R v Cameron [2001] ACTSC 57 (15 June 2001)

Last Updated: 29 January 2002

R v ROBERT DAVID HUGH CAMERON [2001] ACTSC 57 (15 June 2001)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - counts of intentionally inflicting grievous bodily harm, recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm -whether accused holding a schooner glass when he struck the complainant - whether injury to complainant's eye caused by such glass - whether accused intended to cause grievous bodily harm or was reckless as to possibility of such harm - whether self-defence excluded - no issue of principle.

Supreme Court Act 1933, s 68C

DPP v Smith [1961] AC 290

R v Perks (1986) 41 SASR 335

R v Miller [1954] 2 QB 282

R v Chan-Fook (1994) 99 CR App R 147

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

Saler and Klingbiel [1945] SASR 171

No. SCC 252 of 1999

Judge: Crispin J

Supreme Court of the ACT

Date: 15 June 2001

IN THE SUPREME COURT OF THE )

) No. SCC 252 of 1999

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ROBERT DAVID HUGH CAMERON

ORDER

Judge: Crispin J

Date: 15 June 2001

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the offence charged in the first count of the indictment, namely that on the 4^th day of September 1999 at Canberra in the Australian Capital Territory he intentionally inflicted grievous bodily harm on Darren McPherson.

2. The accused is not guilty of the offence charged in the second count of the indictment, namely that on the 4^th day of September 1999 at Canberra aforesaid he recklessly inflicted grievous bodily harm on Darren McPherson.

3. The accused is not guilty of the offence charged in the third count of the indictment, namely that on the 4^th day of September 1999 at Canberra aforesaid he assaulted Darren McPherson thereby occasioning to him actual bodily harm.

1. The accused was arraigned before me upon the following counts:

(a) that on the 4^th day of September 1999 at Canberra in the Australian Capital Territory he intentionally inflicted grievous bodily harm on Darren McPherson;

(b) that on that day he recklessly inflicted grievous bodily harm on Darren McPherson; and

(c) that on that day he assaulted Darren McPherson thereby occasioning to him actual bodily harm.

2. Upon his arraignment he pleaded not guilty to each count.

3. As the accused elected to be tried by Judge alone I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

1 A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as the verdict of the jury.

2 The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

3 In criminal proceedings tried by a judge alone, if the law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

4. As in trials conducted with a jury, the accused is entitled to a presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt.

5. In the present case all of the offences charged were allegedly committed during the same incident and Counts 2 and 3 have been relied upon by the Crown in the alternative to the offence charged in Count 1.

6. The elements of an offence of intentionally inflicting grievous bodily harm are, first, that the accused did some act which caused injury to the victim, second, that the injury amounted to grievous bodily harm, and, third, that at the time he or she committed the act which led to the infliction of such harm he or she intended to cause the type of harm in fact inflicted, though it is not necessary that the gravity of such harm have been intended or foreseen. The term "grievous bodily harm" simply means "really serious" bodily harm, see DPP v Smith [1961] AC 290 per Viscount Kilmuir LC at 334; and R v Perks (1986) 41 SASR 335 per King CJ at 337.

7. The elements of the offence charged in count 2 are the same, save that it is sufficient that the grievous bodily harm had been inflicted recklessly rather than intentionally. In this context the concept of recklessness requires proof that at the time the accused committed the relevant act he or she adverted to the possibility that grievous bodily harm might thereby be caused.

8. The elements of the third count are, first, that the accused assaulted the victim and, second, that as a consequence of such assault actual bodily harm was occasioned to the victim. Whilst an assault may consist of any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence, the requirement that it occasion actual bodily harm will normally mean that it must amount to a battery. A battery involves the unlawful application of force to the victim. The term "actual bodily harm" means no more than some bodily injury which need be neither permanent nor serious. It is said that the causation of a bruise, abrasion, scratch or even a "hysterical and nervous condition" may be sufficient: see R v Miller [1954] 2 QB 282 per Lynskey J at 292; see also R v Chan-Fook (1994) 99 CR App R 147 per Hobhouse LJ at 152-153.

9. The Crown alleges, in essence, that as the complainant left the Chisholm Tavern at about 3.30 am on 4 September 1999 the accused either struck him in the region of the left eye with a schooner glass or, alternatively, that he moved the hand holding the glass as if to punch him but at the last moment let go of the glass so that he was no longer touching it when it came into contact with his face. The Crown alleges that as a consequence of this assault the schooner glass shattered and one or more shards of glass entered the complainant's left eye causing a severe and perhaps permanent injury. The consequences for the complainant have been particularly serious as he is blind in the other eye.

10. It was not disputed that such an injury had been suffered as a consequence of an incident on the night in question or that it amounted to grievous bodily harm. However there was considerable dispute as to the circumstances in which the injury was inflicted.

11. It is common ground that the accused arrived at the Tavern at around 3.00 am but saw the "bouncer", Mr Mills, standing outside the premises in the area near the toilets and proceeded to have a conversation with him. During the course of that conversation the complainant left the Tavern with a woman named Melissa Miller and, on at least one account of the incident, another woman named Paulette Burgess. It seems clear that the complainant was carrying a bottle of "Wild Turkey" bourbon and cola and, as he walked past, Mr Mills said something to him to the effect that he could not take that drink away from the Tavern.

12. The complainant said that he replied "No worries mate" and added "It's alright mate. I was just going to put her in the cab. I was coming back". He claimed that as he leant or crouched down to place his bottle on the ground he felt a blow to the left hand side of his head. He said that he heard a glass break and "everything went orange". His comment about "putting her in the cab" had apparently been a reference to Ms Miller whom he had been intending to escort to a nearby service station so that she could get a taxi and go home. He said that upon being struck he began jumping around and saying that he couldn't see. He also screamed out to Ms Miller and she came back to assist him.

13. Whilst I have no doubt that the complainant gave his evidence honestly, I found his account of the incident quite unpersuasive. He conceded that he was drunk, though he added reassuringly "not falling over drunk". His evidence was quite inconsistent with that of all the other witnesses who claimed to have seen the incident. Whilst he maintained that he was certain that the accused had had a schooner glass in his hand he ultimately conceded that his evidence to that effect was based upon "educated guesswork". There were plainly gaps in his memory not all of which were explained by the fact that he had lost consciousness for some period of time. The injury and the resulting disability have undoubtedly caused him great distress but, having assessed his evidence carefully, I was unable to determine to what extent he could genuinely remember the events of the evening and to what extent he had reconstructed what he thought must have occurred from what people had told him and "educated guesswork".

14. Ms Miller said that the complainant had been behind her as she was walking towards the service station past the toilet block. She said that she heard the bouncer speak to the complainant and subsequently turned to see him being dragged backwards. She said that he was still facing in her direction, that his heels were dragging behind him and that he had raised both hands in the vicinity of his ears. She also said that she saw a person push or punch him in the head and demonstrated a pushing movement from the shoulder with the palm open and the fingers slightly bent. She claimed she saw something in the palm of the assailant's hand come into contact with the complainant's face. She said the complainant did not fall to the ground but remained standing. She said that she heard a glass shatter but though she had seen the point of impact between the punch and his face she did not see any glass break.

15. Ms Miller was also an unpersuasive witness. She claimed not to have been drunk but admitted to having consumed about seven glasses of wine mixed with orange juice and that amount of alcohol would obviously have had a significant effect upon a relatively small person even if consumed over a period of some hours. Her description of the incident also involved unexplained inconsistencies or incongruities. For example, although she claimed to have taken the bottle from the complainant after the incident she was unable to explain how he could have been holding a bottle when dragged backwards with both hands raised and the palms open as she had described or where such a bottle might have come from subsequently. It also seemed unlikely that either a bottle or a glass would have remained in the hand of the assailant if it had been open in the manner she demonstrated. Furthermore, the incident she described was quite contrary to common features of the accounts given by Mr Mills, Ms Burgess and the accused.

16. Mr Mills gave evidence that he had been talking to the accused for about 20 minutes outside the Tavern before the complainant emerged. During the course of the conversation, which had been polite and cordial, an acquaintance of the accused brought him a can of rum and cola and a schooner glass containing ice. Mr Mills said he saw the complainant and a woman leave the beer garden and noticed that the complainant was carrying a bottle of "Wild Turkey" bourbon and cola. He told the complainant he would have to take that back to the beer garden. The complainant did not stop. He said that the accused then reached out and either grabbed the complainant or touched him on the shoulder and said something like "This guy's talking to you". When asked what happened then, he said "I couldn't see exactly what was going on, but there was a little struggle or something with their hands". Mr Mills explained that the accused had been between him and the complainant and had been blocking his vision. The accused then said something like "You little prick" and punched the complainant. He said he saw a schooner glass shatter and the complainant fall over. The bottle of bourbon in the complainant's hand did not smash. The accused then turned back to Mr Mills and said "I was only trying to help you and look what happened". Mr Mills impressed me as an honest and generally reliable witness.

17. The accused gave evidence that was substantially consistent with the accounts given by Mr Mills and Ms Burgess. However, he denied having had a schooner glass with ice. He said that when Mr Mills spoke to the complainant he ignored him and kept on walking. The accused took two steps to the left, tapped the complainant on the shoulder and said "He's talking to you". He claimed that the complainant then turned around, grabbed his left wrist and twisted it. The complainant was holding a bottle in the other hand and punched him in the right rib cage with that hand. The accused said that he was surprised and said "You little prick" as he punched him back. He said that he punched the complainant in the nose with his right hand in which he was holding not a schooner glass but a can of "Bundaberg" rum and cola.

18. Ms Burgess, who was called to give evidence on behalf of the accused, confirmed that the complainant did not stop when Mr Mills spoke to him. She said that the accused then tapped him on the shoulder and said "excuse me, mate, you can't leave the premises with alcohol". She said that the complainant turned around aggressively and grabbed the accused, apparently on the arm. She said that the complainant had a bottle in his other hand and that this fell to the ground and smashed at her feet. She said the accused made a movement which she described as "more of a push hard". She demonstrated by moving her hand rapidly out from her shoulder. She said that the accused had a can of "Bundaberg" rum in his hand when it came into contact with the complainant. In cross-examination she conceded that she may have told a police officer that she was unsure whether what the accused had been holding in his hand was a can or a glass and that she had heard the sound of smashing glass and presumed it to be glass from the bottle the complainant had been carrying. She said that after the incident there had been only a can and broken bottle glass on the ground. Having had the opportunity to reconsider the matter she said in re-examination that she believed that it was a can he had been holding though she was obviously uncertain about this aspect of her evidence.

19. Ms Burgess had also consumed a significant amount of alcohol during the course of the evening and may have been mistaken about some details of the incident. For example, despite her evidence that the only broken glass on the ground had come from a broken bottle, glass from a broken schooner glass was subsequently found at the scene. However, it was understandable that she may not have seen fragments of clear glass on the ground in the early hours of the morning when she was presumably preoccupied with the incident that had just occurred. Indeed, Mr Mills did not notice that glass until about 5.30 am. Whilst the Crown declined to call her because of the perception that she was an unreliable witness, I formed the impression that she had given her evidence honestly and was a more reliable witness than either the complainant or Ms Miller.

20. The allegation that the accused had a schooner glass in his hand when he struck the complainant was the subject of considerable dispute.

21. The Crown relied heavily upon the evidence of Mr Mills who was adamant that he had seen a schooner glass in the accused's hand at the time he punched the complainant. He said that he would never forget seeing it because he had never seen a glass explode as that one did. There had been glass going everywhere. He rejected the suggestion that the glass may have shattered when it hit the ground or that the fragments of glass he had seen in the air may have been rising. In cross-examination he conceded that he may have been mistaken about the accused having had a vessel in each hand at the time of the struggle but added that, whilst he had been unable to see the accused's left hand, his right hand had had the glass in it. Mr Mills agreed that he had only seen the rim of the glass but maintained that he could not have associated the schooner glass with the rim of a can.

22. Mr Mills' evidence that the accused had been brought a glass containing ice as well as a can of rum and coke was corroborated to some extent by the evidence of Ms Peisley, a barmaid, who gave evidence of having served two people who were members or nominees of the Rebel motorcycle club with a number of drinks and a schooner glass with ice in it. She said that they had taken the drinks outside. It should be noted however, that the two men purchased six drinks including three in cans and, whilst her evidence is consistent with the Crown case it does not, of itself, establish that the schooner glass was provided to the accused.

23. The complainant also said that he was certain that he had seen the accused with a schooner glass. However, this evidence was not persuasive. He had apparently given evidence at the committal proceedings that he had not been certain as to whether the accused had had such a glass. When asked about that evidence he claimed that he had meant to say that he had been certain. This explanation was not convincing. In any event, he had said that he had not seen the blow coming and could not have seen the glass at that time. He did say that he had seen the accused with the glass as he left the beer garden but there was no obvious reason for him to have taken particular notice of it at that time. Furthermore, as I have mentioned, he was drunk at the time. His evidence before me was, I think, influenced, by a process of reconstruction and guesswork.

24. Ms Miller's evidence cast no real light on the issue.

25. However, another "bouncer", Mr Welsh, who had some first aid experience examined the complainant some minutes after the incident and saw a piece of glass in his eye. The medical evidence also established that the injuries to the eye could have been caused by the eye coming into contact with broken glass.

26. There was also evidence that blood consistent with that of the complainant was found on fragments of a schooner glass found in the vicinity of the incident later that morning. There were also fragments of glass recovered from the complainant's shirt. Analysis of the fragments suggested that they had come from the same schooner glass or at least the same batch of schooner glasses and, as the incident with the complainant demonstrated, patrons were not generally permitted to take drinks to that area. Hence, it seems probable that the glass found on the ground came from the same schooner glass. There was further evidence from the complainant's father that a piece of glass a couple of millimetres long was recovered from a scab on his nose.

27. Viewed overall, the Crown case on this issue was formidable.

28. On the other hand, the accused was able to marshal a substantial case in answer to this contention. As I have mentioned, the accused was adamant that he had never had a schooner glass in his hand and that when he had struck the complainant he had been holding a can of Bundaberg rum and coke. This account received some limited support from the evidence of Ms Burgess. It was also supported, to some extent, by the medical evidence concerning the injuries to the complainant's face and the absence of any injuries to the hand of the accused.

29. Dr Dickson, the ophthalmologist who operated on the complainant's eye, said that the complainant had had a few superficial skin lacerations to his nose and that his eye had been penetrated through the cornea and the sclera. In his evidence-in-chief, Dr Dickson was asked to assume that the mechanism for the injury had been a punch to the face by somebody holding a glass which had shattered on impact. In answer to a question as to what degree of force may have been involved, he made the following comments:

"I think it's safe to say that Mr McPherson didn't receive a forceful blow to his head. There was (sic) no severe injuries or bruising of the tissues around the eyes one often sees with a forceful punch to the eye. Also, I think it's safe to say that he didn't receive the full force of a glass breaking and being forced onto his face, because there were no other deep lacerations to the skin around the eye. I think - but the injuries are more in keeping with a glass breaking on the side of his head and shards carrying on with the momentum and causing the lacerations to his face and to the eye."

30. In cross-examination, Dr Dickson said that he would have thought that if the complainant had received a punch of the nature described by Mr Mills, there would have been more bruising around the orbital margin and perhaps lacerations. In particular, he was asked whether his observations when he first saw the complainant and the photographs of the complainant's injuries were taken had been consistent with a glass "being held inside a punching hand with the rim exposed and being delivered with considerable force, exploding as it came into contact with the left temple" of the complainant. He answered "We'll I'd have to say that I felt that the injuries and even the photographs wouldn't support that hypothesis".

31. Dr Dickson said that a shard of glass had moved across the eye and that vast range of alternative explanations was theoretically possible. He agreed that it would have been consistent with the complainant's face coming into contact with a pile of broken glass if he had fallen down onto it, but added "not falling with great force".

32. Dr Robinson, an ophthalmic surgeon who had seen the complainant's eye only after the injuries had been stitched, maintained that they were consistent with a schooner glass having been smashed in the complainant's face. When asked for his opinion as to the likelihood of the injury having been caused by a finger with a small shard of glass attached being run over the eye he expressed the opinion that it would have been more likely that the glass would slip off the finger than produce a penetrating wound.

33. Dr Robinson was an eminently well-qualified ophthalmic surgeon with extensive experience. However, he was not a good witness. He proved unable or unwilling to provide a direct answer to many of the questions put to him by Mr Nicholson QC who appeared for the accused. Even when I intervened to urge him to address the questions he had been asked, he persisted in answering questions intended to explore the basis for his opinions by simply restating them. I was unable to determine whether he had a generalised aversion of any form of Socratic dialogue or whether he was simply unwilling to countenance his opinion being called into question.

34. Cross-examination is frequently the most effective means of gauging evidence made by witnesses, whether expert or otherwise. The technique has been employed for centuries. The Old Testament notes that "In a law suit the first speaker seems right until another steps forward and cross-questions him" (Proverbs 18: v17, New English translation) and cross-examination was apparently practised by the Roman orator, Cicero. It is frequently used to challenge the truth of allegations made by witnesses but is also of great assistance in testing the validity of expert opinions by exploring the underlying principles and presuppositions and exposing any logical flaws. Dr Robinson's refusal to properly respond to the questions asked by Mr Ncholson meant that his opinions remained substantially untested. His persistent use of non sequiturs also raised potentially disturbing questions as to his motivation. He was an intelligent and well educated person giving evidence about matters within his field of expertise. The questions which Mr Nicholson put to him were clear, obviously relevant to the issues before me and expressed in a courteous manner. Dr Robinson did not claim to have had any difficulty in understanding them and there was nothing in Mr Nicholson's manner that might reasonably have provoked irritation or otherwise explained his failure to adequately answer them. In circumstances of this kind, there is no rational way of determining whether the witness is simply unwilling to have his opinions questioned, whether he is concerned that some logical weakness might be exposed or whether he is so committed to the cause of one party that he is unwilling to answer any questions that might assist the other. In any event, one cannot accept expert opinions as if they were oracular pronouncements which should not be questioned.

35. Whilst I acknowledge the wealth of Dr Robinson's experience, the manner in which he responded to Mr Nicholson's reasonable attempts to cross-examine him ultimately left me unable to determine what, if any, weight should be given to his evidence.

36. Dr Collins, a consultant forensic pathologist called to give evidence on behalf of the accused, relied upon Canberra Hospital medical records, colour photographs of the complainant's injuries and the statements of Dr Dickson. He was also in Court when both Dr Dickson and Dr Robinson gave evidence. He said that if there had been a blow to the complainant's head with a schooner glass sufficient to cause it to shatter one would have expected deep incised wounds penetrating "even to the depth of bone, and certainly through the skin into the subcutaneous or muscle tissues". He expressed the view that the injuries suffered by the complainant were inconsistent with such an impact. He also said that the constellation of injuries suffered by the complainant could have been caused by falling onto small fragments of glass.

37. He said that had the glass been held in his hand at the time the accused delivered the punch, it was highly likely that the hand would have been damaged. Faced with this obvious impediment to acceptance of the allegation that the accused had pushed the glass into the complainant's face, the Crown submitted that he may have let go of it at the last moment and, in effect, thrown it. There was, however, no evidence to support that hypothesis.

38. In cross-examination, Dr Collins confirmed that in his opinion it was more likely that the injury to the complainant's eye occurred either by him inadvertently putting a piece of glass into his eye or falling onto glass than by having the glass smash in his face.

39. Dr Collins also had impeccable qualifications and extensive experience and he gave his evidence in an apparently objective manner with no hint of defensiveness. I found him a persuasive witness and accept his evidence that injuries of the kind suffered by the complainant are more likely to have been caused by either of the mechanisms suggested in cross-examination than by being struck by a schooner glass in the manner alleged by the Crown.

40. In addition to the medical evidence, an analysis of the residues found on the fragments of glass taken from the ground where the incident had occurred revealed no trace of rum but demonstrated, to a probability exceeding 90 per cent, traces of beer. This strongly suggested that the schooner glass had contained beer rather than rum.

41. In addition to these factors, Mr Nicholson relied upon the observations which Mr Mills made of the complainant after the assault. Mr Mills said that the complainant got back on his feet "pretty quick". He noted that there had not been much blood, "just a little bit of blood on his face, like, not a lot" and that he told him to go and clean himself up. The complainant then left with a woman, presumably Ms Miller, to go into the toilet block to do so. Mr Mills confirmed that at that time he had heard nothing about the complainant being unable to see nor had he been crying out, stumbling or staggering. He became emotional only after Mr Mills returned with Mr Welch whom he had gone to get so that he could provide first aid.

42. As previously mentioned I found Mr Mills an impressive witness and accept his evidence on this issue in preference to that of the complainant and/or Ms Miller. It seems clear from this evidence that the complainant did not initially suffer either loss of vision or severe pain, though those symptoms were certainly evident by the time he emerged from the toilet block. None of the three medical practitioners who gave evidence on this issue at the trial suggested that the onset of symptoms could be delayed following such an injury and Dr Robinson, who gave evidence for the Crown, said that the loss of vision would have been immediate. Hence, the fact that the complainant exhibited no symptoms prior to his departure into the toilet block suggested that the injuries had not then been suffered.

43. I must say that I found Mr Mills' graphic account of seeing the beer glass explode against the complainant's face very persuasive and, as I have already mentioned, there was substantial corroborative evidence that the complainant may have been injured in that manner. On the other hand, the evidence of the accused that he had been holding a can of rum and coke rather than a schooner glass, the medical evidence suggesting that the injuries suffered by the complainant were not what might have been expected from such an assault, the absence of any cuts to the accused's hand, the fact that the glass fragments which caused the injury apparently came from a glass that had contained beer rather than rum and coke, and the evidence suggesting that the injury may have been suffered until some time after the punch, together provide strong grounds for doubting that it could have occurred as Mr Mills described.

44. Whether or not the accused had held the glass in his hand when the incident commenced, I think it is possible that Mr Mills confused reflections from the silver rim of the can with reflections from the glass rim of a schooner glass. I think it is also possible that the explosion which Mr Mills witnessed was not an explosion of glass but of liquid from the can. It may be noted that Mr Mills said that he had never seen a glass explode like that before and that Mr Pout, who spoke to the accused almost immediately after the incident, said that the accused had shown him a crushed can and told him that his drink had been spilt. Mr Pout offered to get him another. Furthermore, the incident occurred in the early hours of the morning and Mr Mills had been dependent on artificial light some distance from the Tavern. He did say that the light had been adequate but did not claim that the light outside near the toilet block was as bright as that inside the tavern.

45. In these circumstances, I am unable to be satisfied beyond reasonable doubt that the injuries were inflicted when a schooner glass held by the accused came in contact with the complainant's face.

46. Whilst the use of a schooner glass is not of itself an element of any of the offences with which the accused stands charged, the Crown case that he intentionally or recklessly inflicted injuries suffered by the complainant is necessary dependent upon allegations that he thrust the schooner glass into his face either with the intention of causing grievous bodily harm or, that he did so having adverted to the possibility of causing such harm. In either event, proof that the accused was holding the schooner glass when or shortly before it came into contact with the complainant's face was an indispensable part of the Crown case as to the mental element of these offences. In these circumstances it was incumbent upon the Crown to prove that fact beyond reasonable doubt. It could attempt to do so only by reliance upon circumstantial evidence and in that event the evidence must be capable of proving to the requisite standard that there is no other reasonable hypothesis. For the reasons I have given, I am unable to be satisfied beyond reasonable doubt that the injuries could not have been inflicted either as a result of the complainant falling onto broken glass or, alternatively, as a result of glass which had subsequently become attached to his fingers or lodged in his eye being moved across the eye as he attempted to clean himself up in the toilets. If for this reason alone, the offences charged in the first and second counts in the indictment have not been proven beyond reasonable doubt.

47. However, there were other grounds for doubting the guilt of the accused in relation to these counts. Even if the accused had held a schooner glass when he struck the complainant it would still have been incumbent upon the Crown to establish that he acted with the necessary intent or recklessness. In some circumstances it might well be appropriate to infer that a person who had lunged at the face of another with broken glass or a glass object likely to shatter upon impact was intending to cause grievous bodily harm or had at least adverted to such a possibility. In the present case, however, the evidence does not establish that the object in the accused's hand was thrust forward in any apparent attempt to make it come into contact with the complainant's face. Mr Mills demonstrated that the manner in which the object which he believed to have been a glass had been held by the accused. It is apparent from that demonstration that it was held vertically with the accused's hand wrapped around it and that it remained in that position as the accused punched the complainant with the knuckle portion of his hand.

48. Furthermore, there is no compelling reason to reject the accused's evidence that when he tapped the complainant on the shoulder and spoke to him, the complainant turned around, twisted his wrist and struck him in the rib cage with the bottle. Whilst Mr Mills was unable to confirm these allegations , his evidence was not inconsistent with them and there was some medical evidence to support them.

49. Dr Maynard was an on-call Commonwealth medical officer who was asked by a police officer to examine the accused. He said that the accused told him that he had been in a fight about thirty-six hours earlier and that he had been hit in the right breast with a stubbie bottle and had also sustained a "grasp and twisting injury" of his left wrist. He said that he was unable to discern any mark in the right breast area but on palpation the accused had complained of some tenderness. He said that having regard to the degree of tenderness he would have expected to have seen some mark in that region. Dr Maynard also said that there was an area of bruising about 5 x 2 centimetres on the accused's left wrist and evidence of surface scratching. When asked by the learned Crown prosecutor whether this was consistent with the accused simply having his wrist pushed back he answered "I don't believe so, your Honour. To me it was more a grasping injury". In cross-examination he confirmed that the accused had told him the wrist had been twisted and that his observations were consistent with that history. The accused was also seen by Dr Black on 15 September 1999. Dr Black found a yellowing bruise present in the area of the breast where the accused said he had been struck by the bottle. He also diagnosed the presence of a cracked rib. Dr Maynard agreed that the contents of Dr Black's report had been consistent with the observations he had made of the accused given the time that had elapsed between the two examinations, though it was possible that the bruise could have been caused by some injury sustained after he had seen him. He also confirmed that whilst at the time of the examination he had thought it unlikely that the accused had suffered a cracked rib it was "always a possibility".

50. For present purposes the law of self defence is adequately stated in the following passage from the decision of the High Court of Australia in Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 per Wilson, Dawson and Toohey JJ at 661:

". . .The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application . . ."

51. In the present case the accused said that he did hold such a belief. His belief was formed by the fact that he had been attacked by the complainant in the manner that he described. It was submitted by the Crown that he had, in effect, "started it" by tapping the complainant on the shoulder when he had no right to intervene. However, it could not be said that such a trivial action warranted the violent response by the complainant which the accused described in his evidence. Such a response could not have been justified as reasonable self-defence and would have amounted to an assault upon the accused. He would, in turn, have been entitled to do what he reasonably believed to have been necessary to defend himself from that assault. Hence, he was entitled to be acquitted of all charges unless the Crown could prove beyond reasonable doubt that he had no belief that it was necessary for him to act as he did or that there were no reasonable grounds for such belief because, for example, the force which he used was out of all proportion to any attack which he could reasonably have believed he was facing at the time. Furthermore, it has been said that any such response cannot be weighed with "golden scales": Saler and Klingbiel [1945] SASR 171 per Richards J at 172.

52. In the present case I am unable to be satisfied beyond reasonable doubt that the accused did not act in self-defence. It is true that in his evidence he used the word "retaliate" but I formed the impression that he was using that word to indicate only that he had responded to the attack upon him. He expressly disclaimed having acted maliciously and asserted that he had done what he did only to defend himself. In considering the credibility of that assertion it is relevant to bear in mind that having punched the complainant once he immediately turned back to Mr Mills and said "I was only trying to help you and look what happened". That does not seem to me to be consistent to the Crown's contention that he had acted out of anger. In any event, self defence is available whenever the conditions referred to in Zecevic are satisfied. There is no requirement that a person seeking to invoke self-defence have responded to the assault upon him with equanimity.

53. In the circumstances also it seems to me to be unlikely that the accused either intended to cause the complainant grievous bodily harm or adverted to the possibility that such harm might be caused. I think, on the contrary, that the accused was surprised at the assault committed upon him by the complainant and reacted instinctively by punching him in order to bring the assault to a halt and then walking away. Regrettably the indirect consequences of that punch proved very serious but I cannot be satisfied that serious harm was either intended or foreseen.

54. For these reasons the accused must be acquitted of each of the offences with which he stands charged.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 June 2001

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr G Nicholson QC with Mr J Pappas

Solicitor for the Accused: Saunders & Co

Date of hearing: 29 January 2001 - 1 February 2001

4 June 2001 - 6 June 2001

Date judgment reserved: 6 June 2001

Date of judgment: 15 June 2001