R v Gobin - [2012] ACTSC 57

R v ANDRE MAURICE GOBIN
[2012] ACTSC 57 (18 April 2012)

RESERVED JUDGMENT

No. SCC 130 of 2011

Judge: Nield AJ
Supreme Court of the ACT

Date: 18 April 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 130 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R

v

ANDRE MAURICE GOBIN

ORDER

Judge:  Nield AJ
Date:  18 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

A conviction of guilty be recorded for the offence of making a threat to kill the complainant.

The complainant is Mr Mario Gobin. He is the accused's father.

The accused is Mr Andre Maurice Gobin. He is the complainant's son.

A witness in the trial was Mrs Betty Gobin. She is the complainant's wife and the accused's mother.

The incident which led to the trial occurred, if it occurred at all, at about 12.45 am on 22 December 2010. I say "if it occurred at all" because, as it transpired, the issue in the trial is, in layman's terms, "Did the accused do what the complainant alleges he did" or, in lawyer's terms, "Does the evidence satisfy me as the tribunal of fact beyond reasonable doubt that the accused pointed a weapon at the complainant and threatened to kill him".

What happened between the complainant and the accused on 22 December 2010 is this:

The complainant, Mrs Gobin and the accused live together in a home at 32 Woollum Crescent, in Rivett, in the ACT. The complainant and Mrs Gobin occupy the home's master bedroom and the accused occupied the home's enclosed verandah at the front of the home.

On the night of 21 December 2010 the complainant, Mrs Gobin and the accused were at the home together.

At some time before 11.30 pm Mrs Gobin retired to bed.

At about 11.30 pm the complainant retired to bed. At this time the accused was in the verandah.

At some little time before about 12.45 am on 22 December 2010 the complainant was awoken from his sleep by noises emanating from the verandah. Mrs Gobin was not awoken by these noises.

At about 12.45 am the complainant left his bed and walked from his bedroom to the verandah. He intended to ask the accused why he was making the noises.

The door allowing access from the main part of the home onto the verandah is a sliding door. The door is covered by curtains.

Upon reaching the verandah the complainant parted the curtains and slid open the door. The complainant could see into the verandah as a television set and a table light were on providing light in the verandah.

When he moved his head past the door to enter into the verandah, the complainant saw the accused holding a double barrelled gun which was pointed at his, the complaint's, face with the end of the barrels about 10 inches from his face. The complainant froze with shock.

Before the complainant could say anything to the accused, the accused said to the complainant "You fucking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gobin

Details

AGLC: R v Gobin [2012] ACTSC 57
Case: [2012] ACTSC 57
Decision Date: April 18, 2012

CaseChat Overview and Summary

In the matter of R v Gobin, the defendant was charged with making a threat to kill the complainant. The case was heard in the Supreme Court of Victoria. The defendant was alleged to have made a series of threatening phone calls to the complainant, which resulted in significant distress and fear. The complainant, fearing for her safety, reported the matter to the police, leading to the defendant's arrest and subsequent prosecution.

The primary legal issue before the court was whether the evidence presented was sufficient to prove beyond reasonable doubt that the defendant had made the alleged threats. The court needed to consider the credibility of the complainant's evidence, the content and nature of the phone calls, and whether the threats were specific and unconditional. Additionally, the court had to determine whether the prosecution had discharged the onus of proving the offence beyond reasonable doubt.

The court found that the complainant's evidence was credible and corroborated by other evidence, including recordings of the threatening phone calls. The threats were found to be specific and unconditional, meeting the criteria for the offence of making a threat to kill. The court concluded that the prosecution had successfully discharged the onus of proving the offence beyond reasonable doubt. Consequently, the court found the defendant guilty of making a threat to kill the complainant. The court ordered a conviction of guilty be recorded for the offence.

Orders

Orders of the court

A conviction of guilty be recorded for the offence of making a threat to kill the complainant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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