R v Blake Sewell
[2011] ACTSC 28
•1 March 2011
R v BLAKE SEWELL
[2011] ACTSC 28 (1 March 2011)
CRIMINAL LAW – trial by judge alone – conspiracy to murder – aiding and abetting assault occasioning actual bodily harm – no oral agreement – whether agreement drawn by inference – no evidence as to motive – acquiescing bystander – no finding of guilt
Supreme Court Act 1933 (ACT), s 68C
No. SCC 302 of 2009
Judge: Teague AJ
Supreme Court of the ACT
Date: 1 March 2011
IN THE SUPREME COURT OF THE )
) No. SCC 302 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:
THE QUEEN
AND:
BLAKE SEWELL
ORDER
Judge: Teague AJ
Date: 1 March 2011
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty be entered in respect of Counts 1 and 2 on the indictment.
“I think I probably should have stayed at home and just told them to forget it”. That is what Blake Sewell told the police he should have done on that day, 17 November 2008. Clearly, that is what he should have done. But what did he actually do? Most specifically, did he agree with the others (AI, AD, and JR) to murder CR? These are my reasons for concluding that he did not so agree. Because I was not satisfied as to the fact of agreement and assistance to assault, I found Blake Sewell not guilty on the conspiracy to murder charge and the aiding and abetting assault occasioning actual bodily harm charge laid against him.
I am obliged to use initials because of the age factor. The victim (CR), the main prosecution witness (ND), and one (JR) of the three with whom Blake Sewell was alleged to have conspired were, as at 17 November 2008, under the age of 18. Blake Sewell was only just 18, as was AI. The other member of the group (AD) was the oldest at 20.
Blake Sewell elected for trial by judge alone. I heard no oral testimony. I was called on to make my decision on the papers. I was aware of my obligations under s 68C of the Supreme Court Act 1933 (ACT). Before the hearing began, I had read, with very close attention to detail, the two documents which both prosecution and defence agreed that I should read. The two were the statement of ND and the transcripts of the police interviews of Blake Sewell. I have attempted to summarise both those parts of the statement of ND that refer to Blake Sewell, and the answers of Blake Sewell. The summaries are somewhat long but that is because both the statement and transcripts are long, and the summaries help to provide context for what follows.
ND said that he met both Blake Sewell and AI in year seven. Blake Sewell was a friend. In around November 2008, he saw Blake Sewell about once or twice a week. On the night in question, ND was present when AI telephoned Blake Sewell. AI then told ND that they were going to the house of Blake Sewell. When AI, JR and ND met with Blake Sewell, Blake Sewell was with AD. AI was concerned as to whether he could trust AD. After AD spoke about himself, AI spoke about his concern as to CR. The concern was that CR would get his friends to kick AI’s head in, so AI wanted to get rid of CR. Blake Sewell asked AI if AI wanted to kill CR, because CR was going to bash AI. AI said he did not want his head stomped in. AI asked Blake Sewell why Blake Sewell did not understand him. AI liked the idea of luring CR out by using a phone. AI queried whether any of four phones, one of which was that of Blake Sewell, might be used. AI asked Blake Sewell for the use of his car, because it was better on petrol. Blake Sewell said: “Yeah sure, but that’s the only part I’m doing”. AI said to Blake Sewell and AD: “We are going to kill him, are you cool with that?” Blake Sewell replied: “You can use my car, but I’m not doing anything. I’m just driving.” Blake Sewell was driving as the five got into the car of Blake Sewell to drive to the home of AD. In the car, ND said that things were getting pretty intense. Blake Sewell said he did not picture AI doing this, and that AI had changed a lot since high school.
At the home of AD, there was action as items were put into the boot of the car of Blake Sewell. AD put a curtain into the boot. AI pushed the corners of the curtain up on the right side and Blake Sewell did likewise on the left. After that, AD drove the car. AI turned to Blake Sewell and said that his phone was needed. Blake Sewell questioned AI as to why AI could not use his own phone or someone else’s. AI told Blake Sewell his phone was going to be used. Before Blake Sewell handed his phone over, AI told him to change the phone to display his number as private. Blake Sewell used his phone, like he was changing it to display his number to private. Blake Sewell then handed it to AI, who gave it to JR. ND and Blake Sewell were separated for some time. During that time, CR was assaulted.
Later, ND saw the car of Blake Sewell, ran to it, and found AD driving it and Blake Sewell in the front passenger’s seat. Later Blake Sewell asked questions of ND as to how CR got away. Later again, AI spoke of getting a gun, and asked Blake Sewell and AD to get it. AD and Blake Sewell then left in the car.
Blake Sewell was interviewed by the police over seven sessions. The first started at 5.35 am on 18 November 2008. The seventh concluded at 12.32 pm that same day of 18 November 2008. Initially Blake Sewell told the police that he had been with friends and got a call to pick up AI, and that they finished up near the Tuggeranong College. When asked about CR, he lied. He said that he knew nothing of an assault on CR. He said he had no idea where the stick in the boot of his car came from. He said that he did not know about the state of the relationship of AI with CR. Later, Blake Sewell said that he wanted to start again. He then gave an account of the events of the night of 17 November 2008 which is very much in accord with the account which ND finally provided in his statement.
He said that he was at home with AD when AI, ND and JR turned up in AI’s Falcon. After AD had been properly introduced, AI talked of what had happened earlier and what he planned to do. AI spoke of the tension between him and CR. AI said that he and JR had taken some steps as to CR but decided not to go ahead at that time. AI said CR would have to be killed now, that night. AI said that JR was troubled by what CR might do to them. The plan was to first get CR out of his house, and finally have CR end up as a missing person. No one objected to the plan. Everyone was happy. The group headed to AD’s place so AD could change his clothes. Blake Sewell drove his car up to that time, but not after that. At the home of AD, ND moved the subwoofer and amplifier from the boot of the car. AI asked for shovels and a tarmac or similar to cover the body. AD went around finding spades, pick-axes, to put in the car. Into the car were placed a curtain, a pick-axe, a shovel and a baseball bat that Blake Sewell had lent to AI. The action was interrupted by AD’s mother coming and arguing about taking two shovels, so ND said one would be fine.
AD picked up a curtain from out the back of his home as a curtain was needed to line the boot. JR was going to wear gloves as he has a criminal record. To avoid being caught, they said to say that all of them were at Blake Sewell’s place. Blake Sewell said that he was not going to help with the shovels and the like, and that he had no intention of digging any holes or assisting otherwise. Blake Sewell said that he did not drive his own car as he did not feel like driving. The mood in the car was quite cautious. With AD driving, the group drove around looking for a darker area to put what would be the body in the trunk. It was decided that it was best to park at the swimming pool. JR rang CR, using Blake Sewell’s phone. ND and JR walked towards CR’s house. Blake Sewell, AD and AI found some trees to hide behind in the town centre park. CR came out of his house and started to talk with JR and ND as they walked towards the group in hiding. AI and AD got up and ran towards CR, who turned and started running and they all chased him. Blake Sewell said that he just lay still for up to one and a half hours. He then walked off before contacting AD, who picked him up. The two went to a bakery and then a service station. He then got a call from AI asking to be picked up.
Blake Sewell gave answers to questions about five matters of particular relevance. One was as to his links with AI. The second was as to his links with CR. The third was as to his knowledge of the ill will between AI and CR. The fourth was as to what he had been told of the plans of AI. The fifth was as to what he, Blake Sewell, had done and why.
As to the first what he said included that he got involved because he was a friend of AI, that he had known AI for many years and they were good friends, that AI was a very determined person, that AI had never even wanted to hurt anyone, so far as Blake Sewell know, and that AI was someone you could always get along with. As to the second he said that he barely knew CR, that he had only once socialised with him, and that CR liked to talk it up a bit. As to the third, he said that he had been told a number of things, including that IA and CR did not get along, that AI had got hit over the head with a bottle, that CR had told something to another person that AI had told CR in confidence, that problems between AI and CR seem to have built up over a few months, that there had been a recent attempt to deal with the matter which involved a trip to Cooma. As to the fourth, he said that AI and JR were running the show, that their concern was that if they did not get rid of CR, CR would get his mates to get rid of them, that they were using the word kill, that he thought something was a bit funny, a bit strange, a bit paranoid, that AI was going to get JR and ND to call CR out of the house, to lead him someplace dark, to whack him with the baseball bat until he was unconscious or dead, to grab his body, put it in the boot, drive off to the Cotter, then with shovels and spades, to dig a hole and bury him. As to the fifth, he said that he didn’t know why he went with the others. He believed that his role was just for the car, that they didn’t ask him to do anything, that they just said: “We need your car.” He wasn’t going to leave his car unsupervised and he did want to know what would happen. When JR said that he needed a phone Blake Sewell gave his phone to JR, and JR changed the settings to number withheld. He said that he did not believe that they had the capacity to do what they planned to do. He didn’t think they would go through with it. He accepted that he was helping AI, by letting AI use his car, and by being there. He said that he was aware that one option was that AI could have committed murder.
ND does not say that Blake Sewell orally agreed to join with the others in killing CR. In no answer given to the police does Blake Sewell say that he so agreed. My focus therefore had to be on those parts of ND’s statement and those answers to questions by Blake Sewell that might be seen to form the basis for drawing the inference adverse to Blake Sewell, that what he did and done should lead to my finding that Blake Sewell had agreed to join with the others in killing CR.
It is appropriate to examine in a little more detail particular aspects that are separable into five areas: first, general acquiescence; second, providing his car; third, providing his mobile phone; fourth, adjusting a curtain in the boot; and fifth, leaving to get a gun.
Before doing so, I would mention certain aspects of the evidence operating “the other way”. They provide a basis for a reasonable hypothesis consistent with innocence. Their presence means that the basis for drawing any adverse inference must be the stronger. One is that there is no evidence that Blake Sewell had any motive to kill or harm CR. Indeed, the only evidence of any such motive seems to be that on the part of AI. Another is that there is no evidence that Blake Sewell took part in any activity involving any assault on CR. Indeed, the only evidence is that he was lying down keeping away from any such activity at the critical times. The third is necessarily somewhat subjective, being linked to the impression that I formed primarily from reading the transcript of the interviews of Blake Sewell, but confirmed in reading the statement of ND. Blake Sewell comes across as being naïve, and as being motivated to act as he did out of a combination of misplaced loyalty and curiosity. That contrasts with the impression that I got from reading the statement of ND as to his position. He took a much more active role than Blake Sewell in the activity when CR was assaulted, but his statement conveys the impression that he was motivated to act as he did out of fear, and that when he did act, it was as much to thwart, as to further, the plan of AI.
In both the ND statement and the answers of Blake Sewell, there are significant parts which make it clear that Blake Sewell was present when AI outlined his plans to kill CR, and when others responded in ways that intimated that they were acquiescing in those plans. Save as to the matters of the provision of the car and mobile phone, the spreading of the curtain and the leaving for the gun, to which I am about to turn, there was, on the part of Blake Sewell a clear distancing of himself from those plans rather than any indication of involvement. The very strong impression that I formed was that he was present, not as an active participant, but as a bystander, who was acquiescing, when, if he had been less naïve, he should have been protesting or absenting himself. He was put under pressure to provide his car and his mobile phone and he did so, but ungraciously. Having done so, he then had an interest in seeing that he got back both car and phone undamaged.
The statement of ND did put a further spin on three matters, as to only one of which the police had asked questions of Blake Sewell. One was in stating that Blake Sewell had himself adjusted the mobile phone. As to that, Blake Sewell said that JR had done the adjustment. The others were as to adjusting the way a curtain was spread in the boot and as to responding to an AI request to get him a gun. In the context of a trial on the papers, those two matters could only add but a slight degree of weight. I treat as even less consequential, the possibility that I could infer a “consciousness of guilt” from the lies told by Blake Sewell when first asked questions by the police. Clearly, he lied, but in my assessment, he lied out of loyalty to his mates, and no adverse inference ought to be drawn from his having done so.
Mr Drumgold did his best to persuade me that I should, from the primary sources, draw the inference adverse to Blake Sewell that he had agreed to join with the others to kill CR. I can understand, from the police and prosecution perspectives why the various actions taken by Blake Sewell should give rise to suspicion. For comparable but different reasons, what ND did must have occasioned suspicion. But when close attention is paid to the detail of the evidence before the court against Blake Sewell, it does not measure up. Framed more formally, I record that I was not satisfied beyond reasonable doubt on all the evidence as to the requisite element of agreement as to the offence of conspiracy to murder. I have not dealt in detail with the second charge, but, in my assessment, a like analysis of the evidence leads to the conclusion that there was not enough evidence to warrant drawing the inference that Blake Sewell intentionally assisted the others to assault CR.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.
Associate:
Date: 1 March 2011
Counsel for the plaintiff: Mr S Drumgold
Solicitor for the plaintiff: ACT Director of Public Prosecutions
Counsel for the defendant: Mr P Hasting QC
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 8 December 2010
Date of judgment: 1 March 2011
0
0
1