R v Wheeler - [2005] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHEELER
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Smith
31 August 2005
CRIMINAL LAW
Particular offences - offences against the person - wounding with intent to do grievous bodily harm.
Accused charged with wounding with intent to do grievous bodily harm – after a history of enmity between accused and alleged victim including an assault by the victim on the accused at a hotel just prior to the wounding – victim and accomplice follow accused home and confront him at his front door in the early hours of the morning – victim assaults accused – accused attempts to retreat inside – accused draws and threatens victim with knife then stabs victim.
Trial by judge without jury – accused contended that wounding was lawful self-defence – consideration of purpose of admitting evidence of victim’s two prior convictions for offences of violence and three instances of previous violent conduct – evidence of prior convictions admitted for the purpose of discrediting the evidence of the victim but not as to his propensity to violence – evidence of two instances of prior violent conduct towards the accused admitted to establish victim’s propensity to violence conduct generally and hostility in particular to the accused on the basis that such is relevant to issues arising within the defence of self-defence – accused declined to give evidence on oath but relied upon extensive video recorded police interview – discussion of use to be made of what accused said in interview – consideration of parameters of self-defence – consideration of psychiatric evidence of accused’s low level of psychological functioning and its relationship to the genuineness of the accused’s belief as to the appropriateness of his defensive conduct – discussion of whether use of knife proportionate to threat posed. Held – prosecution failed to negative self-defence or the reasonable possibility thereof – verdict not guilty.
Criminal Law Consolidation Act 1935 s15, 21, referred to.
R v Wheeler [2004] SASC 397; Bedi v R (1993) 61 SASR 269; Bugg v Day (1949) 79 CLR 442; R v Aldridge (1990) 51 A Crim R 281; R v Kizon (1985) 18 A Crim R 59; R v Besim [2004] VSC 168; R v Ellem (No. 1) [1995] 2 Qd R 542; Spence v Demasi (1998) 48 SASR 538; R v Anastasiou (aka Peters) (1991) 21 NSWLR 394, considered.

R v WHEELER
[2005] SADC 116
Introduction

The accused is charged on Information as follows:
Statement of Offence
Wounding with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Claytn Rex Wheeler on the 7^th day of March 2003 at Grange, unlawfully and maliciously wounded Shane Rowan, with intent to do him grievous bodily harm.
Upon his plea of not guilty, the trial proceeded before me without a jury. There had been a previous trial in the Supreme Court before a Judge and Jury which resulted in the accused being found guilty of the above charge. He successfully appealed against that conviction and a retrial was ordered on the 2^nd December 2004 (see R v Wheeler [2004] SASC 397). For the retrial, the accused elected to be tried by judge alone. I have had close regard to the judgment of the Court of Criminal Appeal.
This trial concluded after four days on Thursday 25^th August 2005 when I adjourned to consider my verdict.
The Crown case consisted of oral evidence from some 13 witnesses.
The accused did not himself give evidence. Rather, he relied upon his video recorded interview which formed part of the prosecution evidence. The accused however did adduce evidence from Dr Jules Begg, a psychiatrist.
It was common ground that after a confrontation with Shane Rowan in the Grange Hotel, the accused went home and armed himself with a knife. Rowan and a companion followed him home. A fight broke out at the front door and in the course of it the accused produced the knife and stabbed Rowan once in the lower abdomen.
The prosecution contend that although a situation of self-defence arose, the use of the knife was excessive and so the wounding was unlawful. In short, the prosecution contend that self-defence within the meaning of s15 of the Criminal Law Consolidation Act has been negatived. The defence, on the other hand, contend that the wounding was clearly lawful self-defence or that the prosecution has failed to exclude as a reasonable possibility that the wound was inflicted in self-defence.
Some legal directions
First of all I direct myself as to the elements of the offence. I remind myself that the exercise is not one of merely evaluating the respective versions but rather the task is to determine whether or not the prosecution has proved those elements beyond reasonable doubt. The primary issue in this case is self-defence (see s15 Criminal Law Consolidation Act 1935 (SA)). The Crown must negative self-defence beyond reasonable doubt and in particular I direct myself that the Crown must exclude as a reasonable possibility that the wound was inflicted by the accused in self-defence.
Two of the principal Crown witnesses in this trial, namely the alleged victim Shane Rowan and his companion Mark Sullivan, also known as Diesel, must have been intoxicated by alcohol at the time of these events. Rowan said that he had drunk 15 to 20 pints of full-strength beer in the Grange Hotel prior to the incident (27), and Mark Sullivan admitted to drinking half a dozen to a dozen schooners or pints of full-strength beer (105, 106). So Rowan must have been considerably intoxicated. In his evidence, he accepted that he had resultant gaps in his memory. Sullivan described himself as “half-drunk”. I direct myself that the reliability of the evidence of, in particular Rowan, and to a lesser extent Sullivan, would thereby have been adversely affected by such an intake of alcohol (see Bedi v R (1993) 61 SASR 269).
In the course of cross-examination, Shane Rowan admitted two prior court appearances for offences of violence. Firstly, he accepted that in 1990 he was convicted for multiple offences of rape arising out of one incident. Further, he accepted that he was drunk at the time of that offending (54). Also, he admitted that in 1997 he was convicted of what was termed a “road rage assault”. He denied being drunk at the time (97).
Counsel for the accused, Mr Boucaut, contended that such evidence could be used by me in two ways. Firstly, to impeach Rowan’s credit and secondly, to prove that Rowan had a propensity to violence particularly when drunk. There is no difficulty with the first contention. Evidence of a prosecution witness’s bad character can be used for the purpose of establishing that the witness was not a witness of truth (see R v Wheeler (supra) per Perry J at [44]; Bugg v Day (1949) 79 CLR 442; R v Aldridge (1990) 51 A Crim R 281 and R v Kizon (1985) 18 A Crim R 59). In R v Kizon at 72 Rowland J said:
He should have told them that the sole purpose of allowing evidence of character and prior records against the witnesses, was simply to establish that each witness was not a witness of truth.
In my view he was bound to explain to the jury that if it was the fact that the cross-examination of a witness as to his credit had the desired effect and that the credibility of that witness was thereby destroyed, then the effect of that was that his evidence was to be ignored or not accepted to the extent sought by the defence. The trial judge, in my view, should have told them that evidence of bad character and prior convictions can only be used to destroy or limit credibility, that in the context of this case it cannot be used to indicate that by their association with these people the accused have thereby in some way shown a propensity for the type of offence with which they were charged.
In the New South Wales Court of Criminal Appeal in the case of Aldridge Hunt J with whom Enderby and Grove JJ agreed said at 285:
The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath. The conduct or character of a witness cannot therefore be used to attack his credit unless that conduct or character is of such a nature as to tend logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth: Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 494.
As to the second contention, it is also clear that evidence can be adduced of a disposition or propensity to violence, of a prosecution witness, such as might arise from prior convictions, for the purposes of proving an issue in the case, namely, that the witness was more likely to have behaved aggressively because of an established propensity to do so. Of course, such a robust position does not apply without more in respect of an accused person.
The case of R v Besim [2004] VSC 168 is particularly instructive. The accused Jennifer Besim was charged with the manslaughter of her husband. She denied that the mortal blow she struck to her husband’s head with a vase was unlawful. She claimed to be acting in self-defence in response to the history of violence inflicted on her by her husband. In a ruling as to the relevance of evidence of the deceased’s propensity to violence Redlich J said at pages 2 and 3:
Evidence is relevant if it tends to make more probable a fact in issue. (Martin v Osborn (1936) 55 CLR 367 and O'Leary v R (1946) 73 CLR 566.)
..........................
Evidence of propensity of the accused, though relevant if it makes a fact in issue more probable, is excluded for reasons of public policy. (See Attwood v R (1960) 102 CLR 353; R v Gibb & McKenzie [1982] 2 VR 155). Such considerations do not arise when the propensity concerns a person other than the accused. (See R v Lowery & King [1972] VR 939 at 944; Lowery v R. (1973) 47 ALJR 309).
It is in accordance with principle and authority that evidence of a relevant propensity of a deceased or other witness is allowed where such evidence sufficiently bears upon a fact in issue. It would be contrary to reason to exclude evidence of previous violent acts of the deceased if such conduct were relevant to an issue at trial. Evidence of the deceased's prior violent conduct is admissible where it may explain the accused's state of mind at the time of the incident in question. In cases of homicide, the bad character of the deceased and previous assaults have been received to show that the accused had reasonable grounds for apprehending violence. R v Biggin [1920] 1 KB 213; R v Hopkins (1866) 10 Cox CC 229; R v Griffin (1872) 10 SCR (NSW) 91; R v Flanagan [1946] VLR 159; R v Kerr (No. 2) [1951] VLR 239; R v Hector [1953] VLR 543; R v Caracella (No. 2) [1958] VR 661; R v Jackson [1982] VR 326; Re Knowles [1984] VR 751; R v Gibb & McKenzie (supra); Masters v R [1987] 2 Qd R 262; Harmer v R (1985) 28 A. Crim R 35; R v Mogg [2000] QCA 244 at 57; R v Ellem (No. 1) [1995] 2 Qd R 542; R v Anderson [2000] 1 VR 1; (2000) 111 A Crim R 19; and [2000] VSCA 16 and R v PP [2002] VSC 522.
Evidence of an accused's past experiences of violence or knowledge of violence to others by the deceased may be relevant where self-defence or provocation is raised. It may bear upon the accused's state of mind and the reasonableness of their conduct R v Osland 1998) 197 CLR 316 at 337 per Gaudron and Gummow JJ; 376 and 380 per Kirby J.
Such evidence may also bear upon whether the deceased acted as the accused alleges. A pertinent character trait of the alleged victim may bear upon whether the victim committed an act in conformity with that character trait. (Wigmore, John (1961), Wigmore on Evidence, Boston, Little Brown, Volume 1A, at paragraph 63.) ...
It is immaterial whether the accused for this purpose knew of that character trait before the time of the commission of the alleged offence. State of Iowa v Jacoby (1997) 260 NW 2d 828 and R vEllem (No. 1) (supra).
Although it was once thought that evidence of facts of which the accused had no knowledge was not admissible, (supra) at least since Knowles' case it has been well established that the admissibility of such evidence does not depend upon the accused's knowledge of such facts if they are consistent with other evidence of what the deceased did. The passage from Wigmore (supra) and referred to in Knowles' case states:
"Where controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased. It may throw light upon the probabilities of the deceased's action. The additional element of communication is unnecessary, for the question is what the deceased probably did, not what the defendant probably thought that the deceased was going to do." (supra).
However there is a limit to this as Lee J made clear in R v Ellem (No. 1) (supra) at 547:
... so where on a charge of murder self-defence is raised independently, evidence of the deceased’s general reputation for violence is admissible as a circumstance to show whether it was more likely that the deceased was the aggressor regardless of the knowledge of the accused as to that reputation. However, in order for there to be this general reputation, in my opinion, there must be some series of conduct, not just an isolated act. This incident occurred 20 years ago and, in my opinion, far from demonstrates a general reputation or a character trait of the deceased.
I indicate immediately that on the basis of Ellem, I will treat these two prior convictions as impacting only on Rowan’s credibility and then only minimally so. The rape convictions are about 15 years old and Rowan’s version of the “road rage assault”, which stands as the only evidence on the topic, minimises his role in it. For instance, he admitted only a push and denied being drunk at the time.
There were three further instances of violent behaviour, leading up to the stabbing, which were admitted by Rowan in the course of his cross-examination. I will deal with these in my findings.
As to the defence case I direct myself that no adverse inference can arise from the failure of the accused to give evidence. However, he did submit to a long, and at times, vigorous police interview in the early hours of the morning of the 7^th March 2003. In the course of the interview, he explained his behaviour and put forward self-defence. The interview was adduced as part of the prosecution evidence. What the accused said in his record of interview was not evidence on oath before me, and thereby was not subject to the rigours of cross-examination. Nonetheless, both the inculpatory and exculpatory parts of it are material to which I can have regard (see Spence v Demasi (1998) 48 SASR 538 per Cox J at 540, 541).
Finally, Dr Jules Begg gave evidence that, though 20 years old at the time of the alleged offence, the accused’s psychological functioning was that of a 14 year old. As indicated by Perry J in R v Wheeler (supra) at [33 and 34] I need to advert to that evidence in considering “the genuineness of any belief which the accused might have had as to the reasonableness of his conduct”.
With the above directions in mind, I now turn to my findings on the evidence. I will identify any areas of contention and make specific findings as I proceed through what is essentially a narrative.
Evidence and Findings
The principal actors in this drama all resided in the beachside suburb of Grange within walking distance of the Grange Hotel. The alleged victim, Shane Rowan, was 32 years old at the time and was a concrete worker. He was a regular drinker at the nearby Grange Hotel. The accused was 20 years of age at the time. He too lived near the Grange Hotel and also frequented the hotel. They knew one another and each knew where the other lived. Both my observations of Rowan and the accused and the photographs of them show that Rowan was bigger and more strongly built than the accused.
Though not the subject of direct evidence, the relevant history commenced some weeks before the alleged offence when $50 was said to have been stolen from a person named Stephen. Stephen lived in the same apartment or flat complex, as the victim Shane Rowan. Stephen was also a friend of Mark Sullivan (97). Rowan was convinced that the accused had taken the $50. In fact, Rowan did not know whether the accused was the thief and said so in his evidence (33). Nonetheless, he took it upon himself to bring the accused to account for the theft.
The Lounge Chair Incident
About two weeks before the alleged offending, Rowan went to the accused’s flat at Unit 1, 606 Seaview Road, Grange, to confront him over the theft. The accused was not home. Rowan threw at least one of the large lounge chairs on the accused’s verandah over the balcony. He explained that he did it “because I thought he done it. I thought he’d taken the money ...” (40, 41).
I accept that this evidence of the lounge chair incident is admissible to prove the violent animosity which Rowan bore the accused. It is clearly relevant to the issue of whether or not the accused had reasonable grounds for apprehending that he was likely to be the subject of serious violence at the hands of Rowan and his companion Sullivan and to the issue of whether or not Rowan was likely to be the aggressor.
Invasion of Rowan’s Home
Immediately after this incident the accused, in company with others, went to Rowan’s house. I can only infer that it was a reaction to his chair being thrown over the balcony.
Save for an oblique mention of this incident by the accused in his video recorded record of interview, detailed evidence about this incident emerged only in cross-examination of Rowan by defence counsel, Mr Boucaut. In answer to Mr Boucaut’s questions Rowan said that the visit to his house by the accused and others occurred within hours of him throwing the chair over the balcony (46). He protested that the accused with “five or six, 20 year olds, 18 year old lads with baseball bats, sticks ...” invaded his home (46). In particular, he alleged that the accused entered his sons’ bedroom (45, 47). He agreed that he armed himself with a knife and angrily drove the accused and his companions off (47). He disagreed with the proposition that he was the aggressor in this incident and in particular disagreed when it was put to him that neither the accused nor his companions entered the house (46).
As in the case of the lounge chair incident, Mr Boucaut invited me also to use what emerged in evidence as to this incident to demonstrate the victim’s propensity to violence. Even if I accepted counsel’s suggestion that Rowan’s evidence was not worthy of belief, the only detailed evidence of this incident is that of Rowan to the effect that he threatened and warned off armed invaders of his home with a knife. Though it be rather obvious, suggestions made in cross-examination, if not accepted, are not evidence of the matters suggested (see R v Anastasiou(aka Peters) (1991) 21 NSWLR 394). In all, I do not regard the evidence of this incident as establishing any unjustified propensity to violence on the part of Rowan. In particular, I make no findings about this incident one way or the other.
Assault at the Grange Hotel
I now turn to the events at the Grange Hotel on the evening of Thursday 6^thMarch 2003 and the early hours of the following Friday morning.
Rowan arrived at the hotel at between 4 and 5 pm on Thursday evening. He left when told to do so by the management at about 1.00 am. During that time he ate a counter meal, drank 15 to 20 pints of full-strength beer and was involved in a physical confrontation with the accused (26-30). I turn to the confrontation.

The witnesses as to the confrontation were the alleged victim Rowan, Mark Sullivan (“Diesel”), the barmaid Jaya Manning and a friend of the accused named Damien Foran.
I conclude from all the evidence that some time after midnight the accused and Damien Foran went to the “pokie bistro bar area” of the Grange Hotel to play the poker machines. Rowan and Mark Sullivan were also there having moved into that area from the front bar. Rowan saw the accused and eventually confronted him about the $50 allegedly stolen from the person Stephen. I find also that Mark Sullivan was with or near to Rowan and lending support to him at the time. In answer to the accused’s denial of having taken the $50, Rowan pushed him over a stack of chairs. Mark Sullivan said that he broke up the altercation, whereas the accused told police that a person – clearly Sullivan – came over and also pushed him. I do not accept Mark Sullivan’s evidence as to this. I prefer what the accused said to police about Mark Sullivan’s involvement at this stage, albeit that it is only evidenced in the record of interview. The accused in the video recorded interview repeatedly claimed that Rowan and Mark Sullivan were intent on fighting him outside the hotel at the time of this incident.
The accused, Rowan and Mark Sullivan were told by the management to leave the hotel.
I accept that the incident is relevant and admissible to prove that Rowan was likely to be intent on doing violence to the accused that evening. I accept also that the accused had good reason to anticipate that Mark Sullivan would join with Rowan in confronting him.
So the accused left the hotel alone and went home, rightly apprehensive of Rowan and Mark Sullivan coming after him.
The wounding at Unit 1, 606 Seaview Road
I now turn to the events at the accused’s unit.
In his record of interview, the accused said that upon arriving home he telephoned some friends asking them to come around because “... I don’t feel safe ...”. His friends declined to come over. He put a knife in his pocket. He felt that the police would not be interested.
The prosecution evidence of what then occurred came from Shane Rowan, Mark Sullivan, Jaya Manning and Damien Foran. With the exception perhaps of Jaya Manning, there were problems of credibility and reliability in respect of all the above witnesses. However, the broad outline of what happened emerged from all of their evidence.
The accused, as he expected, was confronted at his front door by Shane Rowan and Mark Sullivan soon after he arrived home. It would have been shortly after 1.00 am. Rowan and the accused sat in the two lounge chairs which were on the front verandah. Mark Sullivan was nearby. A discussion began about the $50. It became heated. The accused claimed his innocence. Jaya Manning and Damien Foran arrived at a time when there was noise of scuffling and raised voices (115). They did not have a clear view for the whole of the time they were there. Jaya Manning said she left when it became violent. Foran said he was too scared to help his friend and moreover he was told “to back off” by Mark Sullivan (134).
Rowan and Sullivan said that a fistfight began (33, 34, 88). Jaya Manning eventually agreed that she saw Rowan punch the accused (123). Damien Foran’s evidence defied analysis save that he insisted that Rowan and Sullivan were attacking the accused and he talked in graphic terms of pushing and shoving (133, 134). The accused in his police interview said that Rowan hit him several times but that he did not hit back. Rather retreated to the doorway trying to evade Rowan. He said that Rowan “... just kept coming at me ...”. Mark Sullivan agreed that the accused was “standing in between the two doors as if he was trying to protect himself from Shane ...” (88). Foran also said that the accused was “... at the door trying to get back into his house but it was shut sort of thing ...” (136). Foran said that he saw the accused produce the knife and “... he just tried to get them away, you know what I mean ...” (135). The accused said in his police interview that he produced the knife and threatened Rowan but that Rowan would not back off and so, scared for himself, he stabbed Rowan once in the lower abdomen and then retreated into the unit.
I find that the accused was being physically assaulted by Rowan with support from Mark Sullivan. I further find that the accused was attempting to retreat into his own home but was prevented by his assailant from doing so. Finally, I find that after brandishing the knife and threatening Rowan in a fruitless attempt to deter him, he stabbed Rowan once, inflicting a small but deep wound in the lower abdomen.
Aftermath
Jaya Manning and Damien Foran left the scene and eventually gave assistance to the wounded Rowan. Jaya Manning caused the police and an ambulance to be called. Mark Sullivan pursued the accused into the unit doing damage as he searched for him. I do not accept Mark Sullivan’s evidence that he was intent on apprehending the accused. Rather, I am of the firm view that Mark Sullivan was setting out to do violence to the accused as was his object when he, together with Rowan, followed the accused home from the hotel.
Other Evidence
I accept without reservation the evidence of the surgeon Dr Melissa Bochner. Further, I accept the evidence of the psychiatrist Dr Julian Begg to the effect that the accused’s level of maturity and psychological functioning was that of a 14 year old.
The evidence of the witnesses Steven Goble, John Sullivan, the ambulance officers and the police officers was uncontentious and requires no elaboration.
Such are my findings as to the evidence in this matter.
Conclusion - Verdict
I find that all the elements of this offence have been proved beyond reasonable doubt, save for the element of unlawfulness.
It is necessary for the prosecution to establish that the wound in this case was inflicted on the victim Rowan unlawfully, that is, without lawful excuse. So the prosecution must prove that the accused was not acting in self-defence.
The relevant portion of s15 of the Criminal Law Consolidation Act 1935 (SA) provides as follows:
15 (1) It is a defence to a charge of an offence if –
(a) the defendant genuinely believed the conduct to which the charge related to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
As to the first question, I find that at the time the accused wounded Shane Rowan, it is at least reasonably possible that he genuinely believed that is was necessary and reasonable to do so in order to defend himself. In assessing whether the accused could have genuinely held the requisite belief, I take into account the evidence of Dr Begg as to the level of the accused’s psychological functioning. I indicate that even without such evidence, I would have come to the same view.
Quite apart from the accused’s own articulation of his belief, as set out in his police interview, the objective evidence shows that Shane Rowan was intent on assaulting him and had clearly flagged that intent to the accused earlier in the evening. The lounge chair incident also supports the accused’s expressed belief. Further, it was reasonable for the accused to assume from both the hotel assault and the arrival of Rowan with Mark Sullivan that he had two intoxicated assailants to repel. In particular, I accept that the accused reasoned that using the knife was necessary and reasonable given the determination of his assailants, the lack of immediate assistance and the effective cutting off of any line of retreat.
As to whether the conduct was reasonably proportionate to the threat, I find that the prosecution has not excluded as a reasonable possibility that the accused’s conduct, given the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat.
A knife is a hideous weapon, but on the threshold of his home, the accused was faced with two assailants who had earlier assaulted him and who were clearly intent on harming him. Earlier he had fruitlessly tried to recruit assistance from his friends. In the course of the confrontation, he sought to retreat into the unit when it was obvious that Rowan was not accepting what he said about the $50 incident and began assaulting him. He then presented the knife to deter Rowan but that was to no avail. There was no line of retreat for him. The law does not require him to stand and be beaten up on the doorstep of his own home, which was certainly in prospect in the circumstances of this matter.
So in my view, the prosecution have not negatived lawfulness beyond reasonable doubt. It is at least a reasonable possibility that in wounding Rowan, the accused was acting in self-defence within the meaning of s15.
Accordingly, the charge is not proven. My verdict is not guilty.