R v Graham
[2017] ACTSC 267
•15 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Graham |
Citation: | [2017] ACTSC 267 |
Hearing Dates: | 6, 7, 8 September 2017 |
DecisionDate: | 15 September 2017 |
Before: | Mossop J |
Decision: | See [120]–[121] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – hindering a public official – common assault – failure to wear a helmet – failure to stop vehicle when requested by police – failure to stop vehicle when signalled by police – driving on a path – riding a motor vehicle without consent – unlicensed rider – failure to stop after an accident causing injury – aggravated dangerous driving CRIMINAL LAW – DRIVING OFFENCES – Offences Relating to the Administration of Justice – whether accused was person seen by police to be riding motorcycle –– meaning of the word “likely” in s 27(3)(c) of the Crimes Act 1900 (ACT) – whether riding a motorcycle at a person likely to endanger human life or cause grievous bodily harm – whether the activation of police lights and sirens a “request or signal” to stop a vehicle – meaning of the word “knowingly” in s 16 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 27(4) Criminal Code 2002 (ACT), ss 318(2), 361(1), Supreme Court Act 1933 (ACT), ss 68B, 68D Australian Road Rules, rr 270(1)(a), 288(1), 289 Minister for Urban Services, Declaration Of Areas to be Defined as Road Related Areas, DI2000-341 |
Cases Cited: | Boughey v The Queen (1986) 161 CLR 10 Leonard v Morris (1975) 10 SASR 528 Taufahema v R [2006] NSWCCA 152; 162 A Crim R 152 |
Parties: | The Queen (Crown) Troy Graham (Accused) |
Representation: | Counsel S Naidu (Crown) P Burgoyne-Scutts (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 294 of 2016 SCC 295 of 2016 |
MOSSOP J:
Introduction
This is a trial by judge alone conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) after the accused, Troy Graham, signed an election on 5 April 2017 to be tried by a judge alone. The accused is charged with using an offensive weapon likely to endanger human life or cause a person grievous bodily harm, and doing so intending to prevent or hinder his lawful apprehension or detention or intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably called for investigation by the officer. This would be an offence against s 27(4) of the Crimes Act 1900 (ACT) which carries a maximum penalty of 15 years imprisonment. I will refer to this as charge 1.
The accused is also facing charges transferred to the ACT Supreme Court from the Magistrates Court under s 90B of the Magistrates Court Act 1930 (ACT). They are dealt with by this Court under s 68D of Supreme Court Act. Those charges are set out in the following table:
Charge
Charge Number
Offence
Offence Provision
2
CC16/10677
Hindering a public official
Criminal Code 2002 (ACT), s 361(1)
3
CC16/10615
Common assault
Crimes Act 1900 (ACT), s 26
4
CC16/09314
Failure to wear a helmet
Australian Road Rules, r 270(1)(a)
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 6
5
CC16/09320
Failure to stop vehicle when signalled by police
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109(2)
6
CC16/09316
Driving on a path
Australian Road Rules, r 288(1)
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 67
CC16/09318
Riding a motor vehicle without consent
Criminal Code 2002 (ACT), s 318(2)
8
CC16/12964
Unlicensed rider
Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1)
9
CC16/09321
Failure to stop vehicle when requested by police
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109(2)
10
CC16/09317
Failure to stop after an accident causing injury
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 16
11
CC16/09315
Failure to wear a helmet
Australian Road Rules, r 270(1)(a)
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 6
12
CC16/10616
Riding a motor vehicle without consent
Criminal Code 2002 (ACT), s 318(2)
13
CC16/12965
Unlicensed rider
Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1)
14
CC16/09319
Aggravated dangerous driving
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1)
The Crown Case
The Crown case is that on the morning of 18 December 2015 the accused, or some person associated with the accused, unlawfully took a black Cagiva Mito motorcycle that had been parked on William Hovell Drive in Cook, ACT after the owner riding it had run out of fuel at about 1:00am the night before.
At about 5:40pm that same afternoon police officers Senior Constable Paul Yates and Constable Kate Wilson-Smith were on mobile patrol on Currong Street North, in Braddon ACT. They observed a male person driving a dark-coloured motorcycle carrying out a U-turn at the intersection of Donaldson Street and Currong Street North. The officers observed that the male motorcycle rider was not wearing a helmet (charge 4) and they activated the emergency lights and sirens of their vehicle, indicating for the rider to pull over to the side of the road. The male failed to stop (charge 5) and rode off the road away from the police along a pathway (charge 6). The riding of the motor vehicle without consent is charge 7.
Shortly thereafter, the two police officers returned to the City Police Station to conduct checks on the accused who they suspected was the male person they had observed. Those checks revealed that the accused did not hold a motorcycle licence and that he was in breach of his bail conditions. Being an unlicensed rider is charge 8.
At about 6:20pm that evening, Senior Constable Yates and Constable Wilson-Smith entered the car park of the Allawah Court public housing complex in Braddon (Allawah Court). The accused was near the carport of Block 7 of Allawah Court but upon sighting the police officers he ran towards Block 8. Senior Constable Yates pursued the accused on foot. The police officer found the accused in a carport at the end of Block 8 seated on a dark-coloured motorcycle with the engine running and without a helmet. Senior Constable Yates is alleged to have walked towards the accused requesting him to stop and also raising his hand so as to signal that he should stop. The accused is alleged to have then accelerated directly towards Senior Constable Yates causing him to dive out of the way. The left side mirror of the motorcycle is alleged to have struck Senior Constable Yates as he did so, tearing the radio pouch from his accoutrement belt and causing pain to Senior Constable Yates. Senior Constable Yates also sustained a graze as he fell to ground. This incident gives rise to the count on the indictment. There are back up charges of hindering a public official (charge 2) and common assault (charge 3). The accused is also charged with failing to stop when requested by police (charge 9), failing to stop after an accident (charge 10), failing to wear a helmet (charge 11), riding a motor vehicle without consent (charge 12), being an unlicensed rider (charge 13) and aggravated dangerous driving (charge 14). The conduct alleged to constitute the aggravated dangerous driving charge also extends to the accused’s driving when fleeing the scene when he is alleged to have exited from Allawah Court onto Cooyong Street and driven on the wrong side of the road for a distance.
The following day, 19 December 2015, Senior Constable Yates again attended Allawah Court, where he received information that the accused had departed Allawah Court on a dark motorcycle, wearing a blue and white motorcycle helmet and that the accused had been heading towards Belconnen. Late that same day Senior Constable Yates attended Howie Court in Belconnen and found the same dark-coloured motorcycle that the accused had been riding the day before. The motorcycle’s left side-mirror was damaged and a blue and white motorcycle helmet was resting on the motorcycle seat. AFP Forensics attended the location to conduct an examination of the motorcycle and the helmet. A fingerprint matching that of the accused was located on the exterior of the motorcycle helmet visor. The motorcycle was identified as the same motorcycle as the one reported stolen the day before (above at [3]).
Trial Directions
In R v Mulcahy [2010] ACTSC 98 at [13]–[24], Nield AJ, when conducting a judge alone trial, gave himself directions about his role. The directions were adopted by Refshauge J in R v DM [2010] ACTSC 137 at [9]. Nield AJ set out the directions as follows:
13. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15. 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 offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16. The accused is presumed by law to be innocent of the offence with which he stands 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.
17. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18. 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.
19. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22. 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, or 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 said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
...
24. 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.
See also R v Connors (No 2) [2016] ACTSC 333 at [6]–[8]. I adopt these directions in relation to my role in the present case.
The accused did not give evidence. He was not obliged to. The fact that he did not give evidence does not affect the burden upon the Crown to prove its case beyond reasonable doubt.
Oral evidence
Senior Constable Paul Yates
Senior Constable Yates gave evidence that in 2015 he was stationed at the City Police Station. He was on patrol in a caged vehicle with Constable Wilson-Smith. He was driving and Constable Wilson-Smith was in the passenger seat. He was wearing his police uniform. At about 5:40pm on 18 December 2015 he was driving north on Currong Street North when he saw a rider on a motorcycle doing a U-turn at the intersection of Currong Street North and Donaldson Street. The rider of the motorcycle was not wearing a helmet. The motorcycle was a black road bike with a “black shortened visor” and a “dodgy” paint job on the fuel tank. He activated the lights and sirens of the vehicle when about 20 metres from the bike. He observed that the appearance of the rider was a man of Aboriginal descent in his late teens or early 20s with olive skin and wearing shorts and a singlet. He identified him as Troy Graham. He had spoken to Mr Graham on a number of occasions on duty and had signed him in at the City Police Station when he was reporting pursuant to bail conditions. When doing so he was required to check his identity by reference to a photograph on the police computer system or by reference to a form of identification provided by Mr Graham. He had met him face-to-face a number of times.
When the lights and sirens of the police vehicle were activated the motorcyclist went up a driveway on the eastern side of Currong Street North and rode along the nature strip until the intersection with Batman Street at which point the motorcycle returned to the road and continued until the intersection with Ainslie Avenue where it turned right before turning left onto Cooyong Street. Senior Constable Yates did a U-turn and followed the motorcycle, turning off his sirens at the Ainslie Avenue intersection. He did not pursue the vehicle further.
The incident was reported over the police radio. At that point the description given of the rider was “male rider, curly black hair, bit of a mullet. A singlet, blue shorts, with a sling bag across his back”.
The officer returned to the City Police Station and checked police records in relation to the accused and his licence. He discovered that the accused was wanted for a breach of bail, that his licence had been suspended and that he did not hold a motorbike licence. He had been in breach of his bail conditions since about 7 December 2015.
He then returned with Constable Wilson-Smith to Allawah Court at about 6:30pm. He was aware that some of the associates of the accused lived there and that it was a known “hangout” for the accused. He had previously seen the accused there. He was aware that an associate of the accused, Mitchell Booth, had a unit there. He and Constable Wilson-Smith drove in through the Cooyong Street entrance and drove from Block 8 in the complex to Block 7. At that stage, because of the time of year, there was still good daylight. The police stopped their vehicle in front of a carport in Block 7. There were a number of males under the carport where lounges were positioned. He saw six to eight males there from a distance of between fight to eight metres. He wound the window down and said “G’day” to Mitchell Booth. He said that at that point the accused stood up and ran away. He said that the accused was wearing the same clothing as he had observed on the motorcycle rider. There was nothing to conceal his face. He ran along a pathway behind Block 8 in a southerly direction. Senior Constable Yates got out of the car and ran after the accused. He ran after him because he thought he could catch him and wished to arrest him for a breach of his bail conditions as well as in order to speak to him about the riding of the motorcycle.
At the end of Block 8 there was a carport similar to that where he had first seen the accused and he saw the accused on a motorbike which had the engine running. While this carport was located at the Ainslie Avenue end of the complex, the nearest exit was onto Cooyong Street in the direction from which the officer had come. He saw the accused at a distance of 15 metres and when about 10 metres away “screamed out in a very loud voice to stop” and raised his hand so as to indicate that he should stop. He described that the motorcycle accelerated suddenly directly at him and he jumped to his right, out of the way of the motor cycle, in order to avoid being struck. He felt something strike the left side of his hip. During the incident he was looking directly at the rider of the motorcycle who was not wearing a helmet. He did not observe the rider of the motorcycle make any attempt to manoeuvre so as to avoid him. His radio pouch was torn from his belt and he had some grazes on his arm and a small cut to his elbow.
The officer then got to his feet and ran towards the exit onto Cooyong Street. He saw the motorcycle exit into Cooyong Street and travel against the flow of traffic until the intersection with Petrie Street before crossing to the correct side of the road and continuing at speed north-west along Cooyong Street towards Northbourne Avenue. When the vehicle was travelling on the wrong side of the road he observed cars brake suddenly in order to avoid an accident.
He radioed-in the incident using his hand-held radio which, notwithstanding the impact from the motorcycle, was still functioning. At that point he reported on the radio: “I’ve got that male on the motorbike. He’s now going Cooyong Street against the flow of traffic. Um, let’s see first name is Troy, last name’s Graham.”
The recording from police radio then records communications between other vehicles relevant to the report. During that conversation the radio operator asks how sure Senior Constable Yates was of the identity of the person. The response which was given by Senior Constable Wilson-Smith is “we’re confident this POI is Troy Graham”. As a result of further discussion over the radio any pursuit of him is terminated.
The last observation of the rider of the motorcycle was that he was riding towards Northbourne Avenue and then on Belconnen Way heading towards Belconnen.
The officer was aware that Mr Graham had been linked to an address at Howie Court because that was an address to which Ashley Booth, Mitchell Booth’s brother, was linked.
On 19 December 2015 Senior Constable Yates went to Allawah Court to locate the accused. He had a conversation with Mitchell Booth in which he said that the accused needed to hand himself in and that the officer would return. Mr Booth said that the accused had only just left and that the officer should look in Belconnen. He said he was now getting round with a blue and white motorcycle helmet.
The officer then went with Senior Constable Daniel Wilson to Howie Court in Belconnen. They located a black motorcycle beneath the Howie Court building. They attended that address because of what Mitchell Booth had told them and because Senior Constable Yates had a “gut feeling” that Howie Court was the place to look. The black motorcycle had a spray-painted fuel tank and the left-hand side mirror had been damaged. A blue, white and black motorcycle helmet was on the seat. Senior Constable Yates then called police operations to request a tow truck and the attendance of AFP forensics. He checked the engine number and the licence plate and, with that information, discovered that the motorcycle had been reported stolen on the morning of 18 December.
The cross-examination of Senior Constable Yates was targeted at whether he had been able to accurately identify the accused as the person on the motorcycle. He was unable to identify any specific recollection of the occasions when he had signed in the accused pursuant to his bail conditions. It was suggested to him that the motorbike that he observed being ridden was not distinctive. The officer referred to what he described as the “dodgy paint job”.
It was suggested to him that because he knew that the accused was in breach of his bail conditions the accused was somebody who was on his mind at the time when he purported to identify him riding a motorcycle. He accepted that the carport under Block 7 at Allawah Court was a little darker than the area outside but said that he was still able to see the accused. He accepted that the subsequent incident, when the motorcycle accelerated towards him, happened quickly. However he said that he was 100 per cent sure of the identification that he made. In re-examination he said that he looked directly at the accused when he was sitting on the bike and the accused looked directly at him for a period of two to three seconds before he had to dive out of the way.
Constable Kate Wilson-Smith
Constable Wilson-Smith gave evidence which substantially corroborated the evidence of Senior Constable Yates. She gave evidence that she was travelling as the passenger on a mobile patrol with Senior Constable Yates. She saw a male rider doing a U-turn at the intersection of Currong Street North and Donaldson Street. She said that it was daylight and that she had an unobstructed view. She observed a dark motorcycle but could not see the registration details other than to identify it as an ACT registration. She described the rider as being a male Aboriginal of 18 or 19 years old with a skinny face dark hair curly on the top and a “mullet” at the back. She said he was wearing no helmet. She said he was wearing bright blue shorts, a singlet and had a sling bag across his back.
She had previously had contact with the accused because she was present on more than one occasion when he signed-in pursuant to his bail conditions in October or November 2015. She said that as part of that process it was necessary to identify the person signing in. She also gave evidence that images of persons who had warrants outstanding or were wanted for breach of bail were routinely displayed in the muster room at the City Police Station on a large flat screen TV. She recalls having seen the image of the offender at that time.
She said that she recognised him at a point where he was approximately 20 metres away. The closest point at which she observed the rider was when he passed about three to five metres from the vehicle. After the lights and sirens of the vehicle were turned on the rider did not stop and instead mounted the curb and travelled along the footpath in the direction of Ainslie Avenue. She then lost sight of him as the police vehicle turned around and travelled in a southerly direction towards Ainslie Avenue. The sirens were turned off after doing the turn. She could not recall whether the lights remained on. The next time she saw the motorcycle was when the police vehicle was approaching Ainslie Avenue she saw that the motorcycle was turning left to travel in a southerly direction down Cooyong Street.
She communicated the incident by radio and then the officers returned to the City Police Station. There they did checks on police indices and confirmed that the accused was in breach of bail conditions, had a suspended driver’s licence and no licence that would permit him to ride a motorcycle.
They then returned to their mobile patrol and travelled to the Allawah Court housing complex. This was less than an hour after first seeing the motorcycle doing a U-turn. They travelled through the car park of the housing complex to Block 7 where they saw a number of males seated in a carport. There was good lighting generally and under the carport the lighting was adequate so that it was easy to see the people who were there. A man who she identified as the accused stood up and ran away towards Block 8. Senior Constable Yates ran towards Block 8 on the other side of the building. She followed about 10 metres behind. She heard Senior Constable Yates shout “Stop, police” and the motorcycle revving. She saw Senior Constable Yates make a stop signal by putting his arm out with his palm facing outward. At this point she could not see the motorcycle or the accused. She then saw Senior Constable Yates dive out of the way as the motorcycle came at him before travelling through the car park and exiting onto Cooyong Street. When the motorcycle was travelling towards Senior Constable Yates she described it as accelerating and not making any attempt to manoeuvre around him. She observed that the rider appeared to be wearing the same bright blue shorts and singlet that she had observed on the rider previously
Once on Cooyong Street the motorcycle travelled in a northerly direction against the flow of traffic. She observed this by looking over the brick wall between the car parking area and Cooyong Street. She observed the motorcycle until it reached the intersection with Donaldson Street where Cooyong Street bends to the left. She observed that the motorcycle was travelling faster than the other traffic going in a northerly direction. She could not recall whether any other vehicles responded to the presence of the motorcycle on the road.
She observed Senior Constable Yates make a radio call and observed that he had a grazed elbow and that his radio pouch had been broken.
The cross-examination of Constable Wilson-Smith was directed to issues of identification. She agreed that her interactions with the accused for the purposes of signing the paperwork relating to bail reporting took only a few minutes. She agreed that she had no specific recollection of the occasions when she signed him in but said that she knew she signed him in because she recognised him.
She said that she could not identify the number of times on which she had supervised his bail reporting but said that it was a number of times and that she would need to examine the bail reporting forms (which were not in evidence) in order to determine how many times and when that occurred.
In relation to the incident on Currong Street North she gave evidence in cross‑examination that as the rider of the motorcycle came close to the police vehicle she could see his face. She said “I looked plainly at his face”. She agreed that in the radio report to police operations made at this time she did not identify the suspect as the accused. However she did say that at the time she said to Senior Constable Yates “That’s Troy Graham”. She could not recall having been specifically made aware that morning that the accused was in breach of his bail conditions.
She denied that the checks that were made when she and Senior Constable Yates returned to the City Police Station were because she was not sure that the person on the motorcycle was the accused.
In relation to the incident that occurred when she and Senior Constable Yates returned to Allawah Court she agreed that the lighting under the carport was not as bright as outside but she denied that this meant that she was unable to identify the accused when he got up and ran away.
At the point where Senior Constable Yates had to avoid the motorcycle she gave evidence that having regard to the layout of the car park and the width of the road the motorcycle rider could have gone round Senior Constable Yates. Notwithstanding the suggestion to the contrary, she said that she had sufficient time to recognise the accused on the motorcycle. She said that she only took limited notice of the features of the motorcycle beyond the fact that it had two wheels and was dark in colour.
At the point where she made the radio communication to police operations her evidence about her level of confidence in the identification was as follows:
At that time you weren’t 100 per cent sure that the person on the bike was Troy Graham?---I’m not sure how I can judge 100 per cent certainty. I recognised it to be the accused.
But you can’t be 100 per cent certain?---It was - I was adequately confident in my identification to say I am confident that the person I have seen on the motorcycle is Troy Graham.
Mitchell Booth
Mitchell Booth was a friend of the accused at the time of the incidents in question and remains a friend of the accused. He agreed that when living at Allawah Court, the accused had attended the premises a few times and that he would hang out there with friends. They would hang out in the car park underneath Mr Booth’s flat in Block 7. He couldn’t recall having seen the accused with or riding a motorcycle or with a motorcycle helmet. He recalled having spoken to Senior Constable Yates but could not recall when or about what. He could recall a conversation with Senior Constable Yates once when he was asked where the accused was. Mr Booth couldn’t recall how that came about. He couldn’t recall any conversation about the accused and a motorcycle. He couldn’t recall whether he had any family living at Howie Court at that time. While his family members were from Belconnen, he thought his brother Ashley was in jail as at December 2015.
Leave was given to cross-examine him under s 38 of the Evidence Act 2011 (ACT). That cross examination produced only limited further evidence. He agreed that at the time he did not want to have police hanging around. He agreed that at the time he would have been prepared to lie to get police away from him. He said that he was on drugs back then and did not recall a lot. He denied that he would lie to protect his friend. He agreed that he might have done back then but said he had cleaned himself up and was now focused on his job and family.
Counsel for the accused did not cross-examine Mr Booth.
Lisa Nicholson
Ms Nicholson is a senior scientist with the Australian Federal Police and has been part of their fingerprints team since 2004. She had a variety of relevant qualifications in addition to her experience in identifying fingerprints. Her experience included identifying fingerprints from photographs.
Her report on the examination of the fingerprints found on the helmet that had been found on the motorcycle discovered at Howie Court was tendered. Of the six fingerprints which were obtained, two of them had insufficient detail to permit any identification and three of them, while containing sufficient information, produced no identification when run through the National Automated Fingerprint Identification System. The remaining fingerprint was one which was determined to match the records on the National Automated Fingerprint Identification system relating to the accused. Those were prints that had been taken from the accused by a Constable Yaldren on an unspecified date at the City Police Station. In her evidence Ms Nicholson gave a basic explanation of the process of identifying characteristics on the fingerprints. She indicated that she had identified 12 points at which the fingerprint from the helmet matched the fingerprint on the records and that as a result she was 100 per cent confident that the print was that of the accused.
In cross-examination she gave evidence that fingerprints of an individual remain constant over time. She agreed that there was no minimum number of points which were required to make an identification and accepted that to that extent there was an element of subjectivity in the assessment process. She agreed that different experts may disagree about the sufficiency of the number of points to make an identification. She said that although the National Automated Fingerprint Identification System identified a number of possible matches, after having made her identification of the accused she did not search any further. She agreed that in the request for her to examine the fingerprints a suspect had been identified.
Statements tendered
Naveen Vemana
Mr Vemana recorded that he had left the motorcycle on William Howell Drive in Cook at about 1:00am on 18 December 2015. He did so because he ran out of fuel. The motorcycle was in good condition with no damage to the side mirrors or the body of the vehicle. The paint on the fuel tank was black and he had painted it himself with a spray paint can. He returned to collect his motorcycle at about 7:30am on 18 December 2015 but it had gone. He reported its loss to the Australian Federal Police. He was subsequently informed that the motorcycle had been recovered.
Peter Mellor
Mr Mellor was a police officer. At about 6 o’clock in the morning on 18 December 2015 prior to his shift he was travelling along William Hovell Drive and observed a black coloured motorcycle parked at the edge of the roadway. He could not see any damage that would indicate that it was involved in an accident. He could not locate anybody associated with the motorcycle. He recorded the registration number of the motorcycle and departed. When he arrived at work he checked police indices in relation to the vehicle to see whether it was stolen or involved in an accident but found no record. He subsequently became aware that the vehicle had been involved in various incidents.
Paul Spryszynski
Mr Spryszynski is a Crime Scene Investigator with the Australian Federal Police. On 19 December 2015 he attended Howie Court in Belconnen to conduct a forensic examination on the black motorcycle located there. He observed the black motorcycle parked underneath a unit block at Howie Court. A blue and white AGV brand motorcycle helmet was on the fuel tank. Another helmet and goggles were located on the ground in front of the motorcycle. He observed damage to the left-hand side rear‑view mirror and the left-hand rear indicator. He took DNA swabs from both handlebar grips.
Rebecca McMahon
Ms McMahon is a Crime Scene Investigator. She also has experience as a fingerprint examiner and holds a Diploma in Forensic Investigation (Fingerprint Identification). She conducted a fingerprint examination on the exterior surfaces of the AGV brand motorcycle helmet which had been found on top of the motorcycle at Howie Court. Fingerprints were found and developed from that helmet.
Carol-Ann Schenk
Ms Schenk is a forensic biologist. She analysed the DNA samples taken from the AGV motorcycle helmet and from the motorcycle handlebar grips. The mixed DNA profiles obtained from those samples were found to be not suitable for identification purposes. Her report does not explain why this was the case.
Conclusion on identification
Assessment of witnesses
My assessment of the evidence given by the witnesses who gave oral evidence is as follows.
Senior Constable Yates’ evidence was affected by the fact that he was less careful to answer precisely the question that was asked and more inclined to volunteer evidence that would assist the Crown case or, alternatively, to answer the question in a manner that was designed to advance the Crown case. I think it is likely that some of the evidence that he gave about the certainty with which he identified the accused at the time of first seeing the rider on the motorcycle on Currong Street North has been influenced by his interactions with the rider subsequently and the conclusion that he reached in his own mind subsequent to that incident that the accused was the rider. For example, his evidence was that he recognised the “dodgy paint job” on its fuel tank on the first occasion he saw the vehicle. The fact that the paint job was “dodgy” was not apparent from the (admittedly poor) copies of photographs that were tendered. So far as the evidence disclosed it was not an obvious feature of the motorcycle. There is, in my view, a risk that the evidence of the constable as to what he observed on the first two occasions that he saw the motorcycle was influenced by what he saw when he subsequently found the motorcycle at Howie Court rather than representing an actual recollection of what he saw the first time he saw the motorcycle. A further aspect of the officer’s evidence which leads me to treat it with some caution was his evidence that he observed that the ignition of the motorcycle had been tampered with. Such a fact would be significant in relation to proving the accused’s knowledge that the motorcycle was stolen and hence his dishonesty when riding it (charges 7 and 12). That was a fact not recorded in the police officer’s statements finalised some four months after the incident. It is not consistent with the report of the Crime Scene Investigator, Paul Spryszynski, which, although it records features of the motorcycle, such as the cracked left mirror, makes no reference to any evidence that the ignition had been tampered with. Because of these matters I also treat with some caution the evidence of Senior Constable Yates that Mitchell Booth told him, in answer to his question about the location of the accused, that the accused was wearing a blue and white helmet. As that conversation was recounted, the fact relating to the blue and white helmet was something which appears to have been volunteered by Mr Booth. Mr Booth’s evidence was, as I indicated below, problematic but it did not corroborate the officer’s evidence about the reference to the helmet or its colour.
I do not, however, accept the submission made by counsel for the accused that a previous adverse finding by a magistrate about evidence given by the officer should affect my assessment of his credit. There was no admission by the witness in cross‑examination that the adverse finding by the magistrate was accurate. The facts which formed the basis for the finding by the magistrate were not established in this Court. In those circumstances the existence of the finding could not be relevant to the assessment of the officer’s credit unless that finding was admissible to prove the existence of the fact the subject of the finding. It cannot be used for that purpose: Evidence Act, s 91.
I found Constable Wilson-Smith to be a credible witness. She gave evidence in a straightforward manner. She answered the questions that were asked and did so in a manner which properly recognised those matters in relation to which she could not give evidence or in relation to which her evidence was limited. I considered her evidence to be generally reliable.
Mitchell Booth’s evidence was very limited. While I accept that in some respects his memory may have been poor, I got the impression that he was more than appropriately willing to say that he could not remember when asked a question that may have had an answer that was adverse to the interests of his friend, the accused. His evidence is of limited utility. It does however corroborate the evidence of the police officers in relation to the friendship between Mr Booth and the accused and the fact that the accused would frequent the location underneath Block 7 at Allawah Court where the police officers said that they found him.
I found the evidence of Lisa Nicholson to be credible. Nothing about the manner in which she gave evidence would cause me to have any concerns about her evidence. The cross-examination did not cause me to have any doubt about the accuracy of her conclusions.
Notwithstanding that the taking of fingerprints from the accused by Constable Yaldren was not separately proved, the report as a whole, including the statement that the prints were taken, was admitted without objection. Further, the evidence in the report as to the taking of those prints, relevant to provide a basis for the opinion, is also admissible to prove the fact that they were so taken: Evidence Act, s 60; Pangallo v Smith [2015] ACTSC 313 at [70].
Identification
Evidence that the accused has been identified by a witness must be approached with special caution before it may be accepted as reliable. That is the case even where the relevant witnesses are accepted as honest. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that his or her evidence is correct, that evidence will usually be quite impressive, even persuasive.
It is necessary to carefully consider the circumstances in which the police officers made their observation of the person that they identified as the accused as those circumstances will affect the reliability of identification evidence.
In considering the identification evidence I have had regard to the following features of it.
(a)The evidence was evidence of recognition because both police officers had previously interacted with the accused. Those interactions had been brief but involved a need to positively identify the accused because it was for bail‑reporting purposes. Therefore this is not a case of identification by a stranger.
(b)There were two opportunities to make the identification: first on Currong Street North and again at Block 8 of Allawah Court.
(i)The first was a brief encounter where the rider of the motorcycle was moving past the police vehicle. However it was a situation where the police were particularly focussed on the rider of the motorcycle because they had observed that he was riding without a helmet. Constable Wilson-Smith was not driving and said that she had a good opportunity to view his face. Her evidence was that she made the identification at the time even though the positive identification was not reported over the radio. Senior Constable Yates was driving the vehicle and hence had other responsibilities apart from making the observation but nevertheless was, in the circumstances, likely to have paid particular rather than merely casual attention to the rider of the motorcycle.
(ii)So far as the Allawah Court interaction was concerned the observation at Block 7 was brief. The lighting was adequate. Senior Constable Yates only observed the person who fled once he stood up and ran. Constable Wilson-Smith observed him for longer but still only briefly. The observation of the motorcycle was also brief but made in circumstances where full attention was focussed on the rider. While Senior Constable Yates was subsequently distracted by the necessity to take evasive action, Constable Wilson-Smith was not distracted by the need to avoid the motorcycle. The positive identification reported to police operations was made immediately after this incident so that it is not a case where delay and rumination may have affected the reliability of the identification.
(c)The particular features of the person observed were, in the case of Senior Constable Yates, an Aboriginal man, with dark-brown curly hair, in his late teens or early 20s. In the case of Constable Wilson-Smith, an Aboriginal man with a skinny face, 18 to 19 years old, with a “distinctive hairstyle” that she described as “a mullet”.
I bear in mind the possibility that even though the officers had previous contact with the accused, because of the brief and unremarkable nature of that contact, they may have made an error.
I have taken into account the fact that two witnesses have identified the accused as the person on the motorcycle. That makes it less likely that there is an identification error. However I also take into account the fact that both witnesses identified him at the same time and there is the potential for the identification by one to have influenced the identification by the other. Therefore even though the evidence is stronger than if there had only been one person it is not as strong as it would be if the persons recognising the accused did so independently.
The basis for the recognition evidence from the two police officers was their previous dealings with the accused. I place little weight on their exposure to police images displayed so as to remind officers of who was the subject of a warrant or to be arrested for a breach of bail. I accept the evidence of the officers that they had on more than one occasion signed the accused in when he reported for bail. It is not possible to say precisely when or how many times they did so.
I accept the evidence of Constable Wilson-Smith that upon seeing the motorcycle rider on Currong Street North, she viewed him for long enough to reach the conclusion that he was the accused and that she said so to Senior Constable Yates. The confidence of that identification was not such as to warrant the reporting of his identity over the police radio and instead only a general description was given. However it was sufficient to cause the police officers to focus their attention upon the accused and hence make searches related to him upon their return to the City Police Station.
I accept the evidence of both officers that they had a clear view of the person that they described as the accused when he rode past their vehicle on Currong Street North even if they only saw him for a short period.
I accept their evidence that they both were able to observe the person that they consider to be the accused at Block 7 of Allawah Court although Constable Wilson-Smith obtained a better view than Senior Constable Yates who only saw the person as he stood up and ran away.
I accept the evidence of Senior Constable Yates that he obtained a good view of the rider of the motorcycle at Block 8 prior to having to take evasive action. I also accept the evidence of Constable Wilson-Smith that she obtained a view of the person. Although she did not expressly say so I infer from the evidence of the layout of the car park and the evidence as to how the officers got to the car park, that the person on the motorcycle needed to ride past her in order to get to the exit to Cooyong Street.
I do not accept that the vision of the person at Block 7 or on the motorcycle at Block 8 was significantly impeded by the state of the lighting. Rather I accept the evidence of both officers that while the lighting was less than outside on the summer evening it was still adequate. I place only limited weight on the photographic evidence in relation to Block 7 as the copy of that photograph was poor and it is not clear what time of day it was taken.
I accept the evidence of Constable Wilson-Smith that the rider of the motorcycle on Currong Street North was dressed in the same clothes as the person who was on the motorcycle at Block 8.
I also take into account the following additional matters which are circumstantial matters which reinforce the conclusion that the identification evidence given by the officers was accurate.
(a)Allawah Court was a location which the accused was known to frequent. He was a friend of Mr Booth who lived in the apartment above the carport where the officers said they saw him before he ran away.
(b)A fingerprint was found on the motorcycle helmet that was sitting on the stolen motorcycle when it was found at Howie Court. Howie Court was a location which was associated with Mr Booth’s brother and hence had a connection, albeit indirect, to the accused. In the light of the general unreliability of Mr Booth’s evidence I placed no weight on the statement that he thought his brother was in jail at the time.
(c)The motorcycle found at Howie Court was a motorcycle matching the description of the motorcycle on Currong Street North and at Allawah Court given by Senior Constable Yates.
(d)The damage to the motorcycle found at Howie Court was consistent with the incident that occurred at Block 8 of Allawah Court because the damaged mirror and left indicator was the type of damage that could be expected to have arisen from the motorcycle striking Senior Constable Yates. While the evidence does not exclude the possibility that the damage was inflicted at a time between the time that it was inspected by Detective Sergeant Mellor at 5:55am and the time of the Block 8 incident at about 6:40pm, it is consistent with the damage likely to have arisen from that incident.
Taking the circumstantial evidence into account in addition to the recognition evidence of the police officers I am satisfied beyond a reasonable doubt that the person observed on the motorcycle on Currong Street North and riding a motorcycle out of the carport at Block 8 was the accused. Having regard to the previous familiarity of the officers with the accused and the three occasions where they had an opportunity, albeit briefly, to observe him, the observations made of the motorcycle and the presence of his fingerprint on the side of the helmet associated with that motorcycle, I consider that the evidence as a whole establishes the identity of the person on the motorcycle beyond a reasonable doubt.
Charge 1
Charge 1 is the count on the indictment which is as follows:
… on 18 December 2015 at Canberra in the Australian Capital Territory TROY GRAHAM, used against another person, namely Paul Yates, an offensive weapon likely to endanger human life or cause a person grievous bodily harm, and did so intending to prevent or hinder his lawful apprehension or detention, or intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably called for investigation by the officer.
Section 27 of the Crimes Act provides:
27 Acts endangering life etc
...
(3) A person who intentionally and unlawfully—
...
(c) uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm; or
...
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(4) A person who does an act referred to in subsection (3)—
(a) intending to commit an indictable offence against this part punishable by imprisonment for a maximum period exceeding 10 years; or
(b) intending to prevent or hinder his or her lawful apprehension or detention or that of another person; or
(c) intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation by the officer;
is guilty of an offence punishable, on conviction, by imprisonment for 15 years.
The Dictionary to the Act provides:
offensive weapon means—
(a) anything made or adapted for use, or capable of being used, for causing injury to or incapacitating a person; or
(b) anything intended for that use by the person who is carrying it or otherwise has it in his or her possession;
and includes an imitation or replica of an offensive weapon.
Where limb (b) of the definition of “offensive weapon” is relied upon the most obvious breakdown of the elements of the offence would be as follows:
(i)The person must use a thing “intentionally and unlawfully”.
(ii)The thing must be used “against” another person.
(iii)The thing must be a thing intended for the use of causing injury to a person by the person who has it in his or her possession.
(iv)The thing must be a thing “likely to endanger human life or cause a person grievous bodily harm”.
Two issues of interpretation arise in relation to the fourth element. The first is whether the use of the word “likely” means that the endangering of human life or causing grievous bodily harm needs to be proved on the balance of the probabilities or requires some different level of probability. The second is whether the fourth element is something which is to be discerned by the inherent nature of the thing or whether it is to be assessed in the light of the manner in which it is actually used.
The first may be dealt with relatively briefly. So far as the first issue identified above is concerned, the word “likely” is liable to vary according to the context in which the word is used: Boughey v The Queen (1986) 161 CLR 10 at 20. When used in s 27 it should not, in my view, be interpreted as requiring proof on the balance of probabilities that the offensive weapon would endanger human life or cause a person grievous bodily harm. However the subparagraphs were interpreted, such an approach would involve an artificial exercise of assessing precise degrees of chance rather than looking more broadly at the risk of harm created by the substance, item or circumstances. In its context the use of the word “likely” carries with it a notion of a substantial, real and not remote chance of those consequences following from its use: Boughey v The Queen at 15, 20–1.
The second issue is more difficult. Section 27(3)(c) is similar to s 27(3)(b) in that the “likely” consequence is used to describe the item or substance used rather than the circumstances in which it is used. Section 27(3)(b) refers to an “injurious substance likely to endanger human life or cause a person grievous bodily harm”. Section 27(3)(c) refers to an “offensive weapon likely to endanger human life or cause a person grievous bodily harm”. In contrast paragraphs (e)–(h) of s 27(3) use the word “likely” as a description of consequences of the circumstances in which the act occurs:
(e) causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm; or
(f) sets a trap or device for the purpose of creating circumstances likely to endanger human life or cause a person (including a trespasser) grievous bodily harm; or
(g)interferes with any conveyance or transport facility or any public utility service in circumstances likely to endanger human life or cause a person grievous bodily harm; or
(h)interferes with a prescribed traffic control device (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999) in circumstances likely to endanger life or cause a person grievous bodily harm;
(emphasis added)
The contrasting language used suggests that in paragraphs (b)–(c) of s 27(3) the words “likely to” describe the thing itself rather than a set of circumstances involving the use of the thing.
However even in the case of offensive weapons which clearly would be capable of endangering life or causing a person grievous bodily harm (for example, a gun or a knife) there will be uses of those weapons against a person which are clearly not likely to endanger human life or cause a person grievous bodily harm even though the weapon has that capacity. Likewise an “injurious substance” capable of endangering human life or causing a person grievous bodily harm may be harmless if used in a particular way (such as at very low concentrations). These examples suggest that the quest to establish the relevant likelihood from the inherent nature of the item or substance will prove impossible.
In my view, the likelihood of endangering life or causing grievous bodily harm must be assessed with at least some regard to the manner in which the substance (s 27(3)(b)) or weapon (s 27(3)(c)) is used. It is necessary to look, in the case of s 27(3)(c), to some aspect of the use and intention behind its use. That is particularly so where the offensive weapon only falls within limb (b) of the definition, that is, because of the intention of the user rather than the nature of the item (limb (a)). When greater emphasis is placed on the word “use” the paragraph asks whether the use of the offensive weapon was likely to endanger human life or cause grievous bodily harm. In the same way s 27(3)(b) asks whether the administration of the injurious substance was likely to have that effect. In the case of an offensive weapon within limb (b) of the definition this allows an examination of the manner of use in order to reach a conclusion as to whether or not there was a substantial, real and not remote chance of the endangering of human life or causing a person grievous bodily harm. Having regard to the structure of the section which, as pointed out above, suggests that the likely consequences are directed to some inherent quality of the weapon, this interpretation has a degree of artificiality about it. It requires the paragraph to be read as though it in fact read “uses… any offensive weapon in a manner likely to …” when an apparently deliberate decision has been made not to draft the paragraph in that way. However unless so interpreted the paragraph calls for an enquiry which is even more artificial, that is, an inquiry about the inherent nature of a weapon divorced from the manner in which it is used.
The interpretation that I have given the section is consistent with the interpretation apparently given to it by Connolly J in R v O’Neill [2004] ACTSC 64 although his Honour does not appear to have given detailed consideration to the issue.
As Higgins J explained in R v Galvin (1998) 147 FLR 182 at 184, s 27 was inserted by an amending ordinance in 1990, the explanatory statement for which stated that the new provisions had the effect of “replacing archaic offences and language, removing anomalies and inconsistencies and standardising language”. This worthy law reform intention does not appear to have been fully achieved in s 27(3)(c). Provisions of the criminal law which have the capacity to result in imprisonment of citizens for 10 years or, in the case of s 27(4), 15 years, should be drafted so that informed citizens may make choices about how they behave. The theory of citizens making rational choices under law which forms the foundation of the criminal law is undermined when statutory provisions are not drafted in a way to clearly expose the elements of the offence. That is the case with s 27(3)(c).
When s 27(3) is interpreted in a manner which I have outlined above I am not satisfied that it has been proved beyond reasonable doubt that the accused committed an offence under s 27(4). I accept that a motor vehicle may be an offensive weapon for the purposes of s 27(3)(c): see R v Hamilton (1993) 66 A Crim R 575; R v O’Neill [2004] ACTSC 64 at [9]. However I am not satisfied that there was a real or substantial risk that Senior Constable Yates’ life was endangered or a real or substantial risk that the use of the motorcycle would cause grievous bodily harm. There was certainly evidence that the motorcycle was accelerating over a short distance towards the officer. There was no evidence of the speed at which the motorcycle was actually travelling at the point where it would have hit him. There was no expert evidence about the nature of the injuries that could be suffered by a person who was struck by such a vehicle at that speed. Constable Yates in fact only suffered some minor grazing. While there was clearly a real or substantial risk that he might sustain actual bodily harm if the motorcycle collided with him, the nature of the weapon was not such that it was obvious that there was a real or substantial risk that life would be endangered or grievous bodily harm caused as there would have been if the incident involved a motor car: cf R v O’Neill [2004] ACTSC 64 at [9]. The accused is not guilty of this charge.
Charge 2
Charge 2 (CC16/10677) is a charge of hindering a public official contrary to s 361(1) of the Criminal Code 2002 (ACT):
361 Obstructing territory public official
(1) A person commits an offence if—
(a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and
(b) the person knows that the public official is a public official; and
(c) the public official is a territory public official; and
(d) the functions are functions as a territory public official.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) Absolute liability applies to subsection (1)(c).
(3) Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.
(4) In this section:
function—
(a) in relation to a person who is a public official—means a function that is given to the person as a public official; and
(b) in relation to a person who is a territory public official—means a function given to the person as a territory public official.
The charge was that Mr Graham “hindered” Senior Constable Yates. As this was an alternative charge to Charge 1, it was particularised as driving the motorcycle at Senior Constable Yates. In my view the act of the accused prevented Senior Constable Yates from making an arrest or were an obstacle or impediment to him doing so and hence hindered him in the statutory sense: Taufahema v The Queen [2006] NSWCCA 152; 162 A Crim R 152 at 161–162; Leonard v Morris (1975) 10 SASR 528 at 531. In the circumstances there can be no doubt that the accused knew that Senior Constable Yates was a public official as he was in full uniform and had arrived at Block 7 in a fully-marked police vehicle. Senior Constable Yates was in fact a public official and the functions he was performing were as a public official. The accused is guilty of this charge.
Charge 3
Charge 3 (CC16/10615) is a charge of common assault contrary to s 26 of the Crimes Act.
The assault alleged is that which occurred when the accused rode the motorcycle at Senior Constable Yates. The accused clearly applied force to Senior Constable Yates, striking his left side with the motor vehicle. I am satisfied beyond a reasonable doubt that the application of force to Senior Constable Yates was at least reckless, in the sense that the accused realised that Senior Constable Yates might be subject to immediate and unlawful violence, however slight, as a result of what he was about to do, but yet took the risk that that might happen. Recklessness is sufficient intention to establish a common assault: McElholum v Hughes [2015] ACTSC 78 at [324]–[328]; appeal dismissed [2016] ACTCA 37 at [54]–[62]. Senior Constable Yates did not consent to the application of force. Therefore the accused is guilty of this offence.
Charge 4
Charge 4 (CC16/09314) is an allegation of a failure to wear a helmet in contravention of Australian Road Rules, r 270(1)(a). The rule provides:
270 Wearing motor bike helmets
(1) The rider of a motor bike that is moving, or is stationary but not parked, must:
(a) wear an approved motor bike helmet securely fitted and fastened on the rider’s head; and
....
Offence provision.
NoteMotor bike and park are defined in the dictionary.
...
(3) In this rule:
approved motor bike helmet means a protective helmet for motor bike riders that is approved, for the Australian Road Rules, under another law of this jurisdiction.
...
As I am satisfied beyond a reasonable doubt that the person on the motorcycle on Currong Street North was the accused I am satisfied that he is guilty of this offence.
Charge 5
Charge 5 (CC16/09320) is a charge of failing to stop when signalled by police contrary to the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109(2) which provided at the time of the offence:
109 Additional powers of police
(1) A police officer may request or signal the driver of a vehicle to stop the vehicle.
(2) A person must not, without reasonable excuse, fail to comply with a request or signal made or given by a police officer under subsection (1).
Maximum penalty: 20 penalty units.
(3) A police officer may, during a temporary obstruction or danger to traffic or in an emergency, direct the responsible person for or driver of a vehicle parked in any part of a pay parking area to remove the vehicle or, if no-one appears to be in charge of the vehicle, remove the vehicle.
Neither the regulation nor the Australian Road Rules provide that the turning on of lights and sirens constitutes a “request or signal” or places an obligation upon a driver to stop when lights and sirens are turned on. Lights and sirens may be turned on for reasons other than seeking to cause the driver of a motor vehicle to pull over or stop: see, for example, Australian Road Rules r 305. In the present case it is clear that the accused wished to avoid police because he was in breach of his bail conditions and hence liable to be arrested. He therefore had a reason to seek to avoid contact with police unrelated to any issue related to his driving.
The evidence of the police officers was that the lights and sirens on the police vehicle were turned on as the motorcycle approached the police vehicle and then the siren turned off after the police vehicle had turned around. Senior Constable Yates said that the lights remained on until the police vehicle was at the intersection with Ainslie Avenue. In order for an action to be a request or signal it must be understood as such by the other party. A request or signal made orally but not heard by the other party would not be a request or signal for the purposes of the section. A request made by hand signals using Auslan would not be a request or signal for the purposes of the section if the recipient did not understand Auslan. In the present case, although I am satisfied beyond a reasonable doubt that the accused either saw the vehicle’s lights or heard the siren, I am not satisfied beyond reasonable doubt that the accused understood the lights and sirens of the police vehicle to involve a request or direction to stop.
Therefore the accused is not guilty of this offence.
Charge 6
Charge 6 (CC16/09316) is a charge of driving on a path contrary to the Australian Road Rules, r 288(1):
288 Driving on a path
(1) A driver (except the rider of a bicycle) must not drive on a path, unless subrule (2) or (3) applies to the driver.
Offence provision.
Note Bicycle is defined in the dictionary, and path is defined in subrule (6).
(2) A driver may drive on a path if the driver is:
(a) driving on a part of the path indicated by information on or with a traffic control device as a part where vehicles may drive; or
(b) driving on the path to enter or leave, by the shortest practicable route, a road-related area or adjacent land and there is not a part of the path indicated by information on or with a traffic control device as a part where vehicles may drive; or
(c) permitted to drive on the path under another law of this jurisdiction.
Note Adjacent land, traffic control device and with are defined in the dictionary, and road-related area is defined in rule 13.
...
(4) A driver on a path (except the rider of a bicycle, or a driver driving on the path to enter a road from a road-related area or adjacent land, or to enter a road-related area or adjacent land from a road) must give way to all other road users, and to animals, on the path.
Offence provision.
...
(6) In this rule:
path means a bicycle path, footpath or shared path.
Note Bicycle path is defined in rule 239, footpath is defined in the dictionary and shared path is defined in rule 242.
There is a separate road rule dealing with driving or riding on a nature strip: r 289.
The evidence of Senior Constable Yates was inconsistent with that of Constable Wilson-Smith. Senior Constable Yates described the accused as riding down the nature strip. Constable Wilson-Smith described him as riding along the footpath. Riding on a nature strip is an offence but not the offence with which the accused was charged. Notwithstanding that I generally considered the evidence of Constable Wilson-Smith to be more reliable than that of Senior Constable Yates, having regard to the difference in the evidence of the two officers I am not satisfied beyond a reasonable doubt that the accused rode along the footpath as opposed to the nature strip adjacent to Currong Street North. As a consequence the accused is not guilty of this offence.
Charge 7
Charge 7 (CC16/09318) is a charge of riding in or on a motor vehicle without consent contrary to s 318(2) of the Criminal Code. That section provided:
318 Taking etc motor vehicle without consent
...
(2) A person commits an offence if—
(a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
NoteFor alternative verdict provisions applying to an offence against this section, see s 370.
(3) In this section:
car—see the Road Transport (Vehicle Registration) Regulation 2000, dictionary.
car derivative—see the Road Transport (Vehicle Registration) Regulation 2000, dictionary.
motorbike—see the Road Transport (Vehicle Registration) Regulation 2000, dictionary.
motor vehicle means a car, car derivative or motorbike.
The word “dishonest” is defined in s 300 as follows:
dishonest means—
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
I am satisfied that the vehicle was dishonestly taken by someone from the side of the road where it was left by Mr Vemana and that this was done without the consent of Mr Vemana. In the light of my conclusion above in relation to the identification of the accused I am satisfied beyond reasonable doubt that the accused rode the motorcycle. However I am not satisfied that he did so dishonestly in the defined sense. There was no evidence as to how the motorcycle came to be in the possession of the accused. The only evidence that was consistent with it being somehow apparent to a user that the motorcycle was taken from somebody without consent was the evidence of Senior Constable Yates that the ignition of the motorcycle had been tampered with. However this was something which was not detected by the crime scene investigator, Mr Spryszynski, and no description was given as to the features of the motorcycle which led Senior Constable Yates to that conclusion. In those circumstances, while the circumstantial evidence leads to a high degree of suspicion that the accused knew that the vehicle had been taken without consent and that his use of the vehicle was thereby dishonest I am not satisfied of that beyond a reasonable doubt. There is a reasonable possibility that the motorcycle was taken by someone else and used by the accused without knowledge of it being taken without consent. His behaviour in fleeing from police on Currong Street North and at Block 7 and Block 8 of Allawah Court could be explained by his desire to avoid arrest for breach of bail rather than his consciousness of guilt because of some dishonesty surrounding his use of the motorcycle. There is therefore a reasonable hypothesis consistent with his innocence and the accused is not guilty of this offence.
Charge 8
Charge 8 (CC16/12964) is a charge that the accused was an unlicensed driver contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT). That section provides:
31 Driver must be licensed
(1) A person must not drive a motor vehicle on a road or road related area unless the person—
(a) is the holder of an Australian driver licence that authorises the person to drive a motor vehicle of that kind; or
(b) is exempted by regulation from holding an Australian driver licence.
Maximum penalty: 20 penalty units.
Exhibit 1, which is an evidentiary certificate under s 72(1)(a) of the Road Transport (General) Act 1999 (ACT) demonstrates that the accused was not the holder of an Australian driver licence that authorised him to drive a motorcycle. He did hold a learner’s licence but that was suspended. I draw an inference from the fact that he held a suspended learner’s licence that he was not exempt from holding an Australian driver licence. I am therefore satisfied beyond a reasonable doubt that he is guilty of this offence.
Charge 9
Charge 9 (CC16/09321) is another charge of failing to stop when requested by police contrary to s 109(2) of the Road Transport (Safety and Traffic Management) Regulation. The evidence of both officers was that Senior Constable Yates called out “Stop” or “Stop, police” and that he signalled for the accused to stop by holding out his hand towards him with his palm held face out. I am satisfied beyond reasonable doubt that this was a signal to stop and understood as such by the accused. I am also satisfied beyond reasonable doubt that he failed to stop in that he accelerated the vehicle towards Senior Constable Yates. The accused is therefore guilty of this offence.
Charge 10
Charge 10 (CC16/09317) is a charge that the accused did not stop after an accident causing injury contrary to s 16 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which provides:
16 Driver or rider to stop and give assistance
If the driver of a vehicle, or rider of an animal, is involved in a traffic accident on a road or road related area, and someone dies or is injured in the accident, the driver or rider must not knowingly fail to stop and give any assistance that is necessary and in his or her power to give.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
The term “traffic accident” is defined in s 15 as follows:
traffic accident includes—
(a) a collision between 2 or more vehicles or a vehicle and an animal; and
(b) any other accident or incident involving a vehicle or animal in which a person dies or is injured, property is damaged, or an animal in someone’s charge dies or is injured.
The charge relates to the failure to stop after Senior Constable Yates jumped out of the way of the motorcycle. Senior Constable Yates did receive minor injuries as a result of that incident. The events near the carport under Block 8 were an “accident or incident involving a vehicle … in which a person … is injured [or] property is damaged”. They are therefore a “traffic accident”. I am satisfied beyond reasonable doubt that the accused failed to stop and give any assistance after the incident. The issue is whether the requirement that he “knowingly” failed to stop includes a requirement that the accused know not only that there had been an accident but that there had been an injury.
The legislative history of the provision sheds no light upon this issue. In my view the section is best interpreted by requiring that the driver of the motor vehicle knows that there is both a traffic accident and that a person has died or was injured in the accident. While the structure of the phrase “knowingly fail to stop” would suggest that the requirement for knowledge is associated with the failure to stop, that would be an interpretation which made little sense in the context of a criminal provision relating to the driving of a motor vehicle. That is because it is obvious that a person will have known that he or she has failed to stop and hence the requirement for knowledge would add little. The requirement for knowledge would only be a matter of substance if, notwithstanding the structure of the phrase, the word “knowingly” related to those matters identified earlier in the provision, namely, the existence of a traffic accident and the fact that someone has died or is injured.
In the circumstances it must have been obvious to the accused that Senior Constable Yates had to jump out of the way of the motorcycle. It may or may not have been obvious that he had been struck by a part of the motorcycle. However, the evidence did not describe in sufficient detail what would have been observable about that act to prove beyond reasonable doubt that the accused knew that the Senior Constable had been injured. Had the legislature intended to criminalise a person who fails to stop in circumstances where a reasonable person would consider that there was a risk that a person was injured then it could have said so but has not (cf Road Transport Act 2013 (NSW) s 146). Therefore the accused is not guilty of this offence.
Charge 11
Charge 11 (CC16/09315) is another allegation of a failure to wear a helmet contrary to r 270(1)(a) of the Australian Road Rules. This relates to the riding of the motorcycle out of Allawah Court and along Cooyong Street towards Northbourne Avenue. In the light of the evidence of the police officers I am satisfied beyond a reasonable doubt that this offence is made out and I find the accused guilty.
Charge 12
Charge 12 (CC16/10616) is another charge of riding in or on a motor vehicle without consent contrary to s 318(2) of the Criminal Code. For the same reasons as given in relation to charge 7 this offence has not been established and I find the accused not guilty.
Charge 13
Charge 13 (CC16/12965) is another charge of being an unlicensed driver of a motor vehicle contrary to s 31(1) of the Road Transport (Driver Licensing) Act. This relates to driving from the carport under Block 8 at Allawah Court through the car park and out onto Cooyong Street. For the reasons given in relation to charge 8 I am satisfied that the accused is guilty of this offence.
Charge 14
Charge 14 (CC16/09319) is a charge of aggravated dangerous driving contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act which provided at the time of the offence:
7 Furious, reckless or dangerous driving
(1) A person must not drive a motor vehicle furiously, recklessly, or at a speed or in a way that is dangerous to the public, on a road or road related area.
Maximum penalty:
(a) for an aggravated offence—200 penalty units, imprisonment for 2 years or both; or
(b) in any other case—100 penalty units, imprisonment for 1 year or both.
(2) In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including—
(a) the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and
(b) the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.
NoteAutomatic licence disqualification applies to an offence against this section (see Road Transport (General) Act 1999, s 63).
Section 7A identified the circumstances in which an aggravated offence is committed:
7A Aggravated offence—furious, reckless or dangerous driving
(1) An offence committed by a person against section 7 (the current offence) is an aggravated offence if—
(a) any of the following circumstances existed at the time of the current offence:
(i) the person without reasonable excuse, failed to comply with a request or signal given by a police officer to stop the vehicle;
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(vi) the person was driving in a way that put at risk the safety of a vulnerable road user;
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(b) the person is a repeat offender.
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(4) In this section:
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vulnerable road user means a road user other than the driver of, or passenger in, an enclosed motor vehicle.
Examples—vulnerable road users
1 pedestrians
2 cyclists
3 motorcyclists
4 riders of animals
5 users of motorised scooters
6 users of segways
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Section 7B provides for an alternative verdict:
7B Alternative verdicts—furious, reckless or dangerous driving—aggravated offence
(1) This section applies if, in a prosecution for an aggravated offence against section 7, the trier of fact is satisfied beyond reasonable doubt that the defendant committed an offence against section 7 but is not satisfied that the defendant committed the aggravated offence.
(2) The trier of fact may find the defendant guilty of an offence against section 7 but not guilty of the aggravated offence charged, but only if the defendant has been given procedural fairness in relation to that finding of guilt.
The information alleges:
That he in the Australian Capital Territory on 18 December, 2015, being a first offender, did drive in a way dangerous and at the time of the offence, without reasonable excuse, failed to comply with a request or signal given by a police officer to stop a vehicle and driving in a way that put at risk the safety of a vulnerable road user.
The conduct that is alleged to establish this charge was the whole of the conduct of the accused from the point at which he commenced riding from the carport underneath Block 8 up until the point where he was riding on the correct side of Cooyong Street.
I am satisfied that the car park area around Allawah Court is a “road related area” for the purposes of the road transport legislation at the relevant time: Minister for Urban Services, Declaration Of Areas to be Defined as Road Related Areas, DI2000-341. Further, I am satisfied that except when actually in the carport underneath Block 8, the accused was in the car park area covered by the declaration.
I find that the accused drove in a manner which was dangerous by driving directly towards Constable Yates as well as by driving on the wrong side of the road from the exit from Allawah Court onto Cooyong Street up until the intersection with Petrie Street. On the issue of how far he drove on the wrong side of the road, I prefer the evidence of Senior Constable Yates to that of Constable Wilson-Smith as the evidence was more precise and, in my view, reflected a more accurate recollection of the location of his driving. I find that motor vehicles travelling in a southerly direction on Cooyong Street were required to take evasive action to avoid a collision with the motorcycle being driven by the accused.
I am satisfied that both of the aggravating features in s 7A(1)(a)(i) and (vi) are established because the accused failed to comply with the request and signal by Senior Constable Yates to stop the vehicle and drove in a way that put Senior Constable Yates’ safety at risk.
I therefore find the accused guilty of this offence.
Summary
In summary the position in relation to each of the charges is as follows:
(a)Charge 1 — not guilty
(b)Charge 2 — guilty
(c)Charge 3 — guilty
(d)Charge 4 — guilty
(e)Charge 5 — not guilty
(f)Charge 6 — not guilty
(g)Charge 7 — not guilty
(h)Charge 8 — guilty
(i)Charge 9 — guilty
(j)Charge 10 — not guilty
(k)Charge 11 — guilty
(l)Charge 12 — not guilty
(m)Charge 13 — guilty
(n)Charge 14 — guilty.
Verdicts shall be entered accordingly.
I certify that the preceding one hundred and twenty-one [121] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date:15 September 2017
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