Chard v Williams (a pseudonym)
[2023] ACTMC 20
•3 July 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Chard v Williams (a pseudonym) |
| Citation: | [2023] ACTMC 20 |
| Hearing Date(s): | 8 May 2023 |
| DecisionDate: | 3 July 2023 |
| Before: | Special Magistrate Richter |
| Decision: | In relation to CC2022/5366 - not guilty. In relation to CC2022/4416 - guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – violent disorder – affray – flight as evidence of guilt. |
| Legislation Cited: | Crimes Act 1900 ss 35A, 35A(2) |
| Cases Cited: | R v Melrose (1987) 30 A Crim R 332. |
| R v Cinitar (2006) 167 A Crim R 504 | |
| Parties: | A Chard (Informant) |
| Representation: | Counsel |
| Solicitors | |
| File Number(s): | CC2022/5366 CC2022/4416 |
SPECIAL MAGISTRATE RICHTER:
The defendant, has pleaded not guilty to the offences of:
CC2022/5366
That he in the Australian Capital Territory on 6 May 2022 did engage in violent conduct directed towards someone else, namely Jacob Berry and two or more other people were present and also engaged in violent conduct directed towards someone else namely Jacob Berry and his conduct and the conduct of the other people taken together was likely to cause a reasonable person to fear for their safety.
In contravention of Section 35A (2) Crimes Act 1900 (ACT)
CC2022/4416
That he in the Australian Capital Territory on 6 May 2022 did engage in violent conduct directed towards another person in circumstances where that violent conduct would be likely to cause a reasonable person to fear for his or her safety.
In contravention of section 35A Crimes Act 1900 (ACT)
The charges are laid in the alternative.
Background
At about 11:30 pm on Friday, 6 May 2022 a series of disturbances occurred in Garema Place, Canberra. An overview of the behaviour which occurred that night was captured on CCTV and police body worn camera (‘BWC’).
There is no doubt that there was violent conduct occurring in the street that night. It involved a group or groups of young men, some of whom were participants and others who were bystanders and others who were victims of this conduct.
The prosecution case relies on the assault of Jacob Berry which occurred at the end of this series of disturbances in the vicinity of Garema Place. It is alleged that this defendant threw Jacob Berry to the ground and kicked him on two occasions before running off and being caught by police. It is further alleged that at the time he assaulted Jacob Berry there were two or more other people present who were also engaged in violent conduct.
The elements
The elements of the offence of affray as set out by the prosecution in its aide memoir pursuant to Practice Direction 1 of 2020 are:
(a) The defendant engaged in conduct.
(b) The defendant intended to engage in that conduct.
(c) The conduct was violent or threatened violence.
(d) The defendant was reckless as to whether the conduct was violent or threatened violence.
(e) The violence or threat was directed towards someone else.
(f) The defendant was reckless as to whether the threat was directed towards someone else.
(g) Two or more other people were present who were also engaging in conduct that was violence or threatened violence to towards someone else.
(h) The defendant was reckless as to whether two or more people present who also engaged in conduct that was violence or involved the threat of violence directed towards someone else.
(i) The conduct of the defendant and the other people taken together would be likely to cause a reasonable person to fear for their safety, and
(j) The defendant was reckless as to whether such conduct would be likely to cause a reasonable person to fear for their safety.
The elements for the alternative charge of affray simpliciter are the same but without the necessity of proving that two or more other people were present who are also engaged in the conduct as set out at paragraph (g).
Agreed statements
A series of agreed statements were tendered (Exhibit 1) those being statements of:
(a) Liam love,
(b) Jared Nissen,
(c) Mikayla Brown,
(d) Olivia Davies,
(e) Thomas Gagel,
(f) Jacob Berry,
(g) Constable Alice John, and
(h) Constable Daniel Sparks.
Further, statements of Constable Jacob Eiffert (Exhibit 5) and Constable Cameron Breaky (Exhibit 6) were also tended.
In addition to the written statements which were tendered by consent I heard oral evidence from Riley Wilcox, Bryce O’Neal, Constable Andrew Chard and Constable Jacob Eiffert and a young person who I shall refer to as “ZK”.
Electronic files of the BWC footage of Constable Chard (Exhibit 2), CCTV footage Garema Place (Exhibit 3), mobile phone footage (Exhibit 4), and BWC footage of Constable Eiffert.
The principal issue at heart was what, if any, conduct the defendant had engaged in at the relevant time. There was no dispute as to his identity or his presence at the scene or that there was violence occurring in his vicinity.
Evidence
CCTV
The CCTV evidence (Exhibit 3) gave an overview of the activity that was happening in Garema Place that night. That footage runs for just under 15 minutes.
At 11:30:24 the camera operator zooms in on a group of nine or 10 young men gathered around a tree in the vicinity of the Garema Place chessboard. What occurs then is a fight between two men with other bystanders watching. This defendant was identified during the course of hearing and it was conceded by his counsel that he was the man wearing a black top, light-coloured trousers and had his hands in his pockets whilst watching this fight. At this time, he was wearing a hood over his head from his windcheater.
At 11:31:43 the defendant leaves that area with three other males. His presence is distinctive as he is the only member of that group wearing light-coloured pants.
At 11:32:29 the camera operator zooms onto the area outside the Roger Bartholomew menswear store where 10 young males are gathered, and shortly afterwards a fight breaks out between two of the males. That fight is between an unknown male and a male person wearing an orange or yellow baseball cap and a black facemask. He came to be known throughout the hearing as the man in the Gucci hat. The defendant can be seen watching that fight with his hands in his pockets. He does not enter into that fight in any way. He cannot be seen to offer encouragement in relation to that fight, other than his mere presence. His mere presence is not being sufficient to make him a participant in that conduct by way of a joint enterprise.
At 11:32:31 the camera operator has zoomed in on an area near to an outdoor setting with a red café umbrella. Beyond that café umbrella is the area where this incident has occurred. In reviewing that CCTV it is apparent that the area was well light with street lighting, decorative lighting in surrounding trees and hospitality venues which were open and trading.
From 11:32:36 the police are seen arriving. There is a police van with its headlights on further illuminating the scene. There is one officer running ahead of the van. For reasons which I will discuss later, I accept that officer is Constable Chard and this portion of the CCTV is of significance as to his observations and to the evidence of Constable Eiffert.
At 11:32:38 the van stops short of the red café umbrella at which time four police officers get out of the van and are joined by two other officers who have arrived on foot behind the van.
Jacob Berry
Given that he is the man named in the charge, I will start with the evidence of Jacob Berry. His agreed statement detailed and unremarkable night out with his friends when he had gone to the labour club in Canberra City with his friends Riley Wilcox and Bryce O’Neill and had then left the club to attend Fiction night-club to attend a ticketed event to see a band.
He describes that when he was walking through Garema Place he saw a male person lying on the ground being kicked in the head. He remembered that the person kicking that male on the ground was wearing a green/red coloured Gucci hat, black clothing and had a black mask covering his face. He heard Riley Wilcox speak to that male and then saw that man push Riley Wilcox in the face. He then saw Bryce O’Neill step in and O’Neill and the man in the Gucci hat began to hold one another while trying to throw punches.
After that incident ended he and his friends continued to walk towards Fiction nightclub. He describes hearing footsteps behind him and as he turned around he observed the male in the Gucci hat holding a chair above his head and walking towards him. The next thing he can remember is sitting on the ground speaking to a police officer.
Riley Wilcox
Mr Wilcox gave evidence that he had spent the night with his friends Jacob Berry and Bryce O’Neal. He gave the same account of the early part of the night as Mr Berry had in his written statement.
He described the incident that occurred on the way from the Labour Club to Fiction when he saw “a few boys stomping on some dudes head”. He said there were at least two people involved in that stomping.[1] He said that he went in to see if he knew the person on the ground and ended up getting hit in the head. After that everything just ended and they continue to walk to Fiction.
[1] TX p7 at [5].
While walking to Fiction he heard the group of men from earlier approaching from behind and saw that two or three of them were holding chairs. A few of the men - being four or five –looked like they were preparing to throw them.
He described one of the men as wearing a Gucci hat and a facemask. That person was standing in front of him and at least one of the other people behind the man in the Gucci hat was holding a chair.
He describes the four or five men running to him and his friends and subsequently saw Jacob Berry knocked out.[2]
[2] TX p8 at [40.]
Q.And you spoke a little bit about a second fight breaking out again before police came. Can you go into some more detail about that?
A.So we were pretty much – about to walk around the corner towards Fiction and then we looked up, we heard some yelling and we then we looked over our shoulder and there was a bunch of men running towards us and then that’s when we said that ‘We’ve got to go’. And then we started walking off to the side and we pretty much didn’t have enough time to get away and they were there with – holding chairs and a bit of a fight broke out again. And that’s when I looked over to my side and I saw my mate knocked out on the ground and that’s shortly after the police came over.
Q.And you said you saw people running towards you and your friends?
A.Mm-hmm.
Q.How many do you recall running towards you and your friends?
A.Four or five.
Q.And when that fight broke out where you then subsequently saw your friend knocked out, can I just confirm what is your friend’s name?
Q.Jacob Berry.
He then saw the police running towards the group and then pretty much everyone who was involved, besides his group, fled. He described the police arriving about 15 seconds after he had seen Mr Berry unconscious.
After that he checked on Mr Berry. How much time passed between Mr Berry falling to the ground and this witness checking on him was not canvassed by either counsel.
Mr Wilcox was cross-examined about the assault of Mr Berry:
Q. And then I think your evidence was that you saw – it’s correct to say that Gucci hat then punched Mr Berry in the face while he wasn’t looking, is that right?
A. Yes.
Q. And Mr Berry fell to the ground immediately?
A. From what I’ve seen, yes. From what I saw, yes.
Q. And you’ve given evidence obviously that that Gucci hat is quite recognisable and you’re certain that Mr Berry was punched by the individual wearing the Gucci hat?
A. Yes.
Q. And then he was unconscious on the ground?
A. Yes.
Q. And like a good mate, you went over to him to make sure he was okay?
A. Mm-hmm.
Q. And you never saw anyone stomp on Mr Berry’s head?
A. I didn’t see anything like that, No.
In re-examination the witnesses evidence was qualified in that he did not have a continuous view of Mr Berry during the incident.[3] His evidence in re-examination was that the male in the Guicci hat was also assaulting Mr O’Neill.
Bryce O’Neill
[3] TX p16 at [15].
Mr O’Neal gave evidence that he had spent the night with his friends Jacob Berry and Riley Wilcox. He gave the same account of the early part of the night as Mr Berry had in his written statement.
At the point in the evening where chairs were held by a group of young men, he describes having seen the man in the Gucci hat throwing a chair at him, and that a man of Sudanese appearance was with the man in the Gucci hat at that time.[4]
[4] TX p22 at [5] – [15].
In relation to the assault on Jacob Berry, he accepted a proposition from the prosecutor that he saw two people assaulting Jacob Berry,[5] and described that when he looked over to see [Mr Berry] being assaulted he was falling to the ground. He did not give evidence of seeing a kick, but conceded in re-examination that he did not have a continuous view of Mr Berry.[6]
[5] TX p22 at [45].
[6] TX p27 at [20].
His evidence in relation to the police was that he heard them rushing over – hearing the sound of someone shouting ‘stop’. He could not estimate how much time had passed before he became aware of the police arriving at the scene.He saw the group of males run away when the police arrived on the scene.
In cross examination he accepted that the police arrived very shortly after Mr Berry had fallen to the ground. He also conceded that there were some members of the group of young men who had been ‘just watching’.
Constable Chard
Constable Chard is the informant in this matter. On the night in question, he was on routine foot patrol when he was approached by a member of the public who advised him that there was an ongoing physical disturbance occurring in Garema Place.[7]
[7] TX p28 at [10].
He then jogged into Garema Place and when he was within a few metres of them, he saw an altercation involving five males. Having reviewed the CCTV footage (Exhibit 3) I find that he is the officer who arrives well ahead of the police van. Further, there are no other officers in his near vicinity when he approaches the area beyond the red café umbrella, where he says he saw the defendant for the first time.
On that night, Constable Chard was wearing a body worn camera. Its location on his body was the subject of some evidence. The camera device is attached to the chest of the equipment harness he was wearing. Further the camera moves about both from side to side and bounces up and down. That movement was apparent in viewing the BWC footage.
His journey into the scene of this incident is captured on his BWC (Exhibit 2). He described what he saw as he ran into the scene:
A. I observed multiple things. I observed a male in a Gucci hat who I was able to recognise. I also observed the defendant who was wearing grey tracksuit pants, a black jumper and a black head piece throw a male to the ground and proceeded to kick him in the head on two occasions.
Q. And could you estimate how far you were away from the defendant when you saw that?
A. I was approximately 5-6m away when that happened.
Q. How would you describe the force or nature of the throw and the kicks?
A. Violent, forcefully threw the male to the ground and proceeded to kick him on two occasions with force. It was sickening, I suppose, if you want to say how I felt when I saw it.
Later he gave evidence of his observations of the defendant immediately after seeing the assault on Mr Berry.
Q. And what did you do upon seeing the person in the black head piece, jumper and trackpants do that action?
A. So from initially getting to the disturbance, I announced myself. I said words to the effect of ‘Police. Stop. Get on the ground’. I then saw the actions of the defendant as I’ve described before. I then observed the defendant turn and run into Garema Place/City Walk area in a zigzag motion. I proceeded to chase the defendant until he slipped. He then fell over slipped, fell over, stood up, faced me and it was then I effected an arrest.[8]
Q. Did you lose a visual of [the defendant] for a sustained period of time following – seeing him commit the assault and executing the tackle and arrest?
A. No, I did not lose any visual.[9]
[8] TX p29 at [15].
[9] TX p31 at [1].
In cross examination it was put to this witness that Constable Eiffert was in front of him when he jogged into Garema Place. His answer to that question was that he believed that he [Constable Eiffert] was.[10]
[10] TX p36 at [30].
That evidence, in relation to the relevant positions of Constable Chard and Constable Eiffert does not accord with what is recorded on Constable Chard’s BWC ( Exhibit 2 - no police officer is seen in front of Constable Chard on the BWC footage) or on the CCTV (Exhibit 3).
Both sets of video evidence clearly indicate that when approaching the scene, Constable Chard was in front of all other police officers and in front of the police van which also attended.
It was put to the witness by counsel for the defendant that his observation in relation to seeing Mr Berry thrown to the ground by the defendant was wrong:
Q. You’re certain that it was [ the defendant ] that threw him to the ground and not someone else that punched him and knocked him unconscious causing him to fall to the ground?
A. I saw – I saw – I stand by what I said. I saw the defendant throw Jacob Berry to the ground and kick him in the head, twice.
Q. So your evidence then, I presume, is that you certainly didn’t see the – I’ll call him the individual in the Gucci hat, it’s Mr John Miller, but you’re certain that you didn’t see the individual in the Gucci hat punch Mr Berry in the face?
A. I didn’t observe that, no.
Q. And you’re certain that that’s – the punch from the Gucci hat individual is not the reason that Mr Berry fell to the ground?
A. No.
Q. So to be clear, it’s two kicks to the head from [the defendant] to Mr Berry whilst he was on the ground that you saw, is that right?
A. Yes.
Constable Eiffert
In addition to his statement which was tendered as exhibit 5, Constable Eiffert was called by the prosecution to give oral evidence. He adopted his previous statement, Exhibit 5, as his evidence in chief.
In cross examination he accepted the following propositions:[11]
[11] TX p44.
(a) That he was with Constable Chard on duty.
(b) A member of the public approached him and advises that there’s a fight occurring in Garema Place.
(c) As he got to the chessboard in Garema Place he noticed a fight occurring at approximately 50 metres away.
(d) That fight involved approximately 7 males.
(e) He could not make out specifics of the fight or identify anyone.
(f) He then ran towards the group and [the defendant] looked at him and then sprints away.
(g) He could not identify anyone in particular.
Constable Eiffert also accepted the proposition that he believed, as a general rule, that people do not run from the police if they have nothing to hide.
In answer to a question from me, Constable Eiffert described himself as being within a metre or two behind Constable Chard and to his left, almost side by side.
Having reviewed the CCTV footage (Exhibit 3) and the BWC of Constable Chard (Exhibit 2) I doubt the accuracy of that statement. It does not accord with what is seen on either of those exhibits.
Young person ZK
The prosecution called a young-person who I shall refer to as ZK.
At the time of giving evidence he was 18 years of age and had been 17 years of age at the time of this incident. He had attended the hearing in answer to a subpoena.
He conceded having pleaded guilty to an offence of common assault relating to an incident of 6 May 2022, but claimed to have no recollection as to whom he was with at that time or of the facts which formed the basis for his plea.
I granted the prosecution leave to cross examine the young person in accordance with section 38 Evidence Act 2011, however on cross-examination he continued to maintain having little or no recollection of the incident.
Even after the prosecution played a portion of BWC footage to him (which was ultimately tendered as Exhibit 7), he did not assist the prosecution case in any meaningful way.
BWC footage[12]
[12] TX p44 at [45]
I have taken the opportunity to review that BWC footage (Exhibit 2) over a period of time since that exhibit was tendered at hearing. The most relevant portion of that BWC is between 00:30 and 00:36.
In that portion of the BWC it is apparent that as Constable Chard runs toward the location where this incident occurred there is sufficient lighting for the camera to have detected the presence of the accused and the other young men who were standing under the veranda of the building.
In the course of his journey, Constable Chard runs past an outdoor dining set with a red café umbrella. Prior to passing that location figures can be seen in silhouette under the veranda to which he was headed at 00:28 on the BWC.
I have considered that exhibit frame by frame. I consider this to be permissible in the same way which jurors may consider a photograph tendered in the course of a trial by using reading glasses or a magnifying glass to clarify the image for themselves. In the video a person can be seen lying on the ground at 00:36 in that same area with another person who appears to be coming to his aid. I take that person to be the witness Wilcox.
As Constable Chard gets closer it is apparent that there is a group of people together under that same veranda. The defendant is obvious in that group as the only individual in light coloured pants. This is distinctive and obvious as it had been throughout the earlier CCTV footage (Exhibit 3).
It is against this background and my observations in paragraphs 13 to 19 that I assess the evidence lead in the hearing.
The defendant’s case
The defendant did not give evidence. He is not required to give evidence because the onus of proof is on the prosecution. The prosecution must prove each and every element of the offence charged beyond reasonable doubt. It is not sufficient for the prosecution to demonstrate that there is a suspicion that the defendant is guilty, or even that he is probably guilty of an offence. The defendant is not required to prove anything in these proceedings, and in particular, is not required to prove himself innocent of the charge.
If the defendant offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation beyond reasonable doubt. If the prosecution does not do so, then the defendant is entitled to be acquitted.
In this case the defendant, through his counsel, suggested an explanation consistent with innocence, namely that he had been a bystander and had been arrested by police because he had run from the scene.
Specific direction – flight of the defendant
The defence raised the issue of flight as the reason for the arrest of the defendant. On the other hand the prosecution urged that I rely on the defendant’s flight as consciousness of guilt.
For me to infer that the defendant’s flight was a result of a consciousness of guilt, I would have to be satisfied beyond reasonable doubt of that inference - R v Melrose (1987) 30 A Crim R 332.
I must direct myself that there may be many reasons for the defendant’s flight – R v Cinitar (2006) 167 A Crim R 504. In this case the defendants counsel raised a number of reasons that the defendant might have run from police, including his age, his racial identity and a general fear of police. I cannot exclude any of those reasons from being the reason for his flight.
I do not find that the flight of the defendant was as a result of a consciousness of guilt.
General directions
In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence, he is not required to prove it, it is for the prosecution to disprove it or demonstrate its irrelevance.
In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me. I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience.
Assessment
I turn now to my assessment of the evidence.
Agreed evidence
The agreed evidence which was tendered as Exhibit 1 I accept as being undisputed as contemplated by section 191 Evidence Act 2011.
Riley Wilcox
This witness struck me as being an honest witness who did his best to assist the Court, but whose recollection of the night was confused and possibly affected by his earlier consumption of alcohol that night.
His evidence in chief of the events at the time of Mr Berry being assaulted was given in fairly general terms and without much detail. In fairness to him this must have been a shocking incident.
In cross-examination he was willing to concede most of what was put to him, however, I had the firm view that he was a witness who was willing to agree with the cross-examiner so as to end the process of giving evidence.
Bryce O’Neil
As with his friend Mr Wilcox, this witness was an honest witness who did his best to assist the court. His evidence was confusing at times, but makes more sense once the remainder of the surrounding circumstances became known through the CCTV footage and the evidence of other witnesses.
Young person ZK
I do not accept that this young person was a witness of truth. His demeanour in court gave me the clear impression that not only did he not want to be in court, but that he was not prepared to assist the court by being a truthful witness.
I reject his evidence from my consideration.
Constable Eiffert
For the reasons I have stated at paragraph 18 and 43 I do not accept Constable Eiffert’s evidence of his position in relation to Constable Chard at the time Constable Chard was approaching the incident where the assault of Mr Berry occurred.
I found him to be a truthful witness who was attempting to assist the court. The accuracy of his recollection as to his location at the relevant time if he had may have been aided had he been taken to the relevant CCTV footage (Exhibit 3) and the BWC (Exhibit 2). His attention was not drawn to that material by either party.
Constable Chard.
Constable Chard was an impressive witness. He was confident in his evidence, and made appropriate concessions during cross-examination.
I acknowledge the danger of relying on a witness who gives the appearance of being impressive, but who may be inaccurate or mistaken. In this case I have had the benefit of the BWC and CCTV evidence against which I have assessed his evidence.
I accept that Constable Chard was an accurate and reliable witness. Unlike the two civilian witnesses he was not caught up in a melee, nor had he been drinking that night.
Consideration
The prosecution must prove all of the elements of this offence. Those elements can be broken down into three groups:
Conduct of the defendant
The focus of the hearing went to the conduct of the defendant, which encompasses the elements listed at paragraph 6 (a) – (f).
The evidence of Constable Chard as to his observations of this defendant throwing Mr Berry to the ground is consistent with the observation of Mr O’Neill who describes two men assaulting Mr Berry.
I accept the evidence of Constable Chard in relation to his observation of this defendant kicking Mr Berry while he was on the ground. That evidence is in no way contradicted by the witnesses Wilcox or O’Neil as both conceded that they did not have Mr Berry under continuous observation.
I find that the defendant intended to and did engage in violent conduct directed towards someone else.
A reasonable person’s fear
Whilst no contest was raised on behalf of the defendant in relation to the element at 6(i), the question of the impact on a reasonable person is answered by the statements of Makayla Brown and Olivia Davies which were tendered as part of Exhibit 1 and were not contested.
The CCTV footage from the various incidents in Garema Place that night indicate that a hypothetical reasonable person would have feared for their safety.
Two or more others
For the prosecution to prove that the defendant is guilty of the principal offence of Affray charged under section 35A (2), it needs to prove that two or more other people were present who were also engaging in conduct that was violence or threatened violence towards someone else. As such the prosecution must prove that there were three people involved in the violence in which this defendant was involved.
Whilst there are a number of violent episodes earlier in the night depicted in the CCTV footage, and some of these involve more than two people acting violently, this defendant is not engaged in that violence but is seen with his hands in his pockets at various points in the footage.
In relation to this accused’s act of violence, Mr O’Neill describes two people assaulting Mr Berry. Constable Chard only saw this defendant. The CCTV and the BWC footage does not point to any of the other men at the scene acting violently or threatening violence.
It cannot be inferred that others present were not simply observing, or (as in the case of Mr Wilcox and Mr O’Neill) just happened to be in the close vicinity as victims of the violent offending.
In find that the prosecution cannot prove the additional element of two or more participants in the violence in this case.
Orders
In relation to CC2022/5366, I find the defendant not guilty.
In relation to CC 2022/4416, I find the defendant guilty.
| I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Date: 3 July 2023 |
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