R v NC

[2010] NSWSC 1178

CITATION:	R v NC [2010] NSWSC 1178
HEARING DATE(S):	11-13 October 2010
JUDGMENT DATE :	15 October 2010
JUDGMENT OF:	Fullerton J
DECISION:	Not Guilty
CATCHWORDS:	CRIMINAL LAW - murder - trial by judge alone - accused present when deceased fatally assaulted
LEGISLATION CITED:	Criminal Procedure Act 1986
CATEGORY:	Principal judgment
PARTIES:	The Crown NC (Accused)
FILE NUMBER(S):	SC 2009/11706
COUNSEL:	R Herps (Crown) J Stratton SC (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) J Shevlin (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

15 OCTOBER 2010

2009/11706 R v NC

JUDGMENT

1 HER HONOUR: On 26 March 2010 the accused was arraigned on a charge that on 29 January 2006 at Cartwright he murdered Derrick Reid.

2 On 11 October 2010, pursuant to s 132 of the Criminal Procedure Act 1986, the trial of the accused on the charge of murder was convened before me without a jury.

3 Save for the oral evidence of three witnesses, Jacob Epenian, Joel Grant and the officer in charge of the investigation, Detective Hohnen, the evidence in the Crown case was tendered, by agreement, in the form of an edited transcript of the trial of two co-offenders who were convicted by a jury of murdering the deceased in February of this year.

4 Some exhibits also tendered in that trial, and some additional evidence in the form of telephone intercepted conversations between the accused and his girlfriend in July 2008 (within weeks of his arrest), a statement from his girlfriend, and a conversation with his mother and sister recorded by means of a listening device a week prior to his arrest, were also tendered without objection.

5 At the conclusion of the Crown case the accused submitted that he had no case to answer and that I should acquit him of murder. It was not submitted by the Crown that an alternative verdict of manslaughter is available.

6 On 13 October 2010 I published my reasons for finding that the accused did have a case to answer. The accused did not give evidence or call evidence on his own behalf.

7 On 13 October 2010 I heard closing submissions from the Crown and Mr Stratton SC on behalf of the accused.

8 It was common ground between the Crown and the accused that the deceased died as a result of sustaining head injuries inflicted in the course of a violent assault in his home unit at Cartwright some time around 6.30am on 29 January 2006. It was also common ground that the accused was present when the deceased was fatally assaulted having accompanied his alleged co-offenders, Todd Carney and Luke Cambey, into the deceased's home unit that morning for the purpose of acquiring some cannabis, either by paying for it or obtaining it on credit. The evidence does not permit of a conclusion either way. The three men were driven to the unit from a party at Jacob Epenian’s house by Joel Grant. He stayed in the car while the three men went into the deceased’s unit.

9 It was common ground that a Taser gun and an iron bar (in the form of a detachable handle from a socket set) were used by two of the three men in the assault after they entered the unit and that the fatal injuries to the deceased’s head were inflicted by either or both weapons. The deceased made repeated reference to both items being used to strike or hit him on the head when he spoke to neighbours, ambulance officers and police at the unit about the assault prior to being taken to hospital. I am satisfied that Carney was the person who used the iron bar to strike the deceased. The Crown did not submit otherwise. In addition, since the Crown did not submit that there was any evidence that the Taser was used by the accused at any time during the course of the assault (or that he presented it or used it in any way inside the deceased’s unit) l am also satisfied that it was Cambey who used the Taser to assault the deceased.

10 Jacob Epenian gave evidence that when Carney, Cambey, Grant and the accused left his home to go and get some cannabis from the deceased they were not carrying anything. Joel Grant gave evidence that when the accused and Carney and Cambey left the car to go to the deceased’s unit he did not recall them carrying anything. The Crown did not seek to challenge this evidence nor seek to persuade me that I should not accept it. Although the iron bar was recovered from the scene, where I am satisfied that Carney discarded it as he fled from the unit, the Taser was not recovered. The size and dimensions of the iron bar allow me to conclude that it would be difficult for Carney to conceal the bar in his clothing or otherwise from view, thus permitting the further finding that, at least the probabilities favour, the iron bar being in the deceased's unit and used opportunistically by Carney when the fight broke out.

11 Since there is no evidence as to the size of the Taser, there is no evidence permitting an inference to be drawn one way or the other as to the ease with which it might have been concealed by Cambey without the accused being aware of it. Furthermore, having regard to the evidence of Grant and Epenian, I am satisfied that there is no evidence that the accused knew that a Taser was taken to the deceased’s unit in the car driven by Grant, or into the unit by Cambey, and that the first he learnt of it was when it dropped to the floor inside the deceased’s unit.

12 The unchallenged evidence establishes that the deceased permitted the three men to enter his unit, but that after they walked in he became agitated when he learnt that one of them had a Taser when it apparently accidentally dropped to the floor. This evidence emerges from what Epenian said that Carney and Cambey told him when the four men returned to the party some short time after going to the deceased's unit to get the cannabis. Carney also said that upon seeing the Taser the deceased said “This is not happening to me. Not now. Not ever”.

13 What followed thereafter emerged as the single fact in issue in the trial, namely whether the Crown has proved beyond reasonable doubt that the accused participated in assaulting the deceased in such a way as to establish his liability as a principal in the second degree for his murder, or whether it is reasonably possible that he was caught up in the dispute that initially erupted when the deceased saw the Taser, in the course of which he pushed the deceased, and that he was simply present when the deceased was thereafter fatally assaulted by Carney and Cambey, and that he did nothing by his words or conduct to encourage or assist them. It is this second scenario that Mr Stratton advanced as the defence case. He submitted that the evidence in the Crown case, in particular what the accused told his mother and girlfriend about his involvement, is equally consistent with that version of events being the truth. It is of course for the Crown to exclude the reasonable possibility that what the accused told his mother and girlfriend about his involvement, namely that he did not hurt the deceased but merely pushed him and that this preceded the assault by the other two men, is what actually happened. If the Crown fails to exclude that as a reasonably possible version of events the accused is entitled to be acquitted.

14 The Crown submitted that I would be satisfied the accused is guilty of the murder of the deceased as a principal in the second degree. In order to establish his liability for murder on this basis the evidence must establish beyond reasonable doubt the following elements:

(i) The deceased was murdered by Carney and Cambey by their intentional infliction of grievous bodily harm;

(ii) The accused was present at the time the murder was committed;

(iii) The accused knew of all of the circumstances , or the essential facts , necessary to show that the deceased was murdered by those two men - that is, that they had intentionally assaulted him by repeated blows to his head with the intention of causing him grievous bodily harm and, finally ,

(iv) That with that knowledge he intentionally assisted or encouraged them to commit that crime.

15 The accused conceded that the Crown has established each of the first, second and third elements to the criminal standard. It was also conceded that the evidence leaves no room for doubt that the accused was present when the assault occurred. In fact, as Mr Stratton sought to persuade me, it was because he was present during the course of the fatal assault by his friends that over time he became progressively weighed down with what he regarded as his moral responsibility for the death of the deceased given that he was with the men that murdered him and witnessed what occurred, to the extent that 18 months later, because of the weight of his moral guilt and perhaps because he believed (wrongly) that he was also legally responsible for the deceased’s death, he was overwhelmed by the need to try to end the relationship with his girlfriend.

16 As the presiding judge at this trial I do not make any judgment of the accused’s moral responsibility. The sole question is whether the Crown has proved that the accused is legally responsible for the murder of the deceased.

17 The law provides that the accused’s mere presence when Carney and Cambey assaulted the deceased with the Taser and the iron bar (and perhaps by Cambey stomping him on his head) and his knowledge that the assault was delivered by them with at least the intention of causing him grievous bodily harm, or even his acquiescence or assent to the commission of that assault, or a failure on his part to intervene to prevent it, does not make him liable as a principal in the second degree to murder. In this trial the Crown accepts that it must establish beyond reasonable doubt that the accused was linked in purpose with the fatal assault, and that by his words or conduct at the time of the assault he did something to bring about, or render more likely, the death of the deceased, through his active encouragement or assistance.

18 It is not the Crown case that the accused said anything with the intention of encouraging or assisting Carney or Cambey to wield the Taser or the iron bar in their joint assault of the deceased. In fact there is no evidence that he said anything at all. Rather, it is the Crown case that at some unspecified time in the course of the assault he actively participated in it, albeit in some unspecified way, such that the deceased was not able to resist or defend himself against the attack by the other two men in their joint objective of subduing him by delivering repeated blows to his head. It is important to emphasise that it is not the Crown case that the accused joined the joint criminal enterprise to assault the deceased to which Cambey and Carney were party, but that his involvement, by his presence and active contribution, amounted to him encouraging or assisting them in the material sense.

19 Before considering the evidence upon which the Crown relies in making its case against the accused it is important to deal with one aspect of the evidence in the Crown case at the outset. It was evidence that was given by Epenian of what Carney and Cambey told him had happened in the unit. He said that after Carney told him of the deceased’s reaction to seeing the dropped Taser, he went on to relate what he did and what Cambey did in the course of assaulting the deceased, a conversation in which Cambey also actively participated. Epenian gave evidence in the following terms:

“Todd said that he cracked him with a pole and he fell on the bed. He couldn’t believe that he got back up. So then Cambey started kicking into him and Todd said that he was cracking him with the pole in the head and he was bleeding and there was blood everywhere. Todd said that he kept getting up and that’s why they left. Todd and Cambey said that Derrick got tazered and they kept stomping on his head. Todd and Cambey were bragging and being tough. One of them was saying his fingers got blown off because he got tazered. Todd said that he hid the pole in the bush and ran back to the car.”

20 This evidence was not led by the Crown as an admission by the accused that he accepted the truth of what was asserted by Carney and Cambey. Moreover, there was no evidence in the Crown case at all that the accused did or said anything at the time that Carney and Cambey were speaking to Epenian to indicate that he also participated in the assault in some way. Under cross-examination by the Crown, with leave, Epenian said he could not say whether the accused was there or not when Carney and Cambey were speaking to him, despite the fact that he was with them on their return to Epenian’s house and that they all left in each other’s company some time later. While this evidence entitles me to find that neither Carney nor Cambey ascribed any role at all to this accused in the assault of the deceased, that may simply be explicable on the basis of their desire to elevate their own importance, as distinct from being evidence of the fact that the accused did not also participate and in some active way. In the circumstances, I am unable to afford significant weight, in the accused’s favour, to what Carney and Cambey told Epenian on the question of this accused’s criminal liability for murder.

21 In seeking to persuade me that the accused did in fact participate in the assault such as to establish his guilt as a principal in the second degree, the Crown relied on evidence in two discrete categories: firstly, what the deceased said to neighbours, police and ambulance officers on 29 January 2006 about the circumstances in which he was assaulted that morning, in particular that he at no time suggested that of the three men he repeatedly referred to as responsible for his injuries did he refer to one as a bystander, and secondly, what the accused said to his girlfriend 18 months or so after the death of the deceased about his involvement in the death, namely “I/We killed someone” and (moments later) “We bashed someone and they died”.

22 The Crown submitted that I would be satisfied that what the accused said to his girlfriend was an admission of guilt, in that, by saying that he or they “bashed” the deceased he is admitting to actively and physically participating in the assault that caused the death of the deceased, and that no finessing or unfurling of that language, or attempt by the accused’s counsel in submissions to alleviate the true import of what was said, diminishes its weight as evidence going to proof of the single issue that is in dispute on the question of his guilt of the charge of murder.

23 The Crown also submitted that what the accused told his girlfriend was entirely consistent with what is a fair reading of what the deceased said to various people prior to being transported to hospital, and that the conjunction of both categories of evidence would leave me in no doubt that the accused actively participated in the murder as a principal in the second degree.

24 It is necessary to set out the evidence upon which the Crown relies in some detail.

25 While treating the deceased in the back of the ambulance outside the unit, ambulance officer Wootton asked “What happened?”. It seems clear that at this time the officer was referring to the deceased’s head injuries given that he asked the question before the deceased’s shirt was removed and bruising on his chest and shoulder was revealed. The deceased replied:

“Three men came into my flat and did this to me using a baton and a Taser gun”.

26 At this time Wootton’s partner, officer Gordon, asked the deceased “Where were you hit with the Taser?” to which he replied “In the head”.

27 Gordon also asked if he knew who had done it (which I take to be a question also referable to the Taser). The deceased replied:

“No but there were three men. They knocked on the door. I opened the door and saw three men. They came into the flat where they assaulted me with a bat and a Taser gun”.

When asked where they hit him with a Taser gun, he replied “On top of my head”.

28 When Senior Constable Fullerton arrived at the scene he approached the ambulance where the deceased was being treated and asked him what had happened. The deceased replied:

“They got me with a baton and a Taser”.

29 Constable Fullerton asked “Who got you?” and the deceased replied “They were friends of Jason”. Fullerton asked “Did they break in?” and the deceased replied “No, I let them in”. Fullerton said “Who are they?” and the deceased replied “Jason’s friends”.

30 The deceased’s neighbour, Mr Annetts, then gave an account to police of what the deceased had said to him and Mr Bilson (Annetts’ roommate) shortly after the assault and before the arrival of the ambulance or police. Annetts said that the deceased told him:

“…[I] was bashed by three blokes”.

31 The deceased elaborated to Annetts that he had been “bashed and robbed”. He also indicated that they had hit him with a Taser and someone else had hit him over the head with an iron bar.

32 Mr Bilson, Annett’s roommate, asked the deceased what happened, to which the deceased’s replied:

“Three guys just home invaded me”.

33 In assessing the weight of this evidence it is appropriate to take into account, and I do, not only what the deceased said to each of the persons with whom he spoke on the morning of 29 January but also the circumstances in which he spoke and the identity of the person he was speaking to. Whilst he was obviously not rendered incoherent or incapable of responding meaningfully to questions asked of him despite the severity of his head injuries, he was, on the other hand, it seems to me, focusing on the mechanism by which he sustained the head injuries, namely by identifying the use of the iron bar and perhaps the Taser, as distinct from nominating or delineating how he sustained the superficial bruises to his limbs and trunk. Importantly, save for one interpretation of what he said to Annetts, he made no mention at all of how he sustained the bruising to his body (and was not asked). Those injuries may have been sustained in the process of his concerted efforts to resist the assault from the two men who were armed with weapons (as recounted by Carney in [19] above), or as a result of a separate assault from the accused at that time or perhaps, as the accused would have it, in the course of the skirmish which erupted when the deceased saw the Taser fall to the ground, a skirmish in which the accused participated by pushing the deceased before the spontaneous use of weapons by Carney and Cambey, and without their conduct being a continuation of that skirmish but independent of it.

34 Mr Stratton submitted that given the sustained violence that the deceased was subjected to by Carney and Cambey over what appears to be a relatively short period of time after the dispute erupted, he might not have been in a position to distinguish whether all three of the young men who entered his unit assaulted him or only two. He submitted that in the circumstances it is readily understandable that the deceased would assume all three were involved without his assumption being reliable evidence of that fact. In addition, the deceased’s profile as a drug dealer might also explain why he resisted providing police with detailed information about the circumstances in which the three men came to his unit, and that it might have been for that reason that he only spoke in generalities about the assault. Importantly, the deceased does not make any reference to seeing the Taser dropped to the floor or what I am prepared to accept was his likely response thereafter to the continued presence of the three young men in his unit once he realised that they had arrived armed with an item that had the potential to be used as a weapon in a robbery. His repeated refrain to the police officers that “every dog has his day” must, it seems to me, be understood in this context.

35 Where the forensic evidence is not capable of identifying whether more than one person was involved in inflicting the multiplicity of injuries to the deceased, I am of the view that the deceased’s contemporaneous statements, are not themselves determinative of the Crown case. The Crown does not submit otherwise. What the Crown does submit is that the deceased’s statements, read in conjunction with the accused’s account to his girlfriend compel the conclusion that he is guilty of murder. While there is some force in that submission, the question at issue in this trial remains a stark one, namely whether this relatively narrow compass of evidence is of sufficient weight to persuade me that the guilt of the accused has been established beyond reasonable doubt.

36 On 3 July 2008 the accused’s girlfriend told police that 12 months earlier (and 18 months or thereabouts after the death of the deceased) he wanted to end the relationship with her on what she regarded as the pretext that she was not treating him well enough. When she pressed him on the subject he said that in truth he felt he was not good enough for her. She went on to tell police that he said something about “I killed someone” or “We killed someone”. When she asked “why“ or “what” she said the accused said “We bashed someone and they died”.

37 The Crown submitted that the only available inference to be drawn from the circumstances in which he said this was that he was in a state of high emotional vulnerability, having carried the burden of guilt of what he had done in participating in the murder of the deceased for over a year to the extent that he needed to unburden himself and that, in the process, he gave an unguarded but truthful account of his involvement.

38 The accused’s girlfriend went on to say that some time later (she could not be specific about how long):

“I don’t know how long after but NC and I spoke about it again and it was at his house again. I am pretty sure I said,
“You need to tell me what happened”.

I had asked about it before but he never spoke about it. He got distant and didn’t want to talk. He was weird about phones, that cops have taps on phones and that.

He might have said the dead person’s name Derek but I am not sure. He said they went to his house. The dead person went psycho or ballistic or something. NC said that he pushed the guy, someone king hit him and something about a pole. I asked him again if he hit the guy. NC said, “No I only ever pushed the guy”.

NC told me that he left and I think he said something about the guy talking and the bloke wasn’t out of it. He said they didn’t know the bloke was dead until the paper came out the next day.”

39 The Crown submitted that as distinct from this exculpating him from criminal responsibility, the claim that he only pushed the deceased was in truth nothing more than a realisation by him that he had said too much in his earlier conversation with his girlfriend and that, in order to extricate himself from having admitted his shared culpability for the death of the deceased, he lied about the true extent of his involvement, first by telling her that he had only pushed the deceased and then later, when he was confronted by his mother after police told her of their suspicions about his involvement, telling his mother that and that although he was present when others assaulted the deceased he had not done nothing at all to hurt him.

40 The evidence from the accused’s girlfriend and mother needs to be assessed in the context of the fact that despite a thorough investigation by police for some months after the deceased’s death, it was not until May/June 2008, some two and a half years later, that they had any information about the identity of the men who were involved (or might have been involved) in the death of the deceased. The investigation reignited at that time, and ultimately culminated in the arrest of the accused (and Carney and Cambey) in July 2008 when, as a result of a reward being posted for information, Epenian and Grant were spoken to by police and statements were taken from them. Both young men named the accused as a person who had gone to the deceased’s unit on the morning he was killed, although neither of them implicated the accused directly in his death.

41 On 3 July 2008 police spoke to the accused’s girlfriend and asked her whether she could provide any information concerning the deceased’s death, in particular, whether the accused was involved. Initially she claimed that she had no information. However the following day she returned to the police station and told them that she did know something about the matter and gave a statement detailing the conversations she has had with the accused 12 months earlier concerning the death of the deceased. She also gave a detailed account of her various dealings with the accused over the immediately preceding days when the question of her going to the police, or the accused going to the police and telling them what he knew was discussed between them. These discussions are also the subject of a series of intercepted telephone conversations between the accused and his girlfriend and were tendered in evidence. They support the Crown case in the sense that, on one reading of them, they reveal a determination on the accused’s part that his girlfriend not involve herself by speaking to police, perhaps fearful that she would truthfully relate what he had told her. On the other hand, they also reveal what Mr Stratton submitted should be interpreted as a state of confusion and understandable fear on the part of the accused given that he had witnessed, at close hand, a brutal bashing by two young men who were friends of his and, despite not having joined with them in assaulting the deceased and causing his death, he nevertheless felt that he was morally responsible by being in their company when that happened. Perhaps he was also fearful, it was submitted, of the consequences were he to tell police what he knew of what they had done.

42 The accused comes before this Court as a young man with no criminal convictions. I understand the situation to be that he has only ever been charged with one offence, namely the charge upon which he stands indicted. At the time of the death of the deceased he was 17 years of age and 19 at the date of charge. Evidence of good character can, as a matter of law, be relevant in considering the likelihood of an accused being guilty of a criminal offence. In this case I regard the evidence of the accused’s good character of weight on the question of his guilt given what I have identified as the ambiguities that resonate in each of the two categories of evidence upon which the Crown relies to make out its case.

43 In addition however, there is other evidence that enables me to find, and I do so find, that the accused was not only a person who was without any reputation for violence but that in discussion with Grant some days after the death of the deceased was publicised, he was reportedly shocked and confused. Mr Stratton submitted that this was also in recognition of his involvement in that death by his being present in the unit when the deceased was fatally bashed and witnessing what his friends did to the deceased in the course of that vicious assault, an assault in which he took no purposive or active part. For this accused to be shocked and confused within days of the death, perhaps hours of the death, does not, to my thinking, sit easily with the attitude of a person who has actively participated in the assault that caused death or, as the Crown puts its case, a person who is liable for murder as a principal in the second degree by physically participating in that murder in some active way.

44 In all the circumstances, and having carefully analysed and considered the evidence upon which the Crown relies in support of guilt and the arguments advanced by counsel, I am not persuaded that the Crown has established the guilt of the accused beyond reasonable doubt. Accordingly, on the charge that he murdered Derrick Reid I find the accused not guilty.

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