R v Riley (No 2) - [2005] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RILEY (NO 2)
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Application to Full Court for leave to appeal against conviction - trial by judge alone - convicton for assault occasioning actual bodily harm - whether factual findings justified - application dismissed.

R v RILEY (NO 2)
[2005] SASC 90
Court of Criminal Appeal: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I would refuse leave to appeal against the conviction recorded in the District Court. I agree with the reasons given by Vanstone J.
VANSTONE J: Paul Kevin Riley seeks leave to appeal from the Court of Criminal Appeal against a conviction in the District Court for assault occasioning actual bodily harm. A judge of this court has already refused the application for leave: R v Riley [2004] SASC 414.
The applicant was convicted by a judge, sitting without a jury, after a trial lasting some five days. The victim was Kiel Stewart. Mr Stewart’s evidence at trial was that he had no memory of the incident which gave rise to his injuries. However, other young men were present in the vicinity of the incident and some of those gave evidence before the trial judge.
The information upon which the applicant was tried contained three charges. The first two jointly charged a man called Nathan Crack and the applicant with causing grievous bodily harm with intent and assault occasioning actual bodily harm to Stewart. These counts were alternatives. Crack alone was further charged for assault occasioning actual bodily harm to a man called Ryan Bayley. Before the judge, Crack pleaded guilty to the causing grievous bodily harm charge and the assault on Mr Bayley. Not surprisingly Crack did not then give evidence at the applicant’s trial. The learned trial judge found that there was no case to answer against the applicant on the major charge, there being no sufficient proof of a joint enterprise between the two men at the point where Stewart was kicked or “stomped” upon on the ground by Crack. The conduct the judge ultimately found proved against the applicant, count 2, was a striking. He rejected the applicant’s evidence to the effect that the blow which felled Stewart was delivered in self-defence. Indeed he said he was not prepared to rely on any of the applicant’s evidence standing alone.
Before us Mr Abbott QC, who appeared for the applicant, made two principal attacks upon the judge’s findings. First he argued that the judge was wrong to conclude that the applicant’s evidence that the incident was initiated by Stewart was unsupported by other evidence. He put that evidence of the witness Bayley to the effect that Stewart and the applicant were “fighting” prior to the blow which felled Stewart was wrongly read down by the judge. Next Mr Abbott submitted that the judge took out of context and attributed undue weight to certain admissions made by the applicant to police a little later in the night at the scene.
In order to understand those submissions it is necessary to say a little more about the facts. The applicant and Crack were cricketers who, at this time, were attending the Australian Institute of Sport Cricket School and staying at an establishment called Del Monte at Henley Beach. At the same time a number of cyclists were attending a training camp and were based at Del Monte. They included the victim Stewart and the prosecution witnesses Bayley and Eadie. Earlier in the evening both groups had independently attended at the nearby Ramsgate Hotel and consumed liquor. An incident occurred between Stewart and the applicant in which liquor from the applicant’s glass spilt into Stewart’s face, at which Stewart punched the applicant in the head. That confrontation continued outside and subsequently security officers prevented the applicant, although not Stewart, from re-entering. The applicant was heard to insist upon re-entry so that he could “kill” Stewart.
Later on, for reasons which were disputed, the two cricketers waited along the route back to Del Monte in the hope of seeing the cyclist group. As they waited they were holding their cricket bats. The witness Bayley, whose evidence was accepted by the judge, said that upon the cyclists passing by, the cricketers jumped up and confronted Stewart. He said a “fight” broke out. He attempted to intervene to calm the situation but was head-butted by Crack. Then he saw Stewart on the ground being stomped upon by Crack.
The trial judge also found Mr Eadie to be a reliable witness. He said that as his group approached the cricketers he adjudged that a confrontation was to occur. The applicant told him he was waiting there for Stewart and that it was between them. A few moments later he saw the applicant and Stewart standing “toe-to-toe” and “having words”. Next he saw Stewart lying on the road and the applicant walking away. He also saw Crack stomp on Stewart’s face.
Mr Abbott’s argument essentially turns on what Bayley meant in describing the applicant and Stewart as “fighting”. Bayley was not asked to explain the term. The judge found that what he meant was no more than the same confrontation and argument which Eadie described, which did not involve punches by Stewart. The judge rejected the applicant’s argument that Bayley’s evidence supported his own. In fact, if Bayley had meant fighting in the sense of trading blows, his evidence would have been quite different from that of the applicant anyway. It is plain from the evidence of Bayley and Eadie that the incident occurred very quickly. I consider it was well open to the trial judge to take the view that the description they offered was of events immediately before the felling of Stewart and that they saw essentially the same thing, but described it differently.
But in any event, it seems to me that Mr Abbott’s argument overlooks even more telling matters. Those include the facts of the applicant’s earlier expressed aggression to Stewart, that the cricketers waited for some time for the cyclists to pass by, and upon seeing them stood up, holding their cricket bats as if to provoke a confrontation and along with that, spoke aggressively to them. It also overlooks the statements to police referred to earlier. In relation to those Mr Abbott emphasised that police were enquiring about, and the applicant was answering in the context of, not just the blow which brought Stewart to ground, but rather the more serious stomping on his face. That is no doubt true, but it cannot detract from what seem to me to be plain admissions made by the applicant as to his role. In answer to entirely neutral questions by the officer the applicant volunteered that Stewart had hit him and his mate earlier at the hotel; that Stewart had started it and that he “deserved what he got”. Asked: “OK, you got hit but what happened here?” he answered: “I don’t know, all I can say is I hit him, I punched him in the jaw and knocked him out. Then some others grabbed me. I didn’t see after that.” There was no mention of self-defence. The judge found that these admissions were frank and that the applicant was there admitting that he had struck Stewart in retaliation for what had occurred earlier in the night. I consider that there is really no other interpretation for the applicant’s words.
In my view, upon analysis, none of the grounds of appeal are reasonably arguable. I would dismiss the application.
WHITE J: I would refuse the application for leave to appeal for the reasons given by Vanstone J.