R v Gary Scott Bauer
[2011] ACTSC 127
•16 August 2011
R v GARY SCOTT BAUER [2011] ACTSC 127 (16 August 2011)
CRIMINAL LAW – trial by judge alone – assault – damage to property – discrepancies between evidence of complainants – identification evidence not reliable to establish accused’s involvement – prosecution evidence did not exclude alibi raised – reasonable doubt as to accused’s presence at the relevant occasions and times of the alleged incident – accused not guilty on all charges.
Evidence Act 1995 (Cth), Pt 3.2, ss 65(1), 65(3), 116(1)(a), 116(1) (b), 165(1) (b), 190
Crimes Act 1900
(ACT), s 26
(ACT), s 403(1)
(ACT), s 72
(ACT), ss 68C, 68C(3)
Criminal Code 2002
Road Transport (General) Act 1999
Supreme Court Act 1933
Fleming v The Queen (1998) 197 CLR 250
No. SCC 355 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 16 August 2011
IN THE SUPREME COURT OF THE )
) No. SCC 355 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
GARY SCOTT BAUER
ORDER
Judge: Penfold J
Date: 16 August 2011
Place: Canberra
THE COURT FINDS THAT:
On the charge that on 16 April 2008 Gary Scott Bauer assaulted Scott Henry Gozzard—the accused is not guilty.
On the charge that on 16 April 2008 Gary Scott Bauer assaulted Kirren Anthony Maddrell—the accused is not guilty.
On the charge that on 16 April 2008 Gary Scott Bauer caused damage to property belonging to Scott Henry Gozzard, namely a Ford motor vehicle bearing ACT registration, and was reckless about causing the damage to the property—the accused is not guilty.
Background
The accused was arraigned before me on three counts, as follows:
Count 1: That on 16 April 2008 he assaulted Scott Henry Gozzard.
Count 2: That on 16 April 2008 he assaulted Kirren Anthony Maddrell.
Count 3: That on 16 April 2008 he caused damage to property belonging to Scott Henry Gozzard, namely a Ford motor vehicle bearing ACT registration, and was reckless about causing the damage to the property.
The charges arose under s 26 of the Crimes Act 1900 (ACT), and s 403(1) of the Criminal Code 2002 (ACT).
The accused pleaded not guilty to all charges.
Trial by judge alone
Election
The accused elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:
(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b) the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250 at 263); and
(c) the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case (since November 2010, s 68C(3) has also required the judge to take account of directions and comments that would have had to be given or made to a jury, and has applied to warnings, directions and comments under the Evidence Act 1995 (Cth) as well).
In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and are set out at Appendix A.
The evidence
Scott Gozzard
Scott Gozzard, one of the complainants, gave evidence. His memory of the events concerned was not particularly good, and there were many details that he could not recall. However, he was firm about some aspects of his evidence.
Mr Gozzard said that in the late afternoon or early evening of 16 April 2008 he was driving his Ford Meteor along Curran Drive in the Canberra suburb of Nicholls, returning from a trip to the suburb of Spence and on his way to the suburb of Ngunnawal where his passenger, his friend Kirren Maddrell, lived. It was dark and the street lights were on, but he had no difficulty seeing. He noticed a dusty or dirty white Holden Commodore in front of him with a number plate including “53” or perhaps S3, and “recognised the car, the one I thought was Gary’s car”; Gary was Gary Bauer, who had been a friend of his for a few years but with whom he had recently had a falling out. Mr Gozzard said in cross-examination that he assumed the car was Mr Bauer’s car because it was a dirty white VY Commodore with 53 or S3 in the number plate.
Mr Gozzard said that as he drove through the roundabout at the intersection of Curran Drive and McClelland Avenue (the first intersection coming from the Barton Highway), the Commodore in front of him stopped in the middle of the road and reversed back towards him. He also reversed, back into the roundabout and out into McClelland Avenue, where he reversed into a driveway from which he then turned right into McClelland Avenue, and drove along that street until it again crossed Curran Drive. From there he continued on towards Ngunnawal. He turned from Horse Park Drive into Newlop Street, and as he passed Mundawari Circuit on his right he saw a white Commodore approaching along Mundawari Circuit.
Mr Gozzard could not remember any conversation between himself and Mr Maddrell during most of this trip, but he said that when the Commodore turned into Newlop Street behind him, Mr Maddrell might have said that Mr Gozzard should “pull over and see what he wants”; Mr Gozzard gave evidence that he understood “he” to be Gary [Bauer].
Mr Gozzard said that he then pulled over to the side of Newlop Street, and the Commodore pulled over behind him. He was concerned about what might be about to happen, and reached for his mobile phone intending to call the police. In the meantime Mr Maddrell had got out of the car. Mr Gozzard believed Mr Maddrell said something like “What’s your problem Gaz?”.
Mr Gozzard said that he looked in one of the mirrors (in evidence he mentioned both the driver’s door mirror and the rear vision mirror, but this was not clarified) and saw a person he recognised as Gary Bauer standing beside the driver’s door of the Commodore. In cross-examination, Mr Gozzard agreed that he had not had a full view of the person standing beside the Commodore, but that he believed it was Gary Bauer based on the clothes he was wearing (dusty dirty jeans and a high visibility vest) and his height and general build (tall and skinny). The general appearance of the person he saw was “consistent with [his] memory of what Mr Bauer looked like”.
Mr Gozzard said that while he was still preparing his phone for a call to the police, Mr Maddrell jumped back into the car and said “go, he’s got a bat”. Mr Gozzard did not claim to have seen anything in the man’s hand, but he saw “that Gary had his arms raised when I glanced in the door mirror”. Mr Gozzard dropped his phone into the central part of the car. As he leant forward to pick it up, the window of the driver’s door, which was fully wound up, “exploded” and glass fell into the car, including onto his face, causing several small cuts. He did not see what had caused this. Mr Gozzard drove off quickly and shortly afterwards he saw the Commodore behind him briefly, just “driving behind [him]” for a few seconds; he last saw it as he turned off Jabanungga Avenue onto Bargang Crescent on his way to the house in which Mr Maddrell was then living in a nearby street.
Mr Gozzard and Mr Maddrell reached the house where Mr Maddrell was living, which was owned by one Jeremy Knott. Mr Gozzard went in to clean up his face, which had small cuts all over it where the glass had hit him. He described his experience to Mr Knott. Shortly afterwards, Mr Gozzard rang the police but several hours later they had not turned up. He rang them again, and was told that they “had a heavy workload on” and that he should go to the hospital to get his face checked, which he did. The next day Mr Gozzard was contacted and interviewed by police officers who came to his home; among other things, they observed the damage to his car, and photographs were taken.
Kirren Maddrell
Mr Maddrell also made a statement to police, and gave evidence at the committal proceedings in September 2008. However, he did not appear to give evidence at the trial. The prosecutor advised that a subpoena had not been able to be served on Mr Maddrell in the lead-up to the trial, despite two attempts several months apart. There was reason to believe that Mr Maddrell was then in NSW, but since arrest warrants were already out for Mr Maddrell in both Queensland and NSW, the issue of a warrant for Mr Maddrell’s arrest in connection with this trial seemed unlikely to be productive.
Accordingly, I ruled that Mr Maddrell was unavailable to give evidence within the meaning of s 65(1) of the Evidence Act 1995 (Cth), that his evidence at the committal hearing satisfied the description in s 65(3) and that the hearsay rule did not apply to that evidence. The transcript of Mr Maddrell’s evidence at the committal was put in evidence at the trial.
Under s 190 of the Evidence Act, with the consent of the parties, and after receiving evidence from Mr Bauer’s solicitor that she had advised him to consent, I dispensed with the application of Pt 3.2 of the Evidence Act in relation to Mr Maddrell’s statement to police made on 20 April 2008 and that statement was also in evidence.
Mr Maddrell’s police statement gave the following description of the incident:
On the way home, as we were driving through Harcourt Hill, we caught up to [a] vehicle that was driving the same way in front of us. We had just gone through a round-a-bout, and the car in front, which was a white Commodore, probably a 2005/2006 model, suddenly locked up both rear wheels and skidded to a stop.
Within about a second of the vehicle skidding to a stop, the reverse lights came on and the car began reversing towards us. I recognised the vehicle as belonging to Gary Bauer. I have seen this car a number of times before. I saw Gary at the car yard the day he bought the car and spoke with him about the vehicle. I have also seen Gary pull up outside my house in this vehicle and speak to one of my housemates. The vehicle used to have mag wheels on it but Gary took them off and put on standard factory wheels with hubcaps.
I thought that the vehicle was going to hit us and I screamed out: I said “Fuck, he’s going to hit us”.
Scott somehow managed to get the car in reverse and take off down the road, backwards, and went back through the round-a-bout and into someone’s driveway. The other vehicle was still driving backwards down the road towards us. Scott got his car into first gear and took off up a different road, and about the same time we took off, the other vehicle roared off back up in the direction it was originally going. Scott drove a bit further up the different road we had taken and then he pulled over and stopped. I said to Scott: “I can’t believe Gary just did that, he must be off his head!”
Scott said: “He’s done it a few times before, I told you that.”
Scott and I talked for a minute or two. Scott was really shaken up and he reckoned Garry [sic] would be waiting a bit further up the road. I told Scott that he was just being paranoid and that we should just head back to my place.
I was feeling very frightened at this stage, but was glad that the other car had taken off. I really did not think that the car would be waiting for us further up the road.
Scott started the car again and continued to drive down the road, heading back to my house. As we got close to my house, we turned off Horse Park Drive onto Newlop Street, and we had only gone ten metres down Newlop Street when Scott screamed: “Fuck there he is!”.
By the time I turned my head to face out the right hand side of the car, I looked to see the same white Commodore accelerating hard off someone’s front lawn and heading towards us. He came out of the side street and drove up behind us as we continued down Newlop Street. The vehicle was driving so close up behind us I could not see his headlights. At one point he drove up on the right hand side of Scott’s car to the point where his left headlight and front guard area where [sic] level with the driver’s side door on Scott’s vehicle. He was so close at that point that I thought our cars had touched.
I told Scott to pull over, because the vehicle was just going to keep following Scott home, and I said to Scott:
I said: “Just pull over man, or he’s gonna follow us home and bash your wife and kids as well”.
Scott didn’t want to pull over, but the thought of Garry [sic] following him home obviously made him realise that he had no choice.
I was scared and afraid of what was going to happen, but I was also afraid that we would be involved in a serious accident if we didn’t stop.
Scott started to slow down, and as soon as Scott stopped, I opened the door and jumped out to talk to the person, who I guessed was Gary Bauer. As I opened the door and stood up I saw a male who I recognised as Gary Bauer. He was about six foot, thin build and was wearing a yellowy/green high visibility vest and blue pants. I knew it was Gary and I said to him:
I said: “Gaz man, what’s with all the dramas? What’s the problem?”
He replied: “I’ll tell you what the problem is cunt!”
At the same time he said that to me, he reached into the car with his left hand and grabbed something, and then as he stood up he had passed the item into his right hand and had raised it above his head. He was holding a large wooden baseball bat and began lunging towards us. I was terrified and very concerned that we were going to be severely bashed. I jumped back into the car and yelled to Scott:
I yelled: “He’s got a bat man, go!”
At the same time I said that, I think Scott must have already seen that Gary had the bat because Scott was already half ducked down trying to start the car. Scott had leaned in towards the centre of the vehicle when suddenly the driver’s side window exploded and bits of glass went everywhere.
Just as the window exploded, Scott managed to get the car into gear and took off. I looked back and saw Gary run back to his vehicle and take off down the road after us. Scott was screaming as glass had gone into his eye and I could see little spots of blood starting to show up on his face. Scott was swerving all over the road because he couldn’t see, so I grabbed the steering wheel and said:
I said: “Don’t worry, I’ll steer.”
I was steering the car as it drove down the road while Scott was trying to clear his face and eye.
Scott was repeatedly yelling: “He’s gonna hit us, he’s gonna hit us!”
I was trying to prepare myself to counter-steer our car from the impact. Every time I glanced back to see where Gary was, he seemed to be at a different side of the car but intent on ramming us.
Scott eventually grabbed the steering wheel again and we turned off into Bargang Crescent which heads to my street. Thankfully at this point, [he] discontinued his attack and continued on straight through the round-a-bout.
Mr Maddrell’s evidence at the committal was largely consistent with his police statement. He explained how he first identified the car as Mr Bauer’s:
And did you recognise that car, the Commodore?---To begin with I thought it may have been a police car, because a new model Commodore and then as he started reversing at us I realised it was Mr Bauer.
Now how did you know it was the defendant’s car?---I’ve seen it many a times. I saw it the day he brought it. I’ve - I’ve seen it a lot of times.
Were there any distinguishing features about this car?---He had mags on it but he took them off and he put the - - -
Sorry, he had what, sorry?---He had mags on it - - -
Mag wheels?---originally when he bought it but he took the rims of [sic] and put standard older Commodore wheels on it so they don’t look right.
Yes. Did you recognise the license plate on the car?---I didn’t memorise the license plate but as it started reversing I was – you – it was Gary.
Did you see who was driving – did you actually see the person driving the car?---Not at that point in time but I did further on.
...
How did you know it was the defendant’s car?---I know his car and, you know, it’s no one else’s car – be driving a new model car like that with old standard wheels and sideways off someone’s front lawn aiming for us. And I definitely knew it was Gary’s car when we stopped.
But you didn’t see the driver at this point still of that car?---No, I just knew it was Gary’s car.
After the window was broken, Mr Maddrell said, he had to steer the car while Mr Gozzard drove and tried to get the glass out of his eyes. The Commodore chased them for 5 or 6 km (or perhaps 2 km), while Mr Gozzard was “screaming in the side of [his] face”.
The most notable thing about Mr Maddrell’s evidence at the committal proceedings, compared with the evidence of Mr Gozzard at the trial, was the sense of high drama surrounding the story Mr Maddrell told. He and Mr Gozzard were portrayed as in fear of their lives, “shaking”, and “screaming” at each other about the threats to them and the assaults to which they were subjected. This contrasted with Mr Gozzard’s inability to remember much conversation at all with Mr Maddrell during their experience.
As well, Mr Maddrell mentioned a variety of more or less exotic driving manoeuvres, for instance:
So what would you say the speed of the car coming – reversing – the defendant’s car reversing towards you – was it a slow speed or - - -?---It – it only – yes, it’d only be a guess to what speed he got to but anywhere up to 60 k’s an hour. He was moving for being in reverse. Like I’ve had a lot of experience with vehicles, I don’t think I could’ve driven in reverse quite as well.
...
I was steering for him because he couldn’t open his eye to look at the road. At which point I thought Gary was going to try and do, I think they call it the pit manoeuvre on us.
The what sorry?---The pit manoeuvre, you see it on all the police shows, where the police car comes up to the back wheel of your car and pushes you off the road.
So the defendant was still following you at this point?---Yes, yes. He’s – like he’s obviously jumped in his vehicle to chase us.
Yes?---Every time I’d look to one side his vehicle would either be so close behind us it was like it was on our bar, I couldn’t see the headlights of it. Or it was right up the side of the quarters, like he was going to try and flick our vehicle around with his vehicle. I just kept steering, trying to get ready to counter-steer for the impact.
Mr Maddrell’s evidence made the events concerned sound more like a scene from an action film or perhaps an electronic game (Grand Theft Auto, perhaps) than like events that had taken place on ordinary suburban streets in two fairly densely populated suburbs at a time when many other people might have been expected to have been driving home along those streets.
I note that Dr Boss’s suggestion about the reason for Mr Maddrell’s failure to appear, namely that the bad feeling between him and Mr Bauer was now in the past and he was unwilling to come to court and lie about the incident, seemed to be pure speculation; certainly it represents one possible inference from Mr Maddrell’s absence, but it is by no means the only available inference nor even in my view the most likely one.
Jeremy Knott
Jeremy Knott lived in the house in which Mr Maddrell was also living at the time of the incident. He said that he normally finished work at about 5.30 pm, but that it could have been earlier on the day in question. At some point after he got home from work that day, Mr Maddrell and Mr Gozzard arrived at his house. In cross-examination he agreed that it could have been about 6.15-6.20 pm that the two men arrived. They told him that they had had an altercation with another man which had involved a baseball bat. He had observed the damage to Mr Gozzard’s car and the glass and cuts on Mr Gozzard’s face. He agreed that cleaning up Mr Gozzard’s face had taken about 10 minutes. He was not sure whether either of the two men had told him who their assailant had been, and in any event could not recall any particular name that had been mentioned.
Gary Bauer
The accused, Mr Bauer, gave evidence. He said that on the day in question, he had finished work around 3.30-4.30 pm, and had then gone to Page, to the home of a named workmate with whom he was friendly, for a few beers. Towards evening he had left his friend’s house and driven to the Charnwood shops, where he had obtained $90 in cash from an over-the-counter transaction at the Charnwood Woolworths. He said he had withdrawn this money because he owed money to his girlfriend. Bank records were tendered showing a withdrawal of $90 by Mr Bauer at the Charnwood Woolworths at 6.13 pm on 16 April 2008. Mr Bauer said he then drove to his girlfriend’s home in Melba, arriving there in time to watch the usual 6.30 pm episode of Neighbours with his girlfriend. He denied having been in Nicholls or Ngunnawal on 16 April, and denied any encounter with Mr Gozzard or Mr Maddrell on that day. Mr Bauer said that his white Commodore was a VZ model, and that he had never owned a baseball bat.
Megan Rea
Mr Bauer’s girlfriend Megan Rea, now his partner, gave evidence that on the evening in question Mr Bauer had arrived at her house just in time to see the start of Neighbours – she said she remembered him coming in as the theme music was playing. She said that Mr Bauer had stayed at her house overnight, and the only time they left the house after Mr Bauer arrived was around 7.30 pm when the two of them had walked to Evatt shops to buy some alcohol.
The charges
Mr Bauer was arrested and charged on 28 April 2008. Constable Hobbs, who several days later visited a house where he believed Mr Bauer lived, noticed a white Commodore “with silver on the bottom” and in good condition. The car matched the description of the vehicle that he had been given, but he could not recall whether it was clean or dirty and dusty. Apart from looking in the windows of that car, police conducted no search for a baseball bat in Mr Bauer’s car or in any residence in which he was living or staying at the time.
The assaults with which Mr Bauer has been charged are said to have been constituted by the process of Mr Bauer coming towards Mr Maddrell with the baseball bat and putting fear into Mr Maddrell’s mind, and by the causing of broken window glass to make contact with Mr Gozzard’s face.
Assessment of the evidence
The prosecution case is not particularly strong.
Discrepancies between evidence of complainants
There are various discrepancies between the evidence of the two complainants.
First, as mentioned, there is the notable difference in the level of drama in the two stories. This might be explained by the fading of memories, including memories of strong emotions, in the nearly two years between when Mr Maddrell gave evidence at the committal hearing and when Mr Gozzard gave evidence at trial, or it may be that Mr Maddrell is naturally more excitable; since he did not give evidence at the trial, I was not able to assess Mr Maddrell’s demeanour.
There are also differences in the details of their evidence:
(a) In relation to the trip that Mr Gozzard and Mr Maddrell had made to Spence, both men said they had gone to Spence to look at a car, but Mr Maddrell said in his statement and at the committal hearing that they had looked at the car, while Mr Gozzard said they had not in fact looked at the car despite having travelled to Spence.
(b) Mr Gozzard said that when they first saw the white Commodore it was “going on dark” (which he later explained as meaning “that the sun [had] set ... but there was still a little bit of light in the sky”) and that when they pulled over on Newlop Street the street lights were on; Mr Maddrell’s evidence at the committal hearing was that it was “still daylight, or reasonably well daylight” when they pulled over on Newlop Street.
(c) Mr Gozzard could not recall that Mr Maddrell had to steer the car for him after his window was broken, and agreed that his memory was that he steered the car after the incident. Mr Gozzard said that he had small cuts all over his face where glass had hit him, but did not mention getting glass in his eye as claimed by Mr Maddrell (at [18] and [19] above).
(d) Mr Maddrell said at the committal hearing that the white Commodore had followed them for 5 or 6 km (or, he said, perhaps 2 km) after the assaults, while Mr Gozzard’s evidence was that he had driven straight to Mr Maddrell’s home, only a few blocks away according to the street maps in evidence, and the white Commodore had followed them for “a few seconds”.
Identification evidence
Importantly, the identification of Mr Bauer as the assailant is fairly weak.
Counsel for Mr Bauer referred to ss 116 and 165 of the Evidence Act. Section 116 requires the judge to “inform” the jury about the special need for caution before accepting identification evidence (s 116(1)(a)) and of the reasons for that need for caution (s 116(1)(b)).
Section 165 mentions identification evidence as a kind of evidence that may be unreliable (s 165(1)(b)), and requires the judge, on request by a party, to warn and inform the jury of certain matters in relation to that evidence.
As noted at [5(c)] above, it is not clear that the Evidence Act applied in an ACT judge-alone trial at the time of this trial, although it is arguably applicable to the decision I am making after November 2010. However, as will appear, it is unnecessary in this case to reach any conclusions about the precise directions I need to give myself about assessing identification evidence.
Identification by Mr Gozzard
Mr Gozzard said that the person he saw standing next to the Commodore was five or six metres away. He agreed that he did not see the person’s face. His identification of the person as Gary Bauer was based on:
(a) his identification of the car as Mr Bauer’s car;
(b) his impression that the person he saw in his car mirror had a similar build, and was wearing similar clothes, to those that he associated with Mr Bauer; and
(c) Mr Maddrell’s question as he got out of the car, which Mr Gozzard heard him address to “Gaz”.
Mr Gozzard’s identification of Gary Bauer may have been based on inferences rather than a direct visual recognition of Mr Bauer, but he was far more sure of his identification of Mr Bauer’s car. He told the police when he was interviewed, and said in evidence, that the Commodore he saw on the night in question was a VY model. He gave some inconclusive evidence about the trim on some versions of the VY model Commodore, including that some of the white VY model Commodores had a grey trim but some VY models had a colour-coded trim; that is, the trim was the same colour as the car body. He said that his belief that the car in question was a VY Commodore seemed to come down to “[j]ust the look of the car”, and that the VZ models are “pretty much the same car, just small differences between them”. The car he saw had the colour-coded trim, that is, it was all white.
The prosecutor put in evidence a certificate issued under s 72 of the Road Transport (General) Act 1999 (ACT) to the effect that on 16 April 2008, Mr Bauer was the registered owner of a vehicle with a specified ACT registration number and a specified VIN/Chassis number. The ACT registration number included the sequence 53A, which was consistent with Mr Gozzard’s evidence that the white Commodore he saw in Curran Drive had “53” or “S3” in its registration number.
There was evidence that Mr Bauer’s car was a VZ model Commodore.
The VIN/Chassis number was a 17-character string of letters and numbers starting with 6G1ZK, and Mr Bauer sought to give evidence that the VIN specified in the certificate identified his car as a VZ model Holden. Since his counsel had made no effort to qualify Mr Bauer as competent to interpret a VIN for the Court, nor even invited him to explain his own understanding of the VIN system, I disallowed this evidence.
However, Mr Bauer’s uncle, Mark Power, who has worked as a motor mechanic for at least 20 years, subsequently gave evidence based on both the appearance of the car and the VIN stamped on the compliance plate, that Mr Bauer’s Commodore was in fact a VZ model. Mr Power also gave evidence of how the VY and VZ models could be distinguished by reference to their appearances, which evidence was different from (although not inconsistent with) the evidence given by Mr Gozzard to explain his own certainty that the car he saw was a VY model.
In the absence of objection, or any expert evidence to the contrary, I cannot see any reason to reject the evidence of Mark Power that Mr Bauer’s car was a VZ model. This raises several possibilities about the evidence given, quite firmly, by Mr Gozzard about the car that he saw on the night of the incident:
Okay so you had a good look at it and you were able to say to police that it was a VY Commodore?---Yes.
And you remember giving evidence in committal proceedings in relation to this matter?‑‑‑Yes.
Okay and did you confirm then as well that it was a VY Commodore?‑‑‑Yes.
So you are quite certain it was a VY?‑‑‑Yes.
One possibility is that the car Mr Gozzard saw on the night of the incident was in fact the car he knew as Mr Bauer’s car, but that he had always been mistaken about the model. Another possibility is that he was correct in identifying the car he saw on the night of the incident as a VY model Commodore, and that it was not in fact Mr Bauer’s car. His certainty about the identification of the car was especially interesting given his evidence that he was “a Ford man”.
Mr Gozzard’s certainty that the car driven by Mr Bauer was a VY model, although there is strong evidence that it was in fact a VZ model, means that I cannot be satisfied that his identification of Mr Bauer is reliable to the extent that it was based on his identification of the car involved in the incident as a VY model Commodore. Mr Gozzard seems to have been wrong in believing that Mr Bauer drove a VY Commodore, and it is impossible to tell whether he was only wrong in identifying Mr Bauer’s car as a VY model or also wrong in identifying the car he saw on the night of the incident as Mr Bauer’s car.
Identification by Mr Maddrell
Mr Maddrell’s identification of Gary Bauer was less equivocal, and included the claim that he recognised the driver of the white Commodore as Gary Bauer when he and that driver were both standing outside their cars on Newlop Street. Mr Maddrell said that the cars were only one to three metres apart.
Conclusions about identification evidence
Thus, the only unequivocal assertions identifying Mr Bauer as the offender in this case are those made by Mr Maddrell in his police statement and at the committal hearing. Because Mr Maddrell did not appear to give evidence at the trial, I cannot properly assess the reliability of his representations.
I have already noted other aspects of Mr Maddrell’s claims that cast doubt on the reliability of his evidence (see [31]-[33] above), and I am satisfied that Mr Maddrell’s evidence should be given less weight than that of the witnesses, including in particular Mr Gozzard and Mr Bauer himself, who chose to give evidence at the trial. I do not consider that the identification evidence can be relied on, of itself, to establish Mr Bauer’s involvement in the incident.
“Alibi”—whether Mr Bauer could have been present at the incident described
As well as the prosecution case being inherently weak, the defence case raised a matter which cast some specific doubt on that prosecution case.
Mr Bauer offered an alibi said to exclude the possibility of him being present in the area where the incident took place at the time the incident was said to have taken place.
The only relevant event in this case that can reliably be connected with a specific time is the withdrawal of money, using Mr Bauer’s debit card, from Woolworths at Charnwood. Mr Bauer’s presence at Charnwood at 6.13 pm on the evening in question seems to be established by his bank records. Having regard to this evidence, there is a question whether Mr Bauer could physically have:
(a) participated in the incident involving Mr Gozzard and Mr Maddrell; and also
(b) been at Charnwood to take money out in a Woolworths transaction at 6.13 pm.
Mr Gozzard said that his first report to the police was made at around 6.30 pm on the evening of the incident, and there is no evidence to contradict this. Mr Bauer’s location at that time was the subject of evidence from Ms Rea confirming Mr Bauer’s own evidence. However, the time the incident was reported to police proves only the latest possible time for the time of the incident, so this evidence does not seem to have any particular significance in establishing whether Mr Bauer could have been present at the incident as alleged.
If the incident was reported to police at around 6.30 pm, other evidence suggests it must have finished at least some minutes before that, to allow time for Mr Gozzard and Mr Maddrell to drive to Mr Knott’s house, and for Mr Gozzard’s face to undergo a basic cleanup before he made the phone call to police (at [14] above).
Senior Constable Munro gave evidence of testing the travel times between various locations connected with this matter:
(a) from the roundabout at Jabanungga Avenue and Bargang Crescent where Mr Gozzard says he lost sight of the white Commodore at the end of the incident (the roundabout) to 61 Copeland Drive (Ms Rea’s home)—9 minutes 32 seconds on 18 February 2010 and 9 minutes 45 seconds on 19 February 2010 (at 6.30 pm);
(b) from the roundabout to Charnwood shops—12 minutes 13 seconds on 13 May 2010 (at 5.50 pm);
(c) from Charnwood shops to 61 Copeland Drive—4 minutes 24 seconds on 13 May 2010 (at about 6.00 pm);
(d) from Charnwood shops to the intersection of Curran Drive and McClelland Avenue (where Mr Gozzard first saw the white Commodore)—9 minutes and 3 seconds on 13 May 2010 (at about 6.15-6.20 pm).
The police officers were not asked whether they conducted the tests on the basis of staying within the speed limits, and nor was Mr Bauer asked about his driving habits. On the assumption that police had not been speeding when they conducted their tests, this suggests that for Mr Bauer to get from the roundabout to the Charnwood shops (trip (b) at [55] above) in time to park, get out of his car and record a withdrawal at Woolworths at 6.13 pm, after driving within the speed limits, he would have had to leave the roundabout no later than 6.00 pm. Exceeding the speed limit to a moderate degree would not have bought him more than another couple of minutes (for instance, increasing his average speed by 10% would have reduced his travel time to around 11 minutes).
The other evidence about the timing of events is as follows:
(a) Sunset on 16 April 2008 was at 5.38 pm.
(b) Mr Maddrell said at the committal that Mr Gozzard arrived at his house at about 5.00 pm, and that the two men left immediately to go to Spence to look at a car before it got dark.
(c) Mr Maddrell said that he doesn’t believe the street lights were on when he and Mr Gozzard first noticed the white Commodore in front of them.
(d) Mr Maddrell could not time any of the other events more definitely than “about 6.00 pm”; he specified that time for:
(i) the time he and Mr Gozzard left Spence on their way back to Ngunnawal;
(ii) the time at which the Commodore stopped in front of them on Curran Drive; and
(iii) the time the Commodore stopped behind them in Newlop Street and the man he identified as Gary Bauer got out, at which time “it was still daylight” and he could see very clearly.
(e) Mr Gozzard said he first arrived at Mr Maddrell’s house before the trip to Spence at “maybe 5.30 pm”.
(f) Mr Gozzard said that the trip from Mr Maddrell’s house to Spence and back would have taken 30-45 minutes.
(g) Mr Gozzard said that when he first saw the Commodore on Curran Drive “it was dark”; in cross-examination he said that he first saw the Commodore at about 6.00 pm and that there was still a little bit of light in the sky, that he saw the Commodore again on Mundawari Circuit about 5 minutes later, that it took about two minutes to drive from the scene of the incident on Newlop Street to Mr Maddrell’s house, and that by the time the whole incident was over it was fully dark.
(h) Mr Gozzard said in evidence-in-chief that he and Mr Maddrell arrived back at Mr Maddrell’s house after the incident at about 6.30-6.45 pm, and in cross-examination that he arrived there between 6.15 and 6.30 pm; he said that the process of arriving at Mr Maddrell’s house, talking to Mr Knott about the incident and cleaning up his face would have taken 5 to 10 minutes and agreed that he would have arrived back at Mr Maddrell’s house at about 6.20 pm;
(i) Mr Gozzard confirmed in cross-examination that at the committal hearing he said that he had rung the police at about 6.30 pm.
(j) Mr Knott agreed in cross-examination that Mr Gozzard and Mr Maddrell might have arrived around 6.15-6.20 pm and that cleaning up Mr Gozzard’s face had taken about 10 minutes.
Mr Bauer could have been present if the incident had taken place between about 5.45 pm and 6.00 pm (or earlier). However, most of the evidence of the complainants suggests that the incident took place later; the timings suggested for the trip to Spence and the return from Spence would put the incident no earlier than about 6.00 pm, and the timing of the police report and the account of events between when the white Commodore finally disappeared from view and when the police report was made suggest that the incident finished rather later than 6.00 pm.
If Ms Rea’s evidence is discounted, then Mr Bauer could also have been present in the area of the incident from about 6.23 pm at the earliest (the time he could have arrived at the Curran Drive intersection after travelling from Charnwood shops (trip (d) at [55] above)). However this timing for the incident is inconsistent with the evidence of some fading daylight at the beginning of the incident, and also with the police report having been made at around 6.30 pm.
The prosecutor did not submit that there was a way in which this evidence could be analysed so as to exclude any reasonable doubt about whether Mr Bauer was present at the scene of the incident despite the unchallenged evidence of his presence at Charnwood at 6.13 pm on the evening concerned.
Conclusion
The prosecution has accordingly not established beyond reasonable doubt that Mr Bauer was the offender. The identification evidence taken as a whole is weak, and I am mindful of the need to be cautious in relying on identification evidence. I also have a reasonable doubt that Mr Bauer could have been in the relevant locations at the times at which, on the basis of the prosecution evidence, the alleged incident must have taken place.
Verdict
Accordingly, I find Mr Bauer not guilty of all three charges against him.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 16 August 2011
Counsel for the Crown: Ms S Jowitt
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Dr B Boss
Solicitor for the defendant: Sheila Foliaki-Singh & Associates
Date of hearing: 28, 29 July 2010
Date of judgment: 16 August 2011
Appendix A—General directions for judge-alone trial
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
The accused has given evidence and his evidence is to be treated by me in exactly the same way as any other witness called to give evidence and his evidence should be taken into account by me in exactly the same way.
There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?” If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I will find the accused not guilty of that offence.
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