Rhodes v Roberts
[2013] ACTSC 145
•29 July 2013
BENJAMIN RHODES v GLYN EVANS ROBERTS
[2013] ACTSC 145 (29 July 2013)
APPEAL AND NEW TRIAL – appeal from Magistrates Court – appeal against conviction – whether open to the Court to be satisfied beyond reasonable doubt the accused was guilty – error on the ground of lack of inquiry – finding of guilt was unsafe and unsatisfactory – appeal upheld and conviction and sentence set aside
Evidence Act 2011 (ACT), s 38
Liberato v The Queen (1985) 159 CLR 507
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 40 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 29 July 2013
IN THE SUPREME COURT OF THE )
) No. SCA 40 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BENJAMIN RHODES
Appellant
AND:GLYN EVANS ROBERTS
Respondent
ORDER
Judge: Higgins CJ
Date: 29 July 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The conviction and sentence be set aside and a verdict of acquittal substituted.
Parties be heard as to any consequential orders.
This is an appeal against a decision of Magistrate Mossop (as he was then), handed down on 1 May 2012 whereby his Honour convicted the appellant upon a charge that he
... on 11 August 2011, intentionally did wound another person, namely, Perry Allen Weber
On 1 May 2012, pursuant to the finding of guilt, his Honour sentenced the appellant to 18 months imprisonment commencing 12 August 2012 and ending 11 February 2014. With other matters, there was a total head sentence of 35 months. A non-parole period was ordered expiring 30 April 2013.
The appellant had pleaded not guilty. An appeal was filed on 28 May 2012. The grounds of appeal were expressed as follows:
(a)Upon the whole of the evidence before the court, it was not open for the court to be satisfied beyond reasonable doubt the accused was guilty on the following grounds
i.The decision to convict was against the weight of evidence
ii. The learned Magistrate failed to take into account relevant matters, namely:
iii. Mr Weber’s (alleged victim) evidence was inconsistent with the evidence given by Michael [Whitney] and Robin McIlhagga – Mr Weber’s flat mates and witnesses for the Crown.
iv. Mr Weber’s evidence was inconsistent with the DNA evidence presented by the Crown
v. Mr Weber’s evidence was internally inconsistent
vi. Much weight was placed on the fact that the evidence of Ms Williams’s [sic] was inconsistent and not credible and did not support the appellant’s version of events. Ms Williams was a witness for the Crown.
The course of the proceedings before the Magistrate
In opening, the prosecutor, Ms Jones, foreshadowed that Ms Williams would be called as a prosecution witness but, as she was the partner of the appellant, Ms Jones sought leave to cross-examine her when she was called.
The appellant and Mr Weber occupied units at Red Hill. The appellant’s unit was above that of Mr Weber. Curiously, there was an electrical lead from the appellant’s unit down to Mr Weber’s unit. This was because the lessee of the lower unit had had the electricity to it cut off. The appellant had provided power to that unit until the lessee could have his connection restored.
Mr Weber also agreed that he had, as at 11 August 2011, owed Ms Williams $30 for a phone charger. He had not paid her. He had come home he said, about 9 pm and went to bed.
A little later he was told by Mr Michael Whitney, a co-resident of his unit, of a “ruckus upstairs”. He assumed it had something to do with the debt he owed Ms Williams so he took $30 from his wallet to pay that debt. He walked upstairs, opened the screen door, and knocked on the front door. The appellant, he said, came out yelling and swinging a punch. As the door opened, Mr Weber ducked and grabbed hold of the appellant by the wrist with his left hand. He saw a small knife blade in the appellant’s hand. He then said:
Once I had his wrist like that I’ve seen the knife. Then I’ve turned around and I saw the blood on the floor and coming out of me then I ... just started hitting.
Can I just ask you, before you grabbed his hand did you feel anything?
--- Just two thumps on the back, that was it. It was like someone trying to make you cough.
He had ducked down and to the left as he felt what he took to be punches to his back. He then saw the blood and the knife. He turned and saw blood coming out of him and realised he had been stabbed.
He swapped hands and punched the appellant in the face. The appellant fell down. Ms Williams was then, he said, “bouncing around” him. He pushed her out of the way and fled. He had entered the apartment by “one step” only.
It appears he had two stab wounds in his back. A lung was punctured. He was later treated and spoke to police.
He denied in cross-examination that the demand made by Ms Williams was to be paid for the power that the upstairs unit was providing. That, he asserted, would not have required his attendance because it was not his responsibility. He denied he went upstairs to protest at the power being shut off. He denied “barging in” or going more than one or two steps inside the upstairs unit. He further denied that he had assaulted Ms Williams or that he produced a knife when the appellant intervened to prevent that assault continuing. He was asked to explain how his blood came to be on the inside wall of the kitchen in the upstairs unit. He asserted his blood was “squirting out” and he did not know where it might have landed. He had hold of the appellant’s hand. “He’s trying to drag the knife out of my hand”. What he meant by the latter comment was not explained. He did agree that the positioning of the blood “doesn’t really gel with [his] story”. He further denied that he left with the knife and disposed of it.
It did appear that no knife was found that might have been involved in the fracas.
Mr Weber’s flat-mate, Mr Michael Whitney, was the next witness. He referred to an arrangement with Ms Williams about the electricity. It had nothing to do with Mr Weber, he said. He was woken by kicking at the door and Ms Williams yelling for Mr Weber to pay the money he owed her. He understood it was $30 for an MP3 player. That, of course, was a point of difference with Mr Weber in that Mr Webber asserted that it was for a phone charger. He also heard the appellant joining in the demand. He told Mr Weber to go and pay them.
Next thing, Mr Weber returned asking for an ambulance saying, “Effing Ben’s stabbed me”. He told Mr Whitney that the appellant had come at him with what he thought were punches.
In cross-examination Mr Whitney was asked, perhaps unwisely, the following:
And neither Mr Rhodes or Ayeesha Williams made any threats of violence to you? --- Yes, a few times.
He agreed, however, that neither of them had made any threats to him on the night in question.
The third resident of the downstairs flat was Mr Robin McIlhagga.
He recalled being disturbed by a lady, presumably Ms Williams, banging on the door and calling Mr Weber’s name in a loud and angry sort of manner. He heard Mr Weber leave and head upstairs. When Mr Weber returned, Mr McIlhagga recalled:
It was about a minute or two minutes later, I heard Perry coming back through the door, going towards his room, asking Mick to ring the police because he had been stabbed. I heard Mick sort of saying, “Well, who done it?” And I heard him say, “The fuckwit upstairs stabbed me in the back”.
In cross-examination Mr McIlhagga said he had not discussed the matter any further with Mr Weber.
Constable Sarhan attended shortly after the incident and spoke to the complainant, Mr Weber. She observed blood down his back and lacerations on his right shoulder blade. She then walked upstairs where she saw Ms Williams who said to her, “Help, help, I’ve been hit (or “bashed”)”. She was holding her jaw. The appellant was observed to be “a bit puffy, bit swollen” in the area of his right eye. He had “numerous small puncture wounds” on the inside of his left arm.
She could not, however, see any sign of injury to Ms William’s face. There were some blood-stained items of clothing on the floor of the bathroom.
Later, at the hospital, she was handed three blood stained $10 notes by the complainant, Mr Weber.
In cross-examination she agreed that Ms Williams had complained of being hit by Mr Webber, though she did not expressly name him. The appellant also complained that he’d been stabbed. She had recorded that he said:
He had been stabbed by the guy downstairs because he [that is, the appellant] wanted money for power.
Whilst the appellant and Ms Williams were asked about a knife, Mr Weber was not.
Constable Callaghan also attended. He noticed no injury to Ms Williams despite her complaint. He agreed with Mr Rutherford, for the appellant, that he did observe puncture wounds to the appellant’s left arm.
That was, of course consistent with the appellant’s allegation that Mr Weber had attacked them, stabbing the appellant and punching Ms Williams. Constable Kelly, who also attended, had searched for any knife that might have been used in the attack. He found none. Constable Smith agreed that the puncture wounds on the appellant’s arm were consistent with him struggling with Mr Weber over a knife that the latter was then holding.
Other police attended and some forensic examinations were undertaken. There was blood on the screen door of the upper unit and, unsurprisingly, outside of it. Of more significance to the appellant’s case was the presence of blood within the upper unit. There was a blood smear on the lino about a metre into the unit.
It was the appellant’s claim, as recorded by Constable Mundie, that what had happened was –
All I wanted him to do was to contribute to the power. He came upstairs and started laying into me. He hit Ayeesha.
When arrested, he said:
He stabbed me first. Why don’t you arrest that faggot that stabbed me.
The prosecutor called Ms Williams. Ms Jones made it clear that the witness was not tendered as a witness the prosecution believed to be a truthful witness. She sought leave to treat Ms Williams as an unfavourable witness under s 38 of the Evidence Act 2011 (ACT). That was not opposed by Mr Rutherford.
It is the learned Magistrate’s assessment of the effect of her evidence which was at the heart of his decision.
Her account of the confrontation commences with both herself and the appellant going down to the lower unit and Ms Williams screaming out Mr Weber’s name.
That part is consistent between all of the witnesses present at the time.
Ms Williams, when called, deposed, firstly, that she had come to an arrangement with Mr Whitney to supply his unit with electricity. He was to pay her weekly for that. However, she was clearly dissatisfied with that arrangement. She had received only $40, she said. Her bill, which she received that day, came to $1,000. She believed that those in the lower unit should pay at least half. Mr Weber, she said had promised to “pay me $80 the week on the Wednesday [sic]”. She said, of that conversation:
I also sold him a phone charger for $30. So he was going to pay $30 for the phone charger and the rest for the electricity they owed.
She stated that she was quite intoxicated when she banged on the door of the lower unit demanding money from Mr Weber. She had not had a good day. Her car had been bogged. In the rescue of it barbed wire wrapped around the appellant’s legs and he was dragged along with it. That caused bleeding from his legs.
Ms Williams had also taken Xanax. That and alcohol, she acknowledged, made her feel quite angry and “aggro”.
After her aggressive call to Mr Weber, she and the appellant, he apparently attempting to pacify her, went up to upstairs to their unit.
She next noticed, after about five minutes, that Mr Weber was at the entrance to the kitchen. She started, she said, “blowing [her] top”. He reciprocated and they got into a “ruffle”. It seems like a “scuffle” was being referred to. He struck her and she struck him. She was then knocked to the floor. The appellant intervened at that point and a scuffle ensued between him and Mr Weber. She saw a knife in Mr Weber’s hand. She did not recognise it as a knife she or the appellant had. The appellant was significantly taller than Mr Weber, by about 30 cm. They grappled over the knife. The appellant was cut, though she did not know if it was because of the stabbing by Mr Weber or in the struggle over the knife. She did not see Mr Weber get stabbed but accepted that he was. She saw a lot of blood when he turned to walk out the door.
She rang 000 and the terms of that call were played to the court below. In essence it records her allegation that Mr Weber assaulted and attempted to stab her and the appellant. There is a protest during the conversation from the appellant in the background apparently yelling at Mr Weber:
Try to stab me ... you try and stab me you piece of shit. You’re a drug dealer, a drug dealer.
and
You owe us five hundred in power.
She further complained that Mr Weber then left saying, “I’m going to go and tell them that I got stabbed”.
She said that she made that call as soon as Mr Weber left, though the text of the conversation suggests that it was started while he was still there.
Her observation was that, at some point, the appellant had possession of the knife, though, when he walked out, Mr Weber then had it. That clearly suggests that he had retrieved the knife either from the floor or otherwise.
She denied that Mr Weber had knocked on the door, that it was opened to him by the appellant, or that there was a scuffle at the doorway.
The appellant offered no further evidence.
He had been interviewed by police under caution. He had said nothing much save that Mr Weber had invaded his home and assaulted him and Ms Williams, including stabbing him.
There was also tendered a conversation recorded between the appellant and his mother from AMC. In that conversation, the appellant told his mother what he said happened. This was that he had asked for money for the power referring to the conversation at the lower unit, and “he”, presumably Mr Weber, “told me to get fucked”. So he “pulled the plug”, presumably after returning to the upper unit, but didn’t lock the door. Then Mr Weber came “flying” through the door with a knife. He continued:
... and fucking luckily Ayshia [sic] grabbed him by the arm where he had the knife, he stabbed me a couple of times but, like, only minor, like fucking I could scratch myself more than he got me. He dropped the knife, he punched her in the mouth, as I’ve bent down to fucking pick up the knife, he’s fucking driven me, like, mad – like, my – I couldn’t even see out of my fucking eye, it was that swollen.
... and I’ve picked up the knife and he’s grabbed me around the throat and I’ve reached over the top of him, because he’s a bit shorter than me, and I stabbed him just below the shoulder blade, stabbed him in the lung
He then denied he’d stabbed Mr Weber in the back as he was leaving or that the knife had been his.
There had been another out of court statement by the appellant, heard by Constable Corvisy (Ex 9). Relevantly, referring to Mr Weber, he had said:
I’m fuckin sore, all I wanted to do was go to bed, then this cunt started, I got hit by a car about an hour or so ago, I made a report. All I asked is whether he could contribute to the power, he came up and said ‘open the door’ I opened it up and he came for me, I don’t know what he had in his hand, but he got me pretty good. I fell to the ground. Then my girl got in the way and she got hit. Then he walked away.
He also said, when arrested:
Mate, he stabbed me first.
Submissions
Submissions were then made, first by Ms Jones, for the informant.
She referred to various versions of the event given extra-curially by the appellant. Those statements were not, of course, sworn or affirmed. They were not subject to cross-examination. However, as Ms Jones fairly conceded, he was not obliged to make any statement and what he said was evidence of his version of what had occurred.
The only other two eyewitness versions were those of Ms Williams and Mr Weber.
Ms Williams was, Ms Jones submitted, inconsistent with those versions and, indeed, between the versions given by the appellant and herself. She did not display any evidence of injury despite her claim of being struck, though, of course, the appellant did display some evidence of injury both to the face and the arm.
The objective evidence of blood deposits were not corroborative of either version of events, though the blood inside the upper unit was more supportive of the appellant’s than Ms Williams’ version, though, as was apparent, precise inferences from blood deposits are difficult to draw.
The fact that Mr Weber had $30 of money with him when he was, however it occurred, stabbed was supportive of his account.
Ms Jones did not seek to explain the terms of the background utterances of the appellant. They are certainly consistent with the appellant’s version of events rather than that of Mr Weber, although, as Ms Jones pointed out, the different versions attributed to the appellant are not consistent. That certainly appears from the various versions I have referred to above.
His Honour did note, in the course of argument, that there was no apparent reason, on Mr Weber’s account of it, why the appellant would, if Mr Weber was coming to pay money, attack him without any provocation or other cause.
Mr Rutherford pointed out that satisfaction in the guilt of the appellant depended on acceptance of Mr Weber’s version of events and rejection of the essentially opposite versions of Ms Williams and, though unsworn, the utterances of the appellant. He contended that the evidence of blood spatters in the upper unit contradicted the evidence of Mr Weber that he was attacked on arrival at the door of the unit and entered no more than one or two paces. In essence, he contended that the version given by the appellant raised self-defence and was consistent with the objective evidence.
It is certainly true to say that is indeed the case.
He did concede that Ms Williams’ account was not consistent with that version. He pointed to the absence of any motive for the appellant to attack Mr Weber on sight, as it were.
Of course, whilst that may be accepted, and Mr Weber might well have felt annoyed at being disturbed, he did attend with money in his hand. It was, apparently, $30 consistently with what he assumed the demand to have been. It is also consistent with payment for power not having been mentioned. It was not objectively established that the $30 was openly proffered but given that three bloodied notes were with Mr Weber in hospital, that is, at least, a credible assertion.
His Honour, in providing reasons for decision correctly noted that it was not merely a choice of Mr Weber’s version or that of Ms Williams. He expressed his task as being:
if I can be satisfied that Ms William’s evidence either alone or in combination with other evidence in the case creates even a reasonable doubt then I am obliged to acquit the defendant.
He cited, appropriately, Brennan J in Liberato v The Queen (1985) 159 CLR 507, 515. The relevant portion is:
The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
His Honour then went on to explain why he rejected Ms William’s evidence. Those reasons do provide a rational basis for that conclusion. That rejection concentrated on her assertion, not supported by any other evidence, that the appellant suffered a significant stab wound. He found no explanation in her evidence as to how the knife came to be removed from the unit. There was no apparent injury supporting her claim to have been assaulted by Mr Weber.
He did note that the extra-curial accounts given by the appellant also differed significantly from Ms William’s account in her evidence.
There was no corroboration, he found, of Ms William’s assertion about the electricity bill of $1,000. The extra-curial statements, obviously possessed by the prosecution do refer to power costs being a cause of conflict though of a recent bill.
That, of course, would erroneously place an onus on the defence if that assertion was to be regarded as important to a finding of guilt. It was a matter easily verifiable by the prosecution. It was not an issue that the prosecution had no notice of and, in any event, an adjournment could have been sought to verify that assertion or to refute it.
That the issue was important appears from his Honour’ statement:
Had there been some corroboration of those aspects of her evidence, her evidence might have been – I might have considered her evidence to be more reliable than I did.
His Honour had regard to the lack of evidence of agitation on Mr Weber’s part at being disturbed. His Honour, by way of contrast, said:
It’s also clear that the defendant was in a considerable state of agitation when heard in the background of Ms Williams’ second – Ms Williams’ 000 call after the events in question.
That is true so far as the state of agitation is concerned but it is inaccurate in terms of the conversation itself. Whether real or pretended, the conversation indicates that the appellant was being attacked with a knife and the events in question were continuing and not in the past. If he was being so attacked, the appellant’s state of agitation is understandable and consistent only with his version of events. The evidence of that call is not capable of being so readily dismissed as his Honour did.
It does, therefore, seem to me that error has been demonstrated on the ground of the lack of inquiry as to the recent power bill and the latter matter in particular.
I believe that the evidence as given, allowing that Mr Weber did not seem to be a witness whose evidence could be disbelieved, does not exclude the hypothesis that the incident occurred as stated by the appellant in his phone call to his mother. That was evidence of a version of the events which, though not sworn, is reasonably possible, particularly given the evidence of the blood deposits. It, by no means, is the more probable version but it cannot be excluded as a reasonable hypothesis. It is consistent with self-defence, including the defence of Ms Williams. Even accepting her version of events as exaggerated and, to some extent confused, it does not exclude the possibility that Mr Weber, enraged at being disturbed, came with money to pay her but pushed or struck Ms Williams to the floor following a brief altercation, whilst bursting into the flat to protest, and the appellant then acted as he described to his mother. Ms Williams phoned the police as she is recorded as doing whilst the confrontation between the appellant and Mr Webber progressed.
In those circumstances, it seems to me that the finding of guilt was unsafe and unsatisfactory. I so find and set aside the conviction and sentence. In the circumstances, the only response is to substitute a verdict of acquittal. I so order and will hear the parties as to any consequential orders.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 29 July 2013
Counsel for the Appellant: Mr T Quilter
Solicitor for the Appellant: Aboriginal Legal Service
Counsel for the Respondent: Mr A Williamson
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 31 May 2013
Date of judgment: 29 July 2013
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