R v England [2001] ACTSC 33 (24 April 2001)

Last Updated: 12 April 2002

The Queen v Barry Joseph James England

[2001] ACTSC 33 (24 April 2001)

CATCHWORDS

CRIMINAL LAW - manslaughter - death followed two distinct street fights between accused and deceased - cause of death established as subarachnoid haemorrhage - whether haemorrhage caused by injury received in first fight or second fight or both - self defence raised in relation to first fight but not second fight - standard and onus of proof.

EVIDENCE - proof - causation - "common sense" approach - whether applicable in criminal trial where expert evidence is in conflict.

EVIDENCE - expert evidence - scientific and legal issues contrasted - evaluation of expert evidence.

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Alister v The Queen [1983] HCA 45; (1984) 154 CLR 404

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Black v Tomislav Lipovac (unreported, Federal Court of Australia, 4 June 1998)

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

Tran v R (1990) A Crim R 233

No. SCC 71 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 24 April 2001

IN THE SUPREME COURT OF THE )

) No. SCC 71 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

BARRY JOSEPH JAMES ENGLAND

ORDER

Judge: Miles CJ

Date: 24 April 2001

Place: Canberra

THE COURT FINDS THAT:

1. The accused is guilty of manslaughter.

1. The accused Barry Joseph James England pleaded not guilty to a single count of manslaughter, namely that he on 1 January 2000 unlawfully killed Bradley John Stewart.

2. There were two ultimate issues. Did a blow or blows struck by the accused and another man, Christopher Culshaw, in Mort Street, Civic, cause a rupture of the posterior inferior cerebella artery (PICA) of the deceased? If not, was the striking of the deceased by the accused some short time earlier in City Walk in self-defence?

3. The facts established, without the need to refer to the evidence, may be summarised as follows.

4. At about 3.30 am on 1 January 2000 the accused and some friends were in a bar in City Walk called the Gypsy Bar. Also present were the deceased and a friend, Jason Boag. Hostility developed between the two groups. All except one friend of the accused, Stuart Harry Black, were affected by liquor as a result of New Year celebrations. The accused and his friends left the bar first at about 6.30 am. They stood on the footpath in City Walk outside the door to the Gypsy Bar. The deceased and Boag came out a few minutes later. A fight ensued between the two groups. Peter Culshaw punched Jason Boag. The deceased walked towards them and in the direction of the accused. The accused struck the head of the deceased and there was a brief physical altercation between them.

5. The fight between the two groups broke up. The deceased walked to the corner of City Walk and Mort Street. The accused and Christopher Culshaw followed him. Either on the footpath in Mort Street, or on the roadway adjacent, the accused and Christopher Culshaw began to strike the head of the deceased. After no less than three such blows the deceased raised his hands in a non aggressive gesture. The accused struck a final blow to the head of the deceased. The deceased dropped to the roadway. The accused and Christopher Culshaw walked south along Mort Street towards London Circuit.

6. Bystanders attended the deceased immediately. His eyes were open and he made some movements with his hands. Ambulance officers attended within five minutes of receiving an emergency call and administered emergency treatment. The deceased was taken by ambulance to Canberra Hospital and admitted at about 6.59 am. CT scans at about 8.00 am indicated blood in the ventricular cavity of the brain and subarachnoid spaces, with dilation of the lateral and third ventricle.

7. Over the next few days many forms of life-saving treatment were administered. Death occurred at 3.45 pm on 6 January 2000.

8. A post-mortem examination revealed a rupture of the PICA. The rupture had caused a subarachnoid haemorrhage to the brain, which in turn caused an increase in blood pressure within the brain. Treatment failed to reduce or to sufficiently reduce the pressure, with the eventual result that lack of fresh blood, with its necessary oxygen, caused the brain to cease to function.

Prosecution case and defence response

9. The primary case for the prosecution was that one or more of the blows, probably the last blow, in the incident in Mort Street (the second or later incident), caused the injury constituting the rupture of the PICA, and set in train the events that led to the death as just described. That was the essential prosecution case, as I understood it, on the opening address of Mr Whybrow, counsel for the prosecution. However, in his closing address, Mr Whybrow made it clear that the prosecution relied on an alternative case, namely that if it had failed to prove the rupture was caused by a blow or blows in the second incident, then it was nevertheless established to the requisite standard that the rupture was caused by a blow or blows struck by the accused in the incident in City Walk (the first or earlier incident).

10. Often, perhaps ordinarily, the prosecution will not be permitted to change the nature of the case against the accused during the trial. That rule, or practice, appears to be of relatively recent origin but in any event was firmly established by the High Court in King v The Queen [1986] HCA 59; (1986) 161 CLR 423 and observed since (see e.g. Alister v The Queen [1983] HCA 45; (1984) 154 CLR 404) (the Ananda Marga case). In other words, counsel for the prosecution in his or her opening address "nails to the mast" the essential nature of the prosecution case, and that is the case that the prosecution undertakes to prove, and the case that the defence expects to meet. The rule appears to be essentially a rule of fairness. Further, so it appears to me, it applies only to the extent that changes in the prosecution tack would result in unfairness to the accused. Clearly, the evidence of every prosecution witness cannot be expected to be on all fours with the evidence of every other witness on every common fact about which evidence is given, or to be identical with every previous statement made by the witness relating to the same facts. Further, the way in which the defence case is conducted may require, in the public interest, some latitude to the prosecution in the conduct of the prosecution and its content, so long as such latitude does not result in unfairness to the accused.

11. In the present case Mr Wille QC, counsel for the defence, made it clear from an early stage in the trial that, if the prosecution were to rely on any assault committed by the accused in the first incident as causative of the death of the deceased, then the accused would rely on self defence. That is how the case was conducted on behalf of both parties. On that basis counsel each made their closing submissions and on that basis I approached the task of deciding whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

Self Defence

12. After deliberation and having come to a final conclusion, I nevertheless think it appropriate to deal first in these reasons with the issue of self-defence. It arises only on the assumption that a blow or blows inflicted by the accused in the first incident caused the death of the deceased and the death was not caused by anything in the second incident. I shall return to the issue of causation.

13. The issue of self-defence falls to be decided in the light of the direct evidence of several witnesses to the events, none of whom could be expected to be very precise as to matters of detail. As a matter of experience, events in the nature of street fights occur suddenly and in a heated and confused atmosphere. Those who take part have their own interests to protect and promote when they give evidence, as they do when they participate. Disinterested observers are seldom in a position to observe the whole of what has taken place, and particular events which are genuinely vivid in the memory of observers may or may not be of significance as far as the issues in subsequent court proceedings are concerned.

14. Of particular importance in the present case is that, with notable exceptions, most of the witnesses were well affected by liquor. Those who were not so affected had seen in the New Year and the hours thereafter without sleep, and their attention and powers of observation may be expected to have been reduced accordingly.

15. Thus one approaches with diffidence the task of deciding what exactly did happen in the first incident, but bearing in mind that it is for the prosecution to prove that the accused did not act in the reasonable belief that it was necessary to do what he did in his own defence.

16. I will deal first with the witnesses on whom prosecution relied.

17. One of the more impressive witnesses was Stuart Harry Black. He had been to school with the accused and the Culshaw brothers and there was less risk of his mistaking one for another. According to his evidence, he had left the Gypsy Bar and had gone back there when it was getting light. By then the other three (the accused and the Culshaw brothers) were arguing with the deceased and Boag at the billiard table. One of the latter chipped a billiard ball into the back of the accused. Stuart Black and the other three prepared to leave. As they walked passed the deceased and Boag, Boag threw down a cigarette lighter and told Christopher Culshaw that he hoped it would explode in Culshaw's face. Argument resumed. The security staff approached. Stuart Black went upstairs and out into the street and some five or ten minutes later the others followed. Christopher Culshaw looked angry, so much so that Stuart Black tried to "steer him away" but Culshaw refused to move. The deceased and Boag came out of the door into the street. One of them said "Oh look, the girls have waited". A fight broke out. Stuart Black did not see how it started. He observed what was happening from behind, on the pavement. He saw punches thrown by the accused and by Christopher Culshaw but he saw no one fall over. Others approached and the fight was broken up by a security guard. Some of the persons moved up to the corner of Mort Street.

18. Another witness who seemed relatively reliable as an observer was Liam Patrick McCoy. He had no association with any of the persons concerned. He claimed that he was fairly sober by the time of the events in question, but that appears debatable as he had been drinking whisky from 9.30 pm until 4.00 am. He was walking past the Gypsy Bar and saw what looked and sounded like an argument, with raised voices and three persons fighting two others. He passed on and looked back. He saw a fight then break out with punches thrown and security staff trying to split up the participants. The impact of punches was audible. The man he later identified as the deceased threw "a couple of punches which may have landed but were not solid". The deceased moved towards his friend, Boag. Boag was hit in the face by somebody. One of the three moved off in the direction of Garema Place. The deceased walked towards Mort Street, past the witness. He was "walking fine but ... bleeding from the face". The remaining two antagonists followed. One said, "I want to get them both".

19. The accounts given in the prosecution case by the colleagues of the deceased other than Stuart Black did not essentially conflict with the above, given the circumstances of their capacity to observe and remember. Their evidence may be outlined briefly.

20. Richard Julian Paul (Julian Paul) spoke of the events in the bar but he left the others after they came out of the Gypsy Bar. He went off to another bar nearby and when he was crossing Northbourne Avenue he saw an ambulance, which may or may not have been the ambulance which went to attend to the deceased. He claimed not to have seen anything of a fight outside the Gypsy Bar. He may have been one of the men seen by Liam McCoy leaving the scene at an early stage. The importance of his evidence was that he said that he and the accused later had a conversation which may be taken to prove some consciousness on the part of the accused of having hurt somebody in a fight and of being held in a headlock. The evidence of Julian Paul does not otherwise bear on any of the precise issues to be decided.

21. Peter James Culshaw was in the Gypsy Bar with the others and left with them. He remained outside talking when he saw Jason Boag arguing with his brother and thus, as he put it simply, "I hit him". Then he saw his brother and Boag trading punches and the accused hit the deceased. He walked off "to see where the bus was" but did not say in which direction.

22. Christopher Patrick Culshaw, who had previously pleaded guilty as a co-offender, was called in the prosecution case. He confirmed some of the incidents in the bar and that he was involved in a fight with Boag outside. He said that the fight commenced after Boag and the deceased emerged from the club and Boag said, "What are you wankers still doing here?" and walked towards him. He said he was then punched in the face by Boag and he punched Boag in retaliation. He claimed that Boag then went back into the club and was brought out five to ten seconds later by the bouncer and "when the bouncer let him go I punched him again". He said he then saw the deceased walking towards the bus interchange. He said that he never hit the deceased outside the Gypsy Bar and did not see anyone else hit the deceased outside the Gypsy Bar. In cross-examination he said that he was not angry at the time of the first incident.

23. Two sisters saw something of the fight just before and when they were crossing City Walk towards the interchange in Mort Street. Lisa Marie Hohoi said that she saw one fight outside the Gypsy Bar, with a tall man fighting a shorter man and another two persons fighting nearby. Later at the bus exchange she saw a man lying in the middle of the road. She recognised him as "the man fighting before". Reia Mary Hohoi said that she saw two fights outside the Gypsy Bar, that "three guys were beating another guy up" and in the other fight "two guys were beating some other guy up". She was asked about the "first fight" and said that "they [the three] had his head in a [head]lock and they were punching him in the face". She was asked as to the "second fight" and said that the same thing happened. "They had his head in a lock and were punching him in the head". She was asked as to "the other person that was being beaten up", and said, "he bumped into my sister...next time we saw him he was lying in the road".

24. Dynzie Thomas Hoolihan was walking around the area and saw a man come out of the Gypsy Bar. He noticed that "he had a bit of blood under his nose" and that he "walked straight up towards the interchange". The later events that he saw identify that man as the deceased.

25. Two security officers gave their version. The manager of the Gypsy Bar, Mr Peter Graham McCahon heard arguing inside and asked the two groups to leave. The other security officer, Michael James Kingston asked Boag to clean up a broken glass and later, when helping a disabled patron up the stairs, he heard a loud cracking noise and saw Jason Boag catch himself in the open doorway at the street level. Boag was bleeding from the mouth. Boag's companion, the deceased, took Boag by the arm and said "Come on let's go, we don't need to fight." Boag and the deceased moved in the direction of the bus interchange followed by the Culshaw brothers. Mr Kingston approached "the person who appeared to have thrown the punch" (whom I find to be Christopher Culshaw) and said "Leave it alone. You know, you don't need to do this. You don't know what he's got." Culshaw showed the witness his hand, which was cut and bleeding and said "If he's got something, I've already got it".

26. The evidence of Jason Boag added nothing to the above. He conceded that he was very intoxicated and remembered practically nothing of significance except that he was punched outside the Gypsy Bar, and that he saw the deceased defending himself. He walked to the deceased's house in Turner and went to sleep. When he awoke he rang the police to see whether his friend had been arrested. Later the police rang back and told him that his friend was in hospital.

27. The accused gave evidence. He said that he had a clear recollection of about 80 percent of what happened from midday on New Year's Eve to 7.00 am on 1 January 2000. He and his friends started drinking at about 6.30 pm on New Year's Eve. They had beer, Bourbon whisky and rum at a barbecue at Richardson. They caught a bus to Civic at about 7.30  pm, taking their drinks with them. By the time they got to the lake at about 8.30 pm, the fireworks were finished. They then went to the Gypsy Bar. They stayed only 10 minutes or so and then went to another bar. Eventually, they left there and returned to the Gypsy Bar at about 3.30 am. The accused and Stuart Black decided to play pool against the deceased and Jason Boag who "owned" the pool table. They had not met previously. At the commencement of the game, Boag remarked "I'm going to wipe the floor with you and not only at pool." During the game the accused felt a ball strike him in the back and he turned around and concluded that Boag was responsible. Boag was behaving in an aggressive and obnoxious manner. However, the accused said that he does not like fighting and did not want to get involved. An argument started. The accused went to stop it. Boag pushed Christopher Culshaw. The accused suggested they leave the bar but Boag and Christopher Culshaw continued the argument. Security arrived and asked the accused and his colleagues to leave in order to resolve the situation, whilst acknowledging that they were not necessarily the aggressors. They left - Stuart Black, the accused and the Culshaw brothers in that order.

28. When they reached the street, the accused said he and the others starting discussing how to get home. The accused had spent all his money. Peter Culshaw wandered off in the direction of Garema Place. Christopher Culshaw said that he did not want to go just yet. The accused's evidence continued.

"Could you see any reason why he [Christopher Culshaw] would remain there? --- No, because, you know - the obvious thought of, you know, maybe he was waiting for them. But I don't think he would because I've never seen him in a fight before and I've never seen him be aggressive before, so I didn't think much of it.

--- Then I said `Let's go', and he goes `No, just wait a minute', and I said `Okay'. I seriously thought nothing was going to happen, you know, and I was talking to Stuart, and Peter was still off to the left somewhere, I don't know what he was doing."

29. The deceased and Boag emerged from the bar. One of them said, "Are you girls still here?" (The word "wankers" may have been used rather than "girls".) Culshaw replied in the affirmative. Boag hit Culshaw in the face. Culshaw struck him back. The evidence of the accused continued.

"...and then I went, oh, man, you know, and then I went over to stop it and [the deceased] was coming over closer to it, because they sort of came out and they were probably a metre apart.

--- I would like to resolve the situation, to finish it.

--- I was going to try and say look, you know, try and pull them apart and to stop it.

...[the deceased] was coming across and I got in the middle of that and I kept him away, I just pushed him.

--- And I kept him away like that, and I turned around to resolve the situation and break it up, and I said `Look, guys, stop it', and before you know - just as I had finished that [the deceased] was around - come from behind and had me in a headlock like this.

--- And he punched me about two or three times to the side of the head ...my right [side of the head].

--- I defended myself by grabbing him and - like this and turning and sort of pushing him and punching him ... in the face ...

--- punching him about three times, and he had stepped back from that, yes

--- Then I looked back over and Chris and Jason had finished.

--- And then [my memory] starts to get very scratchy from there."

30. The accused said he remembered being up at the bus interchange and had memory flashes of the deceased yelling abuse although he could not remember the exact words. He said that at that time he was "scared and angry" because he had been punched in the head a few times and did not like the situation that he was in, having been abused all night "trying to be the nice guy and stay out of it, and try and break things up, and it just not working."

31. The accused was cross-examined as to his expectations when Christopher Culshaw indicated outside the Gypsy Bar that he did not want to leave immediately. It was suggested to the accused that it was obvious that Christopher Culshaw was waiting for the deceased and Boag to come out so that he could "get even" with them. The accused's answers to the questions were equivocal but he did not insist that he had no memory of what his state of mind was at that time. He conceded that the deceased was not aggressive to him but to Christopher Culshaw. He repeated many times that his purpose in approaching Culshaw and Boag was to stop the fight. He repeated that when he told them to break it up, he was put in a headlock by the deceased and punched several times.

32. In re-examination the accused claimed that his memory started to become hazy after he was hit.

33. The evidence to support the claim of self-defence in the first fight is, in my view, insubstantial, inconclusive and unpersuasive. It does not raise a reasonable possibility that the accused at the time believed that it was necessary to do what he did in his own defence. At its very highest it might go to support a defence of justification whereby the accused used reasonable force to put an end to an unlawful assault being inflicted on Christopher Culshaw by Boag. But that is not how the defence case was put and the issue whether the assault by Culshaw on Boag was unlawful was not raised as an issue in the case.

34. I do not accept the accused's evidence that he recalls his state of mind at the time of the first incident. It is clear that he discussed the events with some of the others during the course of the next day or so. Much of what he claims to remember is likely to be the result of what others told him.

35. On the issue of self-defence the prosecution has to exclude the possibility that the accused believed that it was necessary for him to do what he did to defend himself from attack. The belief has to be based on reasonable grounds. The subjective belief, however genuine, is insufficient of itself and must be measured against the standard of reasonableness, that is to say, the prosecution has to exclude the possibility that the circumstances were such as to cause a reasonable person in the position of the accused to believe that he had to use the force he did use in order to defend himself. In my view, the evidence establishes that it was not reasonable for a person in the position of the accused to believe that he was under attack by the deceased at the commencement of the first incident. It may have been reasonable for him to contemplate the possibility of attack by the deceased but in that situation it was not reasonably necessary for the accused to strike first. In any event, the accused does not make that claim. He says that he struck first in order to stop the deceased interfering with his attempt to stop the fight between Culshaw and Boag. It was only when the deceased (either in his own self defence or in defence of Culshaw or in retaliation) then placed him in a headlock that he claimed that he struck the deceased in order to defend himself. I do not accept his claim. In my view, the accused intended to participate in an unlawful fight and cannot claim justification for continuing to participate in the fight because of the conduct of the deceased. I would add here that it is difficult to see how the accused could have punched the deceased in the head whilst the deceased still had the accused in a headlock. I would add also that a headlock is more consistent with a defensive measure than a punch to the head.

36. The accused fails on the issue of self-defence in relation to the first incident.

37. However, should my findings in relation to self defence in the first incident be overturned it is desirable that I consider the preferred prosecution case, that is to say that the deceased died as a result of a blow or blows in the second incident.

38. Although Mr Willee did not seek to rely on self defence in the second incident, there were suggestions in the evidence of the accused that he was still "scared" of the deceased at the time of the second incident and for that reason punched the deceased in order to protect himself. On the other hand, the evidence of the witnesses is clear that at no stage between departing the area outside the Gypsy Bar until the moment he dropped to the roadway in Mort Street did the deceased do anything to give any person in the position of the accused reasonable ground to believe that he was under attack or about to be attacked by the deceased. It is established beyond doubt that the blows delivered by the accused and Christopher Culshaw in Mort Street were entirely aggressive without any shred of justification.

The second fight: nature of blows

39. It is unnecessary to make specific findings about which blows were delivered by the accused and which by Christopher Culshaw. The nature of their attack on the deceased in the second incident is such that the conduct of one is not to be differentiated from that of the other for the purpose of criminal liability. Each was there willingly acting in support of the other and receiving support from the other. It is a classic case of acting in concert so that each is responsible for the criminal conduct of himself and that of the other. If the death was caused by the conduct of one or the other, both are responsible. It is appropriate to make some findings about the number and force of the blows and of the general nature of the deceased's injuries. All witnesses are in sufficient agreement for these findings to be made relatively easy. Nevertheless, I should refer briefly to their evidence.

40. The most reliable witnesses were the men from ACTION who were there to ensure that New Year revellers made their way swiftly into the buses that were arriving regularly at the sheltered bus stop on the eastern side of Mort Street, just north of the intersection with City Walk.

41. Mr Gregory Stephen Corvisy, a supervisor who was on the western side of Mort Street, saw two men strike the deceased. One struck twice by upper cut, the other once with a hard upper cut into the nose and mouth. At no stage did the deceased have his hands up. The deceased dropped to the ground on the third blow. The witness described the blows as having a lot of force. He said that the accused was wearing a white shirt and had blonde hair. On 20 January 2000 in a line-up Mr Corvisy identified the accused as the person who struck the first two blows.

42. Mr Gregory John Zakharoff, a manager, saw three persons around the deceased in Mort Street. Two of them struck the deceased. The first blow came from the accused whom he later identified in a line-up. He struck the deceased in the head and the deceased reeled back. The second punch was from the man in the middle whom he described as the "second offender". That man struck the deceased "full in the face" as he lowered his hand. The deceased raised his hand as if to say "enough". There were two further blows. At that stage the deceased cradled his head, seemed to lose control and after the fourth blow fell without appearing to check his fall. The third or fourth blow was delivered by the second offender. Mr Zakharoff did not believe that any of the blows were upper cuts. He thought that the last blow was possibly at shoulder height.

43. Mr Wayne Thomas Mead was in an ACTION van opposite the bus stop. He heard some cheering and saw three persons "sparring". He yelled, "cut it out". One man had his back to him. That was the deceased. The shorter of the other two punched the deceased who stumbled back and fell straight to the ground. Mr Mead went to his assistance immediately. He saw that the deceased was looking up at him and his hand moved when Mr Mead asked if he was all right. The deceased appeared to be breathing at that stage. There was blood on the side of his mouth and coming out of his nose.

44. Mr Benjamin James Eric Parker, also an ACTION officer, considered that he was better able to describe the events at the time of the trial than at the time they happened, since he had undertaken martial arts training in the meantime. He was about a bus length further distant from the combatants than were Messrs Zakharoff and Corvisy. His attention was drawn to what he described as "the remnants of a punch", that is, the action of a fist having passed by the head of the deceased with or without having made contact. The deceased had his hands upward in a submissive position and then collapsed at the knees and tipped over. Mr Parker went over immediately, tried the carotid artery and monitored the pulse of the deceased. He noticed that his heartbeat was irregular and shallow and breathing also shallow. He described the deceased as incoherent, not verbal, eyes rolling, body quivering, perspiring greatly. Mr Mead and Mr Parker put the deceased in the recovery position to await the ambulance.

45. Mr Liam McCoy, already referred to above, said that the deceased walked from outside the Gypsy Bar onto Mort Street followed by the other two men, that is, the accused and Christopher Culshaw. One of them showed his knuckles to the deceased. The deceased said, "I'm bleeding enough. Leave me alone." The other two began striking him about the head. The deceased raised his hands. He appeared dazed and was stumbling as they kept punching him until he fell. They looked at the deceased and walked off.

46. Mr Stuart Black, also referred to above, said that he saw the accused and Christopher Culshaw strike the deceased five or six times taking it in turns. He said he heard the deceased say "What are youse going to do, hit me two on one?" The accused threw the last punch, like a left hook. The deceased fell and Mr Black called out "Barry, enough."

47. Christopher Culshaw in his evidence said that as he and the accused approached Mort Street, the deceased walked back towards them, yelling abuse. The deceased had "a bit of blood" coming from his eye and nose. Christopher Culshaw had no idea how the deceased sustained those injuries. Without speaking, Christopher Culshaw hit the deceased first, with a punch to the face and then another. The deceased moved backwards and towards the accused. The accused punched him in the face with the right hand. The deceased moved again backwards and again towards the accused. The accused punched him in the face with the left hand and the deceased fell. The deceased at no stage threw a punch or clenched a fist. After making some brief observation of the accused on the ground, Christopher Culshaw and the accused moved off towards London Circuit. They began running. Police stopped them, took their names and said that they might be in contact later.

48. In cross-examination Christopher Culshaw said that he approached the deceased in Mort Street only in order to find out what was going on and that when the deceased raised his hands he took that to be a threat that the deceased was going to punch him. I find the former impossible to accept and the latter difficult to accept. In any event, it is of little significance as Christopher Culshaw conceded that he kept hitting the deceased and did not know why he did so.

49. The associates of the accused that have been referred to above do not add to or essentially detract from the general picture already depicted.

50. However, Dynzie Hoolihan, a reluctant and unimpressive witness, stated that he heard the deceased shouting abuse in the Mort Street area. His was the only evidence that supported that of Christopher Culshaw in this regard. Further, Mr Hoolihan was the only witness who directly supported the evidence of Christopher Culshaw that the deceased was bleeding from the eye and nose prior to being struck in the second incident. Mr Liam McCoy's evidence that he heard the deceased say "I'm bleeding enough" may be supportive. Mr Michael Kingston also describes someone involved in the first fight, Jason Boag's companion, bleeding from a cut over his right eye as he and Boag moved off towards the bus interchange.

51. There were a number of other witnesses in the nature of bystanders and onlookers whose evidence supported the general picture and which it is not necessary to discuss. They all confirm a second fight in Mort Street in the nature of punches by the accused and Christopher Culshaw to the head of the deceased who offered no resistance and who dropped to the ground almost immediately upon the impact of the last punch. Some of the evidence suggests that the last blow did not appear to be severe but the predominance of the evidence is that it was struck with substantial force. Nearly all the evidence supports the proposition that the deceased fell almost immediately upon the impact of the last punch.

52. Ambulance officers attended the scene. Evidence was given by Mr Ian Stuart Crossley, an experienced ambulance officer, that a message was received at 6.31 am. The ambulance arrived at the scene at 6.36 am, departed at 6.46 am and the deceased was admitted to Canberra Hospital at 6.59 am. When first observed the deceased was deeply unconscious, at a very low respiratory rate which was insufficient to maintain life. Oxygen was administered immediately on arrival at the scene and continued in the ambulance. Completely artificial respiration was operating by the time of arrival at the hospital. One of the notes made by Mr Crossley was that someone told him that the deceased had been assaulted, fell and hit his head on the ground.

53. The official Patient Care Report signed by Mr Crossley and other ambulance officers states that Mr Greg Corvisy, whose evidence is discussed above, stated that the patient had been assaulted, punched two or three times in the head, before falling and hitting his head on the ground. The report noted further that the patient "spoke briefly post assault". In view of Mr Corvisy's evidence, the latter is not established. At most the deceased made a moaning noise as he lay on the ground and it is not established that he responded verbally, or in any way, to anything said to him after he fell.

54. The evidence of the accused as indicated above at [28] was that after the first incident his memory starts to get very scratchy and comes in "sort of flashes". I make the observation that the flashes do not always occur to his disadvantage and indeed he gives as full a sequence of events as most other witnesses up until the time the deceased fell to the roadway. Like Christopher Culshaw he recalls flashes of the deceased yelling abuse at various locations after he had been punched in the head a few times. He remembers being scared and angry because he was in a situation he did not like, after being abused all night and trying to stay out of trouble and trying to break things up.

55. The accused said that he remembered Christopher Culshaw in the second fight striking the deceased in the face and then he did the same. He did not know why Culshaw did it. For his own part he was still scared and angry and anytime the deceased came into his "space" he just hit him to keep him away. He recollected four blows and that he struck the last. The deceased hit the ground. The accused did not have any idea how the deceased looked but he did remember that he himself felt "mostly scared" immediately after the fight. He did not remember saying "I want to get them both." He did not think that the deceased was injured "that bad". He remembered someone coming to congratulate him after the deceased fell but he did not like what was being said and he was "just happy it was over" and that he was leaving. He agreed largely with the prosecution evidence about what happened after that regarding the police and going home. He rang Julian Paul some hours later and as a result of what he was told he and one or more of the others went to the police station. Later the same day there was a discussion amongst those who had been present including Christopher Culshaw. The accused's account of relevant events was remarkably coherent for a person whose memory came only in flashes. As I have said, he seemed to be suggesting an issue of self-defence in relation to the second incident. It was not ultimately relied on by his counsel. I have little hesitation in rejecting any suggestion that the accused, or Christopher Culshaw, was acting in self-defence in the second incident. However, that conclusion is of little assistance on the issue of whether a blow or blows in the second incident caused the injury, which in turn caused the death of the deceased.

Causation: the link between the second fight and subsequent death

56. There was no direct evidence as to the condition of the deceased on admission to the hospital. He was attended to by nursing and, presumably, medical staff in the emergency ward. He was placed in intensive care and concerted efforts were made to keep him alive over the ensuing days under the supervision of Dr Nadana Chandran, a neurosurgeon. Following death on 6 January 2000, an autopsy was conducted by Dr Sanjiv Jain, a forensic pathologist, beginning at 11.00 am on 7 January 2000 at the Kingston Forensic Medical Centre. Amongst the significant findings were:

* Needle puncture wounds in the right and left groin and right forearm.

* Healing sutured 15 mm wound over right eyebrow.

* Bruising and abrasions in various places - over right eye, on the bridge of the nose, behind the right ear.

* Oedema in both lungs.

* Cannabis in the blood at 7.05 am on 1 January 2000 at a concentration of 45 milligrams/litre.

* Alcohol in the blood at the same time at a concentration of 0.121 grams/100 millilitres.

57. Dr Jain formed the initial conclusion that death was caused by intra-cranial haemorrhage and for that reason he dispatched the brain and the spinal cord to Dr Michael Laurence Rodriguez, a forensic neuropathologist at the NSW Institute of Forensic Medicine at Glebe.

58. Dr Rodriguez prepared a neuropathology report dated 13 April 2000, which was in evidence. It was based upon his visual examination of the items submitted and subsequent microscopic examination and written material supplied to him. That material included the post-mortem report of Dr Jain, statements of ambulance officers, a statement by Mr Gregory Zakharoff and the Canberra Hospital medical records. It is not necessary to set out the details of the neuropathology report. It confirmed the opinion of Dr Jain that the deceased had suffered a subarachnoid haemorrhage with consequent secondary changes, namely haemorrhage into the intraventricular spaces within the brain itself, swelling of the brain and a number of infarctions in various blood vessels leading to severe hypoxic or ischaemic encephalopathy and so to death.

59. The most significant finding by Dr Rodriguez as to cause of the haemorrhage was a rupture of the PICA revealed on visual macroscopic examination and confirmed on examination by microscope. The relevant features were summarised and explained in the report as follows:

"Traumatic basal subarachnoid haemorrhage is associated with the direct application of blunt force to the neck, or neck hyperextension and rotation, and is usually the result of rupture in the vertebro-basilar arterial system. In this case a site of rupture was demonstrated in the left posterior inferior cerebellar artery. Although uncommon, traumatic rupture of this vessel has been documented following a blow to the face or neck (Dolman, 1986; Bostrom et al, 1992)."

60. In his evidence, Dr Rodriguez said that the rupture he observed was sufficient to cause death by its effect of suddenly increasing the amount of material in the fixed volume of the cranial cavity and so preventing blood flow and oxygenation to the brain. Dr Rodriguez considered that the CAT scan performed at 7.57 am on the day of admission showed bleeding into the subarachnoid space directly and also into the ventricular cavities of the brain. The further effect, he said, would be the sudden loss of consciousness and death either immediately or very soon afterwards. In the experience of Dr Rodriguez in his reading of the medical literature, injuries of that nature occur due to force which may be very minor or major, such as blows to the side or back of the neck causing hyperextension of the head or neck, or blows causing a movement with a rotational component, that is, a twisting of the head or neck. Blows such as those are capable of producing this type of injury. Alcohol is likely to play a part in the infliction of such injury because in about 80 percent of the cases the person injured is intoxicated, and as a matter of theory, alcohol may cause dilation of the blood vessels of the brain and reduce muscle tone, so that the person struck is less able to resist a rapid movement of the head on the impact of the blow.

61. Further, according to Dr Rodriguez, pre-existing abnormality of the blood vessels of the brain may give rise to an aneurysm or bursting of an artery spontaneously, that is, without trauma. In such cases of aneurysm, there will be changes in the vessel wall around the site of rupture which are observable on post-mortem examination. No such changes were observed in the present case.

62. On the assumption that the deceased was struck in the head in the first incident and then walked without apparent difficulty and spoke in the meantime and was finally struck a number of blows around the head before collapsing to the roadway immediately after the last blow without regaining consciousness, Dr Rodriguez was in no doubt that the injury causing the rupture was sustained in the second incident. He did not think that the fact that the deceased had his eyes open and moved his hands, in an apparent response to being spoken to, indicated that he was still conscious.

63. Dr Rodriguez conceded in cross-examination that he could not completely exclude the possibility that the injury might have occurred in the first incident but he thought that it was "extraordinarily unlikely". He agreed that medical opinion was divided between the majority view that loss of consciousness is caused by the sudden and massive increase in intracranial pressure, and the minority view that haemorrhaging blood has a chemical effect on the electrical circuitry (synapses) of the brain. In a person who has not lost consciousness there would be an immediate symptom of a very severe headache in the event of a subarachnoid haemorrhage.

64. Dr Rodriguez also conceded that he himself had never previously encountered a rupture of the PICA in three years of specialised neuropathological practice and some 1000 cases of specialised neuropathological examinations of the brain. He relied on a complete search of the literature which yielded only three works dealing precisely with the rupture of the PICA, those by Dolman in 1986, Bostron and others in 1992 and, less directly Pollanen and others in 1996. On another aspect, as at 1998, there were about 250 reported cases of relevance and in only five was there reported consciousness after injury.

65. In only one of those three cases had there been a rupture of the PICA. In the others the vessel was not identified. It is likely that there have been many more ruptures of the PICA since rarely does a diagnosis of subarachnoid haemorrhage identify the specific vessel ruptured. Unless an angiogram is performed (very rare) there is no way of finding out which vessel has ruptured, except by post-mortem examination of the brain and the vessel itself. Dr Rodriguez thought the three cases of observable delay between trauma and consequent loss of consciousness were explicable on the basis that the haemorrhage in those cases were relatively minor, whereas in the present case the CT scans at 7.57 am on the day of injury, about 90 minutes after the injury, showed haemorrhaging not only into the subarachnoid space but also into the ventricular space. Dr Rodriguez agreed that the faster the blood entered the cranial cavity the sooner unconsciousness would follow and that in the case of a blow causing a rupture of any blood vessel with consequent bleeding into the intracranial space, unconsciousness would not be instantaneous. He repeated that, although the rate of bleeding could not be predicted or otherwise determined, CAT scans showed that it had been massive.

66. Dr Chandran did not see the results of the post-mortem examination, including the neuropathological report, until a few days before he gave his evidence. As the treating doctor he had not considered the possibility of the involvement of the PICA, nor was it necessary for him to have done so for the purposes of treatment. Accordingly, he had not previously considered the consequences or the significance of the traumatic rupture of the PICA as found by Dr Rodriguez. Indeed, Dr Chandran, like the other doctors, had never encountered a rupture of the PICA in his long career. Nevertheless, his evidence was of assistance on the issue of whether the deceased remained conscious after falling to the ground. He confirmed the result of the CAT scan taken shortly after admission to hospital which showed blood in the subarachnoid spaces and in the ventricular cavities, with dilation of two ventricles. A CAT scan done two days later showed infarction at two places indicating further swelling of the brain. Further studies (including angiograms but not of the PICA) showed continuing deterioration until death was pronounced at 3.45 pm on 6 January 2000.

67. Dr Chandran expressed the opinion in his report that the fatal brain injury could have been caused by a punch or punches to the head or by striking the back of the head in a fall or a combination of both. It is no criticism of his professional competence to say that the factual circumstances of the two incidents and the results of the post-mortem examination as now known, show that opinion to be of little assistance for present purposes. However, in his evidence Dr Chandran was asked to assume, in line with the accounts of witnesses, that the deceased had been punched in the head in the two separate incidents, and did not fall until immediately after the final blow to his head. On those assumptions Dr Chandran said that the possibility of the haemorrhage occurring in the first incident was "highly unlikely", that a blow which produces a tear as large as that observed by Dr Rodriguez implies a considerable amount of force and that a person who sustains such an impact would not walk any distance afterwards or be able to talk.

68. Dr Chandran said in cross-examination that he thought that the lesion had not increased in size from the time of the initial rupture. That issue was not pursued. He thought it highly unlikely that the deceased could have sustained a blow of sufficient force to cause the rupture and then walk and behave as he had been observed to do until he fell.

69. Dr Chandran did not agree with Dr Rodriguez that the flow of blood on rupture could have interfered with the synapses. He thought that it was entirely a matter of increase in intracranial pressure. He agreed that there could be a cumulative effect of repeated injuries to the head as seen, for instance, in the case of a boxer suffering repeated prior insults to the brain, none of which could be excluded as a cause of unconsciousness following a blow in a subsequent boxing match.

70. Dr Richard Byron Collins of Independent Forensic Services - Diligentia Verum, a consultant forensic pathologist, was called for the defence. Dr Collins had been provided by the solicitors for the accused with statements of witnesses as well as the statements and evidence of the doctors in the prosecution case which has just been summarised. He sat in court during the evidence of the accused. He had examined the CAT scans and had visited the NSW Institute of Forensic Medicine and examined microscopic studies prepared by Dr Rodriguez.

71. Dr Collins agreed that there was no pre-existing lesion in the well of the blood vessel that ruptured and that the rupture was due to trauma, and that caused a subarachnoid haemorrhage, which caused the death. Dr Collins said, however, that loss of consciousness following subarachnoid haemorrhage could be due to one or more of four factors, of which increased intracranial pressure is only one. The others are: chemical irritation of delicate parts of the brain not normally exposed to blood, direct concussion, and interruption of the supply of blood from the artery that has ruptured.

72. However, as I understand it, Dr Collins did not suggest that any of those applied in the present case. The focus is therefore on the effect of the subarachnoid haemorrhage.

73. Like the other medical witnesses, Dr Collins had never encountered a rupture of the PICA but he was firm in his view that like the "constellation of arteries that do rupture", the PICA could be torn by relatively minor force.

74. A significant aspect of Dr Collins' approach was his view that on the evidence, there was no way of knowing how fast the blood of the deceased flowed into the subarachnoid and ventricular spaces. However, he thought that a large amount of blood will not pass through a tear in a very short time in a vessel as narrow as the PICA (about 1mm in external diameter). He agreed that there was a significant quantity of blood shown in the CAT scans taken at 7.57 am but said that there was no way that that evidence assisted in determining the rate or frequency or the time it took for that blood to collect. He concluded that it was "not possible to say with certainty" that the blows in the second incident caused the rupture of the vessel.

75. Dr Collins also said that it was possible that the loss of consciousness that occurred when the deceased collapsed was not caused by rupture of the vessel at all but by the concussive effect of one or more of the blows in the second incident. However, he thought it "more likely" that bleeding causing brain stem dysfunction occurred when the deceased collapsed.

76. Like Dr Rodriguez, Dr Collins had done a search of the literature and found that there was only one case recorded of a person who had suffered a rupture of the PICA without complete loss of consciousness immediately afterwards. In cross-examination Dr Collins' views firmed to the extent that he found it impossible to say whether there was a greater likelihood that the rupture was caused by a blow or blows in the one incident rather than the other. He did not see the fact that observers noticed the deceased walking and talking after the first incident in an unremarkable way as diminishing the possibility that the rupture occurred in the first incident, since any abnormality might not have been apparent to those observers, although he expected that it would have been observable on proper neurological testing.

77. I should say, at this stage, that it seems to me that the issue of concussion is somewhat of a red herring. It seems to be generally acknowledged that the term "concussion" is imprecise. Dr Chandran and Dr Collins gave differing definitions or descriptions. Dr Chandran said that it involved loss of consciousness whereas Dr Collins said that loss of consciousness was not necessary, only a shaking of the brain. However, I took it that Dr Collins meant that there was more than just physical movement of the brain and that there had to be some disruption of what he called the neuronal junctions. Thus it seems that Dr Collins accepted that concussion involves some disturbance of the consciousness and perhaps that is all that Dr Chandran meant. Dr Chandran was not cross-examined on it.

78. If it is true, as was submitted, that Dr Chandran conceded that a cause of the loss of consciousness could be trauma to the brain itself caused directly by a blow or blows, and not the increase in intracranial pressure, I reject that view, as applying to the present case. But even if there were some possibility that the loss of consciousness was so caused, I do not see it affecting the ultimate outcome of the case.

79. The ultimate issue is whether the preferred prosecution case that the rupture of the PICA was as a result of a blow or blows inflicted in the second incident has been proved beyond reasonable doubt, or whether there is a reasonable possibility that a blow or blows inflicted in the first incident caused that rupture without any contribution to it in the second incident.

80. The issue appears to be one of a medical or scientific nature on which the Court must inform itself by expert evidence. On the other hand, it has been said that causation is to be approached in a common sense way e.g. Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232; and Black v Tomislav Lipovac (unreported, Federal Court of Australia, 4 June 1998). In Chappel v Hart, Hayne J went so far as to say at 290:

"...the resolution of the question of causation will often be asserted without lengthy articulation of reasons, since it is a question of fact resolved as a matter of common sense and experience, the conclusion is often reached intuitively."

81. In criminal trials, juries are often instructed along the lines that, where the experts differ, they as men and women of the world with a wealth of experience and a collective common sense and sense of justice are uniquely equipped to decide for themselves. The importance of demeanour of witnesses is not to be overlooked by the tribunal of fact, even though the witnesses may be experts: see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167.

82. Confidence in the verdict of juries must rest in large part on the requirement of unanimity. It would seem to be consistent with that confidence that, given that a jury verdict is that of all 12 members, the disclosure of reasons may be avoided. The justification of a verdict without reasons is traded off against the unlikelihood that all 12 jurors, properly directed, would be wrong in their single ultimate finding. It is recognised that jurors are entitled to reach that ultimate conclusion by different paths, that they may differ in their reasons for reaching it.

83. Sometimes scientific evidence may be withheld from a jury because the judge thinks it is too hard for them to understand so that, presumably, its prejudicial effect must outweigh its probative value (e.g. Tran v R (1990) A Crim R 233, per McInerney J, Supreme Court of New South Wales). Sometimes the expert evidence will be so difficult to understand that the trial judge will prefer not to explain it to the jury. Such appears to have been the case in the celebrated trial of Lindy Chamberlain.

84. Where there is trial by judge alone there is no refuge in deciding the case on simplistic considerations of common sense, observation of demeanour of witnesses or even justice. But it is not satisfactory to say simply that in criminal prosecution the question is too difficult to be resolved beyond reasonable doubt by a judge who is not equipped to decide the question and the accused must be acquitted. The judge, untrained in the field of expertise, must decide between the competing opinions of the experts and in doing so can hardly escape the obligation of giving reasons.

85. The differences in opinion that need to be addressed in this case are those of Dr Rodriguez in support of the prosecution case and Dr Collins contrary to the prosecution case. Nevertheless, the evidence of Dr Chandran, supporting the opinion of Dr Rodriguez, is not to be overlooked. Once appraised of the post-mortem findings Dr Chandran's view did not substantially differ from that of Dr Rodriguez. Dr Chandran appeared to be more open to a suggestion that the deceased could have died from a series of blows with concussive effect but in context Dr Chandran should not be taken to agreeing with the suggestion. I reject it as a reasonable hypothesis in the circumstances of the case.

86. Ultimately, the difference in qualifications and experience of Dr Rodriguez and Dr Collins is not of itself enough to prefer the view of one rather than the other. Dr Rodriguez has concentrated on neuropathological investigation which is the narrower and appropriate field of expertise. Dr Collins' experience is in more generalised forensic pathology, but over a longer period.

87. Although I do not think that the demeanour of witnesses is of any significance in this case, it should be acknowledged that Dr Rodriguez formed his conclusions before any issue arose as to the importance of the events in the second incident as contrasted with those in the first.

88. Significantly a rupture of the PICA is so rare that neither pathologist (or Dr Chandran) has ever encountered it previously. Both rely on a search of the literature in the English language, carried out via the internet. Both are in much the same state of enlightenment in that regard. As I understand it the literature reveals only one recorded example of a PICA rupture not followed by immediate loss of consciousness. In the present case I reject the hypothesis that the deceased was conscious for any time following the final blow. In my view the nature and sequence of events is such that there is more than coincidence between the blows delivered in the second fight, the immediate fall to the ground, the loss of consciousness and the subsequent death, with the post-mortem revelation of the PICA rupture.

89. Dr Rodriguez had the advantage of examining the brain himself. His observations were confirmed on microscopic examination. He described the rupture as massive. That description is consistent with his view that the blood loss shown on the first CAT scan was also massive. By that time the haemorrhage had spread to the ventricular spaces in the brain. It seems to me that the CAT scans are significant. Dr Collins considered that the CAT scans do not show the rate at which blood loss occurred, a view which I accept, but it is not inconsistent with the hypothesis that the rupture occurred in the second fight. It is less consistent in my view with the hypothesis that the rupture occurred in the first fight.

90. The presumptive inference to be drawn from the dramatic temporal sequence is too strong to put aside as "non-scientific". The deceased showed no signs of being affected, apart from the observation of too witnesses that he was bleeding from the nose or mouth, after the first incident and until he was struck in the second incident. The hypothesis that the injury causing the massive rupture was confined to the first incident is so unlikely that it must be rejected in the light of the support given to the contrary hypothesis by Dr Rodriguez. Further the view of Dr Chandran also rejects that hypothesis. Accordingly, I do not accept the view of Dr Collins that it is not possible to distinguish between the first and second incident as far as the cause of the rupture is concerned. In my view it is established beyond reasonable doubt that there is a causal connection between a blow or blows in the second incident and the rupture of the PICA of the deceased and thus the death of the deceased.

91. To put it another way, I conclude that if the issue of causation between the act of the accused and the death of the deceased is to be decided in circumstantial evidence (which I tend to think it is not) then I am nevertheless convinced that the facts proved by the evidence beyond reasonable doubt are explicable only by the causal connection. If it is not a circumstantial case I say simply that I am convinced of the causal connection beyond reasonable doubt.

Outcome

92. I find the accused guilty of the manslaughter of Bradley John Stewart on 1 January 2000.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 24 April 2001

Counsel for the Prosecution: Mr S Whybrow

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr P Willee QC

Solicitor for the Defence: pappas, j. - attorney

Dates of hearing: 2 February 2001, 20-22 February 2001,

28 and 29 March 2001.

Date of judgment: 24 April 2001