Spaulding v Tasmania
[2023] TASCCA 15
•14 December 2023
[2023] TASCCA 15
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Spaulding v Tasmania [2023] TASCCA 15 |
| PARTIES: | SPAULDING, Ayden Michael James |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2842/2023 |
| DELIVERED ON: | 14 December 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 1 December 2023 |
| JUDGMENT OF: | Blow CJ, Pearce J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Assault – Circumstantial evidence – Whether any inference consistent with innocence reasonably open.
M v The Queen (1994) 181 CLR 487; Dansie v The Queen [2022] HCA 25, 274 CLR 651, applied.
Aust Dig Criminal Law [3476]
REPRESENTATION:
Counsel:
Appellant: P Willshire Respondent: M Allen
Solicitors:
Appellant: P Willshire Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASCCA 15 |
| Number of paragraphs: | 47 |
Serial No 15/2023
File No CCA 2842/2023
AYDEN MICHAEL JAMES SPAULDING v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ PEARCE J MARTIN AJ 14 December 2023 |
| Orders of the Court (1 December 2023): |
1 Leave to appeal granted.
2 Appeal dismissed.
Serial No 15/2023
File No CCA 2842/2023
AYDEN MICHAEL JAMES SPAULDING v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ 14 December 2023 |
1 The appellant, Ayden Spaulding, applied for leave to appeal against a conviction for the crime of assault. On 1 December 2023 this Court heard argument, granted leave to appeal, and dismissed the appeal, reserving our reasons for publication at a later date. I joined in the making of the orders for the same reasons as those now stated by Martin AJ.
2 No 15/2023
File No 2842/2023
AYDEN MICHAEL JAMES SPAULDING v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J 14 December 2023 |
2 I joined in the order dismissing this appeal for the same reasons as those now stated by Martin
AJ.
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File No 2842/2023
AYDEN MICHAEL JAMES SPAULDING v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 14 December 2023 |
| Introduction |
3 The appellant, Rad John Pearsall and Annabelle Vanessa Millhouse were jointly charged with Committing an Unlawful Act Intended to Cause Bodily Harm contrary to s 170(1) of the Criminal Code 1924 (the Code). Following a trial before a jury, Mr Pearsall was found guilty as charged. Ms Millhouse was found not guilty of the charge, but guilty of the alternative of Causing Grievous Bodily Harm. The appellant was found not guilty of the charge, but guilty of the alternative of Assault.
4 The appellant sought leave to appeal against his conviction on the sole ground that the verdict of the jury was unreasonable and could not be supported by the evidence. At the conclusion of submissions the Court granted leave to appeal but dismissed the appeal. I now set out my reasons for agreeing with those orders.
Evidence
5 The victim gave evidence that following an invitation via Facebook, he attended at a house where the attack upon him eventually occurred. The message asked if he was in possession of drugs and invited him to the residence of Ms Millhouse as she was alone.
6 According to the victim, when he arrived at the premises Ms Millhouse made sexual advances to him. He gave her some drugs which she injected while he got undressed and had a short shower. The victim and Ms Millhouse entered a bedroom with the intention of sexual activity, but there was a knock at the door which Ms Millhouse answered. The victim got dressed and, when he exited the bathroom, he saw Mr Pearsall with Ms Millhouse. A conversation followed concerning drugs and the victim gave drugs to Mr Pearsall.
7 The victim said that Mr Pearsall and Ms Millhouse were talking and Mr Pearsall made a phone call. A few minutes later there was a knock at the door and Mr Pearsall let a second male enter the premises.
8 According to the victim, until the arrival of the second male, the behaviour of Mr Pearsall and Ms Millhouse had been normal and friendly. However, immediately after the second male entered, Mr Pearsall aggressively attacked the victim with a baseball bat. Eventually Mr Pearsall coerced the second male by threatening him with the bat. After Mr Pearsall told the second male to strike the victim, the second male became involved by kicking and punching the victim to the head and body.
9 The victim described a lengthy assault which included attempting to tie him to a chair and him hiding under a table which was broken when it was struck by the baseball bat. He said he pleaded for them to stop, "screaming it nearly". Mr Pearsall told him to "shut up".
10 According to the victim, the scuffle continued and he was trying to protect himself. Then "there was a knock at the door". "Pretty immediately", Mr Pearsall dragged the victim by the arm out to the rear of the premises through the back door. After about a minute or a minute and a half, Mr Pearsall poked his head back inside the door and started talking. The victim said Mr Pearsall let go of him at this point and he jumped the side fence, went up the side of the house and around to the front of the
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premises. At the front, he stood by an unattended police vehicle which was parked at the front for a couple of minutes before leaving the premises. He went across the road, through the backyard of a house, jumped the back fence and went to a service station where he was assisted and an ambulance was called.
11 During cross-examination, the victim denied he was assaulted before he heard the first knock at the door. He denied that the person who came in after the knock at the door was Mr Pearsall who was told by Ms Millhouse that the victim had tried to rape her. The victim also denied he was chased out the back of the house by Mr Pearsall.
12 The victim said in evidence he believed it was the police who knocked on the door immediately before Mr Pearsall took him out the back door. During cross-examination he said he realised it was the police when Mr Pearsall put his head back in through the back door and was talking saying "he's run away".
13 As to Mr Pearsall making a phone call before the second male entered the premises, the victim acknowledged during cross-examination that he did not see Mr Pearsall using a phone. He heard Mr Pearsall talking and assumed he was on the phone. He did not know whether he made or received the call.
14 Counsel for the appellant cross-examined the victim to suggest that his assumption that it was the police who came to the door was incorrect. Rather than the police, another male may have turned up at that time. In response the victim referred to the fact that after he jumped the fence, he stood by a police vehicle at the front of the premises for a couple of minutes. The victim conceded there was a time gap between exiting through the back door and arriving at the front of the premises, a maximum of a couple of minutes. He accepted that he could not comment on the possibility that during the time gap someone else arrived rather than the police.
15 It was the Crown case that the appellant was the second male who participated in the attack after being threatened by Mr Pearsall. The victim did not know the second male and described him as a bit taller than Mr Pearsall. He was unable to give any further description.
16 The attack occurred on 2 July 2020. The appellant was interviewed by police on 3 July 2020. He said he and Mr Pearsall had been at the home of the appellant's mother. They were given a ride and, after Mr Pearsall was dropped off at the home of Ms Millhouse, the appellant was dropped at the home of the cousin of his girlfriend. While there he received a call from Ms Millhouse and Mr Pearsall saying someone had smashed up their house and they asked him to assist in cleaning up. In response to the call, the appellant walked to the home of Ms Millhouse where he saw the place had been "smashed up" and Ms Millhouse was distressed. He was there a short time with only Ms Millhouse before the police arrived and Mr Pearsall entered the premises through the back door. Asked how long he had been at the premises before the police arrived, the appellant said "Like not even a couple of minutes. It would have been like five minutes minimum, yep".
17 The evidence of a police officer who knocked on the door established that the appellant was inside the premises when police arrived.
| DNA |
18 Human blood matching the victim was found on the following items:
• The undersole of the appellant's right shoe. • Near the toe on the right side of Mr Pearsall's right shoe. 5 No 15/2023
• On the back of an office chair in the kitchen. • On the wall behind the chair. • On the handle of a knife found in the lounge room. • On a baseball bat found in the kitchen. 19 The evidence established that if the appellant walked through blood on the floor, blood could have been transferred from the floor to the sole of his shoe. The appellant's written submissions note that the stains on the undersole of the appellant's shoe were very small.
20 The victim's blood was not found on any other parts of the appellant's shoes. The appellant's written submissions observe that there were no impact patterns located on either of the appellant's shoes, and there were no marks or grazes on the appellant's hands. Nor were there any signs of blood on his clothes.
| Timing | |
| 21 | Critical to the appellant's case of arrival after the attack, and just before the police, is evidence concerning the timing of the attack and of the appellant's arrival at the premises. |
| 22 | The appellant's father provided the appellant and Mr Pearsall with a ride earlier in the evening. He gave evidence that he dropped Mr Pearsall at about 7.15pm, towards 7.30pm, and five to ten minutes later he dropped the appellant at the home of the appellant's girlfriend. |
| 23 | The evidence of the appellant's girlfriend (Ms W) was given by way of agreed facts. The essential features of those agreed facts were as follows: |
• "At around 7.20pm", Ms W spoke with the appellant on the telephone and the appellant told her he was at her cousin's premises. • Ms W arrived at those premises "at approximately 7.50pm". • "At around 8.00pm" the appellant received a phone call. During the call Ms W overheard the appellant say words to the effect of "I'll be down in a minute". • The appellant left the premises "at around 8.10pm or 8.15pm that evening". At the time he left, the appellant told Ms W he would be "back in 10 minutes". • "At 8.32pm" Ms W attempted to call the appellant but the call was not answered. 24 At about 8.00pm an immediate neighbour of the premises where the attack occurred (Ms J) heard yelling and screaming. She heard someone yelling and a man crying for help. A few minutes later she went out to the carport where she heard the same yelling and screaming. Ms J heard three voices, including Ms Millhouse and a male saying "shut up". While in the carport Ms J's mother called the police who arrived "about 5 to 10 minutes later". Once the police arrived, according to Ms J, the back door opened and it sounded like someone casually walked out the back door. She thought it was about 10 to 15 minutes at the most after she got out of the shower that the police arrived.
25 Ms J's mother (Ms B) said it was about 8.00pm when her daughter called her into the bathroom because of the noise. She heard a male voice crying for help and went out to the carport. She heard the cry for help being repeated over a period of "all up, I'd say 15-20 minutes". Ms B heard Ms Millhouse say "shut up" and a male say "I'm going to kill you now."
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26 It was approximately 8.30pm when police were tasked to attend at the home of Ms Millhouse. It was around 8.30pm, "not long after the radio room gave us the call", that police arrived at the door. Following a knock on the door, "it took a little while for someone to answer". The officer could hear scraping and rustling. It took roughly a minute for someone to open the door. Ms Millhouse opened the door only wide enough for the officer to see the face of Ms Millhouse who said everything was okay. After a couple of minutes the officers entered the unit and observed the appellant sitting on the arm of the couch. The appellant assured the officer that "everything was fine". After a brief conversation a male entered through the back door who was identified as Mr Pearsall.
27 In his record of interview, the appellant said his father took him to the home of his girlfriend "about 7, 7-ish". He said he got to the home of Ms Millhouse a couple of minutes after Mr Pearsall rang him. He was at his girlfriend's premises "not even 10, 15 minutes". The appellant said he was at the home of Ms Millhouse for not even a couple of minutes, perhaps five minutes, before the police arrived.
Submissions
28 In written submissions, counsel for the appellant advanced the following propositions:
•
The Crown failed to exclude the rational hypothesis that the second male involved in the assault was not the appellant who arrived just before the police and after the violence had concluded.
•
The evidence of Ms W established that the appellant was at the premises with Ms W at 8.00pm, and did not leave the house until "8.10pm-8.15pm".
• The neighbours heard the confrontation at around 8.00pm. • From the times given by the neighbours, the noise ceased between 8.15pm and 8.20pm. • The victim's evidence as to his times was wrong. • Mr Pearsall was dropped at the premises of Ms Millhouse after 7.15pm and towards 7.30pm. •
"The complainant's evidence is that when Rad arrived, they had a short conversation lasting approximately 10 minutes. He gave Rad some drugs which he used; he was away for 5 minutes Rad made a phone call at the same time he went to use drugs. The knock on the door happened very soon after and in a relatively short space of time after Rad arrived. Based on the complainant's time estimates, this makes it approximately 15-20 minutes. It is clear from this evidence that the second male arrived before 8:00pm and therefore could not be the appellant."
•
"Other evidence which corroborates the appellant's plausible explanation is the fact that SC Wozniak saw no obvious signs of blood on his hands, knuckles, or clothing despite the complainant's evidence that he was punched multiple times by the second male."
•
The blood found on the sole of the appellant's shoe could have been the result of the appellant walking through blood on the floor of the kitchen, and there was no evidence of the victim's blood on other parts of the appellant's shoe.
• There were no impact patterns located on either of the appellant's shoes. •
The victim did not see who was at the door when the knocking occurred and assumed it was police. There was a time gap from Mr Pearsall taking the victim out the back door, and before he jumped the fence. The victim was suffering from badly injured eyes. It was dark and the victim was in flight from the premises. It was open on the evidence that the second male left through the back door to escape the premises.
7 No 15/2023
• Ms J heard footsteps, someone walking casually, which is consistent with a second male escaping from the premises. By way of contrast, the victim gave evidence that Mr Pearsall pulled him outside and told him to be quiet, thereby causing additional noise. 29 In summary, the Crown advanced the following submissions:
•
The violence did not start until after Mr Pearsall and Ms Millhouse made a phone call and, a few minutes later, the second male entered the premises. This evidence was consistent with the appellant's statement to police concerning the call and, over a few minutes, walking to the premises of Ms Millhouse.
•
According to the victim, the violence continued until there was a knock on the door. The only rational inference was that police were knocking on the door which caused Mr Pearsall to take the victim out the back door.
•
The victim described a short delay while he was held outside before Mr Pearsall poked his head back inside. This is consistent with the delay described by the police officer who had knocked on the door.
•
This conclusion is reinforced by the victim's evidence that he went to the front of the house where he observed an unattended police vehicle.
•
"There is the inherent improbability that Mr Spaulding's innocent arrival to Millhouse's unit occurred in such a way that [the victim] has already left the unit so as to never see or mention another person beyond the three people who attack him; the police don't see the appellant until they eventually gain access to the unit and find him sitting on the couch, and that in the time it takes for the complainant to get away from Mr Pearsall around to the front of the unit, the police have arrived and made their way to the unit, but not seen [the victim]."
•
The defence hypothesis "becomes impossible when this evidence is considered as a whole, including the earlier evidence in respect of the phone call. The jury were entitled to find that the phone call was from Mr Pearsall to the appellant, and occurred before any violence was inflicted to the complainant. There was clear and cogent evidence that once [the victim left his girlfriend], it would have taken only a matter of a few minutes for the appellant to be at [the home of Ms Millhouse]." The violence commenced immediately after the arrival of the second male.
•
It was open to the jury to exclude the possibility that a male other than the appellant was present with Mr Pearsall and Ms Millhouse at the time the violence was perpetrated against the victim.
Principles
30 The principles to be applied by the appellate court upon an appeal asserting that the verdict of a jury is unreasonable and cannot be supported by the evidence are not in dispute.[1] In Dansie v The Queen the High Court placed the test for the Court of Criminal Appeal in the context of a case in which the prosecution is reliant upon circumstantial evidence:
[1] M v The Queen (1994) 181 CLR 487; Dansie v The Queen [2022] HCA 25, 274 CLR 651.
"[12]
The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the 'test set down in M' required a court of criminal appeal to undertake an 'independent assessment of the evidence, both as to its sufficiency and its quality' and that consideration of what might be labelled 'jury' questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially
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circumstantial requires the court of criminal appeal itself 'to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard' and in so doing to form its own judgment as to whether 'the prosecution has failed to exclude an inference consistent with innocence that was reasonably open'." (Footnotes omitted.)
31 As Dansie and numerous authorities well demonstrate, the Court of Criminal Appeal must have regard to all the evidence, and to the advantage possessed by the jury in seeing and hearing the witnesses. In the matter under consideration, this includes the advantage of seeing and hearing the evidence of the victim, who was cross-examined by three counsel.
Discussion
32 The appellant's case that the reasonable hypothesis consistent with innocence had not been excluded faces a number of obstacles. First, it relies upon the following propositions:
• Based on the evidence of Ms J and Ms B, the attack commenced about 8pm and continued on until approximately 8.15-8.20pm. • The evidence given by Ms W, through the agreed statement of facts, is "irrefutable" and "her times must be relied upon". • Ms W said the appellant was with her at 8pm and did not leave the house until 8.10pm-8.15pm. 33 The appellant's submission elevates certain times to a position of immutable fact. In examination, Ms J was asked what she was doing "at around 8 o'clock". She said she had just got out of the shower and could hear yelling and screaming. Asked to estimate the time that elapsed between getting out of the shower and police arriving, Ms J said "about 10 minutes. Ten to 15 minutes at most".
34 Ms J's mother, Ms B, was asked whether she remembered having an exchange with her daughter "at about 8 o'clock", being the exchange which bought her attention to the noise from next door. Asked how long the noises continued, Ms B said "I would say a good 15 minutes", and "all up, I'd say 15 to 20 minutes".
35 Neither Ms J nor Ms B were cross-examined about the times. As to the commencement of the noises, both witnesses responded to the prosecutor's question as to "what you were doing at around 8 o'clock", and "do you remember having an exchange with [your daughter] at about 8 o'clock that evening". Neither witness was asked any question directed to fixing the time with any precision. Nor were they asked any question directed to the reliability of any memory as to the time.
36 As to the evidence of Ms W, with the exception of two telephone calls, the times given by Ms W were not precise. The precise time related to a phone call between Ms W and the appellant which was stated as "7.27pm". No explanation was provided as to how the precise time was known, but it is a reasonable inference that it might have been showing on Ms W's mobile telephone.
37 Of significance are paragraphs 4 and 6 of the agreed statement of facts that:
• Ms W arrived at the premises at "approximately" 7.50pm. • "At around 8pm" the appellant received a call and Ms W heard him say "I'll be down in a minute". • The appellant left the premises at "around 8.10pm or 8.15pm". 38 Paragraph 7 of the agreed facts states that "at 8.32pm" Ms W attempted to call the appellant but the call was not answered. As with the earlier precise time of 7.27pm, there is no explanation for how
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the precise time is fixed. Both precise times stand in contrast to the use of the words "approximately"
and "around".39 It is not appropriate to elevate the agreed statement of facts as to the time the appellant departed from Ms W as a statement of precise time binding upon the jury. First, it was not expressed as a precise time. Secondly, s 191 of the Evidence Act does not dictate that a jury is bound to find an agreed fact proven. As Stone J observed in Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58, 183 FCR 10 at [35], notwithstanding the admission of agreed facts as evidence, it "still remains for the court to determine whether the facts are to be accepted as true and to determine what weight to attribute to that evidence".
40 The hypothesis advanced by the appellant is firmly contradicted by the totality of the evidence. First, the victim gave evidence of a phone call a few minutes before the second man entered the premises. In other words, the phone call preceded, by a few minutes, the commencement of the assault. Although the victim could not see that a phone call was taking place, his evidence dovetailed with the agreed facts from Ms W that the appellant received a call, said words to the effect "I'll be down in a minute", and left the premises within about 10 to 15 minutes.
41 There was no suggestion in cross-examination that either Mr Pearsall or Ms Millhouse made a second call. If the call heard by the victim was not to the appellant, but to another male who arrived after a few minutes and participated in the assault, when was a second call made which was answered by the appellant?
42 It was open to the jury to be satisfied that only one call was made, namely, the call to the appellant. It was also open to the jury to find that a few minutes after the call, the second male entered the premises.
43 The victim gave unchallenged evidence that a few minutes after the second male entered, the attack started. He said it continued unabated until the second knock on the door. It was open to the jury to be satisfied that:
(i) No phone call was made during the attack.
(ii) The attack ceased immediately following the second knock on the door.
(iii) Mr Pearsall took the victim out the back door.
(iv) The second male, the assailant, did not exit through the back door.
44 The appellant's hypothesis necessarily involves the proposition that, somehow, the appellant made his way into the premises after the knock on the door which caused the attack to cease, but before the police knocked on the door. If it was the appellant's knock which brought the attack to a halt, on his case Mr Pearsall and the second assailant disappeared out the back door before the appellant entered. This hypothesis is rebutted by the evidence of the victim which the jury were entitled to accept.
45 In addition, it was open to the jury to find it was the police knock on the door which brought the attack to a halt. The officer who knocked gave evidence of a short delay. This sequence aligned with Mr Pearsall taking the victim out the back door, after which the victim made his way to the front of the premises and saw the unattended police vehicle.
46 The appellant's hypothesis was conclusively excluded. It was open to the jury to find accordingly. My reading of the evidence left me in no doubt as to the appellant's guilt.
47 For these reasons I agreed with the order dismissing the appeal.
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