R v Watherston

[2019] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v WATHERSTON

Criminal Trial by Judge Alone

[2019] SASC 109

Reasons for the Verdict of The Honourable Justice Bampton

1 July 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY

Trial by judge alone – accused charged with manslaughter by unlawful and dangerous act – where deceased died after being punched in the face and falling backwards onto the footpath – whether accused acted in self-defence.

Held: accused not guilty.

Criminal Law Consolidation Act 1935 (SA) s 13, referred to.
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, applied.
R v Nguyen (1995) 36 NSWLR 397; R v Calides (1983) 34 SASR 355, considered.

R v WATHERSTON
[2019] SASC 109

Criminal Trial by Judge Alone

BAMPTON J.

Introduction

1. In the early hours of Sunday 10 December 2017, just as the nightclubs were closing, a group of friends emerged from the HQ nightclub and another group from the Electric Circus nightclub.  The two groups converged on the footpath near the Metro Convenience store and the taxi rank on the corner of Hindley and Morphett Streets.  Seconds after 5.20 am, Reece Andrew Watherston punched Jack Thomas Hanley in the face causing Mr Hanley to fall backwards without breaking his fall and strike the back of his head on the footpath.  The punch delivered by Mr Watherston was captured by chance on a Snapchat video by a passerby from his vehicle as he was waiting to turning right into Hindley Street from the Morphett Street Bridge.  Police and ambulance officers attended.  Tragically, Mr Hanley died at the scene despite resuscitation efforts.

2. Mr Watherston was arrested and charged with the manslaughter of Mr Hanley.  Mr Watherston pleaded not guilty at his arraignment, and elected to be tried by Judge alone.  I commenced hearing the trial without a jury on 7 May 2019 and heard closing addresses on 23 May 2019.

   The prosecution case

3. It is alleged that Mr Watherston, on 10 December 2017 at Adelaide, unlawfully killed Mr Hanley contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).

4. The prosecution relied on the punch that resulted in Mr Hanley’s death being an unlawful and dangerous act.  It was asserted that Mr Hanley was aggressively pursued by Mr Watherston for the purposes of delivering the blow that killed him.  The prosecution contended that Mr Hanley was “physically jumping away” and “trying to avoid what [was] happening”.[1]

   [1]    T18.

5. The prosecution alleged that following a verbal altercation between Mr Hanley and Mr Watherston’s groups, a physical altercation developed.  It was asserted that Mr Hanley “seems to have done little more than just stood by”.[2]

   [2]    T12.

6. It was the prosecution case that somehow Mr Hanley became involved in a “one on one”, probably with Lucas Hughes, a friend of Mr Watherston’s, at which point Mr Watherston jumped in and attacked Mr Hanley.  Mr Hanley then put up his hands to try and defend himself, while backing away from Mr Watherston.[3]

   [3]    T17.

7. It was alleged that at 5.20:28 Mr Watherston struck Mr Hanley with “as much force as possible” and he was “likely to have been immediately knocked unconscious by the force of the punch”.[4]

   [4]    T19.

   Mr Watherston’s case

8. Mr Watherston claimed that he struck Mr Hanley once.  He asserted that he reasonably and genuinely believed it was necessary to defend himself and that the single punch was proportionate in the circumstances.

   Directions as to the law

   Manslaughter

9. For present purposes, the crime of manslaughter is committed by an individual when that person deliberately performs an unlawful and dangerous act and thereby causes the death of another person.  In the circumstances of the present case, the prosecution must prove each of the following elements beyond reasonable doubt:

   (1)a punch by Mr Watherston to Mr Hanley caused his death;

   (2)the punch was a conscious and voluntary act, being the result of the exercise of Mr Watherston’s will and not the result of an accident;

   (3)the punch by Mr Watherston constituted an unlawful physical assault upon Mr Hanley carried out in circumstances where a reasonable person would have realised that he was exposing Mr Hanley to an appreciable risk of serious injury; and

   (4)the punch was inflicted without any lawful justification or excuse, such as lawful self-defence or defence of another person.

   It is this last element that is the issue in this matter.

   Self-defence

10. As Mr Watherston has raised the defence of self-defence, the defence is taken to have been established unless the prosecution proves beyond reasonable doubt he did not act in self-defence.

11. Mr Watherston has a defence to a charge of manslaughter if:[5]

    (1)he genuinely believed that his conduct was necessary and reasonable for a defensive purpose; and

    (2)his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed he faced.

    [5]    Criminal Law Consolidation Act 1935 (SA) s 15.

12. In Zecevic v Director of Public Prosecutions (Vic),[6] Wilson, Dawson and Toohey JJ, with whom Mason CJ and Brennan J agreed, said that in considering whether the force used in self-defence was proportionate to the threat, “the whole of the circumstances should be considered, of which the degree of force used may be only part”.[7]  The Court said that in undertaking this assessment the fact finder should approach the “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”.[8]

    [6] (1987) 162 CLR 645 ("Zecevic").

    [7] (1987) 162 CLR 645 at 662.

    [8] (1987) 162 CLR 645 at 662-663.

13. The High Court in Zecevic also referred to the situation where an accused claiming self‑defence was the original aggressor and provoked the assault against which he claims the right to defend himself.  The Court said it is for the fact finder to “consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self‑defence”.[9]  The Court explained that in assessing this it will be the “extent to which the accused declined further conflict and quit the use of force or retreated from it”.[10]  The Court went on to state that where:[11]

    … the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief.  There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself.  It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self‑defence:  Howe, per Dixon CJ; Viro, per Gibbs J.

    [9] (1987) 162 CLR 645 at 663.

    [10] (1987) 162 CLR 645 at 663, also 666.

    [11] (1987) 162 CLR 645 at 663.

14. Mr Watherston cannot claim to have been acting in self-defence if he engaged willingly in a fight.  As Priestly JA said in R v Nguyen:[12]

    … self-defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self-defence is necessary for the person’s own protection from harm.  Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on ‘or settle a quarrel, or for some other reason.  Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self‑defence in one sense will be necessary, which may lead to the injury or death of the opponent.  That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful.

    The first limb of self-defence

    [12] (1995) 36 NSWLR 397 at 407.

15. Before finding Mr Watherston guilty of manslaughter, I must be satisfied not only that all of the elements of the offence have been proved beyond reasonable doubt, but also that the prosecution has proved beyond reasonable doubt that he did not hold a genuine belief that his conduct was necessary and reasonable for a defensive purpose, that is, to defend himself.

    The second limb of self-defence

16. If the prosecution has not proved beyond reasonable doubt that Mr Watherston did not hold a genuine belief that his conduct was necessary and reasonable for a defensive purpose, I must then be satisfied that the prosecution has proved beyond reasonable doubt that his conduct was not, in the circumstances as Mr Watherston genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.

17. If it is reasonably possible that Mr Watherston was acting in self-defence then he is not guilty of manslaughter.

18. There is no dispute that Mr Watherston delivered the single punch to Mr Hanley’s face causing him to fall backwards and sustain the blunt head trauma that caused his death.

19. The issue for my determination is whether the prosecution has excluded as a reasonable possibility that Mr Watherston was acting in self-defence.

    Presumption of innocence

20. In considering the issue which arises for determination, I bear in mind at all times that Mr Watherston is presumed to be innocent and does not have to prove that he is innocent.  Mr Watherston is to not be convicted unless and until I am satisfied beyond reasonable doubt of his guilt.  

21. It is necessary to examine carefully all of the evidence in order to determine what evidence is to be accepted and then to consider what inferences can be safely drawn from that evidence.  Mr Watherston is not to be found guilty unless there is no reasonable explanation of all the accepted evidence other than that he is guilty of the crime of manslaughter.  To put that another way, if there remains any reasonable hypothesis consistent with the innocence of Mr Watherston, he must be acquitted.

22. Whenever I use terms such as “accept”, “satisfied”, “established” or “proved” in my reasons, I mean accept, satisfied, established, or proved beyond reasonable doubt.

    Assessment of witnesses

23. In evaluating witnesses, I have considered the witnesses’ credibility, that is, their honesty and their reliability.  I have done so based upon a consideration of their evidence in the context of the case as a whole, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.

    Expert witnesses

24. The prosecution called the forensic pathologist Dr Gilbert and the pharmacologist Prof White.  Mr Watherston called Prof Spring, an expert in scientific photography.

25. As the sole judge of the facts I am entitled to assess and accept or reject any such opinion evidence as I see fit.

    Mr Watherston gave evidence

26. Mr Watherston chose to give evidence.  He could have remained silent, leaving it to the prosecution to satisfy me of all the elements of the charge.  I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.

27. The effect of this is that, in assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness.  It is for me to decide what weight I am prepared to attach to his evidence in the same way as it is for any other witness.

    Intoxication

28. Most of the witnesses in this matter had been up all night, many of them had been drinking, and some had taken drugs over the course of the evening leading up to what happened on the footpath.  It is common experience that people who are intoxicated behave uncharacteristically.

29. Consumption of alcohol and drugs can have a significant effect on both perception at the time of an event and subsequent recollection of those events.  It can also affect memory or capacity for recall as well as affect a person’s state of mind and how they may perceive the words or actions of someone else.

30. Prof White gave evidence about the effects of intoxication on motor and cognitive skills.

31. Many of the witnesses gave evidence that they had consumed substantial amounts of alcohol.  Some admitted to taking other drugs.  During prosecution closing address I commented about the apparent frankness of the witnesses regarding their alcohol consumption.

32. A number of witnesses gave evidence that they could not remember crucial events.  I am unable to determine whether this is because they genuinely have no recollection because of intoxication or if they have selectively chosen not to give evidence about events out of self-interest, or self‑protection, or protection of friends.

33. The lack of recall may also be explained, as the prosecutor suggested, by the witnesses, after a shocking event which results in the death of a young man just like themselves, trying consciously or unconsciously to interpret what had happened in a way that left their friends and themselves in the best possible light.  As the prosecutor suggested, lack of recall can be a way of avoiding personal feelings of responsibility.  I have cautiously assessed the evidence of these witnesses. 

34. I keep in mind the prosecution submission that because of the difficulties with the evidence given by the witnesses who spoke about the amount of alcohol and other drugs that they had consumed, that the evidence of “the independent sober witnesses” must be returned to.

35. I have also had regard to the consumption of alcohol and other drugs when assessing the subjective limb, that is the first limb, of self-defence, and that part of the defence only.

    The circumstances in which observations were made

36. In considering the evidence of each witness I have kept in mind the circumstances under which the witness made observations, including: the length of time the activity was observed; the nature of the activity under observation; the suddenness and speed of the activity under observation; the confusion of the situation generally; any threat or concern the witness perceived for themselves at the time, and their opportunity to make observations; the lighting and other conditions; the number of persons of similar appearance kept under observation at the time; and any impairment that the witness was suffering from at the time.

    Good character

37. I heard evidence to the effect that Mr Watherston is a person who is of good character.  All of his friends whose evidence I discuss below gave evidence to this effect.  The witnesses Terry McWilliams and Andrew Morgan also gave evidence about Mr Watherston’s good character.  I bear in mind the evidence of Mr Watherston’s previous good character when considering the credibility of the evidence he gave about the events of 9 and 10 December 2017.

    Prior inconsistent statements

38. There is evidence before me that certain witnesses made statements to the police and to the prosecutors which are inconsistent with the evidence they gave in court.

39. Any prior inconsistent statement goes only to the reliability and credibility of the evidence given from the witness box in court.  If a witness gives sworn evidence that is significantly different from statements made on an earlier occasion, I must exercise caution before accepting the sworn evidence of the witness.

40. It is for me to assess the significance of each inconsistency that I find proved.  The more significant the inconsistency, the greater the risk the sworn evidence will be unreliable.

    Flight

41. I heard evidence in the trial that Mr Watherston walked away after the fatal punch.  There may be any number of reasons for Mr Watherston leaving as he did, for example, panic or fear. 

    The location

42. On the second day of trial, I went on a view of the location of the alleged offending to help me understand the evidence I heard during the trial.  I have not relied on my observations on the view as evidence.  I have relied solely upon the evidence in the case.

    The intersection of Hindley and Morphett Streets

43. At the northeast corner of the intersection of Hindley and Morphett Streets in Adelaide (“the intersection”) stands the Rosemont Hotel (“the Rosemont”).  At the southeast corner of the intersection stands the Metro Convenience Store (“the Metro”).  On the south side of Hindley Street, neighbouring the Metro to the east, is the HQ nightclub complex (“HQ”).  On the east side of Morphett Street, neighbouring the Metro to the south, is the Lady Love Pole Dance Studio (“the pole dance studio”).  At the intersection, there are dedicated right hand turning lanes for vehicles to turn right from the Morphett Street Bridge to travel west on Hindley Street.

44. A service alleyway runs parallel to Hindley Street, to the south of HQ (“the HQ alleyway”).  Crippen Place runs parallel to Hindley Street, to the north of the Rosemont.  At the end of Crippen Place is a nightclub, Electric Circus.  In the same building is Rocket Bar and Rooftop (“Rocket”).

45. Travelling north along Morphett Street past the intersection, the road slopes up to a bridge over North Terrace (“the Morphett Street Bridge”).

    The taxi rank

46. On the southeast corner of the intersection there is a footpath extension westward into Morphett Street.  The footpath extension also creates a bay along Morphett Street which is zoned as a taxi rank (“the taxi rank”).  Four taxis can comfortably rank in the taxi rank.  The southern or “top” end of the taxi rank, where the first taxi would rank, terminates just north of the entrance to the HQ alleyway.

47. The events I heard evidence about occurred in the main on the footpath with the Metro and the pole dance studio to one side, and the taxi rank to the other (“the footpath”), and predominantly under the awning of the Metro, at the northern or “bottom” end of the taxi rank.

48. The corner of the Metro is chamfered.  In the chamfered wall sits a neon sign.  Along the northern façade of the building, which faces Hindley Street, are floor to ceiling glass windows.  Along the western aspect façade of the building, which faces Morphett Street, are two signs in metal frames with a metal bar dividing them; the signs are headed “Metro Convenience Store” (“the Metro signs”).  Further south along the western façade of the Metro are three evenly spaced smaller glass bricked windows and one larger glass bricked window.  Between the first two smaller windows, and 3.5 metres south of the metal bar dividing the Metro signs, is an electrical conduit running up the wall.  Some witnesses referred to this as a downpipe.  At the southern edge of the Metro building the awning ends. 

49. The next building on from the Metro along Morphett Street is the pole dance studio.  In the façade of the pole dance studio is a glass bricked window that is larger than any of the glass bricked windows in the Metro.  There is then an entrance with signage above it.

50. Moving south away from the intersection along Morphett Street, the footpath slopes upwards.  On the footpath, in line with the chamfered wall of the Metro, is a concrete inspection point cover.  Moving further south, there is a square manhole cover in line with the Metro signs.  There are then two traffic light signal boxes.  The blue signal box, the larger of the two, bears a yellow sticker and it stands 3.6 metres away from the western façade of the Metro.  Adjacent the blue signal box is a second inspection point cover.  The second green signal box is to the south of the blue signal box and is slightly smaller.  Slightly southwest of the green signal box is a third inspection point cover.  The signal boxes were referred to by witnesses as electrical boxes or meter boxes.  Between the green signal box and the kerb is a small streetlight post.

1. Further south along the footpath there are three palm trees set into the footpath adjacent the kerb of the taxi rank.  The first of these is 3.3 metres south of the green signal box.  Between this palm tree and the next there are two fixed public bins, which are approximately in front of the larger window at the southern end of the Metro building.  The second palm tree is approximately between the window and entrance of the pole dance studio.  There is another small streetlight post between the second and third palm trees.  The third palm tree is in front of the building to the south of the pole dance studio.  Beyond it is the top of the taxi rank and the entrance to the HQ alleyway.

2. Beyond the HQ alleyway, as Morphett Street deviates eastward around Light Square, there is a sunken courtyard out the front of Technical and Further Education (“TAFE”) SA building (“the sunken TAFE courtyard”).  There are small streetlight posts around the courtyard.

   The evidence

   The video evidence

   The Police Security Services Branch cameras

3. The prosecution tendered into evidence discs of footage from three closed circuit television (“CCTV”) cameras operated by the Police Security Services Branch (“PSSB”), which are among an array of numbered CCTV cameras operated by PSSB in Adelaide.  The footage was taken from 5.00 am to 6.00 am on 10 December 2017.  The footage from cameras 21 and 38 is Exhibit P7.  Cameras 21 and 38 were mounted under the awning of the Metro, at its northwest corner.  The footage from camera 23 is Exhibit P17.  Camera 23 was mounted on a pole on the Morphett Street Bridge, 140 metres from the southern side of the intersection.  The three cameras could pan and zoom on demand.  It was agreed that the time and date shown in the top left-hand corner of the footage from these cameras was accurate.

   Mr Miller’s phone camera

4. The prosecution witness Andrew Miller took 20 seconds of footage on his Apple iPhone on 10 December 2017.  A disc of the original video footage taken by Mr Miller with the audio redacted is Exhibit P2 (“the original Miller footage”).

5. A disc of a stabilised version of the video footage taken by Mr Miller is Exhibit P3 (“the stabilised Miller footage”).  The footage was processed using bespoke software to stabilise the effect of camera movement.  The stabilised Miller footage (Exhibit P3) of some 17 seconds is redacted and stabilised from the original Miller footage (Exhibit P2) of some 20 seconds.  By a comparison of the initial frame of the stabilised Miller footage with a frame at approximately two seconds on the original Miller footage, I infer that some initial two seconds are redacted and the remaining 18 seconds have been compressed by the software to run over 17 seconds.

6. A disc of the video footage taken by Mr Miller, stabilised and slowed down to one quarter speed is Exhibit P4 (“the slow-motion Miller footage”).

7. A disc of 600 jpeg stills taken from the original Miller footage is Exhibit P5 (“the Miller stills”).

   The taxi cameras

8. CCTV footage with audio from four taxis was received into evidence.  The footage in each instance was from several cameras and displayed in a split-screen format.

9. Footage was taken from approximately 5.17 am to 5.31 am on 10 December 2017 from Suburban Taxis taxi number 2447, driven by Audom Heng, whom the prosecution called as a witness.  Mr Heng’s taxi had three cameras: one internal camera directed at the driver, another internal camera directed at the passengers, and one external camera mounted on the roof and directed to the right.  The disc of the footage from Mr Heng’s taxi is Exhibit P11.

10. Footage was also taken from approximately 5.08 am to 5.53 am on 10 December 2017 from Suburban Taxis taxi number 2586, driven by Sanjay Kumar, whom the prosecution also called as a witness.  Mr Kumar’s taxi had three cameras that were rigged similarly to those in Mr Heng’s taxi.  The disc of the footage from Mr Kumar’s taxi, which was spread over three files, is Exhibit P12.

11. Footage was also taken from approximately 5.08 am to 6.08 am on 10 December 2017 from Adelaide Independent Taxis taxi number 2574, driven by Goran Kovacevic.  Mr Kovacevic’s taxi had three cameras that were rigged similarly to those on Mr Heng and Mr Kumar’s taxis.  The disc of the footage from Mr Kovacevic’s taxi, which was spread over four files, is Exhibit P15.  The time stamp shown on the Kovacevic taxi footage is eight seconds earlier than real time.  This can be confirmed by making reference to the camera 23 footage, which shows that the vehicles travelling south along Morphett Street from the Morphett Street Bridge get a green light to cross Hindley Street at 5.18:52; that green light is depicted in the Kovacevic taxi footage on the external camera at 5.18:44.  As it was agreed that the time shown on the camera 23 footage is accurate, I infer that the Kovacevic taxi footage time stamp is eight seconds early.  Exhibit P16 comprises this footage, which has been compiled to include the stabilised Miller footage.

12. Finally, footage was taken from approximately 5.00 am to 5.30 am on 10 December 2017 from Suburban Taxis taxi number 879.  Taxi 879 had three cameras: one internal camera directed at the driver and the passengers, one external camera mounted on the roof and directed to the right, and one external camera also mounted on the roof but directed to the left.  The disc of the taxi 879 footage is Exhibit P18.  The time stamp shown on the taxi 879 footage is 59 minutes and 56 seconds earlier than real time.  This can be confirmed by making reference to the camera 38 footage, which shows that taxi 879 passes Mr Carr and his friend at the middle of the intersection at 5:20:07; this is depicted on the taxi 879 footage on the external camera at 4:20:11.  As it was agreed that the time shown on the camera 38 footage is accurate, I infer that the taxi 879 footage time stamp is 59 minutes and 56 seconds early.

13. In addition to the video exhibits referred to above, other exhibits included a booklet of photographs and a street plan (Exhibit P1) and a booklet of photographs (Exhibit P6).

14. A statement of agreed facts is Exhibit P22.

    The witnesses called to give evidence

15. The prosecution called the following witnesses:

    ·Kalise Pansini, James Ward, and Mitchel Blackie, all friends of Mr Hanley.

    ·Andrew Miller, who filmed the incident on Snapchat video, and Tasmyn Beasy, who was in Mr Miller’s vehicle at the time he was filming.

    ·Robert McCasker, who gave evidence of what he saw when his vehicle was stopped on Hindley Street at the intersection on the west side of Morphett Street.

    ·James Carr, who gave evidence of what he saw as he crossed the crossing from the southwest corner of the intersection.

    ·Christopher Jones, who gave evidence about what he saw as he crossed the crossing from the Rosemont to the Metro corner.

    ·Crystal Marshall, David Jenkins, and Angus Glidden, who had been at HQ on 9 and 10 December 2017.

    ·Lucas Hughes, Joshua Felice, Jackson Smith, Patrick Barry, Joshua Gray, and Harry McCarthy, all of whom are friends of Mr Watherston.

    ·Audom Heng, the taxi driver who passed through the intersection at the time of the incident.

    ·Sanjay Kumar, the taxi driver who was hailed by Mr Watherston following the incident.

    ·Dr John Gilbert, the forensic pathologist, and Prof Jason White, the pharmacologist.

    ·Detective Brevet Sergeant James Golder, the investigating officer.

16. Francesco Gerace is a person who was referred to in evidence by many witnesses.  I was informed by the prosecutor that he would not be called as it had been determined that he was not a witness of truth.

17. In addition to giving evidence, Mr Watherston called Prof Gale Spring and two character witnesses, Terry McWilliams and Andrew Morgan.

    The prosecution witnesses

    Robert McCasker

18. Robert McCasker was driving east along Hindley Street when he stopped at the lights at the intersection at about 5.15 am on 10 December 2017.  He deliberately had his “windows down and the radio off just to take in the sights and sounds of Hindley Street at that time of the morning on [his] way to work”.[13]  Mr McCasker described that he was in either the first or second car at the intersection.  Mr McCasker said that at that location he could see the junction of Hindley and Morphett Streets and his attention was drawn to “six or seven men up Morphett Street up the hill a little bit from the convenience store having a push and a shove”.[14]  He described it as:[15]

    … sort of drunken swings.  I didn’t see any weapons. I didn’t see anyone connect with punches. It seemed to last about 10 seconds, no longer than that and then it petered out.

    [13]   T272.

    [14]   T273.

    [15]   T273.

19. Mr McCasker described the incident occurring where there appeared to be a couple of wheelie bins he identified on photo 6 of Exhibit P6 (those bins are in fact fixed).  He estimated that the incident lasted 10 seconds and he said that there was “Some yelling, some screaming, pushing and shoving”.[16] 

    [16]   T274.

20. Mr McCasker said that he recalled two men closer to Hindley Street.  He remembered “a man in light-coloured clothing and at the time very short hair or next to no hair”.[17]  This man was “standing further up the hill” from a man in black.  Mr McCasker said that both men had their fists up.  He said they “looked like they were ready to have a bit of a fight”[18] and demonstrated by holding his own fists up, just under his chin.  Mr McCasker said that the men were not “in each other’s personal space … They weren’t close enough to each other that they could reach but they seemed to be sizing up”.[19]  He said that they were less than two metres apart, but not “nose-to-nose”. 

    [17]   T274.

    [18]   T274.

    [19]   T274-275.

21. Mr McCasker said that he could see the man in black.  However, the man in light-coloured clothing was obscured by the boot of car, so he “could see his torso and his fists but he was not facing [him]”.[20]  He said that they appeared to be in this stance, opposite each other with fists up, for “less than three” seconds.  Mr McCasker recalled the man in light-coloured clothing launching a punch at the man in black.  He described it as “his entire body weight was thrown behind this punch”.[21]  He said that he thought at that time: “that escalated really quickly”.  He saw “the man in white connect to the head of the man in black and the man in black fell backwards”.[22]  He remembered the sound of “just a rock hitting concrete”.[23]  He said that the man in black did not move and he saw two girls run to his aid and there were lots of screams of “No, no, no”.  It was at that point that Mr McCasker got a green light to drive through the intersection.  Mr McCasker said that he did not see the man in black throwing a punch of any sort at any point.

    [20]   T275.

    [21]   T275.

    [22]   T275.

    [23]   T276.

22. In cross-examination, Mr McCasker was asked whether he recognised anyone on page 8 of Exhibit P1 as being the person who struck Mr Hanley.  He said that he could not be sure.  He suggested that the person in the white T‑shirt on the far right‑hand side would be the closest, but that he only saw the person from the torso up.  Mr McCasker said that he had a clear view through his windscreen.  I note that the person in the picture on page 8 of Exhibit P1 is Mr Hughes.

23. Mr McCasker confirmed that he saw the man in black at some point with his fists up.  He said that he would have been standing “in line with the Metro sign and the man in white further up the hill closer towards the road obscured by the car”.[24]

    [24]   T284.

24. Mr McCasker disagreed that his view was obstructed, but explained that “the man in white was obscured by a car.  It could have been a taxi.  And that the two or three taxis [he] saw were in that area lined up behind each other”.[25]  Mr McCasker agreed that it would be fair to say that he could not see what happened in the seconds before the blow that was delivered to Mr Hanley because it occurred behind the signal box that obscured his view.[26]

    [25]   T285-286.

    [26]   T286.

25. Mr McCasker was an honest witness.  He was mistaken about certain matters, for example, his evidence regarding the man in the white shirt.  The Miller footage shows Mr Watherston in a dark top delivering the fatal punch.  He was also mistaken as to where the final punch occurred; he did concede in cross‑examination that his view was obscured by the signal boxes and he did not see what happened leading up to “that because it was obscured”.

26. I do not accept his assumptions or conclusions about what he saw.

27. Mr McCasker’s evidence is of little assistance as he admitted that he did not see what happened in the seconds before the final punch as his view was obscured.

    Andrew Miller

28. Andrew Miller was driving the first vehicle stopped at the intersection waiting to turn right into Hindley Street from the Morphett Street Bridge on the morning of 10 December 2017.  Mr Miller decided to activate his Snapchat app and take a video as he had “never been down Hindley [Street] at that time of the morning”.[27]  He said that, by coincidence, he was panning from left to right as the incident happened.  He said that he saw what:[28]

    … looked like a group fight.  There was a few guys involved.  Sort of looked like the scuffle was ending and looked — like, it was just about to break apart … and then the punch occurred. 

    [27]   T288.

    [28]   T289.

29. Mr Miller identified the scuffle as occurring next to the signal boxes.  Mr Miller said that he could not recall how many people were involved, “maybe seven or eight” males.[29]  He said that “at the ending” he saw “some punches getting thrown, a few shirts getting ripped around”.[30]  He said that he saw “the victim sort of jumped out of the scuffle and it looked like it was just finished and then the last guy come out of, sort of, just out of the pack and punched the other guy”.[31]  He said that the victim was “Sort of backing away from the fight, jumping away from it and turning back towards — to protect himself I guess”.[32]  Mr Miller said that this man was quite tall, broad, with dark coloured hair.  He said that he “received a punch and he could not restrain his fall and his head hit flush on the ground”.[33]  He said that the man’s arms stayed by his side as he fell.  Mr Miller said the person who hit the man had a slim build and blonde hair in a “man bun”.[34]  Mr Miller could not describe the colour of the person’s clothing, but could say that his shirt was ripped.  He said that the punch looked like it was thrown with all force possible, “it came from behind [his] body and a whole weight was thrown behind it with force”.[35]  Mr Miller said that he heard a “sickening thud” when the man’s head hit the ground. 

    [29]   T290.

    [30]   T290.

    [31]   T290.

    [32]   T290.

    [33]   T290.

    [34]   T291.

    [35]   T291.

30. Mr Miller said in evidence that he was watching these events as they occurred as opposed to watching it on his phone screen.  He said that he was approximately 50 metres away from the incident and there was nothing obstructing his line of sight.  He said that after a short time the lights turned green and he turned right onto Hindley Street.

31. Mr Miller said that he later became aware that someone had died on Hindley Street and he handed his Snapchat video in to the police at Whyalla.

32. In cross-examination, Mr Miller confirmed, on viewing the Miller footage in court, that “[he] didn’t realise it was less people involved.  …  There was so many people in that group”.[36]  He said that he saw a group in the area and that it “looked like there was more going on, it all happened so quickly”.[37]  He agreed that from the vision there were not four people fighting.  Mr Miller accepted that, where his evidence in court diverged from what is seen on the footage, his evidence may not be correct.

    [36]   T295.

    [37]   T295.

33. Mr Miller said that he saw a market or shopping trolley on the footpath, but he did not “think that was involved”.  He agreed that Mr Hanley threw a punch before he appeared to jump back, saying “From what I recall, yes”.[38]

    [38]   T299.

34. Mr Miller was an honest witness.  I accept Mr Miller’s evidence other than where the Miller footage is at odds with his evidence.  He conceded that he may have been wrong as to the number of people he thought were involved in the scuffle.

    Tasmyn Beasy

35. Tasmyn Beasy was in the passenger seat of Mr Miller’s car when he took the video and was his girlfriend at the time.  Ms Beasy described that she heard “just yelling and a fight, a general fight”.[39]

    [39]   T302.

36. She said that her vision was obscured at some stage by a taxi.  She said that she saw someone in a black T-shirt with black curly hair who fell.  She did not remember seeing the punch.  Ms Beasy said that she saw him falling and she heard a “very sickening sound of his head hitting the ground”.[40]

    [40]   T303.

37. In cross-examination, Ms Beasy agreed that there was a fight occurring prior to seeing the man fall.  She agreed that what she described as a fight was characterised by “aggression on each side of it”; it was a fight and there was yelling coming from everyone.  She did not remember any punches being thrown by the man in the black shirt.

38. I accept Ms Beasy was an honest witness.  However, her evidence was vague and not of assistance.

    James Carr

39. James Carr said that at approximately 5.15 am on Sunday 10 December 2017 he had driven to the city with a friend.  Mr Carr had not been drinking.  He found a park to the west of Morphett Street, just off Hindley Street.  He then walked to the southwest corner of the intersection and was waiting to cross the road when he noticed that “there was a lot of commotion across the road and some youths fighting”.[41]  He said that this was occurring “At the front of the corner shop … and up and down the Morphett Street footpath” adjacent to the taxi rank.[42]  Mr Carr said that initially, from his vantage point on the southwest corner of the intersection, he saw a group of youths who were more southerly on the footpath, “probably four or five”.[43]  He said that he saw “two youths who were more on the actual corner of Hindley and Morphett” Streets and the “larger group were running down in raids of one and two and assaulting the other two” on the corner;[44] in cross-examination, Mr Carr clarified that he meant they were approaching the two on the corner.

    [41]   T438.

    [42]   T438.

    [43]   T439.

    [44]   T439.

40. Mr Carr said that he could only describe two of the group of four or five.  He said that they were “probably around 5’9”, 5’10”, one with curly blond hair and one with short light brown hair”.[45]  One was wearing blue and one was wearing khaki.  Mr Carr said that these were the two who were conducting the raids, running down and running back.  He said that he recalled “the curly blonde-haired one basically toe to toe with the deceased punching — they were punching and defending each other”.[46]  He also recalled “the light brown haired one, coming in from the side and attacking the deceased as well from out of view, from behind.  Then they ran back”.[47]  Mr Carr said that he then crossed the road with his friend and got closer and at that stage there was a lot of screaming and yelling and going on.

    [45]   T439.

    [46]   T439.

    [47]   T439.

41. Camera 38 depicts Mr Carr waiting at the southwest corner of the intersection from 5.19:00 to 5.19:58, a total of 58 seconds.  Mr Carr begins to the cross the road at 5.19:58 after the light turns green at 5.19:56.  He reaches the middle of the intersection at 5.20:07 and completes his crossing at 5.20:14, meaning that he was in the intersection for 16 seconds.

42. Mr Carr was asked to describe the curly haired man.  He said that from what he recalled “a T-shirt and — no I can’t recall.  It was either dark blue or khaki pants”.[48]  He said that the other person was “shorter, straight hair, light brown, probably around 5’8” probably around 75, 80 kg”.[49]  Mr Carr said that he could not recall which one of the two was wearing which outfit.

    [48]   T440.

    [49]   T440.

1. Mr Carr said that there were a lot of insults coming from the larger group.  He said that the two youths who were on the corner were basically speechless, he “never heard them say a word”.[50]  He described these two men as “one was about 95, 100 kg, about 6 foot tall, 183 cm. The other was smaller, probably around about 85 [kg] and … say 5’9”, 5’10” or 180 cm”.[51]  Mr Carr said that they were near the entrance to the Metro and “were really standing their ground and defending themselves”.[52]

   [50]   T440.

   [51]   T440.

   [52]   T440.

2. Mr Carr was asked whether the two youths on the corner did anything which he described as hostile or aggressive and he said:[53]

   … not when I was on that side of the road.  When I was previously on the corner [waiting to cross], it seemed to be like they were running, all of them, up and down.

   I understood Mr Carr to mean that the two youths he referred to were also running up and down while he was waiting to cross Morphett Street.

   [53]   T442.

3. Mr Carr said that as he crossed Morphett Street, the two (one of whom I infer was Mr Hanley) did not do anything he would describe as aggressive or hostile, but rather that their actions were all defensive.

4. Mr Carr said that as he crossed the road he noticed that there was a metal shopping frame on Hindley Street and he went to pick it up because it was obstructing the traffic.  Whilst he was picking it up, he “heard a gasp from the whole crowd because the larger fellow got hit pretty severely and collapsed”.[54]  Mr Carr did not actually see the hit, but he saw what happened soon after and some girls coming to the man’s attention.[55]

   [54]   T440.

   [55]   T440-441.

5. Mr Carr said that he heard from the south more words to the effect of, “‘That will teach you.  That will shut you up’ that sort of thing”.[56]  He said that he was “pretty sure” it was coming from “the fellow with the curly blonde hair”.  He said that he took a photograph on his phone because he “could see that this was going to be a serious matter”.[57]  A copy of that photo is Exhibit P10.  He said that he was trying to capture in the photo “both the fellow on the ground and the culprits in the background”.[58]  Mr Carr said that the pair who are stuck in his mind are there, one with the “white T-shirt with a black motif in the middle and the fellow to his left” with khaki pants.  Mr Carr marked Exhibit P10 to indicate the men that he recalled as the “main antagonists”.  The people marked on Exhibit P10 are Mr Hughes and Mr Jenkins.  He confirmed that these were the two men he recalled as being part of the raids on the two youths at the other end of Morphett Street, closer to Hindley Street. 

   [56]   T441.

   [57]   T441.

   [58]   T441.

6. In cross-examination, Mr Carr said that he did not see anyone being struck over the head with a trolley frame, nor anyone in a white T-shirt getting thrown to the ground, nor anyone being stomped on on the ground.  He said that there was a lot of yelling going on and he agreed that it was chaotic scene.  He agreed that “were a number of people standing and watching or apparently watching”.[59] 

   [59]   T445.

7. Mr Carr said that the fellow with the curly blonde hair and the deceased “were both punching each other, standing their own ground on the corner”.[60]  He said that “darker haired one with the khaki pants had come around and started assaulting the larger one from the side, behind, where he couldn’t see him and running back.  It was hit and run”.[61]  It was suggested to Mr Carr that the larger man threw a punch that connected with the other man.  Mr Carr said:[62]

   I’m not sure if they connected, they were both swinging at each other.  The only one I saw connect was, as I said, the khaki who came in from the side and then hit and then he ran back to the south.

   [60]   T446.

   [61]   T446-447.

   [62]   T447.

8. Mr Carr said that he noticed other people standing around, but not in the immediate vicinity of the people throwing punches.[63]

   [63]   T450.

9. When asked about the two main antagonists that he had referred to, Mr Carr said that they were the “two that were rowdiest and the two that seemed the most aggressive”.[64]  He said that they were the two who were “running north, attacking and running back”.[65]

   [64]   T453.

   [65]   T453.

10. It was put to Mr Carr that what he had characterised as a raid was mischaracterised and what he might have seen were people moving in that direction but not attacking.  Mr Carr said “No, it was definitely they were running down to attack and then running back”.[66]  It was put to him that he could not have seen that sort of activity clearly given everything that was in front of him.  Mr Carr said “It was quite clearly lit and you could see.  There were perhaps moments of obstruction but you could see generally what was happening”.[67]  It was suggested to him that he was just wrong about those events, or misinterpreted them, and he said:[68]

    What I clearly and distinctly remember was the curly haired blond fella coming south and in a toe-to-toe punch-up with the larger one who ended up on the ground.  The other light brown haired fella with the khaki pants running in and having what I thought was like a cheap shot hitting him from the side or from the back when he was still fending off or fighting with the curly haired one.

    [66]   T453.

    [67]   T453.

    [68]   T453.

11. Mr Carr was asked to look at page 4 of Exhibit P1.  He suggested that the man in the white shirt he had identified in examination-in-chief appears in front of the person in a blue shirt at the top of the photo.  The person he identified is Mr Hughes.

12. Mr Carr was an honest witness.  However, I cannot reconcile his evidence about the “raids” with the other evidence I have heard.  He did say that when he was on the southwest corner, I infer that this was while he was waiting to cross, that “it seemed to be like they were running, all of them, up and down”.[69]  I understood that he meant the two youths he referred to (one of whom I infer was Mr Hanley) were also involved in running up and down.  The frenetic activity seen on the camera 23 footage (discussed below) would have been occurring while Mr Carr was waiting to cross and as he crossed.  He did not see the person in black and the person in a white top appear to roll on the ground as seen in the taxi 879 footage (Exhibit P18) which, on my assessment, must have been occurring as he was crossing, noting that taxi 879 passed him as he reached the middle of the intersection.

    [69]   T442.

13. His evidence of the toe-to-toe between the man who got hit and the curly headed fellow suggests an interaction between Mr Hanley and Mr Hughes close to the corner of Hindley Street.   Mr Carr’s back was turned when the fatal punch was delivered.  Mr Carr’s evidence to the effect that the two youths close to Hindley Street were “basically speechless” and did nothing aggressive or hostile is contrary to Mr Jones’ evidence that the two people (most likely Mr Hanley and Mr Ward) closest to him were yelling, pushing, shoving, and swinging in a similar way to the small group.

14. Mr Carr’s evidence is not of assistance in determining the circumstances of the interaction between Mr Hanley and Mr Watherston.

    Audom Heng

15. Audom Heng is a taxi driver for Suburban taxis who was finishing a 6.00 pm to 6.00 am shift in the early hours of 10 December 2017.  He had just picked up three customers on Hindley Street and was driving west towards Morphett Street.  He said that he stopped in the left lane at a traffic light on the corner of Hindley and Morphett Streets.  He had his taxi windows down and heard an argument.  He looked to his left and saw people engaged in a fight.

16. Mr Heng said that he saw only two males fighting, one (whom he called the victim) was bigger.  I infer that Mr Heng was describing Mr Hanley.  He said that Mr Hanley was about five metres from his taxi with his back to the taxi.  He said that Mr Hanley was between him and the second male.  Mr Heng said that he saw Mr Hanley trying to pull the white T-shirt from the other male and engage in fighting.  He said they threw punches but confirmed that all punches missed.

17. Mr Heng described Mr Hanley as having “a big build … a bit taller … over 170 cm tall”.[70]  Mr Heng thought Mr Hanley’s clothing was dark in colour and his hair was dark as well.  He said that the other male was smaller and skinnier than Mr Hanley and that he was wearing a white T-shirt.  He said that he thought the T-shirt was torn.  He said that just a few punches were thrown. 

    [70]   T458.

18. Mr Heng said that, after this interaction, the male with the white T-shirt ran off towards the taxi rank, but a third male who was standing next to the wall of the Metro jumped in and threw a few punches at Mr Hanley.  Mr Heng could not recall this third male well, only that he thought him “bigger” than the second male wearing a white T-shirt and a similar size to Mr Hanley.

19. Mr Heng described the punches as “pretty fast and quick onto the victim’s chest” and he believed one punch was hard onto Mr Hanley’s face, so as to cause him to fall backwards to the ground.[71]  Mr Heng said that he thought that three or four punches were thrown, connecting to Mr Hanley’s chest, before the final punch to the face, which he described as “very hard”.[72]  He said that Mr Hanley was trying to defend himself, but because the third male came from the wall he was surprised and could not defend himself properly.  Mr Heng said that Mr Hanley did not throw any punches at the third male.  Mr Heng said that at the time that the third male was throwing punches he moved toward Mr Hanley and Mr Hanley moved “one step backward, one step or two step backward and then he fall down”.[73] 

    [71]   T459.

    [72]   T459.

    [73]   T460.

20. Mr Heng was asked what the third male did after Mr Hanley hit the ground and Mr Heng said, “They all run toward Light Square, toward the front taxi”.[74]  He said that his taxi was just at the corner of Hindley Street and Morphett Street when he observed this, and his view was unobstructed.  He said that after Mr Hanley fell down, the green light changed and he drove off and away from the area.

    [74]   T461.

21. Mr Heng identified his taxi as taxi 2447, a Toyota Prius.  He confirmed that he became aware that CCTV footage from his taxi had been downloaded by police.  This footage also records Mr Heng saying “I think he is dead” and “His head is broken” as he passes through the intersection.

22. In cross-examination, Mr Heng was asked whether he saw anything that happened before the three people were engaged in the incident he gave evidence about.  Mr Heng said:[75]

    I don’t — I don’t see, I don’t focus on anything.  When I hear the sound of people argument, yelling and they chase each other, pull his shirt, then that is my focus and look to them.

    [75]   T469.

23. Mr Heng did not see a man being thrown to the ground and he did not see a trolley frame being thrown.  He was asked whether he saw how Mr Hanley and the man in the white T-shirt came to be together and he said:[76]

    [76]   T473-474.

    A.I saw when they argument and the man who is victim run behind the man with the white T-shirt and tried to pull the man with the white T-shirt.

    Q.Did he seem to be pulling that man with the white T-shirt away from somebody else.

    A.Can you say again please?

    Q.Did he seem to be pulling him away from somebody else.

    A.Who pull away?

    Q.Sorry, the man who died.

    A.Yes.

    Q.Did he seem to be joining in on another fight where someone was also attacking the man in the white shirt.

    A.Only seen him join in the fight with the man with the white T-shirt and suddenly someone stand on the left-hand side attack him.

24. Mr Heng said that what he saw happen occurred between the signal boxes and the wall of the Metro.  Mr Heng agreed that, as seen in the footage from his taxi, he was craning his neck to have a better look at what was happening on the sidewalk to his left.  He said that because a passenger was in the front seat, he tried to look around her to get a better view. 

25. It was suggested to Mr Heng that, in addition to his passenger, there were a number of people and objects between him and what was happening on the footpath.  Mr Heng said that he could not remember and was not sure.  He was asked:[77]

    Q.Isn’t it possible that what you saw was the man who died together with the man who hit him for the last time scuffling with each other, throwing punches with each other, in that location that we pointed out to you by the electrical boxes.  Did you see that happen.

    A.Yeah, it just there, yeah.

    Q.The man who died, he was throwing punches, wasn’t he.

    A.The last punch before he fall down I think he put his hand up to defend himself, he did not throw any punch.

    [77]   T476.

26. He was asked whether Mr Hanley’s hands being up “was just following on from punches he had already thrown” and Mr Heng said:[78]

    Yeah, because he have a fight with the one with the white T-shirt that is smaller than him.  The man sitting near the wall attack him.  Yeah, when they attack him he only have chance to defend himself is what I saw, suddenly, and then the man next to the wall kept attacking him so he did not throw punch, he just defend himself.

    [78]   T476-477.

27. Mr Heng said that Mr Hanley was moved backwards and lost his balance.  He said that he could not remember Mr Hanley reaching out with his left hand, grabbing the T-shirt of the man who struck him.  Mr Heng was asked whether it could be that the man in the black shirt who was fighting with the man in the white shirt was not the man who died, but some other man.  Mr Heng said, “No, only the man who died fight with the man with the white T-shirt”.[79]

    [79]   T480.

28. Mr Heng’s taxi footage was played to him in cross-examination and he was asked whether the video showed that he did not stop at the corner of Hindley Street and Morphett Street.  Mr Heng said, “When the green light change — I stop there red lights, when the green light change I keep move forward”.[80]  He agreed that as he was turning the corner he was looking to his left and then looking behind as he travelled around the corner.  He was asked:[81]

    [80]   T481.

    [81]   T482.

    Q.What you failed to see was the person who was fighting with the man in the white shirt wasn’t the man who died, it was another man in a dark shirt.  That’s what I’m putting to you.

    A.It’s the man who died, fighting with the man with a white shirt.

    Q.And that the man you say you saw joining the fight by walking or moving up to the man who died was already involved in a scuffle or fight with that man.  I’m putting that to you.

    A.I’m not sure that question sorry.

    Q.I’m sorry.  That the man who struck the man who died, those two people had been swinging punches at each other near the electrical box before the man who died was struck in the face by one punch.  Did you see that.  Well I’m suggesting to you that’s what happened.

    A.I can’t remember.

    Q.That’s something that could have happened, isn’t it.

    A.It could, it could, yes.

    Q.And that when the man who died put up his arms it was to continue trying to punch at the other man.  That’s possible too, isn’t it.

    A.I can’t remember.  What I can see is just a few punch from the man sitting near to the wall, throw a few punch on him and he fall down.  That’s what I remember.

29. The Miller footage does not show any male in a white T-shirt interacting with Mr Hanley or anyone running toward the taxi rank.  Mr Hughes does appear to jump out from behind the signal box just before Mr Hanley moves towards Hindley Street.  Mr Gerace also steps out from behind the signal boxes.

30. On my viewing of Mr Heng’s taxi footage, contrary to his evidence, his vehicle was moving for the duration of the footage.  Mr Heng was trying to assist, but, on my assessment of the whole of the evidence, was mistaken as to what transpired.  His evidence was to the effect that Mr Hanley was running behind the man in the white T-shirt and trying to pull the male with the white T‑shirt.  Mr Hanley and the male in the white T-shirt engaged in fighting then the male ran off toward the taxi rank.  Mr Heng said that Mr Hanley moved aside and another male, who was standing near the wall (in cross-examination he said this man was sitting near the wall), jumped in and punched Mr Hanley to the chest and face.  He described three or four punches which all connected.

31. Mr Heng agreed in cross-examination that Mr Hanley and the man who delivered the punch before he fell could have been swinging punches at each other. 

32. There is no other evidence before me regarding a torn white T-shirt.

33. I query whether Mr Heng has conflated an interaction involving Mr Hanley, Mr Hughes, and a dark-haired man in khaki pants seen by Mr Carr and the interaction between Mr Hanley and Mr Watherston.  As such, I cannot rely on the Mr Heng’s evidence.

    Sanjay Kumar

34. Sanjay Kumar was the taxi driver who was hailed by Mr Watherston in Tennant Court in the city and drove him to Belair Road, Kingswood. 

35. By reference to the footage from Mr Kumar’s taxi, Mr Watherston caught the taxi at 5.35:47.  Mr Kumar looked at Mr Watherston’s hand, at 5.41:57, and said, “What happened on your hand?”.  Mr Watherston said:

    WATHERSTON:     Oh, fucking some dude hit me.  Hit him back.  Somehow that happened.

    KUMAR:In Hindley Street.

    WATHERSTON:     Yeah, he ripped my shirt, fucking bit of, bit of shit went on.

    KUMAR:One man died there.

    WATHERSTON:     Hey.

    KUMAR:One man died there, anybody punched him.

    WATHERSTON:     What.

    KUMAR:[Whistles]

    WATHERSTON:     What do you mean.

    KUMAR:Dead.

    WATHERSTON:     What you mean.

    KUMAR:One man, in Hindley Street.

    WATHERSTON:     Yeah.

    KUMAR:Just died.

    WATHERSTON:     Nah.

    KUMAR:Anybody killed him.

    WATHERSTON:     Huh.

    KUMAR:Anybody killed to him.

    WATHERSTON:     Nah, god knows.

36. It is not necessary for me to assess Mr Kumar’s evidence as it is only the footage from his taxi that is relied upon by the prosecution.

    Christopher Jones

37. Christopher Jones was DJ’ing at Rocket on 10 December 2017.  He had four to five beers over the course of four to five hours.  He left Rocket at about 5.00 am, heading towards the taxi rank on Morphett Street with a girl he had met that night named Rose or Rosie.  He was wearing a black long‑sleeved shirt, trainers, maybe jeans, and he had a backpack.

38. While Mr Jones was waiting for the lights to change to cross Hindley Street, he heard raised voices and saw a scuffle out the front of the Metro.  He saw pushing and shoving.  He saw what he thought was a chair thrown onto the road.  His attention was drawn to “a pair of gentlemen and a small group”.[82]

    [82]   T422.

39. Mr Jones said that the pair were closest to him, with the larger of the two with his back to him, so that man was facing south.  They were out the front of the Metro on the Morphett Street side.  He said that they were between the Metro signs and the signal boxes.  The person that he could see the back of was “Larger in size in both height and weight and potentially curly hair, Caucasian, short hair”.[83]  He said that this man and the man with him “were yelling at the other group in the similar way to the other group yelling at them; pushing, shoving, swinging”.[84]  He said that the other man in the pair was “a similar height, quite tall, had longer hair that was worn down or at least loose in a ponytail”.[85]  I infer that Mr Jones was describing Mr Hanley and Mr Ward as the pair. 

    [83]   T423.

    [84]   T424.

    [85]   T424.

40. Mr Jones said that his attention was drawn to the larger of the two, whose back was towards him.  He noted that “two guys … were face‑to-face with raised voices with a group of people around them, sort of pushing and swinging at each other”.[86]  He could not see whether any of the swings connected.  He described the swings as:[87]

    They didn’t look to be overly well sort of thought out or had any sort of prior experience or training in that matter I would say.  They looked to be fairly wild and maybe intoxicated perhaps.

    He said:[88]

    … the guy with the longer hair who I mentioned would have been sort of to the west side of the altercation near those two signal boxes, between them and the street perhaps.  And then the two or three other gentlemen were sort of surrounding on the south side of the altercation.

    He said that those two or three other gentlemen were:[89]

    Sort of loosely involved with pushing, shoving, yelling, more sort of egging on — not egging on but more sort of in a vocal involvement was my interpretation of it.

    [86]   T424.

    [87]   T424.

    [88]   T424.

    [89]   T424.

1. Mr Jones was asked whether any of those others were involved in any physical confrontation and he said, “I do believe there was some wrestling sort of throwing around of the second but at this point I couldn’t say sorry”.[90]  He said that Mr Hanley was part of “the two” and he did not see who was the aggressor in the situation. 

   [90]   T425.

2. Mr Jones said that this “was essentially a one-on-one face to face between the deceased where there was pushing and throwing punches at each other and then the second guy, who I’m going to say was on the side of the deceased, was sort of pushing and shoving and yelling at the small group as well”.[91]  He said that the yelling was coming from both groups equally.  Mr Jones was asked to concentrate on what he recalled happening to Mr Hanley.  He said:[92]

   I essentially looked up to see him — his back and he was hit and fell over backwards and then began to convulse.  Once he begun convulsing, Rose, the girl I was with, put him into a recovery position …

   [91]   T426.

   [92]   T426.

3. Mr Jones described the person who was “swinging wildly” at Mr Hanley as “early 20s, Caucasian, maybe European”.[93]

   [93]   T427.

4. Mr Jones said that the others in the group were around the green signal box. 

5. Mr Jones said that the one on one was his main focus.  He said that a scuffle with a “mixture between sort of grabbing and throwing punches” was happening between Mr Hanley and the person who was in front of him.[94]  He was asked whether he heard anything being yelled in that vicinity and he said, “Just generally loud profanities, just in general just rude sort of talking”.[95]  He said that Mr Hanley and the other man appeared to be quite stationary.  He did not see what it was that caused Mr Hanley to go to the ground.  He described Mr Hanley falling backwards “Like a tree cut at the base, sort of quite a stiff fall”.[96]  He did not put his hands out to break his fall.  He heard the impact of a body hitting the ground. 

   [94]   T428.

   [95]   T428.

   [96]   T428.

6. Mr Jones’ evidence was that the person who was in front of Mr Hanley before he fell began taunting him or yelling at him and his friends that “he wasn’t able to take a hit and essentially saying that it was over and that he had won”.[97]  He said that his memory was that he called him “a ‘Little bitch shaking on the ground,’ that he couldn’t take a hit”[98] and he then left the scene. 

   [97]   T428.

   [98]   T429.

7. Mr Jones and Rosie stayed at the scene.  He called an ambulance.

8. In cross-examination, it was put to Mr Jones that he had given statements to police on 30 July 2018 where he had said “I didn’t see a particular punch connect as I wasn’t focusing on the two individuals fight and more looking at the overall scuffle”.[99]  Mr Jones said:

   Correct.  So I would have said that my attention would have been split between two groups or two similar altercations but to the point that I wasn’t glued on one.

   [99]   T432.

9. Mr Jones said that there was a group of gentlemen fighting within a five metre radius of each other and “The two guys who were fighting were very much the ones that [he] was mostly focused on but that’s not to say that [he] wasn’t focused and aware of other altercations in the surrounding area”.[100]

   [100] T432.

10. It was put to him that it was not the same as “I wasn’t focusing on the two individuals fight and more looking at the overall scuffle”.  His answer was:[101]

    In the sense that I didn’t see the punch that was thrown.  I wasn’t looking at the punch that was thrown at the time.  So I was looking at the two guys who were in a scuffle and then I didn’t see the direct punch that was made, but then I did see the gentleman fall to his back.  That was very much where 90% of my focus was but at the same time I wasn’t focusing at the time of the punch is what I mean by that.

    [101] T432.

11. Mr Jones could not recall what he told the police that the person who threw the fatal punch was wearing.  He had described him to police as wearing a white and navy blue button-up shirt.  He believed Mr Hanley was wearing stripes.  He viewed the stabilised Miller footage in court, and said that he did not see stripes on Mr Hanley and he agreed that the person who threw the punch was wearing a dark T-shirt.

12. It was put to Mr Jones that the person he saw on the video in the white shirt was the man who made the comments he gave evidence about and Mr Jones said:[102]

    Other than the fact that there was a group of people yelling and I overheard comments that I presumed were made by the gentleman who threw the punch.

    He agreed that it was an assumption based on his interpretation of what was going on and he agreed that a man in a white shirt and jeans can be seen close to Mr Hanley in the footage.  In response to my question “Is it possible that someone else could have said those words about ‘little bitch’ other than the person you thought it was”, Mr Jones said:[103]

    I am not going to rule it out.  I will say definitively it was within the direct surroundings of the deceased lying on the ground but to say that it could have been another person within that area, I couldn’t definitively rule that out.

    He agreed that words were said but that he could not confidently say who said them.

    [102] T435.

    [103] T437.

13. Mr Jones agreed that the effect of his evidence was that Mr Hanley was larger in both height and weight than the person who struck him.  He was asked whether Mr Hanley was facing the person who struck him when he was struck and he answered, “He wasn’t hit in the back of the head, he was hit in the face”.[104]

    [104] T436.

14. Mr Jones was an honest witness.  Other than his assumptions, for example as to who made the comment after Mr Hanley had fallen, I accept Mr Jones’ evidence.  His evidence does not assist me in determining the circumstances of the interaction between Mr Hanley and Mr Watherston.

    Kalise Pansini

15. Kalise Pansini was 23-years-old at the time she gave her evidence.  She had been out to dinner on 9 December 2017, but had not been drinking because she had had a big night the previous evening and was feeling a bit sick.  Following dinner, Ms Pansini went to the Cumberland Hotel.  She said that she was intending to meet her friends Mr Hanley, Mr Ward, Mr Blackie, and two others at HQ.

16. Ms Pansini got to the Cumberland Hotel at about 12.00 am on 10 December 2017 and arranged to meet her friends at HQ through messaging them on Snapchat.  She was messaging Mr Hanley on Snapchat and went upstairs in HQ to find him.  He was by the bar in the main room, with Mr Ward and two other friends.  Ms Pansini had met Mr Blackie downstairs on her way up.  She said that Mr Ward and Mr Hanley did not appear to be particularly intoxicated when she saw them.  She had not had anything to drink at that stage; she then had maybe one or two Double Blacks, a pre-mixed vodka drink.  She left HQ just before 5.00 am with Mr Ward, Mr Blackie, Mr Hanley, and a female friend.  They walked to the Metro on their way to the taxi rank to catch a taxi home.

17. Ms Pansini recognised Mr Watherston, Mr Gerace, and Mr Gray as she approached the taxi rank.  She had met the three of them through mutual friends.  She spoke very briefly to them, they asked how her night was, and she asked how they knew each other.

18. Ms Pansini said that Mr Watherston, Mr Gerace, and Mr Gray were with their friends in a group of maybe eight to ten people: two females and the rest males.  She said that after having the conversation with the three men that she, Mr Hanley, and Mr Ward were sitting against the wall and Mr Blackie was standing up alongside them.  Mr Watherston, Mr Gerace, and Mr Gray had moved a little bit further south down Morphett Street and were with their group.  She said that Mr Blackie was fidgeting with a trolley frame that was missing a wheel and the bag.  Ms Pansini said that he was not doing anything threatening with the trolley frame.

19. About five or six members of the other group were yelling, Ms Pansini could not tell who they were.  She said “It started off as a joke so there was a lot of laughing, then I heard them say ‘Are you going to come hit us’ or something along those lines”.[105]  She said that the tone was friendly when it started and that, of her group, it was mainly Mr Blackie who was making comments.  She said that the tone of the exchange became more sarcastic within about two minutes.  She remembered a few of the other group coming over, she did not see who, and she remembered telling Mr Blackie “It’s okay, I know a few of them”.[106]

    [105] T37.

    [106] T38.

20. Ms Pansini said Mr Blackie had not moved.  She thought it was necessary to reassure Mr Blackie, to “maybe make him understand it wasn’t going to be anything serious”.[107]  She did not really remember what happened next, “it was just a bit of pushing and shoving”.[108]  She said that it involved some of the other group onto Mr Blackie and then they started on Mr Ward as well.  She said that there would have been two on to Mr Blackie and two on to Mr Ward, and there were also a few standing behind.  She was unable to say who the two on to Mr Blackie were or who the two on to Mr Ward were.

    [107] T38

    [108] T38.

21. Ms Pansini said that she and Mr Hanley had backed off out of the way, near the signal boxes.  She and Mr Hanley were not involved in any of the pushing and shoving.  She said that there was a lot of yelling and screaming coming from both sides, the tone of which was threatening.  She was not able say what Mr Watherston was doing, she just saw “him with just a big pile of people pretty much”.[109]  Mr Gerace was involved.  She said that Mr Gray was standing further away.

    [109] T39.

22. Ms Pansini was asked whether anything in particular then happened and she said “No, not really”.[110]  She was asked whether she saw anything happen to Mr Hanley.  She said that “The next time [she] noticed Jack [Hanley] he was involved in the big huddle as well, and he was trying to fight someone off him, he had someone, like, hugging him pretty much and he was trying to get him off”.[111]  She said that it was just “a big group of people, people flying everywhere”.[112]  She said that Mr Hanley had moved his position from where he had been with her, he became involved in the fight but she did not see how he did.  She could not tell how many people he was involved with, or who he was involved with, and said “The whole group was there, [she] couldn’t see individually who was where”.[113]  She said that Mr Hanley was at the back on the left-hand side, further to the corner of the Metro.

    [110] T40.

    [111] T40.

    [112] T40.

    [113] T40.

23. Ms Pansini remembered hearing a loud noise and Mr Hanley was on the ground.  She looked at Mr Blackie and Mr Ward to try and get their attention “and they both had two people on them each and [she] was just wondering how [she] could get in there and break it”.[114]

    [114] T41.

24. Mr Hanley was on the ground near an inspection point cover in the brickwork of the footpath.  Ms Pansini said that no one was around him.  She said that Mr Blackie was probably between the light pole and the first palm tree, and Mr Ward was near the signal boxes with two people on him as well.  She said that Mr Gerace was with Mr Blackie and they were just talking or yelling aggressively.  She walked over and said “Fuck off it’s over” to try and get them away.[115]  She said that there were possibly two members of the other group that she could not identify in the area.  She said that one of the people she could not identify had a black shirt on that had the letters “KSCY” on the back and had long hair.  She said that this person, who I infer was Mr Glidden, was just walking away, but that he was involved in the fight.  She could not describe the other person but he was also in the fight.  She said that she thought that Mr Watherston was arguing with Mr Ward and then he walked off as well.

    [115] T42.

25. Ms Pansini, Mr Blackie, and Mr Ward remained with Mr Hanley.  There was a girl called Rosie, who was trying to resuscitate Mr Hanley, and there were other girls on the phone to paramedics.  Ms Pansini was asked whether she realised at first just how badly injured Mr Hanley was and she said she was not sure what was happening.  She gave a short statement to the police at 6.00 am that morning and later gave a more detailed statement.  She said that at the time she gave her first statement she did not know that Mr Hanley had died.  She did not think that her first statement was accurate. 

26. Ms Pansini identified herself on the footage she saw in court from cameras 23 and 38.[116]  She identified Mr Hanley, Mr Ward, Mr Gray, and Mr Gerace.  She identified Mr Blackie bending over Mr Hanley after he had fallen.

    [116] Exhibit P7.

27. In cross-examination, Ms Pansini was asked about Mr Hanley, Mr Blackie, and Mr Ward’s alcohol consumption at HQ on the morning of 10 December 2017.  She said that they had drinks in their hands but she was not counting how much they were drinking.  As regards taking ecstasy, she said that she was not sure what they were doing and she had not taken any ecstasy.  She said that she would not describe Mr Ward as being heavily intoxicated; “He wasn’t sober but had a good night, fun, wasn’t being ridiculous or anything”.[117]  She said that Mr Hanley and Mr Blackie were also not heavily intoxicated.  She was asked whether Mr Blackie appeared to be under the effects of MDMA and she said “He didn’t appear to be under the influence”.[118]  Ms Pansini had never personally seen Mr Blackie agitated or aggressive out at nightclubs.

    [117] T55.

    [118] T56.

28. Ms Pansini was asked why she reassured Mr Blackie during the verbal interaction.  She said “Just to make sure, I don’t know, I was on his side thinking it was still a joke, I didn’t think it was serious either, none of us did”.[119]  She was not aware if he said things like “Shut the fuck up” and she did not hear him say “I am going to wrap this around your head” in reference, presumably, to the trolley frame.  She said that “he was still laughing, he didn’t act threatening at all”, and that he did not “sound threatening at all”.[120]  She maintained that he did not react at all.  She was asked whether he was misinterpreting the situation.  She said he was still laughing and it was the other group that started the sarcasm and so she told him “I know them, turn around and ignore it”.[121]  She was asked why she needed to reassure him and she said “To not get aggravated by them before it got to that stage”.[122]  She maintained that she reassured Mr Blackie before he got annoyed.  She was asked whether there was a verbal retaliation from her group and she said not that she was aware. 

    [119] T60.

    [120] T60.

    [121] T62.

    [122] T62.

29. Ms Pansini was asked about her first statement and whether she told the police officer:[123]

    At about 5.20 am I was sitting down on the ground on the sidewalk of Morphett Street Adelaide.  A group of about eight people were becoming verbally abusive towards the group I was with.  The group I was with was retaliating verbally.

    Ms Pansini said that she did not remember saying that.  She agreed that she signed the statement on 10 December 2017, gave another statement on 14 December 2017, and provided a further statement in March 2019 where she said that there was no verbal retaliation and she was wrong and distracted when she said there was in the first statement.  She explained in evidence that she was devastated by what had happened, that she had just watched her friend being killed, and had other things on her mind.  However, I note that Ms Pansini said in evidence-in-chief that she did not know that Mr Hanley had died when she gave the first statement.

    [123] T63.

30. Ms Pansini said that she did not see Mr Blackie striking Mr Gerace over the head with the trolley frame.  She said that she maintained her position by the tree as seen in the photos in Exhibit P1.  She did not see the trolley frame thrown into the street.  She agreed that the situation “became pretty hectic”.  Ms Pansini said that she was “watching the group, it was right in front of me … they weren’t spread out that far”.[124]

    [124] T67.

31. Ms Pansini agreed that she had been out all night and that she had had a big night the night before and had been drinking heavily the night before out until about 2.30 am.  It was suggested to her that she was “not her best” at 5.30 am on the morning of 10 December 2017.  She maintained that she was fine.  She was “tired, but it didn’t affect [her] memory”.[125]  She said that her memory was the best when she wrote her second statement.  She denied having spoken to other people about what had occurred.  She said that she had not discussed her statement with Mr Ward, and had not spoken about the events of that morning with him.

    [125] T68.

32. Ms Pansini was asked about her evidence about observing Mr Hanley in a huddle, which she clarified as “the big group that was fighting in front of [her]”.[126]  She said that he “was trying to get someone off him, someone was like on his back trying to hit him”.[127]  She said that that was at the start of the fight, “probably the most hectic part”.[128]

    [126] T71.

    [127] T71.

    [128] T71.

33. In re-examination, Ms Pansini said that, after Mr Hanley hit the ground, Mr Watherston’s group found it pretty amusing that Mr Hanley was on the ground.  She recalled that someone said “Look at your fat mate on the ground out cold” and that they were laughing between themselves.[129]

    [129] T72.

34. She was asked about the difference between the statement she made on 10 December 2017 and the statement she made on 14 December 2017 in relation to whether her group was retaliating verbally and she said that the error was in her first statement and she explained that it was made on the morning, the police officer was:[130]

    … just kind of suggesting what was happening and I was just agreeing or saying ‘No’.  I didn’t really have the words for it.

    She read aloud part of her statement of 14 December 2017:[131]

    None of us were saying anything to provoke the boys in the other group at all.  It was an error at para.2 of my initial statement where I described my group as retaliating verbally.  We only ever laughed out loud.

    [130] T72.

    [131] T73.

35. Ms Pansini also gave evidence that she had not discussed the events of 10 December 2017 with Mr Ward or “anybody else concerned with what happened”.[132]

    [132] T68.

36. I do not accept Ms Pansini’s explanation for saying her first statement was incorrect regarding the verbal retaliation.  I strongly suspect that she, in attempting to reassure Mr Blackie, was trying to head off his retaliation, noting that Mr Blackie gave evidence that he did retaliate.

37. I find it hard to accept that she would not have discussed the circumstances of Mr Hanley’s death with Mr Ward and Mr Blackie.

38. Ms Pansini said that she maintained her position by the first palm tree, yet she is unable to provide much detail of the group she was watching “in front of” her.[133]  Her evidence about Mr Blackie and Mr Ward each having two people on them at the time she noted Mr Hanley had fallen is not borne out by the Miller footage.

    [133] T67.

39. I cannot rely on Ms Pansini’s evidence.

    James Ward

40. James Ward met Mr Hanley in Whyalla, his sister is married to Mr Hanley’s brother.  Mr Ward and Mr Hanley were sharing a flat in December 2017.

41. On Saturday 9 December 2017, Mr Blackie and Mr Ward were planning to go to HQ to see the DJ Will Sparks.  They waited for Mr Hanley to finish work.  When Mr Hanley returned home, the three of them had a few drinks before they left for HQ.  Mr Ward said that he and Mr Hanley were drinking wine with juice.  He probably had three or four cups whereas Mr Hanley probably had two or three.  He could not remember what Mr Blackie was drinking.

42. He believed that he took “three or four, maybe five caps”[134] of MDMA.  He said MDMA “heightens my senses, a bit more alert, a bit more — feeling a bit better, happier, just a euphoric feeling”.[135]  He was asked whether he saw Mr Hanley take any drugs that evening or if he talked about drugs to which he replied “I don’t really recall”.[136]  He had been with Mr Hanley before when he had taken MDMA.  He was not aware but assumed that Mr Hanley took MDMA on that night because they “had done it before and we were going out so usually we have had them before we are going out”.[137] 

    [134] T76

    [135] T77.

    [136] T76.

    [137] T76.

1. It was asserted that, at the time of the incident, Mr Watherston was not willing to fight.  He had been attacked in a way that led him to believe that self‑defence was necessary for his protection from harm and this was not a situation where he willingly joined in a fight, whether to carry on or to settle a quarrel, or other non‑defensive purpose.[427]

   [427] R v Nguyen (1995) 36 NSWLR 397.

2. It was contended that if I find that Mr Watherston was near to, or prepared to assist, any of his friends who were under attack themselves, that he was only present to the extent necessary to come to the defence of his friends.

   Analysis of the visual and audio recordings

3. I have had viewed the CCTV footage from cameras 21, 23 and 38 and the CCTV footage from the taxis, the Miller stills, the Miller footage, the stabilised Miller footage, and the slow‑motion Miller footage many times.  In doing so, I have noted particular aspects that were not evident when I watched the vision during the trial.  I have viewed these exhibits in real time and using zoom and slow‑motion functions.  The cameras frequently display centiseconds as well as seconds.  Events are noted to the second.

   Camera 21

4. At 5.18:16, Mr Gray, Mr Glidden, Mr Jenkins, and Ms Marshall are conversing outside the entrance to the Metro on Hindley Street.  This is also depicted on page 3 of Exhibit P1.

5. At 5.18:41, Ms Marshall, Mr Jenkins, and Mr Glidden are walking past the Metro signs.  Mr Glidden, with the letters “KSCY” on the back of his T-shirt, is in the middle of the footpath, between the signal boxes and the wall of the Metro.  Just past the electrical conduit, crouching at the wall, is Mr Blackie holding the trolley frame.  To his right, holding a bottle of water, closer to the green signal box is Mr Ward.  Mr Ward’s hair is in a loose ponytail and he is wearing a black T‑shirt, blue jeans rolled up at the hem, and dark sneakers with white soles and white laces.  By the closest palm tree to the camera is Ms Pansini.  Standing near the rubbish bins, with his left hand in his pocket and holding a bottle of water, is Mr Hanley.  Mr Hanley is wearing a T-shirt, pants, and sneakers, all black.  Near the entrance to the pole dance studio is Mr Gerace.  The closest person to him is Mr McCarthy with long brown hair holding a plastic bag.  The man in a blue shirt with his back to the camera is Mr Felice.  He is facing Mr Hughes, who is wearing a white T‑shirt with a Tommy Hilfiger logo on its chest.  Standing next to Mr Hughes, facing the camera, is Mr Watherston in a black T-shirt and black pants.  This is also depicted on page 4 of Exhibit P1.

6. At 5.18:50, Mr Glidden appears to speak with Mr McCarthy, who is still holding the plastic bag.  Mr Watherston, who is holding a pink balloon, appears to be looking at Mr Glidden.  To Mr Watherston’s right and with his back to the camera is Mr Hughes, who also appears to be holding the same balloon.  This is also depicted on page 5 of Exhibit P1.

7. At 5.18:52, Mr Glidden walks over to Mr Gerace and appears to embrace him.  Both Mr Hanley (who is drinking from a water bottle) and Mr Blackie (who is still crouched down holding the trolley frame) appear to be looking towards Mr Gerace and Mr Glidden.  Mr Ward also appears to be looking south in that general direction.  Ms Pansini is still on her phone, by the first palm tree next to the bins.  This is also depicted on pages 7 and 8 of Exhibit P1.

8. At 5.18:54, the camera pans away to the Rosemont.  This is also depicted on page 7 of Exhibit P1.

9. At 5.19:33, Mr Jones and Rosie cross Hindley Street southwards at the crossing from the Rosemont towards the Metro.

10. At 5.20:11, Mr Heng’s taxi enters the intersection.

11. At 5.20:18, the trolley frame has been propelled into the crossing between the Rosemont and the Metro.

12. At 5.20:23, Mr Carr picks up the trolley frame.  His friend can be seen looking back to the Metro corner.  This is also depicted on page 21 of Exhibit P1.

13. At 5.21:40, the camera pans back to a view south down Morphett Street.  Mr Jones is by the chamfered wall of the Metro on his phone and Rosie is tending to Mr Hanley, who is lying on the footpath.  Ms Pansini and Mr Ward are to the west of Mr Hanley.

    Camera 38

14. At 5.19:00, Mr Carr and his friend reach the southwest crossing of the intersection, waiting to cross. 

15. At 5.19:56, Mr Carr and his friend get a green pedestrian light and start to cross east towards the Metro.

16. At 5.20:07, Mr Carr and his friend draw level with taxi 879 as they all reach the middle of the intersection.

17. At 5.20:14, Mr Carr steps onto the footpath and Mr Heng’s taxi comes into view, turning left from Hindley Street.

18. At 5.20:28, Mr Heng’s taxi exits the intersection.

    Taxi 879

19. In viewing the taxi 879 footage, recalling that the time stamp is 59 minutes and 56 seconds early, I have noted the following in real time.

20. At 5.20:04, as taxi 879 passes the Metro, a person in a white top and dark pants and another person in dark clothing are apparently in a tussle on the footpath against the wall.  They are standing and then appear to go the ground together.  To the right of this interaction is a person in a dark top and lighter pants near the blue signal box, who may be Mr Gray.  As the taxi passes into the intersection at 5.20:06, the torso of a taller person with dark clothing and dark hair can be seen behind the green signal box.  I query whether this is Mr Hanley.

21. When regard is had to the taxi 879 footage, the person in a white top tussling with a person in dark clothing can be seen at 5.20:04.  Assuming these people are Mr Hughes and Mr Ward, whilst of course I cannot be certain as to who is who in this footage, it does appear that Mr Gray with another person is standing close to the signal boxes.  Just south of the two people tussling are two people in black.  At 5.20:05, a person appears to get up from the ground just south of the pair tussling.  This person is a slight figure in darker clothing, with what appears to be long hair.  I query whether this is Mr McCarthy.  The figures to the right of the person I am guessing is Mr McCarthy then become indistinct.  It then appears that the larger of the two people in black, with dark hair, moves south behind a figure in white.

22. Mr McCarthy did not say in evidence from which direction Mr Hanley “stormed over”.  By reference to the taxi 879 footage, it is arguable that if the tall dark figure with dark hair who appears to have followed the figure in white is Mr Hanley, that he may have “stormed over” from the south toward Mr Watherston who was in the vicinity of the signal boxes, having gotten up off the ground.

    Camera 23

23. The footage from camera 23 is taken from a long-range perspective, over 140 metres, and so the resolution is poor.  However, as submitted by counsel for Mr Watherston, with patience and persistence the motion is discernible and certain individuals’ movements can be seen.

24. Using Pelco software, zooming in on the corner of the footpath outside the Metro, I have been able to view certain activity.  The posts of the Rosemont verandah impede vision of a portion of the footpath.  Despite this, and the fact that the vision is on occasions blurred, activity can be seen and figures discerned in the area near the signal boxes, the taxi rank, and the wall of the Metro

25. At 5.17:46, I am able to discern two tall figures in dark clothing on the footpath to the left of the signal boxes.  One figure is close to the boxes and the other slightly to the left.  Whilst the vision is grainy, I suspect that, having regard to this footage and the position of persons seen on the camera 21 footage at 5.18,[428] the person closer to the signal box is Mr Ward and the other is Mr Hanley.

    [428] Exhibit P1, pages 4, 6, 7, and 8.

26. At 5.18:02, the figure I assume to be Mr Ward (in a dark top and lighter pants) moves toward the wall and the figure I assume to be Mr Hanley is still in view.  There then appears to be activity to the south of the signal boxes which includes figures in white tops.

27. At 5.19:27, it appears as if Mr Ward (swinging his arm) is standing near the signal boxes closer to the camera.  He then moves from view toward the wall.

28. At 5.19:34, the figure I assume to be Mr Hanley moves from view toward the wall.  Rapid movements can be observed beyond the Rosemont verandah posts.

29. Then, at 5.19:37, a group of figures in dark clothing in a huddle, fists flying, charge across the footpath west behind the signal boxes.  The larger figure dressed in black with fists flying may be Mr Hanley.  This group appears to spill out onto the road near the taxi rank.  A figure in black walks backwards from behind the signal boxes, east towards the wall.  It does appear that another figure in black goes down to the ground behind the light pole near the taxi rank, noting that there were a group of other figures around that figure prior to him going down. 

30. At 5.19:46, the figure that went to ground by the taxi rank stands up, and simultaneously another figure, holding something white, appears from behind the signal boxes and moves east towards the Metro.

31. At 5.19:53, the figure who has I suspect went to ground and stood up walks east in front of the blue signal box.

32. At 5.19:56, a figure in a white top appears on the far side of the signal boxes.

33. At 5.19:58, a figure in black appears at the signal boxes and Mr Carr commences crossing the road.

34. At 5.20:01, what appears to be the back of a figure in black, whom I suspect is Mr Hanley, near the road in front of the signal boxes, can be seen once a maxi taxi passes the area.  Another figure in black walks from past this figure.  A figure in a white top appears to charge at a figure in black clothing against the Metro wall heading eastward.

35. At 5.20:04, the two figures appear to fall down to the west.

36. At 5.20:06, it appears as if a black figure and a figure in a white top get up off the ground. 

37. At 5.20:07, a figure in black (possibly Mr Hanley) moves east towards a figure on the ground.  Once this figure moves, a person in a black top and lighter pants is seen by the signal boxes.  I suspect this is Mr Gray.

38. At 5.20:09, it appears that there are two figures in dark clothing punching at each other.

39. Mr Heng’s taxi can be seen from 5.20:12.

40. At 5.20:15, a black figure appears to bend backwards revealing a white figure as Mr Carr completes his crossing with his friend.

    The Miller footage

41. I pause to mention that there is no vision of what occurred on the footpath between Mr Watherston and Mr Hanley immediately prior to what is depicted at the commencement of the original Miller footage.

42. The original Miller footage shows Mr Watherston and Mr Hanley seemingly close to Hindley Street.  Vision of the footpath is impeded first by taxi 2553 and then by Mr Heng’s taxi.  Mr Heng’s taxi is the taxi to the left of the screen.  Mr Watherston’s head of blonde hair is seen above the roof of taxi 2553.  Mr Hanley’s apparently taller, larger frame is also seen above the roof of the taxi as it begins to slope to the rear.  Mr Carr’s head can be seen just to the right of the sign on the taxi’s roof.  Mr Carr’s friend is at the front of the taxi, just out of view.  Mr Hughes appears just above Mr Hanley’s left shoulder.  Mr Blackie and Mr Ward appear to the left of them.

43. Mr Watherston throws one or two punches at Mr Hanley, who appears to dodge.  As submitted by the prosecution, this is seen the Miller stills 0 to 21. 

44. Significantly, on viewing the original Miller footage in slow‑motion using VLC media player software, I noted that after the punches seen at one second, Mr Watherston’s head is obscured briefly by Mr Carr.  His head comes back into view and appears to go down behind taxi 2553 at two seconds.  I query whether he has fallen or is ducking at this time.  Mr Hanley is out of view from one second to three seconds.  Mr Watherston is within view again at six seconds at the green signal box.

    What can be seen through Mr Heng’s rear passenger windows

45. During closing submissions, I asked the prosecutor what Mr Hanley appears to be doing as seen through the rear passenger window of Mr Heng’s taxi as seen on the Miller footage.  Mr Watherston referred to this part of the footage in cross-examination as the time when he was “trying to back away and dodge [Mr Hanley’s] punches”.[429]  The prosecution submitted that Mr Hanley was:[430]

    Defending himself, and we can say he’s defending himself because, even though it’s not on that still, and it’s not on the stabilised footage, when your Honour looks at the original footage and when your Honour looks at the stills — and this was what I played to the accused deliberately in cross-examination — one sees before Mr Heng’s taxi obscures the action that there is at least an initial punch in the footage quite separate to the fatal punch.  That’s before Mr Heng’s taxi comes into view.

    So there is a punch from the accused — again, we say it’s a haymaker.  It can be seen the deceased again is backing away — so it’s not only that the deceased is backing away at the time of the fatal punch …

    [429] T665.

    [430] T752-753.

46. The prosecution did not address the Miller stills from still 22 to 223.  The ability to see through the side passenger window of Mr Heng’s taxi is obscured by Mr Carr’s friend for brief moment.  However, once he has passed, on my viewing, the Miller footage and the Miller stills reveal that Mr Hanley moved south from the corner of Hindley Street to a position close to the signal boxes.  He appears to move forwards and punch towards a figure with blonde hair near the second signal box.

47. Using VLC media player software and the interactive zoom video effect on the original Miller footage and the stabilised Miller footage, Mr Hanley can be seen through the side passenger window.  He appears to have moved from the position at the corner of Hindley and Morphett Streets, closer to the signal boxes.  He appears to be moving forward with a bounce or a skip.  The vision is then blocked by a figure with blonde hair (possibly Mr Gray) standing by the blue signal box.  Mr Hanley then appears to move forward and the top of his back can be seen above the green signal box.  His back is to the camera and he appears to be thrusting his body forward and thrusting his right arm over in a punching motion, towards the figure with blonde hair and a black top whom I suspect is Mr Watherston and who appears to be close to the green signal box.  It is not apparent from the footage how Mr Watherston came to be in this position.

48. After Mr Heng’s taxi moves away, Mr Hanley appears to jump to the side followed by Mr Watherston.  As Mr Hanley and Mr Watherston are coming forward, Mr Hughes jumps out the way with his back to the wall.  During the whole interaction, Mr Gray is standing with his right arm on the blue signal box.  As Mr Hanley is punched and falls, Mr Ward thrusts his right arm toward Mr Watherston.  Mr Gerace then walks towards the wall from the signal boxes.  He had been obscured by Mr Gray during the interaction that occurred behind the signal box.  Mr Gerace starts gesticulating at Mr Ward and Ms Pansini walks up to him and appears to push his shoulders.

49. This interaction captured by the Miller footage takes approximately 20 seconds.

    The compilation of the Kovacevic taxi footage with the stabilised Miller footage

50. It was an agreed fact that Exhibit P16 was a compilation of the Kovacevic taxi footage and the stabilised Miller footage, where the Kovacevic taxi footage audio could be heard over the top of the stabilised Miller footage at the point where the stabilised Miller footage was spliced in.

51. Exhibit P16 assists in timing when the fatal punch occurred.  The prosecutor in opening alleged that this was at 5.20:28.  On my assessment, it is some seconds earlier.  Exhibit P16 has the stabilised Miller footage finishing at 5.20:26 on the timestamp.  Recalling that the time stamp on the Kovacevic taxi footage is eight seconds early, the stabilised Miller footage then in fact finishes at 5.20:34.  Recalling also that the original Miller footage and the stabilised Miller footage start at different times and run for different times but finish at the same time, it can be inferred that if the stabilised Miller footage finishes running at 5.20:34, then so too does the original Miller footage.  Recalling that the original Miller footage runs for 20 seconds, Mr Miller must have started filming the original Miller footage at 5.20:14.  The fatal punch occurs at approximately eight seconds on the original Miller footage, so at approximately 5.20:22.

52. I have listened closely to what can be heard on this video with highly sensitive headphones.  Bearing in mind that the time stamp on the Kovacevic taxi footage is approximately eight seconds slow:

    ·At 5.19:48, someone says “You’d fucking use a weapon wouldn’t ya”.

    ·At 5.19:59, someone says “Wrap this pole around your head cunt”.

    ·At 5.20:13, someone says “You’re a cunt, come on”.

    ·At 5.20:24, someone says “Ooh, he’s out” and “fat mate”.

    ·At 5.20:49, a voice says “Mate you fucking came at him with a trolley”, another voice says “Shut the fuck up you fat cunt”.  On my assessment, the first voice replies “Look at your fat mate on the ground mate”. 

    ·At 5.20:58, a female voice can be heard saying “Stop Frank” and at 5.21:02 the voice says “Frank stop”.  I assume this is Ms Pansini imploring Mr Gerace to stop.  

    It is not possible to identify any of the other voices heard on this recording.

    Discussion

53. The 20 seconds of footage captured by Mr Miller is a mere fraction of the activity that took place between 5.18 am and 5.21 am on 10 December 2017.  Cameras 21 and 38, which arguably would have given a better view of the interaction between Mr Hanley and Mr Watherston, both panned away and did not capture any of the interaction.  At the commencement of the Miller footage, Mr Watherston and Mr Hanley are standing in front of each other.  Mr Watherston appears to throw a punch with his right arm at Mr Hanley.  Mr Hanley is seen moving backwards as the first punch is coming forward.  Neither punch connected.

54. The prosecution made submissions about what is seen on still 0 to 21 of the Miller stills.  No submissions were made about what occurs from 21 to 224.  Whatever activity is occurring during this time is partially obscured by the taxis and by Mr Carr and his friend walking between the taxis and the activity on the footpath.  However, on viewing the original Miller footage very closely, as described above, in the first two seconds Mr Watherston’s head appears to drop behind taxi 2553 (also seen on stills 41 to 52) raising the question whether he has fallen, has been knocked, or is ducking to avoid something.  Once Mr Carr’s friend passes, Mr Hanley can be seen through the rear passenger windows of Mr Heng’s taxi.  It is the prosecution case that Mr Watherston was the aggressor and Mr Hanley only acted defensively.  It was submitted that the Miller footage shows that Mr Hanley physically turned and jumped away from Mr Watherston to avoid his further attack.  However, from watching the footage, Mr Watherston must have moved from the northern position in front of the Metro signs and closer to the chamfered wall where he was seen throwing punches to a position closer to green signal box surrounded by his friends.

55. As described above, Mr Hanley’s head can be seen through the rear passenger windows of Mr Heng’s taxi.  It appears to me that Mr Hanley moves south away from his the position closer to Hindley Street, and towards Mr Watherston and his friends standing at the signal boxes.  He appears to be thrusting his body forward and throwing a punch at Mr Watherston who is near the green signal box.

56. It is arguable Mr Watherston retreated from his interaction with Mr Hanley seen at the beginning of the Miller footage to the signal boxes near his friends. 

57. There is no doubt that there was a fight between members of Mr Hanley’s and Mr Watherston’s groups.  Mr Blackie, Mr Ward, and Mr Hughes admitted carrying out aggressive physical actions.  Mr Blackie admitted to hitting Mr Gerace over the head with the trolley frame, after which “a fight broke out”.[431]  Mr Ward admitted to having physically interacted with a person, possibly Mr McCarthy and/or Mr Hughes.  Mr Hughes admitted to pulling the person who had tackled Mr McCarthy off of him. 

    [431] T155.

1. The Kovacevic taxi footage audio establishes that the situation was volatile, but none of the voices making the utterances can be attributed to Mr Watherston.  From what I can discern from the audio, the retort “Shut the fuck up you fat cunt” seems to have been said by either Mr Ward or Mr Blackie in response to an accusation by someone from Mr Watherston’s group.

2. Ms Pansini described Mr Hanley getting involved, but she could not say how.

3. Both Mr Blackie and Mr Ward said that Mr Hanley was not involved at all.  This, on my assessment, is not supported by what appears to be happening as captured by camera 23 and is contradicted by what is seen through the rear passenger window of Mr Heng’s taxi.

4. It has not been established that Mr Watherston was involved in any physical aggression prior to the interaction seen on the Miller footage.  No witness gave evidence that Mr Watherston was involved in any physical interaction prior to his interaction with Mr Hanley.  Mr Watherston admitted that he was involved in the initial verbal altercation with Mr Blackie.  He also admitted to yelling “Get the fuck off my mates” before and after he was, on his evidence, pushed to the ground.  There is little evidence about how Mr Watherston came to be involved compared to the evidence I have heard about how Mr Gerace, Mr Blackie, Mr Ward, Mr Hughes, and Mr McCarthy came to be involved in the physical aggression.

5. Having regard to the vision from camera 23 footage, a group of black figures appear to charge across the footpath with fists flying past the signal boxes and spills out onto the road near the taxis.

6. The reasonable possibility that, if Mr Watherston was standing between the signal box and the bins calling out “Get the fuck of my mates”, he was thrown or pushed or ended up on the road on all fours, having being caught in the melee as it passed, has not been excluded. 

7. The reasonable possibility that, having got up off the road and stepped onto the footpath, Mr Watherston did not want to join in the fight that was going on and he yelled “Get the fuck off my mates” whereupon, as he was standing by the signal boxes, Mr Hanley charged at him, has not been excluded. 

8. The reasonable possibility that Mr Watherston defended himself in response to the charging by Mr Hanley by engaging in what has been described as “haymaker” punches close to Hindley Street, a portion of which is captured at the beginning of the Miller footage, has not been excluded.

9. The reasonable possibility that Mr Watherston was pursued by Mr Hanley back to the signal boxes has not been excluded.

10. The reasonable possibility that when Mr Hanley was throwing punches at Mr Watherston, he thrust towards Mr Watherston’s neck, scratching Mr Watherston’s neck and breaking his necklace has not been excluded.

11. The reasonable possibility that Mr Watherston genuinely believed that his conduct was necessary in self-defence has not been excluded.  As such, it is necessary to objectively consider whether the force he used was reasonably proportionate.  I have considered this issue “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”.[432]

    [432] Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 662-663.

12. Mr Felice gave evidence that Mr Watherston got involved with Mr Hanley because Mr Hanley was standing aggressively over him near the boxes.  He recalled that punches were thrown and he recalled Mr Hanley trying to hit Mr Watherston and Mr Watherston defending himself and punching back. 

13. Mr Gray said that he stumbled across Mr Watherston and Mr Hanley and he was pretty fixed on them.  He could see that they were “exchanging in some serious fists”.[433]  He described that both Mr Hanley and Mr Watherston were aiming at each other’s heads.  His evidence was that Mr Hanley “went for the big swing, kind of left himself a little bit vulnerable, sort of had like his right shoulder coming towards like the left of his body, so it was like a big swing, almost took him off his feet as such” and then Mr Watherston “just come through”.[434]

    [433] T259.

    [434] T267.

14. Having regard to the vision through Mr Heng’s rear passenger window, it cannot be excluded that Mr Hanley, consistent with Mr Watherston’s evidence, was acting aggressively — thrusting his body and his right arm forward to Mr Watherston.  I have taken into account Mr Watherston’s evidence that he wanted to protect himself because he saw Mr Hanley’s fist go past his face and he thought that he needed to pay attention so he was dodging and swinging back.  Mr Hanley was 185 cm tall and 113 kg in weight.  Mr Watherston said that he was throwing big punches because Mr Hanley was a big guy and that if any of his punches landed on him, it was definitely going to injure him and he had to protect himself.  He described Mr Hanley as a very big male, who was throwing “very forceful punches”.[435]

    [435] T658.

15. The prosecution has not excluded the reasonable possibility that Mr Watherston’s conduct was reasonably proportionate as objectively assessed. 

16. In Nguyen, Priestly JA drew out “the distinction between a willing and a forced fight … inherent in the idea of self-defence as a response to a situation thrust upon a person against the person’s will”.[436]  His Honour said:[437]

    the authorities support the view that the idea of self-defence depends on a person, attacked or threatened with attack, who does not want to fight, being unable, acting reasonably, to avoid fighting in self-defence.

    The prosecution has not proved that Mr Watherston “willingly joined in” or wanted to fight.

    [436] (1995) 36 NSWLR 397 at 411.

    [437] (1995) 36 NSWLR 397 at 412.

    Conclusion

17. I find that the punch inflicted by Mr Watherston to Mr Hanley caused Mr Hanley’s death.  I find that the punch was a conscious and voluntary act, being the result of the exercise of Mr Watherston’s will and not the result of an accident.  I find that the punch by Mr Watherston constituted an unlawful physical assault upon the deceased carried out in circumstances where a reasonable person would have realised that he was exposing the deceased to an appreciable risk of serious injury. 

18. Having regard to the whole of the evidence and the submissions of counsel, the prosecution has not satisfied me beyond reasonable doubt that I should reject Mr Watherston’s evidence as a reasonably possible version of the facts.

19. The prosecution has not excluded as a reasonable possibility that Mr Watherston, when confronted by Mr Hanley at approximately 5.20 am on 10 December 2017, fought back because he believed he had to, and that that belief was reasonable and genuine, and that his conduct was proportional to the threat he perceived. 

20. The prosecution has not established beyond reasonable doubt that Mr Watherston was not acting in self-defence when he punched Mr Hanley causing his death.

21. I enter a verdict of not guilty.