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District Court 10 June 2015

Brett Richardson v Regina

[2015] NSWDC 246

Assault & violence
CRIMINAL LAW ASSAULT GRIEVOUS BODILY HARM WRECKLESS AFFRAY FINDING OF GUILT SELF DEFENCE

Citation: Brett Richardson v Regina [2015] NSWDC 246
Court: District Court of New South Wales
Date: 10 June 2015
Judge(s): Judge AC Scotting

Background

The appellant was a patron at a licensed venue in Cronulla who became involved in a violent altercation after the licensee, a friend of his, asked him to "watch his back" while ejecting an agitated patron. The ejected patron broke free from security staff and began throwing punches at those nearby. During the melee, a woman named the victim approached the ejected patron, apparently attempting to calm him. The appellant struck her in the face with his right hand after she pulled his shirt, causing her to fall to the ground and suffer a broken jaw. The defence conceded the injuries amounted to grievous bodily harm.

The appellant was originally convicted in the Sutherland Local Court of one count of affray and one count of recklessly causing grievous bodily harm. He was ordered to perform 450 hours of community service, pay compensation of $5,013.90 to the victim, and enter into a 12-month good behaviour bond. He appealed to the District Court against both convictions.

The central defence raised at trial and on appeal was self-defence, including self-defence of another. CCTV footage captured from across the road was a critical piece of objective evidence that both the magistrate and the District Court assessed closely.

  • Whether the appellant's conduct in striking the victim constituted a genuine belief that action was necessary in self-defence or defence of another, and whether his response was proportionate in the circumstances as he perceived them.
  • Whether the appellant's subsequent conduct (punching and kneeing the ejected patron while security staff were restraining him) remained within the scope of self-defence or defence of another.
  • Whether the magistrate's findings of fact and guilt were supported by the evidence, including the CCTV footage.
  • The proper approach to a District Court appeal from the Local Court, including the weight to be given to the magistrate's assessment of witnesses.

Decision

The District Court conducted an independent review of all evidence, including the CCTV footage, consistent with its obligation on appeal to form its own view of the facts while recognising the advantage the magistrate had in observing witnesses directly. The applicable self-defence framework under section 418 of the Crimes Act 1900 requires, first, a subjective assessment of whether the accused genuinely believed the conduct was necessary to defend himself or another, and second, an objective assessment of whether what he did was a reasonable response to the circumstances as he subjectively perceived them.

On the strike against the victim, the District Court agreed with the magistrate that the appellant could not have perceived her as a threat in any real sense. The CCTV footage showed she was not in an aggressive posture toward him at the relevant moment. His claim that he did not see or hear her before she pulled his shirt was inconsistent with the footage, which showed her in close proximity to him on multiple occasions throughout the incident.

In relation to the subsequent assault on the ejected patron, the District Court accepted the magistrate's characterisation that the appellant "went from a protector to an aggressor." By the time the appellant was punching and kneeing the ejected patron, security staff and the licensee had hold of him and his t-shirt was pulled over his face. The appellant's own account of events was directly contradicted by what the footage showed, and he refused to accept what the footage plainly depicted, including being pulled away by other security guards.

The District Court was satisfied beyond reasonable doubt that neither charge was answered by self-defence. The appeal was dismissed and the convictions upheld.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under section 418 of the Crimes Act 1900, the self-defence test involves two distinct steps: a subjective inquiry into whether the accused genuinely believed the conduct was necessary, and an objective inquiry into whether that conduct was a reasonable response to the circumstances as the accused perceived them.
  • Self-induced intoxication is relevant only to the first (subjective belief) limb of the self-defence test, not to the second (objective proportionality) limb, as confirmed in R v Katarzynski [2002] NSWCCA 613.
  • A District Court hearing an appeal from the Local Court under the Crimes (Appeal and Review) Act 2001 must form its own independent view of the facts on the certified transcripts and exhibits, while giving appropriate weight to the magistrate's assessment of witnesses.
  • Where an accused's oral evidence is directly and plainly contradicted by contemporaneous CCTV footage, the court may give the footage decisive weight as objective evidence.
  • In dismissing the appeal, the District Court confirmed that self-defence loses its character as a justification once the threat has substantially diminished and the accused's conduct becomes disproportionate to any remaining perceived danger.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2), 93C(1), 418
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases
- R v Viro (1978) 141 CLR 88
- R v Conlon (1993) 69 A Crim R 92
- R v Katarzynski [2002] NSWCCA 613
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244