Barnes v Westphal

[2008] NTSC 41

Barnes v Westphal [2008] NTSC 41

PARTIES:	BARNES, RODNEY ERIC JOHN
v
WESTPHAL, LINDSAY
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:	JA 33/2007 (20621517)
DELIVERED:	2 October 2008
HEARING DATES:	14 August 2008
JUDGMENT OF:	MILDREN J
APPEAL FROM:	Court of Summary Jurisdiction, delivered 30 November 2007
CATCHWORDS:

CRIMINAL LAW – appeal – appeal against conviction – offence of intimidation of a witness – whether appellant was aware that the person he intimidated was a potential witness – no committal had taken place at time of alleged offence – error by learned magistrate – appeal allowed.

STATUTES:

Criminal Code s 1, 31, 130A(1)
Criminal Act 1914 (Cth) s 36A
Justices Act s 177(2)(f)

CITATIONS:

Referred to:

Mathews v R (1992) 64 A Crim R 305

REPRESENTATION:

Counsel:

Appellant:	R Goldflam
Respondent:	C Curtis

Solicitors:

Appellant:	Northern Territory Legal Aid Commission
Respondent:	Office of the Director of Public Prosecutions

Judgment category classification: B

Number of pages:	11
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Barnes v Westphal [2008] NTSC 41

No. JA 33/2007 (20621517)

BETWEEN:

RODNEY ERIC JOHN BARNES

Appellant

AND:

LINDSAY WESTPHAL

Respondent

CORAM:  MILDREN J

REASONS FOR JUDGMENT

(Delivered 2 October 2008)

Introduction

1. This is an appeal against conviction imposed by a Magistrate sitting in the

   Court of Summary Jurisdiction.

2. The appellant was convicted in an offence against s 103A(1) of the Criminal

   Code. That sub-section provides as follows:

“103A	Intimidation of witnesses
(1) Any person who –

(a)	menaces or intimidates another person;
(b)	threatens to do any injury or cause any detriment of any kind to another person; or
(c)	does any injury or causes any detriment of any kind to another person,

because that other person has appeared, or has been called
or may be called to appear, as a witness in any judicial
proceeding is guilty of a crime and is liable to
imprisonment for 7 years.”

1. The information alleged that on 19 August 2006 at Tennant Creek the

appellant intimidated and threatened to do injury to Angus Gummow, by
telling Angus Gummow to get out of a car and fight and said “you’re

fucking dead” and, this person may be called to appear as a witness in a

judicial proceeding, namely case file number 20611668 Rodney Barnes”.

1. At the time of the alleged offence, the offence created by s 103A(1) was not

a “Schedule 1 provision” as defined by s 1 of the Criminal Code.
Accordingly it was submitted by counsel for the appellant that s 31 of the

Criminal Code applied. That section provides as follows:

“31 Unwilled act, etc and accident.

(1) A person is excused from criminal responsibility for an act, an

omission or event unless it was intended or foreseen by him as a
possible consequence of his conduct.

(2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the

chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight will have proceeded with that conduct”.

1. S 1 defines “act” to mean in relation to an accused person “the deed alleged

   has been done by him; it is not limited to bodily movement and it includes

   the deed of another caused, induced or adopted by him or done pursuant to a

   common intention”;

2. S 1 defines “event” to mean the result of an act or omission.

3. Both counsel submitted that there were no authorities in the Northern

   Territory which have considered s 103A (1) and having made researches of

   my own, I have been unable to find any.

4. The only decision to which I had been referred which discusses a similar

   provision is the case of Mathews v R[1]. That decision concerned the proper

construction to be given to s 36A of the Crimes Act 1914(Cth). The relevant
words of s 36A were;

“A person who:

(a) …intimidates… a person… on an account of his … being about to appear, as a witness in a judicial proceeding shall be guilty of an indictable offence.”

1. In that case, the Queensland Court of Appeal held that it was not an

essential element of the offence that at the time of the intimidatory conduct
the accused should have had the intent that the complainant would thereby

be dissuaded or deterred from giving evidence or truthful evidence.

1. In my opinion, s 31 does not require proof that the appellant intended to

   dissuade the person menaced, threatened or intimidated, from giving

evidence or truthful evidence in a judicial proceeding. In my opinion s 31
goes no further than that the accused must be shown to have intended to

menace, or intimidate or threaten etc, or in the case of an allegation that he
caused a detriment, that he intended to cause the detriment.

1. I note that in the legislation being considered in Mathews v R, there was no

   provision similar to s 31 of the Criminal Code.

The facts as found by the learned magistrate

[12]   The evidence before the learned magistrate was unsatisfactory in several

respects. The prosecutor did not attempt to prove by the calling of
admissible evidence, a number of key factual matters which inevitably
needed to be proved in order to sustain a conviction. There was, for
instance, no evidence led by the prosecution that the property of Angus

Gummow had been burnt down or that the accused to be or had been charged

with the offence of arson. There was no evidence led that Mr Gummow was
to be a witness in that case. Much of the Crown case was made up through

cross examination of the Crown witnesses, and by evidence given by the
accused. No submission of no case to answer was made. One piece of
evidence which related to the date of the fire was allowed to be given by the
prosecutor in his address to the Court when no evidence was called about the

precise date. No point was taken about that on appeal.

1. It is common ground now that the house property situated at 27 Haddock

   Street, Tennant Creek, was consumed by fire on 16 April 2006. One of the

   persons who lived at that house was the complainant Angus Gummow.

   Some hearsay evidence was admitted without objection that the owners of

   the property were Steven Gummow, Angus Gummow and another brother of

   Steven and Angus Gummow.

2. Evidence was given that the appellant was arrested about a week or a week

and a half after the fire and charged with arson. The appellant spent
approximately 2 months in remand on that charge before he was released on
bail. The bail document was not admitted into evidence and the only

evidence concerning it is some hearsay evidence from one of the police
constables called to give evidence as to its terms and some evidence given
by the accused.

1. The accused’s evidence was that he was given strict bail conditions that he

was “not to approach any of the Gummows or threaten in any way, you
know, and I obeyed those conditions”.

1. In cross examination he was asked again what his bail conditions were and

   he said:

   “like I said, not to approach the Gummow family or threaten in any

   sort of way, or any witness to the Gummow family.”

[17] Some evidence was given by Constable Curriez who said:

“I can’t remember word for word but some of the conditions were
that Mr Barnes was to reside in an address in Tennant Creek and he
was not to approach any of the witnesses including Angus Gummow
and Steven Gummow”.

1. He said that he believed that those were the conditions imposed by the Court

   but he did not say that he was present when they were imposed. In those

circumstances the evidence as to the terms of the bail given by Constable
Curriez should have been excluded as inadmissible hearsay. The fact that no

objection was taken to the evidence, is not to the point. It is the duty of any
presiding judicial officer to ensure that inadmissible evidence is excluded.

1. There was evidence from both Mr Gummow and Mr Barnes that there had

   been a long history of animosity between the Gummow and the Barnes

   families extending back many years. This was confirmed by Constable

   Curriez who said that there had been a long history of violence between the

   two families.

2. There was also evidence that on the day after the fire, Mr Gummow’s

   brother, Joe Gummow, had had a fight with Mr Barnes. It is not clear

whether Mr Gummow’s knowledge of this was hearsay. In any event the
appellant gave evidence that he was attacked by members of the Gummow
family, because they blamed him for setting fire to the house. The appellant

claimed he made a complaint to the police about that matter. This was
confirmed by Constable Curriez.

1. The learned magistrate found that the committal proceedings for the arson

charge were heard in February and April 2006 and that, as at 19 August
2006, although the arson charge had not been finalised, the appellant had

been committed to stand trial.

1. It is plain that the learned magistrate misconstrued the evidence. The

   evidence was that the committal took place on 7 and 8 February 2007 and also in April 2007. Therefore, as at the time of the incident on 19 August 2006 there had been no committal proceedings and there is no evidence that

   the accused was made aware that Angus Gummow was to be a witness at the

committal. Indeed the accused maintained in his evidence, that he was not
aware that Angus Gummow was a witness.

1. The findings of the learned magistrate as to what happened on 19 August

   2006 were that at dusk, or when there was only a little bit of daylight left on

   the evening of 19 August 2006, Angus Gummow parked his father’s motor

vehicle in Patterson Street, Tennant Creek, in front of the Headframe Bottle
Shop. He was sober as he had not been drinking that day.

1. The vehicle was parked at an angle, front end to the gutter. In the vehicle

was his sister-in-law, Janice Sorti and a friend, Troy Woodwar. Troy
Woodwar was in the front passenger seat and Janice Sorti was in the rear.

Sorti alighted and entered the Headframe Bottle Shop. Woodwar and

Gummow remained in the vehicle with the engine running, the windows

down and the CD player playing music.

1. Angus Gummow’s evidence was that about 5-10 seconds after Sorti entered

   the bottle shop the appellant came out of the bottle shop carrying a half

carton of VB cans in one hand. The appellant saw Gummow and approached
him and said words to the effect, whilst standing half a metre from the

driver’s side window where Gummow was sitting: “Get out of the car, let’s

fight. I am going to smash you. I am going to run your family out of town.

A good job what happened to your house. I am going to get you.”

1. Gummow said that these words made him scared and he felt threatened. He

   did not respond but tried to drown out the abuse by turning up the volume of

   the CD player. The abuse, which included other words and swearing which

were not particularised in the evidence, continued for about 3 minutes. The
appellant then got in the front passenger seat of the vehicle parked next to
Gummow’s and to the right of Mr Gummow’s vehicle. As it reversed out

the appellant swore again at Gummow and said words, “you’re fucking

dead”. When Sorti got into Gummow’s vehicle after exiting the Headframe

Bottle Shop, Gummow drove straight to his father’s house and entered the

police station where he made a complaint about the appellant’s behaviour

and gave a statement to the police.

1. Gummow’s evidence was supported by the witness Troy Woodwar. The

evidence of the appellant was that he was not present at the time and knew
nothing about the incident which was alleged against him, because at the
time he was at the Tennant Creek Caravan Park all day.

1. The learned magistrate after hearing the witnesses, preferred the evidence of

   Angus Gummow and Troy Woodwar to that of the appellant. He found

   beyond reasonable doubt that the appellant threatened Angus Gummow with

   injury.

2. As to the requirement that the Crown proved that the threat was “because

   that other person has appeared, or has been called or may be called to appear

   as a witness in any judicial proceeding”. The learned magistrate said this:

   “It was submitted on behalf of the defendant that there was no which the defendant was aware of and had given evidence at the defendant’s committal proceedings in April 2006 on the arson charge”.

   evidence of nexus between the threats and the requirement under s
   103A of the Criminal Code that the victim has appeared or has been
   called or may be called to appear as a witness in any judicial
   proceedings. In my view there is clear evidence of a nexus. Angus

The grounds of appeal

1. Grounds 2 and 6 challenge the finding made by the learned magistrate that

the appellant threatened Angus Gummow with injury because Gummow was
to be called as a witness in a judicial proceeding.

1. It is not in dispute that the learned magistrate was in error in finding that the

committal proceeding had already occurred. There was evidence that Mr
Gummow later did give evidence at the committal, but the only evidence he

gave was to the effect that he was a resident of the house which burnt down.

1. The only other evidence from which an inference might be drawn that the

   appellant’s motive for the threats was because he believed that Mr Gummow was a witness against him, upon which the learned magistrate relied, was the evidence relating to the appellant’s bail condition. However, the evidence

as to that condition was vague and the only admissible evidence as to the
condition came from the appellant himself. The appellant’s evidence did not
make it clear that the reason for the condition not to approach any member
of the Gummow family was because he was to be a witness in the
subsequent arson proceedings.

[33]   There was another possible explanation for the appellant’s conduct which

related to the longstanding antagonism between the two families, and the evidence that he himself had been assaulted by members of the Gummow family the day after the arson, albeit that Mr Alex Gummow had not been

involved in that assault.

1. I am satisfied that the appellant has established that the learned magistrate

was in error in his taking into account, in reaching his conclusion, that the
committal proceeding had already taken place and that Mr Gummow had
already given such evidence as he could as a witness. The only question
which remains is whether in terms of s 177(2)(f) of the Justices Act, I ought
to dismiss the appeal if I consider that no substantial miscarriage of justice
has actually occurred.

1. There was no admissible evidence that the appellant was aware that Angus

   Gummow was to be a witness at the committal proceedings. A conclusion

   that he was so aware, notwithstanding his evidence to the contrary, could

only be arrived at by way of inference. I do not think that an inference
could be safely drawn from the appellant’s evidence as to the terms of his
bail conditions. That condition may well have been imposed because of the

longstanding history of bad relations between the Gummow and Barnes’

families, including the evidence that the appellant himself had been

subjected to an alleged assault by members of the Gummow family.

1. There was no evidence that the appellant was convicted of the arson charge.

   The evidence before the learned magistrate was that the Crown entered a

nolle prosequi. In any event, Mr Gummow was not present at the house at
the time of the fire.

1. In a circumstantial case, where there is a possible explanation consistent

with innocence which the Crown has not rebutted beyond reasonable doubt,
the accused is entitled to a verdict of acquittal. In my opinion that is the

situation here. The burden of proving that no substantial miscarriage of
justice has actually occurred rests upon the respondent to the appeal. I am

not satisfied that I should dismiss the appeal on this ground.

Orders

1. The appeal is allowed. The finding of guilt, the conviction and sentence

   imposed are quashed. In lieu thereof I enter a verdict of not guilty.

[1] Mathews v R ; (1992) 64 A.Crim.R 305