SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  The appellant appeals his conviction of one count of manslaughter, of Edward Bullock, and one count of doing grievous bodily harm to Carol Hughes.  The Crown case was that he had punched Mr Bullock, causing him to fall to the ground, hitting his head and sustaining fatal injuries, and had struck Ms Hughes, Mr Bullock’s partner, in the face when she tried to defend him.  The sole ground of appeal is that the verdicts of the jury were unreasonable.  That ground was based on arguments that the Crown could not have excluded accident, self-defence under s 272 of the Criminal Code, extraordinary emergency and compulsion in relation to the killing of Mr Bullock, and could not have excluded self-defence under s 271 in respect of the grievous bodily harm done to Ms Hughes.

2. The events happened around midnight on 5 April 2007, and arose out of a fight involving two groups of people near the Brook Hotel at Mitchelton. The appellant, a 37 year old man, was in the company of his 11 year old daughter, three men, Peter Newton, Ian McIlveen and Travis Bergvall-Williams, and a woman called “Siggy”. Mr Bullock, who was aged 52, was with Ms Hughes and two acquaintances named Ricky Heath and Steven Connell. There had been some ill feeling between Ms Hughes and Mr Bullock, on the one hand, and the appellant on the other: there was an allegation that the appellant had sexually assaulted Ms Hughes’ daughter.

3. That evening, Mr Bullock and Ms Hughes had been drinking at the Brook Hotel, leaving there on foot at about 11.30 pm with Connell and Heath. They walked along a roadway which separated the Brook Hotel from the Brookside Shopping Centre. The road ran towards a roundabout which was one means of exit from the shopping centre precinct; beyond the roundabout was a bridge which led to the surrounding suburbs. The appellant and his daughter, who had crossed the bridge and were heading towards the hotel, encountered the Bullock group, and words were exchanged between them. Bergvall-Williams, McIlveen and Newton were approaching from the direction of the hotel when a confrontation took place involving the appellant and Mr Bullock. What happened in it was, typically of such cases, the subject of as many accounts as there were witnesses.

The versions of Mr Bullock’s companions

Ricky Heath

4. Mr Heath said that when the party left the hotel he was not sufficiently sober to drive, but was not very drunk; he was not stumbling. Mr Bullock, Mr Connell and Ms Hughes were all drunk. As they were walking away from the hotel, he saw Ms Hughes, who was ahead of him, cross the street to talk to the appellant.  They spoke for about two minutes, then Ms Hughes returned to the group and the appellant approached them.  He said “Hello” in a sarcastic way to Mr Bullock, who told him to “Fuck off”.  The appellant went on his way towards the Brook Hotel.  Mr Heath and his friends continued to walk in the opposite direction.  The others paused while Mr Connell urinated; Mr Heath walked a little way ahead.  He heard a male voice from behind, repeatedly yelling, “I’m going to kill you, Ted” and “You’ve got your army, I’ve got mine”, but continued walking.  When he was about halfway across the bridge, he turned around to see what looked like arguing and pushing between Mr Bullock and the appellant at the side of the roundabout.  Mr Connell was with them, as was one of the appellant’s friends. 

5. According to Mr Heath, there was swearing and yelling and the pushing escalated into punching. He could see Mr Bullock and the appellant trading blows to each other’s body and face. Asked to describe the type of punches being thrown, he said it “[l]ooked like two drunken men fighting”. The other two men were not physically engaged with the men fighting. He walked back towards them and stopped at the entrance of the bridge to telephone the police. Ms Hughes had been standing within a couple of metres of the fight. He could hear her telling them to stop. Mr Bullock was knocked to the ground. As he lay on his back, the appellant was standing over him, hitting him and kicking at the upper part of his body. Mr Bullock was trying to shield himself and to throw some punches. 

6. Next, Mr Heath said, Ms Hughes tried to pull the appellant off Mr Bullock. The appellant turned and hit her a “reasonably heavy blow” with his fist, striking her in the face. Asked for further detail, he said it was “[a] blow you wouldn’t hit a woman with”. After Ms Hughes was hit, and while Mr Bullock was still on the ground, Mr Connell tried to pull the appellant back. As he was doing so, the appellant kicked Ms Hughes. Mr Connell and the appellant then engaged in an altercation; Mr Heath was unsure whether it merely involved pushing or extended to punching. One of the men with the appellant (from other evidence, Mr Bergvall-Williams) “got into it”. Then it had “more or less broken up”. Mr Bullock got back up, and blows were again exchanged between him and the appellant. At this stage, Mr Connell was off to the right, perhaps doing some pushing and shoving with the appellant’s friend. Very quickly, after a few punches, Mr Bullock fell to the ground, again on his back, and the appellant proceeded to kick him. The two men with the appellant pulled him off. Mr Heath did not see any further interaction between Mr Connell and the appellant, who walked away with his friends, saying, “I’m going to kill you, Ted. I’m going to kill the whole lot of youse”.

7. In cross-examination, Mr Heath conceded that he had made no mention in his police statement of Ms Hughes’ being kicked or of the appellant’s kicking Mr Bullock when he was first on the ground.  He had agreed at the committal hearing that he had heard Ms Hughes accuse the appellant of raping her daughter.  He did not hear any threat from Mr Bullock to kill the appellant and his daughter, but he did not purport to have heard everything that was said.  He had not seen the child when the appellant was talking to Ms Hughes, but did not deny the possibility that she was present.  Ms Hughes was hitting the appellant immediately before he struck her.  Although he had said in his evidence at trial that he did not see any altercation between Mr Connell and the appellant after Mr Bullock was lying motionless on the ground, he had said in his statement that after the appellant kicked Mr Bullock, Mr Connell had got the better of the appellant.

Steven Connell

8. Mr Connell said he had only had five drinks and did not think he was drunk when he left the Brook Hotel that night. None of his companions seemed to be in a particularly drunken state. As they were walking away from the hotel, he saw Ms Hughes walk to the other side of the road and talk to a male before rejoining the group.  The man on the other side of the road said something; Mr Bullock responded to the effect, “You raped Carol’s daughter”.  Mr Connell stopped to urinate.  Their group had resumed walking when he heard a voice yelling, “You’ve got your army, we’ve got our army, let’s fucking do it, cunts”.  He turned to see the appellant running towards them.  Others were coming from the same direction.  The appellant ran up and repeatedly punched Mr Bullock.  One of the appellant’s companions was behind him; Mr Connell warned that man to “stay out of it”.  The appellant was punching Mr Bullock with a clenched fist.  Mr Bullock was not retaliating.  He staggered and walked backwards before falling to the ground. 

9. Ms Hughes moved in to try to assist Mr Bullock. The appellant hit her in the face a number of times. Mr Connell went to intervene by grabbing the appellant, who tried to punch him. He blocked the punch and hit the appellant a few times. As the appellant was getting up, he kicked Ms Hughes. One of the appellant’s companions then kicked Mr Connell and punched him, distracting him. He began arguing with that man. When he next turned, Mr Bullock was on his feet and the appellant was punching his head. He saw Mr Bullock fall straight backwards. He heard a cracking noise and saw a splash of liquid from the back of Mr Bullock’s head as it hit the ground. Mr Connell maintained that he did not see Mr Bullock throw any punch during the entire incident.

10. The appellant kicked Mr Bullock a single time in the neck and head area. Mr Connell then punched the appellant two or three times.  The appellant responded by throwing some punches and said, “You’re dead too, cunt.  You’re fucking dead”.  The appellant looked once more at Mr Bullock on the ground.  He reiterated the “Youse are dead” statement before walking away with his friends, still yelling. 

11. Mr Connell was asked to give some description of the relative builds of those involved in the fight. He was 180 cm and 95 kilograms. (A photograph taken at the time shows him to have had a very stocky physique.) Mr Bullock was a similar height, but of thinner build. The appellant was a couple of inches shorter, but of solid build. His friend was around the same height as Mr Connell and somewhat thinner, perhaps around the 80 or 85 kilogram mark.

12. In cross-examination, Mr Connell agreed that in his statement, made in the early hours of the morning following the incident, he had not mentioned the appellant’s kicking Ms Hughes. He had, he conceded, told the police interviewing him that he was drunk, but he maintained that he was not drunk during the incident; he had had more to drink after it, and was referring to being intoxicated later. He agreed that he might have told a bystander after the incident that four people had kicked Mr Bullock on the ground, but that was not the case.  He had not seen the appellant’s daughter with him when Ms Hughes was speaking to him earlier.  He had heard Mr Bullock accuse the appellant of raping Ms Hughes’ daughter.  He did not see the appellant and Mr Bullock exchange any words before the appellant hit Mr Bullock, nor did he see any pushing and shoving before that occurred.  He agreed he had said on earlier occasions that he had punched the appellant four or five times to the head, and that he had at one stage dragged the appellant up, grabbing him by one arm and hitting him.

Carol Hughes

13. Ms Hughes said that when the group left the Brook Hotel, she and Mr Bullock and Mr Heath were intoxicated, but Mr Connell did not appear to be. Mr Bullock, although fairly intoxicated, was able to walk and was not staggering. She could recall leaving the hotel, but nothing after until she found herself sitting on the roundabout. Mr Bullock was lying on his back on the roadway in front of her making a loud snoring noise. Her next recall was of waking up in hospital with a fractured cheek bone. (A maxillo-facial registrar with the Princess Alexandra Hospital who had treated Ms Hughes confirmed that she had suffered a zygomatic complex fracture; her cheek bone was displaced.) In cross-examination, Ms Hughes agreed that Mr Bullock had disliked the appellant and that her daughter had alleged the appellant had raped her.

The versions of the appellant’s companions and the record of interview

Peter Newton

14. Peter Newton had been at the Brook Hotel with Mr Bergvall-Williams, Mr McIlveen and a woman friend known as “Siggy”.  Mr Newton said that he was “a little bit drunk”; Mr McIlveen was “probably drunk”; and he could not recall what state Mr Bergvall-Williams was in.  They were at the front of the hotel at about 11.30 pm when they heard two males yelling abuse at each other.  The noise continued as they left the hotel, heading towards the roundabout.  About 10 metres ahead of them they saw the appellant and his daughter walking towards them.  The appellant was yelling back at people further along whom Mr Newton could not see.  Mr Newton had previously planned to meet the appellant that night; when they reached him, there was a brief mention of that arrangement.

15. All of them, including the appellant and his daughter, began to walk towards the roundabout, which was on the way to Mr Newton’s house. The appellant was walking about five metres ahead of the rest of the group, followed by Mr McIlveen with Mr Bergvall-Williams behind him. Further back again were Mr Newton, “Siggy” and the appellant’s daughter. Ahead of him, Mr Newton saw two men and a woman standing on the bridge which led away from the roundabout. As they moved towards the roundabout, the appellant was yelling, “Well, here’s the chance now. You’ve got your chance” to the people on the bridge. The group on the bridge were yelling back.

16. The appellant went to a man on the bridge wearing a white shirt (from the context, Mr Bullock), who advanced and began to push him. The appellant pushed back, then the two started to throw punches. Mr McIlveen and Mr Bergvall-Williams were watching from the roundabout. The two knocked each other to the ground a few times. He saw them both on the ground punching each other. The woman with that group (Ms Hughes) got on the appellant’s back, punching the back of his head and telling him to stop. The appellant shrugged her off and told her to “get out of it”. Mr Bullock punched him to the ground again. The appellant got up and re-engaged with Mr Bullock. Then Ms Hughes “started back on” the appellant again. He turned around and hit her, and she fell to the ground.

17. Another male wearing a blue shirt, who was part of the Bullock group (Mr Connell), began throwing punches; both he and Mr Bullock were punching the appellant at the same time. The appellant knocked both of them to the ground. At this point, Mr Newton seems to have confused the protagonists.  He described the man in the white shirt as going down first.  The man in the blue shirt was knocked down after three or four punches, the last of which was “pretty big”.  He remained motionless on the ground, while the man in the white shirt got up and attended to him.  The appellant turned and walked away with Mr McIlveen and Mr Bergvall-Williams.  Mr Newton later saw that he had a black eye.

18. Cross-examined, Mr Newton said that one of the men on the bridge was “threatening to stab or shoot”. The appellant yelled, “you and me one-on-one” to Mr Bullock. It was Mr Bullock who first pushed the appellant. At some time during the altercation, he had heard Ms Hughes say something about the appellant’s doing something to her daughter. He had heard a threat to kill or stab the appellant or his daughter before the fight. In re-examination, asked for the words used, he said Mr Bullock had said something like, “I’m gonna hold a gun to your daughter’s head and I’m going to root her up the arse”. During the fight he had heard Ms Hughes saying that the appellant had done something to her daughter and how would he feel if they did it to his daughter.  Mr Bullock had said something similar during the fight, and it was at that point that the appellant became more aggressive.  Mr Newton then altered his evidence by saying that it was only Mr Bullock who had made the statement about how the appellant would feel if such things were done to his daughter.

Travis Bergvall-Williams

19. Mr Bergvall-Williams said that Mr McIlveen, Mr Newton and Siggy had left the hotel slightly ahead of him. As he started walking to catch up with them, he heard screaming and shouting. Ahead of his friends he saw the appellant, who was yelling abuse. When he encountered the appellant, the latter said that he had just had a bit of a scuffle with other people up the road. He said, “Them cunts threatened to put a bullet in my daughter and fuck her up the arse”. Mr Bergvall-Williams could see a woman and two men on the bridge. The appellant and one of the men, who appeared to be the older of the two on the bridge (Mr Bullock), began bickering. They moved towards each other and started throwing punches. The other man was behind Mr Bullock.

20. The woman (Ms Hughes), meanwhile, was accusing the appellant of having had sex with her daughter. The second man (Mr Connell) moved in and punched the appellant. Mr Bergvall-Williams pushed him off, saying “one-on-one”. He and Mr Connell stood back while the appellant and Mr Bullock continued to fight.  They fell on the ground, kicking and punching each other, then rolled away and got back up and started fighting again.  Ms Hughes stepped in and punched the appellant in the back of the head.  He turned and hit her in the face.  Mr Connell came back in, together with Mr Bullock, to punch the appellant.  Mr Connell then desisted, but Mr Bullock and the appellant continued fighting.  The appellant threw a punch and Mr Bullock fell sideways, landing on his shoulder and then hitting his head on the ground.  He lay there not moving. 

21. It was suggested to Mr Bergvall-Williams in cross-examination that it was while both Mr Bullock and Mr Connell were punching the appellant, and he was hitting back, that Mr Bullock was hit the blow which sent him to the ground the second time. He agreed with that proposition.

Ian McIlveen

22. Mr McIlveen said that when he left the Brook Hotel he was too drunk to drive but was not having difficulty walking. As they came out of the hotel at around midnight, he could hear yelling coming from down the road towards the roundabout. They encountered the appellant with his daughter. The appellant was approaching them but was turning back to yell at the group up the road. Mr McIlveen could recall the appellant saying:

“They threatened to rape and kill my daughter.”

They agreed that he would go with them to have a drink.  As they walked towards the roundabout, the appellant was a couple of metres ahead and the yelling started up again, both from the appellant and from the group further on. 

23. Mr McIlveen remembered seeing three men and a woman as a group at the roundabout, as well as another, younger man on the bridge. The woman was shouting that the appellant had slept with someone’s daughter. Of the three men with her, one man was stocky (Mr Connell). Another was older and taller; he was the man who ended up lying on the road; it follows that he was Mr Bullock. The third man was big and had a moustache (which both Mr Bullock and Mr Heath did); he was later on the telephone when Mr Bullock was lying on the road. Mr Connell and the appellant shaped up to each other; Mr Bullock looked happy to stay out of it. Mr McIlveen could not remember him coming in till the very end of the altercation. The man with the moustache joined Mr Connell in fighting the appellant. Two of the protagonists fell on the ground.

24. At some stage the man with the moustache grabbed the appellant while Mr Connell was “kneeing him in the guts”. Ms Hughes was hitting the appellant in the back of the head. He swung around and hit her with a “blind punch” over his shoulder, and she dropped to the ground. Mr Bullock came across; there was an altercation between him and the appellant, who then returned to fight one of the other men. Mr McIlveen had moved away to find the appellant’s daughter when he heard the sound of someone being hit.  When he turned around, Mr Bullock was lying in the middle of the road.  In cross-examination, Mr McIlveen agreed that on 6 April 2007, in his police statement, he had said that he had seen a scuffle break out between the appellant and the older man, who had pushed the appellant and was grabbing at the top half of his body.

The appellant’s daughter

25. In her interview with the police on the following day, the appellant’s daughter said that she initially saw Mr Bullock, Ms Hughes and two men she did not know at the roundabout. In that encounter, Mr Bullock had said to her father that he would shoot both of them if he had a gun, and that it was lucky he did not have a knife with which to slash her throat. Once they had met Mr Newton and the others they began to walk back towards Mr Newton’s house. Then Mr Bullock said to her father, “Do you want to have a go at me?” so her father walked up to him. Mr Bullock threw the first punch.  Two other men jumped on her father’s back and started hitting him on the back and punching him in the jaw.  The appellant pushed Mr Bullock off and made him fall down.  While Mr Bullock was getting up, the other two were jumping on the appellant’s back and punching him.  One was holding him while the other punched.  Mr Bullock got up and joined in again.  Then Ms Hughes got involved and accused the appellant of raping her daughter.  The appellant pushed Ms Hughes down.  At that point the child started to walk away. 

26. In her pre-recorded evidence, the appellant’s daughter confirmed in cross-examination that it was Mr Bullock who threw the first punch without warning. Ms Hughes had been hitting her father before he pushed her.  In re-examination, she said she thought she had seen Mr Bullock fall down twice.  She was not sure how he came to fall a second time; the appellant might have pushed him.

The appellant’s record of interview

27. The appellant took part in a record of interview on 6 April 2007. He said that he had been walking home with his daughter when he encountered Ms Hughes and Mr Bullock.  Ms Hughes warned him not to cross the road.  He did not immediately understand what she meant until he saw Mr Bullock on the other side.  He crossed over and there was some yelling between him and the group at a distance of five or ten metres.  Mr Bullock had shouted that if he had a gun he would kill the appellant and his daughter and that he was going to slice his daughter’s throat. 

28. He confronted Mr Bullock. The two of them were pushing and shoving, and then Mr Bullock hit him in the face. He began to defend himself, having “a go back”. Another man jumped in, as did Ms Hughes. She was claiming he had raped her daughter and he thought he had turned around and hit her. Mr Bullock and his friend were holding him and punching him; he had been hit between six and ten times in the face. There might have been a third man involved. He was fighting back and protecting himself and his daughter and was unsure who he had hit. He called for help; Mr Bergvall-Williams arrived and pulled one of his assailants off him. He saw Mr Bullock lying on the ground; he did not know how he might have got there. He had not spoken to the group Mr Bergvall-Williams was with before the fight.

Other witnesses

29. A security guard from the shopping centre was working nearby and heard the two groups shouting at each other. He could make out someone saying something had been done to someone’s daughter and “I know where you live. I’m going to kill you”. He could see the two groups at the roundabout in what he described as a “melee”. He made his way there in time to see a man lying on the ground being given first aid. A motorist who had been driving north through Brookside at about 11.40 pm that night said that he came across four people at the roundabout, who included a woman and a man with a moustache. When he returned some little while later, he saw the man lying on the ground.

30. Franco Di Lorenzo was a friend of the appellant and had spoken to him by telephone after the events of the night. The appellant appeared to be sober during that conversation. The appellant told him that he had confronted someone who had said that he wanted to “fuck your daughter”, which had caused the appellant to hit him. Then a girl had jumped on his back and started punching the back of his head. He threw her off but she kept punching him, so he hit her to get away because another man was coming towards him.

The medical evidence

31. Mr Bullock was 52 years of age. He weighed 73 kilograms, and was 188 cm in height. He was taken to hospital where a CT Scan showed that he had a left-sided subdural haematoma with extensive brain swelling. He was declared dead later that day. His blood alcohol concentration had been recorded at .18 mg/100 ml at about 1.00 am.  That level of inebriation would, a government medical officer said, have caused some muscular incoordination. 

32. A forensic pathologist who examined Mr Bullock’s body gave his opinion that the cause of death was head injury through swelling, which had caused compression of some of the structures of the brain, in turn leading to necrosis of brain cells, and death. The injuries were consistent with a person falling and striking the back of his head. There were fractures to the back of the skull, which were to be expected when someone fell unprotected onto his back, striking his head on a firm surface. The fall could have been the result of a moderate punch. Mr Bullock had other injuries to his face: an abrasion to the upper forehead, a black eye and a number of bruises on the nose and cheek, and behind the left ear. The pathologist thought there might have been about three blows causing those injuries, involving a mild to moderate degree of force. There were also bruises to Mr Bullock’s buttocks and back which could have been caused by a blow with a fist or foot, but it was impossible to be certain.

33. The appellant was examined by a government medical officer on 6 April 2007. He had a raised bruise two centimetres by two centimetres on the outer aspect of his left eye, with tenderness in his cheekbone. His jaw was not tender. There was a 23 cm scratch down his inner right arm, two small scratches on his legs and an abrasion on his left kneecap.  The facial bruise and cheekbone tenderness might have been the result of one blow of moderate force delivered with a fist, but the government medical officer could not rule out two blows.  The abrasion on the kneecap could have been the result of the knee coming into contact with the ground. 

The defences

34. The appellant’s principal argument in support of the ground that the manslaughter verdict was unreasonable was that the Crown could not have excluded, beyond reasonable doubt, self-defence under s 272(1) of the Criminal Code.  That sub-section provides:

“When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.”

35. The jury could not have been satisfied beyond reasonable doubt, it was said, that the assault on the appellant by two or possibly three people towards the end of the confrontation was not such as to cause reasonable apprehension of death or grievous bodily harm. Nor could the prosecution exclude that the appellant believed, on reasonable grounds, that it was necessary for him to preserve himself from death or grievous bodily harm to use the force he did; and the prosecution could not satisfy the jury beyond reasonable doubt that the force used exceeded what was reasonably necessary to save the appellant from death or grievous bodily harm. It was a brief and violent melee. The critical point of the fight was when Ms Hughes became involved and others came in. No weight should be given to Mr Connell’s evidence because of inconsistencies with what others had said: on his version, the appellant was hitting Mr Bullock, and Mr Bullock was not retaliating; and he claimed that he was not hitting anyone during the end of the fight.

36. With considerably less conviction the appellant suggested that the defences of accident under s 23(1)(b), extraordinary emergency under s 25 and compulsion under s 31(1) of the Criminal Code had not been excluded. 

37. Section 25 provides that:

“… a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

Section 31(1) excuses a person from criminal responsibility if his act is done under circumstances which include:

“(c)when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;

(d) when—

1. the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

2. the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

3. doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”

38. The argument as to accident was that there was no evidence to suggest that the appellant in fact foresaw Mr Bullock’s death as a possible outcome of his assault, and an ordinary person in his position would not reasonably have foreseen it as a possible outcome. And the prosecution had not established that the circumstances confronting the appellant did not amount to a sudden or extraordinary emergency so as to exclude the defence under s 25. Nor had it proved beyond reasonable doubt that an ordinary person with ordinary powers of self-control could have reasonably been expected to act differently from the way the appellant acted.

39. The defence of compulsion arose under s 31(1)(c) – the appellant’s act was reasonably necessary to resist actual and unlawful violence threatened to him or his daughter; or, alternatively, under s 31(1)(d): the appellant had assaulted Mr Bullock in order to save himself or his daughter from serious harm or detriment threatened to be inflicted by Mr Bullock who was in a position to carry out the threat; the appellant reasonably believed he was unable except by assaulting Mr Bullock to escape the carrying out of the threat; and his assault of Mr Bullock was reasonably proportionate to the harm or detriment threatened. The Crown could not exclude any one of those possibilities beyond reasonable doubt.

40. As to the assault on Ms Hughes, it was said that the Crown had not excluded a defence under s 271(1) of the Criminal Code:

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.”

The appellant had not provoked her assault, and it was lawful for him to use force to Ms Hughes which was necessary to make effectual defence against her assault of him.  The force used was neither intended nor likely to cause her grievous bodily harm, although it in fact did.

Discussion

41. On any view of the evidence, apart perhaps from an acceptance of the appellant’s statements in his record of interview, the jury was entitled to conclude that the defences of extraordinary emergency and compulsion were not made out. If there were a threat made to the appellant or his daughter, it was one from which they had both been able to walk away without hindrance from Mr Bullock or anyone in his group. It was the appellant who chose to walk back in the direction of Mr Bullock, and to walk right up to him. On no view could the appellant’s acts thereafter be considered reasonably necessary to resist any threatened violence, harm or detriment. There was a clear alternative, which was simply to keep walking away. There was nothing in the situation which amounted to circumstances of sudden or extraordinary emergency.

42. As to accident, while the jury might not have been satisfied in all the evidence that the appellant foresaw the death of Mr Bullock as a possible outcome of his punching him, it was clearly open to it to take the view that it was reasonably foreseeable that a punch of some force – “pretty big”, as Mr Newton described it – would cause Mr Bullock to fall so as to hit his head on the bitumen surface of the roadway, with the likelihood of brain injury as explained by the forensic pathologist.

43. The appellant’s argument that the jury could not have found that the prosecution had negated self-defence under s 272(1) in respect of the death of Mr Bullock depended on the premise that Mr Connell’s evidence should have been rejected, leaving the sequence of events in such doubt that the defence could not be excluded. But the evidence of Mr Connell could reasonably have been accepted. The jury could rationally have regarded any apparent inconsistency between his statement that Mr Bullock did not throw any punch, and other evidence that he did, as explained by the fact that, for some of the time at least, Mr Bergvall-Williams distracted his attention from Mr Bullock.

44. Mr Connell’s account that he was not punching anyone from the time Mr Bullock got up after his first fall, and that the appellant was involved in a one-on-one fight with Mr Bullock, was consistent with what Mr Heath said: that Mr Connell was preoccupied with one of the appellant’s friends at the time when the appellant and Mr Bullock were engaged in the exchange of punches which led to Mr Bullock’s second fall to the ground. It was also consistent with what Mr Bergvall-Williams had said in evidence in chief, although he appeared to reverse his position when a different scenario was put in cross-examination. Against it was the evidence of Mr Newton and Mr McIlveen.  The former’s evidence was unarguably confused about the respective roles of Mr Bullock and Mr Connell towards the end of the fight, and Mr McIlveen was the only one to suggest the involvement of Mr Heath in the struggle.  There was cause for the jury to doubt their accounts.

45. If the evidence of Mr Heath and Mr Connell were accepted, that the appellant was punching Mr Bullock at a time when he was himself subject to no other assault, it was open to the jury to be satisfied that whatever fight Mr Bullock was putting up was not so violent as to cause the appellant reasonably to apprehend death or grievous body harm; or, alternatively, that the appellant did not believe on reasonable grounds that it was necessary that he punch Mr Bullock to preserve himself from death or grievous bodily harm; or that the force he used in punching him was more than was reasonably necessary to save himself.

46. As to the assault on Ms Hughes, on Mr Heath’s evidence she had done no more than try to pull the appellant from Mr Bullock, whom he was hitting and kicking as he lay on the ground. At the highest, she had punched him in the back of the head. The jury might well have accepted that her assault of the appellant, such as it was, was not unlawful in an attempt at protecting Mr Bullock, or that the appellant had provoked it in any event, given that he was hitting her partner. If the jury accepted the evidence of Mr Heath, as to the blow being “[a] reasonably heavy blow … [a] blow you wouldn’t hit a woman with” (a view which would have been reasonable given the medical evidence as to the damage done to her), it might also have concluded that the force he used was not reasonably necessary to make effectual defence against her. Alternatively, the jury could also perfectly reasonably have concluded that the force the appellant used against Ms Hughes was likely to have caused her grievous body harm.

Conclusion

47. Verdicts of guilty on both the manslaughter and the grievous bodily harm charges were properly open to the jury. The verdicts returned were not unreasonable and the appeal against the convictions should be dismissed.

48. ATKINSON J:  I agree with the order proposed by Holmes JA and with her Honour’s reasons. 

49. DAUBNEY J:  I also respectfully agree with the reasons for judgment of Holmes JA and would order that the appeal be dismissed.