R v Riley - [2004] SASC 414

Supreme Court of South Australia
(Criminal: Application)
R v RILEY
Reasons for Ruling of The Honourable Justice Perry (ex tempore)
7 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE - GENERALLY
The applicant sought leave to appeal against his conviction after a trial by judge alone in the District Court on a charge of assault occasioning actual bodily harm - it was common ground that the applicant felled the victim after throwing a punch at him in the early hours of the morning, following an altercation in a hotel - the applicant contended that the conviction was arguably unsound in that, notwithstanding the rejection by the trial judge of the applicant's credit, there was simply no evidence one way or the other as to whether or not he had acted in self-defence - held that the trial judge was entitled to come to the conclusion that on the whole of the evidence, the prosecution had excluded the possibility that the applicant had acted in self-defence, beyond reasonable doubt - his reasons did not disclose arguably appealable error - application for leave to appeal dismissed.

R v RILEY
[2004] SASC 414
Criminal

PERRY J. (ex tempore) In this matter the applicant, Paul Kevin Riley, seeks leave to appeal against his conviction after a trial by judge alone in the District Court, on a charge of assault occasioning actual bodily harm.
In his notice of appeal the applicant originally sought leave to appeal against sentence, but on the hearing before me he abandoned that part of the application.
At the outset of the hearing of the application, I allowed Mr Abbott QC, who appeared for the applicant, to substitute amended grounds for those originally pleaded. The hearing was then confined to the amended grounds.
The applicant was jointly charged with Nathan Crack on two counts: causing grievous bodily harm with intent to do grievous bodily harm and assault occasioning actual bodily harm.
Mr Crack pleaded guilty to the charge of causing grievous bodily harm with intent to do grievous bodily harm, and to another charge against him alone.
The trial then proceeded with respect to the applicant, Mr Riley, to the exclusion of Mr Crack.
At the end of the prosecution case the trial judge upheld a submission of no case to answer on the first count, that is, causing grievous bodily harm with intent to do grievous bodily harm. He proceeded to find the applicant not guilty on that count.
It was on the second count on the information, which charged the applicant with assault occasioning actual bodily harm, upon which the trial judge convicted the applicant.
The incident which gave rise to the charges occurred near the Ramsgate Hotel at Henley Beach. Mr Riley and Mr Crack were cricketers staying at the nearby premises of the Australian Institute of Sport, known as Delmonte, while attending the Australian Cricket Academy.
The alleged victim, Kial Stewart, was a cyclist training at the same institution.
He and other cyclists were involved in an altercation in which the applicant was involved in the Ramsgate Hotel earlier in the evening. As a result of that altercation both Mr Riley and Mr Crack were excluded from the hotel. The cyclists, including Mr Stewart, were allowed to remain.
The prosecution case was that after they had been excluded from the hotel, Mr Riley and Mr Crack waited down the road from the hotel between it and the Institute of Sport.
Later the cyclists, or at least a group of four of them, emerged from the hotel and walked down the street in the direction of the institute. The four cyclists were the alleged victim, Kial Stewart, a blind man, Anthony Biddle, Ryan Bayley and Sean Eadie.
The prosecution case was that as the group of cyclists approached, both Mr Riley and Mr Crack set upon them, or at least upon Mr Stewart and Mr Bayley.
There is no doubt that there was an encounter between the four men at that time and place.
It was common ground that at one stage during the encounter, the applicant struck Mr Stewart, knocking him to the ground.
It is fair to say that the only issue in the case was whether the Crown had negatived self-defence.
In his reasons, the trial judge correctly directed himself as to the onus on the Crown with respect to the issue of self-defence. He said that the prosecution must prove beyond a reasonable doubt that the accused was not acting in self-defence.
The applicant gave evidence at the trial, in the course of which he maintained that Mr Stewart struck him first and that his response by hitting back was in lawful self-defence.
However, the trial judge totally rejected the credit of the applicant. He said he did not find the accused to be a reliable witness. He said:
“He showed a knowledge of the legal issues and tailored his evidence to conform with them to his advantage. He tended to argue his position from the witness box. He engaged in reconstruction with a view to putting his case in the best possible light. Some of his evidence I found to be inherently improbable; such as the reason for he and Crack waiting at the bus stop with their cricket bats. His memory was selective. I am not prepared to accept his evidence as a reliable basis for findings of fact unless it relates to a matter about which there is no dispute or is corroborated by other, reliable evidence.”
The trial judge went on to make a series of factual findings as to what he held to be the sequence of events which culminated in the incident in question.
In the course of doing so, he indicated that, while accepting the credit of the two other witnesses, Mr Bayley and Mr Eadie, they were unable to give evidence of having seen either of the alleged two punches which were the critical punches, that is, what the applicant suggested was a punch from Mr Stewart, or the punch from the applicant which undoubtedly felled Mr Stewart.
The trial judge referred to the interview which took place soon after the event with Constable Racz.
Constable Racz’s evidence was in part, that after he began a conversation with the applicant:
“I said words to the effect of ‘Paul, I want to know what happened here’ and I indicated the corner of South Street and Seaview Road.
Q.And his response.
A.‘I want to say that that guy hit me at the hotel’.
Q.Continue.
A.‘Paul, I need to know what happened here; who hit the guy?’
He said ‘He deserved it. At the Ramsgate he hit me and my mate.’
I said ‘What happened here though?’
He said ‘Can I just say he hit me and my mate at the Ramsgate Hotel. He started it and he got what he deserved.’
I said ‘Okay, you got hit but what happened here?’
He said ‘I don’t know. All I can say is I hit him. I punched him once in the jaw and knocked him out.’
Q. Was there any more to that.
A. ‘Then some others grabbed me and I didn’t see after that.’”
Mr Abbott QC put forward an interesting argument which, put shortly, was to the effect that the trial judge, at least arguably, adopted an impermissible process of reasoning in reaching the conclusion which he did, given his findings of fact.
His submission was that, given that the applicant’s evidence was rejected, the only other evidence was entirely neutral in the sense that no-one saw either alleged punch. In those circumstances, the possibility that Mr Stewart threw the first punch and that this caused the applicant to retaliate in self-defence, could not be excluded beyond reasonable doubt.
That contention has a superficial attraction. But, on reflection, in my view it should be rejected.
The trial judge clearly made his findings on the whole of the evidence, as he was obliged to. In doing so, he took into account the terms of the conversation which I have related between the applicant and Constable Racz. The trial judge specifically found that what the accused told Constable Racz is what actually happened, that he struck Kial Stewart in retaliation for what had occurred earlier in the night.
It was a typical jury question as to whether, on the whole of the evidence, the Crown had excluded the possibility that the applicant might have acted in self-defence beyond reasonable doubt. The trial judge specifically concluded that he was satisfied beyond reasonable doubt that the applicant was not acting in self-defence.
It should not be overlooked that the trial judge effectively found that the applicant and Mr Crack were lying in wait to confront the cyclists, including Mr Stewart, after they emerged from the hotel.
I have not referred specifically to the amended grounds of appeal. But I have so far covered the points raised by grounds 1 and 2.
Ground 3 complains that the trial judge erred in finding that what was described by the witness Bayley as “fighting” was “the same thing” that the witness Eadie saw. I do not think that there is anything in that point.
There are certainly differences between them in their descriptions of what they saw. But the perception and descriptions by participants or bystanders in a fracas of this kind may vary significantly. It is for the tribunal of fact to evaluate the significance of any such variations.
The applicant finally complains that the verdict was unsafe and unsatisfactory (ground 4). That complaint relies on the preceding three grounds. My finding that the other grounds are not reasonable arguable, disposes of that ground as well.
In my view it is not reasonably arguable that the trial judge’s conclusion that the charge was made out is tainted by appealable error.
The application for leave to appeal is dismissed.