STRATIS v POLICE No. SCGRG-98-907 Judgment No. S6886

[1998] SASC 6886

STRATIS v  POLICE

[1998] SASC 6886

Magistrates Appeals

Wicks J

1 This is an appeal against a conviction of the appellant by a magistrate of one count of assault occasioning actual bodily harm.  The alleged assault took place at premises known as the Planet Nightclub.  The appellant was at the nightclub celebrating his brother’s birthday with a group of friends.
2 Mr Christo Dimoglides had also been celebrating that evening with a number of male friends and had arranged to meet his girlfriend at the Planet at about 2.30 - 3.00 am.  He met up with his girlfriend at the nightclub as arranged earlier and they went downstairs together to the bar and dance floor area and stood off to one side between the dance floor and the bar.  Mr Dimoglides’ girlfriend’s sister and cousins were also present.
3 The area of the nightclub in question was dark, noisy and very crowded.  It was difficult to walk through the crowd without bumping into or rubbing shoulders with other people. 
4 Mr Dimoglides gave evidence that he had been at the Planet Nightclub for approximately half an hour when an old friend, Adam Retsas, walked past.  Mr Dimoglides reached out and grasped his friend giving him a bear hug intending to surprise him.  As they playfully wrestled with each other, they twice bumped into another person who was standing behind and to the left of Mr Retsas.  As they were greeting one another Mr Retsas felt a push from behind.  Mr Dimoglides became aware of a tall, dark figure standing behind Mr Retsas.  Mr Dimoglides said "What’s going on, what’s your problem?".  Mr Dimoglides said that he was then struck in the chest and fell backwards to the floor.  He got up immediately and was then struck again with what he described as a "clenched fist".  The blow was to the right side of the head and face.  He said that he then collapsed to the floor.  He then became disorientated and felt dizzy and also felt extreme pain.  He got up again and was struck this time on the left hand side of the face causing him to stagger and fall again to the floor.  He was then dragged away to the toilet by his friends.  While being carried he was struck again on the right side of the face. 
5 The staff of the nightclub intervened at that point and arranged for Mr Dimoglides to be taken to The Royal Adelaide Hospital for treatment. He said that he could not identify his assailant beyond giving a very general description of him as a tall dark person with collar length hair. 
6 Mr Dimoglides had been drinking that evening.  One of the witnesses, Miss Sophie Traiforos, described him as having had a big night.  In answer to a question put to her on the topic, she described him as "quite merry".
7 At the trial Mr Retsas gave evidence that he was present at the Planet Nightclub in the early hours of Sunday 21 January.  At about 3 am he met Mr Dimoglides in the vicinity of the bar and dance floor in the basement area of the nightclub.  He described the area in question as being dark.  He did not remember the actual greeting of Mr Dimoglides but did remember him saying to someone in the crowd "What’s your problem?".  The next thing he remembered was that Mr Dimoglides was on the floor.  He picked him up, got him to his feet and walked him towards the toilet.  While assisting, Mr Retsas saw Mr Dimoglides’ head snap back as though hit or punched.  He did not see the assailant. 
8 At the time of the incidents in question Mr Retsas described himself as "not drunk, but I certainly wasn’t sober".  Also he admitted that it was hard to see exactly what was going on because of the large number of people about and because of the darkness of the area in question.
9 The next witness was Mr Dimoglides’ girlfriend, Miss Katina Traiforos.  It was Miss Traiforos’ evidence that shortly after Mr Dimoglides’ arrival in the nightclub, Mr Retsas met him with a bear hug like gesture.  The area in question was very crowded and as a result of the gesture, Mr Retsas bumped into a person who was part of another group nearby and who displayed some visible annoyance at the boisterous greeting on the part of Messrs Dimoglides and Retsas.  Miss Traiforos said that the person concerned was bumped again.  He turned around following which Mr Dimoglides said "Is there a problem?".  According to Miss Traiforos the person concerned kicked Mr Dimoglides in the stomach causing him to fall to the floor.  Miss Traiforos described the kick as a powerful straight leg kick.  She said that the crowd quickly gathered around so that she was no longer able to see what was happening. Her evidence was that at that stage a group of people were trying to hold the assailant back from making a further attack on Mr Dimoglides.  Miss Traiforos said that she stood in front of the assailant and said to him "Stop, haven’t you done enough?".  He replied by saying "Get out of my way before I hit you too".  She panicked and cried out for help.  She was very distressed by the whole incident.
10 After Mr Dimoglides fell to the floor, Miss Traiforos first saw him again when he was picked up and taken to the toilets.  Her evidence was that at that stage her sister, Miss Sophie Traiforos and one of her cousins were holding Mr Dimoglides although others may have been assisting as well. 
11 Miss Sophie Traiforos gave evidence that on the occasion in question there was a large group of people in the vicinity of Mr Dimoglides.  She saw him stumble but was not in a position to identify the cause due to the crowd between them.  She said that she saw Mr Dimoglides underneath a table crouching and holding his face.  Nearby there was a tall man who was being restrained by others present at the scene and who was heard by Miss Traiforos to say "Leave me alone" and something to the effect of "I’m going to kill him, leave me alone, I’m going to kill him".  Miss Katina Traiforos then stood in front of the assailant and asked him to leave Mr Dimoglides alone.  She said, "Haven’t you done enough damage", or words to the that effect.  The assailant said "Shut up before I hit you too".  Miss Sophie Traiforos assisted in getting Mr Dimoglides out from under the table and escorting him to the toilet.  At that stage he seemed to have lost a considerable amount of blood.
12 In cross-examination Miss Traiforos admitted that her recollection relating to the rescue of Mr Dimoglides from under the table and his walk to the toilet was somewhat blurred.  Also, she could not recall any involvement of Mr Retsas in that part of the incident. 
13 Mr M A McAdam gave evidence that he was a security supervisor on duty on the occasion in question.  He said that he was called to the scene following the revelation that there had been a fight near the men’s toilet.  A man in a white t-shirt was pointed out as being involved.  He was then escorted from the building by security officers.  At the same time, Mr McAdam attended Mr Dimoglides while in the toilet.  He was bleeding and crying. 
14 Mr Andrew Gikas, a security manager at the Planet Nightclub, gave evidence that he was called in respect of an incident on the night in question.  He went down to the basement area and discovered two security officers having an argument with three patrons who had been asked to leave the premises.  He noticed that one of the patrons involved was in an angry state.  He was wearing a white shirt and blood was all over the front of it.  Mr Gikas was asked whether the person dressed in the white shirt with the blood stains on it on the occasion in question was present in court.  He identified the defendant.  The court noted however that there were two men in court, one dressed in black with a white shirt and one dressed in a maroon t-shirt.
15 The appellant gave evidence.  He said that it was his brother’s birthday on 22 January 1996 and he had gone out on the night of 20 and 21 January to celebrate with his brother, Mr Evangelo Stratis.  He said that the dance floor was crowded but not overly so.  He was standing with a group of friends and felt himself being pushed.  He turned to observe two men wrestling with each other.  He said he got the attention of one of them and asked him if he minded.  One of the men responded by bringing his face up to that of the appellant, baring his teeth, clenching his fists and saying "Have you got a fucking problem?".  The appellant then said he placed his hand on his chest in an open manner and pushed him away from the appellant to create some distance.  He said that the push backwards was not exceptionally hard.  The man was still on his feet.  The appellant said that the man in question raised his arms in what he would describe as a kick-boxing type stance.  The appellant said he was shocked.  Someone rushed to the appellant’s side.  His brother stepped forward, intercepting the person who bounced off the appellant’s shoulder.  He said that at that point, his brother proceeded to strike the person concerned in the face with a clenched fist causing him to lose consciousness and drop as a dead weight to the ground. 
16 According to the appellant, a crowd had gathered.
17 It was put to the appellant that Mr Dimoglides had given evidence of being struck several times and was asked whether he saw anything of that occurring.  He said he did not but only saw Mr Dimoglides struck once. 
18 On the night in question, the appellant was wearing a white shirt.  He said that he helped Mr Dimoglides from the floor and the shirt that he was wearing became bloodstained as a result.  After Mr Dimoglides had been punched and had fallen to the floor, the appellant said that he was unconscious but was being supported by two men - one under each arm.  The appellant said that he moved forward and reached down to grab the victim’s waist in order to assist him to his feet.
19 The appellant’s brother, Mr Evangelo Stratis, gave evidence that he saw a person violently nudge against his brother and that his brother turned around and made some comments to him.  The other person approached his brother in an aggressive manner.  He observed the appellant place his hand on the other person’s chest and push him away. Shortly afterwards, he saw someone lying on the floor and saw his brother step forward to help him to his feet.  The appellant’s brother refused to answer any further questions on the ground that the answers might tend to incriminate him.
20 The next witness was Mr Nectarios Koutsuliotis.  Mr Koutsuliotis gave evidence that he was with the appellant and his brother Angelo at the Planet Nightclub on an evening in January 1996 on the occasion of Angelo’s birthday.  He described the nightclub as relatively dark inside with loud music playing.
21 Mr Koutsuliotis said that he observed the appellant talking to a stranger.  At that stage they were very close, literally face to face.  He observed the appellant push the stranger backward with one hand.  He was asked whether the stranger fell to the floor as a result of the push but replied that he did not as far as he could recall.  Mr Koutsuliotis’ evidence proceeded as follows:
"The other gentlemen came up with his hands up as if he was ready to retaliate because I looked back and then Paul looked shocked.  As I walked over there my eyes were focused at Paul.  By that time there was a bit of a group around, a few people around.  As I was looking at Paul, I saw this arm thrown out at the crowd and the arm was thrown out and then hit and then the arm fell down."

22 The witness denied that the arm was the appellant’s.  He was unable to say whether the hand at the end of the arm was clenched in view of the fact that the incident happened quickly.  It was put to the witness that the appellant could have punched the man instead of pushing him but he denied that there was any punch administered on the part of the appellant.  He said that he saw the appellant subsequently help the victim up from the floor.  There may have been two other persons assisting in lifting the victim from the floor.
23 The next witness called by the appellant was Mr Ross Barbaro.  He said that the appellant was involved in angry words with another person.  They were virtually nose to nose.  Mr Barbaro was unable to account for how the altercation began.  After the exchange of words the appellant put a hand on the chest of the other person and pushed him backwards.  Shortly afterwards Mr Barbero noticed the other person on the floor but said that he was unable to say how he got there.  Mr Barbero was unaware of any incident whereby the appellant assisted in picking the victim up from the floor.
24 The next witness for the appellant was Mr Theodorus Bexis who recalled being at the Planet Nightclub on the evening in question when an incident occurred following which the appellant and his friends left the nightclub. He was unable to assist in giving evidence of the assault of Mr Dimoglides or of the events which preceded the assault.
25 The next witness called on behalf of the appellant was Mr Dimitrios Apostolou.  He noticed the incident between the appellant and another person.  He recalls that other person shouting "Have you got a fucking problem?".  He said that at that stage, the person concerned was standing very close to the appellant and the words quoted above were uttered in an aggressive manner.  The appellant then pushed the person concerned back with an open hand applied to the chest.  His evidence of what occurred next is as follows:
"I stood generally looking in Paul’s direction.  Quite a few people were starting to congregate around that situation with the incident.  Basically out of the corner of my eye I could notice a quick punch or throwing of a fist out of the left-hand corner of my eye and then obviously saw the other gentlemen’s head sort of jolt a bit from this punch.  It was basically thrown out of the crowd.  It was very quick."

26 According to Mr Apostolou the punch referred to caused the person concerned to fall to the floor.
27 At the commencement of the hearing I gave leave to the appellant to file a Notice of Amended Grounds of Appeal and the appeal proceeded on the basis of the grounds set out in that document.
28 Paragraph 1 of the Amended Grounds of Appeal is as follows:
"1(a) The charge and conviction are each bad and/or should be quashed for duplicity and uncertainty.

(b)   The learned magistrate erred in refusing to order prosecution counsel to open on and elect as to which blow was relied on as constituting an assault occasioning actual bodily harm.’

29 In the course of argument, it was conceded by Mr Peek, counsel for the appellant, that there was no duplicity on the face of the information but that the question was really one of "latent duplicity". In Director of Public Prosecutions v Merriman [1973] AC 584 at 607, Lord Diplock said:
"The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constitutes one offence.  Where a number acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

30 Duplicity is a matter of form and not of evidence, although in some cases duplicity may be latent in that it is not apparent until evidence has been led, Taylor (1997) 93 A Crim R 1 at p10, per Underwood J and adverted to in the prosecutor’s opening. In Walsh v Tattersall (1996) 188 CLR 77, Gaudron and Gummow JJ said the question is "whether in a single count, the appellant was charged with more than one offence. This question has to be answered in a practical way or a single count may relate to facts which technically constitute a number of separate offences, but which are also closely related in some manner such as time or circumstance that in reality they constitute a single criminal transaction and there is no unfairness to the accused in charging him or her on a single count."
31 In my view the incident which occurred at the nightclub between the bar and the dance floor involving the pushing of Mr Dimoglides followed by one or more punches to the head should be treated as constituting a single act of assault.  It would be taking far too technical an approach to the subject to require the prosecution to analyse what occurred blow by blow and to treat each blow as a separate count.
32 On the other hand, I consider the blow to Mr Dimoglides’ head while he was being escorted to the toilet as sufficiently removed from the other act or acts of assault to be regarded as a separate incident and to be the subject of a separate count in the Information.
33 From the evidence led, the charge contained in the information is intended to cover the blow administered to Mr Dimoglides whilst on the way to the toilet.  On this matter, the learned Magistrate said:
"I am not satisfied beyond reasonable doubt that the defendant struck the victim to the right side of the face when the victim was being assisted to the toilet area."

34 I have no doubt that the learned Magistrate was correct in that finding in that there is simply no evidence of the identity of the assailant in respect of the assault occurring to Mr Dimoglides while he was being conducted to the toilet.
35 In Ex parte Graham, re Dowling (1968) 88 WN (Pt 1) (NSW) 270, Asprey JA said:
"There is abundant authority for the proposition that an accused person must have precise notice of what he is accused.  He must have full opportunity of being heard and such an opportunity is denied to him if he is left in doubt in regard to that for which he is accused."

36 At pp282-283 his Honour went on to say:
"If ex facie it is apparent that an Information is in respect of two or more offences the Magistrate should not proceed to hear the Information, but should request the prosecutor to elect on which charge he will proceed and upon his election should strike out the other charge.  If a prosecutor declines to elect, that Information is bad for duplicity and should be dismissed."

37 The solicitor for the appellant, Mr John Lister, filed an affidavit on this appeal.  He said (inter alia):
"                 The defendant attended at trial and pleaded not guilty.  The prosecutor then gave his opening address. 

I am not able to recall specifically the exact wording of the opening but a number of distinct and different blows were alleged to have been received by the alleged victim and actual bodily harm was alleged to have been suffered as a result of some or all of those blows. 

At the completion of the prosecution opening, I objected and submitted to the effect that the charge was now shown to be duplicitous in that more than one offence of assault was alleged, and I submitted that the Magistrate should call upon the prosecution to elect as to which of the alleged blows it relied upon.  Further, I submitted that the prosecution should particularise which blow or blows was or were alleged to have caused the actual bodily harm sustained by the alleged victim.

The Magistrate over-ruled my objection and declined to require these aspects of the matter to be particularised and the prosecutor likewise declined to further particularise the allegations."

38 In my view this is a case where the allegations relating to the assault near the bar and dance floor area of the nightclub on the one hand and the assault while on the way to the toilet on the other, should have been particularised so as to distinguish one from the other.  I am satisfied that this is an instance of "latent duplicity" and that on that account, the conviction cannot stand.
39 The grounds of appeal included a number of other matters which I have not dealt with in these reasons.  In view of the conclusion to which I have come in relation to the duplicity issues, there would appear to be no reason to discuss the other grounds further. 

40 In my view there is sufficient evidence in this matter to justify a new trial.  However, the matter has been a cloud over the head of the appellant for some considerable time.  The evidence in this matter is largely of events occurring in the dimly lit and crowded nightclub and, moreover, occurring at or about 3.00 am.  At the trial, there were many discrepancies in the evidence of witnesses brought about, in part, by the long delay which has occurred between the incident and the trial.  In the circumstances I do not think it appropriate to order a new trial.  I allow the appeal, quash the conviction and dismiss the charge.