R v Shevlin
[2013] ACTSC 88
•17 May 2013
THE QUEEN V JOSEPH MICHAEL SHEVLIN
[2013] ACTSC 88 (17 May 2013)
CRIMINAL LAW – general matters – criminal liability and capacity – defences – intoxicated self-defence – whether belief held – whether reasonable belief where intoxication
CRIMINAL LAW – particular offences – offences against the person – recklessly inflicting grievous bodily harm – definition and origin of ‘inflict’ – definition of recklessness – definition of grievous bodily harm
Crimes Act 1900 (ACT), ss 20, 24
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43, 46
Supreme Court Act 1933 (ACT), ss 68B, 68C
Criminal Code 2002 (ACT), ss 31, 33
P J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 1999)
Beer v McCann; Ex parte McCann (1991) 57 A Crim R 101
Blackwell v The Queen (2011) 208 A Crim R 392
Dal Cortivo v The Queen (2010) 204 A Crim R 55
Director of Public Prosecutions v Smith [1961] AC 290
Fleming v The Queen (1998) 197 CLR 250
Gibbs v Willis [2013] ACTSC 26
J A v Goldsmith [2004] ACTSC 79
R v Britten [2011] ACTSC 49
R v Brown [1993] 2 WLR 556
R v Cameron [2001] ACTSC 57
R v Clarence (1888) 22 QBD 23
R v DM [2010] ACTSC 137
R v Lee [2001] ACTSC 133
R v Miller [1954] 2 QB 282
R v Morrison; Ex parte West [1998] 2 Qd R 79
R v Mulcahy [2010] ACTSC 98
R v Neish[No 2] [2013] ACTSC 24
R v Perks (1986) 41 SASR 335
R v Salisbury [1976] VR 452
R v Trimboli (1979) 21 SASR 577
Scatchard v The Queen (1987) 27 A Crim R 136
Standishv The Queen (1991) 60 A Crim R 364
Vann v Palmer [2001] ACTSC 12
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
No. SCC 122 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 17 May 2013
IN THE SUPREME COURT OF THE )
) No. SCC 122 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
JOSEPH MICHAEL SHEVLIN
ORDER
Judge: Refshauge J
Date: 17 May 2013
Place: Canberra
THE COURT FINDS THAT:
Joseph Michael Shevlin is not guilty of recklessly inflicting grievous bodily harm on Wayne Anthony Maloney.
Joseph Michael Shevlin is not guilty of assaulting Wayne Anthony Maloney occasioning him actual bodily harm.
Joseph (“Joe”) Michael Shevlin, the accused, was out drinking on the evening of Saturday 23 August 2008 when, early the next morning he was involved in an altercation with Wayne Anthony Maloney.
As a result, Mr Shevlin was, on 24 August 2008, arrested and he appeared in the ACT Magistrates Court. On 23 March 2009, he was committed for trial to this Court on two charges.
On 1 April 2009, he signed an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.
On 3 June 2009, an indictment was filed containing two counts as follows:
THAT on the 24th day of August 2008 at Canberra in the Australian Capital Territory JOSEPH MICHAEL SHEVLIN recklessly inflicted grievous bodily harm on Wayne Anthony Maloney.
SECOND COUNT AND FURTHER THAT IN THE ALTERNATIVE on the 24th day of August 2008 at Canberra aforesaid JOSEPH MICHAEL SHEVLIN assaulted Wayne Anthony Maloney occasioning to him actual bodily harm.
On 29 September 2009, he was arraigned and pleaded not guilty; the trial was listed to commence on 26 July 2010. It proceeded on that day before me.
Trial by Judge Alone
Under s 68C of the Supreme Court Act 1933 (ACT) a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Mulcahy [2010] ACTSC 98 at [13]-[24]. The directions I take into account are as follows.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he or she did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
Mr Shevlin gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
I also note that, as this was an offence of violence, s 43 of the
Evidence (Miscellaneous Provisions) Act 1991(ACT) required that the complainant, Mr Maloney, give evidence by audiovisual link from a place other than the courtroom as he did. Under s 46 of that Act, I am required to warn the jury that it should not be draw any inference adverse to Mr Shevlin in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.
I apply these directions and follow the rules I have set out above.
Evidence
The following witnesses gave evidence before me: Constable Elliott Bolitho, Mr Wayne Maloney, Mr Kurt Andrews, Mr Damien Wight, Mr Byam Wight, Ms Natasha Sandhu, Mr Conrad Bergmann, Mr Kosta Pizania, Mr Damon Smith, Constable Dion Burrows, Ambulance Officer Patrick Cotter, Mr John Gasson, Mr Sean Smith, Ms Renea Wiggins, Ms Suzanne Barker and Mr Shevlin. I have given careful consideration to the evidence of each of them.
I also received the following exhibits, to all of which I have had careful consideration:
A Record of 000 call with transcript.
B Record of Police Interview with Mr Shevlin and transcript.
C Two photographs of Mr Shevlin’s hand.
D Photographs of Mr Shevlin’s clothing.
E DVD of CCTV footage.
F Medical and Ambulance records.
G Photographs of Wayne Maloney.
H Diagram of bar.
1 Statement of Mr Damon Smith.
2 Statement of Mr John Gasson.
3 Statement of Ms Renea Wiggins.
4 Letter from Brother Newlan.
5. Letter from Mr Ken Cush.
The law
As noted above (at [4]), Mr Shevlin has been charged with the offence of recklessly inflicting grievous bodily harm on Mr Maloney, an offence contrary to s 20 of the Crimes Act 1900 (ACT).
The elements of the offence are reasonably clear. They involved:
(a) the infliction;
(b) on Mr Maloney;
(c) recklessly;
(d) of grievous bodily harm.
To inflict injury or harm is to cause it. It is, however, not a wide term, but requires the application of some force, given the derivation of the word from its Latin root, infligo: R v Clarence (1888) 22 QBD 23 at 42. After an analysis of the authorities, the Full Court of the Supreme Court of Victoria held in R v Salisbury [1976] VR 452 at 461 that harm may be inflicted:
either where the accused has directly or violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim.
This approach has been followed in this Territory in R v Lee [2001] ACTSC 133 at
[6] per Crispin J.
While the indictment charges that Mr Maloney was the victim and that has to be proved, it is not necessary to prove that Mr Shevlin knew or had foresight that Mr Maloney was the person upon whom the harm was being inflicted. See
Standish v The Queen(1991) 60 A Crim R 364 at 373.
On the other hand, to show that Mr Shevlin acted recklessly, it is necessary for the Crown to prove that Mr Shevlin must have realised that, by doing what he did, it was possible that grievous bodily harm would be inflicted and yet he went ahead and acted as he did. This is the test now applied by the New South Wales Court of Criminal Appeal in Blackwell v The Queen (2011) 208 A Crim R 392 at 408-9;
[78]; 416; [120], 424; [170]. It accords with what was held by Crispin J in
Vann v Palmer[2001] ACTSC 12 at [25]; R v Cameron [2001] ACTSC 57 at [47];
R v Leeat [12]. I followed Blackwell v The Queen in R v Neish [No 2] [2013] ACTSC 24 at [12].
The final element is that the harm caused is grievous bodily harm. This is well-known as “really serious injury”, so defined in Director of Public Prosecutions v Smith [1961] AC 290 at 334. It has been suggested in R v Perks (1986) 41 SASR 335 at 337 that it is a misdirection to use the adjective “serious” without the presumably expansive adverb “really”. Such a definition has been described by Crispin J in R v Lee at [8] as “scarcely more informative” than “grievous bodily harm” itself.
Despite this, the English authorities suggest that this is the “ordinary and natural meaning” and that it is undesirable to attempt any further definition. See P J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 1999) at 1615; [19-206]. In R v Britten [2011] ACTSC 49 at [13], Higgins CJ said:
The nature of ‘grievous bodily harm’ is that it should, in fact, amount to ‘really serious bodily injury’. ‘Bodily injury’ means something more than the experience of pain. There must be something in the nature of damage to the structure of the body (see Brown v Blake [2000] WASCA 132 (11 May 2000) at [5]-[6]).
The prosecution is, of course, required to prove each of these elements beyond reasonable doubt.
As further noted above (at [4]), Mr Shevlin has also been charged in the alternative with the offence of assault occasioning actual bodily harm on Mr Maloney, an offence contrary to s 24 of the Crimes Act.
The elements of the alternative offence are not controversial. So far as this offence is concerned, it involves:
(a) a striking, touching or application of force by Mr Shevlin to Mr Maloney;
(b) that such conduct of Mr Shevlin was without the consent of Mr Maloney;
(c) that the conduct was voluntary and either intentional or reckless in the sense that Mr Shevlin realised that Mr Maloney might be subject to immediate and unlawful violence, however slight, as a result of what he was about to do, but yet he took the risk that this might happen; and
(d) that such conduct was without lawful excuse.
The prosecution is required, of course, to prove each of these elements beyond reasonable doubt.
So far as the part of the offence which requires that actual bodily harm be occasioned by the assault, this involves hurt or injury which interferes with the health or comfort of the victim. See R v Miller [1954] 2 QB 282 at 292. The term “bodily harm” is to be interpreted widely and is not restricted to “harm to the skin, flesh and bones” of a victim, but includes any harm to all Mr Maloney’s organs, his nervous system or his brain: R v Morrison; Ex parte West [1998] 2 Qd R 79 at 81. It does not, however, include pain alone without an identifiable bodily injury: Scatchard v The Queen (1987) 27 A Crim R 136. See also R v Britten at [13].
The consent of the victim can be express or implied: Beer v McCann; Ex parte McCann (1991) 57 A Crim R 101 at 101-105. It has been suggested in R v Brown [1993] 2 WLR 556 that consent cannot be given to an assault causing actual bodily harm, but that appears to apply unless there is good cause shown and such cause may include (as well as obvious matters such as surgery, tattooing or the like) engagement in violent sports or in a fight where the accused is defending himself or herself.
Lawful excuse would include such matters as necessity, accident or self-defence.
The evidence
On the evening of 23 August 2008, the complainant, Wayne Anthony Maloney, went to the German Club at Narrabundah to celebrate the birthday of his goddaughter. After the children left the party, he remained and had a few drinks, so far as he could recall four to six stubbies of Melbourne Bitter beer. He has no recollection of leaving the club nor of the events of the evening until he awoke in hospital. It is not clear whether that is a result of his intoxication or the subsequent events.
The same evening, the accused, Mr Joseph Shevlin, and his brother, Mr Matt Shevlin, went to the home of a friend in Kambah where they were joined by another friend, Mr Kurt Andrews and his wife. They had a few drinks and then Mr Shevlin and his brother and Mr and Mrs Andrews went to the Holy Grail bar in Kingston. They were planning to watch on the bar TV Australia play rugby union against South Africa.
The evidence was, however, that by about 11:45pm that night, Mr Maloney had arrived at the Holy Grail also. It is not clear where he had been or what he had done earlier in the evening other than as noted above (at [39]). At about that time, he met Mr Byam Wight, a friend whom he had not seen for many years. Mr Wight introduced Mr Maloney to his son, Mr Damien Wight. At the time, both father and son assessed Mr Maloney as being quite affected by alcohol, though Mr Damien Wight described him as “jovial”. In an earlier statement, he described him as “a happy drunk”. Mr Byam Wight described him as “friendly”.
Mr Damien Wight had earlier been to a party where he estimated that he had drunk about six beers and was reasonably affected by alcohol. He had come to see his cousin play in the band. His father had been to a 70th birthday party, and had had four or five light beers. He considered that he was not greatly affected; indeed, he later said he was “stone cold sober”.
Prosecution witnesses
(a) Mr Byam Wight
Mr Byam Wight was facing the dance floor in the bar and saw what he described as two gentlemen having an altercation on the dance floor, one in a white T-shirt and the other darkly dressed. The altercation was not physical, he said, but enough to draw the attention of the bouncer who came up to them and tell them to settle down. Mr Byam Wight could not hear anything that was going on.
In cross-examination, it was suggested to him that the two men danced around the bouncer but he denied that, although he did say that he may not have been looking at that stage, suggesting that he was not particularly noticing what was happening there.
The next thing he saw was Mr Maloney go over to the two men and “go to hug” the person in the darker clothes. He assumed that Mr Maloney knew the person, but the man Mr Maloney approached, in what he said was a non-violent action, was pushing him away. He said that the other man, dressed in the white T-shirt, came up behind Mr Maloney and grabbed him, he thought by the collar or perhaps the shoulders, and pull him violently backwards. He said that “because the two of them were, sort [of], entwined with each other they both tripped over each other”. He did not approach. He said that Mr Maloney stood up and faced the person wearing the light T-shirt. It was suggested in cross-examination that someone, specifically the man in the white T-shirt, helped Mr Maloney to his feet; he did not see that, but could not definitely say it did not happen.
He said that Mr Maloney faced the person in the white T-shirt in a stance which he described as if he was saying “[w]hat did I do. What did you do that for?” He said that, if anything, Mr Maloney backed away from the man. He said that Mr Maloney put his arms out in front of him with his palms outward and open at about waist-height. He said, however, that Mr Maloney’s back was to him, but slightly side on: a three-quarter rear view.
He said that the man in the white T-shirt came up to Mr Maloney and pushed him in the chest, “really, really hard.” He fell to the floor. He said he heard Mr Maloney’s head hit the floor. When he looked up, the man who had pushed him was not there.
Mr Byam Wight confirmed that he did not hear any conversation and he was merely speculating on what might have been said from the actions he saw.
He summarised it by saying that there was a push and shove that became out of control, that the man in the white T-shirt did not need to push Mr Maloney as hard as he did.
(b) Mr Damien Wight
Mr Damien Wight did not know Mr Maloney on the evening but was introduced to him by his father.
He said that after speaking with himself and his father, Mr Maloney walked towards a table beside the bar where approximately three people were standing having a drink and gave one of them a hug. He said Mr Maloney “was not received well”.
Contrary to his father’s evidence, he said that the person Mr Maloney hugged was wearing a white T-shirt and he pushed Mr Maloney in the chest “as if to say go away”. He said Mr Maloney was on his feet and “he was okay”. Mr Damien Wight then turned to his father and said something to him and when he turned back he saw Mr Maloney on the ground with the other man.
The next thing he remembers is seeing Mr Maloney and, he thinks, Mr Shevlin at the other end of the bar from where he and his father were and Mr Maloney being pushed in the chest but he could not say by whom he was pushed. He saw Mr Maloney’s back and he could not see who was in front of him or exactly where he was pushed though he thought it was in the upper torso. Mr Maloney fell backwards and landed on the ground. He heard Mr Maloney’s head hit the ground. He did not recall who had been standing around Mr Maloney when he fell.
Mr Damien Wight agreed in cross-examination that Mr Maloney was not hurt in the first part of the incident and he never saw him hit at any stage. He also confirmed that the person that Mr Maloney hugged was, on his evidence, the person that had pushed him.
(c) Mr Kurt Andrews
Mr Andrews gave evidence of the evening leading up to and including his arrival at the Holy Grail. He said he then became aware of an incident in the bar, probably because of raised voices. He looked and saw a small scuffle. He saw people “moving probably not in the way that you’d expect in a bar”, but he did not pay a lot of attention.
He then saw a man lying on the floor with a friend, Mr Damon Smith, standing still nearby. He saw someone leap to the rear of the bar and he followed the person out the back to an alley. He saw a woman there but then returned to the bar.
(d) Mr Kosta Pizania
The security officer at the Holy Grail, Mr Kosta Pizania, was on duty from about 9:00pm on 23 August 2008. At about 1:00am the next morning, he saw some men dancing just in front of the bar and he went over to them and asked them to move to the dance floor. One of the males was wearing a yellow or red top.
One of the men moved up to him, dancing next to him and he told him not to get too close as he was not there to dance with him.
As he turned to go, Mr Maloney came up to him and “jumped all over [Mr Pizania]” and he told him to “[b]ack off, you know, I’m working”. He said that Mr Maloney was “just having fun”.
He then turned to face the bar and then he saw someone punch Mr Maloney in the head. He said that Mr Maloney was not doing anything with his hands at the time,. Mr Maloney fell to the ground and he heard his head hid the floor.
Mr Pizania told the person who had hit Mr Maloney to stay where he was and he attended to Mr Maloney to see if he was breathing and to put him in a safer position.
He said that the person who hit Mr Maloney was the person he had earlier told to stop dancing in the walkway.
In cross-examination, Mr Pizania denied telling police that he did not see Mr Maloney being struck; he believed he had seen it. He also agreed that he did not remember “what happened almost two years ago”. Nevertheless, he denied that Mr Maloney was drunk, describing him as “happy and joyful”. He said he heard Mr Maloney saying that he did not want to get into the ambulance later in the evening. He could not remember the words said and he could not recall Mr Maloney being abusive to the police and the ambulance officers.
He also denied telling police that he had spoken to Mr Maloney after reports that he was starting fights with patrons.
In re-examination, Mr Pizania denied ever having to speak to Mr Maloney about reports of his starting fights.
Mr Pizania’s evidence was in a number of respects quite inconsistent with the evidence of Mr Byam Wight and Mr Damon Wight.
(e) Mr Conrad Bergmann
Mr Conrad Bergmann was a student who was working at the Holy Grail on 23 August 2008. He had started his shift at 6:00pm that day.
He knew Mr Shevlin and saw him and his party arrive. Mr Shevlin was wearing blue jeans and a yellow T-shirt. He thought Mr Shevlin was quite intoxicated, about “six out of 10”. He saw Mr Shevlin dancing and having fun with his friend; they were together most of the night.
Mr Bergmann saw Mr Pizania, the security guard on duty that night, go up to Mr Shevlin and his friend and saw them dancing in front of Mr Pizania. He saw Mr Shevlin and his friend dance around Mr Pizania. Mr Bergmann then went to the front door.
When Mr Bergmann walked back he saw Mr Shevlin and a customer having a chat. He had seen this person, obviously Mr Maloney, earlier in the evening, “pretty much keeping to himself, sitting on the left-hand side of the bar drinking”. This male approached Mr Shevlin and his friend and Mr Bergmann said he “was trying to become involved with ... [and] dance and have fun I guess with the group”. He then saw them “exchange words” but could not hear what was said.
He said that “[a]fter they’d exchanged words, it looked like Joe [Shevlin] stepped back and then a punch was thrown”. The punch was thrown at Mr Maloney and landed in the centre of his face. It knocked Mr Maloney out and he fell backwards, landing on the ground and he heard his head hitting the ground. Before the punch, he did not see Mr Maloney do anything with his hands. He then called the police.
In cross-examination, he said that he did not think that Mr Shevlin or the other man, clearly Mr Maloney, were shouting at each other. He said, also, that Mr Maloney appeared drunk. He also accepted that he did not see all that preceded the punch because he “definitely missed a small amount of time there”.
(f) Ms Natasha Sandhu
Another patron of the Holy Grail that night, Ms Natasha Sandhu, was there night-clubbing with friends. She had been drinking but felt she was still able to drive a car.
At one stage, movement of people behind her caught her attention and she saw two men involved in a discussion about two metres away from her. One was wearing a white T-shirt and was shorter and younger than the other. She looked for a couple of seconds and then turned away. She looked back and saw the younger man push or hit the other, older man. She believed it was a hit, a punch, which landed on the upper region of the older man’s body. The older man, clearly Mr Maloney, then fell to the ground backwards. The younger man, clearly Mr Shevlin, then ran. She saw bouncers and bar staff attend to Mr Maloney on the floor.
In cross-examination, she admitted that she had earlier said in a statement given to police that the two men were not in a discussion but were shouting at each other. She also agreed that she had said in the statement, but not in evidence, that there was an arms-length between the two males and they were moving around a bit.
She agreed that her police statement referred to the younger male hitting or pushing the other man but did not record that she believed it was a punch, nor that it landed in the upper region of the older man’s body.
(g) Mr Damon Smith
After drinking three beers and some wine at dinner, Mr Damon Smith went to a bar in Civic and then to the Holy Grail in Kingston, he said in his evidence. He arrived with a number of friends at about 11:30pm; he was moderately intoxicated. He continued to drink beer.
He met Mr Shevlin at the bar and they began drinking together. He said that an older man with grey hair came up to them. He said he was being rude and annoying. He said that he pushed him away and told him “where to go”. He said that when he pushed the man, the man then fell to the ground, but then he stood up again. He did not recall if he required help to get up.
Mr Smith said that the man, who was obviously Mr Maloney, then came back towards him swearing and continuing his behaviour and he asked him to go away from him. He said Mr Maloney told him to “fuck off”. Mr Smith says he asked him to leave and “to fuck off” and he then placed two hands on his chest and pushed him away.
It was a bit unclear when that was and, in fact, Mr Smith said that his push was before Mr Maloney first fell over.
He then said that when Mr Maloney stood up, he told Mr Smith again to “fuck off” and Mr Smith said he could not really remember what then happened as “[i]t was over very quickly”.
His evidence was not entirely clear and at one stage it appeared that Mr Smith was saying that he had pushed Mr Maloney twice, but that did not appear to be his evidence.
He said that when Mr Maloney got off the ground and walked back towards him, he just ignored him, telling him “where to do again and the next thing I heard the noise of his head hitting the ground”. He did not see Mr Shevlin do anything. He saw Mr Maloney on the ground and some blood. He did not see Mr Shevlin after that. He later saw the police and ambulance officers arrive.
In cross-examination, he described Mr Maloney as being “rude, assertive and unsociable”. He agreed that he was drunk. He said he heard a sound as if he had been hit but did not see him hit.
Mr Smith was not a very satisfactory witness, but I do not reject the whole of his evidence. I was satisfied that when he described Mr Maloney’s demeanour, in particular, he was reliable.
(h) Constable Dion Burrows
Among the police who attended following a 000 call made, apparently by Mr Bergmann, was Constable Dion Burrows.
He said that when he walked into the Holy Grail at about 12:40am on 24 August 2008, he saw, lying on the floor near the dance floor, a male who was bleeding from the head. As he walked over, ambulance officers arrived and he directed them to the man on the floor; they proceeded to treat him.
The man was stood up and escorted out of the bar. He heard the ambulance officers trying to talk to the man, who was Mr Maloney, but he was abusive and aggressive with them. He said to them “[l]eave me alone. Fuck off. Don’t touch me. I’m all right. Just fuck off or else.” As a result, the ambulance officers told Constable Burrows that “[h]e’s all yours. We’re leaving. We’re not going to treat him”.
Constable Burrows had concerns about Mr Maloney’s head injury and he persuaded the ambulance officers to try again to persuade Mr Maloney to go with them to hospital and they did. They assessed him and took him to the ambulance.
Constable Burrows agreed in cross-examination that Mr Maloney said to him “[y]ou’re a copper. I hate coppers. Fuck off, I’m not telling you anything”.
Then Constable Burrows also spoke with Mr Pizania who told him that he had had to speak to Mr Maloney after reports of Mr Maloney starting fights with patrons. Mr Pizania also told him that he did not see anyone strike Mr Maloney.
(i) Mr Patrick Cotter
Mr Patrick Cotter was one of the ambulance officers or paramedics who attended at the Holy Grail in the early morning of 24 August 2008. His report of the morning was tendered. He had no independent recollection of the incident.
He said that people he assisted as a paramedic, were, where trauma was involved, sometimes aggressive. He mentioned that where the person had suffered concussion or head injury, it was not uncommon for them to be aggressive and uncooperative.
He agreed, however, that some are not aggressive.
He also said in cross-examination that he did not specifically recall Mr Maloney being abusive and the ambulance officers declining to treat him, but that it may have occurred. He agreed that the police may have persuaded them to attempt to treat him again. He said:
One of the techniques we will often use if we are refused by the patient to be transported is to initially tell the people in the area of what our beliefs are, step away and allow a certain amount of peer pressure to occur and that may have occurred in this situation.
Peer pressure being the police talking to ambulance officers? --- Police and/or friends/family and other people.
The ambulance report was as follows:
On examination: Pt ETOH+++ [alcohol substantial amount]. Staggering gait. Blood over face, hands, head. [On examination] blood coming from Ⓛ ear canal. Swelling to back of head. No other injuries noted. Pt repetitive questioning, uncooperative to assessment + Tx [treatment].
There was also a previous history of alcoholism for Mr Maloney.
(j) Mr Wayne Maloney
Mr Wayne Maloney was the complainant. He had no real memory of what happened at the Holy Grail.
He gave evidence, however, of his hospitalisation. He had an operation to relieve pressure from a haematoma and had plates inserted into his head. As a result of the injuries for which he was treated, he suffered short-term memory loss, vertigo and permanent migraine-like headaches. The symptoms continued.
He agreed that he had been to the Holy Grail a number of times and that he was a neighbour to the security guard, Mr Pizania, for about ten to twenty years.
(k) Constable Elliott Bolitho
The informant was Constable Elliott Bolitho. He produced the transcript of the 000 call from the Holy Grail of the early morning of 24 August 2008. In it, Mr Bergmann says:
a bloke has just been smacked in the head and he’s pretty much cracked his head open on the ground.
He also produced the CCTV from the Holy Grail of that morning. It was played and I have looked at it carefully a number of times.
It shows Mr Shevlin and Mr Smith at the bar. They appear initially to be purchasing some drinks. They dance with each other, at times quite demonstratively, throwing their hands up in the air. At one stage, Mr Pizania walks past them without stopping, even though they are dancing demonstratively. They briefly dance with another patron. Mr Pizania walks back and seems merely to stand looking at them dance while they dance around him, including quite closely. Mr Smith initiates this and after a short time, Mr Shevlin joins in. Mr Pizania seems to be quite impassive. He does not seem to be asking them to move to the dance floor; indeed he does not seem to speak to them at all. They move out of sight while dancing with Mr Pizania at one stage, however.
Later, Mr Shevlin approaches the bar again and then moves out of sight. He comes back into sight and it appears he is approached by another person, presumably Mr Maloney. It is not clear, but Mr Maloney appears to be putting his arms around Mr Shevlin. Mr Smith appears to pull Mr Maloney from behind and both Mr Maloney and Mr Shevlin land on the floor at the foot of the bar. Mr Shevlin gets up and helps Mr Maloney up. Mr Maloney appears to approach Mr Shevlin and Mr Smith. His hands are at about waist-height and to the front and side of him. Mr Shevlin does not appear to move, either backwards or forwards. There is no clear picture of a push or a punch. Mr Maloney apparently falls backwards.
Mr Pizania moves into the picture and appears to speak to Mr Shevlin and then turns to where it appears that Mr Maloney is lying. Mr Shevlin turns and leaves. The lights are turned on and patrons gather around where Mr Maloney appears to be lying.
I also note that Mr Bergmann does not appear to be at the bar adjacent to the incident, though two female bar staff appear to be there. No evidence was called from either of them.
Constable Bolitho contacted Mr Shevlin at about 4:00pm on 24 August 2008 and when he said he was investigating an assault at the Holy Grail, Mr Shevlin told him:
Yes, I do know something about that ... I was there. He pushed Damon – sorry, Damon pushed him and he came back at Damon, so I hit him.
Later that afternoon, Mr Shevlin voluntarily accompanied Constable Bolitho to Tuggeranong Police Station where Constable Bolitho and another police officer then interviewed Mr Shevlin. The interview was recorded and the recording played to me.
(l) The interview with Constable Bolitho
In his interview with police, Mr Shevlin said that he had had three and a half schooners of full strength beer, but did not feel intoxicated, saying that, on a scale of one to ten (ten being there most intoxicated), he was about one and a half.
He was questioned about the evening of 23 August 2008 into the morning of the next day. He said that at about an hour after he had arrived at the Holy Grail, he had had about the same to drink as that day, about three and a half glasses of beer. He said, however, he had a lot to drink by the time of the incident.
He later said that he had earlier had about a dozen beers earlier while watching football. After that he had a further five or six beers. After that, he went into town and started drinking spirits. It was unclear how many but at least three drinks of vodka and coke. He had more to drink at the Holy Grail. He said his memory was really bad when he gets drunk.
He recounted going to the Holy Grail and then explained:
Um, I was talking to a guy at the bar, well, facing from the bar, not sure who he was, I was just chatting to him. Amm, then, I don’t know what this other guy’s name is but he was sort of going around, I don’t know what his problem was, he was angry about something. I’m not sure if I offended him in some way but he was pissed off about something.
...
Um, anyway, so he was in Damon’s face, basically being pretty annoying, so Damon pushed him and he fell over, then Damon turned around to get some beers for us, um, I saw him go at Damon so I jumped in and he tried to go at me so I hit him and he fell over. I amm, I then left, I probably shouldn’t have, I regret it now but I left and I went home.
He said he was wearing a black jacket, yellow T-shirt and jeans, but he took the jacket off and gave it to one of the bar staff.
He repeated that the man who came up to him, who must have been Mr Maloney, was “being loud and obnoxious and rude”. He later added, “he was just sort of, like, loud and he was sort of staring at me and ... I thought he had something against me for some reason”. He said he looked angry. He did not remember any of the conversation with Mr Maloney.
Mr Shevlin referred to Mr Smith pushing Mr Maloney over and that Mr Smith then went to get a drink. He said Mr Smith was telling Mr Maloney “to piss off basically because he was being a dickhead”.
He then repeated that Mr Maloney “moved towards Damon [Smith]”. Mr Smith pushed him over.
He said that he did not recall seeing Mr Maloney falling down. He did not mention that he had fallen down also and that he helped Mr Maloney up, both clearly shown on the CCTV.
He said that, when he stood up, Mr Maloney looked angry, and that “it looked like he was going to have a go at him”. He said he felt he had to “do something about it”. He said:
[Mr Maloney] sort of advanced towards Damon, when he was at the bar, I stepped in, well moved towards them and saw that he was going for him and he sort of turned his attention to me so I hit him.
While there are some slight differences, this is not inconsistent with what was recorded on the CCTV. It was not clear, however, that it showed Mr Maloney actually advancing on Mr Smith, though it may have been so. Mr Shevlin said that he hit Mr Maloney in the face. He said it was a very hard hit – on a scale of one to ten, where ten is the hardest, at a severity of about an eight. He said that Mr Maloney then fell backwards. He did not notice any injuries as he “didn’t hang around to find out”. He said that he panicked; “I know it is the wrong thing to do ... cowardly act I know”. He said that Mr Maloney did not look all right as he did not move as far as he could tell.
Mr Shevlin said it is not normal for him to hit people, but he thought it was reasonable in the situation. He explained that “I thought if I didn’t get him first he would have hit me”. He also said he thought Mr Maloney may have hit Mr Smith.
He accepted that in hindsight he may have acted differently – he may have tried “to mediate in some different manner”. He did remember falling over, but did not connect that with Mr Maloney. He also explained his hasty departure as “[c]owardliness ... I wanted to get out of there to probably avoid getting in trouble”.
He said also to the police that he was about an inch or two shorter than Mr Maloney but of similar, slim build.
He described Mr Smith, after he had pushed Mr Maloney to the ground, as going to the bar and getting some drinks, with his back to Mr Maloney. That is not consistent with what was shown on the CCTV.
He said again that he thought Mr Smith was going to be punched in the head.
He admitted that he did not contact police, though he knew they may become involved and that he was trying to avoid being involved with them.
He said that he thought the floor at the Holy Grail bar was a timber floor. In fact, it is a tiled floor with quarry tiles.
During the interview, Mr Shevlin was obviously concerned about Mr Maloney’s medical condition.
Defence witnesses
(a) Mr Joseph Shevlin
At trial, Mr Shevlin, confirmed that the answers he had given in his interview with police were true and accurate to the best of his ability. He said he did not know Mr Maloney prior to 23 August 2008. He remembered him as loud and angry, saying that he thought that he, Mr Shevlin, may have offended him; he was certainly offended for some reason. He had a vague memory of them shouting at each other.
Mr Shevlin said that, although he could not recall how he and Mr Maloney ended on the ground, he remembered helping him up; he said he did so because he thought the altercation was over. He admitted to hitting Mr Maloney because, he said, he felt it was the only action he could possibly take to stop him from hitting Mr Smith or himself. He confirmed that he had seen the CCTV and said it showed Mr Maloney approaching Mr Smith and Mr Shevlin after he had helped him up.
In cross-examination, Mr Shevlin admitted that he was heavily drunk and that this affected his memory. He had read his interview a number of times, agreeing that some of his recollection in the interview is “askew” with what is shown on the CCTV.
It was put to Mr Shevlin that Mr Maloney came up to him and put his arm around his shoulder. He said that he could see he moved back. He denied that he was annoyed that Mr Maloney had come up to him and said he knew that Mr Maloney was not in a good frame of mind; he confirmed that Mr Maloney was aggressive. Mr Shevlin denied that he was setting the scene to minimise his later actions.
He agreed that Mr Smith had not pushed him but had pulled him from behind. He confirmed that he remembered helping Mr Maloney from the ground and rejected the suggestion that Mr Maloney was approaching in a non-aggressive fashion as if asking “[w]hat was that for?”, repeating that Mr Maloney was aggressive. He said he did not look at Mr Maloney’s hands.
Mr Shevlin agreed that the CCTV recording showed that Mr Smith pushed Mr Maloney after he had stood up and was approaching them. He said Mr Smith was behind him and confirmed it after looking again at the CCTV. He said: “I’m saying that I did not realise there was a push and I hit [Mr Maloney] to stop him from hitting me.”
There was a difference between the prosecutor and Mr Shevlin about what the CCTV recording showed. Mr Shevlin maintained that he hit Mr Maloney about the same time as Mr Smith pushed him. He asserted that the recording did not show the actual striking by him of Mr Maloney. He affirmed also that he thought that if he did not hit Mr Maloney, he would definitely have been hit. He also disagreed with the suggestion that the recording did not provide a basis for that conclusion. He also rejected the suggestion that he had overreacted.
In response to a question about whether, when he hit Mr Maloney, he intended to hurt him, he said that he intended to defend himself and that he was doing what was necessary to defend himself, using the necessary force to stop Mr Maloney hitting him.
In answer to a series of questions from the prosecutor, Mr Shevlin, perhaps rather reluctantly, finally accepted that he was at some level aware that by hitting Mr Maloney, he may injure him.
He expressed regret as to what happened and agreed with what he had said to police that he would prefer to have resolved the matter in another way.
Mr Shevlin accepted that when he hit Mr Maloney, contrary to what he had earlier said, Mr Smith’s back was in fact not turned to Mr Maloney as he had said in his interview. He said, however, that, as Mr Smith was behind him, he did not know that and had actually thought his back was turned.
(b) Ms Renea Wiggins
Ms Renea Wiggins was a close friend of Mr Shevlin, having known him for seven years. She was at the Holy Grail on the night of 23 August 2008 but at the time of the incident giving rise to these charges, she was in the outside smoking area and did not see anything. She came in after the ambulance had arrived.
She was also in the car when Mrs Andrews drove Mr Shevlin home. Mr Shevlin told her that he had just punched someone in the face.
Ms Wiggins knew Mr Shevlin through Mr Shevlin’s brother who was one of her best friends.
She said that she had been out on many occasions when Mr Shevlin was drinking and had seen him get pretty drunk. She said she had never seen him become aggressive with people when he was drunk; indeed, she said that she did not think she had ever seen him be aggressive or violent. She had seen him play rugby union but had, in the few games she had seen, never seen him get into an altercation during a game.
A written reference from Ms Wiggins was tendered. In it she described Mr Shevlin as “a loyal friend and a kind and caring person”. She wrote that he was not violent and “cares deeply about his friends”. She said that the charges were “completely out of character”.
(c) Mr John Gasson
Mr John Gasson, managing director of the company that employed Mr Shevlin, said that he had known Mr Shevlin since about late 2007. He did not deal directly with him but had seen him on site on a weekly basis, had seen reports and tender recommendations that he wrote and had seen him at social functions such as Christmas parties.
He said that he could not recall any special behaviour when Mr Shevlin was drinking.
He said that Mr Shevlin had an excellent character; he was an employee with potential. He said he was honest and reliable, that the company relied on him a lot and entrusted him with some “very large packages”. He had received some promotions within the company.
Mr Gasson wrote a reference which stated that the company remained “extremely supportive of [Mr Shevlin’s] employment and long term development”. The reference was tendered.
(d) Mr Sean Smith
Mr Sean Smith was also a friend of Mr Shevlin; he had known him for about ten years. He said they went to primary school together and grew up “together, [as] mates.” Mr Smith currently worked in the hospitality industry.
He said he saw Mr Shevlin about once a month. He had a high reputation among his friends and was honest and responsible.
He made reference to an incident some years before when he and Mr Shevlin saw a man being “bashed” in Civic. Mr Shevlin decided they should help him and they put him in a taxi and took him to the hospital emergency department.
Mr Smith said he had also seen Mr Shevlin when he was drunk and that he was “a pretty happy drunk”.
Mr Smith agreed that he himself was not at the Holy Grail and had not seen the CCTV recording.
He said that when Mr Shevlin gets drunk he does not get stupid. He had seen him drunk on occasions. Because of his work, Mr Smith would join Mr Shevlin and his friends late at night and so had seen him when he had been already drinking though he, Mr Smith, would be sober. He described Mr Shevlin then as “in good spirits”; he was not easily irritated. He denied that Mr Shevlin was a person who overreacts. He had seen Mr Shevlin play football aggressively but had never seen him aggressive “while being out on the town”.
(e) Written evidence
Two written character references were tendered without objection.
The first was from Brother Ron Newton fms, who had been a friend of Mr Shevlin when the latter was at school. It was not clear whether Br Newton had taught him or not. He said that Mr Shevlin had impressed him with “his high level of commitment, loyalty and dedication to being an achiever.” He said that Mr Shevlin’s life revolved around his family, friends, work and sports participation.
Br Newton said that Mr Shevlin had been “quite vocal in his condemnation of individuals who engage in anti-social behaviour”. He was surprised to learn that Mr Shevlin had been charged with an assault offence.
The second was from Mr Ken Cush, a prominent Canberra lawyer. Mr Cush had known the family because his and their children attended the same schools. He had known Mr Shevlin for twenty years and he was Mr Cush’s son’s best friend.
He said that Mr Shevlin was “a good young man who approached his sport with enthusiasm and was a good friend to [his] son”. He said that although he was a good competitor on the football field, where he was “a ferocious tackler”, he had never seen Mr Shevlin involved in a fight or other improper physical altercation. He, too, was surprised to learn that Mr Shevlin had been charged with the assault offence and considered the actions suggested to be quite out of character.
This evidence, together with that of Ms Wiggins, Mr Gasson and Mr Smith, is not, of course, directly relevant to the events at the Holy Grail since none of the witnesses were present and saw the incident.
The evidence is relevant in two ways, as described by King CJ, with whom White and Mohr JJ agreed, in R v Trimboli (1979) 21 SASR 577 at 578. That is, it is to be taken into account when considering whether I am prepared to draw from the evidence the conclusion that Mr Shevlin is guilty of the offences charged, and, also, that his prior good character must be borne in mind when assessing the credibility of the explanation given by him and his credibility as a witness.
I remind myself also, however, that people do commit crimes for the first time and that evidence of good character cannot prevail against evidence of guilt which is convincing, notwithstanding Mr Shevlin’s good character.
Submissions
There was no doubt that Mr Shevlin hit Mr Maloney and almost certainly punched him in the face. Evidence of a mere push can be discounted and Mr Shevlin himself gave evidence of a punch. There is also no doubt that, as a result, Mr Maloney received really serious injuries. Those injuries amounted indisputably to grievous bodily harm. These matters were not in dispute.
The issue in the proceedings was whether the prosecution had negated self-defence. The prosecution did not contend that Mr Shevlin did not believe that he had to punch Mr Maloney in order to protect himself and Mr Smith. Mr T Hickey, counsel for the Crown, put it this way:
So the issue is not so much whether, in this case, Mr Shevlin held the belief but whether but, whether it was held on reasonable grounds and for that your Honour would have to use the state of a sober person in the situation that Mr Shevlin was faced at in a nightclub situation where Mr Maloney had just come up and approached him.
This submission was in part based on the submission that s 33(3) of the Criminal Code 2002 (ACT) prohibited a court from considering self-induced intoxication in certain circumstances, as Mr Hickey articulated it, “where ... assessing whether or not a person holds a reasonable belief”.
He said:
In my submission, your Honour, the prosecution has negated self defence because it’s clear from the evidence and the CCTV footage that Mr Maloney comes up to Mr Smith firstly and Mr Shevlin’s standing beside him and he uses that hand by the side expression as to say well what’s going on? What was that for? And remember this occurred just after he’d been reefed backwards onto the floor.
So he’s got up, he said what was this for? And that stage your Honour can see in the footage that Mr Smith pushes him in the chest and it’s as he’s going backwards in a backwards direction that Mr Shevlin clearly moves from his position where he was standing and it appears that he’s taken a step or two and at that stage has thrown a punch ...
Mr Shevlin of course denied that, he said that he punched him where he was standing at the time but that simply doesn’t correlate with the CCTV footage. And in those circumstances, your Honour, Mr Shevlin couldn’t have held – there was no reasonable grounds to hold the belief that it was necessary to act in self defence where Mr Maloney was already heading in a backwards direction, being pushed away by Mr Smith.
Mr Hickey submitted that Mr Shevlin’s assertion that Mr Maloney was aggressive was inconsistent with the evidence of other witnesses. He also relied on the evidence that, at the stage when he was hit, Mr Maloney was moving backwards. He referred to the evidence of Mr Byam Wight that Mr Maloney’s body language was not aggressive and of Ms Sandhu that Mr Maloney was not doing anything before he was punched.
Mr Hickey took me carefully through the CCTV recording. He pointed out where it showed events on which his construction of the events was based. It was very helpful, but what could be seen was by no means explicit at all points and certainly not unambiguous.
Mr Hickey also addressed me on the mental element of the first count. In light of my findings, I do not, fortunately, have to go down that potentially problematic track.
So far as self-defence was concerned, Mr Hickey submitted that:
(a) Mr Shevlin could not have believed on reasonable grounds that Mr Maloney was a threat to him or Mr Smith. He says Mr Maloney was standing still at the time, Mr Maloney was moving backwards because of the push by Mr Smith and it was then that Mr Shevlin moved in, taking a step or two and hitting Mr Maloney;
(b) The force used was disproportionate to the threat Mr Maloney posed; and
(c) Mr Shevlin’s subjective view could not have been that reasonable proportionality existed.
Mr F J Purnell SC, who appeared for Mr Shevlin, made certain submissions about the first count also. Again, I can, with due respect, put those aside because of my ultimate findings.
Mr Purnell submitted that Mr Shevlin’s intention was clearly to defend himself. He pointed out that, though in hindsight he may have recognised there were other alternatives available to him, that did not mean that this is what he was thinking at the time of the incident.
He addressed me also on the effect of ss 31 and 33 of the Criminal Code and submitted that I should follow what Crispin J had decided in J A v Goldsmith [2004] ACTSC 79.
He submitted that the CCTV recording showed that after Mr Maloney stood up from the ground, he was moving forward. He said that Mr Shevlin was in a fighting stance, consistent with his evidence that he had adopted the stance to protect himself from what he thought was going to happen.
Mr Purnell submitted that I should not accept the evidence of Mr Bergmann or of Mr Damien Wight or Mr Byam Wight, at least so far as their assessment of Mr Maloney is concerned. I should prefer the CCTV recording. He used the football analogy that I was in the position of the video referee, with ability to slow the motion of the recording but I must recognise that the events took less than a minute.
He also reminded me that, in assessing the question of self-defence, I must take a pragmatic approach.
Thus, as stated by Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 662-3, I should approach my task
in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
Mr Purnell also submitted that while the CCTV recording is of great assistance, it should not overshadow other evidence. For instance, there is no recording of what, if anything, Mr Maloney said; there is no sound, we cannot see his face and it is not a continuous recording of all the events.
He submitted that there was no doubt from what I could see on the CCTV recording, supported by the character evidence, that Mr Shevlin was, if as drunk as he admitted, in a happy mood. Indeed, his interaction with Mr Pizania could justify a finding that he was in a playful mood.
Again, he submitted that, despite it being odd that Mr Shevlin would, as is undoubtedly clear on the CCTV recording, assist Mr Maloney from the floor if he had been aggressive earlier, this simply shows that he is a decent young man.
He submitted that Mr Maloney had taken a step forward after he stood up or had been helped up from the floor and that his stance was a threatening one. He also submitted that I should not be overly influenced by the description of the initial approach of Mr Maloney to Mr Shevlin as a ‘hug’, a term that is redolent of anodyne non-aggression when it could have been as easily describable as Mr Maloney manhandling Mr Shevlin, at the very least being annoying if not aggressively so.
He also submitted that it would not make sense for Mr Shevlin to help Mr Maloney from the floor and then punch him unless Mr Maloney had shown aggression thereafter. He pointed out that, when questioned by police, only about sixteen hours later, and without the benefit of legal advice, Mr Shevlin raised fairly and squarely the issue of self-defence at the first opportunity. He also noted that Mr Shevlin honestly admitted that he acted in a cowardly way in leaving the scene.
Consideration
While it is easy to articulate what the sole issue is in this case, it is not as easy to decide.
While the Crown did not formally concede that Mr Shevlin believed that he needed to punch Mr Maloney in order to protect Mr Smith and himself from the attack he saw likely to come from Mr Maloney, Mr Hickey did not really submit to the contrary and, having considered all the evidence, I consider that Mr Shevlin believing this is not only a reasonable position, but a finding that I would and will make. I have regard to the evidence of Mr Shevlin’s interview with police, the character evidence adduced on his behalf, the evidence of Mr Smith, what I saw on the CCTV recording and the evidence of Mr Shevlin himself and his demeanour when he gave it.
The real issue then is whether he had reasonable grounds for so believing. The first issue is what role, if any, is played by the fact that Mr Shevlin was well-affected by alcohol.
I addressed that at some length in Gibbs v Willis [2013] ACTSC 26. I do not need to repeat what I there said. The critical interaction of the Criminal Code and self-defence was decided by the Court of Appeal in Dal Cortivo v The Queen (2010) 204 A Crim R 55, where the court said (at 62; [42], [44]-[45]):
The fact of intoxication cannot be ignored in determining whether, as a matter of fact, the knowledge or belief existed. Whether it is a reasonable belief may, of course, be adjudged according to the standard of a person not intoxicated.
...
In the present case, it was, in our view, necessary to consider the role of ‘belief’ in assessing the existence of reasonable grounds. Whether there are reasonable grounds for a relevant belief is an objective test but how the accused actually perceived those grounds is a question of fact.
In the present case, it seems to us to have been misleading to ask whether by the standards of a sober person there were reasonable grounds for the appellant to consider that it was necessary for him to act in self-defence. Rather, the jury should have been directed that unless they were to reject the evidence both of the complainant and the appellant as to what the complainant said, they could not be satisfied that there were no reasonable grounds for a belief that the appellant needed to act as he did in self-defence.
As I explained in Gibbs v Willis (at [165]):
Thus, in order to discharge its onus of proof, the prosecution must show, not only that [the accused] did not actually believe that it was necessary to do what he did to protect [the accused’s friend], but that there were no reasonable grounds for the belief of [the accused] to do what he did. That is to say, the prosecution had to prove beyond reasonable doubt that there were no such grounds and, in deciding whether the prosecution has discharged that onus, the court is required not to ask whether a reasonable sober person would have thought that there were reasonable grounds for that belief, but whether it was reasonably possible that there were grounds for such a belief. This is the objective part of the test, not dependent on the sobriety or otherwise of the accused or defendant.
The evidence on which the Crown relies is that of:
(i) Mr Damien Wight and Mr Byam Wight: that Mr Maloney was pleasant and amenable to them and seemed happy at the time; that he hugged one of Mr Shevlin or Mr Smith, suggesting a friendly act; that when he stood up, Mr Maloney was bewildered and non-aggressive, asking “What did I do?”;
(ii) Mr Bergmann: that Mr Maloney had been keeping to himself, that he had gone up to Mr Smith and Mr Shevlin, tried to join in their dancing and that Mr Shevlin had taken a step back and hit him;
(iii) Ms Sandhu: that when Mr Shevlin punched Mr Maloney, Mr Maloney was not doing anything before he was hit;
(iv) Mr Pizania: that Mr Maloney was happy that evening and that Mr Shevlin punched him at which time Mr Maloney was not doing anything with his hand; and
(v) the CCTV recording and especially the position of Mr Maloney’s hands and arms immediately before he was knocked to the floor.
There is one matter that I should deal with at this point. Mr Purnell submitted that, although Mr Shevlin had admitted to hitting Mr Maloney, I did not need to make that finding. It was not, for example, seen on the CCTV recording. Both Mr Byam Wight and Mr Damon Wight said that Mr Shevlin merely pushed Mr Maloney. He said that Mr Shevlin may have believed that he did hit him, but he was very drunk at the time and his perception and memory may have been affected.
I reject that submission. I am satisfied that Mr Shevlin did punch Mr Maloney. It is quite possible from the CCTV recording, which I have played at least twenty times in order to see how I could interpret it, that Mr Smith also pushed Mr Maloney and at the same time. Whether the push or the punch actually knocked Mr Maloney to the floor may be a nice question of causation. It was possibly a combination of both. I do not have to make that finding.
Whether Mr Maloney was aggressive when he stood up from the floor and was in front of Mr Shevlin is not clear from the CCTV recording. I accept that it could be so interpreted, but not necessarily. I am not satisfied from that evidence itself that Mr Maloney was not aggressive at this point of time such that it was not reasonable for Mr Shevlin to believe that he or Mr Smith were at some risk of injury from him.
The clearest evidence for the prosecution is that of Mr Byam Wight. It is, however, subject to a number of problems. He describes first seeing Mr Shevlin and Mr Smith in a scuffle. The CCTV recording shows that this is incorrect. He said that Mr Pizania walked up and spoke to them. The CCTV recording shows that this is incorrect. He said that Mr Maloney hugged Mr Smith and that Mr Shevlin pulled Mr Maloney to the ground by the collar. The CCTV recording shows that this is incorrect. He says that Mr Shevlin did not assist Mr Maloney then to get up from the floor or at least he did not think it happened, though he could not say definitely. The CCTV recording shows it did happen. Much of Mr Wight’s evidence was what might be called “interpretative” where he infers what Mr Maloney is saying or thinking from what he sees – much of it from looking at his back. Some of this is quite inconsistent with what can be seen on the CCTV recording or with other evidence. It seems to me to have affected his evidence.
I do not think that Mr Byam Wight was other than honestly saying what he recalled but I am not prepared to rely on his evidence to make a finding beyond reasonable doubt. It seems to me that his memory of the events was not as accurate as was suggested and that it has been subtly influenced by his knowledge of Mr Maloney so as not to be as objective in his description as would be required for me to rely on it to make a finding to the requisite degree.
The evidence of Mr Damien Wight was not inconsistent with Mr Shevlin’s version of events.
Mr Bergmann’s evidence was helpful in confirming that Mr Maloney was punched but, viewing the CCTV recording, he was by no means as close to the events as he suggested. He said he saw Mr Maloney go up to Mr Shevlin but he did not see Mr Maloney put his arms around him (the ‘hug’). He also did not apparently see the first time Mr Maloney went to the floor, even though he seemed to suggest he had seen all that occurred between them. His evidence was, accordingly, difficult to accept in its entirety. His evidence was that Mr Shevlin stepped back before punching Mr Maloney. I could not see from the CCTV recording that this occurred. His evidence otherwise is not inconsistent with that of Mr Shevlin. His evidence is not a solid foundation on which to make a finding beyond reasonable doubt.
Ms Sandhu’s evidence, at its highest, was that she did not see Mr Maloney do anything with his hands before he went to the floor the second time. That is not consistent with what is clearly shown on the CCTV recording.
Finally, Mr Pizania’s evidence was not only inconsistent with what I saw on the CCTV recording, it was inconsistent with what he told the police when they arrived on the evening. I reject his evidence as unreliable.
I have looked carefully at the CCTV recording and I accept that the Crown’s interpretation of what is happening as the events unfold is a possible interpretation of some of the events. It is possible that Mr Maloney is holding his arms out in a somewhat bewildered fashion, though that seems to me only really to apply to his left arm as his right is higher and may be perceived as in a more threatening position.
I am not persuaded, however, that this is the only reasonable interpretation of what Mr Maloney is doing. I do not consider that what I see on the CCTV recording is inconsistent with what Mr Shevlin says he perceived.
I also take into account that when Mr Pizania first spoke to police on the evening, he said that he had received reports of Mr Maloney starting fights with patrons. The evidence of Mr Maloney being aggressive when the police and ambulance officers arrived is arguably neutral because that is a not uncommon consequence of concussion but it does seem to me to lend some weight to the view that Mr Maloney was not necessarily a “happy drunk” throughout the evening.
I also accept that it is unlikely that Mr Maloney was physically aggressive when he first approached Mr Shevlin and Mr Smith. While Mr Smith was not a completely satisfactory witness, I accept that Mr Maloney was being rude and obnoxious at that time. That is consistent, too, with Mr Shevlin helping Mr Maloney from the floor when he was pulled down with him by Mr Smith. If, as Mr Shevlin says, Mr Maloney, when he stood up, was aggressive, as would be reasonable to suppose, he having just been pulled quite violently to the floor by Mr Smith, not Mr Shevlin, then that would explain not only why Mr Shevlin helped him up – an odd thing to do, perhaps, if Mr Maloney had earlier been aggressive – but also why Mr Shevlin acted as he did, as the aggression would have been quite unexpected.
It also explains why Mr Maloney may appear aggressive toward Mr Smith who was the cause of Mr Maloney ending up on the floor the first time.
Mr Shevlin was also wrong on a number of issues when he spoke to police. I have, however, scrutinised his evidence carefully and I do not consider that it is so unreliable to the extent that I should reject his evidence of how Mr Maloney was approaching him both initially or after he had helped him from the floor or at least could reasonably have been perceived to have been approaching him.
Conclusion
I have carefully scrutinised the evidence and have carefully reviewed my contemporaneous notes. I have, as I have noted, looked a number of times at the CCTV recording and compared it with the transcript of the evidence of the witnesses.
I am not satisfied beyond reasonable doubt that the Crown has shown that Mr Shevlin was not acting in self-defence when he punched Mr Maloney. He must be acquitted. I shall proceed accordingly.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: May 2013
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Purnell SC
Solicitor for the defendant: Porters Lawyers
Date of hearing: 26-8 July 2010
Date of judgment: 17 May 2013
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