Director of Public Prosecutions v Higgins
[2023] ACTSC 314
•2 November 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Higgins |
Citation: | [2023] ACTSC 314 |
Hearing Date: | 31 October 2023 |
Decision Date: | 2 November 2023 |
Before: | Berman AJ |
Decision: | (1) The accused is guilty on count 4. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – assault occasioning actual bodily harm – joint commission – CCTV footage – s 45A of the Criminal Code 2002 (ACT) – whether the offence was committed in the course of carrying out the agreement – recklessness – whether the person is aware of a substantial risk that the circumstance will happen |
Legislation Cited: | Criminal Code 2002 (ACT), ss 20, 45A |
Cases Cited: | Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86 |
Parties: | Director of Public Prosecutions Jaiden Ashton Higgins ( Accused) |
Representation: | Counsel C Muthurajah ( DPP) T Jackson ( Accused) |
| Solicitors ACT Director of Public Prosecution Bevan & Co ( Accused) | |
File Number: | SCC 209 of 2023 |
BERMAN AJ:
Introduction
1․An indictment containing 4 counts was presented against the accused. He was arraigned on counts 1 and 2 to which he pleaded guilty. He was not arraigned on counts 3 and 4. The prosecution has since determined that there be no further proceedings on count 3 and the accused elected for trial by judge alone on count 4. He was then arraigned before me on that count.
2․Before the trial started, the accused produced an election signed by himself, and a certificate signed by his legal practitioner which stated that the practitioner had advised Mr Higgins in relation to his election and that the election was made freely. The election and certificate had been filed in court before I was allocated the trial and so was within time.
3․Accordingly, the question as to whether he is guilty or not on count 4 is one I will answer rather than a jury.
4․Very briefly, the two offences to which Mr Higgins has pleaded guilty to were offences of aggravated burglary and damage to property relating to a home invasion type offence he committed together with an unidentified male. After leaving the premises, they were confronted by a neighbour, Mr Huynh. The unknown male struck this neighbour with the sword he was carrying causing some injuries. Count 4 on the indictment, the count to which the accused has pleaded not guilty, is an allegation of an offence of assault occasioning actual bodily harm by joint commission. There is no dispute that the neighbour suffered actual bodily harm as a result of being struck by the unknown man, the only issue is whether the accused is criminally responsible for that action.
5․My judgment must include the principles of law which I have applied and take any relevant warnings, directions, or comments into account in considering my verdict. I will therefore begin this judgment with a statement of basic principles which apply to all trials, whether a jury trial or a trial by judge alone.
Onus and standard of proof
6․The most fundamental direction is that it is for the prosecution to prove the guilt of Mr Higgins if it can. The accused does not have to prove that he is innocent, nor does he have to prove that he is not guilty. The onus of proof is on the prosecution. Further, because what is alleged is a criminal offence, the prosecution must prove the accused’s guilt beyond reasonable doubt before I can return a verdict of guilty.
7․Mr Higgins started the trial enjoying a presumption of innocence. He continues to enjoy that presumption even now. The only way in which the presumption of innocence is removed from him is if I am satisfied beyond reasonable doubt that he is guilty. If I have a reasonable doubt about his guilt, I must return a verdict of not guilty.
Rely only on the evidence in court
8․I have decided my verdict by examining the evidence presented to me in court. That evidence was in very short compass consisting primarily of agreed facts and the playing of some CCTV footage.
Silence in court
9․There was no evidence given or called by the accused. I will say something about the relevance of that. It would be more accurate to say that I will say something about the irrelevance of the fact that the accused neither gave evidence nor called any evidence in his case. As I have said already the onus of proof is on the prosecution. It is not for the accused to prove that he is innocent. It is not for the accused to prove that he is not guilty. It is for the prosecution to prove his guilt if it can. Thus, the fact that the accused neither gave nor called evidence is not evidence against him. It cannot be used to make up any deficiencies there are in the prosecution case or to fill any gaps.
No sympathy
10․There are a number of other things I have ignored. They include emotions such as sympathy and prejudice. The decision I have reached is based on a cold-hearted unemotional analysis of the evidence presented in this trial. I have made no enquiry about any matter which has come up in the trial, relying solely on the evidence presented to me in court.
The evidence
11․As I have already mentioned, the evidence was presented to me very efficiently. The agreed statement of facts reveals that Mr Higgins lent money to a Mr Byrne. For the next six weeks the accused tried to get the money repaid but was unsuccessful. From 20 June 2022 to 27 June 2022 the accused made a number of telephone calls and sent a number of messages to Mr Byrne.
12․On 27 June 2022, Mr Higgins’ message to Mr Byrne was “don’t make this a problem”.
13․The next day Mr Higgins threatened Mr Byrne on Snapchat saying, “I’m going to come after you” and “you wait and see what’s going to happen”.
14․Mr Byrne had been living with a woman named Ms Dimastromatteo. But on the same day that the Snapchat threat was sent, Mr Byrne and Ms Dimastromatteo had an argument. This resulted in Mr Byrne going to stay somewhere else for the night. Thus, he was not present when Mr Higgins and an unknown man invaded Ms Dimastromatteo’s home in an effort to get Mr Higgins’ money repaid.
15․CCTV footage reveals a lot of what occurred that evening. The two offenders arrived on a moped. The accused was wearing a helmet while the unknown male had a hood over his head. They dismounted and walked together to Ms Dimastromatteo’s home. The unknown male was armed with a sword while the accused was armed with a knife, similar to a steak knife.
16․Ms Dimastromatteo was at home with her young daughter and two dogs. She was alerted to the presence of the offenders by banging at her front door. That noise was Mr Higgins and the unknown male attempting to force entry into her home. She heard a voice which she recognised to be that of the accused say words to the effect of “one more kick bro, and it should be all good”. Ms Dimastromatteo dialled 000, grabbed her daughter, and left her home through the back door, running to her car which was parked in her driveway. She and her daughter got into that car and locked the doors.
17․By this time, the two offenders had broken down the front door and both entered the residence.
18․Ms Dimastromatteo’s neighbour, Mr Huynh, the man who was ultimately the victim in count 4, left his home after hearing the noise made by Mr Higgins and the unknown man. Mr Huynh had a torch which he shone towards Ms Dimastromatteo’s home. At one stage his torch illuminated the accused and the unknown male running away from Ms Dimastromatteo’s home. He said things to the men such as “go away”. The men were saying words to each other to the effect of “we need to leave”.
19․What occurred next is visible on CCTV footage which was played to me in court. The footage shows the two men running away from Ms Dimastromatteo’s home, the accused in the lead. The unknown male changed course so that he approached the neighbour, striking him with the sword. The prosecution does not suggest that this blow caused actual bodily harm. The neighbour ran towards his front door. The unknown man approached the neighbour again before striking him a number of times with the sword. He was injured as he put his hand up to defend himself, the injuries amounting to actual bodily harm.
20․Mr Higgins does not dispute that the unknown male caused actual bodily harm to the neighbour. What he does dispute is whether he is criminally responsible for the actions of the unknown man.
The law
21․Very little of the evidence was in dispute. The question as to whether the accused is guilty or not ultimately comes down to a question of law.
22․The prosecution relies on s 45A of the Criminal Code 2002 (ACT) which, relevantly, is in the following terms:
45A Joint commission
(1)A person is taken to have committed an offence if—
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b)either—
(i) an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2)…
(3)For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
23․The argument before me involved a consideration of whether the prosecution proved beyond reasonable doubt:
1.That the unknown man had committed the offence of assault occasioning actual bodily harm “in the course of carrying out” an agreement to commit an offence; and
2.That Mr Higgins was reckless about the commission of the offence of assault occasioning actual bodily harm that the unknown man committed in the course of carrying out the agreement.
24․To complete the statutory provisions which need to be considered, reference should also be made to the definition of “recklessness” in s 20(2) of the Criminal Code which provides that:
20 Recklessness
(1)…
(2)A person is reckless in relation to a circumstance if—
(a)the person is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is a question of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
25․It would not be enough for the prosecution to prove that the relevant risk was obvious or well known. What is required is proof beyond reasonable doubt of this accused’s conscious awareness of the risk: see Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86 at [26] cited in R v Roux [2015] ACTSC 307 at [131].
The submissions made to me
26․The prosecution says that I would be satisfied beyond reasonable doubt of the accused’s guilt through this process of reasoning:
1.The accused and the unknown man entered into an agreement to commit an offence of burglary expecting that there will be a person present in the premises;
2.As they were leaving the premises the unknown man committed the offence of assault occasioning actual bodily harm;
3.This offence was committed “in the course of carrying out the agreement” to commit the offence of burglary;
4.Mr Higgins was consciously aware of a substantial risk that the unknown male would commit the offence of assault occasioning actual bodily harm; and
5.It was unjustifiable of him to take the risk in the circumstances known to him.
27․On the other hand, Mr Jackson, who appeared for Mr Higgins, submitted that I could not be satisfied that the offence of assault occasioning actual bodily harm was committed in the course of carrying out the agreement, nor could I be satisfied that Mr Higgins was aware of the substantial risk that the unknown male would commit such an offence in the course of carrying out the agreement to commit the offence of burglary. Mr Jackson thus argued that the prosecution had not proved the 3rd and 4th matters referred to above.
Was the offence on Mr Huynh committed “in the course of carrying out the agreement” to commit the offence of burglary?
28․Mr Jackson submitted that the unknown man and the accused agreed to commit an offence of burglary expecting that someone would be home. Once they entered the premises, they discovered that there was no one home at all and so they left. It is Mr Jackson’s argument that that was the limit of the agreement and so what occurred after they left the home was not anything which occurred “in the course of carrying out the agreement”.
29․In my view that involves an inappropriate limitation to what the two offenders tacitly agreed to do. I am satisfied beyond reasonable doubt that it was part of their tacit agreement to not get caught. When they arrived at the premises they were disguised, one wearing a helmet and the other with the hood of his jumper pulled up. They not only agreed to commit the offence, but they agreed to go together to the place where the offence was committed, and to leave afterwards.
30․Of course, such an agreement does not have to be in writing, or even expressed in words: see s45A(5)(a) of the Criminal Code. Many agreements in everyday life are entered into without a single word being spoken.
31․A person may approach a newspaper seller in the street, pick up a copy of the Canberra Times, hand over three dollars in coins and then leave without anyone saying anything. Nevertheless, the seller has agreed to sell, and the purchaser has agreed to buy the newspaper.
32․So even if the accused and the unknown male never exchanged a single word about the scope and extent of their agreement, I am satisfied beyond reasonable doubt that it was within their tacit agreement that after having committed the burglary they would leave without being caught.
33․What s 45A(1)(b)(ii) of the Criminal Code refers to is important. It speaks about an offence which is “committed in the course of carrying out the agreement” (emphasis added). It is thus the scope of the agreement which is important, and agreement to commit offences can encompass agreements to do things both before and after the offence itself is committed.
34․Section 45A(1)(b)(ii) does not require consideration of whether an offence is committed in the course of carrying out the agreed offence. Whilst it is at least arguable that this accused would be caught by a legislative provision in those terms, the fact that the legislation speaks of things done in the course of carrying out “the agreement” rather than things done in the course of committing “the agreed offence”, is a clear indication that the section should be interpreted to cover things done both before and after the commission of the offence itself if these things were the subject of agreement.
35․Section 45A was introduced into the Criminal Code by the Crimes (Serious Organised Crime) Amendment Act 2010 (ACT). The Revised Explanatory Statement accompanying the Crimes (Serious Organised Crime) Amendment Bill 2010, makes it clear that it was intended that the section introduce “into the Code the common-law principle of ‘joint criminal enterprise’”, because of a gap in the Code “where there is an agreement to commit an offence, and the offence is committed under that agreement”.
36․There is one significant difference between the common-law principle of extended common purpose and s 45A which concerns the level of foresight which an alleged offender must have to be criminally liable for the actions of another. Under the common law principle to be found in McAuliffe v The Queen (1995) 183 CLR 108, confirmed in Miller v The Queen (2016) 259 CLR 380, foresight that an offence “might” be committed “as a possible incident of the originally planned particular venture”, would be enough to establish criminal liability.
37․Section 45A replaced the “possible” foreseeability test with the test of recklessness in s 20 of the Criminal Code. The Revised Explanatory Statement describes this as a slight modification of the common-law principle of extended common purpose.
38․It is appropriate therefore to have regard to the common-law when examining the terms of s 45A, in particular what is meant by “an offence” in s 45(3).
39․In my view, it is appropriate to describe the use of violence on a neighbour who came out to investigate what was going on “as no more than an unexpected incident in carrying out the common design”: see The Queen v Markby (1978) 140 CLR 108 at 112.
Was Mr Higgins aware of a substantial risk that the unknown male would commit the offence of assault occasioning actual bodily harm?
40․Mr Jackson’s primary argument was that it could not be proved beyond reasonable doubt that Mr Higgins was aware of a substantial risk that the unknown man would commit the offence of assault occasioning actual bodily harm.
41․The prosecution points to a number of circumstances which were known to the accused in support of its submission that Mr Higgins was consciously aware of that substantial risk.
42․The whole point of the two men going to Ms Dimastromatteo’s premises was to get Mr Higgins’ loan repaid. That was only going to be done through the use of threats or force towards Mr Byrne. They were both armed with weapons, the unknown man with a sword. In such circumstances it is inconceivable that Mr Higgins would not be aware of the substantial risk that someone would suffer actual bodily harm at the hands of the unknown man. The prosecution argues that it does not matter that the person who actually suffered the actual bodily harm was not someone inside the premises but a neighbour who had gone to investigate what was happening.
43․Mr Jackson points out that the CCTV footage shows the unknown man deviating from his course to attack the neighbour while his client, Mr Higgins, continues running from the scene. Mr Jackson argues that his client was not aware of the risk that while escaping from the scene, the unknown male would attack Mr Huynh, a person who was not in any way impeding their escape. Mr Jackson categorised the actions of the unknown person as “a frolic of his own”.
44․However, having decided that the offence against Mr Huynh was committed “in the course of carrying out the agreement” it does not matter that the offence was committed against him in particular rather than someone in the premises. When s45A(3) speaks about “an offence” committed in the course of carrying out an agreement, that is not limited to, in this case, the specific offence of assault occasioning actual bodily harm committed against a specific victim, inside the premises.
45․In any case, I am satisfied beyond reasonable doubt that in the circumstances I have described, Mr Higgins was aware of a substantial risk that the unknown man would assault someone who observed them committing a serious crime and who had just shone a torch at them. Very few burglars would be unconcerned at being observed as they run from the premises they have just broken into. It must have been within the accused’s conscious contemplation that it may be necessary to, for example, prevent someone identifying them, chasing them or calling the police immediately and the accused must have been aware of the substantial risk of it being necessary in such circumstances to assault an innocent bystander.
46․I am satisfied beyond reasonable doubt that the accused must have been aware that there was a substantial risk that in getting away from the premises the unknown male would inflict actual bodily harm on someone in order to make good their escape. He may not have contemplated that it would be the neighbour, Mr Huynh, who would be the victim of such an assault but that does not matter. The precise identity of the victim of the offence committed by the unknown male is not relevant nor is the fact that he was the next-door neighbour.
47․It must have been within the contemplation of the accused, and I am satisfied beyond reasonable doubt that it was, that in the course of escaping from the premises after having forced their way inside, it would be necessary for them to confront someone who represented a risk to their successful escape and that risk would be dealt with by an assault of the nature carried out by the unknown male. I am satisfied beyond reasonable doubt that the accused, having contemplated such an eventuality, was aware of a substantial risk of that occurring.
Was it unjustifiable to take that risk?
48․Even though it was not a matter raised by Mr Jackson, for the sake of completeness, I should note that recklessness requires not only awareness of the substantial risk that circumstances will exist, but also that “having regard to the circumstances known to the person, it is unjustifiable to take the risk”.
49․Given that the risk arose because of the accused’s criminal conduct, it was in no way justifiable for the accused to take the risk that the unknown male would commit the offence of assault occasioning actual bodily harm.
The other elements of assault occasioning actual bodily harm
50․There was no dispute that if I was satisfied beyond reasonable doubt that the accused was criminally liable for the actions of the unknown male as a result of s 45A of the Criminal Code, I would also be satisfied beyond reasonable doubt that the unknown male:
1.Applied force to Mr Huynh without his consent;
2.That force was applied either intentionally or recklessly;
3.Mr Huynh suffered actual bodily harm; and
4.It was the application of that force which caused the actual bodily harm.
Orders
51․The result is that I am satisfied beyond reasonable doubt that the prosecution has established all the elements of the offence in count 4 and as a result I find the accused guilty on that count.
52․I return the following verdict:
(1)The accused is guilty on count 4.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: |
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