R v Vimahi; R v Grech
[2017] ACTSC 97
•20 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vimahi; R v Grech |
Citation: | [2017] ACTSC 97 |
Hearing Dates: | 27-31 March 2017, 10-13 April 2017 |
DecisionDate: | 20 April 2017 |
Before: | Walmsley AJ |
Decision: | See [136]-[137] |
Catchwords: | CRIMINAL LAW – OFFENCES AGAINST THE PERSON – Grievous bodily harm – possession of a prohibited firearm- circumstantial evidence – alibi – Judge alone trial – shooting – right to silence. |
Legislation Cited: | Bail Act 1992 (ACT) s 56A Crimes Act 1900 (ACT) ss 19, 20, 21, 23, 49 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331 R v Griffiths [1999] SASC 70; 103 A Crim R 291 Swan v The Queen [2016] NSWCCA 79 |
Parties: | The Queen (Crown) Mr Lihai Vimahi (Accused) Mr Daniel Grech (Accused) |
Representation: | Counsel Mr M Fernandez and Mr J Walker (Crown) Mr P Bevan (Accused Vimahi) Mr J Purnell SC (Accused Grech) |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan and Co Solicitors (Accused Vimahi) Boxall Legal (Accused Grech) | |
File Numbers: | SCC 230A of 2015, SCC 232 of 2015 (Accused Vimahi) SCC 278 of 2016, SCC 279 of 2016 (Accused Grech) |
WALMSLEY AJ:
The Trial
This was a judge alone trial.
Each accused filed an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT) (‘Supreme Court Act’). Mr M Fernandez and Mr J Walker represented the DPP. Mr Vimahi was represented by Mr Bevan and Mr Grech by Mr Purnell SC and Ms Boxall.
Before commencing the trial, I was satisfied each accused had received legal advice about his election for a judge alone trial.
There were three counts on the indictment, all three relating to Mr Grech and counts one and two relating to Mr Vimahi.
Counts one to three charged as follows:
The Director of Public Prosecutions, who prosecutes in his behalf for Her Majesty the Queen, informs the court and charges that on 12 March 2015 at Canberra, in the Australian Capital Territory, Lihai Vimahi and Daniel Grech intentionally inflicted grievous bodily harm on Adam Cranfield.
And further, that on 12 March 2015 at Canberra, aforesaid, Lihai Vimahi and Daniel Grech discharged a loaded firearm, so as to cause another person reasonable apprehension for his or her safety.
And further, that on 12 March 2015 at Canberra, aforesaid, Daniel Grech possessed a prohibited firearm and was not authorised by a licensed permit or otherwise by the Firearms Act 1996 (ACT) to possess the firearm.
Each accused when arraigned pleaded not guilty to each of the charges against him.
Summary of the Case
Count one concerns an intentional shooting of Mr Adam Cranfield in Stirling on the evening of 12 March 2015. The evidence establishes that at about 10 pm that night, Mr Cranfield was sitting at the back of the house having a cigarette, when a car drove up the drive leading to the backyard of the house and shots were fired in his direction, causing him gunshot wounds from a .45 handgun and a 12-gauge shotgun. The car then drove off quickly.
Mr Cranfield made a good recovery. The Crown says ballistic, DNA and confessional evidence links Mr Grech to this event and that ballistic evidence and evidence from Mr Vimahi’s ex-girlfriend LD, together with the finding by police of a 12-gauge shotgun at Mr Vimahi’s home with his DNA on it, together with photographic evidence linking him to the gun, and his association with Mr Grech, links Mr Vimahi to this offence.
Neither accused contested the fact that Mr Cranfield had been shot by a .45 handgun and a 12-gauge shotgun that night when sitting at the back of the premises, but they denied that they were involved in the shooting and that any shooting had caused Mr Cranfield grievous bodily harm.
The Crown said the shooting was related to a dispute between two motorcycle groups, the Comancheros, of which the accused were members, and the Rebels, of which Mr Cranfield had once been a member.
The second count involves the discharge of a shot from a 12-gauge shotgun in the direction of the front window of a house in Kambah on the evening of 12 March 2015 when that house was empty. This offence was said to have occurred just a few minutes before the event in the first count. The Crown said the intended victim of this shooting was Mr Dean Smith, who was said to be a Rebels member.
Ballistic evidence showed only that Mr Vimahi’s gun could have fired the shot. The Crown otherwise relied for proof of this count on the association between the two men, bystanders’ description of a car loosely fitting the description of a car hired by colleagues of the accused the day before in Canberra, and a motive to harm Mr Smith. Apart from denying involvement in this offence, both accused said the offence charged was unavailable on the evidence because the alleged victim, Mr Smith, was not in the house at the time of the shot and was not called by the Crown to give any evidence, so the requirement of the section, that the shot fired was “so as to cause another person reasonable apprehension for his or her own safety” was not satisfied.
The third count involved a .45 handgun Mr Grech had with him until just before he was arrested in Adelaide two days after these events. The Crown relied, for proof of this offence, on confessional evidence from Mr Grech in a telephone call from a friend when he was in custody, together with the presence of his DNA on the gun and its magazine and evidence that he had no authority to hold the gun.
As to the first two counts, the Crown asked me to infer the existence of an agreement between the two accused to commit the offences, the relevant law being s 45A of the Criminal Code 2002 (ACT) (‘Criminal Code’).
Statutory Alternatives
Pursuant to s 49 of the Crimes Act 1900 (ACT) (‘Crimes Act’) the Crown relied on alternative statutory counts to count one, namely recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act, alternatively wounding, contrary to s 21 of the Crimes Act, and alternatively intentionally or recklessly inflicting actual bodily harm, contrary to s 23 of the Crimes Act.
Geographical Locations
There were four Canberra addresses relevant to the charges; one was in Casey, one in Kambah, one in Stirling and one in Ngunnawal. The evidence called by the Crown dealt with each one of them in turn.
A search in Casey
The evidence began with an event the day before the offences, when police went to Mr Grech’s Casey home to arrest him for a breach of bail conditions.
Detective Leading Senior Constable Mahoney went to an address in Casey with Constable Ellul on the morning of 11 March 2015. Mr Grech was living there at the time with his girlfriend, NS. Police then arrested Mr Grech for breach of bail conditions and took him to the watch-house, preparatory to his being taken to the Magistrates Court where they were required to take him in compliance with s 56A of the Bail Act 1992 (ACT) (‘Bail Act’). On the same day, police received a complaint that Mr Grech had made threats to Mr Dean Smith in which he had threatened to use a .45 revolver.
In the afternoon of 11 March 2016, police applied for a search warrant to search Mr Grech's house. The offences alleged in the warrant were that he had that day made demands on Mr Smith, accompanied by threats. It was further alleged that he had unauthorised possession or use of firearms. A search was conducted of his house. Mr Grech's brother arrived part of the way through the search, and he remained while the search continued.
Mr Grech was granted bail that day in the Magistrates Court and he returned home shortly before the search had concluded.
When police executed the warrant, they took possession of a phone and they photographed some cards found in a wallet near a bed in one of the three bedrooms in the home. The phone and the cards belonged to Mr Vimahi. At that time, Mr Vimahi was staying in the home briefly, having previously lived at Fisher with his brother. Shortly after the warrant was executed, Mr Vimahi moved in with LD, who was living in Ngunnawal.
It was alleged by the Crown that the offences in counts one and two had been committed by both accused when using a silver or grey‑coloured Ford Territory or similar vehicle. There was evidence a vehicle fitting that description was hired by colleagues of the accused on 11 March 2015 to take Comanchero members to Adelaide for a meeting.
Senior Constable Clarke was present at the Casey house on 11 March 2015. He saw a Ford Territory station wagon drive by slowly. The vehicle was later stopped by police. Its driver was one Sione Paka an uncle of Mr Vimahi, and the passenger was Mr Vimahi, who told police he lived in Fisher.
A shot fired in Kambah
On the evening of 12 March 2015, police received a number of calls from concerned neighbours living in Kambah, saying they thought they had heard a gunshot. Statements from several people suggested a car had been seen travelling at some speed out of a street in Kambah, just after the shot had been fired. The descriptions were not uniform, but were consistent with that of the vehicle police stopped near Mr Grech's house the day before.
After some of the neighbours had rung police, Constable O'Neill went to the house and saw damage to a window and to a couch in the lounge room. The damage was consistent with having been caused by a shotgun cartridge. Other police then came with a warrant. The house was unoccupied, but the owner arrived soon after they arrived and told police his friend, Mr Smith, lived there with him. In the bedroom occupied by Mr Smith, police observed a flag of the Rebels motorcycle group.
As I have observed, Mr Smith was not called at the trial and there was no explanation from the Crown for his absence. Whether he ever did have reasonable apprehension for his own safety was not the subject of any evidence.
A crime scene investigator, Mr Paul Spryszynski, attended the scene and found eight shotgun pellets and some cartridge fragments on or near the premises.
A shooting in Stirling
On 12 March 2015, ES lived at the Stirling home where Mr Cranfield was shot. She and Mr Cranfield had previously been in a relationship and had a child together, but were estranged at the time of the shooting. At about 10 pm that night, she was in the house, while he was out the back having a smoke. When she became aware he had been shot, and she called 000. An ambulance came and took him to the Canberra Hospital, where a .45 bullet was removed surgically from a shoulder wound. The bullet was later handed to forensic examiners.
ES said Mr Cranfield had previously been in the Rebels, but had left in 2013 when he had gone to prison, and he had not rejoined on his release. She said that his occupation involved standover work in connection with debt recovery. She said he had an association with the Comancheros and through that connection knew a Mr Sonni, the sergeant-at-arms for the Comancheros. She said Sonni and a man called Tukon had come to their home in January and February 2015, on one occasion damaging the gates on the driveway of her battleaxe block. She was not aware of anybody wanting to hurt Mr Cranfield, but her car was stolen in late 2014, and she thought that might have been by someone trying to teach him a lesson.
In cross‑examination she agreed Mr Cranfield had friends in the Rebels and in the Comancheros.
As I will note below, when I come to consider the issue of grievous bodily harm, ES in cross‑examination gave extremely graphic evidence of a most terrifying physical attack on her in July 2015 by Mr Cranfield, suggesting that he had by then made a remarkable physical recovery from his injuries. I found ES a powerful witness and I unhesitatingly accept her as a witness of truth.
Detective Sergeant Perry went to the house shortly after the shooting and saw physical damage consistent with having been caused by bullets and a shotgun cartridge.
Ms Amy Van Bilsen, crime scene examiner, found a number of shotgun projectiles, or fragments of them. She also found several .45 cartridge cases and a shotgun cartridge wad in the garden, not far from where the evidence suggests Mr Cranfield was sitting when he was shot. She also observed some bloodstains near that area.
Shortly after these events, Ms Jessica Wheeler, also a crime scene examiner, went to the Stirling home at about 9 pm and took photographs from where she was told police thought the shots had come.
Another aspect of the evidence concerning this incident which should be mentioned here was that there was a gate from the backyard where the shooting occurred, to the front of the house. The front of the house faced onto [redacted for legal purposes]. Counsel for the accused asked each police officer who attended on the night of the shooting whether that gate had been open when they arrived after receiving notice of the shooting. None of the officers called could remember whether it had been or not.
The Crown in the course of the trial called Mr Cranfield, but Mr Cranfield declined to be sworn or affirmed and declined to give evidence in any way.
Mr Grech’s Arrest in Adelaide
Both accused travelled to Adelaide for a bikers' meeting shortly after these events. Mr Grech travelled to Adelaide in an Audi, which he stole from a garage in Braddon on the morning of 13 March 2015. The Audi was driven fast at times, attracting some speeding fines. South Australian police received information that the Audi was in Adelaide and they then received assistance from the public in finding it in a shopping centre. Mr Grech, who was nearby, was chased on foot by police, eventually being caught after being attacked by a police dog. A .45 firearm with his DNA on various parts of it and an accompanying magazine, also with his DNA, were later found in a garden which he had run past when trying to avoid capture.
Unchallenged ballistic evidence confirms that the .45 bullet which struck Mr Cranfield on 12 March 2015 came from that firearm.
After his arrest, Mr Grech was in custody at the Adelaide Remand Centre. While he was there his calls were monitored and recorded. Some recordings and transcripts were in evidence. At the beginning of each there was an announcement that the call would be monitored and recorded. In several calls Mr Grech expressed a dislike for Mr Smith. For example, at page 60 of exhibit AG he said, "And tell fucking that Dean Smith I'm going to tattoo 'dog' on his fucking forehead."
In the course of a conversation he had with a Mr Mastoris, he was heard discussing his future, including how he would plead to various charges against him. He said that he proposed to plead guilty to everything. Mr Grech was asked, "And possession?" He said, "Yeah, plead guilty." Mr Grech was asked, "How do they know it's you that had the ‑ ‑ ‑" he said:
Oh, fucking - ah, DNA or some shit, three weeks after they found it. I only got that the day before I left, or the day that I left, you know, so I don’t know what the fuck it was used for or anything before that, you know what I mean. Well, nothing to do with me anyway, I just got it real cheap, mate, the day before I left, eh.
Ngunnawal
Mr Vimahi's girlfriend, LD, gave evidence in the case only against him. When she first met him, he was living at Fisher with his brother and another man. He told her he was a Comanchero. On one occasion, in about August 2014, she discovered he owned a sawn‑off 12-gauge shotgun. She discovered this after it had been accidentally left in her car.
The gun had a silver barrel and was tied with white and red shoelace.
Thereafter she saw Mr Vimahi from time to time, sometimes at his Fisher home. In March 2015 there came a time when she did not hear from him for a few days. He then contacted her and said he was staying at Casey with a man he called “Daniel”. She said she had never met Daniel. On a few occasions, however, she did meet a man who Mr Vimahi introduced to her as his Uncle Sonni.
On an occasion in March 2015, Mr Vimahi rang her on his brother's phone and said Daniel's home had been raided, and Daniel was on the run to Adelaide. At about that time, Mr Vimahi moved in to live with LD at her home in Ngunnawal. When he did that, she noticed that he had some clothing with colours which were consistent with Comancheros colours. He asked her, when he moved in, if he could keep his shotgun in her garage, and she agreed. He explained that that was to protect her and her son. One day while he was living there, he brought the gun in to the lounge room and showed it to her and explained how it worked. She took two photographs of him holding it, while he wore a balaclava at the same time. Those photographs were in evidence. She sent copies of the photos to him on his phone.
On 24 April 2015, Detective Senior Constable Paul Reynolds called her on her mobile phone to say police were at her home conducting a search. She immediately called Mr Vimahi and told him police were there. He told her not to say anything to police. The two of them had a discussion and decided to concoct a story to explain how the gun was at her house, namely that they had had a party the previous weekend and someone must have had access to the garage. A police record of this conversation confirms what she told me they had discussed. In the course of that subterfuge to try to put the police off the track, she rang a friend in Yass to help her. In fact there had been no such party.
She later met Detective Reynolds at her home and was shown the gun after police had found it. She later had a meeting with Mr Vimahi; according to her he was shocked and could not understand who had put him in to the police.
Mr Vimahi, on a later occasion, told her the shotgun had been used to shoot up a Rebel and that “Daniel” had been involved. He said Daniel’s girlfriend had driven Mr Vimahi and Mr Grech to a service station and someone else had driven them from there and the Rebel had been shot in the toe. He told her Daniel had used a gun a bit like what police used and that he, Mr Vimahi, had worn a balaclava. He said the Rebel had deserved to be shot because his Uncle Sonni’s house had earlier been shot up by Rebels. Mr Vimahi then drove her past his uncle’s house a few days after it had been shot up and he observed that there was still police tape around the house.
LD was later found with the drug ice in her car and she was charged in relation to the shotgun being at her home. She said in evidence she thought the gun charge against her was dropped and she said she was dealt with for an ice possession charge later and for that was sent to a drug diversion program because she had an ice problem at the time.
In cross-examination she agreed that she had been an ice user at the time of these events and had told many lies to investigating police, including about having the party and there being people with access to the garage, so as to explain the gun’s presence there. It emerged in cross-examination that in August 2015, she was again found with ice in her car and it seems that shortly after that, she gave police the statement which incriminated Mr Vimahi.
She had several meetings with Detective Reynolds leading up to that. At one of their meetings she said he suggested the shotgun at her house was connected with the Cranfield shooting. On 15 June 2015, just after he had met her at Queanbeyan, when she was on her lunch break, she rang Mr Vimahi and the shotgun was discussed. What Mr Vimahi said on that occasion suggests strongly that he had an intimate knowledge of the Cranfield shooting. The conversation was as follows:
Mr Vimahi: You know why he came to see you, cos they – they ain’t got shit.
LD: He said you knew that he lived in Casey didn’t you? And I was like who lives in Casey? He’s like, Lihai and I was like, no. He goes well the shootings were in March.
Mr Vimahi: There’s so many shotties out there that they can’t – like their forensic tests can’t match, like a certain shottie to fucking when it’s been used.
LD: That’s what he’s saying, they can’t find the shells to this gun but that gun was used in every single one that night.
Mr Vimahi: That’s what he thinks, he assumes, they can’t find the fucking shells for, um, cos that night there was two things used, that and a .45 pistol. See the pistol, the .45, if I shot someone with that, they could tell what type with a forensic test, but they can’t prove that with shotties. Too many shotties out there.
Although Detective Reynolds told me he did not recall warning her that she faced a lengthy gaol term and might lose her child if convicted of these serious offences against her, I am satisfied that he did tell her, during at least one of their meetings, when trying to induce her to make a statement to help police, that if convicted of the charges then against her, she faced 20 or more years imprisonment and would lose custody of her then four‑year-old son.
Initially she told me she could not recall such a conversation but in a recorded telephone call she made to a friend at about that time, she said police had made such statements to her. When cross‑examined by Mr Bevan about events at the police station, after she was caught the second time with ice, she said she recalled Detective Reynolds telling her she could be looking at 25 years gaol and losing her son. I observed her carefully while she was searchingly cross‑examined by both counsel. Although hers was an induced statement, I am satisfied that she told me the truth.
LD was a significant witness against Mr Vimahi. Her evidence cannot be used against Mr Grech, except in so far as it relates to the alleged joint criminal enterprise. I bear in mind that where a case depends mainly on the evidence of one witness, the witness’ evidence must be scrutinised with care. Further, having in mind the importance of her evidence for the Crown case against Mr Vimahi, to convict I must be satisfied beyond reasonable doubt that she told me the truth.
I found LD an impressive witness, in the sense that she appeared to be consistent in the version she gave and to be ready to concede she had been a liar and a criminal. I formed the view that she was not gilding the lily on any issue. I am satisfied beyond reasonable doubt that she told me the truth. When coming to that view, I have in mind the dangers of accepting a witness involved in the same criminality or similar criminality as an accused and someone who has been induced to give a statement to the police and received, as she did, very substantial help from police when prosecuted. I have taken into account that she told many lies to police to cover up her own criminality and that of Mr Vimahi and that she caused considerable trouble to police, who had to investigate her mischievous stories.
Days after LD had given her evidence in the trial, Mr Grech submitted through his counsel, that I should exclude all of her evidence, especially that which went to any agreement with Mr Vimahi. Mr Purnell SC relied on the threats or warnings made to her by police which were followed by her giving a statement incriminating Mr Vimahi. He submitted that admission of her evidence would be unfair and that public policy reasons would favour its exclusion. He referred me to R v Lee (1950) 82 CLR 133 at [150]-[151], R v Swaffield [1998] HCA 1; 192 CLR 159 at [13]-[14] and [18], R v Walker [2000] NSWCCA 130 at [52]-[53] and ss 90, 137 and 138 of the Evidence Act 2011 (ACT) (‘Evidence Act’). While I have considered this late application, my opinion is there would not be relevant unfairness, if I give myself an appropriate warning under s 165 of the Evidence Act, of the dangers of accepting her evidence. I am satisfied considerable inducements were offered to her, and considerable pressure applied.
Detective Reynolds arrested Mr Vimahi on 6 August 2015 at LD’s Ngunnawal home. According to him when he made the arrest the following conversation took place:
Mr Vimahi: What am I under arrest for?
Reynolds: You’re under arrest for shooting Adam Cranfield.
Mr Vimahi: Where’s your proof? I was here with LD that night.
It was not suggested to LD in cross-examination that he had been with her that night. As will appear, there was alibi evidence from Mr Vimahi’s brother that the accused was with him that night in Fisher.
A ballistics expert, Mr Pieterse went to an address in Stirling on 13 March 2015 and observed damage caused by bullets. He was given the .45 Norinco handgun found with Mr Grech in Adelaide. Tests he carried out showed at least four shots had been fired at Stirling, three from the .45 and one from a 12-gauge shotgun. The shot from the shotgun had AAA size pellets. All four shots had been fired from an area at the rear of the backyard. The .45 pistol was at the time a prohibited firearm, he said. He examined Mr Vimahi’s shotgun, which was a Winchester, and some cartridges. He said the shotgun was a “possible” source of the shots at both the Stirling address and the Kambah address.
The Crown tendered without objection, certificates from the delegate of the registrar of firearms, saying Mr Grech was not licensed to possess ammunition or guns between 10 March 2015 and the 24 March 2015 and that on the 24 April 2015, Mr Vimahi was not authorised to possess or use ammunition or firearms.
DNA Evidence
Forensic biologist Gregory Robertson conducted relevant DNA examinations. There was overwhelming DNA evidence linking Mr Grech to the .45 and its magazine. There was powerful DNA evidence linking Mr Vimahi to the shotgun and rounds found with it.
Other Evidence
Neither accused gave evidence, and neither gave a record of interview. Mr Bevan called Mr Vimahi’s brother, Paulu Vimahi, who said the accused Lihai Vimahi had been with him at the Fisher home they shared on the morning he went to Adelaide for the meeting. In chief, he did not mention the date of this occurrence. In cross-examination, he said he remembered that his brother was with him on 12 March 2015 because he had been asked to set the alarm for his brother to rise at 4 o'clock in the morning so he could set off for Adelaide the next day.
Directions
As each accused pleaded not guilty, and elected trial by judge alone, it is my duty to consider whether either is guilty or not guilty of the respective charges and to return my verdicts according to the evidence.
It is for me to assess the witnesses and decide whether they are reliable. The reliability of witnesses depends on two quite different but sometimes overlapping considerations: first a witness' honesty, and secondly a witness' accuracy. The honesty of a witness involves considering not only what a witness said or perhaps did not say but also the impression the witness made on me.
I have had the benefit of submissions from the Crown and Mr Purnell SC and Ms Boxall and Mr Bevan. I have considered the submissions and given to them such weight as I think they deserve. As the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience and understanding of people and human affairs, and my common sense. I acknowledge that I have important matters to decide, important not only to the accused but also to the community.
I must, as the judge of facts, act impartially, dispassionately and fearlessly, and I must not let sympathy or emotion sway my judgment. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues according to the evidence. That evidence includes in this case the oral evidence of witnesses called, photographic and other documentary evidence, including records of conversations.
I note that in relation to accepting the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness, and I may, if I think fit, accept part and reject part of that witness’ evidence.
Joint Trial
I remind myself this is a joint trial of the two accused as a matter of administrative convenience. I must consider the case against each accused separately when considering my verdicts. I should not try to determine whether both of the accused are guilty without considering them as individuals and giving each separate consideration.
Inferences
I remind myself that I may draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I many only draw an inference adverse to an accused from proven facts if such an inference is the only rational one that can be drawn from the facts.
In relation to each charge, I must be satisfied of the guilt of an accused beyond reasonable doubt before finding an accused guilty of that charge. Amongst other things, that means I must be extremely careful about drawing any inference and I should examine any possible inference to ensure that it is justifiable and I should not draw an inference from the direct evidence unless it is the only one in the circumstances.
Onus and Standard of Proof
I now direct myself on the onus of proof. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. The onus rests on the Crown in respect of every element of a charge. There is no onus of proof on an accused at all. It is not up to the accused to prove innocence. It is up to the Crown to prove guilt if it can and to prove it beyond reasonable doubt.
I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. It has always been a critical part of our system of justice that people tried in this Court are presumed innocent unless and until proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the ingredients of each charge beyond reasonable doubt, then the accused must be found not guilty of that particular charge. The words "beyond reasonable doubt" are ordinary, everyday words and that is how I understand them. If at the end of my deliberations, having taken into consideration the evidence both of the Crown and for the accused, and also taking into consideration the submissions, I am not satisfied the Crown has established an essential matter beyond reasonable doubt, then it is my duty to bring in a verdict of not guilty for that particular charge. In those circumstances, the Crown will have failed to do what the law requires it to do.
I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests on the Crown is to prove the elements of a charge.
Accused
Neither accused gave evidence in the trial and I remind myself that they did not have to give evidence and that no adverse inference can be drawn against either of them by reason of the fact that he did not give evidence. An accused’s silence does not constitute an admission, nor must such silence be used by me to fill gaps in the Crown case or to make up what I might regard as deficiencies in the Crown case.
CCTV
LD gave her evidence by CCTV. She made serious allegations against Mr Vimahi. I draw no adverse inference against either accused by reason of the fact that she gave her evidence by CCTV, nor do I give her evidence any less weight by reason of the fact that she gave her evidence in that way.
As I have observed, I must warn myself further about LD's evidence. These warnings are given in every case in which the Crown relies on the evidence of a witness who was or might have been put under pressure or given or promised an inducement to give evidence against an accused and as here, where she was involved to a degree in the criminality of one or more of the accused. I bear in mind that experience has shown that evidence given by such a witness may be unreliable, so I have approached her evidence with considerable caution. Evidence of the kind she gave is easily invented. It would simply be a matter for her to say Mr Vimahi had said something to her, and there is not much a person in Mr Vimahi's position or Mr Grech's position could then do beyond simply denying that he had said those things.
As I have observed, even if I prefer the evidence of the prosecution, I should not convict an accused unless satisfied beyond reasonable doubt of the truth of her evidence. Even if I do not believe evidence given for the defence, here the alibi evidence, I cannot convict if I have a reasonable doubt on the issue.
Right to Silence
With the exception of denying involvement in the offences and asserting he had been with LD at the time of the shooting of Mr Cranfield, Mr Vimahi chose not to answer questions by the police at the time of arrest. Mr Grech chose not to answer any questions. All people in this country have a right to silence, that is, to choose not to answer questions put to them by police. I draw no inference adverse to either accused because they chose to exercise their rights.
Intention
I direct myself on the question of intention. Section 18(1) of the Criminal Code provides that a person has intention in relation to conduct if the person means to engage in that conduct. The common law is to like effect.
Joint Criminal Enterprise
I direct myself in accordance with s 45A of the Criminal Code concerning the agreement the Crown alleges both accused were involved in for counts one and two.
Circumstantial Case
The Crown relies partly on circumstantial evidence and asks me to draw certain facts from other facts to draw a conclusion as to the existence of certain facts. In a circumstantial case, no individual fact can prove the guilt of an accused. Where the Crown's case depends wholly or in part on circumstantial evidence, the jury, or in my case, a judge, is asked to reason in a staged approach.
The Crown first asks me to find certain basic facts. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove guilt. I am then asked to infer or conclude from a combination of facts that a further fact existed. The ultimate fact the Crown asks me to find based on the basic facts is that each accused is guilty of the offences charged against him.
It is important that I approach a circumstantial case by considering and weighing, as a whole, all of the facts.
I must first determine what facts are established and then consider all of them together as a whole and ask myself whether I can conclude from them that either accused is guilty of an offence charged. If such a conclusion does not reasonably arise, then the circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. However, if I find such a conclusion is a reasonable one to draw, before I can convict an accused I must determine whether there is any other reasonable conclusion that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion which is inconsistent with the guilt of an accused, then I must find the accused not guilty.
As to the agreement alleged to commit count one and count two, the Crown asks me to draw inferences from the evidence of their association together, from admissions to LD concerning Mr Vimahi, the evidence from ES that Mr Vimahi's Uncle Sonni was the sergeant-at-arms in the Comancheros, the fact that there was said to be a motive, namely, payback against a Rebel or a former Rebel, the fact that there had been damage to the house where Mr Vimahi's uncle lived, the timing of the shots suggesting two people were involved, the positioning of ballistic damage showing a common intent, evidence that shooters came and went in one vehicle, and evidence such as the use of a pistol and a shotgun suggesting that they carried out the agreement and did so intentionally.
In order to satisfy me beyond reasonable doubt, the Crown must first persuade me that an inference or conclusion relied on is a reasonable one. It must then prove the only reasonable inference or conclusion that could be drawn is one of the guilt of an accused. If there is some other reasonable inference or conclusion then I must find the accused not guilty of that particular offence.
Alibi Direction
I earlier observed that there was alibi evidence in Mr Vimahi's case. I remind myself that the Crown still carries the burden of proof and if the Crown fails to satisfy me beyond reasonable doubt that the evidence should be rejected, I must find Mr Vimahi not guilty. The Crown must disprove the alibi.
I will now consider the charges and their elements.
Count One
The charge is that each of the accused intentionally inflicted grievous bodily harm, pursuant to an agreement between them, contrary to s 19 of the Crimes Act. The elements are:
1.(The agreement) The accused each entered into an agreement intending to commit the offence.
2.(Intentionally inflicting grievous bodily harm)
a.The accused engaged in the conduct.
b.The accused intended to engage in the conduct.
c.The conduct resulted in the infliction of grievous bodily harm on another person.
d.The accused intended to inflict grievous bodily harm on the person.
Submissions
The Crown submitted that I would be satisfied beyond reasonable doubt of this count against both accused. Both accused were Comanchero members. There was the payback evidence as to the incident involving Mr Vimahi's uncle. There was the circumstantial evidence of the agreement. There was Mr Grech's DNA on the gun which shot Mr Cranfield, and his admission that he acquired it before he left Canberra.
There was the evidence connecting Mr Vimahi with the shotgun, and the fact that Mr Cranfield was shot by both a .45 and a shotgun. There were Mr Vimahi's admissions to LD about his involvement in the shooting and his knowledge that Mr Cranfield had been shot by both a .45 and a shotgun. There was other evidence of association of the two accused at that time. The Crown submitted I would accept LD, despite the attack on her credit. There was also the evidence of a vehicle which may have been used for the offence.
The Crown submitted I would also find, based on the medical evidence, that Mr Cranfield suffered grievous bodily harm. As to the argument the attack on ES by Mr Cranfield showed that he had made a good physical recovery, this was merely a highly emotively charged incident, which gave Mr Cranfield the additional strength, despite his then recently-received gunshot wounds.
Mr Grech's counsel submitted I would not find the offence proved beyond reasonable doubt. There was no proof of any agreement to shoot Mr Cranfield or that Mr Grech was present when Mr Cranfield was shot. Mr Cranfield, he said, did not suffer grievous bodily harm. As to the vehicle of which evidence was given, there was insufficient evidence to link it to the crime scene, and the only evidence concerning it, where people were seen in it, was when it contained Pacific islanders, and Mr Grech is clearly not one of those.
The Crown could not prove Mr Grech had the .45 on 12 March 2015. There was no fingerprint identification on the casings of the bullets used at Stirling. The Crown could not prove who was present when Mr Cranfield was shot. The shooters could have come in through the gate from another street in Stirling. It would have been very hard for Mr Cranfield to have been identified by shooters in the available light that night. There was no DNA or other evidence linking Mr Grech with the scene.
Mr Bevan submitted for Mr Vimahi that there was no physical evidence linking his client to the scene, although the pellets there had obviously come from a 12-gauge shotgun. A different pellet size was in cartridges found by police at Ngunnawal when they located the shotgun there.
Mr Bevan said I would accept ES's evidence, including that she had heard nothing to link Mr Vimahi to Mr Cranfield. He drew attention to the problems of identification of the vehicle used. He said Mr Cranfield was unpopular and a number of people may have wanted to harm him. He queried the vision which would have been available to a shooter in the back garden and queried whether the shots had been intentionally fired, or whether they had been fired recklessly.
He drew attention to evidence before me of a third shooting on the night of the event. He submitted that other possible offenders had not been looked at by the police and that I should not accept LD's evidence.
Though Mr Vimahi told police when arrested that he had been with LD when Mr Cranfield was shot, that was consistent with the evidence given by Mr Vimahi's brother that sometimes she stayed at their Fisher house. At the time of the shooting, LD had not moved to the address in Ngunnawal, where she was living later; so if they were together that night it must have been at Fisher, where the brother was living. That Mr Vimahi seemed to know about the shooting when speaking to LD on the telephone when police recorded their calls should not be seen as strange, because it was no secret that Mr Cranfield had been shot.
The vehicle police said was used for the offence was cleaned for prints and DNA, and although some gunshot residue was found on it, police had considered the possibility of contamination.
LD had said that Mr Vimahi never spoke about Daniel. As to Sonni, supposedly his uncle, there was evidence from his brother that he did not know him as an uncle.
Mr Bevan also drew attention to evidence that Mr Vimahi was a big noter, so it was submitted that he might have exaggerated or made things up when he was talking to LD. He submitted there was uncertainty about the dates when Mr Grech had owned the .45.
Conclusions
I have considered all of those submissions. As to count one, I am satisfied beyond reasonable doubt of all the ingredients of the offence, other than grievous bodily harm.
(a) Mr Grech and Mr Vimahi were Comancheros and Mr Cranfield a former Rebel.
(b) Secondly, there was the incident when Rebels were thought by Mr Vimahi to have shot at the house of the man Sonni, who he called his uncle.
(c) Next, there was evidence of an association between the two accused. There was evidence Mr Vimahi briefly stayed at the Casey house. Mr Vimahi's phone and wallet were found there. Mr Vimahi was spoken to by police in a car outside the house on 11 March 2015. Mr Vimahi told LD that he was staying there.
(d) The bullet removed from Mr Cranfield came from a .45 hand gun.
(e) The shooting occurred on the evening of 12 March 2015.
(f) Mr Grech left Canberra for Adelaide on 13 March 2015 after stealing the Audi.
(g) When arrested at the Newton shopping centre in Adelaide on 14 March 2015, Mr Grech had the .45 and its magazine with him, although neither was found until a few days later. The .45 which was with Mr Grech was the one which fired the shot which hit Mr Cranfield.
(h) Mr Grech's DNA was on both the hand gun and the magazine.
(i) In the recorded phone call soon after that, Mr Grech told his friend, Mr Mastorus that he had bought the gun the day before he left, which was on 12 March 2015. He discussed the fact that his DNA was on the gun.
(j) In the same call, he alternated between saying he acquired it the day he left and the day before.
(k) I consider that he knew his call may have been recorded, so he may have deliberately alternated.
(l) On 11 March 2015, police received a complaint that Mr Grech had made a threat concerning the use of a .45 hand gun. Police searched his house on 11 March 2015 looking for a .45 after receiving that complaint, but without success.
(m) Although no physical evidence linked Mr Vimahi with the scene, his shotgun found where he was living with LD had his DNA on it, as did accompanying cartridges. It was a possible source of the shot which shot Mr Cranfield.
(n) Mr Vimahi told LD “he and Daniel had been in on the shooting of a Rebels bikie”. He told her that Daniel's girlfriend had driven them part of the way, that Daniel had used a pistol-like gun, like police used. The Rebel had deserved to be shot because they were trying to get back at this bloke who had shot up his uncle. What she said, of course, was not evidence against Mr Grech.
(o) Mr Vimahi told LD that the Rebel had been shot in the toe; Mr Cranfield was in fact shot in the foot.
(p) During the telephone call on 15 June 2015 between LD and Mr Vimahi, he spoke of the Cranfield shooting, suggesting an intimate knowledge of it, observing that a .45 and a shotgun had been used.
(q) There was evidence a vehicle associated with the Comancheros was hired on 11 March 2015 to be driven to Adelaide, and such descriptions as there were of a vehicle at the time of the shooting, poor as they were, were consistent with that.
I do not accept Paulu Vimahi's evidence that Mr Vimahi was with him when the shooting occurred. He was not asked to recall this night until July 2016, over a year later. When giving evidence before me, he said he was certain that his brother had been with him that night, but he seemed vague about other aspects of his evidence, including whether he had ever discussed his evidence with his brother. Although he seemed not to know that he had an Uncle Sonni, and Mr Bevan asked me to consider that, I formed the view that he may have been confused about that. He was asked if he had any relatives, apart from cousins, in the Comancheros, and he said no. But he perhaps did not know that his uncle was in the Comancheros. He could not explain why his brother told police, when arrested, that he had been with LD in Ngunnawal.
Having considered the evidence of Paulu Vimahi, I reject it as even suggesting a reasonable possibility of being correct.
I am satisfied beyond reasonable doubt that each accused went to the address in a motor vehicle which was driven up the drive to the back of the house. They took the shots at Mr Cranfield and left. It was possible for someone to come through the side gate, but I consider that unlikely in the extreme, given the evidence connecting each with the shooting.
I infer care was taken to hit Mr Cranfield. As I observe elsewhere, I accept beyond reasonable doubt that LD was telling me the truth in implicating Mr Vimahi. I accept ES said Mr Cranfield did not implicate Mr Vimahi, but it does not follow that he was not involved.
As to the vehicle hired to convey members of the Comancheros to Adelaide, I infer it was available for use. I accept that the Crown evidence about the vehicle was imprecise, but it is clear a vehicle was used and it is not surprising, given the time of night and the speed of the driving and unexpectedness of the event, that no one gave police a good description. I take account of the fact that people associated with the hiring were not investigated by police as possible suspects but I consider they had good reason for that. I have taken account of the fact that many people disliked or had a reason to hurt Mr Cranfield. I have also taken account of the fact at least one of the men associated with hiring the Highlander, Mr Langi, was known to Mr Cranfield.
As to Mr Grech’s submission that only Pacific Islanders were ever seen in the Highlander, I do not see that as relevant. He may have been in the car at other times; it may not have been the car used.
I have considered Mr Bevan’s argument that Mr Vimahi may have been big noting himself but the evidence of his involvement was, I think, powerful, and I dismiss the possibility that he was merely big noting himself to impress LD.
I have drawn certain inferences from the direct evidence. I have considered all of the evidence as a whole. I have considered whether there is any other reasonable conclusion arising from those facts, which is inconsistent with the participation of each accused in the shooting. I have done so separately dealing with each of the charges against each accused separately. I have concluded in the case of each of them, there is no such other conclusion. Although I am satisfied the two agreed to shoot Mr Cranfield and they did shoot him with the .45 and the 12-gauge shotgun in accordance with that agreement, I am not satisfied beyond reasonable doubt that the shots caused grievous bodily harm.
Grievous Bodily Harm
At common law, grievous bodily harm means really serious bodily harm: R v Griffiths [1999] SASC 70; 103 A Crim R 291 at [11]. The dictionary for the Crimes Act says:
grievous bodily harm to a person includes—
(a) any permanent or serious disfiguring of the person; and
(b) for a pregnant woman—loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).
In a jury trial, it is a matter for the jury whether particular harm amounts to grievous bodily harm: Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331 at [142]. See also Swan v The Queen [2016] NSWCCA 79 at [56]-[65]. Mr Purnell SC and Mr Bevan both submitted the admittedly serious injuries suffered were not really serious; although they appeared serious at the time of the shooting, they did not lead to long term sequelae.
On this issue the Crown called a highly qualified medical practitioner, Dr Jane Van Diemen. She did not examine Mr Cranfield but formed her views from treatment records given to her by the AFP quite some time after the event. She listed the injuries as a gunshot wound to the left shoulder, a comminuted fracture of the left shoulder blade, a fracture of the left glenoid articular surface,a fracture of the left proximal humerus, gunshot wounds to the right lower leg, and a laceration to the left great toe. She said he had a general anaesthetic and then a washout of the left shoulder wound, when a foreign body was removed. He had a number of radiographic studies, including x-rays and CT scans and he was given opiate analgesia, intravenous fluids and intravenous antibiotics.
Before the shooting, he had been diagnosed with chronic ankle pain arising from another incident. He discharged himself after three days in hospital.
In Dr Van Diemen’s opinion, he had suffered serious injuries; gunshot injuries she said are potentially very serious and external wounds do not necessarily correlate to internal injuries. She predicted that he would have permanent and long lasting sequelae, including permanent scarring, a possibility of ongoing pain and discomfort and the possibility of psychological sequelae. She said that in medical terms, there are serious and non-serious injuries and she could not classify these as other than serious.
She had not been told about the very violent rape and other physical assaults on ES just three or so months after the incident and when cross‑examination on that assault occurred, I took her to say that his ability suggested he had made a very good recovery.
When she was cross-examined about that assault, I took her to say that his ability suggested a good recovery of function. She agreed that if he could lift a 69 kilogram person in July 2015, which is what I accept from ES occurred, he would have had relatively good bone and muscle healing in the shoulder. She agreed that four hours of physical activity with lifting and moving a 69 kilogram woman into various positions in a vigorous and forceful manner, indicated healing and/or that no problems were demonstrated in the left shoulder.
The description from ES was that in July 2015, Mr Cranfield had violently raped her in an incident which lasted over four hours when he picked her up, raped her, beat her and kicked her repeatedly. She said that at that time he was very strong, working out a lot, sometimes daily and was heavier than her 69 kilograms. When he attacked her, she said he seemed to have no physical disability. (There was a Crown objection to that evidence but I considered it highly relevant to whether Mr Cranfield had suffered grievous bodily harm.)
I conclude from ES’s evidence, especially absent any evidence from a doctor who had recently assessed him, the evidence suggests strongly that he had recovered well after the shooting and by July 2015 had reached a good degree of fitness. Although Dr Van Diemen said he would suffer long term scarring, I was not shown any photographs of any scarring. Otherwise, her evidence of sequelae she thought he would suffer, was expressed only as possibilities and nothing more.
The medical notes suggest that he may have had some physiotherapy for his right shoulder and his right ankle in early 2016 but whether he had that treatment, and if so, its outcome for him, the evidence does not show. The limited evidence from Mr Cranfield on the issue did not go beyond what was already in evidence.
Thus, I am not persuaded beyond reasonable doubt, Mr Cranfield suffered grievous bodily harm. Accordingly, I find Mr Grech not guilty on the first count and I find Mr Vimahi not guilty on the first count.
I will now turn to consider the alternative statutory counts. The alternative statutory count under s 20 of the Crimes Act, set out below, also has as an ingredient, grievous bodily harm.
20 Recklessly inflicting grievous bodily harm
(1) A person who recklessly inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 13 years.
(2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 15 years.
Accordingly, for the same reason as to count one on the indictment, I find Mr Grech not guilty on the alternative count under s 20 of the Crimes Act and I find Mr Vimahi not guilty of the alternative count under s 20 of the Crimes Act.
The next alternative statutory count is an offence under s 21 of the Crimes Act which is wounding.
21 Wounding
(1) A person who intentionally wounds another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
(2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 7 years.
The ingredients of this offence are (a) an agreement between the two accused, (b) to wound Mr Cranfield (c) intentionally, and (d) execution of the agreement.
At common law, to wound means to break the layers of the skin. I am satisfied beyond reasonable doubt Mr Grech was a party to an agreement with Mr Vimahi to wound Mr Cranfield when they went to his home armed with the .45 and the shotgun and I am satisfied beyond reasonable doubt that pursuant to that agreement, they shot him with both guns causing him to be wounded. I make the same finding in relation to Mr Vimahi, in relation to his agreement with Mr Grech. I find Mr Grech guilty of the alternative count under s 21 of the Crimes Act. I find Mr Vimahi guilty of the alternative count under s 21 of the Crimes Act.
Count Two
I will now turn to count two on the indictment under s 27 of the Crimes Act:
27 Acts endangering life etc
(3) A person who intentionally and unlawfully—
(d) discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
This count has the following elements:
(a)The accused each entered an agreement to commit an offence.
(b)The offence was committed in accordance with the agreement.
(c)They were in possession of a loaded firearm.
(d)They intended to possess the loaded firearm.
(e)They intended to discharge the firearm.
(f)They discharged the firearm, causing another person reasonable apprehension about his or her own safety.
(g)They were reckless about whether discharging the firearm would cause another person reasonable apprehension.
(h)They had no lawful excuse for doing so.
The Crown submitted both accused agreed to discharge a firearm towards the house occupied by Mr Dean Smith. The shot was, according to the Crown in his address, “so as to cause him reasonable apprehension for his safety”.
I am satisfied beyond reasonable doubt that a shot from a 12-gauge shotgun was fired at the house in Kambah causing damage to the building and its contents. I am satisfied that Mr Smith, a Rebels member, lived there at the time and from what he said in a recorded remand centre conversation, shortly after this event, that Mr Grech had a grudge against him. But I am not satisfied beyond reasonable doubt that this was carried out by either accused.
Mr Grech understood that Mr Smith had spoken to police the day before about Mr Grech and I infer from his association with Mr Grech, that Mr Vimahi would have been willing to join him in causing harm to a Rebels member. I am satisfied that Mr Vimahi owned and possessed a 12-gauge shotgun and the ballistic evidence, as I have observed, links Mr Vimahi’s shotgun with the shot found at the house as a possible source. However, no DNA or fingerprint or other direct evidence linked either accused to this offence. No-one saw either of them there; no-one gave police any description of either of them as the person seen there. There was evidence of a vehicle which was probably used but it was somewhat non-specific. Neither accused has confessed to this offence. The evidence does not obviously disclose Mr Vimahi discussing it with LD. There was a call on the 12 March 2015, referred to by the Crown, which I regard as equivocal.
It is quite possible both were guilty of this offence because Mr Grech had a motive and Mr Vimahi had a shotgun which was the possible source and I infer a car was available to them, and they were at Stirling, not far from Kambah, a short time after. But I am not satisfied beyond reasonable doubt that they were at that address that night, or that there was any agreement between them to go there. The evidence, in my view is insufficiently probative.
In the course of the trial, there was argument about whether an element of this offence was evidence from Mr Smith that he had an apprehension for his safety. As I observed, there was no evidence from Mr Smith or any explanation from the Crown for his absence. The Crown did tender evidence from neighbours, including one who expressed apprehension about going outside when reporting the shot to police. But the Crown in his address asserted that the shot had been to cause Dean Smith reasonable apprehension. This brought the case back to the absence of evidence from Mr Smith.
Because of my view of the facts, however, it is unnecessary for me to resolve the issue caused by Mr Smith's absence from the witness box. I find each of the accused not guilty of count two.
Count 3
I will now turn to count three on the indictment under s 42 of the Firearms Act 1996 (ACT) (‘Firearms Act’):
42 Offence—unauthorised possession or use of prohibited firearms
A person commits an offence if the person—
(a) possesses or uses—
(i) 10 or more prohibited firearms; or
(ii) 3 or more prohibited firearms, but less than 10 prohibited firearms; or
(iii) 1 or 2 prohibited firearms; and
(b) is not authorised by a licence, permit or otherwise under this Act to possess or use each of the prohibited firearms.
Maximum penalty:
(a) for paragraph (a) (i)—imprisonment for 20 years; or
(b) for paragraph (a) (ii)—imprisonment for 14 years; or
(c) for paragraph (a) (iii)—imprisonment for 10 years.
The elements are:
(a)That the accused, Mr Grech, possessed something.
(b)The accused intended to possess it.
(c)The thing possessed was a prohibited firearm.
(d)The accused was reckless as to whether it was a prohibited firearm.
(e)The accused was not authorised by licence or permit to have it or to possess it.
(f)The accused was reckless as to whether he was not authorised by a licence, permit or otherwise under the Firearms Act, to possess the firearm.
For the reasons given under the count relating to the s 21 offence, I am satisfied beyond reasonable doubt Mr Grech possessed the .45 handgun on 12 March 2015 at Canberra. I am also satisfied beyond reasonable doubt he had no licence for the firearm. I am satisfied beyond reasonable doubt that he is guilty of that offence.
Conclusion
In summary, I have found each accused not guilty of count one on the indictment, or of the alternative count under s 20 of the Crimes Act.
I have found each accused guilty of the alternative under s 21; I have found each accused not guilty of count two; I have found Mr Grech guilty of count three.
| I certify that the preceding one-hundred-and-thirty-seven [137] numbered paragraphs are a true copy of the reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: |
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