R v Is (No 2)
[2019] ACTSC 390
•18 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v IS (No 2) |
Citation: | [2019] ACTSC 390 |
Hearing Dates: | 2-4 July 2019; 18 July 2019 |
DecisionDate: | 18 July 2019 |
Before: | Burns J |
Decision: | See [25] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – statutory alternative charges of assault – nine transferred charges of assault – crown's case based almost exclusively upon the complainant’s evidence – accused gave evidence – self-defence raised – consideration of the evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 28(2)(a) Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | R v IS [2019] ACTSC 389 |
Parties: | The Queen (Crown) IS (Accused) |
Representation: | Counsel M Jones (Crown) W Terracini SC with D Berents (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 288 of 2018; SCC 289 of 2018 |
BURNS J:
These are criminal proceedings. The Crown holds the onus of proving the accused guilty with respect to each of the charges to the standard of beyond reasonable doubt. It is accepted that self-defence is raised by the evidence in these proceedings. In those circumstances, the onus falls on the Crown to establish beyond reasonable doubt that the accused was not acting in self-defence at the time of any physical contact between himself and the complainant.
It has been submitted that this boils down to a case of word against word, and to a great extent that is correct. But my obligation is not to determine who I believe, or to determine which version of events I consider to be more plausible. Before convicting the accused with respect to any of the charges, I must be satisfied of his guilt with respect to that particular charge to the standard beyond reasonable doubt.
I must consider each charge separately. The one exception to that is that if I have a doubt about the complainant's credibility or reliability with regard to one charge, that is a doubt which I must bring to bear with regard to all of the charges.
This is a case in which the Crown relies almost exclusively upon the evidence of the complainant, BT. BT is the only Crown witness who was present at the time that the alleged events occurred. As such, she is a vital witness for the Crown. I need to scrutinise the evidence of BT closely before I could convict the accused with respect to these charges. That is not to say that I cannot convict the accused based simply upon the evidence of BT, but it is clear that she is such a vital witness that I must consider her evidence very carefully before concluding that the accused is guilty of these charges.
The accused gave evidence during the course of the trial and in doing so, he did not assume any onus of proof. The onus of proof constantly remains on the Crown. It is in the nature of this case, however, that in order to convict the accused with respect to these charges, I must be able to positively exclude his evidence as untruthful.
The accused has given evidence effectively that he is a person of previous good character. Other witnesses have given evidence that he is also a person of previous good character, and that has not been challenged by the Crown. I take that evidence into account in two ways.
Firstly, I take it into account in considering whether he is the sort of person who would have committed these offences. Secondly, I take it into account in determining the weight to be given to the evidence which he gave.
This is a trial by judge alone, the accused having elected to have his trial conducted in this way pursuant to s 68B of the Supreme Court Act 1933 (ACT). The trial commenced on 2 July 2019, at which time the accused was arraigned on an amended indictment dated 17 January 2019, which included three counts. Each of those counts is in identical form and alleges an offence against s 28(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act).
Each offence alleges that on 29 November 2017 the accused choked, suffocated or strangled BT. At the close of the prosecution case, Mr Terracini SC, on behalf of the accused, made a no case submission with respect to those three counts. I upheld that submission and found that there was no case to answer with respect to each of the charges under s 28 of the Crimes Act: R v IS [2019] ACTSC 389.
The Crown relied upon statutory alternative charges of assault with regard to those three charges which appear on the indictment. In addition, there were nine associated charges of assault which had been transferred to this Court from the ACT Magistrates Court. At the present time, I concern myself with the three statutory alternative charges of assault and the nine associated charges of assault which were transferred from the ACT Magistrates Court.
Consideration
As I indicated a moment ago, the Crown's case is based almost exclusively upon the evidence given by the complainant. It is my practice to try to avoid making findings of credibility based upon the way in which a witness gives their evidence as opposed to what they say. There were some aspects, however, of the evidence given by the complainant which did give me cause for concern.
There was a significant difference between the approach of the complainant to her evidence-in-chief and that in cross-examination. The complainant appeared to have very little difficulty recalling events during the evidence-in-chief, but when pressed about events in cross-examination she appeared to have little recollection, or at least professed little recollection, in relation to a number of significant events.
It was also a matter of concern to me that there had been an increase in the number of alleged assaults asserted by the complainant, either shortly before the commencement of the trial or indeed during the course of the trial itself. I am not in a position to say that the complainant was lying. I am not in a position to make a finding that I am satisfied that she was not telling the truth but that is not the end of the matter.
This was a case in which the accused, as I have said, gave evidence. His version of events is very different. On his version of events, he was the subject of an attack by the complainant and he simply acted in self-defence. There is nothing in the version of events that was given by the accused or the way in which he gave his evidence which would cause me to doubt what he said.
There was material which was referred to by the Crown as supporting the case for the Crown and in particular the evidence given by the complainant. The Crown referred to evidence of complaint made to NC. That indeed is a matter which one needs to take into account but as was pointed out in Mr Terracini SC’s submissions, the statements made by the complainant to NC, according to the evidence of NC, did not always correspond with the evidence which was ultimately given by the complainant.
The prosecution also placed some significant weight on the bruises and injuries that were observed upon the body of the complainant by Dr Van Diemen. It was submitted that none of those injuries were inconsistent with the struggle that the accused says occurred between himself and the complainant, and which he says occurred in self‑defence.
I accept that none of the injuries would be inconsistent with the struggle that the accused said occurred, but in addition to which the significance of any such injuries depends upon the Court accepting the evidence of the complainant that her injuries were not pre-existing.
[Redacted].
In my opinion, the bruises and other marks on the body of the complainant observed by Dr Van Diemen cannot assume very significant weight in supporting the evidence given by the complainant.
The Crown also relied upon the 000 call that was made. The fact that such a call was made does not, of itself, assist in determining the issues in this trial because the accused agrees that the complainant made a 000 call whilst he was present.
He agrees that she was distressed at the time that she made that call. The question is, why was she distressed? Was she distressed because events had occurred in the way as described by her or was she distressed because events had occurred in the way as described by the accused? I find little assistance in the contents of the 000 call. I should say specifically that I was not able to discern the reference to money in the call that the Crown suggested was able to be discerned.
The Crown also referred to photographs taken of marks on the wall inside the premises as providing some support for the proposition that the accused had attacked, in some way, the complainant with a bunch of sticks. In addition to which there was no evidence from the owner of the unit that those marks on the wall were not pre-existing.
I must also take into account the evidence which was given by Professor Duflou. I do not really think that there was much difference between the evidence of Dr Van Diemen and that of Professor Duflou. What Professor Duflou said, which was of significance in my view, was that based upon the description of the assault as given by the complainant, he would have expected greater signs of injury to the body of the complainant and particularly to the area of her neck and head or face.
That does not allow me to make a finding that these events did not occur as described by the complainant, but it is another matter which I must put into the mix and consider when determining whether I am satisfied beyond a reasonable doubt. At the end of the day, it becomes a question of judgement and that is as to whether the Crown has proven the case beyond reasonable doubt.
Conclusion
In my opinion, I cannot be satisfied beyond reasonable doubt that the events did not occur in the way as described by the accused and as such I cannot be satisfied beyond reasonable doubt that the accused is guilty with respect to the charges. I enter verdicts of not guilty with respect to each of the charges (CC2018/11541; CC 2018/11543; SCCAN 2019/3725; CC2018/13327; CC2018/13328; CC2018/13330; CC2018/13331; CC2018/13326; CC2018/13332; CC2018/13333; CC2018/13329; CC2018/13325).
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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