The State of Western Australia v Bell
[2016] WASC 103
•24 MARCH 2016
THE STATE OF WESTERN AUSTRALIA -v- BELL [2016] WASC 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 103 | |
| Case No: | INS:304/2015 | 24 MARCH 2016 | |
| Coram: | MARTINO J | 24/03/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Findings of fact made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DAVID DENHOLM BELL |
Catchwords: | Criminal law Trial of issues |
Legislation: | Criminal Code (WA), s 392(c) |
Case References: | Liberato v The Queen [1995] HCA 66; (1985) 159 CLR 507 Pelemis v The State of Western Australia [2009] WASCA 151 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1990) 73 ALJR 1550 Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
DAVID DENHOLM BELL
Defence
Catchwords:
Criminal law - Trial of issues
Legislation:
Criminal Code (WA), s 392(c)
Result:
Findings of fact made
Category: B
Representation:
Counsel:
Prosecution : Mr J G Nicholls
Defence : Mr J I Brash
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Legal Aid (WA)
Cases referred to in judgment:
Liberato v The Queen [1995] HCA 66; (1985) 159 CLR 507
Pelemis v The State of Western Australia [2009] WASCA 151
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1990) 73 ALJR 1550
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
1 MARTINO J: The offender, Mr Bell, appeared in the Magistrates Court on 8 July 2015 on a prosecution notice in which he was charged that on 25 June 2015 he stole property with threats of violence while armed with a dangerous instrument, namely a metal torch.
2 On 4 November 2015 Mr Bell was committed to this court for sentence on that prosecution.
3 By an indictment dated 25 January 2016 he was charged with armed robbery, armed with an offensive instrument namely a knife.
4 On 2 February 2016 Mr Bell appeared before Jenkins J. He pleaded guilty to the charge of armed robbery on the basis that he admitted that he was armed with an offensive instrument, namely a torch, but denied that he was armed with a knife. Jenkins J entered a judgment of conviction and listed a trial of issues before her on 10 March 2016.
5 A State witness was unavailable on 10 March 2016 and the trial of issues was adjourned to today. At the commencement of the hearing counsel for the State read the facts that the State contended constituted the offending.
6 Those facts were that at about 2.30 pm on Thursday, 25 June 2015, the offender was present at the Westfield Carousel Shopping Centre, Albany Highway, Cannington. He attended the Myer store with the intention of stealing items of property. The offender selected a Country Road branded tote bag, valued at $70.95, and placed three Superdry 7 Huskey jackets, valued at $399.85, into the bag. The offender walked directly to the exit of the store and exited to the upper level car park without making any attempt to pay.
7 Upon leaving the store, the offender was confronted by shopping centre security staff who were in attendance at the request of Myer staff. Security staff approached the offender. He withdrew a knife from his satchel bag. He threatened to stab the security staff if they attempted to stop him. The offender threw the stolen items at the security staff, then fled the area on foot.
8 On 7 July 2015, the offender surrendered to police and participated in an audio visual record of interview, making admissions to stealing the items and threatening security staff with a metal torch.
9 Counsel for Mr Bell informed me that Mr Bell admitted all the facts except that he did not admit that he was armed with a knife and he did not admit that he threatened to stab the security staff. Counsel for Mr Bell informed me that Mr Bell admitted that he was armed and that he threatened to assault the security staff and said that Mr Bell admitted he was armed with a torch.
10 Counsel for the State informed me that the State wished to prove that Mr Bell was armed with a knife and that he threatened to stab the security staff.
11 As the State seeks to prove those facts it is the State which has the burden of proving them. The standard of proof is beyond reasonable doubt.1 Where there is a conflict of evidence for sentencing purposes the court is required to resolve the conflict according to the strict rules of evidence.2
12 The State called three witnesses. They were Muhammad Nazir, Shahzada Kashif Hassan Rana and Detective Senior Constable Clinton Lee Vredenbregt. The evidence of Detective Senior Constable Vredenbregt included evidence of an interview of Mr Bell by police officers. A recording of that interview was played and tendered into evidence.
13 Mr Bell elected not to give evidence or to call evidence.
14 Mr Bell was entitled not to give or call evidence. The fact that he chose not to give or call any evidence does not lead to any adverse inference or conclusion against him. I do have evidence of what Mr Bell told the police officers in the interview. That is part of the evidence that I consider when I decide whether the State has proved beyond reasonable doubt that Mr Bell was armed with a knife and that he threatened to stab the security officers.
15 However I must always remember that Mr Bell does not have to prove anything. Even if I were to reject all that Mr Bell said in the interview it would not mean that the State has proved its case. The issue for me would be whether, on the evidence that I accept, the State has proved beyond reasonable doubt that Mr Bell was armed with a knife and that he threatened to stab the security officers.3
16 Mr Nazir gave evidence that in June 2015 he was employed as a security supervisor at the Westfield Carousel Shopping Centre. On 25 June 2015 Mr Rana was working with him doing training for a couple of days. Mr Rana was a supervisor at other Westfield shopping centre sites. Mr Nazir received a telephone call from a member of the staff of Myer named Jeremy. As a result of that call Mr Nazir went to the Myer roof top entry. Mr Rana followed him. Jeremy and approximately three other members of the staff of Myer were there. Jeremy pointed out a person of interest to Mr Nazir.
17 Mr Nazir and Mr Rana approached that man. Mr Rana was slightly behind Mr Nazir. Mr Nazir gave evidence that he did not speak to the man at all. The man had a black pouch on his belt. The man said: 'Don't fuck around with me. I came out of jail. I will stab you.'
18 The man had a bag in one hand and the knife in the other hand. The man threw the bag at Mr Nazir, striking him on the chest or face. Mr Nazir described the knife as approximately 6 in long with a black handle and a blade that was possibly black as well. Mr Nazir described it as a zig zag type of knife.
19 Mr Nazir and Mr Rana allowed the man to leave.
20 Mr Nazir identified a drawing of the knife he had prepared for police on 25 January 2016. The drawing is slightly smaller than the knife.
21 Mr Nazir gave evidence that he did not carry a torch and he did not threaten to strike, hit or assault the person. Mr Nazir also gave evidence that Mr Rana was not armed with a torch or any item.
22 After the incident, when he was preparing a statement for police using a police template in his office, Mr Nazir searched the term 'zig zag knife' on google and saw a knife.
23 In cross-examination Mr Nazir was shown a torch. Mr Nazir said that the man had not produced that torch and the knife was approximately half the size of that torch.
24 Mr Rana gave evidence that after Mr Nazir received a phone call Mr Rana and Mr Nazir went to the top level car park entrance to Myers. The Myer manager was there. The Myer manager pointed out the person of interest. Mr Rana saw a man with a full bag in his hand.
25 Mr Nazir approached the man and said: 'Give the stuff back.'
26 The man took a knife out of a small bag. The man said: 'I will stab you. Don't come close. I just got out of jail.'
27 Mr Rana and Mr Nazir stepped back and allowed the man to leave. The man dropped the duffle bag and left. Mr Rana described the knife as having a black handle with a silver blade. He described it as a flick knife or a folding knife and he indicated that the man opened it.
28 Mr Rana said that he did not carry a torch or baton. He carried only a radio, a pad and a pen. He did not see Mr Nazir carry a torch.
29 In cross-examination Mr Rana was shown the torch that had been shown to Mr Nazir. Mr Rana denied that the man had produced that torch and said that the knife was approximately half the size of that torch.
30 Detective Vredenbregt took on carriage of the investigation of the robbery on 28 June 2015. On 7 July 2015 Detective Vredenbregt attended Mr Bell's home in the suburb of Bertram. Mr Bell was not home. Detective Vredenbregt spoke to a woman who identified herself as Mr Bell's partner and he showed her some still images that had been taken from CCTV footage. Mr Bell telephoned police officers that day and attended the Kensington Detectives' Office. Mr Bell was interviewed by Detective Vredenbregt and another officer. The interview was electronically recorded. The recorded interview was played at the trial of issues.
31 In that interview Mr Bell said that on 25 June 2015 he went to the Carousel Shopping Centre to do some shopping and to steal some things. He went into Myers and grabbed an empty bag. He filled the bag with clothes. He had a feeling that he was being watched and so he walked out of the store and entered the car park. As he did so the beepers went off. He was approached by six security officers. He described the security officers as swarming him. Mr Bell swore at them and threw the bag at them. One of the security officers had a baton and Mr Bell thought that he was going to get apprehended. Mr Bell said that the man had a big long Maglite torch. Mr Bell pulled out a Maglite torch. He told the security officers that if they tried to touch him he would hit them over the head with the torch. Mr Bell then left.
32 Detective Vredenbregt told Mr Bell that a security officer said that Mr Bell pulled out a knife and threatened him with the knife. Mr Bell said that he did not have a knife.
33 Detective Vredenbregt gave evidence that following the interview he went to Mr Bell's home with him. They conducted a search of the home. Mr Bell pointed out a torch, which the officers took possession of. That was the torch that counsel for Mr Bell had shown to Mr Nazir and Mr Rana in cross-examination.
34 There were other torches at the home. Detective Vredenbregt identified a photograph of three torches. One torch was quite small, one was larger and the biggest was the torch that Mr Bell identified as the torch that he used.
35 I turn now to my conclusions as to the evidence.
36 The only inference reasonably available from the facts that Mr Bell had committed the robbery on 25 June 2015 and that he telephoned the police soon after Detective Vredenbregt had attended at his home in Bertram and spoken to his partner is that when he went to the Kensington Detectives' Office Mr Bell knew that the police officers wanted to speak to him about the armed robbery. Mr Bell therefore had time to prepare for what he wanted to say.
37 It is my assessment that both Mr Nazir and Mr Rana were honest witnesses who gave their evidence to the best of their ability and recollection. It is clear from all the evidence that the person with whom they dealt was Mr Bell.
38 There were some differences in their evidence. However there were significant consistencies in their evidence. They both gave evidence that Mr Bell produced a knife and that he made a threat to use it to stab them.
39 The differences that I note were that Mr Nazir said that he did not speak to Mr Bell, whereas Mr Rana said that Mr Nazir demanded that Mr Bell return the stolen property. Mr Nazir gave evidence that the bag that Mr Bell threw struck him. Mr Rana did not give that evidence and gave evidence that the bag landed on the floor. Mr Nazir gave evidence that the knife had a black handle and a blade that was possibly black as well. Mr Nazir described it as a zig zag type of knife. Mr Rana described the knife as having a black handle with a silver blade. He described it as a flick knife or a folding knife and he indicated that the man opened it. There also seemed to be a difference in their evidence as to how Mr Bell was holding the knife. Mr Nazir said that it was pointed to the ground. Mr Rana did not appear to give evidence that the blade was pointed to the ground.
40 I have given consideration to their evidence, including these discrepancies. I have also given consideration to what Mr Bell said in his interview. It is my assessment that Mr Bell exaggerated the confrontation that occurred between himself and the security officers. It is my assessment that he intentionally did so to put his version of events in a better light. I do not accept that there were more than two security officers who confronted Mr Bell and I do not accept that they were approaching or swarming him as he said that they were. I do not accept that a security officer produced a baton or a torch.
41 I do not regard it as significant that Mr Bell told police that the largest of the torches at his home was the torch that he used. It is my assessment that he said that to give some credibility to his story that by the production of the torch he was able to escape.
42 Nor do I regard it as significant that Mr Bell invited police officers to look at CCTV of the incident. Mr Bell did not know whether or not there was CCTV or what it would show. He was, in my assessment, simply trying to reinforce that he was being honest in what he was saying.
43 I do not accept Mr Nazir's evidence of the description of the knife. It is my view that his recollection is influenced by what he saw when he searched google. However I do accept the evidence of Mr Nazir and Mr Rana that Mr Bell produced a knife. I am satisfied beyond reasonable doubt that Mr Bell's denial that he had a knife was untrue. I do not accept Mr Bell's denial on that issue and I am satisfied beyond reasonable doubt that his denial is untrue. I am satisfied beyond reasonable doubt by the evidence of Mr Nazir and Mr Rana that Mr Bell was armed with a knife.
44 I am also satisfied beyond reasonable doubt that the evidence of Mr Nazir and Mr Rana that Mr Bell used words to the effect of 'I will stab you' is truthful and accurate. I accept that evidence.
45 I am satisfied beyond reasonable doubt that Mr Bell was armed with a knife and that he threatened to stab the security staff.
1R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1990) 73 ALJR 1550.
2Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [35] - [45]; Pelemis v The State of Western Australia [2009] WASCA 151 [13].
3Liberato v The Queen [1995] HCA 66; (1985) 159 CLR 507.
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