R v Steven Balmer - [2009] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BALMER
[2009] SADC 52
Reasons for Ruling of His Honour Judge Tilmouth
24 April 2009
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Defendant pleaded guilty to committing theft using force and carrying an offensive weapon; a factual dispute arose when it was alleged the defendant exposed the knife blade and threatened the victim whilst committing the theft.
Held: These allegations were not proved beyond reasonable doubt as the evidence is inconclusive.
R v Copeland (1997) 194 LSJS 1; Mule v The Queen (2005) 79 ALJR 1573; MWJ v R (2005) 80 ALJR 329, referred to.

R v BALMER
[2009] SADC 52
The issue

Steven Balmer pleaded guilty and was committed for sentence in this court, by a Magistrate on 14 July 2008, on one count of committing theft using force and one count of carrying an offensive weapon. These offences were committed at about 4.20pm on Tuesday, 4 March 2008. A factual dispute arose as to the circumstances in which the offence was committed, which is the subject of consideration in these reasons.
Factual Background
The circumstances were that on that day, the victim then just 13 years old, was riding his bicycle in the streets near his home, to which he had just returned. He left it on the ground outside the front door. A barking dog alerted him to the fact that a person had mounted the bike and begun to ride off. He yelled for him to stop and gave chase, eventually standing in front of him. There is no dispute that this was the defendant.
The areas of disagreement relate to what next occurred. The prosecution allege that he then threatened the victim by insisting, “do you want to get stabbed?”, whilst at the same time removing a knife from a side pocket of his track suit pants, which he proceeded to unfold. The defendant denies using these words or exposing the knife blade, although he admits producing it.
The victim deposed to being scared and consequently moving out of the way. The defendant rode home where he was apprehended shortly afterwards. The pushbike was recovered undamaged. The defendant was 18 years of age when these events occurred and was 19 years when he gave evidence.
The factual dispute
The victim described the events during the course of his evidence in terms summarised earlier. He said he ran across the front garden into the path of the bike bringing it to a standstill within the confines of the front yard. He was then about a step and a half in front, as he described it. He gave evidence touching the critical factual dispute:[1]
[1] T11.27-.38, 20/11/08
QWhat did he do after that?
AHe said to me ‘Do you want to be stabbed?’.
QYou mentioned he put his hand in his back pocket. What did he then do with his hand?
AHe pulled a knife out
QI will take you back to when he said ‘Do you want to be stabbed?’. Do you remember what tone of voice he used.
AIt was kind of angry but not really.
QSo ‘kind of angry but not really’.
AYes.
QWhen he said those words how did that make you feel.
AScared.
Later his evidence in chief continued:[2]
[2] T12.17-13.26, 20/1/08
QYou say he pulled a knife out; is that right.
AYes
QWhich part of the knife did you see first.
AThe handle.
QIn which hand was he holding the knife.
AThe right.
QWhen you saw the handle can you tell his Honour how long the handle was.
AAbout two inches.
QTwo inches is about that long (indicates); is that right, or do you think it was longer than that
AI only saw a little bit of it but I was pretty sure it was longer than that.
QCan you indicate how long you think the handle of the knife was.
AI didn’t see all of it so it’s kind of hard so I can’t.
QWhen you say two inches is that just the part of the handle that you saw.
ANo.
QWhen you said two inches can you tell his Honour precisely what that was.
AI could see a little bit of the top and a little bit of the bottom.
QDid you see what colour the handle of the knife was.
AIt was brown
QDid you get a clear view of the knife in his hand.
AYes
QDid he then do anything with the knife.
AYes, he put his left hand over it and pulled out a blade.
QHow did he pull out the blade.
AHe moved his right hand back a little bit, put his left hand over and I think he used his thumb to flick it out.
HIS HONOUR
QUsed the thumb to flick it out.
AI’m pretty sure he did.
XN
QUsed his thumb to flick what.
AA blade.
QDid you see the blade.
AYes.
QHow long was the blade you saw.
AI was about two inches.
QTwo inches long or wide.
ALong.
QDo you know how wide it was.
AIt could have been somewhere, an inch wide, I’m not sure.
The knife itself was produced into evidence. It is not what might have been called a flick knife. On top there is a button, which when depressed, locks the blade to the closed position. This is not used for the purposes of opening the blade, as a flick knife might be. It is the same colour, size and description as the knife seized from the defendant. The mechanism is such that it required a two handed operation to open and unfold the blade from the closed position; it would be impossible to do so one handed as it might otherwise have been with a flick knife. As such this is not an unusual operation so far as knives, particularly pocket knives, are concerned. The victim was cross-examined putting the defendant’s denials, but nothing emerged, throwing into doubt his evidence.
The defendant gave evidence in which he said he just happened to have the knife on him at the time – otherwise he “hardly ever” carried a knife. He decided on the spot to steal the bike in order to sell it to a friend as he happened to walk by. As he was doing so the victim, according to him:[3]
[3] T23.15.31, 20/11/08
A… came out, saying “What you are you doing? What are you doing? Don’t take my bike, don’t take my bike.” I’m taking it. I’m taking it.” He said “Don’t take my bike, don’t take my bike” and stood in front of it.
QAt that stage he wasn’t in front of you.
ANo.
QDid you say anything back to him at that stage.
A“I’m taking it, I’m taking it.”
QYou said he jumped in front of you and the bike.
AYep.
QDid he say anything then.
A“Give me my bike back, give me my bike back.”
QWhat did you do at that stage.
AI went into my right front pocket, pulled out the knife, it was closed in my fist, said “I’m taking it, I’m taking it”, and he said “Yeah” and stepped to the side and I rode off (INDICATES).
He denied at any stage extending the blade or making the alleged verbal threat. He was cross-examined and that too produced nothing of significance or to cause any doubt as to his accuracy of recall or reliability. The court is to be reminded that his evidence is not to be discounted simply because he is an accused person: R v Copeland.[4]The court is therefore left in a situation on the face of this conflicting evidence, of not knowing where the truth lies.
[4] (1997) 194 LSJS 1
Analysis
Ms Lam for the prosecution makes the strong point that the victim could not have described the knife or its operation in such detail, unless he had seen the blade opened. The submission was that the description of the mechanism contained such a degree of esoteric knowledge that it must have been true. The evidence proves conclusively that the victim never saw the knife again until giving evidence, so that there is no question of his recollection being “tainted” and there is no risk of his recollection being substituted from another source. The victim deposed in a subsequent written statement that he was not very familiar with knives.
For his part the defendant was interviewed that evening approximately three hours later. He candidly admitted stealing the bike. He told the police the blade remained shut and that he would have “tried to push him away and just tried to ride off” had he been further confronted.[5] So far as one can judge from the video recording of this interview, these answers were fairly spontaneous and internally consistent, although not in themselves, completely convincing. One must also bear in mind that these statements were self-serving: Mule v The Queen.[6] As the defendant was not cross-examined, there is a further difficulty of making adverse findings to him as to these statements: MWJ v R.[7]
[5] Record of interview Q93-Q96, Q136
[6] (2005) 79 ALJR 1573 at [22]
[7] (2005) 80 ALJR 329 at [39]
Conclusions and ruling
Although at first there is some force in the point made by Ms Lam, the attributes of the knife and the manner of releasing the blade are not so characteristic as to lead to the exorable conclusion that they could only have been so described by the victim had the blade been opened. As the victim was so young and confronted by an older man with a knife, he might well have jumped to the conclusion that he was threatened in the manner suggested in his evidence.
In this situation, although the court has no particular reason to disbelieve either witness and because the description given by the victim does not conclusively prove that the events happened as alleged, there is necessarily a reasonable doubt as to the two issues in contention. The court so rules.