R v Murphy-Positano - [2005] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MURPHY-POSITANO
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Smith
9 August 2005
CRIMINAL LAW
Self-represented accused charged with two offences - onus on DPP to prove elements of offences beyond reasonable doubt - meaning of "reckless indifference" - uncharged misconduct admissible to prove either or both counts - accused evidence is that first offence was an accident and second offence was that she acted in self-defence whether self-defence could arise.
HELD - find that first offence not proved - second offence proved.
VERDICT - not guilty to count 1 - guilty to count 2.
Criminal Law Consolidation Act 1935 s15(1), 29(3), 85(3); Juries Act 1927 s7, referred to.
R v Wozniak (1977) 16 SASR 67; R v Baltensperger [2004] SASC 392; R v Calides (1983) 34 SASR 355; R v IK [2004] SASC 280, considered.

R v MURPHY-POSITANO
[2005] SADC 100
Introduction

The accused is charged on Information with:
Creating Risk of Bodily Harm. (Section 29(3) of the Criminal Law Consolidation Act, 1935).
Catherine Margaret Murphy-Positano on the 22nd day of January 2003 at Brompton, without lawful excuse, drove a motor vehicle at Brompton, knowing that the act was likely to cause harm to Graham John Pittard, and intending to cause such harm to Graham John Pittard or being recklessly indifferent as to whether such harm was caused.
Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).
Catherine Margaret Murphy-Positano on the 22^nd day of January 2003 at Brompton, knowing that she had no lawful authority to do so, intentionally damaged a 2001 Harley Davidson Motor Cycle the property of Graham John Pittard, the said damage amounting to approximately $10,000.00.
On arraignment before me on Thursday 28^th July 2005, the accused pleaded not guilty to both charges. The trial proceeded before me without a jury (see s7 Juries Act 1927 (SA)). The accused was initially represented by counsel, Mr T Clarke, but late on the morning of the first day, upon the completion of the evidence-in-chief of the Crown’s principal witness, she indicated that she wanted to represent herself. I adjourned for the afternoon having urged her to reconsider, but to no avail. She told me that she was not disenchanted with Mr Clarke, but always wanted to represent herself and considered she was capable of doing so. She said she had some experience in a civil action. So it was that on the morning of the second day of the trial I gave leave to Mr Clarke to withdraw. With my assistance the accused represented herself.
I now turn to the evidence.
Evidence
The evidence from both Prosecution and defence was completed by late Friday the 29^th July 2005. On Monday the 1^st August 2005 I heard final addresses. I have considered my verdict and now give my reasons therefore.
The case for the Director of Public Prosecutions consisted of oral evidence from:
·Graham John Pittard – the alleged victim;
·Weng Fook James Yau – the eyewitness; and
·Christopher John Matthews – Constable of Police, Port Adelaide CIB – the officer who investigated the charges.
The defence case consisted of oral evidence from the accused.
I turn to the actual evidence. What follows is a summary of what the witnesses said.
Prosecution evidence
The Prosecution’s principal witness was Graham John Pittard. As at late 2002 he lived alone at 14 Second Street, Brompton. He said he met the accused at the Gas Light Tavern at Brompton in about October 2002, and by November 2002 she began living with him. She moved her furniture and effects into his house from her Housing Trust accommodation in Pennington.
Mr Pittard said that the accused moved in with him “against his wishes”. He said that he thought it was a temporary arrangement whilst the accused found alternative accommodation to her Housing Trust residence at Pennington which she was dissatisfied with.
Mr Pittard said that the relationship quickly deteriorated and ended just before Christmas 2002 when the accused became violent and damaged his property at 14 Second Street. The police attended, arrested and charged the accused with Damaging Property. She was taken into custody at Port Adelaide and was ultimately released on bail which was conditional upon her staying away from 14 Second Street.
According to Mr Pittard, some contact occurred between him and the accused in an effort to reconcile matters but nonetheless the relationship worsened.
I turn to Mr Pittard’s evidence as to the events of the 22^nd January 2003. He said that at about 8.30 of 9.00 am in the morning the accused “turned up on his doorstep”. He said that he declined to answer the door pretending to be absent and as a result the accused left. He observed her to be driving a white Ford Festiva. Mr Pittard said that he worked that day and at the end of his work day he called at the Land of Promise Hotel on the way home. It was then about 4.45 pm. He said that he saw the accused there but did not speak to her. After a short time he left the hotel and headed for home in his work utility intending to return.
He said that at about 5.30 pm he left home en route back to the Land of Promise Hotel. He was riding his Harley Davidson motorcycle. He said that he rode east on Second Street and was about to turn right into Chief Street when the white Ford Festiva driven by the accused turned left from Chief Street into Second Street and “swerved into his lane” in an attempt to run over him. This allegation is not specifically the subject of a charge. Mr Pittard said that following this incident he turned right into Chief Street and as he did so he saw the accused execute a U-turn. He deduced correctly, as it turned out, that she was intending to follow him. Accordingly, he said that he rode at about 80 kilometres per hour south on Chief Street to the Port Road intersection to get away as quickly as possible.
The accused disagrees with Mr Pittard’s account of this “swerving” incident.
Mr Pittard then said that the traffic lights at the intersection of Port Road and Chief Street were red and accordingly he had to stop. He did so in the left turn lane. He said that he watched the approach of the white Ford Festiva in his rear view mirror and in particular saw it coming on fast behind him under the via duct. He said that he feared a collision. He said that the “car pretty much skidded into a crash into the back of the bike” (27). He said there was a skid mark of about 2 metres on the road. He said that he was knocked over and pinned by the left leg under the bike. He said that he extricated himself and made it to the footpath by which time the accused had reversed back and then he observed her drive forward again ramming the motor vehicle into the motorcycle.
Then, according to Mr Pittard, the accused stood in the doorway of the car and proceeded to abuse him and make threats (28). In particular, he alleged that the accused said “You fuck with a Murphy and you fuck with your life ...” (28).
Then, according to him, the accused drove off still proceeding south and turned right into Port Road. By that time, said Mr Pittard, he had borrowed a mobile from a nearby bystander, namely the witness Mr Yau, and he rang the police and reported the matter.
Mr Pittard said that he suffered bruises and abrasions and his Harley Davidson was significantly damaged.
I now turn to the evidence of the independent witness, Mr Weng Fook James Yau. Mr Yau was walking to the nearby library and was at the scene of the collisions. He was walking eastward away from the intersection and towards the city and was on the north-eastern side of the intersection. He must have just crossed the road. He heard the sound of a collision behind him and said that he turned to see a guy on the ground with a motorcycle on top of him. He went over and assisted the person who was plainly Mr Pittard. Then he said that the lady driving the white Ford Festiva reversed back and drove forward and struck the bike again. Then he said that the accused, still in the car with her window down, swore at the guy and he swore back. After that, according to Mr Yau, “she actually drove the car again and knocked the bike again” (80). Mr Yau saw the woman reverse away and drive off. He made it clear that there were three collisions. He said “I’ve heard one and I saw two ...” (81, 82, 83). He said that the man called the police on his mobile phone and eventually the police and an ambulance attended.
Mr Yau said that the accident occurred at about noon, yet in his statement to the police he asserted that it occurred at 5.10 pm (88, 89). When this contradiction was put to him he said that the assertion in his statement was a mistake and that he said no such thing.
Constable Christopher John Matthews of the Port Adelaide CIB gave evidence that he arrested the accused on the 26^th January 2003 and, that apart from saying “Ah CIB I knew he’d set me up”, the accused declined to answer questions. According to Constable Matthews, she did however accept, when asked by him, that she was the driver of the white Ford Festiva, which she was driving at the time of her arrest. Constable Matthews photographed the vehicle, the right wing of which was damaged (see Exhibit P6). By reference to a departmental record he said that the accident had been reported to the police at 5 pm on the 22^nd January 2003.
Such was the evidence in the Crown case.
Defence evidence
The accused, as I said, gave evidence.
She was angry and emotional about many aspects of the fractured relationship with Mr Pittard and much of her evidence and cross-examination was focussed upon what was clearly a brief but tumultuous de facto relationship. She said that she had met Pittard at the Gas Light Tavern in the end of September 2002. She said that a relationship formed and she moved in with him. She said that Mr Pittard’s friends, at his suggestion, moved into her Housing Trust accommodation at 10 Tulloch Avenue, Pennington. She said that the relationship had commenced to break down on the 16^th December 2002 and her evidence sets out a host of allegations about mistreatment at Mr Pittard’s hands. Particularising what happened and coming to any conclusions about these matters is not necessary for my verdict. They are collateral issues of credit.
The accused said that by Wednesday the 22^nd January 2003 she had not recovered her furniture and personal effects from 14 Second Street. She said that early on the 22^nd January she might have called at 14 Second Street as alleged, but she had no specific memory of having done so. Later on that day she said she went to the Land of Promise Hotel to see Mr Pittard about returning her furniture. After some time she decided to confront him at 14 Second Street, not only about the furniture, but also about some drug transaction involving Mr Pittard which had been the subject of a conversation between her and a person named “Simon” in the hotel. She decided to go to 14 Second Street despite the bail conditions.
So the accused was driving north on Chief Street at the same time as Mr Pittard was heading back to the Land of Promise Hotel.
The accused denied that she swerved at Pittard in Second Street (157). She said that as she headed north on Chief Street she saw Pittard heading towards her in the distance. She said that she flashed her lights at him. She said then that she assumed that he was simply proceeding to the hotel and so she executed a U-turn on Chief Street, effectively in front of him, and as she did so he passed her. She said that he was riding erratically as she followed him southward on Chief Street to Port Road.
When asked what happened at the intersection the accused said “screech of brakes and I bumped the bike” (146). She protested that she did not intentionally drive into Mr Pittard’s bike. She said the collision was an accident (198). She said that having struck the bike and having thereby knocked Mr Pittard over she either got out of the car or through the open window said “What are you doing Graham?” According to the accused Mr Pittard replied “You tried to kill me. I’m ringing the police”. She said that she then saw him with a mobile phone and the bystander Mr Yau. She said that it angered her that once again he was drawing the police into her life. She then reversed back and deliberately drove forward again into the bike. She said that she did that “... to frighten him into staying away ...” (148). She said it was an act of self-defence - “... stay away from me ...” (150). In the context of this she alleged that Pittard had previously threatened her and her son and had guns (147).
The accused denied any third act of driving into the bike (148, line 16).
The accused agreed that after the second collision she reversed away and then drove forward passing the bike and turning right onto Port Road to travel west “to her Dad’s” (148, 149).
She said that later that evening she visited Pittard at Second Street. She said that he refused to admit her accusing her of knocking him off his bike and saying that he would be obtaining a restraining order (150). Indeed, that is what occurred.
Such was a summary of the defence evidence.
Arguments – Crown – Defence
The Prosecutions’ case is that having seen Pittard at the Land of Promise Hotel early in the evening of the 22^nd January 2003 the accused became inflamed and followed him to Second Street. It is contended that she first encountered him near the intersection of Chief and Second Streets and deliberately swerved at him. Then she executed a U-turn following him south on Chief Street and at the lights intentionally rammed his bike once when he was on it and then again when he was clear of it. The Crown case here is threefold, namely:
·that the accused deliberately struck the bike intending to harm the victim;
·that the accused drove into the bike and was recklessly indifferent to whether she created a risk of harm to Pittard; and
·that she drove into the bike only intending to damage it but that she must then have been reckless as to whether there was a risk of harm to Pittard.
The defence case is that the accused wished to discuss the return of her furniture with Mr Pittard and was en route to Second Street to do that when she saw him heading south on Chief Street and assumed he was returning back to the hotel. The defence case is that she executed a U-turn to return to the hotel in order to talk to him. The case is that the first impact was simply an accident, and that the accused was so concerned about Mr Pittard retaliating that she drove into the bike a second time in order to warn him off any retaliation – a species of self-defence.
Matters of Law – directions
I direct myself as to the elements of the two offences. In relation to the first offence I direct myself in particular to the meaning of “reckless indifference” (see R v Wozniak (1977) 16 SASR 67; R v Baltensperger [2004] SASC 392 at paras 59-66 per Gray J).
I remind myself that the Crown must prove the elements of the offences beyond reasonable doubt and in particular I remind myself of what was said in R v Calides (1983) 34 SASR 355 per Wells J at 358.
In my view, there is no basis in law or in fact in this case for the defence of self-defence.
There is evidence in the Crown case that the accused swerved her car into the path of Mr Pittard’s motorcycle on Second Avenue. This incident is uncharged misconduct. It is inextricably tied up with what occurred a minute or so later. However, I remind myself, as I would a jury, that a person is not to be convicted upon the evidence of a mere disposition or propensity to commit a crime based upon other unlawful conduct. This evidence of uncharged conduct, if I accept it to be true, can be used by me in proof of counts 1 and 2 in the following ways:
·it is evidence that the offending, the subject of count 1 and/or count 2 was unlikely to be accidental but rather was part of an intended course of behaviour on that night in the sense of being evidence capable of proving that the accused was intending to frighten or damage or injure the victim; and
·it is evidence which is capable of negativing self-defence, if applicable, in that it impacts on whether the accused could have held a genuine belief that driving into the motorcycle on the second occasion was necessary and reasonable for defensive purpose.
There are two charges and I remind myself that I must separately consider each. They do not stand or fall together. Some evidence such as the abusive exclamation alleged against the accused is common to, and admissible to prove the mens rea in respect of both counts and again to negative the plea of self-defence. Indeed the evidence as to the two counts is cross-admissible in the same way as the uncharged conduct is admissible to prove both counts.
Of course a view held by me about the credibility and/or reliability of the principal witnesses, that is Mr Pittard and the accused, with respect to one count, might in practical terms effect his or her credit on the other.
In particular in relation to the defence case I direct myself as follows:
·that nothing adverse is to be inferred against the accused for her declining to answer questions when arrested by the police; and
·that the accused was not obliged to answer the charges by giving evidence but has done so exposing herself to cross-examination and so her evidence is to be considered by me on the same basis as other evidence in the trial.
Finally, and generally, I alert myself to the fact that the exercise is not to evaluate the respective versions but rather to determine whether or not the Crown has proved the elements of each charge considered separately and beyond reasonable doubt.
Findings – Verdicts
The material evidence of Mr Yau was credible and reliable. He was mistaken about the time of day and the number of impacts, but that aside he cast some objectivity on the events at the intersection.
Given the background circumstances of a fracturing and tumultuous de facto relationship I need to weigh the evidence, of both Mr Pittard and the accused, with considerable care. Where there is no supporting independent evidence I consider the best indicator is whether a fact is inherently more probable or not given all the other acceptable evidence. In the end, of course, I must be satisfied on all the evidence that the Prosecution have proved the elements of one or other or both of the charges. I must say that I found unconvincing the explanation by Mr Pittard, of how it was that $5000 of the accused’s money came to be in his account and be wholly expended in a matter of days. Further, the manner in which he dealt with the accused’s property seemed callous and arbitrary but perhaps it was an understandable reaction to her allegedly fractious behaviour. These are collateral credit matters which, without further enquiry, defy categorical conclusions.
I turn to the offences.
As to count 1 I accept as a reasonable possibility that the accused intended to stop behind the motorcycle but given the emotion charged atmosphere she misjudged the circumstances and so accidentally collided with the rear of the bike. I do not accept that the Prosecution has established that the accused deliberately swerved at Mr Pittard in Second Avenue and that therefore this is evidence of her state of mind as she followed Mr Pittard to Port Road. The accused said that she did not reach Second Avenue. I am not sure where the truth lies as to this incident dependent as it is on preferring one version to the other. I note that the allegation of deliberate swerving is uncharged misconduct which need not be established beyond reasonable doubt but rather is part of the evidence to be taken into account in deciding whether the Prosecution has proved beyond reasonable doubt the elements of one or other or both of counts 1 and 2 (see R v IK [2004] SASC 280 per Doyle CJ at paras 66-87). Further, I am not convinced that the abuse at the scene and the second impact necessarily indicates intention or reckless indifference as to count 1. The accused’s evidence of lack of intention is to some degree supported by the screeching of brakes and the skidmarks. Such evidence raises the reasonable possibility that the accused braked thereby intending to stop but that her judgment miscarried.

So Prosecution has not established the mental element of this offence beyond reasonable doubt.
I turn to the second offence. The evidence of Mr Yau puts the question of intention to damage the bike beyond reasonable doubt. In any event the accused admits that she deliberately intended to crash into Mr Pittard’s bike but contends that she acted in self-defence. She says that having initially crashed into the bike she was afraid of Mr Pittard retaliating, given his history, and so she struck the bike again in an effort to deflect him from any action against her. As indicated, it is my view that in law there can be no defence of self-defence to this charge. If I am wrong, then in the circumstances of this matter, as a matter of fact, self-defence does not arise as a reasonable possibility such that the Prosecution is obliged to negative it beyond reasonable doubt (see s15 of Criminal Law Consolidation Act1935). In particular, the accused could not have genuinely believed crashing into the bike on the second occasion to be necessary and reasonable for a defensive purpose and further her conduct was not, in the circumstances, reasonably proportionate to the threat that she genuinely believed to exist. Rather, she was angry that he was involving the police. Moreover, later on that same evening she went to speak with the accused at 14 Second Avenue. This is hardly the action of someone afraid for herself. So I find the second charge of Damaging Property proved beyond reasonable doubt.
Conclusion
So my verdicts are as follows:
Count 1 – Not guilty
Count 2 – Guilty
I will hear submissions as to penalty.