REGINA v LA PRAIK [2000] NSWCCA 273

New South Wales Court of Criminal Appeal

CITATION : REGINA v LA PRAIK [2000] NSWCCA 273 FILE NUMBER(S) : CCA 60063/00 HEARING DATE(S) : 06/07/2000 JUDGMENT DATE : 6 July 2000

PARTIES : Regina v Scott Bruce La Praik JUDGMENT OF : Sheller JA; James J; Adams J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0329 LOWER COURT JUDICIAL Holt DCJ OFFICER :

COUNSEL : Mr L M B Lamprati (Crown Mr P M Winch (Appellant) SOLICITORS : S E O'Connor (Crown) T A Murphy (Appellant)

DECISION : Leave to argue ground 3 be refused and the appeal otherwise be dismissed.

IN THE COURT OF CRIMINAL APPEAL

60063/00 SHELLER JA JAMES J ADAMS J THURSDAY 6 JULY 2000 REGINA v SCOTT BRUCE LA PRAIK JUDGMENT

1 ADAMS J: This is an appeal against the conviction of the appellant on 14 December 1999 upon a charge of maliciously wounding Eben Kelk with intent to do him grievous bodily harm. 2 The charge arose from a violent altercation in a hotel late in the evening of 13 November 1997. The fight broke out between the appellant and Mr Kelk during which the latter's face was cut by a broken glass which the appellant was holding. Mr Kelk's evidence was that the appellant simply hit him with the glass, whilst the appellant's case was that he acted in self-defence to deflect an attack and that the injury to Mr Kelk was accidentally inflicted. 3 Very shortly after, within a few feet or possibly metres (the evidence is confused on this point), Mr Peter Warhu, who was a friend of the appellant and Mr Nathan Fittler, a companion of Mr Kelk, were also involved in an altercation which developed into a fight and resulted in the latter being hit in the face with a glass by Mr Warhu and being seriously injured. It is not suggested by the Crown that these events were connected except that they occurred more or less coincidentally. 4 The witnesses differ somewhat, not surprisingly, as to the positions of Fittler and Kelk when each were struck in the face and as to the time which elapsed between these blows, though all agree that Kelk was struck first. 5 It is convenient to deal with the first and second grounds of appeal together. They are in the following terms - 1 The trial judge erred in refusing to discharge the jury. 2 The trial miscarried when inadmissible and prejudicial material relating to Mr Warhu was admitted into evidence. 6 It is significant that in an early stage of the trial the Crown Prosecutor tendered a video recording made by a security camera in the hotel which showed a substantial part of the fight. This shows a group of men, what appears to be the commencement of the violence and the appellant and Kelk moving from that area towards and at the pool table. This film provided a context for much of the cross-examination of the witnesses. It seems to me that it provides significant support for the prosecution case. 7 Kelk's evidence was that he moved over towards three men, namely Fittler, Warhu and the appellant when he heard an argument begin amongst them. He heard the appellant say something about spending a night in gaol and commented to him, "Because you are a policeman doesn't make you a better person". He was half a step from and facing the appellant at the time and, immediately, he claimed a glass smashed across his face. Kelk thought that some earlier remarks had been directed to himself and Fittler. After he was struck, Kelk claimed that he fell forward and grabbed the appellant, wrapping his arms around him and putting his head down so he would not get hit again in the face. He said the appellant was shaking him violently and that he was hit at least ten times or more to various parts of his body. He could not see what was being used to strike these blows. He thought he had been hit a couple of times in the face with a knee. He claimed that in a desperate attempt to defend himself he tried to kick the appellant's legs and knee him. He conceded biting the appellant on his arm (the appellant claimed that he not only bit him there but also on his chest), but this had no effect. Eventually the fight stopped. Kelk thought that the whole incident took about a minute and a half to two minutes. A security guard came over. There was no suggestion that Warhu was involved in the fight that occurred between the appellant and Kelk. The Prosecutor elicited that at the time when the security guard came over the appellant and Warhu were gone. As there was no suggestion that Warhu was involved in the fight between the appellant and Kelk, it was not clear why the Prosecutor sought this evidence. 8 Kelk was cross-examined on the appellant's behalf as to what he had seen of the fight. It was suggested to him that he had started the fight and that he had been joined by Fittler. The case for the appellant put in cross-examination of Kelk in substance was that Fittler had approached the appellant and made some insulting remarks. Kelk was facing the appellant about a foot away and started to dance around in a fighting position with his fists clenched saying, "Come on cunt, I'll punch your fucking head in". It was put that he grabbed the appellant's right hand in which he was holding the glass and that the appellant reacted by pulling his hand back, pulling Kelk in turn off balance. It was put the appellant in the attempt to disengage himself from Kelk's grip pushed forward and that is how the glass came into contact with Kelk's face. The appellant's case was that Kelk tackled him at this point, got him onto the ground and then punched him in the groin. He slammed him against the pool table and put his left hand under his left leg to try to flip him over. It is unnecessary to go further into the details of the fight. It is sufficient to state that the appellant's case was that Kelk was essentially in control for most of this time. 9 It is clear from both the Crown case and the line taken in cross-examination on the appellant's behalf that, aside from the fact that Kelk approached a group which included Fittler, Warhu and the appellant, the fight between Kelk and the appellant did not involve either of the other two men. The appellant submits that whatever occurred between Fittler and Warhu after the initial exchange of words was irrelevant. However, Fittler was a witness to at least part of the events that occurred between the appellant and Kelk. Fittler gave evidence about how, according to him, the argument started and the striking by the appellant of Kelk with the glass. The defence took no point in respect of his evidence. He was cross-examined on the appellant's behalf as to what he had seen of the fight. It was suggested to him that he had started fight and that his friend Kelk had joined him. In re-examination he was asked by the Crown Prosecutor what was happening to him at the time that he saw Kelk and the appellant on the ground. Since there was an issue about the accuracy of Fittler's evidence and it was being contrasted with that of Kelk by the defence, this was a proper question in re-examination and it is not surprising that no objection was taken to it. Fittler answered, "I was turning back around to see the other fellow behind me and as I have turned, I have got hit with the glass myself and pretty much lights out for me."