R v Hronopoulos - [2016] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HRONOPOULOS
Criminal Trial by Judge Alone
[2016] SADC 134
Reasons for the Verdicts of His Honour Judge Cuthbertson
11 November 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Criminal Trial by Judge Alone. Accused charged with Assault and Aggravated Threaten to Cause Harm.
Prosecution case that accused attended complainant's house and attacked complainant by scratching and hitting.
Alleged that four days later, accused attended work site of complainant and made threats to shoot complainant.
Verdicts:
Not guilty to Assault due to reasonable possibility of genuinely held belief, occasioned by accused's mental condition, as to need for and reasonableness of actions for self-defence.
Guilty to Aggravated Threaten to Cause Harm.
Criminal Law Consolidation Act 1935 SA s 15, referred to.
Dillon v Plenty (1991) 171 CLR 635, considered.

R v HRONOPOULOS
[2016] SADC 134
Charges

The accused stands charged with Assault on 2 August 2013 and Aggravated Threaten to Cause Harm on 6 August 2013.
It is alleged that at the complainant’s home at Mount Bryan, on 2 August 2013, the accused walked up the complainant’s driveway and assaulted him by scratching or gouging his face.[1]
[1] See T35.
It is alleged that, four days later, the complainant was at a stockpile of gravel on the side of the Barrier Highway near Hallett when the accused approached him and said “I am going to fucking shoot you” and “I’m going to get a gun”.[2]
[2] See T50.
Elements of Assault
In order to establish the charge of Assault the prosecution must prove the following beyond reasonable doubt:
1.   The accused performed a voluntary and intentional act.
2.   The act constituted an application of force to the victim.
3.   The act was unlawful. (The act would not be unlawful if there was a reasonable possibility it was committed in self-defence.)
It is a defence to a charge of Assault if there is a reasonable possibility that,
a. The accused genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose, and
b. The conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist. In that event unlawfulness would not have been proved beyond reasonable doubt.
A person who resists another who is purporting to exercise a power of arrest or some other power of law enforcement or who resists another who is acting in response to an unlawful act against person or property will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
If such a defence is raised the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Aggravated Threaten to Cause Harm
In order to establish the charge of Aggravated Threaten to Cause Harm it is necessary for the prosecution to prove the following beyond reasonable doubt.
1.   The accused made a threat to the complainant.
2.   The threat was a voluntary and intentional act on the part of the accused.
3.   The threat was to cause harm to another.
4.   The threat was made without lawful excuse.
5.   The threat was intended to arouse a fear that the threat was likely to be carried out.
6.   The threat was to use an offensive weapon.
The accused denies having made any such threat.
Relevant to proof of the requisite mental element for both offences is the fact that the accused has been diagnosed with Bipolar Disorder which was untreated at the time.
Dr Begg gave evidence as to how such a mental illness might have affected the accused’s thought processes and that evidence remained unchallenged.
Onus of proof
There is a presumption of innocence and the accused is regarded as innocent unless or until his guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charge lies wholly upon the prosecution; the accused does not have to prove anything.
Separate counts
The accused is charged with two separate accounts occurring on separate days. Each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean there must be a verdict of guilty or not guilty in relation to the other count. In particular, I must not reason that because the accused has committed one offence, he must, for that reason, be guilty of the other offence.
The evidence in relation to count 1 of the Assault is relevant on the question of whether the accused might have had a hostile attitude towards the complainant at the time the incident the subject of count 2 occurred.
That is the only way in which evidence of one count is admissible in relation to the other.
Accused gave evidence
The accused gave evidence. His evidence is to be treated in exactly the same way as the evidence of any other witness.
Uncharged acts
Evidence was led by the prosecution concerning the behaviour of the accused on 6 August when approached by police some hours after the incident, the subject of count 2.
Having allowed the evidence to be led as possible evidence of the mental state of the accused at the time of count 2, I have now heard the evidence and I am of the view that it does not cast any admissible light in respect of either count 1 or count 2.
Accordingly, I will dismiss from my mind that evidence.
First count – Assault
The Department of Planning, Transport and Infrastructure (The Department) had an informal agreement with the accused allowing it to use his premises for its headquarters in performing roadworks on the Barrier Highway in the vicinity of Hallett and Mount Bryan. The Department had an office there and various vehicles and trucks were parked there at various stages of the day.
There can be no doubt that the accused was unhappy with the way the Department had been using his property. He had been promised that when the work was finished he could have some of the gravel that was stockpiled for the job.
He had seen a person (the complainant) removing truckloads of gravel from the site. The complainant had been given permission to do so in order to repair his driveway to his house at Mount Bryan so that trucks would not get bogged there during the wet weather.
The accused’s state was that he was suffering from Bipolar Disorder.[3] He was presenting with elements of paranoia.[4]
[3] See T133
[4] See T133.
Dr Begg, a psychiatrist, gave evidence about his condition.
He said,
… [this condition] it has affected his personality such that he has become very paranoid, distrustful and obsessed about matters that have occurred in his life over approximately the last 10 years, and I believe that as a result of that paranoid thinking, this has distorted his ability to appreciate both his own anger feelings and the behaviour of the victims, or the victim in this matter, and that has affected his understanding of what has occurred.
… I think he is genuine in his belief about what occurred from his perspective, that he sees himself as the victim of aggression perpetrated by the actual victim in this matter and that arises because he has a weakness in his mind in terms of the ability to understand his own aggression and deal with his own aggression. A way of keeping that hidden from his consciousness is to project it onto other people so that other people are seen by him to be the aggressor, and in seeing the victim in this case as the aggressor, in his mind it will legitimise aggressive response.
… So I think that mental perspective enables what happens is that in relating with the victim he misinterprets what occurs and if the victim was mildly angry, if I can put it that way, Mr Hronopoulos will latch onto that as evidence that “yes, this man is very aggressive and is out to harm me” so he magnifies what is really a minor level of perhaps a normal response to the victim of being confronted by somebody.[5]
[5] See T134.
The accused walked aggressively from Mount Bryan township a short distance to the home of the complainant.[6] The complainant was backing a load of gravel into his premises to dump on the driveway.[7]
[6] See T34 & T188.
[7] See T33.
Until it was revoked, the accused had an implied authority to enter the premises of the complainant[8] for a legitimate purpose. He was angry because he thought that the complainant was taking gravel that had been promised to him. He wanted to get the registration number of the truck being used to transport the gravel.[9]
[8] See Dillon v Plenty (1991) 171 CLR 635.
[9] See T190 & T191.
This was an odd thing to do as it was an unnecessary thing to do in order to make a complaint to the Department or the police. The truck would have been readily identifiable in a small community like Mount Bryan or Hallett. Yet the prosecution witnesses confirm that the accused made mention of it when he arrived at the premises of the complainant.[10] The fact that it was a matter of concern to the accused helps confirm the diagnosis of Dr Begg to the extent that it was unusual or odd behaviour.
[10] See T190 & T191.
The complainant’s evidence, which I accept, was that he greeted the accused in a friendly manner but that the accused was aggressive, walked up to him, chest butted him and pointed his finger.[11]
[11] See T34 & T35.
He said,
Basically just he was fairly going off about the dirt, that I am a thief and that he is not scared of me. I am not some single mother, I think referring to Amy up the road that I can push around. He seems to have some idea that I bully her or something. I have nothing to do with her. Then like, very aggressive. Then he started to try to attack me.[12]
[12] See T35.
The complainant continued,
Well, I said to him – three times I have said to him ‘You will have to go. I don’t have that sort of violence here. I will have to get the police if you don’t go’. He wouldn’t go. I gently put my right hand behind his back, pointed to the gate and was trying to usher him out as I could see my daughter approaching … He then, like, tackled me. I took some gouging to the eye. He had his thumb lined up there as well (indicates). We then, like, embraced, and I had, like, a scuffle and I had to say ‘I am taking you to the ground now, mate’.[13]
[13] See T36.
The prosecutor opened that the charge of Assault related to assault by punching or gouging with the hands.[14]
[14] See T18.
In broad terms, I accept the evidence of the complainant beyond reasonable doubt. It is corroborated in many respects by the evidence of the complainant’s daughter and partner. I have considered whether their evidence should be discounted due to bias through their relationship with the complainant. I accept their evidence as being truthfully given.
When considering count 2 I have made the finding that I disbelieve the evidence of the accused. The complainant’s version is corroborated in certain respects by two other witnesses and a video recording.[15] My findings on credibility in relation to count 2 have reflected against the accused and have assisted me in relation to the findings of credit I have made in relation to count 1.
[15] See Exhibit P5.
The complainant’s daughter, Charmaine Bowden, gave a version of events that is similar to that given by the complainant. Her evidence, however, at least by implication, indicates that the injury to the face of the complainant was inflicted before the complainant sought to remove the accused from the property.[16]
[16] See T173-174.
The partner of the complainant, Ms Coutinho, also gave evidence broadly supporting the version of the complainant.[17]
[17] See T190 & T191.
It is not entirely clear when the gouging and scratching by the accused occurred from her evidence, so it is difficult to say whether that injury occurred before the complainant reacted to the accused in a physical manner or whether it only occurred after the accused had assaulted the complainant.
Of course the complainant had a perfect right to tell the accused to leave the property, whereupon the accused would have become a trespasser.
The alleged assault occurred in the course of the accused and the complainant engaging in grappling. The incident is accordingly not a clear cut one.
I am satisfied beyond reasonable doubt that the accused performed a voluntary and intentional act, which constituted an application of force to the complainant. However, there is a real question arising from the accused’s mental illness as to whether the accused’s act was proved beyond reasonable doubt to be unlawful according to s 15 of the Criminal Law Consolidation Act.
I accept the unchallenged evidence of Dr Begg about the effect of the mental condition of the accused on his ability to accurately perceive exactly what the complainant was doing and what he himself was doing.
The issue having being raised, the accused is not to be convicted if it is reasonably possible that he genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose and that the conduct was, in the circumstances, as the accused generally believed them to be, reasonably proportionate to the threat.
The accused had gone to the complainant’s premises in an angry state of mind in the belief and attitude that he had been hard done by and wrongly treated by the taking of the gravel by the complainant, which had been promised to him as the price of permitting the Department to use his property. His thinking was obviously distorted, because he claimed in evidence that he needed to get the vehicle registration number. This was not just a made up claim. It is confirmed by evidence given in the prosecution case.
He may have thought the response of the complainant was unduly harsh in telling him to leave the premises when he was the person wronged. Clearly he did not think that he could be removed from the premises in those circumstances.[18]
[18] See Record of Interview of the accused, Exhibit D8.
It is at least a reasonable possibility that the accused genuinely believed his conduct towards the complainant was necessary and reasonable for a defensive purpose. If the accused had that belief then his conduct, which was to scratch and gouge, was reasonably proportionate to the threat that he genuinely believed to exist, namely to be assaulted and removed from the premises by a bigger, younger and fitter man without being able to get the registration number.
Section 15(4) of the Criminal Law Consolidation Act reads as follows:
(4)However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
It follows from this provision that if the complainant is acting in response to an unlawful act against the person e.g. assault, or against his property, e.g. trespass then the accused will not be taken to be acting for a defensive purpose unless it is a reasonable possibility that he genuinely believes, on reasonable grounds, (my underlining) that the other person is acting unlawfully.
This provision imports an element of objectivity into the test which precludes the reliance by the accused on his mental illness as it is clear that the accused had no reasonable grounds for any belief that the complainant was acting unlawfully. Any such belief was in consequence of his mental condition.
Accordingly, if the act of scratching and gouging by the accused occurred after the complainant had conveyed a withdrawal of the implied consent for the accused to be on the property then the accused would have no successful defence of self-defence.
On the other hand, if the gouging occurred prior to the withdrawal of the implied consent to be on the property then the defence of self-defence would have entirely subjective elements which would enable the accused to succeed with the defence.
As it is a reasonable possibility that the scratching and gouging occurred early on in the encounter with the accused it remains a reasonable possibility that the accused was acting within the scope of s 15(1) of the Criminal Law Consolidation Act and not subject to the “reasonable ground’s” provision of s 15(4).
Accordingly, although I accept the evidence of the complainant beyond reasonable doubt as to the incident, I think it is reasonably possible that the accused was acting within the self-defence provisions of the Criminal Law Consolidation Act because of having a genuine belief.
Accordingly I return a verdict of not guilty.
Aggravated Threatening to Cause Harm
I do not accept the accused’s version in relation to count 1. There are two witnesses to count 2 who, in significant respects, support the evidence of the complainant. The version of events of the three witnesses for the prosecution are, in broad terms, corroborated by the video[19] I accept the evidence of three witnesses beyond reasonable doubt. I am satisfied beyond reasonable doubt that the accused, without any legitimate reason, but due to his sense of grievance over the conduct of the departmental employees on his property and the perceived conduct of the complainant in relation to count 1, entered on the area where the stockpile existed. He did so with the intention of remonstrating with the complainant.
[19] See Exhibit P5.
In particular I accept the evidence that the accused approached while yelling and ranting. He was agitated.[20] He started poking his finger and chest butted the complainant. He was told that it was a departmental area and that he needed to leave.
[20] See T48-49.
He started poking and chest butting the witness Wegert.
He walked back to the ute and the complainant tried to make a phone call to police from an area with a better phone signal.
The accused walked up to the complainant, called him a “fucking liar, a thief and fucking paedophile” and said he was going to shoot him. He was screaming and yelling.[21]
[21] See T50.
Unlike the incident on 2 August (count 1) there is no room for misunderstanding or confusion by the accused about the threat to get the gun.
The fact that Wegert uses different words concerning what was said about the gun, does not, in my view, detract from the force of his evidence as corroborative of the fact that the accused uttered a threat and that it involved a firearm. In the open, especially if a wind was blowing, the exact wording would have been difficult to hear.
The fact that Mr Lorensini did not hear the threat does not cause me any concern. He was sitting in a vehicle. The complainant and the accused were outside the vehicle and moving around.
I am satisfied that the accused used the words deposed to by the complainant.
In my view it has been established beyond reasonable doubt the following,
1.   The accused made a threat to the accused.
2.   The threat was a voluntary and intentional act on the part of the accused.
3.   The threat was to cause harm to the complainant by use of a firearm.
4.   The threat was without lawful excuse. (No evidence of any lawful excuse has been presented to the court.)
5.   The threat was intended to arouse a fear that it was likely to be carried out. There was no weapon in sight. The fact that the accused saw fit to mention it was, in my view, to introduce an element of menace so as to create fear in the complainant. It was therefore intended to arouse fear.
6.   Finally the threat was to use a firearm, which is an offensive weapon.

I find that the prosecution has proved count 2 beyond reasonable doubt, and accordingly the accused is guilty.