Zirilli v Police No. Scciv-04-255

ZIRILLI v POLICE
[2004] SASC 121
Magistrates Appeal

DUGGAN J. The appellant has appealed against findings of guilt in relation to two offences of assault occasioning actual bodily harm. The findings were made after a trial at the Port Adelaide Magistrates Court.
The charges were laid against the appellant following an incident which took place on the evening of 18 January 2002. During the evening, two groups of youths were present in a car park near an inlet at West Lakes.
The victims, John Rogers and Nathan Page were in one group. They had driven there with a friend Victoria Lambert. Two other friends, Paul Maguire and Catherine Verner were also in their group.
Subsequently, the appellant and a friend, Arthur Giakoumis, arrived at the car park. The appellant gave evidence before the magistrate. He said that he had returned home earlier in the evening and noticed that someone had written graffiti on the front fence of his house. He and Giakoumis decided to drive around the area to see whether they could find any youths who might have been responsible. Before getting back into Giakoumis’ car the appellant picked up an object which his father uses to lift a drain cover at their home. He said it was shaped like a hammer and had a metal head welded to the handle. It was referred to throughout the evidence as a hammer. He said he took it in case they were attacked by any youths he might see around the area.
In due course, the defendant and Giakoumis arrived at the car park. The appellant said he saw the other group of youths and reached the conclusion that they were not responsible for the graffiti. However, there was some talk about the graffiti with the other group and the members of that group said that they had not been involved. The appellant said at this stage the conversation was friendly. They then found out that some members of the respective groups had attended the same school.
The appellant and Giakoumis then left, but returned approximately 30 minutes later. The two groups began conversing again. It was then that Victoria Lambert and Giakoumis recognised each other. At this time she was having a relationship with Page, but it transpired that she had been involved in a previous relationship with Giakoumis.
Page had been drinking and those present could see that he had been affected by alcohol. He began urging Giakoumis to “do a burn out” in the car which Giakoumis was driving and eventually began telling him to “fuck off”.
The versions as to the intensity of this confrontation differ. Page said in evidence that he was laughing and joking while he was telling the appellant to leave. The appellant got the impression that Page was jealous about Lambert knowing Giakoumis. Victoria Lambert said that she thought a fight was about to ensue. The appellant said that Page was face to face with Giakoumis and was shouting at him. He said he thought a fight was going to occur. He viewed Page as the aggressor.
It is not in dispute that at this point the appellant intervened and punched Page with sufficient force to knock him to the ground.
The appellant then went to Giakoumis’s vehicle and picked up the hammer. He said that at this stage two youths from the other group were coming towards him. He said he felt threatened and scared. After Page was punched, a member of his group punched Giakoumis in the face breaking his nose. Giakoumis then armed himself with a club-lock which he obtained from his car.
By this time, Page was sitting in a car belonging to one of his group telephoning the police on a mobile telephone which belonged to Rogers. The appellant said in evidence that he thought Page was ringing other youths to come and assist him and so he went over to the car, leant through the window and began swinging the hammer inside the car. He said that he was doing this to hit the mobile telephone out of Page’s hands.
According to the prosecution case, Page’s jaw was broken during this part of the incident. Page said that the appellant struck him with the hammer, although he said he had little recollection of this part of the incident. Lambert said that the appellant was trying to hit Page with the hammer and she saw at least one blow strike Page in the head. Maguire said that he saw the appellant strike Page as he leant into the car. He said he could not see where the blows were landing, but that he saw Page’s head go back after the second blow.
The magistrate made the following findings:
“As the defendant was getting the weapon, Nathan Page was in the passenger seat of the next car south. The area where Page was siting was illuminated by the mobile telephone he was trying to dial. The defendant described this as ‘calling backup, calling a gang to come and beat us up because I’d just hit him’ (page 272). The defendant leant into the vehicle from the driver’s side and swung the metal object he had just collected, not once but several times, hitting both Nathan Page and the telephone.”
The magistrate went on to find that Page’s jaw was broken as a direct result of this incident. These circumstances formed the basis of the charge of assaulting Page occasioning him actual bodily harm.
The incident relied upon by the prosecution to establish the assault on Rogers occurred immediately afterwards. It is not in dispute that the mobile telephone fell to the ground and under a nearby vehicle as a result of the appellant’s actions. He said in evidence that he wanted to take the telephone so that it could not be used to contact anyone else. He said he was leaning over to pick up the telephone when he felt a hard thrust into his back. He said he was knocked onto his stomach. He said he then used the hammer in a flicking action over his shoulder to get the person away from his back. He said he did this because he believed he would have been hit.
Rogers said that he saw the telephone and tried to get it. He had purchased it that day for several hundred dollars. He said the appellant had the telephone in his hand and the witness was trying to pull it away. He said he was struck on a number of occasions and he felt the blow to his jaw. On later examination his jaw was found to be broken. He said the appellant was to his left as they were on the ground and he denied jumping onto the appellant’s back.
The magistrate made the following findings with respect to this part of the incident:
“Reduced to the barest of essentials, there are then two versions of what happened. John Rogers and Catherine Verner say that both Rogers and the defendant dived under the Rogers car, both vying for the telephone, the defendant still holding the metal object, and the defendant began swinging the metal object, striking Rogers in the face as he did so. The defendant says Rogers jumped on his back pinning him stomach to ground and that he swung the object trying to get the person on his back off his back.
Having seen and heard all of the witnesses I have no hesitation in accepting the version of events given by Rogers and Verner. The defendant’s version is simply one more of his numerous grandiose efforts to rearrange history around himself and his perception that any threat to him was an assault upon himself whereas any blow he inflicted was a blow struck in self-defence.
The injuries Rogers suffered are consistent with his version of what happened, whereas the defendant’s version is inherently improbable. It is very unlikely that blows, struck blindly backwards by a man pinned to the ground, could have caused the injuries that Rogers sustained, that hospitalised him for a fortnight. The defendant was in a tight position when he swung the object at Rogers, but not because Rogers was pinning him down. The position was tight because he was beneath a car at the time when, he struck Rogers with a weapon, breaking his jaw so badly it had to be wired back together again.”
In reaching her findings the magistrate assessed the witnesses. She found Victoria Lambert to be a detached and impartial witness. She said Paul Maguire gave evidence that was at variance with his statement to the police, but was corroborated by the evidence of Lambert. She said Nathan Page went to considerable lengths to downplay the influence of his words and actions on the events that took place. The magistrate said she accepted the evidence of Rogers and Catherine Verner without hesitation. The evidence of the appellant was found to be inherently improbable. The magistrate said that Giakoumis appeared to be doing his best to be an honest witness, but there were significant gaps in his evidence.
There is no real dispute that the appellant inflicted the injuries on Page and Rogers. It was argued by the appellant that Page’s broken jaw could have been caused by the appellant’s blow with his fist as opposed to being caused during the later incident when the hammer was used.
Mr Richards, for the appellant, argued that the appellant was justified in punching Page in the early stages of the incident because he believed Page was a threat, particularly to Giakoumis. He said that after the appellant knocked Page to the ground, he went to his car and picked up the hammer. Mr Richards said that it would have been difficult for the appellant and Giakoumis to drive away in the car at this stage as the car might have been damaged by the other group and some of the members of the other group were coming towards the appellant.
Mr Richards then referred to the appellant’s evidence that when he went to where Page was sitting in the car he thought Page was ringing for assistance and the appellant wanted to do no more than strike at the telephone in an attempt to prevent Page from using it. Mr Richards highlighted the appellant’s evidence to the effect that he was not trying to hit Page. Mr Richards submitted that it was also reasonable to view the appellant’s actions under the car after the telephone had been dropped as part of his attempts to get possession of the telephone in order to prevent any of the other group from summoning help. Mr Richards submitted that Rogers was hit as the appellant attempted to get him off his back.
The incident which involved Page being punched by the appellant is important by way of background to what followed, although it has not been singled out as the basis of an offence by the appellant. The magistrate concluded that it was possible the appellant genuinely believed that Page was a threat to himself and Giakoumis, although she considered that it was not reasonably possible that the appellant believed that if he and Giakoumis tried to leave they would have been subjected to violence. The fact remains that the appellant delivered a forceful blow to Page which knocked him to the ground. There was no suggestion by the appellant that Page himself posed a threat after that occurred.
The appellant said he was concerned about retribution by Page’s group, but he appears to have been unimpeded in retrieving the hammer and advancing to the car in which Page was sitting.
In my view the evidence establishes beyond reasonable doubt that, in the circumstances as the defendant genuinely believed them to be, it could not be said that an attack on Page as he sat in the car was reasonably proportionate to any threat that the defendant genuinely believed to exist. In any event, it was not the appellant’s claim that an attack on Page as he sat in the car was necessary and reasonable for a defensive purpose. He claimed that his focus was on the telephone. He said that he swung the hammer at the telephone “in a desperate attempt to hit it, knock it from his hands”.
Apart from the inherent unlikelihood of using these means as a method of getting the telephone away from Page, the appellant’s version was contradicted by other evidence. Little reliance could be placed on Page’s own evidence as to this part of the incident. He said that the appellant came to the window and struck him blows to the face with a hammer. However in his statement to the police he said he had no recollection of this part of the incident.
However, Victoria Lambert, whose evidence was accepted by the magistrate, said that she saw the appellant swinging the hammer at Page and that one of the blows hit Page on the forehead just near the eyebrow. She saw blood on his face when he got out of the car. Maguire also gave evidence that he saw the appellant strike Page with the hammer and he saw Page’s head go back.
In my view it was open to the magistrate to accept this evidence and to find that Page was struck by the appellant with the hammer; that the blow was intended; and that the appellant was not acting in self-defence at the time.
However, Mr Richards raised the question as to whether Page’s jaw was broken as a result of a blow from the hammer. Page said in evidence that he could not say whether or not the earlier punch he received was the cause of his broken jaw.
Lambert was asked about the incident in examination-in-chief:
“QYou said that he was swinging the hammer inside of the car. Are you able to recall how many times he swung the hammer?
AI think it was twice.
QDid the hammer make contact with anything inside the car?
AI think it hit Nathan then.
QWhy do you say that?
ABecause he had a cracked jaw and that’s the only time I saw when he was swung at the hammer by.
QDid Nathan stay in the car?
ANo, he got out.
QDid you notice anything about him when he got out?
AThat he had blood on him.
QOn him – which part of him?
AI think it was his forehead and (INDICATES).
QYou’ve indicated to the right top area of your head to the court -
AYes.
QAre you saying that’s where you saw the blood coming from?
AYes, like from just above his eyebrow sort of thing.”
She was asked about this evidence in cross-examination:
“QDid you see the blow strike Nathan?
AYes.
. . .
QAnd where did the first blow land?
AThe first one?
QForehead, the right forehead?
AYes.
QAnd where did the second one?
AHit his jaw?
QThat one hit his jaw on the right side?
AMight have been his left side.
QDid you see it land?
ANot the second one, no.
QWhy do you say then it hit the jaw?
ABecause he had a fractured jaw.
QIs it possible the jaw might have been fractured for instance on whatever happened that knocked him to the ground earlier?
AMaybe.
QSo would it be – isn’t it the case that you would say you’ve got no idea where the second blow landed?
AYes.
QWhy did you cite jaw then?
APardon?
QWhy did you say ‘Jaw’ when I first asked?
ABecause a hammer does a lot more than a punch.
QHow many times was Nathan hit – just the twice?
AYes.
QAnd you actually remember him being hit twice?
AYes.
QEven though you now can’t say where the second blow landed?
AI thought it hit his jaw but –.”
In my view there is a reasonable possibility that the jaw was fractured by the punch on the earlier occasion or, put another way, it was not proved beyond reasonable doubt that the jaw was fractured by the use of a hammer. The earlier punch was a hard blow to the face which knocked Page to the ground. The medical evidence does not assist on this issue. It appears that the evidence of Lambert on the point was speculative.
However, if the evidence of the prosecution is accepted, as I think it should be in this respect, there appears to be no doubt that the injury above the eye was caused as a result of the attack with the hammer. This is sufficient to establish that the assault on Page with the hammer occasioned actual bodily harm.
As for the incident involving Rogers, the evidence establishes that both the appellant and Rogers were on the ground struggling for possession of the telephone. Even if, contrary to the prosecution evidence, Rogers was pressing down on the appellant’s back, the circumstances did not give rise to any justification for the appellant striking Rogers with the hammer with such force as to break his jaw. The magistrate was justified in rejecting the appellant’s version that the injury was the result of blows over the appellant’s shoulder which the appellant described as “a flick to whatever was on the back of me to just get it off to free myself”. Again, there was ample evidence to support the finding that there was at least one deliberate blow which was not delivered in self-defence and which broke Rogers’ jaw.
In my view the finding by the magistrate that the charges were proved was correct. The appeal will be dismissed.

[2004] SASC 121

6 May 2004