Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sica v Brophy [2020] NSWCA 181 Hearing dates: 24 April 2020 Decision date: 20 August 2020 Before: Basten JA at [1]; Payne JA at [2]; McCallum JA at [5] Decision: Appeal dismissed with costs Catchwords: TORTS — Defences — Self-defence — factual contest as to whether elements of defence under s 52 of the Civil Liability Act 2002 established APPEALS — From finding of fact — Credibility of witnesses — where primary judge had advantage of seeing principal witnesses give evidence CIVIL PROCEDURE — Court of Appeal — requirement in r 51.36(2) of the UCPR to include a statement setting out the findings of fact challenged and the findings contended for — where appellant's grounds of appeal predominantly challenged primary judge's findings of fact but failed to comply Legislation Cited: Civil Liability Act 2002 (NSW), ss 52, 53 Evidence Act 1995 (NSW), s 136 Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2) Cases Cited: Dearman v Dearman (2008) 7 CLR 549 at 561; [1908] HCA 84 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Category: Principal judgment Parties: Adriano Sica (Appellant) Travis Brophy (Respondent) Representation: Counsel: B Dooley SC, L Katsinas (Appellant) A Williams (Respondent) Solicitors: Kalpaxis Legal (Appellant) Danny Eid Lawyers (Respondent) File Number(s): 2019/216946 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 14 June 2019 Before: Olsson SC DCJ File Number(s): 2018/074839 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: I agree with McCallum JA. 2. PAYNE JA: The Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2) (UCPR) requires in every appeal a statement to be filed accompanying the written submissions identifying the findings of fact which are challenged and the alternative findings contended for. In South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [135], Leeming JA (with whom Basten and Meagher JJA agreed) remarked that it was: "… not for this Court, in order to resolve a factual challenge advanced by an appellant, to trawl through the entirety of the record in order to collect and then evaluate the relevant evidence … Based on the limited submissions advanced on appeal, I would not conclude that the finding of the primary judge is one which should be disturbed on appeal.". 1. It is of particular importance, especially in a fact intensive matter such as the present appeal, that the procedure required by the UCPR is adhered to. That procedure does not represent a procedural option. 2. I have read the reasons of McCallum JA in draft. I agree with the orders proposed by her Honour and with her Honour's reasons. 3. McCALLUM JA: Adriano Sica brought proceedings in the District Court against his neighbour, Travis Brophy, claiming damages for personal injury after an altercation between the two men. He sustained injuries including a laceration to the head that required sutures and an injury to the shoulder (a torn rotator cuff). The principal factual contest at the hearing was whether Mr Brophy acted in self-defence. 4. Prior to the commencement of the civil action, Mr Brophy faced criminal proceedings after being charged with an offence of assault occasioning actual bodily harm against Mr Sica. He gave evidence in those proceedings that Mr Sica struck him first. The magistrate evidently rejected that evidence and found Mr Brophy guilty. However, in the civil proceedings in the District Court, the primary judge (Olsson SC DCJ) accepted that Mr Brophy had established the elements of self-defence stated in s 52 of the Civil Liability Act 2002 (NSW) and accordingly entered a "verdict" for the defendant (the appropriate order would have been to enter "judgment" but nothing turns on that). Against the risk of error in that conclusion, her Honour notionally assessed Mr Sica's damages in the sum of $129,056.83. 5. Mr Sica appeals from that decision. The appeal is confined to the issue of liability. There is no cross-appeal or notice of contention. Proceedings before the primary judge 1. In the proceedings before the primary judge, Mr Sica gave evidence and also called as witnesses his wife, Tatjana Meloni, and his daughter, Nikita Sica. Mr Sica denied hitting Mr Brophy and said he was "king-hit" by Mr Brophy as he walked away from him. Mr Sica's wife and daughter gave evidence generally supportive of his account. Mr Sica also tendered a bundle of documents which included the transcript of the evidence in the criminal proceedings in the Local Court but not the magistrate's reasons for decision. The transcript was admitted without objection and, although it was tendered for a specific purpose (which is no longer relevant), no ruling was sought pursuant to s 136 of the Evidence Act 1995 (NSW) limiting the use to be made of it. Both parties used the transcript for different purposes throughout the hearing in the District Court. It included the evidence of Mr Sica, his wife and his daughter given in the Local Court. 2. The defence case in the action in the District Court consisted of evidence given by Mr Brophy and his wife, Skye Brophy, each of whom said that Mr Sica had hit Mr Brophy before Mr Brophy punched Mr Sica. 3. There were three additional witnesses in the Local Court who had also given evidence that Mr Sica struck the first blow. The first was Mr Brophy's nephew, Jye Hall. Mr Hall was a co-accused in the criminal proceedings where he gave evidence in his own defence. The other two witnesses who supported Mr Brophy's account in the Local Court were his sister-in-law, Renae Foley and Jye Hall's partner, Shannon Coleman. Mr Brophy did not call any of those three witnesses in his defence in the proceedings in the District Court. However, as already noted, the transcript of their evidence was tendered by Mr Sica and was available for all purposes. 4. There were accordingly accounts of the incident from eight witnesses, five of whom gave sworn evidence before the primary judge. The findings of the primary judge 1. The hearing proceeded over two days. With commendable diligence and efficiency, the primary judge gave her judgment orally the following morning. The issues her Honour was required to determine were relatively narrow. Counsel for Mr Brophy accepted that he bore the onus of establishing the elements of self-defence in s 52 of the Civil Liability Act 2002 (NSW). That section provides: 52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding-- (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary-- (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only-- (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass. 1. In accordance with the terms of those provisions, the three elements Mr Brophy had to establish in order to make good the defence were: 1. that, in punching Mr Sica, he was responding to conduct that was unlawful (s 52(1)); 2. that he believed the conduct was necessary to defend himself (s 52(2)); 3. that the conduct was a reasonable response in the circumstances as he perceived them (s 52(2)). 1. The primary judge was satisfied that Mr Brophy had established those three elements. As to the first, her Honour said at [49] (the finding appears in the middle of an indented quote of s 52): "I just pause there to note that the conduct of Mr Sica in the very least assaulting [Mr Brophy] in the sense that he came right up to him and lunged at him, I accept that it was unlawful." 1. As to the second and third elements, her Honour held at [50]: "I accept that [Mr Brophy] did believe that it was necessary to defend himself. The next question is whether or not it was 'a reasonable response in the circumstances as he or she perceives them'. In my view it was a reasonable response. The two men were very close together. Mr Brophy thought that he was going to be head-butted. He thought that he had been struck. Hitting or punching the other party away does not seem to me to be unreasonable." 1. In light of those findings, it was not necessary for her Honour to consider the issues raised by s 53 of the Civil Liability Act, which had been addressed in the alternative by counsel for Mr Brophy. That section applies in circumstances where a defendant establishes the first two elements of the defence but fails to establish that the conduct was a reasonable response in the circumstances as he or she perceived them. In such a case, the section provides that the Court is nevertheless not to award damages against the person in respect of the conduct unless the Court is satisfied that the circumstances of the case are exceptional and that, in the circumstances of the case, a failure to award damages would be harsh and unjust. 2. In his written submissions in this Court, with commendable frankness, counsel for Mr Brophy drew the Court's attention to the possibility, based on s 53, of only partial success of Mr Brophy's defence under s 52. However, Mr Sica did not challenge the primary judge's conclusion as to the element of reasonableness. Accordingly, it is not necessary to consider s 53. Factual challenge to demeanour-based findings 1. Apart from a passing reference to s 52 of the Civil Liability Act, Mr Sica's grounds of appeal primarily concern the factual findings (and incidentally the reasons) of the primary judge. It is unfortunate in that circumstance that the appellant's written submissions did not comply with the requirements of r 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW) to include a statement setting out the findings of fact challenged and the findings contended for. The appellant sought to rectify that omission during argument by identifying the following findings contended for (there was still no specification of the findings challenged): "1. That the appellant did not strike the respondent. 2. When the respondent struck the appellant there was no imminent threat to the respondent. 3. The appellant had commenced to turn away from the respondent when the respondent struck the appellant on the left hand side of his face. 4. The respondent was angry immediately prior to the assault." 1. For the purposes of s 52, the appellant stated that the inferences contended for were "that the appellant was not acting unlawfully and that the respondent was not in the process of defending himself." 2. The second inference does not engage with the language of s 52 and would be inconsistent with the primary judge's findings that Mr Brophy believed his conduct was necessary to defend himself and that his conduct was a reasonable response in the circumstances as he perceived them. There was no explicit challenge to either of those findings. 3. The evidence concerning the findings and inferences contended for is confined to the accounts of the eight witnesses to the incident. It is not suggested that there is any inconsistent fact incontrovertibly established by evidence of the kind that warranted setting aside the findings of fact of the trial judge in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. Accordingly, while this Court is obliged to give effect to its own assessment of the evidence, it must in doing so observe the "natural limitations" that exist in the case of any appellate review that proceeds wholly by reference to the record of the trial: Fox v Percy at [23] (Gleeson CJ, Gummow and Kirby JJ) citing Dearman v Dearman (1908) 7 CLR 549 at 561; [1908] HCA 84. 4. The appellant submitted that that usual qualification is less important in the present case because the primary judge relied to a significant degree on the transcript in the Local Court. As already noted, that included transcript of the evidence of three witnesses not called at the hearing in the District Court (Mr Brophy's nephew, Jye Hall; Jye's girlfriend, Shannon and Jye's mother, Renae Foley). It may be accepted that this Court is in as good a position as the primary judge to assess the transcript of the evidence of those three witnesses. However, as to the five witnesses who did give oral evidence in the District Court, including the two main protagonists in the case, her Honour had the advantage of seeing and hearing those witnesses, an advantage this Court has not had. This Court's consideration of that evidence must pay due regard to the advantage the primary judge had in that respect. 5. A number of Mr Sica's grounds of appeal assert that the primary judge "failed to use and/or palpably misused her advantage" in making findings of fact (one ground asserts that her Honour "palpably misused her position to her advantage" but that must be taken to be a transcription error). As observed by Basten JA during the hearing of the appeal, it is difficult to know what to make of the expression "palpably misused" in that context. I acknowledge that it is a formulation endorsed in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78, derived from the speech of Lord Sumner in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47. The whole of the relevant passage is as follows: "None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone." (citations omitted) 1. Those remarks and subsequent decisions considering the same issue were analysed at length in the separate judgment of McHugh J in Fox v Percy. That discussion reveals that the expression "palpably misused his or her advantage" means no more than that the "misuse" of the advantage enjoyed by the trial judge may be demonstrated (is "palpable") by reason of the existence of incontrovertible facts or uncontested testimony demonstrating error in the judge's conclusion or where the decision was glaringly improbable or contrary to compelling inferences. His Honour said at [90]: "It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq), for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it." 1. In my respectful opinion those remarks, while formulating the same task in a different way, offer a more helpful approach than to ask whether the primary judge has "palpably misused his or her advantage." The important inquiry where a trial judge has made demeanour-based findings is to identify some aspect of the evidence (or the reasons) "that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witnesses". Grounds of appeal 1. Against that analysis, it is appropriate to set out the grounds of appeal in full: "1 The Trial Judge erred in finding that the respondent acted in self-defence pursuant to the provisions of s 52 of the Civil Liability Act ("CLA"). 2 The Trial Judge erred in finding that it was significant (presumably in relation to credit) that the appellant; (a) Denied using the words 'tell your missus what I know and who I know'. (b) Gave evidence of a loss of consciousness. (c) Heard his daughter say '[come on, come on] have a go, hit a girl'. (d) Heard a conversation that Jye was told to 'get stuck in'. (e) In doing so, the Trial Judge: i Failing (sic) to give any or any adequate reasons for such finding. ii Explained the significance of it, yet at the same accepting variations in evidence between the Local Court and District Court. 3 The Trial Judge erred in finding that the respondent was attempting to placate the appellant and not angry. (a) Failed to use and has palpably misused her position to her advantage. (b) Failed to give any or any proper reasons for such finding. (c) Failed to take into account the full circumstances leading up to the altercation including; i The respondent had been playing loud music and drinking for a period of 5 to 6 hours whereas the appellant was at home with his family carrying out household chores. ii The respondent who left his own premises and walked to the appellant's premises (or made no relevant finding as to where the assault took place). iii That the respondent was upset and angry and advanced upon the appellant. iv Failed to give consideration that the respondent could have at any time withdrawn and had in the immediate vicinity another male who had accompanied the respondent to the appellant's property. 4 The Trial Judge erred in failing to give any or any adequate reasons and improperly misused her position accepting the evidence of the respondent as to the circumstances of the assault and finding when; (a) The respondent did not know what really happened, but that he accepted that somehow a part of his body connected with the appellant. (b) That such evidence was different from what was given in the Local Court. (c) The appellant's injuries could not have been caused by a mere flail of arms due to the seriousness of injury requiring 6 stitches and therefore must have been by way of a closed punch. (d) The respondent accepted that he did not tell the police that he was struck first, nor returned to the police station to set the record straight. (e) That the punch was a clubbing, over the shoulder, at shoulder height downwards and not a hook, and explain how that physically would occur when the Trial Judge had found that the 'two men were face to face and very close to each other'. (f) Such proposition was not pleaded as part of the Respondent's sworn defence in these proceedings. 5 The Trial Judge erred in finding that the respondent believed he was going to be 'head-butted' immediately prior to the assault and in doing so; (a) Failed to use and/or probably missed her advantage. (b) Failed to give any or any proper reasons for the conclusion. (c) Failed to consider all relevant evidence. 6 The Trial Judge erred in finding that no pellets from the shot gun were found, nor a firearm and photographs of the damage occasioned, was a 'significant omission' and in doing so; (a) Failing [sic] to give any or any adequate reasons for such finding. (b) Failed to take into account relevant evidence. (c) The noise was consistent with that of a weapon being discharged was heard by the appellant, Ms Meloni and two other neighbours. (d) There was no evidence that could be expected that there would be shot gun pellet markings which ricochet and found either on the shed or on the appellant's vehicle. (e) The police officer Brendan Dobbs that there was complaints from two other neighbours of the discharge of a weapon, and that searching for such small items was quite hard to do in the circumstances. 7 The Trial Judge failed to give any or any adequate reasons, and refer to all relevant evidence and the Trial Judge failed to use and/or palpably misused her advantage in finding that Ms Tatjana Meloni did not witness the event. 8 The Trial Judge failed to give any or any adequate reasons, and refer to all relevant evidence and the Trial Judge failed to use and/or palpably misused her advantage in finding that Ms Nikita Sica did not witness the event." 1. Ground 1 was not addressed separately by Mr Sica and may be seen in effect to rehearse or flow from the remaining grounds, which are entirely factual (or else attack the adequacy of the reasons). 2. There is no merit in ground 2, which is directed specifically to the primary judgment at [38]. In that paragraph, the primary judge stated four matters her Honour regarded to be "of significance". That was not a finding of fact; it was an exposition of part of her Honour's reasons for findings recorded elsewhere. The significance of the matters listed is obvious; they all relate to Mr Sica's credibility. The primary judge's assessment of those matters was aided by her ability to see Mr Sica in the witness box. The appellant has identified no objective or incontrovertible evidence that points decisively (or even persuasively) to error on the part of the primary judge in acting on her impressions of the witnesses in her assessment of the significance of those matters. The submissions in support of this ground went no further than to present a tendentious reading of the evidence. 3. Further, contrary to the assertion in ground 2(e)(i), the reasons for her Honour's conclusions are stated within [38] itself or else are obvious (she was identifying inconsistencies). In that paragraph, there is an obvious punctuation error in that the first sentence of par (ii) should be the last sentence of par (i). I have made that correction here: "[38] I regard the following matters as of significance: (i) In the Local Court the plaintiff denied saying the words 'Tell your missus what I know and who I know.' He gave that evidence in these proceedings. (ii) He gave evidence in these proceedings that he had a loss of consciousness and of being kicked but he had to concede that the loss of consciousness had never been raised before and the hospital notes record no loss of consciousness. It is difficult not to conclude that his evidence was embellished in this respect. He explained it by saying he was embarrassed by it but that is not logical and does not appear to be credible to me. (iii) He expanded his evidence regarding his daughter's response to the incident. He said he heard Nikita say to the defendant, 'Come on, come on, have a go, hit a girl.' (iv) He said that Jye was told to 'get stuck in' but this evidence was not mentioned or put into his statement before police." 1. I am not persuaded that there is any error in that reasoning. 2. Grounds 3 to 6 similarly rest on a tendentious account of the evidence which fails to identify anything that points decisively or even persuasively to error on the part of the primary judge in acting on her impressions of the witnesses. In accordance with the authorities considered above, that is reason enough to reject those grounds. It is nonetheless appropriate to explain my own reasons for agreeing with her Honour's conclusions, which I have done below. 3. Grounds 7 and 8 assert an absence or inadequacy of reasons for finding that Mr Sica's wife and daughter "did not witness the event". The primary judge made no such findings. Her Honour did make findings to the effect that, unlike the witnesses for the defence, Ms Meloni and Ms Sica may have looked away in the instant immediately before Mr Brophy punched Mr Sica and so may have missed part of the critical event. As I will explain, her Honour's reasons for those conclusions were adequate and indeed compelling. Evidence before the primary judge 1. The evidence may be summarised as follows. On 4 February 2017, Mr Sica was cleaning a chicken incubator in his backyard when he heard what he believed to be a shotgun blast coming from Mr Brophy's neighbouring property. He was familiar with the sound of a shotgun having been on hunting excursions in his youth. Following the blast, Mr Sica heard what he believed to be shotgun pellets ricochet off one of his sheds and the back tray of his ute. 2. There was evidence in the Local Court proceedings that other neighbours also heard a sound like the firing of a shotgun at around that time. However, there was no evidence that Mr Brophy or anyone on his property was the source of the noise. 3. Mr Sica was angered by his belief that he had heard a shotgun because his children were playing in the backyard. He approached the boundary fence between his and Mr Brophy's properties. He stood on some timber to get a view over the fence and saw Mr Brophy, Mr Brophy's wife (Skye Brophy) and their nephew (Jye Hall) in the backyard drinking alcohol and listening to loud music. Mr Sica berated them for firing a shotgun ("Don't fucking do that here"). There was difficulty hearing those words because the music was turned up very loud. Mrs Brophy approached the fence and made placatory remarks. Mr Sica then said to Mr Brophy "You tell your missus what I know and who I know". Mr Sica denies that this was a threat and said he was "just basically trying to put a bit of fear into [Mr Brophy]". After that exchange, Mr Sica went inside his house to tell his wife about what had happened and then returned to cleaning the incubator outside. 4. A few minutes later, Mr Sica heard Mr Brophy calling for him from a side street that runs between the two properties. Mr Sica approached his side gate and walked through it so that the two men were standing on the side of the road, just outside the gate. There was an exchange of words before a physical altercation took place. During the altercation Mr Sica fell to the ground. Mr Brophy did not deny that he hit Mr Sica but claimed that it was in self-defence. 5. Apart from the fact that other neighbours also heard a sound, there was no objective evidence that a shotgun was in fact discharged, still less that shotgun pellets ricocheted off Mr Sica'sshed or vehicle. Although that is undoubtedly what Mr Sica perceived, he accepted that he did not see a shotgun or any shotgun pellets. Police searched Mr Brophy's property, assisted by a specially trained police dog, and found no firearms or pellets. Both Mr Brophy and his wife denied that they had ever kept or used firearms on their property. 6. Mr Brophy's evidence in both the District Court and the Local Court was that Mr Sica had hit him first. In the District Court, he said Mr Sica "charged at my face" and recalled thinking that Mr Sica was going to headbutt him. He said he then felt an impact to the side of his face. He assumed that the impact was Mr Sica punching him, but did not actually see the blow. 7. In cross-examination Mr Brophy maintained that he had thrown his hands up in defence with his eyes closed and then felt a blow on the left side of his face. He denied throwing a punch when Mr Sica was not looking at him and denied being the first one to throw a punch. When asked why his own affidavit did not mention Mr Sica throwing the first punch, Mr Brophy said that the version he had just detailed was the correct version of events. 8. Mr Brophy gave similar evidence in the Local Court. In cross-examination, he described the incident in the following terms: "[Mr Sica] lunges at me. His whole body is coming towards me. His face is like that. I clinch my eyes; I throw a punch; it connects. I felt that in my hand. I throw another punch; it doesn't connect. He's already on the way down." 1. Mrs (Skye) Brophy gave evidence in the District Court that she had just re-entered her house following the exchange at the fence when she heard yelling. She then "raced out the front door to go around to see what was going on". She walked up the side road between the two properties and was about 5-10 metres away when she saw Mr Sica use his fist to "swing a hit" at her husband, Mr Brophy. In cross-examination she stated that she had observed the altercation from the middle of the street and confirmed that she was at a distance of between 5-10 metres. She denied that her husband had hit Mr Sica first. 2. That was consistent with her evidence in the Local Court. She said she heard yelling as she entered her house through the back door. She said: "me and Shannon raced out the front door and then went up the street and as we got up near the street we could hear him screaming and swearing, and that's when I seen [Mr Sica] hit my husband in the face, and then they did start to scuffle after that." 1. Mrs Brophy stated that she was on the road and "about five to ten metres away" from where the two men were standing. When asked to indicate a relatively similar distance inside the courtroom, she conceded that the distance may have been closer to 10 metres. In cross-examination the prosecutor asked Mrs Brophy if she saw the entirety of the altercation. She confirmed that nothing had been blocking her view and denied missing any part of the altercation: "Q: There's no chance you could have missed anything that happened beforehand? A: No. Well, from what I seen, like, that – to me, that, from what I seen was obviously the first hit to me. Q: Other than the fact, of course, that if you hear yelling, let's say it gets physical at that stage, by the time you get out there you wouldn't miss that? A: Yeah. No, well, it seemed to me that they were still yelling when I was coming along that road, and then, the hit happened. So – well, if something happened before, you know, possibly, but not from what I'm gathering from what I seen." 1. Mr Sica's evidence in the District Court was that he had heard Mr Brophy calling for him from the side gate. As he proceeded towards the gate he saw Mr Brophy waiting on the other side. After going through the gate, he said he was "hurled a whole lot of abuse". Mr Sica said to Mr Brophy "Listen, I've had enough. Get the fuck out of my face" and then started to turn to walk back through the gate. It was Mr Sica's evidence that at that point he felt a "massive blow" to the left side of his face and that he fell to the ground and "may have lost consciousness for a few seconds". He confirmed that he saw, from the corner of his eye, that it was Mr Brophy who had hit him. 2. In cross-examination, Mr Sica agreed that his wife had warned him not to go out when Mr Brophy yelled for him, but he denied that he approached the gate intending to fight. As to who struck the first blow, the following questions were put to Mr Sica: "Q: Something else important happened before Mr Brophy hit you and that was that you lunged at Mr Brophy and struck him in the face? A: No. Q: That's something else you've overlooked to mention; that's right, isn't it? A: No." 1. In the Local Court, Mr Sica gave evidence that he had heard a shotgun blast, berated his neighbours over the fence and was then called outside by Mr Brophy. He stated that they had exchanged heated words and that, when he began to turn away from Mr Brophy, he "copped a king hit" on the left side of his face. In cross-examination, Mr Sica denied saying "Tell your wife who I know and what I know" when he spoke to Mr Brophy over the fence. He also denied throwing the first punch: "Q: At that point you lunged at Mr Brophy? A: I deny that. I did not go out there to fight. I was in slippers and a singlet. Q: You in fact hit him first on the – A: Not true. Q: --on the right side of the face next to his eye? A: Not true. Q: No? A: No. Q: I'll put it to you that's what happened? A: No Q: It was after that Mr Brophy threw some punches back at you? A: No. Q: You ended up on the ground? A: That's not what happened." 1. In the Local Court, Mr Sica did not give any evidence about losing consciousness. 2. The evidence of Mr Sica's wife, Tatjana Meloni, in the District Court was that she and Mr Sica were sitting on their back deck having a smoke when they heard Mr Brophy yelling out from the side street, "Adrian, I need to talk to you. Adrian." She told Mr Sica not to go out, but he walked towards Mr Brophy anyway. 3. Mrs Meloni remained on the back deck as she observed Mr Sica go through the side gate in order to speak to Mr Brophy. She said the general thrust of the verbal exchange was that "Travis was going off at Adrian for popping his head over his fence and Adrian was yelling back". She gave evidence that from where she was standing she was able to see both Mr Sica and Mr Brophy. A bundle of photographs was tendered depicting Mr Sica's back porch and the line of sight that she would have had towards the side gate. 4. Mrs Meloni confirmed that she did not go inside while the exchange was happening; she was gathering her children together to get them inside. She said that as her husband turned to come back through the gate she saw Mr Brophy punch him on the side of his face. She then observed her husband fall to the ground. 5. Mrs Meloni gave much the same evidence in the Local Court. She said that she was on the back deck when she heard Mr Brophy call out to her husband. She said that she warned her husband not to go out, but that he went anyway and the two men started arguing and yelling at each other. Mrs Meloni said she told her daughter, Nikita, to go and stand with Mr Sica while she herself gathered up her two younger children and took them towards the back door. She then saw her husband, Mr Sica, turn to come back in the gate when he was punched in the face by Mr Brophy. She confirmed that she had an unobstructed line of sight: "Q: You were able to see that from where you were? A: Yes. Q: How far away were you at that time? A: Probably 7-8 metres as well. Q: You're about 7-8 metres away from them? A: Yes. … Q: Was there anything blocking your view? A: No. Not where they were standing. Q: Not where they were staying? A: Yeah. Q: You said were trying to perhaps gather, for a better word, your other children? A: Yes. Q: Are you still maintaining looking at Adriano and Travis though at the front, or had you— A: Yeah. So I brought the children to the back door of the house and that's when I've looked up to the back gate, side gate, and I've yelled out to Adrian, 'Come' 'come back inside', and that's when Adrian's gone to turn – this is while I'm still looking at him – and that's when he's been punched. Q: Do you see where the punch collects Adrian, or where it hits him? A: Yes." 1. In cross-examination in the Local Court, she denied telling her husband "don't fight" as he approached Mr Brophy. It was put to her that she had an obstructed view and was distracted by her children: "Q: I put it to you that the view from your back door looking down to where they were standing is obscured by a hedge and the garage? A: There's about a 2 metre walkway to the back gate, and that's a clear view. Q: Whilst they were standing in – A: That's exactly where they were standing, right in front of that gate. Q: Right in that perfect spot there? A: That's correct. Q: If they were standing outside of that area you couldn't see them at all? A: Well, that's right. After Adrian got hit is when he fell towards the front of the garage, and that's where I couldn't see any longer. … Q: Is it possible, ma'am, that you were distracted by your children and miss [your husband hitting Mr Brophy]? A: No." 1. Plainly, that evidence admitted of the possibility that Mrs Meloni turned away at the critical point. The evidence of Mr Sica's daughter, Nikita, similarly indicated that her attention was divided between the altercation and her dog and that, if there was a blow by her father, she may have missed seeing it. In the District Court, Nikita said that a few minutes after the exchange over the back fence she heard Mr Brophy yell to her father from the side gate. She said that she was standing at the back door looking towards the side gate as her father walked through it. She confirmed that she went and stood with her father outside the gate when her mother instructed her to do so: "Q: You say that you went over to the gate, exited the gate? A: Yes, I walked out to where dad was. Q: At that time as you're facing out the gate where was your dad in relation to you? A: He was standing just in front of the corner of our garage on the right-hand side and I was to the left of him." 1. Nikita then said that she moved towards her own front yard to stop Mr Brophy's dogs aggravating her own dog. This placed her to the left-hand side of the gate. She said that she could still see both of the men from that vantage point. 2. In cross-examination, it was put to Nikita that her attention had been divided between the dogs and the altercation: "Q: Okay, so there was more than one period of five seconds where you were looking away? A: Yes, less than five seconds as well. Q: So while you say you saw Mr Brophy hit your father, you're not in a position to give an entire account of what happened between the two of them? A: I know my father did not hit Mr Brophy. Q: But you know that based on a number of things, not only what you saw and didn't see; is that right? A: I knew that beforehand. Q: You know that because your father has told you that's the case? A: No, I knew it because I witnessed it. I was there. Q: But you weren't watching the entire time, were you? A: I still saw it. I saw my dad fall and hit the ground. My dad had no intention of going out to the side gate and fighting. Q: There were multiple breaks of five seconds spread out over a minute; that's right, isn't it? A: Yes, but they were less than five seconds at a time. My, the dogs were not my whole intention. I was witnessing my dad and observing what was happening between him and Travis." 1. In the Local Court, Nikita's evidence-in-chief was that she had finished dealing with the dogs outside of the gate when she saw Mr Brophy punch her father. She said she had a clear line of sight and was approximately 5-10 metres away. In cross-examination she was questioned about whether her attention was divided: "Q: According to your evidence you were attending to separate the dogs is that right when you then turned around and saw Travis hit your dad? A: Yeah. I'm – as I turned around I saw dad turn away to go walk back inside. And that's when I saw Travis swing his hand at my dad. Q: On your version of events is it possible while you're tending to the dogs that you've missed seeing your dad hit Travis? A: But I know he didn't hit Travis cause I saw him turn away. Q: But there was a time there you admit that you weren't looking directly at your dad and Travis? A: I wasn't looking but I still saw from the side of my eye. Cause I was still every few seconds looking up at dad and seeing – seeing what was happened." 1. In re-examination on that issue, Nikita clarified how her attention was divided between the dogs and the altercation: "Q: When you're attending to the dogs I assume your focus is on the dogs? A: It was half and half. I was looking at the dogs for a few seconds and then I looked back at dad, and it was sort of – I – went back and forth. Q: How long were you doing this back and forth you just described, keeping an eye on the dogs and on dad and Mr Brophy? A: For about a minute. Q: When you say you're looking down at the dogs, you're breaking that viewing of dad and Mr Brophy to look at the dogs; how long are you looking down at the dogs for in each segment? A: About five seconds maybe." 1. The case accordingly presented a stark conflict between Mr Sica and his witnesses on the one hand and Mr Brophy and his witness on the other. It was, essentially, a word against word case. 2. The three witnesses who did not give evidence before the primary judge were Jye Hall, Renae Foley and Shannon Coleman. Their evidence in the Local Court supported Mr Brophy's account. 3. Jye Hall gave evidence that he had followed Mr Brophy around to Mr Sica's side gate, walking 5 metres behind him at all times. He also stated that he was standing 5-10 metres away from the confrontation because he did not want to be involved. In cross-examination he confirmed that he had a direct line of sight and "could see everything that was happening". 4. Renae Foley gave evidence that she saw the altercation over the top of the back fence. She said that she "could see everything that was going on from that part of the fence" and that she saw Mr Sica throw the first punch. In cross-examination she denied that her vision was impaired by the garage of the neighbour's house and emphasised that she had seen the entire altercation. 5. Shannon Coleman gave evidence that she walked with Mrs Brophy down and around the street when they heard Mr Sica and Mr Brophy yelling. She said that she was about 5-10 metres away when she saw Mr Sica reach over and strike Mr Brophy. In cross-examination she denied that her view of the altercation was ever obstructed. 6. As submitted on behalf of Mr Brophy, it is clear that the primary judge's findings of fact were based on a comparison between oral evidence and oral evidence and very much credit-based. The appeal accordingly invites the Court to disregard the advantage enjoyed by the primary judge in hearing and seeing the evidence of the two protagonists and their main witnesses. 7. It should be noted that the primary judge did not make a firm finding of fact that Mr Sica in fact struck Mr Brophy before Mr Brophy punched Mr Sica. The finding at [49] was that Mr Sica "in the very least" assaulted Mr Brophy "in the sense that he came right up to him and lunged at him", which her Honour accepted was unlawful. No basis has been established for impugning that finding. Her Honour further found that Mr Brophy "hit back", rejecting his account that this occurred as a result of merely flailing his arms and finding that it was a closed fist punch as described in the Local Court. However, her Honour accepted that, in acting in that way, Mr Brophy was responding to Mr Sica's unlawful conduct; that he believed it was necessary to do so in order to defend himself; and that his conduct was a reasonable response. All of those findings and inferences flowed from the primary judge's finding that Mr Sica acted unlawfully in coming close to Mr Brophy's face and lunging at him. My assessment of the evidence (having due regard to the advantage enjoyed by the primary judge) has not persuaded me that I should disturb that finding. 8. To the extent that the grounds of appeal attack the reasons of the primary judge, I would also reject them. As already noted, the reasons were given orally the day after the conclusion of the hearing. The process of giving reasons in that way, orally and very shortly after the conclusion of a hearing, will naturally tend to truncate the exposition of detail fresh in the mind of a trial judge. The inherent incompleteness of any exposition of reasons for factual findings was considered by Leeming JA in Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 at [93]: "I am conscious of the necessarily incomplete character of the primary judge's reasons. In part that arises because of the desirability of avoiding unnecessary prolixity and inessential detail: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]. In part it arises for the reasons given by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45, in a passage approved in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Rep 81-578 at [137]: 'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'" 1. As to grounds 7 and 8, the only substantive submission put was that the primary judge "cherry-picked" the evidence. I do not think that is a fair criticism. The reasons were logical and concise. Her Honour certainly came straight to the point but it was a good one; on their own evidence, both witnesses might have missed seeing a part of what happened in the instant before Mr Brophy's punch. I do not think the reasons were inadequate. 2. For those reasons, the order I propose is that the appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2020