R v AMBROSOLI [2002] NSWCCA 386

Reported Decision : (2002) 55 NSWLR 603 (2002) 133 A Crim R 461

New South Wales Court of Criminal Appeal

CITATION : R v AMBROSOLI [2002] NSWCCA 386 FILE NUMBER(S) : CCA 60886/01 HEARING DATE(S) : 1 July 2002 JUDGMENT DATE : 30 September 2002

PARTIES : Regina Richard Patrick Ambrosoli JUDGMENT OF : Mason P at 1; Hulme J at 76; Simpson J at 77

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0470 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : Crown: GIO Rowling Appellant: JS Stratton SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys CATCHWORDS : Evidence Act s65(2)(b),(c) & (3) - Justices Act s48AA, 48A-H DECISION : Appeal dismissed

- 1 -IN THE COURT OF CRIMINAL APPEAL CCA 60886/01

MASON P HULME J SIMPSON J

Monday, 30 September 2002

REGINA v Richard Patrick AMBROSOLI Judgment 1 MASON P: The appellant was tried and convicted in the District Court on an indictment containing charges of malicious wounding and assault. He was sentenced to imprisonment for four years with a non-parole period of two years on the first count and to a concurrent term of imprisonment for one year on the second count. 2 The charges arose out of a mêlée at a New Year's celebration on 1 January 2000 at the Proud Aussie Tavern at Halliday's Point near Taree. 3 The circumstances of the offences were described in the following terms by the trial judge (Twigg DCJ) in his remarks on sentence: Shortly after midnight on 1 January 2000 the offender was dancing with friends on the dance floor and so too was the victim David Cruickshank. Cruickshank was carrying a glass of beer in his hand and was, so Cruickshank said, fairly drunk, having consumed about fifteen to sixteen schooners of beer that evening. He tripped over a speaker, fell to the ground and spilt his drink onto that speaker. He was approached by the offender and an altercation took place. There were differing versions at the trial, from various of those who were witnesses, as to how the altercation started and who instigated it however during the altercation Ambrosoli struck Cruickshank in the face with his right hand which was then holding a glass previously held by Cruickshank. The glass broke on impact causing a number of lacerations to the chin and lip of the victim. That is the subject of the malicious wounding conviction. Ambrosoli said, later, to Robert Wickenden, that he did not realise at the time he had the glass in his hand. After the incident there was a melee involving the victim, Ambrosoli and a number of other of the hotel patrons. Again differing versions as to who caused it but Ambrosoli kicked Cruickshank – this was the assault – and that was admitted by Ambrosoli in the record of interview with Police. Although he had the opportunity the offender did not give evidence at his trial but he had given a version of events in the record of interview. The basis of that was that Cruickshank was on the dance floor because of his annoying behaviour when he bumped into Ambrosoli and his girlfriend a number of times. He saw him fall over the speaker and spill the beer so he tried to help him. He stated he picked up the glass from the floor and while helping him to his feet Cruickshank wriggled, thrust and thrashed about and his face bumped the glass, smashing it causing the cuts to his face. The essence of that explanation was that there was no malicious intent but that it was an accident. The offender told Police that whilst he was being held he saw Cruickshank hitting his sister-in-law so he kicked him in the head. Once again he claimed his actions were justified in defence of someone else. By the jury's verdict that claim of accident or self-defence was clearly negated. That verdict also rejects the evidence of those witnesses who in any way tended to support it. There was strong evidence before the jury, from Crown witnesses, that the offender Ambrosoli was the aggressor during this incident and it was clear that, when the victim was kicked, he was being held. The offender has said more than once, particularly today on his oath, that he likes to have a fight and he prides himself as to his boxing capacity.