Lauren Stone v Trinity Cook
[2021] ACTMC 5
•22 April 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lauren Stone v Trinity Cook |
Citation: | [2021] ACTMC 5 |
Hearing Date(s): | 2 March 2021 |
DecisionDate: | 22 April 2021 |
Before: | Chief Magistrate Walker |
Decision: | 1. The charge of menacing driving is not proved and is dismissed. 2. The charge of damage property is not proved and is dismissed. 3. The charge of common assault is proved. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PARTICULAR OFFENCES – Driving Offences – Property Damage Offences – menacing driving – intention to menace – value of property damaged |
Legislation Cited: | Crimes Act1900 (ACT) Criminal Code 2002 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT) |
Cases Cited: | Grajewski v DPP(NSW) [2019] HCA 8; (2019) 264 CLR 470 Hanel v Shoemark [2011] ACTCA 16 Morphitis v Salmon [1990] Crim LR 48 R v Bailiff [2002] ACTSC 79 R v Whitely (1991) 93 Cr App R 25 |
Texts Cited: | Macquarie Dictionary (8th edition, 2020) |
Parties: | Lauren Ellen Stone (Informant) Trinity Cook (Defendant) |
Representation: | Solicitors B Atkinson of Director of Public Prosecution (ACT) (Crown) S McLaughlin of Legal Aid ACT (Defendant) |
File Numbers: | CC 12756 of 2019 CC 12758 of 2019 CC 8235 of 2020 |
CHIEF MAGISTRATE WALKER:
Background
The defendant, Mr Trinity Cook, is charged with one count of driving with intent to menace contrary to s8(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), one count of damaging property not exceeding $5 000 contrary to s116(3) of the Crimes Act 1900 (ACT) and one count of common assault contrary to s26 of the Crimes Act 1900 (ACT) on 28 November 2019. Mr Cook pleaded not guilty to these charges and the matter proceeded to hearing before me on 2 March 2021.
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; in doing so, 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. An inference may only be drawn if it is the only rational inference available. A defendant’s evidence is of no lesser weight simply by virtue of that person’s status as a defendant. If a defendant chooses not to give evidence in their own case, no adverse inference is to be drawn from this. If the prosecution fails to meet its high evidential burden, then the defendant must be acquitted of the charges.
The Evidence
Ms Donna Cameron
Mr Cook and the complainant, Ms Cameron, were unknown to each other before 28 November 2019. Ms Cameron was driving a white Mitsubishi Pajero (‘the Pajero’) and Mr Cook was driving a silver Nissan Pulsar (‘the Pulsar’) when they first came into contact. Ms Cameron said that the first contact occurred at the stop sign controlled intersection of Ainslie Avenue and what she called Eliminatta (sic Elimatta) Avenue in Reid. It was put to her by Mr Cook’s solicitor that she was mistaken and that the first contact took place at the intersection of Quick Street and Limestone Avenue in the same suburb. She denied this and there is no evidence to support this contrary proposition.
It is common ground that their vehicles collided at the first contact. The cause of that contact is contested. Ms Cameron said that she was stationary at the stop sign governing the intersection of Elimatta Street and Ainslie Avenue at about 11 am when the Pulsar ran into the back of her Pajero causing it to lurch but not move forward. Through her rear and side mirrors, she observed Mr Cook talking and gesturing aggressively inside his vehicle and was afraid to get out of her vehicle. She drove off, turning left on to Ainslie Avenue in order to avoid having to stop at another stop sign, as she would have had to do if she proceeded straight ahead at the intersection as she had originally intended. Mr Cook followed her in his Pulsar. Mr Cook contends through cross-examination that Ms Cameron drove away without providing her details, even though she was responsible for the accident, which was why he followed her.
Ms Cameron said that Mr Cook followed her at varying distances, the closest being only a metre behind, very briefly, until she stopped, second in line at the traffic lights in the right of two lanes turning from Limestone Avenue on to Chisholm Street.
A Google satellite photograph and a photograph of the scene in conjunction show that Limestone Avenue at this point is a four lane road with a wide grass median strip running down the middle; the intersection divides the median strip and is itself four lanes with a more narrow concrete median strip. The intersection is at least two vehicles deep and is two lanes wide on each side.
Whilst stationary within the intersection, Ms Cameron was initially unaware where Mr Cook was, traffic having come between them, until he came “screaming in on the other side of the road, so to my right”. She gave evidence he “came in very fast, and pulled to a halt, like a screeching halt, to be honest, up on to the median strip that was there and nosed into my bumper”.[1] Ms Cameron did not accept that he came in at a “gentle pace” as was put to her in cross-examination. There is no evidence to contradict Ms Cameron on this point.
[1] Transcript of proceedings 2 March 2021, 18 (‘Transcript’).
The Pulsar stopped at a 45-degree angle between the Pajero and the vehicle in front of it, which was driven by a Mr Lee. The Pulsar was estimated by Ms Cameron to be two metres in front of the Pajero at this point. The driving described by Ms Cameron, namely the brief tailgating and the screeching around to a parked position in front of the Pajero, is relied upon by the prosecution as constituting the menacing driving (CC 12758 of 2019).
Ms Cameron said that after the Pulsar came to a stop, Mr Cook jumped out of the vehicle and was yelling that she had wrecked his car. She did not recall Mr Cook speaking to Mr Lee first but she did recall Mr Cook saying “look what she’s done to my car”, consistent with Mr Lee’s recollection. She said that Mr Cook then approached the Pajero and punched the headlight but that his hand bounced off it. She said he then grabbed one of the windscreen wipers on her vehicle and started pulling it up so that it sat bent an angle of about 25 degrees. It no longer touched the windscreen and was ineffective as a wiper. A photograph taken soon after by the police corroborates its condition. The damage occasioned to the windscreen wiper is relied upon by the prosecution to establish the damage property charge (CC 12756 of 2019).
Ms Cameron stated that Mr Cook then punched the driver’s side window with a forward-facing fist, twice, at about her seated head height. Ms Cameron refuted that Mr Cook simply knocked politely on that window with a backhand motion, as was put to her in cross-examination. Photographs taken soon after by the police show a clear area on the otherwise dusty window consistent with some form of contact.
Ms Cameron stated that Mr Cook then tried the door handle to get into the Pajero but found it was locked. She did not accept that she was safe inside the locked vehicle; she was worried because she did not know if the window might break. She did accept that she felt safer in than out of her vehicle. Ms Cameron described feeling “pretty terrified”.[2] She pressed the horn of her vehicle to draw the attention of the vehicles around her. The prosecution rely upon this course of conduct as constituting the common assault (CC 8235 of 2020).
[2] Transcript, 18.
Following this second contact, Ms Cameron described reversing her vehicle and driving away along the median strip on Limestone Avenue. She then drove to the police station to report the incident. Ms Cameron did not recall seeing Mr Cook’s vehicle after she left the scene. She denied having deliberately reversed into the Pulsar at any stage.
Mr Eddy Lee
Mr Lee was the driver of the vehicle stopped in front of Ms Cameron at the traffic lights on Limestone Avenue turning right on to Chisholm Street. He gave evidence with the assistance of a Korean interpreter. He confirmed his position in front of Ms Cameron’s vehicle at the traffic lights. He confirmed that Mr Cook positioned his vehicle obliquely between Mr Lee and Ms Cameron’s vehicles, which themselves were, on his estimate, only about 1.5 metres apart. He said that Mr Cook approached him and asked him not to move, saying that the white car had hit Mr Cook’s and “ran away”.[3]
[3] Transcript, 35.
Mr Lee saw that the left front bumper of Mr Cook’s Pulsar was damaged. Following Ms Cameron’s departure from the scene, Mr Lee took a photograph which shows Mr Cook’s Pulsar straddled across a narrow concrete median strip and jutting into lanes in both directions.
Mr Lee described Mr Cook trying to have a conversation with Ms Cameron. He said he saw Mr Cook knock on Ms Cameron’s driver-side window two or three times. He observed that when Ms Cameron did not respond Mr Cook looked annoyed and angry. Ms Cameron pressed the horn and started slowly to reverse. Mr Cook then kicked the wheel and punched the window.
Mr Lee observed that Ms Cameron looked tense and that her eyes “didn’t look right”,[4] he thought she may have been intoxicated. Mr Cook asked Mr Lee to call the police when Ms Cameron left. Mr Cook also tried to call police. Mr Lee in cross-examination stated that Mr Cook punched Ms Cameron’s windscreen as she was reversing and that was when Mr Lee got out of his vehicle with a view to preventing things getting worse. He described that Mr Cook was initially polite then became aggressive when Ms Cameron did not engage with him.
[4] Transcript, 45.
Mr Lee was cross-examined as to a powerpoint presentation of notes he had made prior to attending the police station to make a statement, and the fact that it did not refer to Mr Cook punching anything. Mr Lee confirmed that his recollection was that Mr Cook punched the windscreen.
I am satisfied that Mr Lee made his best effort to give detailed and accurate evidence. Unfortunately, I am not satisfied that his evidence was entirely clear, even with the benefit of an interpreter assisting. However, his evidence clearly corroborates the positioning of Mr Cook’s vehicle, his angry demeanour during at least part of the incident and some physically aggressive contact with Ms Cameron’s vehicle whilst she was inside it.
Mr Trinity Cook
Mr Cook did not give evidence. The case put on his behalf, to the effect that his conduct was responsive to Ms Cameron colliding her vehicle into his and then driving away, is corroborated by the complaint he made to Mr Lee when he pulled in front of Ms Cameron’s vehicle on Limestone Avenue and the complaint he made to police in a 000 call he made after leaving the intersection.
During the 000 call, which was clearly made after the second contact at Limestone Avenue, Mr Cook complained of being hit by a lady at a set of lights. Noting the complaint made by Mr Cook to Mr Lee at Limestone Avenue, there had clearly been an earlier contact between Mr Cook and Ms Cameron. The only evidence as to this is Ms Cameron’s. She said this took place at a stop sign on Ainslie Avenue, not at a set of lights. There is no evidence of the Pajero and the Pulsar actually colliding at the Limestone Avenue intersection.
Mr Cook then told the 000 operative that he had Ms Cameron’s vehicle registration number. He was advised to go to the police station to report the incident. His response was that he was following her and that she was trying to crash into him again.
Mr Cook then continued histrionically questioning whether he should run a red light to escape Ms Cameron, who was apparently in front of him as he was following her. This was followed up with the claim that she had again collided with his Pulsar and taken off. Mr Cook was again advised by the 000 operative to stop following her but insisted that he had to keep following her to get to the police station.
Mr Cook’s complaint then escalated to an allegation that Ms Cameron hit a pedestrian with her vehicle. Mr Cook appeared to be speaking to someone else when he stated: “Just watch out for her if she comes back. She’ll run into ya” (sic). Later in the call, Mr Cook claimed that Ms Cameron reversed into his vehicle three times.
Finally, Mr Cook claimed to have two witnesses. Indeed, he had the phone numbers of witnesses to his second contact with Ms Cameron but none as to the alleged collision for which he claimed she was responsible.
Factual Findings
I found Ms Cameron’s evidence compelling. Her story was straightforward and plausible. She was balanced and moderate in giving it, yet clearly distressed by the incident. She made appropriate concessions, for example not being aware of Mr Cook’s position behind her for a period of time between the first and second instances of contact.
I am satisfied that Mr Lee, an entirely independent witness who patently took his social obligation to assist the authorities very seriously, gave his evidence to the best of his ability. There is some inconsistency between Mr Lee’s and Ms Cameron’s description of the incident at the Limestone Avenue intersection. However, I am satisfied that any discrepancy arises from three things: their different physical perspectives of the incident; their differing impressions of the incident based upon what they knew of what went on beforehand; and some lack of clarity in Mr Lee’s version of events.
This lack of clarity flowed from the limited exploration of his observations in evidence. For example, he was not questioned as to his observations of how Mr Cook approached the intersection in his vehicle, at what point he became aware of Mr Cook’s presence, or at what point he got out of his own vehicle. Further, a degree of confusion appears to have arisen as a result of the language barrier, for example Mr Lee described Mr Cook as kicking the Pajero window in his powerpoint presentation. This seems unlikely given the height of the window, yet his understanding of this concept was not explored at hearing.
As to Mr Lee’s observation that Ms Cameron’s eyes looked odd, I place no weight on this. It was not established that he has any experience or expertise in respect to the observable signs of intoxication. He saw her only through the Pajero’s windows. If there was anything odd about her eyes there may be other explanations, such as clouding with tears or tiredness. I also note that no such observations were made by the police officers who saw her soon after Mr Lee did. The issue does not undermine his credibility; it is simply equivocal.
Mr Lee’s evidence nonetheless significantly and reliably corroborates Ms Cameron’s complaint to the extent of Mr Cook following her, positioning his vehicle as Ms Cameron described and directing some aggression at the Pajero, at least.
I have no difficulty in rejecting Mr Cook’s version of events, insofar as there is evidence of it, as unreliable. It is implausible that after Ms Cameron left the scene of the second contact Mr Cook remained and spoke with Mr Lee, and then managed to follow Ms Cameron and catch up to her such that she was able, whilst making her way to the police station, to reverse into him twice. It is inconsistent with Mr Lee’s evidence as to her leaving the scene whilst Mr Cook stayed and spoke with him.
The alleged hit and run of the pedestrian is a matter as to which there is no evidence before the court, and yet something which one reasonably would have expected to be reported either by the pedestrian themselves or some other witness. It is also highly implausible that a person who claimed to have had his vehicle hit by another three times, and at least twice intentionally, could not find a way to avoid them in order to get to the police station safely.
Despite the claim that Ms Cameron had reversed into his vehicle three distinct times, photographs of the Pajero taken when Ms Cameron attended the police station soon after show no damage to it, front or back, beyond the windscreen wiper being pulled out of position. Photographs of the Pulsar taken by the police about the same time show damage at a single location on the front left bumper, consistent with the photograph taken by Mr Lee.
Mr Cook is clearly attempting to draw the picture of a maniac driver on the loose hitting cars and pedestrians willy nilly. His statements to Mr Lee and in the 000 call were histrionic and self-serving. Why he reacted in this way, whether out of genuine anger over actual or perceived conduct by Ms Cameron, or simply to cover the tracks for his own wrongdoing in colliding into the Pajero, is ultimately irrelevant. Neither would provide a lawful excuse for the conduct which followed. Importantly, they give me cause to find his evidence unreliable.
Where her evidence differs from that of Mr Cook’s, I accept the version given by Ms Cameron.
I am therefore satisfied that Mr Cook followed Ms Cameron from their first contact at a stop sign on Ainslie Avenue and that at one point he got very close to the rear of her vehicle. Other vehicles came between them in the traffic before Mr Cook travelled on to the wrong side of the road at the Limestone Avenue and Chisholm Street intersection, where he approached Ms Cameron’s vehicle at some speed, crossing a cement median strip in order to position himself closely in front of her vehicle. I am satisfied that he got out of the Pulsar yelling amongst other things that she had damaged his car and must not be allowed to leave; that he then approached her vehicle, punched a headlight, grabbed at a windscreen wiper and pulled it in to a position that rendered it inoperable, and then punched at her driver-side window at about her head height.
Legal Issues
On the facts as found, I must now determine whether Mr Cook’s actions constituted:
(a) menacing driving;
(b) property damage; and
(c) common assault.
Menacing Driving
Section 8 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) provides, relevantly:
(1) A person must not drive a motor vehicle on a road or road related area in a way that menaces someone else with the intention of menacing the other person.
….
(3) This section applies –
(a) whether the other person is menaced by a threat of personal injury or by a threat of damage to property; and
(b) whether or not the other person or that property is on a road or road related area.
(4) A person does not commit an offence against this section if the person could not, in the circumstances, reasonably avoid menacing the other person.
The prosecution submitted that Mr Cook’s driving behaviour, consisting of tailgating (or driving closely to the rear of another vehicle) and the manner in which he approached and positioned his vehicle in front of Ms Cameron’s Pajero at the Limestone Avenue intersection, threatened Ms Cameron’s property (being her vehicle) or her person.
Noting the absence of a statutory definition, the prosecution pointed to the Macquarie Dictionary which defines the word 'menace' as “something that threatens to cause evil, harm or injury”,[5] so essentially a threat.
[5] Macquarie Dictionary (8th ed, 2020).
The legislation requires that the threat be to person or property. The prosecution submitted Ms Cameron was menaced by threat of personal injury or damage to property because of the defendant's conduct and behaviour. The defendant's intention could be inferred from his conduct.
The defence submitted that it is the driving itself which must be menacing, not what happens afterwards nor what happens beforehand. They submitted the prosecution could not prove intention to menace as required by s8(1). It was not sufficient to prove that Ms Cameron felt menaced. Mr Cook’s driving between the initial impact and second event was such that he had every opportunity to come into physical contact with the Pajero but “in fact seems to have cleverly avoided it”, [6] which demonstrates a lack of intention to menace.
[6] Transcript, 62.
I note that the prosecution elected to charge under ss8(1), not ss8(2), which provides that a person must not drive a motor vehicle on a road or road related area in a way that menaces someone else if the person ought to have known that the other person might be menaced.
That Mr Cook was the driver of the vehicle on a road is established. The issues for the prosecution in this case were establishing that the driving conduct was in fact menacing and that Mr Cook intended it to be so. The requirement that the driving is menacing is to be determined objectively, although the complainant’s reaction to the conduct may form part of that assessment.
The tailgating complained of is equivocal. It was on Ms Cameron’s evidence very short-lived and no particular intent can be inferred.
As to the conduct at the Limestone Avenue intersection, Mr Cook drove on to the wrong side of the road, across a cement median strip, at some speed, and screeched to a halt in front of Ms Cameron’s stationary vehicle. One inference open on the evidence of him so approaching her and positioning his vehicle was that he intended that conduct to threaten harm to Ms Cameron’s person or vehicle. Another inference, however, is that he intended simply to catch up to her and to stop her from leaving so that he could address the earlier collision with her. Given that there is more than one inference reasonably available on the evidence, this element of intent is not proved beyond reasonable doubt.
Damage Property
Section 116(3) of the Crimes Act 1900 (ACT) provides, relevantly:
(3) A person commits an offence if:
(a) the person destroys or causes damage to property, other than by fire or explosive, and;
(b) the property belongs to:
…
(i) someone else … and;
(c) the person intends to destroy or cause damage, or is reckless about destroying or causing damage, to the property; and
(d) the damage to the property does not exceed $5 000.
The prosecution submitted that damage included loss of the ordinary use of the windscreen wiper. It was further submitted that the court could reasonably conclude that the value of the wiper was less than $5 000.
As well as denying the conduct alleged to have caused damage to the windscreen wiper, the defence submitted that the prosecution had failed to prove that it was the windscreen wiper as opposed to some related mechanism that was damaged. Further, the value had not been established.
As to the actual object damaged, this is a particular of the charge rather than an element of it. It may well have been open to the prosecution to amend this if necessary; it chose not to do so, relying instead on the loss of function of the wiper resulting from Mr Cook’s conduct as constituting damage.
Damage is not defined in the Crimes Act 1900 (ACT). Section 400 of the Criminal Code 2002 (ACT), in the context of property damage offences in that statute, defines damage to include, at (c), ‘the loss of a use or function of the property by interfering with the property’. However, this definition is a refinement of the common law approach to defining damage.
Damage is broadly defined at common law to incorporate both permanent and temporary harm.[7] It incorporates any impact upon the physical integrity of property which injures, harms or lessens its value,[8] or impact on the function of the property.[9] Manipulating the wiper so as to require repair before it could function to remove water from a windscreen amounts to damage, whether it be directly to the item or through its relationship with something to which it is attached, as in this case.
[7] Morphitis v Salmon [1990] Crim LR 48.
[8] Grajewski v DPP (NSW) [2019] HCA 8; (2019) 264 CLR 470.
[9] R v Whitely (1991) 93 Cr App R 25.
As to the value of the property damage, I am bound by the decision of Hanel v Shoemark [2011] ACTCA 16 in which their Honours found firstly that the $1,000 value then referred to in s116(3) “relates to the property damaged, not to the damage that has been caused” and secondly that proof of the value of the damaged property is an element of the offence which must be established beyond reasonable doubt.[10] In this case, there is no such proof in the absence of repair having been effected.
[10] Hanel v Shoemark [2011] ACTCA 16, 4 [10] (Penfold, Burns and Besanko JJ).
Regardless of the issues of particularisation of the object of the damage and whether or not the harm suffered meets the definition of damage, absent evidence of value, the charge is not made out.
Common Assault
The assault complained of in this case was Mr Cook’s attack on Ms Cameron’s vehicle while she was inside it, in circumstances that made her fear for her safety. Her evidence was that she felt safer inside the Pajero than outside and thus was afraid to get out, but also that she did not know if the window would withstand the attack on it.
There was no physical contact with her person, that is no battery. However, an assault may also be made out by words or actions which cause a person to apprehend immediate personal violence.
Crispin J in R v Bailiff [2002] ACTSC 79 stated at [21]:
An offence of assault is constituted by any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence. If force is actually applied, either unlawfully or without the consent of the recipient, then a battery is committed. In the absence of any such application of force, there must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence.
I am satisfied beyond reasonable doubt that Mr Cook’s punching of the driver’s side window of Ms Cameron’s vehicle whilst she was seated inside it was intended to, and did, cause her to apprehend immediate violence.
Having regard to my findings above, I dismiss the charges of menacing driving and damage property. I find the charge of common assault proved.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Magistrate Walker. Associate: S Corish Date: 22 April 2021 |
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