R v Henson - [2011] SADC 72

District Court of South Australia
(Criminal)
R v HENSON
[2011] SADC 72
Reasons for Ruling of His Honour Judge Stretton (ex tempore)
4 May 2011
CRIMINAL LAW - EVIDENCE - GENERALLY
Confrontation occurred in toilet of the Christies Beach Hotel. Dispute about who threw the first punch.
Held: That whilst the accused was intending to assault the victim, the victim did throw the first punch.
Criminal Law Consolidation Act (1935) s 24(1), referred to.
The Queen v Buzzacott [2010] SASC 298; The Queen v Olbrech (1999) 199 CLR 270, considered.

R v HENSON
[2011] SADC 72
Introduction

In this matter the accused, Thomas Lee Henson, pled guilty to an offence of causing harm with intent to cause harm pursuant to s 24(1) of the Criminal Law Consolidation Act (1935), particularised as him on the 5th day of June 2009 at Christies Beach unlawfully causing harm to Thomas Stephen Henderson intending to cause him harm.
The accused was originally charged with a more serious offence but his plea to that offence was accepted by the prosecution in satisfaction of the information.
The factual dispute
It turned out, however, that there was fundamental disagreement about one aspect of the facts of the matter. Essentially the facts were that, after a build-up involving certain phone calls, alleged disagreements and Mr Henson’s ute being damaged, a confrontation occurred in the Christies Beach Hotel on 5 June 2009.
In very brief summary, there is no doubt, and it is admitted, that Mr Henson followed the victim, Mr Henderson, into the toilets and punched him and kicked him several times causing him harm.
There is a fundamental disagreement, however, in that the declarations that were originally supplied to this Court indicated, through Mr Henderson’s declaration, that he was hit in an unprovoked way from behind at the outset of the confrontation in the toilet. Mr Henderson says he swung around and attempted to defend himself, perhaps landing one punch but was quickly knocked to the ground and then further beaten. On the other hand, the accused maintains that when he approached Mr Henderson in the toilet, Mr Henderson, on being hailed, immediately swung round and hit the accused first.
The law
It is plain from the case of The Queen v Buzzacott, [2010] SASC 298 referring to The Queen v Olbrech (1999) 199 CLR 270, that where there is a dispute over what might be called the primary facts of an offence, then, for those facts to be taken into account in a way adverse to the accused, those facts must be proved beyond reasonable doubt.
At the other end of the spectrum, where a matter of mitigation is to the contrary of what is indicated by the objective facts revealed in the evidence before a court, then that is a matter that needs to be proved on the balance of probabilities by the accused, as does any aspect of mitigation such as the accused’s motivation in committing the offence or other subjective matters that do not immediately appear apparent or might be ostensibly or inferentially in conflict with the admitted factual matrix. In all those cases, it falls to the accused to prove such matters on the balance of probabilities.
The evidence called in relation to the matter
I now return to the facts because in the final analysis I do not think I need to decide whether this dispute relates to a primary fact of the offence, although my preliminary view is that it is so fundamental to the basic course of events which form the charge that it is likely to be a primary fact of the offence.
A number of declarations were tendered and a number of witnesses gave evidence.
It is not in dispute that there was a lead-up to this event involving a number of instances of contact between the accused and the victim involving the actions and alleged actions of members of the victim’s family.
It is not in dispute that approximately a year before these events a friend of the accused died and a wake was held. A year later about two weeks or so before this offence, the accused decided to have a barbecue with a few friends in further memoriam of the death of his friend. There was telephone contact by Mr Henderson, the victim, to the accused asking whether the Mr Henderson’s former wife and her daughter could attend. There is some disagreement about the content of that call. Mr Henderson says permission was given. The accused says he did not give permission, on account of what he says Mr Henderson’s daughter and her boyfriend had done the year before. In any event, Mr Henderson’s daughter and her boyfriend did not attend, but overnight someone damaged the accused’s ute. That damage is consistent with Mr Henderson’s daughter and her boyfriend being refused entry and being upset about that fact; it is much less consistent with Mr Henderson’s version that they were invited along without there being any problem.
It is then common ground between Mr Henderson and the accused that there was a phone call between them about the damage to the ute. The accused blamed Mr Henderson’s former partner, her daughter and her boyfriend. The conversation ended with Mr Henderson saying that they would talk later and sort it out, and, I find, with Mr Henson saying that he would do more than sort it out.
Then, on 5 June 2009, Mr Henderson and Mr Henson were both at the Christies Beach Hotel. A closed-circuit television video was running and was tendered before me as P1.
Ms Smith, Mr Henderson’s partner, also gave evidence of the events at that time. I accept her evidence. She was a good witness and the sole witness in this case who I am completely satisfied told the truth. She said she was sitting at the table with her partner. He had been off doing various things involving the social club, counting money and had returned to the table. At the next table was the accused with some other people. Ms Smith said that she heard the accused say that he was going to ‘get’ Mr Henderson, or words to that effect. The video shows and Ms Smith says she saw Mr Henderson go to the toilet. She then saw the accused stretch out his arms above his head and immediately follow Mr Henderson to the toilet. Ms Smith thought that the accused was stretching his arms to limber up for a fight in the toilet. It is plain from the video that the way the accused stretched his arms and followed Mr Henderson did indeed cause Ms Smith the immediate serious alarm that she said she felt. She rushed around the table to speak to another person and send him in to the toilet to prevent what she plainly feared was going to happen, and what in fact, all agreed, did happen.
It is not in dispute that in the toilet a confrontation occurred, in the course of which the accused punched Mr Henderson to the ground and then continued to beat him whilst on the ground, including kicking him repeatedly to the head.
The essential question is whether, as the accused says, Mr Henderson swung a punch at him first or whether, as Mr Henderson says, he was first struck from behind.
I did not form a particularly favourable impression of either Mr Henderson or the accused. They both had a history of offending before the court and neither of them gave their evidence particularly well.
It is clear from the record of interview that the accused was less than forthcoming to the police in relation to his kicking and beating of the accused on the ground, which plainly did occur. Indeed, he denied it on several occasions to the police saying why would he do such a thing. He also told the police that he fell to the ground, striking his head on a basin, which plainly did not happen.
On the other hand, I did not form a particularly positive impression of Mr Henderson. I found that his evidence that the accused would simply come up behind him and start bashing him unlikely in relation what had gone before. The savagery of the attack by the accused, in my view, is not explained adequately or at all by the moderate conflict that had occurred over the attendance of the people at the wake, nor by the phone call that occurred subsequent to that between the accused and the victim.
I have had regard to the evidence of Ms Gemeri who was called, essentially to give character evidence for the accused. I take that into account in the relevant way. She obviously has a high opinion based on the accused’s assistance to her family. However, I did not find her an overly convincing witness in the sense that she obviously felt a sense of strong allegiance to the accused because of his assistance to her. She admitted a previous conviction for manufacturing methylamphetamines.
I was also unimpressed with the evidence of Mr Martelli that the victim was a well-known king hitter. His evidence that, because he would not lend Mr Henderson his Clipsal pass on a day that Mr Henderson wanted it, Mr Henderson king hit him I found unconvincing and unlikely. Clearly there was a scuffle and a fight that arose on that occasion, but I was not convinced by Mr Martelli’s evidence that it happened in the way that he said.
I do take into account however that he did also give evidence of the accused’s character and I take that into account, although I give it limited weight given my qualified acceptance of Mr Martelli’s evidence in general.
I cannot draw any substantial distinction between the accused and the victim in terms of the way they gave their evidence. They both gave their evidence in a relatively straightforward way but without either being any more convincing than the other.
In the final analysis I must consider what is more likely to have occurred in that toilet, given the history of the matter, given the antagonism that did occur, given the way that the matter was left at the end of the final phone call and given the ferocity of the attack that plainly did occur. Ultimately my view is that the ferocity of that attack is only explained by Mr Henderson having turned and struck the accused at the outset.
I do find however, based on the evidence of Ms Smith, that the accused did enter the toilet with the intention of physically confronting and assaulting Mr Henderson. If the accused really wanted to discuss in a calm way what was going to happen about repairs to his ute there was no reason for him to wait for Mr Henderson to go into the toilet to do so. If he had not had an opportunity to do so before, he could have easily waited for him to come out. I find him flexing his arms and following Mr Henderson into the toilet as significant.
Conclusion
I find that, based on the evidence of Ms Smith and the video, the accused was intending to physically confront Mr Henderson in the toilet, was limbering up to do so and was going to apply some force to him.
I find that that was certainly also the impression that the accused would have given to Mr Henderson by striding into the toilet and saying ‘Oi’ or ‘Ai’ or whatever he said when approaching Mr Henderson from behind as he stood at the urinal.
I find that Mr Henderson correctly perceived that Mr Henson was going to physically confront him and for that reason likely swung the punch that he did, and accordingly that he did strike Mr Henson at the outset.
RULING COMPLETED 3.31 P.M.