R v Fairbairn
[2011] ACTSC 46
•23 March 2011
R v FAIRBAIRN [2011] ACTSC 46 (23 March 2011)
CRIMINAL LAW – trial by judge alone –threaten to cause a detriment to a person with the intention that the other person would not attend as a witness in a legal proceeding – finding of guilt – no matter of principle.
Supreme Court Act 1933 (ACT), s 68
Evidence Act 1995 (Cth), ss 60, 65, 66
Fleming v The Queen (1998) 197 CLR 250
R v Singh-Bal (1997) 92 A Crim R 397
No. SCC 178 of 2009
Judge: Gray J
Supreme Court of the ACT
Date: 23 March 2011
IN THE SUPREME COURT OF THE )
) No. SCC 178 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
JASON FAIRBAIRN
ORDER
Judge: Gray J
Date: 23 March 2011
Place: Canberra
THE COURT ORDERS THAT:
A verdict of guilty be entered in respect of the charge on the indictment.
Jason Fairbairn, the accused, has pleaded not guilty to a charge that on the 28 October 2008 he threatened to cause a detriment to Christopher Boyle with the intention that Christopher Boyle would not attend as a witness in a legal proceeding.
Mr J Hiscox appeared as counsel for the prosecution. Mr J O’Keefe appeared as counsel for the accused.
Before the Court first allocated a date for the trial of this charge, the accused elected to be tried by judge alone.
Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. Section 68C also requires my judgment in this proceeding to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict (Fleming v The Queen (1998) 197 CLR 250 (at 263)). I must also take into account any warning, direction or comment that Territory law requires to be made to a jury when considering my verdict (see s 68C(3) Supreme Court Act 1933).
There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant; otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
The events giving rise to the charge
Christopher Boyle gave evidence that he attended the ACT Magistrates Court at about 9.30 am on 28 October 2008 in answer to a subpoena to give evidence. The subpoena was issued in respect of a matter concerning the accused involving the unlawful possession of a Kawasaki trail bike. On that day there was another, said to be related matter, involving the accused’s son, Angus.
Mr Boyle took a seat in the foyer area on the first floor of the Magistrates Court facing the stairs on that level. At that time he saw the accused in the company of a woman not known to him. He said the accused came up to where he was seated pointing and waving his finger at him and spoke to him. As to that conversation, his evidence was:
What did he say?---Can’t remember precisely but he’s said something like if I don’t leave the courtroom - leave, he’ll make me disappear. I’m a dead cunt or something like that. Can’t remember. It was a while ago.
Sure. So sorry, you just said if you don’t leave the courtroom?---I’ll make you disappear or something or dead cunt, yes.
Courtroom, I’ll make you disappear?---Yes. Or something like that. I can’t remember. It was a while ago but something like that.
Said something about dead?---I’m a dead cunt, yes.
Can you describe the tone of Mr Fairbairn’s voice when he said those words to you?---He was pissed off and angry, I guess.
It is this conversation upon which the prosecution relies to constitute the threat involved in the charge. Mr Boyle went to security and told them what had happened. Subsequently police attended. Mr Boyle said that he went to the courtroom and remained there although he said he cannot remember whether he gave evidence.
Mr Boyle left the court around lunchtime. When walking out of the front door of the courtroom he saw the accused come down the stairs. Mr Boyle was going to the City Police Station to report under his bail conditions. He said that he was followed by the accused. His account of what took place was:
Did he catch up to you at any stage?---He was a fair way. He said a few things. I just kept on walking and then the detectives were following him as well, I believe. And then he said a few more things saying, “I know where you live” and “your best mates are coming” and then I sort of shaped up, stood my grounds and I was ready to have a go with him and then police officers pulled us apart, like got between us.
Okay. So just going back a couple of steps. You said you’re walking across and he said some things to you - - -?---Yes.
- - - first time. Do you recall what he said?---“I know where you live. You’re a dog. Your best” - said a few other things. I can’t remember but remember - - -
And - - -?---Beg your pardon?
And in relation to your position when he was saying that, was he behind you, beside you, in front?---He was behind me.
He said that at the time he “shaped up” to the accused and said, “Have you got a problem? Let’s have a go”. At that stage, police officers intervened between the two of them. Subsequently, the accused was arrested.
The security officers, Mr Donnigan and Mr Foley, gave evidence. Mr Donnigan said that Mr Boyle told him that “one of the person[s] that I’m here to testify for has made a threat”. Mr Donnigan’s evidence as to Mr Boyle’s appearance and what he was told was:
You said that he looked white as a sheet. At this point in time, were you able to pick up or did you observe any other characteristics about ‑ ‑ ‑?‑‑‑He was - he seemed very twitchy, nervous. I - it looked like that he had real fear in him, to be honest. At first I thought he was, you know, sick, pale but when he - he was continuously looking back over his shoulder as if he was expecting someone to be there. Once he explained what he was here to do, that he was a witness, I said to him, “do you want to make a complaint about that?” and he said, “yes” and then I instructed my fellow officer, Tom Foley, to call the police.
Okay. Now - - -?---And that - - -
- - - just stop you there. You indicated that Mr Taylor, or Boyle, told you that he’d been threatened?---He did.
Did he say to you what the threat was?---He indicated - we said to him, “what was the nature of the threat?”, we asked him. And he said that a gentleman called Jason Fairbairn, those were the words he used, had told him to disappear or he’ll make him disappear or words to that effect. And then we said to him, “do you want to make a complaint? Because we’re not police officers, we can’t act on that”. He said he did and then we called the police and involved the authorities.
Mr Foley, the other security officer, said that he was told by Mr Boyle words to the effect that he was a witness in court and that he had been threatened with violence.
Similar evidence as to the threat was given by the uniformed police officers who attended, Senior Constable Cooper and Constable Moir. The police officers involved in the cases of the accused and his son, Detective Senior Constables Cox and Dean, were told the same thing by Mr Boyle. The repetition by Mr Boyle to various persons of what was said adds little, but the initial representation to Mr Donnigan demonstrates a representation of what was said by the accused to Mr Boyle which is consistent with Mr Boyle’s evidence in these proceedings. By reason of the representation as to what was said being fresh in Mr Boyle’s memory at the time the representation was made, s 66 of the Evidence Act 1995 (Cth) (Evidence Act) makes the representation admissible. I was not asked to exclude this evidence or limit its use and accordingly it was admitted. Once admitted, it is admissible as to the facts stated in the representation (s 60 Evidence Act; R v Singh-Bal (1997) 92 A Crim R 397 (at 405, 407)) and I must consider what weight I give to it.
Federal Agent Case was the police officer who intervened in the confrontation outside the court. As to this later occasion, he said that Mr Boyle said words to the effect of “Come on” or something like that and agreed that in his statement he said the words were “If you want to go, let’s go”. There was no other evidence given on behalf of the prosecution as to what was said. The evidence of what was said on this occasion can only be relevant insofar as it can be said to cast light on the attitude of the accused towards Mr Boyle and perhaps as to the reliability of the accounts given by Mr Boyle and the accused having regard to the differing accounts that they gave of this incident.
The charge
The charge of threatening to cause a detriment to someone else with the intention that the other person will not attend as a witness in a legal proceeding requires, as the physical element of the offence, the act constituted by the threat to cause a detriment. The fault element of that act is the intention to make the threat. There is the further fault element required to make out the charge, namely that the act be done with the intention that the other person not attend as a witness in a legal proceeding.
The issues
In the present case, the accused denies that he uttered words anything like those deposed to by Mr Boyle. He also said that Mr Boyle would not have been required to give evidence in his legal proceedings as he had informed his solicitor some time before of his intention to plead guilty to the charge before the court on that morning and, in fact, two days later did indeed enter such a plea. The implication sought to be drawn from this evidence is that the accused had no motive to warn off Mr Boyle and, accordingly, no intention that Mr Boyle not attend as a witness.
I am satisfied that, if what Mr Boyle said were the words said by the accused, that they constitute a threat to cause a detriment to him. I do not understand that characterisation of the words that Mr Boyle said were uttered to him to be an issue. The issue is whether those words were uttered at all and whether an intention can be shown on the part of the accused that Mr Boyle not attend as a witness in a legal proceeding in light of the fact that the accused intended to plead guilty in the proceedings concerning him.
The accused’s evidence
When the accused gave evidence, he said that he only vaguely knew Mr Boyle. He said that he knew that he had been charged in respect of unlawful possession of a trail bike which he had purchased from Mr Boyle. He said that he intended to plead guilty to that charge and that he had told his solicitor of this but his solicitor told him to wait and see what happened in the matter concerning his son Angus.
He agreed that he approached Mr Boyle waving his finger at him as depicted on the CCTV. He said that what happened was:
I leant over him and said “you stole my car, you dog” and that was it.
He was then asked:
Right. Now what was that about? Can you tell us what the stolen car thing was?---He stole my car, basically.
At no stage in his examination or cross-examination was he asked to elaborate on this explanation or to explain why it was necessary to confront Mr Boyle at this time.
As to the later confrontation outside the court he gave this evidence:
... You’ve said you left the court, you’re walking in the direction of the police station and you passed Chris Boyle on the way, is that right?---Yes.
Now did you say anything to him?---Yes.
What did you say?---“Every dog has his day”.
Is that all you said?---Yes.
Okay. So what did you do then?---Kept walking. I got a couple of metres past Chris. He’s - he then yelled out to me, “come on, cunt, you want to have a go?”. I turned around. There was then a police officer in between us and I said, “your mates are here. You’ll be right” and then I think it was the guy in between us told me to leave. I then turned around and walked to the police station.
Later he said:
What did you mean by the comment, “every dog has his day”?---Well he’d just given evidence against Angus and I was - yes.
That last answer is consistent with the prosecution case that the accused was annoyed at Mr Boyle having given evidence. It is also not entirely consistent with the accused’s denials that he did not know why Mr Boyle was at court that day although it is possible for the accused to maintain that his comment was only made after Mr Boyle had given evidence. However, it is consistent with the sort of reaction that a person who has sought to warn off another might make when the warning was not heeded. It clearly bears no relationship as to what the accused said that he said to Mr Boyle in the confines of the court, although, in the cross-examination of Mr Boyle, it was suggested to him that it was a similar conversation to the one that had taken place in the confines of the court.
The accused said in his interview with the police on the day of the incident that “he’s [Mr Boyle] obviously there with something to do with that bike, but I don’t know what for”. He gave the following responses in cross-examination:
You knew - - -?---I knew. I didn’t know why Chris was there that day, because all I was worried about was what was happening with Angus.
You were at court for a hearing, you had a brief of evidence provided to you. You’d spoken to your solicitor beforehand. You knew Chris’s involvement in selling you the bike?---Yes.
You knew he was there as a witness?---As far as I know.
And you also knew that he was a witness against Angus?---Yes.
In relation to this motor bike?---Well no, because Angus didn’t - he got charged with possession of stolen goods, so I couldn’t give a shit why Chris was there.
You knew he was there to dob on you, and dob on your son?---After he’d been in court I knew that, yes.
Having regard to the accused’s evidence as a whole, I do not accept his evidence that he did not know why Mr Boyle was at court that day. I am satisfied that he must have known that Mr Boyle was there that day as a witness in the matters concerning the accused and his son.
The accused’s long term partner gave evidence that she was standing close enough to hear the words used by the accused. She said that she heard the accused say to Mr Boyle, “You stole my car, you dog”. Those are the identical words deposed to by the accused.
She said that she had not spoken to the accused about the words used and it was only “last week” that she was asked to give evidence. She was not asked how it came about that she volunteered to give evidence. I find that the unqualified repetition of the exact words that the accused said he uttered to not be particularly credible after such a long interval of time.
I also find that her evidence that she has never spoken to the accused about the matter as extremely unlikely but apart from her denial in that regard, she was not asked any questions as to how it came about that she was placed in a position of giving this evidence. Further, although she said that she did not discuss the matter with the accused on the day he was arrested, I find it difficult to accept that the matter was not discussed at all. If the topic had been discussed, that may have affected the reliance I might place on her evidence particularly as a representation admitted under s 65 of the Evidence Act. If it was not discussed with the accused at all, then I have no confidence in the professed certainty which she assigned to the words that she said were used. Accordingly, I have severe reservations about her evidence and I am not prepared to accept it as a credible or reliable account of what she said she heard.
Likewise, for the reasons which follow, I do not accept the accused’s evidence as to what he said he said to Mr Boyle.
Reference may be made to Mr Boyle’s evidence when cross-examined about the words spoken:
Jason’s version of what he said to you is quite different and I’ll put it to you. He says that he said, “You’re a dog, why did you steal my car”?‑‑‑No, please. Load of bull.
Did you have a dispute with him over a car?---Ages ago, yes.
Did you borrow a car and not bring it back or something?---No.
What was the story?---He wanted his car to go missing or whatnot and I have to give evidence about that on 20 June. I do. I’ve been subpoenaed to go to court about that as well.
HIS HONOUR: This year?---Yes, this year.
MR O’KEEFE: Okay. But you’re quite clear that he didn’t say to you, “You’re a dog, why did you steal my car”?---No. That’s not true.
I make the following observations. The dispute about the car, on Mr Boyle’s evidence, does not seem to lend itself to a requirement to interrogate or to accuse Mr Boyle as the accused said he did. Nor do I have any explanation from the accused as to why he was making such an allegation at that point in time. Further, the words put to Mr Boyle in cross-examination differ from what the accused gave in evidence to the extent that they amount to a demand for an explanation, not an allegation. In either case, the accused gave no elaboration of his purpose in uttering the words.
A further significant matter is the response the accused made to the police when being questioned about the incident on 28 October 2008. The following are the relevant questions and answers:
Q40All right. What I’ll do is I’ll – I’ll read the allegation to you again, so you know why we’re here. And that’s that you did – at about eleven – sorry, at about ten am this morning, Tuesday the twenty-eighth of October, two thousand and eight, threaten and harass a Christopher BOYLE at the ACT Magistrates Court on London Circuit, in the Australian Capital Territory. Can I get you to tell me your version of events as to what happened today?
A40I never spoke to him this morning.
Q41Yeah?
A41I saw him and that was it.
...
Q71Okay. When was the first time you saw him today?
A71After I’d come out of court. I’m pretty sure it was him, yeah.
Q72And you didn’t approach Christopher before then?
A72No.
Q73Are you aware that the ACT Magistrates Court has closed circuit television footage.
A73Yep.
Q74All right. Information we received was that you’ve approached Chris and had words with him. Is that true?
A74No.
Q75Inside the court at any stage?
A75No.
...
Q80And you definitely never spoke to him today at all? All right.
A80I did outside there, yeah.
Q81Yeah?
A81Yeah.
The effect is a denial to the police that the accused spoke to Mr Boyle at all in the confines of the court. He was asked for his reason for this in cross-examination:
Now in your interview with police you said that you got to court and you went to the top of the stairs, and he was actually waiting around those stairs? You did not have any contact with Chris Boyle that morning? You said that to police, didn’t you?---Yes.
And that was a lie, wasn’t it?---It was a lie because I didn’t want to tell police what I’d said to Chris because it was about another matter that I didn’t want - I didn’t want to tell police that he’d stolen my car, basically.
I find the accused’s explanation quite unconvincing. Even if I allow for a resolution on the part of the accused to not ‘dog’ on anyone as he professed, the denial of contact in the court precincts is not explicable to me on the basis given by the accused. Acknowledgment of contact does not mean that what was said need be disclosed.
The prosecution did not rely upon the denial as a consciousness of guilt but rather as attesting to the reliability that I could place on the accused as a credible witness. I approach the evidence given by the accused on this aspect on that basis.
Having regard to all these matters, and my overall assessment of the way the accused gave his evidence, I was not impressed by the evidence given by him and I do not accept it.
Mr O’Keefe submitted that I should also not be impressed by the evidence given by Mr Boyle.
In summary, Mr O’Keefe said that Mr Boyle had a selective memory, remembering certain things with clarity and not others. He also referred that Mr Boyle was “a man of questionable character who operates under different identities, admitted to selling a stolen bike to [the accused]”. He was critical of aspects of Mr Boyle’s evidence relating to what he told the police officers although he could not challenge the consistency of Mr Boyle’s account to those persons.
I take into account those criticisms but having regard to my impression of the way Mr Boyle gave his evidence, supported by the observations of his demeanour by the security and police officers, I consider that I can accept as reliable his account of what the accused said to him in the confines of the Magistrates Court. I am satisfied beyond reasonable doubt that the accused threatened to cause a detriment to Mr Boyle. From the words used, I am also satisfied beyond reasonable doubt that the accused knew that Mr Boyle was there for the purpose of giving evidence as a witness in either his or his son’s matter and that the accused intended, by the threat that he made, that Mr Boyle not attend to do so.
I find the accused guilty.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 23 March 2011
Counsel for the prosecution: Mr J Hiscox
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr J O’Keefe
Solicitor for the accused: Mr J O’Keefe
Date of hearing: 28 February, 1 March 2011
Date of judgment: 23 March 2011
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