R v Christiansz
[2015] VSC 114
•17 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 0094 of 2014
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH GEORGE CHRISTIANSZ |
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Ruling No 2
JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2015 |
DATE OF RULING: | 17 March 2015 |
CASE MAY BE CITED AS: | R v Christiansz |
MEDIUM NEUTRAL CITATION: | [2015] VSC 114 (Ruling No.2) |
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No case to answer – ruling – consideration of authorities.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson | Office of Public Prosecutions |
| For the Accused | Ms C Randazzo SC | Melasecca, Zayler & Kelly Barristers and Solicitors |
HER HONOUR:
In this trial the accused Joseph Christiansz has been charged with a number of offences, being four charges of common assault relating to four different police officers, one charge of using a firearm to resist arrest, and one charge of attempted murder of Sean Raab, a sergeant of police. The charge of common assault of Sean Raab is an alternative to the charge of attempted murder. The charges arise out of the arrest of the accused at a car park at Etihad stadium, 100 The Esplanade, Docklands, on 12 November 2012 at around 3.00 pm.
The accused has pleaded not guilty to the charges, the Crown case is complete and a submission of no case to answer has been made in relation to the charge of attempted murder only. The application is made pursuant to s 229 of the Criminal Procedure Act 2009. Quite appropriately there has been no application made in respect of any of the other charges on the indictment, as it is clear that there is ample evidence available for a jury to consider and determine those charges.
The Crown have relied upon a decision of Lasry J,[1] which reviewed the authorities relating to the determination of this issue, in particular, the decision of the High Court in R v Doney.[2] In that case the court confirmed the decision in Attorney-General’s Reference (No. 1 of 1983),[3] and rejected the submission that a trial judge could stop the trial if, in his or her opinion, a verdict of guilt would be unsafe or unsatisfactory. A decision, based upon a view that the case against the accused is unsafe and unsatisfactory, now rests exclusively with the Court of Appeal.
[1]DPP v Lawson and ors (Ruling No.3)[2012] VSC 526.
[2](1990) 171 CLR 207.
[3](1983) 2 VR 410.
In Doney the test was stated in the following terms:[4]
It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest it will not sustain a verdict of guilty.
[4]R v Doney (1990) 171 CLR 207.
As King CJ said in Case Stated by Director of Public Prosecutions (No. 2 of 1993):[5]
If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting such a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[5](1993) 70 A Crim R 323 at pages 326-7.
Lasry J concluded his examination of the authorities by stating:[6]
What I am concerned with in hearing these submissions is whether there is direct evidence, even if tenuous or inherently weak, which can be taken into account by the jury to support a verdict of guilty. The fact that a reasonable hypothesis consistent with innocence can be formulated does not mean that there is no case for the accused to answer; the question is whether, to the reasonable mind, inferences of guilt are reasonably open. Whether a verdict of guilty could be later set aside by the Court of Appeal as unsafe is not part of my concern in determining these issues.
[6]DPP v Lawson and ors (Ruling No.3)[2012] VSC 526 [6].
As indicated this application relates only to the charge of attempted murder, and it is necessary to state the elements of that offence. This is an offence of attempting to murder a person, and the elements of the offence of murder are clear, and adopted for the purpose of consideration of this offence – they are, first - that the accused attempted to cause the victim’s death; and second - that the acts which were done in the attempt to cause the victim’s death were conscious, voluntary and deliberate; and third - the acts were done with the intention of killing the victim; and finally that the acts were done without lawful justification or excuse.
In relation to the aspect of attempt, the accused must do something that is more than mere preparation for the commission of that offence, and immediately and not remotely connected with the offence being committed.
In the case that Lasry J was considering, the no case submission was based upon the argument that the crown were unable to satisfy the element of causation in terms of the death of the victim being attributable to the conduct of the accused. His Honour found that there was evidence in the trial that was capable of allowing the jury to determine this issue. He said:[7]
The only question that I have to determine is whether there is evidence which would leave it open to the jury to conclude that the acts of the accused Lawson in the putting of the deceased to the floor and his subsequent restraint face down into the floor caused the death of Dunning.
The accused may be liable for “causing” a result even if his or her conduct was the direct or immediate cause of that result and the accused does not need to be the sole cause of the result, in this case, death. A person can be criminally liable for something that has multiple causes even if he or she is not responsible for all those causes. It will be necessary for the jury to determine which of the accused’s acts caused the death of Mr Dunning if they are satisfied that they did.
The evidence indicates that until the deceased man was brought to the ground he was not suffering the effect of any medical emergency. It is clearly open to the jury to conclude that the medical emergency that did befall occurred as a result of him being put to the ground and what occurred thereafter. Dr Woodford ascribed the mechanisms of cardio-respiratory event which enables that conclusion.
[7]DPP v Lawson and ors (Ruling No.3)[2012] VSC 526 [27], [28], [29].
In this case, taking the evidence of the Crown at its highest, that evidence is that the accused, whilst in the process of being spoken to by the police, initially pulled out a handgun from the front of his clothing. Two officers were present at the time that this occurred, he has, in pulling the firearm out, brought his arm around in such a manner that the firearm has, on its way through to the position of being held out in front of him with a totally straight arm, briefly been pointed at the police officer Normoyle, and then become stationary pointing directly at the face of Sergeant Raab, who was a distance of approximately two metres away from him, and facing towards him.
The evidence from Sergeant Raab from that point relating to the charge of attempted murder is:[8]
[8]Transcript of 18/03/15 page 178- 184 (irrelevant material deleted).
Raab:So I pull it out like this [police lanyard] and as he looked at it, I said, "Police, mate. We need to have a chat." And it was literally just like that.
Question: Right?---
Raab:Um so he then looks - as soon as I say that, he scre - he starts screaming and he's going - uh sorry. He went, "No, no, no," you know like ext – obviously screaming really loud. At the time that he was doing that, he begins running backwards in a direction to what would've been my left…
…
Question: So he start - when you say he runs back - does he turn and run does he run backwards, does he run sideways, what exactly ‑ ‑ ‑ ?
Raab:The best way I can explain the way he was running, was almost like a training - a football training jog. You know, if you've seen the - the run that the footballer's do, where they twist their body, you know, like this, when they're running sideways, he essentially was doing that, but he was running - he was running back - but at the same time, put his hand down the front of his pants.
…
Raab: ---All right. So, he - so as soon as I - he screams out "No, no, no" he runs like that. So his body's twisted, he's still facing - he's got his hand down the front of his jeans - sorry he's got his hand down the - he's got his hand down the front of his jeans at the time, and I then commence running after him. He then ‑ ‑ ‑
...
Raab:---it would have only taken - he would have only taken three, maybe four steps at that time, and then he stopped dead. I closed the gap and I would have been six feet - six feet away from him.
Question: So he stopped dead?
Raab: ---Yeah he stopped dead in his tracks, but now facing me.
Question: So he's stopped being on his side, turned round and he's facing you squarely?
Raab: ---It's a soon as he got his hand down his pants, he stopped. So he had his hands down his pants as he was running.
Question: He is stopped and he's facing you?
Raab:---Okay, so I close - I close the gap and I'm now two metre away from him, he's stopped dead, and he's still screamin' and instantly I've - I've instantly, ah, he - I've - I didn't know what he was screaming, but his eyes were very wide and at that time, I was lookin' down the barrel - the barrel of a firearm.
Question: How far away are you?
Raab:---Ah, body to body, two feet, but he had his arm outstretched with the gun.
Question: Two feet from him?
Raab: ---Sorry two - metres I'm sorry.
Question:And was - how was his - what was the position of his arm. I want you to indicate ‑ ‑ ‑?
Raab:---His arm is outstretched like that. And what actually drew my attention to the firearm at the time, was the - the jerking of the muzzle of the firearm was jerking in right hand - oh sorry - ah - his right and my left - so it made two distinct jerk movements, like that, and that's what actually drew my attention to the firearm at the time.
The witness then demonstrated the jerking and he was asked to describe what he had demonstrated and he stated it was a sideways movement, fairly small between 2 and 3 centimetres. The examination in chief then continued:
Question:Where was the firearm pointed at that stage when you saw the two jerking movements to the right that you've described. Where was the firearm pointed?
Raab: ---The firearm was pointed directly at my face.
Question:He was two metres from you, you've described and so with his arm outstretched holding the firearm, how far was that from your face?
Raab: ---Probably a metre and a half from my face.
Question:Were you able to see what type of weapon it was in his hand?
Raab: ---I could see that it was a cylindrical muzzle and ah - I knew at that time it was a revolver. I saw the hole for the - the hole in the muzzle obviously where the round comes out of.
On resumption of Raab’s evidence, the next day, the following questions and answers were given, again I have only included the relevant matters:[9]
[9]Transcript of 19/03/15 pages 200 ff.
Question:Now when you saw that, can you just describe the barrel that you saw pointed at you?
Raab:---The barrel was round, and it had a small hole for the muzzle - in the muzzle, I should say.
Question: You've told us that you stopped dead in your tracks?
Raab: ---Yes.
Question: What did you then do?
Raab: ---At the point that I stopped?
Question: Yes?
Raab: ---Ah, it was at that time that I saw the jerking of the muzzle.
Question: Yes?
Raab:---I then, immediately thinking I was going to be shot, spun down to my left.
Question: Yes?
Raab:---My intention at that time was to take flight, or to run away from the incident.
Question: Yes?
Raab:---At the time that I was turning, I saw Mr Christiansz follow me down with the firearm, followed my head down with the firearm, then I didn't look at him again at that point. I then began to run away, I couldn't get my gun out, my firearm out, due to my jacket had dropped down, because I was now crouching.
...
Raab:So Mr Christiansz is in front of me with the firearm pointed at me. There's the action of the muzzle, the jerks of the muzzle. I then turn, um, it's best if I stand here. So he's standing in front of me. I then stop, I realise - at that time I think I'm going to shot in the face so I spin like that [demonstrated]. As I look at that he follows me down with the firearm and I turn like this and what I then did is I put my - believing I was getting shot in the back of the head I lifted my shoulders up and ducked my head in that fashion whilst I was running but I was crouched like this.
…
Raab:---Yes, okay. So when I turn, he fired (sic – followed) me with the firearm. I then - I'm in a crouched position like this to enable to keep my head down and I thought that if I left my shoulders while I'm running ‑ ‑ ‑
…
Raab:---Hunched my shoulders believing that he was to fire the shot at me that the shot, hopefully - hopefully I didn't want to be shot but hopefully if it did hit me it would hit me in the back rather than in the back of the head. So as I was running I was unable to get firearm at that time because my jacket had gone down past, sort of, my knees because of the crouched position. I then ran in a, sort of, a zig zag pattern hopefully to enable him not to be able to train the firearm on the back of my head or get a clear shot at the back of my head.
The evidence of Raab in respect of that movement is that he believed the accused was trying to pull the trigger of the gun, and that he was going to die. The factual evidence he gives is that he sees the gun jerk twice in the hand of the accused, with a movement to the right of 2-3 centimetres. He gives no evidence of seeing the trigger being pulled, and no movement of the fingers of the accused man attempting to pull the trigger.
There is no evidence from Det Sen Constable Normoyle, who is present when the gun is produced by the accused from the front of his clothing, that he sees any jerking movement of the firearm at that time that it is being pointed at Sergeant Raab. That does not, for the purposes I am considering this evidence, detract in any way from the evidence of Sergeant Raab, as I am not considering the strength of the evidence, only what a jury can logically and reasonably infer from that evidence.
The Crown do not submit that the accused has fired the gun at the time that he was pointing it at Sergeant Raab, rather that the jerking to the right of 2-3 centimetres is the consequence of the accused attempting to fire the gun, without pulling back the cocking mechanism. There is no doubt that there may be recoil in respect of a gun that has been discharged, that is common knowledge, but in this case there is no argument that there is recoil of the firearm from the discharging of a bullet.
The Crown had argued that a ballistics expert should be able to give evidence of testing that he had done on the firearm, demonstrating, it was said, that the firearm pulled up and to the right if held in the right hand, and up and to the left if held in the left hand.
The evidence was heard on voir dire prior to the witness being called, and the actual evidence was that he had got three other officers from the Victoria Forensic Service to pull the trigger on this uncocked revolver, on several occasions, first with the right hand and then with the left hand, and he stood and observed those actions. On each occasion he said the results, whilst indicating a movement up and to either the right or the left, also varied from person to person, and each person also varied markedly within their own attempted shots. The movements he described as:[10]
Vary[ing] from person to person. It varied from attempt to attempt, from nearly imperceptible to two centimetres.
He agreed that the result of a person pulling the trigger on this firearm was different for each and every occasion that he saw. I excluded the evidence on the basis that it could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, as it was arguable, on the basis of that testing, that 100 people pulling the trigger on this firearm may result in 100 different variations, from none, negligible or virtually imperceptible to 2 centimetres or significantly more.
[10]Transcript of 26/03/15 page 687.
The ballistics expert gave evidence that the accused’s revolver, the gun pointed at Sergeant Raab, was not capable of being fired without first being cocked, in a process that takes it through two clicks, the first being to a safety position and the second to being fully cocked.
Evidence was also led by the Crown that the accused was familiar with the firearm, in that a witness gave evidence that he was present when the accused had successfully fired the revolver in the car park of the apartment block on a previous occasion, whilst appearing to be aiming at a wall.
Thus, the only evidence that exists as to the attempted murder is that the accused man pulled a revolver from his clothing when confronted by the police and pointed it directly at the face of a police officer, that he did not cock the weapon or attempt to cock the weapon, that it was a weapon which he had fired on a previous occasion and knew how to use, that the weapon did not discharge, but that whilst under observation by Sergeant Raab, and pointed directly at him, the weapon jerked on two occasions between 2 and 3 centimetres to the right.
There is no doubt that on the evidence before this court, Sergeant Raab believed he was going to be shot, and that is why he ducked and wove his way away from the accused to the cover of a motor vehicle. That evidence does not assist my decision or that of the jury, as there is no doubt that if a person pointed a firearm directly in the face of another that person would be in great fear of being shot, and would behave in a similar manner, but it is not what is in Sergeant Raab’s mind that is in issue in this trial. It is what is in the accused’s mind.
The jury have to be able to be satisfied from that evidence that the accused man attempted to cause Sergeant Raab’s death; and that the acts which were done in the attempt to cause his death were conscious, voluntary and deliberate; and finally that those acts were done with the intention of killing Sergeant Raab. There is no issue as to the accused having any kind of a lawful excuse.
As stated earlier, the test referred to by Lasry J being:
the fact that a reasonable hypothesis consistent with innocence can be formulated does not mean that there is no case for the accused to answer; the question is whether, to the reasonable mind, inferences of guilt are reasonably open
is the test that I am using in this application. There are many other inferences open on the evidence, but it is not my task to determine if any, or all of them, are reasonable, or if they are capable of being excluded by the Crown, that would be the task of the jury. It is equally not my task to determine if a verdict based upon this evidence would be unsafe and unsatisfactory, as that would be for a court of appeal to determine, should the matter result in a conviction.
My task is as I have indicated to ask the question - is there evidence capable of permitting a jury to draw the inferences they will be asked to draw in relation to the offending and the elements of the offence that must be proved by the Crown? The evidence I have outlined above is, in my opinion, incapable of supporting all of those matters as being reasonable inferences that can be drawn from the evidence, and would necessitate the jury being involved in speculating as to what actions of the accused could have caused the gun to move in this manner.
In accord with what Chief Justice King said in Case Stated by Director of Public Prosecutions (No. 2 of 1993) that in a circumstantial case there must be evidence that is capable, if accepted, of producing in a reasonable mind, a conclusion beyond reasonable doubt and thus capable of excluding any competing hypotheses as unreasonable to enable a court to determine that there is a case to answer, it is my opinion that the crown have failed to establish a case to go to the jury in respect of this charge on the indictment.
I will instruct the jury accordingly.
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