R v Martin - [2009] SASC 262

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARTIN
[2009] SASC 262
Judgment of The Honourable Justice Gray
2 September 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
Disputed facts hearing - defendant pleaded guilty to recklessly causing serious harm - dispute as to whether attack provoked or unprovoked - onus and standard of proving disputed facts.
Held: prosecution bore burden of proving facts alleged by prosecution beyond reasonable doubt - defence bore burden of proving facts favourable to defendant or matters in mitigation on balance of probabilities - in circumstances of proceeding, prosecution allegation that defendant's attack on victim unprovoked, established beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 23(3), referred to.
R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168; R v Olbrich (1999) 1999 CLR 270; R v Lobban (2001) 80 SASR 550, considered.

R v MARTIN
[2009] SASC 262
Criminal Ruling
GRAY J.

Pursuant to an amended Information, the defendant Malcolm James Anthony Martin is charged with Recklessly Causing Serious Harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA).[1]
[1](1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
(2)If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.
(3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for 19 years.
The particulars to the amended Information allege that the defendant, on 30 September 2007 at Whyalla, recklessly caused serious harm to David Shaun Riches. On 24 July 2008 the defendant pleaded guilty to recklessly causing serious harm.
On 29 July 2009, I conducted a disputed facts hearing. The prosecution alleged that the defendant, without provocation, approached Mr Riches and attacked him from behind. The defendant’s account was that Mr Riches had initiated an argument in the course of which Mr Riches slapped the defendant on the face and that this caused the defendant to retaliate.
I have reached the conclusion that the circumstances advanced by the prosecution have been established beyond reasonable doubt and I now set out my findings and the reasons for my conclusions.
At the outset of the disputed facts hearing, the question of who bore the onus of proof in regard to the issue of disputed fact arose. It is convenient to immediately address this question. It is to be emphasised that the defendant’s plea admitted each of the elements of the offence, but no more.
The relevant legal propositions may be summarised as follows. Where a court has before it sworn evidence or verified statements it is for the court to sentence on the basis of the inferences and facts established by that material unless that material is specifically withdrawn or not relied on by the prosecution.[2] Where the defence wish to dispute facts set out in declarations, or challenge the inferences naturally arising from facts contained within declarations then they should make submissions or call evidence on those matters.[3] These principles were outlined by King CJ in Perre:[4]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. … I reject completely the suggestion … that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence.
The principles as enunciated by King CJ were adopted by Prior J in Nemer as follows:[5]
In R v Perre, King CJ spoke of the obligation upon counsel to decide whether or not to call evidence when there is a conflict between submissions put and depositions. His Honour spoke of a duty to call evidence being cast upon the offender. Exceptionally, that duty might be excused if the defence can "validly claim to have been misled".
There is still an onus on the offender to give sworn evidence before the sentencing judge can sentence on a factual basis contradicted by verified statements and sworn evidence not expressly abandoned by the prosecutor. This was a case where the submissions put contradicted the verified statements and sworn evidence. The remarks of King CJ therefore applied. Counsel could not assume that the sentencing judge would sentence upon the basis of her submissions.
[2]    R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168 at [40], [62][-63], [72].
[3]    R v Perre (1986) 41 SASR 105 at 105 - 106; R v Nemer (2003) 87 SASR 168 at [40], [62][-63], [72].
[4]    R v Perre (1986) 41 SASR 105 at 105-106.
[5]    R v Nemer (2003) 87 SASR 168 at [62] – [63].
A party need call evidence on a sentencing hearing only where the fact asserted is controverted or the Judge is not prepared to act on the submission or assertion without evidence. This is the case for either party.[6]
[6] R v Olbrich (1999) 199 CLR 270 at 280 at 281.
The question of which parties bear the burden of proof to the establishment of a particular fact is to be resolved by reference to the use the Judge proposes to make of the fact in relation to the defendant. Matters of aggravation, or adverse to the defendant, are to be proved by the prosecution beyond a reasonable doubt. Facts favourable to the defendant or matters in mitigation must be proved by the defence on the balance of probabilities.[7] Circumstances which, although not mitigatory, would result in a lower sentence than might otherwise be the case, should also be established by the defence on the balance of probabilities.[8] This approach to the burden was addressed by the High Court in Olbrich:[9]
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge:
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
(footnotes omitted)
[7]    R v Olbrich (1999) 199 CLR 270 at 281.
[8]    R v Lobban (2001) 80 SASR 550 at 556-557.
[9]    R v Olbrich (1999) 199 CLR 270.
The meaning of “adverse to the interests of the accused” was further explained by Martin J in Lobban:[10]
In Storey, the majority [of the High Court] explained that a reference to facts "adverse to the interests of the accused" is not limited to circumstances which "aggravate the offence". That expression extends to any circumstance which the judge proposes to take into account adversely to the interests of the accused in the sense that the circumstance is "likely to result in a more severe sentence than would otherwise be the case". It follows that reference to a circumstance to be taken into account in favour of the offender is a reference to a circumstance that is likely to result in a less severe sentence than would otherwise be the case. This approach was approved in Olbrich.
If a sentencing Judge fails to be satisfied to the requisite standard then the defendant will be sentenced on the basis that the fact did not exist, not that the converse is true.[11] As was further observed by Martin J:[12]
In Olbrich, the majority specifically rejected the proposition that if an offender fails to satisfy a judge of some matter urged in mitigation, the judge is, nevertheless, obliged to sentence the offender on that basis unless the prosecution proves the contrary beyond reasonable doubt.
[10] R v Lobban (2001) 80 SASR 550 at 557.
[11] R v Olbrich (1999) CLR 271 at 281; R v Lobban (2001) 80 SASR 550 at 556-557.
[12] R v Lobban (2001) 80 SASR 550 at 556-557.
In the present proceeding, at issue was whether the events, as alleged by the prosecution, occurred. The prosecution bore the burden of proving the facts alleged beyond reasonable doubt. The prosecution sought to establish those facts as providing the context in which the offence occurred and as relevant to a determination of the criminal culpability of the defendant, and hence to the sentence to be imposed. The defence position was that these facts were disputed and necessarily this involved the proffering of a different version. I have approached the disputed facts hearing on the basis that the prosecution has to meet the onus of proof, that is, to prove the disputed facts beyond reasonable doubt.
At the disputed facts hearing, the prosecution led evidence from the Crime Scene Investigator, Sergeant Mark Best. His evidence was unchallenged. I accept his evidence. The evidence was led to set the scene and to outline the observations made by the police on their investigation. Through Sergeant Best, plans of the scene and photographs were tendered.
The prosecution also tendered an agreed statement of facts and numerous witness depositions. The depositions included medical testimony attesting to the injuries sustained by Mr Riches and his subsequent treatment and rehabilitation. The depositions also included evidence about the circumstances preceding and following the offence. The depositions included the accounts of police officers who attended the scene and arrested the defendant.
The prosecution led evidence from Mr Riches. He and the defendant were near neighbours in a street at Whyalla. Mr Riches recounted a history of neighbourhood problems with the defendant. The defendant appeared to have been upset by the apparent homosexuality of Mr Riches and had taken the view that Mr Riches in association with another neighbour had been responsible for the police calling at his home on several occasions. According to Mr Riches, some month’s prior to the offence, the defendant threatened to get him when he least expected it.
On the evening of the incident, Mr Riches stated that when he arrived home, he saw that his rubbish had been taken out of a wheelie bin and placed on his veranda. He stopped his car in the driveway and as he went to put the rubbish back in the bin, he was attacked from behind. He described being struck to his left temple with a fist causing him to slump down. At that time, he recognised his assailant as the defendant. He was then struck to his right temple, followed by further blows to his ribs and head. During this process, he fell to the ground on his hands and knees. At that time, the defendant was still standing. Mr Riches could feel blood flowing from his nose. He tried to get away. He attempted to run to the front door, but was struck again about the head and ribs. He was dragged by the scruff of his shirt down the driveway. By this time, his chest was against the ground. The defendant was threatening to “fucking kill him” and stating that “he was a poofter”. The defendant made a reference to the defendant’s father being a “fucking poofter”. The defendant said that if Mr Riches called the police, he was going to “fucking kill him”. Following this, Mr Riches was flat on the ground and the defendant was kicking him in the ribs and punching him to the head. Mr Riches feigned that he fainted. The defendant left.
Mr Riches was closely cross-examined. It was suggested to him that on arriving home, he was annoyed to find his rubbish on the ground and that he assumed the defendant to be responsible. It was suggested that he called out to the defendant to come and clean up the rubbish, that the defendant entered the driveway and saw the rubbish and responded by laughing at him. It was suggested that the defendant’s laughter made Mr Riches even angrier and that Mr Riches said, “we are going to get you out; me, her, the Housing Trust or the police” and that he added “you’re a criminal. We know you’re a criminal. The police don’t want you here”. It was put to Mr Riches, that at this moment, the defendant lost his temper and said, “you are nothing but a poo-jabbing pillow-biting faggot. Why don’t you fuck off and leave me alone”. It was suggested that at this point Mr Riches slapped the defendant in the face. This, it was alleged, led to the defendant punching Mr Riches. It was then put to Mr Riches that during the ensuing fight Mr Riches had the defendant in a bear hug and was scratching him and that both men slammed into the side of the house and then fell to the ground. Finally, it was put to Mr Riches, that the fight ended with Mr Riches apologising and saying that he would not call the police and that it was “all my fault”. Mr Riches denied all of these allegations.
Mr Riches outlined the serious injuries that he sustained, including facial trauma, a brain injury and fractured ribs. The injury to his brain was severe and led to a lengthy process of rehabilitation, including a period at the Hampstead Rehabilitation Centre.
Dr Jerome Connolly examined Mr Riches the day following the assault. He noted that the assault had caused head trauma and associated inter-cranial bleeding. He observed that Mr Riches displayed gross swelling to the face, bi-lateral blackening to both eyes and severe swelling to the jaw and left temporal area. Dr Connolly deposed that a CAT scan conducted on 2 October 2008 revealed a sub-dural heamatoma along with a sub-arachnoid bleeding within Mr Riches’ brain cavity.
The statement of Dr Eduardo Estrella of the Brain Injury Rehabilitation Unit of Hampstead Hospital illustrates the rehabilitation undertaken by Mr Riches. Dr Eduardo deposed that on admission to Hampstead House, Mr Riches was noted to have decreased ability to spell and poor reading and comprehension. He displayed short-term memory loss and signs of difficulties with planning and visual organisation. He also suffered from balance problems. As a consequence of these difficulties, Mr Riches participated in a multidisciplinary rehabilitation program with a team composed of a physiotherapist, occupational therapist, speech pathologist, psychologist, social workers, nursing staff and medical officers. The program included exercises to improve reading and writing skills and physical therapy exercises to improve fitness and balance. Despite this program, as at 11 December 2007, Mr Riches was assessed as still suffering from decreased speed of cognitive processing, reduced verbal memory and reduced speech fluency with some balance difficulties. Dr Estrella indicated that at this stage, it was unclear whether Mr Riches would experience long term issues associated to his brain injury.
The observations of both Dr Connolly and Dr Estrella were confirmed by the statements of other medical practitioners.
The defendant gave evidence during which he asserted that Mr Riches had been a difficult and interfering neighbour and that he had called the defendant a loser. The defendant gave evidence that on the day of the offence, he had been concreting, had attended a barbeque and consumed a few drinks and had dressed in black slacks, a white shirt and tie with dress shoes, as he was going to celebrate a christening.
The defendant gave evidence that on the evening of the incident Mr Riches had yelled out to him “I know it was you. Come up and clean this up”. He looked over at Mr Riches home and saw that Mr Riches was pointing to some objects on the ground and saying “I’ll be calling the police if you don’t come and clean it up”. The defendant walked on to Mr Riches property. An argument developed. At this stage the defendant called him a “pillow-biting poo-jabbing faggot” and told him to fuck off and leave him alone, and that Mr Riches “squealed out and slapped me”. At this point, the defendant punched Mr Riches probably half a dozen times, giving him a nosebleed. He suggested that the two men were grappling and at some point, they fell on to a raised concrete strip. According to the defendant, the altercation ended and he helped Mr Riches from the ground. The defendant described Mr Riches apologising and saying it was his fault and that he would not call the police.
In cross-examination, the defendant denied Mr Riches’ account that he was attacked without notice from behind and generally denied Mr Riches’ account when it was put to him. When pressed as to why he was laughing, he was unable to provide any sensible explanation. When asked why he did not simply ignore Mr Riches, he could not provide any reasonable explanation.
The defendant claimed to have no memory at all of the police arriving and of the circumstances of his arrest. No sensible explanation was offered for his claimed total loss of memory.
The depositions from the police officers provided a dramatic account of the defendant’s arrest. When they attended the defendant’s home, he refused to let them enter and asserted that he had a gun. He was abusive and uncooperative in conversations with the officers through the locked door. Eventually the police were able to determine that he was unarmed, broke down the door, used a spray to subdue the defendant and then effect his arrest.
The deposition from David Vandenbos, a man who at the time lived at the defendant’s home, described the defendant as drinking throughout the day of the incident, of being in a bad mood, of playing music at a loud volume and when requested to reduce that volume, doing the opposite. The deposition from Mr Vandenbos outlined that when the defendant returned from Mr Riches home, he removed his shirt but was wearing a singlet. Mr Vandenbos said that he observed blood on the defendant’s arms hands and shoulder and that he showered immediately. The defendant said that he had had an altercation with “a poofter”. Mr Vandenbos then packed his possessions and permanently left the premises without notice.
The deposition of a neighbour, tendered by consent, deposed to the defendant having on several occasions loudly called out Mr Riches name on the evening of the incident. This apparently occurred at a time before Mr Riches returned home.
The defendant’s account was inconsistent with several of the tendered declarations. In particular his account was at odds with the declarations of Mr Vandenbos who, as earlier noted, had described the defendant as drinking heavily all day and being in a bad mood. The declaration from the neighbour confirmed the playing of loud music, and of hearing the defendant calling out “David” on numerous occasions. This latter observation suggested that the defendant was looking to have contact with Mr Riches that night and this was directly contrary to the defendant’s evidence. The defendant’s explanation for this conduct was that he was calling for Mr Vandenbos.

The earlier referred to evidence concerning the defendant’s arrest would suggest that at the time he was in a belligerent and aggressive state. When the police arrived and sought to speak to him he responded with abuse, telling the police to “fuck off” and saying something about a gun. When ultimately removed from the house, he attempted to assault the police, and this continued to the time when he was taken to the police station.
I was unimpressed by the defendant’s evidence. During cross-examination, he was argumentative and evasive. I reject his claimed total amnesia with respect to his arrest. No satisfactory explanation was offered for his loss of memory. The depositions establish that he was belligerent and angry, and in a fighting mood. If his version of events in relation to the incident with Mr Riches were correct, his behaviour toward the police was extraordinary. If on the other hand, Mr Riches’ account was correct, his behaviour was explicable; it was the behaviour of a man who had been drinking heavily, was in a bad mood and was angry and aggressive as a result. His evidence was materially inconsistent with that of Mr Vandenbos. I reject the defendant’s testimony.
I was impressed by Mr Riches evidence. His evidence in chief was given clearly and carefully. In cross-examination, he responded directly to questions put to him, and did not seek to prevaricate or avoid any issue. I accept Mr Riches as a truthful and reliable witness.
Conclusion
I am satisfied beyond reasonable doubt that the account of the incident as advanced by the prosecution through the evidence of Mr Riches is accurate. I am prepared to act on his evidence. I accept the evidence contained in the unchallenged depositions.