R v Miller

[2020] NSWDC 857

District Court

New South Wales

Medium Neutral Citation:

R v Miller [2020] NSWDC 857

Hearing dates:

31 August 2020 – 3 September 2020

Date of orders:

10 September 2020

Decision date:

10 September 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The accused is found guilty

Catchwords:

CRIME — Violent offences — Reckless wounding

Legislation Cited:

Crimes Act 1900 (NSW) ss 35(4), 418 and 419

Evidence Act 1995 (NSW) ss 38, 138

Criminal Procedure Act 1986 (NSW), s 133

Cases Cited:

R v Katarzynski [2002] NSWSC 613

Mahmood v R (2008) 232 CLR 397; [2008] HCA 1

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
Darren Miller (Accused)

Representation:

Counsel:
Mr D Robinson (Crown)
Mr P Butterfield (Accused)

Solicitors:
Mr T Gabriel (Crown)
Mr A Dikha (Accused)

File Number(s):

2019/181258

Publication restriction:

Nil

SENTENCE

Introduction

1. HIS HONOUR: The Accused stood trial before me, sitting without a jury, on an indictment which contained the following single count. That on 24 March 2019, at Schofields, he wounded Liam Barr and was reckless as to causing Liam Barr actual bodily harm. That is an offence under s 35(4) of the Crimes Act.

The Facts

2. The following factual matters were not in dispute in the trial. On the evening of 23 March 2019, the twenty-first birthday party of Luke Hawes was held at residential premises at 31 Bellflower Avenue, Schofields. Both the accused and the complainant, Mr Barr, attended the party that evening, along with a number of other people that they each knew. Relevantly those people included Thomas Daver; Luke Hawes; Brendan Hawes; Jeremy Hawes; Brylie Lawford the girlfriend of the complainant; Paige Sharpe, a cousin of the complainant and a former girlfriend of the accused; Lachlan Spencer; Luke Vasallo and Nathan Ward.

3. The complainant and the accused knew each other prior to the party from their schooldays. The complainant attended the party with his girlfriend and Thomas Daver. Many of the people at the party, including the complainant and the accused, consumed alcohol that evening; and a number of attendees at the party consumed very considerable quantities of alcohol.

4. Around midnight there was an incident towards the rear fence of the backyard of the premises involving the person, Thomas Daver, and other attendees at the party. The complainant came to the assistance of Mr Daver during that incident. On the evidence the accused did not actively involve himself in the incident which occurred at the rear fence of the premises, but it can be seen as a trigger for subsequent events. The complainant came to Mr Daver’s assistance during that incident and moved with him, and other persons, to the front of the premises through a side-gate and proceeded to leave the premises along Bellflower Avenue. I will discuss the evidence concerning what I will term “the fence incident” shortly.

5. The accused moved from the rear premises after the complainant and Mr Daver had done so. At some point after that there was a physical interaction between the complainant and the accused. As a consequence of that physical interaction the complainant suffered a right clavicle fracture; a right temporal fracture with extension in the temporomandibular and mastoid temporal bone; an occipital laceration that breached both the epidermis and the dermis and a bifrontal cerebral contusion; and a parafalcine subdural haematoma.

The fence incident

The complainant’s evidence

6. I turn then to review the evidence called in the Crown Case, and I will start with the evidence of the fence incident, or what I have called the “fence incident”. The complainant gave evidence that by the time of the fence incident he had consumed sufficient alcohol to feel a little intoxicated. In cross -examination he accepted that he had told the police on 19 April 2019 that he could not say how many drinks he had had that night but that he was definitely drunk, “but not causing any problems”. He described Ms Lawford pointing out to him that Mr Daver was being held up against the fence by one or two people. He did not describe who those people were. His evidence was that he ran over to where Mr Daver was and pulled him away and said to him that they were leaving. He gave evidence that he, Ms Lawford and Mr Daver left the rear of the premises through the side gate and proceeded out the front and up the street in the direction of his own residence.

Ms Lawford’s evidence

7. Ms Lawford gave evidence that she had seen, at one point during the party, Mr Daver pushed and pinned against the back fence of the premises where the party was being held. She thought that there were around twenty people near Mr Daver at that point. She nominated Brendan, Jeremy and Jake Hawes as being part of that group, as well as their mother and their cousins. Her evidence was that a number of those persons were saying words to the effect of, “How fucking dare you.” Ms Lawford described the complainant pulling Mr Daver away from that group and he told her to leave. She said she followed the complainant and Mr Daver out of the side gate of the premises.

8. In cross-examination Ms Lawford gave evidence that the accused was not part of the group that had Mr Daver up against the fence. Ms Lawford agreed that both she and the complainant had consumed a number of vodka drinks that evening.

Mr Daver’s evidence

9. Mr Daver gave evidence, that in terms of his consumption of alcohol that night, he had consumed six or seven full-strength beers. He described that around midnight he was confronted by Jeremy Hawes, and “a couple of his brothers” about calling his sister a “slut”, something which he denied doing. There were some other people involved in having him up against the fence but he was not able to name them. He nominated Brendan Hawes at one point in his evidence. He also described being pushed up against the fence. Mr Daver described the complainant pulling him out of that situation and that they then decided to leave the party. Mr Daver then described leaving the rear of the premises through the side gate with the complainant and Ms Lawford. Mr Daver confirmed in cross-examination that the accused was not involved in an interaction in relation to a suggestion that Mr Daver had said something about the sister of the Hawes’ brothers.

Ms Sharpe’s evidence

10. Ms Sharpe gave evidence that around midnight she turned around and saw Mr Daver being held against the fence by Jake, Jeremy, Dustin and Brendan Hawes. She described the complainant grabbing Mr Daver out of the group and saying, “Let’s go, we need to go.” Ms Sharpe described the complainant, Mr Daver and Ms Lawford going to the front of the premises, and another group from the party proceeded to follow them. Ms Sharpe confirmed in cross-examination that the accused was not involved in the fence incident.

Mr Vasallo’s evidence

11. Mr Vasallo gave evidence that he observed at one point Mr Daver come into the back of the property and Brendan Hawes held him up against the fence. He also said he observed Brendan and Jeremy Hawes pushing Mr Daver around and that he, Mr Vasallo, tried to hold Brendan Hawes away from Mr Daver. His evidence was that the complainant then came over and grabbed Mr Daver and said, “We’ve got to go, we’re going”; and observed the complainant, Mr Daver and Ms Lawford proceed out the side gate. Mr Vasallo gave evidence that he, and a friend of his, also went out the front of the premises.

Mr Brendan Hawes’ evidence

12. Brendan Hawes also gave evidence in the Crown Case. He gave evidence that he knew who the complainant and Mr Daver were from their schooldays. By the time of both what I have termed the “fence incident” and the “street incident”, Brendan Hawes gave evidence that he was “highly intoxicated”. Throughout his evidence he claimed to have a limited recollection of the events that evening. In terms of his prior association with the accused, he said in cross-examination that the accused was a friend of his brother, Luke, and also his fiance’s adopted brother, but the only time that he would see the accused was when he was with his brother.

13. Brendan Hawes gave evidence that he did recall that on that night the accused wore a cast on one of his hands or arm, as he had an injury and that the accused at one point removed the cast and showed him the stitches in his hand. Brendan Hawes said he had a recollection that around midnight he saw his brother Jeremy, whom he said “looked upset”. His evidence was that Jeremy had told him that Mr Daver needed to leave the party because he had been inappropriate to their sister, and his partner. According to the witness’ evidence he and Jeremy Hawes approached Mr Daver and told him to leave, “and then it just turned in chaos”. He described there being “two sides” some saying Mr Daver had done something; some saying he had not. He and his brother were part of the “side” who were saying Mr Daver had done something. Brendan Hawes said he had a memory that his brother Luke at one point grabbed him and had taken him to a corner of the fence and said he wanted to find out what was going on. He then said he recalled being with his brother Luke for a while in the backyard which had only one other person in it whom he could not remember.

Mr Jeremy Hawes’ evidence

14. Jeremy Hawes gave evidence in the prosecution case, and his evidence touched on the events concerning Mr Daver at the fence. Jeremy Hawes gave evidence that he was drunk that evening, and I have had regard to that fact in assessing what weight I should give to his evidence. Jeremy Hawes gave evidence that he had been told by one of his friends, and by his girlfriend, that Mr Daver had been winking at his sister and girlfriend and calling them “sexy” and that his girlfriend and his sister had told him to make sure that Mr Daver left the party.

15. Jeremy Hawes gave evidence that he and his brother, Brendan, confronted Mr Daver and asked him what he had been saying. He initially described himself as being “frustrated” by what had occurred but ultimately accepted that he was angry. After the confrontation, according to his evidence, “Everybody kind of grouped up and there was a bit of arguments going on”. He described his brothers, Brendan and Luke, arguing. He said he also recalled that the complainant approached and said, “What the fuck are yous doing?” His recollection was that shortly after that he observed that the only people in the rear of the premises were himself and his brothers Luke and Brendan.

16. Under cross-examination by the Crown, pursuant to leave under s 38 of the Evidence Act, he denied being one of the persons who held Mr Daver up against the fence and claimed not to recall who did. He said he was uncertain whether the complainant pulled Mr Daver away from the fence area.

Mr Lachlan Spencer’s evidence

17. Lachlan Spencer, another attendee at the party, was called in the Crown Case. In assessing Mr Spencer’s evidence at the outset I recall the evidence concerning how much alcohol he had consumed prior to the incident and immediately after the incident, and his use of marijuana that night, as the amount of those substances was such that, in my opinion, common senses suggests that they would have had an impact on his ability to give a reliable account of events that night. According to Mr Spencer’s evidence, he arrived at the party premises around midday, or 1 pm, on 23 March last year.

18. His evidence was that by the time of the fence incident at midnight, he had consumed something in the vicinity of 180, 330 ml cans of beer together with two cups of Jack Daniels and three cups of vodka which contained a mixer. After the incident in the street, the witness said he had consumed a further four cans of beer together with two cones of marijuana. While there might have been an aspect of bravado in his evidence, and boasting, it is an extraordinary amount of alcohol to consume, along with marijuana.

19. In terms of his recollection of the fence incident, it was essentially as follows. He was drinking and talking and heard some people arguing at the corner of the back fence. He said he turned around and did not “even glance at the people” and did not see who it was that was arguing. His evidence was he then turned back around and continued drinking.

The street incident

The complainant’s evidence

20. I turn then to review the evidence of the incident on the street which is at the heart of the trial. The complainant gave evidence that a group of people from the party followed himself, Mr Daver and Ms Lawford up Bellflower Avenue. His evidence was that he was looking at that group of people and recognised Brendan Hawes, Jeremy Hawes and Dustin Hawes, all brothers of Luke Hawes who was having the 21st birthday. The complainant said that there were about five to seven persons in the group who were following his group. After refreshing his memory from his statement made on 19 April 2019, he nominated Darren Miller, the accused, as being part of that group.

21. In cross-examination the complainant gave evidence that it was Jeremy Hawes and Dustin Hawes who had focussed their attention on Thomas Daver, and not the accused, and he had no memory of seeing the accused move towards Mr Daver. He recalled that there was yelling between the two groups and then he was yelling, “We’re trying to leave”. The complainant’s account was that the group caught up with Mr Daver and was trying to grab him with their hands. His recollection was that he went towards where Mr Daver was and tried to get him out of the group. His next recollection was that he was looking towards Mr Daver when he was grabbed around the torso from behind, lifted and pulled backwards like over someone’s shoulder and slammed into the ground. He could not recall if he had a shirt on at that point of the evening.

22. The complainant’s next memory was of being at Blacktown Hospital and of being transferred to Westmead. He had no recollection of speaking to police at the scene or at the hospital. In his evidence-in-chief the complainant said that he did not threaten anyone, or punch anyone that evening, and did not remember pushing anyone. The complainant in evidence said he had a recollection that he had taken his Hawaiian shirt off at some point during the party and believed it was at the time that he was leaving the party; there was an Hawaiian theme, apparently, at the 21st birthday party.

23. In cross-examination he said he did not know why he had taken that shirt off. He said he had no memory of taking his T-shirt off as well. The complainant, in cross-examination, said he had no memory of being knocked to the ground and standing back up and facing the accused. He rejected the suggestion that he had punched the accused at that point or at any point. The complainant said he had no doubt he was grabbed from behind and not from the front.

Ms Lawford’s evidence

24. Ms Lawford’s evidence was that after she, the complainant, and Mr Daver went to the front of the premises, they turned right onto Bellflower Avenue and began to walk in the direction of the complainant’s premises. Ms Lawford’s evidence was that the same group of people she had seen holding Mr Daver against the fence, along with the persons, Lachlan Spencer and the accused, followed her, the complainant, and Mr Daver up the street. She recalled hearing members of that group yelling comments such as, “Fuck off dickhead” and she kept hearing, “That’s my sister.”

25. In chief Ms Lawford said that she then saw the group following rush towards Mr Daver and she said at one point she saw him on the ground. Ms Lawford nominated as members of the group who rushed towards Mr Daver and the complainant as including Jeremy Hawes, Brendan Hawes, Jake Hawes, the accused; Lachlan Spencer; Dustin Hawes and cousins of Luke Hawes.

26. In cross-examination Ms Lawford agreed that the primary protagonists in the group rushing towards Mr Daver were two of the Hawes’ brothers. She agreed that she, Mr Daver and the complainant were yelling back vulgarities to the group that was yelling similar things at them, although she had not expressly told police that in her police statement. Ms Lawford had no memory that the complainant removed his shirt at some point during the evening. She described being “Away from it. I was to the side” and saw the complainant “kind of barge through” to pick Mr Daver off the ground and tried to get him away from the group, when she saw the complainant thrown to the ground. Ms Lawford was unable to say how Mr Daver had ended up on the ground. Ms Lawford described at one point grabbing by the arm Jeremy Hawes, who was running at the back of the group, and saying something like, “Just let us leave.” and he responded, “That’s my sister.”

27. Ms Lawford, in her evidence-in-chief, described the accused going behind the complainant, “and kind of bear-hugging him and threw him to the ground”. She described the accused going behind the complainant and wrapping his arms around the complainant between his chest and waist area. She described the accused throwing the complainant to the side and she said she saw the complainant’s head hitting the ground. In re-examination she described the accused walking around the group of persons that were near the complainant to approach him from behind. Her evidence-in-chief was that she had lost sight of the accused for a second or two when the complainant was in the middle of what she described as a “scuffle”.

28. In cross-examination Ms Lawford accepted that she had not seen what had happened immediately before she made the observation about the complainant being taken in a bear-hug by the accused. Her evidence was that she ran to the complainant and he was unconscious and she lay over the top of his body because there were a lot of people in that vicinity. She described the complainant’s cousin, Ms Sharpe, also laying over the body of the complainant. Ms Lawford said that she then called triple-0 and the police and the ambulance arrived shortly thereafter. She described the complainant trying to get up off the ground but she would not let him. She recalled that the complainant kept saying that he had slipped over.

29. The triple-0 call that Ms Lawford made is in evidence. In that call she can be heard saying, “We’ve been here at a 21st, I don’t know exactly, I don’t know what happened.”. It is clear from the context of the call she is dealing with the complainant’s attempts to get up off the ground with police and/or ambulance officers who were at the scene; as well as with the triple-0 operator. She does state later in the call that the complainant had been assaulted. The triple-0 call was introduced into evidence after Ms Lawford’s evidence had concluded and she was not asked specifically about those particular parts of the call I have just referred to.

30. Ms Lawford’s evidence was that she went in the ambulance with the complainant to Blacktown Hospital and stayed with him there. Her evidence in cross-examination, in terms of the police role at the scene of the incident, was that she was quite emotional and had not been asked by the police at the scene for her details. Ms Lawford rejected the suggestion in cross-examination that at some point the complainant had come into contact with the accused, fallen over, got back up and confronted the accused. She also rejected the suggestion that at the time the complainant went to the ground striking his head he had been facing the accused. Ms Lawford also rejected the suggestion that the complainant had at some point, prior to being thrown to the ground, punched or pushed out at the accused. Ms Lawford accepted that in the statement she gave to the police on 19 April 2019 she had said that the complainant, “went over to help Tom”, a reference to Mr Daver, “And pushed someone out of the way to reach” Mr Daver, and that she could not say who that person was.

Mr Daver’s evidence

31. Mr Daver described being followed up the street by most of the attendees at the party. He specifically described being followed by the accused, Jeremy, Dustin and Jake Hawes, along with Lachlan Spencer. His evidence was that those persons were calling him and the complainant and Ms Lawford “dogs” in an aggressive manner. He accepted in cross-examination that he, the complainant, and Ms Lawford were also yelling back at the other group of people.

31. Mr Daver gave evidence that at one point the persons following him and the other two, began to pick up pace and jog towards himself and the complainant. He said he saw the complainant be tackled and he noticed that other people following him and trying to attack him. Mr Daver said he did not see who tackled the complainant but did see the complainant get lifted up and slammed or spear-tackled. His evidence was that the complainant was facing whoever it was who tackled him. Mr Daver said he was five to six metres away from where that occurred. He also described at that point being attacked by at least five people who were trying to punch him and was focussed upon them. He said that he was walking backwards and at some point was pushed up against a wall.

32. In cross-examination Mr Daver said that at the time he saw the complainant tackled he was looking at the complainant side-on. He said he did not see the complainant strike out or push the person who came towards him. His evidence was that he did not see the complainant knocked to the ground and get back up. In cross-examination he accepted that in his police statement that he provided on 5 April 2019, he had said, “I didn’t see what happened to Liam [the complainant] after the first tackle.” He maintained in cross-examination that he only saw the complainant go to the ground once, and he did not get up.

Ms Sharpe’s evidence

34. Ms Sharpe gave evidence that after she gave Ms Lawford her bag she observed the complainant being up the street with Ms Lawford and that someone had already reached the top of the hill, whom she thought may have been Mr Daver, and I note there is an incline on Bellflower Avenue when one moves away from the premises where the party was being held. Ms Sharpe described the accused being at the front of the group of other party attendees who moved to the front of the premises. She initially said she was standing with the accused. She referred to the mother of the Hawes’ brothers, whom I did not hear from, telling the group to “Go and get them” referring to the complainant; Ms Lawford and Mr Daver, “They deserve it”.

35. Ms Sharpe described the group, which included a number of the Hawes’ brothers, running up the street. Her evidence was that she began to run up the street with the accused, Lachlan Spencer and Nathan Ward. In her evidence she said that she said to the accused, after moving to be in front of him, “Please don’t get involved.” and the accused responded, “I’m just going to break it up.”. Ms Sharpe then described the accused running up the road with Nathan Ward and Lachlan Spencer towards the complainant and Ms Lawford. Ms Sharpe’s evidence then was that she saw the group surround the complainant and she began to run towards that area. Her evidence was that she got to the group which was pushing the complainant around and described him going back and forth between the group. She said that she was “directly next” to the accused and the Hawes brothers, and one of those brothers pushed the complainant. Her evidence was this occurred on top of the hill and she could not see Mr Daver. She described the accused being at that point directly behind the complainant.

36. Ms Sharpe initially in her evidence said that one of the Hawes’ brothers pushed the complainant in the chest and then the accused pushed the complainant in the chest. She described the complainant then turning around to face the accused and pushed him. After the Crown drew the witness’ attention to the fact that she had initially said that the accused was behind the complainant, Ms Sharpe said that in fact the accused pushed the complainant in the back; that the complainant turned to face the accused and pushed him and the Hawes brothers had then pushed the complainant again and the complainant has turned to face them.

37. According to Ms Sharpe’s evidence, the accused then punched the complainant in the shoulder blades and the Hawes’ brothers were pushing and punching the complainant. Her evidence was that at that point in time the accused “bear hugged Liam [the complainant] and flicked him over his head and put him on his head into the concrete.” Her evidence-in-chief was that the complainant was facing away from the accused when the accused placed him in a bear-hug. She described the accused lifting the complainant off the ground and throwing him over his shoulder and putting his head into the concrete. Ms Sharpe described hearing a crack when the complainant’s head hit the ground.

38. Ms Sharpe said that everyone, apart from herself, Ms Lawford and Luke Vasallo then walked back to the premises where the party was being held. Ms Sharpe described the complainant being unconscious and that she had rolled him onto his side. She also described blood being on her hands and on the road and said that Ms Lawford then called an ambulance. Ms Sharpe, in terms of her alcohol consumption that evening, said she had three or four apple ciders. She said she did not see the complainant go to the ground on more than one occasion during the incident. She had no recollection of the complainant saying anything after he had been thrown to the ground. Ms Sharpe said she did not speak with the police when they arrived at the scene and went back to the premises.

39. In cross-examination she said she did not speak with the police because Ms Lawford and Mr Vasallo has spoken with them. She said she spoke to two of her family, female friends who were there, but not to any of the Hawes’ family. In cross-examination Ms Sharpe said that the accused was not at any point on the ground during the incident. In cross-examination Ms Sharpe said that the incident on the street was not one which involved the complainant coming to the aid of Mr Daver; that she said that he had already gone.

40. The incident, according to what Ms Sharpe said in cross-examination, involved the group which included the accused, surrounding the complainant on his own. Her recollection was that the focus of the group was on the complainant. She did not see anyone assaulting Mr Daver on the street and it was not a case of the complainant going to Mr Daver’s aid. She said she did not see the complainant take his shirt off at any point.

41. In cross-examination Ms Sharpe agreed that in her police statement made on 19 April 2019 she had said that the complainant had at one point “turned around and either pushed or punched Darren (a reference to the accused) back in the chest.” She accepted that, as at the date of the statement she was unclear whether it was a push or a punch, although in the witness box she stated that she was now clear it was a push with both hands, both of which were open. Ms Sharpe also accepted that immediately after the words I have just set out from her police statement, she had told the police, “And Darren picked Liam up in a bear-hug and dropped Liam onto his head onto the roadway.” Ms Sharpe accepted that she had only recently provided the police with a statement in which she asserted that the Hawes’ brothers had intervened prior to the bear-hug and that the complainant had turned towards them immediately before the accused applied a bear-hug to the complainant. Ms Sharpe accepted that she did not in her statement to the police on 19 April 2019 mention the accused bear-hugging the complainant from behind but she maintained in the cross-examination that was what happened. Ms Sharpe did not accept that the accused and the complainant had wrestled and that they both fell to the ground.

Mr Vasallo’s evidence

42. Mr Vasallo gave evidence that out on the street he saw a group of people following the complainant; Ms Lawford and Mr Daver up the street. He nominated Jeremy Hawes; Brendan Hawes; Lachlan Spencer, and the accused, as being part of that group. He recall that some of the group were saying, “Where are you going?” and the complainant responded, “Oh just leave us alone, we’re leaving.” Mr Vasallo described at one point following Jeremy Hawes and telling him to “Stop” and at one point he said he tried to pull him away but Jeremy Hawes palmed him off. His evidence was that the next thing he saw was the accused coming up the street towards Mr Daver and he described the complainant stepping in between the accused and Mr Daver. His evidence was that the complainant was “a couple of metres” in front of Mr Daver.

43. Mr Vasallo further gave evidence that the accused came up the street towards Mr Daver and the complainant said, “Leave us alone, we’re leaving.” He said that the complainant got in the way of the accused and they wrestled for a short time and then the accused picked up the complainant and “Put him on his head onto the road.” According to his evidence, at that point the accused and the complainant were facing each other and the group of people following were behind the accused. The witness said that the accused picked the complainant off the ground and he observed the complainant’s head to hit the ground.

44. During cross-examination of the witness by the Crown under s 38 of the Evidence Act the witness agreed that he had told the police in his police statement on 19 April 2019 that the accused had chased after Mr Daver “with others” which included Jeremy and Brendan Hawes. He described, however, the accused being ahead of those two persons. The witness also agreed that he had told the police that people from behind the accused were trying to throw punches and said that they had all been trying to get to Mr Daver. At one point in his evidence he described the group of persons being around the complainant in a semi-circle.

45. Mr Vasallo’s evidence was that he saw the accused put his arms around the body of the complainant, and lift the complainant off the ground. His evidence was that he ran to where the complainant was, as did Ms Sharpe. He described someone kicking the complainant while he was on the ground. The witness observed the complainant to be non-responsive and he observed blood to be coming from the back of his head. His evidence was that apart from the occasion described he did not see the complainant go to the ground and the accused did not go to the ground.

46. In cross-examination Mr Vasallo confirmed that he was a friend of the complainant and he knew the accused from his school-days. He accepted that he had consumed alcohol that night but considered that he “was aware” of what was occurring. His recollection was that he, the complainant, Ms Lawford and Mr Daver walked out to the front of the premises and that the accused was also out the front. In cross-examination Mr Vasallo said he had a recollection that at one point that night the complainant had removed his shirt but could not say when that occurred. In terms of his ability to observe the physical interaction between the complainant and the accused, he said that he was essentially parallel to where those two persons were but on the other side of the road.

47. In cross-examination he described that the complainant stepped in front of the accused, as he perceived it, to stop the accused. He confirmed that they were then facing each other when contact was made between them. He described what he termed “wrestling” between the two of them that started with pushing but could not say who initiated the pushing. He did not accept that the wrestling that occurred between the accused and the complainant resulted in them both going to the ground although seemed less than certain about that issue. He denied that the accused was moving towards Mr Daver to try and stop the Hawes’ brothers from getting to Mr Daver. His evidence in cross-examination was, “It was quite clear who he was going for, I mean everyone was after Tom at that stage.”

Mr Brendan Hawes’ evidence

48. Brendan Hawes gave evidence that he had a recollection that at some point he walked out the front of the premises and he could see people screaming, “Way up the street.” He said he could not make out who those people were. At some point, while out the front of the premises, Brendan Hawes gave evidence that he heard a high pitched scream and someone said, “They think Liam is dead.” He had no recollection of anyone being with him at that point and that his brother Luke had gone up the street; and that the other person who had remained in the backyard, followed Luke up the street. After that point the witness said he could not recall much due to his intoxication.

49. I permitted the Crown to cross-examine the witness under s 138 of the Evidence Act on the basis that he was unfavourable to the Crown Case. In that cross-examination by the Crown he denied that he was angry with Mr Daver that night because of allegations concerning his conduct towards his sister. He also claimed to have no memory of going up the street during the incident, and that he had essentially remained in the front yard of the premises. The witness claimed, in answer to the Crown, that he did not see anyone come back to the premises prior to him being picked up from them. He claimed to see nothing happen towards the top of the street, although he accepted that in his statement made on 19 April 2020 he had told the police that he had seen the police arrive up the street, however, claimed in the witness box to not remember that. His evidence was that his memory of the night was poor. In cross-examination by the accused’s counsel Brendan Hawes maintained that he had no recollection proceeding up the street with a group of people towards Mr Daver.

Mr Jeremy Hawes’ evidence

50. Jeremy Hawes gave evidence that that he did proceed out the front of the premises but that when he did, “everybody was up the road”. He said he started walking up the road and he saw a group of people ahead of him and he began to jog up the road. His evidence was that he heard screams. He said he had no recollection of Ms Lawford speaking with or grabbing him. Jeremy Hawes’ evidence was that when he got up the road he saw the complainant on the ground unconscious without a shirt on and Ms Lawford was screaming.

51. His evidence was that he saw the accused getting off the road and that he supported the accused as he appeared dazed. He said he waited there for a minute and then the police arrived. His evidence was that he saw the complainant and the accused on the ground within a metre of each other. He claimed that he could not recall if he asked the accused what had happened and acknowledged that he was a friend of the accused. He said in his evidence that he was concerned for the accused given what had happened but he was drunk and “like lots was going on”. He said he did not attempt to talk to the police when they arrived because he did not see what had happened. His evidence was that he saw the accused later in the night in the garage but could not remember if he had spoken with him.

52. In cross-examination by the Crown which I permitted under s 38 of the Evidence Act the witness said that he did not think that he had gone up the street to pursue Mr Daver. In cross-examination by the accused’s counsel, Jeremy Hawes claimed to have no recollection of any of his brothers moving up the street ahead of him. He said he had no recollection of his brothers being in the area where he saw the accused on the ground.

Mr Spencer’s evidence

53. Lachlan Spencer gave evidence that when he turned back around from glancing at the fence there was no sound around him and “the party went dead”. He then saw Mr Daver, the complainant and Ms Lawford and some other people walk through the side gate to the front of the premises. The witness said that he had no memory from that point in time until he was on the street about two houses along. His evidence was that on occasions he suffered from blackouts, and this was one such moment.

54. Mr Spencer’s evidence was that he then observed a commotion in two parts of the street; one at the top of the street and one in the middle. His evidence was that he walked to the commotion that was occurring in the middle of the street and Nathan Ward was present. His evidence was that he asked Nathan Ward what was going on and Mr Ward told him he was, “just there to stop everything”. Mr Spencer said that Mr Ward had told him to, “Just stay down here settle down”.

55. The witness said he proceeded to walk up the street and at one point he heard a slap which he considered was consistent with what you may hear when there is a slap or a push to a person who is wearing a singlet or is bare-chested. He described then speeding up and got to a group of people where he says he saw the complainant throw a punch at the accused and hit him in either the jaw or the eye. He said that the accused then, “tussled with” the complainant; they both then became “airborne” and fell onto the ground. At one point he said that from what he could see both the accused and the complainant had tripped over their own feet. His evidence was that the accused and the complainant had been facing each other; that there were plenty of people around them at that time. As at the point of the altercation he claimed to have been between the accused and the complainant.

56. His evidence was that he could not see Mr Daver whom he said had gone around the corner. Mr Spencer’s evidence was that he then saw the complainant laying on the ground and touching the back of his head where there was blood. According to his account he took off his shirt and put it behind the complainant’s head to stop the bleeding. He said he told Ms Lawford to call the police and that after Ms Lawford had got off the phone to the police she told him to, “Fuck off and go away.”; so he took his shirt from under the complainant’s head and walked back down to the premises where the party was held. He said he had seen the accused, who looked to be in a state of shock, and told him to go back down to the premises.

57. I granted the Crown leave under s 38 to cross-examine the witness, essentially about what he claimed to observe when he was on the street leading away from the premises. In that cross-examination he said he recalled seeing Jeremy and Brendan Hawes at some point on the street. He maintained he did not see Mr Daver at the time when he observed the accused and the complainant physically interacting. Mr Spencer claimed in his evidence that he did not speak to the accused back at the party premises after the incident with the complainant, about what had happened. He acknowledged in that regard that when he spoke to the police on 24 March of this year he at the relevant time had considered himself to be the accused’s “best mate”.

58. In cross-examination, on behalf of the accused, the witness recalled that he had seen, prior to the night of the incident, photographs sent to him by the accused showing an injury to his hand. Ultimately those photographs became exhibit 5 in the proceedings. He also gave evidence that he had seen both Jeremy and Brendan Hawes walking up the street; he had seen them at about the same time. He also gave evidence that he was about forty metres away from what he saw - or from what he saw was a physical interaction between the accused and the complainant.

Observations of Ms Moeininia

59. I will now just briefly refer to some observations of someone who did not attend the party. Sheida Moeininia, was at her family’s home at 23 Queensbury Street, Schofields, that street being one that intersects with Bellflower Avenue. In her evidence-in-chief she said that around midnight on 23 March 2019, she heard a few guys coming down the street from Bellflower Avenue towards Queensbury Street, and they were yelling and swearing. Her evidence-in-chief was that she looked out the window and she could recall that she had seen one young boy push another to the ground. She described hearing a loud noise at that point being the person’s head striking the ground. Her evidence was she called triple-0 and while on the phone to triple-0 she observed the male on the ground to be not moving, and other persons were calling his name and saying “Wake up, wake up.”

59. In cross-examination the witness agreed that she had said in the triple-0 call, “There’s just a few young boys at my door, they’re just fighting and bashing each other” and confirmed that that was what she was able to see.

Police evidence

61. I turn then to review the police evidence in the Crown Case. Senior Constable Davis of Riverstone Police said that at around 12.20am on 24 March 2019 he and another officer responded to a radio message concerning an incident in Queensbury Avenue, Schofields. His evidence was that upon his arrival on the scene he observed a number of young people in their early twenties who appeared to be intoxicated. He saw a male lying on the roadway whom he ultimately determined was the complainant. He considered that the complainant appeared to be concussed. He described the complainant as slurring his words, unsteady and appeared to be drifting in and out of consciousness. The officer observed that blood was coming from the back of the complainant’s hair, although he thought it was only minor.

62. In cross-examination he agreed that he had recorded in his notebook that the complainant was “well affected by intoxicating liquor” and explained in re-examination that this was based upon being able to smell liquor on him. The officer had no recollection of the complainant’s state of dress when he observed him. He recalled the complainant mumbling that he had just slipped and that he wanted to go home. The officer also gave evidence that he dealt with Ms Lawford at the scene and described her as being upset and emotional. Ms Lawford told the officer that the complainant had not simply slipped over. The officer recorded in his notebook that the complainant had told him no-one had hit him; that he had just slipped over and hit his head on the roadway. The officer agreed that at no time did Ms Lawford tell him that the accused had just tackled the complainant into the ground. The officer gave evidence that he asked generally the group of people at the scene whether there were any witnesses or people who wanted to give him their names and no-one came forward.

63. The officer-in-charge, Detective Kerry Perry gave evidence that she was first advised of the matter on 4 April 2019. She arrested the accused on 11 June 2019 in relation to the matter and he declined to take part in a record of interview.

64. In cross-examination the officer-in-charge confirmed that the accused has no prior criminal convictions.

Evidence called in the accused’s case

The accused’s evidence

65. I turn then to review the evidence called in the accused’s case. The accused gave evidence and called Nathan Ward an attendee at the party, and Ms McInnes, a character witness. The accused gave evidence of an injury suffered on 28 February 2019 to his left wrist. He described the injury that had occurred to his tendon and that he received some thirty stitches. The injury and the stitches can be seen in the photographs in exhibit 5. His evidence was that the stitches were removed on 13 March 2019.

66. In terms of his friendship with the Hawes’ brothers, the accused gave evidence that he was more friendly with Luke than with the other brothers and had gone to school with Luke. He said he knew of the complainant but did not consider him to be a friend. He knew of Mr Daver but did not consider him to be a friend and similarly in relation to Luke Vasallo. He said he had been friends with Mr Spencer since they had been in year nine.

67. The accused gave evidence that he arrived at the party premises at around 4pm. He said he took to the party a case of Tun beer which he intended was for his own consumption. He gave evidence that he commenced drinking slowly upon his arrival at the premises. He said in his evidence that he had consumed, by midnight, fifteen to eighteen cans of beer that he had brought to the party. He considered that he was intoxicated but not drunk. He described arriving with a bandaged sleeve covering his injured arm and wrist.

68. In terms of what I have referred to as “the fence incident”, the accused gave evidence-in-chief that he had been talking to a friend from school, Jordan Tucker, when he said he noticed, “A bit of commotion in the back of the yard”. He described in chief seeing a group of people who he thought were just being “loud and obnoxious”. He said that he, “turned a blind eye to it” and continued his conversation with Jordan Tucker. His evidence was that he did not see Tom Daver being held up against a fence.

69. When questioned in cross-examination about what he observed at that point to be a commotion the accused responded that all he had seen was a group of people standing in the one spot and that he had not heard any raised voices because the DJ, “was pretty loud”. The accused, in answer to a question from me, said he did not hear people being loud and obnoxious. The accused’s answers in cross-examination, and to me, about his observations of the initial incident are difficult to reconcile with the answers he gave in chief about it.

70. The accused gave evidence that he spoke with Jordan Tucker for a while and then realised that there was essentially no people left in the backyard. His recollection was that at that point there were about five people in the back of the premises. The accused said he then went out through the side gate to the front of the premises to see where everyone was.

71. The accused’s evidence was that as he was walking through the side gate he noticed a commotion up the street as he made his way to the front. He said he noticed a group of people up the street on the right who were yelling. He described that group of people being about four to five houses up the street and being spread out in the middle of the street. He was not able to say what words were being yelled but described the tone as being “aggressive”. The accused’s evidence was that he then began to jog up the street towards that group in what he said was an attempt to diffuse the situation. As he was going up the street, the accused gave evidence that he saw Isis Hawes, Mr Spencer, Mr Ward and Ms Sharpe. He described those persons as being the source of the commotion. His evidence was that Brendan Hawes was also part of the group. The accused said that as he moved towards the first group he saw another group further up the road who were walking backwards up the street, further away from the party premises. He identified those persons as being the complainant and Mr Daver. His recollection was at that point Ms Lawford was a little bit behind those two persons.

72. The accused described Mr Spencer and Mr Ward trying to stop Brendan Hawes from approaching the group which included the complainant. He said that at that point Brendan Hawes was next to him and that Mr Spencer and Mr Ward were attempting to calm Brendan Hawes down.

73. The accused’s evidence was at that point he spoke to Mr Spencer who told him something about Brendan Hawes’ sister and something that had occurred with Mr Daver. The accused’s recollection was that Brendan Hawes was directing his emotions towards Mr Daver. About that time, according to the accused’s account, Ms Sharpe grabbed him, was crying, and was pleading with everyone not to do anything. The accused said he told her that he just wanted to stop it, presumably the commotion, and that it had to be stopped. He described then having a conversation with Mr Spencer and at that point in time Brendan Hawes ran towards Mr Daver quite quickly. The accused said he tried to keep up with Brendan Hawes and was focussed upon trying to keep up with him to stop him from doing anything stupid because he was acting aggressively towards Mr Daver. He said that at that point he could see the complainant and Mr Daver ahead of him. He described the complainant as being “more in the middle of the road and Mr Daver in the gutter”.

74. The accused gave evidence that Mr Daver began to run off and that he, the accused, kept in line with Brendan Hawes as he ran after him, and as he was following Brendan Hawes his evidence was that the complainant stepped out in front of him, by which he meant that the complainant had moved into his path. His evidence was that the complainant was facing towards him and as he did so said that they made front-on contact. The accused’s evidence was that he tried to stop the complainant’s fall and remembered the slapping sound of his hands on the complainant’s chest whom he said was not wearing a shirt. According to the accused’s evidence, he tried to grab the complainant to stop his fall but was unable to do so because the complainant had no shirt on. His evidence was that at that stage he had no intention of running into the complainant.

75. The accused gave evidence that as a consequence of the impact with the complainant his injured hand was bent back and that was extremely painful. He described the complainant falling back onto his hands and his “bum” touched the ground and he said that the complainant got straight back up off the ground. The accused confirmed in evidence that despite his hand being extremely painful because of the impact with the complainant, he still tried to stop the complainant from falling by grabbing him.

76. The accused’s account was that the complainant then stood back up and that he, the accused, was holding his hand between his legs. According to the accused, when the complainant stood back up he punched the accused with a closed fist to the face at least once which landed on his right cheek. The accused said that when it felt like the complainant was going to hit him again he grabbed the complainant to try and stop him from doing so. The accused said that he put his hands around the complainant and that they “sort of wrestled” but could not get a grip on each other.

77. His account was that did not last long and they both ended up losing their footing and they both fell over. The accused described his left shoulder hitting the road but had no memory of the altercation with the complainant from that point in time. The accused said in evidence that, “My only defence was to try and grab him and put my hands around him.” The accused said his next memory was, “Coming to” on the grass on the right side of the road and lying there in pain. His evidence was that he saw about five people in a group in the middle of the road and that he tried to get to that group when Mr Spencer stopped him saying that the complainant was hurt and that he had to go home. The accused said he did not leave that area until the police arrived and left then because he felt his presence was making things worse and he did not know what he had done.

78. The accused gave evidence that he then went back to the premises and sat in the garage out the front and did not look up the street again. He said he did not know what had happened until the following morning when he had sobered up and put the pieces together.

79. In cross-examination the accused said he had no memory of saying anything to the complainant during the whole of the physical interaction between the two of them. He also, in cross-examination, said he could not remember what made him feel the complainant was going to hit him a second time. He also said in cross-examination that he could not remember if he tried to walk away from the complainant at that point but had a memory that he did not move towards the complainant and simply stood where he was.

80. In cross-examination the accused said he had no memory of what part of the complainant’s body he had grabbed when they, according to his evidence, wrestled although he said he had a recollection of being grabbed around the shoulders. He had no recollection as to whether he and the complainant fell in the same direction or not. The accused said that while he received some grazes on his body he had no head injuries. In cross-examination the accused said that at the time that police arrived he wanted to help; but he did not know what had occurred and did what Mr Spencer told him to do which was to go back to the premises and he was scared. When pressed in cross-examination he could not explain at that point in time why he was scared.

81. In cross-examination the accused said he could not remember any persons who came back to the premises after the incident and had no memory of having any conversations with people back at the house about what had happened. He agreed that at that point he did not know what had happened up the street and was concerned to find out what had occurred. He had no memory, he said, of asking anyone back at the house about what had occurred. The accused, in cross-examination, denied at any point putting his arms around the complainant and lifting him up and throwing or spearing him into the ground.

Mr Ward’s evidence

82. Nathan Ward, another attendee at the party, was called in the accused’s case. He described his relationship with the accused as being like that of a brother. His evidence was that he arrived at the premises around 5pm and had consumed, “A fair amount but not like too much alcohol”. In cross‑examination he said he had consumed half a case of beer but was “not overly intoxicated but slightly getting there”.

83. In terms of what I have referred to as the “fence incident” which occurred around midnight, Mr Ward said he remembered an incident near the fence at the back of the property; and that he walked to there and saw Mr Daver against a fence. He was uncertain as to who was there but was “pretty sure” it was Brendan Hawes and another of the Hawes’ brothers. He described in his evidence-in-chief the complainant pulling Mr Daver away from that group. The witness said he had no recollection of seeing the accused in the back of the premises.

84. In cross-examination the witness said that he was with the complainant when he pulled Mr Daver away from the fence at the back. Mr Ward’s evidence was that Mr Daver and the complainant moved out the side gate to the front of the premises and essentially the whole party followed them. He recalled that Mr Daver and the complainant had moved up the street and started yelling back at the other group and the other group proceeded to move towards Mr Daver and the complainant. He said he had little specific recollection of who was out the front but recalled Jeremy and Brendan Hawes being there.

85. Mr Ward described Ms Lawford, the complaint and Mr Daver moving backwards up the street and a group of people out the front of the premises, according to his evidence, began to move up the street towards those three. His evidence was that he too moved up the street in the same direction. He described an exchange of words between the two groups and said that the situation became, “A little bit heated” and that he observed the complainant to take his shirt off and that he could see the complainant’s skin.

86. In chief, he described his position and that of the rest of the party as, “We were just like yeah moving as a group”. Although he said he could not recall where everyone was, his evidence was that Isis Hawes and Brendan Hawes were part of the group. In cross-examination he referred to that group as “our group”. His evidence was that he, the accused, Luke Hawes and Ms Lawford were all trying to diffuse the situation.

87. Mr Ward’s evidence was that he remembered someone started chasing after the complainant and Mr Daver and then the rest of the group ran up the street as well. He said he recalled the complainant and Mr Daver running to the top of the street. He described the complainant stopping and stepping in front of Mr Daver. He then described someone moving up towards Mr Daver and said that the complainant stepped quickly in front of Mr Daver in what the witness perceived as a protective measure. In terms of who the person was who was moving towards Mr Daver the witness said, “I’m pretty sure it was Darren moving up to Liam” being a reference to both the accused and the complainant.

88. In cross-examination when asked whether he had some doubt in his mind as to whether it was the accused who the complainant stepped in front of said, “There is because it was obviously so many things happened”. He also said in cross-examination that he had no recollection of anyone else moving up towards Mr Daver at that point. Mr Ward went on to say that the accused then stepped in front of the complainant and it looked like to him the complainant pushed the accused; although he said he was not sure as he did not see exactly what occurred because the accused was blocking his view. His evidence was that he saw the accused step back; stumble back a little bit. The witness then described the accused grabbing the complainant in a bear hug and that they both fell to the ground; that they appeared to just fall over. He said he could not remember how they came to hit the ground.

89. In cross-examination he confirmed that a bear hug had been used on the complainant. He said he did not see the accused get off the ground because he had already run off towards Mr Daver. Mr Ward said he then ran in the direction of Mr Daver and was “pretty sure” Brendan and Jeremy Hawes were with Mr Daver at that point. Mr Ward, in cross-examination, said he did not make any attempt to speak with the police because he, “Didn’t feel like I needed to say anything”, this despite the fact that he was, on his evidence, an eye-witness to the altercation between the accused and the complainant.

90. When approached this year by the officer-in-charge to make a statement he declined to do so as he “Didn’t want to mess up” his statement. His evidence was that back at the premises after the incident he asked the accused what had happened but he could not recall what the accused had said to him about it. When pressed he claimed to have some recollection that the accused said, “It was all a misunderstanding really”. His evidence was that he asked the accused about the incident “here and there” but it was not something he really wanted to recall.

Ms Barbra McIness’ evidence

91. Barbara McIness, the mother of Nathan Ward, was called as a character witness in the accused’s case. Her evidence was that she had known the accused for in excess of ten years; he having gone to school with her son Nathan - Nathan Ward. Her evidence was that the accused had stayed at her home on a number of occasions; the longest period being eight or nine months. Her description of the accused was that he is normally quiet, very pleasant and well-mannered. Ms McIness said she had never seen the accused act aggressively but she has seen him consume alcohol on a number of occasions and not seen the accused be aggressive and described him as “A good kid”. Her evidence was not challenged by the Crown.

Legal directions

92. Turning then to the legal directions that I am to give myself. This being a trial by Judge Alone I am required in this Judgment to include the principles of law that I have applied and the findings of fact on which I have relied. See s 133 of the Criminal Procedure Act. There must be exposed in my Judgment the reasoning process linking those principles of law to the verdicts that are ultimately reached.

93. The most important principle of law to be applied in any criminal trial is that the onus of proof is on the Crown and proof is required beyond reasonable doubt. The words “reasonable doubt” are ordinary English words and should be given their ordinary meaning. Suspicion, no matter how grave, is no substitute for proof beyond reasonable doubt. I have also given myself an inference direction in that care must be exercised in drawing an inference or conclusion against an accused from evidence I accept consistent with the onus of proof that lies with the Crown.

94. The elements of the offence that the Crown must prove are as follows:

1. That on 24 March 2019 at Schofields the accused wounded Liam Barr, and,

2. Was reckless as to causing Liam Barr actual bodily harm.

95. A wound requires proof that there has been a breaking or cutting of the interior layer of the skin called the dermis; a breaking or cutting of the outer layer of the skin called the epidermis is not sufficient to constitute a wound. There is no issue here that the complainant suffered a wound to his head when he hit the ground. The Crown must prove beyond reasonable doubt that at the time of the wounding the accused realised that actual bodily harm may possibly be caused to the complainant. Actual bodily harm includes any harm or injury calculated to interfere with the health or comfort of a person but need not be permanent but must be more than transient or trifling.

95. On the evidence here, an issue of self-defence does arise in my view. Self-defence is dealt with in sections 418 and 419 of the Crimes Act. It is for the Crown to eliminate self-defence as an issue by proving beyond reasonable doubt that the accused’s acts were not done in self-defence. The Crown may do this by proving, beyond reasonable doubt, either:

1. That the accused did not believe at the time of his actions that it was necessary to do what he did in order to defend himself, or,

2. The accused’s actions were not a reasonable response in the circumstances as he perceived them to be.

97. In considering whether the accused believed that his conduct was necessary for self-defence, it is necessary to consider the circumstances as the accused perceived them to be. The issue should not be considered with the benefit of hindsight but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself in. The accused’s self-induced intoxication is to be considered in determining whether the accused believed that his actions were necessary in order to defend himself. Self-induced intoxication is not to be considered in assessing whether the accused’s response to those circumstances was reasonable. See R v Katarzynski [2002] NSWSC 613.

98. The fact that the accused has given evidence in the trial does not alter the burden of proof which rests at all times on the Crown. He does not have to prove that his version of events is true. Even if all of the accused’s evidence is rejected I must still consider whether or not the Crown has proved the elements of the offence beyond reasonable doubt.

99. The accused is a person of good character and I have given myself a direction in accordance with both limbs of the good character direction. The fact the accused is a person of good character is relevant to a consideration of whether he is likely to have committed the offence alleged against him. It is also relevant in my assessment of the truthfulness and reliability of the evidence he has given in the trial.

100. There were some, on the face of it, relevant witnesses who were not called in the Crown Case. In particular the person referred to as “Isis Hawes” and “Luke Hawes”. I have given myself a direction in accordance with what the High Court said in Mahmood v R (2008) 232 CLR 397; [2008] HCA 1 that the tribunal of fact may have regard to the absence of relevant witnesses in determining whether or not the Crown has proved its case beyond reasonable doubt.

101. Given the conflicting versions about what happened at the party, and in particular from the point in time when Mr Daver and the complainant have moved to the front of the premises, it is important that I record my assessment of each of the witnesses called in the Crown Case who attended the party. In doing so I have had regard to the fact that all had consumed alcohol to varying degrees that night; that the events that occurred were unexpected and fast moving; that the events occurred in the middle of the night on a suburban street; and that in such circumstances it is likely that persons present will have focussed on different aspects of the events as they unfolded.

Assessment of the witnesses in the Crown case

102. Dealing then with my assessment of each of the witnesses who attended the party and were called in the Crown Case.

Assessment of the complainant

103. The complainant gave a reasonably straight-forward account of his recollection of the events of that night. On all the evidence he was not someone acting in an aggressive manner that evening; in that he was the person trying to remove Mr Daver from the fence incident and was trying to leave the party along with Mr Daver, Ms Lawford and Mr Vasallo. In assessing the reliability of his evidence I have had regard to the fact that he had clearly been drinking and he suffered a significant head injury and was clearly concussed as a consequence of the incident. Those matters are likely to have adversely affected his ability to give a reliable account of what occurred that evening.

Assessment of Ms Lawford

104. I also found Ms Lawford to be a reasonably straightforward witness in the giving of her account of the evening. I note she, too, was someone trying to leave the party with the complainant and Mr Daver. I have had regard to the fact that she had been drinking that evening; was the partner of the complainant and was very emotional immediately after the incident on the street. I have had some regard to what I noted earlier; she had said in the triple-0 call about not knowing what had happened but that must be seen in the context, as I referred to earlier, of attending to a number of different things as at the time of the call.

Assessment of Mr Daver

105. I found Mr Daver to be a witness who had a tendency to say things he believed rather than what he could specifically recollect. I have had regard to the fact that he, too, had been drinking and had been dealing with a number of people acting aggressively towards him, at least from the time of the fence incident. Those matters are likely to have impacted upon his ability to make accurate observations about what occurred to the complainant on the street.

Assessment of Ms Sharpe

106. In relation to Ms Sharpe’s evidence. In relation to the change in her evidence as to whether the accused and the complainant were facing each other at the time of the physical altercation between them; the change in her evidence both in the provision of a recent police statement and how she gave her evidence at the trial, has caused me to have some reservations about relying on her evidence on that particular issue to any significant degree. Her evidence that the focus of the group of people who came up the street appeared to be the complainant, and not Mr Daver, is also at odds with nearly all other witnesses.

Assessment of Mr Vasallo

107. I found Mr Vasallo to be a straightforward witness and doing his best to recall what he could of a difficult and fluid evening. I have had regard to the fact he, too, had consumed alcohol and was a friend of the complainant but overall I consider him to be an acceptable witness and I have placed some considerable reliance on his account in coming to my verdict.

Assessment of Mr Brendan Hawes

108. Brendan Hawes I found to be an unsatisfactory witness and do not propose to place any reliance on the evidence he gave. He gave evidence he was highly intoxicated throughout the evening and claimed to have a limited recollection of it. His evidence about what he did when he moved to the front of the premises is at odds with nearly every other witness called in the trial; it does not sit easily with the evidence that he was one of the persons who had Mr Daver up against the back fence of the premises around midnight. Clearly he was angry and annoyed with what he perceived was conduct by Mr Daver.

Assessment of Mr Jeremy Hawes

109. Similarly, I do not find Jeremy Hawes to be a satisfactory witness. He was vague about who he was with when he and his brother confronted Mr Daver near the back fence of the premises. He, too, said he had been drunk and that there had been “lots going on” when pressed on his recollections. Even on his own account he did not see the physical altercation between the complainant and the accused. Although a friend of the accused, and claiming to have supported the accused because he appeared to be dazed from the altercation, he claimed that he could not recall if he asked the accused what had happened. Common sense suggests that is unlikely to be truthful evidence. At one point in his evidence he suggested he had no recollection of seeing any of his brothers moving ahead of him up the street which does not sit with the observations of many other witnesses called in the trial. It also does not sit well with the overall thrust of the evidence that essentially, apart from Luke Hawes, the remainder of the Hawes’ family were expressing anger towards Mr Daver. I do not consider he is a witness upon whom I can place significant reliance.

Assessment of Mr Spencer

110. Lachlan Spencer is not a witness upon whom I propose to place any real reliance at all. I set out earlier his evidence as to how much alcohol he had consumed during the party; it was an extraordinary amount. After the incident he says he consumed further alcohol and cannabis. He also gave evidence of being someone who suffers from blackouts and had suffered from one for part of that evening. Those circumstances alone mean that I should be careful about placing any significant reliance upon his account of the incident. He too claimed that despite considering himself to be the best mate of the accused he did not speak with the accused back at the premises after what had happened. It is impossible to accept that as truthful evidence.

Assessment of the witnesses called in the accused’s case

Assessment of the accused

111. Turning then to my assessment of the evidence called in the accused’s case. The accused was also intoxicated that night on his own evidence. I am satisfied that he was not directly involved in the fence incident. I found the change in his evidence about why he thought that there was a commotion occurring in the rear of the premises difficult to understand. His evidence about precisely how the physical interaction occurred between himself and the complainant, especially when he was pressed in cross-examination, was particularly vague and uncertain. He claimed essentially that on the night he had no recollection of what occurred once, on his evidence, he had fallen to the ground. On his own account he suffered no injury to his head in the incident and it is impossible to accept his evidence that he had no recollection of what had occurred in the period immediately after the interaction between him and the complainant. It is also impossible to accept that he had no memory of anyone asking him back at the premises what had occurred up the street or of any conversation about it. This was a circumstance where, on any view of the evidence, he had a physical altercation with a person he knew from his school days at a 21st party and that person had been taken to hospital and the police called to the scene. To suggest that he had no memory of speaking to anyone about what had occurred, and explaining his then recollection, is impossible to accept and those aspects of the accused’s evidence have caused me to not fully accept the account he gave of it.

Assessment of Mr Ward

112. In terms of my assessment of the evidence of Nathan Ward, I note he, too, was affected by alcohol and considered the accused to be like a brother. His description of what he saw, in terms of the interaction between the accused and the complainant, was not clear and certain. I referred earlier to the doubts that he expressed as to whether it was in fact the accused who the complainant stepped in front of. He was uncertain as to whether the complainant had in fact pushed the accused because his view was obscured. He could not describe how, on his account, that the accused and the complainant both fell to the ground and said that they just appeared to fall over. It is difficult to understand why he did not speak with the police when he claimed to have seen at least in part what had occurred. I did not find his evidence about speaking with the accused after the event at all satisfactory or plausible. I do not consider that he is a witness upon whose account I can place a great deal of weight. I of course accept the character evidence that was called from Ms McIness.

Findings

113. Having reviewed the evidence, and indicated my assessment of the witnesses I have heard from, the findings I make are as follows:

114. I am satisfied that the complainant and Mr Daver, as they moved up the street and away from the party premises were moving backwards and facing the other group of people who had come up from the party. Ms Lawford and Mr Vasallo were near them.

115. I am satisfied that the complainant, Mr Daver and Ms Lawford, were yelling obscenities to the group that was on the street, and that group was also yelling obscenities back.

116. The complainant, Mr Daver and Ms Lawford, however, both through their moving away, and from what they were saying, were indicating they were leaving the party.

117. A group of people on the street were clearly very upset and angry with Mr Daver and were pursuing him. The complainant, consistent with his conduct during the fence incident, sought to be protective of Mr Daver.

118. The accused at some point has moved quickly to the area where the complainant and Mr Daver were. Other people were in the immediate vicinity including Brendan and Jeremy Hawes.

119. The complainant has stepped into the path of the accused, as the accused moved towards him and in the direction of Mr Daver, and told the accused that he and Mr Daver were leaving, and to effectively, let him and Mr Daver leave. The accused has come within a close distance of the complainant and the complainant has pushed out at the accused striking him in the chest area. The accused has then placed the complainant in a front-on bear-hug or tackle, lifted him into the air and speared him head-first into the roadway. The complainant was then for some little time, unconscious and the accused left that area.

120. I am not able to find that the accused placed the bear-hug on the complainant from behind, despite the evidence of the complainant and Ms Lawford to that effect; both of whom I thought were acceptable witnesses. The evidence of Mr Vasallo, and the way in which Ms Sharpe changed her evidence on the issue of whether the accused and the complainant were face-to-face; together with the evidence of the accused and Mr Ward, and the general thrust of the evidence that the complainant was leaving the party by walking backwards, in my opinion means that it is not open to find that the bear-hug was placed on the complainant from behind.

121. I am however satisfied, when I have regard to all of the evidence, that the accused did place the complainant in a bear-hug or tackle and effectively picked him up and speared him into the ground.

122. Self-defence is, as I say, clearly raised as an issue on the evidence given the evidence of the accused, and my finding that the complainant pushed out at the accused. Given the young age of the accused; his consumption of alcohol that evening; the chaotic and tense circumstances on the roadway that night, I am not satisfied beyond reasonable doubt, that the accused did not believe at the time of his actions, that it was necessary to do what he did in order to defend himself.

123. However, I am satisfied beyond reasonable doubt that what the accused did by placing a bear-hug, or tackle, on the complainant, lifting him up and spearing him head-first into the ground, were actions that were not a reasonable response in the circumstances as he perceived them to be.

124. I have disregarded the effects of alcohol on the accused in coming to that conclusion. In circumstances where the complainant was clearly leaving the party, and in retreat, and no threat to the accused; the accused moved quickly towards him and came close to him. On my findings the complainant pushed the accused to the chest, and the reactions of the accused to that conduct by the complainant was, in my opinion, not a reasonable response to the circumstances that he was presented with at that time.

Decision

125. For those reasons I am satisfied that the Crown has negatived self‑defence beyond reasonable doubt. There is no doubt in my mind that the accused, at the time he lifted the complainant up, and speared him into the ground, realised that actual bodily harm may possibly be caused to the complainant.

126. For those reasons I find the offence proved beyond reasonable doubt. I therefore enter a verdict of guilty noting the basis of it being acting in excessive self-defence.

Orders

1. The accused is found guilty.

**********

Decision last updated: 24 February 2021