The Queen v AJM[2018] QCHC 1

CHILDRENS COURT OF QUEENSLAND

1. [1]
   The defendant, is charged that on 20 August 2015 at Woodridge in the State of Queensland, he unlawfully did grievous bodily harm to Mulu Yenehun Zenebe. The defendant has pleaded not guilty to this charge, and pursuant to s.98 Youth Justice Act 1992 he has elected trial by judge alone.

2. [2]
   The particulars of this charge provided by the prosecution, exhibit 2, were that in the course of a fight at a park at Woodridge on the night in question the defendant struck Mr Zenebe (the complainant) to the left hand causing a fracture that, if left untreated, would cause or be likely to cause permanent injury to health.

Evidence at the trial

3. [3]
   The complainant was born on 13 July 1997. He knew the defendant because they used to go to the same school, and “we used to kick back together.”  He said he knew the defendant for about a year and a half.

4. [4]
   At around 6 or 7pm on the night in question he was at the house of a friend, Amos, at Trinder Park. The other persons there were Amos, Bukuru, Lue-Shane and Abdul. They were “chilling,” sitting around, talking and listening to music.  He stated that he was not drinking alcohol that evening, nor was anyone else. 

5. [5]
   During the evening, the defendant telephoned Abdul, and the conversation was placed on loud speaker. “The defendant was telling us he wants to fighting and stuff, and swearing about his mum and stuff, was teasing him, and Abdul was getting angry.  They were just talking about – they want to fight and stuff”.  After hanging up, the defendant called back again, swearing about Abdul’s mother and calling them to come out and fight.

6. [6]
   The complainant and his companions then drove to a park to see the defendant. They drove the complainant’s father’s car, a white Honda. There was one baseball bat in the car. Once they arrived at the park, they waited until the defendant and his brothers, and a person named “Hassan” arrived in their car.

7. [7]
   The complainant said, “we went out of the car and they came out, but they had weapons.  We didn’t have weapons, we only had one baseball bat.  We left our baseball bat in the car.  When they – when they had weapon we just spread out and then we….”.  The complainant went on to state that the defendant had a metal baseball bat, while his “big brother” had a knife.  He did not know what the defendant’s brother, JM, had but stated that Hassan was not carrying anything. 

8. [8]
   When it was observed that the defendant and his companions had weapons, one of his group tried to go back to the car to grab the baseball bat; he thought it was either Bukuru, or Lue-Shane. At this point each group was standing behind their respective cars.

9. [9]
   The complainant then stated that JM “came running through with the baseball bat and then we started fighting, but – and, Abdul, he – he started hitting his brother, JM, and AJM was behind them and then AJM came to me, and that’s when he tried to hit me in my head.  And then when I put my hand up that’s when my hand broke.” He clarified that at that time JM and Abdul were punching each other they did not have weapons. 

10. [10]
    The complainant said that when the defendant came toward him he was running away because he did not have a weapon. He said that before he was struck he told the defendant to drop his weapon and just to fight with their hands, but the defendant didn’t listen. He said that he wasn’t holding anything when the defendant ran toward him, nor did he threaten him.

11. [11]
    In the course of his evidence, the complainant demonstrated how he had raised his left hand to protect his head. His left hand was pressed against the left side of his forehead, fingers splayed and palm facing outwards. He stated that the metal baseball bat hit him on the little finger of his left hand.

12. [12]
    The complainant stated that after the baseball bat struck his little finger, he grabbed the defendant on the shoulder, and the defendant grabbed him around the collar of his shirt. At that time he observed that his finger was cut and bleeding.

13. [13]
    After he grappled with the defendant, the defendant let go and went toward Abdul and struck him with the bat, because Abdul was beating up the defendant’s brother.

14. [14]
    The complainant started walking back to the car, when he heard the sirens of police cars approaching. Everyone ran to get away; he tried to start his car but it wouldn’t start. He told Bukuru and Abdul to run away, while Lue-Shane stayed behind with him. He was asked by the Crown Prosecutor why he did not want to speak to police; the complainant said he did not know why.^[1] 

15. [15]
    The complainant acknowledged that Lue-Shane gave the police a wrong statement about what had happened. He was still in pain from his injury to the finger and the police called the ambulance, which took him to Logan Hospital.

16. [16]
    In cross-examination, the complainant admitted that he told the police who first arrived at the park that there was a plan to meet at Oates Park to fight. The complainant also acknowledged that at the committal hearing he said “we didn’t want to tell them the truth, so we just made that up.”  He then added that he wasn’t the one talking to the police, it was Lue-Shane. 

17. [17]
    The complainant acknowledged that he signed a police statement at the time that he did not wish to make any complaints of assault in relation to the incident, and that he did not know who hit him, as there were a number of people at Oates Park fighting.^[2]

18. [18]
    The complainant admitted that was a lie he told to the police, because on his evidence he did know who had hit him. He admitted that he said at the committal that the reason he lied to the police was because he wanted to get revenge himself.

19. [19]
    He denied the proposition that he and his companions had been to the defendant’s brother’s unit looking for the defendant that night, and that he and his companions had thrown rocks on the roof of the unit. He denied the suggestion that Abdul had a knife that evening.

20. [20]
    The complainant was asked about why he did not mention the baseball bat in his car in his formal police statement given to police after his release from the hospital. He responded that it was missing from his statement because the police didn’t ask him about it.

21. [21]
    The complainant agreed that he might have told the police in his formal statement that the defendant, his brothers and Hassan came running from near a house across from the park, rather than arriving in a car. He said however that he was sure that they arrived by car.^[3]

22. [22]
    The complainant was questioned about the order of events that he described at the committal, which was different from the order he gave in evidence at the trial. The complainant explained that conflict by saying that the description he gave in his police statement was referring to another day when there was fighting in the park; he maintained that version despite being reminded that his formal statement was dealing only with the events on Thursday 20 August 2015.^[4]

23. [23]
    The complainant was also questioned about the conflict in his evidence, because at the committal hearing he said in evidence that the baseball bat in his car remained there.

24. [24]
    Dr Eder Saul gave evidence by telephone. He treated the complainant when he arrived at the emergency department at Logan Hospital on 20 August 2015. He considered that the force required to cause the laceration and fracture to the little finger on the left hand was “a sufficient big force to break the bone, as well as cause the laceration on top of the finger.”  In cross-examination, the Doctor acknowledged that if the finger had been caught between the clash of two metal or hard objects, that would be consistent with the force required to cause that injury.^[5]

25. [25]
    Abdularahman Ahmed Ali gave evidence at the trial. He was the person known as “Abdul”. He had known the complainant from school, and had known him for about four years. He knew the defendant for a lesser period through family. He recalled the incident when the complainant’s finger was injured. He gave the following description:

“What happened that day was we were chilling at my friend’s house, me and Mulu and Lue-Shane and one of couple of boys.  And Mulu was on Facebook and – and he was talking to AJM, and after AJM said ‘and tell Abdul to come to the park, I want to talk to him’.  And after we came to the park and Mulu Zenebe gave me a lift and I after I came to the park and after we waited for them.  And after – well, they – they arrived to the park.  When they arrived to the park, AJM asked me why did I talk shit about his Father, and because he was through Mulu, and told me – and AJM’s Dad was telling my Dad something about you like that.  And after – so – and I don’t know how did AJM know that – know that they told them I’m the one who talked shit about his Dad, I didn’t even talk shit about his Dad, so that’s how we ended up fighting.”

26. [26]
    Abdul said that he had been at Amos’s house and they left to go to the park at around 8pm in the evening. He left with the complainant and Lue-Shane and “an Islander fellow”, and on the way they saw Bukuru walking along the road and they invited him to come along.

27. [27]
    Abdul said that once they arrived at Oates Park, there was an argument and then a fight. He and JM were fighting, and the defendant and the complainant were fighting and “I don’t know Mulu, he got his hand hit.” 

28. [28]
    Abdul said that he had been having an argument with the defendant and then punches were exchanged with the defendant and his brother JM. At one point JM had a baseball bat and he hit him with it. He then said that the defendant went and fought with the complainant, and “I just saw him hitting him with this baseball bat in his hand… AJM was hitting Mulu with the baseball bat.” 

29. [29]
    Later in his evidence Abdul said that before the complainant was hit with the baseball bat he was shaping up to the defendant. He agreed that expression meant that he was putting his fists up in a fighting stance. At the time that the defendant hit the complainant on the hand, he was still fighting with JM. After he got hit, the police arrived, and the complainant told him to go, “the police, they’re going to help me”.^[6]

30. [30]
    In cross-examination Abdul stated that he had been drinking at Amos’s house, saying that he was drinking a six pack of Heineken. He said that he consumed the six pack before he went in the car to the park.

31. [31]
    He denied that he and his companions went to the defendant’s brother’s unit at Garfield Street earlier that evening, and he denied that he had a knife with him at that time.

32. [32]
    He rejected the proposition that none of the defendant’s group had a bat with them. Contrary to what he said in his evidence in chief, Abdul said that the person Hassan was armed with a machete. He first mentioned that to the Crown Prosecutor in a conference the day before he gave his evidence. When asked about that, his response was:

“Yeah.  Cause it’s about two years ago, you know, and I – and I can’t even remember what happened.”

Despite giving that answer, he maintained that Hassan was armed with a machete.^[7]

33. [33]
    He admitted that there was one baseball bat in the car in which he arrived at the park, and that Bukuru brought it out into the park. He conceded that when he had spoken to the Crown Prosecutor in conference the day before his evidence, he told him there was no weapon in the car.

34. [34]
    When questioned further about his conference with the Crown Prosecutor, in particular about his account to the prosecutor that the defendant wanted to fight him one on one, the witness stated:

“Yeah, but that was different story because this things he was beat up and in for a couple of days, it wasn’t just one day to tell, you know.”

Abdul then conceded that there were numerous fights that happened between the two groups, and that they blurred together.  He conceded that it was very difficult for him to remember what happened on the day that the complainant hurt his hand.^[8]

35. [35]
    A little later in his evidence Abdul stated that there were a number of occasions when there were fights at Oates Park where people were armed with baseball bats.^[9]

36. [36]
    Relevantly, this exchange took place in cross-examination:

“Q. Well earlier you said that you were going – punching on with JM?

A. Me, I didn’t really want to do this, but we’d been fighting a couple of times, like, a long time, and I reported, I never make statement.  It was just Mulu who wanted to be my – need to be his witness because I was there. 

Q. Yeah?

A. And the police, they told me, “you have to be the witness because you were there and you have to attend the Court.”

Q. Well, if you can’t remember what happened, you can tell the Court that you can’t remember if…?

A. Yeah, I can’t remember what happened.

Q. And that’s about the whole thing?

A. Yeah.

Q. You can’t remember any of it?

A. Yeah I can’t remember anything.”

37. [37]
    Lue-Shane Bentley gave evidence that he had known other complainant as a friend for around two years. He did not know the defendant. When asked whether he remembered the day when the complainant got an injury to his finger, he stated “yeah, I remember some of it.  Not all of it, clearly, but I do have information of some of what happened.”

38. [38]
    Lue-Shane said that on that day he was with the complainant driving around in Trinder Park. He thought that the complainant received a phone call from someone. Also in the car were Abdul and, he thought, Bukuru. The car ultimately stopped at a park. The others hopped out of car while he remained inside.

39. [39]
    Lue-Shane then said that at about five to ten minutes later he heard an argument. He couldn’t see much because it was dark, but he was “pretty sure” they were having a quarrel with some people; after a few minutes the complainant came back to the car with his finger “looks weird and was bleeding”.

40. [40]
    Lue-Shane said that the complainant, Abdul and Bukuru were not carrying anything when they got out of the car.

41. [41]
    When the complainant came back with his injured finger he tried to help the complainant get his car started but it had broken down. The police arrived shortly afterwards and then the ambulance. He said the police took him home. He was asked if he had seen anything during the argument. He gave the following answer:

“Like, I looked out the back window, as I said, but I couldn’t see anything because it was dark.  I stayed in the car, because obviously, I had nothing to do with what’s happening in there.”

42. [42]
    He did not think that anyone came back to the car during the course of the argument.

43. [43]
    JM gave evidence that he was the defendant’s older brother. He also knew the complainant because they went to Woodridge State High School together. On the evening in question a group containing the complainant came to his other brother’s house looking for the defendant, and they were told that the defendant wasn’t there. The complainant’s group then started throwing rocks on the roof, and as a result the police were called. When the police arrive, they asked him and his brother to walk to the police station to make a statement. As they were walking to the police station the complainant’s group followed them in a car and started throwing bottles at them. They then agreed to go to the park to “talk nicely”.  The complainant’s group opened the boot of their car and pulled out weapons, such as a baseball bat.  He then gave the following description:

“They – like, they opened their boot, pulled out weapons, you know, baseball stuff, and you know, Abdul come behind my brother and he’s trying to knock his – my brother, and I pushed him away.  I was protecting my brother and pushing him away.  So me and Abdul, we had a fight, and my brother, he – Mulu went to, like, pick his baseball my brother found a baseball on the ground and he just put it up.  He didn’t even do nothing.  He was just protecting himself.  Put it up.  And Mulu just swang his one, my brother just put it up so I just hear [indistinct] because I was fighting with the other one.”^[10]

44. [44]
    JM stated that there were ten people in the complainant’s group at the park, and they were all armed with baseball bats. He later described that the complainant had actually gone back to the car to collect a baseball bat, and then ran back toward the defendant, who picked up a baseball bat that Abdul had brought to defend himself. The following exchange took place between the Crown Prosecutor and JM:

Q. Ok.  So you saw Mulu running with the bat?

A. Yeah.  He was running back to my brother to hit him, and my brother quickly saw a bat and he put it up.

Q.  So you saw – you saw AJM pick up the bat from the ground?

A.  Yeah he pick up the bat from the ground, and just putting it on his head like to defend hisself.

Q. Ok.  What happened then?

A. Then they was just having a fight and, like, Abdul hold my shirt like that, and he say, “you want to fight?” And I say, like, “I don’t want to fight”, and he’s trying pull me, like, he put me on the ground, and he just like – I was on the – on the ground, and he just trying punch me, and I was holding his punches.  I didn’t watch what happened, because I was fighting with the other one. 

Q. OK.  When you say you didn’t watch what happened, what didn’t you – what didn’t you watch?

A.  Like, when they was hitting each other and stuff, like, Mulu and my brother, when they was hitting each other, I didn’t watch because I was fighting with Abdul.  I was busy with Abdul. 

Q.  OK.  So what made you think that they were hitting each other, if you couldn’t see it?

A. Because I – I heard the – you know, the bats, like when there two bats doing, like my brother was putting up and Mulu swung his one, so when the bats hit each other, you know, I heard – I heard the bats, like, when they’re smashing each other. 

Q.  What were the bats made of?

A.  Like, metal.  They’re made of metal.

Q.  OK.  So you heard a noise like the bats coming together?

A.  Yeah.

Q.  How many times did you hear the noise?

A.  I heard it two times bang bang you know three times.  And I was [indistinct] his self, like, you know, protect his self, my brother.

45. [45]
    JM then described that after the fighting the police arrived and they told him and his brothers to go home and they went home.

46. [46]
    In cross-examination, JM conceded that he may have mixed up some of the events because there were a few different fights between the two groups.^[11]

47. [47]
    He maintained that there were 10 people in the complainant’s group.

48. [48]
    ASA gave evidence that he was the other brother of the defendant. He also knew the complainant, having met him through a friend. He gave evidence that on the evening in question he was at his unit at Garfield Road in Woodridge. The complainant and Abdul and a few other boys came round looking for the defendant. He said there were seven to eight people in that group. He described the complainant’s groups swearing and throwing things on the roof so he called the police. He actually called the police twice, and the recording of his phone calls to the police emergency number were tendered and became exhibit 3 at the trial.

49. [49]
    He said that as he and his brothers, including the defendant, went up to go to the police station the complainant’s group came up in a four-wheel drive vehicle and started throwing bottles at them. Abdul then rang him on his phone and asked them to meet at the park. He said that they decided to go to the park to “ask them exactly what they want, so – but I never thought they were going to, like, start fighting and stuff.”^[12]

50. [50]
    In the park he was talking to someone he described as a “big dude” when he heard a noise to his side and saw Abdul hitting JM. He then saw a fight take place, and then he saw the complainant come running in with something in his hand. He later described seeing the complainant standing out of his car with something in his hand, that he described as “like, something, you know to lift the car, like, thing.  The tyre and stuff.”^[13]  He then saw the complainant run toward the defendant with this item in his hand, but then was distracted because of the “big dude” in front of him.  He then added that he recognised one of the other boys and began talking to him, he knew this boy’s name as Bukuru; JM and Abdul were still fighting when the sound of police sirens could be heard.  Everyone then started running from the park.

51. [51]
    In cross-examination, the witness was aware that there were other incidents involving the complainant, Abdul and his brothers, but he was not involved in those other incidents. He said that this was the only fight that he was present at. He also acknowledged that he told the police over the phone in respect of the earlier incident that someone had come to his house with a knife, but he added that he actually did not see the knife.^[14]

52. [52]
    Senior Constable Warburton gave evidence that she and her partner, Constable Bentley, were tasked to attend a disturbance outside [the address of the defendant’s brother] Garfield Road Woodridge. The occupants of that unit wanted to make formal complaints about persons who had arrived earlier in the evening creating a disturbance. Arrangements were made for those occupants to attend the Logan Central Police station to provide formal statements.

53. [53]
    The Police officers waited about 30 minutes at the police station for the occupants to arrive; when they didn’t arrive they decided to go back to the Garfield Road address. While driving to that location they received a communication over the police radio to attend a disturbance at Oates Park which was near Garfield Road. When they arrived at the park they located the complainant and Lue-Shane Bentley inside a car. The complainant had quite a bit of blood on his left finger, so the police arranged for an ambulance to attend. The complainant told Senior Constable Warburton that he had been in a fight in the park with a number of persons, and that he did not want to make a complaint about it. The complainant also said that he did not know who had caused the injury to his finger.

54. [54]
    In cross-examination Senior Constable Warburton recalled being given a sheath for a knife which had been given to Constable Bentley on the first occasion they attended at the Garfield Road Address.^[15]

55. [55]
    Constable Bentley gave evidence that when he and Senior Constable Warburton arrived at the address on Garfield Road Woodridge, they were approached by three men of African appearance. They identified themselves as AJM [the defendant], and his brothers JM and ASA.  These men provided the police with information about another group of people attending their address and making threats.  Arrangements were made for the men to attend the Logan Central Station to follow up the complaint. 

56. [56]
    Later when responding to the call over the police radio to attend Oates Park because of people fighting there, he recalled locating a car in the carpark area of Oates Park, and locating within it the complainant and Lue-Shane Bentley. Constable Bentley then did a search of the park, and located a black baseball cap with a gold skull on the front of the cap; this belonged to the defendant. He also located a red coloured baseball bat in the back seat of the complainant’s car.^[16]

57. [57]
    In cross-examination Constable Bentley agreed that he had been handed a knife sheath when he and Senior Constable Warburton had first attended the Garfield Road address. He seized that sheath, along with the baseball bat, and lodged both items back at the police station.

58. [58]
    Senior Constable Woods gave evidence that he conducted an interview with the defendant on 9 June 2015. In cross-examination he acknowledged that he had taken the statement from the complainant, with his sister present as an interpreter. He ensured that the statement was read back to him, to ensure that the statement was accurate and correct. He recalled the complainant signing it. Senior Constable Woods confirmed he believed some neighbours by the name of Armstrong called police about the fight in Oates Park. It seems that they had been willing to provide a witness statement about their observations, but none were actually taken. He agreed that he had said at the committal hearing that he was not aware that a baseball bat had been seized by other police, nor that a knife sheath had also been received by police. After the committal hearing he requested that the baseball bat be subject to a forensic examination, but due to lapse in time no DNA was able to be retrieved from the bat.^[17]

Police interview with defendant

59. [59]
    The defendant said that he had known the complainant from school. He also knew the person Abdul. He told the police the following:

1. (a)
   “…Mulu just rock up on me and start a fight, they came to my house to my older brother’s house and they knock up to the door and they ask for me and I wasn’t there and then when they ask for me I wasn’t there.  Then my brother like my brother lived in a small unit old people unit so he doesn’t allow too much noise and stuff…he called police for the people cause they were too drunk, but they were lot of them they were too drunk and then my brother ring the police – police came and then when the police came cause my brother doesn’t speak that good English my brother gave me a call…and I came there when I came there.  Are when I came there the police they were still there I talked to the police and the police told us like come to Woodridge Police Station to make complaint…and then we were walking to Woodridge Police Station there was a black four-wheel drive passed behind us and he passed right passed us and he came back again.  When he came back he opened the window and he started throwing a beer bottle to us…when they throw the beer bottle we couldn’t go to the police station to make a report we ran back home and we rang the police twice.  The police like the second time we ring the police the second time they didn’t come.  The police didn’t came, we went home, and then we went home they came back to my house my brother’s house and they start knocking on the door and stuff again.”

2. (b)
   “When the door knock, knock on the door and stuff me and my brother walk outside then they all run, when they run we followed them like we just take them away from the street.  When we went to Oates Park it’s like Trinder Park or something.  When we went to that park we were chasing Mulu and Abdul on the first time and they as soon – as soon as we going to the park there was another boys two another boys with baseball and stuff and a knife and then all of them came to us and then Abdul punch me back behind my neck and then when he punch me in my neck I punched him back because I can’t stop cause he punch me he start and I punch him back.  When I punch him back all of them start on me they running at me and you know this thing called jack when the wheel pop and they try and change the wheel…for the car jack Mulu had that jack he was trying to hit me with the jack and in my head and then his mate was standing next to me cause when I was fighting Abdul I told everybody no body come like if someone hit me I know all of your faces you know and the guy that had the baseball was standing next to me and he didn’t do nothing.  Mulu ran up with the jack trying to hit me in the head and I took the baseball from the Abdul’s mate and I try to protect myself from – from the jack and I hit the jack with the baseball and the jack hit Mulu’s hand and Mulu screaming “my hand, my hand, my hand…” when he was screaming ‘my hand, my hand’ and then I think the neighbours call police.  And then Abdul said “police are coming everybody lets go, lets go” and then all of them start running towards a car, they had a car with them and we didn’t have a car and we started walking, we run.”^[18]

3. (c)
   He restated that Abdul hit him in the head first, and as a result he started punching back at Abdul.  “And I start punching Abdul Mulu came out of the back.  No before Mulu came up I scream like whoever jump in like whoever hit me I know all of everybody’s face that’s what I say…and then nobody, there was a guy here with a baseball… he didn’t run up to me he was just standing there and he was one of the, one of them and he didn’t do nothing and Mulu came up with the jack trying to hit me with the jack and I get up and I see the jack, I get up and I went to this guy I pick his baseball, and I hit the jack I didn’t hit Mulu.  I hit the jack.  And I don’t know, that’s when I heard Mulu screaming ‘my hand, my hand’ and Abdul screaming ‘police, police, police’ and everybody start running.”

4. (d)
   The defendant denied the proposition that there was a pre-arranged fight between the complaint and him.  He asserted that both the complainant and Abdul were drunk and that they wouldn’t know what they were saying.  He pointed to the fact that there was a knife given to one police officer^[19], and that they had a baseball bat from the complainant, but there was no weapons from him.  He asserted that all he was doing was fighting with his two arms. 

5. (e)
   The following exchange took place between Constable Woods and the defendant:

Q.  Alright.  What he says then alright.  He says he seen Hassan come running from near the parents’ house across from the park.  We all started to spread out as I seen AJM which would be yourself AJM and JM with a metal pole each about half a metre long he says that JM’s bigger brother had a knife, it looked like a normal knife that you would have at home. 

A. [laughing] that’s such a bullshit.

Q.  Alright.  So when we were at Oates Avenue it was Mulu that had the baseball bat?

A.  Mulu had a baseball bat. 

Q. And Abdul…

A.  Abdul had a knife? Yeah [laughing]

Q. Mulu also grabbed the car jack?

A. Yeah he had a car jack with him.

Q. Yeah and there was no other weapons present? Did youse have any weapons?

A. Us, we didn’t have no weapons.

6. (f)
   Later in the interview the defendant maintained that there were no problems between the complainant and him, saying:

“Mulu was just back up for Abdul that night.  And then that night I got Mulu’s finger like when he had the jack I hit him with the baseball with the jack together that’s the night that when he was holding the jack that I picked the baseball when I hit the jack.”

7. (g)
   At the end of the interview, the defendant said this:

“I have a big problem you can see everything they’re saying is lying.  Like at the end of the day if you guys believe them I’m going to go to jail or court for no reason.  Abdul now he’s in jail…Abdul he’s in jail.  Why is he in jail?  He’s criminal.  All he does is like rob people do the bad stuff.  Since we stop hanging with him… I don’t go like next to him that’s what he’s trying to do trying to put us in trouble, trying to fight us, come all the way to our house…I show the police the report, everything the messages they are sending to me.  They were calling me to come do drugs with them, they were saying to me that’s [indistinct] do drugs so come and join us.  I show the police everything why they do not believe me still.  They don’t have no proof that I was fighting them, they don’t have that, they don’t have baseball [indistinct], they don’t have baseball from me, they don’t have a knife for me, they have baseball from them, they have a knife, like a knife cover from them.  And I show all the message to the police.”^[20]

Emergency phone call from neighbour

60. [60]
    Exhibit 3 contained three recordings of phone calls to the emergency number ‘000’. The first two were phone calls from the brother of the defendant concerning the disturbance outside the unit at Garfield Road. The third recording on Exhibit 3 was clearly a call from a neighbour, who remains unidentified, which prompted the police to attend Oates Park. I’ve carefully listened to the recording, and I’m satisfied that the following is said:

“I’m across the road from Oates Park, there’s a big fight across the road.  They’ve got steel poles and everything, beating each other – not very nice.  Heaps of people – could be up to twenty. [Operator: You said they got weapons?] I’ve heard a pole hit a baseball bat – and someone’s got a broken hand or something, they’re yelling out.”

61. [61]
    It was agreed by the parties that this recording was admissible as a document pursuant to s 93 Evidence Act 1977, and consequently I could have regard to this evidence in determining the outcome of this case.  The caller is a woman who is genuinely concerned about the events occurring across the road in Oates Park, and is able to provide a coherent account of what she is observing.  There is no indication on the tape that she is affected in any way by liquor or drugs.  It is unfortunate that the caller wasn’t able to be properly identified, and a statement taken from her.  Nevertheless, I am clearly entitled to act on this evidence and give it the weight I consider it merits. 

Submissions of the parties

62. [62]
    The Crown prosecutor submitted that there were several different versions given by the civilian witnesses, and that their versions cannot be easily reconciled. He referred to the significant passage of time since the incident in question, and submitted that there’s been a significant convergence of accounts. He highlighted the fact that clearly there were other incidents of fighting involving the same parties, and that it was hard for some of the witnesses to separate out each incident.

63. [63]
    He submitted that the witnesses Abdularahman Ahmed Ali and JM should be disregarded due to their conflation of other incidents with the actual incident in question. He submitted that I should place little weight on the evidence of ASA because he in particular got the number of the combatants wrong in his evidence.

64. [64]
    The Crown prosecutor submitted that the complainant and Lue-Shane Bentley were in a different category; he submitted that they were more reliable witnesses and that the court should place considerable weight on their evidence. He submitted that Mr Bentley was not involved in any of the other violent incidents, he was sitting in a car at the time and importantly stated that the complainant was unarmed when he went into the park. He submitted that the complainant gave a reliable account, and that his version of events should be accepted.

65. [65]
    He submitted that there are a number of consistencies between the accounts of the complainant in evidence and the defendant in his police interview, in particular the defendant admitted that he was armed with a weapon and was striking at the complainant.

66. [66]
    In respect of the complainant, the Crown prosecutor submitted that while he presented as a rough character, he was forthcoming and credible in the way he gave evidence. He made concessions that he wanted to resolve the dispute between the parties by violence, he conceded mistakes in his police statement, and any discrepancies in the complainant’s version of evidence was entirely explicable by the passage of time.

67. [67]
    On the other hand, it was submitted that the defendant’s version of events was simply implausible and should be rejected. He highlighted the unlikelihood of the defendant being able to disengage from fighting with Abdul, disarm the other combatant of his baseball bat, and then strike the complainant while the complainant was running at him with the car jack.

68. [68]
    Ultimately it was submitted that the court should be satisfied beyond reasonable doubt that the defendant was guilty of the offence charged.

69. [69]
    Defence counsel submitted that the court should disregard the evidence of Abdularahman Ahmed Ali and Lue-Shane Bentley. She submitted that ultimately it came down to a dispute between the complaint’s version and the defendant’s version. She submitted that there was clearly a mutual agreement to fight in the park. She submitted that on the evidence the complainant went to the park with Abdul, Lue-Shane Bentley and the person Bukuru, and there was no evidence from the person Bukuru. She also highlighted the fact that there has been no evidence from the other person said to be present at the fight, Hassan.

70. [70]
    She submitted that it was difficult to determine whether all or most of the combatants had weapons. She submitted it was a significant weakness in the prosecution case that the baseball bat found in the back of the complainant’s car was unable to be forensically examined for DNA.

71. [71]
    She submitted that Lue-Shane Bentley added little to the evidence. She said that Mr Bentley denied that any of his companions had a weapon, yet the complaint admitted that one of his group was armed with a bat.

72. [72]
    She submitted that considerable reliance could be placed on part of JM’s evidence. While he did not see the ultimate incident, he heard a clash of metal on metal, which was completely consistent with the contents of the ‘000’ call from the neighbour, and consistent with the defendant’s account to police. She also submitted that I should accept the evidence of ASA.

73. [73]
    She submitted the following features supported the truthfulness of the defendant’s account to the police in his interview:

• The interview took place some 10 weeks after the incident in question, and this delay explained any discrepancies in his account;
• The defendant could clearly distinguish between the other fights that occurred, unlike a number of the prosecution witnesses;
• He gave a frank account which was consistent and logical;
• He was describing a dynamic incident that occurred very quickly, and it was entirely plausible that he could have had time to disengage from fighting Abdul, grab the bat from the other combatant and defend himself against a clear and dangerous threat of the complainant swinging a car jack at his head;
• The defendant’s account is supported by the evidence of Doctor Saul that the injury to the complainant’s finger could have been caused by being jammed between the baseball bat and the car jack as they struck each other. 
• Defence counsel submitted that one would expect to see more injuries to the complainant if he’d been struck with such force by the baseball bat to fracture his finger.  The way the complainant described himself putting his hand up to defend himself against his forehead would inevitably have involved more trauma to his hand and head than is evidenced.

74. [74]
    Defence counsel submitted that the complainant was clearly prepared to lie to police at the time of the incident, and he was clearly prepared to seek revenge on the defendant, taking the law into his own hands. Defence counsel highlighted the fact that the complainant did not mention the baseball bat that was found in his car to the police in his formal statement to them, and there was clear conflict in his evidence at the committal hearing and his evidence at trial about whether the baseball bat was ever taken out of the car.

75. [75]
    Defence counsel highlighted the absence of corroborative evidence for the complainant’s version, and emphasised the fact that a number of eyewitnesses were not located and called to give evidence. Ultimately she submitted that the court could not be satisfied beyond reasonable doubt that the charges were proved, and further that there was a reasonable doubt about whether the defendant was acting in lawful self-defence at the time he stuck the complainant’s hand.

Legal issues

76. [76]
    Formal admissions were made by the parties, which became exhibit 1. They are as follows:

1. The fracture to the complainant’s finger was of such a nature that, if left untreated, it would cause or be likely to cause permanent injury to health.  As such, the injury amounts to grievous bodily harm. 

2. At 9:44pm on 20 August 2015 a ‘000’ call was made by a resident who lived adjacent to Oates Park, Woodridge.

3. Call charge records for 20 August 2015 reflect no correspondence between [phone number registered to the defendant] and [phone number registered to the complainant].

77. [77]
    There is no issue on the part of the defence that the defendant swung a baseball bat at the complainant and that in the course of doing so the complainant suffered grievous bodily harm to the little finger on his left hand. The critical issue is the precise circumstances in which that occurred, and whether the defendant is criminally responsible for that action.

78. [78]
    It is clear on the evidence that the respective combatants were resorting to Oates Park in order to sort out their differences by fighting. It is clear that consent is a defence to a charge of common assault or assault occasioning bodily harm: see Lergesner v Carroll [1991] 1 QdR 206, per Shepherdson J at 212:

“I think the true view is that in some cases of assault occasioning bodily harm the prosecution will, on the evidence, have to negative consent beyond reasonable doubt i.e. prove that the assault was unlawful (s.246).  Each case must be looked at in the light of its own facts.  I favour the view that in the case of assault occasioning bodily harm where consent to the assault is an issue and there is evidence capable of amounting to such consent the tribunal of fact in deciding whether the prosecution has proved beyond reasonable doubt that the assault was unlawful must decide whether the degree of violence to the person assaulted exceeded that to which consent was given.”

79. [79]
    It is clear that a person cannot consent to grievous bodily harm.^[21]  It was agreed between the parties that self-defence was raised clearly on the prosecution case, in the interview of the defendant.  I consider that both limbs under s 271 Criminal Code (“the Code”) was raised on the evidence.  There was nothing on the evidence to raise the defence under s 272 of the Code.

80. [80]
    In R v Gray (1998) 89A Crim R589, McPherson JA, with whom Davies JA and Fryberg J agreed, said this at 592-593:

“What is clear about sub-ss 271(1) and (2) is that, although their provisions share some common elements, the conditions for self-defence that are prescribed by each of those sub-sections are differently stated and, for the purpose of applying s 271(2), ought not to be combined or treated as imposing requirements that are cumulative… in reference to ‘assault’ in s 271(2) must mean such an assault as predicated in s 271 (1), in so is to be regarded as importing the same initial requirement as prescribed in that sub-section, which is that there be a unlawful assault that was not provoked by the person against whom it was directed. 

Beyond that point, however, the two sub-sections diverge in specifying the conditions under which self-defence is made available to the accused as a defence to a charge arising from the use of force to repel the assault.  The point of divergence is marked in each sub-section by the presence of the expression ‘it is lawful…’, which is the relevant part of the provision that in each instance operates to make self-defence available and answer to the charge.  In the case of s 271 (1), three conditions are specified: They are that the force used (1) must be ‘reasonably necessary to make effectual defence against the assault’; (2) that it must not be intended; and (3) must not be such as is likely to, cause death or grievous bodily harm.

None of these three conditions is repeated in s 271(2).  Assuming an unlawful and unprovoked assault, only two conditions need be satisfied for self-defence to be available under that subsection.  The first is (1) that the nature of the assault must be ‘such as to cause reasonable apprehension of death or grievous bodily harm’; the second is that the person using force by way of defence must be someone who (2) ‘believes on reasonable grounds’ that he or she ‘cannot otherwise preserve’ the person being defended from death or grievous bodily harm.  If those two requirements are satisfied (or, more accurately, if the prosecution fails to disprove them beyond reasonable doubt), then the accused is entitled to be acquitted.  In substance, therefore, a person is, by virtue of s 271 (2), justified in killing or doing grievous bodily harm to an assailant if he [or she] reasonably believes that doing so is the only way in which he [or she] can save himself or [or herself] or someone else from an unprovoked and life threatening assault by that assailant.

Approached in this way, there is plainly a difference between the mental condition predicated of a defender under s 271(1) and under s 271(2).  In the case of s 271(1), the degree of force used must be ‘reasonably necessary’ to make ‘effectual defence’ against the assault.  The criteria in that instance is objective and does not concern itself with the defender’s actual state of mind.  In the case of s 271 (2), it is, at least in part, subjective.  The defender must believe that what he is doing is the only way he can save himself or someone else from the assault.  He must hold that belief ‘on reasonable grounds;’ but it is the existence of an actual belief to that effect that is the critical or decisive factor.  There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, ‘necessary’ for the defence.”

81. [81]
    In R v Pangilinan [2001] 1QdR 56, the Court of Appeal held that there was no need for an accused person to give evidence or for there to be direct evidence of statements made by the accused concerning his state of mind in order for a defence under s 271 (2) to be raised. 

Conclusion

82. [82]
    I agree with the submissions of both counsel that the evidence of Abdularahman Ahmed Ali and JM was affected by their confusion about what occurred on different occasions. Mr Ali in particular conceded it was very difficult for him to remember what happened on the day that the complainant injured his hand, because all of the fights “were blurring in together”. He also claimed in his evidence that the person Hassan was armed with a machete, which was not consistent with any other witness, or the interview of the defendant.

83. [83]
    Mr Lue –Shane Bentley in his evidence said that he could remember some of the events surrounding the incident on 20 August 2015, but he could not clearly remember all of it. On his evidence he remained in the car, and could not see what was happening outside in the park. I consider that his evidence does not greatly assist the prosecution case.

84. [84]
    I was not impressed with the evidence of the complainant. He spent most of the time in the witness box with his arms folded, adopting a defensive manner. He admitted lying to the police who first attended by saying he did not know who had hit him. I found his explanation about why he did not mention the baseball bat in his car in his formal police statement unconvincing. He clearly said in evidence at the committal that the baseball bat in his car remained there throughout the whole incident; that was inconsistent with the evidence he gave at the trial.

85. [85]
    I agree with the submission of defence counsel that there would be more observable injuries to the hand and forehead of the complainant if he had been struck forcefully with the baseball bat in the manner he described in evidence.

86. [86]
    I was not entirely convinced by the defendant’s account in his interview with the police. For most of it he was able to give a reasonably coherent account, although of course he had time to consider the events before he was interviewed. As the interview went on the defendant became more animated and aggressive, and he was keen to portray the complainant and his companions in as bad a light as possible.

87. [87]
    There was clearly a degree of partisanship on display by the witnesses, depending on whose camp they were in. Significantly the witness JM heard the sound of metal bats smashing into each other in the course of the fight. The defendant’s other brother ASJ said in evidence that he saw the defendant standing with an item in his hand consistent with a tyre iron or car jack.

88. [88]
    It is unfortunate the police investigation did not obtain statements from the neighbours, in particular the person who rang the police emergency number, in preparation for this trial. Nevertheless I am entitled to place considerable weight on the emergency call made by the female neighbour which was part of exhibit 3. It has considerable reliability, being made as events were unfolding in the park nearby. Her statement that “I’ve heard a pole hit a baseball bat – and someone’s got a broken hand or something, they’re yelling out;” is consistent with the account of the defendant to the police and with the evidence of his brother JM. 

89. [89]
    There is no doubt that the events that unfolded in the park were dynamic, and unfolded very quickly.

90. [90]
    On the defendant’s version he was involved in a consensual fist fight with Abdul, when he was attacked with a significant weapon by the complainant. He then grabbed a baseball bat which was being held it seems by a passive combatant, in order to defend himself. While I’m not convinced that this is definitely what happened, I’m left with a reasonable doubt whether the defendant was acting in lawful self-defence at the time, and therefore the prosecution have failed to disprove that possibility. Therefore the prosecution have failed to prove to the required standard the element of unlawfulness, and I hereby find the defendant not guilty.