Reynolds v Beasland
[2018] ACTMC 20
•18 September 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Reynolds v Beasland |
Citation: | [2018] ACTMC 20 |
Hearing Dates: | 1 March 2018; 20 March 2018 |
DecisionDate: | 18 September 2018 |
Before: | Special Magistrate Hunter |
Decision: | See [81] – [95] |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 27 Criminal Code 2002 (ACT) s 403 Evidence Act 2011 (ACT) ss 116, 165 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C Road Transport (Third-Party Insurance) Act 2008 (ACT) s 17 Road Transport (Vehicle Registration) Act 1999 (ACT) ss 18, 22 |
Parties: | Constable Paul Reynolds (Informant) Christopher Beasland (Defendant) |
Representation: | Mr J Walker (Informant) Mr H Jorgensen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant) | |
File Numbers: | CC 2363 of 2017 CC 2748 of 2017 CC 2749 of 2017 CC 2750 of 2017 CC 2751 of 2017 CC 2752 of 2017 CC 2753 of 2017 CC 10019 of 2017 |
SPECIAL MAGISTRATE HUNTER
Mr Beasland came before me having been charged with the following eight charges:
(a) CC 2363 of 2017 – Use offensive weapon intentionally and unlawfully against the person that was likely to cause grievous bodily harm, contrary to s 27(3)(c) of the Crimes Act 1900 (ACT). The weapon was a blue Ford Falcon sedan registered YJV70M.
(b) CC 2748 of 2017 – Fail to stop a motor vehicle when signalled by a police officer as soon as practicable, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).
(c) CC 2749 of 2017 – Intentionally cause damage to a red Hyundai belonging to Elza Gericke, contrary to s 403(1) of the Criminal Code 2002 (ACT).
(d) CC 2750 of 2017 – Use a vehicle with a numberplate properly issued for another vehicle, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT).
(e) CC 2751 of 2017 – Be an unlicensed driver who has never held a drivers licence, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT).
(f) CC 2752 of 2017 – Use a vehicle with suspended registration, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT).
(g) CC 2753 of 2017 – Use an uninsured motor vehicle on a road, contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT).
(h) CC 10019 of 2017 – Assault occasioning actual bodily harm upon Constable Simon Gribble, contrary to s 24 of the Crimes Act 1900 (ACT).
These charges all arise out of one incident which occurred on 8 October 2016. The circumstances surrounding these charges were said to be that two police officers, Constable Dean Leeson and Constable Simon Gribble, observed a blue Ford Falcon registration YJB70M in poor condition on Hibberson Street in Gungahlin near the Raiders club.
Constable Leeson had dealings with this vehicle previously so decided to follow it. The vehicle sped away and the police lost sight of the vehicle. After searching, they found the vehicle on Kosciuszko Avenue in Palmerston. The vehicle had collided with a red Hyundai.
Police parked in front of both vehicles. Constable Gribble exited the police vehicle and went to the front of the Ford vehicle so that he might identify the driver. Constable Gribble approached the front driver’s side and the vehicle accelerated onto the traffic island.
Constable Gribble was in front of the vehicle and was thrown onto the bonnet and windshield. The vehicle accelerated and Constable Gribble fell off. The vehicle drove over Constable Gribble’s legs as the vehicle drove away.
There is little divergence in relation to the facts. The blue Ford Falcon with registration plates YJB70M was involved in the collision with the red Hyundai. I am also satisfied that the vehicle which struck Constable Gribble was the blue Ford Falcon registration plate YJB70M.
The question really comes down to who was driving the vehicle at the time.
Evidence
Eyewitnesses
Daniel Wells was at Palmerston shops when he saw a police officer lying in the middle of the road. Mr Wells said he saw a person in the blue Ford vehicle flip him the bird[1]. He also said the vehicle drove off screeching its tyres and revving its engine.
Helen Marshall provided a statement in which she said she saw a red car and a blue car stopped on the road. The blue car moved to the median strip and the police officers got out to approach the vehicles. A police officer had been standing between her car and the blue car. As the police officer moved forward, the blue car drove towards him and hit him with the front passenger side of the car. The police officer was lifted off the ground and smashed into the windshield. He then fell off the car, landing on the road next to the wheel. The blue vehicle took off over the median strip on the front passenger side. The vehicle hit the red car and did not stop. She said that, in her opinion, the Ford vehicle did not intend to hit the police officer with the angle in which it drove, but the vehicle did not stop before or after hitting him.
Elza Gericke provided a statement in which she said she took a photo of the blue flakes of paint on her red car. These were said to have come from the blue Ford vehicle when it collided with her vehicle.
John Hannah provided a statement where he said he saw a police van drive up the gutter onto the median strip and stop. He saw a small red car moving towards him, travelling west along the other side of Kosciuszko Avenue. He saw this vehicle stop on the road. He saw the blue Ford Falcon, which had been driving west along the other side of Kosciuszko Avenue, pull out from behind the red car up and onto the median strip. It continued on the median strip towards the police officers. Mr Hannah saw one police officer using a hand-held radio, and the other was waving his arms to signal the driver to stop. He saw the blue Falcon drive along the median strip and accelerate directly towards a police officer. Mr Hannah said it was clear to him that the driver of the blue Ford Falcon was not going to stop.
He said the driver of the blue Falcon would have been able to clearly see the police officer and had time and space to stop the vehicle before he reached where the police officer was standing. He said the blue Falcon drove straight at the police officer, and he saw the vehicle hit the police officer. The officer went across the bonnet and into the windscreen, smashing it. The police officer then rolled down the side of the vehicle. He said the blue Ford Falcon did not slow down when it collided with the officer, it had continued to accelerate, and the vehicle had continued west along Kosciuszko Avenue.
Daniel Wells also provided a statement which was similar in nature to that of Mr Hannah.
Vehicle
The blue Ford Falcon registered YJV70M was found in Noakes Court in Charnwood, in close proximity to an address the defendant was known to frequent being 6 Tompsitt Court. A walkway connects Noakes Court to Tompsitt Court, opening between numbers 6 and 8 on Tompsitt Court.
The vehicle was in a parking area and had a blue tarpaulin over it. On inspection, the vehicle had damage to its front end and also a smashed windshield. These are consistent with the evidence from eyewitnesses about the officer hitting the front end of the vehicle, flying onto the bonnet, and crashing into the windshield.
Police were alerted to that vehicle by a woman who lived close to the parking area where the vehicle was found.
Stuart McCulloch gave evidence that he was walking his dogs along Noakes Court near number 11. The woman who lived there asked him if he knew who owned the vehicle with the cover over it. Mr McCulloch pulled back the cover and saw the smashed windshield. He allowed his dogs to smell the car, and he indicated that he had trained two dogs. Mr McCulloch said the dogs took him down the walkway and stopped between numbers 6 and 8 on Tompsitt Court. Mr McCulloch saw Mr Mills sitting on his verandah in a wheelchair.
Mr McCulloch said he knew Cherie Quinn and that number 6 Tompsitt Court was her house. In cross examination, Mr McCulloch stated that the dogs were looking to go towards number 6, but he stopped them from doing so.
Mr McCulloch said that the woman from number 11 went inside to ring police. She then told Mr McCulloch that a police officer had been run over by a vehicle. When police arrived, they asked Mr McCulloch to take them to where the dogs had sniffed a trail. The police went down the walkway into Tompsitt Court.
Forensic analysis
Police uplifted the vehicle and it was examined by forensics services. Swabs for DNA analysis and fingerprints were taken, and the forensic members found apparent blood on the steering wheel and the exterior of the windscreen. The swabs for detecting DNA were compared to the swabs taken from the defendant.
The results were that the blood on the exterior window was that of a male person not on the data base.
The swab from the gearstick revealed a mixed profile with the major component coming from the defendant. The likelihood ratio was that it is at least 100 billion times more likely that the major component of the observed DNA profile originated from Mr Beasland than it originated from another unknown unrelated individual selected at random from the Australian Caucasian subpopulation.
The swab of the apparent blood on the steering wheel was compared to that of Mr Beasland and the likelihood ratio was 100 billion times more likely to be his than from another person.
The conclusion from the forensic scientist revealed there is extremely strong support for the proposition that the DNA profile obtained from Mr Beasland when compared with the swabs taken from the blue Ford is 100 billion times more likely to be his than from another person.. In my view, it is also consistent with evidence that the blood found on the exterior windscreen of the vehicle most likely was that of Constable Gribble.
Those results are strong evidence that it was the defendant who was driving the vehicle at the time of the incident because the likelihood of the defendant injuring his finger from the broken glass in the course of the incident is significant.
(a) Constable Paul Reynolds
Constable Reynolds conducted forensic investigations of the Ford vehicle, including a fracture fit of the damage to vehicle. Constable Reynolds also conducted a search warrant at 6 Tompsitt Court with Katalina Kaihea and Phillip Walpole present. During this search, Constable Reynolds found a broken numberplate YJB70M in the fire pit in the backyard of the residence.
Constable Reynolds gave evidence that Cherie Quinn and Katalina Kaihea denied they knew the defendant. He said he heard Ms Quinn speak to Ms Kaihea and say, when the defendant was in court and they were outside she could not believe the defendant was not pleading guilty and that Mr Walpole was the passenger in the vehicle at the time it hit when it hit the police officer.
Identification
(a) Constable Dean Leeson
Constable Leeson saw the vehicle being driven by a male person. He stated that he had viewed somewhere in the order of 12 or 13 photographs of suspects matching the description of the defendant. He recognised none of them to be the driver of the Ford vehicle. Further photographs were examined by Constable Leeson. In one of them he recognised the person in the vehicle as being the defendant. This was confirmed he examined a photograph on police indices and also a photograph in Facebook. Constable Leeson said he is 100 per cent certain it was the defendant who was driving the vehicle when it struck Constable Gribble.
I was asked to make an interim finding in relation to that identification evidence, having consideration of the evidence before me, the authorities, and the legislation. Having considered that material and also submissions, I decided the evidence was admissible and I allowed it to be admitted.
(b) Kai Mills
The evidence from Kai Mills, a neighbour of the defendant, was critical in establishing that it was the defendant who drove and owned the Ford vehicle. I found Mr Mills to be a credible witness who was unshaken in his testimony.
He stated he had seen the defendant drive that particular car on a number of occasions, and he had seen that numberplate on the car. [I note Police found the numberplate YJB70M in the backyard of the residence of the defendant.] Mr Mills said he saw the defendant driving that vehicle a couple of days before the incident. Mr Mills said he knew it was the defendant because the defendant had a tattoo with BEZZO on his forearm.
Mr Mills said the only other person he had seen drive the vehicle was a female.
Mr Mills said that Cherie Quinn, the mother of the defendant, had told him a couple of days before the police questioned him that the defendant was the driver of the vehicle involved in the incident with the police. After reviving his memory in court, Mr Mills said he was told that it was Bezzo (the defendant) driving the car and Phil was the passenger.
Mr Mills said that Ms Quinn also told him that police were looking for Bezzo and for Mr Mills not to tell the police where the defendant was.
(c) Phillip Williams
Mr Williams gave evidence that he lived in Tompsitt Court and knows the defendant drives a blue Falcon. Mr Williams said he knows the defendant because he came over to borrow tools for the Ford once. The defendant was introduced as Chris by Cherie Quinn, who came with him to return the borrowed tools. Mr Williams had seen the defendant drive a “fair few times” The defendant drove this vehicle for a couple of months in 2016, and Mr Williams knew this information through Ms Quinn. He stated he also knows Katalina Kaihea.
Mr Williams said that, on the day of the incident, he saw the defendant get into the car and drive off down the road.
Phillip Walpole, Cherie Quinn and Katalina Kaihea gave evidence before me.
After having heard their evidence and the way they gave their evidence I found that Phillip Walpole, Cherie Quinn, and Katalina Kaihea were not witnesses of truth. They obfuscated their evidence and denied knowledge of matters clearly within their knowledge.
They had motive to lie: Mr Walpole because the evidence, which I accept, clearly suggests it was him as the passenger in the vehicle at the time of the incident; Ms Quinn and Ms Kaihea because they were lying about their knowledge of the defendant staying at 6 Tompsitt Court. I also consider they all had a motive to lie because they were involved with the defendant in one way or another.
I am also satisfied that they lied about their lack of knowledge that the defendant stayed at 6 Tompsitt Court and that his vehicle was parked there when he stayed at that address.
(d) Phillip Walpole
Mr Walpole gave evidence that he knows both Cherie Quinn and Katalina Kaihea, and he had never seen the defendant at 6 Tompsitt Court. He denied ever seeing the damaged Ford or seeing the defendant drive that vehicle. He denied ever being in the car, and he denied he was the passenger in the vehicle when it hit the police officer, despite his fingerprint being found on the windshield. Mr Walpole could not account for that fact.
I found this witness to be evasive and untruthful, most likely because he was implicated as a passenger in the vehicle on the day of the incident.
(e) Cherie Quinn
Cherie Quinn has lived at 6 Tompsitt Court for 13 years. Katalina Kaihea is her daughter. Ms Quinn gave evidence that she knows Phillip Walpole and also Phillip Williams, although did not know his last name.
Ms Quinn gave evidence that she does not know the defendant, she only knows of him. She said she was not living at 6 Tompsitt Court when he lived there, and she does not know who was living there at the time. When shown a photograph of the blue Ford, she said her brother owns a similar car. She said she had never seen that vehicle at 6 Tompsitt Court, and she did not recall anything about borrowed tools. When shown a photograph of her backyard, with the 44 gallon drum fire pit and the numberplates, Ms Quinn said she did not know they were there. She said she did not remember refusing police entry to her home at 6 Tompsitt Court on 8 October but she said she was happy for them to look on 9 October. She said this was because of a fight with her boyfriend which resolved and she was going to stay to his place on 9 October. Ms Quinn denied contact with the defendant at court.
Leave was granted to cross examine the witness.
Ms Quinn denied knowing the defendant. She denied knowing the car or that the defendant drove the car, and denied that the car was parked outside her residence. She denied speaking to police about the defendant or the vehicle. She denied knowing Kai Mills, and denied having a conversation with him about the defendant being the driver and Mr Walpole being the passenger. She denied ever ringing Kai Mills to ask him to take his phone over to the defendant so she could speak with him. Ms Quinn denied the comments attributed to her by Constable Reynolds. It was suggested that she refused police entry on 8 October because she knew the defendant was hiding there, and she denied this. She denied that she was lying to protect the defendant because he is her daughter’s friend.
I found this witness to be evasive and untruthful. Her evidence is highly unreliable.
(f) Katalina Kaihea
Ms Kaihea denied knowing the defendant, and said that she only knows of him. She denied living at 6 Tompsitt Court, saying instead that her mother lived there and she lives in Fraser. She denied that the defendant stayed with her at 6 Tompsitt Court, or that their was a vehicle with a damaged back window parked there. She said she had never seen the blue Ford, she has never seen the defendant drive it, and that she does not drive, explaining that she is always “fried on drugs”.
Ms Kaihea denied speaking to police on 8 October telling them to fuck off, and she denied seeing the fire pit barrel in the back yard. She denied that the police told her about the accident. Ms Kaihea denied that she had a conversation with Kai Mills, or that she knows him at all. She denied that she told Mr Mills the police were looking for the defendant. She denied telling Mr Mills not to talk to police about the defendant because he was the driver of a vehicle that hit a police officer.
Ms Kaihea denied that on 1 March 2018, she said outside court that Bezzo must have done eight months on remand. She denied pointing out the defendant to Ms Quinn. She denied Ms Quinn saying to her that she didn’t understand why the defendant was not pleading guilty because he ran over the police officer. Ms Kaihea denied the defendant is a good friend of hers and that she was lying to protect him.
Submissions
Prosecution
The prosecutor submitted that there were two key themes: identification, and who was responsible for causing the injuries to Constable Gribble.
The prosecutor submitted that this was a circumstantial case and that I must exclude all reasonable hypotheses consistent with the defendant’s innocence. The prosecutor indicated that in order to prove the offences I must combine the circumstantial evidence together with the identification evidence which I had already admitted. The prosecutor indicated there were three strands and, together, those strands are capable of proving the elements of the offence.
The first strand was that the car found by police on Noakes Court was the same car involved with running over Constable Gribble. I accept and, in my view, there is no doubt that the car which hit Constable Gribble was the blue Ford Falcon with the damaged back window and, at the time it was found, a damaged windshield which had been caused by the impact with Constable Gribble.
The second strand is what connection the defendant has with that vehicle, if any at all, and the third strand was whether there was a connection between the offences committed which involved that vehicle and the defendant being the driver of that vehicle at the time of the offences.
The prosecutor set out the elements of each of the offences:
(a) CC 2363 of 2017 – that a motor vehicle is considered to be an offensive weapon and that the defendant intentionally used that offensive weapon against Constable Gribble knowing that it was likely to cause grievous bodily harm. The defendant in doing so acted unlawfully and knew he was acting unlawfully, which amounted to intention. In this case intention is not really in contest insofar as the evidence is quite clear the car was driven rapidly towards Constable Gribble. The driver did not brake or swerve to miss him and it appeared that the driver’s intention was to hit the officer, who was in police summer uniform and plainly visible to the driver.
(b) CC 2748 of 2017 – that both officers Gribble and Leeson pursued the vehicle trying to pull it over and, if I accept that the defendant was the driver, that evidence proves the elements of that offence.
(c) CC 2749 of 2017 – that I should be satisfied on the evidence of Mr Gericke, officers Leeson and Gribble, exhibit 18, and photograph 25 that the red Hyundai vehicle was damaged by the blue Ford vehicle.
(d) CC 2750 of 2017 – that the numberplates displayed on the vehicle were not issued to that vehicle and I have section 72 certificates in relation to that issue.
(e) CC 2751, 2752, 2753 of 2017 – that, if I am satisfied that the defendant was the driver of the vehicle, I would be satisfied that those charges have been proven beyond a reasonable doubt.
(f) CC 10019 of 2017 – that, if I am satisfied that the defendant was the driver of the vehicle, I would be satisfied that this charge have been proven beyond a reasonable doubt.
The prosecutor properly identified that identity is the key issue in this matter, that is, who was driving the car at the time of the incident. The prosecutor stated that there was three stands in relation to identification.
The first strand is that the vehicle found on Noakes Avenue was the same vehicle which hit Constable Gribble. The evidence to support this is the damage to the vehicle consistent with the damage caused at the scene when it hit Constable Gribble that blood matched to the defendant’s DNA was found on the steering wheel of the vehicle, that vehicle had been covered over by a cover and was found sometime after lunch on 8 October. That car was found on Noakes Ave, very close and linked by a walkway to Tompsitt Court.
The second strand is from Mr Mills’ evidence where he said he had seen the defendant driving that vehicle on a number of occasions and parking it at 6 Tompsitt Court Charnwood prior to 8 October and close to that date. He had met the defendant on one occasion where he was asked by Ms Quinn to relay his phone to the defendant who was at 6 Tompsitt Court so Ms Quinn could speak to the defendant. Mr Mills said the defendant had a tattoo on his forearm of the word BEZZO, and that he had seen that tattoo on occasions when he saw the defendant driving the blue Ford vehicle.
Further, the registration plates which Mr Mills had seen on the blue Ford vehicle were found in a 44 gallon drum used as a fire pit in the backyard of number 6 Tompsitt Court Charnwood under a search warrant. Headlight fragments were matched by the forensic fracture fit with those of the blue Ford involved in the incident with Constable Gribble. The vehicle had a smashed windshield, which is consistent with Constable Gribble hitting the screen and damaging it. The blood found on the steering wheel and other areas of the driving apparatus of the vehicle was matched to the defendant’s DNA with a likelihood accuracy of 100 billion. The location of that DNA blood is highly suggested that the defendant drove the vehicle when the windshield was damaged, causing the blood to be deposited when Constable Gribble hit the windshield and smashed it. There was also a palm print on the bonnet of the motor vehicle belonging to Mr Walpole.
The evidence of Mr McCulloch who said that his dogs followed a trail from the blue Ford which had been parked and covered in Noakes Court down to Tompsitt Court. That the dogs were looking over toward numbers 4, 6 and 8. [I note the dogs were not said to be looking at Mr Mills who also outside of his home on 8 Tompsitt Ct.]
In terms of the identification, there are a variety of people who saw the defendant drive the blue Ford: Mr Mills saw the defendant drive the car on several occasions; Mr Williams had a limited recollection but said the defendant drove that vehicle around the time of the accident; as well as the descriptions of eyewitnesses to the incident involving Constable Gribble, including the police.
The evidence of Mr Walpole, Ms Quinn and Ms Kaihea, who all said they had never seen the car, is simply not credible considering the other evidence which I have found to be credible. Ms Quinn and Ms Kaihea at least knew the defendant and knew that he was at 6 Tompsitt Court, and also that he drove the blue Ford vehicle involved in the accident. Both Ms Quinn and Ms Kaihea denied they were living at 6 Tompsitt Court, yet when police attended on the day of and the next day they were both at that address. Mr Walpole’s palm print rebuts his denial of knowing the defendant or indeed the car, and is objective evidence that his denial of knowledge of the Ford is untruthful. The prosecutor submitted that I should not accept the evidence given by those three as their evidence was unreliable. I agree with that proposition, and I found them all to be dishonest witnesses.
All of the evidence before me is consistent with the defendant being the driver of the motor vehicle at the time.
The prosecutor submitted that if I were to accept that the defendant was the driver of the motor vehicle, the removal of the plates and the covering of the motor vehicle is a consciousness of guilt. I accept that is a reasonable hypothesis to consider.
The evidence supporting identification of the defendant are as follows:
(a) the identification by Constable Leeson;
(b) the fracture fit of the damage of the blue Ford from colliding with the red Hyundai;
(c) the defendant was seen by Mr Mills driving a motor vehicle on several occasions, and identified him by a number of means including the tattoo on his forearm;
(d) the defendant was identified by Mr Williams who had seen him drive the blue Ford and had lent him tools to fix it;
(e) the damaged Ford was found near the defendant’s home, covered so as to hide the damage;
(f) the defendant’s DNA was found from swabs of steering wheel, handbrake and gear stick;
(g) the defendants palm print was found on the bonnet of the blue Ford;
(h) a fingerprint belonging to Mr Walpole was found on the passenger side windscreen of the blue Ford.
The issue of identity arises as to whether it was the defendant or Mr Walpole driving the motor vehicle at the time of the incident. It was the defendant’s blood on the steering wheel. The fact that the windscreen was damaged and fractured would account for the blood on his hands, which is consistent with him having driven the vehicle at the time of the incident. The defendant’s DNA was found on swabs of the steering wheel, gear stick and brake of the Ford, further supporting that he was the driver. The fingerprint of Mr Walpole, found on the front passenger side of the windscreen, further supports the evidence that it was the defendant driving and Mr Walpole as passenger when the incident occurred.
I also note that Ms Quinn was overheard making a comment as to the fact that the defendant had run down the police officer and should plead guilty to it. There may be some truth in that because, on the day of the incident, she refused police entry to her home and was very rude to them, as was the daughter. Yet, the next day, she was happy for them to search the premises. This conduct is consistent with her hiding the defendant in her home at the time she refused entry to police. That is a view plainly open on the evidence, given the fact that the registration plates were also found in the 44 gallon drum in the backyard of her home the next day.
Defence
Defence submitted that this was a circumstantial case and that most of the evidence was not in dispute as to what happened. It is really a matter of whether it was a defendant who was driving the vehicle at the time of the incident, and I must be satisfied beyond a reasonable doubt that it was he who was driving the vehicle, given there were two people in the car.
It was suggested that the DNA found on the car does not suggest when it was placed there, that the submission by the prosecutor that it only arose from when the windshield was smashed during the course of the incident is not a conclusion I could draw because it could have been deposited at another time. The defence submitted that the defendant could have cut his finger pruning roses.
Defence also submitted that he could have touched the steering wheel whilst he was in the passenger seat. I note that his DNA was found on the steering wheel, brake, and gear stick, as well as his blood on the steering wheel and his palm print on the bonnet. I also note that the bonnet was open in the photos.
There was some suggestion by the defence that Ms Quinn and Ms Kaihea knew of the defendant, but did not know him. I reject that suggestion, given the evidence before me that they clearly knew him and that he had been to the house for some period of time.
It was suggested that the evidence connecting this incident to the defendant is weak and it could have been another person driving the vehicle. I reject that submission. In my view the evidence is extremely strong that it was the defendant who was driving the blue Ford when it struck Constable Gribble.
It was suggested that the police were anxious to “get their man quickly”.[2] I do not accept that. In my view, the police were very professional and efficient in finding who drove that vehicle. In fact they waited until the day following the incident for a warrant to search 6 Tompsitt Court.
It was submitted that there are gaps in the chain or rope of the circumstantial case, which was a fraying rope rather than a strong one. I don’t agree with that submission either.
The defence quite properly raised identification in the course of the hearing. I admitted evidence of identification over objection. Defence submitted I now have to consider how reliable that evidence was either by itself or with other evidence. Police identified the defendant by virtue of a Facebook photo and their recollection of the driver whom they had a short opportunity to see. Defence also submitted that, given there were two people in the car, I should look at Mr Walpole as the driver because his fingerprint was also found in the car.
At the end of submissions I made a comment to defence counsel that his client had a short-sleeved shirt on and I observed that he had a tattoo with the words BEZZO written quite largely on his inside forearm. Defence counsel asked me to ignore my observation of that tattoo and I have done so.
Identification evidence
I gave myself a warning pursuant to s 116 of the Evidence Act 2011 (ACT) when I considered whether to admit the evidence. I was also referred to s165 of that Act in relation to the unreliability of this type of evidence and I did so when admitting that evidence. I warned myself that there is a need for caution before accepting identification evidence because of the inherent danger of that type of evidence being unreliable.
Having admitted that evidence I warned myself that I must consider whether the evidence is relevant to a fact in issue. The fact in issue is that it was the defendant who was driving the Ford vehicle. I am satisfied that identification is relevant in this matter.
The identification evidence came from Constable Leeson who pursued the vehicle and then saw it over a period of minutes when it collided with the Red Hyundai and then hit Constable Gribble, as well as recognition evidence as to the usual driver of the Ford vehicle given by Mr Mills.
Identification evidence was not the only evidence. There was other evidence supporting the fact that it was the defendant who was the driver of the vehicle. There was very strong evidence, such as his DNA found on swabs taken from the driving components of the blue Ford being the gear stick, steering wheel and handbrake, as well as his blood found on the steering wheel itself. There was also a palm print belonging to the defendant found on the blue Ford after it had been found close to 6 Tompsitt Court. There was evidence that he had been seen at 6 Tompsitt Court driving that blue Ford in a period close to the incident, and the registration plates seen on the vehicle at the time of the incident were found at 6 Tompsitt Court by police the day after the incident.
Decision
In my view, there is little in dispute as to what happened on 8 October 2016. That evidence is quite compelling.
I find as a matter of fact that the blue Ford vehicle with the damaged back window and bearing registration plate YJV70M was the vehicle involved in the incident on Kosciuszko Avenue between the red Hyundai, the police vehicle and Constable Gribble on 8 October 2016.
I am satisfied upon the evidence given by Mr Mills and Mr Williams and I find as a matter of fact that the vehicle had been parked at 6 Tompsitt Court in the days before the incident. I find as a matter of fact that the vehicle involved in the incident was secreted after the incident at a place away from 6 Tompsitt Court but close to it and connected by a walkway.
I am satisfied that the registration plates seen on the vehicle at the time of the incident were removed from the vehicle and placed in a 44 gallon drum at 6 Tompsitt Court. I find as a matter of fact that those registration plates were not properly issued for that vehicle.
I find as a matter of fact that it was the defendant’s blood found on the steering wheel of the vehicle. I find as a matter of fact that it was the defendant’s DNA on the steering wheel, gear stick and hand brake of the blue Ford registration bearing YJV70M. I find as a matter of fact that the defendant’s handprint was found on the bonnet of the blue Ford bearing registration YJV70M. I find as a matter of fact that Mr Walpole’s fingerprint was found on the passenger side windscreen of the blue Ford bearing registration YJV70M. I find as a matter of fact that the blood found on the external windshield belongs to Constable Gribble because it is consistent with Constable Gribble falling into the windshield breaking the glass. That it is consistent with the injuries he suffered.
I am satisfied and I find as a matter of fact that the defendant had been seen driving the vehicle in question on a number of occasions prior to 8 October 2016. I am also satisfied and I find as a matter of fact that the defendant either lived or was staying at 6 Tompsitt Court at or around the time of the incident. That is consistent with the evidence of Mr Mills, and Mr Williams. I am satisfied and I find as a matter of fact that Constable Leeson identified the defendant as being the person who was driving the vehicle at the time of the incident on Kosciuszko Avenue. I have given myself the usual warning in relation to identification and the danger of its use.
I find as a matter of fact that the driver of the vehicle intentionally used the vehicle he was driving to collide with Constable Gribble and cause him actual bodily harm.
I have taken into consideration all of the circumstantial evidence together with the evidence of identification and the DNA and fingerprint.
Having taken those matters and findings of facts into account, as well as the matters to which I refer in the body of my decision, I find beyond a reasonable doubt that the driver of the blue Ford bearing registration YJB70M at the time of the incident was the defendant.
It was conceded that if I found the defendant to be the driver of the vehicle at the relevant time, I would be satisfied as to the charges relating to his driving of the Ford.
I am satisfied on the evidence and manner of his driving as witnesses by both police and civilian witnesses that the defendant used the blue Ford intentionally as an offensive weapon to cause grievous bodily harm to Constable Gribble.
I am also satisfied on the evidence that the defendant assaulted Constable Gribble and occasioned to him actual bodily harm by the use of the blue Ford vehicle.
I am also satisfied on the evidence that the defendant intentionally damaged the red Hyundai in order to escape police apprehension.
I am also satisfied on the evidence that the defendant failed to stop for police when requested to do so.
I am satisfied that the defendant was unlicensed at the time of the offences on 8th October 2016. I am also satisfied that the vehicle had a suspended registration and was uninsured.
Orders
I make the following orders:
1. In relation to charge CC 2363 of 2017, use offensive weapon intentionally and unlawfully against the person that was likely to cause grievous bodily harm, I find that offence proved beyond a reasonable doubt.
2. In relation to charge CC 2748 of 2017, fail to stop a motor vehicle when signalled by a police officer as soon as practicable, I find that offence proved beyond a reasonable doubt.
3. In relation to charge CC 2749 of 2017, intentionally cause damage to a red Hyundai belonging to Elza Gericke, I find that offence proved beyond a reasonable doubt.
4. In relation to charge CC 2750 of 2017, use a vehicle with a numberplate properly issued for another vehicle, I find that offence proved beyond a reasonable doubt.
5. In relation to charge CC 2751 of 2017, be an unlicensed driver who has never held a drivers licence, I find that offence proved beyond a reasonable doubt.
6. In relation to charge CC 2752 of 2017, use a vehicle with suspended registration, I find that offence proved beyond a reasonable doubt.
7. In relation to charge CC 2753 of 2017, use an uninsured motor vehicle on a road, I find that offence proved beyond a reasonable doubt.
8. In relation to charge CC 10019 of 2017, assault occasioning actual bodily harm upon Constable Simon Gribble, I find that offence proved beyond a reasonable doubt.
| I certify that the preceding ninety six [96] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Special Magistrate Hunter Associate: Olivia Sparrow Date: 17 September 2018 |
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