R v Booth (No 2)
[2021] ACTSC 255
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth (No 2) |
Citation: | [2021] ACTSC 255 |
Hearing Date: | 1 October 2021 |
DecisionDate: | 1 October 2021 |
Before: | Mossop J |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Where accused was acquitted of aggravated burglary at jury trial – transfer charge of damaging property – guilty on damaging property charge |
Legislation Cited: | Crimes Act 1900 (ACT), s 116 |
Cases Cited: | R v Booth [2021] ACTSC 223 R v Booth [2021] ACTSC 226 |
Parties: | The Queen ( Crown) Richard Booth ( Accused) |
Representation: | Counsel T Hickey ( Crown) J De Bruin ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number: | SCC 177 of 2019 |
MOSSOP J:
Introduction
These reasons relate to a transfer charge of damaging property pursuant to s 116 of the Crimes Act 1900 (ACT). Mr Booth was acquitted on a charge of aggravated burglary by a jury. He subsequently applied for a stay of the transfer charge of minor property damage. The application for a stay was dismissed: see R v Booth [2021] ACTSC 226.
The background facts are those that I found in sentencing Melanie Booth: see R v Booth [2021] ACTSC 223 at [7]-[17].
In these reasons I will refer to people by their first names. This is how they were referred to in the trial. I do not intend any disrespect to them by referring to them in this informal way.
The allegation of the Crown is that the accused damaged the front door of the house where Desi Connors and her family lived. There is no doubt that the door was damaged. Amongst other evidence was the evidence of Sergeant Lowrencev who said that the door had a hole in the centre of it and that it was unable to be secured. Evidence of the requirement to have the door replaced because it had a big hole in it was also tendered.
The evidence linking the accused to damage to the door was that of the occupants of the house. That evidence was inconsistent with the evidence given by Deanne Booth.
Evidence and assessment of witnesses
Desi Connors
Desi’s evidence was that there had been an altercation between Melanie Booth and MD at the front door. Desi arrived and attempted to shut the front door. People outside, who she identified as Deanne Booth, Richard Booth, Tiam Fisher (also known as Maloney), Sharneisha Booth and Bonnie Booth, were pushing against it. Tiam somehow got in the door before it was closed. Desi managed to lock the door. She saw Tiam going towards Michael Shannon and pushing him. She then said “At that time, I turned around, [ND] was standing behind - like, one of the door and then the next minute the door goes flying, swinging straight open. And then when I turned around and, like, seen that, that’s when I saw Richie standing at the door when the door swung open”. She described the door as being “kicked open”.
Desi then described people coming in. She said that Richard was in the room but that he walked out when everyone else walked in.
She described hearing bangs from the other side of the door before it came open. She described these bangs as “very loud. It was like a door getting kicked.” When the door opened, she saw Richard standing at the door and everyone else behind him. She recalled seeing Deanne, Bonnie and Sharneisha.
Desi said she had known Richard “for years”. She said that her cousin has children with his sister.
Her evidence was that Tiam and Richard were the only males who were present. She agreed that this was the first time she had seen Richard in years.
It was suggested in cross-examination that Desi only saw Richard when he was at the bus and she said “No, he was in my house. He kicked the door.” She referred to a conversation with the police officer who attended the house following the incident. The officer had suggested that the person might have been Nathan Booth and Desi confirmed to the officer that it was Richard who had entered the house.
LD
LD was 15 years old at the time of the incident. In his evidence-in-chief interview he said prior to Tiam Fisher getting into the house “Like, all of them were kicking the door, and me and my mum was pushing it back.” He was asked how the others got into the house and said “Kicked the door down… And my little nephew was behind it.” He described the door being damaged and needing a whole new replacement door.
In cross-examination, he was asked when the door broke and said “The door broke when they kicked it in after we shut it.” He described it as being kicked open twice, the first time being when Tiam got through. He said that Tiam kicked it. He agreed that he did not physically see Tiam kicking the door. He subsequently said that Tiam probably pushed it. He then referred to “the kids” getting hit by the door by Richard. In cross‑examination he agreed that he did not know Richard. He said that his mother had showed him a photo and asked him if this was Richard and he said yes.
MD
MD was 16 years old at the time. She said that Tiam barged in when her mother was trying to close the door. She said “As soon they heard mum’s voice they ran around the side of the house to the front door, trying to kick – kick the door open, run through the door. She said “there was Richard at the door”. At the point where Tiam was in the house she said
Um, I was telling him to get out, because Tiam was trying to – Tiam – and – and Richard – that’s when Richard kicked the door open and [KD] was at the door. Richard then came around the corner and started screaming at Michael. They were both going to mob Michael, so I grabbed Tiam and I started pushing him out the door.…
In describing the overall narrative of events, she said “Ah, somewhere along the way, when the – Richard Booth booted the door open, he then hit my son. The – the door has hit my one-year-old son in the head.”
She was asked to describe her son being hit and said:
Um, he was near the door. Mum’s finally got the door locked and when Richard Booth kicked the door open it went flying and hit him in the head and he’s then fell over.
MD said that was the first time she had ever met Richard and that she only knew his name because her mum knows him.
In cross-examination, MD said she had seen him around but never met him. It was suggested to her that she made up this version of events involving Richard kicking in the door. She referred to her son being injured and having suffered for two years.
ND
ND was 13 years old the time. She gave evidence that Tiam had punched Michael Shannon and they started having a “little fight”. She said that was when her nephew came round the corner and the door flew open and hit him in the head. The transcript of her evidence-in-chief continued:
Did you see that?---Yes, and I saw - then when I looked at the door, it was Richard Booth.
What was Richard doing?---He was laughing.
Where was he? Where did you see him standing?---Right at the door.
Was there anyone in front of him?---No.
Anyone behind him?---Yes.
In cross-examination by counsel for the accused, the following questions and answers were given:
I am going to say something to you and you can say true or not true. Mum told you Richard’s name?---No, not true.
The person you have described as Richard - the person you named as Richard, can you describe him to us?---He’s tall and he has black hair.
If I say to you he had a beard is that true or not true?---I can’t remember.
If I say to you it was Deanne who kicked in the door? Is that true or not true?---Not true.
But you could not - it’s true that you could not see through the door?---Is it true?
Yes?---That I cannot see through the door?
Yes?---Yes, true. Like through the door?
When the door was kicked in---?---Yes.
- - - you could not see who was kicking it?---No, but I saw the person that was in front of the door.
So you assumed - you think - you thought that the person in front of the door must have been the person who kicked it?--- Yes.
But you don’t know that for a fact --- ?---No.
--- if that’s true or not. Nothing further.
Deanne Booth
Deanne gave evidence that Richard remained on the bus throughout. She denied seeing anyone banging or kicking on the door to open it. She said it never happened. When Deanne gave evidence, counsel for Richard did not suggest to her that she was the one who had kicked in the door.
Sergeant Lowrencev
When the sergeant arrived at the scene either Desi or MD told her that the door had been kicked in. She observed damage consistent with that complaint. She did not give evidence corroborating or contradicting the evidence of Desi that she had asked whether the person involved was Nathan Booth.
Submissions
Counsel for Mr Booth relied upon what he had said to the jury and made some further submissions. So far as the submissions to the jury were concerned, he submitted that the evidence of the Connors family should be given a “fairly high degree of scrutiny”. He identified that there was no mention of Richard kicking in the door in the 000 call and no mention in Sergeant Lowrencev’s notes. He referred to the varying estimates of the number of people involved and the absence of any reference to what happened to MD’s son during the telephone call with police. He submitted that Desi’s attention would have been elsewhere and that she possibly only identified Richard’s involvement when she subsequently saw him at the bus. He submitted that so far as LD’s, MD’s and ND’s evidence was concerned, there was a possibility of contamination as a result of Desi’s discussions with them. He pointed to the contrast between MD’s evidence that the person at the door had a beard and Deanne’s evidence that she had never seen him with a beard. He submitted that the observations of Mr Evans, a neighbour, involved more males being present than given in evidence. He submitted that the damage to the door could have occurred at any point in time not merely the point in time when there was evidence that Richard was in front of the door. He emphasised that the count was now not one of joint commission and hence Richard could not be held responsible for the actions of others in relation to the door.
Decision
I am satisfied beyond reasonable doubt that Richard was present at the door. He was identified by Desi who had known him for years. Her children had limited knowledge of Richard, although by the time they gave evidence, they described the person as Richard. Had the children’s evidence been the only evidence then I would have had a reasonable doubt about identification. However, I consider that Desi’s evidence is reliable and conclude that not only was he present but that he was present in the patio area as distinct from simply waiting on the bus. In reaching that conclusion, I reject Deanne’s evidence that he was only on the bus. Her evidence is inconsistent with there ever having been any kicking of the door which is contrary to the physical evidence and also contrary to the evidence of each of the residents of the house.
The next issue is whether or not it has been proven that Richard was the one that damaged the door. Although LD initially described that the door was kicked prior to Tiam having entered the house, he subsequently retreated from that evidence and said that it had been pushed. It is significant that after Tiam entered the premises the door was still able to be closed and locked, something that by the end of the incident could not occur. That is consistent with the damage having been inflicted after Tiam entered and before the door swung open to show Richard standing there. Each of the witnesses described there being kicking of the door. Each of the witnesses said that the person who was at the door as it opened was the person identified as Richard. Although there was some evidence from Mr Evans that there were “a number of” males, the only identified males present were Tiam and Richard. Although the residents of the house could not see the kicks being delivered, they drew the inference from Richard’s presence at the door that he was the one who damaged the door sufficiently to permit it to swing open. In my view, such an inference can be drawn beyond reasonable doubt. The suggestion that Deanne kicked in the door was not put to her. The evidence does not support that any other of the identified persons was in a position consistent with having damaged the door to a degree sufficient to cause it to fly open. It is more likely that the kicking of the door was done by a male than any of the females present. The possibility that some other unidentified person damaged the door is a possibility that, having regard to the evidence, can be excluded beyond reasonable doubt.
I am therefore satisfied beyond reasonable doubt of the following:
(a)the accused damaged the door other than by fire or explosive;
(b)the door belonged to someone else namely the ACT Government or the Commissioner of Housing;
(c)that the accused was reckless about destroying or damaging property; and
(d)the damage to the property did not exceed $5000.
The accused is therefore guilty on this charge.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24 November 2021 |
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