Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204

Reported Decision: 67 ACSR 692[2009] ALMD 3512[2009] ALMD 3513[2009] ALMD 351473 NSWLR 241[2009] ALMD 2963188 A Crim R 29926 ACLC 984

New South Wales Court of Appeal

CITATION: Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 July 2008

JUDGMENT DATE: 9 September 2008

JUDGMENT OF: Allsop P at 1; Beazley JA at 27; Ipp JA at 30

1. The appeal is upheld 2. The judgment and orders of O'Toole DCJ are set aside DECISION: 3. The matter is remitted to the District Court for rehearing 4. The plaintiff to pay the defendant's costs of the appeal 5. The plaintiff to have a certificate under the Suitors Fund Act if otherwise entitled 6. The costs of the trial to be determined by the judge hearing the retrial

CATCHWORDS: CRIMINAL LAW – corporate criminal liability – whether company capable of committing an offence – effect of section 16 of the Crimes (Sentencing Procedure) Act 1999 – meaning of section 10(1) of the Criminal Procedure Act 1986 - CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – rejection of vicarious criminal liability absent statutory intervention – statutory construction of the offence of assault – whether assault an offence of absolute or strict liability - CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – application of Tesco Supermarkets Ltd v Nattrass [1972] AC 153 – directing mind and embodiment of a company – whether admission of vicarious liability also an admission as to directing mind and embodiment – relevance of company purpose - CRIMINAL LAW – criminal offences – assault and battery – elements of assault and battery - EVIDENCE – credibility findings – failure to identify basis of adverse credibility findings - TORTS – intentional torts – assault and battery – defences – self-defence – Civil Liability Act 2002 – section 52(2) – onus of proof – elements of self-defence – two-stage inquiry – relevance of intent to injure to a claim of self-defence - TORTS – intentional torts – assault and battery – where injury occurred following the commission of separate offences by the plaintiff and defendant – Civil Liability Act 2002 – approach to section 54 – section 54(1) – whether conduct constitutes a serious offence – section 54(2) – onus of proof – section 53 – failure to explain why the failure to award damages would be harsh and unjust.