The Queen v Maurice Herbert Vagg
[2005] ACTSC 134
THE QUEEN v MAURICE HERBERT VAGG
[2005] ACTSC 134 (21 November 2005)
EX TEMPORE JUDGMENT
CRIMINAL LAW – common assault – trial by judge alone – no issue as to principle
Supreme Court Act1933 (ACT), ss 68B, 68C,
Crimes Act1900 (ACT), s 27
Fleming v Queen (1998) 197 CLR 250
The Queen v Thomas James Collins [2004] ACTSC 48
R v Massey [2000] ACTSC 107
R v Tran [2003] ACTSC 53
No SCC 11 of 2005
Judge: Connolly J
Supreme Court of the ACT
Date: 21 November 2005
IN THE SUPREME COURT OF THE )
) No SCC 11 of 2005
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
MAURICE HERBERT VAGG
ORDER
Judge: Connolly J
Date: 22 November 2005
Place: Canberra
THE COURT FINDS:
the accused not guilty of the charge that on the 22nd day of April 2004 at Canberra in the Australian Capital Territory he intentionally and unlawfully used against Pierre Abiwahab an offensive weapon, namely a block splitter, likely to endanger human life or cause grievous bodily harm.
the accused guilty of the charge that on the 22nd day of April 2004 at Canberra he assaulted Pierre Abiwahab.
The accused Maurice Herbert Vagg has today pleaded not guilty in respect of two counts on an indictment of 17 November 2005. The first count is an allegation that Mr Vagg did on 22 April 2004 at Canberra in the Australian Capital Territory intentionally and unlawfully use against Pierre Abiwahab an offensive weapon, namely a block splitter, likely to endanger human life or cause grievous bodily harm. The second count on the indictment, which was said to be in the alternative, is that on the same day and at the same place he assaulted Pierre Abiwahab.
The facts giving rise to these two charges may be briefly summed up. I am satisfied beyond reasonable doubt, and I am satisfied from the evidence before me from Constables Horricks, Newsham and Perry and Mr Abiwahab that at about 5:30 pm on 22 April Mr Abiwahab had been going about his duties as the manager of the Dash Coffee Shop in Garema Place in Civic. He noticed two male persons who were drinking in that area and he was aware that they had been abusing some of his clients and bystanders who were using the nearby automatic teller machine.
Mr Abiwahab also observed that the two males had been drinking rum and cola and that they had been using cups that belonged to the coffee shop. Mr Abiwahab says that he asked them to leave and to return the coffee shops cups. He says that one of the males quietly left the area, and the other male engaged in some abusive language and, Mr Abiwahab said, threatened to shoot him. That male person then left the area.
Mr Abiwahab says that some time later, about half an hour perhaps, he noticed the abusive male returning to the area. He was concerned and he says he got out his mobile phone to call the police, but that as he got through to the police he noticed a police mobile patrol vehicle moving into the area. He told the person he was speaking to on the phone not to worry and sought to gain the attention of the police officers in the vehicle. That involved him walking towards the police vehicle, which was also towards Mr Vagg.
There is some confusion amongst the various witnesses as to what happened next, but it seems to me that it matters little to my essential findings of fact that I would make. Mr Abiwahab was moving towards the police vehicle and possibly raising his hand to attract the attention of the police. Mr Vagg, I am satisfied, raised the block splitter that he was holding in his hand. There was some confusion as to whether it was the right or the left hand. The predominance of the evidence is that it was his right hand. Again, it seems to me to matter little. I am satisfied beyond reasonable doubt that Mr Vagg raised the block splitter, he raised it to about his shoulder level and then dropped it down in a motion towards Mr Abiwahab. Mr Abiwahab, I am satisfied, at the minimum drew back rapidly to avoid the falling block splitter. There was then a confrontation between Mr Vagg and the police and he was disarmed.
Mr Vagg has pleaded, as is his right, not guilty and elected to be tried by judge alone. He made that election at an earlier directions hearing in accordance with section 68B of the Supreme Court Act1933 (ACT). Section 68C sets out the duty that a judge sitting alone is to undertake in a criminal proceeding.
Section 68C(1) provides that –
a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
Subsection (2) provides that the –
judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact upon which the judge relied.
In proceeding today I am acting on the basis as has been held by a number of judges of this Court, including myself on earlier occasions, that the procedure to be adopted in a trial under section 68C is the same as that endorsed by the High Court of Australia in Fleming v Queen (1998) 197 CLR 250 which was a consideration of the New South Wales provisions for trial by judge alone.
The High Court in Fleming held that a judge who conducted a trial had to set out the principles of law applied and the findings of fact upon which he or she relied. The bare statement of the principles of law that the judge had applied and the findings of fact would not be sufficient, a reasoning process linking the law and the facts had to be exposed and the findings and ultimately the verdict had to be justified (see The Queen v Thomas James Collins [2004] ACTSC 48, Weinberg J at [3]).
In R v Massey [2000] ACTSC 107, Einfeld J so held and that has been consistently applied in other cases, R v Tran [2003] ACTSC 53 and R v Collins. It follows that I am required to set out the general principles that are applicable to this trial, both as to matters of substance and law as well as the findings of fact upon which I rely.
In the case of Tran, Gray J made the following general observations regarding the conduct of trial by judge alone, they have been endorsed by Weinberg J in R v Collins, and I take them to be essentially governing the process to be adopted.
Weinberg J there, echoing Gray J, said at [6] -
I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it’s my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.
It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
The first charge on the indictment related to the very serious count under s 27 of the Crimes Act1900 (ACT) of intentionally and unlawfully using an offensive weapon that is likely to cause grievous bodily harm. It emerged in the evidence of Mr Abiwahab and of all the police witnesses that they were uniform in their description of the swing, and gave a description of a less than forceful and not forceful swing.
Constable Horricks said it was not a baseball swing. They were all agreed that it was not a forceful swing and it was said at the close of the Crown case by Mr Lawton for the Crown, quite properly it seems to me, that given those descriptions the Crown would have difficulty in making out beyond reasonable doubt the finding that the swing would be likely to endanger human life or cause grievous bodily harm and it seems to me that that must be right, that had that matter proceeded I would have inevitably had a reasonable doubt as to the nature of the force said to have been applied.
On the basis of the concession made, I clarify that that was indeed a concession which, had it been a jury trial, I would have directed that the jury enter a verdict of not guilty in respect of that first count on the indictment. Now sitting as judge alone, I formally in respect of the first count on the indictment enter a verdict of not guilty. The concession made by the Crown inevitably follows from that that there would have been at the very least a reasonable doubt as to whether the nature of the swing would have been such that it was likely to endanger human life and cause grievous bodily harm.
I would, if instructing a jury in this matter, instruct them in terms of assault in the way that assault is set out in the New South Wales Judicial Commission Bench book. There is a standard direction in relation to assault which I frequently use and other judges use. I would remind the jury that assault is a word in common everyday use. And that although it immediately conjures up in the minds of the jury, the image of one person striking another person physically with a hand or fist or some kind of hand held implement, and although that does of course amount to an assault, at law it is a broader term. I would remind a jury as I remind myself that there are differences between the law and what is perhaps ordinary every day speech.
For example, I would say to the jury and I remind myself, if I raise my hand at you in a menacing fashion and thereby cause you to fear that you are about to be struck then the law says that I have assaulted you. Ordinarily the use of the word assault would probably not have extended that far. I would then remind the jury as I remind myself that there are four elements to the offence of assault as it stands under the Crimes Act in the Australian Capital Territory. That is that there must be a striking, touching or application of force or threat of striking, touching or the application of force. It would be without consent, it would be intentional, not accidental, and it would be without lawful excuse.
It seems to me that on the evidence that I have heard this morning, I can be satisfied beyond reasonable doubt that there was a striking, touching or there was a threat I should say of the striking or application of force. I find beyond reasonable doubt that Mr Vagg raised the block splitter at around his shoulder height and then moved it down in a chopping motion, albeit one without a high level of force. For the offence of common assault there need not be a high level of force, there need merely be established beyond reasonable doubt the threat of striking, touching or application of force and the application of the block splitter as I found it to have occurred beyond reasonable doubt satisfies that. The Crown must establish that it be without consent and I have no difficulty in finding beyond reasonable doubt that it was without consent. Mr Abiwahab certainly did not consent to have the block splitter waved at him in a threatening manner.
The act needs to be intentional, not accidental. It is a fact that Mr Vagg had been drinking. Mr Gill, for the accused, quite properly says that the relevance of that in this case is not to make out any sort of intoxication defence, but that it would be open to a finder of fact, the jury or myself sitting alone, to draw an inference that a person who is intoxicated may be somewhat clumsy in their actions and I accept that as an inference that may be drawn. But having carefully considered all of the evidence and all of the descriptions of the conduct here, it seems to me that I can find and do find beyond reasonable doubt that the raising and then dropping of the block splitter in the direction of Mr Abiwahab was intentional and not accidental.
The fourth element is that the act be without lawful excuse. In this case it has been put as a submission that I would need here to be satisfied that there was no element of self-defence. There has been no evidence given by Mr Vagg, but of course Mr Vagg as an accused person is presumed to be innocent and he is under no obligation to even make statements to the police or give evidence. And I remind myself as I would remind a jury that the jury or I sitting alone would fall into error if I was to draw any adverse inference from the lack of the evidence given directly by Mr Vagg as to that.
What is established on the facts is that Mr Vagg was standing between the police vehicle and Mr Abiwahab. Mr Abiwahab’s evidence is that he was trying to contact the police because Mr Vagg was making a nuisance of himself, that he got through to the police but as he got through to the police on the telephone he noticed the patrol vehicle moving into the general area and then terminated the telephone call and moved out of the café premises and sought to attract the attention of the police by calling them and he indicated some movement of his right hand in the witness box.
And I find as a matter of fact that he was waving his arm around. He says his attention was focused on the police vehicle. He conceded in his answer to a question from Mr Gill that he noticed out of the corner of his eye that Mr Vagg was in the direction of him and the police vehicle. Mr Gill says, and he is right in saying so, that in order to establish this offence the Crown must disprove that Mr Vagg was not apprehensive and that the movement to summon the police vehicle was some form of threat by Mr Abiwahab towards Mr Vagg and that Mr Vagg was therefore acting in self-defence in raising the block splitter.
It seems to me that I can be satisfied beyond reasonable doubt that the Crown has negatived any lawful excuse of self-defence. This needs to be put in context of events. The evidence is that there were prior difficulties about half an hour earlier. Mr Vagg had been in a level of confrontation with Mr Abiwahab and Mr Abiwahab was quite reasonably asking him and his equally intoxicated companion to leave the area and to return the coffee cups. Mr Abiwahab says that at that point there was a threat by Mr Vagg of some violence. Mr Vagg then returned with the block splitter.
Mr Abiwahab, I find, was seeking to attract police attention. He was moving towards Mr Vagg. It seems to me that to raise a clearly dangerous object, a heavy block splitter, above the head is not any form of proportionate or reasonable response to a male person walking towards you. I am satisfied beyond reasonable doubt that there was no lawful excuse.
Being satisfied that the four elements of assault are made out, it seems to me that what only remains is the additional factor that must be taken into account where there has only been, as there has here been, the threat of force. That is to say there was no contact between the block splitter and Mr Abiwahab. The circumstances must be such that a person against whom the threat is made had had a real apprehension that the threat may be carried out.
Here the evidence of Mr Abiwahab is that as he was approaching
Mr Vagg and saw the block splitter being wielded, he was of the view that if he did not move he may be struck. His evidence was that he thought he stopped and jerked his upper body back. There was evidence from two of the police witnesses that they were confident that they saw him actually physically move back and there was some suggestion in an earlier statement by Mr Abiwahab that that may have been the case.
Constable Newsham in his evidence began by describing a recollection of seeing Mr Abiwahab actually move back but then in the witness box demonstrated a sudden and violent retraction of the upper body, which seems to be more consistent with the version of events that Mr Abiwahab just pulled his head and body back as he apprehended the threat of the axe.
It seems to me that it doesn’t really matter which version of events I would find, because on any version it is consistent only with Mr Abiwahab apprehending that the axe that was being swung in his direction may have been able to strike him and that is all that is needed as a matter of law to be established. Therefore I can be satisfied beyond reasonable doubt that this being a threat of force situation, there was a real apprehension in the mind of Mr Abiwahab that the threat, being the waving of the block splitter, may be carried out.
It follows therefore that being satisfied beyond reasonable doubt as to all of the elements of the offence of common assault I should return a finding of guilty on that count and I so find.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 21 November 2005
Counsel for the Crown: Mr J Lawton
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr S Gill
Solicitor for the accused: ACT Legal Aid
Date of hearing: 21 November 2005
Date of judgment: 21 November 2005
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