Barron v The State of Western Australia
[2008] WASCA 213
•17 OCTOBER 2008
BARRON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 213
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 213 | |
| Case No: | CACR:59/2007 | 8 AUGUST 2008 | |
| Coram: | McLURE JA BUSS JA MURRAY AJA | 17/10/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS KEVIN BARRON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appellant convicted of burglary, assaults and a threat The verdict said to be unreasonable having regard to the evidence Turns on own facts |
Legislation: | Nil |
Case References: | Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BARRON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 213 CORAM : McLURE JA
- BUSS JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
Citation : THE STATE OF WESTERN AUSTRALIA -v- BARRON
File No : IND 71 of 2007
Catchwords:
Criminal law and procedure - Appellant convicted of burglary, assaults and a threat - The verdict said to be unreasonable having regard to the evidence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr K P Bates
Solicitors:
Appellant : Max Owens & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
(Page 3)
1 McLURE JA: I agree with Murray AJA.
2 BUSS JA: I agree with Murray AJA.
3 MURRAY AJA:
The proceedings in the District Court
4 The appellant was indicted in the District Court, with one Steel, with four offences, all allegedly committed on 17 November 2005 at Boyup Brook. Barron and Steel were jointly charged with each offence as follows:
1. Burglary upon the house of one Jamie Dyson. The allegation was that while in the house they committed the offence of assault. It was alleged that the offence of burglary was aggravated by the fact that it was a dwelling house and by the fact that Barron and Steel were in company with each other.
2. Assault occasioning bodily harm to Dyson.
3. Assault occasioning bodily harm to one John Hilton.
4. Threatening Dyson with intent to compel him to do an act he was lawfully entitled to abstain from doing.
5 Barron and Steel were jointly tried by a judge and jury in the District Court at Bunbury on 24 - 27 April 2007. Steel was convicted of all the offences charged in the indictment. Barron was convicted of counts 1, 3 and 4, and he was acquitted of count 2.
6 On 2 May 2007 Barron was sentenced to an aggregate term of 3 years and 4 months imprisonment with eligibility for parole. The term commenced on 27 April 2007. He is therefore currently serving the non-parole period of 20 months and, on my calculation, his earliest eligibility date for parole is 27 December 2008.
The appeal
7 Both men appealed against the convictions. Both were unrepresented. Steel subsequently discontinued his appeal by filing the appropriate notice. When Barron's appeal was heard, we had the benefit of the assistance of counsel appearing for him. The appeal was, of course, instituted in the form of an application for leave to appeal, and that application for leave was referred by a single judge of the court to be heard together with the appeal.
(Page 4)
8 The appeal was brought on one ground which, when amended, is expressed in the following terms:
1. Having regard to the evidence, the verdict of the jury was unreasonable and/or cannot be supported, given:
Particulars:
- i) no fingerprints or DNA of the appellant was found at the alleged crime scene;
ii) the complainant Hilton was unable to identify the Appellant Barron from a digiboard despite having the opportunity to get a good view and being able to give a detailed description of the offender alleged to be the Appellant;
iii) inconsistent evidence was given by the complainants about whether the Appellant was named by Dyson during the offence;
iv) the arrow that was allegedly shot caused no damage to the property;
v) there was evidence that the offender alleged to be Barron has never owned or worn a pair of overalls and none were found at his house;
vi) the differences in the evidence between Hilton and Dyson as to the nature of the assault on Hilton;
vii) there was no evidence from the complainants that the attackers were intoxicated, which point is inconsistent with evidence given that the Appellant Barron was intoxicated on the night in question;
viii) the physical descriptions of the offenders by Hilton and Dyson were not consistent;
ix) Dyson was unable at trial to recall the description of the appellant that he gave to police at the time of the alleged offence;
x) Crystal Menghini's evidence provided an alibi for the co-accused Steel, which in turn provided an alibi for Barron;
xi) the evidence of the police officer about how far apart the two houses were was inaccurate;
- xii) Hilton's description of what occurred, as was given to Dr Jacob, was inconsistent to Hilton's evidence.
9 A ground in that form relies upon s 30(3)(a) of the Criminal Appeals Act 2004 (WA) which requires the court to allow an appeal if, in its opinion, the verdict of guilty upon which the conviction is based must be set aside because, 'having regard to the evidence, it is unreasonable or cannot be supported'.
10 The manner in which that task is to be approached is authoritatively determined by the decision of the High Court in M v The Queen (1994) 181 CLR 487, 492 - 493. The question is one of fact. The appellate court must make its own independent assessment of the evidence. It must ask the question whether, 'it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty' (493). At 494 - 495 the High Court made the point that, in performing its task, the appellate court was to pay due regard to the fact that it was the jury which was the tribunal of fact who had had the opportunity to see and hear the witnesses give their evidence. They had an advantage denied the appellate court, who could only proceed upon the record. However, subject to such considerations, if the appellate court concludes that the evidence, although technically sufficient to sustain the verdict, lacks probative force for some demonstrated reason, then the court is bound to intervene upon the ground that it may be that the appellant has been wrongly convicted.
11 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 [113], Hayne J said that:
the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
The evidence examined
12 Dyson and Hilton had been friends for a long time. Hilton used to live in Greenbushes, not far from Boyup Brook. He had sold his house and moved. On the night in question, Wednesday 17 October 2005, he was staying with Dyson at his house in Boyup Brook. The two men were the only people in the house that evening. Hilton is a teetotaller. That night Dyson had had beer to drink, but he was not intoxicated to any substantial degree.
(Page 6)
13 The two men went to bed about 10.30 pm, Dyson in his bedroom and Hilton on a mattress in the lounge room. Hilton said he was awakened by whispering voices at about midnight. There were intruders in the house. He saw two shadowy figures walking in the hallway towards the rear of the house where the bedrooms were. The first person had a crossbow. The second person had what he thought was a wooden stick of some description. This person turned the light on in the lounge room. Hilton then saw that what he was carrying was a home-made spear, about 60 centimetres in length, in the form of a wooden stick with a knife taped to the end of it.
14 This person was not known to Hilton. Dyson later recognised him to be the appellant Barron. Hilton said that when the light went on the two men looked directly at each other. The intruder said, 'Don't fucking move.' Hilton said the man was wearing a beanie, but his face was not concealed. He was unshaven and was dressed in what appeared to be grey overalls over jeans. Hilton said that he could see the other man with the crossbow move on a step or two down the hall to the doorway to Dyson's bedroom. He switched the light on in that room.
15 The story was taken up by Dyson. He confirmed that he had had a few beers early in the afternoon and in the evening, but he was by no means intoxicated. After retiring to bed, he was awakened when the light came on in his room and he saw an intruder with a crossbow, and a balaclava covering his face. The man told him to get up and to come out of the bedroom. Dyson did so. As he left the room he was grabbed by the hair and dragged. He felt what he described as 'a serious whack' (ts 86) to the back of his head, he thought with the butt of the crossbow. It did not cause him to lose consciousness. He was pushed into the lounge room where he saw Hilton and the man with the spear, which he described as a broom handle with a knife taped to the end of it. Dyson was pushed onto the couch in the lounge room.
16 Dyson said that a confused scuffle then commenced between the two men and Hilton, who had apparently attempted to disarm the man with the crossbow. The men commenced to punch and kick Hilton, and screamed at him, 'Sit down and fucking stay out of this' (ts 88). This was a short incident which left Hilton cowering on the floor.
17 No sooner had it finished than Dyson saw the face of the man with the spear. He recognised him. It was Barron, who had previously delivered firewood to his house and with whom Dyson had had some
(Page 7)
- social contact six weeks to two months prior to the incident in question. Dyson said, 'Dougie, what are you doing here?' (ts 89).
18 Barron did not react or reply, but the other man immediately came to Dyson and started punching him in the face, calling Dyson a 'wife-basher' and saying to Dyson that Dyson knew why he was there. The man said, 'You know why I'm here. You have to go down to the police station tomorrow and drop the charges.' (ts 90). Dyson's evidence was that the only charge that could refer to was an assault upon him by a man named Tetlow a few weeks earlier.
19 Dyson sought to defend himself against the assault by this man, and in the course of the struggle the balaclava came off and he recognised Steel, who he also knew and had known for a couple of years. When the balaclava was removed, Steel said to him, 'Now you know who I am.' (ts 91). Steel repeated the instruction to go down to the police station and, 'drop the charges' (ts 92). Dyson said he agreed, although he was aware of only one charge. Shortly after that, warning the occupants of the house not to speak to the police, the two men left. Dyson said by then it was about 12 30 am. Hilton thought it was about 12.20 am.
20 When one comes to the evidence of Hilton about the events in the lounge room, his evidence is generally similar to that of Dyson, but there are differences. Hilton confirmed that Dyson was rather puzzled about the charges which he was instructed to drop. He said Dyson asked whether the man with the crossbow, who was making the demands, meant, 'the charges against Bob' (ts 49). Bob was Tetlow's first name. He said that exchange happened before the man with the crossbow began punching Dyson in the face, abusing him about being a wife-basher. Hilton agreed that he thought this man would fire the crossbow, and he tried, unsuccessfully, to grab it, becoming involved in a struggle with the man with the spear. He said he was struck once to the left side of his face, but he did not know by whom.
21 Hilton was asked whether the man with the spear was named by Dyson and he said, 'No, not to my knowledge' (ts 50). However, having given that evidence, when he was asked whether he became involved in the fracas he commenced his answer by describing the situation in the room as 'quite confusing and quite volatile' (ts 50).
22 While both Dyson and Hilton were cross-examined about the accuracy and the reliability of their recollections about what occurred at the house, the issue at trial was not whether they were attacked by
(Page 8)
- intruders in the way generally described, but whether the appellant was one of those offenders. Hilton saw the faces of both men. His evidence was that he knew neither, although he agreed that when the balaclava had been removed from the man with the crossbow, that man said they would now know who he was. But Hilton said he did not think he had seen either man before. On the other hand, as has been seen, Dyson's evidence was that he had known both Barron and Steel for some time. His evidence was that he recognised each of them.
23 A digiboard identification process in relation to both Barron and Steel was conducted by the police with Hilton on 22 November 2005, shortly after the incident. Hilton identified Steel, but could make no identification of Barron. There was no forensic evidence, DNA or fingerprints, which might establish the presence of either Barron or Steel at the house.
24 Evidence was given in the form of statements by two neighbours which tended generally to establish sounds of disturbance coming from Dyson's house at about 12 midnight on the night in question. There was some rather inconclusive evidence directed to places and times upon occasions when Barron and Steel had been seen in Boyup Brook by others who knew them. One such witness was Crystal Menghini. At the relevant time, Steel was the boyfriend of her sister Gemma. She herself had had a relationship with him which commenced a week or so after 17 November 2005. On that night she saw Steel and her boyfriend at her sister's house. She did not see Barron. She put the time at just after midnight and said she left there about 12.15 am, 12.20 am, 'something like that' (ts 139).
25 Crystal Menghini also gave evidence of Steel's apparent ownership of a crossbow. She had heard Steel talk about having such a weapon (ts 136). Further, during the sexual relationship she had with Steel he had told her, in very general terms, what he and Barron had done. That, of course, was not evidence against Barron. But she also said that she had heard a conversation between Steel and Barron, 'just talking about how they are going to get out of it - just ways of trying to get out of it, like' (ts 140).
26 Steel did not give evidence, but he called Crystal Menghini's sister, Gemma, to give evidence about the contact she had had with Barron and Steel. If her evidence was accepted, as it evidently was not, it would have provided both men with an alibi of sorts because, although there were times when she was not with them, generally she said she was in the
(Page 9)
- company of both men on the night in question until about 1.30 am. However, so far as Barron was concerned, as I understand Gemma Menghini's evidence, she conceded that he was not in her company, although Steel was, for the whole of the period which must have commenced some time before 11 pm until Barron returned to her house just before 1 am.
27 Detective Mullins gave evidence that he had interviewed Barron, commencing at about 4 pm on 18 November 2005 at the Boyup Brook police station. He commenced to video the interview, but Barron said he would not agree to that. However, Barron did agree to the interview being recorded in written form. Such a document was created and ultimately signed by the appellant. It became exh 11. Barron said that, with brief absences, he had been with Steel at Steel's house, drinking, from about 6.30 pm to about 1 or 2 am, when he went home. He agreed that he had spoken to the Menghini sisters and another woman. He said that he did not go to Dyson's house. He said he knew Dyson because he had been to his house to supply firewood, but that was some weeks ago. He did not know Hilton. He did know Tetlow. He had not assaulted anybody or threatened anybody.
28 Barron gave evidence in his own defence. His evidence was materially to the same effect as the answers he gave the investigating police officers, but when cross-examined he did say that he was away from Steel's house from about 11.30 pm to about 12.30 am on the night in question (ts 197). He was specifically asked whether he was wearing overalls on the night in question and he denied that he had ever done so.
Commentary on the ground of appeal
29 My observations about the particulars to which the ground draws attention in support of the overall submission that the verdicts of the jury were unreasonable are as follows:
1. It is true that there was no forensic evidence to connect the appellant with a visit to Dyson's house on the night in question.
2. As I have said, Hilton did not identify Barron, but the description he gave of the appearance and conduct of the man holding the spear was clearly the person recognised by Dyson to be Barron, a person he knew, as Barron himself admitted. At the conclusion of the hearing of the appeal, Barron himself submitted that Dyson must have been mistaken and his power of recognition disturbed
- by the blow he received to the head. No such suggestion was accepted by Dyson at the trial.
- 3. As to the suggestion that the evidence of Hilton and Dyson was inconsistent as to whether the appellant was named by Dyson, it is certainly the case that Dyson's evidence was that he did so, and Hilton's evidence was, in effect, that he had no such recollection. However, Hilton gave evidence that it seemed to him that Dyson knew the person with the spear and he could only have received that impression from something that Dyson said.
4. There was inconclusive evidence as to whether or not the crossbow was fired during the course of the fracas or whether it was merely knocked to one side.
5. Hilton's evidence was that the man with the spear was wearing overalls over jeans. It is true that Barron gave evidence that he neither owned nor wore overalls.
6. Hilton's evidence was that he was struck once. Dyson gave evidence of a more sustained attack on Hilton. The evidence of Dyson was probably to be preferred, supported as it was by medical evidence in the form of a report by Dr Jacob (exh 9) and evidence of a Mr Cox, a nurse who examined and treated Hilton on 18 November 2005 at the Boyup Brook nursing station. That evidence suggested that Hilton had suffered injuries consistent with a number of blows being struck.
7. As to Barron's intoxication, he gave evidence that he was quite drunk, although, of course, he said that it could not be him who was seen by Hilton at Dyson's house. Hilton said that neither of the intruders appeared to be intoxicated. There is nothing in the evidence to suggest that Barron was so intoxicated as to be unable to behave in the manner described by Dyson and Hilton.
8. & 9. Inevitably, the physical descriptions of the appellant given by Dyson and Hilton were imprecise. That is unsurprising in view of the traumatic circumstances in which the appellant was observed on the night. It is true that Dyson could not recall precisely, the description of the appellant he had given to the police.
10. It is right to say that Crystal Menghini's evidence, if accepted, would tend to provide an alibi to Steel. As I have said, it would appear that that evidence was not accepted. As to whether her evidence was capable of providing an alibi for the appellant, that would depend on the jury accepting that it may have been the case that Barron and Steel were in each other's company at all material
- times. Again, that appears not to have been accepted and, as I have mentioned, there was evidence to support the view that that was not the case.
- 11. There appears to be no merit in the point that Detective Mullins gave evidence that Dyson's house and that of his neighbours were in relatively close proximity to each other. There were photographs in evidence (exh 5) to show how the houses were placed with respect to each other.
12. Dr Jacob's notes were that Hilton told him he had been assaulted in Boyup Brook 'by some alleged drug dealer whilst defending a friend' (ts 134). Ultimately, the trial judge directed the jury that they were not to speculate about whether either or both of the offenders were drug dealers. The brief history given to Dr Jacobs was hardly a basis upon which it might be suggested that Hilton's evidence was incapable of belief.
The verdicts of guilty were not unreasonable or unsupported by the evidence
30 Having reviewed all the relevant evidence and having considered the specific matters raised in support of the ground in the particulars, I may say immediately that, in my view, none of those matters is persuasive of the proposition that it was not open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. None of those matters is capable of supporting the view that the jury, acting reasonably, must have entertained a doubt about the appellant's guilt. Indeed, in my opinion, the case against the appellant was very strong.
31 Certainly he could not be convicted of implication in the burglary in the form in which it was charged, or of implication in the assault upon Hilton, thereby causing him bodily harm, or of implication in the threat to compel Dyson to attend upon the police and withdraw his complaint of assault against Tetlow, unless Dyson's evidence was accepted when he said that he recognised the appellant as one of the two intruders in his house.
32 But there was no contest that Dyson knew Barron, and nothing to suggest that he could not be recognised over the period of about a quarter of an hour while the offenders were in Dyson's house and in his presence. The appellant had made no attempt to cover his face or conceal his identity. The light was on in the lounge room. Despite the traumatic nature of the events which occurred there, it could not be suggested that Dyson did not have a good opportunity to observe the appellant and
(Page 12)
- recognise him. The appellant did not have a watertight alibi to support the view that Dyson may have made a mistake. Once Dyson's evidence was accepted, Hilton's evidence added force to the case against the appellant by describing, consistently with Dyson's evidence, the part which the appellant had played in the commission of the offences of which he was convicted.
33 I would refuse leave to appeal and dismiss the appeal.
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