R v Martin and Cushman [1999] NSWSC 1048

New South Wales Supreme Court CITATION : R v Martin and Cushman [1999] NSWSC 1048 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70041/97; 70270/97 HEARING DATE(S) : 26 August 1999, 14 September 1999 JUDGMENT DATE : 14 September 1999

PARTIES : Regina v Aaron Lee Martin Regina v Sean Leigh Cushman JUDGMENT OF : Simpson J at 1

Crown: R Cogswell SC COUNSEL : Aaron Lee Martin: P Bodor QC Sean Leigh Cushman: S Hanley Crown: S E O'Connor SOLICITORS : Aaron Lee Martin: J B Hajje Sean Leigh Cushman: R J Freeman CATCHWORDS : Jury verdict: Martin convicted of the offence of maliciously inflicting grievous bodily harm with intent to do so; Cushman convicted on a charge of being an accessory after the fact of Martin's offence. DECISION : See paragraphs 65 and 66

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

SIMPSON J

Tuesday 14 September 1999 70041/97 70205/97 REGINA v Aaron Lee MARTIN REGINA v Sean Leigh CUSHMAN SENTENCE

HER HONOUR : 1 The prisoners, Aaron Lee Martin and Sean Leigh Cushman, appear for sentence following their convictions by a jury on 16 July 1999. Martin was convicted of the offence of maliciously inflicting grievous bodily harm on Brian Hagland with intent to do so. Cushman was convicted on a charge of being an accessory after the fact of Martin's offence. 2 Martin was arraigned on an indictment containing three counts, of which the second and third were alternative to the first, but cumulative upon one another. The principal charge against him was that, on 7 September 1996, he murdered Brian Hagland. The two alternative charges were that he maliciously inflicted grievous bodily harm on Mr Hagland with intent to cause such harm. One of these involved an allegation that Martin engaged in an act of strangling Mr Hagland. The other involved an allegation that he kicked Mr Hagland. Also left to the jury were the further alternatives of manslaughter and maliciously inflicting grievous bodily harm but without the specific intent to cause such harm. The jury having convicted of the offence which included the element of specific intent of specific intent, it was unnecessary to proceed to the statutory alternative. 3 At the end of the Crown case in respect of the count of maliciously inflicting grievous bodily harm with intent by kicking, I directed the jury to return a verdict of not guilty which the jury duly did. After deliberation the jury found Martin not guilty of murder and not guilty of manslaughter but guilty of the surviving charge of maliciously inflicting grievous bodily harm with intent to do so. 4 Cushman was arraigned on a single charge that he was an accessory after Martin's malicious infliction of grievous bodily harm with intent and was convicted on that count. Although an alternative charge that he was an accessory after the fact of the malicious infliction of grievous bodily harm (but without specific intent) was left to the jury, having regard to its verdict on the principal charge, it was unnecessary for the jury further to consider that alternative or to return a verdict with respect to it. 5 It is now my task for sentencing purposes to determine the facts of the offences, consistent with the jury's verdicts. The circumstances of the charges, the acquittals, and the verdicts of guilty present a complex fact finding exercise. It is necessary to delineate with some particularity the facts I find as the basis for sentence. At the outset it is necessary to repeat that the offence for which I have to sentence Martin is the single offence on which he was convicted by the jury. It is no part of my sentencing function to punish him because the events which I am about to recount resulted in the death of Mr Hagland. While it is impossible to forget the tragic outcome of these events, it is to be steadily borne in mind that the jury, who heard the whole of the evidence and who deliberated for some days, found him not guilty of the major offences. Nor is it any part of my function - or that of anybody else - to question the jury's verdict, or to attempt to discern the basis on which they reached that verdict. It may be that different members of the jury arrived at the same verdict by different means. In any event the fact is that the jury were not satisfied beyond reasonable doubt that Martin was guilty of any offence causing death. 6 It was the Crown case that on the evening of 7 September 1996, Martin, together with some associates including Cushman, was drinking at the North Bondi RSL Club. Martin was intoxicated and became progressively more aggressive as the evening wore on. He engaged in a significant act of vandalism at the Club, breaking the glass pane of a toilet door with his fist, and threatened to throw a stool at the bar. His behaviour led Cushman to take him from the Club, intending to help him into a taxi to take him home, before himself returning to the Club. En route from the Club, Martin engaged in many additional acts of vandalism and aggression. His hand was bleeding from the injury he had suffered in smashing the glass in the door at the Club and he smeared blood on buildings through which he and Cushman passed. He broke the glass door of a restaurant which they passed. He behaved aggressively towards individuals the two encountered. I am satisfied beyond reasonable doubt that for a sustained period he was in a belligerent and antagonistic mood, and that this mood was reflected in his general behaviour. 7 Near Campbell Parade, Cushman and Martin encountered Mr Hagland and his companion, Ms Connie Casey. Martin and Mr Hagland quickly became embroiled in a serious physical fight. At one point Mr Hagland was on the ground, the whites of his eyes showing, with Martin's hands around his neck, strangling him. This was the act that constituted the offence of maliciously inflicting grievous bodily harm with intent, on which the jury convicted. Later, the two men were standing, locked together physically in something like a wrestling position. Mr Hagland was able to bite into Mr Martin's chest, inflicting a wound of considerable seriousness. Precisely what happened thereafter can only be determined by inference, there being no eye witness who could give an accurate account. What is clear, however, is that Mr Hagland was struck by a bus, and sustained massive multiple injuries that caused his death. The Crown case in support of the charge of murder and the alternative of manslaughter was that Martin deliberately and knowingly threw Mr Hagland into the path of the bus. 8 Cushman remained on the periphery. He played no part in these events. A little while after, he met Martin in a nearby park, hailed a taxi and directed the driver to take Martin home. It was this assistance that constituted the accessorial offence alleged against him and which the jury found to have been proved. 9 It was alleged in the Crown case, and denied by Cushman, that Cushman gave the driver money for the fare. It is unnecessary to resolve this conflict since it makes not the slightest difference for sentencing purposes. 10 The Crown has invited me to find that Martin's behaviour that night constituted a vicious, sustained and unremitting attack, late at night, in a public place, on a complete stranger, by a drunken man who had a history of being violent after consuming alcohol; and that the assault was committed with intent to cause very serious injury to Mr Hagland; and that such injury was in fact caused. Some of these facts are necessarily implicit in the jury's verdict. 11 In order to determine whether this series of propositions (and which of them) can be sustained it is necessary to examine, firstly, the evidence concerning the commencement of the encounter between the two men. 12 I am satisfied that Martin was in a very intoxicated state, and his intoxication manifested itself in the aggressive and uncontrolled behaviour I have already described. 13 A significant issue concerns the circumstances in which Mr Hagland and Mr Martin came into physical conflict. The Crown has urged that I should be satisfied beyond reasonable doubt that Martin was the sole aggressor and that he launched an attack on Mr Hagland that was entirely unprovoked. The nearest eye witness at the confrontation was Ms Casey. As she described the encounter, Martin came towards Mr Hagland, moving aggressively, his eyes staring wildly. She described the movement as like shadow boxing, Martin dancing on the balls of his feet. His behaviour prompted her to tell Mr Hagland not to look at him, and to endeavour to walk past the men without any trouble. She said Mr Hagland said that he did not want any trouble, he was just going home. She said Martin punched out at the top of Mr Hagland's chest, Mr Hagland tried to push him away, and the two shortly after were lying on the ground with Mr Hagland's head in the gutter. She said Martin then was pressing down on Mr Hagland who was a very big, healthy, fit man but, who was nonetheless overcome by Martin. 14 In contrast, evidence was given by two other witnesses who observed the commencement of the confrontation. Mr Paul Green saw the two men as they passed each other and saw them turn around. He heard Mr Hagland twice ask Martin to repeat what he had said although Mr Green had not heard any remark from Martin. He gave no evidence of observing the behaviour described by Ms Casey on the part of Martin. Mr Green crossed to the other side of the road and heard a loud thumping sound, turned around and saw the two men lying on the ground. 15 Mr Khufu Amon Ra happened to be looking out of the window of his nearby second floor flat when he saw the two men meet. He did not hear any words but observed what was apparently an exchange of words, with Mr Hagland turning around to say something. Mr Amon Ra moved away for a few minutes and then returned to the window and saw the two men scuffling and fighting. He also heard Ms Casey say something to the effect of "Let's just go". He said the fight started by the two men grabbing each other somewhere around their coats or shirts in the chest or lapel area, and both were pushing and shoving. He said that the fight was like wrestling, each man trying to get the advantage of the other. He did not see Martin dancing on the balls of his feet, or shadow boxing. 16 Martin gave a quite different account of the commencement of the encounter. He described walking with Cushman from the Club, and coming across Mr Hagland and Ms Casey. He said he made an offensive remark about Ms Casey which provoked Mr Hagland to ask him to repeat what he had said, followed by an invitation to a fight. Martin claimed that he, that is Martin, said something to the effect of: "Do you want to dance?" or "Let's have a go". He said that Mr Hagland then put down the items he was carrying and took a step. Martin was not sure then who grabbed who first, but he thought the two acted almost simultaneously. He denied having moved in front of Mr Hagland with his fists up. He said he was responding to some sort of challenge issued by Mr Hagland. 17 Cushman also gave evidence in this respect and said that he heard Mr Hagland asked Martin to repeat what he had said. 18 It will be seen that there is significant variance between the account given by Ms Casey on the one hand, and the accounts given by the remaining four witnesses on the other. On Ms Casey's account, no aggression or provocation or, indeed, participation, could be attributed to Mr Hagland before Martin descended upon him in an entirely unprovoked physical assault. The accounts of the other four witnesses do not support that description. These attribute a modest, and I repeat modest, level of involvement at an early stage to Mr Hagland. 19 The Crown invited the jury, as it has invited me, to prefer the description given by Ms Casey to that of the two prisoners and the witnesses, Messrs Green and Amon Ra. It was put that, as Ms Casey was closer to what was happening, and was more intimately involved, she was therefore more likely to be an accurate observer. There is a certain amount of logic in that proposition, but it is not the whole of the story. I do not think it is possible to accept it in its entirety and certainly not to the standard necessary for a finding of fact adverse to Martin for sentencing purposes, which must be a finding beyond reasonable doubt. The accounts given by Martin, Cushman, Messrs Green and Amon Ra interlock in a fashion that excludes a finding beyond reasonable doubt of the contrary proposition. In this respect the evidence of the independent witnesses is most significant. Messrs Green and Amon Ra were uninvolved and may be taken to have an objectivity that cannot be attributed to any of the other three. I accept that Ms Casey was closer to what was happening, but her intimate involvement and her obvious fear at the time tinges her account in a way that makes it necessary to give careful attention to the evidence of the two independent observers. In my opinion, the most likely scenario is that Martin did indeed make the offensive remark of which he gave evidence and that this was a provocative event, inciting a response from Mr Hagland of the kind described, and that the two men thereupon mutually and virtually simultaneously became involved in a physical fight which rapidly escalated and went out of control. 20 It is next necessary to consider the act of maliciously inflicting grievous bodily harm. This, as I have said, was constituted by the attempt to strangle Mr Hagland. In this respect the only direct evidence is that of Ms Casey and of Martin. Ms Casey described this event in the following way: "I could see his back and his arms. Basically it was like he was doing some sort of press-up, he was holding his upper body up on Brian and the hands were going backwards and forwards. Brian was flat out underneath him. The only thing I could see moving of Brian was his feet at that point. Still trying to move his legs off him."