R v Busuttil - [2006] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUSUTTIL
Criminal Trial by Judge Alone
Reasons for the Verdict of The Honourable Justice Anderson
20 February 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
Trial by Judge alone - accused charged with wounding with intent to do grievous bodily harm and false imprisonment - victim purported to recognise accused as offender when in holding cells at the Adelaide Magistrates Court with the victim - accused later requested a police line-up - accused identified in police line-up by victim - victim affected by drugs and alcohol at the time of the stabbing - a substantial period of time elapsed between incident and first identification - identification / recognition direction necessary - Held: accused not guilty of both charges - a reasonable doubt remained that the accused had not been correctly identified.
Criminal Law Consolidation Act 1935 s 21, s 24, referred to.

R v BUSUTTIL
[2006] SASC 47
Trial by Judge Alone
ANDERSON J
Background

The accused is charged on information with wounding with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935. He is also charged with the common law offence of false imprisonment.
The particulars are, first, that the accused unlawfully and maliciously wounded Jason Leslie Gregg with intent to do him grievous bodily harm, and secondly, that he unlawfully imprisoned Jason Leslie Gregg and detained him against his will.
An earlier information had also charged the accused with attempted murder. That earlier information was replaced when the trial commenced before me by the information containing the details set out above.
The accused pleaded not guilty to both charges, and the trial proceeded by Judge alone. The accused was advised by his solicitors and counsel of his rights to a trial by jury and I was satisfied that he had been properly advised and that in the circumstances, set out in his application, the election he made was appropriate. The trial concluded after two days when I adjourned to consider my verdict.
The Prosecution Case
The prosecution called three witnesses to give evidence, and tendered by consent statements from other witnesses. The victim, Jason Leslie Gregg, was a Crown witness, as were two police officers. Mr Pickburn was a crime scene investigator who took a series of photographs at 3 Ross Street, Torrensville and 23 Leicester Street, West Richmond. The other, a Detective Rawe, conducted a video interview of the accused.
In addition, statements were tendered by consent from the following witnesses: Mr Bob Dundas Wright, Dr Craig Jurisevic, Mr Shaun Thomas Osborn, and Mr Willem Wayne Overmeyer.
Mr Wright is a supervisor at Global Solutions Custodial Services Pty Ltd. Annexed to his statement were records and Prisoner Log records which showed Anthony Busuttil and Jason Gregg having been held together in the Adelaide Magistrates Court Cells on 5 December 2003.
Dr Craig Jurisevic’s statement included a description of the wounds suffered by Jason Gregg as were examined at the Royal Adelaide Hospital.
Mr Overmeyer conducted the formal identification parade on Wednesday 10 November 2004.
Mr Osborn was present at the Sturt Police Centre when the formal identification parade was conducted on Wednesday 10 November 2004. He was responsible for the video recording of the parade.
The Defence Case
The accused elected not to give evidence before me. The defence called two witnesses being the accused’s sister, Ms Jennifer Hall, and also a Mr Robert Lee. She testified to the fact that Mr Busuttil is known to everyone as “Buzzy”, including her family. She also testified to the fact that Mr Busuttil is left-handed.
Mr Lee was subpoenaed to give evidence. It was alleged by the prosecution that he was at 3 Ross Street on the night of the stabbing. He gave evidence about an incident when there was a verbal altercation but denied any stabbing took place in his presence.
Facts Surrounding the Incident
The prosecution alleged that on 30 March 2003 at Ross Street, Torrensville, the accused stabbed Jason Gregg many times. It is alleged that the accused was known to Gregg in that they had both been present in the house at 3 Ross Street, Torrensville, during the two weeks leading up to the incident. Mr Gregg gave evidence that he had no doubt that it was the accused who stabbed him.
He told the police the man who stabbed him went by the name “Shannon” but he did not know his surname. He also gave the police a description of the person who stabbed him. He said he had seen this man at Ross Street during the course of the previous two weeks.
By coincidence, some nine months later both the accused and Gregg were in a holding cell in the Magistrates Court whilst on remand for different matters. It is here that Gregg says that he immediately recognised the accused as the individual who stabbed him. He said that the accused did not appear to recognise him.
On returning to the prison after his court appearance, Gregg informed his solicitor who in turn informed the detectives involved, that he had recognised his attacker in the cell. It transpired that the person’s name was Anthony Busuttil.
Busuttil was serving a sentence of imprisonment and was an inmate in the Port Augusta Prison. He was transferred from the prison to the Port Augusta Police Station and interviewed about the incident on 14 May 2004. I saw the video recording of that interview and it was tendered as Exhibit P6. The accused denied all knowledge of the events of 30 March but did acknowledge that he had some contact with that address at Ross Street, Torrensville. He also acknowledged that he knew the person who occupied that house as Deb.
Following his interview Busuttil was arrested and charged.
Later, his solicitor requested a line-up which took place on Wednesday 10 November 2004. I saw the video recording of the line-up where Gregg identified the accused apparently without hesitation. It is agreed that the line-up was properly conducted.
The events of the evening of 30 March are not entirely clear. Mr Gregg is certain that the accused is the man who stabbed him. He told me in examination-in-chief that he would never forget the face of someone who had stabbed him 13 times. However, it must be borne in mind that Mr Gregg, at the time he was stabbed, had been drinking throughout the day beginning with a bottle of port in the morning before proceeding to smoke a not insubstantial amount of cannabis. There remains the possibility that his ability to recognise the individual who stabbed him was compromised.
Recognition Evidence
The weight to be given to the different pieces of recognition evidence depend on the circumstances which surround the recognition itself. There were 4 different instances where Mr Gregg claims that he saw the attacker. The first two instances are linked, by location and time, as distinct from the other two opportunities, which occurred separately at later dates.
Mr Gregg testified to having seen and become familiar with the appearance of the man who attacked him in and around the house at 3 Ross Street Torrensville in the days preceding the attack. Mr Gregg had a good opportunity to observe the attacker during the attack itself. After the attack a substantial period of time elapsed, namely some 9 months, before Mr Gregg recognised Mr Busuttil as his attacker while in the holding cells of the Adelaide Magistrates Court. Then a period of 11 months elapsed before the line up where Mr Busuttil was again recognised by Mr Gregg as the attacker.
When considering the evidence given by Mr Gregg I must consider the nature of the observations and the surrounding circumstances. Although there is little doubt that Jason Gregg got an adequate look at his attacker, there remains the problem that on the night of the attack he was affected by both drugs and alcohol, which has the potential to affect a person’s recollection of the events.
Further, there was a significant period of time that elapsed between the attack and the recognition/identification of the accused for the first time in the Adelaide Magistrates holding cells and the later police identification parade.
In addition there is a real possibility that if the victim was mistaken in his recognition of the accused in the cells then that mistake could have been perpetuated in the line-up.
The ability to form and retain an accurate impression of an attacker including his physical features can be affected by a number of factors including the passage of time. This may result in a tendency to reconstruct events in a persons mind or to dilute the clarity of their memory.
On this basis I will need to consider whether there is a reasonable doubt in my mind that Mr Gregg may be mistaken in his recognition of Mr Busuttil as his attacker.
Mr Gregg says that present at the house at Ross Street, Torrensville, at the time in question was Deb, himself, the accused, Mr Rob Lee, and someone who was also known as Rob.
He said there was an argument in that he was accused by the person he said he recognised as Mr Busuttil of stealing something. He said that following this suggestion, the accused and Rob left in a motor vehicle but returned shortly thereafter. The accused then confronted him with a knife and stabbed him some 13 times in various parts of his body. He said that the other person, Rob Lee, although he was present, did not play a major part in the assault as such.
After he had been stabbed and kicked, he said that his legs were chained together and a padlock was applied to secure the chain shut. He said this was done by both the person he identified as the accused, and Rob. He said he was then transported in a vehicle by both those men and dumped on the front lawn of his girlfriend’s house. His girlfriend was not called to give evidence and there was evidence that her whereabouts was unknown.
“Shannon”
As I have indicated, Mr Gregg gave a description of his attacker to the police. He described the person whom he knew as Shannon as being between 29 and 31 years of age, a New Zealander in appearance, with a very slight accent. He said that he had black curly hair about two and a half inches long all over his head. He was clean shaven and about 178 cm tall. He described him as having a very skinny build. He described his eyes as “peaking out, stressing out”, and in his evidence his attributed that to the taking of methylamphetamine regularly.
Mr Robert Lee who, at the trial, was himself in custody, was called by the defence as someone who knew the accused “on the outside”. He said that he has never heard anyone call the accused anything else but Buzzy. He said he has known him for six or seven years. He also testified that he knew another person called Shannon. Shannon was a partner-in-crime of Mr Lee. He described Shannon as five feet nine inches tall, having a similar build to himself which he agreed was not skinny. He said he had curly black hair, a Maori accent, and that he was dark-skinned.
Ms Jennifer Hall, the accused’s sister, gave evidence that she has never known anyone to call her brother by any name other than Buzzy. Both Mr Lee and Ms Hall denied any knowledge of ever having heard the accused being called Shannon.
The Elements to be Proved
The accused is charged with wounding with intent to do grievous bodily harm under s 21 of the Criminal Law Consolidation Act. To be convicted of the offence of wounding with intent to cause grievous bodily harm, the following elements must be proved:
1.     The accused wounded the victim;
2.     The accused inflicted the wound unlawfully;
3.     The accused inflicted the wound maliciously; and
4.The accused inflicted the wound intending to cause grievous bodily harm.
There is little doubt that it has been established that whoever stabbed Mr Gregg did so unlawfully and maliciously and with the intention to cause grievous bodily harm. The injuries are described in a statement from Dr Jurisevic which was tendered by consent. They include multiple stab wounds on the anterior and posterior chest wall and to his left hand. In particular, the stab wound to his back punctured his lung.
Despite the serious injuries and the life-threatening aspect of one of them for a short period of time, Mr Gregg recovered well and was discharged from hospital within a few days.
False Imprisonment
False imprisonment at common law is a misdemeanour. To prove the charge of common law false imprisonment it must be proven that:
1.The accused acted on the occasion in question by compelling the victim to remain in a particular place without his consent and against his will;
2.That the restraint was deliberate and that the accused intended to restrain the victim from leaving; and
3.That the accused had no lawful excuse for his conduct.
If the evidence of Jason Gregg is accepted as to what happened to him during and after the incident, then the elements of the offence have been proven. However, the problem still remains as to whether the identity of the person who falsely imprisoned Mr Gregg has been proven beyond reasonable doubt.
The Real Issue in the Case
This matter comes down very simply to whether it has been proved that it was the accused who stabbed and falsely imprisoned Mr Gregg. I find that the essential elements of the offences have been made out beyond reasonable doubt apart from the issue of identity. I direct myself that if there is any reasonable doubt about that then I must acquit the accused.
It is important to note that Mr Lee’s description of Shannon is similar to the one given by Mr Gregg in his statement to the police. On the evidence before me, Mr Busuttil has never been known by the name of Shannon to anyone but Mr Gregg. Whilst I have considerable misgivings about the evidence of Mr Lee in respect to his description of what happened at the scene, I find his evidence in relation to the accused’s various names to be plausible. That evidence is supported by the evidence of the accused’s sister. I accept her evidence.
On the evidence it is possible that there is a man known as Shannon who was at 3 Ross Street, Torrensville, on the night of the stabbing. It seems there was some form of altercation on Mr Lee’s evidence, albeit only verbal, between the person he described as Shannon and Mr Gregg, involving some stolen goods. This is consistent with the evidence given by Mr Gregg. In addition, Mr Lee testified that Mr Busuttil was not present on this night.
I am mindful of the fact that Mr Gregg would have been seriously affected by his alcohol consumption during a large part of that day starting in the early morning, and also by his consumption of cannabis.
Another point creating doubt is that Mr Gregg testified that he was certain that the person Shannon who stabbed him was right-handed. I am satisfied that the accused is left-handed. This evidence comes from his sister and I accept that evidence. Whilst it is not impossible that the cuts on Mr Gregg’s left hand were caused by someone who was stabbing with the left hand, it is more likely that the person who stabbed him was left-handed.
The certainty of Mr Gregg as to the offender being right-handed means that he is either wrong about the offender’s identity or he is wrong about the way the accused wielded the knife.
Finally, Mr Gregg in examination-in-chief, testified that he would “never forget the face of the person who stabbed (him) 13 times”. However, in the statement by Dr Craig Jurisevic dated 2 February 2006, which was tendered by the prosecution by consent, Dr Jurisevic states that when Jason Gregg presented at the Royal Adelaide Hospital in the early hours of 30 March 2003 he was suffering from five stab wounds.
This inconsistency, although perhaps explicable by natural embellishment, illustrates the fact that Mr Gregg’s memory of the events may be affected by the period of time that has since passed, the alcohol and cannabis he consumed, or a combination of both.
Conclusions
For all these reasons I find that it has not been proven beyond reasonable doubt that it was the accused who stabbed Mr Gregg and then imprisoned him. The verdict is not guilty on both counts.