R v Nicholson - [2006] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NICHOLSON
[2006] SADC 96
Decision of His Honour Chief Judge Worthington
10 August 2006
CRIMINAL LAW - EVIDENCE
Disputed facts hearing - defendant pleads guilty to (1) aggravated serious criminal trespass in a place of residence and (2) assault occasioning actual bodily harm - Crown alleges factor of aggravation re count 2 - not proved beyond reasonable doubt.

R v NICHOLSON
[2006] SADC 96

The defendant, Bronte James Nicholson, has pleaded guilty to two counts: (1) aggravated serious criminal trespass in a place of residence and (2) assault occasioning actual bodily harm, but there is a dispute about the facts constituting count 2, in which the victim was Sean Roberts.
The substance of count 1 is that at about midday on Sunday 30 March 2003 a group of men, including the defendant, entered the home of Cynthia Ann Weber at 11 Richard Avenue, Hackham. She lived there with her daughter, Nakalee, and her son, Damon. Apart from the Weber family there were also two men, friends of Nakalee, present at the house. One was known as “Johnboy”. The group of men, led by a man named Brenton Wood, barged into the house carrying various objects that could be used as weapons. Johnboy appears to have been the person they were looking for.
Sean Roberts lived next door at 9 Richard Avenue. While he was in his lounge room, he saw the men get out of two cars and assemble near the front of his house. His then partner, Donna Bradshaw, also saw them. When the group went into Number 11 Donna Bradshaw followed them because Cynthia Weber was her friend and she thought this looked like trouble. When she entered the house she saw that there was indeed a problem, so she came back to the front of the house and indicated to Mr Roberts that he should come into Number 11. Mr Roberts picked up a hammer and took it with him. He described it as a welder’s chisel hammer, and a photograph tendered in evidence shows that the handle was covered with a piece of bright yellow hose.
Evidence was given by Sean Roberts, Donna Bradshaw, Cynthia Weber, Nakalee Weber and the defendant. Some declarations were also before me by consent, together with a statement of agreed facts. Both Mr Roberts and the defendant suffered injuries. Mr Roberts suffered lacerations near his left eye and at the back of his head, and bruises and grazing to his left arm and both legs. While the defendant shares responsibility in count 2 for the injuries sustained by Mr Roberts on the basis of joint enterprise, there is no suggestion that he personally inflicted any of them. The defendant sustained injuries to his head that caused significant bleeding. The precise nature of his injuries is not recorded, but there is no doubt that these injuries were caused by Mr Roberts hitting him on the head with the hammer. The sole matter in dispute is whether, as part of his involvement in count 2, the defendant was attempting to hit Mr Roberts with a baseball bat just before he was hit with the hammer.
The combined evidence of Cynthia Weber and Nakalee Weber is that five or six men came into their home calling out for Johnboy. They could not be precise about the number, nor did they take particular notice of what each man did. However, the effect of their evidence is that some men, having entered through the front door of the house and gone along a short passageway which leads into an open kitchen/dining area, turned left into a hallway and went to Nakalee’s bedroom where Nakalee and Johnboy were at the time. Cynthia Weber came from the backyard into the kitchen/dining area where she saw a number of men milling around. When the men went down the hallway to the bedroom, Nakalee came out, pushed passed them and went into the kitchen. She got her mother, guided her into a corner near the dining room table and stood in front of her.
The evidence of Sean Roberts was as follows. When he heard car doors shutting he looked out the window and saw “a number of people, up to 10 plus” (Tx12) standing on his front lawn carrying various weapons including a baseball bat and a cricket bat. After Ms Bradshaw beckoned him over, he went through the front door of Number 11, along the short passageway and stood by some cupboards near where the passageway opens into the kitchen/dining area. He saw Cynthia and Nakalee near the dining table. He saw a young man immediately to his left and another man coming down the hallway from Nakalee’s bedroom carrying a baseball bat that appeared to be shorter than normal. He said that man was in his 50s to 60s and had “a major limp”. The defendant is 55 and has a noticeable limp which is a legacy of polio contracted when he was very young. No one else who was present fits that description and there is no dispute that the defendant was there. There can be no doubt that Mr Roberts was saying that it was the defendant who was approaching him with a baseball bat.
The evidence of Mr Roberts continued. The defendant approached with the bat over his left shoulder and swung it at him but missed because he, Roberts, leaned back. The defendant took another swing but again he avoided it by leaning back. However, as the bat passed over his head it hit the corner of the nearby cupboard. The defendant tried to hit him again but, once more, Mr Roberts avoided it by leaning back, and the bat hit some part of the wall. Photographs show two areas of damage that could be consistent with the surface being struck by a bat as described by Mr Roberts. I accept the evidence of Cynthia Weber that this damage was not there prior to the men coming to the house.
Mr Roberts said that he had been holding the hammer by its head alongside his leg. After the third swing he stepped forward and struck the defendant on the head with the handle. He struck him three times. He said that after the first blow the defendant stepped back, after the second he stepped back further, and after the third he fell against a fish tank near where Cynthia and Nakalee Weber were standing, and collapsed to the floor.
Immediately after that Mr Roberts was struck from behind on the head and he fell onto his knee. He was hit again in the back and went to the floor. He saw the defendant move in a way that made him think he might get up so, while they were both on the floor, he kicked him in the groin and then slid under the dining table where he was attacked further by men other than the defendant. He suffered the injuries described earlier. After a while, he heard someone say that they should go. He saw two or three men pick the defendant up and they all went out the front door. He spoke to the police when they attended at the house and again later at the Noarlunga Hospital where he gave a statement. I shall return to that in due course.
The defendant gave evidence. He told the court at some length how he became involved in this home invasion but I need not recount all the details. In short, his son’s car had been stolen from outside the family home a couple of months earlier, in January. It was found in a workshop with other stolen cars. The wheels and radio were gone and the back of the car was burnt. This car had been the pride and joy of his son who had put a lot of time and effort into it. He was devastated and I accept that the defendant felt deeply for him. By making enquiries he managed to identify Brenton Wood as the person in charge of the workshop and contacted him. He had not met him before. The cost of repairs was estimated at no less than $1,600 but his son could not afford that. The defendant took some items from Mr Wood’s workshop as ransom and, on behalf of his son, managed to obtain from him four payments of $200. He wanted to get another $800.
Then Brenton Wood’s car was stolen. He told the defendant that it had been taken by the same people that had taken his son’s car. On the morning of 30 March Mr Wood arranged to pick him up at his home and take him with some other men to a house. It is fair to say that the reason the defendant agreed to go with him was in the hope of getting the balance of $800, but he was aware that Brenton Wood was also seeking retribution for the loss of his own car. He said that Mr Wood had told him to bring a metal bar but he did not do that; he brought an 18-20 inch length of one inch diameter dowel. Brenton Wood arrived to pick him up in a small white car with three other men. One of them got into the defendant’s maroon Commodore station sedan and they followed Mr Wood’s car to Richard Avenue.
The defendant said that apart from Mr Wood, whom he had met only through his enquiries about the theft of his son’s car, he did not know these men. He said that he had the piece of dowel, Mr Wood had a cricket bat, someone else had a baseball bat, and another had some sort of weapon wrapped in a rag, towel or sock.
The defendant’s evidence of what happened in the house was as follows. While he was standing in the kitchen/dining area, two women, whom he now knows to be Cynthia Weber and Nakalee Weber, came down the hallway towards him. There was a melee in the hallway and the two women were trying to get out of the way and into the kitchen/dining area. He heard someone say: “Look out behind you”, and as he turned towards the passageway that comes from the front door, he saw a man “wielding a hammer in a windmill-type motion”(Tx186). The man was holding it by the handle which he described as being “vivid yellow”. There can be no doubt on the evidence that the person holding the hammer was Mr Roberts who, he said, came at him from the passageway without stopping.
The defendant said that he held the piece of dowel straight out in front of him to try to keep some distance between them but that had no effect, and Mr Roberts hit him with the hammer on the crown of his head. He believes he was struck by the head of the hammer. After the first blow he started to go down and he saw Mr Roberts raise the hammer and hit him again. He was still going down when he was struck a third time. After that he could see and hear what was happening but he could not move. The next think he remembers is being at home in his lounge room covered in blood. He does not know how he got there. He denies that he swung any weapon at Mr Roberts and, in particular, he denies that he ever had a baseball bat in his hands at that house.
The allegation that the defendant swung the bat at Mr Roberts is a factor of aggravation and it must therefore be proved by the Crown beyond reasonable doubt.
Cynthia Weber and Nakalee Weber were both in the kitchen/dining area. The evidence of Nakalee Weber is not helpful on the point in dispute. When she first saw Mr Roberts he was already on the floor: half under the table and trying to get further under while a number of men tried to hit him with weapons. On any version of events, that did not occur until after Mr Roberts had hit the defendant on the head with the hammer.
In her evidence, Cynthia Weber said that, while she was in the corner with her daughter in front of her, she saw an older man coming down the hallway towards Mr Roberts and that he was limping. Once again, there can be no doubt that the person she means to describe is the defendant. She said that there were a lot of people around this man and (Tx71) he was “just swinging something, just the motion he was doing going backwards and forwards towards Sean”. She demonstrated someone swinging an object horizontally backwards and forwards in front of their body. She did not know what this object was or what it was made of. On the face of it, this evidence lends some support to what Mr Roberts said, but there is a problem. Before dealing with it I need to refer to some other evidence.
Donna Bradshaw said in evidence that, among the men she saw at the front of her house, there was an older man who had a noticeable limp. She told the court that when she got to the kitchen/dining area she saw this man near the doorway to Nakalee’s bedroom. The hallway was relatively dark but, against light coming through the open door of the bedroom, she could see the silhouette of him “swinging at someone” (Tx100). She then clarified that to say that he “was swinging at Sean” (Tx101). She was near the kitchen/dining end of the hallway and this man and Mr Roberts came towards her down the hallway with the man swinging something from his left to his right. Once they were in the open area of the kitchen/dining area, she said, the man took a swing at Mr Roberts with whatever he was holding but Mr Roberts ducked and it missed. She said that he swung “three times that I can think of” (Tx106). She then saw Sean Roberts hit that man with something (at that time she did not know what it was) saying at (Tx107):
I think he only hit him once. He might have hit him twice. I don’t know. The man fell down against the wall, slid on to the aquarium which made (sic) blood everywhere.
After that, she said, Mr Roberts was just standing there, but she thought he kicked the man on the floor, and as he did so, he himself was struck on the back of the head and went down to the floor. She said that she was very upset because she thought Mr Roberts had killed the other man. The other man she is speaking about is clearly the defendant.
In cross-examination by Mr Nitschke, for the defendant, Ms Bradshaw maintained this version of the events until he put it to her that the man with the limp did not swing anything at Sean Roberts and asked her what she had to say about that. There was a very long pause (not noted in the transcript) before she said “I’ll say I saw him swing. Sorry.” (Tx125) Answers to questions then made it clear that Mr Roberts had been prompting her memory of the events of that day. Further questioning by Mr Nitschke revealed, however, that it was more serious than that.
It became clear from her answers that she had given the court a version of events that had been vetted and approved by Mr Roberts so that it would accord with his evidence. This incident occurred more than three years ago and they no longer live together. However, I accept her evidence that as recently as the day before she gave evidence, while they were both waiting outside court, he monitored and tested the version she was going to give, to the point where she believed he was trying to make sure that she got “certain parts of the story right” (Tx126) in the sense that it would accord with what he was going to tell the court. She said that the problem she had now was that she could not say which parts of it she remembered independently and which parts were the result of discussion with Mr Roberts.
In the result, I am unable to use Ms Bradshaw’s evidence to assist one way or the other with regard to what happened at the house. However, what she said about Mr Roberts has a bearing on the value of his evidence in which there were some matters that were already a cause for concern about his reliability.   I summarize them as follows:
·Some months after this event, Mr Roberts tracked down the defendant’s home address. He informed the police, but when nothing happened he parked near the defendant’s home on two days in October 2003 and took video footage of the defendant, his maroon station sedan and what he believed was the small white car he had seen on 30 March. In identifying the man filmed (the defendant) as the man who had swung the bat at him, he said in evidence that this person had a very noticeable limp (obvious on the film) and that, as he was about to film him, he not only recognised his hair but realised that the clothes he was wearing were identical to those he had been wearing on 30 March.
About an hour after the incident, while Mr Roberts was at Noarlunga Hospital, he gave a statement to a police officer in which he described in some detail what had happened from the time he saw the men standing outside his house until they left Number 11. He gave a detailed description of three men, including the man who had swung the bat at him, but he told the police officer that he could not remember what that man was wearing. When Mr Roberts was asked in cross-examination if he could explain the discrepancy between his evidence about the man’s clothing and what he told the police officer, he said that at the time he spoke to the police he was suffering from concussion. There is no evidence that Mr Roberts suffered concussion but I will treat this as his way of saying that he was suffering the effects of the blow to his head and the other injuries.
I cannot accept his explanation. The detail and precision of the description he gave to the police officer about many things, including his description of the defendant, is inconsistent with that. Further, in a statement to police on 23 October 2003, after he had taken the two videos, he said that he recognised the defendant “because of the limp as well as the face”. No mention of clothing. However, in that statement he goes on to say that after he showed the first video to Cynthia Weber, Nakalee Weber and Donna Bradshaw:
Cynthia told me that she did not recognise his face but recognised his clothing. Nakalee did not recognise him at all. Donna recognised the clothes and the limp and then threw up.
In light of all this, I am not satisfied that he did take notice of what the defendant was wearing on 30 March. The probabilities are that he adopted the observations of Cynthia Weber and Donna Bradshaw and gave it as his own evidence.
·In his statement to the police on 30 March 2003 Mr Roberts said there were about six males out the front of his house before they walked to Number 11. In that same statement he described seeing the two cars leave, a white hatchback with three to four men in it, and a maroon/burgundy station wagon with two or three men in it. That also puts the number of men at six or thereabouts.
As I have mentioned already, in evidence-in-chief he spoke of “up to 10 plus” standing on his front lawn. In cross-examination, after he reaffirmed that there were about 10, he was asked whether there could have been six. He said: “No, there definitely wasn’t six” (Tx47). When he was reminded of what he had told the police officer on the day of the incident, he said that he thought he had revised that later by telling the police it was 10. Although he gave later statements to the police, in October 2003 and September 2005, there was no such revision. His attention was drawn to that and then when Mr Nitschke showed him the statement he gave on 30 March 2003 (signed on 29 April 2003) the following occurred(Tx48):
Q.    Perhaps look at the first paragraph and the second paragraph on the front page.
A.    It says ‘about six males’.
Q.    As time has gone by, do you recall there being more males?
AI do, yes. I actually recalled it at the time, I said at the time when I looked out the window I saw approximately six, about six males.
QI know that, but has your memory of how many people were there on your front lawn improved as time has gone by.
ANo, I just recall different things. I saw more people walk across my front lawn. When I first initially looked out the window, which is what the officer asked me, he said ‘How many people did you see?’, and I said ‘I seen about six people’, but more than that walked across my front lawn, which wasn’t put into the statement.
When pressed further he said (Tx49):
I can’t recall. I was having stitches put into my head at the time, and I was in major pain, so I don’t recall what I said.
The inconsistency in this answer is that only moments earlier he purported to remember verbatim the conversation he had had with the police officer. Whether there were six men, 10 men or some other number that went into 11 Richard Avenue is not the issue. It was obvious that Mr Roberts had forgotten exactly how many there were, and that is not surprising after three years. However, although his attempt to explain away the difference between his evidence and what he told the police was pointless, it showed a lack of candour.
·When Mr Roberts gave evidence about the defendant swinging the bat at him, he made the point that the bat struck the wall after the second and third swings. He made no mention of this in his statement to police at the hospital. By itself that may not matter. But no one else mentioned it in evidence and he was not aware that there were two areas of damage to the wall until it was drawn to his attention by Cynthia Weber after he returned from the hospital. Having regard to the matters I have just mentioned I cannot be satisfied that this is not another example of him bolstering his evidence.
It was submitted by Mr Floreani, for the Crown, that the damage to the wall was consistent with Mr Roberts’s evidence about the bat hitting the wall and thus it supported his version of what happened. I accept that this is one possibility. But there is another. It is a reasonable possibility that the damage resulted from a number of men having weapons such as a cricket bat, baseball bat and other objects, and knocking them against the wall in the general melee or in the course of the attack on Mr Roberts. Measurements were not given but it is apparent from the photographs that the relevant area is not spacious and would have been quite crowded. As this hypothesis has not been excluded, I cannot draw the inference sought by Mr Floreani.

These aspects of his own evidence, combined with what Ms Bradshaw told the court about Mr Roberts manipulating her version of events, leave me with serious doubt about his reliability as a witness. Mr Nitschke submitted that Mr Roberts had a motive for fabricating a story about being threatened by the defendant before he hit him with the hammer. It is common ground that in March 2003 Mr Roberts was subject to a sentence of imprisonment for five months imposed on 8 August 2002 which had been suspended while he complied with the terms of a good behaviour bond for two years. He knew at that time that, if he was in breach of the bond, he was at risk of being required to serve that sentence. It was submitted that I should infer that Mr Roberts must have known he might face that sentence if he was found to have struck the defendant with the hammer without any direct provocation by the defendant, and that, therefore, he had a motive for embellishing the story by alleging that the defendant had attempted to hit him first. I note the submission but it is unnecessary for me to find a reason for Mr Roberts embellishing his story. There could be any number of reasons why a witness might not be accurate or reliable. The fact of the matter is that for the reasons given I am not satisfied about his reliability.
I now return to Cynthia Weber’s evidence. Although her description of the incident is a little different from the evidence of Mr Roberts, it tends to support his version, namely that the defendant (whom she described in evidence as limping) was swinging a weapon at him. However, as I said earlier, there is a difficulty. She gave a statement to the police within an hour or so of the incident. In it she described the men in the house and said that Mr Roberts was standing in the kitchen yelling: “Come on guys, just come here.” She said that about three men came back together along the hallway from Nakalee’s bedroom into the dining room and that all three attacked Mr Roberts with weapons. She described him hiding under the dining room table and three men hitting him. Unlike her evidence, there is no mention in that statement of a man with a limp coming down the hallway towards Mr Roberts swinging something. Indeed, although she described each of the three men to the police, there is no mention of anyone with a limp.
After Cynthia Weber had given that statement to the police, Mr Roberts discussed with her, as well as with Donna Bradshaw, what had happened. In particular, there were detailed discussions about it when he showed them the videos taken in October 2003. Bearing in mind what Mr Roberts did with regard to Ms Bradshaw and her evidence, and the absence of any reference to an incident involving the defendant limping and swinging something in her statement to the police, I cannot be satisfied that Cynthia Weber’s evidence about it is her own independent recollection. I have no reason to doubt her honesty, but there is a strong probability that her evidence on this topic is partly reconstruction based on discussions with Mr Roberts and therefore it does not assist.
The end result is that without the support of Cynthia Weber and Donna Bradshaw, the case for the Crown in relation to the matter in dispute rests on the evidence of Mr Roberts alone.
Against this is the evidence of the defendant. I formed the opinion that he was truthful and gave evidence to the best of his recollection. He was candid and, on a number of occasions, freely made admissions that were against his interests. I accept him as a reliable witness. For the reasons given, I could not prefer the evidence of Mr Roberts to that of the defendant. In the result, I find that the defendant was carrying a piece of dowel and not a baseball bat, and that the only relevant use he made of it was to put it out in front of him in an attempt to keep Mr Roberts at bay.
It follows that as the Crown has not established beyond reasonable doubt that the defendant attempted to strike Mr Roberts with a weapon, he will be sentenced on the basis that his involvement in count 2 was as part of a joint enterprise.