R v Jamie Joseph Peisley
[2008] ACTSC 105
•7 October 2008
R v JAMIE JOSEPH PEISLEY
[2008] ACTSC 105 (7 OCTOBER 2008)
EX TEMPORE JUDGMENT
No. SCC 381 of 2007
Judge: Higgins CJ
Supreme Court of the ACT
Date: 7 October 2008
IN THE SUPREME COURT OF THE )
) No. SCC 381 of 2007
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
JAMIE JOSEPH PEISLEY
ORDER
Judge: Higgins CJ
Date: 7 October 2008
Place: Canberra
THE COURT ORDERS THAT:
A verdict of acquittal be entered.
In this matter, the prosecution evidence comes down to this: that three persons invaded the home of Mr McCoy, Mr Kobylanski and Ms Lang before the latter two got home, it must be said, and apparently assaulted Mr McCoy, no doubt with a view to incapacitating him so that they would be able to rifle the place without interference.
That Mr McCoy suffered serious harm is apparent from the photographs. Whether it amounts to grievous bodily harm is open, no doubt, to debate. However, for present purposes, that is not particularly important. The charges against Mr Peisley are, firstly, entering a building as a trespasser. It is alleged Mr Peisley was one of the three persons. Secondly, that he made a demand of Mr Kobylanski with a threat to do grievous bodily harm, and I accept the evidence of Mr Kobylanski at this point, as I must, at its highest level. He certainly was, he said, threatened by a number of persons including a person who was unmasked and he later said he recognised as the accused. That, of course, amounts to a prima facie case in respect of that charge. The threat was to cut his fingers off, which I would accept as a grievous bodily harm.
Thirdly, that he inflicted grievous bodily harm on Mr McCoy. He may or not have inflicted grievous bodily harm on Mr McCoy. That would depend on what the agreement was between the three persons who entered the premises because it seems to be accepted that whatever else he did, he did not wield the baseball bat. It seems to me reasonable to assume that the three persons who entered intended to commit theft of property and each, of course, was in company with the others of them. They appear to be acting in concert so that part of that offence is made out.
The issue, as I say, is whether it has been proved that Mr Peisley, even accepting the prosecution evidence at its highest point, was one of the three persons and, indeed, the person who was unmasked. I note that Ms Lang’s evidence does not precisely point to the unmasked person having done all the things which Mr Kobylanski says were
done by the unmasked person. All that implies, I suppose, is that when an event like this is occurring, there may be differences between various witnesses and certainly one could be accepted over the other if it was more accurate than the other.
For present purposes, I accept the evidence of Mr Kobylanski and assume he was threatened by the unmasked person. He had a demand made of him by that person to open his safe. He avoided doing so and escaped, got a tyre iron and came back again. By then the offenders had departed.
The critical evidence here, of course, is the evidence of what then took place over two weeks later. Mr Kobylanski says he was at the Wanniassa Shops when he saw a person he recognised as the unmasked person, one of the home invaders. Certainly that is prima facie evidence of that fact, but, on the other hand, it is evidence which is accepted as being evidence which it is unsafe and unsatisfactory to accept by reason of the fact that such evidence has been found in the past to have been, admittedly with all due sincerity on the part of the witness expressing it, mistaken.
For that reason, the court is required to give itself a warning that it ought not to accept such evidence without some corroboration of a persuasive nature. In this case, there is none. The mere fact that Mr Peisley may or not resemble the person who entered the premises of Port Jackson Circuit, Phillip is beside the point. The question is whether he is the person and one must be able confidently to come to that conclusion. To do that one would have to accept the evidence of Mr Kobylanski, not merely that he is telling the truth as he sees it, but also that his evidence is persuasive and satisfactory.
In the absence of any other evidence which would tend to connect the accused with the crime, it seems to me that a jury properly instructed would be unable to do so. Therefore, I have to direct myself that I am unable to do so as I am the judge and jury in this case. For that reason the critical point - that is, the point of identification - is incapable, in my opinion, of being established beyond reasonable doubt and as such Mr Peisley must be acquitted of each of the three charges contained in the indictment and I enter a verdict of acquittal accordingly.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 7 October 2008
Counsel for the Crown: Mr J Lawton
Solicitor for the Crown: Director of Public Prosecutions (ACT)
Counsel for the defendant: Mr J Sabharwal
Solicitor for the defendant: Sheila Foliaki-Singh
Date of hearing: 7 October 2008
Date of judgment: 7 October 2008
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