Citation: Alan Leslie Cotterill v R; Alan Peter Cotterill v R [2015] NSWDC 291
Court: District Court of NSW
Date: 3 December 2015
Judge(s): Mahony SC DCJ
Background
On the evening of Melbourne Cup Day 2013, the first appellant was violently assaulted at a golf club on the Central Coast of NSW. After being escorted from the premises, he and a group that included his son (the second appellant) and three other men returned to the club approximately 45 minutes later.
On their return, a serious brawl broke out in the lounge area between this group and the group responsible for the earlier attack. The fight escalated and moved through the club into the car park, involving significant violence on both sides.
Both appellants were convicted in the Local Court of affray under section 93C(1) of the Crimes Act 1900 and appealed to the District Court. They challenged the factual findings of the Magistrate, including findings about their purpose in returning to the club and the availability of the self-defence claim. Fresh CCTV evidence, reformatted for clarity, was admitted on the appeal.
Legal Issues
- Whether the elements of affray under section 93C(1) of the Crimes Act 1900 were established beyond reasonable doubt
- Whether the appellants possessed the requisite mens rea (intention or awareness of violence) required by section 93D(2) of the Crimes Act
- Whether the Crown had negatived the defence of self-defence under sections 418 and 419 of the Crimes Act
Decision
Issue 1: Elements of affray and mens rea
The court found that the elements of affray were established beyond reasonable doubt, based primarily on the CCTV evidence of the Cotterill group's conduct as they re-entered the club (at [54]). The first appellant was observed raising his left arm to identify the Montgomery group to his companions, and the group then immediately engaged with that group in the lounge area (at [54]). The court rejected the first appellant's suggestion that the arm gesture was an innocent reference to where his keys had been lost (at [49]).
The court found that both appellants had the requisite intention under section 93D(2), satisfied by their manner of entry and immediate engagement with the opposing group (at [54]). The appellants' explanation that they returned solely to recover lost keys was found implausible and rejected, the court being satisfied beyond reasonable doubt that the purpose of the return was revenge (at [51]).
Issue 2: Self-defence
The court found that the Crown had negatived self-defence in respect of both appellants (at [62]-[63]). From the moment the Cotterill group entered the lounge and the first appellant gestured toward the Montgomery group, there was no reasonable possibility that either appellant believed his conduct was necessary for his own defence (at [62]).
The court further found that the appellants' conduct in entering the club and initiating the conflict established they wanted to fight (at [63]). While the court acknowledged that a desire to fight does not automatically exclude self-defence, it concluded that the appellants were the initial aggressors and that their subsequent actions, including punching and using an umbrella during the retreat phase, did not alter that conclusion (at [63]). The second appellant's evidence that he was merely deflecting a thrown chair before taking any aggressive action was found to be false (at [48]).
Orders Made
- Both appeals dismissed
- The Magistrate's orders convicting each appellant of affray confirmed
Key Takeaways
- In dismissing both appeals, the District Court confirmed that a person who returns to a location with a view to extracting revenge and initiates a violent confrontation cannot rely on self-defence simply because the opposing group ultimately inflicted greater harm (at [62]-[63]).
- A conviction for affray under section 93C(1) of the Crimes Act 1900 requires the Crown to prove beyond reasonable doubt the use or threatened use of unlawful violence, conduct capable of causing a person of reasonable firmness to fear for their safety, and the mental element under section 93D(2), being an intention to use or threaten violence or an awareness that conduct may be violent (at [52]-[53]).
- Where self-defence is raised, section 419 of the Crimes Act places the onus on the Crown to negative it beyond reasonable doubt; however, that onus can be discharged by establishing that the accused was the initial aggressor and had no reasonable belief that their conduct was necessary for their own defence (at [58], [62]-[63]).
- CCTV evidence, where sufficiently clear, can independently support findings about purpose and intent even in the absence of evidence of what was said by the parties (at [50], [54]).
- No error was established in the Magistrate's factual findings, notwithstanding that the appellants tendered improved CCTV footage on appeal; the reformatted footage was examined but ultimately confirmed rather than undermined the conclusions drawn from the original evidence (at [48]-[51]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Colosimo and Others v Director of Public Prosecutions [2006] NSWCA 293
- R v Katarzynski [2002] NSWSC 613