Local Court New South Wales Medium Neutral Citation: Police v Ryan [2023] NSWLC 4 Hearing dates: 17 February 2023, 21 March 2023 Decision date: 28 March 2023 Jurisdiction: Criminal Before: Clisdell LCM Decision: Not Guilty of Reckless Wounding Guilty of Assault Occasioning Actual Bodily Harm Catchwords: CRIME — Violent Offences — Glassing — Reckless wounding — Assault occasioning actual bodily harm — Affray — Self defence Legislation Cited: Crimes Act 1900 (NSW) ss 35(4), 59(1), 93C(1), 418(1) and 418(2), 419 Cases Cited: Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191 R v Katarzynski [2002] NSWSC 613 Colosimo and Ors v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; [2005] NSWSC 854 Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Douglas v R [2005] NSWCCA 419 Category: Principal judgment Parties: NSW Police (Prosecutor) Stuart Ryan (Defendant) Representation: Counsel: Mr J Pappas (Defendant) Solicitors: Sergeant B McLean (Prosecutor) Lewis & Co Cooma (Defendant) File Number(s): 2022/00200930 Publication restriction: Nil JUDGMENT 1. An uneventful day of Rugby at Bungendore ended in both the Accused and Complainant glassing each other at the Lake Jindabyne Hotel at around 10:38 pm. The Accused was the coach of the Jindabyne Bushpigs Women's Rugby team and the Complainant was a club supporter. Up until shortly before the incident at the Lake Jindabyne Hotel they had regarded each other as friends. They had travelled to Bungendore for the game and returned to Jindabyne without incident. 2. The incident at the Hotel was captured on CCTV and as such the factual matrix can be determined without the reliance on memory or recollection. There is however some disagreement about what the CCTV discloses between the Prosecution and Defence. 3. There is no dispute that the complainant Amy Robinson struck the accused with her left hand while holding a glass. The glass shattered on impact and the accused suffered minor abrasions to the right side of his face which amounted to actual bodily harm. Ms Robinson was charged with an offence of Assault Occasioning Actual Bodily Harm and pleaded guilty to that offence. 4. Equally there is no dispute that the accused struck Ms Robinson with his right hand while holding a glass which shattered during the incident causing a serious laceration (alleged by the prosecution to constitute a wound) to the left side of her neck and some minor abrasion to her left ear. She also had an injury to her hand but that laceration was caused by the glass she hit Mr Ryan with breaking on impact and her actions were solely responsible for that injury. The parties fell to the floor and the complainant hit her head, causing another injury to the left side of her head and she said that she lost consciousness. Bystanders pulled the accused off Ms Robinson and she received some first aid treatment at the Hotel before being transported to Hospital for further treatment by Hospital staff. 5. As a result of the incident Mr Ryan was charged with Reckless Wounding (s 35(4) Crimes Act 1900 (NSW) (the 'Crimes Act')). In the alternative he was charged with Assault Occasioning Actual Bodily Harm (s 59(1) Crimes Act) or in the further alternative Affray (s 93C(1) Crimes Act). 6. In respect of each of those charges the Defence rely on s 418 Crimes Act that the accused acted in self-defence. They also submit that the principal charge must fail as the injury suffered by Ms Robinson did not amount to a "wound". 7. It is convenient to now deal with the issue of whether the injury is a wound. It is well established that for an injury to amount to a wound, there must be a breaking of both the epidermis and the dermis of the skin. The Prosecution submit that the expert report of Dr C Davies tendered without objection (Exhibit 7) supports a finding that the injury amounts to a wound. It may be that the injury to her hand might be a wound, but that was a self-inflicted injury for which Mr Ryan bears no responsibility. Dr Davies says this about the injury to her neck caused by Mr Ryan's striking of her: "1 x laceration to left side of neck – 1 deep to dermis". 8. Mr Pappas submits that "It may be that the expression 'deep to dermis' is a term of art or meant something to Dr Davies when he approved his statement (which he never adopted by signing) But for this Honourable Court to conclude that the evidence establishes, beyond a reasonable doubt, (as it must) that the laceration in question involves some breaking or cutting of 'the interior layout (sic) of the skin' would be highly speculative." 9. The Doctor was available for cross-examination but sensibly the Defence decided to simply admit the unsigned statement. If the report had used the word "into" instead of "to" the dermis, I would have been satisfied that the injury met the definition of wound. However, I agree with the submission of Mr Pappas that I cannot be satisfied beyond reasonable doubt that a wound has been suffered by Ms Robinson. Sequence One is dismissed. 10. There can be no doubt however that her injuries do amount to actual bodily harm, so I must in time deal with the real issue in this case, the question of self-defence. I must also place my findings on what is seen on the CCTV on the record as they are relevant as to the demeanour and actions of both participants. 11. There was evidence from three Police Officers, who attended the scene and one member of the rugby team, Saskia Dutch, who was at the table where the incident took place. 12. Senior Constable Downey is the Officer in Charge (OIC). He dealt mainly with the complainant at the scene. When he arrived, the accused was already in custody. He made observations of the injuries to Ms Robinson and took details of the witness Saskia Dutch. Later in the early hours of the following morning he conducted an ERISP with the accused in the presence of Senior Constable Mackay. He took some photos of the accused's injuries (Exhibit 3). Mr Pappas spent some considerable time cross examining Senior Constable Downey about his investigation (or lack thereof). 13. In his submissions Mr Pappas said this about Senior Constable Downey "The fact that the officer in charge of the investigation, Senior Constable Downey, appears, at all relevant times, to have treated Mr Ryan's claims that he acted in self-defence as a colourable fiction or confection, that he did not explore, either with Mr Ryan or with any of the numerous other witnesses, has robbed this Honourable Court of potentially important contemporaneous evidence and statement, particularly from Mr Ryan. Both Senior Constable Downey and his assistant during the record of interview, Senior Constable Peter MacKay (sic) seem to have concentrated their efforts upon belittling and ridiculing Mr Ryan's claim to have acted in self-defence and asked questions largely designed to undermine that explanation rather than explore it with him". 14. Mr Pappas continued "For instance, at no time does any policeman asked (sic) Mr Ryan what his first thought or reaction was when he was, in effect, stabbed in the face with a beer glass or whether he had any forewarning or inkling that such a thing might happen. He was never asked whether he shifted his beer glass from his left hand to his right hand as a premeditated, preparatory manoeuvre or whether it was a reflex action in the circumstances then confronting him. Indeed both policemen simply assumed the former and appear to have given no consideration to the latter." 15. I do not accept those submissions as being reflective of the interview transcript (Exhibit 4). A large number of questions were redacted by consent and there was a brief voire dire on other parts of the ERISP. My reading of the interview is that it followed a non-confrontational discussion for most of the time. Mr Ryan was asked to give his version of events which he did, without any overt hostile interruptions from the police. Mr Ryan makes it clear that he was not the aggressor, that he retaliated to a head butt by Ms Robinson by throwing some beer on her. There was a further argument and he then recalls a glass being smashed in his face. 16. It is worth setting out in full this part of the ERISP: "Q68. O.K. Did you retaliate when she head butted you to the face? A. I retaliated by by um, tossing some of the beer in my glass onto her. Q69. O.K. A. In a, in a jovial way. Q70. [02.17] Yeah. What happened then? A. From then I believe the argument has, the verbal argument has ensued. Q71. Ah hmm. A. From that is when I recall a glass being smashed in my face. Q72. O.K. A. Yeah. Q73. So you recall a glass being smashed in your face? A. I do yeah. Q74. Where did it hit you? A. Ah the right hand side of my face. Q75. Yeah. A. Um, to which I, I don't recall how I retaliated but I was just defending myself so um, I may have grabbed what was closest to me um, at no point did I swing at Amy, I remember taking her to the ground. Q76. Yeah. A. But I didn't swing, I didn't throw any punches. Q77. O.K. A. Cause I wasn't in any way trying to attack Amy I was just trying to defend myself. And I recall two or three people um, using their forearms around my throat to pull me off. Q78. Yep. A. To which I didn't fight back. Q79. Yep. A. Because I knew that at no point was, was in a fight. I was just purely defending myself. Q80. [02.18] O.K. So I put it to you that you have swung O.K. with both your left and right hands. A. Ah hmm. Q81. Do you recall doing that towards Amy at all? A. I don't. No. Q82. O.K. At the time of the argument were you holding anything? A. Not that I recall, no. Q83. O.K. So I'm going to put to you that um, there's a scuffle taking place and Amy slaps you, you hit her back she throws a drink at you and then you throw an overhead punch holding a schooner glass which connects to the left side of her face. Do you recall anything like that? A. I don't. No. I only recall being hit with a glass in the face and defending myself." 1. In cross-examination of the OIC Mr Pappas asked the officer about his observations of the impact between Ms Robinson's left hand and the right-hand side of Mr Ryan's face. Senior Constable Downey's evidence was that he believed the complainant threw a drink and his viewing of the CCTV was that it shows an explosion of liquid, not glass at the point of impact. This explains the nature of what he put to the accused in Q83. The CCTV certainly shows an explosion of liquid near the ATM. 2. The interview continues in much the same tone as the incidents are discussed again. Later in the ERISP Mr Ryan is shown the CCTV. It does not accord with the recollection he gave to police in the passages above. The first time that the police interview might be said to become confrontational is when Senior Constable Mackay questions Mr Ryan commencing at Q239. The initial questions deal with how both parties end up on the ground. Then Mackay puts the allegation squarely to the accused. "Q244. All right. We will allege that at the time of the over hand strike with the right hand you were holding your schooner glass which connects with the left side of Amy's face. Do you have anything to say about that? A. I disagree. Q245 You disagree. A. I disagree. Q246 How do you think you striked her? A. With my right hand whether the schooner glass is there or not I can't say, the video footage did not show that. Q247 O.K. A. And, gentlemen I would like to now request a lawyer if you are alleging things, I would like to request a lawyer." 3. Then followed "Q248 That's fine. Do you want to say anything further in relation to this matter? A. No thank you. Q249 O.K. Do you want to make any comment in relation to the laceration on your right hand that we photographed earlier this evening? A No its obviously come from a glass that Amy has thrown at me like the lacerations on my face. I would also like to say that simply because she's a woman does not give her the right to strike me as a man. Q250 [02.46] We're not alleging that it's …. A. And I'm letting it be known for the record that I don't believe it to be which way, either or". 4. Senior Constable Downey then resumes "Q251. O.K. A. As you're, you're both say she's head butted me first, she's struck me first." 5. The interview then moved to the independent officer being called in and was then concluded. 6. Whether the officers intended to ask Mr Ryan about moving the glass from his left hand to his right hand, or what he was thinking at the time, we will never know as the accused concluded the questioning by declining to answer any more questions. Apart from asking him about the injury to his hand, no attempt was made to further question him about the incident. 7. I do not accept that the manner of questioning was in any way hostile, premeditated or unfair. 8. Saskia Dutch gave evidence. She confirmed that Amy had struck the accused with a glass. Her attention was directed back to what was happening by the sound of breaking glass. She was in a perfect position to see it. Earlier she saw Mr Ryan spill his drink on Ms Robinson and asked him "Stu, why did you do that?" Her recollection was that there some mention of ex partner's and that the argument became heightened, "not a calm tone". Her further observations are all covered by the CCTV, including her shock as Mr Ryan strikes Ms Robinson. She then goes to the assistance of Ms Robinson once Mr Ryan is restrained. She did say that Amy glassing Stu was the last thing she would have expected Ms Robinson to do. 9. The next witness was Constable Showell. His evidence is relevant only that he confirmed that Mr Ryan repeatedly claimed to be the victim and that he had acted in self-defence. He as the junior officer was left to guard Mr Ryan while Senior Constable Mackay watched and obtained a copy of the CCTV. His Body Worn Video recorded the protestations of Mr Ryan that he was the one attacked, that she pushed a glass in his face and that he retaliated in self-defence. 10. Mr Pappas is very critical of the Police. He submitted "As was apparent during the cross-examination of Constable Showell police made a decision within minutes of arriving at the hotel that Mr Ryan was the offender; that he was to be arrested and only him and that his claims of acting in self-defence were, in effect, to be ignored." Ms Robinson was in an ambulance on her way to Hospital in Cooma some 60km away. Arresting her at that time was not an option. In any event, Constable Showell was not the OIC. In evidence he stated that he did not know who was the OIC. 11. It should be remembered that Senior Constable Downey later interviewed and charged Ms Robinson in relation to her involvement. Mr Ryan was given the opportunity of giving his version in an ERISP. Just because the police may not have believed his protestations of innocence does not mean they ignored them. His denials were dutifully recorded. Police were not witnesses to the actual incident. When they arrived, they had one person bleeding profusely, lying on the ground unconscious, requiring an ambulance to be transported to hospital and another with superficial abrasions, upright. I reject the submission that the OIC had a contemptuous disregard of his obligations of fairness. 12. The next Prosecution witness was the complainant, Amy Robinson. She had been to Bungendore to support her friends in the female rugby team. She had been drinking during the day and back at the Lake Jindabyne Hotel. Her memory of the evening was poor and she needed to see the CCTV to complete her statement. She remembered some of the earlier interactions at the hotel including the argument but did not recall the actual incident where she hit Mr Ryan with a glass in her hand or what happened to her. She could not recall the head butt or the drink spilt on her. She was vigorously cross examined on the basis that her statement did not record all of what is shown on the CCTV. Her answer, that she was asked to put in her statement what she could remember, was not accepted by Mr Pappas. She appeared rattled at times during cross-examination but did not give me the impression she was being deliberately evasive. She was nervous, as many witnesses are. 13. I do not accept that she was trying to mislead the Court. She suffered a head injury of some severity and agreed with the propositions put by Mr Pappas about her involvement, albeit somewhat reluctantly. She pleaded guilty to her involvement in the incident and accepted her conduct was unreasonable and unnecessary. In any event, the incident is captured on CCTV and her version is corroborated by that exhibit. 14. The police Facts Sheet in the prosecution of Ms Robinson was tendered by the defence (Exhibit 10). Ms Robinson agreed that she accepted the contents of that facts sheet in entering her plea of guilty. She was interviewed via ERISP. The facts sheet recounts her lack of memory and then records what happened when she viewed the CCTV. "The accused was then shown CCTV footage of the incident. The accused identified herself and the victim in the incident. The accused agreed the footage showed her head butting, slapping and eventually lunging at the victim whilst holding her glass." 15. Ms Robinson was also asked about an incident in May 2022 where it was alleged, she had thrown a bottle at someone who had mentioned her ex-partner. She denied that ever happened. It was raised it seems, to contend that she angers quickly when her ex-partner is ever mentioned. I accept her denial of that alleged incident. I find her to be a reliable witness. 16. The final prosecution witness was Senior Constable (now Sergeant) Mackay. His evidence was largely procedural. He attended the scene, noted the area had already been cleaned, obtained the CCTV, and agreed that Mr Ryan had protested his innocence. 17. The CCTV was played during the prosecution case. It was on two DVD's marked as Exhibits 2A and 2B. There appears to me to be a reasonably accurate, albeit a summary, of what is seen on the CCTV contained in Exhibit 10. That document related to the prosecution of Ms Robinson. Accordingly, the reference to the accused is Ms Robinson and the victim is Mr Ryan. I will add my further observations. "The accused and victim are captured on High-Quality Closed-Circuit Television (CCTV) consuming alcoholic beverages whilst in the venue. At 10:36 the accused is captured on CCTV footage having a conversation with two friends within the venue. The victim walks towards the accused with a beer in his hand. The accused blocks the path of the victim by standing in front of him, the accused then head butts the victim, connecting with his right cheek bone. The victim reacts to this by slapping the accused, he then walks past the accused and turns around to throw part of his beer on her. This connects with her face. The victim then sits down on a bar stool and faces the accused. For the next few minutes the accused and victim appear to be in a heated verbal argument. The accused has a glass in her left hand and the victim has a glass in his left hand. The accused then slaps the accused (sic) in the face using her open right hand connecting with the left side of his head. The victim reacts by slapping the accused with an open right hand. This connects with the left side of the accused's head. This slap causes her to stumble backwards and loose (sic) her balance. The accused lunges forward toward the victim with her left hand. At this time she is still holding her glass. Her lunge connects with the right side of the victim's face, causing the glass to break on the victim's face. The victim then reacts by throwing a punch whilst holding his glass in that hand connecting with the left side of the accused's head. This impact caused the accused to fall backwards onto the ground. The accused suffered lacerations to her ear and head as a result of the impact. The accused was in and out of consciousness for the next 15 minutes until she as (sic) conveyed by Ambulance to Cooma Hospital for treatment on her injuries. The victim suffered lacerations to the right side of his face and lower lip as a result of the lunge from the accused." 1. I would add these further observations after watching Exhibits 2A and 2B, frame by frame. 2. Just prior to being head butted Mr Ryan appears to be trying to push past some people including Ms Robinson. There is nothing aggressive in his manner and he is simply moving through a crowded bar area. Ms Robinson then head butts him but it was not a very hard action. Mr Ryan slaps her first and after passing her turns and throws beer in her face. 3. After the beer is thrown in Ms Robinson's face, she is initially amused. Bystanders also seemed somewhat amused by the beer thrown on the complainant. Mr Ryan however appears unamused. Ms Dutch says something to him, presumably "Stu, why did you do that?" Mr Ryan says something to Ms Dutch before "flipping the bird" at her. Ms Robinson and Ms Dutch then begin talking to each other and both seem jovial until Mr Ryan says something to Ms Robinson thus initiating what became a heated argument. Mr Ryan seemed to be angry. His facial expressions clearly indicate anger. Initially Ms Robinson remains amused but something said to her by the accused fires her up and her expressions then indicate she is also now angry. 4. The argument intensifies with Ms Robinson leaning in towards Mr Ryan before slapping him across the face while he is seated at the table. Her slap is firm and pushes Mr Ryan's head back, but he doesn't lose balance or fall from his chair. No beer is spilt from his glass. He then stands up and slaps Ms Robinson forcefully, so that her head is thrown backwards and downwards, she stumbles back and her left arm holding her beer goes up towards her head splashing the contents of her glass into her face. The blow struck by Mr Ryan was substantially more forceful than the blow he received. 5. Ms Robinson regains her balance and raises her left arm. The glass is in her left hand. She moves her right hand forward and appears to be trying to grab Mr Ryan's beer which at that time is in his left hand. He then changes hands by transferring his beer glass to his right hand. His left arm is raised and pushes towards Ms Robinson striking her on the right side of her head with a closed fist and with enough force to push her head backwards. At the same time, she pushes her left arm forward, the glass still in her left hand. There is an explosion of liquid and glass as Ms Robinson connects with the face of Mr Ryan. 6. At the point of contact she is already off balance because of Mr Ryan's left hand striking her face. Mr Ryan then pulls back his right arm. In his right hand is a glass, Ms Robinson is falling backwards, her head tilted back and her eyes closed. Mr Ryan then punches Ms Robinson in the left side of her head, forcefully. The glass in his right-hand contacts the left side of her head. Again, his blow has considerably more force than Ms Robinson's punch. Ms Dutch and two other patrons are clearly shocked. 7. Mr Ryan again pulls back his right arm. It appears the glass has now left his hand. Ms Robinson is now bent over towards her right, her head near her right shoulder. A woman to the right of the incident next to Ms Dutch reaches out to intervene. Mr Ryan appears to have hold of Ms Robinson with his left hand. Ms Robinson falls and Mr Ryan pushes past the woman on the right causing her beer to spill from her glass. Mr Ryan falls on top of Ms Robinson as the woman and a man attempt to pull him back. There appears to be an ongoing scuffle as the parties initially fall near the ATM machine and then move to their left. By this time bystanders are grabbing Mr Ryan. As Mr Ryan is dragged away, he still has hold of Ms Robinson's hair or jumper and she is dragged along the floor by him. Finally, Mr Ryan is effectively restrained by other patrons. Ms Robinson gets to her knees where she has a towel placed on the back of her head by what appears to be a member of staff and is then escorted out of the area. Broken glass on the carpet is swept and picked up by staff. 8. Those are my findings in respect of what the CCTV shows. 9. Mr Ryan then gave evidence. He told the Court that he was friends with Ms Robinson having met her earlier in the year. Until 10:36 pm there had been no problems between them. He could not recall how much he had to drink. He remembered a verbal argument and then being attacked. He could not recall the actual conversation between the complainant and himself but knew it had something to do with ex-partners. The next thing he remembered was glass shattering on the side of his face, somewhere between his nose, eye and jaw. He could not recall what he did next. He conceded having viewed the CCTV that he had struck Ms Robinson but could not say why. He said he was scared that she might hit him again and he had never been in a situation like that before. He was sure he did not hit her on purpose and was not acting in malice. 10. He agreed that they were both angry but did not expect to be attacked. He repeated that he did not know why he struck Ms Robinson. He also gave some evidence about an incident that was put to Ms Robinson in her cross-examination about a bottle being thrown at an Anna Gregson. The evidence by Mr Ryan was of a hearsay conversation and it has little if any weight. 11. In cross-examination Mr Ryan said he had his first drink at the Lake George Hotel in Bungendore. That contradicts his statement in the ERISP that he had his first drink around 2pm, not that it matters much. He agreed that he had to be pulled off Ms Robinson by others. He was also asked about his recent training in the weeks prior to the incident as a security guard. It appears he may have been taught a drill check and was given some tips on how to de-escalate a deteriorating situation. He agreed that he had told Constable Showell that he had retaliated, but what he meant was that he reacted and that retaliation means acting with malice. He denied he had acted with malice. He agreed that he was taller and larger than Ms Robinson. 12. In re-examination he confirmed that he had no training on what to do if he was glassed. Mr Pappas asked him what he was thinking at the time. He said he didn't think about anything. 13. The effect of his ERISP and his oral evidence is that he has raised self-defence. 14. The issue to be determined is whether the prosecution have negatived self-defence beyond reasonable doubt. 15. Self-defence is a well-known legal concept and has statutory force being now enacted as s 418 Crimes Act. It is however not an easy matter to determine. 16. In Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191 ('Doran') her Honour Simpson AJA had this to say: "Section 418 is undoubtedly a difficult provision for judicial officers to work with, requiring intellectual gymnastics in its application, principally because the onus lies on the prosecution to disprove the elements of self-defence – that is, to prove a negative. Yet underlying the provision is a factual scenario that can only truly be known to the defendant. That is the defendant's state of mind – or his or her perception of the circumstances. The prosecution cannot realistically be expected to negative a perception of which it has no knowledge. The issue of self-defence cannot be raised in an evidentiary vacuum. There are a number of ways in which the issue may emerge: for example, through admissible evidence of statements attributed to the defendant outside court; by cross-examination of prosecution witnesses; by the defendant in evidence in the trial; or by witnesses other than the defendant called in the defence case. There may be others. But there must be some evidentiary basis on which a judicial officer may assess the circumstances as perceived by the defendant: see Colosimo v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; [2005] NSWSC 854 at [91] ff; on appeal [2006] NSWCA 293 at [20] ff; Douglas v R [2005] NSWCCA 419 at [100]-[101]. That is, if not otherwise, clear from s 419, which imposes the onus of proof on the prosecution in cases "in which the application of [Division 3] is raised". 1. Section 418 provides as follows: 418 Self- defence—when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (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. 1. Mr Ryan's evidence is that he did not know what he was thinking at the time of the incident but says he would not have acted in malice. That statement is one made in hindsight. He said he did not believe he did it on purpose. He made it plain from the time the Police arrived that he was the victim and acted in self-defence. Of course, we know from his ERISP that he did not believe he had swung at Ms Robinson, with a glass in his hand, or at all. It appears he did not remember the slapping incidents either. Based on what he thought he had done, he may have convinced himself that he had acted in self-defence. Later when he sees the CCTV, he concedes that he had swung at her but again denies having any glass in his hand. Later in his ERISP he refuses to consider that perhaps the cut on his hand was caused by the glass in his hand smashing, saying that the cuts on his hand came from Ms Robinson's glass. 2. Did he strike Ms Robinson to protect himself or as retaliation for her actions towards him? 3. I am satisfied that Mr Ryan was angry from the time he was head butted by Ms Robinson. Why she did that to him I am unable to determine. But he then slaps her and throws beer in her face. Neither action was jovial as Mr Ryan suggests. Both his facial expressions and his actions, including his exchange with Ms Dutch show he was angry. The slapping that followed the argument again saw Mr Ryan respond aggressively and with greater force, his slap being particularly powerful. Then when he responds to Ms Robinson's "glassing" of him, he "glasses" her, again with a much more powerful blow. Not only is that plain from the CCTV but is consistent with the injuries each protagonist sustained. 4. The CCTV shows after his "glassing" of Ms Robinson Mr Ryan pulls his right arm back, presumably to punch her again. The intervention of by-standers meant that any further action by him to strike Ms Robinson was thwarted. That is contrary to what he claimed in the ERISP. There followed a short but ugly wrestle as others attempted to pull Mr Ryan off Ms Robinson. It belies his evidence that he was scared. The CCTV shows him still dragging her along the floor when she is showing absolutely no resistance. 5. Mr Pappas submitted "Mr Ryan bore Ms Robinson no animosity" and "They regarded each other as friends". That was the situation until she head butted him. What followed did show animosity. 6. He further submitted "Mr Ryan did not expect to be attacked as he was, and his reaction was so rapid as to be reflexive and responsive. It represents a locus classicus of the "fight or flight" response. No doubt there must have been some cognitive assessment of the situation but it was so rapid as to deny any opportunity for what is sometimes described as "calm reflection"." Most instances of self-defence where two people are fighting is rapid and leaves little time for calm reflection. Mr Ryan chose to fight. He did not take flight. He could have de-escalated the situation by not responding to the slap in the way he did. The force of his response was met by Ms Robinson's final blow. He had in effect joined in the fight, not out of fear, not to protect himself, but to punish Ms Robinson. 7. In Doran Simpson AJA said this at paragraphs 3 – 5: "3. Where an issue under s 418 is raised, two questions arise for determination. They are: 1. has the prosecution proved beyond reasonable doubt that the accused did not believe that the conduct said to constitute the offence was necessary for one (or more) of the four purposes specified in subss (2)(a)-(d)? and 2. has the prosecution proved beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as perceived by the accused? 4. Proof by the Crown beyond reasonable doubt of one or the other will defeat any defence of self-defence. That is, an affirmative answer to either question will be sufficient for the Crown to have proved that the conduct was not carried out in self-defence. 5. An alternative way of framing the questions, avoiding the awkwardness of requiring proof of a negative, is that proposed by Howie J in R v Katarzynski [2002] NSWSC 613 at [22]: '(i) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.' A negative answer to either question will be sufficient for the prosecution to have proved that the conduct was not carried out in self-defence." 1. Mr Ryan had every right to be angry. On each physical interaction, Ms Robinson is the instigator. But Mr Ryan's response to each incident was to "up the ante". After the head butt, he slaps her, throws beer in her face, and initiates a hostile argument. Possibly if he had said nothing after he sat down the following violence may have been avoided. But he was angry and made it clear that Ms Robinson's amusement was not shared by him. At no time on either angle of the CCTV does he look scared. Far from acting protectively, he responded with violence. 2. Prior to viewing the CCTV, he denied in his record of interview that he swung at Ms Robinson and that he merely took her to the ground. If that had been correct, it would have been a proportionate response as he perceived the circumstances. That would have been an action in self-defence. But he didn't just take her to the ground. Contrary to what he said in his ERISP, he was holding a beer glass in his right hand. He glassed her. He also punched her with his left hand. He didn't just lie on the ground on top her. He wrestled with her and dragged her across the floor. He had to be restrained by other patrons. He did not as he suggested, allow himself to be removed from the complainant on the floor. He resisted and considerable force was required to get him off Ms Robinson. The initial exchange with Ms Robinson was regarded by her as jovial and his evidence in the ERISP and in Court was that he also regarded it as a jovial exchange. The CCTV showed he was anything but jovial. His evidence of being scared is entirely self-serving and not supported by his demeanour on the CCTV. I find him to be an unreliable witness. 3. I am satisfied he was not acting in self-defence but acted with a view to inflict violence on Ms Robinson. 4. But even if I am wrong in that assessment "glassing" someone can never be said to be a proportionate response, whatever he may have perceived to be the situation. Hitting anyone while holding a glass is both dangerous and reckless. 5. The Prosecution have discharged the onus under s 419 on both grounds in s 418, in both how he acted and how he perceived the situation he was in. His actions were vengeful, his intent was to inflict harm. 6. The Prosecution rely first on sequence 2, Assault Occasioning Actual Bodily Harm, after the dismissal of sequence 1. I find that offence proved. There is no need to consider sequence 3 although it could be argued that what followed the glassings amounted to an affray. The Prosecution did not run their case that way. NOTE: 1. After delivering the decision the Accused wished to be sentenced. I enquired as to the sentence given to Ms Robinson. Both the accused and Ms Robinson committed the same offence. Parity was important. Both had no prior convictions, although Mr Ryan had received a s10 many years ago for property damage. Ms Robinson received a CRO for 12 months without conviction. Although I was surprised by such leniency I could not in good conscious convict and impose an appropriate penalty on Mr Ryan. Although I found he had not acted in self-defence, he was not the instigator of the violence. As he had pleaded not guilty, he was not entitled to a full discount. I imposed a CRO without conviction for 16 months. ********** 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: 12 October 2023