R v Todkill
[2018] ACTSC 379
•27 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Todkill |
Citation: | [2018] ACTSC 379 |
Hearing Dates: | 26 – 27 November 2018 |
DecisionDate: | 27 November 2018 |
Before: | Burns J |
Decision: | See [21] – [22] |
Catchwords: | CRIMINAL LAW – JUDGE-ALONE TRIAL – Verdict - plea of not guilty – one count alleging assault occasioning actual bodily harm – plea of not guilty – statutory alternative of common assault – no evidence called by the accused – onus of proof on the Crown – consideration of evidence called by the Crown – whether there is reasonable doubt that the assault occasioned by the accused caused actual bodily harm |
Parties: | The Queen (Crown) Hayden Ashley Todkill (Accused) |
Representation: | Counsel B O’Kane (Crown) R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 146 of 2018 |
BURNS J:
The accused Hayden Ashley Todkill was yesterday, 26 November 2018, arraigned on an indictment dated 2 July 2018 containing one count, alleging that on 17 February 2018 at Canberra, in the Australian Capital Territory, he assaulted Clinton Thurling and thereby occasioned to him actual bodily harm. To that charge he pleaded not guilty. The accused had previously executed an election for trial by judge alone. Accordingly the matter continued to trial before myself yesterday and today without a jury. The Crown case concluded this morning, 27 November 2018, and the accused called no evidence.
The accused, of course, is not required to give evidence in these proceedings because the onus of proof is on the Crown. The Crown must prove each and every element of the offence charged, to the standard of beyond reasonable doubt. The accused is not required to prove anything in these proceedings, and in particular, is not required to prove himself innocent of the charge. I should note, at this point, that there is a statutory alternative. As such, it does not appear on the indictment, but the statutory alternative is the offence of common assault.
Through his counsel, at the commencement of the trial, the accused communicated that he was prepared to plead guilty to the charge of common assault but the Crown was not prepared to accept a plea to the charge of common assault, in satisfaction of the indictment. Accordingly, the matter proceeded before myself as a contested trial.
The charge arises out of an incident which occurred on 17 February 2018 at the Hellenic Club in Canberra. On that day, the complainant, Clinton Thurling, was drinking at the Hellenic Club in the early hours of the morning. I am satisfied, on the evidence, that he was the subject of an assault in the outdoor area of the club which has been variously described as the beer garden or the smoking area. It is not contended by the Crown that the accused was involved in that assault. It is clear that this assault was a very violent assault, in which the complainant was kicked and punched to the face, as well as hit on a number of occasions to the facial area, with bar stools, which were placed in that area of the club for use by patrons.
I am satisfied that the complainant suffered significant injury to his face and also less significant injuries to his body, as a consequence of that assault. There have been some differences in the evidence which has been elicited from the Crown witnesses, as to whether the complainant was bleeding when he re-entered the club after this initial assault. However, I am satisfied beyond reasonable doubt that the complainant was bleeding from the area of his head or face and was bleeding heavily, at the time he re-entered the club.
A further altercation took place inside the club. It appears that this altercation was with different people from the ones who had been involved in assaulting the complainant in the beer garden area. Some 11 witnesses were called by the prosecution, to give evidence of what they saw with regard to this second assault. It is fair to say, I believe, that all witnesses were doing their best to give an honest and accurate description of what they saw, but there were clearly very significant differences in the versions of events given by the different witnesses. That is not surprising. As the Crown submitted, different witnesses may have seen different parts of the events, or may have seen it from a different perspective. Some of the witnesses of course were intoxicated and it is also very clear that this event, the second assault, which occurred inside the club, occurred very quickly.
I see no profit in going through each of the witness’ testimony in detail. I am satisfied that the accused assaulted Mr Thurling inside the club by delivering multiple punches to him, mainly while Mr Thurling was on the ground. In that regard there had been a difference in the evidence, on behalf of some of the prosecution witnesses. Some of them gave evidence that the event started whilst Mr Thurling was on his feet and that there were some punches delivered at that time.
Some, indeed, went so far as to say that Mr Thurling was also punching at that time. It seems to be common ground that ultimately Mr Thurling ended up on the ground and that the accused then continued to punch Mr Thurling whilst he was on the ground. I am therefore satisfied that the accused assaulted Mr Thurling, there being no suggestion that there was any lawful purpose or reason for the punching by the accused, to Mr Thurling.
There was also evidence which suggested that the accused had kicked or thrown a chair at Mr Thurling, as part of this incident. I am not satisfied beyond reasonable doubt that any kicks, which may have been attempted by the accused, did land on Mr Thurling.
10. I am also not satisfied beyond reasonable doubt that a chair was thrown in the way described by one of the witnesses, as hitting the complainant in the face. Most of the portions of the transcript I was taken to by the Crown, in the course of her final address, establish that the accused assaulted Clinton Thurling. As I have said, I am satisfied beyond a reasonable doubt that he did so.
11. The question is whether the Crown has proved beyond reasonable doubt that the assault caused actual bodily harm to Mr Thurling. Ordinarily, there is very little difficulty in establishing that an assault has caused actual bodily harm. This is because the victim will usually be able to say where they were hit and whether they had an injury to that area of their body, after the assault which had not been present before the assault. This particular case is more complicated because we know that the complainant had been assaulted to that part of his body, in the first assault in the beer garden, that was subject to the second assault by the accused inside the club.
12. The Crown is not able to point to any particular injury amongst those that are set out in the report of Dr Barry and also which are revealed in the photographs of the complainant, which have been tendered in evidence, as being injuries that were inflicted by the accused in the assault on Mr Thurling. That is not fatal to the prosecution case because in an appropriate case, the Court may be able to infer that a blow has caused some harm, even if the Court is unable to determine, beyond reasonable doubt, which precise injury was occasioned by the accused’s actions. In other words, even if there were multiple injuries inflicted by multiple assailants in different incidents, the Court may still be able to infer that the accused was responsible for some injury, albeit that it cannot be precisely identified.
13. The Crown asks me to infer that the assault by the accused inflicted actual bodily harm on Mr Thurling, due to a number of circumstances.
14. Firstly, the number of blows that were delivered. In that regard, it is impossible to be precise but I am satisfied that at least five punches were delivered by the accused to Mr Thurling in rapid succession. It is not possible to say, beyond reasonable doubt, whether all of those punches landed to the face area of the complainant. A number of witnesses said that they could say nothing more than that the punches appeared to land in the upper body area of the complainant. I am satisfied that some of the punches, which were thrown by the accused, did land on the face of the complainant.
15. The Crown also submits that I should take into account the description of those blows. I accept that that is an important circumstance. I accept that those blows were delivered with a degree of force.
16. Thirdly, the Crown submits that I should take in to account the injuries which the complainant sustained, as described in the medical report by Dr Barry and also shown in the photographs. Considerable care has to be taken though in that regard because of the fact that, in this particular case, it is not possible to work backwards from the fact that there was an injury, to making an inference that the injury was occasioned by an action by the accused.
17. The Crown referred me to the evidence of Michael Kirkham. Mr Kirkham accepted that the complainant was covered in blood after the first assault. He said, however, that the complainant was coherent. After the second assault, he said that he saw a large dint in the complainant’s forehead. That is certainly an important matter but in my opinion it is not conclusive. Because, in his evidence, the complainant referred to having a dint or crevice in his forehead which was occasioned by reason of the swelling around two injuries to his forehead. The dint was in fact the valley between the swelling on two sides of his forehead. There is no medical evidence to say that the swelling could not have come up in the period of time between Mr Kirkham seeing the complainant after the first assault, and then seeing him again after the second assault. However, as I have said, one must take care in how one uses the observation of Mr Kirkham.
18. There was certainly evidence by the complainant about an increase in his pain level. But again, one must be careful about that because there is no medical evidence before me to suggest that an increase in pain level over time could not have occurred with respect to the injuries that had been sustained in the first assault. Indeed, one might expect that immediately after the assault there may be relatively little pain but that might in fact increase as the shock wears off.
19. There was also evidence capable of establishing that there was an increase in bleeding by the complainant, after the first assault, or between the first assault and the end of the second assault. Again, one must be careful about that because it is difficult to infer that this increase in bleeding must have been caused by a new injury or some exacerbation of the existing injury. One would have to rule out the possibility that the physical activity that had occurred in the second assault and any stress caused to the complainant, in the course of that second assault had not caused increased bleeding from the already existing injuries.
20. I find myself in the position that whilst I think it probable and perhaps even highly probable that the blows inflicted by the accused would have caused some injury or hurt to the victim, there is some lingering doubt in my mind to which the accused is entitled to the benefit.
21. On that basis, I am not satisfied beyond reasonable doubt that the assault by the accused occasioned actual bodily harm to the complainant.
22. It follows of course, from what I have said, that I am satisfied beyond reasonable doubt that the accused is guilty of the statutory alternative of common assault.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 24 June 2019 |
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