R v Coulthard - [2015] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COULTHARD
Criminal Trial by Judge Alone
[2015] SADC 131
Judgment of His Honour Judge Stretton
24 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - CIRCUMSTANCES OF AGGRAVATION
The accused pled guilty to the offence of robbery but denied the only alleged circumstance of aggravation. As recently clarified by the case of R v W (2015) SASCFC, in that instance the circumstance of aggravation must proceed to trial. The accused elected for trial by judge alone. The circumstance of aggravation alleged was the use of a knife in the course of the robbery.
Held
1. On a careful analysis of the evidence, there is a reasonable doubt as to whether a knife was used in the course of the robbery.
2. The circumstance of aggravation is not established.
Observations as to the elements of the alleged circumstance of aggravation.
Juries Act 1927 s 7, referred to.
R v W (2015) SASCFC 86, considered.

R v COULTHARD
[2015] SADC 131
Introduction

The accused Cecil Ray Dean Coulthard is charged with the aggravated robbery of David Dial at Kilburn in the early hours of 3 June 2014. He pled guilty to robbing Mr Dial, but not guilty to an alleged circumstance of aggravation, an allegation that he used a knife as an offensive weapon when committing the offence.
When an accused person admits a crime but denies the crime was aggravated, there must be a trial of the disputed circumstance of aggravation.[1]
[1] R v W (2015) SASCFC 86.
Whilst the accused is entitled to a jury trial, he exercised his legal right to be tried by judge alone.[2]
[2] Juries Act 1927, s7.
Hence this is a trial by judge alone of the circumstance of aggravation alleged against the accused.
The offence to which the accused pled guilty
The accused pled guilty to the offence of robbery. The particulars of that offence are that:
Cecil Ray Dean Coulthard on the 3^rd day of June 2014 at Kilburn, threatened to use force against David John Dial in order to commit theft of $24 in cash, and the threat was made at the time of, or immediately before or after, the theft.
The circumstance of aggravation denied by the accused
The information alleges that the offence of robbery was aggravated on the basis that the accused used an offensive weapon namely a knife when committing the offence. The accused pled not guilty to this alleged circumstance of aggravation.
Trial by judge alone
The accused elected to be tried by judge alone.
For the circumstance of aggravation to be established, the prosecution must establish every element of the circumstance of aggravation beyond reasonable doubt.
There is no burden on the defendant to prove anything whatsoever. Whilst there was no obligation for him to do so, he gave evidence on oath at the trial and the law recognises that he deserves credit for taking that course. Having given evidence, his evidence is to be assessed in the same way as the evidence of any other witness in the trial.
I apply all the standard directions as to evidence, procedure, proof, and standard legal principle that would be delivered to a jury were this a jury trial. It serves no purpose to recite them all here.
Elements of the disputed circumstance of aggravation
By his plea of guilty at the commencement of the trial the accused admitted that he threatened to use force in order to commit the theft of $24 from Mr Dial.
The alleged circumstance of aggravation requires proof that the accused used an offensive weapon namely a knife when committing that offence. That requires proof of the following elements beyond reasonable doubt:
1. Deliberate use of an offensive weapon by the accused;
2.For the purpose of committing, or in deliberate furtherance of committing the offence.
The issue in the case
The prosecution case is that the accused brandished a knife at Mr Dial in the early hours of the morning while demanding money from him, and the prosecution contention is that if those facts are established, the circumstances are such that the use of the knife was being used as an offensive weapon and could only have been for the purpose of committing the offence of robbery.
The defence denies that a knife was used at all.
If the knife was used as alleged, in the court’s view there can be no doubt whatsoever in the totality of the alleged circumstances that it was being used as an offensive weapon, and that it was being used for the purpose of robbery.
The real issue however, is whether it was used at all.
The prosecution case
The prosecution called only two witnesses, the victim Mr Dial and the investigating police officer Constable Hogan.
Mr Dial gave evidence that late in the evening of the date in question he walked from his house in Kilburn to the nearby BP service station on Churchill Road. At the service station he withdrew $70 from the ATM and purchased some items. He noticed the accused as he was leaving the service station.
Mr Dial said he then walked across the road to the nearby Albion Hotel to play the pokies. While there, the accused approached him and struck up a conversation with him, asking him to buy the accused a glass of wine. Mr Dial gave the accused $3 for a glass of wine.
A little later Mr Dial left the hotel and walked back to the service station. At that stage he had $15 left. He withdrew the remaining $9 he had in his account and commenced walking back to his house. As he walked up a more dimly lit adjacent street, he saw the accused again. Mr Dial said that he said ‘hello’ to the accused, who then came up to him, grabbed his shoulder and said ‘give me your money’. Mr Dial then said:
So – and when I gave him the money I saw a knife in his hand that he must have got rid of or something.[3]
[3] T 16.34.
Mr Dial gave evidence that the accused was holding a fishing knife “that folds inside itself”. He said the whole knife was about 6 inches long, with the blade about 9-10 centimetres long. He said it had a brownish, brass type handle and “It had a stainless steel metal bit up top where you push down and fold the knife back into itself”.[4] He said it was being held at stomach level about 12 inches from him, as they stood face to face.
[4] T 18-19.
Mr Dial said that in response he gave the accused the $24 he had on him. He said he handed over the money because he believed his life was being threatened. He said the accused told him that he knew where Mr Dial lived, and walked off. Mr Dial said he went straight home and called the police.
Mr Dial said the police came around and he gave them a statement, and at a later time he picked the accused out of a photo array.
In cross examination Mr Dial explained that his money is administered by the Public Trustee, it comes into his account in the early hours of the morning, and that is why he went to the service station at the time he did, so as to draw out funds.
In answer to further questions in cross examination he said that he did not leave the hotel with the accused, nor was the accused with him when he left. He agreed that at the place where he said the accused approached him in the street for money, it was dark with hardly any lighting.
Mr Dial agreed that in the statement he had given police on the night, he had said that the knife “looked like a kitchen knife”. He told the court “At one stage it did[5], but the way he was holding it, when I had a glance, it did look a bit different to a kitchen knife, but it wasn’t serrated, it was a smooth blade.” Mr Dial then agreed he had said more recently that it was not a kitchen knife but a camping type knife. He agreed he had told police it had a 5-6 centimetre blade.[6]
[5] Referring to it looking like a kitchen knife.
[6] T 32.
Asked a little later in cross-examination to describe the knife in more detail, he said he had when he earlier spoke to police thought the knife looked a bit like a Stanley knife, but “not a Stanley knife, one of those sharp smooth-blade knives you cut vegies and that with”, going on to also say “yes, but I wasn’t too sure what the actual object looked like because it was dark at the time.”[7]
[7] T 36.
Mr Dial also said:
Q. You told the police quite recently that it was a folding knife.
A.Yes, but because didn’t (sic) have the evidence and all that, it got ditched, they couldn’t find the actual evidence of the knife.[8]
[8] T 33.2.
Mr Dial was asked to explain why his description of the knife had changed over time and he responded that it was hard to pinpoint things when you had friends coming over smoking marijuana, and he was also on medication. He said the medication interfered with his memory but that the marijuana helped to correct his memory back to normal.[9]
[9] T 37.
In further cross examination Mr Dial agreed that in 2007 he had made a false report that he had been robbed. He said he did that as he must have been “drunk or something when it happened” and wasn’t thinking at the time due to medication he had been taking. He was not completely clear as to what had happened when the matter had gone to court “because on medication and all that, stuffs up my memory a bit.”[10]
[10] T 33-35.
Mr Dial denied the suggestion put to him by defence counsel that he had fabricated a story about a knife to get the police to take his legitimate allegation of robbery more seriously.[11]
[11] T 36.
The only other witness was the investigating officer, Constable Hogan. He gave evidence he attended Mr Dial’s address at about 2am and took a statement. As a result of that police formed a view as to the identity of the person who had robbed Mr Dial. Police then viewed CCTV footage at both the BP service station and the Albion hotel. Police recognised both Mr Dial and the accused from the footage.
Police then attended the accused’s place of residence in Kilburn, an aboriginal housing joint living accommodation unit. Upon searching the accused’s room they located and photographed clothing they had seen being worn by the accused on the CCTV footage, and similar to that which had been described to them by Mr Dial. They also located loose change in $1 and $2 coins.[12]
[12] T 43-46.
Police did not locate a knife either on the accused or in his room.[13]
[13] T 48-49.
Police later conducted a photo-identification procedure, during which Mr Dial identified the accused.[14] Police also located two receipts indicating that the accused had tried without success to access funds from ATMs at both the BP service station and the Albion hotel at around the time of the alleged incident.[15]
[14] T 46-47, and exhibit P6.
[15] Exhibit P7, and XXN at T 51.
In cross examination Constable Hogan agreed that the CCTV footage showed Mr Dial and the accused leaving the Albion Hotel together.[16] Constable Hogan also agreed that the accused was co-operative and appeared to be a simple, vulnerable kind of person with mental health issues.[17]
[16] T 51-52.
[17] T 53-54.
The defence case
The accused gave evidence on oath in his defence.
He told the court about his shared living arrangements, and that he received Centrelink payments. He agreed he went to the BP service station in the early hours of the evening in question to see if his Centrelink money had come into his account. He said it normally came in at around midnight. As he walked into the service station he noticed Mr Dial exiting those premises. When he tried the ATM he found that his money had not yet come in, so to kill some time until it did, he decided to walk over to the Albion Hotel and try the ATM there.
The accused said that when he entered the Albion he saw Mr Dial there and had a talk with him. He asked Mr Dial for $3, and with 50 cents he already had on him, he bought a glass of red wine for $3.50. After a time the accused checked the hotel ATM but his money had still not come in. He finished his wine, and he and Mr Dial ended up leaving the hotel together.
The accused said Mr Dial headed back towards the service station. The accused said he saw someone walking up from the train station, so he pulled that person up, had a yarn to him and asked if that person would be able to help him out with some money. The person said he couldn’t.[18]
[18] T 55-58.
The accused said that as he finished talking to that person, he saw Mr Dial approaching. He said Mr Dial said hello and he responded “Come here for a second”. He walked up to Mr Dial, put his hand on Mr Dial’s shoulder and asked him for money. Mr Dial gave him the money. The accused said he did not have or use a knife.[19]
[19] T 58.
The accused gave evidence that having got the money he went back to the pub and had another glass of red wine, then went home. At home he put the money on a shelf in his room and spoke to someone else in the house to see if he could “buy me some dope”. He said about 10 or 20 minutes later the police arrived saying they reckoned he had robbed some money off someone with a knife.
In answer to a question from the bench as to why he thought Mr Dial had given him the money he replied:
A.I suppose if I was his size coming up against a big person like me in a dark street I wouldn’t want to say – I don’t know how to put it, but, yeah, I wouldn’t want to refuse to do anything.
In cross examination the accused was taken through events again, and his evidence was broadly consistent within itself and with his examination in chief. He denied the suggestion put to him by prosecuting counsel that he had seen Mr Dial take money out of the ATM, got the idea to rob him, and so lain in wait for him to exit the service station for that purpose. He repeated his denials about the knife.
Assessment of the evidence
In assessing the evidence, I have had close regard to the addresses of counsel. For brevity I do not set out their arguments. Each submitted that their respective witness be believed, and put arguments in support of that proposition.
It is clear that both Mr Dial and the accused are people who face some challenges in life.
Having said that, they both gave evidence in a relatively straightforward way, and my initial impression in each case was that they were broadly trying to honestly recall the events of the evening.
Overall, the accused’s evidence was perhaps a little more consistent and coherent than Mr Dial’s. Indeed, the accused’s version of events at the hotel, particularly that he and Mr Dial left the hotel together, is supported by Constable Hogan’s viewing of the CCTV footage. Mr Dial denied that was the case. Further, as described earlier in these reasons, Mr Dial gave quite differing descriptions over time about the appearance of the knife he claimed the accused used. In the court’s opinion his explanations of that inconsistency are not entirely satisfactory, and as a consequence in the court’s view, the reliability of his evidence on the topic of whether the accused used a knife is affected. Finally, Mr Dial admitted he had previously made a false complaint about a robbery to police, which also must be borne in mind together with the totality of the evidence, when assessing the reliability of his version of events on this occasion.
I take into account that the accused gave evidence on oath, a course which he was not obliged to undertake, and for which the law recognises he deserves credit.
The accused came across as a simple and straightforward person. He gave evidence consistently, and there was nothing inherently unlikely or improbable about his account of events.
Conclusion
In the final analysis, in light of the inconsistencies in Mr Dial’s description of the alleged knife, the CCTV support of the accused’s version of events at the hotel, Mr Dial’s previous false complaint, and the accused’s straightforward and consistent evidence on oath, the court is left with a reasonable doubt as to whether the accused possessed and used a knife as alleged on the evening in question.
Verdict
There being a reasonable doubt as to the use of a knife, the circumstance of aggravation is not established.