R v Haydon No. DCCRM-98-784 Judgment No. D50

[1999] SADC 50

R v HAYDON

[1999] SADC 50

Judge Anderson
Criminal

1 Ronald James Haydon is charged on Information with three offences.  The third is charged as an alternative to the second.  Each arises from the one incident.
2 The first offence charged is Assault Occasioning Actual Bodily Harm.  The particulars allege that at Millicent on 14 July 1996 he assaulted David Brian Wiese, thereby occasioning him actual bodily harm.
3 The second offence is Shooting at with Intent to do Grievous Bodily Harm.  The particulars allege that on the same day the Accused unlawfully and maliciously shot at David Brian Wiese, with intent to do him grievous bodily harm.
4 The alternative charge is Assault Occasioning Actual Bodily Harm.  The particulars allege such an assault arising from the same incident particularised in Count 2.
5 To each of these counts the Accused entered a plea of not guilty.
6 Pursuant to s7(1)(a) of the Juries Act 1927, the Accused elected for trial by judge alone. This application was granted upon an order enlarging the time within which such an application might be made. Mr Wells appeared as counsel for the Director of Public Prosecutions and Mr Boucaut of counsel for the Accused.
7 It is for the Crown to prove each of the elements of each offence beyond reasonable doubt.  The Accused has no onus upon him at all.
8 The Accused was cautioned by the police when arrested in relation to these matters.  He exercised his right to silence.  At trial he elected to neither give nor call evidence.  Of course, in each instance that is his right and no inference adverse to him is to be drawn because he has chosen to exercise those rights.
9 Where I say that I am "satisfied" or that a matter is "proved", then unless I say to the contrary, I mean so beyond reasonable doubt.  Similarly with any like expression.
10 It is obvious from the evidence given that all of the players in the case, including the Accused were, in and around July 1996, involved in the drug sub-culture.  This evidence was an important part of the background narrative and is of no relevance to the discharge of the onus of proof which is upon the Crown.  Nothing adverse may be taken into an assessment of those who gave evidence because of this practice or because of how they lived their lives.
11 The victim of the alleged assaults lived with his wife and children in Millicent in July 1996.  On 14 July 1996, Mr Wiese had been on rostered days off from his employment of about 3 years at Kimberly-Clark nearby to Millicent.  That was the day on which he was to return to work.  His wife and children were away from Millicent for the school holidays.
12 The evidence indicates that he expected to be picked up and driven to work quite early that morning.
13 He said that he awoke early and was lying awake in bed, waiting for time to pass until he got out of bed at about 5.50am.  Before that time was reached, he heard a knock at his front door and his dog, which was inside, barked.
14 Wearing T-shirt and underpants he went to the front door.  He did not put any lights on.  Of course, before 6.00am in July it was dark in Millicent.
15 When he opened the door he was immediately struck a heavy blow to the right side of his head some inches above his ear.  Blood flowed down his face immediately.  He fell backwards and slightly away from the doorway.
16 As he received the blow and immediately thereafter, he said that he saw one man standing on the front doorstep of his house immediately to his front.  He was holding a bat of some type.  Mr Wiese also saw a second man standing adjacent to the first near a glass panel next to the front door and to the left, as he looked.  He said in evidence that this man was holding a double barrel sawn off shot gun.  He did not recognise either of the men and he did not give any evidence of having heard either of them speak.
17 In evidence Mr Wiese said he thought the men were, and particularly the one who struck him, taller than he.  This was different from what he told the police later on 14 July 1996 when he said that they were no taller than he.  He explained his change of evidence by reference to the difference in levels between where he was standing and where the men outside were standing on a lower step.  I accept his reason for this alteration in his evidence.  It means only that likely the men were taller than he.  Mr Wiese agreed with Mr Boucaut in cross examination that the Accused was about 2 inches taller than him.  There was no more precise evidence on this topic.
18 This assault at the front door is the subject of Count 1 on the Information.
19 As he was hit and fell back, Mr Wiese turned and ran away, through his house and out a rear door, across his block and over a fence onto the roadway and along to about 50 metres from his front door.
20 I accept that this was about the distance because he said it was about two house blocks and this is the lower end of the range of his estimate of how far he was away from the men who were then still at his front door.
21 Mr Wiese said he called out to them and asked the reason for the assault.  The men, and here he saw that each was wearing a balaclava, walked to the road in front of his house.  In response to his request for an explanation, Mr Wiese heard only what he referred to as a "muffled" and "gobbledygook" (T p31) response.  He discerned only some reference to his dog which had barked when he was struck.  Perhaps this muffled sound was because of the balaclavas.
22 At that time the man holding the shot gun raised it to his hip and fired in the direction of Mr Wiese.  Pellets struck him in his right thigh and right forehead.  Photos in the exhibit, P1, show these wounds.  They were described by Dr Griscti who treated Mr Wiese at the Millicent Hospital shortly thereafter.
23 This incident forms the basis of Count 2 and its alternative.  Even though there was no debate at trial as to whether the pellet wounds constitute really serious bodily harm, my inclination is that they do not.  These were not wounds which, allowing for proper and prompt treatment which was received, were properly able to be described as really serious.  In any event, for reasons which I shall subsequently detail, this is not an issue decisive of Count 2.
24 After being treated in hospital and released on that day, Mr Wiese went to the Millicent Police Station where he made a statement to Detective Hand.  That was the statement to which reference was made in evidence.  He was unable to identify the men, who, he said, after the shot was fired, turned and walked away in the opposite direction.  I am satisfied that he told Detective Hand that the men were wearing balaclavas, even though that fact was omitted from the statement Mr Wiese there signed.
25 Because Mr Wiese could not give any indication of who his assailants were, the police commenced a thorough review of, and spoke to, known associates of Mr Wiese and especially those in the drug sub-culture.
26 Amongst such persons were the Accused and one David Dempsey.  The Accused and Mr Dempsey were long term users of amphetamine.  Mr Dempsey said that he had known the Accused from about early 1994, about 1 year before his son was born in March 1995.  Mr Wiese said that he used cannabis and had not used amphetamine with Mr Dempsey since before he commenced his present employment about 3 years earlier. He had known Mr Dempsey from some years earlier when he was a crayfish buyer at Southend and Mr Dempsey was a fisherman.  They there used amphetamine together.  He agreed that in July 1996 he occasionally used amphetamine when time off from his work allowed him so to do.
27 Whilst he knew Mr Dempsey, he said that he did not know the Accused prior to July 1996.  This evidence is uncontradicted.
28 In the intervening years both Mr Dempsey and Mr Wiese said in evidence that they saw each other intermittently.  They had children of like ages and occasionally the families had a meal together.  Each denied any recent drug taking on such occasions.  Having regard to the evidence of Ms Sandra West, the then defacto wife of Mr Dempsey, that is evidence which I accept.  She was, and was known to be, strongly opposed to Mr Dempsey’s use of amphetamine.  Mr Wiese also gave evidence to this effect.
29 When Mr Wiese was assaulted and shot, Mr Dempsey and the Accused were used to seeing each other.  In times past they had been in the habit of together regularly using amphetamine.  They had separate suppliers but would, if the need arose, supply to each other.
30 This drug use reached such a stage before March 1995 that Mr Dempsey would hallucinate and be violent with his defacto.  At that time their son was born.  Because of Mr Dempsey’s behaviour, Ms West had left their home in Thornlea, out of Beachport, and moved to Penola with their son.  Mr Dempsey continued to live at Thornlea until his house burnt down.  He then spent about two weeks with Ms West in Penola and then moved into a flat in Mount Gambier.  This was in about November 1995.
31 From about late 1995 he was receiving medical treatment to reduce his drug dependency.  Mr Dempsey said in evidence that at trial he has been free of drug use for about two years.  From about when he moved to Mount Gambier he was seeking the medical assistance to which I have referred.
32 His use of amphetamine with the Accused reduced when he commenced medical treatment and lived in Mount Gambier.  However, he still came to Millicent several days each week and often saw the Accused.  I accept his evidence that he was attempting to reduce contact, but was still seeing the Accused and using drugs about once per week.
33 Throughout this time, Mr Dempsey spent time with Ms West and their son at Penola.  On 13 July 1996, the Accused visited Penola with his wife and asked Mr Dempsey who was there to accompany him to Salt Creek.  He agreed to do so and Mrs Haydon stayed with Ms West whilst that journey occurred.  Mr Dempsey agrees that he knew the Accused was to meet another person there to buy drugs.  He denied that he was to be introduced to a supplier for this purpose.  He said he was then rarely using and had his own sources of supply in any event.  The journey was completed late at night and Mr Dempsey slept that night at Penola.
34 Early on 14 July 1996 the telephone rang.  Ms West took it off the hook and went back to sleep.  She said she and Mr Dempsey were sleeping separately.  It is agreed that at 8.23am a call was received from the Accused’s telephone number.  That call lasted 34 seconds.  It is also agreed that at 8.50am there was a call from Ms West telephone to the Accused’s number at Millicent.  That call lasted two minutes and 14 seconds.
35 The undisputed evidence, which I accept, is that as a consequence of these calls, Mr Dempsey and Ms West and their son went to see the Accused at his home in Millicent.  They arrived there late morning.  Mr Dempsey said that earlier, at the telephone, the Accused had used the expression "the shit’s hit the fan" and had then asked Mr Dempsey to visit him in Millicent.  Ms West said she went because she would not allow Mr Dempsey to be with the Accused alone.  The earlier journey to Salt Creek was something she could not influence and she could not go with Mr Dempsey because of her three children.
36 At Millicent they waited for the Accused to come home.  In evidence, Mr Dempsey said that the Accused said, in his presence and that of Ms West and the Accused’s wife, that he, with a person called Eddie, (whom Mr Dempsey said he had met with the Accused in Millicent at an earlier time) had that morning knocked on Mr Wiese’s door and when he opened the door one had hit Mr Wiese with a baseball bat; that Mr Wiese left through the back door and ran down the road.  The Accused, Mr Dempsey said, then said that he shot Mr Wiese and then they ran away.  Mr Dempsey said that the Accused said he disposed of the gun by a bridge.  Thereafter, Mr Dempsey and Ms West returned to Penola.  At the time the Accused made this alleged confession, Mr Dempsey said he had not, on that day, spoken to Mr Wiese.  He said that he did not thereafter speak to Mr Wiese until 22 July 1996.
37 Mr Dempsey was spoken to by a police officer investigating the shooting on 16 July 1996.  He denied any knowledge of the Millicent shooting.  In evidence he said that he did so to avoid being involved.
38 Mr Dempsey said that on 22 July 1996 he reflected upon what the Accused had said to he and Ms West on 14 July 1996 and decided to tell Mr Wiese because he was concerned for the safety of his wife and children.  He did so in the company of Ms West and Mr Wiese asked him to speak to the police, which he did at Beachport that night.  He there refused to sign a statement because of what he described as "concern for myself and my family" (T p63).
39 Eventually, he signed such a statement in March 1998.  In March 1997 he had made a complaint to the police about a threat which the Accused had allegedly made to him at that time.  He did not use that opportunity to say anything to the police about the alleged confession despite being in contact with the police concerning this complaint on several occasions between March 1997 and March 1998.  Not surprisingly, this failure drew severe criticism from Mr Boucaut, both in cross examination and in his final address.
40 The evidence given by Ms Sandra West as to her relationship with Mr Dempsey accorded with that given by Mr Dempsey.  She supported his evidence as to the general circumstances surrounding the trip to Salt Creek and that the Accused’s wife stayed with her at Penola and that they sewed whilst it occurred.
41 She also supported what Mr Dempsey had said as to the nature of their relationship with Mr Wiese and his wife.
42 She also said that once she lived at Penola and Mr Dempsey lived in Mount Gambier she would do what she could to help Mr Dempsey break his link with the Accused because of her abhorrence of Mr Dempsey’s use of amphetamine and her knowledge that he would use when in the company of the Accused, whom she also knew to be a user of amphetamine.
43 She supported the evidence of Mr Dempsey that the telephone rang at her Penola house early in the morning of 14 July 1996 - the day after the journey to Salt Creek.  She said that she took it off the hook at about 6.00am and replaced it at about 8.30am.  It rang again and she spoke to the Accused who wanted to speak to Mr Dempsey - he wanted she and Mr Dempsey to come to Millicent and said to her: "The shit has hit the fan" (T p101).
44 She and Mr Dempsey went to the Accused’s house and arrived at about 10.30am.  She confirmed Mr Dempsey’s evidence that the Accused was not there and arrived about half an hour later.
45 Ms West said that the Accused told them that, with another person and with a baseball bat and a gun he went to Mr Wiese’s house, knocked on the door and when Mr Wiese answered it, hit him on the head with the bat and that Mr Wiese "took off" (T p102).  She said that the Accused said that they chased him and fired the gun at him on the road.  She said the Accused said that the gun and some clothes were buried near a bridge near a national park.
46 Thereafter, she said she and Mr Dempsey went to see Mr Wiese and his wife and told them about what the Accused had allegedly said to them.  Later on that day, Mr Dempsey went to Beachport and returned home at midnight.  I am satisfied that these events occurred on 22 July 1996.
47 There was cross examination of Sandra West as to what she understood about the incident at Mr Wiese’s house.  Clearly she was confused about what she heard from the Accused as to how and where, at Mr Wiese’s house, the assault occurred and what then happened, when regard is had to the evidence of Mr Wiese.
48 Plainly, the best evidence of what occurred is that of Mr Wiese and to the extent of difference, his evidence is to be preferred to this portion of Ms West’s evidence.  Having said that, however, some allowance must be made for precisely what Mr Dempsey and Ms West were told by the Accused.  It might be surprising to find that a recitation of the events and the manner of their occurrence from the Accused, as an assailant, would precisely agree with such an account from the victim.
49 This may explain the apparent difference in the evidence relating to the use of a "foreign language".  Mr Dempsey said that the Accused said he and his colleague spoke in a "Chinese type" language at Mr Wiese’s door.  Ms West said the Accused said it was "Italian".  Mr Wiese made no reference to any such thing.  He gave no evidence of anything spoken at his front door.  It is quite possible that his assailants did speak to him and that he did not hear it.  His dog was barking before he opened the door and immediately he did so, he was struck.
50 I am not of the opinion that the essential weight of the evidence of Mr Dempsey or Ms West is lessened by this language factor or by different details being related as to the precise chronology of the incident.
51 Both Mr Dempsey and Ms West were very good witnesses.  The core of their evidence was consistent and none of the various hypotheses put to them in cross examination drew a response which, when viewed in the overall context of the evidence, reflected adversely upon their evidence.
52 I agree with the submission by Mr Wells, that, after nearly three years there would be much greater cause for concern as to the nature and quality of their evidence if it was in precise agreement as to all crucial parts.
53 Mr Dempsey said that he simply lessened his contact with the Accused over time as he tried to further reduce his use of amphetamine.  He said that in March 1997 he spoke with the Accused at the telephone and refused a demand by the Accused that he visit him.  Mr Dempsey said that he was then threatened by the Accused with reference being made by the Accused to his gun.  Mr Dempsey said that he then went and reported that threat to the police and signed a statement.  He made no reference to the July 1996 incident and was not asked again to sign a statement relating to what he had told the police at Beachport on 22 July 1996.  He agreed that he did not sign a statement relating to that until March 1998.
54 Ms West also made a statement to the police in March 1997 about that threat which made no reference to the July 1996 incident.  She also signed a statement relating to the Accused’s alleged confession in March 1998.  This was the first occasion on which she had spoken to the police about it.  She had not previously been spoken to by the police on this topic.
55 Ms West agreed that police spoke to Mr Dempsey at Penola on 16 July 1996.  She has no knowledge of what was said.  Mr Dempsey had said in that conversation he denied any knowledge of the shooting to the police for the reason referred to earlier in this verdict, i.e. to keep him "out of it at that stage" (T p145).
56 It was in this conversation on 16 July 1996 that Mr Dempsey agreed with Mr Boucaut that he had mentioned to the police that the Gypsy Jokers may be responsible for the assault on Mr Wiese.  In cross examination he said he did so because he knew that at that time that motorcycle group were "moving in on a few people ..." (T p145).
57 Mr Wiese had told Detective Davis on 15 July 1996 that a possibility was that his assailants could have been the Gypsy Jokers.  He was not cross examined on the topic.  In cross examination Mr Dempsey denied having spoken to Mr Wiese between 14 July 1996 and 22 July 1996.  He denied that he knew Mr Wiese had made this mention to the police one day before he did.
58 Of course, Mr Boucaut made much of this "coincidence" in his final address suggesting that it was a basis to doubt the evidence of Mr Dempsey.
59 At the end of the day the only evidence of the alleged confession is that of Mr Dempsey and Ms West.  There is no evidence to the contrary - just the various suggestions by Mr Boucaut in his final address as to why their evidence should be doubted.

60 I am satisfied beyond reasonable doubt that the conversation at the Accused’s house at which he related the events of the morning of 14 July 1996 at Mr Wiese’s house to Mr Dempsey and Ms West occurred.  Their evidence on that topic is in substantial accord.  I am not of the opinion that the weight to be attached to that evidence is significantly lessened by the several matters relied upon by Mr Boucaut.  The evidence of Mr Wiese as to the essence of what occurred is also in substantial accord with their evidence.
61 True it is that there was a substantial delay in Mr Dempsey agreeing to sign a statement in relation to the incident, but there is no evidence that even in March 1997, when he made another report to the police about a threat the Accused had allegedly made to him that the topic of the earlier statement was raised.  I accept the evidence of Ms West, whom I consider to have been an excellent witness as to core events, that she was never asked to sign such a statement prior to doing so in March 1998.
62 I agree with Mr Wells that if there were some motive, not revealed in the evidence, to remove the Accused from circulation so as to ease Mr Dempsey’s drug recovery, then such a purpose is not served by delaying for nine months, let alone nearly two years, in making such a report.  To the contrary.
63 There is evidence that when affected by drugs Mr Dempsey was erratic and at times hallucinogenic.  However, there is no evidence or even a well based suggestion that he was affected in any way by drugs on 13 July 1996, 14 July 1996, 16 July 1996 and 22 July 1996.  On each of those days he was in the company of Ms West and I am satisfied that she would not have permitted that were he then taking drugs.  This accords with Mr Dempsey’s evidence that since he went to live in Mount Gambier, late in 1995, his drug taking, after medical intervention, was much reduced.
64 Mr Boucaut was critical of the evidence given by Mr Dempsey and Ms West as to the alleged confession made by the Accused.  I have already dealt with that criticism insofar as it related to the topic of foreign language and how Ms West described what occurred where at Mr Wiese’s house.
65 That they each referred to a chase to or in the street whilst Mr Wiese described his assailants as walking to the road from his front door, shooting in his direction and then walking off is not indicative of a lack of the weight to be attached to the evidence of Mr Dempsey and Ms West.  It is indicative only of the context in which the Accused painted events when he spoke to them on 14 July 1996 and to some extent of his reference to Mr Wiese ‘screaming like a girl" (T p55).
66 True it is that there is no suggestion of motive in the Crown case.  That in itself is simply one more matter to be considered and alone is not in any way decisive.
67 Having found that the Accused said to Mr Dempsey and Ms West what they attributed to him, I am satisfied that what was said was true.  None of the many criticisms as to the weight to be attached to the evidence of Mr Dempsey and or Ms West, alone or together, are of any real impact upon the essential core of their evidence.  On this topic they were excellent witnesses and were unmoved in their evidence.  Plainly, Mr Wiese was assaulted and then shot at.
68 I am therefore satisfied beyond reasonable doubt that it was the Accused who was one of the two men present when Mr Wiese opened his door before dawn on 14 July 1996.
69 It is not possible to find which of the two men was the Accused.  There is a suggestion in the evidence that he was the person with the gun, but it is no more than a suggestion and does not enable a finding beyond reasonable doubt to be made.
70 That, however, is of no real significance because the men were obviously involved in a joint enterprise and as such must each bear full responsibility for what occurred.
71 Mr Wiese was assaulted at his door and was occasioned actual bodily harm.  I find Count 1 proved beyond reasonable doubt.
72 Count 2 is not so proved because there is no evidence that there was, in the mind of the Accused or his co-offender, the necessary specific intent to shoot at Mr Wiese so as to do him grievous bodily harm.  The evidence of Mr Wiese that the shot was fired in his direction from hip level is not indicative of a specific intent to so harm.  It is more indicative of recklessness as to where the discharged pellets might go.  Recklessness is not an element of this offence.  I find the Accused not guilty of Count 2.
73 I go then to the alternative Count 3.  Again, Mr Wiese was clearly assaulted in circumstances where a specific intent is not an element of the alternative charge.  Mere recklessness will be sufficient if the action which is proved to have caused the actual bodily harm was undertaken not caring whether Mr Wiese was assaulted or not.  He clearly was.  I find the Accused guilty of Count 3.