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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Busuttil

Details

AGLC: R v Busuttil [2006] SASC 47
Case: [2006] SASC 47
Decision Date: 20 February 2006

CaseChat Overview and Summary

The case of R v Busuttil involved the defendant, Anthony Busuttil, who was charged with wounding with intent to do grievous bodily harm and false imprisonment. The victim, Jason Gregg, claimed that Busuttil was the person who stabbed him multiple times at an address on Ross Street, Torrensville. The case hinged on the identification of Busuttil as the attacker by Gregg. The court had to determine whether the identification of Busuttil as the attacker was reliable, considering the circumstances of the identification and the passage of time between the incident and the recognition of Busuttil.

The primary legal issue before the court was whether the identification of Busuttil as the attacker by Gregg was reliable and sufficient to convict Busuttil beyond a reasonable doubt. The court had to consider the circumstances under which Gregg identified Busuttil, including whether Gregg was under the influence of alcohol and drugs at the time of the attack, the length of time between the attack and the identification, and the possibility of misidentification. The court also had to consider whether the identification in the police line-up was reliable and whether it was influenced by the earlier identification in the holding cells.

In delivering the judgment, the judge considered the circumstances of the identification and the potential for misidentification. The judge noted that Gregg had an opportunity to observe Busuttil during the attack and had a good opportunity to see him in the days preceding the attack. However, the judge also considered that Gregg was under the influence of alcohol and drugs at the time of the attack, which could have affected his ability to accurately identify Busuttil. The judge also noted that a substantial period of time elapsed between the attack and the first identification of Busuttil in the holding cells, and further time elapsed before the police line-up. The judge concluded that there was a reasonable doubt that Gregg had correctly identified Busuttil as his attacker, and thus acquitted Busuttil on both charges.

The court found that the accused was not guilty of both charges of wounding with intent to do grievous bodily harm and false imprisonment. The judge determined that there was a reasonable doubt that Gregg had correctly identified Busuttil as his attacker, given the circumstances of the identification and the potential for misidentification.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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