R v Johnstone
[2018] ACTSC 316
•12 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnstone |
Citation: | [2018] ACTSC 316 |
Hearing Dates: | 30-31 October, 1-2, 5-6, 8 November 2018 |
DecisionDate: | 12 December 2018 |
Before: | Mossop J |
Decision: | See [18] |
Catchwords: | CRIMINAL LAW – common assault during aggravated robbery – determined by judge as related charge following jury trial – accused guilty of common assault |
Legislation Cited: | Magistrates Court Act 1930 (ACT), s 88B(2)(b) Road Transport (Alcohol and Drugs) Act 1977 (ACT) |
Cases Cited: | R v Graham [2017] ACTSC 267; 325 FLR 21 |
Parties: | The Queen (Crown) Michael Johnstone (Accused) |
Representation: | Counsel D Swan (Crown) J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Accused) | |
File Number: | SCC 162 of 2018 |
MOSSOP J:
Introduction
Following a trial at which Mr Michael Johnstone was found guilty by a jury of aggravated robbery, assault occasioning actual bodily harm and riding in a motor vehicle without the consent of the owner, I am required to deal with a related charge which was transferred pursuant to s 88B(2)(b) of the Magistrates Court Act 1930 (ACT). That is a charge that on 4 March 2018 Mr Johnstone assaulted Ms Renae Hallewell (CC2018/4671). (The order of the Magistrates Court referred to the charge being “committed for trial” but given that it is a summary offence I have treated the order as having the effect of a transfer under s 88B(2)(b).)
The principles that apply to a determination of this charge are those general principles relating to a criminal trial set out in R v Graham [2017] ACTSC 267; 325 FLR 21 at [8].
I have also given myself the directions that I gave to the jury in relation to identification evidence and expert evidence.
The elements of a charge of common assault are:
(a)The accused applied force to another person without that person’s consent.
(b)The accused intended to apply force to that other person.
The Crown case was that an intruder had entered the premises at Flack Street in Holt holding what appeared to be a sawn-off gun and demanded money. He struck Ms Hallewell in the mouth with the butt of the gun. This caused her mouth to bleed. He then struck Mr Brandon Cutujar in the forehead with the butt of the gun causing a laceration to his forehead which began to bleed. Mr Cutujar and Ms Hallewell wrestled with the intruder, getting him out the door and part of the way down the front stairs. Mr Darren Mewburn, who had temporarily left the premises, returned and wrestled with the intruder at the base of the stairs until Mr Garang Dau Deng, the co-accused, appeared with a hammer and persuaded the residents to allow the intruder to escape. During the melee the intruder had been deprived of his weapon. As the intruder, Mr Dau Deng and another person left in a getaway vehicle, Mr Cutujar threw the weapon through the back window of the vehicle. The Crown case was that the armed offender was Mr Johnstone.
Upon the evidence of Ms Hallewell and Mr Cutujar, there is no doubt that a person entered the premises at Flack Street in Holt and struck Ms Hallewell in the head. There is no doubt that he was armed with what appeared to be a sawn-off shot gun. There is no doubt that Ms Hallewell did not consent to being struck. Further, notwithstanding the submissions of counsel for Mr Johnstone, I am satisfied beyond reasonable doubt that the person who struck Ms Hallewell was the intruder who entered the premises with the gun and was ultimately wrestled to the ground and out of the unit by Mr Cutujar and Ms Hallewell. The person who struck Ms Hallewell was not the person that Mr Cutujar gave evidence he saw running into the unit when he was wrestling on the stairs with the armed intruder, nor was it the person who Mr Mewburn saw returning to the vehicle parked in the car park at the point in time when he was returning to the unit in order to assist his friends.
The issue therefore becomes whether it has been proven beyond reasonable doubt that the armed intruder was Mr Johnstone. The jury was clearly satisfied of that beyond reasonable doubt in relation to the charges of aggravated robbery and assault occasioning actual bodily harm upon Mr Cutujar.
Was the armed intruder Mr Johnstone?
I, like the jury, am satisfied that the armed intruder was Mr Johnstone. I recognise that the Crown’s case in this respect was a circumstantial one and, therefore, I must be satisfied that there is no reasonable hypothesis available on the evidence consistent with the innocence of the accused. For the reasons which follow I consider that the evidence led by the Crown excludes any such hypothesis.
Identification evidence
There was some identification evidence relating to the intruder, although in the circumstances it was not very detailed. The evidence was that:
(a)Mr Mewburn described him as being “Aboriginal in appearance” to police.
(b)Ms Hallewell described him as being dark skinned and not Caucasian, although she could only see his hands and face. She did describe him as having freckles or moles on his face but accepted that this may be incorrect. She described him as having lighter skin than the person with the hammer who was clearly Mr Dau Deng who is a gentleman with very dark skin.
(c)Ms Jessica Jilbert described him as tall and black, although she only saw his eyes. I did not consider Ms Jilbert’s evidence to be as reliable as that of other witnesses.
(d)Mr Cutujar said that he had dark skin, although because he was wearing a balaclava he only saw the middle of his face.
The accused is a man of Aboriginal appearance with brown skin considerably less dark than his co-accused Mr Dau Deng. The observations of the residents were generally consistent with the intruder being Mr Johnstone. I accept however that the opportunity to make observations was limited in the circumstances and that the utility of the evidence is largely limited to a general impression of skin colour.
I have also had regard to the evidence of Ms Jilbert which was to the effect that somebody else said that the intruder was “Garang” (that is, Mr Dau Deng). She said she didn’t know “Garang” and was not sure that it was him. I did not consider this evidence to be reliable. It is clear that it was only based on something that she had been told. It is clear from the audio of the police emergency call that “Garang” was identified but that appears to be at a time after the intruder and Mr Dau Deng had escaped. In other words, the reference to Mr Dau Deng was made after he had approached the group at the bottom of the stairs to the unit and was recognised by those who knew him. It therefore did not reflect an identification of the armed intruder as being Mr Dau Deng.
One of the police, Detective Senior Constable Christopher Biziak, who attended the premises recorded that the police were told that the intruders were “two to three Africans”. That description is clearly consistent with Mr Dau Deng who was recognised by the residents of the unit. It is less consistent with Mr Johnstone, but consistent with an observation of a non-Caucasian person with darker skin.
I have taken into account the evidence that the residents were intoxicated. That evidence did not, in my view, significantly affect the reliability of the limited identification evidence relating to the intruder. That evidence was that Ms Hallewell had smoked approximately 1g of cannabis that afternoon and that she, Mr Mewburn and Mr Cutujar had smoked 3 or 4g altogether. She described herself as “fine” and having no difficulty with her recollection as a result. She could not recall having drunk wine. Mr Cutujar described himself as having consumed six or seven wines and being “pretty intoxicated”. He observed that Ms Hallewell did not appear to be very affected by smoking the cannabis. Mr Mewburn said that he, Mr Cutujar and Ms Hallewell had smoked from the bong that was present in the unit and he may have had a drink but he did not think so.
DNA evidence
There was expert DNA evidence given by Ms Katherine Lammers. The principal aspects of her evidence were as follows:
(a)In relation to a tape lift from the underside of the navy peak of a hat found at the premises, it was 100 billion times more likely that Mr Cutujar and Mr Johnstone were two of the four contributors to the DNA on that hat than if the profile had originated from four unknown individuals, unrelated to them, selected randomly from the Australian Caucasian subpopulation. That is explained as being extremely strong support for the proposition that these two individuals were contributors to the DNA profile obtained. I accept the evidence of Mr Cutujar that he was “pretty sure” that the hat was worn by the intruder and that it was not his. I accept the evidence of Ms Hallewell that the intruder was wearing the hat and that she had not seen the hat before the incident.
(b)In relation to a tape lift from the interior of a black shoe found at the premises, it was 100 billion times more likely that Mr Cutujar and Mr Johnstone were two of the three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to them, selected at random from the Australian Caucasian subpopulation. Once again, this provides extremely strong support for that hypothesis. I accept the evidence of Mr Cutujar that it was not his shoe. I also accept the evidence of Ms Hallewell who said she had not seen the shoe before and that she observed that the intruder had lost a shoe during the confrontation.
(c)A mixed DNA profile taken from Mr Cutujar’s black ‘Anarchy’ shirt, was 174 times more likely to come from Mr Cutujar, Mr Johnstone and Mr Mewburn as three of the four contributors than if the profile originated from Mr Cutujar and three unknown individuals, unrelated to Mr Johnstone and Mr Mewburn, selected at random from the Australian Caucasian subpopulation. That was explained as providing moderate support for that hypothesis.
Two issues were raised in relation to the DNA evidence. First, whether the Australian Caucasian subpopulation included any people of Aboriginal descent. In cross‑examination Ms Lammers said that it did and produced the research paper describing the Australian Caucasian subpopulation. Following that there was no further cross‑examination directed to this issue and this limited exploration of the issue does not cause me to have a doubt about the applicability of the DNA results. Second, there was some evidence that Mr Johnstone had a brother who had initially been thought to be involved in the incident. The possibility that Mr Johnstone and his brother share genetic information does not cause me to doubt that there is extremely strong support for the proposition that the DNA samples were from persons including Mr Johnstone rather than from someone else.
So far as a reasonable hypothesis consistent with innocence was concerned, the only hypothesis put forward was that the DNA of Mr Johnstone had come to be present on the hat and the shoe as a result of secondary transfer because Mr Johnstone had previously visited the house to purchase drugs. While this was a proposition put to Mr Mewburn in cross‑examination, he denied that he had sold drugs to Mr Johnstone or that Mr Johnstone had ever “partied” at the premises. No other occupant of the house gave evidence that he had visited the premises. Only Mr Cutujar knew Mr Johnstone, but his evidence was that Mr Johnstone did not associate with his friends. There was therefore no evidence that Mr Johnstone had ever visited the house. There was only the theoretical possibility that he might have been a person who visited the house to purchase drugs.
Hospital records
The third strand in the Crown’s case is derived from hospital records showing that Mr Johnstone attended Canberra Hospital shortly after the incident at Flack Street and that he also attended Calvary Hospital the next day. That evidence is contained in Exhibits 8 and 9 as well as the closed-circuit television (CCTV) recording shown in Exhibit 20. My conclusions based upon that evidence are as follows:
(a)The timing of Mr Johnstone’s arrival at Canberra Hospital is consistent with him having travelled from Flack Street.
(b)The injuries that Mr Johnstone is recorded as having suffered are consistent with having come off second best in an altercation with Mr Cutujar, Ms Hallewell and Mr Mewburn. In that respect, I do not accept the submission put on behalf of Mr Johnstone that his behaviour in the triage corridor, shown on the CCTV recording, was inconsistent with the injuries that he suffered. The behaviour in that corridor appeared to me to be not inconsistent with having received blows to his body. The injuries suffered are recorded in the documents as including a laceration to the head as well as, by the time of his attendance at the Calvary Hospital, a black eye.
(c)The fact that Mr Johnstone gave different explanations for his reason for attendance at the hospital when attending Canberra Hospital and when attending Calvary Hospital the next day reduces the likelihood that these were accurate explanations. Relevantly, he said that he had been involved in a motorcycle accident on the first occasion and in a bicycle accident on the second occasion. One of them must be incorrect. The consequence is that the existence of the recorded explanation consistent with his innocence is less likely to give rise to a doubt based on the possibility that he attended the hospitals for other innocent reasons. I do not place any weight upon the telling of a lie to hospital staff as indicating consciousness of guilt. That is because the Crown did not articulate in any detail the reason why he would have been motivated to give a different version of the reason for his attendance when he attended Calvary Hospital. I do take into account the fact that he chose to leave the hospital after refusing to have his blood taken. I accept that in the circumstances the Crown did not establish that he was under a legal obligation pursuant to the Road Transport (Alcohol and Drugs) Act 1977 (ACT) to have blood taken, but the reluctance to have his blood taken (whether legally obliged to or not) and the decision to leave the hospital after the request had been made and refused in circumstances where treatment was in fact required are matters which are consistent with the Crown’s case.
Conclusion
In my view, the most significant evidence is the DNA evidence in relation to which there is no reasonable hypothesis explaining its presence consistent with the innocence of Mr Johnstone. That conclusion is reinforced by the other strands in the Crown’s circumstantial case. In the light of this evidence, I am satisfied that Mr Johnstone was the armed intruder who entered the premises at Flack Street and struck Ms Hallewell. There is no doubt in the circumstances that she was struck intentionally. Mr Johnstone is therefore guilty of the charge of common assault.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 12 December 2018 |