused did not believe at the time of doing what he did that it was necessary to do what he did, in order to defend himself; or
(2)       if he had such a belief that, nevertheless, what the accused did was not a reasonable response to the prevailing circumstances, as he perceived them to be.

Defence counsel noted that in Mulcahy, the approval of the basic test was obiter (while conceding that it reflected Zecevic). Defence counsel suggested the formulation of the basic test for self-defence approved by the ACT Court of Appeal in Dal Cortivov The Queen [2010] ACTCA 14 (Dal Cortivo), as follows:

10. As to that count her Honour told the jury:
There needs to be a striking, touching or application of force by the accused to (sic) the complainant. That conduct needs to have been intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight, as a result of what the accused was about to do, but the accused took the risk that this might happen; again, the conduct has to be without lawful excuse.
And finally in this case the assault has to have occasioned actual bodily harm to the complainant. Bodily harm has its ordinary meaning, that is any hurt or injury likely to interfere with the health and comfort of the victim. The hurt or injury need not be permanent, but it must be more than trifling and transient.

11. No exception is taken to this formulation of the elements of the offence. The real issue was whether the force used was “without lawful excuse”. That is, whether the force used was “unlawful”. For that reason, it is accepted that the prosecution had the onus of proving that the force applied by the accused was “unlawful”.
12. As her Honour put it to the jury:
Here, on the evidence given by Mr Dal Cortivo, an issue arises as to whether there was a necessity for him to act in self-defence and that, of course, would be another lawful excuse.
Remember that it is the prosecution that must persuade you beyond reasonable doubt that what the accused did was without lawful excuse. In this case, now that the issue of self-defence has been raised, it is for the prosecution to establish that Mr Dal Cortivo did not act in self-defence. The test for self-defence is whether the accused believed, on reasonable grounds, that it was necessary in self-defence to do what he did. If he had that belief, and there were reasonable grounds for it, then he is entitled to be acquitted.

13. Her Honour correctly drew attention to the critical issue being “the circumstances as he perceived them to be at the time of that conduct”. That also applied to the existence of “reasonable grounds”. Those perceptions need to be considered, not with the benefit of hindsight, but in the circumstances of a situation precluding calm reflection.
14. Thus far the direction is consistent with the decision of the High Court in Zecevic v Director of Public Prosecutions (Vict.) (1987) 162 CLR 645.
15. It may be that her Honour’s formulation could have been taken to define reasonable grounds for a belief in the necessity to act in self-defence as grounds existing only in the flawed perception of the accused. It is clear that the grounds must actually exist or be objectively so perceived as “reasonable” (see Mason CJ (supra), 652-654, Wilson, Dawson and Toohey JJ, at 661).

In relation to the possibility of retreat by the assailant, defence counsel referred me to the case of R v Howe (1958) 100 CLR 448, specifically the comments of Dixon CJ at 463, as follows:

But there can be no doubt at this day that whether a retreat could and should have been made is an element for the jury to consider as entering into the reasonableness of the defendant’s conduct. Holmes J. pronounced upon the question in a way which one may well be content to adopt: “Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that if he kills him, he has not exceeded the bounds of lawful self-defence. That has been the decision of this court. Beard v. United States (1895) 158 U.S. 550, at p. 559 [39 Law Ed. 1086, at p. 1090]. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him”: Brown v. United States of America (1920) 256 U.S. [335], at p. 343 [65 Law Ed. 961, at p. 963].

I assume that this reference was relied on for its approval of the American recognition of a man’s right to “stand his ground” without exceeding “the bounds of lawful self-defence”, but it seems to me more appropriate to rely on the High Court’s more recent comments on this issue, in Zecevic at 663, as follows:

There is, however, one situation which requires particular mention. It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question, although in the code States it is treated as raising matters of law. see s.272 of the Criminal Code 1899 (Q.); s.249 of the Criminal Code 1913 (W.A.); s.47 of the Criminal Code 1924 (Tas.). Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe, per Dixon C.J.; Viro, per Gibbs J. [emphasis added]

Finally, defence counsel referred to the issue of proportionality, explained in Dziduch at 380 as follows:

Where, as in the present case, an issue does arise as to whether the force used by the accused was proportionate to the threat offered, that issue is relevant to the fundamental question as I have stated it, but it is not a separate question. The jury should be directed that the Crown must establish that the force in fact used by the accused was out of all proportion to any attack upon him which he could reasonably have believed was threatened by the victim.
The jury should also, of course, be reminded that a person defending himself cannot always weigh precisely the exact action which he should take in order to avoid the threat which he reasonably believed that he faced at the time. They should be directed to approach their task in a broad and practical manner, giving proper weight to the situation in which the accused found himself, with little (if any) opportunity – as the jury have – for calm deliberation or detached reflection. They should also be told that they must consider the whole of the circumstances, and that the degree of force used in [sic] only a part of the whole picture.

In Zecevic, Wilson, Dawson and Toohey JJ made the following comments at 662 and 664, although the latter remarks were made specifically in relation to the question whether a rejection of self-defence simply because the force used was excessive should, where death has resulted, produce a verdict of manslaughter rather than murder:

For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
...
The second difference lies in the treatment of the use of excessive or disproportionate force. As we have expressed the law, the use of excessive force in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter. If the jury concludes that there were no reasonable grounds for a belief that the degree of force used was necessary, the defence of self-defence will fail and the circumstances will fall to be considered by the jury without reference to that plea.

Directions about self-defence

Having regard to this material, I direct myself, in relation to determining whether Mr Forsyth acted in self-defence, as follows.

(a)The prosecution needs to establish, beyond reasonable doubt, that at the time the accused acted:
(i)the accused did not believe that it was necessary in self-defence to do what he did; or
(ii)there were no reasonable grounds, in the circumstances as he perceived them to be, for such a belief.

(b)Whether the accused had reasonable grounds for his belief is to be assessed having regard to the circumstances as he perceived them to be at the time of that conduct, but as the Court of Appeal explained in Dal Cortivo at [15]:
It is clear that the grounds must actually exist or be objectively so perceived as “reasonable”.

(c)That is, the reasonableness of the accused’s grounds for any belief is to be assessed objectively.
(d)Among the various circumstances to be considered in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence are:
(i)the scope for the accused to retreat from the apprehended attack; and
(ii)the degree of force used by the accused.

(e)Neither of those considerations is decisive, but each of them may be relevant to whether the accused had the necessary belief or to whether there were reasonable grounds for that belief.

Consideration

Defence submissions

Defence counsel submitted that Mr Forsyth acted in self-defence, and accordingly was not guilty of the assault charged. In support of this submission, defence counsel made various specific submissions.

He described the lead-up to Mr Forsyth’s first punch:
[Mr Patafta] walked purposely, he stormed, up the road, commensurate with the degree of anger that he was venting as he did so, yelling, continuing the abuse as he went. It was in response to this large, tall man coming down the road in this fashion that my client made a relatively split-second decision that it was better to get out of the car and confront him face‑to‑face than it was to be in the car, with the window down, and effectively less able, or unable, to defend himself because of that fact.
Up until that point, save from giving the finger, in response to the second bout of yelling, your Honour should conclude, in my respectful submission, there was no other aggressive behaviour by Mr Forsyth. I note, in cross‑examination, the prosecutor never suggested - although there were some witnesses who had given some evidence earlier in the proceedings about possibly both cars beeping - Mr Forsyth said he wasn’t beeping his horn and that he wasn’t, himself, yelling, other than one phrase he used - but he wasn’t consistently yelling and he wasn’t beeping his horn, and there was no suggestion by the prosecutor in cross‑examination that he was in fact doing other than he stated.
Again, your Honour, in my respectful submission, cannot be satisfied beyond reasonable doubt that he was in fact - that is, the driver of the car - yelling or beeping his horn and being aggressive himself prior to getting out of the car. The aggression was all one-way - the truck driver to the car. Everybody around understood the truck driver’s comments and behaviour to be directed to the driver of the car. It’s little wonder, in my respectful submission, that Mr Forsyth understood the same thing.
Counsel identified a number of particular matters that he said supported the claim of self-defence:

(a)that Mr Patafta had been yelling aggressively before he got out of his truck and as he walked towards Mr Forsyth’s car;
(b)that Mr Patafta was a big man;
(c)that when Mr Patafta got out of his truck, Mr Forsyth was sitting in his car with the window open and with his seat belt on;
(d)that Mr Forsyth feared he was going to be struck or assaulted because of the verbal abuse aimed at him by Mr Patafta;
(e)that Mr Forsyth got out of his car because he was concerned about being assaulted by Mr Patafta through the car window without any ability to escape or defend himself;
(f)that Mr Patafta’s concessions that his behaviour might have warranted a complaint to his employer, and that if he’d only been hit once it would have been “fine”, and he’d have walked away, amounted to an admission about his behaviour (although the content of that admission was not specified);
(g)that:
(i)the fact that Mr Forsyth said “Enough” as Mr Patafta moved back and rested against the rear of Mr Forsyth’s car; and
(ii)that once Mr Patafta was leaning against the car, Mr Forsyth stopped hitting him;

showed that this was not “a callous assault to simply do as much damage as possible”.

Defence counsel pointed to several matters of evidence that he said indicated a continuing level of aggression from Mr Patafta towards Mr Forsyth. First, he noted that after moving away in response to the initial blows, Mr Patafta moved in again towards Mr Forsyth. As well, counsel submitted that Mr Patafta’s words “You’re fucked, brother”, showed a continuing level of aggression on Mr Patafta’s part, after, in counsel’s words, he “seemed inexplicably just to flip his lid and go off”. Counsel noted also Mr Patafta’s refusal in cross-examination to “accept he was carrying on like a pork chop”.

While accepting the evidence that as soon as Mr Forsyth threw his first punch, Mr Patafta had adopted a defensive position, counsel drew attention to Mr Forsyth’s evidence that in his experience, the defensive position involving holding one’s fists in front of one’s mouth is nevertheless a position from which a punch can easily be thrown, and that it was a common way of fighting.

Counsel made a fairly complex submission about the nature and number of the blows inflicted by Mr Forsyth on Mr Patafta, apparently aimed at obtaining a finding that Mr Patafta was hit only a few times, or that only one blow was to his head. Since my findings rely on Mr Forsyth’s own evidence of at least nine punches, and there was no witness who asserted there were fewer than that, I see no need to address in detail counsel’s attempt to attribute all Mr Patafta’s head injuries to one blow to the head or possibly to one blow to the head and other (presumably inaccurate) blows aimed at the body.

Finally, defence counsel submitted that a person does not need to be in fear to justify acting in self-defence, only to apprehend an assault. Therefore, he said, the fact that a trained boxer does not fear an assault is not conclusive that self-defence is excluded, and a person is not required by the law to let someone else hit him just because he is a trained boxer.

Counsel submitted, in summary, that I could not be satisfied beyond reasonable doubt that Mr Forsyth had not acted in self-defence.

Prosecution submissions

The prosecutor conceded that there was no supporting evidence for Mr Patafta’s claims of longer-term injury arising from his encounter with Mr Forsyth that had only been discovered much later. He submitted that Mr Patafta’s evidence that if he’d only been punched once it would have been “fine” should not be interpreted as an acknowledgement that he was in the wrong or at fault.

While submitting that I could find that Mr Forsyth did not believe it was necessary in self-defence to do what he did, the prosecutor relied more heavily on a submission that even if the necessary belief had not been excluded, I should find that Mr Forsyth’s actions were not “a reasonable response to the prevailing circumstances as he perceived them to be”. In support of that submission he referred to Mr Patafta’s evidence of how hard he was punched, and to Mr Slater’s evidence of what he observed about Mr Forsyth’s punches.

Conclusions

In this case, there is no challenge to the occurrence of a reasonably substantial application of violence by Mr Forsyth to Mr Patafta. The basis on which Mr Forsyth seeks to avoid criminal liability for that violence is his claim that he acted in self defence. Mr Forsyth’s evidence raises that possibility, so the question I must answer in order to reach a verdict is whether the prosecution has excluded self-defence. That is, I must determine, in accordance with the directions set out at [115] above, whether the prosecution has established beyond reasonable doubt either:

(a)that Mr Forsyth did not believe it was necessary in self-defence to do what he did; or
(b)that if he did have such a belief, there were no reasonable grounds for it.

I am satisfied that as he sat in his car with his seatbelt on, blocking traffic behind him by his attempts to park his car, Mr Forsyth became aware of a large man, the driver of the truck whose progress was being blocked, walking towards his car yelling abuse. Instead of driving away, he got out of his car, walked towards the man and hit him immediately. The man, who had made some offensive remarks but had made neither threatening remarks nor threatening gestures, and in particular had made no attempt to hit Mr Forsyth, assumed a defensive pose, but Mr Forsyth continued to hit him, inflicting at least eight more blows.

As to whether Mr Forsyth believed that what he did was necessary in self-defence, I note first the absence of evidence from any of the independent witnesses or from Mr Forsyth himself of any identifiable threat to him. I have found at [93] and [94] above that Mr Patafta, although annoyed, approached Mr Forsyth’s car in a spirit of inquiry (albeit not polite inquiry) rather than aggression, and made neither verbal threats nor threatening gestures. Mr Forsyth framed his description of Mr Patafta’s actions as having “invaded [his] personal space by a lot”; this appears to mean that Mr Patafta had come too close to him, but in the context of two men moving towards one another does not seem to establish that either of them was acting in a threatening way.

Mr Patafta’s concession that if he had only been hit once it would have been fine may have indicated an acceptance by Mr Patafta that he had behaved badly and would have tolerated a single blow in retaliation. However I do not regard this as an admission that Mr Patafta was posing any threat, as distinct from offering insults, to Mr Forsyth.

Defence counsel in closing submissions appeared to be trying to “improve” the evidence in describing Mr Patafta as “flipping his lid and going off” (at [119] above). This description does not seem to reflect any of the actual evidence; Mr Patafta and the independent witnesses speak of shouting, yelling and unhurried walking, while Mr Forsyth says that Mr Patafta was “in [his] face”, he could feel Mr Patafta’s spit on his face, and that Mr Patafta “invaded [his] personal space by a lot” and “was very aggressive”. Mr Forsyth’s evidence of the signs of Mr Patafta’s aggression is notably short on detail, and there is nothing even in that evidence hinting at the fundamentally irrational behaviour that counsel’s reference to Mr Patafta “flipping his lid” and “going off”, and “carrying on like a pork chop” seemed intended to convey. That is, I reject counsel’s suggestion that there was evidence that Mr Patafta had displayed an irrational level of aggression. In particular, I consider that Mr Patafta’s comment to Mr Forsyth that “you’re fucked, brother” was not a sign of continuing aggression (whether a threat of, or an invitation to, a further engagement) but a desperate attempt by Mr Patafta to regain some dignity after the beating he had sustained.

I note also that most of the matters relied on by Mr Forsyth to found an apprehension of violence were present before Mr Forsyth got out of his car, and indeed that Mr Forsyth mentioned his wish to avoid being hit while sitting in his car as the reason he got out of his car. The only thing that changed after Mr Forsyth got out of his car seems to have been that each man, by approaching the other, moved into the other’s personal space.

As to the fact, raised by defence counsel, that in Mr Forsyth’s experience a person who has adopted a defensive posture can attack from there, I note that Mr Patafta’s adoption of a defensive posture after he was first hit could not have founded a belief on Mr Forsyth’s part that he was being threatened by Mr Patafta before Mr Forsyth hit him. Equally, what Mr Forsyth might have perceived as Mr Patafta moving back towards him after each blow could not have provided grounds for Mr Forsyth’s initial striking of Mr Patafta, and nor could any attempt made by Mr Patafta to hit Mr Forsyth (suggested only in Mr Forsyth’s evidence) that was on that evidence made, at the earliest, after Mr Forsyth had inflicted the first “combination” of three blows.

As noted at [115](c) and (d) above, the possibility of retreat does not automatically or necessarily exclude the availability of self-defence, but it is one of the circumstances to be considered in applying the Zecevic tests. In this case, Mr Forsyth’s evidence was that he perceived a threat while in his car, and chose to get out of the car and meet it.

I regard Mr Forsyth’s explanation for getting out of the car (instead of retreating by driving away) as revealing. Mr Forsyth, in referring to the risk of being hit through the car window while he was sitting in the car with his seat belt on, indicated apprehension of an assault. However, Mr Forsyth did not explain his choice to get out and meet Mr Patafta outside the car by reference to the difficulty of avoiding the assault by closing the window and driving off. Rather, he said that he wanted “to meet [Mr Patafta] face to face ... like a man”.

Mr Forsyth’s comment has distinct overtones of the American concept of standing one’s ground, but even “standing one’s ground” would be a relatively passive response to a perceived threat compared with going out to meet a potential assailant “face to face ... like a man”, instead of taking advantage of immediate safety and an easy escape route. Nor am I convinced that an approach, even by a large man with a goatee, on foot, towards a car in which one is sitting and which one is immediately able to drive away is sufficiently similar to “the presence of an uplifted knife” to excuse a lack of “detached reflection” (Brown, quoted at [111] above). The circumstances of the present case may perhaps excuse the lack of an extended reflection, but they do not seem to excuse the absence of a quick common-sense assessment of whether it was necessary or sensible to engage more closely with an irritated motorist whom one has already inconvenienced, or whether bringing that inconvenience to an end as quickly as possible by moving one’s vehicle out of the way was a more appropriate choice.

Mr Forsyth’s state of mind is also called into question by his own evidence that when he stopped hitting Mr Patafta he said “Enough”, “That’s enough” or “Have you had enough now?” These are not in my view the words of a man who has succeeded in defending himself from a genuinely perceived threat, but the words of a man who considers that he has dealt adequately with an insult.

The evidence all leads me to the conclusion that, far from involving a threat from which Mr Forsyth needed to defend himself, this was in fact what is often called a road-rage incident, in which Mr Forsyth responded not to a perceived threat to his physical safety but to verbal criticism of his driving skills, and possibly a degree of public humiliation as he sought unsuccessfully to park his car, by using his boxing skills to punish Mr Patafta. I am satisfied beyond reasonable doubt that Mr Forsyth did not believe it was necessary in self-defence to get out of his car and assault Mr Patafta.

I am also satisfied beyond reasonable doubt that even if Mr Forsyth did believe that Mr Patafta’s approach involved a threat of physical violence, any belief that it was necessary to deal with that threat by getting out of his car and initiating a physical encounter with Mr Patafta was not reasonable. I am satisfied beyond reasonable doubt that Mr Forsyth could have dealt adequately (and indeed appropriately) with any perceived threat by driving off, with or without first closing his window, and that nothing in the prevailing circumstances detracted from that possibility. The fact that, unlike most people finding themselves in an equivalent situation, Mr Forsyth presumably had confidence in his ability to deal with any such threat by engaging in a physical confrontation would not have made it reasonable for him to believe that such a confrontation was necessary.

My conclusions that Mr Forsyth did not believe it was necessary in self-defence to act as he did, in the sense of engaging with Mr Patafta and using physical violence in that engagement, and that if he did have such a belief it was not reasonable, mean that the proportionality of Mr Forsyth’s treatment of Mr Patafta is not an issue I need to determine.

Finally, I do not need to address defence counsel’s submission that Mr Forsyth’s action was not “a callous assault to simply do as much damage as possible”, because it seems to be beside the point; an assault as described is not the only alternative to striking blows in self-defence, and establishing an offence of assault occasioning actual bodily harm does not require the prosecution to establish “a callous assault to simply do as much damage as possible”. As well, the fact that the infliction of blows is terminated by the assailant of his own volition (see [118](g) above) may be a common feature of such assaults (and possibly more common the more violent the assaults and the more serious the damage inflicted); certainly that fact as such would not establish that the assailant acted only in self-defence.

Accordingly, I am satisfied beyond reasonable doubt:

(a)that Mr Forsyth struck Mr Patafta multiple blows to his head and body;
(b)that Mr Patafta did not consent to the striking of those blows;
(c)that Mr Forsyth intended to strike Mr Patafta;
(d)that Mr Patafta sustained actual bodily harm as a result of those blows; and
(e)that Mr Forsyth acted without lawful excuse, specifically that he did not strike Mr Patafta in self-defence.

Other matters

It seems that at some point in the progress of this matter there had been an issue about whether Mr Forsyth could be identified as the car-driver who had hit Mr Patafta, although it was not clear to me when any such defence had been abandoned.

However, several of the prosecution witnesses, asked to describe the man they had seen hitting Mr Patafta, volunteered in-court identifications of Mr Forsyth. If the identity of Mr Patafta’s assailant had still been in issue, I would have had to direct myself that this evidence had no evidentiary value. It seems to me that the prosecutor should have warned his witnesses in advance that in-court identifications are inappropriate and should not be made.

Finding

I find that on the charge of assaulting Mr Patafta and occasioning to him actual bodily harm, Mr Forsyth is guilty.

I certify that the preceding one hundred and forty four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 30 August 2013

Counsel for the Crown:	Mr D Sahu Khan
Solicitor for the Crown:	ACT Director of Public Prosecutions
Counsel for the Defendant:	Mr M Kukulies-Smith
Solicitor for the Defendant:	Kamy Saeedi Lawyers
Date of hearing:	21, 22 February 2012
Date of judgment:	30 August 2013

Appendix – General directions for judge-alone trial

The general directions that I gave myself for the purposes of Mr Forsyth’s trial are set out below.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.