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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nisbet

Details

AGLC: R v Nisbet [2009] SADC 45
Case: [2009] SADC 45
Decision Date: 17 April 2009

CaseChat Overview and Summary

In this case, Ricky Lee Nisbet was charged with aggravated causing harm with intent to cause harm, following an incident where Zoran Glavach was severely beaten by a large group of people outside the Smithfield Hotel. The central issue for the court was to determine whether Glavach was the aggressor at the beginning of the incident and to what extent Nisbet participated in the beating. The prosecution had the burden to prove these allegations beyond reasonable doubt. The court found that Glavach was not the aggressor and Nisbet’s participation in the assault was more significant than he admitted. The case hinged on the testimonies of the parties involved, as well as an independent witness, Mr. Carey, whose video recording of the incident corroborated Glavach’s account.

The court considered the evidence provided by Nisbet and his friends, which was deemed unsatisfactory, contradictory, partial, and self-serving. The court found Nisbet's testimony particularly unreliable, noting that he had previously admitted to hitting and kicking Glavach more than he claimed during the disputed facts hearing. The court placed significant weight on the independent evidence provided by Mr. Carey, who observed the incident from his motel room and recorded it on video. The court found Mr. Carey to be a credible and disinterested witness, whose account was consistent with Glavach's statements and the video evidence. Consequently, the court rejected the accounts of Nisbet and his friends, finding that they had reconstructed the events in a way that was not credible.

The court concluded that Andrew Matthews was the initial aggressor, having been drunk and provoked Glavach. Glavach punched Matthews in self-defence and then retreated. However, he was subsequently surrounded and severely beaten by a large crowd, with Nisbet participating by punching and kicking Glavach at least twice while he was on the ground. The injuries sustained by Glavach, as evidenced by photographs tendered in court, were extensive and included a fractured rib.

The court's findings were based on the principle that the prosecution must prove the circumstances of aggravation beyond reasonable doubt. Given the evidence presented, the court was satisfied that Glavach was not the initial aggressor, and Nisbet’s involvement in the assault was more significant than he admitted. These findings are critical as they impact the sentencing considerations for Nisbet, who pleaded guilty to the charge.

Orders