PARTIES: JAMIE THOMAS O’BRIEN
v
PETER MAXWELL RIDDLE
&
PAULINE BIRDWOOD
TITLE OF COURT: Court of Summary Jurisdiction
JURISDICTION: Justices Act; Criminal Code; Trespass Act
FILE NO(s): 20518337, 20516685
DELIVERED ON: 9 May 2006
DELIVERED AT: Darwin
HEARING DATE(s): 12, 13 April 2006
JUDGMENT OF: Jenny Blokland SM
CATCHWORDS:
CRIMINAL LAW – EVIDENCE - ADMISSIONS
Spence v Damasi (1988) 48 SASR 536
Mule v The Queen [2005] HCA 49
REPRESENTATION:
Counsel:
Prosecution: Ms Armitage
Defendants: Ms Franz for Mr Riddle; Mr Dooley for Ms Birdwood
Solicitors:
Prosecution: ODPP
Defendants: NTLAC; NAAJA
Judgment category classification: C
Judgment ID number: [2006] NTMC 046
Number of paragraphs: 28
IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20518337, 20516685
BETWEEN:
JAMIE THOMAS O’BRIEN
Informant/Complainant
AND:
PETER MAXWELL RIDDLE
Defendant
AND:
PAULINE BIRDWOOD
Defendant
REASONS FOR DECISION
(Delivered 9 May 2006)
Jenny Blokland SM:
Background
1. Both Defendants pleaded not guilty to one count of assault with two circumstances of aggravation alleged, namely, causing bodily harm and threatening with offensive weapons, in particular, a walking stick, shifter, a screw driver and a spirit level. The date of the alleged offence was 28 May 2005. A count alleging grievous harm previously laid was stood aside. The alleged victim is Lubertus Johannus Heyen. Both defendants also pleaded not guilty to one count of trespass and unlawfully damage to certain property. The charges against the both defendants were heard together. As well as primary proof issues, the defendants also raised issues of provocation and self defence. The burden lies on the prosecution to negative these issues beyond reasonable doubt.
Evidence of the Prosecution
Lubertus Johannus Heyen
2. Mr Heyen gave evidence of the events of the 28th of May 2005. He also gave some relevant background information. He told the Court of an arrangement between himself and one of the defendants, Mr Riddle to buy a caravan from him; there was a deal of detail about this purchase but in short it involved the assertion by Mr Heyen that after much prompting and attempts on his part to have the caravan paid off beyond some initial payments, the repayments ceased and Mr Heyen re-possessed the caravan.
3. Mr Heyen told the Court that he was sixty years of age and was currently care-taking the property at lot 4589 Stephens Road where he was living; he said he walked with a walking stick for the last three years due to arthritis affecting in particular his left hip and left knee; that this was a condition he had endured for the last few years; he told the Court he also suffered heart fibrillation, a condition that has been checked by a specialist.
4. He said that on the 28th of May 2005 he went to the Corroboree Park Tavern at about 8:00 to 8:30 and stayed there until 10:00 or 10:30; he said he saw Mr Riddle at the Tavern and that Mr Riddle approached him and told him he had left a note for him at his table; he said he didn’t have a discussion with Mr Riddle; he said he knew there was a lady with Mr Riddle but he did not know Pauline Birdwood. He said he drank two mid strength schooners and drove back to his block. Photos of his residence which is essentially a large shed at block 4589 on Stephens Road are in evidence.
5. He told the Court that he sat down at home and put the kettle on. He said Mr Riddle arrived and told him he was there to discuss the money for the caravan; he said Mr Riddle arrived in a ute with a lady in the front of the ute and other people in the back; he said an Aboriginal lady also got out of the car. He said Mr Riddle sat opposite to where he was sitting and started talking about the money and the caravan and the Aboriginal lady was next to him; he said the discussion became heated and the woman started to bash and hit him on his head; he said he asked Mr Riddle to tell her to stop; he said she started to slap or hit him around the head and he pushed her away. At that point he said Mr Riddle came over and jumped on him and pushed him over in the chair that he was sitting in and they were both on the ground wrestling. He said when Mr Riddle came at him over the chair they both went backwards onto the ground over the armchair. He said on the ground he was hit with another object which he thought was his walking stick and later he said he was hit with a brick. He said his walking stick had been against the side of his armchair when he was sitting in the chair earlier. He said the Aboriginal lady hit him with the walking stick and that he and Mr Riddle were wrestling and rolling around. He gave detailed evidence of the objects in the room in his shed with reference to photos 2 and 3. His walking stick was broken into a few pieces and he said he would have been hit by the lady with the walking stick and that it couldn’t have been Mr Riddle who hit him with that; he said it would have had to be the lady who hit him with the brick given he was wrestling Mr Riddle at the time. He said that there was another person present at the start of the incident but he disappeared during the melee.
6. Mr Heyen pointed out the brick under his green armchair and various other objects. He said he spent eight days in hospital, he said the brick hit him around the area generally of the left eye and nose; he said also that Mr Riddle started to belt him around with the spirit level that had been previously propped up; he said he was bashed around with the spirit level on his arms and he showed the Court that he put his arms up in the protective position; he said later the lady came back with the shifting spanner and that after he was hit with the spirit level he was hit with the shifting spanner at the back and top of the skull; he said Mr Riddle didn’t have anything in his hands, possibly the walking stick. He said after he was attacked with the spirit level he managed to get up and “give him a few wacks” and that Mr Riddle was still coming for him; he said he thought he was bleeding from being hit by the shifting spanner; he said he also managed to hit the lady with the spirit level. He said the lady had the screw driver and that’s how his hearing aid was damaged by her trying to get him with the screw driver. He said the screw driver was used between being hit with the walking stick and the spirit level. When he got away he said he jumped into his car and Mr Riddle tried to get the keys out of the ignition and he took the keys and was told “Don’t you go to the cops” and there were threats about coming back again. He said the lady picked up two rocks and hit the windscreen of the car. He said during the attack he asked hundreds of times for them to stop. He remembered the number plate of the Falcon Ute that they came in and he wrote it down; from his neighbour’s place he called the police. He said he was aware of another couple in the back of that ute. He told the Court he spent seven to eight days in hospital with a broken arm and broken heel; he said his arm was in plaster for seven to eight weeks. He also had some cuts. His hearing aid was damaged and he said some of the bedding from the caravan was missing.
7. In cross examination Mr Heyen agreed there had been disputes about the repayment of money for the caravan; he agreed he did not have a court order to repossess it but he said he had given Mr Riddle advice and notes and he had been to see him about it; he said he didn’t know if Mr Riddle was on unemployment or welfare, he explained that he had agreed for Mr Riddle to have the caravan on the basis of a part payment and agreement to pay it off in instalments; he kept receipts and notes about the monies paid and amounts outstanding which together form exhibit D5; he said he collected the caravan himself to bring it back to his block; he disagreed there were significant belongings in the caravan, he said there was “no bedding” but he did say there was “a mob of old clothes and junk”; he did not believe that he would need a court order to repossess the van.
8. It was suggested to him that he had not mentioned to police that he’d seen Mr Riddle at the pub; he said that maybe he was not asked about that; he disagreed that he had said to Mr Riddle “follow me up home, we’ll talk about it”. He did say that he made a mistake and he should have taken someone with him when he went home. It was suggested to Mr Heyen that in his statement he said Mr Riddle got out of his car and immediately started shouting. Mr Heyen said the statement was an abbreviation of what happened; he said it did not necessarily represent the exact sequence of events; he agreed that his statement may not be 100% correct; he said he abbreviated a lot of things and he should have been more careful; he said he could not necessarily put the events in the correct sequence. When it was suggested to him after the heated conversation that he stood up and hit Mr Riddle with the walking stick he said it was “total lie”. He rejected a number of different suggestions that at various stages he was the aggressor, stating that Mr Riddle “hit me all over while trying to roll over”.
9. He agreed in cross examination that he felt that something was not right and he felt concerned when the car drove up with four people in it. He disagreed that he panicked when Mr Riddle first got out of the car at his home. He denied hitting when asked about whether he was the aggressor with the walking stick; he said there was no need for him to hit anybody; he agreed he was not sure who he pushed away at one point whether it was Ms Birdwood or Mr Riddle; he said he was bleeding from the head but no stitches were required; he said he had blurry moments about the incident; he said his dogs took off during the incident; he said he wished they had stayed but they never came during the “grappling”; he said they were “typical females”, one a puppy and one an “old bitch”. He agreed that there were a number of screw drivers and shifting spanners and he said he wasn’t sure if the spanner before the court was the correct one. He said in relation to the use of the screw driver he didn’t know exactly when that happened but he thought it was early in the piece, definitely before the use of the spirit level.
10. In re-examination I allowed questions concerning the efforts he had made in relation to securing repayments for the caravan and he stated on each occasion that there were no violent outbursts. He also gave evidence that his description of the events concerning his attack commence on the third page of his statement to police and comprised only one page of typing concerning his account of the alleged assault.
Elsey Walker
11. Ms Walker is a friend of Mr Riddle and is Ms Birdwood’s aunty – “Aboriginal way”. She gave evidence of being in “Kevin’s ute” with the defendants; she said she was a bit pissed and said she was laying in the back; initially she said she didn’t remember if she went to Corroboree Tavern. In the early part of her evidence she said she didn’t remember going to anybody’s lot. Then she said she woke up at Corroboree Tavern and she saw a bloke with a walking stick who was pissed. She said the bloke said “follow me”; she said she was asleep in the back of the ute and she woke up for a little while; she said she saw a man with a walking stick who had “grog in his guts”. She said she was twenty or thirty metres away from him; she thought he was a tall bloke. She said she saw Peter and Pauline’s things in the caravan at the lot; she said those things belong to Peter Riddle; she said she saw dirty clothes and clothes that she had given to Ms Birdwood; she said she saw a bag full of clothes in a red and blue white stripey bag; she said she didn’t see anything and didn’t see any fighting.
Kevin Eadie
12. In his evidence Kevin Eadie said he had been a friend of Mr Riddle for ten years and knew Ms Birdwood as a friend of Mr Riddles for the last three years. He said in May of last year Mr Riddle asked to use his ute; he said he had been drinking with Elsey and that he was drunk; he said they were all in the front of the ute and went to the Corroboree. He said Peter got out at the Tavern; he said Peter got out of the car and they were there for five to ten minutes, he said Peter was asking Burt about where the stuff was and he drove back to Burt’s; he said he didn’t see Burt at the Tavern. He said he saw Burt coming back in another car to his place. He said when Burt got back to his place he was standing near the fridge getting beer out of the fridge and Peter was asking him where his stuff was. He said Burt hit Peter across the forehead and that was around the fridge near the car; he said he hit Peter right in the forehead just once and Peter punched Burt four to five times; he said he didn’t see Pauline do anything, he said that Mr Heyen had used his walking stick to hit Peter but the walking stick did not break.
Tamara Randle
13. Senior Constable Randle gave evidence concerning the records of conversation that were taken and concerning various photos she took of Mr Heyen’s residence and the various items that featured in the incident including the green lounge chair on the paved area; the dirt area; the spirit level. She noted a white brick near the chair and took photos but she said she couldn’t identify any physical evidence on those items. She noted there may have been blood on the spirit level; she identified the broken walking stick and various other items that were also mentioned. She did not take a photo of the blue van; she said she did not have a complaint from the owner of the van at that time.
Extracts from the Medical Report
14. Dr Othman Hamin, Orthopaedic Registrar at Royal Darwin Hospital stated that Mr Heyen “suffered (1) a laceration in his forehead above his left eye and (2) a minimally displaced grade one compound fracture of his left ulnar. The injuries are consistent with the history provided. Treatment provided was (1) laceration to his scalp was sutured and (2) wounds over the fracture left ulnar was debrided and washed out with normal saline and below elbow cast was applied. He was also started on IV flucloxacillin. He did have minor surgery as described above. There was no history of concussion from the history provided and there were no indications that the patient was unconscious during or after the incident.”
Admitted facts pursuant to Section 379 of the Criminal Code
15. The following facts were agreed between counsel to be admitted:
“Three sample areas were tested on the spirit level.
Two sample areas tested positive for blood. Each of those samples resulted in DNA attributable to Bert Heyen.
One sample area tested positive for blood. That sample resulted in DNA attributable in approximately equal proportions to both Bert Heyen and Peter Riddle.
It is not possible to say how the DNA was contributed by Heyen or Riddle to the third sample. It is conceded it could have been Riddle’s blood.”
Records of Conversation with Police
16. Transcripts of tape recorded records of interview with both defendants were admitted without objection. Mr Riddle’s record of conversations covers material concerning the repayments for the caravan that he purchsed from Mr Heyen; he told police that he had been in jail and when released on bail the caravan was gone; he told police he went to Mr Heyen’s place which he acknowledged “was a stupid move” and asked Mr Heyen about his possessions; he said he had attended there when Mr Heyen wasn’t there; he looked inside the caravan and found some of his “stuff there”. He said he saw Mr Heyen at the Corroboree and he asked about his “stuff”; he said Mr Heyen told him to “come up home” and he asked him three times about his “stuff” and then he said Mr Heyen hit him over the head and “we started bluing between the two of us. I had a great big cut on me head”.
17. He said Mr Heyen hit him on the head with his walking stick and then he “retaliated” saying “but I did not stab him, I know that”. He later told police that Pauline “went crazy” and picked up a screwdriver; that he told her “this is not your fight”. The possessions he identified included mattresses and a sheet that had blood on it; he said Mr Heyen brought out two bags of clothes after it all happened. Mr Riddle said Mr Heyen’s statement was wrong that he had gone to the Corroboree Pub, that he got back home at 11:00pm, sat down on his couch and then Mr Riddle had driven up in a blue ute. Mr Riddle agreed Mr Heyen did not give him permission to enter the property. Mr Riddle said he hit Mr Heyen because he was “pissing blood out of [his head]”; he said Mr Heyen broke the walking stick over his head; he agreed the chair rolled over the top of them; he disagreed he hit Mr Heyen first with the spirit level; Mr Riddle told police he took the spirit level off of Mr Heyen; he agreed it was “probably right” that he hit Mr Heyen on his left forearm that later ended up being broken and hit him on his right forearm as well as around the legs and feet; he said he hit him three or four “five at the most” that night. He agreed that after the incident he grabbed the car keys but disagreed that he threatened Mr Heyen. He said he didn’t know why he did this but he was scared and worried; he recalled he said “Just bloody die here mate I don’t care”. He said he was wild. Police asked him if he received medical treatment for the cut on his head and he said “no”. He agreed he “could have” hit Mr Heyen with the walking stick. He said he was “reasonably sober”.
18. Ms Birdwood was interviewed by police on 4 August 2005. She told police that while Mr Riddle was in prison Mr Heyen (whose name she did not at that stage know), took the caravan without permission; that Peter was really upset because their possessions were in there; she said after they asked him “what did you do this for? Why did you take the caravan?”, he “started threatening me with walking stick around”. Ms Birdwood said she pushed him and he fell backward; she said he hit Peter with the walking stick after “swinging it around four or five times towards him”; she said that’s when she started to punch him, maybe five or more times. She denied hitting Mr Heyen with a brick; she said he “hit both of us” with the walking stick and that’s when she started punching; she said she did not pick up a weapon; she said he fell on a brick or two bricks. She then told police that after he hit the brick, she started asking about getting the caravan back and she “just punched him, that’s all – and he hit us – he hit us..” She denied trying to stab him with the screwdriver. She told police “he got the dog onto us to bite us.” She said it was a lie that she smashed the windscreen. On whether she was drunk at the time, Ms Birdwood said “we only had one carton of beer that’s all we was drinking that’s all, a carton of beer”; that she was “not really drunk actually”. She also said “Peter got knocked out from him with that stick”. She also said Mr Heyen threw a spanner at her and “I just ducked – I didn’t hit him with it.” She later said there was a “shifter” involved but denied using it.
19. The defendants did not give or call evidence.
Observations on the Evidence
20. Mr Heyen seemed to want to give a frank account of the incident according to how he remembered it. There was nothing obvious about his evidence or the surrounding circumstances that made me think he was being anything other than honest. I note his injuries tend to coincide with the description of the assault that he gave to the court. He also appeared to be reliable. He acknowledged his statement to police was a somewhat abbreviated description and he acknowledged he may have not have included everything he told the court in his statement. He acknowledged, without being particularly pressed that he could not remember the order of some of the events on 28 May 2005. A number of alleged disparities between his evidence and statement were credibly explained. None of those alleged errors really went to the heart of whether he hit Mr Riddle first. He was not challenged in any significant way about his sobriety and was adamant that he had only two beers at the Corroboree. Even if wrong headed, he seemed to honestly believe he had a right to repossession of the caravan and told the court he did this because he couldn’t afford to keep pursuing Mr Riddle. Although that action no doubt had a harsh impact on Mr Riddle, Mr Heyen did not appear to be malicious about it, he was obviously upset (see documents, 1st March 2005 in D5) about the state of the caravan that had not been paid for as agreed. He seems to have kept clear records of the transactions. He is obviously not a well off person himself.
21. The various accounts that suggest Mr Heyen invited the Defendant Mr Riddle back to his place and that Mr Heyen hit Mr Riddle with his walking stick are flawed. I reject Ms Walker’s evidence as primarily unreliable given her state of intoxication and the fact that she places herself too far away from Mr Heyen at the Corroboree to make any observation of what he said. Mr Eadie readily admits he was intoxicated; he says he saw Mr Heyen hit Mr Riddle but the walking stick didn’t break. Mr Riddle and Ms Birdwood’s accounts to police differ quite significantly from Mr Eadie’s with Mr Riddle saying the walking stick was broken on him and Ms Birdwood saying both of them were hit with it after he was swinging it around. Essentially through the combination of Mr Eadie’s evidence and the record’s of conversation, the argument on behalf of the defendants is that the prosecution cannot negative provocation and self defence (in the case of Mr Riddle) and provocation, self defence or defence of another (in the case of Ms Birdwood).
22. Although I take into account the records of conversation and have considered the challenge they make to the prosecution case, I do not accord those records of conversation the same weight as the prosecution evidence that has been given in the witness box and subject to significant scrutiny from two defence counsel. Defendants are entitled to have both the inculpatory and the exculpatory parts of their statements, (bearing in mind that most statements do not fit neatly into one category or the other), put before the court, but the weight to be given it is a matter for the trier of fact: Spence v Demasi (1988) 48 SASR 536.
23. I have also been referred to Mule v The Queen [2005] HCA 49 where the High Court considered whether a trial judge had correctly directed a jury in a case involving possession of ecstasy. The Western Australian legislation appears to have similar provision as the Northern Territory’s Misuse of Drugs Act, that is, once a specified quantity of the drug is found, the person is deemed to have the drug for the purpose of supply unless on the whole of the evidence it is found more probable that they did not have that intention. The whole video-taped record of conversation was played to the jury. In relation to the ecstasy the Appellant told police “That’s personal use” along with certain other exculpatory statements. The High Court observed [para 20]“It was legally correct for [the trial judge] to tell them that they were not obliged to give the same weight to everything that was said in the interview.” And at [22] “It was not a derogation from the appellant’s right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath. The expression “right to silence” is used to refer to a number of distinct legal rules. It is a useful shorthand expression but it is a general description which does not always provide a safe basis for reasoning to a conclusion. What is important is that the appellant did not give evidence at his trial. In the days when, in most Australian jurisdictions, accused persons were entitled to make unsworn statements in court, it was not regarded as a derogation from their rights for judges to direct juries that what an accused said in these circumstances was to be regarded as “a possible version of the facts” and that jurors should “consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence.””
24. I intend to deal with the records of conversation as though they were unsworn statements and will treat them as a possible version of the facts but in my view they cannot have the same weight as the matters clearly established on the evidence. As I have stated, in my view Mr Heysen gave a frank account. There are also the accepted circumstances that support his account, namely, the defendants presented at his home wanting to discuss a contentious issue. After the alleged assault, Mr Riddle took the action he did with the car keys. Ms Birdwood, although she didn’t admit it, smashed a car window that Mr Heyen was going to escape in. Mr Heyen was injured in a way consistent with his allegations. The blood on the spirit level that could have been Mr Riddle’s may have come from during the assault when he and Mr Heyen were wrestling or when Mr Heyen hit him with the spirit level. It doesn’t clearly support the defence case. After having regard to the records of conversation and the evidence as a whole, I am satisfied beyond reasonable doubt that the offences occurred in the manner described by Mr Heyen. I am satisfied beyond reasonable doubt that after Ms Birdwood hit Mr Heyen, Mr Riddle pushed Mr Heyen over the chair and both defendants assaulted him. Added to the evidence of Mr Heyen is the circumstance that he is a person who uses a walking stick and is to some degree disabled. As he said, he had no reason to hit anybody. I didn’t detect any motivation on Mr Heyen’s behalf to respond to the defendant’s queries with violence in these circumstances – there would seem to be every reason not to be violent in the circumstances of Mr Heyen in the presence of two angry people. In any event, I was satisfied beyond reasonable doubt without that further factor.
Conclusions
25. I have no doubt the defendants were the assailants. As to whether Mr Riddle acted under provocation, in my view he was upset and angry at the action of Mr Heyen that may well have been a “wrongful act” for the purposes of the excuse of provocation. When he discussed the matter with Mr Heyen, particularly in relation to their possessions, he must have become angry, however, the prosecution can at least negative beyond reasonable doubt the element that an ordinary person similarly circumstanced could have acted in the same or similar way. This was a dispute over property. It must have been upsetting for Mr Riddle, but both Mr Riddle and Mr Heyen felt aggrieved to a certain extent by each other. An ordinary person even in the circumstances of Mr Riddle, (even considering he was not long released on bail and the “re-possession” occurred while he was in jail), could not react in the same way. The whole action was out of proportion to any provocation in the action of re-possession and ensuing discussions. In any event, there was time for his passion to cool since the potential “wrongful act”. I agree that Ms Birdwood may have been upset and angry about the re-possession of the caravan and some personal effects but even looking at the situation from her point of view, the prosecution can readily negative provocation beyond reasonable doubt. There was time for her passion to cool, her acts were disproportionate.
26. As I have found the facts, self defence does not arise for either defendants. In my view Ms Birdwood was an aggressor in this situation. She was not acting to defend Mr Riddle. She was assisting him in the assault. In my view there was a common purpose between the two defendants to assault Mr Heyen, although that purpose arose spontaneously after Ms Birdwood was hitting him followed by Mr Riddle attacking him by pushing him over the chair. In that situation both defendants bear some responsibility for the acts of each other. Both bear responsibility for the broken arm suffered by Mr Heyen. In my view it is clear Ms Birdwood hit Mr Heyen with the brick and spanner after the fight commenced. I think her explanation that he fell on a brick completely lacks credibility. I do have doubts that that action was foreseen by Mr Riddle. I also doubt Mr Riddle could foresee the actions of Ms Birdwood with the screwdriver and throwing the rocks at the car window. I add also that it is not clear to me which of the two defendants actually broke the walking stick on Mr Heyen or assaulted him with it. Mr Heyen is not clear about this. In Mr Riddle’s record of conversation he seems to accept he could have used the walking stick to assault Mr Heyen. Although it is not precisely clear which of the two defendants did that, in my view it happened early in the assault and both must bear some responsibility for it on the basis of common purpose.
27. I find the case of aggravated assault proven against both defendants. I find the count of trespass proven against both defendants. I dismiss the count of criminal damage against Mr Riddle because although he used the walking stick at some point as a weapon, I cannot be satisfied that his intention was to damage it or that he foresaw that as a possible consequence of the assault. I have doubt also that he intended or foresaw the damage to the hearing aid that was undertaken by Ms Birdwood. I find the count of unlawful damage proven against Ms Birdwood.
28. I will proceed to hear submissions on sentence. I note that I gave my draft reasons to counsel on 9 May and have since revised and proof read those reasons and have also thought about Ms Franz’s query concerning the sentencing facts. I draw counsel’s attention to amendments in particular to paras 24 and 26 in that regard. These reasons are a corrected version of my reasons previously provided.
Dated this 9th day of May 2006.
_________________________
Jenny Blokland
STIPENDIARY MAGISTRATE