R v James No. Sccrm-02-205, Sccrm-02-206

R V JAMES
[2002] SASC 311
Court of Criminal Appeal: Doyle CJ, Lander and Besanko JJ

DOYLE CJ. I would allow the appeal, set aside the finding that the objective elements of the offences alleged in Count 1 and Count 2 are established, and substitute a finding that the defendant is not guilty of the offences alleged in Count 1 and Count 2. I agree with the reasons of Lander J. There is nothing that I wish to add.
LANDER J. The appellant was charged with five separate offences, two of which were alleged to have been committed on 29 April 2001 and three of which were alleged to have been committed on 22 April 2001.
The five counts were:
“First Count
Statement of Offence
Attempted Murder. (Sections 11 and 207A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Craig Francis James, David Paul Vincent Mason and Karl Francis Paul Tomlinson on the 29^th day of April 2001 at Taperoo, in the said State attempted to murder Barry James Smith.
Second Count
Statement of Offence
Causing Grievous Bodily Harm with intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Craig Francis James, David Paul Vincent Mason and Karl Francis Paul Tomlinson on the 29^th day of April 2001 at Taperoo in the said State, unlawfully and maliciously caused grievous bodily harm to Barry James Smith, with intent to do grievous bodily harm.
Third Count
Statement of Offence
False Imprisonment. (Common Law)
Particulars of Offence
Craig Francis James, David Vincent Paul Mason, Karl Francis Paul Tomlinson, and Adam Troy Mason on the 22^nd of April, 2001 at Taperoo, unlawfully imprisoned Peter Carter and detained him for several hours against his will.
Fourth Count
Statement of Offence
Assault Occasioning Actual Bodily Harm. (Section 40 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Craig Francis James, David Vincent Paul Mason, Karl Francis Paul Tomlinson, and Adam Troy Mason on the 22^nd of April, 2001 at Taperoo, assaulted Peter Carter, thereby occasioning him actual bodily harm.
Fifth Count
Statement of Offence
Act Creating Risk of Grievous Bodily Harm. (Section 29(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Craig Francis James and Adam Troy Mason on the 22^nd day of April, 2001 at Taperoo, without lawful excuse, did an act, namely hung Peter Carter over a balcony with a telephone cord wrapped around is neck, knowing that the act was likely to cause grievous bodily harm to Peter Carter, and intending to cause such harm to Peter Carter, or being recklessly indifferent as to whether such harm was caused..”
The appellant’s trial proceeded separately from his co-accused.
The appellant’s counsel informed the trial judge that she had reason to believe that the defendant was unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings. She therefore acted pursuant to s 269W(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) in what she generally believed to be the defendant’s best interests. She sought an investigation into the appellant’s mental fitness to stand trial and in doing so the appellant elected to have the matter dealt with by a judge sitting alone: s 269B(1) of the Act.
The judge ordered an investigation of the appellant’s mental fitness to stand trial. The investigation proceeded before the learned judge pursuant to Part 8A of the Act. Such an investigation is a two stage process. The judge has to try the defendant’s mental fitness to stand trial and separately determine whether a finding should be made that the objective elements of the offence are established. It is a matter for the judge which of those issues is tried first: s 269L of the Act. In this case the judge first conducted an investigation into the appellant’s mental competence to stand trial and then heard evidence as to whether the elements of the offence had been established. In doing so the trial judge proceeded under s 269M of the Act.
In particular the judge relied upon s 269MA(5) of the Act and with the consent of counsel for both the prosecution and defence dispensed with an investigation into the appellant’s fitness to stand trial and recorded a finding that the appellant was mentally unfit to stand trial.
There is no complaint about the manner in which the trial judge proceeded in relation to his inquiry into the appellant’s fitness to stand trial and no complaint in his recording a finding that the appellant was mentally unfit to stand trial.
Next the trial judge proceeded to hear evidence and representations by the parties relevant to the question of whether a finding should be recorded under s 269MB(1) of the Act that the objective elements of the offences had been established.
The trial judge found that the objective elements of each of the five offences namely attempted murder, causing grievous bodily harm with intent to do grievous bodily harm, false imprisonment, assault occasioning actual bodily harm and an act creating a risk of grievous bodily harm had been established beyond reasonable doubt and that the appellant was liable to supervision under Part 8A of the Act.
The appellant does not complain about the findings relating to the events of 22 April 2001 which gave rise to the third, fourth and fifth counts but has appealed against the findings on the first and second counts.
Two matters are raised on this appeal. First, it is said that the second count was an alternative to the first count and once a finding had been made in relation to the first count no finding could be made on the second.
Secondly, it is said that there was insufficient evidence to establish either the first or second counts beyond reasonable doubt.
There can be no doubt that there was only one incident which comprised the first and second counts. The appellant’s argument that the second count was an alternative to the first count must be accepted. If a finding that the objective elements of the offence is to be made in respect of the first count then no finding can be made on the second count. So much was conceded by the respondent.
The question remains whether the prosecution proved either count beyond reasonable doubt.
The prosecution case was that the victim, Mr Barry Smith, visited Unit 3, No. 6 Ormiston Court, Taperoo, a unit occupied by the co-accused, Tomlinson, where he was seriously assaulted. It was the Crown case that after the assault he was taken to a vehicle and driven to Pelican Point where he was left in the front yard of a property and where he was found. There was no direct evidence putting the appellant in the unit or in the car. There was no direct evidence implicating the accused in the serious assault. The Crown case was circumstantial.
Noeleen Paltridge, who lived at 19 Ormiston Court, had previously had a relationship with Mr Tomlinson. Sometime on the Sunday she visited Mr Tomlinson’s flat but he refused to let her in. As a result of his conduct she telephoned the police.
At or about 7:00pm two police officers, Senior Constable Hildich and Constable Trillo-Vrea, attended at Ormiston Court. They were unable to locate Mr Tomlinson’s Unit. Senior Constable Hildich spoke to a person who was standing on the first floor balcony at the western end of a block of units. Senior Constable Hildich asked him his name and he replied, Craig. He said he lived in Unit 4 and that Mr Tomlinson lived in Unit 3.
Senior Constable Hildich, Constable Trillo-Vrea and another police officer, who subsequently arrived on the scene, Senior Constable Williams, knocked on the front door of Unit 3. The door was not answered. They could hear either a radio or a television inside the unit.
The police officers left to speak to Ms Paltridge at 19 Ormiston Court. She confirmed that she had not witnessed any assault but that she suspected that something was wrong.
Those three police officers together with yet another police officer, Detective Isherood, returned to Unit 3. The unit was then in darkness. The radio and television which had previously been heard were no longer audible. The police officers left.
Mr Smith was found sometime at about 9:47pm on 29 April 2001. He was found at 30 Gedville Road, Taperoo in a critical condition. He was removed by ambulance to the Queen Elizabeth Hospital.
When Mr Smith was found the police decided to return to Unit 3, No. 6 Ormiston Court.
At or about 11:15pm Detective Isherwood and Constable Sheen had a conversation with Mr Tomlinson at that address. They found the appellant in the kitchen.
During the conversation with Mr Tomlinson, Constable Sheen drew Detective Isherwood’s attention to a mop which had been found in the laundry. They observed globules of blood and splatters of blood on the handle. The police officers left the unit with the mop. They observed drops of dried blood on the stairs and the risers down to the ground floor.
They searched a Toyota Corona station wagon in which they found a large, clear, plastic sheet in the rear compartment which was covered in blood.
The police officers arrested Mr Tomlinson and the appellant.
Five blood samples were collected from the blood found on the stair area and foyer outside Unit 3.
Bloodstains were located on the interior wall near the front door of Unit 3, on the door between the lounge room and hall, on the sofa on the kitchen area, on the floor of the kitchen and on the front of the overhead cupboard in the kitchen. A pair of white sneakers which were in a shopping bag were also bloodstained.
All of the blood samples taken both inside and outside the unit matched Mr Smith’s blood. Samples taken from the Toyota Corona also matched Mr Smith’s blood.
A search of the area resulted in the police finding a white plastic bag containing blood soaked clothing and a cricket bat. A sample of blood taken from the cricket bat matched Mr Smith’s blood. A DNA profile taken from the handle of the cricket bat was a mixture of DNA from two persons. One of those was Mr Smith. The other DNA profile has not been matched.
When the appellant was arrested his clothes were taken. Blood was found on the front, right leg and rear right leg of the appellant’s trousers. That blood also matched Mr Smith’s blood.
Items of clothing were discovered near where Mr Smith was found. Those items of clothing were also bloodstained and those bloodstains also matched Mr Smith’s blood.
Mr Smith suffered very serious injuries. An orthopaedic surgeon identified the following injuries:
“1     A neck laceration.
2      A haemo-pneumothorax on the left side.
3      A left scapula and clavicle fracture.
4      A left elbow fracture dislocation.
5A left hand injury consistent with multiple abrasions and a 2cm laceration over the neck of the third metacarpal. In addition there was a comminuted fracture of the 3^rd and 4^th metacarpals as well as a comminuted fracture of the proximal phalanxes of the 3^rd and 4^th metacarpals.
6A left thigh laceration, laterally and medially in the mid and distal thigh respectively.
7      A mid shaft fracture of the femur.
8      A distal inter-condylar fracture of the left femur.
9      A comminuted left ankle fracture.
10     A laceration of the left little toe.
11     A right arm laceration 5cm proximal to the elbow laterally.
12     A right ulna styloid fracture.
13     A right 5^th metacarpal fracture.
14     Multiple bruises and abrasions.”
Dr Louey, a staff specialist at the Queen Elizabeth Hospital, said:
“Mr Smith arrived in our Emergency Department in a critical state. He had multiple injuries, predominantly involving broken bones. However, there was a definite indication, that he had already massive blood loss; in fact, his condition was so serious that at one point he actually stopped breathing and the ambulance officer had to, what is called, intubate, or put a breathing tube into his windpipe, to assist his breathing. Not only this, but he soon lost his pulse and was in difficulty - and this was likely due to inadequate blood circulation from his blood loss. When he arrived he required a period of cardiopulmonary resuscitation and massive fusions of both blood and other fluids to keep him alive.”
Mr Smith had lost about 60 per cent of his total body volume of blood. Dr Louey said that it was a miracle that Mr Smith survived his injuries.
The medical evidence was that Mr Smith’s injuries were consistent with being hit with a cricket bat.
Having recited the facts to which I have referred, in my opinion, the trial judge inferred correctly that the cricket bat had been the instrument which had caused Mr Smith’s injuries. He then said:
“The bloodstains and blood generally left a trail from the interior of the unit occupied by KFPT through the front door and down the stairs from Unit 3 into KFPT’s motor vehicle. All blood involved, as revealed by DNA testing, was that of Mr Barry Smith.”
There can be no quarrel with that finding which was clearly open on the evidence.
He continued:
“Bloodstains were found on the right front leg and rear right leg of the defendant’s trousers. DNA testing established that such bloodstains were blood from Mr Barry Smith. Clearly, he must have been involved in the beating of Mr Smith and the attempted disposal of him. I can come to no other rational conclusion as to the existence of the bloodstains in KFPT’s unit on 29 April 2001.”
In my opinion, the inference drawn by His Honour that the appellant must have been involved in the beating of Mr Smith was not the only rational inference that could be drawn upon the evidence. There was no evidence that the appellant was inside the unit at the time Mr Smith suffered his injuries. There was no evidence that Mr Smith suffered all of his injuries inside the unit.
Ms Paltridge did not say that the appellant was inside the unit when she briefly spoke to Mr Tomlinson before she spoke to the police. The police did not see the appellant inside the unit before Detective Isherwood and Mr Keen interviewed Mr Tomlinson at or about 11:15pm and that, of course, was some two hours after Mr Smith was found.
One cannot be confident that the man to whom the police spoke at about 7:00pm was the appellant. Although he gave the appellant’s given name (Craig), he said he lived in Unit 4. The appellant did not live in that unit.
There was nothing about the blood found on the appellant’s trousers to link it to the commission of the offence. There was no evidence that it resembled splatter stains. There are a number of ways in which the blood could have come to have been on the appellant’s trousers. He may have come into contact with the mop sometime after Mr Smith was taken from the unit. He may have come into contact with the blood outside the unit. He may have been aware that Mr Smith had been seriously assaulted in the unit and assisted in the cleaning up of the unit. However, that does not make him guilty of the offences for which he was charged.
Mr Smith lost three litres of blood. Blood was found on all of the clothing associated with Mr Smith and in large volumes. There was a large volume of blood in the car and the unit. There was only a small quantity of blood found on the appellant’s clothing. The fact that so little blood was found upon the appellant’s clothing, having regard to the extreme loss of blood suffered by Mr Smith, may suggest that the appellant was not involved in the direct assault of Mr Smith. In my opinion, the evidence adduced by the Crown to which the trial judge referred was insufficient to make out a circumstantial case against the appellant and insufficient to lead to the finding that the objective elements of either offence had been made out beyond reasonable doubt.
The respondent relied on two other pieces of evidence, not referred to by the trial judge, as further circumstantial evidence of the appellant’s guilt. Two letters were tendered by the Crown. In the first of those, a letter written to Detective Vincent, the appellant wrote:
“Pass a message onto Barry and say to him that I think of him a lot and that should not have happened. David’s fault.”
In my opinion, that letter does not contain any implicit confession on the part of the appellant. Whilst it indicates that Barry was the victim the letter asserts that someone else was responsible for the victim’s injuries.
The second letter was written to Ms Paltridge and it contained this statement:
“People may think I am bad for what I have done, I live with it… but the truth will come out soon. So people will see and read about …”
The Crown relied upon that statement as evidence of the appellant’s guilt.
In my opinion, that statement is ambiguous. It does not amount to a confession by the appellant. Indeed, I think it can be said that the appellant is denying that he has been bad although he recognises people might think he was bad.
Even if it can be said that he was admitting he was bad it cannot be inferred from that that he was bad for the reason that he had taken part in the victim’s bashing. It may be that the appellant was there referring to his helping to clean up the scene of the crime.
In my opinion, there was insufficient evidence for the trial judge to make a finding that the objective elements of either of the first two counts had been made out.
In my opinion, the first two counts should have been dismissed.
I would allow the appeal for the purpose of setting aside the finding that the objective elements of the first two counts have been made out and in lieu thereof substituting an order dismissing those two counts.
BESANKO J. I would allow the appeal, set aside the finding that the objective elements of the offences alleged in count 1 and count 2 are established and I would substitute a finding that the defendant is not guilty of the offences alleged in count 1 and count 2. I agree with the reasons of Lander J.

[2002] SASC 311

2 October 2002