R v Carrasco (No 2)
[2022] ACTSC 49
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carrasco (No 2) |
Citation: | [2022] ACTSC 49 |
Hearing Date(s): | 15 and 16 March 2022 |
DecisionDate: | 17 March 2022 |
Before: | Berman AJ |
Decision: | Not guilty on the counts on the indictment and the transfer charge |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – Detaining a person for advantage (kidnapping) – in the alternative, making a demand accompanied by a threat – transfer charge of common assault – prosecution case reliant largely on the evidence of the complainant – reasonable doubt remained that the complainant’s evidence was reliable and accurate as to whether she was held against her will – not guilty on all counts |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 32(2), 38(B) |
Parties: | The Queen ( Crown) Samuel Carrasco ( Accused) |
Representation: | Counsel S Saikal-Skea ( Crown) E Chen ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number(s): | SCC 222 of 2022 SCC 223 of 2022 SCC 224 of 2022 |
BERMAN AJ:
Introduction
On 15 March 2022, the accused was arraigned on an indictment containing two counts in the alternative:
1. Detaining a person for advantage (kidnapping), contrary to s 38(b) of the Crimes Act 1900 (ACT) (CC2021/5241); and in the alternative
2. Making a demand accompanied by a threat, contrary to s 32(2) of the Crimes Act (SCCAN2021/148).
He pleaded not guilty to both counts.
He had previously elected to be tried by judge alone. Before the trial started, he produced an election signed by himself, and a certificate signed by his legal practitioner, Mr Chen, which stated that the practitioner had advised Mr Carrasco in relation to his election and that the election was made freely. The election and certificate had been filed in court before I was allocated the trial and so was within time. Accordingly, the question as to whether he is guilty or not of the two counts on the indictment is one that I will answer rather than a jury.
There is another charge I must determine too. Mr Carrasco faces a transfer charge of common assault (CC2021/5243) arising out of the same circumstances which have given rise to the charges on the indictment.
In this judgment I will refer to the person who the Crown says was the victim of the charges the accused faces as “the complainant”. I mean no disrespect to her by using such an impersonal appellation. I know what her name is of course, but I describe her the way I have in this judgment in order to protect her privacy.
Principles
My judgment must include the principles of law which I have applied and take any relevant warnings, directions, or comments into account in considering my verdict. I will therefore begin this judgment with a statement of basic principles which apply to all trials, whether a jury trial or a trial by judge alone.
The most fundamental direction is that it is for the Crown to prove the guilt of Mr Carrasco if it can. The accused does not have to prove that he is innocent, nor does he have to prove that he is not guilty. The onus of proof is on the Crown. Further, because what is alleged are criminal offences, the Crown must prove the accused’s guilt beyond reasonable doubt before I can return a verdict of guilty.
Mr Carrasco started the trial enjoying a presumption of innocence. He continues to enjoy that presumption even now. The only way in which the presumption of innocence is removed from him is if I am satisfied beyond reasonable doubt that he is guilty. If I have a reasonable doubt about his guilt, I must return a verdict of not guilty.
I have decided my verdict by examining the evidence presented to me in court. That evidence has consisted of the answers that witnesses gave in the witness box, the exhibits which were tendered, and two forms of evidence given by the complainant in this matter, namely the playing of a video-recorded interview with police as part of her evidence-in-chief, and the rest of her evidence given remotely. Those two forms of evidence are standard procedure in cases of this kind. Similarly, it is standard procedure for the complainant to have had a support person present when giving evidence. I have given her evidence no greater or lesser weight because it was given in the way it was, and I have certainly formed no adverse view of the accused because the evidence was given in that manner.
There was no evidence given or called by the accused. I will say something about the relevance of that. In fact, it would be more accurate to say that I will say something about the irrelevance of the fact that the accused neither gave evidence nor called any evidence in his case. As I have said already, the onus of proof is on the Crown. It is not for the accused to prove that he is innocent. It is not for the accused to prove that he is not guilty. It is for the Crown to prove his guilt if it can. Thus, the fact that the accused neither gave nor called evidence is not evidence against him. It cannot be used to make up any deficiencies there are in the Crown case or to fill any gaps that there may be in it.
There are a number of other things I have ignored. They include emotions such as sympathy and prejudice. The decision I have reached is based on a cold-hearted, unemotional analysis of the evidence presented in this trial. I have made no enquiry about any matter which has come up in the trial, relying solely on the evidence presented to me in court.
The complainant is a young woman who has some disabilities, as a result of having suffered a stroke. It is impossible not to feel sorry for her as a result of this unfortunate circumstance. But I am not asked who I feel sorry for. I am asked whether the Crown has proved the guilt of the accused beyond reasonable doubt, and in deciding that question, I have ignored any feelings of sympathy I have.
There was also evidence that, at the time of the events I will shortly describe, there was a warrant out for the arrest of the accused. That evidence was led by Mr Chen. The reason he did so will be made clear in a little while, but for now I only want to say that I have not used that evidence to suggest that the accused was a person who is more likely to have committed these offences than a person who did not have a warrant out for his arrest.
For reasons which will become obvious when I refer to the evidence in the trial, this is a case where the Crown relies almost exclusively on the evidence of a single witness, the complainant, to prove Mr Carrasco’s guilt. Because of the heavy burden of proof placed upon the Crown, I have examined the evidence of the complainant very carefully, and exercised caution, in order to decide whether her evidence satisfies me beyond reasonable doubt of Mr Carrasco’s guilt.
That the Crown bears the onus of proof beyond reasonable doubt has other consequences too. In this case, there is a dispute about some things, the resolution of which would have been aided by evidence which is now unavailable. For example, what were likely to have been relevant video recordings were not obtained and have now been overwritten. I must bear in mind that it is harder to be satisfied of the guilt of an accused person beyond reasonable doubt where the police have failed to obtain evidence which might have assisted me in assessing the honesty and accuracy of witnesses, in particular of course, the complainant in this matter.
Issues in dispute
I will now very briefly outline the issues in this trial. Although each count has a number of elements, there is no need to examine them in great detail because of the nature of the dispute which I must resolve.
The complainant said in her evidence that she travelled with the accused from location to location, being forced to remain with him against her will. Her evidence was that at one stage he held a sharp object against her neck, which he told her was a syringe containing ketamine.
The case for the accused is that there is material in the Crown case raising the possibility that the complainant, far from remaining with the accused against her will, was an active participant in a plot which they both hatched to blackmail the complainant’s mother. As far as the alternative count is concerned, it is the case for the accused that I would not be satisfied beyond reasonable doubt that the accused ever held a sharp object against the complainant’s neck.
Before I refer to any more of the evidence, I need to make it clear what this judgment is about. If I were to find the accused not guilty, that in no way suggests that I have found that the complainant was part of a plot to blackmail her mother. Finding the accused not guilty because it is reasonably possible that the complainant was not held against her will, has very little to say about whether the complainant was involved in some criminal conspiracy to illegally obtain money from her mother. A verdict of not guilty would not entitle anyone reading such a judgment to conclude that the complainant acted dishonourably or illegally as far as her mother is concerned.
The most important witness for the Crown was of course the complainant. Her evidence was that for a few months leading up to 16 May 2021, she was in an intimate relationship with the accused, but had decided to break up with him. She said, and her mother gave evidence supporting this, that two nights earlier the two of them, together with the complainant’s father, went to the accused’s home in Ainslie Village where the complainant told the accused their relationship was over, her father collected some of her belongings from the accused’s home, and they then left.
On 16 May 2021 at about 7:30pm the complainant went back to the accused’s home. She was driving her specially modified car, it being modified because of the disability to which I earlier referred. She picked up the accused and they went to the Australian War Memorial in Campbell.
When the complainant indicated that she wanted to take the accused home, and began reversing her car, the accused put it into park before demanding that she drive to Telstra Tower. It was the complainant’s evidence, and the Crown case, that from that moment she felt unable to leave the accused’s company and was being effectively held against her will.
When they got close to the top of Black Mountain, they parked on a gravel patch. The accused demanded that she drive him to Yass so that he could get $5000. The complainant refused to go that far out of Canberra. It was at this stage that the complainant said that the accused held something sharp against her neck. She did not know what it was but could feel something sharp. The accused told her that it was a syringe containing ketamine. He said that he could put her to sleep and drive himself to Yass.
For reasons which were never made terribly clear, they then drove to a BP service station in Queanbeyan. It is here that some events occurred which Mr Chen for the accused places great reliance on. The complainant left the car while the accused remained in it. She went inside the service station and used the disabled toilet. Her evidence was that she was not allowed by the accused to take her phone with her and that if she sought help from the attendant, Mr Carrasco would make up allegations against her which would see her go to jail. She bought two cans of Coca-Cola because she was thirsty and returned to the car.
She then drove the two of them back to a location near Canberra airport, parking by the side of the road.
It was the complainant’s evidence that the accused then used her mobile phone to send a number of messages to the complainant’s mother which suggested that the complainant and the accused had been kidnapped and a ransom of $5000 had to be paid before they could be released. Those messages are in evidence. The complainant said that while the accused typed most of the messages, she typed some of them because he was dictating to her what to say, and that she typed some others using her own words because she was trying to ask her mother for help.
Despite the messages suggesting to the complainant’s mother that she should not call the police she, very sensibly, rang 000. Police were able to determine the position of the complainant’s mobile phone and a number of police officers went to that location where they found the accused and the complainant. Two of those police officers gave evidence as to what occurred. They both said that the complainant was showing obvious signs of distress, crying, stuttering and, until she calmed down, was incoherent.
A family violence evidence-in-chief video was recorded about an hour after the police arrived. The complainant was still exhibiting signs of distress in that video.
The accused was arrested, with body-worn camera footage revealing some of his interactions with police.
The ultimate issue for me to resolve is whether I am satisfied beyond reasonable doubt that the complainant’s evidence is both reliable and accurate when she says that she was held against her will. If it is a reasonable possibility that this was not the case, then I would find the accused not guilty on count one on the indictment. Although count two is a separate allegation, if I were to find the accused not guilty on count one because I was not satisfied beyond reasonable doubt that I could rely on the complainant’s evidence in relation to that count, I would have to take into consideration how that finding affected my assessment of her credibility regarding count two.
The complainant’s evidence
The credibility of witnesses other than the complainant was not challenged in any way. In assessing the credibility of the complainant, I have largely ignored her demeanour when she was giving evidence. There was nothing in the way in which she behaved when giving evidence which would suggest that she was being untruthful. Her evidence was given in a calm and apparently thoughtful manner. When she was asked to explain things which were, on the face of them perhaps difficult to understand, she either did so, or accepted that she had no explanation to offer.
Judges, especially of recent times, have become quite sceptical of their abilities to tell whether someone is lying from the way they behave in the witness box. I have little confidence that I am able to tell from a witnesses’ demeanour much about their credibility. Certainly, there have been some memorable occasions when extreme behaviour, which can only be explained by the fact that the witness is lying, has led me to form an adverse view of their credibility, but such occasions are very few indeed.
Instead of focusing on the appearance of the complainant as she gave her evidence, I prefer to examine the reliability of her evidence by comparing how it relates to my understanding of human behaviour. Again, I have to qualify what I am about to say. I fully accept that the range of human responses to threats is almost infinite, and that people, especially when under stress, do not always act logically. The complainant herself referred to that, when she gave evidence that her “brain was just going all over the place that night”. That said, there are, however, a number of features of the complainant’s evidence which are worthy of note.
Failure to seek help
I will start with the most obvious – the complainant’s failure to seek help from the service station attendant when she was a significant distance away from the accused.
It was the complainant’s evidence that she had her reasons for not asking for help, but before we get to them, I would like to examine the situation from the point of view of the accused. As I have already mentioned, there was evidence given that as at 16 May 2021 there was a warrant out for his arrest and that the complainant knew about this. Thus, even if the accused thought that he was safe from being arrested because no one would believe that he had threatened the complainant, he would have known that the mere fact that she could tell police where he was, would see him arrested. That he would, as the complainant’s evidence was, allow her to leave his company to use the toilet and buy some Coca-Cola suggests either complete confidence in the efficacy of his threats, or that he had not made such threats at all, and that the complainant would have no reason to alert the police of his whereabouts.
Next, I will look at it from the complainant’s point of view. When asked to explain why she did not seek help from the console operator, she referred to being afraid that he might hurt her, the threats he had made to make false allegations against her, and that she did not want him to drive off with her car because of its importance to her, especially in her case because it is the only one she is legally allowed to drive. These are all good reasons, but they have to be balanced against what the complainant said had already happened to her, namely that the accused had threatened to inject her with ketamine using a syringe. And once again it is also important to recall that the complainant knew that there was a warrant out for his arrest. She could have asked the attendant to lock the doors and call police. She could have asked the attendant to call police once she had left and got back into the car. She could have been very confident that especially the former of those two things would have ensured her safety that evening.
It was the complainant’s evidence that she did not have her phone with her when she went to the toilet because the accused snatched it from her when she went to take it. She said that if she had the phone with her in the toilet, she would have used it to try and get help. There is of course a difficulty in reconciling that evidence with her other evidence that she did not ask the console operator for help. Why would the complainant have sought help using her phone, but not sought help from the console operator? When she was given the opportunity to explain why she treated calling for help from her phone differently from getting help from the console operator, she could not do so.
I return to one aspect of the complainant’s explanation for not seeking help from the console operator, that being that she was afraid that the accused would make false allegations of theft and stalking against her which would see her go to jail. I am not going to be too critical of a person who takes such threats seriously, even in the absence of having done anything wrong. However, the complainant’s evidence does not explain why these fears of going to jail based on false allegations if she were to tell someone what the accused was doing, no longer operated on her mind when police found her and the accused near Canberra airport following her mother’s 000 call. If she did not seek help from the console operator when she was not in the company of the accused because she was afraid that he would make false allegations against her, why did she make complaints about criminal conduct of the accused to police a short time later? No explanation was offered for why the complainant apparently thought anything different about those threats when police arrived, from what she thought about them when she was alone with the console operator.
SMS messages to the complainant’s mother
There are a couple of aspects of the SMS messages sent to the complainant’s mother which are worthy of note as well. As already mentioned, the complainant’s evidence was that she typed some of the messages while the accused typed others. It was never made clear why the accused would need to get her to type some of the SMS messages rather than simply doing it himself. And some of the messages typed by the complainant, which she says were an attempt to get help from her mother, are more consistent with her wanting to get her mother to pay a ransom. Thus, the first message which the complainant says she typed - “please mummy” - comes after a message which reads
I need money. I am in trouble, Sam borrowed money of (sic) some serious people and they are not going to let me go because I was with him when he got it I can’t go they won’t let me call you.
Read in context, the next message which the complainant says she sent, “please mummy” is more consistent with a plea for money than with a plea for the complainant to be helped to get away from the accused. Texting “please mummy” in an attempt to get help regarding the accused makes no sense without some information suggesting how her mother could have helped the complainant.
A similar thing can be said about the next text message typed by the complainant. It comes after these messages:
“Your daughters drug fucked boyfriend owes me 5 thousand they were both there when he took my money they both aren’t leaving untill (sic) we sort this matter out it would be wise to leave the police out of it”
and “This is not a joke”.
That is the context in which the complainant then types “Mummy please I’m scared”. Once again, that message is more consistent with the complainant’s desire to get her mother to cooperate with the paying of a ransom than with a desire to have her mother assist her escape from the accused.
Another of the messages typed by the complainant reads “they are going to take my phone soon they already got rid of his”. The reference to “they” is clearly designed to suggest to the complainant’s mother that there were people threatening her and the accused. Thus, the complainant typed something she knew to be false. There were never, on any version of events, people threatening them. The complainant’s explanation as to why she typed a falsity was that she simply typed what the accused dictated which raises the unanswered question as to why the accused would have not simply done it himself.
Another message is of note. It tells the complainant’s mother that she should deposit the ransom in either the accused’s bank account or the complainant’s bank account. If these messages were sent as part of a plan cooked up by the accused alone, without any involvement by the complainant, one might have thought that he would be keen to see the money go into his bank account rather than suggest that it did not matter to him whether the money went into his bank account or the complainant’s. Clearly, whatever the relationship between the complainant and the accused, if the complainant was not part of the scheme to get money from her mother, it would make more sense for the accused to have the money put into his bank account.
No sharp object was recovered
Another aspect of the evidence worthy of comment is that there was never any needle, or any other sharp object found when police searched the complainant’s car. After the accused was arrested, he told police, and this is audible on the body-worn camera footage, that they would find no sharps in the car, and that they are not going to find a needle in the car. What he said was proved to be correct. There was never any object found in the car which would satisfy the description of the object the complainant said was held against her neck earlier on. The Crown argued that the accused could have discarded the object as the car travelled from Canberra to Queanbeyan and back again. That is of course a possibility, but the question arises as to why the accused would do that in circumstances where it was not until the police arrived unexpectedly that he would have any reason to get rid of the object, and by that time it was too late.
The complainant’s conduct when police arrived
Mr Chen relies on some of the complainant’s conduct after the accused was arrested. On the body-worn camera video recording, and on the complainant’s evidence, after the accused was arrested, he asked police whether he could have a cigarette. Police officers asked the complainant whether she was prepared to supply the accused with cigarettes. She did so, giving the police two cigarettes to give to the accused. Mr Chen says that this is behaviour which is inconsistent with what you would expect from a woman who had just spent considerable time with a man who was detaining her and who had not that long ago threatened to inject her with ketamine. I regard this evidence as neutral. There are many explanations for someone in the position the complainant says she was in having supplied cigarettes, via the police, to someone who had just kidnapped and assaulted her. Giving the accused two cigarettes is a very minor act of generosity and one which may simply arise from force of habit.
There is more force in another aspect of the complainant’s conduct as police arrived at the location where the accused was arrested. It was the complainant’s evidence that when the police car drove up the road, she was standing outside the car. Rather than taking the opportunity to avoid any further contact with the accused, her evidence was that she got back in the car to have a drink of Coca-Cola before getting out again and speaking to police. Again, people do not always act logically. However, it is of note that by getting back in the car, the complainant exposed herself to the possibility that the accused would make threats towards her, perhaps threats to remain silent, at the very time the accused is aware that police are arriving. There was no good explanation offered as to why the complainant would do that when her evidence was that she was in fear of the accused.
Alleged inconsistencies
As well as the above circumstances, Mr Chen relied on what he said were many inconsistencies in the complainant’s evidence. On analysis, some of the matters he raised turned out not to be inconsistencies, but more fundamentally, they were of such inconsequence that I found them of no assistance at all in assessing the credibility of the complainant. People do not always recount an event in the same way. People do not even always remember an event in the same way each time. Whether, for example, the complainant said that the accused used his right hand on one occasion and his left hand on another occasion says very little about whether the complainant was being truthful or not.
The complainant’s relationship with her mother
Of course, there is evidence on which the Crown is entitled to rely. The evidence is that the complainant and her mother have a close and loving relationship. The complainant was living with her mother at the time of these events and called upon her for support when she wished to break up with the accused. Because of the complainant’s disabilities, she relies upon her mother, who is her full-time carer. As far as I could tell, they seem to have genuine affection for each other and there is no evidence that the complainant had any concerns about the way in which her mother managed her finances. The relationship between them indicates the unlikelihood of the complainant acting in the way suggested to her in cross-examination, that is, to defraud her mother by pretending to be in a position of great peril. That is certainly a factor on which the Crown is entitled to rely, and I have taken it into account.
On the other hand, the accused is not required to put forward a motive for the complainant to have done what it was suggested she had done, namely participate in a scheme to unlawfully obtain money from her mother. An absence of proof of motive to have done so is not the same as proof that there was no such motive. The accused cannot be held responsible for failing to see into the mind of the complainant and discover whatever motivation there might be there for acting in such a way.
The complainant’s distress and complaint to police
Another factor the Crown relies on is the distress exhibited by the complainant when police arrived. I have already referred to this evidence. That the complainant would be exhibiting such obvious signs of distress is much more consistent with the Crown case than the case advanced on behalf of the accused. Mr Chen suggests that the complainant was distressed because the arrival of police meant that the plan to pretend that they had been kidnapped, a plan that she and the accused had cooked up together, was revealed to have been a fabrication. That is a possible explanation, but even so I regard the way the complainant appeared to police as being a matter pointing towards the guilt of the accused.
The Crown is also entitled to rely on early complaint to police. On the defence case, the complainant has come up with this false version of events in order to exculpate herself from being involved with the accused in a criminal plan to obtain money from her mother. The likelihood of that happening has to be assessed in view of the fact that the complainant would have had but moments to fabricate these false allegations after the police arrived unexpectedly at the scene.
Consideration
In order to prove the guilt of the accused on count one on the indictment, it is an essential element that the Crown prove beyond reasonable doubt that the accused detained the complainant. The evidence to establish that element comes almost exclusively from the complainant and I remind myself that I must examine her evidence carefully in order to satisfy myself that I can rely on it to the high standard required in a criminal trial.
Count two was an alternative to count one, but once again the evidence to establish that the accused made a demand of her comes almost exclusively from the complainant.
Although, technically, I could find the accused not guilty on count two but guilty on the transfer charge of common assault, the Crown accepts that in the circumstances of this case, where the credibility of the complainant is central, an acquittal on count two would necessarily lead to an acquittal on the transfer charge.
To summarise, before I can convict the accused on any of the charges before me, I have to be satisfied beyond reasonable doubt that the complainant has given an accurate account of the events of 16 May 2021. There are some matters that the Crown is entitled to rely on, in particular the distress exhibited by the complainant when the police turned up, and the evidence of both the complainant and her mother that there was never any issue between them regarding the complainant’s mother’s management of the complainant’s finances. Further, there are possible explanations for the puzzling aspects of the complainant’s behaviour that night.
But this is a criminal trial and it is not enough for me to find that those explanations are possible before I can convict the accused. In the circumstances of this case, in order to find the accused guilty I would have to be satisfied beyond reasonable doubt that those puzzling aspects of the complainant’s behaviour are satisfactorily explained in a way which is consistent with the accused’s guilt.
I am unable to do that. This is not a case where there were only one or two aspects of the complainant’s behaviour which are inconsistent with the accused’s guilt.
Even though there is evidence pointing towards the guilt of the accused, and support for the complainant’s account to be found in some parts of the evidence, it remains the case that even making allowances for the vagaries of human behaviour, many things that the complainant did that evening are inconsistent with her evidence being reliable.
Conclusion
For these reasons, the order of the Court is:
1. I find the accused not guilty on count one (CC2021/5241), not guilty on count two (SCCAN2021/138), and not guilty on the transfer charge (CAN2021/5243).
2. I list the matter before the Registrar at 9am on Thursday 24 March for a sentencing date for the blackmail charge (CC2021/5242) to which he has pleaded guilty.
3. I remand Mr Carrasco in custody until Thursday, 24 March 2022.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman Associate: Date: 22 March 2022 |
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