R v Coulthard - [2008] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COULTHARD
Criminal Trial by Judge Alone
[2008] SADC 13
Reasons for the Verdict of His Honour Judge Lovell
21 February 2008
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
Trial by judge alone - accused charged with one count of aggravated causing harm.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 ss 5AAA, 24, 285C, referred to.

R v COULTHARD
[2008] SADC 13
Overview

The complainant, Rupert Gibbs, alleges that on 22 March 2007 he was beaten and then stabbed by the accused. The accused was well known to him prior to the incident. At trial there was no dispute that the complainant was beaten and stabbed. The issue is whether the Crown have established beyond a reasonable doubt that it was the accused who was the perpetrator.
General issues and directions
I remind myself of the following:
An accused person is presumed to be innocent of the charge unless and until guilt on the charge has been proved beyond reasonable doubt.
The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
The witness Mr Gibbs who gave evidence about the critical events on the evening and night of 22 March 2007 had been drinking alcohol and had consumed cannabis. I will deal with this in more detail when I come to review his evidence. However, I remind myself that the intoxication of a witness may affect the proper assessment of his or her reliability as a witness. It is common experience that intoxication can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the intoxication of any of the witnesses is relevant to my consideration of their evidence and to my assessment of their credibility and reliability.
As mentioned identity is the major issue. I take account of the fact that there can often be problems with evidence of identification and care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken in making an identification and that a mistaken witness can be certain and believe in the identification that they have given.
I do specifically note that in this case the accused elected not to give evidence in this court; he remained silent. I remind myself of the following matters. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. The recurrent theme I must always bear in mind is that it is for the prosecution to prove its case beyond reasonable doubt.
The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lies in respect of the charge, then it necessarily means that the prosecution has failed.
Elements of the offence
The accused is charged with a breach of section 24 of the Criminal Law Consolidation Act 1935. It is alleged that on 22 May 2007 the accused caused harm to Rupert Roger Gibbs intending to cause that harm. It is further alleged that the accused used a knife when committing the offence and that is a circumstance of aggravation.
The elements of the offence are that the accused:
1.    caused harm to Rupert Roger Gibbs;
2.    did so unlawfully;
3.    did so intentionally; and
4.    did so when using an offensive weapon.
The only contested issue before me was the question of identity. However I must be satisfied beyond reasonable doubt of the elements of the offence.
Witnesses
a) Prosecution witnesses
Senior Constable Finlayson took photographs of the injuries. He made observations of the injuries. He conceded in cross examination that his role in this case was limited and that he was not asked to search for or collect any other items of evidence. His evidence was not challenged and I have no hesitation in accepting his evidence.
Constable Masella gave evidence that she was on duty on 23 March 2007 at the Port Augusta Police Station when Mr Gibbs, the alleged victim, attended at the station. She observed his injuries and took a statement from him. Although she was not asked it appears that no further investigations were undertaken. She was involved in the arrest of Mr Coulthard. Her evidence was not challenged and I have no hesitation in accepting her evidence.
Mr Gibbs was the main witness for the prosecution. He told me that on the day of the incident he was at the house occupied by Shane McKenzie. The house was in View Street in Port Augusta. Mr Gibbs had commenced consuming alcohol on the day before. This was in the mid afternoon of the Wednesday. He was drinking beer with some relatives at Davenport. He also consumed cannabis. Exactly how much cannabis he consumed is unclear.
Mr Gibbs stayed up all night drinking. At about 9.00am he and his friend Victor went to a hotel to purchase more beer. Mr Gibbs said that he bumped into a man called Jeremiah and the accused. They had a drink at the hotel and then they went to Jeremiah’s grandmother’s house and continued to drink. That was around 11.00am. Mr Gibbs was, on his own evidence, drunk. Eventually Mr Gibbs and the accused left those premises and went to Mr McKenzie’s house which is located in View Street. What time they arrived is not known although it is likely to have been sometime in the afternoon.
Mr Gibbs told me that he was sitting at Mr McKenzie’s house when James and his brother (Andrew) started having an argument. Mr Gibbs intervened. Mr Gibbs told me that James said to him “Oh keep your mouth out of it, this is between me and my brother having an argument”. Mr Gibbs replied “Just leave it bro you know. Just leave it alone.”
Mr Gibbs told me that the accused gave him a couple of hits inside the house and as he tried to get away the accused rugby tackled him out in the yard then hit him and kicked him. He blacked out for part of it. When he tried to get away he “felt a jab in the guts” followed by two more jabs. He did not see any knife in the possession of the accused. Mr Gibbs did not know what happened to the other people in the house.
Under cross-examination Mr Gibbs candidly admitted having stayed up all night drinking. He admitted consuming cannabis. He didn’t eat or sleep that night or the day of the incident. He also candidly admitted after the incident he went to get his “brothers to give him (the accused) a hiding”. He did not remember seeing Ms Buzzacott and Daniel outside the house at View Street when he had his “brothers” there. It was getting dark about that time. He admitted being drunk. They went around to Hall Street and then the accused went to Davenport and continued drinking until his wife collected him. He told me that he treated his own injuries and did not go to a hospital or a doctor. He denied the suggestion under cross-examination that it was not the accused who stabbed him.
I have no hesitation in accepting that Mr Gibbs was doing his best to tell the truth. Whilst there were some inconsistencies in his evidence none of them made me think he was other than an honest witness. Nor did the inconsistencies make me doubt the general accuracy of his recollections.
There were suggested inconsistencies relating to whether he sought treatment for his injuries and whether he remembered Ms Buzzacott and Daniel being at View Street. These alleged inconsistencies, even if they were inconsistencies, are of a minor nature and concern details of a lesser importance to Mr Gibbs than the violent events of earlier. They do not affect my assessment of his evidence.
He was not a sophisticated witness but he listened carefully to the questions and attempted to answer as best he could. He was able to remember a significant amount of detail about his movements during the time leading up to this incident. He candidly admitted many matters put to him in cross-examination some of which he must have known could affect his credibility.
b) Accused’s witnesses and rebuttal evidence
The accused did not give evidence but called two witnesses as part of his case. Ms Buzzacott, who is the Aunt of the accused, gave evidence that on the day of the incident she saw Mr Gibbs. This was about 4.00 or 5.00pm. She was driving a car in which Daniel Bilney, her nephew, was a passenger. She had driven to Shane McKenzie’s house as they were looking for the accused. She had heard he was there. Her source of information is not known. Daniel wanted to drink with the accused.
When she pulled up outside of Shane McKenzie’s house she saw a number of “young fellas in the yard”. She saw Mr Gibbs approach the car and speak to Daniel. Mr Gibbs lifted up his shirt. She told me she heard Mr Gibbs say “This is what Shane McKenzie had done to me”. She was scared and drove off. The conversation may have taken more than a minute. She couldn’t really tell if he was drunk. She was not friends with Mr Gibbs but knew him.
Under cross-examination Ms Buzzacott said that although she knew the accused was locked up over this incident she had not gone to the police to tell them what she had heard. She was unable to give any sensible explanation for that. She told me that she saw the accused in the street a “couple of weeks later”. She did not speak to him. She had not gone to see him in gaol. She may have told his grandmother and his mother about the conversation.
I found Ms Buzzacott’s evidence about the conversation at the car to be unbelievable. She may well have gone to View Street but I reject her evidence about the content of the conversation she alleges she heard. Her attempted explanations of why she did not report the conversation to the police or take the matter further (apart from maybe mentioning it to his mother) lacked candour. Her answers were evasive. I find she did not tell me the truth about that. I reject her version of events even as a reasonable possibility.
Mr John Coulthard also gave evidence for the accused. He was a very unimpressive witness. Mr John Coulthard told me that on the day in question he was at Shane McKenzie’s house in the morning. He was drinking with Shane and no one else was there. During the morning he was arrested for a breach of a restraining order and taken to the Port Augusta Police Station. He had taken a number of cans of UDL to Shane’s place and was drinking with him when the police arrived. He was charged and spent about two to three hours at the police station. After he was released he returned to Shane McKenzie’s house, collected what remained of his cans of alcohol and went to Gene Benessi’s house in Hall Street. James (the accused) was drinking with him there along with some other boys. James remained at Hall Street all afternoon. Later that day about sunset he saw Mr Gibbs and a number of “cousins and blokes” turned up at Hall Street and they had “weapons and sticks and stuff like that”. They tried to come inside but eventually left.
The evidence of John Coulthard, if accepted, even as a reasonable possibility, would give the accused an alibi.
Under cross-examination Mr John Coulthard admitted that he had made a statement to the police about that day. The statement was made many months after the event, namely in December 2007. Cross-examination revealed that he did not say in his signed statement (that was read to him) that the accused was with him at Hall Street. In other words he did not give the accused an alibi in his signed statement.
Not surprisingly he was cross-examined about that.
QDid you later become aware that James was being blamed for this stabbing.
AYes, probably a week or two weeks later.
QYou knew that James got locked up for this charge.
AThis charge, yes.
QAnd he was locked up for a long time.
AYes.
QPolice came and spoke to you in December last year, not long before Christmas.
AYes.
QAnd you gave a statement to police.
AYes.
QWhen you gave the statement you knew that they were asking about the stabbing incident.
AYes, I suppose, yes.
QAnd you knew that James had been arrested over that stabbing incident.
AYes.
QYou didn’t tell the police that James wasn’t at Shane McKenzie’s house, did you.
AWhat was that?
QYou did not tell police in December last year that James was not at Shane McKenzie’s house.
AYes, I told them, I told the police, they just – the police told me, like, what the police questioned me, just asked what I was doing that day, he didn’t really ask about anything. He just kept talking about Shane McKenzie and talking about View Street.
QYou knew that you were being asked about the stabbing incident.
AYes, because he said this is in regard of – I don’t know Rupert or Froggy.
HIS HONOUR
QFroggy.
AHe has a name Froggy, called Froggy.
XXN
QI suggest you said this to police in your statement ‘I was not there when Rupert Gibbs was stabbed and have no knowledge of the stabbing incident’ did you say that to police.
AYes, I suppose I said it.
QWould it help you if you looked at your statement to see what you told police.
AI probably said I was not there, you know, when it was happening, like saying, when he was stabbed I wasn’t even there.
HIS HONOUR
QWhat is being asked is this; when you went to see the police you knew James couldn’t have done it because he was with you.
AYes.
QDid you tell that to the police.
ANo, the police didn’t really ask, they didn’t ask anything about James.
QBut do you agree you had an opportunity to tell them that James couldn’t have done it because he was with you.
AYes, I was trying to tell the police but he didn’t want to hear it, that police officer didn’t want to hear anything about it.
At one stage he told me that he couldn’t remember what he said to the police officer as he was “starting on medication”.
He initially told me that he was trying to tell the police officer that James was with him that afternoon but the officer (Constable Vario) didn’t listen and just kept talking about “the heat and the flies”. Eventually he told me that not only did he try to tell the officer but in fact he did tell him but the officer did not write it down.
It was conceded by Mr Kane for the accused that no alibi notice pursuant to s 285C of the Criminal Law Consolidation Act had been provided. In those circumstances I permitted the DPP to call Constable Vario to say whether he had been told about the whereabouts of the accused on the day in question. The question of whether the police had knowledge of the potential alibi before the trial was clearly relevant to the question of any comment the prosecution wished to make about the absence of an alibi notice pursuant to s 285C(4) of the Criminal Law Consolidation Act.
Constable Vario gave evidence. He was an impressive witness. He was not directly involved in the investigation. However he was asked to obtain a statement from Mr John Coulthard about who was at the premises of Shane McKenzie when the stabbing occurred. He had to speak to other potential witnesses as well.
He confirmed that he took the statement from John Coulthard and then read it back to him and had him sign it. John Coulthard did not ask for any amendments. Constable Vario candidly conceded that he did not ask any direct questions of Mr John Coulthard as to the whereabouts of the accused. He agreed his focus was on the question of who was at Shane McKenzie’s house at the relevant time.
Constable Vario denied being told by Mr John Coulthard that the accused was with him all afternoon.
The evidence of Constable Vario stands in stark contrast to that of Mr John Coulthard. I have no hesitation in accepting Constable Vario in preference to John Coulthard. John Coulthard was evasive in answering questions and was unable to give any sensible explanation as to why on his own story he did not tell the police until at least December that the accused had an alibi.
As mentioned Mr Coulthard eventually told me that he specifically told Constable Vario the whereabouts of the accused. He only said that after he was pushed in cross-examination to remember. Whilst I do not think his answer was truthful he was under pressure in the witness box and, given his lack of sophistication, I will ignore that answer. However I reject totally his suggestion that he was “trying to tell” Constable Vario about the whereabouts of the accused on the day of the incident. I find that Constable Vario did not specifically ask such a question and Mr John Coulthard made no mention of the accused being with him at all. I find Mr John Coulthard did not tell me the truth when he told me he had tried to tell Constable Vario of the whereabouts of the accused. I find he did not tell or try to tell the police at all about being with the accused.
That does not necessarily mean that his evidence of the alibi itself is false.
As mentioned if John Coulthard is correct then the accused was not even present when the stabbing occurred. I find his explanations as to why he did not mention anything to the police up to December 2007 (on his version) to be unbelievable given that he was aware that his relative was locked up over these allegations. As mentioned he was an unimpressive witness. His evidence in total lacked credibility. I reject totally his evidence that the accused was with him all of the afternoon at Hall Street. I find that he invented the story in an effort to assist the accused. I reject the defence of alibi even as a reasonable possibility. The DPP have proved beyond reasonable doubt the alibi to be false.
Discussion
I have rejected the evidence of the two witnesses for the accused. However of course that does not make the accused guilty. The accused does not have to prove anything. I have to be satisfied of the truthfulness and reliability of the evidence of Mr Gibbs before I can convict the accused.
I am left with his evidence alone. There is little or no evidence to support his evidence to be found in evidence of the case as a whole. The only supporting evidence is that it appears that he did get a group of people together to chase after whoever stabbed him. That does not assist on the question of identity: it provides minimal support for his memory of events generally.

Mr Gibbs was clearly heavily intoxicated at the time of the stabbing. He had earlier consumed cannabis although not since the previous night. I remind myself of the effect alcohol can have on a person’s recollection of events. I remind myself of the problems that can occur with “identification”.
I have very carefully considered and scrutinised the evidence of Mr Gibbs particularly in light of his intoxication and the issues of identification. There is no support for his evidence.
However Mr Gibbs impressed me as a witness. His identification of the accused was not based on a momentary glimpse. He intervened in an argument between the accused and the accused’s brother. He was hit a few times in the house and then “rugby tackled” outside. He identified the accused as doing that and then he identified the accused as stabbing him. He had more than ample opportunity to see who was attacking him. It was daylight. He knew both Shane McKenzie and the accused. His evidence showed a good recollection generally of events.
I am satisfied beyond reasonable doubt that he is correct with his identification.
Findings
Thus I find it was the accused who attacked Mr Gibbs on this occasion.
I therefore turn to consider the elements of the offence.
I will deal with the elements in order.
I find beyond a reasonable doubt that harm was caused by the accused to Mr Gibbs. His injuries were seen by the police and photographed. In the context of this case harm simply means physical harm. I find beyond reasonable doubt that Mr Gibbs was stabbed three times and on each occasion the weapon pierced his skin. The injuries were not serious but they amount to harm for the purpose of this offence.
I find beyond reasonable doubt that the accused attacked Mr Gibbs and he did so unlawfully. On the evidence of the attack (which was not disputed by the accused) no question of self-defence or consent could arise. It is for the Crown to prove beyond reasonable doubt that the attack was unlawful and they have done so.
I find beyond reasonable doubt that when the accused attacked Mr Gibbs he intended to cause that harm. Once again on the evidence of Mr Gibbs he was stabbed three times in three separate areas of his body. No question of recklessness or accident could arise. There must have been three deliberate and intentional blows.
Given the nature of the injuries I infer beyond reasonable doubt that a knife was used. I find that the deliberate blows with the knife were intended to inflict harm.
I find that (as mentioned) beyond a reasonable doubt that the wounds were caused by the use of an offensive weapon namely a knife. The photographs of the wounds and the evidence of Constable Finlayson and Constable Masella satisfy me that the wounds were caused by the use of a knife. I find that the knife was an item possessed by the attacker for the purpose of causing personal injury and is therefore an offensive weapon pursuant to s 5AAA of the Criminal Law Consolidation Act.
I find the accused guilty as charged.