A Scarborough man acted in self defence when he lashed out at his cousin outside a Woonona restaurant two years ago, causing him to fall, hit his head and die, a court has heard.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Lawyers for Jason Cavanough said their client admitted he was responsible for the death of Sydney man Allan Neilson, but claimed he had only pushed the 60-year-old - not punched him as alleged by the Crown - out of fears for his own safety.
Cavanough has been on trial in Wollongong District Court after pleading not guilty to a charge of manslaughter stemming from the January 25, 2012 incident, which occurred outside the Emerald Chinese Restaurant.
Cavanough's lawyer, Jeff Tunks, on Monday asked jurors to take note of evidence presented by witnesses in the trial that pointed to Mr Neilson's level of aggression towards Cavanough that evening.
He said several people who ate in the restaurant that night recalled hearing Mr Neilson speaking loudly and in an aggressive tone while seated at the table, however, none gave evidence that Cavanough was acting in a similar way.
Mr Tunks said even when Mr Neilson stalked out of the restaurant, Cavanough did not immediately follow.
"You think if he wanted to fight he'd have been up and out that door after Allan quick smart," Mr Tunks said.
He pointed to evidence from Cavanough's wife, Lisa, who described Mr Neilson's behaviour as a "Jekyll and Hyde" situation, saying she formed the impression he was getting drunk.
"Lisa Cavanough said Mr Neilson raised his fists [towards Cavanough]," Mr Tunks said, recounting Mrs Cavanough's evidence about the moments before the altercation.
"Jason told her to get in the car and go. She didn't see the contact [but said] at least one of Allan's fists was clenched."
However, Crown prosecutor Michael Fox told the jury there was evidence from eyewitness Suzanne Cochrane that flew in the face of any self-defence claim and instead pointed to Cavanough having delivered a "powerful strike" to Mr Neilson's face in one deliberate, life-changing moment.
Ms Cochrane told the court earlier in the day that Mr Neilson and Cavanough "did not look happy" when she saw them both standing close to each other out the front of the premises moments before the incident.
She said she saw Cavanough turn and walk about three steps away from Mr Neilson but a moment later, turn back around, walk towards Mr Neilson quickly and, lifting his right arm, hit him in the face.
"I'm not sure what part of his arm [hit Mr Neilson]," Ms Cochrane said.
"The older man [Mr Neilson] fell backwards ... he lay on the ground. It was apparent he wasn't getting up."
Ms Cochrane said she did not see Mr Neilson do anything to physically provoke Cavanough, however, conceded under cross-examination from defence lawyers that her front-on view of him at that time had been partly obstructed by Cavanough's body.
Mr Fox argued the medical evidence presented in the trial supported this version of events, noting that treating doctors had reported Mr Neilson having a "depressed fracture" to the front of his face, indicating a strong force - possibly a fist - had come into contact with his cheek and eye socket.
The jury is expected to retire to consider its verdict on Tuesday.
