R v McCluskey
[2021] SADC 91
•3 August 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCCLUSKEY
Criminal Trial by Judge Alone
[2021] SADC 91
Reasons for the Verdict of her Honour Judge Chapman
3 August 2021
CRIMINAL LAW
The accused is charged with manslaughter.
It is alleged that he committed the offence on 29 June 2019 at the Slug 'n' Lettuce Hotel at Parafield Gardens. It is alleged he punched the deceased when they were both outside the hotel. The deceased suffered a tear to the left vertebral artery resulting in a traumatic subarachnoid haemorrhage and died later that day.
Finding: The prosecution proved beyond reasonable doubt that the accused's punch caused the death of the deceased. The evidence did not establish that the punch was unlawful. The prosecution failed to exclude lawful self defence as a reasonable possibility.
Verdict: Not guilty
Evidence Act 1929 (SA) 34P(2)(a); Criminal Law Consolidation Act 1935 (SA), referred to.
Wilson v The Queen (1992) 174 CLR 313; Burns v The Queen (2012) 246 CLR 34; O'Leary v The King (1946) 73 CLR 566; Talbot v The Queen [2019] SASCFC 112; R v Fleming (2017) 129 SASR 27; R v Maher (2017) 129 SASR 27, considered.
R v MCCLUSKEY
[2021] SADC 91
CRIMINAL
The accused is charged with manslaughter. It is alleged that on 29 June 2019 at Parafield Gardens he unlawfully killed Julian Charles Irish (the deceased).
The accused elected for trial by judge alone.
The prosecution case
The prosecution case is that on the evening of 28 June 2019, the accused was at the Slug ‘n’ Lettuce Hotel in Parafield Gardens (the hotel) with his friend Benjamin Purvis. The deceased was also at the hotel that evening. There was no interaction between the accused, Mr Purvis and the deceased during the evening.
At approximately 12:35am on 29 June 2019, the accused, Mr Purvis and the deceased were outside the front of the hotel. The deceased approached the accused and Mr Purvis. There was conversation. The deceased stepped forward and chested the accused, then grabbed his shirt. Mr Purvis pushed the deceased causing the deceased to stumble back a step or two. He recovered his position and stepped forward toward Mr Purvis and the accused. The accused punched the deceased on the left side of his head near where the base of the head, the jaw and the neck meet.[1] The deceased fell to the ground. Bystanders intervened. The accused and Mr Purvis left the scene. The deceased was taken by ambulance to hospital. He was confirmed to be brain dead at 12:44pm on 29 June 2019.
[1] T11-12.
The prosecution case was largely based upon CCTV footage from the hotel.[2]
[2] Exhibit P2.
The prosecution tendered witness statements from people who had contact with the deceased during the evening at the hotel. They were Ms Veronica Nurse (patron), Mr Stephen Nurse (patron), Ms Fiona Morrison (hotel employee) and Mr Mark Holmes (patron). The contact between the deceased and his fiancé, Ms Leanne Lopatta, was agreed.
The prosecution called witnesses who interacted with the accused during the evening at the hotel.
One group of witnesses comprised Ms Jessica Hartwig, Ms Dayle White, Ms Toni Hartwig and Ms Crystal Colyer-Long. They were at the hotel together that evening. Ms J Hartwig and Ms White had contact with the accused and Mr Purvis in the smoking room at 9:30pm, near the dance floor at 9:49pm, in the smoking room at 9:57pm and finally, near the dance floor at 10:46pm.
The next relevant witness was Mr Rafal Musial. At about 11:09pm, he was sitting at a booth near the dance floor. Ms J Hartwig and Ms White spoke to him about the accused harassing them. He then spoke to the accused about that.
Another group comprised Mr Tyson Holmes, Mr Peter Stogiannos and Mr Braden Jones. They were together at the hotel that evening. They had contact with the accused and Mr Purvis in the smoking room at 12:07am.
At 12:30am, the accused and Mr Purvis were on the way out of the hotel via the front bar to the front entrance. The accused and Mr Musial had contact in the front bar area.
By 12:32am, the deceased had left the hotel via a side entrance and walked outside to the front of the hotel. By 12:33am, the accused and Mr Purvis were outside the front of the hotel. Mr Rafal Musial was also present for a while. He went back inside the hotel just prior to the deceased approaching the accused and Mr Purvis.
By 12:35:50am, the deceased had approached the accused and Mr Purvis and they were standing together in the car park.
At 12:36:30am, the alleged offence occurred.
The witnesses present outside the hotel at the time of the alleged offence were Mr Sukhwinder Singh (security), Mr Cory Volar (security), Mr Badai Baroi (taxi driver), Mr Newton Saha (taxi driver) and Mr Matthew Bivone (patron).
At 12:37:38am, the accused and Mr Purvis left the scene.
The prosecution contended that the evidence of the accused’s interactions during the evening with Ms J Hartwig, Ms White, Mr Musial, Mr Holmes and Mr Stogiannos were relevant and admissible to establish the accused’s state of mind at the time of the alleged offence. The accused was aggressive, hostile and had expressed a willingness to engage in physical combat. The prosecution submitted it can be inferred that he had that state of mind at the time of the alleged offence, which rebuts the possibility that he was acting in self-defence.
The defence case
The accused elected not to give evidence. He called two character witnesses, Mr Grant Hemmerling and Mr Damian McGee.
The defence case is that the prosecution has not proved beyond reasonable doubt that the accused’s punch (i) caused the death of the accused and/or (ii) was unlawful, that is, the prosecution has not excluded the reasonable possibility that the accused acted in lawful self-defence. The deceased assaulted the accused before the accused punched the deceased.
The defence submitted that the evidence of the interactions between the accused and others that evening is only admissible to establish the narrative of events leading up to the alleged offence. The interactions were not part of a connected series of events constituting one transaction, but were separate episodes with different actors. They were not admissible to prove that the accused’s state of mind was aggressive or that he was willing for a fight at the time of the alleged offence.
Elements of the offence
Manslaughter by an unlawful and dangerous act consists of four elements:
1. The accused’s act caused the death of the deceased.
The act relied upon by the prosecution is the accused’s single punch to the left side of the deceased’s face/neck/jaw. The accused’s act must be a substantial or significant cause of the death.
2. The act was voluntary and deliberate.
3. The act was unlawful.
The prosecution must prove that the accused’s act was not in lawful self‑defence.
4. The act was dangerous.
An act is dangerous if it exposes a person to an appreciable risk of serious injury. It is assessed objectively. The prosecution must prove that a reasonable person in the position of the accused would have realised that he or she was exposing the other person to an appreciable risk of serious injury. [3]
[3] Wilson v The Queen (1992) 174 CLR 313; Burns v The Queen (2012) 246 CLR 34.
Proof
The prosecution has the burden of proving this offence. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The accused elected to remain silent at trial. That is his legal right. I do not draw any inference adverse to the accused because of his exercise of that legal right. He is not required to prove anything.
The accused chose to call two witnesses to give evidence about his prior good character. That evidence may be used when considering whether the accused committed the offence in the sense that he is less likely to have committed it because it is not in his nature. Even if he is a person of prior good character, that does not mean he is not guilty of this offence. A person of prior good character can commit an offence for the first time.
The deceased’s evening at the hotel
The prosecution evidence about the deceased’s evening at the hotel is based on the CCTV footage, the stills from that footage, witness statements (Ms Veronica Nurse, Mr Stephen Nurse, Mr Mark Holmes and Ms Fiona Morrison) and agreed facts. The four witness statements were tendered on the basis they comprised the evidence that would have been given had the witness given evidence in court.
The evidence about the deceased’s evening at the hotel is not in dispute.
The deceased arrived at the hotel at 5:13pm.[4] He spent approximately one and a half hours drinking at the front bar, talking with other patrons.
[4] Exhibit P3, still no. 1.
His partner, Ms Leanne Lopatta, arrived sometime after 6:00pm. She saw the deceased drinking beer whilst sitting at the main bar with a group of regular patrons. She did not consider he appeared drunk; he was in a good mood.[5] They ordered dinner.[6]
[5] Statement of agreed facts, exhibit P10, paragraph 23.
[6] Statement of agreed facts, exhibit P10, paragraph 24.
At 6:48pm, the deceased left the hotel.[7] At 7:14pm, he arrived back at the hotel wearing different clothes.[8] He ate dinner with his partner, Ms Lopatta.[9] He drank at the front bar with various patrons, including Mr Nurse and Mr Holmes.
[7] Exhibit P3, still no. 4.
[8] Exhibit P3, still no. 5.
[9] Statement of agreed facts, exhibit P10, paragraph 24.
Between 8:00pm and 9:00pm, Ms Lopatta went to the gaming lounge, leaving the deceased at the front bar.[10]
[10] Statement of agreed facts, exhibit P10, paragraph 25.
In his statement, Mr Mark Holmes said that he had known the deceased for about five years through being regulars at the hotel. Mr Holmes was at the hotel that afternoon from about 3:00pm and stayed during the evening. He drank about a dozen beers. He chatted to the deceased, who seemed fine. The deceased was with a couple of locals at the bar and his partner was in the gaming room.
When Mr Holmes left, the deceased was sitting at a booth by himself and ‘appeared to be ticking over well’.
The CCTV footage shows that the deceased left the front bar at 10:49pm and walked to the gaming lounge.[11] He stayed there for less than three minutes. His partner was at a poker machine. At 10:52pm,[12] he left the gaming lounge, returned to the front bar and drank with Mr Nurse.[13]
[11] Exhibit P3, stills no. 14, 28, 29.
[12] Exhibit P3, still no. 29.
[13] Exhibit P3, still no. 31.
Mr Stephen Nurse gave evidence that he had known the deceased for about six or seven years. They got to know each other because they were locals at the hotel and would drink there regularly. If the deceased was there, they would always sit and have a chat and drink. On this evening, Mr Nurse arrived at about 5:00pm with his wife. He had about ten imperial pints that evening.
He said the deceased appeared to be good that night and was his normal self. The deceased sat down and had dinner with a few other friends. After that, they spent a few hours drinking together and chatting in the main bar area of the hotel. Their partners were in the gaming area. The deceased was always laid back and generally got along with everyone. He kept to himself and did not seem to get involved with anyone else’s business.
Mr Nurse believed they had both been cut off from the bar because of their level of intoxication, but was not certain about that. At 11:11:29pm, Mr Nurse can be seen on the CCTV footage at the front bar with the deceased. On two occasions, he tried to put his cap on, but missed his head, which tends to confirm he was very intoxicated. He shook the deceased’s hand and walked away from the front bar. He was unable to walk in a straight line. He was out of shot by 11:13:40pm.
The deceased remained standing alone at the front bar. At 11:18:22pm, he appeared to finish his drink. He moved away from the front bar and walked straight into a high stool that was next to him. He caught it before it fell on the ground, then walked off carrying the stool. He does not appear to be as affected by alcohol as Mr Nurse.
At 11:15pm, Mr Nurse entered the gaming lounge and sat next to a woman at a poker machine, who I assume was Mrs Nurse.
At 11:22pm, the deceased entered the gaming lounge.[14]
[14] Exhibit P3, still no. 34.
At about 11:23:44pm, Mr Nurse left the gaming room by himself. On the CCTV footage, he appears significantly intoxicated. He was very unsteady on his feet. According to Mr Nurse, by that stage the deceased was ‘pretty intoxicated’.
Ms Veronica Nurse knew the deceased because they were both regulars at the hotel. She saw the deceased at the front bar that evening, then later in the gaming lounge. He was dressed in different clothes so she assumed he had been home to change out of his work clothes. The deceased was very happy and casual when he was in the gaming lounge. He gave her a high five. When her husband joined her in the gaming lounge, he was so drunk that the bar staff had refused to provide him with any more drinks. She waved goodbye to the deceased and his partner as they left. The deceased was quite drunk. The CCTV footage shows that Mrs Nurse left the gaming lounge at 11:25:26pm.
When the deceased joined Ms Lopatta in the gaming room, they chatted together, and joked. Ms Lopatta observed he seemed fine. He sat between the poker machines and was nodding off. He was in good spirits at the time and was mucking around and being playful with her. She formed the view the deceased was ‘ticking along’, but he did not appear drunk. She saw him drink water and eat lollies while he waited for her to finish playing the pokies. After about 10 to 15 minutes, he left the gaming lounge.[15]
[15] Statement of agreed facts, exhibit P10, paragraphs 26 – 28.
Ms Fiona Morrison was a gaming employee at the hotel who started her shift in the gaming room at about 5:00pm. At that time, she saw the deceased, who she has known as a regular at the hotel for six to eight years, seated in the bar area. She waved and went to start her shift. She described him as a generally happy, positive and down to earth person. He would drink most times when he went to the hotel, but was always in control of his drinking; he would never get too intoxicated. He knew his limit and often would go to her in the gaming lounge to get a coffee if he was at that limit. She did not have any lengthy conversations with the deceased that evening.
At about 12:30am, the deceased was in the gaming lounge with his partner. He came up to the bar and asked her for a hot chocolate for his partner and a coffee for himself. She told him they were busy and she would organise the drinks. He appeared to be himself and nothing out of the ordinary. He did not appear to be intoxicated or as though there was anything wrong. She continued working and he walked away.
According to the CCTV footage, the deceased left the gaming lounge at 12:30am. He left the hotel from a side exit near the gaming lounge and walked around the side of the hotel to the front main entrance. At 12:31:20am, he appeared in shot at the front of the hotel. He does not appear to be unsteady on his feet.
The accused’s evening at the hotel
The accused and Mr Purvis arrived at the hotel at 8:44pm.[16]
[16] Exhibit P3, still no.8.
The accused can be seen on the CCTV footage to be the slimmer of the two. He was wearing a jacket. The accused was 19 years, 4 months and 30 days old. His weight was 60kg and his height, 174cm.[17]
[17] Statement of agreed facts, exhibit D17, paragraphs 10 – 12.
Mr Purvis can be seen wearing a T‑shirt. His weight was 90kg and his height, 180cm.[18]
[18] Statement of agreed facts, exhibit D17, paragraph 14.
Interactions with others inside the hotel
During the evening, there were interactions between the accused/Purvis and other patrons inside the hotel.
The prosecution submitted that the evidence reveals that during the hours and minutes leading up to the charged incident, the accused was acting aggressively and was willing to engage in combat. That was said to be admissible to prove his state of mind at the time of the charged incident and, in particular, to prove that his act of punching the deceased was unlawful. It was admissible to exclude lawful self‑defence as a reasonable possibility.
The prosecution relied upon the principle in O’Leary v The King[19] where evidence of the accused’s prior acts of violence was admissible to establish the state of mind of the accused at the time of the alleged murder because those acts were a connected series of events forming a single transaction. The evidence disclosed that prior to the offence, the accused, whilst under the influence of alcohol, engaged in repeated acts of violence. Without that evidence,
…the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner’s generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide.[20]
[19] (1946) 73 CRL 566.
[20] (1946) 73 CRL 566, 577-8 (Dixon J).
The prosecution referred to the application of that principle in Talbot v The Queen.[21] The fact in issue was whether the appellant had the specific intent for murder at the time he stomped on the deceased’s head. The pre and post conduct evidence included a threat to kill a dog, verbal abuse of a woman about having an affair with another man and anger, aggression and threats to kill in different circumstances towards different persons unrelated to the deceased. The evidence was admissible as acts comprising a single transaction where the whole transaction could inform an understanding of a component of that transaction, namely, the attack on the deceased.[22] The evidence was relevant to the degree to which the appellant was affected by intoxication, the appellant’s state of mind and whether the prosecution had excluded excessive self-defence and provocation.[23] The evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). It was not led as evidence of some general propensity on the part of the accused to be angry and violent.
[21] [2019] SASCFC 112.
[22] [2019] SASCFC 112, [97] (Stanley J).
[23] [2019] SASCFC 112, [90] (Stanley J).
The principle underlying admission of such evidence is not controversial. As stated by Doyle J and then approved by the Court of Criminal Appeal in R v Fleming; R v Maher,[24] the admission of such evidence is one of fact and degree to be determined by reference to the particular evidence and matters in issue in a given case; ‘it will not ordinarily be sufficient to bring evidence within the O’Leary principle that there is merely a temporal or physical proximity between the subject conduct and the discreditable conduct’.[25] Relevant factors in determining that it forms part of a connected series of events constituting a single transaction may include the number of discreditable incidents, the commonality of the players in the incidents, the proximity in time and place and whether the evidence of the subject conduct would be unintelligible, or at least artificial, without the evidence of the discreditable conduct.[26]
[24] (2017) 129 SASR 27.
[25] (2017) 129 SASR 27, [107] (Peek J); [82] (Hinton J).
[26] (2017) 129 SASR 27, [10] (Peek J); [82] (Hinton J).
The defence submitted the evidence does not show that the accused was aggressive throughout the evening.[27] The evidence involved separate episodes with different actors. There was only one interaction between the accused and the deceased and that interaction is the subject of the charge. The prior conduct is of a markedly different nature to the conduct the subject of the charge. It is relatively benign, comprising alleged cross words, staring and rude gestures. It is punctuated by normal behaviour. There is a disconnect between the prior conduct and the subject conduct in that the accused and Mr Purvis had ordered an Uber to collect them from the hotel. In those circumstances, it cannot be reasonably said that the conduct the subject of the charge forms part of a single transaction. Further, it cannot be said that the charged incident would be ‘unintelligible’ or ‘artificial’ without regard to the proposed evidence.[28]
[27] T321.
[28] Defendant’s written submissions on application pursuant to rule 49, [13] – [14].
It is necessary to summarise the relevant evidence.
9:30pm – smoking room (Accused/Purvis/J Hartwig/White)
The first interaction between the accused/Purvis and J Hartwig/White was at 9:30pm in the smoking room at the hotel.[29] I find that it was a friendly conversation that lasted about two minutes.
[29] Exhibit P3, stills no. 11, 12, 13; Exhibit D11, tab 1.
Ms Hartwig and Ms White entered the room and made their way to sit down at a table where the accused and Mr Purvis were sitting. There was conversation between the four of them. The accused and Mr Purvis left the smoking room at 9:32:45pm.
Ms Hartwig gave evidence that she was a regular at the hotel and was there on this evening for her birthday with her sister-in-law, Ms Dayle White. She had maybe two drinks before arriving at about 9:30pm. The Scantek photo of her was taken at 9:09pm.[30] She thinks she had about eight premixed bottles of Jim Beam and Coke and one shot. She was intoxicated, but not drunk.
[30] Exhibit P5, page 15. The Scantek device is to enable staff to scan every patron who enters the hotel (T20).
She gave evidence that the first conversation with the accused and Mr Purvis was in the smoking area when they were sitting at a table with them. They had not met them before. It was just normal everyday chit chat, ending on good terms. There was nothing bad at that point. They were not slurring their words or anything at that stage.[31]
[31] T110-111.
Ms White gave evidence that she went to the hotel that evening with Ms Jessica Hartwig, Ms Crystal Colyer-Long and Ms Toni Hartwig. She had been going there every Friday for a few months. She had about three drinks of Jim Beam and Coke at her house before going to the hotel. She arrived at about 9:40pm, feeling tipsy. Her Scantek photo was taken at 9:09pm.[32] When she first arrived, she went with Ms J Hartwig to the smoking room. They sat at the end of a table where there were already about three people sitting. They did not know the other people. There were two younger males there (the accused and Mr Purvis). They talked with them both, but mainly with the guy with the jacket (the accused). They did not appear drunk at that stage.
9:48pm to 9:55pm – the dance floor (Accused/Purvis/J Hartwig/White)
[32] Exhibit P5, page 15.
I find that the second interaction between the accused and Ms Hartwig/Ms White was friendly that evening. The accused and Ms Hartwig ended up having a friendly exchange after Mr Purvis hugged Ms Hartwig on the dance floor.
At 9:36pm, the accused and Mr Purvis were by themselves in the dance floor area. At 9:40pm, Ms J Hartwig and Ms White arrived in that area and sat at a booth. Mr Purvis was dancing near that booth.
At about 9:44pm, Ms J Hartwig walked between them and out of shot, soon followed by Ms White.
At 9:46pm, Mr Purvis looked as though he wanted the accused to go to the dance floor with him. The accused remained seated at the booth and Mr Purvis joined him. Ms Hartwig and Ms White returned into shot at 9:46:14pm.
At 9:47:30pm, at Mr Purvis’ behest, the accused and Mr Purvis moved toward the dance floor. They danced near the dance floor. Mr Purvis was dancing reasonably close to Ms Hartwig and Ms White.
At 9:49pm, Ms Hartwig was on the dance floor. Mr Purvis moved on to the dance floor.
At 9:49:22pm, Ms Hartwig moved off the dance floor and looked at the accused who appeared to look away. Mr Purvis was on the dance floor. Ms Hartwig was dancing and appeared more interested in the accused than Mr Purvis. Mr Purvis moved closer to Ms Hartwig on the dance floor. She did not seem impressed and walked off. She looked over at the accused and appeared to share a joke with him. They gestured at each other in a friendly way, seeming to be at Mr Purvis’ expense who was then dancing on the dance floor quite close to Ms Hartwig.
By 9:50:25pm, Mr Purvis, Ms Hartwig and Ms White were on the dance floor. The accused moved out of shot. Ms Hartwig looked over toward that direction on a few occasions. She did not seem interested in Mr Purvis.
At 9:51:36pm, the accused arrived back in shot. He walked between the two women and got Mr Purvis to move off the dance floor and follow him. They were out of shot by 9:51:50pm.
Mr Purvis is back in shot by 9:52pm. He walked straight to the dance floor and lent down to speak into Ms Hartwig’s ear, then hugged her.
The accused came back into shot and must have seen Mr Purvis hug Ms Hartwig because he was walking directly toward them at the time. Ms Hartwig spoke into Mr Purvis’ ear then moved to speak into the accused’s ear. Ms Hartwig and the accused were close together on the dance floor, leaning to talk to each other, probably to compensate for the loud music. Mr Purvis continued dancing. As she was speaking to the accused, Ms Hartwig gestured with both of her arms out and palms up. Ms White walked over to where the accused and Ms Hartwig were standing on the dance floor. Ms Hartwig then appeared to give the accused a high five. He then walked away and, by 9:52:53pm, had moved out of shot with Mr Purvis.
The two women talked briefly on the dance floor, then danced and talked to the DJ. Ms White walked out of shot by 9:54pm, leaving Ms Hartwig alone on the dance floor.
The accused arrived back in shot at 9:54:30pm and sat at a booth. Mr Purvis had gone into the smoking room. Ms Hartwig was focussed on her phone on the dance floor. She finished with her phone, did a bow to the DJ and then walked off the dance floor. She stopped close to the accused, as though she wanted to have some contact with him. He beckoned her over. She lent down to listen to what he was saying. Ms White walked back into shot, stood near Ms Hartwig and handed her a drink. At 9:55:56pm they all moved together out of shot and went to the smoking room.
9:57pm - smoking room (Accused/Purvis/J Hartwig/White)
I find that at the end of about five minutes together in the smoking room, the accused and Ms Hartwig left on terms that were not so friendly.
At 9:56:18pm, the accused, Ms Hartwig and Ms White entered the smoking room together and sat down at a table. The accused and Mr Purvis soon joined them. Mr Purvis sat next to Ms Hartwig. The accused remained standing near Mr Purvis. After a brief while, the accused gestured for Mr Purvis to move over, then sat next to Mr Purvis. Ms Hartwig then stood up and squeezed past Mr Purvis to sit on Ms White’s lap. She was now closer to the accused. She then stood up and walked away from the table to get a stool to sit on. She sat back at the table opposite the accused. The interaction up to that point appeared to be friendly.
At 10:02:35pm, the accused stood up at the table then sat back down. The two women became focussed upon Ms Hartwig’s mobile phone. They were not paying the accused or Mr Purvis much, if any, attention.
Ms Hartwig then stood up to leave, as did Ms White. The accused gave Ms Hartwig the finger. Ms Hartwig and Ms White were unable to recall what led to that gesture. Ms Hartwig gave him the finger back as she was leaving. She was not able to recall doing that. By 10:03:13pm, the two women had left the smoking room. They went to the dance floor area.
The accused left at 10:03:25pm, then returned at 10:03:44pm. He left again at 10:05pm, then returned ten seconds later. He pulled at Mr Purvis’ T‑shirt as if to indicate he wanted them to leave. Mr Purvis was speaking to another man at the table and rebuffed the accused. At 10:06:53pm, the accused and Mr Purvis left the smoking room.
10:04pm to 11:15pm - the dance floor (Accused/Purvis/J Hartwig/White/Musial)
At 10:04pm, Ms Hartwig and Ms White were in the dance floor area interacting with Mr Musial, who was sitting at a booth near the DJ. They then moved to the dance floor, but walked off out of shot at 10:05pm. Then Mr Musial left. The two women returned two minutes later.
The accused and Mr Purvis entered the area at 10:08pm. The accused sat down at a booth. Mr Purvis walked off out of shot. The two women were on the dance floor, but then Ms Hartwig moved over to the booth where the accused was sitting and placed her drink on the table. The two women danced close to that booth. The accused did not appear to be paying them much attention.
The two women were focussed on Ms Hartwig’s phone. At 10:09:53pm, Mr Purvis walked back into shot. Ms Hartwig was dancing whilst the accused was standing with his back against the table at the booth facing the dance floor. Ms White was watching Ms Hartwig from the booth. Ms Hartwig went over and spoke to Ms White from time to time. The accused walked away by himself at 10:11:33pm. Ms Hartwig continued to dance. Mr Purvis was sitting at the booth looking down, engaged with his mobile phone. The accused returned at 10:12:22pm. He resumed his standing position leaning against the table at the booth. Ms Hartwig continued to dance.
At 10:13:11pm, Mr Purvis got up and started dancing near the dance floor facing the accused. He gestured at the accused as though he wanted the accused to join him. Ms White got up to dance with Ms Hartwig on the dance floor. At 10:15:50pm, the accused briefly joined Mr Purvis, but then turned away, as though disinterested.
At 10:16:45pm, Ms Hartwig and Ms White left the dance floor and walked out of shot. As Ms Hartwig passed the accused, she made a gesture, but the nature of it is difficult to discern. The accused did not react.
For the next almost three minutes, the accused and Mr Purvis were around the booth; the accused spent most of the time sitting. At 10:19pm, Mr Purvis left and was soon followed by the accused.
At 10:22:30pm, the accused and Mr Purvis returned. Mr Purvis sat at a different booth and was engaged with his phone. The accused sat at the end of the booth, then stood up and leaned against it. The two women were back in shot at 10:24:46pm. The accused put his leg out toward Ms Hartwig as she passed by. She gave him the finger as she walked past. The accused was standing facing the dance floor. The two women moved to the back corner of the dance floor. The accused sat back down at the booth next to Mr Purvis.
The accused and Mr Purvis then got up and were standing around the dance floor. There were plenty of people on the dance floor by that point. At 10:27:27pm, the two women left the dance floor. The accused watched them leave. He eventually sat back down at the end of the booth whilst Mr Purvis danced. He got up and danced near Mr Purvis for a while before sitting down again. At 10:33pm, Mr Purvis went over to the accused, got his wallet out and then walked out of shot. The two women were back in the dance floor area about a minute later, remained there briefly and then left. The accused then left.
At about 10:44pm, the two women had walked back to the dance floor area. The accused walked around them with two drinks and sat down at a booth. The two women moved onto the dance floor. At 10:45:31pm, Ms Colyer-Long and Ms Toni Hartwig joined Ms Hartwig and Ms White.
At 10:46pm, Mr Purvis arrived back. The accused stood up and indicated the drink for Mr Purvis. The accused and Mr Purvis drank facing in the direction of Ms Hartwig. The accused then walked up to Ms Hartwig, appeared to say something and walked past. Ms Hartwig then gave him the finger as he walked away. He could not have walked far because he was back in shot by 10:46:53pm and went over near Mr Purvis.
As the accused was walking away at 10:47:09pm, Mr Musial arrived and sat at the end of the booth closest to the dance floor.
At 10:47:51pm, the four women were on the dance floor. At 10:48:44pm, both the accused and Mr Purvis were on the dance floor. The accused moved out into the middle of the dance floor, dancing with his back to Ms Hartwig. He then moved off the dance floor, near to Mr Musial. At 10:50:28pm, they spoke.
Mrs Shaw QC made the submission that the accused put his hand out to shake Mr Musial’s hand as an apology, but that Mr Musial refused. It was submitted that was indicative of the accused not having an aggressive state of mind.[33] I do not agree that is what occurred. By this stage of the evening, the accused and Mr Musial had not met. It was later that Mr Musial spoke to the accused, warning him off Ms Hartwig and Ms White. It makes no sense for the accused to be apologising at this stage of the evening. It looks to me like the accused spilt his drink on himself whilst dancing, and that he used his right hand to try and brush it off his trousers. The brief conversation with Mr Musial appears to be a casual one in that context.
[33] T323.
The accused then moved back into the middle of the dance floor and joined Mr Purvis.
By 10:53pm, the accused walked off the dance floor and is out of shot. At 10:53:18pm, the accused walked back on to the dance floor and gave the finger to Ms White, who did the same back to him.
At 10:54:40pm, the four women left the dance floor and moved out of shot. The accused walked off in the same direction. Mr Purvis remained on the dance floor.
At 10:57:35pm, the accused walked back into the area and sat down at the end of a booth. He then joined Mr Purvis on the dance floor. Mr Purvis left at 10:58:30pm. The accused moved to sit at the end of a booth. He left at 11:00pm. About one minute later, the accused returned, followed by the four women. The accused sat briefly at the end of a booth and then left the area. Ms Toni Hartwig and Ms Colyer-Long then left, leaving Ms Hartwig and Ms White. They talked with an unknown male for a while before leaving.
By around 11:00pm, Mr Musial had moved back into the dance floor area and was sitting at a booth. At 11:07pm, Ms Hartwig was back on the dance floor and was soon joined by Ms White. The accused arrived back in the area around 11:08pm, then Mr Purvis. They were on the dance floor near the two women, who then moved away.
At about 11:09pm, Ms Hartwig turned and looked directly at Mr Musial. I think he beckoned her over because when she walked over to talk to him, she immediately bent down to hear him speak to her. He pointed to the accused and Mr Purvis. Mr Musial and Ms Hartwig then did a high five. Ms Hartwig and Ms White then moved back to the dance floor.
At 11:10:38pm, Mr Musial approached and spoke to the accused, putting his arm around his shoulder. The conversation was only brief. Mr Musial returned to near the booth. The accused and Mr Purvis spoke. The accused appeared to back away from where Ms Hartwig was dancing and used his phone. It is not clear whether he made a phone call or listened to a message.
Mr Purvis left that area at 11:15pm, then the accused followed.
Over the next 15 minutes, Mr Musial left the area and returned a few times and sat at a booth.
At 11:39:35pm, Ms Hartwig danced past the booth where Mr Musial was seated then turned around. He beckoned her over and spoke to her. She then spoke to him. They did a high five and at 11:40:30pm, she walked away.
The evidence of Hartwig/White
Ms Hartwig gave evidence that the interaction with the accused ‘started getting a little bit aggressive’ during the evening. She was unable to remember the order of events.
She said there was the rude finger put up towards them and a foot put out for us to trip. Then it was a ‘little bit full-on on the dance floor, like we weren’t really being left alone. It was just very aggressive and the words, we were being told to, like, I was got mouthed to me to ‘fuck off’, yeah.’.[34]
[34] T111.
She remembered one of the regulars called her over with his hands and asked if they were ok. She told him that ‘yeah, we’ll be fine, they’re just getting a bit aggressive’.[35] She said a couple of minutes later, that regular went over to the accused and Mr Purvis and told them to back off. She heard the accused say to Mr Purvis something like ‘he’s lucky we don’t kill him’.[36] After that, they were left alone. She also said after the regular spoke to the men, the man who was not in the jacket (Mr Purvis) apologised when they were on the dance floor. He apologised for them being full on. He said that he was sorry, they were under the influence.[37]
[35] T112.
[36] T112.
[37] T113.
She described the accused as being fairly drunk throughout the evening. She associated that with him getting pretty aggressive towards the end. His friend was ‘letting loose’ a bit more, just enjoying himself. His friend seemed pretty closed off at the beginning of the night, but seemed to be having a good time towards the end.[38]
[38] T115.
I did not consider Ms Hartwig to be a particularly reliable witness. That is not intended to be a reflection on her personally, but rather a likely consequence of the alcohol she drank that night, the fact that she had no real reason to remember the events of that evening, as well as the passage of time. I also think she may be unconsciously influenced by knowledge of this allegation against the accused.
In relation to the first meeting with the accused/Purvis in the smoking room, she agreed she was wrong in her police statement, dated 11 July 2019, when she said she thought that they were approached by the accused/Purvis in the smoking room. From the CCTV footage, she acknowledged that it was the other way around, namely, she and Ms White approached them.
Further, she had no memory of the first occasion on the dance floor at around 9:49pm. The CCTV footage did not refresh her memory about Mr Purvis hugging her, engaging with the accused at Mr Purvis’ expense or doing a high five with the accused.[39]
[39] T129 – 136, 139 – 140.
Nor did Ms Hartwig have any memory of giving the finger to the accused at any stage. Her memory was not refreshed by the footage which shows she did give him the finger on three occasions (at 10:03pm in the smoking room and at 10:24pm, then 10:46pm near the dance floor).[40]
[40] T142 – 143.
Ms Hartwig was correct about her recollection of a foot being put out; the footage shows the accused put his leg out as Ms Hartwig walked past in the dance floor area at 10:24:46pm.
I find that Ms Hartwig is mistaken about her recollection of the last interaction with the accused/Purvis on the dance floor. She gave evidence that after Mr Musial spoke to the accused, Mr Purvis apologised for them being full on. He said he was sorry, they were under the influence.[41] The CCTV footage shows no interaction between Mr Purvis and the two women after Mr Musial spoke to the accused. In my view, Ms Hartwig is in fact now remembering an earlier occasion on the dance floor at around 9:48pm. Based on the CCTV footage, I think it likely that at that time there was an apology for them being ‘full on’ and that the apology came from the accused, not Mr Purvis. It was Mr Purvis who had hugged Ms Hartwig on the dance floor, not the accused. It was then the accused who spoke to Ms Hartwig in a friendly manner such that they ended up giving each other a high five.
[41] T113.
Because of my concerns about the overall reliability of Ms Hartwig’s evidence, I am unable to accept her general description of the accused as being ‘aggressive’ that evening. It should be noted that in cross-examination, she explained what she meant by ‘aggressive’ which was the accused putting his finger up at her and putting his foot out.[42] To that extent, I accept her evidence that she perceived that behaviour as aggressive.
[42] T139.
Similarly, because of those concerns about her general reliability, I am unable to accept Ms Hartwig’s evidence that after Mr Musial spoke to the accused, the accused said to Mr Purvis something like ‘he’s lucky we don’t kill him’.[43] As referred to above, in relation to the occasion on the dance floor at around 9:48pm, Ms Hartwig wrongly attributed the conduct of Mr Purvis to the accused and vice versa. It may well be that one of them said something, though I note that Mr Musial did not hear the accused say anything in response to him.
[43] T112.
Ms White gave evidence that she saw the two men about an hour and half after meeting them in the smoking room. She described the accused by that stage as very intoxicated, ‘just acting very sloppy and quite aggressive’.[44] She said he was pulling faces at them, looking at them very rudely and his friend was trying to drag him off the dance floor. She said the other man was drunk, but not as drunk. He was just following the accused around and being a follower. She did not recall the other man being aggressive.
[44] T151.
Like Ms Hartwig, I think she was mistaken in that recollection. In cross‑examination, Ms White agreed that in her police statement her description of the two men matched the accused as being the one who was trying to drag Mr Purvis off the dance floor. She agreed that was what she said in her statement, but gave evidence that thinking back, that is not what she remembers happening, rather it was the opposite way around. In my view, she had it right the first time, namely, when she gave her statement to the police. She is now mistaken. In my view, it was the accused who was trying to drag Mr Purvis off the dance floor around 9:48pm.
Ms White gave evidence about an occasion when the accused stuck his finger up at them. She thought that was in the smoker’s area. She did not know what caused that to happen. I find that she is correct in her recollection about that (at 10:03pm), although she had no memory at all that there was a ‘second’ occasion in the smoking room, which was this occasion. Ms White did not recollect that Ms Hartwig gave the finger back; nor did she recollect seeing Ms Hartwig give the finger on another occasion (at 10:24:46pm).
I find that Ms White was correct about an occasion on the dance floor when the accused tried to trip them over. That can be seen at 10:26:46pm. She does not know what caused that to happen either.
Ms White gave evidence about the final interaction on the dance floor at around 10:46pm. She said Ms Hartwig complained to a male sitting very close to the dance floor who asked if they were ok. Ms Hartwig told him the two males were harassing them. She gave evidence that was the last interaction she had with the two males that evening and she did not see them again.
Mr Rafal Musial gave evidence he was a regular at the hotel and was present during this evening on 28 June 2019. He got there around 9:00pm, 9:30pm. His Scantek photo was taken at 8:44pm.[45] He had not consumed alcohol before arriving. He left at about 1:00am and was feeling the effects of alcohol a little bit. He estimated he had about eight drinks that night, which was a medium amount for him.
[45] Exhibit P5, page 6.
When he was sitting in one of the booths near the dance floor, he gave evidence that he was approached by the girls (Ms Hartwig and Ms White). One of the girls said they were getting harassed by the accused and they pointed him out. The accused had a jacket on, his friend did not. Mr Musial gave evidence he had not seen the two men before at the hotel. He spoke to the accused on the dance floor. He told the accused pretty much to just stay away from the girls, to leave them alone. He said it in a friendly way. He could not remember whether he swore when he told the accused to stay away from the girls. He would not have a reason to swear or say anything aggressively. He does not think the accused responded at all. Mr Musial then went back to the booth and sat with his friends again.
For the reasons discussed below,[46] I do not accept that Mr Musial conveyed the message in a wholly friendly way. Ms Hartwig heard Mr Musial use the word ‘fuck’.[47]
Midnight - the smoking room (Accused/Purvis/Holmes/Stogiannos)
[46] [149]-[150].
[47] T122.
I find that the accused/Purvis were talking about the encounter with Mr Musial about 45 minutes later in the smoking room.
The prosecution case was that at about midnight in the smoking room, the accused had an aggressive state of mind, telling others that he wanted their help for a fight.
The CCTV footage shows the accused and Mr Purvis entering the smoking room at just before midnight with three young men being Mr Holmes, Mr Stogiannos and Mr Braden Jones. They talked for a short time, then the accused and Mr Purvis left the room briefly before returning. Mr Purvis gave a cigarette to everyone in the group and there was conversation for a few minutes. The other three men then walked off in different directions, leaving the accused and Mr Purvis smoking alone. The accused and Mr Purvis then chatted with other people in the room, then left the room at 12:07am.
The prosecution called Mr Tyson Holmes and Mr Peter Stogiannos.
Mr Holmes gave evidence that he was celebrating his 18th birthday at the hotel that evening. He arrived around 9:00pm or 10:00pm and met Mr Peter Stogiannos there. His Scantek photo was taken at 9:13pm.[48] He did not drink beforehand. He had about four or five drinks that evening before leaving at about 1:00am. When he left, he was about mid-range intoxicated. In cross‑examination, he gave evidence he drank probably around 10 or 12 Jack Daniels during the evening.
[48] Exhibit P5, page 17.
He described an occasion when he met Mr Purvis and the accused in the smoking room. They came up and offered them cigarettes. They spoke about how Mr Holmes’ friend, Braden, knew one of them from school. Peter Stogiannos was there as well. He thought it was Mr Purvis who knew Braden from school. Mr Holmes did not talk with the accused.
He gave evidence there was another occasion at about midnight,[49] when the accused and Mr Purvis came back into the smoking room. He was pretty sure the accused said they had an incident with some guy at the bar and asked them if they would like to help with getting into a fight with somebody. They declined the offer. He was pretty sure it was the accused who asked for help. The accused and Mr Purvis eventually went off back inside the pub. He had no other interactions with them for the rest of the evening.
[49] Exhibit P3, stills 37 to 39.
In cross‑examination, Mr Holmes agreed that he told the police on 17 July 2019 that ‘I remember Lachlan mentioning during our chat with him and Ben that they had had an issue with someone at the bar. He didn’t describe who the person was or what the issue was and it was a random comment that we didn’t talk much about other than to say that the unknown person had given them a hard time.’[50] It was his accurate recollection at the time he gave the statement. He said that his evidence that it was something to do with getting into a fight was his interpretation of what the discussion was about.[51]
[50] T211.
[51] T212.
Mr Peter Stogiannos gave evidence that he was at the hotel that evening with his friends who included Mr Tyson Holmes and Mr Braden Jones. He might have had one or two drinks before he went there. His Scantek photo was taken at 10:51pm.[52] He was not feeling intoxicated when he arrived. He had three or four drinks during the evening, leaving at about 1:30am or 2:00am. At no point did he feel intoxicated.
[52] Exhibit P5, page 41.
He described meeting two men in the smoker’s area at about midnight.[53] His descriptions are consistent with those two men being the accused and Mr Purvis. He was pretty sure they offered cigarettes.
[53] Exhibit P3, still 38.
He gave evidence that the accused asked them if they wanted to help them with a fight. He did not remember the exact words. The accused did not say who he wanted to get into a fight with or what it was about other than it was because someone started on him earlier in the night. Mr Stogiannos said he did not want to get involved.
In cross‑examination, Mr Stogiannos said the conversation was a friendly conversation. The gist of the conversation was that someone that night had been giving them a hard time. He did not know whether it was the accused or Mr Purvis who said that. The person who gave them a hard time had a red jumper and had essentially started something towards them. The words used were to fight them, not to go and talk to them. He agreed that in his statement, dated 9 July 2019, he did not say anything to the police about the accused wanting a fight, or getting them to help them fight the person. He agreed that when he spoke to the prosecutor on 22 June this year, he said they wanted them to help them out to talk to the man. He thinks now that is correct.
Based on the evidence of Mr Holmes and Mr Stogiannos, I am unable to find that the accused said he wanted to fight someone. Mr Holmes’ prior statement to the police undermines the reliability of his evidence. He did not mention to the police that the accused was wanting a fight. Ultimately, Mr Holmes’ evidence was that the notion of a fight was his interpretation of what the accused was saying. Mr Stogiannos essentially retracted his initial evidence that the accused asked them to help with a fight. I find that the accused may have been wanting to confront Mr Musial about what had earlier transpired, but I am not prepared to find that he used the word ‘fight’ or that he positively wanted a physical fight.
Even if I am wrong about that, I find that by 12:29am (when an Uber was ordered by the accused and Mr Purvis), any willingness to engage in a physical fight had dissipated and the accused’s intention was to leave the hotel.
12:30am - the front bar (Accused/Musial)
Just prior to the charged incident, there was an interaction between Mr Musial and the accused in the front bar area.
At 12:28:20am, Mr Musial walked across the front bar area toward the dance floor area.[54] He walked up to the point where the accused was sitting with Mr Purvis, then turned and walked back toward the main front entrance. Mr Purvis was using his phone, most likely to arrange an Uber driver. It is agreed that at 12:29am, he ordered an Uber to collect him and the accused from the hotel and drive them to Parafield Gardens.[55]
[54] Ch1320190628214243; Exhibit P3, still 40.
[55] Statement of agreed facts, Exhibit D17, no. 1.
The accused and Mr Purvis soon left the dance floor area and headed past the front bar. The accused went into the smoking room. Mr Musial then walked back across the front bar and stopped to talk to a male by the door to the smoking room. At 12:30:14am, the accused walked out of the smoking room. Mr Musial turned and said something to the accused who was walking away. The accused turned and looked at Mr Musial. There was a brief exchange. The accused walked away toward the front main entrance area. Mr Musial followed the accused, but then stopped near the cigarette machine and briefly talked to a male. He was looking in the accused’s direction and then walked off in the direction of the front main entrance.
During his evidence, Mr Musial was shown the relevant footage. He agreed it shows him looking at the accused and the accused turning around as he went past. He did not recall that moment nor did he recall following the accused outside.
12:31am to 12:35am – outside the front of the hotel
There is footage of the front of the hotel from three different cameras.[56]
[56] [166].
At 12:31:25am, the deceased walked across the paved outdoor area which marks out the front entrance to the hotel.
At 12:31:29am, the deceased took his phone out of his pocket. He stood by the cannon, talking on his phone. The phone call ended around 12:31:52am and he put the phone back in his pocket. At 12:32:10am, the deceased walked toward the building and lent against the window.
At 12:33:01am, the deceased answered a phone call from his fiancé. Ms Lopatta called the deceased’s mobile phone to see where he was. He said he was out the front. He did not seem upset about anything.[57] The call was completed by 12:33:50am.
[57] Statement of agreed facts, exhibit P10, paragraph 29.
At 12:33:28am, which was during the deceased’s second phone call, the accused and Mr Purvis walked out the front entrance door. They walked over to the end of the paved area next to the car park. Mr Purvis looked at his phone. By that stage, the deceased had finished his phone call.
At 12:34:01am, Mr Musial walked out the front main entrance. He lit up a cigarette. He turned and looked in the direction of the accused and Mr Purvis, who had their backs to him. They turned in his direction. There was an exchange between the accused and Mr Musial. They were standing a reasonable distance apart. Mr Purvis put himself between them by leaning on a post. Mr Musial folded his arms and continued to look at the accused, who had turned away. The accused had his phone out and appeared to speak to Mr Purvis. The accused walked away from where Mr Musial was standing. Mr Purvis moved from the post and walked over to the accused. They each had their back to Mr Musial who remained in his position with his arms folded, smoking.
At 12:35am, Mr Matthew Bivone walked over to speak to the deceased. He moved away at 12:35:18am and stood with the group of people by the cannon.
Mr Bivone gave evidence that he was a regular at the hotel. He would often see the deceased there on Friday nights. He considered him a friend. During this particular evening, he had a quick chat with the deceased in the main bar. The deceased seemed happy and was slightly slurring his words a little bit.[58] He described the deceased as an experienced drinker who could hold his alcohol. He also spoke to the deceased outside the hotel that evening. He estimated that was about 15 minutes before the fight. He described him as a tiny bit more intoxicated by that stage.[59] He said the deceased was a tiny bit off balance, but not falling over. Mr Bivone then moved to the cannon and spoke to a group of friends. He is not sure what the deceased did then.
[58] T97.
[59] T98.
At 12:35:32am, Mr Musial finished his cigarette, turned and walked back toward the hotel. Both the accused and Mr Purvis looked in that direction and may have seen him walk back inside.
Mr Musial gave evidence that there were words said when he was outside, having a cigarette. He could not remember what the words were. He did not say anything back. He could not describe the accused’s mood or demeanour. He said he ‘really did not take any notice’; when the words were said to him, he ‘just ignored them and I just went back inside when I finished my smoke’.[60] In cross‑examination, Mr Musial said he did not believe he was staring at them, but he was looking towards the accused when the accused was speaking to him. He did not believe he was standing there with his arms folded. He did not recall Mr Purvis standing in between them. He could not remember Mr Purvis being there. He agreed that when he spoke to police on 11 July 2019, he referred to there being a second male. He denied seeing them move further away whilst he kept standing there staring.
[60] T245.
I did not find Mr Musial to be a credible witness. He was evasive and his effort to portray his conduct that evening as friendly was not believable. On the CCTV footage, his body language evinced an aggressive attitude toward the accused at 12:30am in the front bar area and then outside the main front entrance. His evidence that he did not take any notice of them outside, but just ignored them, is plainly at odds with the stance that he adopted whilst smoking his cigarette. His lack of memory was a poor attempt to downplay his aggressive attitude. I do not accept his evidence that after he told the accused to leave the girls alone, that the accused/Purvis were giving him looks, trying to ‘stare me out’.[61] He did not think it was aggressive, but ‘like trying to warn me off’.[62] He could not remember whether he was giving them looks back. I find that he can remember. I find that, in fact, he was the one trying to ‘stare’ them out and warn them off.
Assessment of the discreditable conduct evidence
[61] T244.
[62] T244.
The following is a summary of my findings regarding the discreditable conduct evidence.
At about 9:30pm, Ms Hartwig and Ms White walked over and sat at a table in the smoking room where the accused and Mr Purvis were already sitting. The interaction between the four of them was friendly.
At about 9:50pm, on the dance floor, Mr Purvis was enjoying a dance on the dance floor. He became ‘over-friendly’ when he hugged Ms Hartwig. The accused approached them and had a friendly conversation with Ms Hartwig. The accused probably apologised for the behaviour. They might have shared a joke at Mr Purvis’ expense, which ended with a high five. There was no aggressive behaviour on the part of the accused.
At just before 10:00pm in the smoking room, the accused and Mr Purvis walked over to the table where Ms Hartwig and Ms White were sitting. The interaction was friendly, but that changed after Ms Hartwig and Ms White were engaged with Ms Hartwig’s phone. As the two women stood up to leave, the accused gave Ms Hartwig the finger and she returned the gesture. I do not know what led to that exchange.
From about 10:08pm to about 11:15pm, the four were mainly in the dance floor area. There was no interaction between the four until about 10:16pm when Ms Hartwig made some sort of gesture as she walked past the accused. The accused did not react at that time. However, when the two women returned at around 10:25pm, the accused was standing against the booth and put his leg out as Ms Hartwig walked past. She gave him the finger. There was no contact after that until about 10:46pm, when the accused walked up to Ms Hartwig and appeared to say something as he walked past. She gave him the finger as he walked away.
At 11:09pm, Mr Musial beckoned for Ms Hartwig to come over and speak to him. She effectively told him they were being harassed by the two males. Mr Musial then walked over to the accused, put his arm around him and told the accused to stay away from the two women. I think it likely that Mr Musial was quite aggressive and used the word ‘fuck’. The accused immediately distanced himself from the two women.
The accused and Mr Purvis had no further contact with Ms Hartwig and Ms White.
At midnight, in the smoking room, as part of a friendly conversation with Mr Holmes and Mr Stogiannos, the accused mentioned the interaction with Mr Musial.
Just before 12:30am, the accused and Mr Purvis decided to leave the hotel and called an Uber. They were not intending to fight anyone.
At about 12:30am, Mr Musial saw the accused come out of the smoking room. He said something to the accused and stared him down. The accused turned and looked at Mr Musial, there was some brief exchange and then the accused walked away. Mr Musial was the aggressor. The accused responded verbally, but then decided to walk away.
Mr Musial’s aggressive attitude continued outside the hotel. Whilst having his cigarette, he stood with his arms folded and stared down the accused. The accused reacted verbally, but then desisted and walked away.
Having heard the evidence from Ms J Hartwig, Ms White, Ms T Hartwig, Ms Colyer-Long, Mr Holmes, Mr Stogiannos and Mr Musial, I do not consider it has been established that the accused was behaving in a relevantly aggressive manner during the evening at the hotel. The various interactions do not constitute a single transaction relevant to his state of mind at the time of the charged incident. In total, there were four instances of discreditable conduct – the accused put his finger up at Ms Hartwig on three occasions and put his leg out in their way on one occasion. I find that the accused’s behaviour was not commendable, but it falls short of proving any relevant state of mind at the time of the charged incident.
I do not consider the accused had an aggressive state of mind at the time of the charged incident or a state of mind commensurate with a willingness to engage in a fight. Such a state of mind is inconsistent with him walking away from Mr Musial in the front bar at 12:30am and then walking away from Mr Musial outside the front of the hotel.
I will only use the discreditable conduct evidence as evidence of a narrative of events to explain how the accused and the deceased came to be out the front of the hotel soon after 12:30am, to find that they had no prior direct or indirect contact and to assess the various states of intoxication at the time of the charged incident.
To the extent that the discreditable conduct which I find proved (the accused gave the finger to Ms Hartwig on three occasions and put his leg out toward Ms Hartwig/Ms White on one occasion) is admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) as part of that narrative, I do not use that evidence to reason that merely because he has done those things that he is a bad person and therefore the sort of person to have committed this offence.
The charged incident
The prosecution relied upon CCTV footage from camera 16 (near the front entrance), camera 1 (car park) and camera 6 (car park).[63] There was also footage seized from the taxis parked near the scene at the time, which comprised video and audio.[64] Parts of the CCTV footage were enhanced by Dr Matthew Sorrell who has expertise in that regard. In one file, the contrast and zoom is enhanced. In the other file, audio from a taxi is overlaid.[65] The audio has also been enhanced to make it crisper.[66] Having listened to that audio, the taxi is too far away to be able to hear the exchange between the accused/Musial or between the accused/Purvis/the deceased. The audio does capture relevant voices immediately after the charged incident.
[63] Exhibit P2. The locations of the cameras are marked on the plan of the hotel, Exhibit P1.
[64] Exhibit P2.
[65] T58 – 59.
[66] T60.
At 12:35:43am, the accused, Mr Purvis and the deceased were standing together in the car park area. I think the deceased had his hands in the front pockets of his jeans and the accused has his hands in the front pockets of his jacket. Mr Purvis had his arms folded.
The deceased turned a little to his left, looking toward the security at the front door. A car drove past. Then even more briefly, the deceased turned a little to his right, in the direction of the front door. He appeared to take his right hand out of his pocket then put it back in his pocket. It is not possible to discern the nature of that movement/gesture.
At 12:36:18am, Mr Purvis took his phone out of his pocket and was studying his phone.
At 12:36:31am, the deceased took a few steps toward the accused, causing the accused to walk backward off the curb. Mr Purvis looked up from his phone, saw what was happening and tried to grab the deceased around the area of his left arm. That did not stop the deceased pushing the accused with his right arm stretched out. Mr Purvis was behind the deceased. The deceased forcibly removed himself from Mr Purvis by twisting around such that he ended up facing Mr Purvis. The accused punched the deceased and moved away immediately. Mr Purvis had his left arm outstretched toward the deceased as the deceased was falling to the ground.
The deceased fell onto his back. Bystanders moved in.
The charged incident lasted four seconds.
The five witnesses
Mr Bovine was outside the hotel when the charged incident occurred. He gave evidence that he saw the deceased with two people near the taxi in the car park. He did not know the accused or Mr Purvis. He could not really hear what was being said. There was generally a lot of commotion outside the hotel at the time. The tone of the words was probably slightly a little bit aggressive,[67] but he could not say who was being aggressive. He described it as ‘basically a huddle sort of thing’.[68] He could not tell who did the push and shoving nor who threw the punch. He saw the deceased was the recipient of the punch. The deceased dropped to his knees and he thinks landed on his face onto the pavement, and was struggling to breath.
[67] T99.
[68] T99.
When giving his evidence, he was visibly shaken by having to recall the events of that night.
Mr Cory Volar was a security guard standing outside the hotel at the entrance at the time. He gave evidence that the deceased was one of the regulars who would be there most weekends. He did not know the accused.
He saw the deceased talking to the accused and Mr Purvis. He could not hear what was being said but, ‘It did not feel heated at all’.[69] He saw there was pushing and shoving, but ‘Honestly it kind of happened pretty quickly’.[70] He went to move forward and then ‘the hit happened pretty instantly’.[71] He described the punch as a haymaker, like a hook which was pretty loud. After the punch, the deceased ‘pretty much just hit the ground’.[72] He ran straight over to break it up. Mr Singh, another security guard, came over as well. He said the other two were not aggressive anymore in the sense that they did not go in for anymore punches or anything like that.
[69] T87.
[70] T87.
[71] T87.
[72] T88.
Mr Sukhwinder Singh gave evidence that he was working as a security guard at the hotel on this evening. He had been a security guard there for about one and half years.
He gave evidence he did not see exactly what happened. He heard ‘a clocking sound’. He then looked around to his right, saw the deceased lying unconscious on the ground and two fellows standing by him.
Just before this incident he was standing by the front door of the hotel in case he was needed as back-up for another incident going on in the car park. His attention was on that other incident. The loud noise he heard drew his attention away from that other incident. He did not see the deceased get hit. He just heard it. He knew the deceased was a regular at the hotel. He did not know the two men standing near the deceased.
Mr Singh quickly went over and grabbed who he described as the taller one with the lighter build. He asked ‘What did you do? What’s going on? Did you hit him or not?’ He said they responded ‘We didn’t, no. We didn’t hit him. We just want to go home.’.[73] He said he was still focused a little bit on the other situation. He let them go and they took off. He left another security guard to attend to the deceased.
[73] T217.
Mr Newton Saha was a taxi driver whose taxi was parked outside the hotel at the time of the incident. He and another taxi driver, Mr Badal Boroi, were standing talking by their taxis. They can be seen at 12:35:55am in the vacant space between two taxis. He gave evidence that as taxi drivers, they often see arguments and fighting, but do not want to actually concentrate on that.
He recalled two people arguing who had come out from the main entry of the pub. His descriptions were similar to the accused and the deceased. He described the deceased, based on his body language and speech, as a little bit intoxicated whilst the accused was less so. He thought one or two other people were with them, but was not sure. He felt there was another person with them who was in their early twenties and was taller than the accused with an average build. That description is consistent with Mr Purvis. He did not connect anyone else with that group.
He said it was an argument rather than a discussion, but he did not know what they were arguing about. He saw the accused punch the deceased once and the deceased falling down straightaway, unconscious immediately. There were no other punches thrown. The accused left with the other young guy. He described the security personnel as not doing anything.
Mr Saha did not see any pushing before the punch. He could not say whether the deceased pushed the accused before the punch. I have found that based on the CCTV footage, the deceased did push the accused. Mr Saha may not have seen the pushing because he and Mr Baroi were deeper into the car park at 12:36:35am,[74] there were taxis parked between them and the incident and he was talking to Mr Baroi. He gave evidence he was looking over the top of the two taxis that were parked. Further, he agreed that in his statement to the police on 26 July 2019, he said that he did not know exactly what was being said because he was concentrating on the conversation he was having with Mr Baroi and only saw them as he was looking around whilst talking to Mr Baroi. He agreed that in his statement he told the police that he did not know why the fight started and that his attention was only drawn to the fight when he saw the punch. He said that that was correct.
[74] Exhibit P3, still 55.
Mr Saha was clearly wrong in his evidence that it was eight to 12 minutes before anyone came along to help the deceased. He said the security guards did not do anything for the deceased for a long time. That is contradicted by the CCTV footage.
Mr Badal Baroi gave evidence that his taxi was parked in the taxi rank out the front of the hotel at the time of the incident. He was standing with Mr Saha in an empty car park space, talking. He noticed that there were ‘horrible words’ passing between some people. He did not know what they were talking about. He thought there were three or four persons involved.
The next thing he clearly remembers is the punch. He saw one punch. He described the man who delivered the punch as around 20 years of age, not too high and having a slim figure. That description is consistent with the accused.
His memory is faulty in regard to his description that the accused and the deceased came out from the hotel hurriedly, like running.
He did not recall any other physical interaction. He thought the deceased fell straight away to the ground.
Like Mr Saha, he did not see the deceased push the accused. That may be because of where they were standing, the position of the taxis in between them and the incident and his focus being on a discussion with Mr Baroi.
Immediately after the incident
After he punched the deceased, the accused immediately moved away from the deceased and can be seen on the CCTV footage standing away from the deceased and Mr Purvis. The accused and Mr Purvis both left at 12:37:40am.
Mr Bivone gave evidence that after the incident, it was the tall man who was coming towards him when he was checking on the deceased. Mr Bivone told him to get away and said he is struggling to breathe. He thinks the tall man said, ‘Fucking dickhead’.[75] The tall man said, ‘What are you going to do about it?’. Mr Bivone could vaguely remember telling the tall man to ‘leave him alone’ and the tall man saying, ‘you’re a fucking idiot’. When he was played audio footage from the taxi camera he agreed that he said to the tall guy ‘leave him alone’ and the tall guy said, ‘You’re a fucking idiot’.[76]
[75] T103.
[76] T105.
Mr Singh gave evidence that after the incident, he grabbed the taller of the two men because he thought he was the one who had thrown the punch. That man was intoxicated. Mr Singh refreshed his memory by reference to his statement on 12 July 2019 and agreed he described that one as aggressive and intoxicated. Before refreshing his memory, he did not recall the one he grabbed being aggressive.
He identified Mr Purvis as the male that he grabbed. He did that identification based on the Scantek photographs for that evening. He gave evidence that was pretty accurate at the time. It was accurate when he gave his statement on 12 July 2019. It remains the truth.
The defence provided an aide‑memoire of the audio from the taxi. I find it is accurate and the following was said:
Purvis Fucking Dickhead
Purvis Oh What
Bivone Leave him alone
Purvis You’re a fucking idiot
Bivone Leave him alone
Bivone Leave him alone
Accused We’re leaving him mate
Accused We’re going
Accused We’re going
Accused We’re going
Accused We’re going
Medical attention to the deceased
It is agreed that paramedics were dispatched to the hotel at about 12:41am. Five minutes later, the call was upgraded to a Priority 1 from a Priority 2 assault. A paramedic team arrived at about 12:52am. By that time, SAPOL officers were performing CPR on the deceased. A heart rhythm check showed the deceased was asystole. An Intensive Care Paramedic arrived at 12:55am. A second paramedic crew arrived at 12:56am. Return of spontaneous circulation was achieved at about 1:13am. The deceased’s heart beat independently for about six minutes before CPR was recommenced. A Medstar crew arrived at 1:15am. The deceased’s heartbeat was again obtained at 1:33am. He was transported to the Royal Adelaide Hospital at 1:42am and admitted at about 2:03am. His Glasgow Coma Scale was recorded as 3. The clinical and radiological findings were assessed not to be compatible with the deceased’s survival, nor reversible by neurosurgical intervention. He was confirmed brain dead at 12:44pm on 29 June 2019.
The deceased’s level of intoxication
A blood sample collected from the deceased at 2:16am on 29 June 2019 showed the presence of alcohol at a concentration of 0.18%.
In the expert opinion of Professor Jason White,[77] which I accept, that concentration is the best estimate of his blood alcohol concentration at the time of the incident. That is because the deceased would have had either no, or minimal, blood circulation for a significant portion of the time between the incident and the collection time. If the alcohol he had consumed that evening had been absorbed from his gut into his body by the time of the incident and the rate of his alcohol metabolism was normal for the time up until the blood sample collection, then his blood alcohol concentration could have been as high as 0.208%.[78] I think it unlikely that his metabolic rate was normal after the incident and therefore unlikely that his blood alcohol concentration was as high as 0.208% at the time of the incident.
[77] Statement of Jason White, dated 2 July 2021, Exhibit P16.
[78] Statement of Jason White, dated 12 July 2021, Exhibit P16.
Mr Volar gave some general evidence about alcohol having an adverse effect upon the deceased. He saw the deceased at the hotel most weekends, but had never ejected him or dealt with him in that sense. He had never seen him intoxicated to the point of being ejected from the hotel. The deceased was ordinarily a friendly, happy‑go‑lucky guy when he was sober. He would get drunk often. Mr Volar would distance himself from him when he was drunk because the deceased was perhaps obnoxious and belligerent. Mr Volar let the supervisor deal with him because the supervisor was closer to the deceased.[79]
[79] T91.
There is no evidence that before the deceased left the gaming lounge on this evening that he was obnoxious or belligerent. To the contrary, I find that up until that point he was having a good evening, was friendly and happy‑go‑lucky.
The accused’s level of intoxication
At the time of the charged incident, the accused was affected by alcohol and cannabis. It is difficult to determine the level of concentration in his blood of either.
At about 2:30pm on 29 June 2019, the accused participated in a forensic procedure at the Wakefield Street Emergency Department during which samples of his blood and urine were obtained. The toxicology results revealed (a) the accused’s urine contained 11-nor-9-carboxy-∆ꝰ-tetrahydrocannabinol; (b) the accused’s blood contained 5 ug ∆ꝰ-tetrahydrocannabinol (∆ꝰ-THC) per litre and 120 ug 11-nor-9-carboxy-∆ꝰ-tetrahydrocannabinol per litre; and (c) no other drugs.[80]
[80] Statement of agreed facts, Exhibit P10, [20], [21].
Professor White expressed the opinion that estimating a concentration of THC at the point of the incident is difficult, as the rate at which THC is eliminated varies with time since smoking, being faster soon after and then slower later. It is not known when the accused last smoked cannabis. If his last use was many hours prior to the incident, the estimated level at the time of the incident is about 7 ug/L. If he had used within four hours of the incident, the level would be considerably higher.
In Professor White’s opinion, the accused would have been experiencing the effects of cannabis at the time of the incident. After use, cannabis commonly produces an initial euphoria and stimulation that is relatively short lived (less than one hour). That is followed by a longer lasting sedation (commonly up to four hours after smoking). Motor skills are impaired by consumption of cannabis. The specific effects include impaired balance and concentration and slower reaction time. The effects are typically not as obvious as those of very high concentrations of alcohol (e.g. above 0.1%), but there is a significant effect on performance. Cognitive function is impaired. Ability to concentrate is diminished and memory and learning are impaired. That can result in difficulties engaging in mentally demanding activities. It does not produce the same degree of risk-taking and impulsive behaviour that is produced by alcohol and methylamphetamine. Nevertheless, the impairment in thinking and decision-making can result in people making inappropriate choices about their behaviour. This results from their lessened ability to weigh up the various consequences of different actions. Anxiety, paranoia and psychotic effects are relatively uncommon. Cannabis intoxication is not associated with violent behaviour and may be associated with a lower than usual risk of violence. [81]
[81] Affidavit of Jason White, dated 2 July 2021, [15] – [27].
I accept Professor White’s opinion that in light of there being no other drugs in the accused’s blood/urine, the accused was not under the influence of substances such as methylamphetamine, MDMA, cocaine or heroin at the time of the incident. If he had been, then the metabolite of those drugs would have been detected.[82]
[82] Affidavit of Jason White, dated 2 July 2021, [29].
I accept Professor White’s opinion that because there was no alcohol detected in the accused’s blood/urine samples, the estimate of his BAC at the time of the incident is difficult. It could have been anywhere from 0% to 0.21%.[83]
[83] Affidavit of Jason White, dated 2 July 2021, [28].
In my view, there is no doubt the accused was drinking alcohol during the evening. He is often seen with a drink on the CCTV footage. I am cautious about the reliability of the evidence of other witnesses regarding their observations of his intoxication. The reason for that caution is because most of those witnesses had been drinking as well.
Ms Hartwig gave evidence the accused was not slurring his words and was pretty coherent when she first met him in the smoking room (at around 9:30pm). He ‘seemed to have gotten fairly drunk throughout the evening’.[84] She was asked what gave her that impression – ‘I don’t know. Everything. Everything a drunk – so like the walking – and he just – I don’t know how to describe it’.[85] His mood changed from very friendly and nice to pretty aggressive. The last time Ms Hartwig had contact with the accused was around 11:15pm. Ms Hartwig gave evidence she had about six to eight drinks that night and one shot, describing herself as intoxicated, but not drunk.[86] I have found that Ms Hartwig had a poor memory of the evening generally.
[84] T114.
[85] T114.
[86] T118 – 119.
Ms White gave evidence she was tipsy when she arrived at the hotel and was ‘fairly intoxicated’ by the time she left.[87] She thought she had around eight drinks that night.[88] The accused did not appear drunk when she met him in the smoking room. She gave evidence that when she last saw him, he was very intoxicated, ‘he was just acting very sloppy and quite aggressive’. The aggression was ‘just pulling faces at us, just looking at us very rudely and his friend was trying to drag him off of the dance floor’.[89] In my view, she has mixed up the accused and Mr Purvis. It was the accused who was trying to drag Mr Purvis off the dance floor, not the other way around. She described the other male as ‘just being a follower’ who was drunk, but not as drunk.[90]
[87] T148.
[88] T154.
[89] T151.
[90] T151.
Ms Toni Hartwig had brief contact with the accused at an unknown time during the evening. She arrived around 9:00pm, 9:30pm. Her Scantek photo was taken at 10:26pm. She had about five drinks that evening and was not feeling affected by alcohol by the time she left. At one stage, she was standing at the cigarette machine and the accused and Mr Purvis approached, asking how to use the machine, which she explained. She described both of them as drunk. They were not able to stand straight, were swaying and slurring their words.[91]
[91] T164 – 167.
Ms Colyer-Long gave evidence she was drinking before she arrived at the hotel and was ‘quite intoxicated’ by the time she left. She was at the cigarette machine with Ms White. She believed the accused was ‘under the influence’, he was ‘just very hyper’, he ‘just wanted to talk, like you could see that his adrenalin was rushing’. In cross‑examination, she agreed he could have been drunk, but she was not sure, he was kind of happy. He came up and said, ‘What are youse girls doing?’. She thought he was trying to flirt.[92]
[92] T168 – 172.
Just before the charged incident, Mr Saha (taxi driver) described the deceased as ‘a little bit intoxicated’ and the accused as ‘less intoxicated than him’.[93] In relation to the deceased, ‘his body language, his speech was more intoxicated than the younger one’. In relation to the accused, ‘he wasn’t actually on that level of intoxication. Probably he drank, I’m not sure, but he was okay’.[94]
[93] T178.
[94] T181.
I am able to find that the accused was intoxicated to some extent from the alcohol he was drinking that evening, but not as intoxicated as the deceased. The CCTV footage does not show him to be unsteady on his feet.
The text message
At 12:46:29am, about ten minutes after the incident, a text message was sent from the accused’s mobile phone to ‘Lomie’ which said, ‘Knocked some cunt out’.[95]
[95] Statement of agreed facts, Exhibit P10, [30] - [31].
Proof of the first element of the offence: causation
The prosecution must prove the accused’s punch caused the death of the deceased.
Dr Cheryl Charlwood gave evidence[96] about the cause of the deceased’s death. She is a specialist forensic pathologist whose expertise was not disputed. On 2 July 2019, she performed the post mortem examination on the body of the deceased. In her opinion, his death resulted from a hypoxic ischemic brain injury following an out of hospital cardiac arrest. The original cause of that cardiac arrest was a traumatic subarachnoid haemorrhage due to a left vertebral artery tear.
[96] T67 – 81.
Dr Charlwood explained that the brain has its main blood supplied by four arteries. There are two vertebral arteries which go through the back of the neck and two carotid arteries which go up the front of the neck. There was a rupture, namely a tear, of the left side vertebral artery. There was also bruising to the left, upper neck, around the region of the jaw line. In her opinion, evidence of bruising to that region of the neck is consistent with a traumatic impact such as a punch. With that sort of tear, the person will go down very quickly and be unconscious, often in cardiorespiratory arrest.
Dr Charlwood said that quite often with a traumatic subarachnoid haemorrhage, evidence of trauma to the region, such as a blunt impact, can be seen. It is very difficult to estimate the amount of force necessary to cause this injury. Because there was bruising in that area, Dr Charlwood could say at least mild force, but more than that, she could not say. The jaw was not broken nor were there any other broken bones. The force was enough to bruise, but not enough to break bones. There were no other significant injuries.
Dr Charlwood gave evidence that such a rupture can also be associated with sudden movement of that region which causes a stress or strain on that vessel as it passes around the back of the vertebrae and into the skull. That stress and strain causes tearing and hence the haemorrhage.
In cross‑examination, Dr Charlwood was asked about an article in her case file, ‘Fatal subarachnoid haemorrhages in relation to minor injuries in Denmark from 1967 to 1981’.[97] One of the points made in that article is the fact that this kind of injury, in some instances, can result from relatively minor trauma in a scuffle. The injury can occur through rapid movement of the head and neck away from a blow. It is recognised that there must be a lot of inter‑individual variation because the same outcome does not occur in everybody. She agreed that increased alcohol in the blood can affect judgment, co‑ordination and the tone of muscles. In a lot of the situations like this, alcohol was detected. Alcohol may have some impact on the protection of a person’s movements or makes a person more susceptible when struck to that region.
[97] T73.
For the accused, Mrs Shaw submitted that the prosecution must prove that it was the accused, not Mr Purvis, who struck the blow which caused the bruising to the neck/jaw. Further, even if the accused struck that blow, the prosecution must prove that that blow was the cause of the rupture, as opposed to a rotation or twisting of the neck that occurred during the scuffle.[98] Mrs Shaw submitted the prosecution has not excluded the possibility that (1) Mr Purvis was responsible for the neck/jaw injury; (2) Mr Purvis struck a separate blow to the accused which caused the death; and/or (3) Mr Purvis’ role in the scuffle was responsible for the deceased’s neck rotating or twisting which caused the fatal rupture.
[98] T311.
I bear in mind that the ‘scuffle’ happened very quickly and the CCTV footage has limitations because of the angles.
From the CCTV footage, I find that the accused did punch the deceased during the scuffle. It was a right-handed punch to the left side of the deceased. The accused was to the deceased’s left at the time of the punch. The trajectory of the punch was in line with the left side of the deceased’s face/jaw/neck, which is where Dr Charlwood observed the significant bruising. The accused had an abrasion and redness to his right middle finger.[99]
[99] Exhibit P7.
The text message sent from the accused’s phone supports the finding that he punched the deceased. The message does not, however, expressly state that he knocked the deceased out. Because of that, I have not used the text message as evidence of an admission which on its own could prove the first element of the offence. Rather, it tends to confirm the finding I have already made.
From the CCTV footage, I find that Mr Purvis did have a role in the ‘scuffle’. As the deceased approached, chested and pushed the accused, Mr Purvis intervened by trying to take hold of the deceased from behind. The deceased must have felt Mr Purvis intervening and responded by twisting around to get away. As the blow was struck by the accused with his right arm, Mr Purvis moved toward the deceased and outstretched his left arm at the deceased who was then facing him.
I am not sure whether Mr Purvis struck/connected with the deceased at the end of the scuffle. Even if he did, however, the trajectory of his arm was toward the face of the deceased, not to the deceased’s left side.
Mrs Shaw submitted that the prosecution cannot exclude that three injuries to the deceased’s face were caused by a blow delivered by Mr Purvis at that point. Those injuries were described by Dr Charlwood as (1) speckled intradermal bruising up to 1 x 4cm with surrounding discolouration/bruising, approximately 3 x 4cm to the right forehead and with bruising confirmed internally; (2) very superficial intermittent abrasion on right upper cheek/temple, overall up to 1.5 x 4cm; and (3) the labial aspect of the right upper lip showed a bruise, 0.5 x 0.3cm.[100] Dr Charlwood gave evidence describing those areas as indicative of some trauma, but they were ‘quite mild and subtle’.[101] She described (1) and (2) as very minor. She considered (3) could be due to the medical intervention in the form of resuscitation. She could not completely exclude a blow being the cause of any of the three injuries. She expressed the view that (1) and (2) could be due to the deceased falling on his face.
[100] Exhibit P9, page 7.
[101] T76.
The prosecutor submitted those minor injuries were entirely consistent with the deceased’s face hitting the floor at the time of his collapse. After the deceased fell backwards, he then turned over onto his knees and fell forward onto his face.
The prosecutor submitted there were no injuries to Mr Purvis’ hands.[102] Mrs Shaw submitted that there was an injury to Mr Purvis’ left hand and redness to his wrist.[103] I agree with Mrs Shaw. The photographs of Mr Purvis’ left hand suggest an injury to a knuckle of his left hand as well as redness to his wrist.
[102] Exhibit P7.
[103] T312.
Mrs Shaw referred to the evidence of Mr Bivone that he saw one or two punches, but was not sure; he did not really see who threw the punch because of the lighting.[104] She also referred to the evidence of Mr Singh that he grabbed the person he thought had thrown the punch, which was Mr Purvis.[105]
[104] T100.
[105] T312 – 313.
Even if Mr Bivone is correct and there was a second punch by Mr Purvis, in my view, it was not a blow to the left jaw/neck area of the deceased. If it connected, it could explain one of the three minor injuries on the deceased’s face and the injury on Mr Purvis’ left hand. If it connected, I consider it was a minor blow. In my view, the deceased was already falling by the stage that Mr Purvis had his left arm outstretched toward the deceased.
The fact that Mr Singh grabbed Mr Purvis after the deceased had fallen is readily explicable because of the way Mr Purvis behaved when the deceased had fallen. Mr Purvis, not the accused, was the one close to the deceased and swearing at him. The accused was standing back, telling Mr Purvis that ‘we’re leaving him mate’, ‘we’re going’.
Regarding the requirement that the prosecution must prove that the tear was caused by the accused’s punch, I have carefully considered Dr Charlwood’s evidence that a tear to the vertebral artery may be caused by a stretching/twisting/rotating movement of the neck during a scuffle. I bear in mind that the deceased was significantly intoxicated at the time, which may adversely impact protective responses in his movements. From the CCTV footage, it can be seen that prior to the accused’s punch, Mr Purvis was behind the deceased. It looks like Mr Purvis had hold or was taking hold of the deceased. He may or may not have pushed the deceased. In any event, it looks like the deceased determinedly extricated himself and twisted around to move away from Mr Purvis’ hold/potential hold. The deceased’s entire body rotates, rather than just his head/neck. His entire body rotates around to then face Mr Purvis. Further, there are no signs of him collapsing at that point. I do not consider that movement caused the fatal tear.
It is also significant that the bruising from the blow inflicted by the accused overlays the left vertebral artery injury.[106] I agree with the prosecutor’s submission that it is no coincidence that there is bruising where the artery ruptured.[107] Immediately after that blow, the deceased started collapsing. I appreciate that the scuffle happened very quickly. However, by the time Mr Purvis had his arm extended, the deceased appears to be collapsing to the ground.
[106] T77.
[107] T290 – 291.
I am satisfied beyond reasonable doubt that the accused punched the deceased with his right fist in the area of bruising around the deceased’s left jaw/neck. I am satisfied beyond reasonable doubt that that punch caused the fatal tear to the left vertebral artery which led to the subarachnoid haemorrhage and cardiac arrest. I am satisfied beyond reasonable doubt that the accused’s punch caused the death of the deceased.
Proof of the second element of the offence: deliberate and voluntary act
There was no dispute about this element of the offence. I am satisfied beyond reasonable doubt that the accused’s punch was a deliberate and voluntary act.
Proof of the third element of the offence: unlawful act
Based on the CCTV footage, I am satisfied that the deceased was the first to be physically aggressive toward the accused.
There is no direct evidence which explains why the deceased walked over to the accused and Mr Purvis outside the hotel. They did not know each other and had no interaction that evening.
The deceased was standing outside the hotel on his own during the interaction between Mr Musial and the accused. It was when Mr Musial turned to walk back inside the hotel that the deceased moved away from the wall where he was standing and approached the accused and Mr Purvis. Soon after his approach, the deceased looked over his left shoulder and then again over his right shoulder. It is possible that he was looking to see if Mr Musial had in fact gone back inside the hotel or not. It is also possible that he was talking with the accused about the interaction with Mr Musial during the course of which he was gesturing to where Mr Musial had been at the time.
There was some evidence that the regulars at the hotel looked out for one another. The security guard, Mr Volar, gave evidence that the regulars tended to support each other if there is a bit of a scuffle. There was that culture, but it depended on the situation.[108]
[108] T92 – 93.
There was no evidence that the deceased and Mr Musial knew each other. Mr Musial gave no evidence that he knew the deceased or that he spoke to the deceased that evening. There was evidence that each of them was a regular at the hotel. Mr Holmes described the deceased as ‘a good bloke who stayed out of trouble’. He had not seen the deceased be protective of anyone at the hotel, but he would say that ‘if someone was getting a bit achy at the pub Julian would tell them in a polite way to pull their head in’.
Mrs Shaw submitted that it is plain that the regulars had a great connection to the hotel. They looked out for each other; it was their territory. The accused and Mr Purvis were not regulars. [109] The regulars were looking out for each other that night – Mr Musial, in relation to Ms Hartwig and Ms White (who were regulars), then Mr Musial eye-balling the accused and then the deceased going over to speak to the accused.
[109] T321.
I think the deceased approached the accused because of the interaction between the accused and Mr Musial that had just taken place. I find that the accused was intent upon leaving the hotel by that stage. He had not engaged in a physical fight with Mr Musial, but had moved away from him. I do not think the deceased approached the accused in order to have a fight, but at the same time, I do not think his approach was for a friendly purpose. In less than a minute, the deceased was physically aggressive toward the accused.[110]
[110] Camera 16. The deceased was standing with the accused from 12:35:41am to 12:36:31am.
The deceased was intoxicated when he approached the accused. Professor White described the estimated blood alcohol concentration (BAC) of approximately 0.18% as relatively high. Consistent with the evidence, he noted that the deceased was a heavy drinker and would have had considerable tolerance to the effects of alcohol. Mr Holmes and Ms Lopatta described the deceased as ‘ticking along/over well’.
Professor White expressed the opinion that at 0.18%, the outward signs of intoxication are slurred speech, unsteady gait and body sway. The deceased may have exhibited one or more of those signs, but it is not necessarily the case in a person with a high degree of tolerance. While his walking and talking would not necessarily have been visibly affected, he would have experienced impairment of his balance and muscular co‑ordination, as well as a slowing of reaction time. His thinking and decision making would have been impaired. At that level of intoxication, a person is able to think only at a simple level and may have difficulty understanding ideas and conversations of any complexity. He may fail to perceive situations correctly and may make errors of judgment that can influence actions. There is very likely to be evidence of disinhibition, with the person engaging in behaviours that would be described as impulsive, risky or reckless. That is because the person has less than normal concern for consequences of their actions. Disinhibition can result in aggression through a decrease in the normal inhibitions that restrain aggression. The intoxicated person may perceive provocation in situations where a sober person may not come to the same conclusion. Changes in mood at this level can be rapid and extreme.[111]
[111] Exhibit P16. Affidavit of Jason White, dated 2 July 2021, [9] – [14]; Supplementary report, pages 3 – 4.
The deceased’s BAC of 0.18% tends to explain why the deceased initially approached the accused and why he became physically aggressive in less than a minute. The initial approach was impulsive. His thinking and decision making would have been impaired. He may have perceived the conversation with the accused as more provocative than if he had been sober. Changes in mood can be rapid and extreme.
The prosecutor submitted that self-defence may arise if the deceased was the aggressor. I find that the deceased was the aggressor.
Section 15(1) of the Criminal Law Consolidation Act 1935 is as follows:
(1) It is a defence to a charge of an offence if
(a) the defendant 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 defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist.
Self‑defence is defined as a ‘defensive purpose’. If a defendant raises a defence under s 15, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Prosecution submissions
The prosecutor submitted that the accused had plenty of opportunity to walk away from the deceased. Instead, he chose to remain and did so in the expectation of a fight. That is not self‑defence. Even if the accused had no prior warning of the deceased’s actions, Mr Purvis had adequately dealt with the situation by a simple push to the deceased. Whatever the threat that may have existed at that time, it was no longer there. The accused’s violence was plainly unnecessary.
The accused’s concern over his jaw and the surgery cuts both ways. If there was a genuine concern about that, it might manifest itself in stepping away from the situation that is getting heated.
The different heights and weights of the various players does not overcome the fact that Mr Purvis had pushed the deceased away before the accused then decided to re‑engage.
The deceased had not really re‑engaged his footing. He had not fully turned around to be face to face with the accused. That is consistent with the blow being to the side of the head, not the face. The location of the blow was inconsistent with the accused acting in self‑defence.
The punch was not reasonably proportionate. The accused was dealing with an older man who was plainly intoxicated and who had been easily rebuffed by Mr Purvis pushing him. It was unnecessary for it to escalate to the throwing of the punch. If defence was necessary in those circumstances, a reasonably proportionate or appropriate response would have been something less than a blow to the head.
Finally, the prosecutor submitted that the text message is entirely consistent with bragging and bravado of someone who was willingly engaged in a fight and inconsistent with someone who has engaged in the fight effectively against their will because they had to defend themselves. It is an extension of that aggressive behaviour, namely an aggressive mindset.
Defence submission
Mrs Shaw made 12 key points in relation to the prosecution failing to exclude self‑defence as a reasonable possibility.
First, at the time of the incident, the accused and Mr Purvis were standing at the front of the hotel, awaiting the arrival of an Uber they had ordered minutes prior. It can be reasonably inferred that the accused and Mr Purvis wanted to do nothing other than leave the hotel and go home. That is supported by the way in which they distanced themselves from Mr Musial, turning their back and moving away from him.
Second, because of recent surgery, the accused literally had a glass jaw. If he was hit, that could have dire consequences. Bruising to his jaw from surgery is apparent from the photographs in exhibit P7. It cannot be excluded as part of the factual matrix that because of that recent operation, he felt vulnerable to any application of force. That is also in the context of someone who had been drinking alcohol legally. His response time to the deceased’s assault was lengthened by that alcohol consumption.
Third, there is no evidence to suggest that the accused bore any animosity toward the deceased. The prosecution case is that the two had never even seen or spoken to each other until just before the charged incident.
Fourth, it can be inferred from the manner and circumstances in which the deceased approached the accused that, for reasons unknown, he bore animus toward the accused. The hotel is a place where the regulars looked out for each other. It was the territory of the regulars. The accused and Mr Purvis were not regulars.
Fifth, when the deceased approached the accused, he was significantly intoxicated. The evidence of Professor White is that at that level, a person might reasonably be expected to be disinhibited, impulsive and reckless. What is telling about the level of animus or aggression that the deceased displayed is that whilst he was standing at the front of the hotel, he must have witnessed these two young men turn their back on Mr Musial and move away. He must have been aware that these two young men were not spoiling for a fight. They had refused to engage with Mr Musial. That adds to the unexpected nature, the surprise factor and the irrational nature of what the accused was faced with.
Sixth, the deceased was approximately 27 years older and 19 kilograms heavier than the accused. That goes to his very presence, coupled with his physical acts constituting a high level of not just an assault, but an apparent willingness to take on the accused without any reason whatsoever.
Seventh, there was a conversation before the deceased assaulted the accused. The taxi drivers are not reliable in their assessment of that conversation. It was not of a nature that warranted Mr Volar’s attention, nor did it cause Mr Purvis to stop looking at his phone or the accused to take his hands out of his jacket pockets.
Eighth, without warning, and for no apparent reason, the deceased shirt fronts and pushes the accused or grabs his shirt, causing the accused to stumble off the kerb where he was standing and to fall backward.
Ninth, bearing in mind reaction times because of intoxication levels and the time of two to 2.5 seconds from being shirt fronted, pushed or grabbed by the deceased, the accused removed his hands from his jacket pockets and threw a single punch towards the deceased. There is no evidence from which it can reasonably be inferred that at the time of the accused’s punch, the deceased had ceased his attack upon him or his aggression had otherwise abated. Importantly, there was no basis for the accused to have known that the deceased’s unexpected aggression, which was irrational, was not just the beginning of whatever he had in his mind.
Tenth, given reaction times for someone who has a level of intoxication, it can reasonably be inferred that at the time the accused threw the punch, he was reacting to what the deceased had done.
Eleventh, immediately after throwing the single punch, the accused did not continue to attack. He retreated instantly away from the deceased. He is heard on the CCTV footage to state repeatedly, ‘we’re going’ and tries to pull Mr Purvis away. Mr Volar gave evidence that in relation to fights, there will be those who are aggressive and want to keep doing, but that did not happen with the accused. The aggression was displayed by Mr Purvis. The accused’s conduct after throwing the punch is consistent with a person who has a jaw with screws and plates in it and who was intending on going home.
Twelfth, the accused has no prior convictions. He has prior good character. He has a general reputation amongst those persons who know him as being non‑violent, friendly and respectful. That makes it unlikely that he would itch for a fight.
Assessment
A key factor in assessing the evidence and considering the submissions on whether the prosecution has proved the punch was unlawful is that the ‘scuffle’ was less than four seconds. The genuineness of the accused’s belief regarding (1) his punch and (2) the circumstances, must be assessed in that context. The prosecutor quite properly acknowledged that to be the case.
The unexpected nature of the deceased’s actions is also important and has two significant aspects. The first is the ‘out of the blue’ nature of the deceased’s initial approach. This was no chance encounter in the sense that they were passing each other or in one another’s way. Rather, the deceased deliberately and purposefully walked from over by the wall of the hotel to where the accused was standing with Mr Purvis. That is puzzling. The accused and Mr Purvis were complete strangers to the deceased. They had no interaction that evening at the hotel.
On the evidence, I think the deceased’s approach was a follow up of what he had just seen occur between Mr Musial and the accused. He may well have decided to take up where Mr Musial left off. There is simply no other reason, on the evidence, for his approach.
In terms of the accused’s belief as to the circumstances at that stage, he had walked away from Mr Musial’s somewhat aggressive stance. I do not consider he would have been expecting a total stranger to take up the issue.
The second aspect of the unexpected nature of the deceased’s actions is his ‘out of the blue’ physical aggression toward the accused. It might be said that even if the accused did not expect the deceased to approach, he must have had some idea about what was going on once the deceased stood next to him. There was conversation for about 50 seconds before the deceased’s physical aggression.
No witnesses gave evidence about what was said between the accused and the deceased. Mr Bovine gave evidence the tone of the words was probably slightly a little bit aggressive.[112] Of the two security guards, Mr Volar gave evidence ‘It did not feel heated at all’[113] whilst Mr Singh’s attention was not drawn to it as he had his eye on another incident. Of the two taxi drivers, Mr Saha gave evidence it was an argument rather than a discussion and Mr Baroi said there were some horrible words being said, they were ‘talking hotly’.[114]
[112] T99.
[113] T87.
[114] T194.
I have doubt about the reliability of Mr Baroi’s recall of the time just prior to the incident. In particular, his memory is faulty in regard to his description that the accused and the deceased came out from the hotel hurriedly, like running.
I do not think the conversation was a friendly conversation. It is likely that the deceased’s tone was unfriendly and that the accused responded accordingly. I agree with Mrs Shaw’s seventh point regarding the assessment of the extent to which the conversation was heated. The conversation was not of a nature that warranted Mr Volar’s attention. Nor did it seem to cause Mr Purvis much concern. During the conversation, Mr Purvis took his phone out of his pocket and studied it. He was still looking at his phone when the deceased’s physical aggression began. He looked up from it as the deceased moved toward the accused in a way which suggests that Mr Purvis was not expecting the physical aggression. Further, the accused had his hands in the front pockets of his jacket during the conversation. If he had been concerned that it was going to get physical, it might be expected that he would have taken his hands out of his pockets.
I find that the 50 second conversation did not give the accused warning of the physical aggression. In other words, I do not think the accused was expecting what happened. It took him by surprise. The deceased’s level of intoxication may well explain what seems to be his impulsive and reckless act of physical aggression toward the accused.
The unexpected nature of the deceased’s physical aggression is important when assessing the accused’s genuine belief at the time he punched the deceased. In that regard, I find Professor White’s opinion about reaction times to be helpful. Based on studies of drivers responding to objects which appear in their field of vision, or to events occurring in front of them, as well as studies of pedestrians responding to events, the average response time is approximately one to 1.5 seconds. One of the main factors in determining time taken to react is whether the object or event is expected or not. Reaction times longer than one second generally occur when the object or event is unexpected, but less when it is expected. In the context of an unexpected push, a longer reaction time of around 1.5 seconds would be predicted.[115]
[115] Supplementary report for R v McCluskey, Professor Jason White, 12 July 2021, pages 1 – 2.
The consumption of alcohol has a further impact on reaction times. Professor White referred to research on the effect of alcohol on reaction times showing an approximate doubling of reaction time at a BAC of 0.08%. It would be expected that reaction time would increase in proportion to BAC.
I have found that the accused was affected by alcohol at the time of the incident, but to a lesser extent than the deceased. Assuming his BAC was around 0.08%, then his reaction time to the accused’s physical aggression may have been around three seconds, if not more.
At some point, descending into the minutiae will be of limited assistance. Ultimately, it is necessary to take a commonsense approach. What can be said is that the accused’s reaction time was impaired because the deceased’s physical aggression was unexpected and the accused had been drinking that evening. That is significant when considering the prosecution submission that the accused should have realised that Mr Purvis had adequately dealt with the situation by a simple push to the deceased, so the threat was no longer there. In my view, in light of his impaired reaction time, the accused was reacting to the physical aggression he had just experienced from deceased, rather than making an assessment of Mr Purvis’ action.
I am not persuaded by the prosecution submission for two main reasons. First, it cannot be said that Mr Purvis’ push (if it was a push, as opposed to an attempt to take hold of the deceased) negated the threat of the deceased’s physical aggression. The deceased did not succumb to Mr Purvis’ intervention at all. Rather, the deceased made real effort to extricate himself from Mr Purvis’ hold/push by rotating his body away to then end up facing Mr Purvis.
Second, the accused did not have the advantage of a frame by frame analysis of what was happening between Mr Purvis and the deceased. He had just experienced the physical aggression from the deceased. At most, he could have believed that Mr Purvis had tried to intervene, but I think it unlikely that he would have appreciated anything other than the deceased was still standing, facing Mr Purvis and side on to the accused. If the punch had not occurred, looking at the position of the deceased on the footage, it is impossible to predict what he may or may not have done next. It cannot be said that the ‘scuffle’ was over before the accused’s punch. The reasonable possibility that the accused may not have genuinely believed the ‘scuffle’ to be over at that time cannot be excluded. This is not a situation in which an initial scuffle or fight had clearly stopped and then the offender deliberately and purposefully moves toward the victim and delivers a king hit. This event, from the time the deceased approached the accused to the time the deceased was falling to the ground, was fluid and dynamic.
The accused found himself in circumstances where he was unexpectedly confronted with physical aggression by an older, taller and heavier man who was a stranger and intoxicated. I cannot exclude the possibility that his feeling of vulnerability was heightened because of what Mrs Shaw described as his ‘glass jaw’. On 12 June 2019, he had an operation to lengthen his lower jaw which involved the use of plates and screws and the removal of four wisdom teeth. One week afterwards, he reported numbness to his lower lip and then two weeks afterwards, some return of sensation in the lip.[116]
[116] Statement of agreed facts, Exhibit D17, [5] – [9].
The prosecutor submitted that if the accused had a genuine concern about his jaw, such a concern might manifest itself in him stepping away from a situation that was getting heated. That may well be the case if there had been something about the conversation that gave the accused warning that it was about to get physical. As discussed above, I do not consider there was any such warning. In any event, the reasonable possibility that he had that genuine concern after he was shirt fronted and pushed by the deceased cannot be excluded.
In light of the discussion above, I cannot exclude the possibility that the accused genuinely believed his punch was necessary and reasonable for a defensive purpose. I agree with Mrs Shaw’s ninth point that there was no basis for the accused to have believed at the time of his punch that the deceased’s unexpected aggression was not just the beginning of whatever the deceased had in his mind. Even objectively, I do not consider it can be safely said that at the time of the accused’s punch, the deceased had ceased his attack upon the accused or his aggression had abated.
The accused’s immediate cessation of physical aggression after the punch is further support for the reasonable possibility that he genuinely believed his punch was necessary and reasonable for a defensive purpose. That behaviour is strongly suggestive of someone acting defensively. After the punch, he took the opportunity to get straight out of the deceased’s way. He did not follow up the punch with any further acts of aggression. Once out of the way, he stayed out of the way. He did not encourage Mr Purvis’ aggression. He positively discouraged it. He told Mr Purvis to leave the deceased and that they were going.
In the circumstances as the accused genuinely believed them to be, I cannot exclude the reasonable possibility that the accused’s act of punching the deceased was objectively reasonably proportionate to the threat the accused genuinely believed to exist. I cannot exclude the reasonable possibility that the threat the accused genuinely believed to exist was a further assault by the deceased who was an older, taller, heavier and intoxicated man and a stranger who had unexpectedly started the physical aggression. I cannot exclude the reasonable possibility that the threat the accused genuinely believed to exist was that there was more to come from the deceased and, in light of the unexpected nature of the deceased’s first move, the deceased’s next move was of an unpredictable magnitude.
In coming to that finding, I have taken into account the text message from the accused’s phone after the charged incident. I agree with the prosecutor’s submission to the extent that the tone is suggestive of bravado. I do not agree with the prosecution submission that the apparent aggressive mindset in the text is an extension of aggressive behaviour at the time of the charged incident. It must be borne in mind that the accused was only 19 at the time of this charged offence. Further, he could not have had any idea at the time the text was sent that the deceased was going to die. There is no doubt that, with the benefit of hindsight, his immature bravado in a text sent 10 minutes after the offence appears callous.
I am not prepared to infer from that text message an aggressive mindset at the time of the charged incident, nor a willingness to fight.
Verdict
The prosecution has not proved the third element of the offence beyond reasonable doubt. The prosecution has not proved that the accused’s punch was unlawful. The prosecution has not excluded the reasonable possibility that the punch was in lawful self-defence. I find the accused not guilty of manslaughter.
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