R v O'Meara [2009] ACTSC 122 (18 September 2009)

Last Updated: 26 October 2009

R v BRADLEY O’MEARA
[2009] ACTSC 122 (18 September 2009)

CRIMINAL LAW - trial by judge alone – assault occasioning actual bodily harm – self defence – accused the original aggressor – whether the accused believed upon reasonable grounds it was necessary in self defence to do what he did – disproportionate use of force – finding of guilt

Supreme Court Act 1933 (ACT), s 68C

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645
R v McKay [1957] VR 560
R v Falla [1964] VR 78
Morgan v Colman (1981) 27 SASR 334

No. SCC 395 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 18 September 2009

IN THE SUPREME COURT OF THE )
) No. SCC 395 of 2008
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

BRADLEY O’MEARA

ORDER

Judge: Higgins CJ
Date: 18 September 2009
Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of guilty be entered.

1. On 9 June 2009, the accused, Bradley O’Meara pleaded not guilty to a count in an indictment dated 18 November 2008 charging that he –

... on the 20th day of May 2008 at Canberra ... assaulted Annette Maree Haber and thereby occasioned to her actual bodily harm.

2. On 13 May 2009 the accused elected for trial by judge alone. A trial date of 25 August 2009 was set on 27 July 2009 and the trial proceeded before me accordingly.
3. My role, therefore, in accordance with s 68C of the Supreme Court Act 1933 (ACT), is not only to make rulings as to law and procedure but also to make such findings of fact as a jury would make.
4. The principles of law governing the fact finding role of a jury are equally applicable to a judge trying a case such as this without a jury.
5. First and foremost the onus of proof of the guilt of the accused rests upon the prosecution. It never shifts to the accused. Each and every element of the offence must be proved beyond reasonable doubt. The accused also has the benefit of the presumption of innocence. That presumption extends to the assessment of evidence in that a favourable inference is to be preferred to an adverse one if the former is open.
6. The elements of this offence are first, that the accused assaulted the complainant, Annette Maree Haber. In the context of this case, that means that the prosecution must prove that the accused applied force to the complainant without her consent and without any other legal justification. That force must be proved to have been applied intentionally knowing that there was no such justification.
7. In the present case, the accused has raised an issue whether the force he used was used in self-defence.
8. Self-defence renders an application of force lawful. The test, as adopted by the High Court in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 asks whether at the time the accused used force against the complainant he believed, on reasonable grounds, that such force was reasonable and necessary to defend himself against an unjustified attack. It is not a justification for the application of force where the accused attacks the victim on the pretence or pretext of self-defence rather than out of a genuine desire of self-defence (see, for example, R v McKay [1957] VR 560, R v Falla [1964] VR 78; Morgan v Colman (1981) 27 SASR 334). Nor is it self-defence to repel that which the accused believes to be reasonable self-defence on the part of the victim.
9. The onus is on the prosecution to satisfy me beyond reasonable doubt that there was no reasonable possibility that the accused acted in self-defence. The accused does not have to prove that he did so act.
10. The complainant gave evidence by closed circuit television. I remind myself that no inference adverse to the accused or, conversely, favourable to the prosecution, arises from the fact that her evidence was given this way.
11. The complainant deposed that, on the evening of 19 May 2008, she, the accused and her two children Harley O’Meara and Sharni Haber went to visit Glen Clarke and Fiona Dawes. Mr Clark was the complainant’s nephew. During the evening the complainant said she had three or four drinks of bourbon mixed with soft drink, apparently coca-cola. On the way home, in the early hours of the morning, the accused and Ms Haber argued over the accused’s excessive consumption of alcohol at the residence of Mr Clarke and Ms Dawes.
12. She asked the accused, after they arrived home, to leave the house. She said that she became fearful of the accused who was being verbally threatening. As a result she took a small fruit knife (Exhibit 6) from the kitchen and retired to bed with their son Harley placing the knife under her pillow.
13. The accused then came to the doorway of the bedroom and continued verbally abusing and threatening the complainant. She got up and pushed the accused out of the doorway telling him to get out of the room and to leave her and the children alone. He told her to “shut up” and that she was “a stupid bitch”.
14. She said that then –

I pushed him out of the doorway, he went towards the lounge room and then the last thing I remember is he struck me in the face and I went to the ground and was unconscious.

15. She recalled being struck with a closed fist. Next she recalled lying in a pool of blood and the ambulance coming.
16. She had suffered five compound fractures of her face and needed stitches to a deep cut across her cheek.
17. Clearly, those injuries would satisfy the legal definition of actual bodily harm. That is, any injury that interferes with the comfort or well-being of the sufferer and is not merely transient or trivial.
18. She did not recall, when she pushed the accused, whether she had the knife in her hand but she accepted that she did have. She did not consent to the accused striking her.
19. In cross-examination, the complainant agreed that she had told police that she had the knife because “I thought if I threatened Brad back he would leave me alone”. She acknowledged that her statement to police, made on 6 June 2008, was signed by her as accurate.
20. The statement did contain allegations concerning previous uncharged acts. I denied a prosecution application to admit such evidence, though I did note that it might, depending on the defence case, become admissible. I admitted the statement into evidence at Mr O’Keefe’s request but I agreed not to admit the reference to those uncharged acts. I disregard the reference to those acts accordingly.
21. In that statement, the account the complainant gives of the incident from the point where she had told him to get away from the bedroom doorway was –

I told Brad to get out of my room and leave me alone, and he said something like I couldn’t make him leave.
Brad was yelling loudly at me that everything was my fault, that I was a stupid slut, and how much he hated me. I told Brad to be quiet as he was keeping the kids awake ... I got out of bed and grabbed the knife from under my pillow. I pushed Brad out of my doorway and we struggled into the lounge room. I had my left hand on Brad’s chest and was pushing him backwards. I then held the knife in my right hand and showed Brad. I said to him that if he didn’t get away from me I would use the knife. Brad said, “C’mon if your (sic) good enough”. I pushed Brad away from me again with my left hand and begged him to leave me and the kids alone.
Brad stumbled backwards and fell into the lounge room chair. Brad jumped up and came to me where I was in the doorway of the lounge room. Brad took four or fives (sic) steps towards me and I remember him hitting me in the face with a closed fist, the (sic) blacked out.

22. Nine witness statements were tendered by consent of police witnesses and a Dr Umair Masood. They add little to the account given by the complainant. There was an observation made of the accused that showed a small laceration, apparently superficial, to his left hand.
23. Although it was decided not to call Sharni Haber, the complainant’s young daughter, a recording of her 000 call to police was tendered without objection as was her taped interview with police.
24. On the tape the accused can be heard to say, “You’re going to Welfare now, Sharni” as she called police operations. Sharni at the time was nine years of age. She did say to the operator that the accused and the complainant had been “fighting” but said that she did not know what had happened. She did say that the accused had hit the complainant, and that her eye was bleeding and that she was then unconscious.
25. In her interview with police, she said, she came out of her room when she heard shouting. She saw her mother –

... not push him really, really hard but push him to get away. He didn’t fall over or anything, he was still standing, he just moved back a little bit and he grabbed mum and hit her and she hit the wall and she fell down.

26. She did confirm that the complainant had got the small knife from the kitchen drawer and told the accused to get out and stabbed at him with the knife. The police officer, Constable Levings asked her:

Q175 There’s one thing that I want to clarify about the knife, Sharni, with – you said something earlier one, correct me if I’m wrong about how you said that mum was defending herself?
A175 She wasn’t defending herself, she grabbed a knife but she didn’t hurt Brad at all.

27. When he had punched her to the ground the accused had said, apparently concerning the knife, “Give it up, give it up” and took it from the complainant.
28. The accused told police on their arrival that the complainant had attempted to stab him with the knife and pointed to the small cut on his left knuckle as sustained whilst attempting to protect himself from the knife.
29. When spoken to police at the scene the accused, after being cautioned, said:

I punched her in the face when she came at me with the knife. I punched her in self-defence. She tried to stab me. See?
And he pointed to the small cut on a knuckle on his left hand.

30. The accused was considered to be intoxicated. Constable Taylor added an observation that he recognised the accused from military service.
31. On 20 May 2008 at 10.29 am, the accused submitted to a taped record of interview. He admitted that up to 2.30 that morning he had consumed 20 to 30 drinks and was intoxicated. The house, he admitted, was that of the complainant but he stayed there on and off.
32. As to the complainant’s injuries, the accused admitted that he did it.
33. He said at (A 159):

She come at me with a knife, and I just stopped her, all right.

34. He went on to explain the small cut on his hand (A 169):

She come for me, and I just went to knock the knife out.
And –
As I knocked the knife out of her hand I hit her, I struck her.

35. He then picked her up and put her on the bed. He admitted he was not scared of the complainant (A262). He was asked:

Q289 Is there any other way you could have restrained Annette, or taken the knife off her?
A289 I suppose, but the way I did it I thought was fine.

36. The accused gave sworn evidence before me. I have to remind myself that he was not obliged to do so.
37. It is apparent that there was little, if any, dispute as to the basic facts. The argument between the complainant and the accused leading to the incident complained of was clearly mutual. Both parties had consumed intoxicating liquor. The accused suggested that the complainant was more intoxicated than she admitted to but there was no doubt that the accused was very drunk.
38. He did not dispute that, after attempting to get to sleep in Harley’s bedroom, he went to the main bedroom where Harley and the complainant were. He said he did so to retrieve his bag so he could leave. This had not been put to the complainant but little turns on that.
39. The accused agreed that the complainant pushed him out of the doorway of the bedroom. He fell back, he said, onto a two seater lounge in the dining area. The complainant, he said, was “over the top of me when she produced the knife” and telling him to leave. He was asked:

And what did she do with the knife?

40. He replied:

She attempted to stab me.
Q: Okay. And then what did you do?
A. I struck her to stop her from stabbing me.

41. In so doing he believed he sustained the small cut on his left knuckle shown in the photographs tendered in Exhibit 5.
42. She fell down. He picked her up and put her on the bed in the main bedroom. His intention in striking her was, he said, “I didn’t want her to stab me”.
43. In cross-examination, he did not deny that he had threatened to kill the complainant. He denied that he struck her as he did because he was annoyed or angered. He agreed he had not referred to the need to retrieve his bag when speaking to police. He reiterated that he had struck the complainant to avoid being stabbed.
44. It was interesting that, in re-examination, he told Mr O’Keefe that he did not know where the knife was when he struck the complainant. He was asked:

Okay. What – between the time you saw the knife and you hit her, how many, - what period of time was – are we talking about there? ... A split second. A split of a second, yes. It happened so quick.

45. Ms Davidson, for the prosecution, acknowledged that self-defence was raised but submitted that the accused had no reasonable grounds to fear that he was at risk of being stabbed. Nor was it necessary for him to strike her with such force as he did. In any event, she submitted, the accused had been the original aggressor, in entering the doorway of the complainant’s bedroom while continuing verbal abuse and threats.
46. Indeed, the very fact that the complainant had armed herself with the small knife indicated the level of fear she had of the accused.
47. The accused had not responded positively to her demands that he leave the house. He could not, she submitted, have come to any other view than that all he needed to do was to leave. He did not, after all, claim to have said anything to her about his bag as a reason he could not comply with her request to leave.
48. Further, though the accused gave evidence that the complainant came at him whilst he was fallen back into the lounge seat, Sharni’s account indicates that the accused got up and approached the complainant, clearly indicating that he was not reacting to avoid a stabbing with the knife.
49. Further, as I observed during submissions, it would be difficult to strike such a blow as the complainant suffered if the accused was slumped back on the lounge and striking from that position rather than standing. I conclude that he but momentarily fell back onto the lounge.
50. Mr O’Keefe, in address, noted that each of the parties had been drinking and were to a greater or lesser degree, adversely affected by alcohol. He submitted that the knife being produced, it was reasonable for the accused to believe, as he said he did, that he was at risk of being stabbed. It was not necessary that that be the intention of the complainant, of course, but rather whether it was reasonable in the circumstances for the accused so to believe. He had, Mr O’Keefe pointed out, protested that he was acting in self-defence right from the beginning. Due weight must be given to the circumstances limiting the opportunity for calm deliberation and detached reflection. In those circumstances, Mr O’Keefe contended, there was, at least, a reasonable doubt about whether the accused struck the complainant in self-defence.
51. I do bear in mind that it is only if I can reject the accused’s contention that he acted in self-defence so that I have no reasonable doubt about it that he can be convicted of the offence charged. It is true that the use of a knife by the complainant provides a reasonable basis for the contention by the accused that he acted in self-defence.
52. Nevertheless, I am satisfied he did not do so. I do note the disparity in physical stature between the accused and the complainant, together with the accused’s background of military service. It is difficult to accept that he could not disarm or evade the complainant, even if she did thrust the knife towards him as he fell onto the lounge. Even so, that would not of itself suffice to reject his contention. What does, in my view, is the unchallenged evidence of Sharni Haber. During and following the incident she displayed both maturity and courage despite attempts at intimidation by the accused. I have no hesitation in accepting, despite the accused’s denial of it, which I reject, that he stood and advanced towards the complainant and struck her, not to disarm her, but out of anger. The blow he struck was one that was, even if he had approached to disarm the complainant, out of proportion to the risk he faced. That was minimal. The knife was small and I am satisfied beyond reasonable doubt, held in a defensive not aggressive position.
53. Accordingly, I find the accused guilty as charged. A verdict will be entered accordingly.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 September 2009

Counsel for the Crown: Ms J Davidson
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr J O’Keefe
Solicitor for the Defendant: Wilson Phillips O’Keefe Lawyers
Date of hearing: 25 August 2009
Date of judgment: 18 September 2009