R v Howell - [2022] SASC 150

Supreme Court of South Australia
(Criminal)

R v HOWELL
Criminal Trial by Judge Alone
[2022] SASC 150
Reasons for the Verdicts of the Honourable Justice Bampton
15 December 2022
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS ENDANGERING LIFE OR PERSON
Accused charged with attempted murder (count 1); in the alternative, aggravated endangering life (count 2); discharging a firearm intending to injure, annoy, or frighten (count 3); and aggravated possessing a firearm without a licence (count 5) – where nolle prosequi entered against count 4 – where accused pleaded not guilty to count 1 and count 2 – where accused pleaded guilty to count 3 and count 5 – where accused elected to be tried by Judge alone – where it is alleged accused held a gun to the head of the complainant and pulled the trigger – where accused and complainant were formerly in a relationship – whether prosecution has proved the accused guilty of count 1 or count 2 beyond reasonable doubt.
HELD: The prosecution has not proved the accused guilty of count 1 or count 2 beyond reasonable doubt – accused found not guilty of count 1 and count 2.
Criminal Law Consolidation Act 1935 (SA) ss 11, 270A, 29(1), 32AA(1); Firearms Act 2015 (SA) s 9(1), referred to.
The Nominal Defendant v Clements (1960) 104 CLR 476; The Queen v Szach (1980) 23 SASR 504; Ducaj v The Queen (2019) 135 SASR 127; R v Spencer [2019] SASCFC 70; R v Grills (1910) 11 CLR 400; R v Bucca; R v Castle [2018] SASCFC 42, considered.

R v HOWELL
[2022] SASC 150
Criminal: Trial by Judge Alone
BAMPTON J.
Introduction
Presumption of innocence
The elements of attempted murder
The elements of aggravated endangering life
The issues for determination
The prosecution evidence
Evidence of Ms A
The relationship before the Mariah scuffle on 23 November 2019
Police attendances
The Mariah scuffle
The three weeks following the Mariah scuffle
The sushi and the Chanel handbag
Ms A trains in the garage gym
The Casablabla interactions
The final straw
The text messages

12 December 2019
13 December 2019
Cross-examination
The 000 call and the body-worn camera recording
The bruise to Ms A’s head

Re-examination
Craig Stewart
Jayne Matthews
John Danese
Savvas Stouppos
Samuel Boyd
Susan Boyd – the mother of Sam Boyd
Kacey Hutchinson
Senior Constable Anthony Petraccaro
Constable Dylan Weaver
Brevet Sergeant Gary Goodwin
Detective Brevet Sergeant Emma Woodhouse
Detective Brevet Sergeant Nicola Woods
Detective Brevet Sergeant Katy Watkins
Brevet Sergeant Michael Tobiasen
The complete cartridge located in the hallway at of Ms A’s premises
The casing on the couch
The complete cartridge located under the pergola roof hole at 37 Glen Eira Street
Professor Jason White
The prison calls/admissions by silence
Assessment of Ms A

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Howell

Details

AGLC: R v Howell [2022] SASC 150
Case: [2022] SASC 150
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case of R v Howell was heard in a lower court, with Mr. Howell facing charges of attempted murder and aggravated endangering life. The prosecution alleged that Mr. Howell had held a gun to the complainant's head and pulled the trigger, while the defence argued that the complainant's evidence was unreliable and exaggerated. The case hinged on the credibility of the complainant's testimony and the circumstances surrounding the alleged incident.

The court had to decide whether the complainant's evidence was reliable enough to convict Mr. Howell beyond reasonable doubt, and whether the evidence supported the charges of attempted murder and aggravated endangering life. The court had to consider the complainant's credibility, the reliability of the other evidence presented, and whether the prosecution had proven the necessary intent and circumstances for the charges.

The court found that the complainant had a flair for the dramatic and may have exaggerated her evidence, and that her failure to mention the gun to head allegation to emergency services and her admitted behaviour in retaliating and lying further undermined her credibility. The court also found that the prosecution had not proven beyond reasonable doubt that Mr. Howell held the gun to the complainant's head and pulled the trigger, and that the other evidence did not support the charges of attempted murder and aggravated endangering life. The court therefore found Mr. Howell not guilty of both charges.

The court's decision was based on the unreliability of the complainant's evidence and the lack of other evidence supporting the charges. The court found that the prosecution had not proven the necessary intent and circumstances for the charges, and that the evidence did not support a conviction beyond reasonable doubt. The court therefore acquitted Mr. Howell of both charges.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution called: Ms A; her next-door neighbours, Craig Stewart and Jayne Matthews; neighbour, John Danese; four residents of Glen Eira Street; the pharmacologist, Professor Jason White; and 16 police officers, including the investigating officer Detective Brevet Sergeant Katy Watkins, the crime scene investigator Brevet Sergeant Gary Goodwin, Detective Brevet Sergeant Nicola Woods and the ballistician Brevet Sergeant Michael Tobiasen. Evidence of Ms AThe relationship before the Mariah scuffle on 23 November 2019 Ms A met Mr Howell in April 2018. They commenced an intimate relationship within a week or so of meeting. Seven weeks into the relationship they started living together in Ms A’s house at Albert Park. In August 2018, following the sale of the Albert Park house, Ms A rented the premises. Ms A discovered she was pregnant whilst they were living at the premises. She had not planned to become pregnant. Ms A said they became engaged on a holiday in Thailand. At that time, they were still trying to learn to live together as a new couple and they were happy. After the engagement, the relationship changed. Ms A said the pressure of and the reality of becoming parents became apparent and the financial situation started to become a concern. Ms A said, when they returned from Thailand, she was not sure whether she wanted to continue with the pregnancy. This put a lot of pressure on their relationship, which became quite a rollercoaster. Ms A discussed with Mr Howell that he needed to start working for her to continue with the pregnancy. Ms A worked in a commercial field managing role, Monday to Friday between 7:30 am and 3:00 pm. Mr Howell did not work other than for about a month when Ms A was 17 weeks pregnant. Ms A said there were good days and bad days in the relationship and when it was bad it was really, really bad. She said they had arguments which would end up being fights, screaming matches between the two of them, with a lot of emotion from both sides. She said she would scream at Mr Howell, call him names, tell him he needed to get a job, or that needed to go back to his mum’s house. There were also times when they would kiss and make up and agree to make their relationship work. Ms A said she became sick of paying for everything and doing everything on her own, so she decided to kick Mr Howell out of the premises. After she kicked him out, he returned to live at his mother’s house. However, he came back to live with her at the premises from time to time. Ms A said there was a pattern by which Mr Howell would return to live at the premises. He would promise he would start paying for things, help with the baby, and start working. Ms A said the pattern of arguing with Mr Howell leaving and returning persisted from about the time she was about 21 weeks pregnant until December 2019. Ms A remained in contact with Mr Howell when he was not living at the premises by phone, text message or in person. Following the birth of their child on 30 April 2019, they continued to live together for about two and a half months.

Decision

Reasons for decision

BAMPTON J

Further, in one of Ms A’s shrill and histrionic exchanges with Mr Howell during a prison call, as detailed above, she remonstrated with him about his Instagram account and accused him of still having Mariah as one of his followers and said:[178]Why would I not, I wanna see your Instagram account. If I’m gonna sign to allow you out of prison early I wanna know the fucking truth.… the more you piss me off the longer I’ll hold out on signing.… No if you can’t admit your faults I’ll let you stay in there.[178] Exhibit P32.Conclusion I agree with the observation of defence counsel that Ms A had a flair for the dramatic. To that, I would add my concerns she may have exaggerated her evidence. These matters, together with her failure to mention the gun to head allegation to the 000 operator and the officer wearing the body-worn camera, and her admitted behaviour in retaliating and lying, are such that I cannot accept her evidence on the matters in dispute unless supported by other evidence I accept. The prosecution submitted the wielding and discharging of the loaded firearm in an inevitably confrontational situation is a significant informative matter in determining what happened on 13 December 2019. The prosecution submission is to the effect that it is informative of an intention to shoot Ms A. Given Mr Howell expressed suicidal thoughts following the relationship break-up, it may also be informative of an intention to shoot himself. Having regard to Mr Howell’s admitted conduct, it may also be informative of an intention to intimidate Ms A. Further, the prosecution has not excluded the reasonable possibility the jamming of the firearm occurred without input by Mr Howell and was realised immediately following the discharging into the couch. I find:(1)Mr Howell and Ms A had a tumultuous, dysfunctional, and mutually abusive relationship;(2)in the early hours of 13 December 2019, Mr Howell arrived at the premises;(3)Mr Howell was under the influence of cocaine; (4)during the course of an argument, Mr Howell produced a firearm;(5)by his pleas, Mr Howell admits wielding a loaded firearm and deliberately discharging the firearm in the premises whilst close to Ms A; (6)the firearm jammed;(7)Ms A screamed for help;(8)Craig Stewart banged on the front door of the premises;(9)Mr Howell decamped out of the back of the premises and ended up on the pergola roof immediately behind at 37 Glen Eira Street;(10)Mr Howell fell through the pergola roof onto brick pavers at 37 Glen Eira Street; and(11)Mr Howell discarded the firearm, which was later found on the roof of the shed at 24 Glen Eira Street. As there is no other evidence supporting the evidence given by Ms A regarding the matters in issue, I cannot, given the state of her evidence, accept the events unfolded or occurred as she alleged. I cannot accept her evidence beyond reasonable doubt that Mr Howell held the gun to her head and pulled the trigger.Verdict I find Mr Howell not guilty of attempted murder and not guilty of the alternative charge of aggravated endangering life.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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