R v Barnes
[2016] SADC 122
•6 October 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARNES
[2016] SADC 122
Reasons for Ruling of His Honour Judge Tilmouth
6 October 2016
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Proof of alleged mitigating features of an aggravated offence of causing harm with intent to cause harm, not established on the whole of the evidence.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c)(i), s 21, s 24(1); Ready v Brown (1968) 118 CLR 165, referred to.
Olbrich v The Queen (1999) 199 CLR 270; Fillipou v The Queen (2015) 256 CLR 47, applied.
R v BARNES
[2016] SADC 122The issues
The defendant, Adam Charles Barnes, pleaded guilty upon arraignment for trial, to an aggravated offence of causing harm with intent to cause harm. The matter proceeded to a disputed facts hearing, the parties being at odds as to the circumstances in which the offence took place. These reasons examine the evidence and explain why he fails to demonstrate the existence of mitigating circumstances as contended for by him.
The formal particulars of the charge are that the defendant caused harm to Kara Blackburn intending to cause her harm, knowing she was a police officer acting in the course of her official duty, an offence contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The aggravating circumstance derives from s 5AA(1)(c)(i) of the CLCA, which provides a basic offence is aggravated when the ‘offender committed the offence against a police officer … knowing the victim to be acting in the course of his or her official duty’. There is no dispute surrounding the proof of this aggravating factor.
Background facts
Senior Constable Blackburn was on solo uniformed duty in an unmarked police patrol car on St Vincent Street Port Adelaide, shortly before 9.00 am Sunday 1 September 2013. She noticed a vehicle towing a boat trailer making a right hand turn onto the Birkenhead Bridge, without the indicator lights of the trailer operating. She followed the vehicle over the bridge northbound into Victoria Road on the Le Fevre Peninsula, for about 3 km. She then indicated for the driver to pull over so she could conduct an alco-test in light of her observations as to the manner of driving, including speed. The driver executed a U-turn and pulled over on the opposite side of the road facing south, in the Birkenhead area.[1] SC Blackburn noticed a female in the front passenger seat and two children in the rear. She administered a breath test to the driver, Mr Barnes, which failed, so she administered a second presumptive test. This returned positive for the presence of alcohol. She determined to take him to the Port Adelaide Police Station to administer a full breath test.
[1] See Google Map Exhibit P1.
SC Blackburn also administered a presumptive drug test, which after some minutes returned positive for cannabis, so she resolved to take Mr Barnes to the Parks Police compound instead, as drug testing facilities were not available at Port Adelaide.
Upon arrival at the Parks compound, an altercation took place in and about the police vehicle, when on both accounts, Mr Barnes launched himself from the rear passenger seat into the front driver’s position. Thereupon SC Blackburn and a colleague from the police complex, Sergeant Brown, attempted to handcuff and effect the arrest of Mr Barnes. It is during the course of the ensuing struggle that he bit SC Blackburn on the left thumb causing her injury. It is the circumstances and the reason for doing so, which are primarily at issue in this hearing.
There is an agreed fact before the court that the bite caused:[2]
… pain and seven puncture wounds, on the lower part of her thumb, three holes in the webbing between the thumb and index finger and three holes on the inside of her palm.
Accordingly no dispute arises other than that the injuries caused ‘harm’ as defined in s 21 of the CLCA as it applies to Division 7A offences, and there is a formal admission by the defence to that effect. Photographs depicting the swollen left thumb and teeth puncture marks, affirm that conclusion.[3] Nor is there any dispute that Mr Barnes deliberately bit, intending to cause harm.
[2] T84.34-.38.
[3] Exhibit P2, LD11-LD16.
Legal principles
In cases where a court embarks upon the process of fact finding for the purposes of sentencing, the principles applicable are those to be found in Olbrich v The Queen,[4] namely that facts adverse to an offender must be established by the prosecution beyond reasonable doubt, whereas the offender bears the burden of proving matters put forward in his or her favour as mitigatory, on the balance of probabilities.
[4] (1999) 199 CLR 270, [25] – [27].
Furthermore, as explained in Fillipou v The Queen:[5]
… a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard
[5] (2015) 256 CLR 47, [70].
Contested facts
From the very outset there can be no doubt that Mr Barnes created difficulties for SC Blackburn. He admitted winding down a window of the police vehicle and refusing or declining to fasten his seatbelt, and meddling with the alco-test equipment in the backseat whilst en route to the Parks Police compound so as to annoy her.[6] Although he could not recollect using foul language when first pulled over in the vehicle or in the ensuing trip, there can be no doubt he indulged in insulting and derogatory language in that time.[7] SC Blackburn became so concerned with the ‘possibility of being assaulted’ that she radioed ahead for assistance in dealing with the situation.[8]
[6] T119.2-.30.
[7] T133.28-134.1.
[8] T16.34-17.20, T20.19-.30, T81.35-82.16.
She pulled into the police compound and alighted the vehicle, leaving the driver’s door open and the engine running.[9] There is some difference between her and Sergeant Brown as to whether she remained in the area of the driver’s door, or went to the off-side rear door where Sergeant Brown placed himself near Mr Barnes, however this is of no consequence.[10] On any view Mr Barnes almost immediately launched himself through the centre of the two front seats and into the driver’s seat.[11] Given the immediate after events which involved SC Blackburn engaging straight away with Mr Barnes, the probabilities are that she never made it to the area of the car where Sergeant Brown was at all.[12]
[9] T21.32-.38.
[10] T21.32-22.6, T82.22-.33.
[11] T22.7-.13, T27.25, T83.28-.32
[12] T23.1-.25, T85.25-.33, T86.5-.8, T122.15-123.4.
There is no dispute however that Sergeant Brown sought to restrain Mr Barnes by taking his legs from the front passenger side of the vehicle.[13]
[13] T23.22-.25, T22.36-24.14, T83.33-.36, T84.18-85.7.
Mr Barnes’ evidence that he simply ‘moved steps forward and sat in the driver’s seat … sitting in the front seat’, is inherently unlikely, when one considers how that could be achieved given the configuration of the two front seats, and it fails to account for how Sergeant Brown could have taken hold of his legs in the area of the front passenger seat.[14]
[14] T121.27, T137.24-.36.
It is highly likely that Mr Barnes went for the ignition switch, given his stated motive for getting into the front in the first place, which was to ‘make SC Blackburn look bad’, as he ‘thought it was dangerous to leave an unattended car running’.[15] It is no surprise then that she tried to remove the keys and wrest them from his grip, to defuse what might have grown into a dangerous situation.[16] Having achieved this end, Sergeant Brown told her to arrest him, so she attempted unsuccessfully to handcuff him.[17] For a brief moment at this point in time, Mr Barnes appeared to have calmed down and become compliant, retorting ‘just handcuff me then’.[18] It is from here that the accounts of the events begin to depart materially.
[15] T121.22-.32.
[16] T23.17-.30.
[17] T23.31-.35, T24.15-.16, T86.5-.8.
[18] T24.17-.23, T86.9-.12.
On the evidence of SC Blackburn, supported at times by Sergeant Brown who admittedly was not in a position to see much from his cramped position, as she was attempting to handcuff the right wrist Mr Barnes pulled away. She then managed to cuff the left wrist, but as she did he punched her with his right fist by swinging it over his left shoulder, connecting with her left shoulder.[19] She frankly admitted punching him in return with her left hand to the side of his face, whilst at the time exclaiming ‘don’t punch me’.[20] In response Mr Barnes is alleged to have taken her left wrist twisted it in a ‘gooseneck’ fashion, and he may well have punched her twice more.[21]
[19] T25.18-26.13.
[20] T26.14-.23.
[21] T26.20-27.14.
On the prosecution case he then instantaneously used his bodyweight in an attempt to launch himself out of the car.[22] It is the prosecution version of the following events, that as part of his body was then hanging from the driver’s side door, SC Blackburn was thrown off balance and taken to the ground, with him still having hold of her left hand.[23] As her left arm was pinned under his body, it is alleged he pushed a thumb quite hard into her left eye, before taking her left hand and biting it about the thumb.[24] She managed to get up and kick herself away from him, before other police officers arrived to render assistance.
[22] T70.32.-.36.
[23] T27.24-28.6.
[24] T28.8-.24.
It is claimed by the defence that whilst accepting Mr Barnes deliberately bit SC Blackburn, he did so only because she had him in a choking hold and in essence he did so in an act of excessive self-defence. The nub of his evidence as to this alleged course of events was as follows:[25]
[25] T123.16-124.2.
Q.Did you bite her.
A.Yes.
Q.How did that happen.
A.After a brief scuffle she was lifting me up pulling me and tripping over her feet and falling on me and then banged my head on the ground and that happened a couple of times. Then I told her to fuck off I think and started to push her away from me.
Q.How were you doing that.
A.It was a tangle of arms and I was upside down. It's an awkward position, just tried as best I could to push her away from me (INDICATES).
Q.Do you recall whether you had a handcuff on you anywhere at that point.
A.No.
Q.Did you have a handcuff on you.
A.No.
Q.You described being in an awkward position. Is your body facing upwards or downwards or sideways, which way were your chest and face looking.
A.I was on my back, on my right-hand shoulder and my back and I could twist my torso almost around to face the ground with my face.
Q.Were you doing that.
A.Yes.
Mr Barnes claimed during the course of his evidence that SC Blackburn threw him onto the ground by tipping him as she pulled him from the vehicle, so that he hit the ground in such a way that his legs were ‘flying up in the air’ inside the vehicle.[26] He denied punching her, twisting her left wrist or gouging her eye.[27]
[26] T122.35-123.2.
[27] T123.7-.15.
When questioned by his counsel Mr Dibden, how the bite came about, he gave this series of answers:[28]
[28] T124.3 – 125.1.
Q.How did you come to bite Constable Blackburn on the left hand.
A.She tried one last time, or again, to pick me up and extract me from the car, and by this stage she pulled me towards the - she was -
Q.How was she holding you.
A.She was strangling me with her arms behind me (DEMONSTRATES).
Q.You are indicating with a bent left arm and a bent right arm.
A.Yeah.
Q.Can you explain in words, please, how she was holding you and where on you she was holding you.
A.She was holding me up off the ground and pulling me.
Q.Were your legs still in the car.
A.Yes.
Q.Still being held.
A.Yes.
Q.And the strangling you have just referred to, how was that happening.
A.I guess the pulling and the grip she had from her arms.
Q.How was she holding you with her arms.
A.It's difficult to say. Like, a bear hug but grabbing me with her elbows probably.
Q.How was it that you describe it as 'strangling'. Why do you describe it like that.
A.I guess it was a tight grip and the fact that she was pulling backwards at me at the same time. It was choking me.
Q.Could you breathe.
A.I was choking, so not very well, no.
Q.What was going through your mind.
A.I just thought 'This is it. This is too much. I can't - she's really hurting me'.
Q.So what did you do.
A.I flexed my body and twisted around, and her hand was there and I latched on to her hand with my mouth.
Later he endeavoured to explain why he resorted to biting:[29]
[29] T126.8-.30.
Q.And did you feel anything then.
A.I felt my body stretch out and lift off the ground and her falling around trying to pull me in a direction out the car.
Q.And where did she have you by. What part of your body was she holding on to.
A.It was around my head and my neck.
Q.And how did that feel.
A.Well, I felt terrified. It felt scary.
Q.And 'scary' is an emotion. Can you describe how it physically felt.
A.Well, I felt that I was about to get injured badly.
Q.In what way.
A.Well, I was already in a lot of pain, and my neck started to pop and I was choking.
Q.What do you mean by 'neck started to pop'.
A.I just felt my neck crack.
Q.And did you hear anything or did you feel that.
A.I think it's a feeling. It's a feeling of, like, you're neck cracking when your back is cracking but it was my neck.
Q.And your ability to breathe at that point.
A.I could still breathe, at a guess, but I was choking.
Mr Barnes admitted drinking sherry the night before and on the morning in question. There is a certificate of analysis before the court stating that around 10.50 am that morning, he was blood tested twice at the Queen Elizabeth Hospital, recording blood alcohol levels of between .151 and .154 g.[30] Readings of blood alcohol at such levels, partly serve to explain irrational behaviour on his part, even if it is assumed they were lower at 9.00 am and shortly thereafter.
[30] Exhibit P6.
Fact finding
SC Blackburn had a portable recording device on her person which was filled by previous recordings.[31] She managed to delete some files en route between Birkenhead and the Parks compound, as well as just before Mr Barnes jumped into the driver’s seat once there.[32] At this time she activated the device and dictated the commencement time at 9.18 am.[33]
[31] T13.11-.16.
[32] T24.24-.33, T35.15-.18, T61.14-.28.
[33] Exhibit P4.
The transcript thereof annexed hereto, records my findings as the trier of fact as to what can be heard thereon. The attribution of speakers was an easy one in the case of SC Blackburn, since she is the only female voice heard. The attribution to Mr Barnes as a speaker is in most instances obvious from the content, and when not, only when there is no reasonable doubt that the speaker was other than him. The second male voice was then assigned to Sergeant Brown unless it was unclear, in which case ‘male voice’ or ‘inaudible’ is assigned. A draft of this transcript was provided to counsel, so that each could and in fact did comment before conclusive findings of fact were made. The transcript is highly probative, for reasons about to be articulated.
First of all, Mr Barnes clearly behaves in an obdurate – even belligerent manner virtually straight away, essentially in the same manner in which SC Blackburn describes him as acting earlier. As there is nothing capable of provoking him into such an outburst, it therefore serves to confirm that he was acting in a similar manner earlier. That conclusion is reinforced by SC Blackburn’s spontaneous exclamation ‘(T)his is what happened since I stopped him’.
On all accounts he then launched himself into the front passenger seat. The reasons advanced by him as seen from the portions of his evidence quoted above, are hardly credible. The act of so behaving is entirely consistent with a continuing posture of uncooperativeness and causing annoyance. Engaging the horn of the vehicle was equally a deliberate act of irritation. As mentioned earlier, were his feet in the front footwell, there was no opportunity to restrain his legs. It was as well, otherwise impossible for Sergeant Brown to have restrained him by the legs as he did from the passenger side, as is proven to be the case by Mr Barnes’ own explanation ‘I can’t move’, ‘I can’t he’s got my legs’ and ‘I can’t sit up…’. The fact that the police siren was activated, strongly suggests a scuffle near the centre console of the vehicle where the siren toggle switch was located.
This established state of affairs is inconsistent with Mr Barnes’ evidence as to the manner in which he got into the driver’s seat in the first place with his hands merely on his knees, and that SC Blackburn forced his feet into the air when attempting to drag him from the police vehicle, in the second. Another spontaneous exclamation ‘don’t punch me’, followed shortly afterwards by ‘he’s just punched me’, corroborates SC Blackburn’s version that he did in fact punch her. Likewise, uttering in the same breath ‘let go of my wrist’, confirms in a material way her evidence that he in fact did take her by the wrist. And the distinctly audible high pitched scream, clearly occurs at the time when she was bitten.
In contrast, his own version of the events was confusing and intrinsically implausible.[34] His vain attempts to explain or account for his actions and his words heard on the audio recording, are not credible.[35] A particularly illustrative example is his claim that he ‘gently cupped’ his hands over those of SC Blackburn when she reached into the rear to retrieve the alco-test equipment, ‘so as to indicate that it’s safer to drive with two hands and concentrate on the road’, and his claim that she was ‘looking behind … scaring me’.[36] Given the proven context, this evidence inescapably borders on the ludicrously unlikely. In short, the audio recording corroborates, the evidence of SC Blackburn on critical points.
[34] T137.18-139.18, T145.60-148.20.
[35] T139.26-145.5.
[36] T119.38-120.7, T135.12-136.1.
It may be possible, as Mr Dibden submitted in his concluding address, that Mr Barnes subjectively considered himself to be in a compromised and difficult position, but if he did it was a hidebound view. That situation was not a consequence of being dragged from the police vehicle by SC Blackburn in the manner alleged. The circumstances are far more consistent with Mr Barnes continuing to struggle and then endeavouring to extricate himself from the grip Sergeant Brown had over him and the police vehicle.
This moment was described in these terms by SC Blackburn:[37]
Q.What did he do then.
A.I believe then he used his body weight to launch out of the car. So, he used the strength in his thighs to push off from Sergeant Brown who had his legs and push his torso out of the driver's side of the vehicle, so half of his body was hanging out of the driver's side, which put me off balance and took me to the ground with him.
Q.Where was your left arm when that happened.
A.I believe he would have still had hold of it, which is why I have lost balance and fallen.
Q.So he's still got hold of your left arm, you are still behind him and you have fallen backwards, is that what you are saying, or fallen.
A.I have fallen to the ground.
[37] T27.24-.37.
This account marries in its own way with the evidence on the point by Sergeant Brown. He spoke of Mr Barnes struggling and resisting, causing him to apply ‘more force to his legs to try and control them’, and at the same time advising SC Blackburn that it would be best to handcuff him.[38] However, the struggle became ‘more violent’, with Mr Barnes ‘both pressing towards me and pulling against me, and I felt some up and down movement as well’.[39] Brown’s responses to the prosecutor, Ms Gray, then continued:[40]
[38] T86.6-.8.
[39] T86.14, T86.37-87.2.
[40] T97.15-.30.
Q.What happened then.
A.Around about the time shortly after Constable Blackburn had screamed I felt Mr Barnes move in way that allowed him to sit up, contrary to what he had previously said he couldn't and his - I felt a hand rubbing, brushing against my lower right back.
Q.Could you perhaps stand up, if you wouldn't mind, and indicate where he was touching you.
A.Around here (INDICATES), in this area here.
Q.Were you wearing the same sort of belt that you are wearing today.
A.Yes.
Q.On that occasion.
A.Yes, it is the exact same belt.
Q.What's that belt called.
A.It is a police accouchement belt.
As mentioned already, this evidence matches entirely with the distinctly separate description of SC Blackburn and fully explains how Mr Barnes got into the position he was in a more inherently likely way. It follows, even assuming Mr Barnes perceived the situation to be one in which he was choked or his ability to breathe was compromised, it was a position he put himself in, and for which he has no legitimate cause of complaint. On any view of the facts a resolution of the imbroglio was an easy one. All Mr Barnes had to do was to show a degree of complaisance and to cease struggling, submit to handcuffing and to comply with the reasonable directions of the police.
Given these conclusions there is no need to resort to the evidence of the police officers Costalos, Haines and Reynolds to the effect that when they arrived upon the scene in the compound car yard (probably at about the time a male or males can be heard to say ‘oi, oi, oi, hey, hey, hey’), that Mr Barnes continued to behave in an ‘aggressive and unpredictable’ manner. Although his demeanour shortly afterwards is highly consistent with his attitude throughout from the time he was first pulled over, it is reasonably possible that it equally arose from the events taking place in the car park, which caused him to ‘fire up’ and lose self-control. For the same reason, the evidence of the ambulance officers Elton and Frankham who arrived some minutes later and observed Mr Barnes to be abusive towards the police, is put aside for the purpose of the above conclusions. Mr Barnes’ failure to complain shortly afterwards, and to refuse treatment, is no evidence against him: Ready v Brown.[41]
[41] (1968) 118 CLR 165, 168-169.
In accordance with the principle referred to in Fillipou,[42] no conclusion can be reached as to whether Mr Barnes gouged the eye of SC Blackburn (as there is no evidence of injury to the eye), or twisted her left wrist (as any injury is likely to be masked by swelling caused by biting her).
[42] Above.
Conclusion
For the above reasons, it is proven by the prosecution beyond reasonable doubt that the circumstances in which SC Blackburn was bitten by Mr Barnes arose out of an incident entirely of his own making, and not through any overresponse or overreaction of the police. Correspondingly, Mr Barnes has completely failed to prove on balance that the situation leading him to bite SC Blackburn arose from any objectively reasonable apprehension of the need for self-defence.
Subject to further submissions from both counsel, the court will proceed to sentence him on this basis of the facts.
Annexure
Transcript of Exhibit P4
(background male voice ‘not moving’ then inaudible)
Blackburn:Time’s 9.18, Sunday 1st August, at the Parks Police Station. Um two-one and then…
Brown: Yep
Blackburn: release and for two?
Brown : Um
Blackburn Hinder? Hey?
Brown: … down to Port, Um, what were you trying to do mate?
Barnes: Nothing.
Brown : What were you getting into this seat …
Blackburn: Why were you driving …
Barnes: Shut up. Fuck off I don’t talk to cops. Fuck off.
Brown : Are you going to talk to me?
Barnes: Nah, Fuck off.
Blackburn:This is what happened since I stopped him. (This has been happening since I stopped him).
Brown : Alright, ok cuffs.
Barnes: Fine, cuff me.
Brown : Put your right hand behind your …
Barnes: I can’t move.
Scuffling, horn blaring.
Blackburn: Sit up.
Barnes: I can’t
Blackburn: Sit up.
Barnes: He’s got my leg, he’s got my leg.
Blackburn: Yes, Sit.
Barnes: I can’t sit up he’s got my leg.
Blackburn: You were just sitting up.
Scuffling
Blackburn: Don’t punch me.
Siren
Male : That’s enough
Barnes: Fuck off.
Blackburn: He just punched me. Let go of my wrist.
Groans, more scuffling, inaudible voices
Barnes: Fucking asshole. Fuck off.
Scuffling and groans
Blackburn: screams
Male : oi, oi, oi, hey, hey, hey
Blackburn: You made me bleed.
Male : Hey, hey, hey
Blackburn: What the fucks wrong with you?
Barnes: Just cuff me, just cuff me
Male groans
Female groans.
inaudible in background heavy male breathing
Barnes: I can’t move
Inaudible male… Are you alright?
inaudible
Blackburn: Um, someone needs to turn the siren off.
Pain noises, gasping.
Siren goes off
Police radio voice in the background.
Blackburn: (Heavy breathing) Fuck, look at that.
Male voice: Come on. Let’s go grab a seat.
Female gasping
Male inaudible.
Blackburn:Have you got a first aid kit? I just want to get, flush this out.
Background noises.
The audio didn’t work from the start.
Brownie I’m going to need to go to the hospital.
End of transcribing.
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