Robert Thomas Barron v Elwyn John Battye
[2013] ACTMC 16
•4 July 2013
ROBERT THOMAS BARRON v ELWYN JOHN BATTYE
[2013] ACTMC 16 (4 July 2013)
CRIMINAL LAW - assault occasioning actual bodily harm - whether defendant acting in self-defence.
Crimes Act 1990 (ACT), s 24
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Palmer and The Queen [1971] AC 814
No. CC11187 of 2011
Magistrate: Morrison
Magistrates Court of the ACT
Date: 4 July 2013
IN THE MAGISTRATES COURT OF THE )
)
AUSTRALIAN CAPITAL TERRITORY ) No. CC 11187 of 2011
BETWEEN:ROBERT THOMAS BARRON
Informant
AND:ELWYN JOHN BATTYE
Defendant
DECISION
Magistrate: Morrison
Date: 4 July 2013
Place: Canberra
On the morning of 8 December 2011, the complainant, Mr Vladimir Petruschenko entered the home of his neighbour, Mr Elwyn Battye who is the defendant. When he left the home a short time later he had suffered significant injuries at the hands of the defendant. The question for me in these proceedings has been whether the prosecution has proved beyond reasonable doubt that what took place in the brief intervening period amounted to an assault by the defendant on the complainant occasioning actual bodily harm.
I have directed myself that the prosecution bears the onus of proof in relation to all elements of the offence, and that the standard of proof is beyond reasonable doubt. I have directed myself that the criminal responsibility provisions of the ACT Criminal Code do not apply.
It is not in dispute that the complainant’s injuries were caused by punches intentionally delivered by the defendant although there is a dispute as to the number of punches. It is not in dispute that the injury suffered by the complainant meets the threshold for what constitutes actual bodily harm.
The defendant swears that he was acting in self-defence. I have directed myself that the test to be applied is that set out by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645. There is no onus on the defendant to establish that he acted in self-defence. The onus is on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. The prosecution may do that by proving, beyond reasonable doubt, either that the defendant did not believe that it was necessary in self-defence to do what he did; or, if he held such a belief, that there were no reasonable grounds for it.
The defendant in his sworn evidence said that he feared for his life. I am surprised that he was not cross-examined about that claim and it was not suggested to him that he did not genuinely hold that fear. In the absence of such cross-examination, the prosecution has limited its case to proving beyond reasonable doubt that there were no reasonable grounds for the belief which the defendant says he held.
Evidence in the prosecution case was given by the complainant and by Dr Catherine Sansum who examined the complainant at the hospital, took some photographs which are in evidence as Exhibit P6 and prepared a report which became Exhibit P13. Also forming part of the prosecution case is the disk of the recorded interview between police and the defendant on the day of the incident as well as recordings of 000 calls made by both the complainant and the defendant.
The background circumstances are unusual because of the relationship between the complainant and the defendant. They were neighbours and had been for a couple of years leading up to the incident. The evidence establishes that there was a close friendship, and that the complainant and defendant liked and confided in each other. The complainant had been invited into the home of the defendant and his wife for dinner on many occasions before 8 December 2011. The relationship appears to have been more than a superficial mateship — in his recorded police interview, the defendant refers to the complainant sharing his personal struggles about his divorce and the defendant in turn sharing what he describes as "personal stuff about me, like my struggles, my fears, all that sort of stuff". He goes on to describe the complainant and him as having "been there for each other".
It is common ground that there had been disagreements and arguments between the complainant and the defendant over the time they had known one another. The pair had worked on building projects together and presumably that provided an avenue for conflict beyond that which would otherwise exist between neighbours. The disagreements and arguments in the past had never resulted in physical violence.
By way of more immediate background to the exchange on 8 December 2011, the complainant and the defendant had been working together on a building job on the kitchen of the defendant’s mother. It is apparent that the job was a source of frustration for all concerned, including the defendant’s mother — because of the time it was taking.
The complainant says that little was required to complete the job and he went to the defendant’s house on the 8th to have him go with the complainant to collect some Gyprock for that purpose. The defendant says that he had spoken to the complainant the day before — that is Wednesday 7th and told the complainant that, in effect, he no longer wanted any part of the job, and that the complainant was to complete it himself. For his part the complainant says that he cannot recall seeing the defendant on the day before or any conversation that the defendant did not want to be further involved. I refer to this evidence again later. There is in any event no suggestion that the complainant went to the home of the defendant for the purpose of assaulting him.
The complainant said that on 8 December when he went to the defendant’s house the defendant said that he was not going to help, that he had other things to do, and that he was “over it”. [T24]
The complainant went on to describe how he was pleading with the defendant to assist him to finish off the job. He described the defendant’s demeanour towards him as very negative. [T28] He said that there were swear words between them but that it wasn't anything out of the normal between them. He described it as being "pretty standard for when we get annoyed with each other". [T28]
He later went on to say that the exchange with the defendant included "talking about each other's attitudes" — explaining that as the defendant "having a shot at me for having Thursday off". [T32] He went on to say "and so we were getting heated up about, you know, him having time off whenever he wanted it". [T32] He said that he didn't know if he was shouting at the defendant but that he wasn't just sitting back calm. [T32]
The complainant went on to say that the defendant told him to get the fuck out of his house. [T34] The complainant said that he turned and walked away from the defendant towards the door. He said that he then turned back towards the defendant and said words to the effect of "are we fighting over this?”. [T36] It is apparent from the manner in which he gave his evidence that he intended the question somewhat rhetorically.
The complainant said that as he did that he moved towards the defendant with his arms out. He demonstrated in court what he recalled to be his action at the time. It involved him taking a couple of steps in one direction before turning through 180° and taking steps back in the opposite direction raising his arms as he did so to shoulder height and fully outstretched. He did so at a fast walking pace.
The complainant said that his hands were placed on the defendants shoulders. [T39] He went on to say that a fight then broke out. [T41] He said that the first thing he felt was a massive punch to the side of his head. He said that he was semiconscious, lost coordination and thought to himself that he was in trouble.
He said he could feel that there was more coming. He said that he put his hands up and tried to grab the defendant. He went on to describe how he was hit many times, that there was blood in his eyes and he thought that if he gets hit more times the defendant could kill him. He said he was asking the defendant to stop.
He said that he was punched to the top of his head, to the nose to the mouth and to the chin. He was asked how many punches landed he responded by saying "close to 6". [T43] He said that he fell to the floor.
The complainant went on to say that he felt a lot of pain, there was blood in his eyes and he was asking the defendant to stop. He said that the defendant did not stop. He said that he said to him "I can't see". He said that the defendant continued to punch him and that he was in a state of almost passing out. He said he then slumped down onto his hands and knees and that when he slumped down the punching stopped. [T49]
It is common ground that the complainant did not at any stage punch the defendant.
Under cross-examination, the complainant accepted that the defendant had said to him words to the effect of “fuck off” and “get out of here”, but that he did not leave. This area was returned to on several occasions in the course of cross-examination. The impression left by the complainant’s evidence was that he stayed, despite being told to leave, because he thought that he could persuade the defendant to change his mind and continue with the kitchen project. His evidence generally, including his reference at page 13 of the transcript to "Elwyn says one thing and you’re trying to work it out with him" indicates to me that he felt he had been successful in persuading the defendant to change his mind about other things in the past.
Under cross-examination, the complainant said that he could remember saying to the defendant words to the effect of "you're talking out of your arse”, but that he could not remember calling him a dickhead or a fucking idiot.
The complainant was also cross-examined about what was said by him to the defendant when he used the word "fight". I am satisfied that what took place under cross-examination — referred to in page 15 and 16 of the transcript — was the complainant indicating that he had used the word fight in the sense of saying “are we fighting over this” and not acknowledging that he had said “do you want to fight”.
The complainant disagreed with a suggestion that the physical altercation took only three seconds.
The complainant agreed under cross-examination that when he had grabbed the defendant’s shoulders he also shook him.
The complainant agreed under cross-examination with the suggestion that after the incident and when he said he had called the police the defendant said to him words to the effect of "tell the truth mate".
Under cross-examination, the complainant also said that he could not recall having had a conversation with the defendant on Wednesday about the kitchen project in which he had been told that the defendant wanted no further part in it.
The important aspect of the evidence of Dr Sansum was about the extent of the injury suffered by the complainant and her opinion as to the number of blows which would have been required to cause such injuries. In summary, her evidence was that she thought they had been caused by an absolute minimum of three blows but that in reality there were probably more than 3 blows. [T46]
The defendant gave evidence of being at home playing the guitar and reading the Bible when the complainant arrived. He said that he told the complainant that he no longer wanted to work with him on the project; that the complainant could finish the work off without him and that his mother would pay him when the job was finished. He said that the complainant immediately became emotional — calling him a dickhead and idiot and telling him that he was speaking out of his arse. He said that he asked the complainant to stop calling him names and to leave. He said that the complainant continued to verbally abuse him and that he — that is the defendant — then raised his voice. He said he told the complainant to fuck off and get the fuck out. He said the complainant continued to call him names and he continued in response to tell him to fuck off. He said that the complainant then walked towards the door, turned around, looked him up and down, said “do you want a fight” and charged him. [T54]
The defendant said that the complainant grabbed him by the shoulders and then, holding his clothing in clenched fists, brought them together at a point in the centre of his body somewhere under his chin. He said that the complainant pushed him, as I understand it, backwards against a kitchen bench. The photographs in evidence indicate some mild bruising to the defendants shoulder and buttocks.
The defendant said that when he was grabbed in that manner he feared for his life. [T56]
He went on to say that he flung the complainant around into the corner of the kitchen and “chinned” him. He demonstrated an action and it is described on page 57 of the transcript. He said that as or immediately after doing that he punched the complainant to the face.
It had not been put to the complainant in cross-examination that the action described by the defendant as “chinning” had taken place. Nor was the defendant cross-examined about what instructions he had given to his lawyers on that point.
The defendant, in a somewhat animated fashion, demonstrated the punching motions he said had taken place accompanied with “bang” sounds as he did so. He demonstrated 2 punches with his right arm to the face of the complainant, while holding his left arm up to indicate the “chinning” position. He said that the complainant then let go of him and hunched over and that he — that is the defendant — then delivered an uppercut with his left fist to the face of the complainant.
The defendant said that he hit the complainant as hard as he could. He said he did so because he was scared. When asked why he was scared, he said it was because he'd asked and then told the complainant to leave and he wouldn't, because the complainant had charged him, because the complainant had asked him twice if he wanted to fight, because the complainant had been in his face gnashing his teeth and because the complainant is bigger and stronger than he is. He went on to say that he thought that the defendant was going to smash his head in. He said that he stopped punching the complainant after the uppercut because he then felt safe.
As to the question of the relative sizes of the complainant and the defendant there was some evidence about size and weight. The complainant is the taller of the two, but the defendant is younger and is of solid build. For my part I did not regard the complainant as physically imposing or consider that there was a marked disproportion between the physical presence of the complainant and the defendant.
Under cross-examination, the defendant also made reference to having warned the complainant. When asked to explain what he meant he said this:
Yes, so I said, “Vladimir, stop calling me names, please don’t call me names. We’ve spoken about this before. You know I don’t like you calling me names. Please don’t call me names.” And he continued to call me names. I then said, “Vladimir, I’m now warning you,” and that’s when agitation turned to aggression.
It is apparent from the exchange which had taken place earlier that in giving that answer the defendant is referring to himself — that is to his own agitation turned to aggression.
The defendant accepted that it was after the first punch that the complainant had told him to stop but that he did not do so. He denied having punched the complainant at least six times. He admitted that he was angry and aggressive at the time.
He went on to reiterate what he had said in his recorded interview with police about forcing the complainant up into a corner and "looking for a shot". Again he demonstrated his actions accompanied by sound effects.
The defendant conceded that the complainant had not punched him. He said that the threat posed by the complainant was when the complainant charged him saying do you want a fight. [T77]
In re-examination, the defendant was asked why he continued to strike the complainant after he had heard him say stop and he answered by saying "because I was scared and it was quick".
The defendant took part in a recorded interview on the day of the incident.
The answers given by the defendant confirm what had been said by the complainant about a history of problems arising from time to time between him and the complainant which they had been able to resolve without resorting to any physical violence.
At question and answer 66 the defendant confirms his version of events that he had told the complainant the day before — that is the Wednesday — that he did not want to be further involved with the work on his mother's kitchen. He went on to say that the complainant had arrived on 8 December as if nothing had happened. He said that he was wondering how he was going to tell the complainant what he had told him the day before "without us blowing up at each other again". He went on to say "because — and I just had a feeling that it was right on the edge of becoming a risk to both himself and myself.....".
He goes on at answer 67 to refer to asserting himself and reminding the complainant that he had to be careful because what he was doing was not good or dangerous. He said he could feel himself starting to get agitated and then starting to get aggressive.
His description of the physical altercation at answer 68 includes the following:
.... And he’s come straight at me and that’s when I — all rationale has gone, do you know what I mean, I’ve gone from being in the top higher function part of the brain back down into fight or flight mate, you know, like he’s come at me and he’s gone and made the statement, “Do you want a fight?” And then he’s bang into me and he’s grabbed me, right. We start fighting and that’s it, you know.
and later in the same answer:
.... I was at home, caught off guard in my pyjamas, man, you know, trying to play my guitar. Anyway, so he comes at me, grabs me, and we start wrestling and it’s pretty neutral, right, but I then start to get the better of him, all right and I force him up into the corner and I’m looking for a shot, and bang, bang, bang, you know. Now, did he ask me to stop? Yes, mate, he did all right. But in five to ten seconds of rage and fear, the deep rage and deep fear all that “it” stuff that Freud talks about, you know, what I mean, I’m not — it’s not rationale any more, you know.
At question and answer 88 through to 91 the following exchanges were recorded:
Q:Okay, sure. So after he’s grabbed you have you grabbed him back or like?
A:Yeah, as he’s come at me, he’s grabbed me and I’ve grabbed him then, do you know what I mean, like because it’s “on”, you know like so you’ve defend yourself.
Q:Okay, yep.
A:Just basic instincts kick in.
Q:Sure.
A:You know and then we’re wrestling, we’re fighting and then I’ve – you know, can feel that I’ve got the better of him and then bang, bang, bang, you know, that’s you know, that’s how it went down, you know. And by then, you know, saying you know, “Stop, stop.” It’s honestly, for me it was too late.
In his answer to question 100, the defendant speaks of what was said to the complainant after the physical altercation. He said that the complainant was bleeding onto the carpet and that he shoved him towards the door telling him to get off the carpet. I interpret his answer as expressing some remorse for pushing the complainant when there was no need to do so. His response includes the following: "but I was caught between trying to help him and upset with what had happened and the build-up for months and months and months and months."
In his answer to question 107, the defendant refers to the exchange he says he had with the complainant outside their houses after the police had been called. His answer includes the following:
You know, and I just wanted to — I thought Vlad, don’t you twist the truth to support your claims right. And I can remember saying that to him because that’s something that I’ve put to him a number of times, right. And he goes, “What do you mean?” I think, he said, “What do you mean?” And I said, “You just make sure when the police come here, you tell the truth, all right.”
At answer 120 and 121, the defendant is speaking of the force of his punches to the complainant. His answer includes the following:
I don’t like violence and I don’t want to go there because I know, I know we’re men now and people get killed, right. And that’s what I was trying to tell Vlad, I was trying to tell him, “Don’t, please don’t.” And, you know, because I’m not a big bloke, mate, but I am deceptively strong apparently, you know, um, and once I’d clocked over into that — that mode, I’m very — I’ve thought about it right, and I went — yeah, I’ve — yeah, I was — I was angry, scared, you know, all in my mind and you know, fighting for my life, you know what I mean?
At question 123, defendant is asked whether he could remember any of the injuries that the complainant sustained. The following exchange takes place:
Q:Okay. Can you remember any of the injuries that he sustained like from — are you able to go back and...
A:Look, yeah, look mate, when he was outside, because see there was no, um, I probably — that’s why I think, look I know I’ve registered, I’ve gone out of — I think for want of a better word, um, the need to defend myself or violent, you know, aggression, you know, when the crisis peaks, you know.
Q:Yes.
A:Agitation, aggression and a violent outburst. When I’ve come out of that, sorry, what was the question again?
I turn to my assessment of the credibility of the complainant and the defendant.
The complainant made some candid concessions about his own conduct on 8 December. He admitted to refusing to leave the premises when told to do so and he admitted to moving quickly towards the defendant with his arms extended before grabbing the defendant by the shoulders. He conceded at least some of the abuse which the defendant says was directed at him. He conceded not being able to recall the exact number of punches struck because he was dazed by the first blow. I was left with the overall impression that the complainant was not attempting to exaggerate the defendant’s conduct or to downplay his own role.
Some emphasis was placed by senior counsel for the defendant on the complainant’s testimony that he could not recall any meeting and conversation on the Wednesday about the defendant not wanting to be further involved in the kitchen project. I think it is likely that some conversation took place on that day, but it is apparent that there were ongoing issues between the complainant and the defendant about the kitchen project. I formed the view that the complainant felt that he had often in the past needed to encourage the defendant to get on with the job in the face of reluctance on his part to do so. On the defendant's side, it is remarkable that he felt the need to write a letter to his neighbour about the kitchen project. There is no evidence as to the terms in which the letter was expressed. It may be that the defendant felt that he could not express himself in a face-to-face meeting with the complainant in the firm terms which he wanted to convey, and that he had in fact not done so in firm terms when the parties met on the Wednesday. It is common ground that the complainant never saw the letter.
In those circumstances, it would not be out of the ordinary for the meeting to have been unmemorable from the complainant’s point of view, and his evidence that he did not recall the meeting does not cause me to question his reliability generally.
There is a conflict between the evidence of the complainant and the defendant as to the context in which the word "fight" was used — the complainant’s evidence placing it as somewhat of a rhetorical question whereas the defendant puts it as part of the sequence of events which he describes as the complainant “charging” him.
The complainant concedes having turned and moved quickly towards the defendant with his arms extended. It is common ground that the complainant grabbed the defendant by the shoulders, although the complainant did not accept that he then brought his fists together holding the defendants clothing as alleged by the defendant.
I have some difficulty reconciling the defendant’s version of what took place with his description of the complainant’s action as "charging". It is accepted by both complainant and defendant that the complainant’s first contact was to grab the defendant by the shoulders with both hands. The complainant’s action was not to strike out at the defendant; indeed he did not punch the defendant at any time in the encounter. Nor is there any evidence of any attempt by the complainant to punch or otherwise strike at the defendant — either in his initial approach to and contact with the defendant — or at all during the physical exchange.
The act of grabbing the shoulders of the defendant even when accompanied with shaking is not the type of act usually associated with initiating a violent attack on another person. The complainant by placing his arms on the shoulders of the defendant prevents them from being used effectively to either immediately strike, or defend himself against, a blow. That action of grabbing the defendant by the shoulders is conduct more consistent with the complainant’s version that he was posing a rhetorical question — are we fighting about this — than with the defendant’s description of him "charging" as if he was going to “smash (his) head in”. [T59]
I have already summarised the medical evidence. On the basis of the evidence of Dr Sansum alone there is a possibility that only 3 punches were delivered — although the doctor made it clear that she thought that there probably had been more. The doctor’s opinion that there were probably more blows is supported by the testimony of the complainant who says that there were close to six.
As I have already indicated the complainant did not present as a witness prone to exaggeration. Whilst he admits to being dazed by the first blow, the combined effect of his evidence and the professional opinion expressed by Dr Sansum is highly persuasive on the question of the number of punches delivered.
In his testimony, the defendant does not refer to any flurry of punches. He is in fact extraordinarily precise in describing what he says were the three punches delivered by him.
In all the circumstances and having regard in particular to the inferences I draw from the evidence to which I have just referred, I have concluded that the defendant was not being entirely truthful in giving his evidence.
In particular, I find that the defendant punched the complainant more than 3 times and probably about 6 times. I find, in accordance with the defendant’s own evidence, that he struck the complainant as hard as he could and that his blows were directed to the head and face of the complainant. I conclude that the defendant was lying in his testimony about having punched the complainant on only 3 occasions. That finding does give me some cause to doubt the reliability of other parts of his evidence.
As indicated earlier the prosecution case is that, if the defendant believed that it was necessary for him to do what he did in self-defence, there were no reasonable grounds for such a belief.
The defendant gave evidence of his fear of the complainant. He also provided a catalogue of the grounds for his fear in the following terms:
a.He had told the complainant to leave and he had not done so;
b.The complainant had charged him;
c.The complainant had asked him to fight on 2 occasions;
d.The complainant was in his face;
e.The complainant was bigger and stronger than him.
I have already made some observations about the relative size of the complainant and the defendant.
The complainant concedes that he did not leave the house when told. The defendant’s case is one of self-defence and not that he was entitled to use force to remove a trespasser. That does not mean that the complainant’s refusal to leave is irrelevant. It clearly is relevant to the assessment of whether the defendant had reasonable grounds for the belief he says he had. The other important relevant evidence is of course the length and history of relationship between the complainant and the defendant — to which I will return later.
I have already made reference to the evidence of the complainant having charged the defendant and asked him to fight. For the reasons given I find that the reference to the word “fight” was made in the context of the somewhat rhetorical question which the complainant said he asked. I find that the complainant did turn and quickly move towards the defendant with his arms extended and did grab the defendant by the shoulders and shake him. In the course of his evidence, the complainant also conceded that he had been in the defendant’s face.
I have reminded myself that what is to be considered is not what the complainant actually intended by his actions but rather whether his actions and the circumstances generally amount to reasonable grounds for the defendant to have formed the view that it was necessary in self-defence to do what he did. In expressing the question in that way, I have not lost sight of the onus of proof. The question is properly expressed as being whether the prosecution has proved beyond reasonable doubt that the defendant did not have reasonable grounds for his belief that it was necessary in self-defence to do what he did.
There is other evidence which is important to the question of whether there were reasonable grounds for the defendant’s belief. The defendant in his recorded interview at question and answer 68 refers to “get(ting) the better” of the complainant before forcing him up into a corner, and in his words “looking for a shot” before delivering what he said were the first punches. He confirmed that sequence of events and thought process when giving his oral evidence. He concedes hearing the complainant asking him to stop after delivery of the first punch.
The reference to the defendant “getting the better” of the complainant before punching him must be viewed against the background of the relatively low level of initial physical contact made by the complainant. This is not a case where there was a violent initial onslaught. No blow was struck or attempted by the complainant.
All of the evidence, including that to which I have just referred, must also be considered against the background of the relationship between the complainant and the defendant, and my finding as to the actual conduct of the defendant — that is, that he struck the complainant to the head and face as hard as he could by way of more than 3 and probably about 6 punches.
The background to which I refer includes the evidence given by the defendant of his frustration with the progress of the kitchen project. He referred in his recorded interview to the "build-up" for months and months. In the context in which that was said, I infer him to mean a build-up of frustration on his part. He was also agitated and angry with the complainant on 8 December for a range of reasons including the complainant’s abuse and refusal to leave when told to do so. The tenor of some of the answers given by the defendant both in his recorded interview and in the course of his testimony in court suggests an element of loss of self-control on his part — he refers to all “rationale” being gone and the like. Of course such a loss of self-control, if indeed that is what the defendant was intending by his testimony, is not necessarily inconsistent either with a belief that it was necessary to act in self-defence or the existence of reasonable grounds for such a belief.
The defendant was not confronting a stranger who had come at him in his home after refusing to leave when told to do so. The complainant and the defendant had a close personal relationship. They were neighbours who had worked together and knew each other well. They had had arguments before which had never turned violent. There was verbal abuse — but it was by way of name-calling and was not of itself threatening. Whilst it was the complainant who made the first physical contact, that contact was a low-level of contact by way of grabbing the defendant’s shoulders and shaking and was not accompanied by any attempt to strike. The question asked about fighting has to be viewed in the context of the other findings I have made. Whilst some physical response by the defendant may have been entirely legitimate, what the defendant actually did — by way of what he described as “chinning” the complainant; getting the better of him and then punching him as I have found he did — was an extreme response.
I have directed myself in accordance with the decision in Palmer and The Queen [1971] AC 814; to the following effect:
If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.
Even making a generous allowance for the application of that principle, and accepting that events happened quickly, what the defendant says was his defensive action in this case was, as I have said, extreme. Against the background of the defendant’s relationship with the complainant, and in all of the circumstances in which the encounter took place, I am satisfied beyond reasonable doubt that there were no reasonable grounds for the defendant to believe that it was necessary to do what he did in self-defence.
There is a further point to be made about one aspect of the evidence. Some emphasis was placed by senior counsel for the defendant on the evidence about what was said between the complainant and the defendant outside the house before police arrived. Whilst there is some difference as to the exact words which were spoken, it is common ground that the defendant said to the complainant words to the effect that he was to tell the truth to police when they arrived. The defendant points to what is his own statement at the time as supporting his evidence that he believed that he was acting lawfully. But the evidence of what took place in the lead up to the altercation clearly demonstrates some significant provocation on the part of the complainant. As the defendant says, the complainant had been abusive, he had refused to leave when told to do so, and he had made the first physical contact. Against that background, the words spoken by the defendant may equally have been a reference to what he regarded as the provocation by the complainant.
It follows from the conclusion I have reached that I find the defendant guilty of the charge of having assaulted the complainant on 8 December 2011 and thereby occasioned to him actual bodily harm.
I certify that the preceding eighty (80) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 4 July 2013
Counsel for the Prosecution: Ms M Hunter
Office of the Prosecution: ACT Director of Public Prosecutions
Counsel for the Defendant: Mr F Purnell SC
Solicitor for the Defendant: Porters Lawyers
Date of hearing: 1 March 2013 and 7 June 2013
Date of decision: 4 July 2013
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