R v Joel William Bulger
[2010] ACTSC 156
•13 December 2010
R v JOEL WILLIAM BULGER [2010] ACTSC 156 (13 December 2010)
CRIMINAL LAW – Complainant’s evidence inconsistent with that of all other prosecution witnesses – prosecution failure to make out offence as particularised in case statement – evidence raised possibility of self-defence – prosecution failure to negative self-defence – court not satisfied beyond reasonable doubt of accused’s guilty – accused acquitted.
Evidence Act 1995 (Cth), s 38
Supreme Court Act 1933 (ACT), s 68C
Fleming v R (1998) 197 CLR 250
EX TEMPORE JUDGMENT
No. SCC 307 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 13 December 2010
IN THE SUPREME COURT OF THE )
) No. SCC 307 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
JOEL WILLIAM BULGER
ORDER
Judge: Penfold J
Date: 13 December 2010
Place: Canberra
THE COURT:
(a) Finds that Mr Bulger is not guilty of assaulting Rebecca Graney occasioning to her actual bodily harm; and
(b) Enters a verdict of acquittal.
Background
Joel William Bulger pleaded not guilty to the charge that on 25 April 2008 he assaulted Rebecca Graney occasioning to her actual bodily harm. He elected to be tried by judge alone under s 68C of the Supreme Court Act 1933 (ACT).
The evidence
Ms Graney’s evidence
Ms Graney’s evidence was that on the evening of 24 April 2008 she had been drinking at PJ O’Reilly’s at Tuggeranong, which I shall call the pub, and that during that evening she had intervened in a dispute between Mr Bulger and security guards at the pub. She had told Mr Bulger to go away because he would not be allowed back in, and he had pushed her. She said that she had not mentioned the pushing incident to anyone, but she believed that her friends knew about it.
PJ O’Reilly’s had closed sometime after midnight and Ms Graney left with a friend, Ashley Hoffman. The two of them sat on a seat some 30 metres away from the doors of the pub, with Ms Graney closer to those doors. Ms Graney said that Mr Bulger approached her and Mr Hoffman and yelled angrily to them “I’m gonna bash that cunt”. They both stood up as Mr Bulger reached the seat. Ms Graney told him to “just go away”. Mr Bulger swung his fist towards them. Ms Graney was closer to Mr Bulger and he punched her in the mouth. Neither she nor Mr Hoffman moved while Mr Bulger swung his fist. After she was hit Ms Graney ran back to the pub and banged on the doors. The security guards who were inside opened the doors, let her in, cleaned her up and called the police. Ms Graney suffered a cut to her lip which required the insertion of stitches later that day.
Ms Graney’s evidence was of an apparently intentional assault on her, resulting in her suffering actual bodily harm. That was the case particularised by the prosecution, although the prosecution case statement did suggest more verbal interaction between all three people involved in the confrontation.
However, the four other witnesses called by the prosecution effectively undermined Ms Graney’s evidence.
Mr Hoffman’s evidence
Mr Hoffman said that during the evening Ms Graney had told him about her earlier encounter with Mr Bulger, and he had raised this with Mr Bulger at some time before the pub closed. After the pub closed, he and Ms Graney had been sitting on the seat, but they, were walking back towards the doors of the pub when Mr Bulger attempted to punch him. Mr Hoffman said that he was closer than Ms Graney to Mr Bulger when Mr Bulger hit out but he stepped backwards to avoid the blow, and as a result Mr Bulger’s fist connected with Ms Graney’s face. The security guards had been out the front of the pub at that point.
Ms Kennedy’s evidence
Chantelle Kennedy was waiting in the general area to be picked up by her mother when the incident happened. She said that she was about 100 metres away from where Ms Graney and Mr Hoffman were sitting. It was dark and she was relying on street lighting for her view of the incident. She saw Ms Graney and Mr Hoffman sitting on the seat, and Mr Bulger approaching them, but she didn’t see anyone with him. Ms Kennedy was watching fairly closely because she knew, although she could not explain how, that there might have been a dispute and something happening, and she was a bit nosy. She saw Mr Hoffman jump up from the seat, and also saw Ms Graney stand up as Mr Bulger reached the seat. Mr Bulger was closer to Mr Hoffman than to Ms Graney, but when Mr Bulger swung at them, Ms Graney jumped into his way and took the blow. At that point the security guards were out the front of the pub.
Ms Davis’s evidence
Jazmin Davis was at the pub in a group that included Mr Bulger. She was the designated driver so she had not had any alcohol, but Mr Bulger was intoxicated. At around midnight she was taking Mr Bulger to the car to take him home. Her car was parked in front of the restaurant, along from the pub. Because Mr Bulger was intoxicated, she had to encourage or even coerce him to come with her. Before Ms Davis got Mr Bulger to the car, she saw a man and a woman standing in the area near the front of the car and a verbal altercation began, involving that couple and Mr Bulger. While Ms Davis was still holding Mr Bulger’s arm the man lunged at Mr Bulger. Mr Bulger raised his arm to punch at the man, but the woman jumped in between the two men and Mr Bulger’s fist came into contact with the woman’s lip. At that point a number of people, including security guards who had been out the front of the pub, came over.
Senior Constable Parker’s evidence
Finally, Senior Constable Michael Parker, one of the police officers who had attended the incident, gave evidence that when he spoke to her that night, Ms Graney had told him that Mr Bulger had tried to hit Mr Hoffman, but that she had stepped in between the two men and got hit instead.
No unfavourable witness applications
No applications were made under s 38 of the Evidence Act 1995 (Cth) for leave to cross-examine any of the prosecution witnesses.
Summary of evidence
Thus, apart from Ms Graney’s evidence at trial, all the evidence, including her own complaint to police, suggested that she had stepped in front of a blow apparently intended for Mr Hoffman.
Requirements in judge-alone trial
In a judge alone-trial:
(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b) the judge must provide a judgment setting out the principles of law he or she applied, the findings of fact he or she relied on, the reasoning process linking the law and the facts, and a justification for the verdict (Fleming v R (1998) 197 CLR 250); and
(c) the judge must give herself certain directions equivalent to those that would be given to a jury.
The significant directions that I must give myself for this trial relate to the need for the prosecution to prove its case. The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.
What has been proved?
Having regard to the evidence I have set out, I am not satisfied that Ms Graney’s evidence at trial was reliable, so I could not be satisfied beyond reasonable doubt that Mr Bulger was guilty of an unprovoked assault as particularised by the prosecution.
As mentioned already, the evidence of the other witnesses raises the possibility that Ms Graney was the unintended victim of a blow aimed at Mr Hoffman. However, that was not the prosecution’s case, and it was not a case that the accused expected to have to meet. If he had, presumably his counsel would have approached the prosecution evidence with a view to raising the possibility that he had acted in self-defence. Equally, presumably the prosecution would have sought to lead evidence to exclude that possibility.
Thus, not only does the evidence not establish that Mr Bulger was guilty of the assault particularised by the prosecution, but it also does not exclude the possibility that the blow said to be struck by Mr Bulger was struck in self-defence.
Findings
Accordingly, I find Mr Bulger not guilty of the offence of assaulting Ms Graney and occasioning her actual bodily harm, and enter a verdict of acquittal on the charge before me.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 16 December 2010
Counsel for the Crown: Ms S Jowitt
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Dr B Boss
Solicitor for the defendant: Darryl Perkins Solicitor
Date of hearing: 13 December 2010
Date of judgment: 13 December 2010
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