Sydney, Australia -- (SBWIRE) -- 10/31/2013 -- In the early morning hours of October 25, 2009, a man had gotten intoxicated at a nightclub. The drunken patron was loud and aggressive and he was politely asked to leave but he would not leave. Three nightclub bouncers came in to remove him from the premises. As they were leading him out, the drunken patron tried to punch one of the bouncers. The bouncer avoided the punch and tried to restrain the drunken patron as he was becoming violent. They struggled to restrain him as he was trying to punch and bit the bouncers. As a result the drunken patron fell and hit his face on the pavement. When he had stopped struggling, the bouncers raised him up in order to direct him toward the exit so that he can leave.
As soon as the bouncers stopped restraining him, the drunken patron became loud and aggressive again. The bouncers then tried to remove him from the exit. As the bouncers were trying to calm him down, one of the bouncers punched the drunken patron. After he was punched, the drunken patron became unconscious.
This happened about five meters away from the smoking area of the nightclub which was separated by a glass pane. The people in the smoking area of the nightclub saw the commotion and one of them tried to take pictures of the incident by climbing onto a ledge. He succeeded in taking three up to five pictures. The bouncers looked up and saw him taking pictures.
One of the bouncers came into the smoking area to get the phone from the patron as they did not want the incident uploaded onto the internet. The patron resisted. The bouncer restrained him. Other bouncers came to assist the first bouncer. One of the bouncers, the same one who punched the drunken patron, this time tried to choke the patron who had taken pictures. He was restraining him and at the same time asking him to give the bouncer his phone. When the patron complied, he was released. The bouncers then deleted the pictures from his cellphone.
The three bouncers were charged with intentionally causing injury, assault, injuriously imprisoning, unauthorized modification of computer data, disposal of evidence and robbery.
There were two witnesses to the incident who were all in the smoker’s area. Their testimony significantly accorded with the footage from the CCTV camera in that the drunken patron was indeed held down and restrained. Their testimony was erroneous with regard to the number of bouncers punching the drunken patron. They did not know at that time how drunk the patron was and how unsteady he was on his feet.
The witnesses correctly testified that the patron taking the photographs was restrained and that one bouncer tried to strangle him to force him to give up his phone. They were also correct in their observation that the phone was given to the bouncers by the patron and they tinkered with the phone and gave it back to the patron.
The court held that only one of the bouncers was guilty of assault and intentionally causing injury. It was the bouncer who punched the drunken patron who was also the same bouncer who strangled the patron who was taking pictures. The others were restraining the drunken patron because he was struggling but they were not encouraging the other bouncer to inflict injury upon the drunken patron. The same can be said for the other bouncers who tried to get the phone from the patron who was taking pictures. They did not restrain the patron in order for the other bouncer to inflict injury. They were restraining him because he was also struggling and only after he tried to backhand slap one of the bouncers. The three bouncers were also guilty of disposing of evidence. The charge of robbery was dismissed as was the charge for unauthorized modification of computer data as this charge can be subsumed under disposing of evidence.
The court opined that in order for co-accused to be found guilty of being accessories or for acting in concert with another who is committing assault, their mere presence is not sufficient. There must be evidence that they had agreed to commit the assault and because of that agreement, they took action in order to facilitate the commission of the assault. Here in this case, the other bouncers were restraining the drunken patron who was struggling and who was trying to hurt the bouncers. They did not restrain the drunken patron in order to help the other bouncer in assaulting the drunken patron.
About Alan Weiss
Alan Weiss established Aussie Divorce, Criminal Lawyers Directory and Drink Driving Directory in 2005. Today, we are Australia’s most exclusive criminal and family law directories, with more than 7000 indexed pages online.
This article provides basic information only and is not a substitute for a professional or legal advice . It is prudent to obtain legal advice from a lawyer.
Copyright © 2005-2013 - SBWire, The Small Business Newswire - All Rights Reserved - Important Disclaimer
Contact Us: 888-4-SBWIRE (US) - 920-593-5640 (International)