FEDERAL COURT OF AUSTRALIA England v Queen [2001] FCA 1722 CRIMINAL LAW – appeal against conviction – manslaughter – death followed two distinct fights between accused and deceased – causation – cause of death established as subarachnoid haemorrhage – alleged error in trial Judge's conclusion that the deceased's death was caused by a blow inflicted in the second incident rather than in the first incident. CRIMINAL LAW – manslaughter – self-defence, whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did – where the accused person raising a plea of self-defence was the original aggressor – standard and onus of proof. CRIMINAL LAW – appeal against sentence – manslaughter – severity of sentence – sentenced to seven years' imprisonment, with a non-parole period of four years – factors to be taken into account. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, applied R v Williams [2000] NSWCCA 136, considered R v Kenta No SCC 81 of 1987, distinguished R v Gunn (SC of Victoria 1617 of 1993), considered R v Risteski [1999] NSWSC 1248, distinguished R v Khouzame [2000] NSWCCA 505, considered BARRY JOSEPH ENGLAND v THE QUEEN A 23 of 2001 BLACK CJ, SPENDER & DOWSETT JJ 21 DECEMBER 2001 BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 23 OF 2001 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: BARRY JOSEPH ENGLAND APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BLACK CJ, SPENDER & DOWSETT JJ DATE OF ORDER: 21 DECEMBER 2001 WHERE MADE: BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA) THE COURT ORDERS THAT: 1. The appeal against conviction be dismissed. 2. The appeal against sentence also be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 23 OF 2001 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: BARRY JOSEPH ENGLAND APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BLACK CJ, SPENDER & DOWSETT JJ DATE: 21 DECEMBER 2001 PLACE: BRISBANE VIA VIDEO LINK (HEARD IN CANBERRA) REASONS FOR JUDGMENT THE COURT 1 The appellant was charged with unlawfully killing Bradley John Stewart on 1 January 2000. He was tried and convicted before Miles CJ, sitting without a jury. The Chief Justice sentenced him to imprisonment for seven years, fixing a non-parole period of four years to date from 24 April 2001. The appellant appeals both against his conviction and the sentence. An alleged co-offender, Christopher Culshaw was also charged and pleaded guilty. Culshaw's appeal against sentence was heard with this appeal, and we are publishing separate reasons in connection with it. It will, however, be necessary to refer to those reasons when we come to deal with this appellant's appeal against sentence. Outline of events 2 The appellant, Christopher Culshaw, his brother, Peter and others spent New Year's Eve 1999 and the early hours of New Year's Day 2000 at various bars in Canberra. From about 3.30 am on the morning of 1 January they were in a bar in City Walk known as the "Gypsy Bar". Also present were the deceased and a friend, Jason Boag. Hostility developed between the appellant's group on the one hand and the deceased and Boag on the other. The appellant's group left the bar between 6.00 and 6.30 am. Christopher Culshaw, the appellant and perhaps others waited on the footpath outside the bar. The deceased and Boag emerged shortly thereafter. A fight (the "first incident") broke out which eventually involved both Boag and the deceased on one side and the appellant and Christopher Culshaw on the other. Other members of the appellant's group may also have been involved. The deceased must have received a blow to the head for he was observed to be bleeding from the face immediately afterwards. The fight was broken up and the deceased moved away. Christopher Culshaw and the appellant followed him. Another incident (the "second incident") then occurred in which the appellant and Culshaw struck the deceased's head on a number of occasions. He fell to the ground. Culshaw and the appellant departed. Others assisted the deceased. He was taken to hospital where he was treated in intensive care for some days but died on 6 January 2000. The appeal 3 No point has been taken as to the allegation in the indictment of unlawful killing on 1 January 2000 rather than 6 January 2000 when the death occurred. The supplementary notice of appeal asserts errors in the learned trial Judge's conclusions that : • the appellant was not acting in self-defence; and • that the deceased's death was caused by a blow inflicted by either Christopher Culshaw or the appellant in the second incident rather than in the first incident. 4 In the original notice of appeal it was alleged that the conviction was unsafe and unsatisfactory in the administration of justice, which ground does not necessarily depend upon demonstrated error. In argument counsel appeared to rely primarily upon the alleged errors, but the "unsafe and unsatisfactory" ground was retained as an alternative way of putting the same submissions. Self defence – The first incident 5 His Honour said by way of introduction to his reasons concerning this aspect at pars 13 – 15 (AB 497): "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." 6 His Honour then set out the evidence concerning the first incident. We summarize relevant aspects below. Stuart Harry Black 7 His Honour considered Black to be one of the more impressive witnesses. He had been at school with the appellant and the Culshaw brothers and so could readily identify them. He had not been drinking on the night in question. Black left the Gypsy Bar at some stage in the course of the evening and returned "when it was getting light". The accused and the Culshaw brothers were then arguing with the deceased and Boag at the billiard table. Boag "chipped" a billiard ball into the appellant's back. Black, the appellant and the Culshaw brothers prepared to leave. As they walked past the deceased and Boag, Boag threw a cigarette lighter and made a provocative remark. The argument resumed. Black went upstairs and into the street and shortly thereafter, the rest of the appellant's group followed. Christopher Culshaw looked angry, and Black tried to "steer him away", but Culshaw refused to go. The deceased and Boag then emerged, and one made a remark. The first incident broke out. Black did not see how it started. He saw punches thrown by the appellant and by Christopher Culshaw but did not see anybody fall. Others approached, and the fight was broken up by a security guard. Some of those involved moved up to the corner of Mort Street. 8 The appellant criticized some aspects of the way in which the learned trial Judge dealt with the evidence of Black, particularly his failure to refer to the fact that Black saw the appellant in a headlock. Nonetheless, his Honour appears to have dealt with the matter upon the basis that this incident may have occurred. Black also said that the appellant broke out of the headlock and started fighting (AB 92 ll 38 – 40). Liam Patrick McCoy 9 His Honour considered that McCoy also "seemed relatively reliable as an observer". He claimed to have been fairly sober at the relevant time although his Honour observed that he had been drinking whisky from 9.30 pm until 4.00 am. McCoy was walking past the Gypsy Bar when he saw what looked and sounded like an argument. Three persons were fighting two others. Punches were thrown, and security staff attempted to split up the participants. The impact of the punches was "audible". A person whom McCoy later identified as the deceased threw "a couple of punches which may have landed but were not solid". The deceased moved towards 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 Mr McCoy. He was "walking fine but … bleeding from the face". The other antagonists followed him. One said "I want to get them both". 10 The appellant was highly critical of McCoy's evidence, and suggested that his Honour had not referred to what were said to be a number of weaknesses in it. However his Honour was not obliged to do so. There was one minor factual discrepancy. His Honour observed in par 18 that McCoy's claim that he was fairly sober may have been "debatable" "as he had been drinking whisky from 9.30 pm until 4.00 am". The evidence suggests rather that he had consumed eight to ten beers, the last at 4.00 am. In cross-examination Mr McCoy conceded that he may also have consumed a couple of bourbons. The discrepancy is not material. Some of McCoy's evidence was, in fact, less favourable to the appellant than was the summary given by his Honour. He said that he recalled three men arguing with two others. Two separate fights started, in the first of which, two men fought one man. The second was "one on one". He said that all of the group of three had started throwing punches, and the other two had responded "defensively". It is clear from McCoy's evidence at AB 60 that the deceased was one of the group of two rather than of the group of three. He also said that the deceased was the person who was assaulted by two people rather than one, and that the two people were Christopher Culshaw and the appellant. This was quite inconsistent with the appellant's evidence. Whether his Honour gave any weight to it does not appear from the reasons. Richard Julian Paul 11 His Honour identified only one aspect of his evidence as important. Paul said that at some later stage, after the events in question, the appellant had said something to him which indicated that he was aware that he had hurt somebody in a fight and that he had been held in a headlock. Peter James Culshaw 12 Peter Culshaw said that he saw Boag and his brother arguing and "I hit him". He then saw his brother and Boag fighting. He also saw the appellant hit the deceased. He walked off "to see where the bus was". Christopher Patrick Culshaw 13 Christopher Culshaw said that he was involved in a fight with Boag outside the bar. The fight commenced after Boag and the deceased emerged from the club. Boag made a remark and walked towards him. Culshaw claimed that Boag punched him in the face. He retaliated. Boag then retreated into the club but was brought out shortly thereafter by the security officer. When the security officer released him, Culshaw punched him again. He saw the deceased walking towards the bus interchange. He denied having struck him outside the club and said that he did not see anybody else hit him at that time. Lisa Marie Hohoi and Reia Mary Hohoi 14 These witnesses were sisters. Ms Lisa Hohoi said that she saw one fight outside the bar in which a tall man was fighting a shorter man. Two other persons were fighting nearby. She later saw a man lying in the middle of the road at the bus interchange. She recognized him as "the man fighting before". Ms Reia Hohoi said that she saw two fights outside the Gypsy Bar. In one fight, "three guys were beating another guy up". In the other fight "two guys were beating some other guy up". Of the first incident to which she referred, she said that they "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 that "he bumped into my sister … next time we saw him he was lying in the road". Dynzie Thomas Hoolihan 15 He saw a man come out of the Gypsy Bar. He had "a bit of blood under his nose". He "walked straight up towards the interchange". Later events enabled the witness to recognize this man as the deceased. Peter Graham McCahon 16 McCahon was the manager of the Gypsy Bar. He heard argument in the club and asked two groups to leave. Michael James Kingston 17 Kingston, a security officer, had asked Boag to clean up a broken glass at some stage during the evening. Later, when helping a disabled patron up the stairs, he heard a loud noise and saw Boag catch himself in the open doorway at street level. He was bleeding from the mouth. His 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 exchange, followed by the Culshaw brothers. Kingston approached "the person who appeared to have thrown the punch" and said "Leave it alone. You know, you don't need to do this. You don't know what he's got." His Honour concluded that this was Christopher Culshaw. In reply Culshaw showed the witness his hand, which was cut and bleeding, and said "If he's got something, I've already got it." Jason Boag 18 Boag conceded that he was very intoxicated and remembered practically nothing of significance except that he was punched outside the Gypsy Bar and saw the deceased defending himself. He walked to the deceased's house and went to sleep. When he awoke he rang the police to find out whether the deceased had been arrested. Later the police told him that he was in hospital. The appellant 19 The appellant said that he had a clear recollection of about 80 per cent of what happened from midday on New Year's Eve until 7.00 am on 1 January. He and his friends started drinking at about 6.30 pm. They went to the Gypsy Bar some time after 8.30 pm, stayed there for a short time and then went to another bar. They subsequently returned to the Gypsy Bar at about 3.30 am. He and Black played pool against the deceased and Boag. They had not met previously. Boag made a provocative remark, and at some stage the appellant felt a ball strike him in the back. He concluded that Boag was responsible. The latter was behaving in an aggressive and obnoxious manner. The appellant said that he did not like fighting and did not want to get involved. However an argument started. The appellant went to stop it. Boag pushed Christopher Culshaw. The appellant suggested that they leave the bar, but the argument continued. Security personnel asked the appellant and his friends to leave. Black, the appellant and the Culshaw brothers left in that order. When they reached the street they discussed how they would go home. The appellant had no money. Peter Culshaw left the group. Christopher Culshaw said that he did not want to go just yet. His Honour cited the following passage from the appellant's evidence: "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." 20 The deceased and Boag then emerged from the bar. One of them made a remark. Culshaw replied to the remark, and Boag hit him in the face. Culshaw struck back. His Honour then quoted the following passage from the appellant's evidence: "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 to 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." 21 The appellant said that he remembered being at the bus interchange and had memory flashes of the deceased yelling abuse, although he could not remember the exact words. He said that 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." He conceded that the deceased had not been aggressive towards him but said that he had been aggressive towards Christopher Culshaw. He repeated that his purpose in approaching Culshaw and Boag was to stop the fight and that when he told them to break it up, he was put in a headlock by the deceased and punched several times. In re-examination he said that his memory became hazy after he was struck. 22 His Honour dealt with the issue of self-defence at pars 33 – 36 (AB 504 – 505) as follows: "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." It may be that the reference to the deceased having acted in defence of Culshaw should have referred to his acting in defence of Boag, but that is of no significance for present purposes. 23 The appellant's case was that the deceased had him in a headlock and was punching him and that he defended himself by struggling and punching him. Miles CJ took a broader view of the incident, noting that the appellant had struck first. We understand his Honour to have been referring to the appellant's having pushed the deceased as the latter walked towards the fight in which Christopher Culshaw and Boag were involved. As his Honour said: "He (the appellant) says that he struck first in order to stop the deceased interfering with his attempt to stop the fight between Culshaw and Boag." 24 Counsel for the appellant disputed the correctness of his Honour's assertion that he had struck first, but this was based upon the view that his Honour was not referring to the pushing incident, but to the subsequent punching said to have been in self-defence. We do not accept that view of his Honour's meaning. Counsel referred to a number of passages as relevant to this aspect of the case. At AB 92, Black said that he recalled seeing the appellant in a headlock and being hit. He broke away and "starting fighting". Black was asked if he had seen how the appellant had come to be in a headlock. He said that he had not. At AB 109, in his cross-examination Black said that he only remembered the appellant being in a headlock and being hit; he did not know by whom. At AB 226, Reia Hohoi said that she saw that "they had his head in a lock and were punching him in the head." As her evidence was to the effect that each of the persons who was in a headlock was being assaulted by more than one assailant, she may have been describing another incident or she may have assumed that a bystander was involved. None of this evidence detracts from the appellant's admission that the first application of force between him and the deceased was the pushing to which we have referred. 25 The appellant submitted that his Honour made a number of other unsustainable findings, the first being that: "When the deceased walked towards the appellant, the appellant struck the head of the deceased and there was a brief physical altercation between them." (AB 494/4) 26 The passage of his Honour's reasons said by the appellant to constitute such a finding is par 4, in which his Honour said: "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." 27 This description is at the start of his Honour's reasons, and is by way of a general summary of the events constituting the first incident. The criticism appears to be that his Honour was wrongly asserting that the appellant had struck the deceased in the head immediately after the latter advanced towards him, and without any justification. However the subsequent summary of the evidence in pars 33-6 set out in par 22 of these reasons demonstrates that his Honour was aware that the appellant's case was that he had initially pushed the deceased and struck him only after he had subsequently been placed in a headlock. Whatever is said to have been suggested by the general summary in par 4 does not, in our view, detract from his Honour's detailed reasoning and findings as set out in pars 33-36 of his reasons. 28 Clearly, his Honour was recording the fact that there had been a blow to the deceased's head in the course of the first incident. The fact of such a blow was, and is, critical to the appellant's case concerning causation of the fatal injury. It is said that the deceased suffered a head injury in the first incident and that it may have caused his death. The alternative sequence of events is that he died as a result of an injury caused in the second incident. Although the appellant may have argued faintly to the contrary, self-defence is clearly not available in the latter case. The appellant admitted striking the deceased in both incidents. For the reasons set out above, we do not consider that his Honour failed to appreciate the appellant's case with respect to self-defence, nor do we consider that his Honour made an unsustainable finding as contended by the appellant. 29 The second allegedly unsustainable finding was that: "The appellant said he struck the deceased first or that he did in fact strike the deceased first (AB 504-5/35)". 30 As we have said in par 24 above, it is clear to us that when his Honour referred to the appellant "striking first" he was referring to the pushing of the deceased. This was consistent with the appellant's own evidence. 31 The third allegedly unsustainable finding was that: "The appellant's recollection of his state of mind at the time of the first incident was not his own, but the product of what others told him (AB 504/34)". 32 In par 34 his Honour: • rejected the appellant's evidence as to his state of mind at the time of the first incident; • pointed out that the appellant had discussed the events with others during the course of the next day or so; and • observed that much of what the appellant claimed to remember was likely to be the result of what others had told him. 33 The appellant's criticism conflates these three aspects. There was good reason for his Honour to have doubted the accuracy of the appellant's recollection. He conceded that he had little memory of events immediately after the first incident and spoke of "flashes" of recollection. He was certainly intoxicated at the time. It is also undisputed that the appellant and his associates discussed the events in question shortly after they had occurred. Further, the appellant's evidence as to his state of mind was not particularly convincing, amounting to little more than an assertion that he had punched the deceased in self-defence during the first incident. There was no real suggestion that he feared for his own safety at the time at which he pushed the deceased or even when he was in the headlock. At AB 383 this passage appears: "All right, well then after you were struck in that way by Bradley Stewart, do you recollect the next thing you remember? --- I defended myself by grabbing him and – like this and turning and sort of pushing him and punching him – punching him in the face ---." 34 He said subsequently that at the time of the second incident he was "still scared and angry" (AB 384). He said at AB 385 l 43 and 44 and AB 386 l 1 that he had no idea what his intention was in following the deceased as he moved away after the first incident. In cross-examination at AB 394 this passage appears: "Mr England, are you really suggesting to this court that you were acting in self-defence when you assaulted Mr Stewart up on the bus interchange, is that what you're saying? --- I can't remember the full actions of it all. I can't remember how we got there, I can't remember any of that. But I never ever wanted to physically go there and hurt him." 35 At AB 395 ll 31 – 33 he said that he could not remember whether he chased and punched the deceased because he was angry following the first incident. At AB 396–7 he again asserted that he was "scared" at the time of the second incident. At AB 398 ll 26 – 29 he said, concerning the first incident: "I was there for myself and I tried to stop the fight. I got involved by trying to defend myself and that's how it carried on." 36 At AB 407 ll 39-45 – 408 l 1 this passages appears: "And to be fair to Mr Stewart (the deceased), you're not suggesting that he did anything obnoxious or aggressive downstairs at all, are you? --- No, they were just – I know he was involved in the argument with Chris, that was the only thing I really saw. But as far as you can remember, he wasn't involved in any aggressive, obnoxious behaviour at all that night? --- He wasn't ---. --- certainly not to you ---? --- to me, no." 37 At AB 408 ll 16 – 45 he was asked about the first incident. The relevant passage is as follows: "How did you get involved? --- I went over to stop it. Why did you do that? --- Because a friend was involved in a fight and I wanted to stop it. Yes. And you didn't think Mr Culshaw could take care of himself? --- It wasn't a matter of that, I just wanted to stop the fight. Right. What were you going to do? --- Just to stop it. Say, stop and pull them apart. Okay. You heard Chris Culshaw give evidence that it was one hit, one hit? --- Yes. Well, wasn't it stopped then? --- Well, it was one hit, one hit, he stumbled back. They come back together but – I got side-tracked pretty quick. I took probably four steps over which is, you know, pretty quick. And then I was in it and I went to stop it and that's when I was in the headlock. But you've got a good memory of that. How did you come to be in a headlock? --- I was just facing Bradley Stewart – not, Bradley Stewart, Jason Boag and Chris and that, and I was coming up to stop it. I said, "You know that's enough guys, let's break it up". You know, some words like that. And then I was – the hand come over the back of my neck. So you were attacked from behind? --- Yes. And you remember that? --- Yes. And then you were hit in the head a few times? --- Yes." 38 The above extracts are by no means the only evidence relevant to this issue, but they are sufficient to demonstrate that his Honour was quite justified in rejecting the appellant's assertion that he recalled having a belief that he had to defend himself. There is also no basis for criticism of his Honour's observation that much of the appellant's evidence concerning events on that night was likely to be the result of what he had been told by others. 39 The next allegedly unsustainable finding was said to concern: "… the appellant's claim to have struck the deceased only when the latter placed him in a headlock". (AB 504/35) 40 It was asserted that Miles CJ treated this proposition as "unbelievable". The relevant passage in par 35 of the reasons for judgment is as follows: "(The appellant) 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." 41 We have already observed that the second reference to Culshaw should be to Boag. His Honour proceeded upon the basis that the appellant had "struck" first in the sense that he had pushed the deceased. The proposition that his Honour here rejected was that the appellant had struck the deceased in order to defend himself, not that he had struck him "only when the latter placed him in a headlock". 42 It was also submitted that his Honour had found, unsustainably, the proposition that: "… the deceased did no more than place the appellant in a headlock" (AB 504/35). 43 There is no finding in par 35 that the deceased did no more than place the appellant in a headlock. 44 It is, we think, important to view his Honour's findings in the context in which they were made. His Honour considered the events leading to the alleged headlock and subsequent exchange of punches. In his written submissions the appellant also argued that the following findings, amongst others, were unsustainable: • "The evidence. to support the claim of self-defence did not raise a reasonable possibility that the appellant believed at the time that it was necessary to do what he did in his own defence (AB 504/33); • viewed objectively, the appellant's belief that he was under attack by the deceased at the time of commencement of the first event was unreasonable (AB 504/33); • although it may have been reasonable for the appellant to contemplate the possibility of such an attack, it was not reasonably necessary for him to strike first (AB 504/35); and • the appellant intended to participate in an unlawful fight in the first incident (AB 504/35)." 45 Before considering these submissions, which really go to his Honour's ultimate conclusion as to self-defence, we should firstly refer to the leading case concerning that matter. In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 the majority (Wilson, Dawson and Toohey JJ, Mason CJ concurring) said (at 661 – 664): "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 and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary. Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of the person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such intent it will be manslaughter … . … the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection. There is, however, one situation which requires particular mention. It should, we think be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question … . Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence … . … Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. … Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist – where, e.g., he is engaged in criminal behaviour of a violent kind – then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack." 46 The task facing us is somewhat different to the usual case of an appeal against a criminal conviction. In this case, the learned trial Judge sat alone without a jury. In such cases, when there are reasons for judgment, it should be easier to determine whether or not the trial has miscarried than is the case with a jury trial. In some cases, a judge's reasons will disclose errors or weaknesses in judgment which, had they been committed by a jury, would have been unreviewable (save perhaps on the "unsafe and unsatisfactory" ground). Nonetheless, a judge sitting alone is in the position of a jury and may, provided he or she acts rationally and on the evidence, treat the evidence in exactly the same way as a jury might have done. 47 Where self-defence is raised, the tribunal of fact must eventually determine whether it is satisfied that the accused did not act in self-defence. It must be satisfied of that beyond all reasonable doubt if it is to convict. In some cases the tribunal will have the assistance of evidence from the accused, although that is by no means always the case. It may attribute such weight to that evidence as it considers to be appropriate. It should not approach the evidence with any particular prejudice against it, nor should it treat it as beyond question. That implies the right to reject or refuse to act upon it, or part of it. Of course, care must be taken in that process. If a rejection or partial rejection of evidence appears to be arbitrary and unjustifiable having regard to the evidence in the case as a whole, including possible impressions made by the witnesses upon the tribunal, then the "unsafe and unsatisfactory" ground may be invoked. 48 It seems to us that his Honour adopted an approach of careful scepticism as indicated in pars 13 – 15 of his reasons (set out in par 45 above). Once it is accepted that his Honour's rejection of the appellant's assertion that he consciously acted to defend himself was justifiable on the evidence, the position, at best for the appellant, was that he was standing near Culshaw and Boag as they fought. The deceased approached, and the appellant pushed him without any provocation or other justification. He had no reason to believe that the deceased posed any threat to him having regard to his previous conduct, nor that he proposed to offer any violence to Culshaw. 49 As his Honour pointed out, it is not clear why the deceased applied a headlock to the appellant. He may have perceived it to be in self-defence or in defence of Boag, or it may have been in retaliation for the pushing. Similar comments apply to any subsequent striking. By pushing the deceased the appellant had indicated an intention to use force to stop him from doing something that he apparently wanted to do, whatever that may have been. When, immediately thereafter, the deceased grabbed and hit the appellant, as the appellant alleges, it seems likely that he was responding to the appellant's offer of violence. The appellant's conduct after the first incident was also relevant. To have followed the deceased in company with Culshaw and then to have assaulted him in the way described in the evidence bespoke hostility towards him. It is possible that the hostility was provoked by the alleged headlock and punches, but that was a matter for the tribunal of fact to assess. Having regard to the whole of the evidence, including the absence of any provocation or violence by the deceased prior to his being pushed by the appellant, the unsatisfactory evidence from the appellant and the latter's conduct in the second incident, the tribunal of fact might well have been satisfied beyond all reasonable doubt that the appellant was not acting in self-defence at the time at which he struck the deceased during the first incident. 50 As the majority in Zecevic said at 663: "Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it." 51 At 664 their Honours said: "A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack." 52 As it clear from par 35, his Honour did not accept the appellant's evidence that he struck the deceased in order to defend himself. He concluded that the appellant had intended to participate in an unlawful fight. We consider that his Honour was justified in reaching that conclusion. Self-defence - the second incident 53 It is not entirely clear whether the appellant sought to rely upon self-defence in connection with the second incident. In par 4 of the appellant's outline of argument on the appeal it was submitted that: "These fundamental misapprehensions of the evidence resulted in the learned trial judge misdirecting himself in – (a) … (b) failing to apply the correct legal principles relating to the defence of self-defence to the second limb of the overall defence of the Appellant, and (c) …" 54 We are uncertain what is meant by the "second limb of the overall defence". In any event, Miles CJ rejected self-defence in connection with the second incident (par 38), suggesting that counsel had not sought to rely upon it. No basis for challenging that decision has been shown. The evidence could lead to no other conclusion. Cause of death 55 The mechanism by which death occurred is not in dispute. The deceased suffered a subarachnoid haemorrhage with bleeding within the brain, resulting in swelling which eventually caused interference to the blood flow to, and oxygenation in the brain. The haemorrhage was attributable to a rupture of a very small artery known as the left posterior inferior cerebellar artery (the "PICA"). The evidence was that this artery carries blood from the vertebral artery to the basilar artery which is at the base of the brain. An injury of this kind may be caused by the application of force such as a blow to the side or back of the head, causing hyperextension of the head or neck, or a blow causing a movement with a rotational component, that is a twisting of the head or neck. A person who has consumed alcohol may be more exposed to injury in this way because of dilation of the blood vessels and reduced muscle tone. Miles CJ was satisfied beyond all reasonable doubt that this injury occurred as the result of one of the punches thrown by either Culshaw or the appellant in the course of the second incident. The appellant sought to demonstrate that it was reasonably possible that the injury was caused by a blow struck in the course of the first incident which he said was struck in self-defence. It is for this reason that it is important to note that the deceased had apparently suffered some injury to the head in the first incident evidenced by there being blood on his face immediately afterwards. 56 Although not of critical importance, the timing of events is of some significance. His Honour made no finding as to the time of either the first incident or the second incident. According to the witness Kingston (AB 157) "last drinks" were called in the Gypsy Bar at about 5.45 am. The witness Corvisy, who was employed by ACTION, was working at a nearby bus interchange on the morning in question. He described what was probably the second incident and said that it occurred at about 6.15, but probably prior to that time. He fixed the time by reference to a bus departure scheduled for 6.15. (AB 28) In cross-examination he said that the incident occurred on or around 6.15 am. (AB 28 ll 15-16) The witness Zakharoff said that the incident occurred between 6.15 and "possibly 6.30". He had previously thought that it had occurred a little earlier but had changed his mind. (AB 66 ll 1-4) The witness Mead, also from ACTION, said that he alighted from a Tarago van at about five past six and watched the loading of a bus which was to depart at 6.15. Whilst engaged in this activity he observed the second incident. (AB 174 ll 1-5) The witness Parker, also from ACTION said that he was in the bus interchange area shortly after 6 am and subsequently became aware of the deceased lying on the road at about 6.30 am. He had, between those times, seen some parts of the second incident. 57 It seems that timings were not substantially in dispute at the trial. Counsel led the witness Reia Hohoi in her evidence-in-chief (at AB 224 ll 16-17 and ll 42-43) by suggesting that both the first incident and the second incident occurred at about 6.15 am. On the other hand, he led Lisa Hohoi by suggesting that the incident had occurred at about 6 am. Presumably such differences reflected differences in the statements provided by these witnesses. 58 As appears from his Honour's reasons at par 52, the ambulance service received a message at 6.31 am, and an ambulance arrived at the scene at 6.36 am. It departed at 6.46 am. The ambulance officers found that the deceased had what is described as a "coma score" of three, based upon signs of consciousness such as eye opening, motor response and verbal response. This score is equivalent to the score likely to be recorded by somebody who is dead. He was, however, breathing, although not at a rate which was sufficient to sustain life. The deceased was admitted to Canberra Hospital at 6.59 am. CT scans were performed at 7.57 am, according to evidence from Doctor Chandran, the neuro-surgeon who attended the deceased prior to his death (AB 342 ll 29 – 35). The scans showed blood within the ventricular cavity of the brain and subarachnoid spaces. A drain was inserted to relieve the pressure. Doctor Chandran said (AB 344) that there could have been other insult to the brain caused by the application of force, involving shearing or tearing of fibres. This would also have contributed to loss of consciousness. 59 As we have previously observed, there was evidence that the deceased had, following the first incident, been bleeding from a cut over one eye, that he said something to a security officer and then turned and walked thirty to forty metres. He turned and spoke to Culshaw and the appellant and walked into the middle of the road where the second incident occurred. Doctor Chandran did not consider that the rupture of the PICA could have occurred at the time of the first incident. He was of the view that a person who had suffered an application of force sufficient to cause damage to the PICA would be unlikely to be able to walk. The considerable bleeding which had occurred also influenced his opinion. Doctor Chandran said that there was no further bleeding from the artery whilst the deceased was in hospital. He based this view upon a follow-up brain scan which showed that the haematoma had not increased in size. A haematoma is clotted blood and would not drain away. That it remained the same size suggested that there was no continuing bleeding. 60 Doctor Chandran considered that only a fairly severe blow or a twisting blow would have caused the injury. The evidence demonstrated that the rupture of the PICA was a relatively large split (AB 351 l 45) in a small vessel. It had an external diameter of about two to three millimetres. Doctor Chandran said that it was highly unlikely that any injury suffered in the first incident could have resulted in the damage to the PICA, given the deceased's conduct following that fight and prior to the second incident. He said that where there was bleeding into the head, with an increase in intra-cranial pressure, blood vessels could go into spasm, causing a loss of consciousness. Concussion as a result of a blow to the head could also cause unconsciousness. 61 Doctor Jain, who performed an autopsy, dispatched the brain and spinal cord to Doctor M L Rodriguez, a forensic neuropathologist at the New South Wales Institute of Forensic Medicine. Doctor Rodriguez gave evidence. His report was exhibit U. He dissected the subarachnoid haemorrhage from the base of the brain under magnification and examined the various blood vessels. He discovered a split in the PICA measuring 0.3 x 0.1 centimetres. He offered the following comment (AB 451): "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 … ." 62 In his evidence in chief he said of the rupture to the PICA (at AB 196 - 197): "It was a haemorrhage enough to cause death in isolation … Without any other evidence of injury elsewhere in the brain. That amount of haemorrhage due to this cause will cause death." 63 He was asked as to the way in which this would occur and replied: "The effect of suddenly increasing the amount of material in the cranial cavity which is a fixed cavity, rapidly increases the pressure in the inter-cranial cavity so that at least transiently no blood gets to the brain … So the brain doesn't have the blood flow or oxygen and so it basically dies." 64 He was asked (at AB 197) as to the effects of a haemorrhage such as that suffered by the deceased and said: "The effect of a large subarachnoid haemorrhage, which is a haemorrhage beneath the arachnoid, which is a thinner membrane on the inside of the dura, would be a sudden loss of consciousness, usually sudden collapse and either death immediately or very soon afterwards." 65 At AB 198 l 9 he was asked about the rate of flow of blood from such a rupture and replied: "The only way the blood flows is down a pressure grading (?gradient). The blood pressure in the arteries is approximately 130, 140 millimetres of mercury. A man standing, the pressure in the subarachnoid space is maybe minus 5 millimetres of mercy, so there's a pressure grading (?gradient) of 145 millimetres of mercury, so there's a large outpouring of blood very rapidly." 66 He was then asked: "Like a spurting from ---?" 67 He replied: "Once the artery is breached, yes." 68 He said of the types of blow likely to cause an injury of this kind (at AB 199 ll 5 – 9): "It doesn't have to be rotational or sideways, something like that can do it or a blow to the side of the head or the neck. There's no specific one kind of blow or movement of the head that is always or only associated with this kind of injury." 69 At AB 200 ll 30 – 40 this passage appears: "And you understand that he was involved in a fight at one location where he received some blows to the head, at least one which resulted in a cut above his eye? --- That's correct. We understand that at that – after that point he's then apparently spoken to people, turned around, walked perhaps 30 metres up a slight incline, again turned around, walked backwards, spoken to people again, then been assaulted on a second occasion whereby approximately half a dozen punches hard to the head have occurred, some of which may have occurred without him seeing them coming and some of which may have occurred after he seemed to have become dazed? --- Yes. Taking that factual scenario into account, are you able to offer his Honour an opinion as to when the subarachnoid haemorrhage would have occurred? --- In my opinion the subarachnoid haemorrhage occurred during the second assault, and did not occur before – at the time of the first assault. And you base that on what? --- On the evidence in the literature that following this amount or this kind of injury, almost invariably the person drops and is either dead or deeply unconscious at the time of injury. If at the time of injury – I think I've asked you before, sir that there's immediate bleeding into that space, what effect does that have on the individual? --- Initially – well, it depends on how rapidly it is – it is bleeding. If the person is able to complain of – of a symptom, they will complain of probably the worst headache they've ever had in their life, and then they will collapse and be unconscious. In your opinion, is it – if this particular injury had been occasioned during, for example, at the time he received the cut above his eye, this haemorrhage to the artery, would he have been able to have done all of those other things, like walk or talk, et cetera? --- If he had the subarachnoid haemorrhage at the time of the first injury, no, I believe he would not be able to walk or talk or continue his normal functions." 70 In the course of cross-examination he agreed that he could not exclude the possibility that the injury had occurred in the first incident to the extent of "100 per cent" but he considered that it would be "Extraordinary (sic) unlikely". (AB 201-202) 71 Doctor Rodriguez was cross-examined at some length about the possible causes of unconsciousness following subarachnoid haemorrhage. He agreed that some experts might consider that it was the chemical effect of blood on brain tissue disrupting synapses. However he seemed not to accept that as a possible cause of unconsciousness in this case. (AB 203 ll 9 and 10) He considered that the probable cause of unconsciousness was increased intracranial pressure. He agreed that there was another hypothesis as to causation, namely blood pouring into spaces at the base of the neck in which delicate nervous processes are accommodated. (AB 204) 72 He was cross-examined concerning a reported case (Dolman) in which a fifty-seven year old man who had suffered rupture of the PICA had initially remained conscious and alert. (AB 208 – 209) Doctor Rodriguez pointed out that in that case, the CAT scan had demonstrated only a slight degree of subarachnoid haemorrhage. It was suggested to him that the amount of haemorrhage in the present case may have increased after injury and during the deceased's period of hospitalization. He replied that bleeding would not have continued into the brain and that a massive amount of haemorrhage had been noted on admission. Bleeding would not have continued for two reasons. Firstly the pressure gradient would have been reduced, presumably because the deceased was lying down. Secondly, clotting would have occurred. He had found some "fibrin clot" at the edges of the PICA. The evidence of Doctor Chandran was that there had been clotting. Doctor Rodriguez said that the PICA could not have continued to carry blood for a significant period of time after rupture. (AB 210 ll 10-16) He was referred to differing accounts of the deceased's condition at the scene of the second incident. Doctor Rodriguez considered that a person suffering from a ruptured PICA might well demonstrate some signs which could be interpreted as indicating consciousness. 73 At AB 216 Doctor Rodriguez agreed that of about 250 cases of subarachnoid haemorrhage reported in the literature up until 1998, only three were caused by rupture of the PICA, although the cause was not always known. (See also AB 219 ll 20-38.) There were also only three cases in which there had been some delay between injury and loss of consciousness. He said that such delay would probably be attributable to the relevant lesion being outside the dura. Alternatively, the lesion might be very small. (AB 216 l 36 – 217 l 7) In the present case the rupture was inside the dura. (AB 197 ll 36-39) He said at AB 218: "… we're talking about a large pressure grading (?gradient) across the vessel so that the blood would come out with – there'd be a large pressure gradings (?gradients) so a large amount of blood would come out rather rapidly, in most cases." 74 He was also asked at that page: "The size of the rupture, how would you describe that in relation to the artery,? --- Its very difficult to draw any conclusion about the size of rupture seen at autopsy versus the size of the rupture seen, or at the time of rupture or subsequently. Blood vessels normally get smaller after death, so the hole would look smaller than it would have at the time of injury. And there are a lot of other things which could effect the rate of blood emerging from the artery and the size of the hole, and things like that, which are not really addressable from the findings at the time of autopsy, 6 days after the injury." 75 The appellant called Doctor R B Collins, a consultant forensic pathologist. Doctor Collins said that there are a number of theories concerning the mechanism by which a victim of subarachnoid haemorrhage might lose consciousness Firstly, the raised intracranial pressure caused by the inflow of blood might produce a localized or generalized pressing effect on the brain which, if in the region of the brain stem, would affect the vital centres of the brain located in that area. Secondly, blood mixed with cerebral spinal fluid in the subarachnoid space might irritate the brain and cause spasm of delicate arteries or alternatively, might have a direct chemical effect on those areas. Thirdly there is the possibility that the trauma might rupture blood vessels or otherwise have a direct force effect on the vital centres of the brain. Fourthly the rupture of blood vessels might prevent the passage of blood to the vital centres of the brain. He said that there was no way of measuring the rate of flow of blood following a rupture of the PICA and that as the vessel was very small, a large amount of blood could not escape through any tear in a very short period of time. He considered that it was not possible to say with certainty that the PICA was ruptured during the second incident rather than in the first incident. He said that the deceased's loss of consciousness following the second incident could have been caused by one of two mechanisms, the first being the bleeding artery caused in one of the two events, and the second being the effects of concussion as a result of a blow inflicted during the second incident. 76 In the end the Crown case was that given the whole of the evidence of the deceased's conduct immediately after the first incident, the circumstances in which he became unconscious during the second incident, observations made of his condition at the hospital and the post-mortem findings, it was demonstrated beyond all reasonable doubt that the injury causing the rupture of the PICA occurred in the course of the second incident. The appellant's thesis was that because it is not possible to measure the rate at which blood flowed from the ruptured PICA, it is reasonably possible that the rupture was caused in the first incident and that the deceased became unconscious during the second incident, either as the delayed result of the bleeding from the PICA or as the result of concussion caused by one of the blows inflicted upon him during the second incident. Doctor Chandran and Doctor Rodriguez considered that it was "highly unlikely" (Doctor Chandran) and "extraordinary (sic) unlikely" (Doctor Rodriguez) that the rupture to the PICA was caused in the first incident. Doctor Collins offered the opinion that it was simply impossible to say whether this was so or not. At AB 426 ll 7 and 8 he said: "But it's my view that the initial trauma could not be excluded as an event which suitably ruptured that vessel." 77 Some facts are beyond challenge. The deceased was able to walk and talk immediately following the first incident and lost consciousness suddenly after the renewed attack upon him by the appellant and Culshaw. At the hospital a CAT scan revealed massive haemorrhaging which did not significantly increase thereafter, suggesting that the flow of blood had already ceased. On post-mortem examination of the brain Doctor Rodriguez discovered damage to the PICA which was undoubtedly responsible for the haemorrhage. 78 Doctor Rodriguez and Doctor Chandran, with knowledge of the extent of the damage, were of the opinion that unconsciousness would have followed almost immediately upon its occurring and that walking and talking would have been virtually impossible, or at least most unlikely. No doubt, as Doctor Collins said, different persons may react in different ways to such an injury, and it may be impossible to identify precisely the rate at which blood flowed from the damaged PICA. However Doctor Rodriguez pointed out that in a standing man, the intracranial pressure is negative and blood would flow rapidly from a ruptured vessel to the intracranial cavity at a relatively high pressure. 79 The appellant submitted that Miles CJ failed to appreciate, or to give appropriate weight to Doctor Collins' evidence. The defence case focussed upon the different mechanisms by which a person suffering from head injury might be rendered unconscious. This issue was said to be relevant in two ways. Firstly, if unconsciousness were caused by the haemorrhage, but as a result of some mechanism other than that described by the Crown medical witnesses, it might have taken longer to render the deceased unconscious than was suggested by those witnesses. Secondly, it was suggested that unconsciousness may have been attributable to some cause other than the haemorrhage, the only possible candidate being concussion as a result of a blow in the course of the second incident. In other words the appellant's case was that the deceased may have become unconscious in the course of the second incident because of: • the delayed effect of the ruptured PICA suffered in the first incident; or • concussion following a blow inflicted in the second incident which was unrelated to his subsequent death. 80 The first option appears to overlook the evidence which was much canvassed at the trial concerning the 250 reported cases of subarachnoid haemorrhage. In only three of those had instantaneous unconsciousness not occurred. Co-incidentally, only three cases involved rupture of the PICA. It was not suggested that they were the same three. Some were attributable to other causes and in some, the relevant causes were unknown. However in all of them, the subarachnoid haemorrhage caused the unconsciousness. The cause of the haemorrhage was not especially relevant; nor was the precise mechanism by which it caused unconsciousness. The only explanations offered for delay in the onset of unconsciousness after such a haemorrhage were that the bleeding was outside of the dura or that the lesion causing the haemorrhage was very small. It is known that the present haemorrhage was inside the dura. Doctor Chandran considered the lesion to be large. (AB 351 l 44) Doctor Rodriguez certainly considered that it was large enough to cause instantaneous unconsciousness. 81 As to the possibility of a supervening cause of the deceased's unconsciousness, the Crown may not have excluded the possibility of concussion as the result of one of the blows in the second incident. The question is, however, whether the Crown excluded any reasonable possibility that the PICA was ruptured in the first incident. The cause of the deceased's collapse during the second incident is not decisive. In the view of Doctors Chandran and Rodriguez, it is only relevant that he did not collapse at any earlier point. Even if his collapse were the result of concussion caused in the second incident, he must, on their approach, also have suffered the rupture of the PICA during that incident. His Honour's reasons must be seen in that context. 82 In par 71 Miles CJ discussed the different mechanisms for causing unconsciousness and at par 72 he observed: "However, as I understand it, Doctor Collins did not suggest that any of those applied in the present case. The focus is therefore on the effect of the subarachnoid haemorrhage." 83 It was suggested that this reflected a misunderstanding of Doctor Collins' position and that he had suggested that one or other of these other mechanisms may have caused unconsciousness. We do not understand Doctor Collins to have disputed that the subarachnoid haemorrhage would have, relatively quickly, caused unconsciousness. The actual mechanism by which that would have occurred is not strictly relevant. It was not, as far as we know, considered in the 250 reported cases. Apart from the haemorrhage, the only other possible cause of unconsciousness was concussion from a blow in the second incident, but as we have pointed out, that was not decisive. 84 The appellant also criticized his Honour's observation in par 78 that: "If it is true, as was submitted, that Doctor 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." 85 In the course of argument we were referred to AB 354 as the relevant passage in the evidence of Doctor Chandran. Doctor Chandran may not have excluded absolutely the theoretical possibility of a loss of consciousness attributable to trauma to the brain rather than increase in intracranial pressure, but the thrust of his evidence as to what happened in this case was certainly to the contrary. In any event, for reasons already given, the observation made by his Honour in the last sentence of par 78 is correct. 86 This case involved the assessment of professional opinions. Doctor Chandran and Doctor Rodriguez formed such opinions and offered them. They were tested in cross-examination and accepted by the learned trial Judge to the requisite standard. That Doctor Collins was more cautious in his views did not necessarily mean that his Honour could not act on their evidence. We see no justification for the allegations of error in his Honour's findings. We also see no basis for treating the conviction as unsafe and unsatisfactory. The case was disposed of upon a careful consideration of the evidence. We are left with no discomfort or lurking doubt concerning it. The appeal against conviction must be dismissed. Appeal against sentence 87 As we have observed, the appellant was sentenced to seven years' imprisonment with a non-parole period of four years, both periods to date from 24 April 2001. Whatever may be said about the first incident, it is clear that the deceased contributed little, if anything to its causation. It is also clear that by the time he became engaged in the second incident, his face was already bleeding. He walked away from the first incident but was pursued by Culshaw and the appellant. There was a suggestion that he offered some insult or threat to them, but it seems most unlikely that any such conduct played a role in causing the second incident. It was an unjustified attack upon a person who was already injured and had withdrawn from the fray. Further, it was an attack by two men on one, involving repeated blows inflicted upon a man who was not intending to fight and was not trying to retaliate. It may be that death occurred as the result of a sequence of events which could not have been precisely foreseen, but that is always a possibility when people resort to violence. For that reason, the deterrent effect is important in sentencing in such cases. Against these factors, and going in mitigation are the appellant's age, his previous good character, his very unfortunate background and the role played by the consumption of alcohol. As to the latter consideration, criminal misconduct, including violence causing death, is so often the result of intoxication that there is only limited scope for treating it as a mitigating factor. 88 In the end the appellant's argument was simply that a lower sentence than that imposed would have been sufficient for all relevant purposes. There was no suggestion that any relevant principle or factual consideration was overlooked, misunderstood or given inappropriate weight and that effectively disposed of the appeal against sentence. Given the way the argument developed, however, we consider it appropriate to refer to the cases relied upon by the parties. The Crown relied specifically upon two New South Wales decisions, R v Williams [2000] NSWCCA 136 and R v Kenta No SCC 81 of 1987. Williams killed his mother by striking her around the head while he was drunk. He had previously been convicted of one other assault upon her. The learned sentencing Judge found: "I am satisfied that this offence arose out of domestic circumstances in which the prisoner found himself and that he does not represent a danger to the community. I think it most unlikely he will offend again. For all practical purposes he is a man of good character." 89 There had been some delay in bringing him to trial. He was sentenced to a maximum period of imprisonment of eight years to serve a minimum of six. However this was backdated to his arrest on 13 September 1995. The Court of Criminal Appeal considered that the sentence was not excessive in the circumstances. 90 As to R v Kenta, it seems that Kenta pleaded guilty to manslaughter. He had struck his victim twice in the face and then kneed him in the stomach. When the deceased collapsed he kicked him in the neck. Kenta was aged seventeen at the time and had no criminal history. He was slightly affected by liquor. On a Crown appeal his sentence was increased to six years' imprisonment with a non-parole period of three years. His offence lacked the additional aggravating feature of having been committed in company. He was also significantly younger than the present appellant. Given that the sentence was increased on appeal, it is also likely that it was somewhat more lenient than would have been appropriate at first instance. 91 We should also refer to R v Gunn (SC of Victoria 1617 of 1993). In that case two brothers in their twenties pleaded guilty to manslaughter. Prior to the offence there had been an exchange in which one of them had interpreted a remark by the victim as insulting. Some time later, after consuming alcohol, they went to his home, beat him around the head and kicked him in the head. The victim died of asphyxiation as a result of bleeding from his injuries. There was evidence of remorse and good prospects of rehabilitation. Each was sentenced to five years' imprisonment with a non-parole period of three years. The maximum penalty for manslaughter at that time in Victoria was fifteen years, whereas in the ACT at present, the maximum penalty is twenty years. All three sentences appear to be in line with that in the present case. 92 Counsel for the appellant relied primarily upon two decisions. The first was R v Risteski [1999] NSWSC 1248. Risteski pleaded guilty to manslaughter. He and the deceased were drinking in a club, each in a separate group. A glass was thrown from the deceased's group to the other, and a confrontation ensued. Whilst the deceased was involved in a verbal exchange with a friend of Risteski, the latter attacked him, hitting him in the side of the neck and throwing another punch at him as he fell. He then kicked him in the area of his head. The deceased was, at the relevant time, twenty-two and was twenty-four when sentenced. He had previously been dealt with for theft and for drink-driving. The learned sentencing Judge treated the theft count as irrelevant but treated the drink-driving as relevant, being "indicative of excessive drinking". Risteski attributed the assault to "too much alcohol". He was sentenced to a minimum term of three and a half years imprisonment with an additional term of two years. We take this to mean a maximum sentence of five and a half years and a minimum of three and a half. Given that the attack was by one person upon another (rather than "two on one") and that Risteski pleaded guilty to manslaughter, the present case can be seen to call for a heavier sentence. 93 The second case relied upon by the appellant was the decision of the New South Wales Court of Criminal Appeal in R v Khouzame [2000] NSWCCA 505. Khouzame had killed a youth who was in a group of boys of Turkish background who had assembled in the vicinity of his home. He told them to leave the area but they failed to do so. He emerged from his house, took off his shirt and pulled up a garden stake. He struck the deceased in the head with it. He appears to have been of previously good character. The learned sentencing Judge apparently doubted the accused's claim to be remorseful. Khouzame was sentenced to five years' imprisonment, to serve a minimum of three. Greg James J concluded that: "…having regard to the range of sentences available for manslaughter on the facts of this offence, I am not persuaded of the submission that the sentence was so disproportionate as to show error." The other members of the Court agreed. 94 The maximum penalty in New South Wales at the relevant time was twenty-five years. Whereas Khouzame involved an act committed in a moment of anger, the present case involved a sustained attack upon a man who was already injured. Further, the attack was committed in company. It is true that in the present case no weapon was used, and it is also true that the relevant maximum penalty was lower than that which was applicable in Khouzame. It may be that the sentence in this case is, all things taken into account, slightly more severe than that imposed in Khouzame,but that does not place it beyond the range appropriate to the exercise of the sentencing discretion. We are more inclined to the view that the sentence in Khouzame was somewhat lenient, but it was not the subject of a Crown appeal. We detect no miscarriage of the sentencing discretion. 95 We have previously referred to Culshaw's appeal against sentence. He was sentenced to seven years' imprisonment, with a non-parole period of five. We have allowed his appeal, reducing his sentence to six years' imprisonment, with a non-parole period of three-and-a-half. As appears from these observations and those we have made in disposing of Culshaw's appeal, we consider that both sentences were appropriate, save that Culshaw's did not adequately recognize his plea of guilty and co-operation with the Crown. There is no other proper basis for distinguishing between Culshaw and England. 96 England's appeal against sentence should be dismissed. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black CJ and Justices Spender and Dowsett. Associate: Dated: 21 December 2001 Counsel for the Appellant: Mr P Willee QC Solicitor for the Appellant: pappas, j - attorney Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: Director of Public Prosecutions (A.C.T.) Date of Hearing: 8 November 2001 Date of Judgment: 21 December 2001