R v Epeli Marawa Draunikau - [2012] ACTSC 133

R v EPELI MARAWA DRAUNIKAU

[2012] ACTSC 133 (2 August 2012)

CRIMINAL LAW – whether the accused intended to use his car as an offensive weapon against police officers, in circumstances likely to endanger human life – whether the accused intended to use his car as on offence weapon against police officers, in circumstances likely to endanger human life, intending to hinder his lawful apprehension – subjective test of intention

Crimes Act 1900 (ACT) ss 24, 27(3)(c), (4)(c)
Criminal Code Act 1995 (Cth) s 474.17(1)
Supreme Court Act 1933 (ACT) s 68B

No. SCC 102 of 2011

Judge: Nield AJ
Supreme Court of the ACT

Date: 2 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCC 102 of 2011
AUSTRALIAN CAPITAL TERRITORY    )

R

v

EPELI MARAWA DRAUNIKAU

ORDERS

Judge:  Nield AJ
Date:  2 August 2012
Place:  Canberra

THE COURT FINDS THAT:

The accused does not have a case to answer in relation to counts 1, 3 and 4 of the indictment as the evidence does not show or allow an inference to be drawn that the accused intended to hinder lawful investigation (counts 1 and 3) or that the accused intended to use his car against a police officer (count 4).
The accused is not guilty of intentionally driving his car toward a police officer in circumstances likely to endanger human life, contrary to s 27(3)(c) of the Crimes Act 1900 (ACT), counts 2, 6 and 8 of the indictment.
The accused is not guilty of intentionally driving his car toward a police officer in circumstances likely to endanger human life, to hinder his lawful apprehension contrary to s 27(4)(c) of the Crimes Act 1900 (ACT), counts 5 and 7.
The accused is not guilty of assaulting a police officer, contrary to s 24 of the Crimes Act 1900 (ACT), count 9.

As to the trial of Mr Epeli Marawa Draunikau

At about 10.37 pm on 13 December 2010 Ms Nalinga Walsh telephoned 000 and, when connected to ACT Police Operations, reported that her boyfriend, the accused, Mr Epeli Marawa Draunikau, had threatened “to kill” her.
At about 11.05 pm Constable Christopher Franzi and Constable Michael Garrett arrived at xx Kelleway Avenue in Nicholls in the ACT, which was the home address of Ms Walsh. They found Ms Walsh waiting for them outside her home, on the northern side of Kelleway Avenue.
Constable Franzi and Constable Garrett were wearing the full AFP summer uniform. Constable Franzi was driving a fully marked caged police car. The car can be seen in the photographs numbered 2 to 11 inclusive, 13 to 16 inclusive, 19, and 26 to 29 inclusive in exhibit G.
Following their arrival at her home, Ms Walsh told Constable Franzi and Constable Garrett that the accused, who sounded as if he were intoxicated, had telephoned her and told her that he was on his way home to kill her before she telephoned police to report what the accused had said to her. Also, she told them that, after she had telephoned police, the accused had telephoned her again and asked her whether she had telephoned police and she told him that she had telephoned police.
What she told them prompted Constable Garrett to ask Ms Walsh whether she knew the whereabouts of the accused and she pointed to a car, which was parked in a driveway about 100 m along Kelleway Avenue on the opposite side of the road from Ms Walsh’s home, and said that that car was the accused’s car. The aerial photograph, exhibit B, shows Kelleway Avenue and the locations of Ms Walsh’s home and the driveway on which the accused’s car was parked. The aerial photograph, exhibit C, shows Kelleway Avenue and the location of the driveway on which the accused’s car was parked.
After telling her to remain where she was standing, Constable Franzi and Constable Garrett walked away from Ms Walsh, crossing Kelleway Avenue to the southern side of it and walked along the footpath towards the accused’s car. When they were about 10 m from the car, the accused started the car’s engine and turned on the car’s head and tail lights and so Constable Franzi ran to a position on Kelleway Avenue about 5 m in front of the driver’s side of the car and Constable Garrett ran to the driver’s door.
With Constable Franzi standing on Kelleway Avenue about 5 m in front of the driver’s side of the accused’s car, Constable Garrett opened the driver’s door of the accused’s car and said, “Stop. Police. Turn off the engine” to the accused. Not unexpectedly, the accused turned his head towards Constable Garrett just as he moved the car forward and to his left hand side, so as to drive the car from the driveway onto Kelleway Avenue, causing Constable Franzi to fear that he would be hit by the car and therefore to jump to his left hand side, with the open driver’s door of the car missing him by less than a metre.
With the accused’s car disappearing in a generally westerly direction along Kelleway Avenue, Constable Franzi and Constable Garrett ran back to the police car, which was parked on Kelleway Avenue adjacent to Ms Walsh’s home and, after entering it, they gave chase to the accused’s car, with Constable Franzi driving the police car, but, notwithstanding patrolling along Kelleway Avenue and Gungahlin Drive, they failed to locate the accused’s car.
However, on their returning in an easterly direction along Kelleway Avenue to Ms Walsh’s home, both Constable Franzi and Constable Garrett saw the accused’s car stationary in the driveway to the car park of the Gold Creek Senior School. The car’s head and tail lights were off and it was parked in a dark section of the driveway. The car’s front was facing the roundabout in the intersection of Kelleway Avenue and McClelland Avenue. Constable Franzi stopped the police car in the intersection in front of the accused’s car with the passenger’s side of the police car facing the front of the accused’s car so that the accused could clearly see the police car. The location of the intersection, the police car, and the accused’s car can be seen in exhibit B.
Then the accused turned on the head and tail lights of his car and, notwithstanding the position of the police car in the roundabout, he drove his car forward and to his left hand side, across the nature strip and in front of the police car, onto Kelleway Avenue and in an easterly direction along Kelleway Avenue, away from the police car.
Constable Franzi turned on the flashing lights and siren of the police car and he gave chase to the accused’s car but, as before, they failed to locate the accused’s car.
However, a short time later, while driving in a generally easterly direction along Kelleway Avenue, past Ms Walsh’s home, both Constable Franzi and Constable Garrett saw the accused’s car in the roundabout at the intersection of Kelleway Avenue and Lexcen Avenue, about 40 m ahead of the police car. The accused’s car was stationary or nearly stationary in the roundabout and facing in a generally westerly direction towards the police car. Constable Franzi stopped the police car against the left hand kerb, that is, the northern side, of Kelleway Avenue so as to be able to undertake a U-turn if the accused drove his car in a westerly direction along Kelleway Avenue past the police car. The locations of the intersection, the police car and the accused’s car can be seen in exhibit E.
Within a very short time of Constable Franzi stopping the police car against the northern kerb of Kelleway Avenue, the accused drove his car from the roundabout onto Kelleway Avenue so as to pass the police car but his car sideswiped the police car, pushing the rear of it towards the kerb, and lifting the driver’s side of the police car off the road before it fell back onto its four wheels. The accused’s car’s front airbags inflated and the car spun around the driver’s side rear corner of the police car and came to rest against the kerb. The positions of the police car and the accused’s car after the collision can be seen in the photographs in exhibit G.
As a result of the impact, the right hand side of the body of Constable Franzi hit the driver’s door of the police car and the face of Constable Garrett hit a fitting within the police car. Constable Garrett left the police car followed by Constable Franzi and they walked towards the accused’s car. The accused was seated on the driver’s seat of his car pinned by the inflated driver’s air bag. Constable Garrett opened the driver’s door of the accused’s car and removed the accused from his car. Shortly afterwards Constable Tristan Laundon arrived on the scene and he placed handcuffs on the accused’s wrists.
After putting handcuffs on him, Constable Laundon, together with Constables Franzi and Constable Garrett, took the accused to the City Police Station, where, in due course, he was charged with a number of offences, which, because of what happened later, I need not restate.
After being charged, the accused was taken before a magistrate in the Magistrates Court and the proceedings were stood over to a later date for a case management hearing and the accused was remanded in custody, bail refused.
In due course, on 10 March 2011 the accused appeared before a magistrate in the Magistrate Court on the case management hearing and, having already pleaded not guilty to the charges then brought against him, he was committed to this court to stand his trial and he was remanded in custody, bail refused.
On 29 April 2011 I granted conditional bail to the accused and he was released from custody. He had been in custody from his arrest on 13 December 2010 until 29 April 2011, a period of four months 17 days.
On 9 June 2011 the Director of Public Prosecutions filed an indictment dated 6 June 2011 which charged the accused with the following offences:
On 29 August 2011 the accused filed a Notice, dated 24 August 2011, electing, pursuant to s 68B of the Supreme Court Act 1933 (ACT), to be tried by a judge alone. I am satisfied that the accused received advice from his solicitor as to the effect of electing to have a trial by judge alone, rather than a trial by a judge and a jury.
On 25 October 2011 the accused appeared before a judge of this court and, on his being arraigned with the charges, he pleaded not guilty to the charges in counts 1 to 9 inclusive of the indictment and guilty to the charge in count 10 of the indictment, and the judge fixed the trial for 17 September 2012. However, on 18 May 2012 the date for the trial was brought forward to 2 July 2012, later changed to 5 July 2012.
Thus, on 5 July 2012 the accused appeared before me to stand his trial. On his being arraigned again with the charges he pleaded not guilty to counts 1 to 9 inclusive of the indictment and guilty to count 10 of the indictment. I heard evidence from the following witnesses:
called by the Crown prosecutor, and I received the following exhibits,
A Statement by Constable Christopher Franzi
BAerial photograph showing Kelleway Avenue
CAerial photograph showing part of Kelleway Avenue
DPhotograph of the roundabout at the intersection of Kelleway Avenue and Lexcen Avenue
EAerial photograph showing the roundabout at the intersection of Kelleway Avenue and Lexcen Avenue
FStatement 14 December 2010 of Constable Garrett
GPhotographs showing the police car and the accused’s car at the place of the collision
HStatement 2 January 2011 of Constable Paulin
JStatement 22 December 2010 of Sergeant Andrew Mitchell
KStatement 30 December 2010 of Constable Laundon
LStatement 22 June 2012 of Constable Stokan
MPhotographs of the place of the collision
all tendered by the Crown prosecutor
After the Crown prosecutor had closed the Crown’s case, the accused’s counsel submitted that the accused did not have a case to answer in relation to counts 1 and 3 of the indictment because the evidence does not show or allow an inference to be drawn that the accused’s intention in driving his car from the driveway on which it was parked onto Kelleway Avenue (see paragraph 7 above) was to hinder Constable Franzi and Constable Garrett from investigating some matter, and he did not have a case to answer in relation to count 4 of the indictment because the evidence does not show or allow an inference to be drawn that the accused used his car against Constable Garrett by driving it forward after Constable Garrett had opened the driver’s door (see paragraph 7 above). After hearing submissions from the accused’s counsel and the Crown prosecutor, I agreed with the accused’s counsel and I held that the accused does not have a case to answer in relation to counts 1, 3 and 4 of the indictment.
Then, that day, 5 July 2012, I heard evidence from the accused, called by his counsel, and I received exhibit 1: a report dated 24 April 2012 of Dr Shahran Shafieri of the Department of Ophthalmology of Canberra Hospital, tendered by the accused’s counsel, after which I stood over the trial to 6 July 2012.
On 6 July 2012 I heard the rest of the accused’s evidence and then submissions from the Crown prosecutor and the accused’s counsel, after which I stood over the trial to a date to be fixed for my judgement.
The accused said these things. He had been drinking a lot of beer. He had had an argument with his partner, Ms Walsh, after which he got into his car and drove it away from Ms Walsh’s home. He parked the car on a driveway on Kelleway Avenue some distance away from Ms Walsh’s home and, when he was in his car, he used his mobile telephone to call Ms Walsh. He said some things to Ms Walsh which he should not have said. Later he saw the policemen arrive outside Ms Walsh’s home. The police were in uniform. He saw the police walking towards him and his car. He thought that he was in trouble and that the police were coming to arrest him. He turned on the engine and lights of his car. He put the gear lever of his car into drive and he depressed the car’s accelerator just as the driver’s door of his car was opened and the policeman said, “Stop. Police”. He turned to look at the policeman at the driver’s door of his car just as the car moved forward. He thought that the other policeman was behind the policeman who had opened the driver’s door of his car. He did not see the policeman in front of his car. He did not deliberately drive his car at the policeman. His intention was to escape from the police to avoid being arrested. Later, at the roundabout at the intersection of Kelleway Avenue and Lexcen Avenue he was blinded by the glare of the headlights of the police car as he drove through the roundabout and he thought that he was driving in a straight line along Kelleway Avenue when his car sideswiped the police car. He got out of his car after the collision as police walked towards him and he lay on the ground alongside his car. He did not deliberately drive his car directly at the police car. He had paid $40,000 for his car and he did not intend to damage his car by driving it into the police car.
As I am the judge of the facts as well as the judge of the law, I recognise that the following principles, which are designed to ensure that an accused person receives a fair trial according to law, govern the trial.
The essential elements of the offence charged by count 2 are that the accused
In other words, applicable to the present case, the accused
i.intentionally and
ii.unlawfully
iii.drove his car towards Constable Franzi
iv.in circumstances likely to injure Constable Franzi.
The essential elements of the offences charged by counts 5 as to Constable Franzi and count 7 as to Constable Garrett are that the accused
In other words, applicable to the present case, the accused
i.intentionally and
ii.unlawfully
iii.drove his car into the police car
iv.in circumstances likely to injure Constable Franzi and Constable Garrett
v.with the intention to avoid being arrested.

The essential elements of the offences charged by count 6 as to Constable Franzi and count 8 as to Constable Garrett are that the accused
In other words, applicable to the present case, the accused
i.intentionally and
ii.unlawfully
iii.drove his car into the police car
iv.in circumstances likely to harm Constable Franzi and Constable Garrett.
The essential elements of the offence charged by count 9 are that the accused
In other words, applicable to the present case, the accused drove his car into the police car intending to injure Constable Garrett and, by doing so, caused Constable Garrett to suffer bodily harm.
The accused’s counsel told me that the issue applicable to each of the charges was the accused’s intention at the time of his doing what he did. In other words, does the evidence prove beyond reasonable doubt that the accused:
Someone’s intention to do something can be proved by words, or conduct, or a combination of words and conduct. The Crown relies upon the accused’s conduct to prove his intention. The accused says that his intention cannot be proved by his conduct alone and that what he says about his intention must be taken into account. Of course, the circumstances in which someone does something may provide the most convincing evidence of that person’s intention at that time, but it must not be overlooked that it is the actor’s intention which must be proved, not what an observer’s intention might have been, had the observer been in the position of the actor. In other words, the test to determine intention is a subjective one, not an objective one, taking into account the person’s conduct.
The accused does not deny what the police say happened, other than that he denies that he was in his car, pinned by the inflated driver’s air bag, when it was approached by Constable Garrett and Constable Franzi and that he was removed from the car by Constable Garrett, rather he says that he left his car as police approached it, and laid on the ground alongside it, but he denies that he saw Constable Franzi standing on Kelleway Avenue in front of his car when he drove it forward and to his left from the driveway onto Kelleway Avenue, that then he intended to drive his car at Constable Franzi and that he intended to drive his car into the police car near to the intersection of Kelleway Avenue and Lexcen Avenue.
It would be easy for me to find, from what happened, that the accused must have seen Constable Franzi standing in front of his car when he drove it from the driveway onto Kelleway Avenue and, therefore, he must have intended to drive his car towards Constable Franzi, and that he must have seen the police car parked at the northern kerb of Kelleway Avenue close to the roundabout in the intersection of Kelleway Avenue and Lexcen Avenue and, therefore, he must have intended to drive his car into the police car, but, to do that, I would have to reject or ignore the evidence of the accused.
As to the incident when the accused drove his car from the driveway onto Kelleway Avenue, causing Constable Franzi to fear that he would be hit by the car and to jump away from the path of the car, the accused said that, when the policeman opened the driver’s door of his car and said, “Stop. Police”, he turned his head to look at the policeman with his left eye, because he had greatly impaired vision in his right eye, and he assumed that the other policeman was behind the policeman who had opened the driver’s door of his car. I am not prepared to reject the accused’s evidence as to what happened. I can understand why he turned his head to look at Constable Garrett when he opened the driver’s door of his car and I can understand his assumption as to the whereabouts of Constable Franzi when Constable Garrett opened the driver’s door of his car. Everything happened quickly, in a time measured in seconds, and the accused was not expecting Constable Franzi to be standing in front of his car. In the result, I am not satisfied beyond reasonable doubt that the accused intentionally drove his car toward Constable Franzi as required by count 2.
As to the incident when the accused drove his car from the roundabout, in the intersection of Kelleway Avenue and Lexcen Avenue into collision with the police car, the accused said that he was blinded by the headlights of the police car and he thought he was driving his car in a straight line when his car sideswiped the police car. The photographs numbered 4 to 11 inclusive, of exhibit G, show that the police car suffered damage from the driver’s side front bumper bar corner, along the driver’s side, to the panel of the caged section of the car behind the driver’s side rear wheel arch and the photographs numbered 15 to 18 inclusive, 31 and 37 of exhibit G show that the accused’s vehicle suffered damage to the driver’s side front quarter panel. It is obvious that the driver’s side front corner of the accused’s car hit the driver’s side front bumper bar corner of the police car and then scraped along the driver’s side of the police car until it spun around the driver’s side rear corner of the police car and then struck the kerb coming to rest against the kerb. Photographs numbered 11 and 17 of exhibit M show that a driver of a car driving the path being driven by the accused could think, if blinded by the headlights of an oncoming car, that he was driving in a straight line along the road when he was driving diagonally across the road. I accept that the accused did not want to damage or destroy his car. The fact that the accused drove his car around the front of the police car at the roundabout in the intersection of Kelleway Avenue and McClelland Avenue without hitting the police car (see paragraphs 8 and 9 above) tends to confirm that the accused did not want to damage or to destroy his car and that he did not intend to drive his car into the police car. In the result I am not satisfied beyond reasonable doubt that the accused intentionally drove his car into the police car as required by counts 5, 6, 7, 8 and 9. I consider this collision to have been an accident.
Nothing that I have said means that the accused did not act irresponsibly or recklessly. He did not hold a driver’s licence. He did not have full vision in both eyes. He did not have good night vision. He was affected by the alcohol that he had drunk. He drove his car at excessive and unreasonable speeds in roads of a residential area. Although he did not intend it, his manner of driving resulted in a collision and in the injury to Constable Garrett.
As I am not satisfied beyond reasonable doubt that the Crown has proved the essential element of intention in its case against the accused, I find the accused to be not guilty of counts 1 to 9 inclusive of the indictment.

I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 14 August 2012

Counsel for the prosecution:  Mr A Williamson
Solicitor for the prosecution:  The ACT Director of Public Prosecutions
Counsel for the accused:  Mr J Lawton
Solicitor for the accused:  pappas, j - attorney
Date of hearing:  5 - 6 July 2012
Date of judgment:  2 August 2012