Riley v The Queen
[2004] WASCA 92
•3 MAY 2004
RILEY -v- THE QUEEN [2004] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 92 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:54/2003 | 3 MAY 2004 | |
| Coram: | MALCOLM CJ MURRAY J WHEELER J | 3/05/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Conviction quashed | ||
| B | |||
| PDF Version |
| Parties: | PERCY JAMES RILEY THE QUEEN |
Catchwords: | Criminal law Assault occasioning bodily harm Appellant alleged to be an aider in commission of offence No direction as to knowledge required Verdict unreasonable |
Legislation: | Nil |
Case References: | Ward v R (1997) 19 WAR 68 R v Beck (1990) 1 QdR 30 O (A Child) v The Queen, unreported; CCA SCt of WA; Library No 970219; 9 April 1997 Avis v The Queen (2002) WASCA 250 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RILEY -v- THE QUEEN [2004] WASCA 92 CORAM : MALCOLM CJ
- MURRAY J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
File Number : BUN 58 of 2002
Catchwords:
Criminal law - Assault occasioning bodily harm - Appellant alleged to be an aider in commission of offence - No direction as to knowledge required - Verdict unreasonable
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Conviction quashed
Category: B
Representation:
Counsel:
Applicant : Mr C L J Miocevich
Respondent : Mr D Dempster
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ward v R (1997) 19 WAR 68
Case(s) also cited:
R v Beck (1990) 1 QdR 30
O (A Child) v The Queen, unreported; CCA SCt of WA; Library No 970219; 9 April 1997
Avis v The Queen (2002) WASCA 250
(Page 3)
1 MALCOLM CJ: I would ask Murray J to give the first judgment in relation to this matter.
2 MURRAY J: This is an appeal against conviction. The indictment contained a number of charges upon which the appellant and one Bert Junior Riley were presented before the District Court in Bunbury for trial. So far as the appellant is concerned, two counts affected him. They both related to an incident which occurred on 26 February 2002. The charges were that Bert Junior Riley and the appellant committed an offence of burglary upon the house of a Mr Miles, in company, armed with a tyre lever, and the house being one ordinarily used for human habitation. Both men were convicted of that offence and the present appeal, so far as it is now pursued, does not relate to that conviction sustained by the appellant. An additional offence was charged against the two men jointly that Mr Miles was assaulted and caused bodily harm. It is in relation to that conviction, sustained by both men, that this appellant appeals.
3 Effectively, following amendment, the appeal is upon one ground which alleges a misdirection or a failure to adequately direct the jury on the law and the evidence in relation to count 8 on the indictment, the assault occasioning bodily harm. Counsel has indicated that the point at issue concerns the provisions of s 7 of the Criminal Code and the allegation made as to how the appellant might be criminally liable for the assault committed. It has been indicated that the ground is also intended to raise the appellant's contention that the conviction sustained was unreasonable and against the evidence within the meaning of the Criminal Code, s 689(1).
4 The directions given by the learned trial Judge are as follows: firstly at 117 of the appeal book, his Honour, speaking of count 7, reminded the jury that it was said that both men were involved in the commission of that offence, either as principal offenders, or one committing the offence and the other giving some help. His Honour continued in this manner:
"I think the Crown prosecutor put it on the basis that Bert Junior Riley was the one that went in and that Percy was the one that was on the lookout and gave the call to go outside because the police were coming, etc, but the position is if you as a jury found that one or both of them were involved in the commission of that offence, that would be sufficient."
(Page 4)
5 His Honour paused his remarks shortly afterwards at that point and gave the jury a short break. When the Court resumed, the foreman of the jury asked for a further explanation about charge 8 as to, in the way that the foreman put it, "the guilt, not guilt, of any one or part of the offence by all those that have been involved." His Honour understood what was being sought and went on to say this:
"The position is that in relation to count it is said by the Crown that both of the accused were involved in the commission of this offence. The Crown does not say, and it is not part of the Crown case, that necessarily one or the other used the implement. It is said that one or other of them used the implement and one or the other assisted in the commission of that offence, whether it be by holding the door open or standing on guard, etcetera.
So the position is that in relation to that particular matter the elements would be that each accused was involved in some way in the commission of the offence either by way of actually committing the assault or by being involved in assisting in some way. It is not said that one person in particular actually hit the blow. It was one or the other.
There is a suggestion on the Crown side, as I understand it, that Percy James Riley was standing out while the other man Bert Junior Riley committed the offence but if as a jury, the jury were satisfied that one or those people named committed the offence of actually doing the assault and the other assisted in some way in the commission of that, that would be adequate. Each of them could be found guilty of the offence of the unlawful assault."
6 Perhaps it matters little but in fact the Crown case was firmly that it was not this appellant but his co-offender who committed the assault by striking Mr Miles with the bar or weapon and there was direct evidence to support that approach in that Mr Miles' blood was found on the tracksuit pants of the co-offender some hours after the commission of the offence, and so there was some direct evidence of his close proximity to Mr Miles when the blow was struck.
7 The other point to be observed is that his Honour merely said by way of explanation of count 8 in answer to the juror's question effectively what his Honour said in relation to count 7, the burglary charge, and there is no
(Page 5)
- reference to the need to establish that the acts of aiding or assisting in the commission of the offence were committed consciously, deliberately or were willed acts done in the knowledge of what offence it was in respect of which assistance was being provided.
8 It is necessary to briefly refer to the fact that the Crown's case relied upon either s 7(b) or (c) of the Criminal Code, a provision which makes liable for the commission of an offence, not only the principal offender, the person who actually committed the offence, or did the act which constitutes the offence, but also every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence and every person who aids another person in committing the offence.
9 The acts which are said to constitute the provision of such aid would have to be done deliberately, they would have to be willed acts, and that is the requirement of s 23 of the Code. It is necessary therefore that these acts would have to be done with knowledge of the offence being committed or in the knowledge of the offence likely to be committed. The leading authority in that regard is the case of Ward v R (1997) 19 WAR 68, a decision of his Honour Steytler J, with whom Kennedy and Franklyn JJ agreed.
10 So it is clear in my opinion that the direction was deficient in that, while it recognised perhaps that the appellant could not be found beyond reasonable doubt, or may not be found beyond reasonable doubt, to be the principal offender, it did not require the jury to be satisfied beyond reasonable doubt that any act which the appellant did which might constitute an act of rendering aid in the commission of the offence was one done consciously, knowing what the co-offender was likely to do or was doing by way of the assault occasioning bodily harm.
11 In addition, I think it is also clear, when one examines the evidence which was before the court at trial, that the verdict could not be sustained. The evidence was simply lacking to establish the conscious or deliberate provision of assistance by the appellant in the commission of the offence in question.
12 There was evidence from Mr Miles that he and his elderly wife - they were both elderly folk - were at home in bed in the middle of the night. In fact, the power was out. It had failed; so it was, to use Mr Miles' expression, "pitch-black". He became aware, and his hearing is much better than hers it would appear, that there was an intruder in the house, at
(Page 6)
- least one intruder. The intruder had made sounds which indicated that the bedroom door had been opened and then partially closed.
13 Mr Miles asked his wife to telephone the police. He got out of bed. She did not. He went to the door. He attempted to push it closed and keep it closed but from the other side opposite force was exerted upon the door and the intruder gained entry to the bedroom. He struck Mr Miles over the head with the bar, which was perhaps seen more clearly ultimately by Mrs Miles. He actually lost consciousness as a result of the blow struck and when he regained consciousness, he was outside in the passageway in the vicinity of an adjacent bedroom.
14 At that time he heard his wife being asked for the combination of the safe or for her purse. Later he heard a voice say, "Let's get out of here." In cross-examination it appeared that he heard the additional words, "The police are coming," and a little later again there was the comment as they endeavoured apparently to leave through the front door, "This place is like Fort Knox". It appeared that they had gained entry through the back of the house.
15 As I have said, Mrs Miles was awakened and became aware of the trouble in the way that I have described but she could see nothing of what occurred. She was aware that Mr Miles was involved in some fight or struggle with an intruder and then while she remained in bed, the intruder came to her. He was shining a torch. She could see the bar that he had, with which he threatened her before taking her bag with her purse in it.
16 She had phoned the police when she had been asked to do so. While the intruder who entered the bedroom was there, she heard a voice from outside the room somewhere calling out, "The police are here," and she later heard someone say, "How do we get out of this place?" That was the entirety of her evidence.
17 On the basis that it was not possible to establish beyond reasonable doubt that the appellant was the intruder who actually committed the assault upon Mr Miles, it is necessary to consider whether there was any evidence capable of sustaining the view beyond reasonable doubt that, if the appellant was the other person who was in the house, somewhere in the house without it being possible to say precisely where at any given time, he was, at the time that he rendered any aid in the course of the burglary, aware of the likelihood that an assault would be committed. Alternatively, was he, when he rendered aid to draw attention to the
(Page 7)
- presence of the police and to get the two men out of the house, aware that an assault was being committed or had been committed.
18 There was simply, in my opinion, insufficient evidence to deal with that question, a question which, as I have already indicated, was in my view, by his Honour's directions, not in fact addressed at the trial in any event.
19 For those reasons, in my opinion, the appeal should be allowed and the conviction of assault occasioning bodily harm recorded against the appellant should be quashed.
20 MALCOLM CJ: I am of the same opinion. I would only note that it has been conceded by the respondent that there was no prima facie case against the appellant in respect of count 8; namely, the aggravated assault occasioning bodily harm. While the circumstantial evidence was such that it might reasonably be inferred that the appellant's presence at the scene amounted to aiding, there was no evidence to establish the required standard that theeappellant intended to aid the co-offender, Bert Junior Riley, in the commission of the assault which was the subject of count 8.
21 The only evidence as to count 8, leaving aside the denial on the part of the appellant and his co-offender that they were even present, came from the two elderly complainants to which Murray J has referred.
22 In my opinion, the concession made on the part of the State was correctly made. For that additional reason and for the reasons which have been stated by his Honour, I am of the same opinion, that this application should be upheld and the conviction quashed.
23 WHEELER J: I am in agreement with the conclusions of Murray J and with his Honour's reasons. I have nothing to add.
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