The State of Western Australia v Evans
[2020] WADC 40
•31 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EVANS [2020] WADC 40
CORAM: PRIOR DCJ
HEARD: 23-25 MARCH 2020
DELIVERED : 31 MARCH 2020
FILE NO/S: IND 934 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
GLENN WILLIAM EVANS
Catchwords:
Criminal law - Trial by judge alone - Aggravated unlawful grievous bodily harm - Self‑defence
Legislation:
Criminal Code (WA), s 1, s 221(1)(d), s 248, s 297(1)
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Result:
Accused found not guilty
Representation:
Counsel:
| The State of Western Australia | : | Ms K Kemm |
| Accused | : | Mr S Freitag SC |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Brindal Peter A and Co |
Case(s) referred to in decision(s):
AK v State of Western Australia [2008] HCA8; (2008) 232 CLR 438
De Silva v The Queen (2019) 94 ALJR 100
Driscoll v The Queen (1977) 137 CLR 517
Koushappis v The State of Western Australia [No 2] [2007] WASCA 26
Liberato v The Queen (1985) 159 CLR 507
Melbourne v The Queen (1999) 198 CLR 1
PRIOR DCJ:
The State of Western Australia has charged Glenn William Evans with one count of unlawfully doing grievous bodily harm to Alan John Earnshaw on 15 May 2018 at Whiteman, with the aggravating circumstance that Mr Earnshaw was of or over the age of 60 years (the charge).
Mr Evans has pleaded not guilty to the charge.
Trial by judge alone
An order that the trial be heard by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) was made by his Honour Chief Judge Sleight on 19 March 2020.
Overview of the State case
The State case was in May 2018 Mr Earnshaw was working as a traffic manager on Marshall Road, Whiteman as roadworks were taking place.
Mr Earnshaw was controlling the traffic entering or exiting part of Marshall Road near the intersection with Cheltenham Street. The controlled traffic area on Marshall Road had the speed limit reduced from 60 km per hour to 40 km per hour.
There had been interaction between the accused and Mr Earnshaw on Marshall Road in the week leading up to 15 May 2018 when the accused was driving a truck and a 'green bubble car' and Mr Earnshaw was carrying out traffic control duties. In these interactions before 15 May 2018, there was some animosity between Mr Earnshaw and the accused in relation to Mr Earnshaw carrying out his traffic control duties and the accused's driving of motor vehicles. Mr Earnshaw had made a complaint about the accused to a work colleague of the accused.
In the mid‑afternoon of 15 May 2018 the accused was driving a Universal Diggers truck heading out of the controlled area on Marshall Road whilst Mr Earnshaw was carrying out his traffic control duties.
Mr Earnshaw believed that the accused was exceeding the 40 km per hour speed limit so he took photographs of the truck the accused was driving on his mobile telephone.
The accused parked the truck he was driving outside the controlled area. He got out of the truck and walked back to Mr Earnshaw. Mr Earnshaw was talking to a man inside a motor vehicle. He considered the accused was angry and aggressive.
The accused pushed Mr Earnshaw and caused him to stumble backwards. The accused came towards Mr Earnshaw again and he put his arm out to protect himself. He told the accused what he had done constituted assault. The accused replied 'I'll show you assault. I'll punch your lights out.' The accused then punched Mr Earnshaw to the left side of his face causing him to stumble backwards.
Mr Earnshaw inadvertently caught his hand in the accused's shirt which caused it to tear. The accused continued to punch Mr Earnshaw. Mr Earnshaw tried to fend off the blows until he fell to the ground.
When Mr Earnshaw was on the ground the accused kicked and punched him a number of times to his ribs, left upper arm and shoulder area causing him immediate pain.
The man who Mr Earnshaw was talking to intervened. The accused got into the truck he was driving and drove off.
Mr Earnshaw went back to his worksite office and photographs were taken of his injuries.
Mr Earnshaw attended Joondalup Health Campus Hospital on the night of 15 May 2018. Two days later, scans were taken of his shoulder. On 23 May 2018 Mr Earnshaw was assessed by Dr Khoo, an orthopaedic surgeon. Dr Khoo operated on Mr Earnshaw's injured shoulder.
The injury to Mr Earnshaw's left shoulder was a full thickness tear of his supraspinatus and infraspinatus muscles.
The accused attended Forrestfield Police Station on 25 May 2018 and participated in a record of interview (the record of interview). In the record of interview, the accused stated Mr Earnshaw punched him several times and in self-defence he threw Mr Earnshaw to the ground and he landed on his face.
The State case is anything Mr Earnshaw did to the accused was in self‑defence because it was the accused who was assaulting Mr Earnshaw. The accused was acting unlawfully by assaulting Mr Earnshaw.
Principles of law
It is necessary to remind myself of the various relevant legal principles that have to be applied in coming to a verdict.
I am to apply the same law and procedure to this trial that would have applied had the trial been heard before a jury.[1]
[1] Criminal Procedure Act, s 119(1).
I must direct myself in the same way that I would instruct a jury. This includes any appropriate warnings required in the circumstances of the case.[2]
[2] Criminal Procedure Act, s 119(3).
Pursuant to s 120(1) of the Criminal Procedure Act 2004 (WA), I may make any findings and give any verdict that a jury can give. This judgment must include the principles of law I have applied and the findings of fact I have made.[3]
[3] Criminal Procedure Act s 120(2); AK v State of Western Australia [2008] HCA8; (2008) 232 CLR 438 [44] (Gummow and Hayne JJ).
As a matter of law, the following principles apply in this trial:
(1)Mr Evans is presumed to be innocent of the charge brought against him and does not have to prove anything.
(2)The State bears the burden of proof of the charge. Each and every element of the offence charged must be proven beyond a reasonable doubt. If I have a reasonable doubt then it is my duty to acquit Mr Evans of the charge.
(3)The State bears the burden of proof for the aggravating circumstance which must be proven beyond a reasonable doubt.
(4)Mr Evans does not have to prove anything.
(5)Beyond reasonable doubt is a high standard of proof. It is the highest standard of proof known to the law.
(6)The evidence in this case is what the four witnesses have said on oath or affirmation in the witness box, a statement of a witness read by consent and the eight exhibits which have been produced. What counsel have said is not evidence.
(7)I must assess the evidence dispassionately and objectively and not decide the case on any prejudice or sympathy.
(8)I must not guess or speculate about matters which are not in evidence. I may, however, draw inferences from proven facts. An inference is a logical deduction from facts which I find proven. I can only draw an inference against the accused if it is the only reasonable inference, or conclusion, that can be drawn consistent with the proven facts. In drawing inferences, I should not consider each piece of evidence or each fact or circumstance established by the evidence in isolation or on a piecemeal basis, but I should consider and weigh them as a whole.
This case is primarily a direct evidence case where there are two eye witnesses who gave evidence of the altercation, Mr Earnshaw and the accused.
The accused did not give evidence
The accused did not give evidence. It is his right not to do so.
No adverse inference can or should be drawn against him from him exercising that right.
The fact that the accused did not give evidence proves nothing, one way or the other. The question for me to consider in relation to the charge is; on all the evidence has the State proved the charge beyond reasonable doubt.
Elements of the offence
The offence of unlawful grievous bodily harm is provided by s 297(1) of the Criminal Code. To prove the offence the State must prove the following four elements:
(1)First, identity, that is the State must prove that it was Mr Evans who did the acts that constitute the offence and not someone else.
(2)Second, that Mr Earnshaw sustained injuries amounting to grievous bodily harm as defined by s 1 of the Criminal Code. The relevant bodily injury is the rotator cuff tear Mr Earnshaw sustained to his left shoulder as identified in Dr Paul Khoo's evidence. The State case is, without surgery the injury was likely to cause permanent injury to Mr Earnshaw's health.
(3)Third, that Mr Evans did an act namely slinging Mr Earnshaw to the ground and/or kicking Mr Earnshaw whilst he was on the ground causing a grievous bodily harm injury to Mr Earnshaw's left shoulder. The State case is that it was a continuous assault of Mr Earnshaw by Mr Evans, not one single act.
(4)Fourth, that Mr Evans did grievous bodily harm to Mr Earnshaw unlawfully. An offence of unlawful grievous bodily harm is lawful if the act is authorised or justified or excused by law. Self-defence is an excuse at law. As self-defence is raised on the evidence on what Mr Evans said in his record of interview, I must consider if the State has proved beyond reasonable doubt that Mr Evans was then not acting in self‑defence.
Each element of the offence charged must be proved by the State beyond reasonable doubt.
Counsel for the accused admitted that the first and second elements of the offence charged had been proved beyond reasonable doubt on the evidence.
Aggravated circumstance
Pursuant to s 221(1)(d) of the Criminal Code a circumstance of aggravation for an offence such as unlawful grievous bodily harm is when the victim is of or over the age of 60 years.
The alleged victim, Mr Earnshaw, gave evidence he was 69 years old on 15 May 2018. This factual circumstance is not in dispute. I will only need to consider the aggravating circumstance if the charge of unlawful grievous bodily harm is proved beyond reasonable doubt by the prosecution.
The accused's position
The accused admits that he was involved in the altercation with Mr Earnshaw on Marshall Street, Whiteman, on the afternoon of 15 May 2018 (the altercation). He admitted this in his record of interview. Identity of the accused is not in dispute.
The accused's position is that Mr Earnshaw assaulted him after the accused had pushed him twice to attract his attention. He was frustrated with Mr Earnshaw and was trying to find out why Mr Earnshaw was taking photographs of him. He claims then Mr Earnshaw punched him three or four times to the face after Mr Earnshaw had stepped on both his feet.
The accused does not admit punching or kicking Mr Earnshaw at any stage in his record of interview.
The accused submits 'there is a huge gulf' between the version of the events described by Mr Earnshaw and the version of the events described by the accused.
It is also disputed that the accused was acting unlawfully. The accused claims he was acting in self-defence. He claims he threw or slung Mr Earnshaw to the ground in an act of self-defence as Mr Earnshaw was assaulting him by punching him to the face a number of times. The accused's counsel submits I will need to make a factual finding in relation to the two different versions of events and then consider the issue of self‑defence.
The accused's counsel concedes if I find Mr Earnshaw's version of events is correct, then the accused could not have been acting in self‑defence.
Self-defence
The State accepts the defence of self‑defence is raised by the accused in what he said in his record of interview.
Section 248 of the Criminal Code provides for a defence of self‑defence in the following terms:
(1)In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
…
(4)A person’s harmful act is done in self‑defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5)A person’s harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.
(6)For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
The relevant harmful act in this case is the acts of the accused punching Mr Earnshaw to the face, slinging him to the ground and then kicking him on the ground.
The State can discharge its burden to satisfy me that the accused's acts were not justified by the law concerning self-defence by proving beyond reasonable doubt any one of the following four things:
(a)that the accused did not believe that his actions was necessary to defend himself from a harmful act. In this case the harmful act being an assault by Mr Earnshaw; or
(b)that the belief the accused held at the time that it was necessary to defend himself was not a reasonable belief, in other words, there were not reasonable grounds for his belief; or
(c)that the act of the accused's response was not a reasonable response to the circumstances as the accused believed them to be; or
(d)that the belief the accused held at the time about the circumstances he faced, was not a reasonable belief, in other words there were no reasonable grounds for his belief.
If the State has proved any one of these four things described above at [42] beyond reasonable doubt, then it will have proved that the accused's actions were not justified by the law concerning self‑defence.
The State concedes if I accept the accused's account in his record of interview or think it might be true, then the defence of self-defence applies and the accused should be acquitted.
The witnesses
Four witnesses were called by the prosecution and one by the defence.
(1) Dr Paul Khoo.
(a)Dr Khoo is a medical practitioner who is a qualified orthopaedic surgeon and consultant. He is an expert witness.
(b)I approach my assessment of Dr Khoo's evidence as I would for any other witness. I am not bound to accept and act upon any witness' evidence, including an expert witness' evidence. I may reject Dr Khoo's evidence as an expert if there is other evidence to support my findings or if I conclude that his evidence is unreliable.
(c)Dr Khoo examined Mr Earnshaw on 23 May 2018 at his Belmont clinic.
(d)He viewed a MRI scan taken of Mr Earnshaw's shoulder taken on 17 May 2018. The MRI scan revealed to Dr Khoo that the left shoulder had a massive likely traumatic, rotator cuff tear involving two of the rotator cuff tendons, the supraspinatus and the infraspinatus. It was likely this injury was an acute or recent injury. There was also tearing of the long head of the bicep tendon.
(e)He could see that he had pseudoparalysis of the left shoulder which was not a neurological problem but it was because the rotator cuff was not properly attached.
(f)When Dr Khoo reviewed Mr Earnshaw on 28 May 2018 his forward flexion on the left arm was about 60 degrees and Dr Khoo stated that to lift the arm to horizontal requires flexion to 90 degrees.
(g)Dr Khoo found that the cause of traumatic impact was based on the presence of haematoma and soft tissue oedema in the area.
(h)Dr Khoo conducted surgery at Hollywood Private Hospital to repair the tears and the partially torn long head of the bicep tendon of Mr Earnshaw on 18 June 2018. Dr Khoo's opinion was that if it were not for surgery, Mr Earnshaw would have had a tear that would not heal on its own. It could even have grown in size. But at best, the tears would remain massively torn and then retract over time and then could not be repaired down the track. Therefore, Mr Earnshaw would not have gained full movement back in his shoulder.
(i)In terms of the cause of the injury, Dr Khoo's evidence was that it required a high degree of force but he could not pinpoint exactly what the nature of the impact might have been.
(j)Dr Khoo agreed in cross-examination the type of shoulder injury could possibly occur as a result of hitting a hard surface, such as a road or like a baseball pitcher throwing his shoulder out or in a boxing action. He also agreed that age was a factor in whether this injury might occur, but he was clear that any degenerative change to Mr Earnshaw's joints was not related to the tendon injuries.
Dr Khoo gave no evidence in relation to the other injuries depicted in the photographic exhibits or the injuries described by Mr Earnshaw in his evidence. Dr Khoo's expert opinion is therefore confined to the left shoulder injury sustained by Mr Earnshaw that he examined and treated.
It was accepted by defence counsel that Mr Earnshaw's shoulder injury was incurred in the altercation.
I accept all of Dr Khoo's evidence. His evidence was credible and reliable. There was no real contest between the parties with respect to Dr Khoo's evidence.
(2) Alan Earnshaw (the complainant).
A summary of Mr Earnshaw's evidence‑in‑chief is the following:
(a)Mr Earnshaw was 69 years of age in May 2018. He was employed in traffic management on Marshall Road and Rugby Street, Whiteman. Marshall Road was blocked with gates and cones. The speed limit was reduced to 40 km per hour.
(b)On the morning of 14 May 2018 the accused was driving a green bubble car. He told Mr Earnshaw to hurry up and fuck off. Mr Earnshaw made a complaint about the accused to one of the accused's colleagues.
(c)On the afternoon of 14 May 2018 the accused sped through the gate in a 'Universal Diggers' truck.
(d)At 3:30pm on 15 May 2018 Mr Earnshaw saw the accused in a truck coming from Rugby Street along Marshall Road. Mr Earnshaw was on his own at the site and there were no other cars around. When he recognised the driver he took a photo of the truck's number plate and moved out of the road very quickly. The truck stopped 30 - 40 metres up the road and pulled over. Mr Earnshaw was giving directions to a man in a blue Magna car.
(e)The accused walked down from the truck and screamed 'why did you take photos of me?' and 'I'm going to punch your lights out'. Mr Earnshaw said 'Just go about your business'. The accused shoved Mr Earnshaw and he turned to talk to the man in the car. The accused then punched him to the left side of his face. He reeled backwards. Mr Earnshaw tried to fend the accused off. He tried to push the accused away with an open palm to the accused's chest. The accused just kept coming towards him pushing, shoving, kicking and punching. He lost balance and fell backwards. He felt pain in his shoulder.
(f)Mr Earnshaw tried to protect his head by putting his arm up whilst on the ground. He was lying flat on his back. He felt kicks in the ribs. His elbows were sore. The main pain was from his left upper shoulder. There might have been half a dozen blows to his ribs, shoulders and arms. He had bruises underneath both arms.
(g)The man in the car put himself between him and the accused. Mr Earnshaw was lying on the ground and the man was trying to get him up. The man told the accused to stop.
In cross-examination Mr Earnshaw said the following:
(a)The bruising and abrasions around his eye were not from his face hitting the road. They were from punches to his head. Mr Earnshaw denied hitting the road with his forehead. Mr Earnshaw said he was not wearing sunglasses and his hard hat and sunglasses fell off when he fell back. His head did not hit the ground. He fell on his hard hat.
(b)Mr Earnshaw agreed that in his statement on 16 May 2018 to a police officer he said he was hit so hard his hard hat fell off but in cross-examination he said his hard hat went somewhere when he hit his head on the road.
(c)The injuries on the bridge of his nose and around his left eye were not caused by him hitting the road and his sunglasses making impact.
(d)He agreed there are no photos of bruising on his ribs or, the rear of his shoulder or under his right arm. He denied making up these injuries.
(e)Mr Earnshaw stated he lost his balance because the accused pushed and shoved him. He did not fall over, he was pushed over.
(f)Mr Earnshaw denied confronting the accused or standing on the accused's feet. He put his left hand up to the accused's chest and one of his fingers got in his shirt. The accused pulled back and the accused's shirt ripped. He denied making this up.
(g)Mr Earnshaw denied throwing any punches at the accused. He stated he might have put his fist or his arms up to defend his face. He might have punched the accused in the nose but he cannot remember doing so.
(h)Mr Earnshaw confirmed the accused did punch and kick him. His injuries were not from him being thrown to the ground or by throwing punches at the accused.
In re-examination Mr Earnshaw said the following:
(a)He denied ripping the accused's shirt deliberately. He said he was trying to fend the accused off. His finger went between the accused's skin and shirt and ripped it.
(b)The punch by the accused to the side of his head caused his hard hat to fall off his head.
(c)The tenderness in his rib was not from hitting the road.
(d)Mr Earnshaw saw the accused's boots coming in while he was on the ground but he did not see the kicks, but he felt them.
(3)Police Officer Andrew Caldeleugh-Johnson.
Officer Caldeleugh-Johnson was the police officer investigating the matter. His involvement started on 18 May 2018.
He spoke to Mr Earnshaw on 23 May 2018 and went to the scene of the altercation on 25 May 2018. Although he was given details of a witness in a car, nobody was able to identify him or was able to obtain any further details on him.
(4)Police Officer Sarah Cullimore.
Officer Cullimore's witness statement was read by consent.
She took three photographs of Mr Earnshaw's injuries[4] and observed his injuries at Joondalup Police Station on 16 May 2018. She also took a statement from Mr Earnshaw.
Officer Cullimore observed that Mr Earnshaw 'had purple bruising and swelling to his left eye accompanied by small cuts to his left eyebrow and above.'
She also received additional photographs from Mr Earnshaw by email.[5]
(5)Piotr Celinski-Myslaw.
Mr Celinski-Myslaw's family owns the Universal Diggers business on Rugby Street. (Rugby Street runs into Marshall Road in Whiteman).[6] It is a small business employing six people. The accused had worked for the business for over 10 years.
He described Mr Evans' performance as an employee as a pretty good operator and a very reliable person. He had no issues whatsoever with Mr Evans' honesty.
He gave evidence about his own experiences of driving through the Marshall Road traffic barrier and his interactions with a traffic controller he identified in court as Mr Earnshaw. He said he was irritated by Mr Earnshaw. (I will not give any weight to these experiences of Mr Celinski-Myslaw in coming to my decision).
In cross-examination Mr Celinski-Myslaw said he wanted Mr Evans back at work as soon as possible. He said he and Mr Evans were loyal to each other.
[4] Exhibits 6.1 - 6.3.
[5] Exhibits 4.1 - 4.3.
[6] Exhibit 1 - Google map of Whiteman on Marshall Road and Cheltenham Street.
The record of interview of the accused on 25 May 2018
The accused did not have to participate in the record of interview and once he did he was entitled to refuse to answer the questions of the two police officers. This is consistent with the presumption of innocence and his right to silence.
The accused's record of interview lasted approximately 90 minutes. The DVD recording of the interview was played during the trial. It is exhibit 7.
The DVD of the record of interview has been edited by consent of the parties. I draw no adverse inference against the accused by the editing of the DVD.
The questions of the police officers in the interview is not evidence. It is the accused's answers to the questions which is the evidence.
I have been provided with an edited transcript of the record of interview. I can only use the transcript as an aid. The evidence is the record of interview itself and the DVD record of it.
In the accused's record of interview he gives an account of his interactions with Mr Earnshaw on Marshall Road, Whiteman on two occasions in May 2018 and then his version of the altercation between the two of them on the afternoon of 15 May 2018.
Early in the accused's record of interview he summarises his recollection of the events, the subject of the charge, as follows:
Yeah. Then come the fifteenth of the fifth, I go to, ah, drop the truck off at 4:30. I'm entering back out of the gates again. Um, he takes another photo of me. I stop. I pull over. I say to him why are you taking photos of me, mate and he, he pretty well ignored me, so, obviously, to get his attention, yes, I did give him a push and then he told me, um, to move on, to go. He said I was aggro, um, and I said tell me, mate, I said I want to know why you're taking photos of me and he still wouldn't answer me, so, yeah, I did give him another little push and then he come up to me. He put his feet on top of my feet and braced and grabbed hold of me, then I grabbed hold of him and then he let rip. It could have been three or four punches. He punched me in the face. I grabbed him and I threw him to the ground. Yes.[7]
[7] Page 6 of transcript of accused's record of interview.
After this summary is given by the accused he then goes on to answer various questions by the interviewing police officers and makes the following comments:
(a)He denied speeding in his truck before the altercation occurred.
(b)He does not remember the man wearing a hard hat. He was wearing sunglasses.
(c)Both of them were wearing a work uniform.
(d)He did not remember saying to the man 'I'll punch your lights outs' or 'I'll show you assault'.
(e)He admitted when he asked the man why he was taking photos he was speaking in an aggressive manner. He said he pushed the man twice to gain his attention as he was talking to the man in the car, who he described as an Indian man.
(f)The man came up and grabbed him after he pushed him. The man put his feet on top of both his feet. He went to push the man. The man grabbed his t‑shirt, it ripped right down and the man started swinging. They were punches to the face.
(g)He was punched to the face by the man at least three or four times. He just did a frenzy.
(h)He used all strength to throw the man onto the ground, the man hit the road and hurt his face on the road. The man landed on his front. Kind of flat down. He threw him to the ground to defend himself.
(i)The man had a few scratches on his face, maybe his nose. He was bleeding. He had a little cut to his nose.
(j)The man he threw to the ground was on the ground for less than 60 seconds. He got up and walked off.
(k)There was no discussion between him and the man who intervened. The Indian man intervened when the other man was on the ground and he gave him a little push.
(l)The accused said he suffered bruising to his face.
Towards the end of the record of interview the police officers show the accused some photographs of Mr Earnshaw and he confirms that is the man he had the altercation with.
In the record of interview the accused denies punching Mr Earnshaw. He does not admit kicking Mr Earnshaw.
In the record of interview the accused generally answers all the questions asked of him by the police officers. In my view, there is a general consistency in the accused's account throughout the interview.
The issues
The issues in dispute and what I need to be satisfied beyond reasonable doubt are:
(1)Am I satisfied beyond reasonable doubt on the evidence the accused assaulted Mr Earnshaw initially by punching him to the face?
(2)Am I satisfied beyond reasonable doubt the accused caused the grievous bodily harm injury to Mr Earnshaw?
(3)If the accused did cause the injury to Mr Earnshaw, is he excused by way of self‑defence? Has the State rebutted this defence beyond reasonable doubt?
The State's submissions
The State accepted that as identity of the accused and the injuries sustained by Mr Earnshaw amounted to grievous bodily harm, the real issues in dispute are the third and fourth elements of the charge.
It is submitted the injury to Mr Earnshaw's left shoulder on Dr Khoo's evidence was caused by a high degree of force. This coupled with the injuries described by Mr Earnshaw and shown in the photographs suggests the accused was the aggressor in a brief and violent altercation.
The accused admits he was angry and outraged with Mr Earnshaw's behaviour.
It is submitted the accused's description of the traffic controller being a man in his 40's is a significant mistake and impacts on the reliability of his account to the police.
It is submitted there was no logical reason for Mr Earnshaw to go slow in his job as a traffic controller. He was just carrying out his job diligently. The accused took offence and reacted violently on the afternoon of 15 May 2018.
Mr Earnshaw is a much older man and was not in the same physical shape as the accused to instigate violence towards the accused.
Photographic exhibits 4 and 5 show injuries to Mr Earnshaw which corroborate he was punched to the face.
The accused's description of him standing on the accused's feet and then throwing punches at him is not a plausible account.
It is submitted I should infer the man in the car intervened due to the accused's behaviour not Mr Earnshaw's behaviour.
It is submitted on Mr Earnshaw's evidence of what he did to the accused, self‑defence does not arise. Mr Earnshaw was acting lawfully as he was defending himself from the accused assaulting him.
It is submitted the assault of Mr Earnshaw started when the accused left his truck and walked towards him. The accused was aggressive verbally and physically. His acts were unjustified physical acts to Mr Earnshaw including throwing him to the ground.
The accused's submissions
The accused submits that Mr Earnshaw is not a reliable witness and he lacks credibility.
It is submitted Mr Earnshaw had a motive to lie in his evidence. In cross‑examination he admitted that he had looked into workers' compensation and was presently unemployed. He had only received workers' compensation for three to four months. Mr Earnshaw accepted if he was the aggressor, he would not receive workers' compensation.
I am entitled to consider whether the evidence has indicated Mr Earnshaw may have some motive by way of a financial incentive for making a false complaint or for giving false evidence because the possible presence of something of that kind has, as a matter of common sense, has the potential to cast doubt on the reliability of Mr Earnshaw's evidence.
In considering evidence of motive I must keep in mind that at all times that:
(1)there is no onus on the accused person to point to any such motive or to establish any motive; and
(2)while the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of that is irrelevant and cannot be taken as something which strengthens the prosecution's submission that Mr Earnshaw's evidence was truthful.
In relation to the third element of the offence, causation, Dr Khoo's evidence raises three possibilities as to how Mr Earnshaw's shoulder injury was caused. Two of these possibilities are consistent with the accused's account in his record of interview. It is submitted I cannot therefore be satisfied beyond reasonable doubt the third possibility, a kick to Mr Earnshaw, was the cause of the shoulder injury.
It is submitted when I consider the inconsistencies in Mr Earnshaw's evidence and compare the account in the accused's record of interview, I should have reasonable doubt as to Mr Earnshaw's evidence of the altercation.
It is submitted Mr Earnshaw's description as to how he ripped the accused's shirt is implausible and the scratches to his face are not consistent with punches to the face.
When considering the accused's record of interview, it was a voluntary account where the accused has made a number of admissions about his behaviour which are against his interests. His account is consistent throughout the interview. The factors indicate the accused's account to the police is credible.
In relation to Mr Earnshaw's evidence, the inconsistencies within his evidence, what he has said to others out of court, his motive to lie in his evidence and the lack of photographs or medical evidence confirming the injuries he described all significantly impact on his credibility.
Ultimately it is submitted I cannot be satisfied beyond reasonable doubt on Mr Earnshaw's evidence as to how the altercation occurred between him and the accused and, in particular, who punched who.
The accused submits what he said in his record of interview is a reliable and credible account of the events and is corroborated by other evidence.
Resolution of the issues
The resolution of this case will rely significantly on the credibility and reliability findings I make in relation to Mr Earnshaw as a witness and the accused's account in the record of interview because there is no other eye witnesses who gave evidence about the altercation other than the accused.
Credibility and reliability are two separate issues. Credibility concerns honesty. Reliability concerns a witness who may have a poor memory or be mistaken.
In considering the credibility or believability of Mr Earnshaw and the accused, I need to give weight to the reliability and accuracy of their evidence. These two witnesses may be truthful but have a poor memory or otherwise be mistaken. I do not have to accept all their evidence, I can accept part of it.
Mr Earnshaw's evidence of the physical altercation between him and the accused is significantly different to the accused's account of the physical altercation in his record of interview. Both Mr Earnshaw and the accused state that it was the other person who assaulted them by punching them to the face.
Defence counsel accepted that if I was satisfied on the evidence of Mr Earnshaw that the altercation occurred the way Mr Earnshaw described it, self‑defence could not arise. Self-defence could only arise only on the way the accused described the altercation in his record of interview, in that his actions after pushing Mr Earnshaw twice were then all in self-defence of Mr Earnshaw assaulting him.
There is no forensic evidence. The only other evidence of significance in this case is Dr Khoo's medical evidence, the photographs of injuries to Mr Earnshaw, the photographs of the scene and the accused's record of interview.
The photographs of Mr Earnshaw's injuries sustained on 15 May 2018 are generally consistent with having been incurred in both the ways described by Mr Earnshaw in his evidence and the accused in his record of interview.
There are no photographs of the left shoulder injury to Mr Earnshaw. There are also no photographs of injuries to Mr Earnshaw's ribs, legs or back. There has been no adequate explanation by Mr Earnshaw as to why his ribs, legs and back injuries were not photographed.
There was inconsistencies within Mr Earnshaw's evidence, what he told the State Prosecutor which was disclosed, and also with a previous statement he made to the police on 16 May 2018. The evidence is what Mr Earnshaw said under oath at the trial. These inconsistencies are in relation to significant factual aspects of his description of the altercation. These inconsistencies relate to:
(1)What caused Mr Earnshaw's hard hat to come off his head
(2)How Mr Earnshaw ripped the accused's shirt.
(3)What part of Mr Earnshaw's body the accused kicked.
(4)Whether Mr Earnshaw had punched the accused in the nose.
I am not satisfied that Mr Earnshaw's explanations for these inconsistencies are adequate. I consider these inconsistencies reduce his credibility as a witness, but these inconsistencies are not evidence of the truth of the matters referred to in his out of court statement to the police officer.[8]
[8] Driscoll v The Queen (1977) 137 CLR 517 [536].
As there is a direct conflict between the evidence of Mr Earnshaw and the account of the accused in his record of interview, when I consider the accused's account, I consider it is appropriate to give myself the following direction:
(1)If I believe the accused's account to the police, I must acquit him.
(2)If I do not accept his account to the police but consider it might be true, I must acquit him.
(3)If I do not believe the accused's account to the police, I should put that account to one side. The question will remain for me: Has the prosecution, on the basis of the evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?[9]
[9] De Silva v The Queen (2019) 94 ALJR 100 [12]; Liberato v The Queen (1985) 159 CLR 507; Koushappis v The State of Western Australia [No 2] [2007] WASCA 26 [104].
I consider the accused's account in his record of interview might be true. It is consistent with Dr Khoo's medical evidence and the photographic exhibits of Mr Earnshaw's injuries.
The evidence of Mr Celinski-Myslaw also indicates to me generally the accused is an honest person. This good character evidence in my view increases the accused's credibility of his account in his record of interview as being truthful and reliable. [10]
[10] Melbourne v The Queen (1999) 198 CLR 1.
I accept that Mr Celinski-Myslaw employed the accused therefore there may be some motive and bias in his evidence but it was not put to him he was lying in his good character evidence about the accused.
As I consider the accused's account in his record of interview might be true, then this would mean his act of slinging Mr Earnshaw to the ground was done in self‑defence. The State conceded this would be an appropriate finding if I found the accused's account might be true. The act of slinging Mr Earnshaw to the ground was done in direct and immediate response to receiving three to four punches to the face.
Conclusion
I remind myself that the State has the onus of proof. The State must prove the charge and all four elements to the charge. The level of proof which is required is the high standard of proof, beyond reasonable doubt.
I consider in view of the matters I have referred to in [80], [85] ‑ [89] and [91] ‑ [94] that the accused's account of the altercation is more credible and reliable than Mr Earnshaw's. But it is not as simple as to whose evidence I prefer or who is to be believed. It is for the State to prove the charge and all its elements beyond reasonable doubt.
I cannot be satisfied beyond reasonable doubt that the prosecution has proved the second and third elements of the charge. This is because I cannot be satisfied beyond reasonable doubt that the altercation occurred in the way described by Mr Earnshaw in his evidence. Mr Earnshaw's evidence is the central evidence to the prosecution case. On the accused's account to the police in his record of interview his actions done after initially pushing Mr Earnshaw, were done in self‑defence.
Accordingly, I find the accused, Mr Evans, not guilty. I therefore enter a judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior31 MARCH 2020
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