R v Afele, Saifoloi No.3

[2007] NSWDC 347

CITATION:	R v Afele, Saifoloi No.3 [2007] NSWDC 347
JUDGMENT DATE:	23 November 2007
EX TEMPORE JUDGMENT DATE:	6 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Not guilty: aggravated robbery (mal. wound); Altervate Verdict - Not guilty: robbery; Alternate Verdict: On limited evidence found committed steal from person.
CATCHWORDS:	Criminal Law - Special Hearing - Aggravated Robbery (Mal. wound) - alternate verdicts to aggravated robbery at common law - relationship between charge before court and charge in respect of which finding of unfitness made.
LEGISLATION CITED:	s. 19 (1) (a) Mental Health (Criminal Procedure) Act 1990. s.95 Crimes Act 1900
CASES CITED:	R v Subramanian (2004) 211 ALR 1 R v Cameron [1983] 2 NSWLR 66 R v King [2004] NSWCCA 20
PARTIES:	Regina Saifoloi Afele
FILE NUMBER(S):	06/21/1080
COUNSEL:	P Johnson for Accused
SOLICITORS:	Mr R. Howle, Office of DPP, Parramatta for Crown

JUDGMENT

HIS HONOUR:

Preliminary Matters

1. On 1 November 2006 Judge McLaughlin of this Court determined that an inquiry should be conducted as to the accused’s unfitness to be tried pursuant to s 8 of the Mental Health (Criminal Procedure) Act 1990 . As best I can tell from the Court’s file that determination and the subsequent fitness hearing took place in respect of an indictment dated 22 June 2006.

2. The offence charge was an aggravated robbery pursuant to s 95 of the Crimes Act. The result of that inquiry was a finding by his Honour that the accused was unfit to be tried for the offence. On 16 October 2007, the Mental Health Review Tribunal advised his Honour of its opinion under s 82(3A) Mental Health Act 1990 that Mr Afele:

“Has not become fit to be tried for the offender included within the indictment in relation to which he has been found unfit to be tried and is of opinion that on the balance of probabilities Mr Afele will not become fit during the period of 12 months after the finding of unfitness by the Court.”

This notification of the Tribunal's determination was received by the registry on 23 October 2007.

3. An earlier advice to the same effect was received from the Mental Health Review Tribunal on 7 March 2007. In respect of this advice, on 26 March 2007 the Court’s criminal registry advised the Director of Public Prosecution by forwarding to the Office of the Public Prosecutions at Penrith, a copy of the Mental Health Review Tribunal’s determinations and the reasons for it. The Director of Public Prosecution advised on 5 April 2007 that he intended to proceed with the “abovementioned charges (sic) against Mr Afele”. The “abovementioned charges” was described aggravated robbery (x 1). Thus it would appear in respect of the Mental Health Review Tribunal’s notice of a determination of 5 March 2007, the requirements of s 19(1)(a) of the MentalHealth (Criminal Procedure) Act has been satisfied.

4. My searches of the Court file would indicate that 16 October 2007 notification of determination of the Mental Health Review Tribunal was not forwarded to the Director. Nor was any written advice obtained from the Director as to whether further proceedings were to be taken by him in respect of the offence based on that later advice. I note however, from the Court’s file that the matter was listed before Judge English on 4 May 2007 and stood over for a special hearing to 22 October 2007. On that date it came before Judge Hughes, who stood it over to Tuesday 23 October before himself. On 23 October 2007 it was stood over for the special hearing to 12 November 2007. The trial date of 12 November was confirmed by Armitage DCJ on 1 November 2007. On 12 November 2007 the matter came before me.

5. I am concerned to record that I have considered whether the absence of any compliance with s 19(1)(a) of the Mental Health (Criminal Procedure) Act by the registry in respect of 16 October notification by the Tribunal, impacts in any adverse way with a continuation of this special hearing to determination. I am satisfied it does not. The special hearing I conducted was one scheduled as a consequence of compliance with s 19(1)(a) of the Mental Health (CriminalProcedure) Act . In respect of the hearing conducted before me, advice was received from the Director that further proceedings would be conducted. I should also record the view I formed seemed so obvious that I did not re-list the matter to seek counsel’s assistance, I have simply recorded it here as part of the record.

6. When arraigned at the special hearing the accused was arraigned on an indictment dated 22 October 2007. This indictment is signed by a different and I assumed authorised prosecutor. While the terms of the indictment differ slightly from the initial indictment, the offence charged is still a s 95 aggravated robbery. Again I am of the view it is appropriate for the matter to proceed. Clearly, it is the same offence charged in the earlier indictment to which the initial Mental Health Review advice was concerned.

7. It follows that I have satisfied myself that the charge before the Court, namely on 16 December 2005 at St Marys he robbed Chiro Zadourian of his property namely a wallet containing a sum of cash, in circumstances of aggravation, namely at the time of the robbery he maliciously inflicted actual bodily harm upon Chiro Zadourian , is a charge upon which he has been found unfit to be tried.

A charge of aggravated robbery
8. I remind myself that a special hearing is for the purpose of ensuring, despite the unfitness of the accused, that the is acquitted unless it can be proved beyond reasonable doubt on a limited evidence available that, he has committed the offence charged or a statutory alternative to that offence, s 19(2) of the Mental Health (Criminal Procedure) Act . This special hearing has been and is to be conducted hereafter as near as possible to a criminal trial. I record that at the hearing Mr Afele was represented by Mr P Johnson of counsel; the Crown was represented by trial advocate Mr Howle. When arraigned at the outset of the special hearing a plea of not guilty was entered on his account by me. That was done so that the accused hopefully would understand he was taken as pleading not guilty in respect of the charge. I record that I was aware the accused was unfit to be tried in accordance with normal procedures, the meaning of his being unfit, the purpose of the special hearing, and the range of verdicts available.

9. In theory four verdicts are available. However, on the factual matrix of this case only three are available: not guilty of the charge or; on the limited evidence available the accused committed the offence charged; or on the limited evidence available the accused person committed an offence available as an alternative to the offence charged, see s 22(1) Mental Health (Criminal Procedure) Act . I record that from my experience, formerly as an advocate and now as a Judge, I am aware of the legal and practical consequences of each available verdict, see R v Subramanian (2004) 211 ALR 1.

10. This hearing was conducted before me sitting as a Judge alone, see s 21A Mental Health (Criminal Procedure) Act . As presiding Judge I am tasked with finding facts ultimately leading to a determination of verdict or verdicts as the case may be. To the facts as I find them to be I must apply the relevant principles of law; the principles of law upon which I would normally direct a jury. The appropriate starting point is to recognise the not guilty plea as entered on behalf of the accused. He is to be considered as not guilty unless and until, if it be the case, the Crown proves his commission of the offence, or an alternative offence on the limited evidence available. That is to say the onus is upon the Crown to prove on the limited evidence the commission of an offence by the accused. The standard of proof required is proof beyond reasonable doubt. I remind myself suspicion is no substitute for proof beyond a reasonable doubt.

11. I remind myself the indictment charge has the following two elements: on 16 December at St Marys the accused robbed Chiro Zadourian of his property namely a wallet; secondly, that at the time of the robbery he maliciously inflicted actual bodily harm on Chiro Zadourian. Each of these two elements must be proved beyond a reasonable doubt. To constitute the crime of robbery three elements are necessary, a) an intent to steal, b) some degree of threat or force putting the person in fear, and c) a taking from the person. The stealing need not be from the person of the victim provided that the goods are taken from the immediate control of the victim and in his presence.

12. All elements of larceny must be proved including the intention to permanently deprive. To constitute robbery the threat of violence must coincide with the theft of the property. I remind myself that malicious for the purposes of this trial, means the accused’s acts were deliberate, unlawful and intended acts. The Crown does not have to prove the accused intended any bodily harm, merely that his acts were malicious and that the consequence of those acts was the bodily harm.

Alternate Verdicts
13. There is a common law power to return a verdict of guilty of any offence proved as a necessary step towards establishing the offence charge in the indictment, R v Cameron [1983] 2 NSWLR 66. That common law power is equally available in returning a verdict of the commission of any offence proved as a necessary step in proving the commission of an indicted offence on limited evidence. The Crown in his opening indicated, in the event I was not satisfied beyond reasonable doubt in respect of an offence, he would be seeking two alternative verdicts, one of steal from the person, and secondly assault occasion actual bodily harm. That matter was left to be resolved in final addresses.

14. What is being considered is the available alternate verdicts to an aggravated robbery charge. In the event the Crown is unable to prove the aggravation of the robbery, that is if the Crown is unable to prove that at the time of the robbery there was an occasioning of actual bodily harm, the first available alternative charge is a charge of robbery simplicita. Failure to prove the terms of the aggravation “at the time of” disqualify the occasioning of actual bodily harm from further consideration. The tribunal of fact is left only with the alternate charge of robbery as a first alternative charge. In the event the robbery itself cannot be proved, say because there is no or insufficient evidence of threat of violence, then the only available charge left is the steal from the person, R v King [2004] NSWCCA 20.
Approaches to making findings of fact

Directions of Law
15. Findings of fact are for me to make. I remind myself in making findings of fact that I may accept all, part or none of what a witness says. There are some criteria of value in assessing a witness’ testimony. They include observing the demeanour of the witnesses, the attitude of the witness, the way he or she answered questions, whether the witness was frank or attempting some avoidance or obfuscation. Inconsistency in evidence, whether internal within the testimony of the witness or external, that is by comparison with evidence of other witnesses, may be indicative of unreliability. Other witnesses on the same topic may be indicative of unreliability. Of course there may be other explanations for inconsistency such as a failure to understand a question or articulate the intended answer accurately. Where there is supporting evidence one may more readily accept the witness. Where the evidence is uncontested by cross-examination I may more readily rely upon it. However before I do so in a special hearing, I would need to remind myself the absence of cross examination may be caused by the very fact that the accused is unfit to be tried and may be unable to instruct his counsel.

16. In approaching this case I must remember my oath to judge without fear or favour, affection or ill will. That means in this case I must be impartial. I remind myself to confine my findings to the oral evidence both sworn and unsworn, exhibits and conclusions of fact open on the received evidence. I remind myself that such conclusions of fact that I would draw from the direct evidence must be justifiable conclusions. I must avoid speculation. I remind myself to draw adverse conclusions of fact against the accused only in circumstances where the conclusion of fact I contemplate drawing is the only rational conclusion open on the evidence.

17. Where more than one conclusion of fact is available, to draw one or other would be speculating. Nor can I draw a conclusion of fact where there is no evidential foundation for it at all.

18. The accused gave evidence, his evidence was unsworn evidence. His evidence was tested by cross-examination. I am satisfied the accused did not comprehend an
obligation to tell the truth nor was he aware of the potential for penalty for perjury. His capacity to understand different types of questions was limited. Indeed, simple questions asked by me to establish his level of understanding of truth and lying were answered incorrectly, it took three attempts before I came to a view he was competent to give evidence, albeit unsworn evidence. He did agree to tell the truth, that it was important to tell the truth and that he would not tell lies. As a precondition to considering his evidence and the weight I shall give to it, I record my consciousness of his limited capacity together with his agreement to tell the truth.

19. The accused participated in a record of interview. Neither the accused’s participation in the record of interview nor his giving of evidence shifts the burden of proof. The accused has not raised his good character, from my knowledge and experience I am able to infer he may well have reasons relating adversely to his character not to do so. I must put to one side any bias or reasoning that relies upon a presumption of bad character as I assess the evidence.

Review of the Evidence
20. Chiro Zadourian is 68 years old, he was born in Iran. His temper is easily and unpredictably excited. In such moments he can be disinhibited. He generally tried to tell the truth as he saw it but had little patience for counsel’s repetitive questions in their quest for precision. He had attended the St Marys pub situated in Queen Street St Marys, the pub is strategically located some 30 to 50 metres from the St Marys railway station. Zadourian’s evidence placed him at the pub at about 10.30 pm. He ordered a schooner of Resch’s and a pure alcohol chaser. One could not be certain whether the chaser was a double tequila, a whisky or a vodka. On any view it was a powerful dose. His initial drink was followed by another and likely a third and perhaps a fourth. He played the pub’s poker machines with some success. He estimates he won money, he was unable to specify with any certainty how much. It is likely to have been between $100 and $300. He was generous with his money.

21. The accused was also at the pub, he bought the accused at least one and probably more than one drink. The accused told police he drank four bourbons and coke. The accused spent some time with him while he played poker machines, it is probable some of Zadourian’s winnings were returned to the machines. I am satisfied the accused was aware Zadourian had had some success on the poker machines. It is unlikely he knew the extent of Zadourian’s winning but thought it was over $200.

22. Zadourian possessed a wallet. The wallet had numerous cards and papers of importance to Zadourian. It also had some portion of the money Zadourian had had upon him that night. Zadourian was not given to being organised. He did not keep all of his money in one place; loose change, of course, was not kept in his wallet but most likely in one of his trousers pockets. Notes were either kept in pockets or his wallet. There was no system to it. He just stored them on his person as the moment took him.

23. The accused had arrived at the pub with little or no money. He ingratiated himself with others including Zadourian and was able to obtain beers throughout the tail end of the night and it would seem, money by crying poor. Zadourian gives an account of being told by the accused he had no money to go home. The accused asked for money and was given $50. The accused gives an account of being asked by two New Zealanders, if he needed money to get home and received $20 from them. Both stories, if based in truth, are likely to be fuzzed alcoholic memories. But a scenario of the accused playing the patrons for money is likely to be accurate. Neither the accused nor Zadourian are able to pinpoint with accuracy the pub’s closing time, although the accused told police it was “twelve maybe”.

24. Given independent witnesses observed the incidents this trial is concerned with, sometime after 12 midnight, it is likely closing time was midnight. Zadourian had made an arrangement to link up for a lift home with one of the security guards after the pub closed. The security guard told him to wait for his wife who would be arriving in a four-wheel drive. Zadourian puts the meeting spot in the car park behind the pub. As events turned out there was a four-wheel drive vehicle driven by a woman that arrived at the front of the pub. In his state of intoxication, it is likely Zadourian was confused. On any view he missed his lift home and determined to catch a taxi.

25. The accused and Zadourian came together in some circumstance outside the pub after closing. Both men were well affected by alcohol. The only historians to this period of the night are the two, neither is reliable.

26. I am satisfied Zadourian was looking for or had been looking for his lift. Mr Zadourian presented in the witness box as impatient. It is likely he was impatient on the night. He came to a view he had missed the lift. His failure to secure the lift is probably because he failed to wait at the appointed place long enough. His contact with the pub security was still working in the pub for some time after closing. Whether Zadourian waited at the rear of the pub and came to the front, or went directly to the front of the pub, is really a matter of no great moment.

27. Some time approaching 12.30am he and the accused made their way to a taxi rank across the road from the pub. Whether they travelled to the cab rank together or separately, I am unable to determine. Zadourian’s account is that he made his way separately and was jointed by the accused. The accused said to him, “how are you my brother”, Zadourian replied, “what's happening, why”. The accused said, “I have no money to go home”, Zadourian continues, “he asked for some money, I gave him $50 to go home”. That money was taken by Zadourian from his wallet. Zadourian’s evidence was there was money remaining in the wallet, at least another $50 he thought, after he had parted with the money he gave the accused.

28. The wallet was returned to his back pocket. He denied giving the wallet to the accused. Zadourian was told by the accused, “wait, wait here, I'll bring something for you, you are a good man I will help you”. Zadourian continues, “then I don't know what happened, he bashed me up, he grabbed my neck a bottle or something in his hand and went bang on my head, hit me on the head, I was unconscious and I woke up in hospital”. He now has no memory of speaking to police, ambulance or others at the scene.

29. In cross-examination Zadourian conceded he gave the accused $50. The accused said he was going to give him some marijuana. Although arrested on 16 December 2007, police determined the accused was too intoxicated to be interviewed at that time. He was released without being charged. The accused was interviewed three months after the incident.

30. The accused told police he believes Zadourian may have been Fijian, the man was drunk, he punched the accused, the accused punched him back. Then the accused gave him his wallet to hold because he was drunk. All this occurred at St Marys where the taxis park. Someone that works there on the other side called out, “are you all right” and the man, meaning the old man, kept falling. Initially the man had tried to tackle him but the accused did not fall. When he tried to tackle the accused the accused stepped on his face and on his mouth. When questioned further the accused said, “because he was trying to tackle me and I didn’t fall so I tackled him and he fell”. When asked whether the man had said anything before he punched the accused, the accused replied, “I was just turning to the other side and then I received this punch on the side - on my side - my face”.

31. Police sought to pinpoint the time at which the wallet changed hands, the accused account was, “at the time while we were walking towards the taxi rank, while we wait where we wait for the taxi, the man said to hold the wallet because there is a hole in his pocket”. The accused was holding the wallet and then he, the man said to get his wallet back (Question and answer 159). When the police arrived he threw the wallet on the ground. When police searched his pockets they found nothing.

The Accused's Evidence
32. The accused’s evidence was that when leaving the pub he was accompanied by two New Zealanders he had earlier been drinking with. They asked him did he need any money. They gave him $20. Those men were just about to leave in a taxi when Zadourian pulled out $50 and told him he wanted to buy some marijuana. Told him, the accused. He said he did not know where to get marijuana and returned the $50. Zadourian had said to the accused, “keep it”. The accused walked with Zadourian to the taxi stand, both men were drunk. Zadourian was, “hanging on my back, climbing onto my back”. The last train had left St Marys. When they were at the rank there was a taxi there. The accused entered the taxi followed to that taxi by Zadourian, although Zadourian did not enter the cab. Zadourian invited the accused to his home for a drink. The accused declined. Zadourian persisted. The accused thought Zadourian really wanted him to go to the old man’s home, he alighted from the cab and the cab went.

33. They remained at the cab rank, the accused was looking away from Zadourian towards the railway station, when the next thing he knew the old man was hitting him with something. It was a dildo that the accused had earlier seen the old man with. The accused responded immediately by hitting Zadourian with his fist in the area of his jaw, below the left ear. Zadourian fell, regained his feet; the accused was very angry so struck him again. Zadourian fell a second time.

34. This time he was not moving. The accused kicked Zadourian three times. Zadourian was, by this time, unconscious. The accused touched his back pocket, there was a wallet there. The accused took the wallet from the pocket he saw no money in it and left the wallet beside the man. He was able to say there was no money in it because it was open. He decided to take the wallet when the man was not moving. Asked why he took the wallet, he answered, “was drugged”. Asked the same question in cross-examination he said he was drunk.

35. Someone called out, “are you all right”, the accused said, “it's okay he’s my brother”. Shortly after, the police arrived. At this time the accused was sitting on a log. The accused told his counsel when denying in the police interview he had taken the wallet, he had done so because he was scared of the police. The accused was cross-examined, he agreed he had not told the police about the dildo, that was also because he was scared of police. He conceded the police searched his pocket, finding the wallet there. Even though it was in his pocket he had no intention of keeping it.

The Independent Witnesses
37. Near the railway station is a Coles Supermarket. It has extended trading hours, it was open at 12.30am. Two workers, Brett Collision, and Nadel Canli, were having cigarette break. Canli was also finishing her shift. About 12.30am they used the staff door giving access to a car park / loading dock area. From a position in the car park that seems relatively close to the loading dock one gains an [un]interrupted elevated view of the taxi rank. Collision made his way to this point followed by Canli. As he looked down towards the station and taxi rank area, he saw an islander man hit another man, knocking that other man to the ground.

38. There can be no doubt the islander man is the accused who is Samoan, while the other man is Zadourian. Collision described the islander as being three times the size of the other man, an aspect that was not challenged. He had observed the two men standing there for a couple of seconds before he saw the accused king hit Zadourian. During this time Zadourian had done nothing. He appeared to be standing with the other waiting for a cab. The blow administered was to the back left side of the head. The smaller man fell to the ground, the accused walked to him and kicked him three or four times in the region of the head. Collision grabbed his phone and called the police. He remained in phone contact with the police until they arrived. After he made contact with the police, he saw the accused twice stomp on Zadourian’s head. The accused appeared to drag his victim a short distance and then went through his pockets as though robbing him. The accused was leaning down, grabbing at Zadourian. A male walked by heading to the car park. Words were exchanged but Collision was too far away to hear what was said. Once the male passed, there was another kick administered by the accused.

39. There was a moment when the victim revived, reached up, only to be hit by the accused a couple of times. Collision yelled out, “is everything all right”, the accused responded, “he’s all right he’s my brother”. Collision saw a couple of bikers nearby. They approached a point on the opposite side of the road, where there was a park bench, they sat down on it. The accused moved away from Zadourian on the ground and sat on a wooden pole that with others forms a barrier to the car park. The police arrived shortly thereafter. Collision hung up, he saw police talking to the accused, a police officer rang Collision again in asking in which direction the male had left, Collision replied, “youse are actually talking to him”.
40. In cross-examination Collision revealed that he’d been watching the episode for five minutes by the time police arrived. The accused was moving slowly. Significantly he told his cross examiner there was a short duration, perhaps maybe five seconds at most, between the stomp and the grabbing of Zadourian’s clothing.

41. Canli’s account was generally consistent with Collision’s; her attention was drawn to the incident when Collision called out to her, “did you see that guy king hit the other guy”. In cross examination she said, “I saw him punching him about three times in the head and then kicking him around three times in the head and face region as well, and then after that hit I think he kind of stepped back a bit, because I said it didn’t happen all one after the other, and then it was about a minute, two minutes later and then he bent down and was patting him down”.

42. Canli is not as accurate as Collision, particularly in terms of time but I have no reason to doubt she saw a pause, which she has described. When police arrived Zadourian was at best, semi-conscious. He was still prostate on the ground, the dildo lying next to him.

Resolution
43. I am satisfied the accused knew Zadourian had a wallet and money on him when the two men were at the taxi stand. On any version the evidence establishes the accused administered a beating to Zadourian within a very short period of time after arriving at the taxi rank. Zadourian says he was hit with something, the accused claims he was hit with something and immediately responded. That claim is inconsistent, that is the accused’s claim, with the claim he made to police of being punched by Zadourian and responding immediately.

44. Collision says the two men were standing at the rank when he first saw them and the accused king hit Zadourian but did not see anything in his hand when that happened. I am satisfied beyond doubt, the first blow was struck by the accused. I reject the accused’s claim of being hit with the dildo, it is likely the dildo became dislodged from Zadourian assuming he had it, which he denies, when the accused was searching through his clothing.

45. Both independent eyewitnesses accept there was a pause between the assault and the commencement of the searching of Zadourian’s person. The accused is obese, he presents with a figure of a sumo wrestler. It is very likely he has poor condition, any physical exertion is likely to see him needing to pause for breath. Physical exertion when intoxicated is always more demanding on the breathing mechanisms of the body, in that sense there is an explanation for the pause. However, in drawing a conclusion of fact against the accused, I have to be satisfied it is the only conclusion of fact available. In this case I cannot be so satisfied. The other obvious conclusion is, that the search of Zadourian’s person and theft of at least his wallet occurred as an afterthought.

46. I reject the accused’s account that the wallet was not in his pocket. Police found it there when he was searched at the scene. I am also satisfied beyond reasonable doubt that he intended permanently to deprive the owner of it.

47. If the search of Zadourian is an afterthought, what was the accused’s reason for giving Zadourian a vicious hiding? I cannot determine that. I can speculate but to do so would not be fair to Zadourian, other than to say it is open on the evidence to contemplate as a reasonable possibility that Zadourian gave offence to the accused on a topic that the accused is too sensitive to discuss in open Court. In those circumstances I should indicate the Crown will have failed to establish the second element of the indicted charge beyond reasonable doubt. However, the Crown has established beyond reasonable doubt a stealing from the person of Zadourian of his wallet and it's contents. In those circumstances there are two verdicts I must give. Actually, there is one verdict and one finding really.

48. The verdict I must give is that Saifoloi Afele, on the charge that you on 16 December 2005 at St Marys in the State of New South Wales robbed Chiro Zadourian of his property, namely a wallet containing a sum of cash, in circumstances of aggravation, namely that at the time of the robbery you maliciously inflicted actual bodily harm upon him, on that charge I find you “not guilty”.

49. On the statutory alternative charge, that you on 16 December at St Marys in the State of New South Wales, robbed Chiro Zadourian of his property, namely a wallet containing a sum of cash, I find you also “not guilty”.

50. On the further statutory alternative charge, that you at 16 December 2005 at St Marys in the State of New South Wales, stole from his person his property namely his wallet, I find on the limited evidence that you committed this offence.