R v Harmouche
[2015] ACTSC 217
•5 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Harmouche |
Citation: | [2015] ACTSC 217 |
Hearing Date(s): | 2, 8 April 2015 |
DecisionDate: | 5 August 2015 |
Before: | Burns J |
Decision: | The accused is found not guilty of the offence of recklessly inflicting grievous bodily harm. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judge-Alone Trial – reasons – verdict of not guilty. CRIMINAL LAW – Particular Offences – offences against the person – recklessly inflict grievous bodily harm. |
Parties: | The Queen (Crown) Saed Harmouche (Accused) |
Representation: | Counsel Mr K Lee (Crown) Mr M Dennis (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused) | |
File Number(s): | SCC 59 of 2014 |
BURNS J:
On 8 April 2015, I found the accused not guilty of Count 1 on the indictment dated 27 March 2015, being a count of recklessly inflicting grievous bodily harm on Turki Alshehri. I note that, on 2 April 2015, the accused entered a plea of guilty to Count 2 on the indictment, alleging that, on 21 July 2013, by an unlawful or negligent act, he caused grievous bodily harm to Turki Alshehri.
The trial of the accused commenced before me, sitting without a jury, on 2 April 2015. It was then adjourned part heard to 8 April 2015 and concluded that day. I found the accused not guilty of the charge of recklessly inflicting grievous bodily harm and I indicated I would provide reasons at a later date. These are those reasons.
Put briefly, I found the accused not guilty of the charge of recklessly inflicting grievous bodily harm because I was not satisfied beyond reasonable doubt that he had the requisite intention for that offence.
The evidence
The first witness for the Crown was Ene Faavae. He was a patron at Meche nightclub on Saturday 21 July 2013. He knew the accused, as he was friends with the younger brother of the accused. He saw the accused on the dance floor. He said that he saw the accused punching a man. He testified that he saw the accused throw two punches initially, followed by a further two punches. He tried to pull the accused away from the other man, but the accused turned around and punched him. He said that he saw the man who had been punched by the accused fall backwards. In cross-examination, the witness accepted that he had consumed 20 alcoholic drinks that night and was quite significantly affected by alcohol. He also agreed that the light was bad in the nightclub. He was unable to say where he had been drinking before he went to Meche, or how long he had been at the nightclub before this incident occurred. He also agreed that he could not be certain as to how many punches were thrown by the accused, and that it could have been as few as one.
The second witness for the Crown was Stephanie Sostarko, who was a friend of the disc jockey working at Meche on the night of 21 July 2013. She had not consumed any alcohol that night. She was located in a raised position on a stage in front of the dance floor. She said that the dance floor was very crowded. She said that she saw a man push through the crowd on the dance floor and hit another man. She described it as a punch. She said that the man who was punched was looking in the opposite direction and was talking to his friends at the time. She said that after he was hit, the man fell back. At that point, the patrons on the dance floor started to leave and the man who had punched the other man also left. In cross-examination, she agreed that she had been in a good position to see what had occurred and that there had only been one punch delivered.
The third witness to the Crown was Justin Tam, who was the disc jockey working at Meche on 21 July 2013. He said that it was a busy night and there were about 200 people in the club. He was able to recall a commotion in the crowd on the dance floor and that he saw what seemed to be a fight, or a fight breaking up. He saw the bouncers come in and break it up. He saw a man lying on the ground. There was no cross-examination of this witness.
The next witness for the Crown was Tom Katene, who was a patron at Meche on 21 July 2013. Initially, he was unable to recall much of the events of the evening because he had been heavily intoxicated. After having his memory refreshed by reference to his police statement, he said that he was able to remember some punches being thrown, but could not recall who was throwing the punches. He subsequently gave evidence that he told police that the man who was throwing the punches was “pretty big”. He had also told police that the punches were only going one way. In cross-examination, he agreed that he was heavily intoxicated on the evening and that he could not remember how many punches were thrown. He was not able to say whether it was one punch or more than one punch.
The next witness to the Crown was Rebecca McKay, who was also a patron at Meche on 21 July 2013. She described the nightclub as not overly packed, “but there was (sic) a fair few people in there”. All she could remember seeing was a man running from the dance floor who looked shocked and then she saw a man lying on the floor.
The next witness for the Crown was Sharni Malala, who was also a patron at Meche nightclub on 21 July 2013. She had been consuming alcohol and was dancing at the club. She said that she saw a fight in which “some guy hit a kid”. She said that she was not sure what happened initially, but she saw “the last bit of the fight which is where someone was lying on the ground and there was someone standing over the top of him, punching him in the face”. She said that the man on the ground was not fighting back. Initially, she said that she couldn’t be “a hundred percent certain”, but she thought that there were a fair few punches thrown. She was unable to describe either the person throwing the punches or the person on the ground. She later had a conversation with Ene Faavae, who told her he had been elbowed in the eye when one of the punches was thrown. In cross-examination, she accepted that she did not have a good memory of the evening as she was intoxicated. She could not remember how much she had had to drink that night, or where she had been before she went to the nightclub. She said that he was not sure how many times the man was punched, but that it was more than three or four times. She said that she saw the man being punched on the ground more than five times. She could not recall speaking to the security guards at the club that evening, and could not recall telling them that the man who had been punched was also kicked to the head while he was on the ground. She could not remember what she had told police that evening.
The next witness to the Crown was Ferdinand Bartulovic, who was a security guard at Meche on 21 July 2013. He did not see anything except a male person laying unconscious on the floor. He said that he spoke to Sharni Malala on the night of 21 July 2013, who told him that a man had punched another man three times to the head, after which the man who had been punched fell and hit his head on the side of the stage before hitting the ground, where he was then kicked in the head.
The final eyewitness for the Crown was Julia Grieve, who was also a patron at Meche on 21 July 2013. She was on the dance floor when there was some shoving and she moved away. In cross-examination, she agreed that she told the police that evening that someone had been touching her “butt” inappropriately while she was on the dance floor and that she had turned around and noticed a male standing nearby. She could not recall whether she told this male to “piss off”, but this would not have been out of character for her. Her boyfriend at that time was a person by the name of Sami, who was a friend of the accused.
The Crown called medical evidence from Dr Catherine Sansum, a staff specialist medical practitioner at Canberra Hospital. She gave evidence of a number of injuries sustained by Turki Alshehri, but this was of limited value in determining how many times the accused struck Turki Alshehri on 21 July 2013. The following occurred in cross examination:
Doctor, there has been some evidence in this case that this man was struck, he fell and hit his head against a hard edge of what’s referred to as the stage and then he ended up on the floor. There is a dispute in this matter about how many times he was struck. Medically speaking under that scenario of being struck, hitting his head on the side of a stage and then going against a hard surface floor does the medicine shed any light on how many times he was struck?--- No not in particular. It’s very different. I can’t tell you whether he was punched three times or whether he’s been punched once and struck his head twice in a fall. It’s absolutely impossible to differentiate any of that.
The Crown also relied on lawfully intercepted telephone conversations between the accused and other persons. In one conversation that occurred on 24 August 2013, a third party said to the accused that he had heard that the accused “levelled some cunt in um Meche”. He accused responded “Yeah but it just happened so quick I didn’t you know when you think you don’t realise how hard you hit someone”. He later continued “Yeah just gave him a quick couple on the chin he dropped and his mate ran over I dropped his mate and then as I was walking and a bouncer tried to grab me so I dropped the bouncer and just kept...”.
No evidence was called on behalf of the accused.
Conclusion
A number of witnesses were of no particular assistance in determining how many times the accused struck Turki Alshehri because they did not see the incident. Of those who testified to seeing the physical altercation, a number were not impressive witnesses. I include in that category Ene Faavae, Tom Katene and Sharni Malala, who were all significantly affected by alcohol on the evening. The version of events given by Sharni Malala also differed significantly from that given by any other witness in terms of the number of punches said to have been delivered to the victim. She also apparently told the security guard, Ferdinand Bartulovic, that the victim had also been kicked to the head while on the ground, an allegation not supported by any other witness.
The witness that I found most impressive was Stephanie Sostarko, who was sober on the evening and who was in a good position to see what occurred. On her version of events, the accused only threw one punch, which caused the victim to fall to the ground, hitting his head on the edge of the stage in the process.
In the intercepted telephone material, the accused referred to giving the victim “a quick couple on the chin”, suggesting the possibility of two punches, but I note that the rest of that conversation contained inaccurate material consistent with bravado. There was no suggestion that the accused punched the mate of the victim, or that he punched a bouncer on his way out of the club. I am satisfied that these were lies told by the accused out of bravado.
Having assessed all the evidence, I was only satisfied that the accused punched the victim once to the head, causing him to fall to the ground and hit his head on the edge of the stage in the process. I was satisfied that events occurred very quickly and I was not satisfied that the accused had given any consideration to how hard he was going to hit the victim, or to the possibility that the victim may suffer serious injury as a consequence. For that reason, I found the accused not guilty of the charge of recklessly inflicting grievous bodily harm.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 August 2015 |
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