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

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.
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
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”).
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.
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.
It was the prosecution case that somehow Mr Hanley became involved in a “one…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Watherston

Details

AGLC: R v Watherston [2019] SASC 109
Case: [2019] SASC 109
Decision Date: 1 July 2019

CaseChat Overview and Summary

The matter of R v Watherston was heard before a single judge, who was tasked with determining whether the accused, Mr. Watherston, was guilty of manslaughter by unlawful and dangerous act. The deceased, Mr. Hanley, died after being punched by the accused and subsequently falling backwards onto the footpath. The central issue before the court was whether Mr. Watherston acted in self-defence. This involved evaluating the accused's evidence and the evidence of other witnesses, considering factors such as intoxication, the circumstances under which observations were made, and the effects of intoxication on perception and memory.

The court assessed the reliability and weight of the evidence provided by Mr. Watherston and other witnesses, who had varying levels of intoxication and recollection of events. It was noted that intoxication could significantly affect perception and memory, making it difficult to determine the accuracy of the witnesses' accounts. The court also had to consider the subjective aspect of self-defence, where Mr. Watherston's state of mind and perception at the time of the incident were crucial. The court meticulously evaluated the circumstances under which observations were made, including factors such as lighting, confusion, and impairment, to determine the reliability of the evidence.

After considering all the evidence and submissions, the court concluded that the prosecution had not proven beyond reasonable doubt that Mr. Watherston did not act in self-defence. The judge found that Mr. Watherston's punch, which caused Mr. Hanley's death, was a conscious and voluntary act, but that it was reasonable for Mr. Watherston to believe he had to fight back in self-defence. Consequently, the court entered a verdict of not guilty, acquitting Mr. Watherston of the charge of manslaughter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

BAMPTON J

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 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. 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. 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. 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. I enter a verdict of not guilty.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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