R v McIver; R v Williams
[2021] ACTSC 227
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McIver; R v Williams |
Citation: | [2021] ACTSC 227 |
Hearing Date: | 8, 9, 10 June 2021; 8 September 2021 |
DecisionDate: | 9 September 2021 |
Before: | Elkaim J |
Decision: | See [104] |
Catchwords: | CRIMINAL LAW – JUDGE ALONE TRIAL – hearing split between two accused – whether knowingly concerned |
Legislation Cited: | Criminal Code 2002 (ACT) s 45 Mental Health Act 2015 (ACT) s 83 |
Cases Cited: | Ashbury v Reid [1961] WAR 49 |
Parties: | The Queen ( Crown) Anthony Daniel McIver ( Accused) Julieann Frances Williams (Accused) |
Representation: | Counsel E Wren ( Crown) J De Bruin ( Accused) J Tyler-Stott (Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) Ken Kush & Associates (Accused) | |
File Numbers: | SCC 279 of 2020; SCC 280 of 2020 |
ELKAIM J:
On 23 February 2021 Ms Williams filed an election for trial by judge alone. Mr McIver did the same on 1 March 2021.
At the start of the trial the accused, Julieann Frances Williams was arraigned on the following charges in an indictment dated 22 January 2021:
(a) Aggravated burglary.
(b) Assault occasioning actual bodily harm.
The co-accused, Anthony Daniel McIver, was arraigned on the same indictment, but with the distinction that he was charged with being knowingly concerned in the aggravated burglary and the assault occasioning actual bodily harm, pursuant to s 45 of the Criminal Code 2002 (ACT).
Both accused pleaded ‘not guilty’ to the charges they respectively faced.
The progress of the matter took an abrupt turn at the commencement of the second day of the hearing. Ms Williams, who was on bail, did not initially appear in court. Her whereabouts were unknown. I adjourned the matter until 12:00pm to enable enquiries to be made.
When the Court resumed at 12:00pm Ms Williams was present. She appeared unwell. Medical material was handed up on her behalf (MFI 1).
The medical documentation included a referral from the Winnunga Nimmityjah Aboriginal Health and Community Services to The Canberra Hospital requesting a medical assessment, including a psychiatric assessment. The referral listed a number of conditions that were, currently or in the past, being suffered by Ms Williams. Of particular concern was her consumption of a significant amount of Clonazepam over the last week.
Also provided was a “Statement of Action Taken” pursuant to s 83 of the Mental Health Act 2015 (ACT) directing Ms Williams to be taken to a mental health facility, with or without her consent. The reasons for the action included an “overdose” of Clonazepam. It was noted that she was a risk to both herself and the public because of her attempts to drive a motor vehicle. Other reasons included her being ataxic (uncoordinated), dysarthric (having slurred speech) and delirious (incoherent). Her presentation in court, and the few words she spoke to me, were consistent with the above observations.
Accordingly I adjourned the matter in respect of Ms Williams. Two representatives from Winnunga Nimmityjah kindly undertook to take Ms Williams to a mental health facility. I then listed Ms Williams’ matter for mention on 10 June 2021.
That left the question of what course to take in respect of Mr McIver. Mr De Bruin, on behalf Mr McIver, requested that the indictment be severed and that I proceed to complete the case in respect of his client. The Crown opposed this course, suggesting instead, that the whole of the matter should be adjourned to a date when Ms Williams would be able to attend.
An important element in the decision as to whether to continue with Mr McIver’s case or adjourn it, as proposed by the Crown, was the effect that would flow from continuation. This case then had a most unusual aspect to it. The Crown case is that Mr McIver accompanied Ms Williams to the premises where the offences allegedly occurred.
Ms Williams’ position, by way of her defence, was that she was not present at the premises and the complainant has simply identified the wrong person. Mr McIver conceded he was at the premises, but by way of his defence, took the position that he did not commit any crime while he was there. However the only reason he might have been there, and this is specifically the Crown case, is that he was there with Ms Williams.
If I proceeded to hear the case against Mr McIver, whether I found him guilty or not guilty, there would be an implicit acceptance that Ms Williams was present at the premises. If then I completed the hearing in respect of Mr McIver it could give rise to an inherent unfairness to Ms Williams if I then resumed her case on a part heard basis.
The only possible way in which I could complete Mr McIver’s case therefore, would have been to sever the indictment and not proceeded to hear Ms Williams’ case on a part heard basis. It would need to begin once again before a separate judge. This would in turn require the complainant to return to court and give her evidence for a second time.
On the other hand Mr De Bruin pointed out that his client was entitled to have his matter dealt with expeditiously and it was through no fault of his that Ms Williams had taken ill. He also said that there was a possibility that he would not be available on the adjourned date. He did acknowledge that his client was in custody for matters besides this matter and was likely to remain in custody for the next 3 to 6 months.
The considerations put by both sides had merit. Ultimately, I was most swayed by the fact that this was a trial of two co-accused who ought be tried together and whose joint trial had already proceeded through a full day of evidence including that of the complainant.
Accordingly I adjourned the matter on a part heard basis to 8 September 2021.
I also listed the matter for mention on 1 July 2021 in order to receive an update on Ms Williams’ progress. I had been informed that she had been admitted to a mental health facility and was not likely to be able to appear in court for 2 to 3 weeks.
On 1 July 2021 I was informed that the matter could proceed on 8 September 2021. Nevertheless the case took yet another turn. By an Application dated 7 September 2021 Ms Williams sought an adjournment with the ultimate purpose that a verdict of Not Guilty by reason of mental impairment be entered in her case. The application was supported by an affidavit of Ms Jorgensen-Hull affirmed on 7 September 2021. The affidavit annexes a report of Dr Harrison, a clinical psychiatrist, dated 2 September 2021. Ms Williams has been consulting Dr Harrison for some time.
In her report Dr Harrison says that at the time of the alleged offending Ms Williams was suffering a mental impairment. In particular she says that Ms Williams did not know the nature and quality of her conduct, she did not know her conduct was wrong and she “was not aware enough to control the event or be aware enough to think about or contemplate the wrongness of her behaviour”. In other words, if accepted, Dr Harrison’s opinion would go a long way to achieving the result sought by Ms Williams.
The Crown, having been very recently served with the application and the report, was not in a position to challenge Dr Harrison’s opinion. Accordingly Ms Williams case was adjourned.
However both the Crown and Mr McIver wished to proceed with Mr McIver’s case. I agreed that this course was appropriate. It is important to note that Ms Williams, in the history given to Dr Harrison accepted that she was present during the alleged offences. This of course is precisely the opposite to the stance she had previously adopted. Although not strictly admissible in Mr McIver’s case, Ms Williams history is consistent with his case of being present as well.
I did not make an order formally severing the two cases but did continue with Mr McIver’s case and adjourn Ms William’s case. In light of the history given to Dr Harrison I would not expect the case to continue on the basis that Ms Williams was not present when the offences occurred. Rather any continuing dispute is likely to be about whether or not she was suffering a mental impairment.
Before looking at the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict. Although the cases against the two co-accused were ‘split’ I nevertheless think it necessary to state the principles as if they were both still before the Court. This is because the evidence already before the Court in respect of Ms Williams will remain if there is any need to resume the hearing against Ms Williams. It is also relevant to establish the base facts, in particular the facts necessary to establish the scenario in which Mr McIver was alleged to have been knowingly concerned.
The case against each accused must be proved separately.
The Crown must prove its case beyond reasonable doubt. Each accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The Crown does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The legal elements of the charges denied by the accused were summarised by the Crown as follows:
For Ms Williams:
Aggravated Burglary
1.The principal offender entered or remained in a building (physical element)
2.The principal offender intended to enter or remain in a building (default fault element of intention)
3.The principal offender was a trespasser ie has no permission to enter or remain in the building (physical element of circumstance)
4.The principal offender was reckless as to whether her/his entry into or remaining in the building is without permission (default fault element of recklessness)
5.At the time of entering or remaining on the property, the principal offender intended to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building
6.The principal offender was ‘in company’ at the time of committing the burglary (physical element of circumstance)
7.The principal offender was reckless as to the fact of being ‘in company’ with one or more persons
Assault occasioning actual bodily harm
1.Accused applied force to another person without that person’s consent
2.The accused intended to apply force to another person
3.The other person suffered ‘actual bodily harm’
4.The application of force caused the actual bodily harm.
For Mr McIver:
Additional elements of an accused being knowingly concerned in the offence
1.An offence is committed by another person (“the principal offender”):
2.The accused engaged in conduct (physical element of conduct)
3.The accused intended to engage in conduct (default fault element of intention)
4.As a result of the conduct, the accused was knowingly concerned in or a party to the commission of the offence by the principal offender (specified physical element of result)
5.Either (specified fault element for result)
i.The accused intended their conduct to result in the accused being knowingly concerned in or a party to the commission of any offence of the type committed by the principal offender; or
ii.The accused intended their conduct to result in the accused being knowingly concerned in or a party to the commission an offence by the principal offender and was reckless about the commission of the offence in fact committed by the principal offender.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of the same witness’s evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’s evidence. I may accept the remainder of that evidence if I think it is worthy of acceptance.
I must consider each count separately and return a separate verdict on each charge. There may well be a logical reason for returning a verdict of guilty on one charge and not guilty on another charge.
Although, as I have said, I must consider each accused and each charge separately and return verdicts accordingly, my verdicts must also be logically consistent. I cannot compromise on verdicts. If I have a reasonable doubt about the complainant’s evidence on any one charge, then I must consider whether that doubt causes me to have a reasonable doubt about the evidence on the other charges.
The Crown case
In summary the Crown case is as follows: the two co-accused were close friends. Ms Williams had previously been in a relationship with KG. There were no children of the relationship but KG had assisted in the upbringing of Ms William’s daughter.
After the termination of the relationship, KG formed a new relationship with the complainant. The complainant lived in Kambah (at ‘No 21’) with her three children, ‘M’, aged fourteen, ‘S’, aged six and ‘E’, aged three.
As at 3 September 2020 the complainant was 17 weeks pregnant with a child of the relationship with KG.
About two weeks before 3 September 2020 Ms Williams communicated with the complainant via Facebook messenger. The messages were derogatory and threatening.
On 2 September 2020, the complainant posted an ultrasound image of her unborn child on her Facebook page. A caption said that she and KG were expecting a baby.
On 3 September 2020, a Thursday, shortly after midday, the complainant was standing on the front landing of her house. ‘E’ was riding a bicycle in the front garden. ‘M’ was inside the house, preparing to have a shower. ‘S’ was at school. KG had left a short time before.
A Mazda 6 motorcar pulled up outside the house. Ms Williams was the driver, Mr McIver was in the front passenger seat and another unknown female was in the rear. The complainant recognised Ms Williams and the unknown female but not Mr McIver.
The two co-accused and the unknown female walked towards the complainant. The complainant said that she did not want any trouble. Ms Williams told the complainant: “If you go in, we are going to grab him”, indicating ‘E’. Ms Williams and the unknown female walked up the stairs onto the landing where the complainant was situated. Mr McIver remained at the base of the stairs.
Ms Williams punched the complainant to the face so that she stepped backwards into the house. Ms Williams pursued her and carried on hitting and striking her to the head and face.
The unknown woman joined Ms Williams in the house. Mr McIver came up the stairs and stood at the front door.
The complainant, not having any avenue of escape, sunk into a foetal position with her hands on her stomach to protect the foetus. Ms Williams tried to punch her in the stomach. She did punch her in the face.
The unknown woman grabbed the complainant’s hair and pulled it up so that her head was against the wall. Ms Williams tried to pull the complainant’s arms away from her stomach.
The complainant called out for assistance from ‘M’. He had been in the shower. Responding to the urgency of the calls for help, ‘M’ entered the room without any clothes on. Presumably embarrassed by the presence of other persons he returned to the bathroom to secure a towel.
Ms Williams carried on hitting the complainant in the head. Mr McIver called out “Enough now”. The three trespassers then left via the front door which was closed by the complainant. The unknown woman came back to the door and kicked it three times.
The three persons left in the vehicle, but not before Ms Williams called out “You better end it with him”.
‘M’, now clad in a towel, returned. He sent a text message to KG to tell him to return and he called ‘000’.
The police arrived. They found the complainant bleeding from the nose and around her lips. Her jaw and cheek were swollen and her arms and hands were injured. She was very upset. She was taken to The Canberra Hospital where she was examined and treated in the emergency department.
Mr Tyler-Stott, who represented Ms Williams, made a brief opening statement in which he said that the main issue, as far as his client was concerned, was one of identification. In other words, was she the person who assaulted the complainant?
Mr De Bruin, on behalf of Mr McIver, did not make any opening statement. However it was apparent from his cross examination of the witnesses that his case was not one of him not being present at the scene of the assault, rather it relied on him not being involved and perhaps even intervening to bring the assault to an end.
The evidence
The first witness was the complainant. She gave evidence from a remote witness room. I reminded myself that this did not give rise to any inference against the accused nor was her evidence to be given any greater or lesser weight as a result of her being in a remote location.
She generally gave evidence in accordance with the Crown case. Most of her evidence in chief came through an interview conducted with her at the hospital some hours after she was assaulted.
I specifically said “generally” because there were some differences between the interview and her evidence in chief given before me.
The most notable differences centred on the question of identification. No challenge was made to the complainant’s claim of being assaulted or suffering consequent injuries. Mr Tyler-Stott confined his cross-examination about the recorded interview to the following questions and answers:
Q 193. All right. And how do you know Julieann?
A. Um, that’s [KG]’s ex-girlfriend.
Q 194. [KG]’s ex-girlfriend?
A. Yeah.
Q 195. Okay. How did you meet ----
A. I don’t know her.
Q 196. You don’t know her?
A. No
Q 197. How did you know it was her?
A. Ah, because I know his ex. Like, I know his ex-girlfriend. Like, I’ve met her before – once before.
Q 198. Okay. Tell me about – tell me about that? How did you meet her, and when?
A. Oh, okay. Um through – through [KG] and through [BD], my ex-partner. So it’s a bit complicated, so I’m not going to ---
Q. 199. And how – and who was she introduced to you as? Did ----
A. Oh no. I was told that, “That’s my ex-girlfriend” – because when I met him, apparently she was – she was in jail, so.
Q 200.Yep. And the same person that assaulted you today – [KG] had told you previously was your – was his ex-girlfriend?
A. Oh, yes, yes.
Q 201.Okay. All right.
A.And he knows - yeah, yeah.
Q 202. Yep. Okay. All right.
A. I know what Julieann looks like. I’ve seen her before. Um, my ex, um husband used to associate – like, used to hang out with [KG] and stuff like that.
Q 203. Yep
A. So I was never in that – like, I didn’t go over there. I was at home with the kids. I – I can’t explain to you ---
Q 204. No, no. You’ve explained very well.
A. Okay.
A matter which was not the subject of any questions was that the complainant referred to the vehicle that pulled up outside her home as a black Subaru. In fact, the CCTV footage of the incident confirms it is a black Mazda. I do not think anything arises from the distinction. This is because there was no challenge to the evidence and, more importantly, the registration of the vehicle was recorded and shown to relate to a black Mazda registered to Ms Williams (but under a name previously used by her). This is recorded in the statement of Senior Constable Gordon dated 30 October 2020, at [15].
During her evidence in chief the complainant said that she had met Ms Williams on a number of occasions. This was in the context of her former husband, BD, having been an acquaintance of KG. She nominated an occasion where she had met Ms Williams in a car park. She also referred to Ms Williams coming to her home to drop off some money for KG.
I note here that in respect of the references to Ms Williams having been in prison I regard those as indications of her location at a particular time. I do not draw any adverse inference against her.
The complainant was obviously not comfortable in the witness box. She was fidgety and apparently nervous. I draw no conclusion from her demeanour or manner of giving evidence. It was equally consistent with a person concerned about not telling the truth as with a person concerned to tell the truth. In addition I note that, if accepted, her evidence could well raise a perception on her part that she or her children might be subject to reprisal.
My overall impression of the complainant was that she was telling the truth. Her insistence that she knew Ms Williams was compelling. The complainant made it clear that she recognised the two females. She agreed that they became the focus of her attention.
Her identification of Ms Williams was entirely consistent with the messaging that had occurred between them, as seen in Exhibit B. Some of the messages bespeak a clear intent of violence of the type that occurred on 3 September 2020.
The complainant agreed that the assault stopped when the male said “Enough. Enough”. This answer not only aided the case being put forward by Mr McIver, but was also an indication that the complainant was not embellishing the assault she had endured. I repeat, no cross-examination suggested the assault, or any part of its detail, had not taken place.
Another notable aspect of the cross examination on behalf of Ms Williams was that, while it was put to the complainant that she had never met Ms Williams before 3 September 2020, it was never put to her that Ms Williams was not present during the assault. Even if the first suggestion encompasses the second, I think a positive assertion that Ms Williams did not carry out the assault should have been made.
The next witness was TT. She and her husband, ET, live over the road from No 21. There was plainly a good deal of friction between TT, ET and the occupants of No 21. This had led to the taking out of apprehended violence orders, even against the complainant’s son.
Most of the disturbances seem to have taken place when BD was in the residence. As a result TT and ET inserted CCTV cameras to protect their property. One of the cameras pointed across the road. Its field of vision included the front of house No 21.
TT said that on 3 September 2020 she was at home with her husband preparing to have lunch. She heard a motorcar on the street outside. She looked at the street and noticed a car parked across the driveway of No 21. Three people emerged from the vehicle. A female in a dark blue jacket came from the driver’s door. Another woman, with a ponytail, emerged from the front passenger door and a male, wearing a white top with a black bag across his shoulder, emerged from a rear door.
At this time the complainant was on the landing. ‘E’ was riding a scooter in the front yard. An apparently innocuous conversation was held with the complainant on the landing until, suddenly, the female in the blue jacket began yelling and punching. At this stage the other two ‘visitors’ were either on the stairs or on the landing.
The complainant and the assailant moved inside. TT thought the other female and the male also went inside. She heard screaming emanating from the complainant, and she thought, also from ‘S’. She may well have been mistaken about screaming from ‘S’ who was apparently at school.
TT rang ‘000’. She needed to do so twice because of a bad connection on the first occasion. I heard recordings of the calls which are generally consistent with her evidence.
About a minute later the three persons emerged from the house. The female with a ponytail kicked the door. There was still screaming as they left. The female in the blue jacket said “one punch is all it will take”. There was some reference to the complainant being a “gronk slut”.
TT said ‘M’ came out wearing a towel and shepherded ‘E’ into the house.
CCTV footage was tendered through TT. It obviously speaks for itself. I noted the following:
(a)The time stamp on the footage is inaccurate.
(b)At the commencement the complainant is seen on the landing. ‘E’ is on a ‘balance bike’, not a scooter, and well beyond the letterbox.
(c)A black Mazda motor vehicle arrives and parks across the front of the driveway of No 21.
(d)A female wearing a dark jacket and light coloured pants (perhaps of a tracksuit style) emerges from the driver’s door. I will refer to her as F. She is the person the Crown says is Ms Williams. F makes her way up the driveway. She is closely followed by a second woman, with a ponytail, and a top which has large white parts to it. I will refer to her as G. F and G appear to be walking ‘with purpose’.
(e)G emerged from the right rear passenger door. A male, (alleged to be Mr McIver) somewhat behind the females, comes out of the left front passenger door and follows the females up the driveway.
(f)Although G is the first up the stairs she is soon overtaken by F. Shortly thereafter a scuffle ensues and the complainant is apparently pushed through the front door. At this stage both G and the male are at the bottom of the stairs.
(g)G and the male go up the stairs. The pace at which G is moving suggests that she clearly entered the house. This is not quite as evident with the male who, although he apparently is walking to the front door, may not necessarily have walked through it. Ultimately the parties agreed that he had not entered the house but had stood in the open front door way.
(h)There is then a good deal of screaming after which G emerges, soon followed down the stairs by the male and then F.
(i)The trio seemed to be leaving but G returns to the front door, now obviously closed, and kicks it a number of times.
(j)M comes out onto the landing, wearing only a towel about his waist. He successfully encourages E through the front door.
(k)The three ‘visitors ’take up the same positions in the vehicle, which leaves, but not before F and G take the opportunity to apparently gesture and remonstrate with M.
(l)The time that elapses between the arrival of the Mazda and its departure is about two minutes.
(m)There is no distinguishing feature in the footage, about F, G or the male, that aides in their positive identification. As should be evident from what I have said above, identification dissolved as a positive issue in the case.
It is apparent from my summary of the CCTV footage that there are some differences with the descriptions given by the witnesses. I have already mentioned that the vehicle is a Mazda and not a Subaru and ‘E’ is on a balance bike rather than a scooter. Also the vehicle was driven by F and not by the male. He was in the front passenger seat, not the rear.
I do not think any of these differences are substantial enough to cause me to doubt the evidence of either the complainant or TT. They are typical of the slight differences and mistakes that appear in the usual evidence of otherwise accurate witnesses.
Under cross-examination TT said that previous disturbances over the road had included the presence of broken and dumped motorcars and domestic violence, mostly when BD was in residence. On one occasion BD had brandished a fake weapon.
ET then gave evidence. He was alerted to the events by his wife, but by the time he looked out the window the three persons were walking up the driveway. He saw the person in the blue jacket punch the complainant and he thought all three persons went inside. He wrote down the registration number of the motor vehicle parked on the street.
He also described problems that had existed with BD, including being threatened. He said that persons attended No 21 through the night. They were a nuisance. Vehicles would stop for a short time.
ET conceded that it was possible that a person could have been standing at the front door but not have been visible from his vantage point. This cross-examination was put forward in aid of the suggestion that the male did not go inside the house and did not participate in the assault.
Mr Pankaj Jain then gave evidence. He was a security guard working at the Argyle Housing complex in Gungahlin. Mr McIver lived there and Mr Jain was familiar with him. He knew Mr McIver to have a girlfriend, who he described as a large person, but he did not know her name.
On 3 September 2020 the police spoke to him and requested CCTV footage of cameras located in the complex. He was not able to provide the footage but he did allow the police to take photographs of certain portions. These photographs became Exhibit E. They show Mr McIver at the premises and also with a female. I was later shown CCTV footage taken within the premises (part of Exhibit F).
Mr Jain was not cross-examined. It was certainly not suggested to him that the person in the photographs was not Mr McIver or that the female was not Ms Williams.
The following evidence was called by the Crown when the matter resumed on 8 September 2021. This evidence relates only to Mr McIver. A bundle was tendered (Exhibit F) which contains a number of statements, photographs and CCTV footage. The latter is of the premises where Mr McIver resided and establishes that he and Ms Williams met up in the morning before the offences and returned sometime after the offences. They are of little relevance in the light of Mr McIver’s concession that he was present when the offences took place.
The photographs (Exhibit F, Tab 8) are of relevance in showing the front door and general area where the assault upon the complainant took place. It is to be remembered that no challenge was made to the complainant’s evidence of having been assaulted.
Consideration
As this rather unusual trial unfolded, in respect of Mr McIver, it became obvious that there was only one issue to be decided. This was whether or not Mr McIver had been knowingly concerned in the offences committed upon the complainant. There was no issue that these offences were the offences with which Ms Williams was charged. It is not necessary, although in this case it is quite obvious, that it was Ms Williams who actually committed the offences.
It is also abundantly apparent, and in fact never disputed, that an aggravated burglary took place and that the complainant was assaulted and suffered actual bodily harm.
Counsel said there do not seem to be any ACT cases on the meaning of “knowingly concerned”. The phrase is not defined in the Criminal Code 2002 (ACT). The Crown however said that the appropriate way to approach the matter was described in R v Kelly [1975] 24 FLR 441, a decision of the Full Court of the Supreme Court of South Australia. The Court said at page 453:
We think it is a mistake to believe that a man has to be engaged in active participation in some scheme before he can be said to be knowingly concerned. No doubt some act on his part would normally be required in order to prove his knowing concernment. The meaning of the word “concerned in a similar context was considered by the Full Court of Western Australia in Asbury v. Reid ([1961] W.A.R. 49). Having cited the definition of the word from the Oxford Dictionary, the court, in considering whether an act or omission on the part of an individual came within the terms of the section, posed the question “whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence”.
Lee J in the New South Wales Court of Criminal Appeal, in Tannous v The Queen 31 A Crim R 301 confirmed the applicability of the test set out in Ashbury v Reid [1961] WAR 49 (Ashbury) and added this important passage:
A father, learning that his son had made arrangements to import narcotic drugs into this country might well be anxious about, interested in or concerned about the fact and he might evince that anxiety, interest or concern to others. But he would not be guilty of the offence of being knowingly concerned merely from his knowledge of the importation and his state of mind arising therefrom. Before he could be convicted under the section he would have to do something to connect himself with or involve himself in the importation.
The Crown submitted that what Mr McIver had done to “connect himself with or involve himself” in the offences being committed were the following:
(i)He exited the motorcar knowing that the two women were aggressively going up the driveway and up the stairs.
(ii)He received an instruction from one of the women that he should “grab” the child who was outside.
(iii)He placed himself in the doorway effectively blocking the complainant from an exit pathway out of the house (the other available escape route having been blocked by the younger of the two women within the house).
(iv)Sufficient time passed before any intervention by Mr McIver to infer that he was knowingly allowing the assault to continue.
(v)Mr McIver, issuing the direction “Enough” suggested that he had a degree of control over the actions of his two female colleagues.
Both parties accepted that Mr McIver stood in the doorway. Mr McIver however submitted that none of the above conclusions or inferences suggested by the Crown were available, in particular from a viewing of the CCTV footage.
The Crown ultimately accepted that it could not rely upon any prior knowledge by Mr McIver of what was to occur at the premises when the group arrived. The Crown said that the CCTV footage demonstrated his participation. This was evident from him clearly involving himself by following the two women up the driveway and later taking up his position in the doorway.
It is to be recalled that the complainant made no specific allegation against Mr McIver other then, by inference, in Q 127 of her police interview where she stated:
But, yeah, I - couldn’t run out the front door, because of the man.
There is no doubt that this was her perception. That is a very different matter to whether or not Mr McIver knowingly involved himself in the melee by standing in the front door as a means of blocking any exit.
As to the CCTV footage of Mr McIver leaving the motor vehicle and going up to the house, I do not think the Crown’s submissions as to what can be inferred from his actions are the only reasonable and justifiable inferences available. His manner of exiting the car, his casual assent of the driveway, including smoking a cigarette, are equally consistent with him simply taking an inquisitive approach as to what was occurring.
The Crown submitted that the intent of Ms Williams was obvious. She was there to assault the complainant. That may well be so, but how does it necessarily implicate Mr McIver? The three visitors did not walk up the driveway in unison, as if having a common purpose.
In addition, initially, on reaching the stairs, he takes a backward step before going up to the front door.
As to the Crown submission that he was exercising a degree of control by calling out “Enough” I do not think that is necessarily open. He may well have called out because he thought matters were out of hand, whether or not he considered his appeal would have any effect.
In relation to the instruction to apprehend the child the Crown submission was that he must have been complicit in the venture if instructions were being given to him. Putting aside that this conclusion is something of a large step, it is clear that Mr McIver was not taking instructions. His attitude to the child as he ascends the driveway seems to be one of casual indifference and of lesser concern than his cigarette.
The Crown submitted that:
[I]t is significant that he has willingly gone to the home of a person who he has nothing to do with, has no relationship with, in the company of two women who very clearly from the first moment they get out of the vehicle want some kind of confrontation to take place with that person.
Mr McIver did have a relationship with Ms Williams. There should be no surprise that he accompanies her (as a passenger) as she goes about her personal affairs. There was no suggestion of any discussion in the vehicle about what was to occur. The Crown submission is essentially that his mere presence in the vehicle is an indication of his guilt. That is not a conclusion that I think is available. There is nothing to suggest that until matters got out of hand at the complainant’s residence that Mr McIver had any idea of what was to occur.
It is also clear from Ashbury that “mere knowledge” is not enough to dictate guilt.
The Crown may be right in its interpretation of Mr McIver’s actions, as depicted in the CCTV. But ‘may be right’ is not enough. The Crown must satisfy me beyond reasonable doubt that Mr McIver was knowingly concerned or a party to the commission of the offence. I think such a conclusion, while open, is only open on a somewhat speculative basis.
Orders
Accordingly I find the accused, Mr McIver, not guilty of the two offences with which he has been charged.
| I certify that the preceding one-hundred and four [104] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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