R v Lisiate Koula Unga
[2012] ACTSC 29
•20 February 2012
R v LISIATE KOULA UNGA
[2012] ACTSC 29 (20 February 2012)
EX TEMPORE JUDGMENT
No. SCC 418 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 20 February 2012
IN THE SUPREME COURT OF THE )
) No. SCC 418 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
LISIATE KOULA UNGA
ORDER
Judge: Higgins CJ
Date: 20 February 2012
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty be entered.
In this case there is no doubt about certain things. One thing is that between late 8 May 2008, late that evening, and the early hours of 9 May 2008 the victim, Darren Vincent Robbie, was unlawfully assaulted by a person of Islander appearance in the vicinity of Bible Lane.
On the evidence I have no doubt that he was entirely an innocent victim and suffered, although there was no medical evidence before me, a severe injury sufficient to, and I note this has not been disputed, amount to grievous bodily harm. The person who swung the bottle at him clearly either intended to inflict grievous bodily harm or did so recklessly. Recklessness is the standard which is necessary to make out the charge. It follows, therefore, that that person is to my mind clearly guilty of the offence charged. The question then is whether this accused has been proved to be that person. I say, ‘proved to be’ advisedly because it is undoubtedly the case, and it is the law, that the prosecution must prove each and every element of the offence beyond a reasonable doubt.
Beyond a reasonable doubt is a standard applicable to all criminal cases. It is a standard which goes beyond, and well beyond, the usual standard in civil cases where it is enough to say it is more likely than not that the person who is charged is the person who did the act complained of, or any other element of the offence.
That is the question that arises in this case. I do not have any doubt about the accuracy or reliability of the witnesses. They have not been cross-examined and effectively their accuracy and truthfulness has been conceded. The question is what then does that establish?
First of all, I am satisfied that the person who is photographed by Mr Mann, and identified by Ms Altman, as having been in the club, is the same person who assaulted Mr Robbie. I have no doubt of that. Their evidence is quite clear in that respect and I would have no hesitation in accepting it, both as to its truthfulness and its accuracy. The next question is whether that person is this accused.
There are two strands of evidence which seek to address that and do, of course, add some strength to the Crown case. The first is the finding of blood which cannot be excluded as being that of the accused. In fact, that evidence, to my mind, would be almost certainly so accepted were it the only evidence to establish that it was the blood of the accused. There was a small spot of such blood in the vicinity of where the assault took place, albeit not directly on-site but certainly not very far away and then a spot of such blood on a table near King O’Malley’s pub. I do know the area and, of course, that is the other end of Bible Lane from where this took place. Indeed, it is at least 80 to 90 metres away. It was certainly the full length of Bible Lane and around the corner.
Certainly, that blood would be of great significance if it had been found either on the t-shirt, which is Exhibit 2, or if it had been found on any clothing associated with the victim, or on any glass that had been used, or apparently used, in the assault. That is not the case. The blood is there, the question is when was it deposited?
If it was at the same time as the assault then that would be strong evidence, but there is nothing which would enable that conclusion to be drawn with any certainty. So, the only other strand of evidence is the general appearance of the accused, the general appearance of the assailant and the photograph which depicts the assailant.
I should also add that a t-shirt was found at an address associated with the accused, but it was conceded, not by him alone. This t-shirt does seem to be relevantly identical with a t-shirt being worn by the assailant. That does not mean to say it is the same t-shirt but it is certainly a t-shirt of the same brand, colour, and depiction.
One would have little doubt about identification if there had been some better identification of the accused wearing that t-shirt, or of the t-shirt having been worn by the accused on the night in question. A spot of the victim’s blood on it would have been pretty well game, set and match.
There is no such evidence as Mr Jackson rightly concedes. The only evidence is that this t-shirt was taken from a house where he, the accused, was. Even if one assumed that this was the t-shirt being worn by the assailant, one has the difficulty of then concluding that of all the persons in the house, however many there may have been, it was the accused and the accused alone who had and wore this t-shirt.
Some evidence from those persons that this was the accused’s t-shirt might have assisted in that respect. There is, again, no such evidence. Photographs could have been of assistance. I could compare those photographs and say “yes, I am satisfied that is the accused” if the photographs were good enough for that purpose. But it would have to be conceded that they show a partial face in each case and while, of course, the appearance is generally that of a person who could be said to be of Islander appearance it is not good enough to be able to say that is the man.
In those circumstances, although I appreciate the strength of the Crown case as a circumstantial case, it really is not sufficient to take it beyond the level that the Crown must go, that is, beyond a reasonable doubt and I must return a verdict to myself of not guilty.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 9 March 2012
Counsel for the Crown: Mr T Jackson
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr K Archer
Solicitor for the Defendant: Legal Aid Office (ACT)
Date of hearing: 20 February 2012
Date of judgment: 20 February 2012
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