R v Nisbet - [2009] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v NISBET
[2009] SADC 45
Reasons of His Honour Judge Chivell
17 April 2009
CRIMINAL LAW
Accused and another pleaded guilty to one count of aggravated causing harm with intent to cause harm - victim subjected to severe beating by large group of people - whether victim was the aggressor at commencement of incident - extent of accused's participation in the beating.
Held: victim not the aggressor - accused's participation greater than he asserts.
Criminal Law Consolidation Act, 1935 s24(1), referred to.
R v Anderson (1993) 177 CLR 520, applied.

R v NISBET
[2009] SADC 45
Introduction

Ricky Lee Nisbet has pleaded guilty to aggravated causing harm with intent to cause harm (Criminal Law Consolidation Act, s24(1)). The events giving rise to the charge occurred on 24 February 2008 outside the Smithfield Hotel at Smithfield. There is a dispute between the prosecution and the defence as to whether the victim of the offence was the aggressor at the commencement of the incident, and as to the extent of the accused’s participation in the beating. As both issues amount to circumstances of aggravation, the onus is on the prosecution to prove the truth of those allegations beyond reasonable doubt (R v Anderson (1993) 177 CLR 520 at 536).
The victim, Zoran Glavach, attended at the hotel to see a friend. In his statement, dated 17 May 2008, he said he arrived at around 8.20pm, and went into the front bar. He said he remained there for only a minute or so, and then he and his friend, Mark, walked out into the car park.
Glavach left the hotel, there was a confrontation with Andrew Matthews, a friend of Nisbet’s. This culminated in Glavach punching Matthews once to the head, causing him to fall to the ground.
Following that incident, Glavach was pursued by a group of young males into Anderson Walk (the hotel is situated on the corner of that road and Main North Road), and subjected to a very severe beating. He was taken to the ground and then kicked, punched and stomped on for a substantial period of time. A video recording of the incident taken by a witness through his motel room window captured the latter parts of the incident in sickening detail.
Nisbet and the co‑accused, Shane Edward Thatcher, both admit participating in the beating.
There is, however, a dispute about the circumstances surrounding the initial confrontation between Glavach and Matthews, which Nisbet says is the reason why he became involved in the beating of Glavach.
The Prosecution Version
The Director of Public Prosecutions takes the position that I should accept the version of events described by Glavach in his statements. Briefly, Glavach’s version is that as he was leaving the hotel, he heard someone shout “Oi” several times. He and Mark turned as two males approached them. One said “Do you wanna fight?”. He said “No”, but the male pushed him, and Glavach pushed him back. This happened several times. A third male then approached them and supported the other two. Glavach said:
I then said to the male who was pushing me, “You’re fucked for this”. He then said to me, “I may as well shank you then”. At this point, the male made a motion with his right hand, as if reaching down into his pocket. The first thought that came into my mind was that he was going to stab me. I was very panicked and scared that he was going to stab me with something. So out of reaction, I punched him as quick and as hard as I could. I punched him with my right closed fist to his left cheek.
I knew that there were a lot of people standing around watching, so as soon as I hit him, I turned around to face the hotel, with my back towards Anderson Walk, so I didn’t initially see what happened to the male I punched.
I started moving backwards and once I got onto the road, I saw that the male that I had punched was lying on the ground. He appeared to be unconscious and there was a small pool of blood next to his head. This freaked me out and I yelled out “See what you made me do”.
The next thing I can recall is a male in a white t‑shirt running towards me. I had backed onto the opposite side of Anderson Walk by this stage and we had a bit of a tussle and I think I put him down in the gutter. He got up and started to run away towards the oval. I followed him for a short time, but then stopped. When I turned around, I had been surrounded. There were about seven to eight people standing in a semi‑circle around me. They were all standing within about two metres of me.
I then recall having my head held forward and someone kneeing me in the middle of the face. I remember thinking to myself that it didn’t hurt that much, but then I don’t recall anything after that.
(Addendum statement, 17 May 2008, p2-3)
Neither Glavach, nor Mark, gave evidence at the hearing. Ms Costi, counsel for the Director of Public Prosecutions, said that Glavach “feels unable to come to court to give evidence”, and that there are a number of “personal circumstances that have caused a great deal of stress in his life”. That is the only information I have about Glavach. There is no explanation as to why Mark was not called.
The Accused Version
Nisbet gave evidence on oath that at the relevant time he was standing outside the hotel with Matthews and others. He saw Glavach go into the hotel, and come out again. He said he saw Glavach and Matthews arguing, and then Glavach punched Matthews in the face. He denied that there was anyone with Matthews, or that there was any pushing beforehand (T40).
Nisbet said he went over to where Matthews was lying on the ground. He said he was unconscious, and had facial injuries. He turned him over. He said he thought Glavach had killed him (T42). This was a rather histrionic exaggeration in view of the fact that he said he and Kacie Stewart simply “picked him up” and, holding his arms, helped him to walk away from the scene to a spot where Kacie wiped his face with wet tissues she fetched from the hotel.
Nisbet said he then saw “everyone having a fight with this guy” (T43). In my opinion, “fight” is a very misleading description of what happened. Glavach was on the ground and a large number of young men and women were punching, kicking and stomping on him.
In any event, Nisbet said because he was angry at Glavach hitting Matthews, he joined in the “fight” and hit him once and kicked him once. As to how many times he did this, he was asked “Are you sure?” and replied “Yeah” (T44).
This is plainly untrue. In his interview with police on 10 April 2008, in the presence of his mother, Nisbet said:
Q.    And did you hit anybody?
A.    Yeah I reckon, oh yeah.
Q.    You kick him?
A.    Yeah probably like twice I reckon.
(Transcript, p8)
And later:
A. I hit him a couple of times, I admit it. He knocked out my best mate.
(Transcript, p13)
A view of the video taken by Mr Peter Carey (Exhibit P1) plainly demonstrates that Nisbet hit and kicked Glavach more than once, although it is not possible to be precise as to how many times. On the basis of Nisbet’s admissions, he punched and kicked him at least twice. I am satisfied beyond reasonable doubt about that.
A number of Nisbet’s friends also gave evidence about the night’s events.
Matthews said he was standing outside the hotel when Glavach walked past and challenged him with “What are you looking at?” and he replied “What’s your problem?”. An argument developed, he said, and then Glavach hit him and he fell to the ground. He denied there was any pushing and shoving before the hit. He denied he did anything to provoke the attack, apart from stare at Glavach. He admitted he was drunk, but not “paro” (T60).
Stewart, a former girlfriend of Matthews, gave similar evidence to his about what happened. Indeed, her memory of the dialogue was exactly the same:
... he said ‘What are you looking at?’ and Andrew said ‘What’s your problem?’ and he hit him.
(T69)
I had the strong impression that there had been some mutual reconstruction of these events. Both Matthews and Stewart kept their evidence simple and vague, except for that piece of dialogue. I was not convinced of the veracity of their evidence.
Hayden Goodfellow was standing in the car park about a yard away when he said he saw Glavach hit Matthews (T75). He later said they were more like 20 metres away (T76). He could not hear what was said, nor did he see any pushing and shoving beforehand (T82). He contradicted Nisbet by saying it was “Hayley and Kacie” who helped Matthews to the side of the hotel, not Nisbet and Kacie (T78). He said that after Glavach hit Matthews, he then became aggressive towards the whole group and started swinging his fists towards them. He said someone then hit and tripped him over and then “everyone started hitting him” (T79). Goodfellow was the only one who referred to Glavach becoming aggressive towards the “whole group”. It is bizarre to suggest that he would attack a group of 14 or 15 people in that way.
The Independent Witness
The only independent witness to these events was Mr Carey. He is a private investigator who was staying at the hotel conducting an investigation into someone living in the area. He said that at about 8.30pm, he heard a commotion outside. He got out of bed and looked through the window of his room into the car park. He said he saw two males pushing and shoving each other, then a couple of others joined them “so there was three or four onto this one chap” (T12). This “chap” was clearly Glavach.
Mr Carey said that Glavach was “mainly defensive” and was being pushed by the “other bloke” (who clearly was Matthews), and then by the two others who joined them. He said:
He [Zoran Glavach] was a bit bigger than the other chaps and [there was] a lot of screaming and shouting and pushing and I think he’d had enough, and I did see him hit the first aggressor [Andrew Matthews] in the face and that chap fell out of my view ...
(T12)
Mr Carey continued:
Well, after that fellow fell down, the blond‑haired chap tried to get back to his car, which was in the car park. I noticed him open it electronically, with the electronic key, and about - then a mob of people came from behind the hotel, I don’t know, there must be a gaming room around there, I never looked and from the bar area, and the others that were in that little initial brawl started surrounding this chap. So he locked his car and ran up the street that the motel was on, which I’m not - it might have been Andrews, or something. He was heading into oncoming traffic, it was a dual carriageway and they were chasing him up this street and one of them managed to get him and push him in the back and I saw him sliding up the road, and then the whole of these people, maybe 14 to 15 of them, including women, started laying into him and by that I mean kicking, punching and stomping on his head, and it was about that time that I’d seen enough and I got my camera, which was next to my bed and turned it on, because it was ready to go because I’d been using it during that day and I started filming through the motel window ...
(T12 - T13)
Mr Carey said he observed everything except for about 30 seconds while he picked up his camera and turned it on. The video I have already referred to (Exhibit P1) records what happened from that point.
The video records some conversation which occurred after the events, particularly involving Matthews. It is not clear that Nisbet was present, nor that, even if I assume there was a joint criminal enterprise to assault Glavach, any of the alleged participants were present either. I therefore ignore that part of the evidence. I overruled an objection made by Ms McCrohan at the time, but, in retrospect, her objection was well‑founded.
Mr Carey was cross-examined at length. Nothing which gave me any cause to doubt his evidence was elicited. I found him a very convincing witness, a totally independent and disinterested observer. I accept his evidence beyond reasonable doubt, and reject the evidence of Nisbet and his friends to the contrary. Their evidence, when viewed as a whole, was unsatisfactory, contradictory, partial and self‑serving. I have already cited one example of where I found Nisbet’s evidence unsatisfactory. The evidence of his friends gave me no cause to change that view about the rest of his evidence.
Obviously, the unsworn evidence of Glavach in his statements to the police, untested by cross-examination as they are, could not satisfy me beyond reasonable doubt in the face of Nisbet’s denials. However, to the extent that Glavach’s statement is supported by the evidence of Mr Carey and the video, then I find it proved beyond reasonable doubt. In short, I am satisfied beyond reasonable doubt that:
·as Zoran Glavach was leaving the hotel, a confrontation developed between him and Andrew Matthews. Andrew Matthews was drunk and was the aggressor. There was some pushing and shoving between them. Two other males then joined them to support Andrew Matthews;
·Zoran Glavach punched Andrew Matthews in self‑defence. I am not satisfied that Andrew Matthews threatened to stab Zoran Glavach before this, or made a move as if to get something from his pocket, as alleged by Zoran Glavach in his addendum statement;
·Zoran Glavach then retreated towards Anderson Walk. I reject the allegation that he approached the crowd aggressively, swinging his fists;
·Zoran Glavach was then surrounded by a large crowd on Anderson Walk, and subjected to a severe beating;
·many of the people in the crowd were involved in the beating. Ricky Nisbet was not in the crowd for the whole time, but while he was there, he punched and kicked Zoran Glavach, who was then lying on the ground, at least twice; and
·the photographs tendered (marked ZG-1) demonstrate the extensive cuts, abrasions, and bruising to most parts of his body suffered by Zoran Glavach. He also suffered a fractured rib in the beating.
I will now hear submissions from counsel on the basis of the facts I have found proved beyond reasonable doubt.