R v Ghassibe - [2023] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v GHASSIBE
Criminal Trial by Judge Alone
[2023] SASC 141
Reasons for the Verdict of the Honourable Auxiliary Justice Peek
6 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
Accused charged with murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) – accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by Judge alone – whether the prosecution proved beyond reasonable doubt that the accused had the specific intent for murder – whether the prosecution excluded the defences of self-defence or defence of another – whether manslaughter by unlawful and dangerous act is proven on the evidence.
HELD: The accused is not guilty of murder but guilty of manslaughter.
Criminal Law Consolidation Act 1935 (SA) ss 11, 15, referred to.
Wilson v The Queen (1992) 174 CLR 313; Pemble v The Queen (1971) 124 CLR 107; R v Perks (1986) 41 SASR 335; R v Shinner (1993) 173 LSJS 384; R v Williams (1999) 205 LSJS 472; R v Wingfield (1994) 176 LSJS 14; R v Lavender (2005) 222 CLR 67, applied.
Bellchambers v The Queen (2008) 189 A Crim R 298; Broadhurst v The Queen [1964] AC 441; Herbert v The Queen (1982) 6 A Crim R 1; R v Ball, Bunce & Calliss (1991) 56 SASR 126; R v Coleman (1990) 19 NSWLR 467; R v Esposito (1998) 105 A Crim R 60; R v Helmhout (1980) 1 A Crim R 103; R v Kamipeli [1975] 2 NZLR 610; R v Martin (1983) 32 SASR 419; R v O’Connor (1980) 146 CLR 64; R v Singh [1993] SASC 4109; Thomas v The Queen (1960) 102 CLR 584; Viro v The Queen (1978) 141 CLR 88, discussed.

R v GHASSIBE
[2023] SASC 141
PART A: INTRODUCTION
The critical time period
PART B: DIFFERENCES BETWEEN MURDER AND MANSLAUGHTER
PART C: OVERVIEW OF SOME OF THE EVIDENCE
Credibility and reliability of witnesses
PART D: THE DECEASED’S AGGRESSION TOWARDS THE TAXI DRIVER AND THE ACCUSED
The evidence of Mr Gill (the taxi driver)
The evidence of Ms Trish Estaniel

PART E: THE PERIOD FROM THE DECEASED GRABBING THE ACCUSED’S SHIRT TO THE ACCUSED FALLING TO THE ROADWAY
The evidence of Mr Gill (the taxi driver)
The evidence of Ms Trish Estaniel
The evidence of Ms Nisha Ali

PART F: THE DEATH OF THE DECEASED
The evidence of Dr John Gilbert
The evidence of Dr Christopher Ovenden

PART G: THE ACCUSED’S TWO POLICE INTERVIEWS
PART H: THE ACCUSED’S MENTAL STATE AT THE CRITICAL TIME
Impulsive acts - the effect of a state of stress or emotion on mental state
The effect of intoxication by alcohol and illicit drugs
The evidence of Professor Jason White
Intoxication by alcohol and cocaine – legal considerations

A temporary interference with vision and/or equilibrium of the accused’s contemporaneous mental state caused by temporary injury to his left eye
The provenance of a temporary left eye injury resulting from the punch by the deceased
The evidence concerning the deceased spitting in the face of the accused

The expert evidence of Professor John Crompton
Further evidence of Professor White addressing Professor Crompton’s evidence

PART I: THE PARTIES’ CLOSING ADDRESSES
The prosecution closing address
The defence closing address
PART J: CONSIDERATION – IS MURDEROUS INTENT PROVEN?
The deliberate nature and the force of the kick
Problems associated with a frame by frame analysis

The defence address
PART K: CONCLUSIONS AND FINAL VERDICT
Verdict
PEEK AJ.

Mr Francois Joseph Ghassibe (the accused) is charged that on 1 April 2022 he did murder Brian Maxwell Richardson (the deceased) during an incident at West Terrace, Adelaide (the incident). The accused has pleaded not guilty in this Court to that charge of murder but has previously pleaded guilty to the lesser charge of manslaughter at the committal proceedings. He has elected for a trial by Judge alone rather than a jury trial, as is his right.
PART A: INTRODUCTION
I find the following basal facts proven.
As at April 2022, the deceased was a man aged 70 who was said by his wife to be a very fit, strong man. He continued to work at his business, a “Retro Motorbike shop”, as he had for a number of years, and where he used to continually move heavy objects around. He weighed some 100 kg and was 175 cm in height.
On Friday 1 April 2022, at about 6:30 pm, the deceased was driving a dark orange Honda Jazz sedan (the orange car) with three passengers. They were his wife Michelle Richardson, his brother Jim Richardson and sister-in-law Carol Richardson.[1] He drove along Port Road towards Adelaide and turned onto the middle lane of West Terrace to travel south.
[1] Both Jim Richardson and Carol Richardson suffered from dementia and were unable to give evidence. Jim Richardson has died since the incident.
At the same time, Prabhjot Gill (the taxi driver) was driving his white taxi (the taxi) south in the left lane of West Terrace with the accused as a passenger.[2] The accused was then aged 30 and was about 185 cm tall and physically fit.
[2] T114. In his evidence, Mr Gill sometimes refers to the accused as ‘the fare’.
The taxi driver attempted to change lanes but the deceased driving the orange car did not give way and sounded his horn at the taxi. As the two vehicles crossed over the intersection of West Terrace and Currie Street heading south, the taxi came to a stop in the lane closest to the footpath on West Terrace, near the OTR service station.
Unusually, the deceased stopped the orange car on West Terrace on an angle next to and slightly in front of the taxi and blocking a lane of traffic. He alighted and walked towards the driver’s side of the taxi. As he was walking toward the taxi the taxi driver alighted. The deceased immediately commenced to behave most aggressively, both verbally and then physically toward the taxi driver.
The accused then attempted to intervene peacefully to protect the driver whereupon the deceased commenced to behave most aggressively toward the accused. This included the deceased pushing the accused in the face and chest with his left hand, punching him in the left eye with his right hand and then grabbing hold of the accused’s shirt around the left shoulder area.
Very shortly thereafter (in circumstances where the accused asserted in later police interviews that he considered that the deceased remained a threat) the accused in rapid succession administered a flurry of blows upon the deceased. This culminated with a single kick to the chin of the deceased which caused him to fall backwards to the roadway.
The accused immediately desisted from delivering any further blow to the deceased who obviously no longer presented any threat. He returned to the taxi which departed the scene. The accused directed the taxi driver to take him to Gray Street to pick up his girlfriend and the taxi driver did so. They were about to travel to Port Adelaide when the taxi driver received a call from police to take the accused to Hungry Jack’s on West Terrace. The accused complied and he was arrested on a charge of assault.
People came to assist the deceased who was lying unconscious on the road. He was placed in the recovery position and an off-duty clinical nurse observed that he was unconscious and not responding to pain stimuli. He remained unconscious for approximately five to seven minutes. Police arrived at the scene at about 6:51 pm. Ambulance Service members attended shortly thereafter and treated the deceased, who was then conveyed to the Royal Adelaide Hospital.
However, most unfortunately, when the deceased fell backwards he hit his head heavily on the roadway. It is important to note that, as will be discussed in more detail later, it was this heavy impact of the deceased’s head on the roadway, rather than direct blows inflicted by the accused, which caused death through brain damage of the contre coup type. Thus, Dr Gilbert opined on post‑mortem examination:[3]
The death was clearly attributable to a traumatic brain injury. The pattern of injury was consistent with the deceased falling backwards, striking the left rear of his head on the ground, thus producing the left sided fracture and contre coup haemorrhages in the right frontal and right temporal lobes of the brain associated with an acute right subdural haematoma.
[3] Exhibit P17, page 3.
The critical time period
I consider that the critical time period commences with the first observed aggressive behaviour of the deceased towards the taxi driver and concludes with the deceased falling to the ground with his head contacting the roadway (the critical time period). As to the duration of the critical time period, I have noted above that the deceased alighted and walked towards the driver’s side of the taxi and during this period the taxi driver also alighted. The deceased immediately commenced to behave aggressively, both verbally and then physically, toward the taxi driver. I take photograph 7 of exhibit P6 as occurring just before the beginning of that verbal abuse, the time stamp thereon being 6:46:07 seconds.[4] I take photograph 41 of exhibit P6 as being taken just after the deceased fell onto the roadway (after which there was no further physical contact); the time stamp thereon is 6:46:49 seconds.[5]
[4] This time stamp which appears in small print at the top left of the still photograph itself has been incorrectly transposed as “6:46:08” at the top of page 7 of exhibit P6.
[5] On this occasion, the time stamp which appears in small print at the top left of the still photograph itself has been correctly transposed at the top of page 41 of exhibit P6.
I therefore proceed on the basis that the critical time period lasted for a very short period, being only about 40 seconds.
PART B: DIFFERENCES BETWEEN MURDER AND MANSLAUGHTER
Broadly speaking, there are two distinct criminal offences that may be committed when a person unlawfully causes the death of another person. They are the offences of murder and manslaughter and both offences carry a maximum penalty of life imprisonment. While the offence of murder is always the more serious offence of the two, the level of seriousness of particular instances of manslaughter may vary greatly according to the particular facts of the case. It has often been rightly said that the seriousness of offences of manslaughter may vary from conduct that is little more than an unfortunate accident up to truly reprehensible or outrageous conduct that falls only just short of murder. Thus in R v Lavender, Gleeson CJ, McHugh, Gummow and Hayne JJ stated:[6]
For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s 24 recognises, it may be such that a nominal penalty would suffice.
[6] (2005) 222 CLR 67 at [22].
The type of manslaughter under consideration in the present case is called unlawful and dangerous act manslaughter. For an accused to be convicted of that offence, the prosecution need only prove that he unlawfully caused the death of the deceased through the commission of an act or acts that were both “unlawful” and “dangerous”.[7] For present purposes, an assault that is not justified as self‑defence (or defence of another) will constitute an “unlawful act”. It will also be a “dangerous act” if a reasonable person in the accused’s position would have realised that, in striking the deceased in the way that he did, the accused was exposing the deceased to an appreciable risk of serious injury. It is important to note that this test is objective rather than subjective – it is a question of what a reasonable person in the accused’s position would have realised or intended rather than what the accused himself did actually realise or intend.
[7] See generally Wilson v The Queen (1992) 174 CLR 313.
Turning now to the more serious offence of murder, it critically differs from manslaughter in that to establish guilt of murder the prosecution must satisfy a subjective test and not merely an objective test as in manslaughter. Thus, to establish murder, the prosecution must prove that the accused actually did hold a particular specific intent, namely an intention to kill the deceased or, at the least, to inflict grievous bodily harm upon him; this is sometimes referred to in short form as the required “murderous intent”.
So it is that in the present case, the accused must be acquitted of murder if there remains a reasonable doubt as to whether his intention at the relevant time may have been limited to putting the deceased to the ground through a series of blows as distinct from actually having an actual subjective intention to kill or inflict grievous bodily harm.
Two important matters should be noted. The first is that the term “grievous bodily harm” connotes that it must be proven that the accused intended to inflict a very serious level of bodily harm and that, in the circumstances of the present case, an exposition merely in terms of “serious harm” would be inadequate. Such was stressed by King CJ in R v Perks, who stated:[8]
The deceased died as a result of manual strangulation. In order to prove murder the prosecution had to prove that in applying force to the throat of the deceased the appellant intended to cause death or grievous bodily harm. The appellant’s intention is a matter of inference from his actions. Clearly his state as to liquor has a bearing upon that issue. The inference from his actions of the guilty intention would be more readily drawn in the case of a sober man than in that of an intoxicated man. Self-induced intoxication is not now to be treated differently from other relevant factors in considering what inferences as to an accused’s state of mind are to be drawn from the proved facts (Reg. v. O’Connor[9]), although juries may frequently need careful directions as to degree of intoxication and its possible bearing upon criminal liability (Reg. v. O’Connor[10], per Barwick C.J. at p. 466; The Queen v. Martin[11]).
…
I refer briefly to the learned Judge’s use of the expression “serious bodily harm” in place of the conventional “grievous bodily harm”. I think that there has been a tendency, which I have shared, to assume without proper consideration that “serious” is a synonym of “grievous”. I am sure that I have frequently used the expression “serious bodily harm” as synonymous with “grievous bodily harm”. Having heard the argument on this appeal and reflected on the matter, I have reached the conclusion, however, that in some factual situations the expression “serious bodily harm” may mislead a jury into regarding the degree of harm which must be intended in order to constitute murder, as less serious than the law actually requires. Like White J. I consider that the conventional expression “grievous bodily harm”, despite its somewhat archaic ring, should be adhered to. If the meaning of “grievous” is to be explained, the expression “really serious” rather than merely “serious” should be used. No doubt in many factual situations “serious bodily harm” would sufficiently indicate the required intention. There may well be some factual situations, however, in which the use of that expression would amount to a misdirection. The safer course, in my opinion, is to use the phrase which is incorporated in the classical definitions of the crime of murder, namely “intent to do grievous bodily harm”, with or without the explanation that “grievous” means “really serious”.
(Footnotes in original)
[8] (1986) 41 SASR 335, 337.
[9] (1980) 29 ALR 449.
[10] (1980) 29 ALR 449.
[11] (1983) 32 SASR 419.
The second important matter is that there is an important distinction between “capacity to form a specific intent” on the one hand and actually forming that specific intent on the other hand. The correct position is that the onus lies squarely upon the prosecution to prove beyond reasonable doubt that the accused committed the relevant act while actually holding the requisite specific intention for the crime of murder. This is to be contrasted with merely having an ability or capacity to form such an intent.[12]
[12] Thomas v The Queen (1960) 102 CLR 584; Broadhurst v The Queen [1964] AC 441; R v Kamipeli [1975] 2 NZLR 610; Viro v The Queen (1978) 141 CLR 88; R v Helmhout (1980) 1 A Crim R 103; R v O’Connor (1980) 146 CLR 64); Herbert v The Queen (1982) 6 A Crim R 1; R v Perks (1986) 41 SASR 335; R v Martin (1983) 32 SASR 419; R v Coleman (1990) 19 NSWLR 467; R v Ball, Bunce & Calliss (1991) 56 SASR 126; R v Singh [1993] SASC 4109; R v Esposito (1998) 105 A Crim R 60; R v Williams (1999) 205 LSJS 472; Bellchambers v The Queen (2008) 189 A Crim R 298.
PART C: OVERVIEW OF SOME OF THE EVIDENCE
Several different categories of evidence have been received by the Court.
The first category of evidence is that of recorded visual recordings referred to as CCTV footage. Exhibit P5 is a USB[13] containing CCTV footage or media files produced by cameras at several different locations. First, at the petrol pumps of the OTR service station on West Terrace (a short and long version of the footage depicting the incident); secondly, at the Happy Car Wash at the OTR; and thirdly, a camera installed on the taxi.
[13] Universal Serial Bus.
Defence counsel tendered a compact disc (exhibit D1) containing a single media file being a compilation of the above CCTV footage on the one screen (divided into three segments). He also tendered a separate USB (exhibit D2) containing two media files, each being the same compilation that can be played at half or quarter speed.
The CCTV image quality overall is reasonable and does assist in appraising the incident. However, there are some major limitations as to the extent to which the totality of the CCTV footage can be relied upon as an accurate and complete record of the incident. A major problem arises from the fact that the fields of view of the various cameras are being obscured by objects and people at various stages of the incident. Further, the cameras record happenings from distances, angles and perspectives different to that of various witnesses. It is also the case that when fast movements are involved there may be some blurriness and a lack of detail (such as facial expressions). I note that only the CCTV from the taxi has an audio track; that sound is not of high quality but is of some utility.
The second category of evidence comprises a number of still shots taken from CCTV footage. As an example, exhibit P6 comprises:
·still photos 1 to 50 inclusive taken from the footage from cameras at the petrol pumps of the OTR service station on West Terrace;
·still photos 51 to 59 inclusive taken from the footage from cameras at the Happy Car Wash at the OTR;
·still photos 60 to 96 inclusive taken from the footage from the taxi camera.
The third category of evidence comprises some of the civilian witnesses who were present nearby. In the approximate order of giving evidence, they were:
·Mr Michael Sorgiovani was driving on West Terrace in a white Audi vehicle. He only saw the very end of the incident with the deceased dropping to the ground. He remained at the scene assisting in giving first aid until police and the ambulance arrived.
·Ms Elena Papastergos was driving on West Terrace. She only saw the accused depart after the end of the incident. She is a registered nurse and remained at the scene assisting in giving first aid until police and the ambulance arrived. She noticed that a “gash” on the chin was “oozy” with blood.
·Mrs Michelle Richardson was the wife of the deceased and was travelling with him in the orange car. I refer further to her evidence below.
·Mr Prabhjot Gill (the taxi driver). I refer further to his evidence below.
·Ms Nisha Ali and Ms Trisha Estaniel were dining together at Pardis Restaurant next to the OTR Service Station. I refer further to their evidence below.
·Ms Amber Johnstone is an ambulance officer and attended at the scene. She gave evidence of the deceased’s situation including that he had a contusion/abrasion to the left back temple area of the head with a radius of 5 cms and which was still mildly oozing blood. He also had a laceration to his chin.

The fourth category of evidence comprises a number of police officers, some of whom will be referred to below.
The fifth category of evidence comprises the following expert witnesses in their order of appearance:
·Dr Christopher Ovenden is the neurosurgery Registrar at the RAH.
·Dr John Gilbert is a senior forensic pathologist with Forensic Science SA. He performed the post-mortem examination.
·Professor Jason White is primarily a pharmacologist.
·Ms Pamela Fietz is a forensic scientist with Forensic Science SA. She performed some tests and comparisons which were uncontested and to which I do not need to refer.
·Professor John Crompton is an ophthalmologist and the only witness called by the defence.
The sixth category of evidence comprises two recorded interviews with the accused on 1st and 2nd April 2022 respectively, in which he gives his version concerning relevant factual topics.
The seventh category of evidence comprises various items of clothing to which reference is not needed.
The eighth category of evidence is a list of agreed facts (exhibit P34). I take note of all of these matters but do not find it necessary to recite them here.
Credibility and reliability of witnesses
Putting aside for the moment Mrs Michelle Richardson (the wife of the deceased), I consider that all of the non-expert witnesses were truthful in that they were attempting to give accurate evidence; however, there are some discernible inaccuracies, no doubt due to the unexpected and rapid nature of the subject events coupled with other difficulties surrounding initial observation and later memory. I accept that all of the expert witnesses were appropriately qualified and were doing their best to assist the Court.
Concerning Mrs Richardson, I accept her evidence that the deceased was a very fit man and a strong man and was continuing to work at his business, a “Retro Motorbike shop, which he had had for a number of years and where he used to move heavy objects around. However, by reference to inconsistencies within her evidence‑in‑chief, her cross-examination and comparisons with other evidence before me, I simply cannot accept her as an accurate historian of the tragic events of 1 April 2022. I do not find that she was being deliberately untruthful but I consider that it is likely that, because of her very real grief, she is unconsciously unable to remember or recount matters critical of the deceased’s behaviour on that occasion. In any event, I cannot act on her evidence. In particular, I reject as completely inaccurate her evidence that:
… the guy ripped off his shirt and singlet and this guy he said ‘Come on, dukes up. I’m going to fight, you’ve got to fight’ and Max puts his hands up and said ‘I don’t want to fight’.
PART D: THE DECEASED’S AGGRESSION TOWARDS THE TAXI DRIVER AND THE ACCUSED
I find that the deceased was very angry following the driving manoeuvres referred to above. He alighted from his car, strode towards the taxi, berated the driver and then seriously assaulted him.
Unfortunately, these actions are almost entirely obscured by large pylons in the CCTV footage from OTR (and hence also in the still shots in exhibit P6 which are taken from that CCTV). However, we do see in the taxi CCTV footage (and in the still photos 63 to 66 in exhibit P6 taken from that footage) portions of the deceased’s actions in attacking the taxi driver. Further, we can also hear some conversation in the soundtrack to the taxi footage.[14] The above material may be summarised as follows:
The deceased gets out of his vehicle and then approaches the driver’s side window of the taxi. The taxi driver gets out of the vehicle (and about this time the accused is getting out of the taxi).
The deceased continues to approach the taxi driver. He yells and swears saying inter alia “What are you fucking doing?” and “You fucking idiot” and “You cut me off”. The deceased then forcefully pushes the taxi driver hard with both hands to his chest, causing him to stumble back against the taxi. As the taxi driver stumbles back, the deceased swings his right arm back as if about to punch the taxi driver. (The accused is seen moving around to the driver’s side of the taxi at this stage and then inserts himself between the deceased and the taxi driver).
[14] The soundtrack also included some material recorded before and after the incident. I have taken this into account but find it to be of no significant probative value.
As to the aggression of the deceased towards the accused that immediately followed, that material may be summarised as follows:
The accused approaches the deceased and the taxi driver. The deceased drops his hands and takes a step back from the taxi driver. The accused gets between the deceased and the taxi driver. The deceased Says to the accused “Fuck off”. The deceased aggressively faces up to the accused and yells in his face. The accused then wipes his face with his left hand (possibly indicative of the deceased having spit or expectorated in that area.).
The deceased pushes the accused in the chest with his left hand, and then appears to strike the accused in the head area with his right hand. The deceased then grabs hold of the accused’s shirt around the left shoulder area and appears to strike the accused.
They then move off screen and the activity is obscured almost entirely for a short period.
Of course, the above summary is to be supplemented by the evidence of the witnesses to which I now turn,
The evidence of Mr Gill (the taxi driver)
The taxi driver, Mr Gill, gave the following evidence:
Q.You said that the driver of that car got out; is that right.
A.Yeah, he come to me. He’s really aggressive so I think he’s going to break my mirror or anything so I come out so he like push me really hard. Within that time fare come out. He helped me out.
Q.At what stage did you get of your car after you stopped.
A.After when he came to me. Then I got out.
Q.You get out the driver’s side, is that right.
A.Yes.
Q.Where do you stand at the time that you say he pushed you.
A.In front of my car like near the driver’s seat.
Q.You said that he pushed you, did he say anything to you.
A.He’s yelling on me, he’s abusing me.
Q.Do you remember what words he said.
A.I don’t want to say that words, yeah.
…
Q.– if it’s swearing or bad words.
A.He’s swearing. He’s saying ‘Motherfucker, you don’t know how to drive. You’re a piece of shit’, like that words.
…
Q.So after he said those words that you’ve just described, what happened next.
A.Then he pushed me really hard.
Q.What did you do when he pushed you.
A.I don’t do anything.
Q.What happened after he pushed you.
A.After when he pushed me really hard, like, like really hard, then he came out, the fare came out and he tell him to like ‘Why you like abusing him or saying anything? He’s doing his job’ and then the other driver start fighting with him.
…
Q.What did you do once the fare came around.
A.The fare came out, like he’s saying like ‘Why you like abusing him or he’s just doing his job’. Within that time that other car driver throw a punch on him and then they start a fight. I try to stop them. They couldn’t stop. Then I get back into the taxi.
Q.So when you get back into the taxi, what are the two other, what’s the fare and the other man doing.
A.When I get back into taxi, I see them fight. I can’t see it, like everything’s has happened really quick.
Q.Just before you get back into the taxi, are the two men fighting.
A.Yes.
Q.When you say they were both fighting, what was the fare doing.
A.When they are fighting, within that time I can’t see it so like then he came out came like ‘Let’s go, let’s go’. Then I bring him into the taxi and we go to like to Gray Street.
And in cross-examination Mr Gill stated:
Q.He stepped between you and the angry man from the red car.
A.Yes.
Q.The angry man then grabbed him around here (INDICATES), the scruff of the –
A.I’m not sure, but I’m sure he threw the punch first.
Q.Can I ask you this: did you see the other driver, the angry man, spit in this man’s face.
A.Yes.
Q.He spat in his eye, his left eye, didn’t he.
A.Yep.
Q.You saw the man, this man, the accused, wipe his face.
A.I’m not sure.
Q.Did you see the angry man punch this man in the face.
A.Yeah. He threw the punch.
Q.The angry man threw a punch.
A.Yes.
Q.He threw the first punch.
A.First he started the fight.
…
A.Started the fight with him first.
Q.Punched your fare; correct.
A.Yes.
Defence counsel then referred the witness to photograph 67 in exhibit P6 thus:[15]
[15] T130.
Q.Do you see yourself on the left-hand side.
A.Yes.
Q.Do you see the fare pushed up against the taxi.
A.Yes.
…
Q.The other man, the angry man from the red car, is pushing the fare up against the taxi.
A.Yes.
Q.And the other - the fare then defends himself, doesn’t he.
A.Yes.
Q.The fare was attacked by the other man.
A.Yep.
Q.And the other man continues to attack the fare, doesn’t he.
A.Yes.
Q.And the fare continues to defend himself.
A.Yes. On that time, yes.
Defence counsel then played exhibit P5, video 6 from footage time counter 5:05 to 6:40 after which the further evidence ensued:
Q.You agree that the accused stepped in between and stopped you from being attacked.
A.Stopped being what –
Q.Helped you.
A.He helped he out, yes.
Q.You were being attacked by the other man.
A.Yes.
Q.And you agree that the other man then attacked –
A.The fare. Yes.
Q.And you agree that the other man remained aggressive.
A.Yes.
Q.That’s how you remember it.
A.Yep.
Q.You gave a statement to police on the day, 1 April. Is it the case that the fare when he stepped between those people, you and the other man, said ‘Why you fighting with the taxi driver’.
A.Yes.
Q.‘He is just doing his job.’
A.Yes.
Q.You never heard the fare say to the other man ‘I want to fight you’, did you.
A.No, I wouldn’t.
Q.You heard the other man call him a bloody idiot.
A.Yes, you heard it.
Q.And the other man was abusing the fare.
A.Yes.
Q.Like he was abusing you.
A.Yes.
The evidence of Ms Trish Estaniel
Ms Trish Estaniel was dining with Ms Nisha Ali at the Pardis Restaurant next to the OTR Service Station. She described clear assaultive behaviour by the deceased (to whom she referred as the older guy[16]). Thus, she stated:[17]
Q.The incident that happened, what was it that you first saw or heard that drew your attention.
A.We heard – well, I heard screaming and then we turned around and then we saw a – two cars. The reddish orange car was blocking the cab and then the older – the older man was shouting at a younger guy and then it was – it was just a shouting match until someone – I don’t know who started the fight but there were punches involved until the older man started grabbing the younger guy and then punching him until he slammed the younger guy on the car but it was in between the both cars. So he slammed the younger guy on the taxi and then at that time I went inside and then I tried to call restaurant staff to call the police because at that time I didn’t know 000 … what I came back to was the fight seemed to simmer down so I was like thinking maybe it wasn’t going to – it wasn’t going to go on but then it started again because I heard the older guy screaming and screaming again at the younger guy and then it just didn’t stop and then the younger guy wasn’t fighting or anything but he went towards the trunk of the cab and then he removed his shirt and before I knew it they were fighting again. It was like a series of punches until I didn’t see anything anymore because they were already on the floor of the road because the car was blocking.
…
Q.You went on to say about the older man grabbing the younger man. Whereabouts did that take place.
A.It happened – from what my memory is it happened in between both cars and then the older man was punching the younger guy and then slammed him on the right side of the car in between both – I guess in between the glasses of the cars.
Q.The windows.
A.The windows, sorry.
[16] The parties so agree.
[17] T156.
In cross-examination she stated:
Q.Ms Estaniel, am I right in saying that the first you noticed was the noise, someone screaming.
A.Yes.
Q.Was it one person or two people who were yelling when you first noticed.
A.One person.
Q.Was that the older person.
A.Yes.
Q.And the older person and the younger man were standing on the far side of the taxi; correct.
A.Yes.
Q.The younger man was standing there and not screaming.
A.Yes.
Q.And then the next thing you saw was the older man punching the younger man.
A.Yes.
Q.And from what you could see did it appear that the older man punched the younger man in the younger man’s face.
A.Yes.
Q.Am I correct in saying that the next thing you saw was the older man grabbing the younger man by the clothes up against the taxi.
A.Yes.
Q.I’ll break that down. The younger man was pushed up against the taxi. You could see that.
A.Yes.
Q.And it looked as if the older man was holding him by the clothes in the area of the neck.
A.Yes.
Q.What happened next.
A.After he shoved the younger man?
Q.After he shoved, punched and grabbed.
A.They were punching each other, that’s when I ran inside to call for help.
PART E: THE PERIOD FROM THE DECEASED GRABBING THE ACCUSED’S SHIRT TO THE ACCUSED FALLING TO THE ROADWAY
As referred to above, shortly after the deceased grabs hold of the accused’s shirt around the left shoulder area and appears to strike the accused, they move off screen and the activity is obscured almost entirely for a short period. What follows can be summarised thus:
The deceased reappears first on screen. He is heard to shout words that appear to include “C’Mon – you wanna …” The accused moves backwards and the deceased takes two steps towards the accused and starts gesticulating aggressively, throwing his hands up. He says to the accused “You fucking dickhead”. The accused throws his shirt off. The deceased then says in a mocking tone “Ha, ha, ha, ha”. The accused approaches the deceased in a crouching stance and then punches the deceased twice in quick succession in the left side of his face. The deceased stumbles backwards and is against the back of the orange vehicle with his back to the accused. The accused elbows the deceased in the back, head and upper body area 3-4 times in quick succession. The deceased turns around to face the accused and struggles. The accused struggles with the deceased and strikes him twice more with his elbow and then quickly walks away. The deceased straightens up and the accused turns around. He is about 2 metres from the deceased who is no longer wearing his glasses. The deceased bends over. The accused kicks the deceased to the chin. The deceased falls backwards, twisting slightly to his left; his fall is mostly obscured by the vehicle.
I will further analyse this CCTV footage in the context of the prosecution submissions below. However, I will now refer to the evidence of the witnesses.
The evidence of Mr Gill (the taxi driver)
Mr Gill stated:[18]
[18] T118.
Q.And how was he behaving after he took his T-shirt off.
A.He’s got aggressive and throwing the punches on the driver.
Q.What about the other man.
A.He’s also throwing the punches.
Q.Was he also being aggressive.
A.Yeah, he is like with a red face. He’s really aggressive as well.
Q.Did you see the fare’s face when he took his T-shirt off.
A.No, he’s not red or anything like that.
Q.He’s not.
A.Not have a red face or anything.
The evidence of Ms Trish Estaniel
As noted above, Ms Trish Estaniel was dining with Ms Nisha Ali at Pardis Restaurant next to the OTR Service Station. Ms Estaniel described the shedding of the red shirt and the subsequent flurry of blows thus:[19]
[19] T160.
Q.You mentioned that the younger man took off his top.
A.Yes.
Q.Can you describe how he was standing as he did that. What did he look like.
A.I couldn’t really see what he looked like. All I knew was that he had tattoos, he removed his shirt he had tattoos and then he - when the older man screamed I guess he turned around and then walked towards the older guy.
Q.The manner of his movement as he went towards the older guy, can you describe how he moved.
A.No, I can’t really say if it was fast or anything. It happened very quickly.
Q.As he went over to the older man what happened next.
A.They started punching each other. There was a struggle, I just couldn’t determine who started it but they were just going in swirling motions and then punching each other and then after that they ended up on the ground.
At about this time, Ms Estaniel took a photograph which was received as exhibit P10. In examination-in-chief she stated:
Q.During the course of what you’ve described in your evidence you mentioned your friend didn’t take a video, but did you take some kind of record.
A.I took a photo.
Q.At what stage in what you described did you take the photo.
A.During the struggle in between the car.
Q.And in terms of the chronology there –
A.It was after the younger man removed his shirt and then there was a struggle so it was at that point when they were already in between in the angle of the cars.
Q.Looking at this document, the photograph that you’ve got in front of you, is that the photograph that you took.
A.Yes.
Exhibit #P10 admitted.
Exhibit P10 appears to show the deceased with his right arm raised in a threatening fashion towards the accused (who is now bare chested). In her cross‑examination concerning this photograph, Ms Estaniel gave the following evidence:
Q.Now, you have the photograph that you took in front of you.
A.Yes.
Q.Can you tell the court what the man in the black short shirt was doing with his arm at that time.
A.I can’t really say what’s going on, but his arm was up, (INDICATES) I guess it was, I can only assume he was ready to punch the guy, the other guy.
Q.You indicated with your arm up at the shoulder, with elbow bent, and your hand in a fist.
A.I can’t see the fist, but definitely the arm is like a chicken wing.
Q.Do you remember what happened immediately before you took that photograph.
A.No.
Q.Can you say with any precision what happened immediately after you took the photograph.
A.No.
Q.Is it your evidence that there was then a quick struggle.
A.There was a struggle during this time, that’s why I took it, but other than that I don’t really know what, any specific details.
The evidence of Ms Nisha Ali
Ms Nisha Ali was dining with Ms Trish Estaniel at Pardis Restaurant next to the OTR Service Station. She described the shedding of the red shirt and the subsequent flurry of contacts thus:[20]
[20] T139.
Q.Can you say after the man took off his top what happened next.
A.Well the old man threw a punch and then the younger one also started hitting and then it was like hitting the old man, and then they went behind the other car so at that point I can’t see what’s going on.
Q.You said that they went behind the car, is that the red car.
A.Yes.
Q.Can you say how many times the older person hit the younger person at that point that you saw.
A.He just threw one punch and then the young guy started punching the old man.
…
Q.Can you say how many punches the younger guy threw at the older guy.
A.I can’t say with certainty but a couple of times and then they went behind the car.
Q.When the younger man was throwing the punches at the older guy can you describe how the older guy was standing.
A.He was like falling behind (INDICATES). With the punches he was like falling behind and went behind the car.
Q.After they went behind the car what did you see next.
A.And then I can’t see them clearly, but then I saw ambulance came and police also.
PART F: THE DEATH OF THE DECEASED

In the prosecution opening, it was stated:[21]
And your Honour will see from Dr John Gilbert from Forensic Science South Australia as the pathologist, evidence as to the cause of death, which it will not surprise your Honour to know is said to be the injury to the back left of the head from the contact with the roadway and the injuries that flowed from the movement of the brain causing a subdural and subarachnoid haematoma on the diagonally opposite side of the head.
[21] T12.
The prosecution confirmed later[22] that their case remained that:
·the case was run on the basis that a kick administered by the accused was such as to bring about the collapse of the deceased onto the ground.
·in collapsing onto the ground he very unfortunately hit his head very solidly.
·it was that trauma, that’s to say the deceased hitting the ground, rather than someone hitting him, that led to the contre coup injury.
·It is not suggested that the kick of itself, and putting aside the impact between the head and the ground that happened after it, is the cause of death.
·The prosecution rely upon the evidence of Dr Gilbert that the contre coup injury was the traumatic brain injury which caused death.
[22] T245.
The evidence of Dr John Gilbert
Dr John Gilbert is a senior forensic pathologist with Forensic Science SA and performed the post-mortem examination. Relevant parts of his report (exhibit P17), include the following:
He was allegedly involved in a ‘road rage’ incident on West Terrace at about 1850 hours 01/04/2022. It is alleged that at the conclusion of this incident, while being over to pick up his glasses from the roadway, he was kicked in the head/face area and then fell backwards in an unbroken fall striking his head. He was initially unconscious for approximately 6 to 7 minutes but regained consciousness and became agitated. He was transported to the Royal Adelaide Hospital. Because of agitation he was intubated in the Emergency Department and underwent a CT scan of the brain that showed an acute right subdural haematoma, traumatic right-sided subarachnoid haemorrhage, right frontal and right temporal intraparenchymal haemorrhages, minor left-sided subdural bleeding and intraventricular haemorrhage.
Dr Gilbert later concludes:
The death was clearly attributable to a traumatic brain injury. The pattern of injury was consistent with the deceased falling backwards, striking the left rear of his head on the ground, thus producing the left-sided skull fracture and contre coup haemorrhages in the right frontal and right temporal lobes of the brain associated with an acute right subdural haematoma.
Dr Gilbert gave the further oral evidence concerning contre coup injury:
A.When you have a moving head that strikes an immovable surface such as someone falling over backwards and hitting their head, what happens at the point of impact is that the brain is free to sort of slosh around inside the skull a bit. There’s a bit of free space in there. The brain is fairly soft and almost jelly-like in its consistency and it does move around when the head is impacted. Now, in this particular case with an impact to the left rear of the head, at the point of impact, the brain will slosh backwards and downwards towards the point of impact and then because it’s springy, like jelly, it will spring forwards and as a result, the front part of the brain impacts with the interior of the skull at the front and, in particular, given this particular situation where the impact is with the left rear, the most severe springing forward if you like will be in the right frontal region at the opposite point and this produces injuries, not at the point of impact, but on the opposite side of the head (INDICATES) and that has led to the use of the French term ‘contrecoup’, a blow opposite the point of impact.
Q.And the damage that we’ve seen at the point opposite the impact, did that include an acute subdural haematoma.
A.Yes.
Q.And also a subarachnoid haemorrhage as well.
A.Yes.
Q.… The mechanism that you have described I think even you used the example of somebody falling backwards and hitting their head, the corresponding injuries that you saw to the front right of the brain, is that consistent with a fall and a blow to the left side of the head on the ground.
A.Very consistent. It’s a pattern that we not infrequently see that people who have been knocked over in street fights and things like that, you know, the one – the deaths resulting from a single blow. If somebody has an unrestrained fall from a standing height, this pattern of injury is not unusual.
Dr Gilbert later gave the following further evidence:[23]
Q.Dr Gilbert, you viewed a video of the incident taking place at a time around when you wrote your report; is that right.
A.29 August 2022 I was shown the video.
Q.From what you saw in the video of the fall that occurred with the deceased, is that consistent with the suffering of the injury to the back of the head and the contrecoup injury.
A.I was mostly relied on the OTR CCTV imagery, and the deceased is partially obscured by his car, but at the point that he goes over I thought I could see him sort of falling slightly – twisting over to his left-hand side, with would correlate well with the impact being to the left rear of the head.
[23] T265.
Dr Gilbert also gave helpful evidence as to the nature of the chin injury, and the degree of force needed to cause it[24] to which I will return below.
[24] T261.
The evidence of Dr Christopher Ovenden
Dr Christopher Ovenden is the Neurosurgery Registrar at the RAH and gave lengthy evidence as to pre-death examinations and procedures concerning the deceased. It is consistent with Dr Gilbert’s conclusion concerning a contre coup brain injury and I will reproduce only a short portion thus:
Q.If I can ask please that you turn over to p.13 now. We can see there a heading of ‘Contrecoup Injury’. Can I ask you to explain that concept to his Honour.
…
A.So I suppose just to preface things, the brain sits within – it essentially floats within fluid, normal fluid, that is found inside the skull. So it’s not fixed in and of itself, there is some movement that can normally occur. So it’s essentially a floating organ. So in situations where there’s a significant degree of force, so say someone’s struck in the right-hand side at the front of their head (INDICATES), so then you call the initial injury, or the coup injury, there’s a degree of trauma and damage to the brain that can occur at that point. But the brain also obtains momentum at that particular stage, basically lets it drift and float backwards, where it then strikes the skull on the other side of the head, that can also induce damage and trauma to the brain and the structures around it. So a contrecoup injury that is found directly diagonal or opposite to the site of original injury, and that’s what this diagram demonstrates. So the impact in the first diagram, resulting in a coup injury at the site of impact, subsequent momentum of the brain as it floats across to the other side of the skull, resulting in potentially a contrecoup injury. And that is something that’s very commonly seen in patients that have sustained a traumatic blow to the head.
PART G: THE ACCUSED’S TWO POLICE INTERVIEWS
What I will refer to as “the first interview” was recorded on a USB and received as a single exhibit, being P11. Exhibit P12 is an aide memoire transcription of P11. The first interview is comprised of two conversations that the accused had with police immediately after the incident. The first conversation occurred upon the accused’s arrest at 7:06 pm at the Hungry Jacks premises on West Terrace (only about 20 minutes after the deceased fell onto the roadway). The second conversation is an interview conducted at the City Watchhouse which commenced at 7:42 pm subsequent to the accused’s arrest.
During the interview at the City Watchhouse, the accused referred to the driving on West Terrace and stated:

270. Ghassibe And um yeah so he’s probably taken the wrong lane and then he’s tried to merge to the right and the fella must be on this lane cos I, I wasn’t really paying attention because I’m not driving

271. Wilhelm Hmm

272. Ghassibe I was on my phone and then um next minute they both pulled over in the middle of both lanes

273. Wilhelm Hmm

274. Ghassibe And my drivers out and this fella is already out of his car like almost at the driver’s window and they have grabbed each other and sort of like scuffling so I’ve jumped out the car to plead deescalate the situation

275. Wilhelm Hmm

276. Ghassibe Explain to the next driver this is a taxi driver and snap out of it because everything is being recorded and everything

277. Wilhelm Hmm

278. Ghassibe At which point he’s fucken, excuse me

279. Wilhelm You’re allowed to swear mate

280. Ghassibe Hes grabbed me

281. Wilhelm Yeah

282. Ghassibe And um punched me in the face, right in the eye

283. Wilhelm Hmm

284. Ghassibe And then I’ve just defended myself

285. Wilhelm hmm

286. Ghassibe Put him down and after he was down I have not touched him again

The accused emphasised that he and his girlfriend had booked a hotel room for the weekend and that gratuitous violence was the last thing on his mind thus:

359. Ghassibe Just like you know it was not at all my intention to hurt anybody this evening

360. Wilhelm Yep

361. Ghassibe My intention was we have a hotel booked me and my woman

362. Wilhelm Hmm

363. Ghassibe And we was gonna go there and be there

364. Wilhelm Hmm

365. Ghassibe For the weekend you know. Not at all was it my intention to attack another person

366. Wilhelm Yeah

367. Ghassibe On a main road of Adelaide

The accused expressed concern for the welfare of the deceased (who was then alive) and sadness that the incident had occurred at all. He stated:

373. Ghassibe I hope, you know, I hope the man is ok

374. Wilhelm Yeah so, so how are you feeling now after

375. Ghassibe Im feeling so much (***)

376. Wilhelm Everything that’s happened

377. Ghassibe Like, I I feel so confused and I don’t understand why I had to attack somebody to put them down

378. Wilhelm Hmm

379. Ghassibe And why in the twenty first century they didn’t just take the escalation to deescalate when I asked him nicely twice you know

380. Wilhelm Hmm

381. Ghassibe To just please like you know this is a taxi driver ok please you want to attack me now I’m the passenger

382. Wilhelm Hmm

383. Ghassibe You know but he refused to stop attacking me I don’t understand if he was drunk or under the influence I hope not

The accused was thereafter released on bail.
The second interview (being the USB P35 and the aide memoire transcription P36) was conducted by Detective Brevet Sergeant Lane-Geldmacher (Lane‑Geldmacher) early the following morning at the hotel room where the accused and his girlfriend were staying. It commenced at 4:47 am on 2 April 2022. The accused was requested to give further detail of his version of events and the interview included the following dialogue:

243. Lane-Geldmacher Ok so when you got out of the taxi and you said you told me you said to the guy he’s just a taxi driver

244. Ghassibe Yes sir

245. Lane-Geldmacher Where were you standing when you said that?

246. Ghassibe I was standing in between both of them

247. Lane-Geldmacher Ah ok is that in between the taxi and his car?

248. Ghassibe Ah yep it would have been yeah

249. Lane-Geldmacher Ok

250. Ghassibe I jumped out and walked around

251. Lane-Geldmacher Ok

252. Ghassibe To go and speak to him

253. Lane-Geldmacher And um at that point in time that you went and got in between the two of them

254. Ghassibe Yep

255. Lane-Geldmacher Was the taxi driver being assaulted or under any immediate threat from this guy?

256. Ghassibe Yeah he was under immediate threat, I thought the threat to life yeah

257. Lane-Geldmacher And what gave you that thought?

258. Ghassibe And my threat to my life also

259. Lane-Geldmacher Ok so what gave you that impression?

260. Ghassibe Um the guy was just like very aggressive for no reason

261. Lane-Geldmacher Yep

262. Ghassibe Like had no reason to be as aggressive as he was

263. Lane-Geldmacher Yep

264. Ghassibe And he wasn’t calming down

265. Lane-Geldmacher Ok

266. Ghassibe When I asked him twice you know

267. Lane-Geldmacher When you say he was aggressive and [not] calming down tell me a little bit what his behaviour was that made you think that he was aggressive and not calming down

268. Ghassibe Um he was swearing, punching um he punched me as well

269. Lane-Geldmacher Ok

270. Ghassibe And I didn’t like all tried to do was deescalate the situation and explain to him he’s just a taxi driver which he should have clearly seen

271. Lane-Geldmacher Alright

272. Ghassibe Mm and there was also no need to get aggressive you know it was like a simple traffic mistake that the driver made

273. Lane-Geldmacher Yep

274. Ghassibe So I tried to deescalate the situation and have him talk about it

275. Lane-Geldmacher Yeah

276. Ghassibe But they [he] didn’t want to talk about it but he wanted to fight and at which point I don’t know if he’s, he’s already attacked the driver

277. Lane-Geldmacher Ok how did he attack the driver by the way?

278. Ghassibe By the, by the time the driver jumped out the car

279. Lane-Geldmacher Yep

280. Ghassibe Like he must have thought the driver wanted to fight him the way the driver jumped out the car ready to defend himself yeah

281. Lane-Geldmacher Yeah

282. Ghassibe And then yeah so

283. Lane-Geldmacher So just coming back to that, so how did this other driver attack the taxi driver?

284. Ghassibe He’s jumped out of his car run up to car and fucken started swearing and then went to like hit the window at which point the driver jumps out

285. Lane-Geldmacher Yep

286. Ghassibe Goes like that and then they started scuffling, punch, punching the driver

287. Lane-Geldmacher Yeah

Later in the interview, Lane-Geldmacher expressed the view that the accused posed no threat up to the time that the kick was delivered. The accused disagreed. The dialogue proceeds thus:

759. Lane-Geldmacher But the footage that we can see, um appears to be the end of the altercation

760. Ghassibe Ok

761. Lane-Geldmacher Ah when you strike the other driver as you are describing by um punching him, it appears that you strike him twice with your fist

762. Ghassibe Right

763. Lane-Geldmacher Your right fist

764. Ghassibe Right

765. Lane-Geldmacher And kick him to the head with a right leg

766. Ghassibe Ok

767. Lane-Geldmacher Um from what we’ve been able to see on the footage, at that point in time that that happens

768. Ghassibe Yeah

769. Lane-Geldmacher He doesn’t appear to be presenting any threat to you

770. Ghassibe Yeah he was

771. Lane-Geldmacher At all

772. Ghassibe Yeah

773. Lane-Geldmacher How, how do you account for that?

774. Ghassibe Oh ah he was presenting a threat by jumping out the car in the middle of the main road, West Terrace attacking the driver and then attacking me in the face

775. Lane-Geldmacher Ok alright

776. Ghassibe Yeah so hopefully the CCTV footage of the drivers side

777. Lane-Geldmacher Yep

778. Ghassibe Wouldn’t be so obscured

779. Lane-Geldmacher I guess what I’m getting at mate, though is you said at the time that you threw that punch and you kicked him to the head

780. Ghassibe Yep

781. Lane-Geldmacher He was actively attacking you?

782. Ghassibe Yeah he was he had just finished punching me and he refused to calm down and get back in his car and he’s come back, hes’ pacing up and down like he was on something or something like he was way too aggressive. He didn’t even have a car accident

783. Lane-Geldmacher Yeah

784. Ghassibe And it was just way too aggressive

785. Lane-Geldmacher Alright um

786. Ghassibe He wouldn’t listen to the point of just calm down he’s a taxi driver

787. Lane-Geldmacher Yeah

788. Ghassibe Decided to attack me and all tried to do is explain that he is a taxi driver can we please not do this

789. Lane-Geldmacher Yeah I’m just gonna go through what I’m saying though, I just wanted to put it to you. From what I’ve been able to see on the CCTV footage

790. Ghassibe Yep

791. Lane-Geldmacher At the time and it does appear that you knock him out

792. Ghassibe Yep

793. Lane-Geldmacher As you described

794. Ghassibe As I described yeah

795. Lane-Geldmacher Yep that’s right. At the time that that happens

796. Ghassibe Yeah

797. Lane-Geldmacher It doesn’t appear as though he’s actively fighting you or presenting a threat to you

798. Ghassibe He was

799. Lane-Geldmacher Ok

800. Ghassibe Yes

801. Lane-Geldmacher And how was he doing that?

802. Ghassibe Um he was talking and he was coming at me like he just finished attacking me

803. Lane-Geldmacher Yeah

804. Ghassibe And he was like letting me know that he was ready to attack me again and as he did that the second time

805. Lane-Geldmacher Yep

806. Ghassibe And he refused to listen o me. Does the driver, sorry does the driver’s side CCTV footage, does that have audio as well?

807. Lane-Geldmacher I don’t know

808. Ghassibe Alright hopefully it does because yeah he was still very aggressive

Lane-Geldmacher asked the accused about his taking off his shirt and the accused alluded to the fact that the deceased had only seconds before roughly grabbed that shirt and he thought that he might do it again:

363. Lane-Geldmacher Yes. So you say you took your shirt off. Um

364. Ghassibe Cause didn’t want it to get ripped I just bought it

365. Lane-Geldmacher Ok

366. Ghassibe And he was trying to rip my, my stuff

367. Lane-Geldmacher Ok so what did you do with your shirt when you took it off?

368. Ghassibe I threw it on the floor

The accused does appear to have been candid about a number to matters during both interviews. I note that at the end of the first interview, Constable Wilhelm stated “we appreciate you um being candid with us”; and this was not uttered in a flippant or sarcastic way. An example of candour appears towards the end of the second interview when Lane-Geldmacher was asking about the content of the flurry of blows and the accused volunteered, without prompting, that he had had martial arts training thus:

388. Lane-Geldmacher Can you demonstrate or tell me

389. Ghassibe I have a background of martial artist yeah

390. Lane-Geldmacher [You’ve got] a background as a martial artist

391. Ghassibe In martial arts yeah

392. Lane-Geldmacher Oh ok, what what’s your background in martial arts?

393. Ghassibe Um I’ve been training since I was a child but I don’t hold any um certifications or something like that

At trial, the prosecutor did not seek to tender any evidence concerning the accused’s proficiency in any martial art or the nature of any martial arts training in general.
PART H: THE ACCUSED’S MENTAL STATE AT THE CRITICAL TIME

I find that, as a matter of law, the actions of the accused were “a substantial cause of the death” and hence “causative”.
But it is a very different thing to suggest that one should infer murderous intent from the fact of the death, particularly where no weapon is involved. In the present case, a decision made impulsively by the accused to knock the deceased to the ground (even though it might involve some pain to the deceased) does not require a conclusion that he thereby intended to cause that high level of harm, “grievous bodily harm”. An intention by an accused person which is limited to retaliating with blows of some force, but which intention did not extend to an intention to cause grievous bodily harm, would not constitute the required murderous intent for murder.
Impulsive acts - the effect of a state of stress or emotion on mental state
It is a matter of common experience that, when in a heightened state of stress or emotion, a person may impulsively perform acts without any or sufficient consideration for their possible consequences. In such cases, it would be quite unsafe to reason from the fact of death occurring that the accused must have intended that to happen.
Thus, in the present case, it is necessary to have regard to the possibility that the accused’s mental state and reasoning processes may have been temporarily affected by a state of stress or emotion engendered by the deceased’s aggressive and assaultive behaviour towards the taxi driver and himself. Further, such a mental state of stress or heightened emotion may have been accompanied by the cumulative effect of two further matters:
·the effect of intoxication by alcohol and illicit drugs; and
·a temporary interference with vision and/or equilibrium of the accused’s mental state caused by injury to his left eye.
I now turn to those matters.
The effect of intoxication by alcohol and illicit drugs
At the relevant time, the accused had a blood alcohol content (BAC) of about .105% (being double the driving limit of .05%). Further, and of no credit to the accused but nevertheless of relevance to the present inquiry, the effect of that .105% BAC would likely have been potentiated by his contemporaneous blood level of cocaine later detected upon analysis of a sample of his blood.
The evidence of Professor Jason White
Professor White gave expert evidence concerning such matters. His main report and an addendum report were tendered as exhibits P22 and P23 respectively.
In his first report, Professor White opined that the accused would likely have had a BAC of about .105% at the time of the delivery of the flurry of strikes and the kick. As to relevant effects of alcohol, he stated:
Alcohol impairs the ability of the person to perceive their environment clearly as well as their concentration and attention. As a result of these effects on both perceptions and concentration, an intoxicated person may have failed to perceive objects or events around them that might be obvious to a person in a sober state.
Thinking and decision making are impaired by alcohol. An affected person is able to think only at a simple level and has difficulty understanding ideas and conversations of any significant complexity. The impairment in thinking and the failure to attend to what is happening around them may result in the intoxicated person not perceiving situations correctly and making errors of judgement. For most people, impairment of thinking and decision making begins to occur at blood alcohol concentrations of 0.05% and above and is obvious at blood alcohol concentrations in excess of 0.10%.
Alcohol can produce disinhibition, with the person engaging in behaviours that would be described as impulsive, risky or reckless. These may be uncharacteristic for the individual and unpredictable to others. Such behaviour changes occur because the intoxicated person has less than normal concern for the consequences (particularly long term consequences) of their actions. Disinhibited behaviour is commonly observed at blood alcohol concentrations in excess of 0.08%, although some degree of disinhibition occurs at lower concentrations.
Professor White proceeded to analyse the findings concerning cocaine consumption and concluded that “Mr Ghassibe was very likely to have been affected by cocaine at the time of the incident”.[25] He referred to a number of well‑known effects of the drug, some of which are “confused thinking, obsessive behaviour and apparently irrational and erratic behaviour”.[26]
[25] Exhibit P22, page 4.
[26] Exhibit P22, page 5.
As to the potentiating effects of alcohol and cocaine, he opined:
When alcohol and cocaine are taken at around the same time there is an increase in the effects of cocaine due to the formation of the metabolite cocaethylene. This metabolite is not formed when cocaine is taken without any alcohol having been consumed. It has effects similar to cocaine itself and as a result of the formation of this metabolite the effects of cocaine are somewhat stronger when consumed with alcohol compared to cocaine alone and the effects of cocaine may persist for a longer period of time. People who use cocaine and alcohol together report that the cocaine effects last longer, presumably due to the actions of cocaethylene.
Professor White’s concluding summary in his first report was as follows:
At the time of the incident, Mr Ghassibe would have been affected by alcohol with a blood alcohol concentration most likely to have been around 0.105%. The effects of alcohol, described above, include an increased likelihood of impulsive, risky or reckless behaviour that for some people in circumstances can include aggression and violence.
Mr Ghassibe is likely to also have been affected by cocaine. When taken with alcohol, the effects of cocaine persist for longer and may be more pronounced than when alcohol is not combined with the drug. Similar to alcohol, cocaine causes an increased likelihood of impulsive, risky or reckless behaviour and these effects would be expected to be additive with those of alcohol. Use of cocaine is sometimes associated with aggression and violence, and this may be due to increased impulsiveness, but may also be secondary to the person experiencing psychotic symptoms arising from cocaine use.
Consistent with the potential for the two substances to increase the risk of violence, there is evidence for a highly elevated risk of being involved in an aggressive incident within 3 hours of use of alcohol and cocaine together.
While it is possible that Mr Ghassibe was also affected by cannabis at the time of the incident, it is also possible that his last use occurred many hours or days prior to the incident, and as a result, he was not affected by cannabis at the time of the incident. (My underlining)
In his addendum report exhibit P23, Professor White considered CCTV footage of the accused during the two police interviews, the first being only a short time after the incident. He opined in part:
This report is an addendum to my report dated 9^th November 2022. … I have also viewed video recordings of the incident that occurred on West Terrace on the 1^st April 2022, of Mr Ghassibe’s subsequent arrest, his interview with police at the City Watch House at around 7.45pm on the 1^st April 2022, and his interview with police at a hotel room commencing at 4.45am on the 2^nd April 2022.
I have (been) asked to comment on the following:
Mr Ghassibe’s behaviour during his arrest
Mr Ghassibe’s speech does not show any abnormalities such as slurring or excessive pausing. His cognitive function is not obviously affected as he responds appropriately to questions and instructions. However, his speech is repetitive, a common characteristic of people affected by alcohol. He also shows some degree of disinhibition by speaking when it was not necessarily appropriate to do so; this impulsive behaviour can be due to the effects of either alcohol or cocaine or a combination of the two. He shows a mild degree of agitation which could be due to the effects of cocaine, but could also be a consequence of experiencing a violent altercation.
Interview with police at the city watchhouse
At the City Watchhouse, Mr Ghassibe shows less agitation, speaking more slowly during this interview. However, he does become mildly agitated when speaking of the incident. He shows no evidence of disinhibition, speaking only when appropriate.
At this time, his blood alcohol concentration would not have been very different than it was at the time of his arrest. However, the effects of cocaine may have diminished in the intervening period, and this may be the reason for his reduced agitation and lesser degree of impulsiveness.
As to the application of the above considerations to a determination of the present case, Professor White notes in the above extracts that an important matter is the bearing of intoxication (by both alcohol and illicit drugs) upon “impulsive behaviour”. Thus, the possibility of the kick being an impulsive action, and not accompanied with the element of murderous intent required for a conviction of murder, must be carefully considered. The further following passage in his evidence is also helpful in this area:
Q.Professor, I was listening closely to what you had to say about impulsive behaviour, both here today in your evidence, and indeed at p.7 of your report, P22, which I think you have in front of you there. In particular, I am referring now to the passage under the heading ‘Summary’ down the bottom there, where you talk about impulsive behaviour. Anyway, my question is this: say person A has a blood alcohol level of about .105%. And say person B treats, or attacks person A in a rude and somewhat violent way. In those circumstances may it be the case that that level of alcohol may have a tendency to bring about an impulsive reaction by person A, in the sense of striking a blow on person B, without first considering what physical effect that strike may have upon B.
A.Yes.
Intoxication by alcohol and cocaine – legal considerations
In R v Shinner,[27] King CJ stressed the importance of relating the law as to intoxication to the facts in cases where, absent intoxication, an inference of intention might readily be drawn from the performance of a particular act by the accused. His Honour stated:[28]
I am left with an uneasy impression that the jury may not have been sufficiently aware of the precise issues which they had to resolve as to the appellant’s state of mind and the bearing of his intoxication upon those issues. Despite the appellant’s evidence to the contrary, there was a strong body of evidence leading to the conclusion that the appellant’s boot made contact with the deceased’s head on more than one occasion. There was therefore an issue for the jury as to whether the appellant intended to make contact with the head. That inference might readily be drawn from the appellant’s actions if he were sober. The inference might not as readily be drawn in the light of his intoxicated state as it would be, if he were sober. If he did intentionally and repeatedly kick the deceased’s head, the inference that he intended at least grievous bodily harm might readily be drawn if he were sober. It might be less readily drawn by reason of his intoxication.
[27] (1993) 173 LSJS 384.
[28] (1993) 173 LSJS 384, 386.
Similarly, in R v Wingfield,[29] the accused was convicted of the murder of his young child on the basis that he had inflicted multiple injuries, including to the head and fractures to both arms. The child died of a raised inter cranial swelling following a closed head injury. The accused gave evidence that he was drunk when the incident occurred. In allowing the appeal, King CJ stated:[30]
The intention of the appellant was a crucial issue. The injuries which he caused were grievous. If caused by a sober rational man, the inference that they were caused with the intention of doing grievous bodily harm would be strong. The appellant, however, had no rational cause to do grievous bodily harm to the child and the appellant was drunk. These circumstances demanded a careful direction to the jury as to nature of the intention which was required for a verdict of murder and as to the bearing of intoxication upon the issue of intention.
[29] (1994) 176 LSJS 14.
[30] (1994) 176 LSJS 14, 15.
And in the later case of R v Williams, Duggan J stated:[31]
It has been held on many occasions that, in a case such as the present, it is necessary for a jury to take into account evidence of intoxication in deciding whether the appellant formed the particular specific intent relevant to the charge. The enquiry is not limited to the issue of capacity to form such an intent. (See eg R v O’Connor [1980] HCA 17; (1980) 146 CLR 64 at 88; R v Martin (1983) 32 SASR 419 at 454; R v Esposito (1998) 105 A Crim R 60 and R v Coleman (1990) 19 NSWLR 467 at 485).
[31] (1999) 205 LSJS 472, 479.
In the present case, the issue of intoxication is important; but it is one of several factors to be taken into consideration.
A temporary interference with vision and/or equilibrium of the accused’s contemporaneous mental state caused by temporary injury to his left eye
A second cumulative matter concerning the accused’s contemporaneous mental state is what I will refer to as a temporary interference with vision and/or equilibrium of the accused’s contemporaneous mental state caused by temporary injury to his left eye. It was the subject of expert evidence called by the accused.
I find on the basis of all of the evidence that for some years prior to the subject incident, the accused had been legally blind in his right eye. I further find that near the beginning of the 40 second critical time period, the deceased punched the accused in his left eye with some consequent bleeding to the nose/eye area. (Additionally, but perhaps of lesser importance, the defence contends that just before that punch the deceased spat or expectorated in the accused’s face when he first came to the aid of the taxi driver and I will return to this subsidiary matter later).
The provenance of a temporary left eye injury resulting from the punch by the deceased
Mr Gill, the taxi driver, testified to seeing blood under the nose of the accused. Thus, he stated:[32]
[32] T119.
Q.When the fare got back into the car, he had no top on.
A.I’m not sure. I think he put the clothes on while he sitting in the cab.
Q.Did you see whether he had any injuries on his body at all.
A.He got a blood from the nose.
Q.Can you show me on your face where –
A.Just here (INDICATES).
Q.Under the nose.
A.Yeah, under the nose.
Q.What’s where you pointed.
A.Yes.
…
Q.Did you see the angry man punch this man in the face.
A.Yeah. He threw the punch.
Q.The angry man threw a punch.
A.Yes.
Constable Wilhelm was one of the arresting officers and testified that the exhibit P15 comprises five photographs taken of the accused upon arrest on 1 April 2022. In cross-examination appears the following passage:[33]
[33] T190.
Q.Could you explain to his Honour the injury you saw on his eye.
A.Your Honour it appeared to be a black eye of some sort.
Q.Left or right.
A.I think left.
Q.Wasn’t there in fact a fresh mark under his left eye.
A.Yeah, that’s the mark I’m talking about, yep.
Q.That looked like a scratch or an abrasion of some sort.
A.Yes.
Q.It showed a pinkish red colour.
A.Yes.
Q.You didn’t ask him how he got that did you.
A.I don’t recall.
Q.He did indicate to you, in the record of interview, that he had been punched in the left eye.
A.Yes.
Q.He said the left eye.
A.Yes.
Q.You saw evidence of that.
A.Yes.
Q.I think it was Sergeant Nicholls who took a photograph of that.
A.I think so.
In somewhat unsatisfactory evidence, it transpired that Senior Constable Nicholls, who was present during the first interview on 1 April 2022 and was requested to take a photograph, either did not do so or lost it. Thus, in examination‑in‑chief appears the following passage:
Q.The injury that you have mentioned, that he brought to your attention, did you do anything as a result of him bringing it to your attention.
A.He requested that a photo be taken of that. At the conclusion of the interview that Officer Wilhelm and I conducted I intended to take a photo of that, but I either didn’t take the photo, or never recorded that, or uploaded it onto the report.
Q.Have you looked for any such photo in your phone.
A.Yes I have. When I got requested to provide a statement in relation to this, I looked through my phone at the time and found the photo that I thought I had taken was not there.
In any event, that abrasion under the left eye appears visible appears in at least the following exhibits:
-some of the photographs in exhibit P15 (Custody photographs taken on 1 April 2022 at City Watchhouse shortly after the incident.)
-the single photograph comprising exhibit P41, being an enlargement of photograph 2 in exhibit P15.[34]
-some of the photographs comprising exhibit P24 taken by Brevet Sergeant Pickard at about 8:10 am on 2 April 2022 at City Watchhouse.
[34] See T356.
As to the taking of the photographs comprising P24, Brevet Sergeant Pickard, the photographer, gave the following evidence:[35]
[35] T316.
Q.If we turn over then, the first photograph is obviously of the face of the person in question; is that right.
A.Yes.
Q.And were you then asked to take some photographs, in particular focusing on the area around the left eye.
A.Yes.
Q.Did you yourself make some observations of that area of the accused at the time you were taking the photographs.
A.Yes, I did.
Q.And what did you see in that area.
A.Just some minor bruising under the eye and slight swelling.
Q.Was that under one eye or both eyes that you saw.
A.Mainly on the left eye.
In cross-examination appears the following passage:[36]
[36] T319.
Q.Looking at photograph 29, that is of some bruising under his left eye; is that correct.
…
A.Yes, that’s correct.
Q.And is there also closer to the nose a scratch or some abrasion almost in the corner of the eye, maybe a finger away from the corner of the left eye. The inner corner.
A.It’s possible, yes.
Q.And can that possibly be seen in photograph No.2, that scratch.
…
XXN
Q.Can that be seen, same scratch.
A.Yes, it can.
In his two police interviews, the accused repeatedly, and in a convincing manner, stated that the deceased, at an early stage, punched him in his eye.[37] The context and his reference to marks near his left eye make it quite clear that he was referring at all times to his left eye rather than his right eye.
[37] In the first interview at items 20, 65, 260, 306 and 544ff, and in the second interview at items 411-417 and 829-836.
It is clear law that in cases where the prosecution tenders in evidence a record of an interview with an accused person, the contents of that interview become evidence that can be used against the accused but can also be used in his favour.
Having regard to the accused’s repeated assertions in the interviews, coupled with all the other relevant evidence in the case to which I have just referred, I find that the accused was indeed punched in the left eye by the deceased.
The evidence concerning the deceased spitting in the face of the accused
The accused asserted a number of times in each police interview that the deceased also spat on his face. However, as the prosecutor rightly points out, on every occasion this assertion was limited to spitting on the face – he did not assert a spitting in the eye (let alone the left eye), in this regard. This is to be contrasted with the accused’s very specific reference to his (left) eye when talking about the punch (as discussed above).

It is true that the taxi driver gave the following evidence in response to a highly leading question in cross-examination:
Q.Can I ask you this: did you see the other driver, the angry man, spit in this man’s face.
A.Yes.
Q.He spat in his eye, his left eye, didn’t he.
A.Yep.
Q.You saw the man, this man, the accused, wipe his face.
A.I’m not sure.
However, in a later question in re-examination by the prosecutor (not objected to by defence counsel), Mr Gill expressed doubt as to whether he could remember the deceased spitting in the left eye of the accused such that no clear evidence of spitting in the accused’s left eye remained on the whole of his evidence.
While I accept the accused’s statements in his interviews about being spat on the face, they do not assert a spitting in the left eye. The accused did not give evidence at trial and there the matter rests.
The expert evidence of Professor John Crompton
Defence counsel tendered as exhibit D4 the expert report of Professor John Crompton, an ophthalmologist. In his oral evidence, Professor Crompton stated:[38]
[38] T370.
Q.You looked at the video and I’d like you to assume that without any real warning, Mr Ghassibe was spat at and also punched on the left side of his face.
A.That’s what it looked like when I watched the movie.
…
Q.That’s your assessment of what happened.
A.Yes.
Q.And did you see the punch coming or did you see it.
A.The film showed the driver of the other car swing his fist, right fist and that usually means it contacts the left eye of the person who he’s aiming at. I also saw him wiping something, wiping the left side of his face (INDICATES) in the region of his eye.
Q.Looking at P41 now produced to you, it’s a single photo, a blow-up from the watch-house.
…
Q.Looking at Exhibit P41, I’ll ask you a question first. Did you see any damage to the left eye when you examined him in September of this year.
A.No.
Q.That photograph was taken at about roughly about 7.45, I think, p.m. on 1 April. There’s an arrow indicating there a mark in the corner of the left eye just under the eye; do you see that.
A.Yes.
Q.And there was some indication of swelling around the left eye; can you see that.
A.Yes.
Q.Looking at that photograph, do you see damage to the left eye.
A.I can see a mark that looks like a bruise or an abrasion below that left eyelid on the nose side.
…
Q.And you saw the blow on the CCTV footage, what are the likely effects of that kind of blow to that eye, taking into account also what you see in P41.
A.Well, this mark on his - this bruising, apparent bruising on his eyelid, the bottom of his eyelid is consistent with trauma that’s pushed the skin and soft tissue injury, the muscles under the skin against the rim of his bony orbit, the top of the cheekbone (INDICATES).
…
A.… So that’s consistent with a punch and the amount of damage is dependent on the angle of the punch and the structure, how prominent the eyeball is. The idea we have - the reason we have bony skeleton of the face is to protect the eyes so if you’ve got a prominent eye, you’re going to suffer more damage from a punch than someone who’s got a more recessed eye.
….
Q.And the likely effects to the vision.
A.It depends on how much, how forceful it was because a punch to an eye, besides causing bruising to the soft tissue, will cause watering, tearing, which can blur the vision. It also can cause a bleed inside the eye in the front chamber of the eye. We call that a hyphema. It can cause a cataract. It can cause bleeding in the back of the eye. It can cause damage to the optic nerve, the cable. There’s a multitude of different types of injuries that can occur.
Q.What’s the likely outcome to the actual capacity to see out of a good eye immediately following a trauma such as that.
A.There certainly would be instant blurring and the length of blur would depend so much - depends on how heavy the hit was and his anatomy. So it could last for a second, minutes, hours, days, weeks.
…
Q.Did you make any assessment of the force of the blow in those circumstances as you saw it.
A.I assumed it was relatively minor and particularly seeing this photograph, it doesn’t look like he had a serious injury that could have caused much of a problem.
Q.A problem to what, his immediate vision or to his -
A.To his vision after a minute or two, yes.
Q.So is it your evidence for a minute or two, he was likely to have some problems with vision in his good eye.
A.Yes.
Professor Crompton also recounted evidence of his extensive experience with patients who had previously lost the sight of one eye and are suddenly faced with an injury to their one remaining good eye. He gave the following evidence:
Q.Well, a person with one good eye, who suffered some trauma to that good eye, have you had an experience with the anxiety that those people suffer.
OBJECTION: MS DUNLOP OBJECTS
MS DUNLOP: We are talking about an ophthalmologist here, not necessarily about what mental conditions or anxiety might follow on from that. I think the professor can speak to the injury and observations.
HIS HONOUR: I’m not sure Ms Dunlop, because this witness may have the necessary experience with a large number of patients who have a defective one eye, and then a problem arises with the other, that might be a not uncommon syndrome almost I’d imagine. I think we might hear the evidence and you can renew your objection later if you think so.
MS DUNLOP: Thank you.
XN
Q.I go back a step. I understand doctor that you have dealt with patients who are significantly disabled in one eye and who have suffered trauma in the good eye.
A.I certainly have.
Q.And you’ve had regular experience over the last 43 years with patients in that problem.
A.Yes.
Q.What can you comment about their reaction to suffering trauma in the good eye.
A.Okay, I’ve had a large experience with treating patients with trauma, and unfortunately I’ve seen many who have got very poor vision in one eye and then unfortunately something happens to the other eye, whether it’s a car accident, or assault, or whatever, and they are extremely worried, after losing one eye that – and they are very protective of their good eye, because they don’t want the same thing to happen. And unfortunately when they have problems to the second eye, the first is ‘What’s going to happen, am I going to go blind’ and they get very, very worried, and their reaction to that depends on the personality and the circumstances in which it happened. And I must add, that although I’m an eye specialist, I also am a doctor, and I have to take into account the mental attitude and reactions of the patient. I don’t prescribe glasses, I look after the whole person.
…
Q.In those circumstances, you would anticipate a vigorous defence to any risk to complete eyesight.
A.I certainly do, if I’m allowed to think of myself as a 30-year-old or whatever, I think I would take vigorous action against being attacked to my only good eye. At my present age I would run.
In cross-examination, Professor Crompton agreed that most of the postulated deleterious consequences were matters of degree, depending on such things as force, angle, duration and precise location of a blow and the structure of the face.
At the conclusion of cross-examination, I asked the following question(s):
Q. I just ask you this, you told the court that you saw on the footage the deceased throwing the punch, which appeared to land in the area of the left eye.
A.Yes.
Q.And it seemed to you to be a not inconsequential amount of force.
A.Yes.
Q.Now, if a witness tells us that he was at the scene and shortly after the delivery of that blow he saw that the accused had got some blood from the nose, that’s to say he saw blood just under the nose of the accused, does that assist you in giving evidence as to the likelihood, or lack of likelihood of an effect of that punch on the vision of the accused in the left eye.
A.Yes, and looking at the photograph, it looks as though there is some blood at the left nostril. I think all of you are aware if you hit your nose accidentally you get watering. If that was blood noted immediately afterwards would suggest that the punch damaged his nose and gave him a blood nose, and he would certainly have had more watering from that, watering in the eye.
Q.And on the assumption that either it’s the one punch which connects with both the eye and the nose which of course is possible, or there were several punches delivered by the deceased at this time which also appears possible, can you say anything as to whether an additional problem of bleeding from the nose would be caused so that the dislocation of vision lasts for a somewhat longer time than it might otherwise do.
A.It certainly could, it’s indicative that there was a substantial blow to that area, yes.
Further evidence of Professor White addressing Professor Crompton’s evidence
In his addendum report exhibit P23, Professor White addressed Professor Crompton’s report concerning Mr Ghassibe’s visual difficulties and opined:
Potential impact of Mr Ghassibe’s visual difficulties
Mr Ghassibe had lost vision in one eye due to trauma. This would have resulted in impairment of his vision in that side of his body as well as impaired perception of depth. This can result in difficulties judging distances and following moving objects and may increase the likelihood of falls.
Alcohol also impairs vision, including impaired clarity of vision and depth perception. As a consequence of his pre-existing visual impairment, when affected by alcohol, Mr Ghassibe’s vision may have been relatively poor. Cocaine increases pupil diameter, making a person using the drug susceptible to the effects of bright lights and glare.
PART I: THE PARTIES’ CLOSING ADDRESSES
I have paid close attention to the whole of both parties’ closing address submissions and particularly as to whether the required specific intent (or “murderous intent”) has been proven by the prosecution. I will not attempt to replicate their addresses.
The prosecution closing address
The prosecutor contended in her careful and helpful closing address that it should be inferred beyond reasonable doubt that the accused held the required murderous intent at the time of delivering the kick. In very short summary, she submitted that while the accused’s initial intervention to prevent injury to the taxi driver was peaceable and justified, there was a change in the accused’s behaviour corresponding to that point in time when he threw off his shirt. She submitted that by the end of the flurry of blows and the kick, the deceased was no longer posing any real threat to the accused (or to the taxi driver who had by this time returned to his taxi).
The prosecutor submitted in effect that an inference of murderous intent should be drawn from the deliberate nature and particularly the force of the kick delivered by the accused. I will address that submission below in “Part J: Consideration”.
The prosecutor also submitted in that context that the kick by the accused was such that it caused the deceased to become unconscious before his body hit the roadway ground; as I understand her, the basis of this submission was the further submission that the deceased did not attempt to break his fall as it was occurring. I will address these matters below in “Part J: Consideration”.
The prosecutor also directed me to photos 17 and 18 of P6, (being still frames of the CCTV from the OTR) and which appear to show the deceased turning away from the accused just prior to the flurry of blows. She submitted that the deceased was essentially “retreating” at this time and the accused made a choice to attack the deceased indicative of the holding of murderous intent. Again, I will address these submissions below in “Part J: Consideration”.
The defence closing address
As I understand it, the defence relies upon the cumulative effect of the following factors, each of which tend to indicate that the accused may have acted without murderous intent:
·that the accused acted impulsively due to a mental state of stress or heightened emotion arising from the deceased’s unexpected aggressive behaviour;
·the effect of intoxication by alcohol and illicit drugs upon impulsivity; and
·a temporary interference with vision and/or equilibrium of the accused’s mental state caused by injury to his left eye.
The defence contrasts the present case with cases where the prosecution is able to establish a specific motive to kill that is at least understandable. Motives of financial gain, removal of future impediments to the plans of the accused, revenge for actions done by the deceased in the past, and so on, are all obvious examples. Of course, the prosecution do not, as a matter of law, have to establish any such motive in order to make out a charge of murder. Nevertheless, the accused relies here on the fact that there is apparently no such motive which tends to indicate that there was likely no murderous intent.
In much the same way, the accused also relies on the fact that no weapon was used here. In a case where an accused uses a weapon such as a gun or a knife or a heavy object (such as a hammer), the prosecution may be on much stronger ground in submitting that an inference of murderous intent should be drawn from the violent death that ensues. However, here the accused did not use a weapon. He administered the flurry of contacts and the kick over a very short time amounting to no more than twelve seconds from the first blow to the impact of the kick,[39] (this being within the overall critical time period which lasted for only about 40 seconds as discussed above).
[39] I take photograph 20 of exhibit P6 as depicting the beginning of the flurry, the time stamp thereon being 6:46:37 seconds. Photograph 41 of exhibit P6 depicts the later time when the deceased fell onto the roadway and the time stamp thereon is 6:46:49 seconds.
The defence stresses that the accused immediately desisted from any further contact upon the deceased falling to the ground. If he did have murderous intent at the time of administering the kick, he could easily have repeatedly kicked the head of the deceased who was then defenceless on the ground.
PART J: CONSIDERATION – IS MURDEROUS INTENT PROVEN?
Apart from obvious cases (such as an overheard prior statement by an accused as to his intention to kill a victim or a later confession of murderous intent), proof of the requisite specific intent will usually need to be established by inference from the totality of the relevant facts and circumstances. In Pemble v The Queen, Barwick CJ observed:[40]
Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused’s actual state of mind, a firm emphasis on the latter as the fact to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man’s reaction would be in the circumstances as decisive of the accused’s state of mind. They need also to be reminded that the accused’s circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and his state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated. ...
[40] (1971) 124 CLR 107, 120.
Thus, the prosecution has the burden of proving by inference, beyond reasonable doubt, that the accused had the required murderous intent. There are real dangers in assuming that a person who performed a particular action in fact also contemporaneously intended to thereby bring about what might be thought to be “the natural or likely consequences of that act”. The prosecution must negate any reasonable doubt that the totality of surrounding circumstances was such that the accused may have performed the relevant act or acts without adverting to the possible consequences, let alone actually having a specific intention to bring about such consequences. So it is that in the present case, the prosecution must prove that the accused, at the time of kicking the deceased, actually held the murderous intent requisite for a conviction of murder to be established.
The deliberate nature and the force of the kick
I do not accept the prosecution submission that an inference of murderous intent should be drawn from the deliberate nature, and particularly the force, of the kick delivered by the accused.
It is important to bear in mind that the post-mortem indicates no particular damage as being attributable to any of the flurry of blows by hands or arms or elbows. And as for the kick to the chin, although it was delivered with some force, it was not enough force to fracture any surrounding bones, let alone itself to cause death. As discussed elsewhere, the death did not occur due to direct force of blows but rather due to the highly unfortunate fact of the head falling heavily onto the roadway and the consequent contre coup trauma effect as described by Dr Gilbert.
It is also important to note that Dr Gilbert assessed the degree of force used in the kick as “moderate” as distinct from the higher “severe” level which is often encountered in street fight cases. He gave helpful evidence as to the nature of the chin injury, and the degree of force needed to cause it, thus:[41]
Q.… (W)hen we’re talking about the chin laceration, what is a laceration and what’s the mechanism by which that can be caused.
A.The word is often misused even by medical practitioners but, strictly speaking, a laceration is a tear in the skin caused by it being suddenly stretched and in this particular case, some sort of blow to the chin has caused the skin to be stretched and then torn open during the impact. It’s most common where the skin is overlaying bone so scalp lacerations are not uncommon with head impacts and in this case this showed appearances consistent with a laceration to be distinguished from – and this is where the medical practitioners often get it mixed up – it’s to be distinguished from a cut or an incised wound caused by a sharp object. That’s not the case here. A laceration is caused by blunt injury, not sharp injury.
[41] T261.
As to the likely degree of force used to inflict the chin laceration, Dr Gilbert gave this evidence:[42]
Q.And can you say anything about the degree of force that would be necessary to cause that laceration.
A.At least moderate because the jaw underlying it wasn’t fractured. I mean, you’d be talking severe force if the jaw was fractured, but it wasn’t (INDICATES) so at least moderate force to cause a laceration like that.
Q.Was there any damage to the teeth or the mouth area beyond the laceration that you have noted on the chin.
A.No.
[42] T262.
As a further matter, the prosecutor also submitted that the kick by the accused was such that it caused the deceased to become unconscious before his body hit the roadway ground. As I understand her, the basis of this submission was that the deceased did not attempt to break his fall as it was occurring. With respect, I do not accept that to be established. I consider that it is quite possible that it was the heavy impact of the head on the roadway that caused the deceased to become unconscious (just as it caused the midline effect and the death through the contre coup damage). Indeed, I note that Dr Ovenden gave the following evidence:[43]
Q.You were asked some questions about a person blocking their fall if they’re knocked over backwards, as this gentleman was, and you said, your answer was ‘A person in the right state of mind would normally block their fall’. From what you’ve seen, was it possible to see whether that person blocked his fall or not.
A.The fall was obscured by the side of the car, so it’s difficult to say, yeah, if he attempted to block his fall or not.
[43] T249.

In similar vein, Dr Gilbert stated in his report:
On 29/08/2022 I was shown video footage of the incident taken by CCTV from an adjacent petrol station and from a camera on a taxi involved in the incident. The petrol station footage shows the deceased bending down and then receiving a kick to his head area. Having received the kick, he appears to fall backwards and roll to his left but is then hidden by his car. The leftward roll would account for the point of impact being on the left rear of the head.
Problems associated with a frame by frame analysis
Earlier in these reasons I summarised the CCTV footage (and the audio track from the taxi) up to when the deceased grabbed hold of the accused’s shirt around the left shoulder area and appeared to strike the accused; after which they moved off screen and the activity is obscured almost entirely for a short period. I then summarised what subsequently happened thus:
The deceased reappears first on screen. He is heard shout words that appear to be “C’Mon – you wanna …” The accused moves backwards and the deceased takes two steps towards the accused and starts gesticulating aggressively, throwing his hands up. He says to the accused “You fucking dickhead”. The accused throws his shirt off. The deceased then says in a mocking tone “Ha, ha,ha,ha”. The accused approaches the deceased in a crouching stance and then punches the deceased twice in quick succession in the left side of his face. The deceased stumbles backwards and is against the back of the orange vehicle with his back to the accused. The accused elbows the deceased in the back, head and upper body area 3-4 times in quick succession, The deceased turns around to face the accused and struggles. The accused struggles with the deceased and strikes him twice more with his elbow and then quickly walks away. The deceased straightens up and the accused turns around, he is about 2 metres from the deceased who is no longer wearing his glasses. The deceased bends over. The accused kicks the deceased to the chin. The deceased falls backwards, twisting slightly to his left; his fall is mostly obscured by the vehicle.
As to the accused taking off his shirt, it is to be remembered that this occurred just after he had been vigorously attacked by the deceased, which culminated in a punch and in the deceased grabbing his shirt. At this point, the accused could not know what the deceased might do next; but it would have been obvious to the accused that more punching and grabbing of his shirt by the deceased might be in the offing.
I turn to the prosecutor’s submission that photos 17 and 18 of P6, (being still frames of the CCTV from the OTR) appear to show the deceased turning away from the accused just prior to the flurry of blows. She further submitted that the deceased was essentially “retreating” at this time and that the accused made a choice to attack the deceased indicative of the holding of murderous intent.
I consider that frame by frame analysis may be more problematic in some cases than in others. To explicate, if what is in question is a series of rapid unilateral acts by an accused person, frame by frame analysis may be of high value; it may show clearly what it was that the person surreptitiously accomplished and how he did it. Obvious examples might include a person accused of committing theft in a shop; a person accused of “picking a pocket”; a person accused of cheating at a casino and so on.
However, in other cases involving bilateral conduct (as in the present case) a frame by frame approach may be somewhat problematic. Thus in the present case, frame by frame analysis relies in large part upon an ex post facto conclusion as to what would have been the accused’s perception of actions being performed concurrently by another person. One problem is that such a conclusion, made by a viewer who has performed, quietly and in comfort, a slowed-down, frame by frame analysis of footage (taken from a camera with different perspective to that of the accused) may be wrong in their ultimate conclusion for a variety of reasons.
An ex post facto frame by frame analysis may lead to an incorrect conclusion in the present case because it gives insufficient weight to the possibility that the accused at the time of the kick did not have the same perception of contemporaneous conduct as that suggested by frame by frame analysis.
I therefore conclude in relation to the prosecution submission that photos 17 and 18 of P6 show the deceased turning away from the accused, that it is reasonably possible that the accused, being subject to the cumulative effect of the several factors discussed above (and particularly a temporary degradation of vision), may not have noticed any momentary turning away by the deceased. Rather, he may have simply observed, and acted pre-emptively in response to, the deceased’s much more obvious aggressive gesticulating that had immediately preceded the movement now under discussion.
The defence address
I place weight upon the defence submissions as I understood and summarised them above at [111] to [114].
PART K: CONCLUSIONS AND FINAL VERDICT
In all of the circumstances of the case, I conclude that at the relevant time, the accused may well have been under the cumulative influence of the stress created by the unexpected and surprisingly aggressive conduct of the deceased. This was superimposed upon the influence of alcohol and cocaine (potentiated by each other in the blood stream). This was in turn further superimposed upon the influence of the disquiet and temporary degradation of vision caused by the immediate injury to his left eye (in circumstances where he was legally blind in his right eye).
I find that the accused, in delivering the flurry of blows and then the kick, intended to put the deceased to the ground forcefully. However, I am simply not satisfied beyond reasonable doubt that, at the time of administering the flurry of blows or the kick, the accused possessed the specific intent to kill or inflict grievous bodily harm required for the crime of murder to be established. Accordingly, I find that the accused is not guilty of the crime of murder.
However, I do find that the accused is guilty of the crime of manslaughter by unlawful and dangerous act. I do so not only because the accused has pleaded guilty to the charge of manslaughter but because I am satisfied beyond reasonable doubt of his guilt of that charge on the evidence before me.
First, I am satisfied beyond reasonable doubt that at the time of administering it, the kick was an unlawful act (an assault). A full defence of self-defence (or defence of another) did not apply because I find that (even though the kick was not delivered with an intention to inflict grievous bodily harm), the kick was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.[44]
[44] Criminal Law Consolidation Act 1935 (SA) s 15(1)(b).
Secondly, I am satisfied beyond reasonable doubt that the kick was a dangerous act in that a reasonable person in the accused’s position would have realised that, in striking the deceased in the way that he did, the accused was exposing the deceased to an appreciable risk of serious injury.[45]
[45] This test is objective rather than subjective – it is a question of what a reasonable person in the accused’s position would have realised or intended rather than what the accused himself did actually realise or intend. See generally Wilson v The Queen (1992) 174 CLR 313.
Accordingly, the accused is guilty of the crime of manslaughter by unlawful and dangerous act. In those circumstances, I am not required to determine whether the prosecution has, or has not, disproved a partial defence reducing murder to manslaughter pursuant to Criminal Law Consolidation Act 1935 (SA) s 15(2).
Verdict
For all of the above reasons, I find the accused not guilty of the crime of murder but guilty of the crime of manslaughter.

270.	Ghassibe	And um yeah so he’s probably taken the wrong lane and then he’s tried to merge to the right and the fella must be on this lane cos I, I wasn’t really paying attention because I’m not driving
271.	Wilhelm	Hmm
272.	Ghassibe	I was on my phone and then um next minute they both pulled over in the middle of both lanes
273.	Wilhelm	Hmm
274.	Ghassibe	And my drivers out and this fella is already out of his car like almost at the driver’s window and they have grabbed each other and sort of like scuffling so I’ve jumped out the car to plead deescalate the situation
275.	Wilhelm	Hmm
276.	Ghassibe	Explain to the next driver this is a taxi driver and snap out of it because everything is being recorded and everything
277.	Wilhelm	Hmm
278.	Ghassibe	At which point he’s fucken, excuse me
279.	Wilhelm	You’re allowed to swear mate
280.	Ghassibe	Hes grabbed me
281.	Wilhelm	Yeah
282.	Ghassibe	And um punched me in the face, right in the eye
283.	Wilhelm	Hmm
284.	Ghassibe	And then I’ve just defended myself
285.	Wilhelm	hmm
286.	Ghassibe	Put him down and after he was down I have not touched him again

359.	Ghassibe	Just like you know it was not at all my intention to hurt anybody this evening
360.	Wilhelm	Yep
361.	Ghassibe	My intention was we have a hotel booked me and my woman
362.	Wilhelm	Hmm
363.	Ghassibe	And we was gonna go there and be there
364.	Wilhelm	Hmm
365.	Ghassibe	For the weekend you know. Not at all was it my intention to attack another person
366.	Wilhelm	Yeah
367.	Ghassibe	On a main road of Adelaide

373.	Ghassibe	I hope, you know, I hope the man is ok
374.	Wilhelm	Yeah so, so how are you feeling now after
375.	Ghassibe	Im feeling so much (***)
376.	Wilhelm	Everything that’s happened
377.	Ghassibe	Like, I I feel so confused and I don’t understand why I had to attack somebody to put them down
378.	Wilhelm	Hmm
379.	Ghassibe	And why in the twenty first century they didn’t just take the escalation to deescalate when I asked him nicely twice you know
380.	Wilhelm	Hmm
381.	Ghassibe	To just please like you know this is a taxi driver ok please you want to attack me now I’m the passenger
382.	Wilhelm	Hmm
383.	Ghassibe	You know but he refused to stop attacking me I don’t understand if he was drunk or under the influence I hope not

243.	Lane-Geldmacher	Ok so when you got out of the taxi and you said you told me you said to the guy he’s just a taxi driver
244.	Ghassibe	Yes sir
245.	Lane-Geldmacher	Where were you standing when you said that?
246.	Ghassibe	I was standing in between both of them
247.	Lane-Geldmacher	Ah ok is that in between the taxi and his car?
248.	Ghassibe	Ah yep it would have been yeah
249.	Lane-Geldmacher	Ok
250.	Ghassibe	I jumped out and walked around
251.	Lane-Geldmacher	Ok
252.	Ghassibe	To go and speak to him
253.	Lane-Geldmacher	And um at that point in time that you went and got in between the two of them
254.	Ghassibe	Yep
255.	Lane-Geldmacher	Was the taxi driver being assaulted or under any immediate threat from this guy?
256.	Ghassibe	Yeah he was under immediate threat, I thought the threat to life yeah
257.	Lane-Geldmacher	And what gave you that thought?
258.	Ghassibe	And my threat to my life also
259.	Lane-Geldmacher	Ok so what gave you that impression?
260.	Ghassibe	Um the guy was just like very aggressive for no reason
261.	Lane-Geldmacher	Yep
262.	Ghassibe	Like had no reason to be as aggressive as he was
263.	Lane-Geldmacher	Yep
264.	Ghassibe	And he wasn’t calming down
265.	Lane-Geldmacher	Ok
266.	Ghassibe	When I asked him twice you know
267.	Lane-Geldmacher	When you say he was aggressive and [not] calming down tell me a little bit what his behaviour was that made you think that he was aggressive and not calming down
268.	Ghassibe	Um he was swearing, punching um he punched me as well
269.	Lane-Geldmacher	Ok
270.	Ghassibe	And I didn’t like all tried to do was deescalate the situation and explain to him he’s just a taxi driver which he should have clearly seen
271.	Lane-Geldmacher	Alright
272.	Ghassibe	Mm and there was also no need to get aggressive you know it was like a simple traffic mistake that the driver made
273.	Lane-Geldmacher	Yep
274.	Ghassibe	So I tried to deescalate the situation and have him talk about it
275.	Lane-Geldmacher	Yeah
276.	Ghassibe	But they [he] didn’t want to talk about it but he wanted to fight and at which point I don’t know if he’s, he’s already attacked the driver
277.	Lane-Geldmacher	Ok how did he attack the driver by the way?
278.	Ghassibe	By the, by the time the driver jumped out the car
279.	Lane-Geldmacher	Yep
280.	Ghassibe	Like he must have thought the driver wanted to fight him the way the driver jumped out the car ready to defend himself yeah
281.	Lane-Geldmacher	Yeah
282.	Ghassibe	And then yeah so
283.	Lane-Geldmacher	So just coming back to that, so how did this other driver attack the taxi driver?
284.	Ghassibe	He’s jumped out of his car run up to car and fucken started swearing and then went to like hit the window at which point the driver jumps out
285.	Lane-Geldmacher	Yep
286.	Ghassibe	Goes like that and then they started scuffling, punch, punching the driver
287.	Lane-Geldmacher	Yeah

759.	Lane-Geldmacher	But the footage that we can see, um appears to be the end of the altercation
760.	Ghassibe	Ok
761.	Lane-Geldmacher	Ah when you strike the other driver as you are describing by um punching him, it appears that you strike him twice with your fist
762.	Ghassibe	Right
763.	Lane-Geldmacher	Your right fist
764.	Ghassibe	Right
765.	Lane-Geldmacher	And kick him to the head with a right leg
766.	Ghassibe	Ok
767.	Lane-Geldmacher	Um from what we’ve been able to see on the footage, at that point in time that that happens
768.	Ghassibe	Yeah
769.	Lane-Geldmacher	He doesn’t appear to be presenting any threat to you
770.	Ghassibe	Yeah he was
771.	Lane-Geldmacher	At all
772.	Ghassibe	Yeah
773.	Lane-Geldmacher	How, how do you account for that?
774.	Ghassibe	Oh ah he was presenting a threat by jumping out the car in the middle of the main road, West Terrace attacking the driver and then attacking me in the face
775.	Lane-Geldmacher	Ok alright
776.	Ghassibe	Yeah so hopefully the CCTV footage of the drivers side
777.	Lane-Geldmacher	Yep
778.	Ghassibe	Wouldn’t be so obscured
779.	Lane-Geldmacher	I guess what I’m getting at mate, though is you said at the time that you threw that punch and you kicked him to the head
780.	Ghassibe	Yep
781.	Lane-Geldmacher	He was actively attacking you?
782.	Ghassibe	Yeah he was he had just finished punching me and he refused to calm down and get back in his car and he’s come back, hes’ pacing up and down like he was on something or something like he was way too aggressive. He didn’t even have a car accident
783.	Lane-Geldmacher	Yeah
784.	Ghassibe	And it was just way too aggressive
785.	Lane-Geldmacher	Alright um
786.	Ghassibe	He wouldn’t listen to the point of just calm down he’s a taxi driver
787.	Lane-Geldmacher	Yeah
788.	Ghassibe	Decided to attack me and all tried to do is explain that he is a taxi driver can we please not do this
789.	Lane-Geldmacher	Yeah I’m just gonna go through what I’m saying though, I just wanted to put it to you. From what I’ve been able to see on the CCTV footage
790.	Ghassibe	Yep
791.	Lane-Geldmacher	At the time and it does appear that you knock him out
792.	Ghassibe	Yep
793.	Lane-Geldmacher	As you described
794.	Ghassibe	As I described yeah
795.	Lane-Geldmacher	Yep that’s right. At the time that that happens
796.	Ghassibe	Yeah
797.	Lane-Geldmacher	It doesn’t appear as though he’s actively fighting you or presenting a threat to you
798.	Ghassibe	He was
799.	Lane-Geldmacher	Ok
800.	Ghassibe	Yes
801.	Lane-Geldmacher	And how was he doing that?
802.	Ghassibe	Um he was talking and he was coming at me like he just finished attacking me
803.	Lane-Geldmacher	Yeah
804.	Ghassibe	And he was like letting me know that he was ready to attack me again and as he did that the second time
805.	Lane-Geldmacher	Yep
806.	Ghassibe	And he refused to listen o me. Does the driver, sorry does the driver’s side CCTV footage, does that have audio as well?
807.	Lane-Geldmacher	I don’t know
808.	Ghassibe	Alright hopefully it does because yeah he was still very aggressive

363.	Lane-Geldmacher	Yes. So you say you took your shirt off. Um
364.	Ghassibe	Cause didn’t want it to get ripped I just bought it
365.	Lane-Geldmacher	Ok
366.	Ghassibe	And he was trying to rip my, my stuff
367.	Lane-Geldmacher	Ok so what did you do with your shirt when you took it off?
368.	Ghassibe	I threw it on the floor

388.	Lane-Geldmacher	Can you demonstrate or tell me
389.	Ghassibe	I have a background of martial artist yeah
390.	Lane-Geldmacher	[You’ve got] a background as a martial artist
391.	Ghassibe	In martial arts yeah
392.	Lane-Geldmacher	Oh ok, what what’s your background in martial arts?
393.	Ghassibe	Um I’ve been training since I was a child but I don’t hold any um certifications or something like that