R v David James Wannell - [2013] ACTSC 51

R v DAVID JAMES WANNELL

[2013] ACTSC 51 (22 February 2013)

EX TEMPORE JUDGMENT

No. SCC 359 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 22 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 359 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R

v

DAVID JAMES WANNELL

ORDER

Judge:  Burns J
Date:  22 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

A verdict of not guilty with respect to the charge on the indictment of 29 November 2011 is recorded.

The accused is charged that on 24 April 2010, he assaulted Elle Marie Richardson and occasioned to her actual bodily harm. The evidence before me is that for a period of approximately 12 months prior to 24 April 2010, the accused and Elle Marie Richardson had been in a relationship, albeit that it appears that that relationship had broken down on at least two previous occasions prior to the date in question.
In the course of that relationship, Ms Richardson would often stay at the premises of the accused in Macpherson Street in O’Connor. Those premises, as I understand it, are a townhouse with a front courtyard which has a gate which then leads out onto the street.
The front door of the accused’s townhouse opens onto the front courtyard. As at
24 April 2010 there was a flyscreen door on the outside of the main front door, which was a solid wood door, as I understand it. The flyscreen door opened outwards, and the wooden door opened into the townhouse.
On the date of 24 April, the accused had been consuming alcohol from about midday. He had approximately seven drinks – which I understand were stubbies of beer – before Ms Richardson returned to his premises.
They then travelled to Ms Richardson’s mother’s address, although it’s unclear whether they travelled by way of car, or alternatively, by way of bus.
Subsequently, they returned from Ms Richardson’s mother’s address to the accused’s address in O’Connor, although again, there is some dispute about precisely how they made that journey.
From the accused’s residence, he and Ms Richardson then travelled into the city and went to the Academy Nightclub. There the accused and Ms Richardson consumed alcohol. It appears that each had four drinks.
I am satisfied on the evidence of Ms Richardson that there was a continuing argument whilst the accused and Ms Richardson were at the Academy nightclub. Ultimately, they decided to leave the nightclub and to return to the accused’s premises. It appears that they took a taxi back to his townhouse in O’Connor.
It is again clear that at some point thereafter, Ms Richardson decided to go to bed. There is a dispute about what happened thereafter, but one thing is very clear, and that is that the accused and Ms Richardson, again, argued.
Ms Richardson says that the accused pushed her down the hallway of the townhouse towards the front door. The accused said that he walked out of the bedroom and walked down towards the lounge room followed by Ms Richardson.
In my opinion, it matters very little as to which version of events is correct. However, I must say that I would accept the evidence of Ms Richardson about what occurred on that evening. I say that because the accused was not a good witness in the course of this trial. He contradicted himself on numerous occasions in the course of his evidence. He made statements in the course of his evidence denying that he had made certain statements to police on the evening in question. On the basis of the evidence of the police, I am satisfied that he did make those statements.
Further, there were significant differences between the evidence of the accused and the evidence of the witness Arthur Horobin about what occurred on the evening of 24 April, and I am satisfied that Mr Horobin’s version of events is correct.
I do not accuse the accused of lying in that regard. It seems to me quite likely that he genuinely believes the version of events that he has given in his evidence before the Court today. However, I am satisfied that his evidence is simply not reliable. But even putting his evidence to one side, the Crown must establish the charge against the accused to the standard of beyond reasonable doubt.
Returning now to the sequence of events that occurred on the evening of 24 April 2010, it is common ground that Ms Richardson ended up in the front courtyard of the accused’s townhouse. It is common ground that the accused then closed and locked the front fly screen door. I have before me a photograph – indeed, two photographs – of that fly screen door. It appears to be a metal door with a metal mesh on the outer part of the door, that mesh forming a diamond shaped mesh with the fly screen on the inner aspect of the door, such that when the door was closed the metal mesh would be on the outside of the door and the fly screen itself would be on the inside of the door.
As I have said, the accused does not dispute that Ms Richardson ended up outside the door. I accept, on the evidence of Ms Richardson, that the accused was angry that evening. Indeed, it appears that some of his anger, at least, was irrational if not, indeed, bizarre, based upon a belief that Ms Richardson was telling him lies about an allegation that she had previously been sexually assaulted or harassed. Again, it appears to be common ground that Ms Richardson, when she was outside the screen door, asked, on a number of occasions, to be let back in. Her evidence accords with that of the accused in that she said that on the second occasion that she asked to be let back in, she moved closer to the fly screen door.
On the evidence before me, I could only be satisfied that the only light which was illuminated in the accused’s townhouse at that time was the light in his bedroom, which was some distance away from the front door. I cannot be satisfied that the light in the lounge room was illuminated, or that there was any outside light which was illuminated. The evidence of police officers was that it was quite dark in that area, and that there was not good street lighting.
The accused gave evidence that he struck the door with his fist out of frustration at the situation that he found himself in. Essentially, the accused says that what occurred was an accident, in that he was unaware that Ms Richardson had her face up against the fly screen door.
It appears to me, inevitable, that it was not the applicant’s fist that struck Ms Richardson but, in fact, his fist struck the metal grill which then hit the face of Ms Richardson. That, of course, would not absolve him from responsibility for the present charge if I could be satisfied beyond a reasonable doubt that the accused knew that Ms Richardson was standing close to the metal door and that he intended, when he struck the door, that the blow would be transmitted to her, or that he was aware of the possibility that that may occur, and determined to strike the door, nevertheless.
I cannot be satisfied to the requisite standard of beyond a reasonable doubt that the accused was aware that Ms Richardson had her face up close to the screen door at the time that he struck it. Ms Richardson gave evidence that the accused made eye contact with her before he struck the blow. However, it appears to me that that does not necessarily mean that the accused was aware that she was there. By giving that evidence, all that Ms Richardson could be saying was that the accused looked towards her as he struck the blow. That is consistent with the accused looking out the door but not seeing Ms Richardson. Ms Richardson may well believe that the accused had seen her, but, in my opinion, her belief does not establish to the standard of beyond reasonable doubt the fact that he did see her.
I must also take into account, when determining what the accused’s intention was, and also what his knowledge was of the whereabouts of Ms Richardson at the time that he struck the blow, that he was intoxicated. I must also take into account the fact that the accused was diagnosed with paranoid schizophrenia and has given evidence that he was not properly medicated at that time and, in his own words, he was not thinking clearly.
Taking all of the evidence into account, I am simply not satisfied to the requisite standard that the accused knew that Ms Richardson had her face up against, or close to, the fly screen door when he struck the fly screen door. I am not satisfied beyond a reasonable doubt that in striking the fly screen door he intended to apply any physical force to Ms Richardson, as opposed to simply applying force to the door. I am also not satisfied beyond a reasonable doubt that the accused was aware of the possibility, that in striking the door as he did, the door may strike
Ms Richardson, but determined to strike nevertheless.
Accordingly, I will record a verdict of not guilty with respect to the charge.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 28 March 2013

Counsel for the Crown:  Ms S Tasneem
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:  Ms T Warwick
Solicitor for the Accused:  Daryl Perkins Solicitors
Date of Hearing:  22 February 2013
Date of Judgment:  22 February 2013