Abukakr Khalidi v Craig Michael Palmer [2000] ACTSC 24 (13 March 2000)

Last Updated: 16 October 2000

ABUKAKR KHALIDI v CRAIG MICHAEL PALMER [2000] ACTSC 24 (13 March 2000)

CATCHWORDS

CRIMINAL APPEAL - from Magistrates Court - defendant convicted of assault occasioning actual bodily harm - whether Magistrate was in error in finding that the assault was intentional - circumstances considered - it could not be concluded with requisite certainty that blow was intentional - charge dismissed.

CRIMINAL APPEAL - from Magistrates Court - defendant convicted of common assault - whether Magistrate made an error in failing to find self defence - defendant claimed his attack was an act of pre-emptive self defence - no assertion by defendant that victim had acted aggressively immediately prior to attack - defendant simply feared an attack - no reasonable grounds for defendant to believe he would be attacked - conviction stands.

Evidence Act 1995 (Cth), s 45, 66, 108

Prince v Samo (1838) 7 Ad & E 627; 112 ER 606

Blewett v Tregonning (1835) 3 Ad & E 554; 111 ER 524

R v Kirkman [2000] ACTSC 2, 3 February 2000

R v Brotherton (1992) 29 NSWLR 95

Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Watt or Thomas v Thomas [1986] UKHL 1; [1947] AC 484

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588

Petty and Maiden v R [1991] HCA 34; (1991) 173 CLR 95

Browne v Dunn [1894] 6 R 67

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Pilmore v Anderson (Supreme Court of the Australian Capital Territory, Higgins J, 8 August 1995, unreported)

Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA of 46 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 13 March 2000

IN THE SUPREME COURT OF THE )

) No. SCA 46 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ABUKAKR KHALIDI

Appellant

AND: CRAIG MICHAEL PALMER

Respondent

ORDER

Judge: Higgins J

Date: 13 March 2000

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of the conviction on the first charge, the appeal is upheld.

2. In respect of the conviction on the second charge, the appeal is dismissed.

1. This is an appeal against a decision of Magistrate Doogan made on 18 June 1999 whereby her Worship convicted the appellant on one charge of assault occasioning actual bodily harm and another of common assault.

2. The appellant had been charged on three counts.

"1. That he ..., on the 21^st day of June 1998, did assault Lee Packwood and thereby then occasioned to him actual bodily harm.

2. That he ... on the 21^st day of June 1998, did assault Lee Packwood (an alternative to the first count).

3. That he ... on the 21^st day of June 1998, did assault Matthew Gerard Stewart.

The Prosecution case

3. The two persons named in the charges were security officers at Heaven Nite Club ("the Club").

4. Mr Packwood gave evidence that he was on duty from 11.00pm on 20 June 1998. At about 4.50am on 21 June 1998, the manager, Ms Sylvia Stern, brought "a gentleman" to the foyer. It was the appellant. She told Mr Packwood that the gentleman was leaving the Club. There had been some incident she referred to as him "pushing his girlfriend around".

5. The defendant then became verbally abusive towards Ms Stern, making indecent gestures. Mr Packwood formed the view that the defendant was "fairly intoxicated". He advised the defendant:

"Mate, just leave the Club quietly."

6. A woman, the defendant's girlfriend (later identified as Ms Stacey Strudwick), then came out from the interior of the Club to the foyer saying:

"He's had too much to drink. He'll leave, he'll leave."

7. The defendant then became abusive towards Ms Strudwick, grabbing her by the arms. They had by then commenced to descend the stairs from the foyer to the street entrance, being four or five stairs from the top.

8. Mr Packwood then grabbed the defendant from behind in some kind of headlock or armlock. The defendant protested - "let me go". Mr Packwood said "Listen, just calm down. Calm down. Don't push the woman."

9. At that point, the defendant, said Mr Packwood:

"...leaned forward and then slung his head back and it contacted my left eye."

10. That caused Mr Packwood considerable pain. The second security officer, Matthew Stewart, then came upon the scene. He had been somewhere in the foyer area.

11. He assisted by taking hold of the defendant. They both moved the defendant down a further five or six steps. Mr Packwood then pushed the defendant towards the outside door. Mr Stewart also released him. The defendant stumbled down to the bottom of the stairs and through the door.

12. Mr Stewart stationed himself at the outside door so that the defendant could not re-enter. Mr Packwood saw the defendant then aim some punches at Mr Stewart. The latter turned to come back inside. There had been no contact at that point. However, the defendant rushed back inside the premises and "took another swing". Both the security officers then wrestled the defendant to the floor on the stairs and restrained him.

13. Police had been called. They arrived shortly after this, taking the defendant into custody. Mr Packwood sustained a laceration as well as bruising in the area of his left eye. The injury would, clearly enough, have qualified as "actual bodily harm".

14. In cross-examination Mr Packwood disputed a suggestion put to him by Mr Everson, for the defendant, that the flinging back by the defendant of his head, striking him "could have been accidental". He responded:

"Not the way the head was flung forward and back".

15. He had not seen any sign of injury to the defendant.

16. Her Worship, despite objection, in re-examination, admitted evidence from Mr Packwood that the defendant's girlfriend had some days after the incident said to him:

"I apologise for my boyfriend and myself the other night."

17. The only previous reference to such an occurrence had been when, in cross-examination, Mr Packwood had been asked:

"How do you know that it was the girlfriend of the man you threw out of the club? --- I assumed that, they were talking and that's the only reason I know. I know now because I've been told it.

Who told you that? --- The girl herself when she came back to apologise."

18. It will be observed that the answer, insofar as it referred to an apology, was non-responsive. Mr Everson had not asked Mr Packwood why Ms Strudwick had been speaking to him.

19. Thus her Worship was in error in observing:

"...it came out in cross-examination. I mean, you are the one who brought it out by your question."

if that was intended to imply that it was a response to the question asked.

20. There is a difference between a responsive answer which may be explored in re-examination and a non-responsive answer which, if it could not have been elicited in chief, cannot be explored in re-examination. (Prince v Samo (1838) 7 Ad & E 627; 112 ER 606 (QB)). However, Mr Everson did not, at the time it was given, object to the non-responsive answer or ask that it be formally struck out. It could be that his later objection to re-examination on the matter could be construed as a request to her Worship to disregard the evidence (see Blewett v Tregonning (1835) 3 Ad & E 554; 111 ER 524).

21. There is no doubt that the prosecutor, Mr Hempenstall, could not, in examination-in-chief, have adduced from Mr Packwood that the defendant's girlfriend (Ms Strudwick) had apologized to him for the defendant's behaviour. The terms of the apology could not have been an admission made on behalf of the defendant. Insofar as it was her version of, or her conclusion drawn from, what she had seen, it was hearsay. It could be admitted only if s 66 of the Evidence Act 1995 (Cth) applied. It could not seriously be argued that it did.

22. The prosecutor could, of course, have used the apology if the credit of Ms Strudwick had become an issue and if the apology could have then been characterized as a prior inconsistent statement. That did not arise. It could not have arisen until Ms Strudwick gave evidence and was cross-examined.

23. The next witness was Mr Stewart. About 4.50am, he said, he was "alerted" by Ms Stern to ask "this gentleman" to leave. That was a reference to the defendant.

24. He said that the defendant made indecent gestures and used foul and abusive language towards Ms Stern. Mr Packwood walked up to the defendant to reinforce the request that he leave. Mr Packwood then began to escort the defendant from the premises by guiding him down the stairs. Mr Stewart remained between the defendant and Ms Stern to "make sure he can't sort of then come back at her".

25. Ms Strudwick then appeared and followed behind the defendant. The defendant, when partway down the stairs, refused to go any further. Mr Stewart asked Ms Strudwick to persuade the defendant to proceed outside:

"So then he [the defendant] becomes offended that she's involved - a bit more of a yelling match back and forward like he is yelling at the manager. So that I'm pleading with her to ask him to leave and then he lashes out at her."

26. At that point, he said, the defendant was about three quarters of the way down the stairs. In "lashing out", the defendant hit Ms Strudwick with his left fist across the chest.

"Hit her in the chest then Lee's [ie Mr Packwood] intervened, put his hand across and then I've sort of come forward as well and in that time the gentleman, swung his head back and I didn't see - I didn't see this at the time, swung his head back and cracked Lee across the left eye."

27. He explained that he did not see any actual contact, but he did see the defendant throw his head back. Then, he said;

"...we all toppled forward, right, just with the violence of the motion, say, we all toppled forward, fall onto - like fall forward, we all fall forward out onto the street. There's me, Lee comes forward, him and his girlfriend, we're all out in the street now, in the doorway to the street."

28. That account is somewhat at variance with that of Mr Packwood.

29. Mr Stewart said he then asked "the gentleman" to leave the area but the defendant threatened to "bash" him and threw some punches. Then one of the defendant's friends apparently persuaded him to leave. He commenced to do so. Mr Stewart then turned his attention back to Mr Packwood and noticed "his eye is split". He was "checking his eye out" when he heard Mr Packwood say "Look out". He then observed that the defendant was "leaping" at him. They grappled. The defendant was tackled and fell onto the stairs back inside the entrance.

30. There was a scuffle on the floor. Blows were exchanged and the defendant was subdued, although Mr Stewart said he himself did not punch the defendant.

31. Police then attended.

32. Mr Stewart also said that, about two months later, the defendant approached him and offered his hand saying "I'm sorry, I didn't mean to disrespect you." Mr Stewart took this as an apology.

33. Mr Stewart agreed that he could not say if the contact between the defendant's head and Mr Packwood's face had been accidental or not.

34. Mr Packwood, recalled by the prosecution, corroborated Mr Stewart's evidence concerning the "apology" (he had been in court when that evidence was given).

35. He stated that the defendant had said:

"I'm very sorry for what happened. I apologise. It won't happen again."

36. That account, even so, was at variance with Mr Stewart's account of the same event.

37. Ms Stern gave evidence. She said that, at about 4.50am on 21 June 1998, she had been inside the Club. She was on duty as manager. She saw the defendant and Ms Strudwick having "a heated discussion, physically as well as verbally ... at that stage just gestures".

38. She asked Ms Strudwick to try and calm the defendant down. They were blocking access to the toilets and creating a scene. However, the defendant became more agitated rather than less. Ms Stern asked them to accompany her to the foyer area. The defendant did so but "waving his arms around and bashing (sic) through the crowd".

39. When they all arrived in the foyer, the defendant "...turned around and started abusing me verbally".

40. The doorman, Mr Packwood, she said, then intervened in an attempt to calm the defendant down. She told both Mr Packwood and the defendant that the latter was not welcome in the Club.

41. Then, she said, "...Abu [the defendant] was still enraged and he like in a really rough way pushed his girlfriend".

"Where did that take place? --- Around the top of the stairs."

42. Mr Packwood then stepped in to restrain the defendant. He did so. They proceeded down the stairs:

"...they were about half way down the stairs. And Abu just leant forward and went "whsst" back with his head, hit Lee in the eye which started bleeding..."

43. That account also varied from those versions previously given.

44. She went to call the police, when she returned Mr Packwood and Mr Stewart had the defendant at the bottom of the stairs and were restraining him.

45. The police then came.

46. The prosecution then called Christian Szabo, a surprise witness (ie. his evidence had not previously been disclosed to the defence). He had been the cloak room attendant. His account of the event was:

"the bouncers were trying to evict this guy and his girlfriend. There was no physical violence or anything involved as such, they were merely, you know, just sort of gently pushing him towards to (sic) exit down the stairs. Half way down the stairs or so that guy there turned on his girlfriend and started hitting her, at which points (sic) the guys, the bouncers, they interfered and they took him down to the door and out onto the street. After which - a few seconds, like the guy stood by the door Stu and Leroy they stood by the door and a few seconds past (sic - "passed") and the guy literally came flying back through the door, aiming for, if I remember correctly Stewart and took him down ... And Leroy, well, naturally, stepped in and they tried to restrain him."

47. In cross-examination, he said he was not sure if, as he had initially told police, the two security officers had first run into the Club from the foyer. Though he described the blow struck by the defendant to his girlfriend as a punch to the head, he demonstrated an open-handed blow.

48. Constable Palmer, one of the police officers who attended, found the defendant angry, agitated and shouting about some sort of racial dispute. His left eye appeared red. He was apparently intoxicated. By the time he had been conveyed back to the watch house he had calmed down. He was "apologetic" to police. He was released, promising to return later to speak further to police about the matter. He did return later but at that time declined to be interviewed. Both he and Ms Strudwick attended. They provided prepared statements in writing. Constable Palmer conceded that the defendant had no prior criminal convictions.

49. On that evidence, there clearly was a prima facie case. Her Worship so found. The defendant consented to her Worship exercising summary jurisdiction.

The defendant's case

50. The defendant gave evidence. He confirmed that he had no prior convictions. He was a student. He and Ms Strudwick had been out celebrating the latter's birthday. They had gone to the Club a bit before midnight.

51. He conceded that, before Ms Stern took Ms Strudwick aside to speak with her, he and Ms Strudwick had been:

"Not fighting, we were just talking because she was in a - she had some grievances about me that she wanted - so we were talking about that."

52. He denied that he was punching or pushing her.

53. He conceded, however that:

"...I got a little bit agitated and I started to speak a bit louder than I had been before that."

54. Ms Strudwick was spoken to privately by Ms Stern. The defendant said that Ms Strudwick had reported to him what Ms Stern had said to her, ie., that:

"...she doesn't want us talking together in this way because it's - and plus that she's asked me why I'm going out with you because you're not good for me and you should just break up with me."

55. He claimed it was he who then told Ms Stern, when asked by her to move away from the area, that he wished to leave the Club. His cousin, Khalid Khalidi was also present at the Club.

56. He walked out with Ms Strudwick to the top of the stairs then:

"...as we were walking down I noticed that Sylvie [Ms Stern] had been following us and she told the people, the door people, that I should be thrown out of the Club and that I'm not welcome..."

57. Then:

"...Leroy and Stewart. They came down and they told me that, you know, I should proceed, that there was no cause to have any trouble and so forth. And at that time Stacey talked to them...she was telling them that, he doesn't want to cause trouble, we just want to, you know, leave. And at that point [I] grabbed Stacey's hand. I said, "Don't talk to these people. Let's go out. And at that point I was grabbed and restrained about my shoulders and arms by Lee Packwood."

58. He agreed that his head went back and struck Mr Packwood but denied that he struck Mr Packwood's face intentionally. It was a reflex reaction. He was attempting to free himself. He felt the pain in the back of his head when he contacted with Mr Packwood "and then we all kind of fell forward".

59. The fall took him outside the entrance. He "jumped up" he said and noticed Mr Stewart above him. He swung a punch at Mr Stewart, believing Mr Stewart "might be attacking me". Mr Stewart ducked and they grappled. He agreed that both Mr Stewart and Mr Packwood then restrained him. He was punched, he said "continuously...in the face and in the body". He claimed that when he attended the police station on 24 June 1998, Constable Edmondson photographed his face.

60. A medical report and photographs (not police photographs) were tendered.

61. At this point, Mr Everson sought to tender the defendant's statement as given to police. Her Worship ruled that it was inadmissible.

62. With respect, I consider that her Worship's ruling was correct. This is not, however, simply because the statement was relevant only to consistency (as, indeed, it was). It also lacked that degree of spontaneity and connection with the event it related to in order to comply with s 66(2) and/or s 137 of the Evidence Act 1995 (Cth) so as to render a prior consistent statement of a witness admissible as first hand hearsay - see R v Kirkman [2000] ACTSC 2 (3 February 2000).

63. Nevertheless, the prosecutor chose to cross-examine the defendant upon his statement, as he was perfectly entitled to do. This had the effect of then rendering the document containing the statement admissible under s 45 and s 108(3((a) of the Evidence Act (supra).

64. The part of the statement put to the defendant was:

"In order to release myself from his [Mr Packwood's] strong hold I threw my arms and shoulders backwards when I felt a sharp pain in the back of my head."

65. The defendant adhered to that statement.

66. He further agreed that he had said (in that statement):

"Once outside I was naturally aggrieved at what had happened and in a spontaneous and reflexive action began to approach one of the bouncers [Mr Stewart] who was standing outside the club doors, with my hands raised. ...and then a further struggle took place."

67. Under cross-examination as to that statement, he contended that "in a way I was defending myself". He agreed that he was then restrained by Mr Packwood and Mr Stewart but denied swearing and struggling.

68. He also denied apologising to Mr Packwood and Mr Stewart on the next occasion he attended the Club.

69. Ms Stacey Strudwick, the defendant's companion at the time of the incident, gave evidence. She denied that the defendant had threatened or assaulted her on the stairs as they were leaving the Club. She observed Mr Packwood grab the defendant and she then fell down the stairs closely followed by them. Mr Packwood landed on her.

70. She did not observe the defendant again until she saw him being restrained by Messrs Packwood and Stewart. Punches and kicks were being thrown by them towards the defendant. The defendant later had facial and other bruising. She identified photographs of the defendant, taken a couple of days after the incident, as demonstrating marks consistent with such bruising.

71. In cross-examination, Ms Strudwick confirmed that, inside the Club, she and the defendant had been arguing. After that had gone on for some time, Ms Stern had asked her to get him to move out of the area in front of the toilets. She concurred with the defendant's assertion that he had expressed the desire to leave rather than Ms Stern demanding that he do so. She denied that the defendant was being "abusive" towards anyone.

72. When she was "bumped" down the stairs, she could not say if it was or was not the defendant who "bumped" her. (Nor whether he was himself "bumped" by someone else).

73. She did see Mr Packwood grab at the defendant but she was then in the process of falling down the stairs. Thus she did not clearly see what occurred between them.

74. She did not claim that, between the time Mr Packwood fell onto her and when she next saw the fracas involving the defendant and the two security men, there was no time for the defendant and Mr Stewart to have gone outside the door and re-entered. She simply said that she did not see that occurrence (if it happened).

75. She denied a suggestion that she had told Constable Palmer that the defendant had grabbed her whilst she was on the stairs. (Although the defendant agreed that he had, at least, grabbed her hand). She agreed she had offered a written statement to police but she was not cross-examined as to its contents. She denied she had apologised for the defendant's behaviour at a later date.

76. Mr Khalid Khalidi, a cousin of the defendant, had also been present at the Club during the incident. He followed the defendant and Ms Strudwick out of the Club. He had only shortly before then returned to the Club having been elsewhere in Civic in the meantime.

77. As he was following the defendant and Ms Strudwick down the stairs, he said, "I got pushed". He did not see who did so. He fell into the defendant and regained his balance. He thought he had hurt his knee in the process. He left the premises. "Two or three minutes" later he looked back and saw the defendant being restrained and punches being thrown. He did not return to the area because, being under eighteen, he feared he would be in trouble.

78. He denied a suggestion that his statement was "a pack of lies".

79. In truth it is difficult to understand the latter suggestion. Mr Khalid Khalidi had, apart from claiming to have been "pushed" and seen punches thrown by the two "bouncers", not contradicted any of the prosecution case. Nor had he supported it. His evidence was merely that he did not see Mr Packwood grapple with the defendant on the stairs. At that time he had his own safety to consider if, as he claimed, he had been pushed (accidentally or otherwise) off-balance. He did not see the defendant approach and throw, or attempt to throw, a punch at Mr Stewart after he had left the doorway and gone onto the street. Nor did he claim that he had the area under constant observation so as to be able to contradict that evidence. By the time he did notice anything, Mr Khalid Khalidi was concerned to make himself scarce to avoid trouble.

The reasons for decision

80. Her Worship's evaluation of the issue as to credibility was brief. She said:

"I have no hesitation at all in accepting the version given by Mr Packwood, Mr Stewart and Ms Stern as to what happened that night. The defendant was not a particularly satisfactory witness and Ms Strudwick gave me the impression that she was not comfortable, I suppose.

...in some of the questions which were perhaps a little bit more probing questions that were asked in cross-examination where a lot of the responses to questions were, "I don't remember. I don't know. I don't remember"."

81. It may be observed that these comments could equally apply to an honest witness confessing to uncertainty rather than inventing a version which would support the party calling them.

82. As to Mr Khalid Khalidi, her Worship rejected his evidence also. She considered his evidence "totally at odds with any version, be it the prosecution version or the defence version". With respect to her Worship, that conclusion is not an accurate assessment of the effect of his evidence, truthful or not. As I have noted, the only variance with any other version was that he had himself, being then behind both the defendant and Ms Strudwick, been "pushed" from behind so that he stumbled into the defendant. There is no suggestion that anyone but he, and the person who pushed him, whoever that may have been, were in a position to have observed that event, if it occurred. Nor is it inconsistent with his evidence that the "push", if it happened, was accidental.

83. Mr Khalid Khalidi, more significantly, did not refer to the contact between the defendant's head and Mr Packwood's face. Had he been concerned to support the defendant's version of events, he might have given evidence supporting the hypothesis of accidental contact. The very touchstone which her Worship used to support her belief in the accuracy of Mr Stewart's evidence, ie. that he failed to give details supporting Mr Packwood's version, and some of it was inconsistent with that version, is used to deny acceptance of Mr Khalid Khalidi's version (he failed to give details supporting the defendant's version). It was wrongly asserted that he had claimed that Ms Stern pushed him. That was another reason her Worship gave for dismissing his evidence. Though his evidence would not be inconsistent with that inference, Mr Khalid Khalidi did not, as he might have had he been deliberately telling untruths, make that claim.

84. That process of reasoning was simply unfair. Lack of corroborative detail, or variance between such details, may bespeak an honest witness with less recollection or a different perspective on the same event (see R v Brotherton (1992) 29 NSWLR 95). Both sides in a legal proceeding are entitled, in the assessment of credibility, and of conflicts in evidence, to have the benefit of a similar and consistent reasoning process.

85. Her Worship relied also on the fact that one of the prosecution witnesses (Ms Stern) called the police. It does not seem to me to be a logical reason for preferring the evidence of the prosecution witnesses that they (or one of them) (rather than the defendant) called the police.

86. It was not inconsistent with the defence case that the management and staff of the Club believed they were justified in evicting the defendant and in using force to subdue him when he appeared to offer resistance and respond with aggression. Each party to a physical confrontation may genuinely believe on reasonable grounds that he or she is so acting in self defence or for another lawful purpose.

87. On the other hand, the mere fact that the defendant had suffered injury in the course of the incident was, as her Worship observed, just as consistent with accidental injury as it was with him being beaten as he claimed. Her Worship was correct to view that as an equivocal fact.

The grounds of Appeal

88. Mr Everson complains that the adverse inferences her Worship drew and the reasons she gave for rejecting evidence of the defence witnesses were factually flawed and, compared with her reasons for accepting the prosecution witnesses, unfairly inconsistent.

89. He complained in particular that her Worship also drew an adverse inference (though she did not place decisive weight upon it) from the failure of the defendant to complain to Constable Palmer of being punched and kicked by Messrs Packwood and Stewart when being restrained by them.

90. Further, he complains that the hypothesis that the striking of Mr Packwood was accidental was not really excluded by the prosecution evidence. It did not depend on the acceptance of the defendant's version of events. Even if he was both intoxicated and aggressive, it was not established that he had deliberately aimed his head at Mr Packwood's eye (or facial area). Indeed, that target was out of his range of vision on any view of the evidence (though it was possible to conclude that he had been attempting a "reverse head-butt").

91. Further, in relation to Mr Stewart, the defendant conceded that he approached the latter aggressively. Even so, it was contended, he may well have feared, as he claimed, that Mr Stewart was about to attack him, even if the latter might himself have had a reasonable apprehension that the defendant intended to strike him. That would be enough, in the circumstances, to found that fear on reasonable grounds referred to in Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 as sufficient to enliven the issue of self defence. The onus was on the prosecution to exclude that latter hypothesis beyond reasonable doubt.

92. The prosecution, in response, simply submitted that her Worship was entitled to draw the conclusions she did. The case turned on credibility.

The evaluation - should the appeal be upheld?

93. It seems to me that her Worship was not entitled to draw, as she did, an adverse inference from the defendant's failure to mention, when he first spoke to police, matters he later relied on in court (ie. that he had been punched and kicked).

94. There was no questioning of the defendant by Constable Palmer to which the defendant had failed to respond and which related to such an incident. Constable Palmer's evidence was more in the nature of an evaluation of the "distressed condition" of the defendant. That did not logically permit her Worship to draw the adverse inference from that observation that she did (see Petty and Maiden v R [1991] HCA 34; (1991) 173 CLR 95). It follows that her Worship was in error in so doing. That does not mean, of course that her Worship was bound to accept (or, at least, not to reject the defendant's account of that event). It merely means that her reasons for so doing were flawed.

95. Many of the grounds of appeal were directed towards her Worship's rejection of the defendant as a witness of truth. It is true that her Worship's reasons for rejecting his version of events appear biased towards the prosecution and lacking in equal application to the defendant and his witnesses. Further, they are tainted by the adverse inference she drew from the defendant's failure to mention spontaneously, an allegation he later raised and relied upon in his evidence. However, that does not mean that those failures gave rise to an appellable error. It is apparent that the demeanour of the various witnesses played a significant role in her Worship's acceptance of the prosecution witnesses' version of the events in question.

96. It does not follow, however, that the acceptance or rejection of the testimony of witnesses for inappropriate reasons loses any significance because demeanor has played a significant role in that reasoning process. It may emerge, as McHugh J observed in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178, that "any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion" (citing Watt or Thomas v Thomas [1986] UKHL 1; [1947] AC 484). Nevertheless, the "subtle influence of demeanour" cannot be overlooked.

97. The "position of real disadvantage" in which an appellate court is placed compared with a trial judge was again referred to in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472. Brennan, Gaudron and McHugh JJ considered that an appellate court should not ordinarily set aside a finding of fact based on, or partly on, the demeanour of a witness:

"(479) More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. ...the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"."

98. However, whilst agreeing that allowance for the trial judge's advantage in seeing and hearing the witnesses must be made, Deane and Dawson JJ warned, at 480:

"If the challenged finding is affected by identified error of principle or demonstrated error or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant."

99. More recently, in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588, the High Court warned that an unfavourable impression (or a favourable one) made by the demeanor of a witness may be too fragile a basis to support a finding as to the witnesses' credibility.

100. Kirby J pointed out that respect for the advantage of a trial judge in seeing and hearing the witnesses does not relieve an appellate court of the duty (615):

"...to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial..."

101. Further, a court at first instance is required to give weight to the "fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom" (167).

102. The advantage of the trial judge is diminished where, as here, on appeal, the whole of the evidence before the court at first instance, including documentary exhibits, can be viewed in its entirety (see also, ibid, 620-622). One of the important matters is whether the reasons given for a conclusion as to credibility themselves reveal that irrelevant considerations, or failure to consider relevant considerations, have affected the result.

103. An issue was raised as to the application of the rule in Browne v Dunn [1894] 6 R 67. It was suggested that it was not open to her Worship to have declined to accept Mr Khalid Khalidi's evidence because his account, interpreted by her Worship as an assertion that he had been pushed down the stairs by Ms Stern, was not put to the prosecution witnesses present at the time.

104. The "Rule in Browne v Dunn" is no more than a rule of fairness (see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1. The application of that rule to summary proceedings is, in any event, highly qualified.

105. I had occasion to highlight those qualifications in Pilmore v Anderson (Supreme Court of the Australian Capital Territory, Higgins J, 8 August 1995, unreported). The first qualification is that it is, in itself, likely to be unfair to expect that every disputed detail will be challenged by defence counsel when a prosecution witness gives evidence. It may well be a waste of time. It may be that the disputed detail is not then perceived as relevant. It may be, as here, that, at the time the prosecution witness was testifying, the proceedings were only potentially a final hearing. They were, as Mr Everson rightly pointed out, then committal proceedings. It would be entirely unrealistic to expect that all propositions an accused person might wish later to rely upon at a final hearing would be put to a prosecution witness at committal.

106. In Pilmore v Anderson, an alleged breach of the "Rule in Browne v Dunn" was attributed to a prosecutor. There, of course, prosecution witnesses had already testified. The defence was on notice of their evidence. The only risk of unfairness was that the prosecutor, by not expressly challenging the defence evidence, might have given the impression that the evidence of the defence witness was accepted by the prosecution. No such unfairness could have occurred in these proceedings.

107. The question of Mr Khalid Khalidi's stumble on the stairs was, in any event, of no significance in itself. Contrary to her Worship's assumption, he had not asserted that Ms Stern pushed him. If her Worship had relied on that misconstruction of the evidence not being put to Ms Stern (or any other witness who might have observed the cause of his stumble) so as to justify the rejection of Mr Khalid Khalidi's evidence, that would have been a grave injustice to him.

108. Certainly, her Worship does observe:

"There was never any suggestion by anyone that Ms Stern pushed anyone, certainly not Mr Khalidi, the cousin and that, in fact, was never put to her - that she pushed anybody."

109. However, it would be such a fundamental failure in legal reasoning and of the basic right to give a fair hearing to have rejected Mr Khalid Khalidi's evidence for those reasons that I find it impossible to believe that the passage mentioned was more than an incidental observation made by her Worship in the course of a decision to reject the view that Mr Khalid Khalidi's evidence contradicted the prosecution evidence in relation to the issues that had arisen for determination.

110. The real issue in respect of the first charge, as her Worship correctly noted, was whether the blow struck by the defendant's head to that of Mr Packwood was deliberate and as to the third charge whether his approach to and blows aimed at Mr Stewart after he, the defendant, had been successfully ejected was or might have been in self-defence.

111. The defendant conceded each of those actions. It was, in respect of the first of them, merely a question as to whether he intended the violent contact.

112. There was no direct evidence to contradict the defendant's assertion of accident. Had her Worship considered she could place no reliance on the defendant's evidence, as she did, there was still the question as to whether the other evidence, which she did accept, was sufficient to displace, beyond reasonable doubt, the hypothesis of accidental contact.

113. To reject that hypothesis with that degree of certainty there would have needed to have been some indication that the defendant was not merely resisting Mr Packwood without intending violent contact. His actions were consistent with that hypothesis. He made no statement that he intended to strike Mr Packwood. He did not look at his alleged target before the blow was struck. That target was behind him. Thus while it was certainly possible that the defendant harboured such an intent (as Mr Packwood himself concluded), it does not seem to me that a conclusion that he did so intend could safely be drawn with the requisite degree of certainty.

114. I can understand that her Worship was unfavourably impressed with the defendant. She accepted that he had been abusive and aggressive. It does not follow, however, that his actions in resisting Mr Packwood were intended by him to cause harm (of whatever degree) to Mr Packwood (even if Mr Packwood believed otherwise). It should not be overlooked either that the defendant was, as her Worship accepted, adversely affected by intoxicating liquor. That is no excuse for criminal conduct, but it may explain a clumsiness, a lack of physical control.

115. It, therefore, seems to me that, with due regard to her Worship's conclusion to the contrary, it could not be concluded with certainty that the blow struck to Mr Packwood's face was intentional. Thus an element necessary to support the first charge is not established.

116. That charge should be dismissed.

117. As to the second charge, the defendant concedes that he rushed at Mr Stewart and aimed blows at him. He believed, he said, that he was acting in self defence, to pre-empt an attack on him by Mr Stewart.

118. Her Worship was, of course, entitled to disbelieve the defendant's positive assertion that he so acted.

119. The defendant's situation was not the same as was that of the defendant in Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1. There the defendant was in custody. He was left in a cell. Three police then entered. He rushed to push them out, fearing violence from them. He was mistaken as to that fear but the issue was whether the prosecution had proved he had no such fear and whether, on the assumption he had such fear, it was not unreasonable for him to entertain it. It was found not to be unreasonable in those circumstances.

120. Here, as her Worship observed, the defendant was ejected from the premises. On his own admission, he went back to confront Mr Stewart. The latter had, by then, merely positioned himself so as to bar re-entry by the defendant. The defendant does not assert that he observed any action by Mr Stewart signifying aggression towards him at that point. He simply feared that Mr Stewart might become aggressive.

121. In my view, even if the events had been as the defendant perceived them to have been, there were no reasonable grounds for him to have feared that Mr Stewart would attack him.

122. It follows that I agree with her Worship's finding of guilt in respect of that charge.

123. There is no ground of appeal alleging that the penalty her Worship imposed was excessive. However, before proceeding to confirm the penalty in respect of charge 98/4860 I will give the parties an opportunity to be heard on that issue and as to costs.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 13 March 2000

Counsel for the Appellant: Mr C Everson

Solicitor for the Appellant: Saunders and Company

Counsel for the Respondent: Mr A Robertson

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 16 November 1999

Date of judgment: 13 March 2000