R v Wymarra

[2008] NSWDC 190

CITATION:	R v WYMARRA [2008] NSWDC 190
HEARING DATE(S):	30/10/07-31/10/07
JUDGMENT DATE:	1 January 2008
JURISDICTION:	Crime
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	Hinder investigation of a serious offence
LEGISLATION CITED:	Crimes Act 1900 s 315.
PARTIES:	Regina ALexander WYMARRA
FILE NUMBER(S):	07/11/0535
COUNSEL:	Mr N Adam Mr C Watson

JUDGMENT

Regina v Alexander Wymarra

The Trial

1 When arraigned on 30 October 2007, the accused pleaded not guilty to the offence that, on 19 November 2005 at Kings Cross, he falsely stated to a police officer that blood found of the body and clothing of Raymond Wymarra was the accused's blood, with intent to hinder the investigation of a serious indictable offence, i.e. murder, committed by Raymond Wymarra.

2 On 29 October 2007, the accused elected to be tried by judge alone. I was satisfied that, before making the election, the accused sought and received advice from his legal representative (Exhibit).

Undisputed Facts

3 At about 11:15 p.m. on 18 November 2005, Isaaac Dinsdale was stabbed to death at Woolloomooloo. Police allege that Raymond Wymarra, the accused's 17 year old son, participated in the attack. In the early hours of 19 November, Nicole Piesley, who knew both the deceased and the accused, telephoned the accused and said that she wanted to discuss something "really important". Later, they met in Woolloomooloo. The accused arrived in an Echo vehicle, accompanied by his son and another person, who was driving. There to another location, where Ms Piesley and the accused had a private conversation. She informed him that the deceased had been stabbed to death. The accused looked shocked and "seemed dumbfounded". Soon after the conversation, at 3 - 3:15 am, the Echo vehicle unsuccessfully attempted to evade the police. The vehicle was stopped and the occupants were arrested. As one detective approached his son, the accused yelled out "Tell them fucking nothing". Police told the accused that his son was a murder suspect. One officer saw that the accused "had an injury to his left ear that had been bleeding". She "could see dried blood around his ear".

4 At the scene of the arrest and at the Kings Cross Police Station, the accused exercised his right to silence. Further, he did not want the exercise of his right to silence to be recorded.

5 At about 5:44 a.m., Detective Sergeant Sipos approached the accused. He saw that the accused's left ear was covered bandaids (and see also Exhibit). The following conversation ensued.
Detective Sipos: ...We are investigating the murder of Isaac Dinsdale at Woolloomooloo and will be completing a forensic procedure in the form of a buccal swab and photographs. You understand that?"
The accused: "Yes."
Detective Sipos: "The procedure is videotape recorded. Do you understand that?"
The accused: "Yes."
Deceptive Sipos: "I understand that you have spoken to the Aboriginal Legal Service and don't wish to be interviewed. Is that correct?"
The accused: "Yes."
Detective Sipos: "The forensic procedure is for the purpose of comparison to exhibits at the scene. Do you understand that?"
The accused: "Yes."
Detective Sipos: "Do you consent to the forensic procedure?"
The accused: "Yes."
Detective: "We will need to get a court order for a forensic procedure for your son as he has blood on his leg and sock."
The accused: "That's my blood."
Detective Sipos: "I understand what you are saying and don't necessarily believe you. The forensic procedure will show whether it is or not."
The accused: "We'll see."
6 Later, when asked about the cut to his ear, the accused said: "I box. I got it cut a couple of weeks ago and where it is gets opened up again."

7 Blood stains on Raymond Wymarra's inner calf and socks (Exhibits E and F) were matched to the deceased's DNA. Of two small blood stains found on the accused's belt (Exhibit G), one was matched to the accused and the other was matched to the deceased.

8 In February, 2006, a doctor said that the wound to the accused's ear could have been caused by a blow and could have occurred a few months up to a year earlier. The accused did engage in boxing and, in late 2005, did exit a boxing room complaining of an injury to his ear.

The Issues

9 The onus is on the Crown to prove each of the elements of the offence beyond reasonable doubt.

10 The elements of the offence are:
(1) the accused did an act (made the statement "that's my blood");
(2) intending in any way to hinder;
(3) the investigation of a serious indictable offence committed by another person (the murder allegedly committed by Raymond Wymarra).

11 As to elements (1) and (3), there is no factual or legal dispute. I find each element proved beyond reasonable doubt.

12 The real issue is whether the Crown has proved beyond reasonable doubt that the accused had the relevant intent.

13 The parties agree that the the onus is on the Crown to proove the accused's intent from the established circumstances. As it is a circumstantial evidence case, the accused could be convicted only if there was no available rational inference other than the inference that he had the relevant intent.

14 For practical purposes, the question is: has the Crown negatived an available rational hypothesis that, at the time when he uttered the words in question, the accused believed that the blood on his son's leg and sock may have been the accused's blood rather than that of the deceased? The Crown argued that the accused could not possibly have believed that the blood on his son's leg and sock may have come from the accused.

The Circumstances Relating To Intent

15 The Crown relied on the following circumstances.

(1) Raymond Wymarra was the accused's son, someone whom the accused would want to protect.
(2) At the time when he made the relevant statement, the accused knew that his son was a murder suspect, as Ms Piesley and police had conveyed that information.
(3) At the scene of the arrest, the accused exhorted his son to say nothing.
(4) The accused exercised his right to silence and went as far as refusing to have the exercise of his right to silence recorded. The subject volunteering of information is inconsistent with the accused's otherwise trenchant position on speaking to the police.
(5) The only blood that the accused had shed on his own body was the small quantity on his belt. That is inconsistent with his blood finding it's way to another person, particularly to their lower extremities.

16 The Crown argued that I should infer that the accused was at the scene of the murder. The Crown referred to the facts that the deceased's blood was found inside the accused's belt, buckle, that Raymond must have been at the scene of the murder and that, a matter of hours after the killing, Raymond had accompanied the accused to meet Ms Piesley for the purpose of discussing "something really important". I do not draw that inference. There was a significant lapse of time between the murder and the meeting with Ms Piesley. The accused was neither overly anxious nor overly resistant to meeting Ms Piesley. He was "dumbfounded" at what she said.

17 I note the following matters.
(1) The accused had a recent left ear injury which had been bleeding.
(2) There is corroboration for the accused's statement that the injury was sustained through boxing.
(3) The evidence is silent about when the ear was bandaged.
(4) The evidence is largely silent about what occurred after the murder and before the arrest, and whether anything occurred which may have caused blood to be transferred from the accused to his son or may explain the lack of blood on the accused himself.
(5) When Detective Sipos was sceptical about the accused's assertion, the accused responded "We'll see", a response which was, perhaps, consistent with a belief that his assertion would be verified by forensic testing.

18 While it is very probable that the accused made the statement in an impulsive but deliberate attempt to mislead the police and protect his son, I cannot exclude the rational inference that he believed that blood found on his son's leg and sock may have been the accused's blood rather than that of the deceased.

19 I find the accused not guilty.