Citation: Police v Ryan [2023] NSWLC 4
Court: NSW Local Court
Date: 28 March 2023
Judge: Clisdell LCM
Background
The accused was the coach of a women's rugby team and the complainant was a club supporter. The two had travelled together to a rugby match and returned to a hotel in Jindabyne, where, later that evening, a dispute escalated into a physical altercation. Both parties struck each other while holding glasses.
The entire incident was captured on CCTV. The complainant struck the accused on the right side of his face with a glass, causing minor abrasions. The accused then struck the complainant with a glass, causing a significant laceration to the left side of her neck, a minor ear abrasion, and a head injury when she fell. The complainant had already pleaded guilty to assault occasioning actual bodily harm arising from her own strike.
The accused faced three charges in the alternative: reckless wounding under s 35(4) of the Crimes Act 1900 (NSW), assault occasioning actual bodily harm under s 59(1), and affray under s 93C(1). The defence relied on self-defence under ss 418 and 419 of the Crimes Act and also contested whether the complainant's injuries met the legal definition of a "wound."
Legal Issues
- Whether the laceration to the complainant's neck amounted to a "wound" for the purposes of the reckless wounding charge (requiring a breach of both the epidermis and dermis of the skin)
- Whether the accused was acting in self-defence under s 418 of the Crimes Act, either by reasonably believing his conduct was necessary to defend himself, or because his response was a reasonable and proportionate one in the circumstances
- Whether the prosecution had discharged its burden under s 419 of disproving self-defence beyond reasonable doubt
Decision
Reckless wounding dismissed. The magistrate dismissed the principal charge. A wound requires a breaking of both the epidermis and the dermis. The medical report described the laceration as "1 deep to dermis," but the magistrate agreed with defence submissions that this phrasing left genuine doubt as to whether the dermis itself was broken. Had the report used the word "into" rather than "to" the dermis, the magistrate would have been satisfied the definition was met. Because the prosecution could not establish a wound beyond reasonable doubt, the charge was dismissed.
Self-defence rejected. The magistrate found the accused to be an unreliable witness. His account in the ERISP and in court, describing a restrained and defensive response, was directly contradicted by the CCTV footage. The footage showed him holding a glass in his right hand when he struck the complainant, punching her with his left hand, wrestling with her on the ground, and needing to be forcibly restrained by bystanders. His claimed fear was not supported by his demeanour.
The magistrate was satisfied the accused was not acting in self-defence and intended to inflict harm. Separately, the magistrate held that even if that primary finding were wrong, "glassing" someone can never constitute a proportionate response in any perceived circumstances. Striking a person while holding a glass is both dangerous and reckless. On both limbs of s 418 (necessity of conduct and reasonableness of response), the prosecution discharged its burden under s 419.
Assault occasioning actual bodily harm proved. The magistrate found the alternative charge established. There was no dispute that the complainant sustained actual bodily harm, and self-defence having failed, the offence was made out.
Orders Made
Following verdict, the magistrate imposed a Community Release Order (CRO) without conviction for 16 months. The magistrate noted the parity principle: the complainant had received a CRO without conviction for 12 months for the same offence. Although the accused had not acted as the instigator of the violence, he had pleaded not guilty and was therefore not entitled to a full sentencing discount. A 16-month CRO without conviction was imposed to reflect the relative culpability of the two offenders.
Key Takeaways
- For an injury to constitute a "wound" under the Crimes Act 1900 (NSW), both layers of skin (epidermis and dermis) must be broken; ambiguous medical language describing a laceration as "deep to dermis" was insufficient to establish this element beyond reasonable doubt.
- A self-defence claim under s 418 of the Crimes Act fails if the prosecution establishes beyond reasonable doubt either that the defendant did not genuinely believe their conduct was necessary, or that the conduct was not a reasonable and proportionate response to the perceived threat.
- Glassing a person, the court held, can never constitute a proportionate response regardless of what the defendant may have perceived the situation to be.
- CCTV evidence played a decisive role: where footage directly contradicts a defendant's account of their own demeanour and actions, the court will prefer the objective recording over oral evidence.
- The parity principle applied at sentencing: because the complainant and the accused were convicted of the same offence and both had effectively clear records, the sentences were calibrated to reflect their respective roles, with the accused receiving a marginally longer CRO without conviction given the absence of a guilty plea.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(1), 93C(1), 418(1), 418(2), 419
Cases:
- Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191
- R v Katarzynski [2002] NSWSC 613
- Colosimo and Ors v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; [2005] NSWSC 854
- Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Douglas v R [2005] NSWCCA 419