The State of Western Australia v Farrell
[2022] WADC 63
•1 JULY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FARRELL [2022] WADC 63
CORAM: WHITBY DCJ
HEARD: 15, 16 & 22 JUNE 2022
DELIVERED : 1 JULY 2022
FILE NO/S: IND 85 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DESMOND LIONEL ERNEST FARRELL
Catchwords:
Trial of issues - Fact in issue is whether complainant was the aggressor - Fact in mitigation for sentencing purposes - Onus of proof on defence - Standard of proof is the balance of probabilities
Legislation:
Nil
Result:
Contested fact in mitigation not proved by defence on the balance of probabilities
Representation:
Counsel:
| The State of Western Australia | : | Ms S Manson-Grumley |
| Accused | : | Mr S Gabriel |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Chris Biris Barrister & Solicitor |
Case(s) referred to in decision(s):
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Medan v The Queen [2011] WASCA 142
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
WHITBY DCJ:
Introduction
On 15 June 2022, Desmond Lionel Ernest Farrell (the offender) entered a plea of guilty to count 1 on indictment 85 of 2021 that, on 1 March 2020 at Northbridge, he did grievous bodily harm to Dylan Bruno Bailey (the complainant).
The matter then proceeded to a trial of issues as there was a factual dispute with respect to the facts to be found for sentencing.
The factual issue in dispute is whether the complainant was the aggressor in his interactions with the offender's friend, Mr Taj Jones, prior to the offender punching the complainant in the jaw.
While the offender's plea of guilty constitutes an admission by him of the elements of the offence, it does not constitute an admission by him of the circumstances leading up to the offence.
The defence seeks to prove that the complainant was being aggressive towards Jones immediately before the offender punched the complainant in the jaw. The defence says that this is a mitigating factor for the purposes of sentencing.
The legal principles
The nature of a trial of issues was described by Buss JA in Medan v The Queen [2011] WASCA 142 as follows:
A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. A plea of guilty does not, however, constitute an admission of all of the facts stated in the Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. Accordingly, it is always open to an offender who has pleaded guilty to apply for a trial of issues in relation to any facts relevant to the sentencing outcome that are not the essential facts necessary to constitute the offence. See Law v The State of Western Australia [2009] WASCA 193 [25] - [34] (Buss JA, McLure & Pullin JJA agreeing) [78].
If the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance it will be for the offender to bring that matter to the judge's attention and if necessary call evidence about it: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
Where the contested fact is mitigating the offender bears the onus of proof and must prove the fact on the balance of probabilities: Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].
The facts as outlined by the State
Following entry of the plea, counsel for the State outlined the facts as follows:
(a)the complainant was, at the relevant time, 20 years old, approximately 150 cm tall and of slim build;
(b)at the relevant time, the offender was 21 years old, approximately 174 cm tall and of slim build;
(c)the offender and the complainant were not known to each other;
(d)on Sunday, 1 March 2020, the offender punched the complainant to the face. This punch resulted in a broken jaw and required surgery;
(e)the complainant had gone out on Saturday night, 29 February 2020, with his girlfriend, Ms Valerie Prum (Prum), and friends. At about 1.30 am on Sunday morning, they left a nightclub in Northbridge and decided to get some food. The group walked along James Street and stopped at Red Rooster. The complainant saw his friend, Daniel Fougt (Fougt) speaking to a male he knew as Taj. This male was Taj Jones (Jones);
(f)the complainant greeted Jones. Jones immediately became aggressive and said words to the effect of, 'What did you say, cunt?' The complainant responded by saying he was just saying hello and started to move away from Jones;
(g)Prum was standing next to the complainant and said to Jones words to the effect of, 'Don't try and act tough.' Jones responded to Prum, saying, 'What did you say, slut?' The complainant responded, saying something like, 'Mate, there's no need to disrespect her. She is a woman.' Jones approached the complainant and pushed him, causing the complainant to stumble backwards. Prum pulled the complainant away from Jones. A few moments later, the complainant felt a hard punch to the left side of his face. He did not see who hit him. He immediately felt pain and the taste of blood in his mouth. Immediately after being punched, the complainant saw the offender very close to him and behaving in an aggressive manner;
(h)Prum called an ambulance. While she was on the phone with emergency services, the offender approached the complainant and apologised for hitting him;
(i)the complainant was ultimately taken to Sir Charles Gairdner Hospital for treatment. Whilst in hospital, the complainant received Facebook Messenger messages from an account in the name of Desi Farrell. The message said words to the effect of, 'I'm so sorry. I'm piss weak and should have left it between you and Taj.' The complainant responded to this message, saying: 'Mate, my jaw is broken and I'll probably never play football again'. The complainant then deleted these messages;
(j)later that morning, the complainant received another message, again from the account of Desi Farrell. This message read: 'I'm so sorry, bro. I can't explain how I shit'. The complainant later received another message that read: 'I honestly feel so bad, bro. I feel like pure shit and I know karma will come back for what I done. I apologise';
(k)on 8 April 2020, just over one month after the incident, the offender was contacted by police. The offender told police that he felt bad for punching the complainant; and
(l)in regards to the injury, on 3 March 2020, the complainant underwent surgery to rectify the broken jaw. This involved the insertion of plates and screws to prevent the bones from moving and the temporary insertion of an arch bar. An arch bar is a dental braces-like device used to hold the jawbone so that it may heal in the correct position. A tooth was also extracted. The broken jaw injury was of such a nature as to interfere with the health and comfort of the complainant and to cause or be likely to cause permanent injury to health. Without medical treatment, the bones would have healed in the wrong position, which would cause difficulty with speaking, chewing and chronic pain. The complainant still has loss of sensation on the lower right-hand side of his jaw. His jaw aches in the cold. He gets some pain after he has been talking for a while.
The defence position
The defence position is that the offender believed that punching the complainant was necessary to defend Jones from harm, but accepts that the punch was not a reasonable response in the circumstances. The defence submits that the complainant was the aggressor in his interaction with Jones which led the offender to believe Jones was at risk of harm from the complainant.
The State position
The State submits that the court cannot be satisfied on the balance of probabilities that the complainant was the aggressor. The State says that the offender did not hold the belief that he needed to defend Jones from harm.
The State submits that Jones was the aggressor. However, the State says that this is not an aggravating factor for the purposes of sentencing and therefore, is not a fact that the State is required to prove beyond reasonable doubt.
The evidence
The following witnesses gave evidence on behalf of the State:
(a)the complainant;
(b)Prum;
(c)Fougt; and
(d)Detective Senior Constable Tony Lee Hoefs.
The offender elected to give evidence and called the following additional witnesses to give evidence:
(a)Jones; and
(b)Mr Ngunja Nixon Raymond Stuart Hamlet (Hamlet).
There was CCTV footage of the incident (both edited and unedited), together with still images taken from that footage, which was tendered at the trial of issues.
Dillon Bruno Bailey (the complainant)
The complainant gave evidence that he was in Northbridge coming out of Red Rooster and he saw Fougt talking to Jones. He knew Jones. He said he went up to him to say g'day and Jones pushed him. He said Jones was aggressive towards him. The complainant asked Jones 'what's this all about?' and Jones backed off. The complainant said Jones shook his hand.
The complainant went back into Red Rooster and then came back out. He was with Prum. Prum said to the complainant 'Is that Siobhan?' and the complainant said yes. Jones then said to Prum 'What did you say slut?' or something along those lines. The complainant gave evidence that he then said to Jones 'that's no way to talk to someone like that, especially a woman.' He said that he did raise his voice when he said this and that he was aggressive in order to get his point across. He said Jones then pushed him. The complainant said he could not remember if he pushed Jones back. He said he went to walk away and then he got punched.
After he was punched, the complainant said he heard someone yelling 'That's my little brother. I don't give a fuck.'
The complainant said that the offender (whom he had not met before) then came up to him and apologised.
The complainant said that he had met Jones on previous occasions. He said that Jones had previously been in a relationship with Siobhan, a former girlfriend of one of the complainant's friends.
The complainant said that he saw Siobhan with Jones in October 2019 at a music festival. The complainant was with his friends at the festival. He walked away from his friends at one point to go to the bathroom. As he was coming back to join his friends, he noticed that 'they were all starting on a gentleman who was with Siobhan, they were being really aggressive towards him.' That gentlemen was Jones.
The complainant said he got between his friends and Jones and tried to calm everything down and then his friends ended up walking away. The complainant said that he then apologised to Jones and said that his friends should not behave that way towards him. The complainant said he did not see Jones again until the night of the punch.
Valerie Watts Prum
Prum was the complainant's girlfriend on 1 March 2020. Prum's memory of the interaction between the complainant was very limited. She gave evidence that the complainant was just trying to say hello to Jones, Jones came off rude so she said to him 'Don't act tough', then Jones got angry at her. The complainant came in and said something like 'don't speak to her like that'. She said that the complainant and Jones had a 'little argument and then it was fine after that because they got pulled away.'
Daniel Luke Fougt
Fougt was in Northbridge on 1 March 2020 with the complainant and Prum and some other friends. He knew Jones and the offender from previous interactions.
He said he first had a chat with Jones. He said he could not remember too much from back then, but what he did remember was that the complainant was relaxed when he went up to Mr Jones and things started to get a bit heated between the complainant and the offender and then the complainant and the offender started arguing from there.
Detective Senior Constable Tony Lee Hoefs
Detective Hoefs gave evidence about contacting Jones and obtaining a signed statement from him. He also gave evidence about his inquiries of Hamlet.
Desmond Lionel Ernest Farrell (the offender)
The offender gave evidence that he had known Jones for 6 to 7 years. He met him through football and some mutual friends they had grown up with and they bonded from there.
He described his relationship with Jones as 'like his younger brother, like a real close mate'.
He gave evidence that Hamlet was also like a brother and that he had known him for 4 to 5 years.
He said he was out with Jones, Hamlet and one other friend on the night of 29 February 2020 at a music festival at Burswood. After the festival they all went back to his friend's hotel room, got changed and then went into Northbridge.
He said that he heard yelling and screaming behind him and he then looked behind and saw the offender 'what looked like I seen [him] was being held back by some girls. And I thought [Jones] was about to be attacked, from previous times.'
He said that he had never had any contact with the complainant before but Jones had told him about the complainant and that he was aggressive towards him at a music festival in 2019.
He said he also had met Fougt before when he was at a music festival on 26 December 2019. He said that Fougt was with a group of mates and they were bullying Jones. He said he 'jumped in and told them to just separate, told [Jones] we're just here for a good time'.
He gave evidence that he had never met the complainant before but he heard about him from Jones and had seen pictures of him on Facebook.
He said that, on 1 March 2020, he turned around after hearing the yelling, and he saw Fougt and the complainant and they were not too far away from Jones. He said he was about 5 m away from them at this stage.
He said, when he heard the yelling, he turned around and saw the complainant being aggressive and shouting at Jones. He said he then 'walked over and sort of just stayed still to see if anything was going to happen' and that he 'thought [Jones] was like being bullied and about to get attacked'. He said 'they looked extremely close. I thought something was going to happen.' He said 'I just thought that … was sort of filled with pressure and threatened by them.'
He said he then walked over and attacked the complainant. He did not say anything to him, he just hit him. He said he 'was trying to make sure that [Jones] was alright.'
He said that he did not see the complainant as a threat to him at any time. He agreed that he punched the complainant to the jaw after he saw Jones push the complainant. He said that the complainant was shouting at Jones and people were stopping him from getting to Jones. The offender gave evidence that Jones was also shouting at the complainant.
He gave evidence that he was angry after he punched the complainant but when the complainant said that he had broken his jaw, he was calm and apologised.
Mr Taj Jones
Jones gave evidence about his interaction with the complainant at the music festival in October 2019. He said he was with Siobhan and she pointed out the complainant and his group of friends. He said they started to taunt and point at them from a distance. The offender was not here with them. Fougt was with the complainant's group of friends.
He gave evidence that the complainant and his friends followed him and Siobhan back to his group of friends and there was a confrontation between the two groups. He said that the complainant came straight towards him and scared him and Jones's brother had to step in and try and stop it. He said he later told the offender about this incident.
He gave evidence that he next saw Fougt at a music festival in December 2019. Jones said that the offender was with him on that occasion. He said Fougt came up to him and said 'if you or any of your mates touch me or my mates we're going to bash you.'
In the early hours of 1 March 2020, he said he was walking with the offender and a group of friends in Northbridge when the offender stopped to talk to some friends. He then noticed Fougt and the complainant standing there and Fougt stopped to say hello so he stopped to talk to them.
He said their interaction was not bad at first, but then the complainant said something as Jones was walking away so he turned around and asked what the complainant said. The complainant responded that he asked how he was. Jones said 'I'm good' and put out his hand for a hand shake. He and the complainant then shook hands. At this time, he said that Prum said to him 'Don't try to act tough'. He said he told Prum to 'fuck off'. After that he said the complainant started shouting at him 'don't speak to her like that' and started coming towards him.
He said he then pushed the complainant to get him out of his personal space. After that he said that someone stepped in front of the complainant and Fougt stepped in front of him. Then he said 'all of a sudden I heard [the complainant] saying 'my jaw, my jaw'.
Jones gave evidence that he was 'pretty intoxicated' at the time that all of this happened.
Mr Ngunja Nixon Raymond Stuart Hamlet
Hamlet gave evidence that the offender was his good friend and that he had known him for a long time. He said he had not known Jones for very long, that he had been introduced to him by the offender.
Hamlet was with the offender and Jones in the early hours on 1 March 2020. He said he saw Jones talking chatting to someone and then the tension 'started to rise … from rather than being like a comfortable embrace saying hello … that sort of energy changed and it had sort of intensified to more of … like stand-off situation'.
He said that the offender walked towards Jones and the complainant and then the offender 'engaged and threw a hook straight at the fellow in the jaw and there was a clean cracking sound that was heard.' He said 'it was kind of like a surprise, like a shock, you know? Even the boys I was standing with … we were surprised that it actually happened.'
CCTV Footage
The CCTV Footage taken of the incident shows the incident in the top right hand corner of the vision. The view is, at times, obscured. The sequence of events (which can be observed) is as follows.
The complainant is wearing a white long sleeve jumper and shorts. Jones is wearing a blue shirt, black shorts and a cap. They can be seen at first in close proximity (that is, less than an arm's length away) to each other. Jones and the complainant shake hands. Fougt is standing behind the complainant to his right. He is wearing a green t-shirt and shorts. He takes a quick step towards the complainant.
Jones pushes the complainant backwards with moderate force. The complainant falls backward and then takes a step forward towards Jones. A woman in a white skirt steps between Jones and the complainant. The complainant takes a step towards Jones. The woman in the white skirt steps behind the complainant and places her arms around his waist and then over his shoulder. It appears that she is holding him back but does not need to apply any force to do so. There is then a commotion. The complainant is struck and falls backwards and the offender appears in the vision moving through the group. The offender is wearing a blue shirt which is open over a white t-shirt and shorts. The offender and Jones then come back towards where the offender is (out of screen) and appear to argue with Fougt. Jones gives a push to Fougt's chest. The complainant appears back on screen with Prum who has her arms around him. The complainant and Jones appear to be saying something to the complainant. Hamlet then appears on screen and moves both Jones and the offender away from the complainant. The offender walks back calmly towards where the punch occurred. Fougt places his arm around Jones back in what appears to be a conciliatory move.
Assessment of the evidence
It was clear the Prum and Fougt had very limited independent memories of the details of the incident. Each were shown the CCTV footage and given an opportunity to refresh their memories. This did not assist their recollection. Therefore, I place limited weight on their evidence.
I found the complainant's evidence, in relation to the details of the incident, to be believable. He said that he could not remember whether he pushed Jones back, even after he had viewed the CCTV which did not show him pushing Jones. He gave his evidence in a straight forward manner and did not embellish his answers.
I do not consider that Detective Hoefs' evidence was relevant to the fact in issue.
The offender impressed me as an honest, accurate and believable witness. His genuine remorse for his offending was evident. He was candid in admitting that he punched the complainant and that he did not feel threatened personally by him. I believe his evidence that he been told by Jones previously that the complainant had been aggressive towards Jones and that, when he saw the complainant that night and heard the shouting between the complainant and Jones, he thought that Jones was being threatened and that he wanted to make sure Jones was alright. He was also candid when he said that, immediately after he punched the complainant, he was angry but when the complainant said that he had broken his jaw, he calmed down and apologised.
Jones was also believable and came across as an honest witness. He admitted that he told Prum to 'fuck off'. He admitted he pushed the complainant. I accept his evidence that he did so because he thought the complainant was in his personal space.
Hamlet did not remember many of the details of the incident. I accept that he was an honest witness, but due to the passing of time between the incident and him giving evidence, he was unable to give an accurate account of the events leading up to the incident. I do accept that he was surprised by the offender punching the complainant to the jaw in the circumstances in which it occurred.
Overall, I make the following observations in relation to the evidence:
•The evidence of Jones and the complainant, so far as it relates to the interaction between them on 1 March 2020 is not inconsistent. I find that each gave evidence of their recollection of the interaction and how they interpreted the actions of the other. Their accounts were consistent in that the interaction started off amicably, Prum said something to which Jones said something back that was offensive, the complainant raised his voice to Jones and Jones pushed the complainant. Both Jones and the complainant were held back by someone and then the offender came in and punched the complainant on the jaw. The CCTV footage is consistent with this version of events;
•I am not required to make a finding, for the purposes of sentencing the offender, as to what occurred at the music festival between Jones and the complainant in October 2019. The only relevance of that incident is that I am satisfied that Jones told the offender that the complainant was aggressive towards him on that occasion. This knowledge, together with the incident with Fougt on 26 December 2020, is relevant to the offender's state of mind on 1 March 2020;
•I am not satisfied, on the balance of probabilities, that the complainant was the aggressor in his interaction with Jones. The CCTV footage is consistent with the complainant stepping towards Jones and Jones pushing the complainant - that is the two men engaging in mutually hostile behaviour. Jones pushes the complainant, the complainant does not push him back;
•I am satisfied, on the balance of probabilities, that the offender did hold the belief that his friend, Jones was in a situation where the complainant was a threat to him. He heard shouting, he saw Jones push the complainant away from him, he saw the complainant being held back. He observed all of this in circumstances where he had been told by Jones that the complainant had been aggressive to him in the past, and where he had witnessed Fougt, a friend of the complainant's who was standing nearby on 1 March 2020, said that would bash him and Jones. However, while I am satisfied the offender held this belief, it merely explains his offending rather than mitigating it.
Conclusion and findings
The defence sought to prove that the aggressor of the conflict between Jones and the complainant was the complainant and in those circumstances, the offender punched the complainant to prevent harm to Jones. The defence sought to prove this as a fact in mitigation for the purposes of sentencing the offender.
I am not satisfied, on the balance of probabilities, on the basis of all of the evidence adduced at the trial of issues, that the complainant was the aggressor in his interactions with Jones on 1 March 2020.
I make no finding in relation to whether Jones was the aggressor - it is not a fact which is aggravating if proven and in any event, does not have an impact on the sentencing of the offender.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
1 JULY 2022
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