R v Garland
[2020] ACTSC 242
•11 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Garland |
Citation: | [2020] ACTSC 242 |
Hearing Dates: | 31 August, 1, 10 September 2020 |
DecisionDate: | 11 September 2020 |
Before: | Mossop J |
Decision: | Not guilty on all counts: see [66] |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – Burglary – common assault – demand with a threat to kill – theft – accused and complainant were known to each other – history of allegations by the complainant – decline in the complainant’s mental health – reasonable doubt as to whether the events occurred – not guilty |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 32(1)(a) Criminal Code 2002 (ACT), ss 308, 311 Supreme Court Act 1993 (ACT), s 68C |
Parties: | The Queen (Crown) Toby Garland (Accused) |
Representation: | Counsel S McFarland (Crown) T Trotter (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 55 of 2020 |
MOSSOP J:
Introduction
The accused, Toby Garland, faces four counts on an indictment dated 21 April 2020. It is alleged that he entered the complainant’s house in North Lyneham, assaulted her, made a demand with a threat to kill and stole some coins and a two litre container of orange juice.
Count 1 is a charge of burglary, contrary to s 311 of the Criminal Code 2002 (ACT). Count 2 is a charge of common assault, contrary to s 26 of the Crimes Act 1900 (ACT). Count 3 is a charge of making a demand with a threat to kill or inflict grievous bodily harm, contrary to s 32(1)(a) of the Crimes Act. Count 4 is a charge of theft, contrary to s 308 of the Criminal Code.
The accused elected for trial by judge alone.
The Crown case
The Crown case relates to incidents alleged to have occurred on 22 December 2019. The accused and the complainant live near each other. They have known each other since 2005. At 7am on 22 December 2019 the complainant was asleep in her bed. The accused is alleged to have entered her residence as a trespasser through a glass sliding door at the side of the house (count 1). The complainant is alleged to have been woken by the sound of her dog barking. The accused is alleged to have walked into the doorway of the complainant’s bedroom and closed the door behind him demanding money, “Where’s the money? Where’s the money? Where’s the money?”. The complainant is alleged to have replied “I haven’t got any money. I haven’t got any money”. She said “I haven’t got it. It’s in the bank”. The accused is then alleged to have demanded her cards. The complainant is alleged to have attempted to get up from the bed and the accused then pushed her back down by pushing her hard on the chest (count 2). He would not let her stand up. He then threatened to kill her saying “If you don’t give me the money, I’ll kill you” (count 3). The complainant is then alleged to have asked him “How’d you get in?”, to which he replied “I’ve got your keys”. He is then alleged to have left the bedroom and gone into the hallway, searching for items on the kitchen bench. He dropped some medication on the floor but located some coins and took them (count 4). He then took a two litre container of orange juice out of the fridge (which is also count 4). He left through the sliding door and jumped over the fence and ran away.
Directions
Under s 68C(2) of the Supreme Court Act 1993 (ACT) I am obliged to set out:
(a) the principles of law applied; and
(b) the findings of fact which I make.
I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).
General principles
The Crown bears the onus or burden to prove the guilt of the accused. The Crown has asserted that the accused has committed criminal offences, therefore the Crown must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness has said I consider worthy of acceptance and reject the rest of what that witness has said as I consider it unworthy of acceptance.
In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
In this case the accused did not give evidence on oath or affirmation. He was not obliged to do so. The onus at all times lies upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.
Directions particular to this case
I have also given myself the following directions.
Murray direction: As the Crown case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the accused on the basis of that evidence if I accept it. However, in order for the Crown to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
Markulevski direction: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charges.
Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act): In this trial evidence was given by pre-recorded police interviews, by audiovisual link and using a witness intermediary. That is the usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given greater or lesser weight because the evidence was given in that way: EMP Act ss 4AM(3), 57(2), 72(2).
Elements of the offences
The elements of burglary are:
(a)the accused entered or remained in a building;
(b)the accused intended to enter or remain in a building;
(c)the accused was a trespasser (that is, he had no permission to enter or remain in the building);
(d)the accused was reckless as to whether his entry into or remaining in the building was without permission; and
(e)at the time of entering or remaining on the property, the accused intended to commit theft of any property in the building.
The elements of common assault are:
(a)the infliction of force on another person;
(b)the accused intentionally or recklessly inflicting that force;
(c)the other person not consenting to the infliction of force; and
(d)the accused having no lawful excuse for the infliction of force.
The elements of making a demand with a threat to kill are:
(a)the accused made a demand of another person;
(b)the accused intended to make that demand;
(c)at the time of making the demand, the accused made a threat to kill or a threat to inflict grievous bodily harm on someone other than the accused or an accomplice of the accused; and
(d)the accused intends to make the threat to kill or a threat to inflict grievous bodily harm.
The elements of theft are:
(a)the accused appropriated something;
(b)the accused intended to appropriate something;
(c)the something that is appropriated is property;
(d)the accused was reckless as to the fact that what was appropriated was property;
(e)the property belongs to another person;
(f)the accused was reckless as to the fact that the property belonged to another person;
(g)the appropriation was dishonest according to the standards of ordinary people;
(h)the accused knew the appropriation was dishonest according to the standards of ordinary people; and
(i)at the time the accused appropriated the property, the accused intended to permanently deprive the person to whom the property belonged of the property.
The issue
As the case was run, the issue was whether or not the Crown had proved beyond reasonable doubt that the events occurred at all. The position of the accused was that there was little, or no, corroboration of the complainant’s allegations and that the history of complaints made by the complainant, and her mental health, were sufficient to create a reasonable doubt as to the truth of her complaint.
Evidence of witnesses
Evidence of the complainant
The complainant gave her evidence‑in‑chief via an evidence‑in‑chief interview conducted with a police officer on the day of the incident.
Her evidence was that at about 7 o’clock in the morning on 22 December 2019 the accused came to her house. Her dog was barking furiously. The complainant was in bed. She sat up to see what the dog was barking at. She saw the accused, who lives three doors down from her, come through her bedroom door into her bedroom. He was saying “Where’s your money? Where’s your money? Where’s your money?” She said “I haven’t got any money”. She told him “I haven’t got it. It’s in the bank.” She tried to get out of bed. She got up to standing and then the accused pushed her down onto the bed again. She said that she asked him how he got in and he said “I’ve got your keys. I’ve got your keys”. He asked her “Well, what about your cards? Where are your cards?” He shoved her back down and would not let her get up. He said that he did not believe her. He then said “if you don’t give me the money … I’ll kill you”. He then closed the door behind him and went out into the hallway and into the kitchen. He started ferreting through her medications from the chemist and the prescription medication from the doctor. She said “There’s no money there. There’s no money there. Nothing.” The accused got the change from the bench. He dropped a lot of medication onto the floor. When he was finished getting the change from the bench and looking through the plastic bags that were on the bench, he went over to the fridge and hauled out a two litre container of orange juice. He went through the open sliding door in the breakfast room which opened onto the backyard. She saw him get over the padlocked side fence and she did not see him after that.
She described him as wearing “longer short-type pants” and a grey hoodie.
She described him as having previously thrown 30 rocks through her windows. She described that he had previously stolen money from her. She said that he had tried to kill her in the past.
In cross‑examination the complainant said that when she was disturbed by the accused it was light in the bedroom because she had left the hall, lounge and kitchen lights on. She said she had no difficulty seeing the accused. He was wearing a grey hoodie. As to the colour of his shorts, she said that it was an indeterminate colour, grey or dark green. Initially the hood of his hoodie was up. He pushed it back when he was going around the bedroom before going to the kitchen. She said he was not wearing gloves. She thought about 15 coins had been stolen. She said that he did not take a flatscreen television that was in the lounge. She said that she locked the glass sliding door every night.
She gave evidence that prior to the date of the incident there was a crack in the bottom of the screen door. She did not know whether the locking mechanism on the door had been broken prior to the date of the incident. However, she did not believe that the lock was broken during the incident. She did say that the security screen door had not been broken previously.
She agreed with the proposition that she had been pushed down twice. She said that she had been pushed down “very hard” or “very very hard”. She said that she had been pinned down by the accused and he had put his right arm across her collarbone and neck. She said that she could breathe because she was shouting that her money was in the bank. She did not notice any redness or bruising on herself at the time. She could not recall whether she felt any injury or soreness to her neck when she was interviewed by police.
She said that when the accused left, she went outside on the step and watched him jump the fence. She described the orange juice as being “Nude” brand (I assume she meant “Nudie”) and that it was a one litre container.
She said that the accused had previously knocked her teeth out with a rock in December 2008. She said he had knocked out:
Almost all of my teeth except for the three in the front and two molars, one in the left back and one in the right back. The ones in the front were wobbly and came out the next morning because they were so wobbly and the ones at the back, the two molars at the back were taken out by a dentist so that I could proceed to have a denture.
She was asked about her mental health. She said that she was apparently wrongly diagnosed as delusional in 2001 because a psychiatrist did not accept that her chronic fatigue symptoms were real.
She accepted that she was currently on a psychiatric treatment order. She was not aware of her diagnosis. She was aware of a letter being sent to the ACT Civil and Administrative Tribunal saying that she was unable to know the consequences of her actions and was suicidal, but she said that neither of these things were true.
She agreed that previously she had made allegations that the accused had assaulted her and had burgled and robbed her. She said that each of those allegations was true. She said that each time that she phoned police making allegations, those allegations were true.
Christopher Southorn
Mr Southorn gave evidence that he was woken that morning at 7:30am by the accused yelling at the door. The accused said that he had tobacco for sale. The accused was puffing and out of breath. He was wearing a light blue hoodie and light board shorts and sneakers. Mr Southorn said the accused asked him whether he wanted tobacco. It was three pouches for $30. Mr Southorn had $35 and gave it to the accused. The accused gave him back $5 but did not give him the tobacco. About five or 10 minutes later he saw the police outside the accused's mother's house.
In cross‑examination he confirmed that the accused was wearing a light blue hoodie and white board shorts which were knee-length. He agreed he had told police that there was “Everlast” written on the front of the hoodie, but in evidence he was not sure what was written there. However, Mr Southorn said that he was sure that the hoodie did have a pattern or print on the front of it.
James Johnston
Mr Johnston is a constable of police attached to City Police Station. He and another officer, Constable Liam Cavana, started duty on 22 December 2019 at 6am. At 7:12am they received communication which led them to the complainant's house. When Constable Johnston entered the residence, he spoke to the complainant. She was “upset but coherent”. He was told by the complainant that she had awoken and seen the accused in the doorway of her bedroom. He had pushed her, demanded money from her and demanded her credit cards from her. She said the accused had walked around the residence. He was wearing a grey hoodie and dark shorts. She said he took coins and juice. He then departed the residence by going out the glass sliding door and over the fence that divided the front garden from the back garden. She said that he demanded to know where the money was and said “If you don't give me money I'll kill you”. She said he had the keys to the residence. She said that she had been pushed down and that when she attempted to sit up, he pushed her with two hands back onto the bed.
Constable Johnston gave evidence that he examined the glass door and saw that the locking mechanism at the handle had been ripped out. He observed that glass in the bottom right corner of the door had been fractured but there was no hole in it. The complainant told him that she had locked the door the previous night and that the damage was new. She alleged that the accused had opened it.
Constable Johnston said he exited the premises and had a discussion with other police officers about what to do. Whilst standing outside, Mr Southorn arrived in a white Toyota Hilux at about 7:50am. Mr Southorn told Constable Johnston that he had been approached by the accused who offered to sell him two pouches of tobacco for some money. Constable Johnston gave evidence that the distance between the complainant's house and Mr Southorn's house was approximately 400 m.
He subsequently arrested the accused. After the incident involving the complainant, Constable Johnston had been unable to locate him. At 11:20pm on 31 December 2019 he and another officer attended the accused’s residence. He could hear noise at the rear of the premises. He went down the side of the property and observed the accused in the backyard. He shone his 10,000 lumen torch at him and told the accused not to move. The accused turned and ran and jumped the fence into a neighbour's house. Tactical response officers attended and entered the neighbouring residence. They took the accused into custody. Constable Johnston told the accused that he was under arrest. He said that the tactical response officers had with them a mobile device that indicated that the accused was wanted for a breach of bail, which involved a failure to comply with directions.
In cross‑examination, Constable Johnston said that the complainant had been “very vague” in her description of the orange juice container that was taken. The officer did not go into detail with her because he knew that an evidence‑in‑chief interview would be conducted. He confirmed that she had told him that the accused was wearing a grey hoodie and dark shorts. In relation to the sliding door, Constable Johnston gave evidence that he thought that the bolt was attached to the frame and engaged with the lower part of the door. He said that, at the time, he thought that it was the deadbolt that had damaged the glass. He did not test the deadbolt. He did not observe any damage to the frame. He did not identify any area that was suitable for the taking of fingerprints or the collection of DNA.
He identified that the accused has been in custody since his arrest. He was asked about what the complainant had told him about being pushed back onto the bed. He could not recall whether she said the accused used two hands. He could not recall any complaint of injury or soreness by the complainant and said that he would have called the ambulance service if there had been such a complaint and the ambulance service was not called.
Police records
Police records from the PROMIS database relating to complaints that the complainant made about the accused between 30 November 2018 and 2 November 2019 were tendered and became Exhibit 2.
The police records contained a history of earlier complaints about the accused by the complainant. Those records may be summarised as follows:
30/11/2018
Car registered to the complainant had a collision with a parked car. The complainant refused to tell police who was driving the car. Police recorded that since the accident she had been in the “OPMH Ward of Calvary” and she had given her keys to police. Police determined it was not in the public interest to continue investigations.
08/12/2018
The complainant reported rocks being thrown at her property. Police attended and spoke to the complainant. The PROMIS record provides:
“She then stated that [the accused] had run up … to her residence, thrown a rock at her fly screen, picked the rock up and ran away. Complainant’s version of events changed throughout speaking to Police.” Police did not observe any damage to the front of the premises. The accused did not answer the door when police attended his premises.
19/12/2018
The complainant reported that the accused had entered her house, stolen her bag, hit her and pushed her against the bed. She said that her St George bank card was stolen. She said that he had also “knocked out all her teeth previously” and thrown “17 rocks through her window”. The PROMIS report refers to her previous allegations against the accused and the absence of witnesses. Police were unable to contact the accused and did not proceed with the investigation.
31/12/2018
The complainant reported that her car windows had been smashed and $800 had been taken. She believed that the accused was responsible. Police attended the location and found that a vehicle in the complainant’s yard had the passenger side front window smashed by a rock, which was in the front seat. She stated that she knew that the accused was responsible because he had been smashing her property since 2005. The PROMIS record said “Police cannot even confirm when the window was broken as the complainant became confused with her version of events and the dates and times seemed to change often.” Without further evidence, police declined to further investigate.
03/01/2019
The complainant reported to police that she had been assaulted by the accused three days earlier and that he had broken her rear door and she was unable to leave her property. Police observed that all doors were secured and in working order and there was no visible damage to the property. After a brief conversation the complainant confirmed that she did not want to report an assault and the initial report that she made was not accurate.
05/01/2019
The complainant said that a screw had been forced into the lock of her car. She said that this must be her neighbours. She had not seen the offender. There were no witnesses and no CCTV camera at the premises. She was told that a police patrol would not be attending to speak to her.
06/01/2019
The complainant reported that the previous night the driver’s side lock to her car was damaged. She believed that a male person in his 30’s from a stated address was the culprit. She did not have any evidence to back up her suspicion. She was told that a police patrol would not be attending. This appears to be a similar, or the same, incident as that reported the previous day.
19/01/2019
The complainant reported that a person had been banging on her security front door and then running off. Police concluded that no offences were disclosed.
28/01/2019
The complainant reported that the accused has come to her door and is refusing to leave. She accused the accused of being after her seizure medication. She said that she thought he was hanging around the front of her house. Police concluded that no offences were disclosed.
29/01/2019
At about 11am the complainant reported that the accused had taken her handbag and contents and pushed her over, causing her to hit her head on a rock. Police attended and had a conversation with her. She said that she had gone through her side gate and found the accused crouched behind the gate. She said that the accused told her he was there to return her money. He reached into his pocket and approached her. When he was close to her he pushed her over and she fell to the ground. He grabbed her bag which contained her mobile phone and her wallet, containing $800, and ran off. Police decided that because of the lack of corroborating evidence they would not pursue the matter any further.
29/01/2019
At 5:20pm the same day police were called again. The complainant alleged that her neighbour had assaulted her and taken her phone. The complainant stated that after she returned from the shops the accused approached her and took her phone. While talking to the complainant, police observed her mobile phone on the coffee table. When police pointed this out, the complainant stated that it was not her phone on the table. Police opened the phone and confirmed that it was her phone. She was asked about the assault but was adamant that the phone was taken and that she was not assaulted. The officers concluded that no offence was disclosed.
03/02/2019
At about 10am the complainant phoned police claiming that the accused had stolen items from her house and stolen her phone. At about midday police attended and spoke to her. They were told that she had been robbed by the accused of $600. The report by police indicated that the complainant had a history of making complaints about the accused that were unable to be established. It appears that no further action was taken.
09/02/2019
At about 11:30am the complainant reported to police that a male that resides nearby had entered her home, pushed her up against the wall and stolen her handbag and mobile phone. Police found her in a highly agitated state. She said that she had been pushed into a wall by the accused and had a plastic bag full of money stolen. Police inquired further about the details of the incident but the complainant became increasingly agitated, stating that she had mental health issues and needed help. She became increasingly agitated about police asking her for further information, saying that it did not matter what the details were. Police formed the opinion that the allegations were false and took no further action.
12/02/2019
At about 8:30 in the morning the complainant stated that the accused had attended her premises, smashed a window, stolen her dress and assaulted her. Police attended and found the ACT Fire Brigade at the scene. The Fire Brigade officers reported that they had pushed in an already broken glass window to allow access to the residence. Police found the complainant in her lounge room being cared for by a neighbour. She said that she was asleep in bed and heard glass smashing, that the accused had come into her room and pushed her and he had grabbed a green and white striped paper bag which contained a pink dress. She said that he had left and headed towards Cossington Smith Street. Police observed a small boulder in a pile of shattered glass in the rear kitchen. They noted that the boulder was very heavy, and it would not have been possible for the complainant to lift it as she was quite frail. Police believed that an unknown person did smash the window with the boulder, but the identity of that person could not be confirmed. A door knock by police did not obtain any useful information. As the offender could not be identified, police did not pursue the investigation further.
16/02/2019
At about 10:30am the complainant reported to police that the accused attended her premises and assaulted her. The complainant was at a café in Kaleen at the time. She reported to police that the accused always assaults her, that he always come through the side gate, assaults her in her house and then leaves. Police recorded that it was difficult to make sense of what the complainant was saying, as she continued to jump topics and was unable to make sense. She could not give dates or times of the assaults. Police transported her and her dog back to her residence in North Lyneham. Police attempted to speak to the accused but the resident of the house where he was said to live indicated that he had visited a few times but did not live there. Police did not pursue the investigation further.
17/02/2019
Police were called to deal with the complainant who had been seen driving erratically, hitting a light pole and driving into gutters and over garden beds. Police spoke to her and told her that she was not entitled to drive. She said that the accused had damaged her screen door and attempted to enter the premises. Police did not believe her complaint and could not establish that any offence had occurred. Police recorded that they contacted ACT Mental Health and advised them of police concerns in relation to the complainant. The police report includes “Police have become increasingly concerned at the level of her paranoid delusions and incessant calling of ACT Police Communications.” No further action was taken.
18/02/2019
The complainant contacted police and alleged that the accused had thrown her against the wall and bashed her head and demanded money. She said that she had bruises all over her. ACT Ambulance Service attended but police did not.
19/02/2019
At about 9:30am police received a complaint from a member of the public, reporting that the complainant had almost run a woman and her child over at the Kaleen shops. The member of the public reported that the complainant backed out, hit another vehicle and then drove off. Police attended the café attended by the complainant. They spoke to the manager of the café. They spoke to the complainant, who ultimately agreed to give police her keys. She made numerous complaints in relation to the accused. The PROMIS record records “[Police] believe the bulk of these complaints are fictitious”. The police report indicates that as police have her keys, it is anticipated that she will report that the accused has stolen her car and keys. On 20 February 2019 she reported to police that the accused had taken her keys. Her car was removed from the Kaleen shops by rangers. Her keys appear to have been returned to her.
24/02/2019
At 8:40pm the complainant reported that she had arrived home from hospital and that her house had been broken into by the accused and trashed. Police attended at 10pm. Police recorded that they could not obtain a complete version of events from the complainant and that there was no evidence to suggest that a burglary had occurred. Police observed that they could not locate a point of entry and that all rooms were unkempt.
26/02/2019
Shortly after 2pm, staff at the Dickson Library reported that the complainant was harassing staff and wanting her dog back from Domestic Animal Services. Police attended and recorded that she appeared to be in poor physical health and suffering from delusions. She said that she was at the end of her road and was going to kill herself as she had nothing to live for anymore. When the CAT team and the ACT Ambulance Service were unable to transport the complainant to the Canberra Hospital, police did so.
27/02/2019
At about 3pm the complainant reported to police that she saw a male run off from her location, possibly carrying a plastic bag. Police attended and found the residence to be messy but nothing unusual. They were unable to establish that any burglary had occurred. The case officer recorded that it was the intention of ACT Housing to vacate the complainant from that residence permanently.
20/03/2019
At about 10:45am a mental health worker attended the premises and found the premises to have been ransacked. The complainant was located at Calvary Hospital in the mental health wing at the time. The point of entry was a glass sliding door at the back of the house. Every room and cupboard had been searched and ransacked. The glass sliding door at the back of the house had been smashed. There were no suspects and ACT Housing was contacted and indicated that the property would be secured.
28/03/2019
At about 10am police were called to attend the complainant’s premises by ACT Housing and the “Older Persons Mental Health Team”. Police and members of the other organisations went through the house, finding it in a state of disarray. It was dirty and cluttered. The state of the premises was described in detail in the police report. Police recorded that representatives of ACT Housing and the Older Persons Mental Health Team took photos of the state of the premises in order to make recommendations that the complainant not be allowed to return to the premises for her personal, emotional and physical safety. The police report contained a detailed statement of the steps they took to investigate the personal circumstances of the complainant.
03/10/2019
At 3:25am the complainant reported that she had a rock thrown through her window. She was quite hysterical and ACT Ambulance officers were trying to calm her down over the phone. Police attended and found that the lower window adjacent to her front door had been smashed. Police found a rock the size of a child size football in the lounge room. The complainant was hysterical and blamed the accused for the offence. The police record includes the following: “Police have noted the complainant has consistently blamed [the accused] for a number of incidents this year but police have been unable to take action due to a lack of evidence. Police also note that numerous vulnerable people in the North Lyneham area have reportedly been victims of [the accused’s] predatory behaviour.” There was insufficient evidence to move forward to a prosecution. Police cleaned up the broken glass and vacuumed the floor so as to prevent injury to the complainant or her dog.
02/11/2019
At 4am the complainant contacted police saying that she had been awoken by a loud thudding sound at her back door. She found that the rear fly screen had been moved. She said that the thudding was definitely caused by the accused although she had not seen him. She said he had been targeting her residence for years. Police were unable to identify any signs of disturbance or evidence to support the complainant’s allegation. Police were diverted to another incident in which the accused was a suspect. They recorded: “The location, [modus operandi] and timing of the two matters furthers [the accused] as a suspect however, Police have no evidence to prove his involvement.”
Hospital records
The accused tendered records from the Canberra Hospital relating to the complainant’s mental health. These were patient progress notes from the Canberra Hospital, limited to the period 12 August 2020 to 26 August 2020. They were admitted without objection or limitation.
Most of the records form part of a draft application for an application for a psychiatric treatment order being prepared by a psychiatrist at the hospital. Another significant document in the bundle is a report by another psychiatrist to a general practitioner.
No submission was made that the documents should not be given weight because they were stated to be in draft form. I have, however, treated them with some caution because of that. What appears to be reported in the documents are long-standing conditions and as a consequence, that the documents put into evidence may be drafts does not mean that the general statements about the complainant’s condition can be given only minimal weight.
A mental state examination was undertaken by a psychiatrist (Dr Lane) on 22 June 2020. It referred to the complainant suffering from schizophrenia “characterised by delusions of persecution, thought disorder, irritability, and behavioural disturbance”. It made specific reference to having “paranoid delusions … of persecution by “Toby Garland” a real person, hallucinations, behavioural disturbance driven by psychotic experiences”. It recorded that she had a paradoxical stance towards her health, dismissing real and serious illnesses and focusing on symptoms which are variable and lead to the prescription of multiple medications, often of the opioid or benzodiazepine family. It records that she is non-compliant with medication and remains on a psychiatric treatment order.
A draft letter from a psychiatrist at the Canberra Hospital (Dr Heard) indicated that he had reviewed her on 24 August 2020. The opening description of the complainant is as follows:
[The complainant] as you know is a 76yo woman with a long history of schizophrenia, benzodiazepine/opiate misuse and cluster B personality traits, who is typically insightless regarding her illness. She is has [sic] been managed on a psychiatric treatment order (PTO) for the past 6 months and is currently treated with aripiprazole long‑acting injection 200mg IM monthly, which she has been on for the past 2 months due to non-compliance with oral aripiprazole.
He records as part of the summary of his mental state examination:
Insight poor - does not accept she has schizophrenia or needs treatment.
Judgement likely chronically impaired due to personality structure, substance use disorder and lack of insight, but not acutely impaired by psychosis.
In the draft application for the continuation of the psychiatric treatment order, the psychiatrist notes that the complainant had been clinically managed by “Older Persons Community Mental Health” since her discharge from Calvary Hospital in June 2019, after three months there resulting from symptoms of psychosis including behavioural disturbance. It said:
Upon admission, [the complainant] also experienced delirium, hyponatraemia and uveitis, which occurred on a background of schizophrenia (which had gone largely untreated), substance misuse and a range of medical problems including Chronic Fatigue Syndrome. As she did then, [the complainant] continues to deny she has a mental illness.
Later in the application the psychiatrist says:
[The complainant] has been diagnosed with schizophrenia characterised by paranoid delusions, hallucinations and behavioural disturbance driven by psychotic experiences. In addition, [the complainant] has recently been diagnosed as having cluster B personality traits, seemingly manifested in the form of harassing, persecutory behaviour, of various community stake holders involved in [the complainant’s] care including her; general practitioners, veterinary clinic and more recently, the ambulance officers resulting in regular escalation to OPMHCT for advice and input around appropriate management of this behaviour. Historically, AVOs have been sought against her for a variety of reasons including setting fire to a previous residence. [The complainant] has no insight and has continually denied being non-adherent with oral anti-psychotic medication despite showing evidence to the contrary. There is also documented history of substance (opioid) misuse, in the context of long-term pain and chronic health issues. [The complainant] has been diagnosed with hoarding disorder and borders on living in squalid conditions, but for the regular cleaning services she receives, as noted above.
The chronology that can be derived from these records is that the complainant spent three months in Calvary Hospital up to June 2019. That her mental health was declining in the period prior to that admission is consistent with the pattern of complaints in the police records up to the end of March 2019.
She was put on a psychiatric treatment order approximately six months prior to 24 August 2020, as a result of her being non-compliant with her oral antipsychotic medication. This leaves open the real possibility that, in the period from her discharge from hospital in June 2019 up until February 2020 (a period which includes the date of the alleged offences), the paranoid delusions associated with schizophrenia were not properly controlled by medication.
Conclusion
The evidence available to corroborate the complainant’s version of events is minimal. The evidence of Mr Southorn is only of very limited corroborative value (and may not be used as tendency evidence). It does demonstrate that the accused was in the area at the time when the incident is alleged to have occurred. It does demonstrate that he was desperate enough for money in order to steal from Mr Southorn.
The evidence of Mr Southorn was consistent with the description given by the complainant of what the accused was wearing, to the extent that both said that he was wearing knee length shorts and a “hoodie”. There were, however, differences, in that Mr Southorn recorded the word “Everlast” being on the front of the hoodie or possibly some other writing. The complainant did not recall any writing. Further, the colours described were different: Mr Southorn describing the hoodie as being light blue, whereas the complainant described it as grey. Mr Southorn described the shorts as being white board shorts, whereas the complainant did not describe them as board shorts and said that they were grey or dark green.
I do not consider that the fact that the accused ran away when confronted by police late at night in his back garden amounts to an admission, by indicating his consciousness of guilt. There were alternative explanations for that conduct. He was, at that point, in breach of his bail requirements. It is true, as counsel for the Crown pointed out, that there is no evidence that he was aware that he was in breach of his bail. However, in circumstances where:
(a)he was in breach of his bail and hence had a reason to be wary of police;
(b)he had engaged in conduct such as theft from Mr Southorn which may have led to the involvement with police; and
(c)police had not identified themselves and were shining very bright torches towards him in his back garden in the middle of the night;
I do not consider that his flight is necessarily indicative of consciousness of guilt of the present offences. It is also consistent with him trying to avoid arrest for breach of bail, to keep away from police or fleeing in a panic as a result of being approached in the manner that he was.
The complainant gave evidence from her home. She had the assistance of a witness intermediary (whose assistance in enabling the complainant to understand and answer the questions put to her was significant). Her speed of understanding questions was lower than normal. She commonly asked for 10 seconds to consider her answer. She was quite articulate. She gave the impression that she was endeavouring to give evidence honestly and accurately. The descriptions of some aspects of what she said occurred were at a level of detail that was consistent with her describing real experiences.
The absence of significant corroborative evidence supporting the complaints made by the complainant, the history of complaints to police and the mental health records that were in evidence cause me to have a reasonable doubt as to whether or not the events occurred.
So far as the police records are concerned, these demonstrate that crimes have been committed against her (see the entries relating to 12 February 2019, 20 March 2019 and 3 October 2019). I accept that some of the records simply show an absence of sufficient evidence to allow police to pursue matters further, even though they may have suspected the involvement of the accused. Others, however, demonstrate the making of false complaints, consistent with the complainant suffering delusions about what has occurred. The incident on 3 January 2019 involving the initial allegation of assault, which was then withdrawn, the alleged theft of the phone on 29 January 2019 and the allegation of theft of her keys on 19 and 20 February 2019 are demonstrably false complaints arising from delusions about the conduct of the accused.
It is clear that, in relation to some of the incidents, police have had a very clear view about the unreliable nature of the complaints. I have not taken those opinions into account because, other than the terms of the records which are in evidence, the basis for those opinions is not made clear. However, as pointed out earlier, the falsity of some of the complaints would be entirely consistent with the decline in the complainant’s mental health prior to hospitalisation in March 2019.
So far as the mental health records are concerned, I accept that they need to be treated with some caution, given that they relate to a limited period, are mainly identified as being draft documents and appear to assume the accuracy of past diagnoses. However, what is clear is that the complainant has a diagnosis of schizophrenia, lacks insight into that condition, was hospitalised as an inpatient for three months at Calvary Hospital in 2019, was non-compliant with her oral antipsychotic medication and is currently on a psychiatric treatment order in order to ensure that she receives that medication.
In summary, in the absence of significant evidence corroborating the complainant’s allegations, because of the history of the complainant’s mental illness involving delusions about being persecuted by the accused and her complaints to police that were false, I cannot be satisfied beyond reasonable doubt that the events occurred in the manner alleged by the Crown. I must therefore find the accused not guilty of each of the counts on the indictment. I return the following verdicts:
(1)On count 1 on the indictment dated 21 April 2020, the charge of burglary, the accused is not guilty.
(2)On count 2 on the indictment dated 21 April 2020, the charge of common assault, the accused is not guilty.
(3)On count 3 on the indictment dated 21 April 2020, the charge of making a demand with a threat to kill or inflict grievous bodily harm, the accused is not guilty.
(4)On count 4 on the indictment dated 21 April 2020, the charge of theft, the accused is not guilty.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 22 September 2020 |
2
0
4