CITATION: Littman v JT, AT, WMM, DR, RW, SG, SC,YN  NTMC 057
PARTIES: Andrew Kevin Littman
JT, AT, WMM, DR, RW, SG, SC, YN
TITLE OF COURT: Juvenile Court
JURISDICTION: Juvenile Justice Act; Criminal Code
FILE NO(s): 20501816; 20501814; 20501815; 20501836; 20501833; 20501834; 20501839; 20501832
DELIVERED ON: 5 September 2005
DELIVERED AT: Darwin
HEARING DATE(s): 26, 27 April; 14, 15, 16 June; 15, 16, 17 , 18 , 19 August 2005
JUDGMENT OF: Jenny Blokland SM
CRIMINAL LAW – ASSAULT – ACTING IN CONCERT – AIDING; EVIDENCE – IDENTIFICATION – APPROPRIATE WARNINGS – SELF DEFENCE – PROVOCATION
Alexander v The Queen (1981) 145 CLR 395;
Domican v The Queen (1992) 173 CLR 555
R v Goode  SASR 69
R v Easom (1981) 28 SASR 134 at 144)
R v Turnball  QB 224
R v Carr (2000) 117 A Crim R 272
Hanning v Peach, JA 05 of 2005, (Unreported), NTSC, 17 August 2005
Brewer, “Eyewitness Identification” in Psychology and the Law, eds Neil Brewer and Kipling Williams(2005)
Prosecution: Mr Robertson
Defendants: Mr Hunter for JT; Mr Powell/Jobson for AT; Mr Bryant for WMM; Mr Louizo for DR; Mr Espie/Ms Saraf for RW; Ms Franz for SC and SG; Ms Musk/ Ms McGrath for YN
Prosecution: Office of Director of Public Prosecutions (Summary)
Defendants: North Australian Aboriginal Legal Aid Service; Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID number:  NTMC 057
Number of paragraphs: 70
IN THE JUVENILE COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20501816; 20501814; 20501815; 20501836; 20501833; 20501834; 20501839; 20501832
ANDREW KEVIN LITTMAN
JT, AT, WMM, DR, RW, SG, SC, YN
REASONS FOR JUDGMENT
(Delivered 5 September 2005)
JENNY BLOKLAND SM:
1. At the commencement of this hearing eight defendants in the Juvenile Jurisdiction, (JT, AT, WMM, DR, RW, SG, SC and YN) pleaded not guilty to a single count of aggravated assault, (contrary to s188(2) Criminal Code NT), alleged to be committed on another young person, Daniele Borgese. The circumstance of aggravation is that Daniele Borgese suffered bodily harm. By way of background it should be noted that during the course of the prosecution case, two defendants pleaded guilty and were sentenced (YN and DR). Further, at the end of the prosecution case, the charge was dismissed against two defendants (JT and SG) after I made a finding of no case to answer. Although there was some circumstantial evidence placing JT at the scene, and he denied being at the scene, there was no evidence of his actual participation, aiding in or encouraging the commission of the assault. At the end of the prosecution case it was all but conceded that there was no evidence linking SG with the assault. I mention the resolution of the charge against those four defendants as although they are no longer part of the proceedings, they are referred to occasionally in the summaries of the evidence. As they are no longer parties, to shorten these reasons I have not included a significant amount of material in these reasons pertinent to them. In these reasons, I am concentrating on whether the charge has been proven beyond reasonable doubt against AT, WMM, RW and SC.
2. The prosecution case was that the victim, Daniele Borgese, and some friends / acquaintances were at the Alawa shops at about 5:00 pm on 22 January 2005 in connection with going skateboarding. (In these reasons, at times, I will refer to Mr Borgese as the “victim”, rather than “alleged victim” because it is undeniable as will be seen from the discussion that follows, he was the victim of an assault. The issue is whether the assault has been proven against the remaining four defendants.) The prosecution case further alleges that the defendants also arrived at the Alawa shops on their bikes and formed a group close to the victim; that there was an exchange between YN and the victim in which YN made derogatory comments to the victim; that another one of the defendants who was bigger than YN (YN was 10 years old), pushed the victim and the victim attempted to walk away; that one of the defendants approached the victim from behind and punched him, on some accounts there was pushing from a further defendant. It is alleged that one of Daniele Borghese’s acquaintances shouted “one on one” that was answered by the defendants with “two on one”, “three on one” and “eight on one”. It is alleged the defendants circled the victim who was punched by various defendants to various parts of his body, until he was also kicked and punched to the ground and unable to defend himself; some of Daniele Borghese’s friends went for help and a shop keeper intervened and the assault stopped when the offenders fled the scene. Daniele Borghese suffered a bruised right eye and cheek, sore ribs, swollen and bruised jaw, cuts and bruises to the knees and hands and was treated briefly at the hospital. The prosecution case is particularised to include common purpose to assault, with various members of the group actually perpetrating the assault and others engaging in encouraging words or acts that may prove common purpose, alternatively may prove aiding.
3. A further point to be noted is that at the outset of the hearing all defendants applied to have their identity suppressed on the grounds that identification was to be a serious issue in the case, both as to being identified in the group of nominated offenders or if identified, identification of their actual role vis a vis each other. Initially I was sceptical about ordering suppression, given the principle of openness of the courts to allow proper scrutiny of proceedings and decisions and for the protection of accused persons themselves. Currently (and since, I recall the early 1980’s), that principle has been incorporated into the Juvenile Justice Act (NT), although in previous times identities of juveniles could not be published. To say that disputed identity has been an issue is to grossly understate the position. As will be seen from the discussion below some of the identifications made have been fraught with classic problems including bare court room identifications, potential contamination between witnesses, the problems of multiple perpetrators and defendants. The possibility of further contamination through reinforcement by reporting on identity could have potentially added another layer of complexity to an already (in part), unsatisfactory situation. I thank counsel for drawing these matters to my attention at the outset. Mr Robertson for the prosecution quite properly did not oppose the application in the circumstances. I note that I ruled pursuant to s23 Juvenile Justice Act.
23. Restriction of publication of proceedings
(1) A magistrate may, either by a separate order or in an order under section 22, direct that a report of or information relating to proceedings in, or the result of proceedings against a juvenile before the Court, be not published except by a person in the performance of his duties under this Act.
4. A further procedural issue that I wish to comment on concerns the evidence given by some young witnesses by way of closed circuit television under the Evidence Act. The issues of identification were so fraught that I invited each identifying witness to come into the court to give that part of their evidence in the body of the court. It was pointed out to me that hair and skin colours on the closed circuit television screen were quite different to that observed on the same people in the flesh and that although this would not usually cause a problem, in this case it potentially did because the witnesses were being asked to conduct in court identifications as between a number of defendants, all of whom are of Aboriginal heritage, the relevance of that being the similarities of appearance as between them. A number of witnesses described the alleged perpetrators as “half-caste”. That is not a term I use myself because it has derogatory connotations, however as it is used by a number of witnesses I have included it in the summaries of their evidence in the interests of accuracy.
5. Daniel Borgese gave evidence that at about 5.00pm on 22 January of this year he was walking past Alawa shops coming home from Casuarina. He saw some friends, Simon Howse, Spencer Smith, Matt Walsh and Matt Murphy and he stopped to talk to them – there was also a “young Daniel” and “Jason”. He said that he skate boards with this group after work. He was talking to them for about five minutes and about 8-10 boys came on bikes. He said they were young “half- caste” Aboriginal boys and that he did not know them and had never seen them before. He said the 8 or so boys formed a group about 2-3 metres away; some of the boys that came started talking from a distance and one of the shorter boys came up to him, said that he was “shit” and made jokes about him being white, calling him a “white cunt”. He said he had not seen this boy before; he described him as “really short, wearing a red shirt, short hair and was half-caste Aboriginal.” In court Daniele Borgese identified YN. I confirm that since that time, as indicated above, YN has pleaded guilty. Daniele Borgese said that after YN made the comments, he (Daniele) ignored him; after that, he said that one of the boy’s friends came over and asked him if he was “dissing (his) cousin”, the other boy folded his arms, shoved them into Daniele’s chest and pushed him back; he said he had never seen him before and in court he identified, at that point, the defendant RW (t 40). He said the other boys started saying “we can take him.” Daniele Borgese looked around the court and identified DR as being one of the members of the group. He told the court he ignored them for a while, and then said that “we’re going” and “I don’t want any of this”. He said that he stepped back, his own friends left and the group on the bikes crowded around him by forming a line in front of him; he was moving backwards and one of the persons on the bikes punched him in the back of the head; he fell forward, was shocked and said “leave me alone, I don’t want any of this”. He identified in court, DR as being the boy who he saw behind him who punched him in the head; that DR told him to come out onto the road; that he, (Daniele) told him to leave him alone and he “didn’t want any of this”. He said another boy came up and punched him in the back of the head; he stumbled around and was constantly punched and kicked from all directions. He confirmed one of those was the person he identified in court as DR. He said he was screaming for them to leave him; he said someone came out of the shop, told them all to go and they took off. He said when he was being kicked and punched he was on the road, on his hands and knees; that the attack went on for a few minutes; he said he was scared, he was disorientated, he’d lost the vision in one eye; he went to hospital and was treated for a couple of hours; for about one week he found it hard to eat, he had head spins and needed to treat his eye with ointment. Photos of his injuries and a medical report from Dr Johnston Lee were tendered by consent. He said that just before the offenders left they said “Don’t mess with the Cas boys and the ABC”.
6. In cross-examination the victim said that there were others outside the Alawa shops when he first arrived that were not part of his group of friends – a boy called Kevin, another called Dylan Taft, a Jacob and a Jason. He said those three had bikes. When the other boys first came up he said he was not paying particular attention to them (t 46); although initially saying it was not a possibility, he then said he was not too sure whether some of the boys who came up on bikes went into the shops; he said he did not see any of them go into the shops (t 47); he said they were on their bikes to start with but when the “little one started making gestures” they all got off of their bikes. He said he did not react when the little person came up to him (t 48); he said he did not reply when asked if he was “dissing him”; he said he could not recall at any time fighting back as he was on the ground most of the time (t 48); he said he recalled only holding his arms up “blocking”. When asked whether he knew if all of the boys in the group were involved, he said he knew three or four were; he said he could not say that all of them were throwing punches (t 49); he said all the boys were off their push bikes except one who punched him in the back of the head when he rode past; he confirmed his identification of RW and DR in court as being two who he remembered punching him; he denied getting into a struggle himself or being the cause of another young person having to drag him off of another; he disagreed with a suggestion that he punched a person or shoved a person who was trying to drag another out of the struggle (t 50).
7. When asked whether his friends were older or younger than himself, Daniele Borgese answered they were younger; that he was the oldest in the group; that they are known as “skaters” because of sketboarding; he said there was no leader, some had just been friends for longer than others: (t 50-51). He agreed when he spoke to police shortly after the incident he was not offered an identification parade; he said he could offer police only general descriptions such as hair colour and height; he said he was able to tell police that they were all of Aboriginal appearance; he said they all had dark hair except one; he said they ranged in age from 12 to 17 years. He disagreed with a suggestion that he called the young boy who came up to him “a little black cunt”; he said he fell forward when he was first hit, he regained his stature and turned around to see who did it; he agreed he did not use the words “Please go away”, he said rather that he used the words “Piss off, I don’t want any of this”; he said he did not say anything else at that stage.(t 53). He said that after he was struck, the majority of the offenders were in front of him but some were behind him also (t 55); he said it was the ones in the front that he got a better look at; in relation to the second hit he said he did not see who that was; after that he was telling them to piss off and that he didn’t want any of it; he said he was frightened at that stage but not disoriented; he agreed there were a lot of people moving about; he said the blows came from all directions; he said he defended himself by putting his fists up above his head using his forearms in front of his face; he said he could not recall if he attempted to punch or kick any of his attackers; he said he did not deliberately hit anyone, he was being thrown around through constant blows; he said it was constant; he said he was on the ground for about two minutes; he said he knew his friends were no longer there – he had seen them leave; when he was able to get up, he was not punched again; it was impossible to break out of the circle of boys – he then qualified that saying he couldn’t be sure, he was trying to stop more punches (t 57-58). He agreed he was disoriented when he got up off of the ground; he said he was sure he didn’t push a boy off of his bike; he said there were probably about 19 boys there altogether, with 8-10 identified in the group that assaulted him; he did not notice anyone else arrive during the fight. He disagreed that after he got up he went towards one of the boys flailing his arms around and that he attempted to strike another one.
8. During cross-examination he was asked about the person who said “Are you dissing my cousin?” He agreed he had described him as “about 15 years old, chubby, half-caste Aboriginal. He had some really big freckles on his face. He was wearing a white t’shirt, had really short hair and about 5’10” tall. I’ve never seen him before but would recognise him again”. He then pointed out AT who (unlike most other defendants), was sitting in the dock at the time. He said that the only one who was not on his bike at one stage was DR. (t 65)
9. He confirmed again that it was AT who asked him about “dissing” his cousin.(t 67). He said RW was standing with AT when AT asked if he was “dissing” his cousin. He essentially corrected his earlier identification of RW, saying that he was not aware AT was in the court at the time. He agreed he had made a mistake by first indicating RW in court.(t68-69). He said he didn’t think it would be possible to have connected with someone himself during the incident (t 70). He agreed he wouldn’t have known if any from his group of friends had punched him (t 71).
10. Mr Borgese agreed there was a boy called Kevin there on the day, not with the 8-10 perpetrators; he recalled he was wearing an orange white and black T’shirt. He agreed he could not be sure that some of the initial 19 or so people did not go into the shops (t 72); he agreed that after being punched twice he was not in control; he agreed he was disoriented; he agreed he was on the pavement but that the incident moved out onto the road; he disagreed it was possible that he grabbed someone in trying to move away; he said he did not recall trying to grab someone. He disagreed that he was staring at the young boy who intitially spoke to him (t 75); he said he only had eye contact with him after he spoke; he disagreed he was pushing him or any other of the boys; he said he was stumbling around with his hands covering himself and stumbling around because they were pushing him; he agreed he couldn’t say that there were more than three punching him; he agreed he couldn’t say who was saying “We can take him.” He indicated RW had said that. (t 77-78)
11. Simon Howes told the court he was skating with friends on 22 January around the Alawa shops; he was with Matthew Murphy, Matthew Walsh, Spencer Smith and Spencer Smith between 4 and 5. He said Daniel came to join them and asked if he could have a skate; he said 8-12 other boys came up. Of that group he said he knew RW; he said there were others he knew but he did not know their names and he said he knew YN; he said he had seen the other boys before (t 85-88). He said that group were standing about 2 or 3 metres away. He said YN said “You’re a shit” to Daniel; that Daniel said “What did you say that for?”; YN and Daniel were looking at each other.
12. Simon said that after that he just went upstairs; he said the other boys said “lets hit him”; maybe one or two boys had said that; he said Matthew Walsh said “oh just leave him, its one on one”; he said then from the group one said “two on one”, another “three on one” to “eight on one”; he said both groups then calmed down. He said that was when he went upstairs (t 90). He asked his mother to call 000 because he thought his friend was going to get bashed. From upstairs he saw a boy ride past and punch Daniel in the back of the head; he said the boy came back and Daniel tried to pull him off of his bike; he jumped off his bike and Daniel and the boy were fighting; then he saw RW wrap a shirt around his hand and punch him towards the head and shoulders area; then a couple of other boys jumped in and were punching, kicking and pushing him; another boy got off his bike and started kicking him; Matt Walsh grabbed a broom stick and Simon Howes grabbed a skateboard and when they got back the group dispersed saying “Don’t fuck with the Cas boys”. He said a couple of other boys also put a shirt around their hand; he said most of the boys were hitting Daniele, but not YN; he said RW definitely hit him; he said he heard some of them say “get him in the head”; he said that he was getting kicked; he described it as savage; he was surrounded, being pushed, kneed and kicked; he was trying to stand up but it wasn’t working; he was trying to grab their feet (t 94-96); he said he was curled up in a ball; he said they rode off.
13. In relation to being able to describe the boys, the witness gave very general descriptions. In court he identified WMM who was in the body of the court and he identified RW also in the body of the court who he said he knew; he also identified DR who was in the court and SC and YN; he identified JT and AT who were in the dock; he also identified SG who he said didn’t hit anybody. He said he saw all of the others hitting Daniele except for SG and JT. He said he couldn’t see who was kicking Daniele. (t 122-123). He said he maybe saw RW pushing Daniele.
14. In cross examination in relation to his identification of the defendants he agreed that his recognition was stronger for some than for others. He said he only knew RW and YN. He agreed it was a possibility that some of the boys could have gone into the shops. He said one of them could have been RW but he wasn’t sure. He also acknowledged that he knew YN well but he didn’t really know RW; he had only seen him a little; he said he pushed him in Casuarina into a pillar and that security guards told him who he was (t 135); he added “yeah and then when we seen him now, ask him what his name was so..” On whether he had ever had a conversation with him, he said “Not particularly, just talking and stuff” (t 136). Of the other boys he said he’d only seen them a couple of times – he’d never really talked to them.
15. Simon Howse also said in cross-examination that when he went upstairs Matthew Walsh came up with Daniele’s phone so it wouldn’t get broken. (t 143-144); he said Daniele handed it to him when he realised he was getting into a bit of trouble. He also said there were 8-10 that fought Daniele; there were another two sitting underneath the Alawa shop (t 146).
16. Simon Howse said that at the police station when their group gave statements they were not all in the same place; he said some of them were in different places; he said he thought Dylan tried to ask someone a question and he tried to ask Matthew Murphy a question and police stopped them, however some of them were in the same room. (t 147-8). He agreed he did not give a great deal of detail in the descriptions he gave to police; he said he didn’t look at what the boys had on because he knew who they were because they had recently been hanging around the shops: (t 148). He agreed he was not shown any pictures. He said a couple of his friends said names but he did not know them. He agreed with a proposition that Daniele and YN were eyeballing each other (t 150). He said the person who punched Daniele on the back of the head was on a bike; he said Daniele tried to hit him but he didn’t; (t 152); he said the bloke who came up to Daniele after the incident with YN was not the first one who hit him; he said he thought that bloke hit him also (t 152); he disagreed with the proposition that only two or three were actually involved in the fight (t 153); he agreed YN and RW were easily recognisable to him, although he knew YN better; he said he didn’t know RW too much (t 154). He agreed that in his court identification he knew their facial features (aside RW and YN who he knew), but he said of the others he couldn’t say what they may or may not have been doing that afternoon (t 155); he then said he could say what they were doing because he could see them from his verandah; he said most of them had their shirt off and shirts out around their hands; he seemed to partly agree with a proposition that he didn’t really know who was in the fight and who was standing out of it but then he said he knew Russell hit him (t 155).
17. Simon Howse said in cross examination that he and his friends gave the police names and then one friend gave a description of them (t 159). The names given were YN, RW “Choongsie”(AT) and “Gexie”(SC); he agreed he talked to Daniele’s brother about what happened (t 159); he spoke to a reporter the next day who came to his house (t 159); he said they just told her there were ABC, Cas boys and groups; he said he didn’t think they said any names; he said his mother, Spencer and Matt Murphy were there when he spoke to Daniele’s brother; he agreed there was a discussion with two other boys to the Newspaper reported; he said he has seen the boys around at Casuarina; he said he saw some of the boys in the court foyer; he said they were “eyeing us off”; he said he had a good look at them; he said when he pointed people out in court there were about 11 boys under the age of 18 years; young people he corrected (t 163-4). He said there were some boys in the court who were not in the fight - one called “Paddy”; a guy in a red silky shirt; he said both of them had blonde hair (t 164); he said one was “half caste” and one was white; he said when he gave a description in court of the boys he was being asked to identify he looked at them before he gave the description; (t 165).
18. He agreed Daniel tried to Punch the “half caste” Aboriginal boy on the bike who had hit him (t 167); he said he got the name “William” from being in court and one of the people said “that’s William”; he said they were telling the Magistrate what his name was; he agreed there was nothing in his statement about a boy riding up and starting to kick Daniele; he said he didn’t think of it at the time he gave his statement; he said things were coming back to him but he was not making it up (t 169); he said he was expecting to see some photos from police after he was asked if he thought he could identify them again; he said he’d seen some of the boys around, especially YN but he hadn’t gone near them until court. (t 170)
19. Of Daniele trying to get away he said he was trying to crawl away; he probably curled up a bit; he said he was swinging his arms around at the start so he could not get hit; he said he tried to punch the first guy off of his bike after being hit. He agreed that he saw RW coming out of the shop (t 173). He said in relation to his statement when he referred to Gexy, he wasn’t sure who Gexy was because he thought Gexy was DR but someone told him that person was somebody else; he then said he didn’t think it was Gexy anymore, he thought it was David Russell – he said he was confused about DR’s nickname but he now knows it is not Gexy. He said he didn’t know who the first person was who hit Daniele; he said he knew what he looked like; he said that apart from the first person who hit the victim, its hard for him to say who did what (t 178). He agreed that when their stories were taken down for the newspaper, the reporter took the stories and turned them into one story. (t 178). He agreed some of the things he’s remembered may have come from what friends told the news (t 179); he agreed there were a few of the witnesses in a room giving their statement at the same time (t 179); that at one point he asked a question of one of the other witnesses. He said Daniel was swinging punches in self defence and the group members moved out of the way; he said RW took his shirt off and wrapped it around his hands and there was someone else without his shirt on; he viewed all of this when he was upstairs (t 181); he agreed the statement he made to police on this point was wrong; he agreed it may not have been RW that he saw hitting (t 182).
20. Simon Howes agreed with Ms Franz in cross examination that he was panicking when he was upstairs (t 174 – note the transcript pages have been placed in a different order – this relates to proceedings of 16 June 2005); he agreed he wasn’t sure what he should do; he disagreed that Daniele was grabbing out at people, he said he was trying to push them away (t 174); he then agreed it was possible that Daniele might have grabbed one of the boys but then he said – “I don’t think so”; he said possibly one of the boys was not punching Daniel; he said he was sure SC punched him (t 176).
21. Mathew Murphy also gave evidence of being at the Alawa shops with Daniele, Matt Walsh, Spencer, Jacob and Kevin. He said about 8 “Cas boys” came up on bikes – about 2-3 metres away (t 100-102). He said he knew YN and RW – he had dealings with both of them; he said he also knew “William”, “a white kid with blonde hair”. He didn’t know the other boys. He said YN came up and said to Daniele, “What do you think you’re good, huh” and that Daniele said “no”. He then said “Choongsie” came up and said “Oi, that’s my cousin”; he said he didn’t know that boy but would recognise him again. He said he shoved Daniele with his shoulder. He said Daniele said “I’m not starting anything. Its just he was being smart”; then they started to crowd around and circle him. He said Matthew Walsh said “one on one if you’re going to fight”; that another boy said “Eight on one”; he said “William” walked up and punched Daniele in the back of the head and then Choongse punched him in the head. He then described them “swarming” Daniele and bashing and kicking him. He said he saw “William”, RW and YN and Choongse and Gexy. He said he ran into the shop for a weapon; when he came out Daniele was lying on the ground and the group was riding off .
22. Matthew Murphy identified “William” as WMM in the body of the court; he was unable to identify “Choongsie” in the court; he identified RW in the body of the court. He said RW was hitting him. He identified DR in the body of the court who he said he also saw hit Daniele. He said he got the name Gexie off of a friend but he doesn’t know what he looks like. Later in cross examination he said it was RW who he identified as “William” (t 194); he said a friend had given him the name “Choongse”; he agreed that between giving his statement to police and giving evidence, friends had given him the names of some of the people involved; he said DR introduced himself to him after he got back to the Northern Territory from Tasmania; he said someone pointed Gexie and Choongse out to him; he said that on the day of giving evidence he was told by a friend what “Choongsie’s” name was – AT.
23. He agreed at the time of the incident the victim gave him his phone because it was expensive – he said that happened at the “first hit”; he agreed some of his evidence was based on what he had been told.(t 196); he agreed that at the time of making his statement he was told the names by other people; on whether he had met them before he said “not really”; he said he knew “William”, that he had seen him before riding around with smaller gang members; he said William had stolen a phone before and that someone had pointed him out; he agreed he didn’t name "William” in the statement; he said he thinks he didn’t know his name at the time; he said he wasn’t able to identify William at the time as one of the people involved in the assault but later he asked who the white boy was with blonde hair and was told it was “William”; he said he would “rather not say” who told him; he was told by a friend there was a boy called William involved and he provided a description to his friend; the description was “short kid with blonde hair, white”. (t 200-202). He said the first time he mentioned his name was when he first gave evidence. He agreed he said in his statement that William was the one who hit Daniele in the back of the head. He agreed his statement was wrong where it said “they must have punched him fifty times each”. He agreed he discussed the matter with a journalist with his friends. He agreed he and his friends were singing out “stop, stop” during the incident. (t 207). He agreed YN was the only one he knew “100%” (t 208). He agreed he was never asked to see a photo-board (t 210).
24. Ms Howes gave evidence that at the material time she was upstairs in her premises when her son came upstairs with a friend; as a result she went to the window and saw a group of boys bashing another group of boys; she gave some general descriptions of the boys; she did not recognise any of them at the time and did not recognise any of them in the court; she said some of the boys were standing and watching but others were hitting him, knocking him; she said she saw three hit him and kick him; she said the group around were cheering; she couldn't hear what they said; she called the police; the second time she looked down, Daniele was on the ground and there were a couple pulling him around; when she arrived at the scene the perpetrators had gone. (t 179-184).
25. In cross examination she said she was unsure whether her son left the room for a time to grab something or whether he took something from the doorway; she agreed Simon grabbed a skateboard. She agreed she had no idea of who was doing what at a particular point in time. She said she recalled some had bucket type hats on. She said the boys on bikes were standing with their feet to the sides of the bikes; she said there were two boys on their bikes who didn’t get off of their bikes who were more on the corner; she said those two boys were not involved in the kicking. She also agreed the cheering she heard could have been the victim’s friends urging them to stop.(t 187-188).
26. Spencer Smith gave evidence that he too was with the group of friends with Daniele. In terms of the group that perpetrated the assault he said he knew YN, RW, Gexie and Choonges. He identified RW in the body of the court; he indicated SG as Gexie in the body of the court and identified AT who was in the dock; he said at the time he knew a couple of them but “I know pretty much most of them.” He also identified WMM and DR. He said “Choongse” was the one who took up the altercation with Daniele after YN; he said he wasn’t sure but they were wrapping their shirts around their hands; he said he wasn’t sure if it was DR did but RW did it and Choongse; he saw RW, DR Choonges and Gexie surround Daniele; he said there were others there but he couldn’t see them in court; he said they were hitting him and then “William” came up and booted him when he was on the ground;. When they left they were saying “Caz Boys, Caz Boys”; he said he saw Gexie hitting him; RW, DR and Choonges hitting him; he agreed there were some boys who were present but did not do anything.
27. Spencer Smith said that at the police station all the witnesses and other police were in the room at the police station; he agreed he could hear what other people were telling the police; he said he did not include Gexie, Choonges, WMM and DR in his police statement because he didn’t know them at the time; he picked up their names over time; he agreed he discussed the incident with friends; he said he had no dealing with Gexie since the incident; none with Choonges; he had spoken to WMM but not DR; he said he wasn’t 100% sure that Choonges was in court; of the names he was given he had no dealings previously with those persons; he agreed he did not have anything in his statement about RW, DR, Gexie and Choonges hitting Daniele; he said the police didn’t ask him to give descriptions of any of the persons nor to look at photographs.
28. Spencer Smith agreed he had not seen Choongse prior to the incident; in relation to his evidence that WMM booted Daniele, he agreed in cross examination that he had not given WMM’s name to police; he said he was not sure whether he’d seen WMM before the incident; he said people who he would not name who were not resent at the fight gave him WMM’s name (t 247); he said he wasn’t sure if he’d seen WMM before the incident; he said he met WMM subsequent to the incident; he said he was 100% sure it was WMM; he agreed it was the first time he identified him by name in court; he agreed that in his statement he named RW but did not describe what he had done. He said that after Daniele was hit and went to the ground, he got up and “then he started to go a bit psyhco and started swinging a couple of punches – you know, didn’t hit anyone, I don’t think” (t 262); he said he wasn’t swinging at anyone in particular; he said he could remember RW hitting him; DR hitting him; Choonges hitting him and Gexie hitting him; he agreed he didn’t give a description of Gexie to police; it was suggested to him that at the time of the incident Gexie had bleached blonde hair; he said he couldn’t remember what his hair was like; he agreed he had left out a description in his statement of an incident when Matthew Murphy picked up a knife; when suggested to him that he was wrong on the involvement of SC, he said he could remember hitting him.
29. Jacob Solien- Senge
Jacob Solien- Senge went to the Alawa shops on the day in question to swap a wallet for a stick of gum with his friend (t 269); he went into the Alawa shops and when he came out he saw “everyone was fighting”. He told the court he saw RW, DR, SG, AT, JT and YN. He said there was another boy he knew as “Dickie”. He said he also saw some boys before he went into the shops – Daniele Borgese, Spencer, Matt Murphy, Matt Walsh; he said he had come with some friends to the shop – Kevin and Vincent. He said when he came out he saw JT, AT RW and DR hitting him; he said SC got “chased out” or “chased around” by Daniele; he said the other boys were egging him on; he said he didn’t know what they were doing to egg him on; he said Daniele was waving his arms everywhere telling them to get lost; he said Daniele was getting knocked around backwards and forwards; he said he has known most of the boys involved for nearly all of his life; he is related to DR and RW; he calls them cousins; he said he treats them as “close” cousins; the others he has played sport with; apart from the hitting he said he didn’t think he saw them do anything else to Daniele; he said he didn’t think SG hit Daniele; he said he didn’t think they did anything to Daniele when he was on the ground; he said RW was punching Daniele but he didn’t know how many times; in relation to JT (for whom a no prima facie case was found), he said he didn’t even see JT – he was on his bike; he said he wasn’t sure JT was at the Alawa shops at that time.
30. In relation to AT, Jacob Solien – Senge said he knew him for about four years, just hung around with him and played sport with him; he confirmed AT hit Daniele a couple of times. He said further in relation to Daniele chasing SG that Daniele had got up off of the ground and started chasing SG; he said Daniele did not grab hold of SG; he said he wasn’t sure if Daniele had hold of SG by the shirt; he said he didn’t know if the chasing of SG happened before the other boy moved into a circle; he said he did not remember two matters put to him, namely it was suggested Daniele pulled SG off of his bike and that he half pulled him down to the ground; I take these answers to be disagreeing with those propositions in the context in which they were put; he said he didn’t see AT grabbing SC when this was going on; he said he couldn’t remember what AT was wearing. He said he didn’t know the names of the boys “egging it on”.
31. Anthony Vincent gave evidence that he was at the Alawa shops buying drinks and hanging around with his friends; of the group that came on bikes he said he knew RW, DR, YN and Choonges (AT); he didn’t know the other members of the group; he had seen them before but not known them by name; he said YN and DR asked the boy that got bashed for a cigarette and walk away; he said they returned and YN and DR hit him; he said the victim fell on the ground and a few of the other boys jumped in and punched and kicked him; he said Choonges hit him in the back of the head; he said RW took off his shirt and wrapped it around his fist and hit him about 2-3 times; he said the group were swearing at Daniele; he agreed Daniele was kicked and punched while he was on the ground; he told the court he was related to RW and DR through his dad and he calls them cousins; he said he’s known RW all of his life and DR for 2-3 years; he identified DR and RW in the body of the court; he also identified AT in the dock.
32. Anthony Vincent agreed in cross examination that he was not paying particular attention to the fight; in relation to his identification of Choongse he said he was a friend who he had known for about one year; he agreed that in his police statement he had referred to Choongse as “Anthony something” but knew his surname by the time of giving evidence in court; he told the court he thinks someone told him “Choonges’” surname; he agreed he could not see everything going on in the “circle”; he said Choongse punched Daniele once in the back of the head; he also confirmed that Daniele hit one of the boys and the boy hit him back; he couldn’t remember who the boy was that hit him back; he didn’t see Choongse holding onto the boy that Daniele hit; he agreed he did not have the part about RW with a shirt around hid hand in his police statement; he said he only just remembered it; he said he wasn’t getting Choongse mixed up with anyone else; he said he was in a separate room when he gave his statement to police; he said he didn’t discuss the matter with friends after giving his statement.; he agreed he did not have the part about DR and YN in his police statement; he said he did not know about the friends going to the newspaper reporter and he hadn’t spoken to friends about the incident; he said he might have remembered the part about the cigarette because someone told him; he said someone may have told him about RW and the shirt around his hand but he remembered that himself; he said no-one else put shirts around their hand; he said he didn’t know any of the other boy’s names; he said he didn’t know who the boy was that Daniele hit and then the same boy hit Daniele back; he agreed that was not in his statement; he said that it was after that that Choongsie punched Daniel.
33. Dylan Taft was at the shops with Jaycob Solien-Senge and Anthony Vincent; he gave evidence about YN going up to the victim and saying something about looking strange and the victim saying “You’re a little smart-arse”; he then said DR went up to Daniele, that Daniele said something and Daniele walked away; he said one of the boys came up and whacked Daniele in the head and then DR came up and pushed him and whacked him; he said DR pushed him in the back and then RW hit him; that Daniele said “what the fuck” and the fight started; the rest of the boys surrounded Daniel; there was SC, DR AT; he said there were other boys he didn’t know the name of; he said SG was there but he didn’t surround Daniele; all the boys hit him; he said Daniele hit one of the boys but he didn’t remember who that was; he said one of the boys wrapped a towel around his hand; he said he saw the boys in the circle hit Daniele; the ones he didn’t know also hit Daniele; Daniele was on his hands and knees and some of the boys started to kick him; Daniele tried to defend himself.
34. In cross examination Dylan Taft did not agree with the proposition that some of the boys went into the shops; he said it was possible that more of the boys did not surround Daniele but he only saw SG as being one who did not positively surround Daniele; he said he knew AT from the Casuarina shops and that he has known him for about one year; he said he didn’t put AT in his statement; he hadn’t talked about it to the boys but he had talked to his mum and dad; he agreed he saw Daniele retaliate or react; he said he started running for that person and was swinging at him, like trying like – ducked his head and just swung at him; he said he was pretty sure Daniele hit the person; he thought when he saw Daniele hit the person or was fighting with him, that was when Anthony hit Daniele; he agreed that he knew SC; he agreed he told police SC was one of the persons who was there before the fight; he agreed he didn’t mention SC in his statement; he said he didn’t recall Daniele going back towards SC; he agreed SC could have been stranding straddling his bike; he agreed Daniele ran at the first person he saw after being hit; ; he agreed SC got off of his bike and pushed Daniele after that; he agreed he might have been mistaken about seeing SC in the group surrounding Daniele.
Records of Conversation by Defendants
35. Of the remaining four defendants, for reasons I gave on 16 August I did not admit the record of conversation taken with WMM; the prosecution did not proceed with the tender of a record of conversation with SC, however counsel for SC and Mr Robertson advised me that it was an admitted fact that SC was at the scene; before me by consent is a record of conversation with the defendant RW taken by investigating officers on 23 January 2005 in the presence of RW’s mother.
36. In that record of conversation RW stated to police that “there was a group of boys and we were just riding around and we stopped by Alawa Shops just to get a drink and me – me and my cousin David was in the shop and we went to get a drink and we come out and YN walked up to David and said: “The skater boys getting cheeky to me and swearing at me.” And I – I just said to YN “Forget about it, don’t worry about it” and David said: “Yeah”. And then we went to the fish and chip shop to sit down where the stairs are and YN kept on starting, like swearing at him. And then YN walked up to him and that boy pushed him and then YN pushed him back. And then David jumped on his bike and rode behind him and palmed him in the back of the head. And then AT walked up and that boy’s friend who was with him said: “Do you wanna’ fight one on one” and then AT is just standing there and he cracked that – that other boy…” He continued..”Yeah. He cracked him. And then David hit him and he fell on the ground. He got back up and he was rushing. And I wasn’t looking and when I turned around he was running like towards me and he’s – he took his first swing and I moved but he just hit me in the jaw so I hit him back and that’s when he dropped and then that’s when all them young boys just all jumped in and started kicking him. He mentions the other boys that were present including “Joel Gardiner”. RW told police that his own involvement was “I punched him because he punched me.” And, he told police: “I just stood back and watched.” RW says Daniele pushed YN first; he also said that Daniele started the swearing first; he said Daniele dropped when Choong hit him, then he got up, rushed for him and hit him (RW) and that’s when RW hit him and he dropped again; he said the “little boys” then started booting him; he said he punched him in the jaw; he denied various statements put to him by police indicating a alternative scenarios; he denied kicking him; he agreed the victim could not defend himself. In answer to the question from police “why do you think the victim hit you?”, RW answered “Because he was getting hit by everyone else”. In answer to the question “How do you think you think the victim was feeling at the time?, he said “Scared”. In answer to the question “How do you think you would have felt if you’d been in his situation?, he answered “scared”.
37. Other material and statements such as medical reports and non contentious material was received into evidence by consent.
38. I accept the evidence of Daniele Borgese in general terms of how the assault was instigated (through YN verbally abusing him), followed by further derogatory comments and pushing by another of the defendants, followed by being hit from behind by another perpetrator who was on a bike and then hit again by another one. I accept he then ended up on the ground, was punched and kicked repeatedly. I accept he was not the aggressor but was the victim of an assault by a group of about eight or more boys. In my view these facts are proven beyond reasonable doubt as are his injuries. I accept Daniel Borgese as an honest witness. Although there are some differences in interpretation of the event, there is significant consistency between Daniele Borgese’s testimony and that of the other prosecution witnesses, whether they were in Daniele’s group of friends or in the group comprising Jacob Solien- Senge, Anthony Vincent and Dylan Taft. I reject Anthony Vincent’s evidence about YN and DR asking for a cigarette. It was obviously his belief that that was what the conversation was about, but the evidence overwhelmingly supports the victim’s version of how the assault came about.
39. There is one matter however that I think the victim is mistaken about or does not remember, and that concerns whether he reacted at all to the assault. I accept his evidence that largely the victim made it clear that he did not want to fight or participate in fighting. It is natural to expect that someone in his situation might take some defensive action, although with so many against him it may be more in the nature of protective action rather than having any hope to defend oneself. The evidence from the other witnesses indicates that the victim did swing some punches and that the group position moved during the fight. The evidence also indicates, when looked at as a whole, that some of Daniele’s swings connected or appeared to connect. I consider Daniele was acting defensively. In my view his disorientation, injuries and the position he found himself in readily explain his lack of memory or insight into how he reacted to the assault, however, for various reasons when dealing with individual defendants, I will consider other possible scenarios.
40. A further matter that requires strict consideration is the question of admissablity of various identifications, alternatively the strength of the identifications made by Daniele and each of the witnesses and the need for warnings. Although I have broadly accepted the victim’s version of events, there is a very large question on whether there is sufficient evidence on the criminal standard to prove the participation of each defendant, either as part of a common purpose to assault or as aiding in an assault. This will require consideration of the evidence against each of the remaining defendants.
Discussion of Relevant Principles
41. In the main, counsel are agreed on the general principles, although the emphasis and application to this matter differs between the parties. In directing myself I record that I have considered the fundamental principles acknowledged by the Courts in relation to cases of disputed identification. The unreliability of identification evidence, particularly when the accused is previously unknown to the witness is well recognised and the unreliability may lead to exclusion of the identification, alternatively will require a warning both on the general unreliability and the specific matters in the particular case (for example, length of time of the observation, the stress of the situation for the witness, lighting, impairment, etc): Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555. In particular, Domican laid down the approach to be followed (at 561-562): Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury of the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of a particular case. A warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence.” Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has he authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
42. These and other cases of course emphasize that even where the witness is honest and the circumstances of observation and recognition are ideal, there can be no certainty about the identification, particularly where the person being observed is unknown to the witness. The factor most likely to mitigate the need for or the nature of the warning is the witnesses’ acquaintance with the accused before observation. Some courts imply the warning need only be cursory : (R v Goode  SASR 69; R v Easom (1981) 28 SASR 134 at 144), however, other cases indicate this is not a significant factor: (R v Turnball  QB 224). R v Carr (2000) 117 A Crim R 272 indicates the witness must be so familiar with the appearance of the accused and the circumstances of the identification must be so straightforward that there is little scope for any chance of mistake before there can be any mitigation of the need to warn. This is a significant factor in a number of the identifications in this case.
43. I am reminded of how strict the application of the principles must be in these circumstances given the decision of the Supreme Court in a recent appeal against a decision of mine in Hanning v Peach, JA 05 of 2005, 17 August 2005. When I compare what I thought were the significant factors in that case with the present, it becomes evident that for most of the identifications in this case, they will be doomed to fail. As I recall that matter when it was before me, and these may or may not have been accepted by the Supreme Court, the successful Appellant was a relatively regular customer of the identifying witness; there was evidence she presented herself to the witness at the scene after the alleged offence and had a conversation with the identifying witness to the effect of “please don’t dob me in”; the appellant acknowledged she knew the witness; I had thought the alleged offence was not one of those committed in a situation where the witness might have heightened stress, ( at least when compared to the circumstances of the case before me). As has occurred with some of the identifications in this case, the identifying witness in Hanning learnt the name of the appellant through another person. I understand there were other grounds favourable to the successful Appellant raised, however, in this matter I am currently hearing, my interest is with the approach to identification evidence, particularly where the identifying witness and the suspect are known to each other. Although when the Hanning matter was in the summary court before me counsel for the DPP argued various factors favouring the legitmacy of the identification, on the Appeal, the representative of the DPP conceded the conviction was unsafe ( the grounds including, as I understand it, my failure to appropriately warn in these circumstances – see para 12 of the Written Submissions of the Respondent; the identification of the appellant was characterised “circumstantial” – in part through the witness learning the name of the Appellant elsewhere - see para 11 of the Written Submissions of the Respondent). There could not be a more timely and binding precedent on me. His Honour with respect agreed Hanning v Peach was not a case where the circumstances were so straight forward that there was little scope for any chance of mistake in the sense of R v Carr: (Transcript, 17 August 2005, page 6). Each case is different, in my view though, by way of comparison, the circumstances of most of the identifications before me in this assault case are far weaker than the discredited identification ruling in Hanning v Peach. There will need to be full warnings for each of the identifications and each will need to be scrutinized fully.
Consideration of the Evidence and Identifications Against WMM
44. Counsel for the prosecution in this case started with the bold assertion that a version of Cross On Evidence suggests a dock identification is sound. “Couldn’t be a better identification”, I believe were his words. I would, with respect, be in complete error if I were to act on that in this case. The general thrust of Counsel for the prosecution’s submissions is that although there are dangers with dock identifications, such identifications can be accepted or accepted with appropriate warnings, particularly if there is corroboration. He reminds me that some of the witnesses knew WMM and he submits the witnesses involved in identifying WMM did not actually engage in a “dock” identification as most of the defendants, including WMM were in the body of the court with family members and others, thus, it was not the classic situation of the witness merely identifying the only person in the room who is obviously charged with the offence. The fact that some of the witnesses could identify the defendant but didn’t know his name and subsequently learnt his name did not, in counsel for the prosecution’s submission, mean that the substance of the identification was adversely affected. Counsel for the prosecution submitted that as some of the witnesses knew WMM, their identifications could be regarded as safe. The general matters raised by counsel for WMM categorise the various identifications as unsafe given there was no identification parade, no photo-board, the lack of description in the statements, the discussions between various of the witnesses with a reporter and at the police station leading to possible contamination, the fact that the only identification made by the various witnesses was in the court room with all its inherent problems.
45. There are some basic issues of unreliability concerning the identifications of WMM. Daniele Borgese did not identify WMM. In relation to the identification of WMM by Simon Howse, I warn myself it was an in court identification, in the body of the court where there are already problems concerning a witness’s expectation that the person to be identified will be present; it was not bolstered by an identifiation parade or a photo-board; the time between the incident (January 2005) and the first identification which was an in court identification was a number of months: (it is recognised in the cases and also in psychology that the length of the retention interval provides increased opportunities for interference with as well as decay of the memory trace of the offender: Brewer, “Eyewitness Identification”, in Psychology and the Law, at 191); in the context of a case involving multiple defendants alleged to have played diverse roles, there is a real danger that this type of in court identification could result in the witness making a relative choice as between persons present in court, rather than an absolute choice that the person is in fact the perpetrator. This is especially so when, unlike the line-up situation, the witness is not told that the person “may or may not be present.” There was no description given by him that was consistent with the appearance of WMM; he described a boy called “William” as a “half- caste” Aboriginal – I note that such a description does not readily fit with WMM who, although he may be of Aboriginal heritage, is light skinned; he learnt the name “William” from being in court; the incident he described WMM being involved in was not included in his staement to police; in any event, apart from the person who first hit Daniele, he couldn’t say “who did what”. This factor emphasises the identification problems. There is a further danger given the discussion between himself, other witnesses and a reporter that there is contamination, or that his conclusions have come about through a process of discussion with others. Part of his observation was away from the scene, upstairs looking through the window when he was scared and he was panicking at the time. I will need strong corroboration of this purported identification and the alleged role of WMM before I will act on it.
46. Matthew Murphy also made an in-court identification of WMM. It does not corroborate the identification of Simon Howse, in the first sense because he doesn’t describe WMM performing the acts that Simon Howse alleges. He describes WMM in a general way “a white kid with blonde hair”. This hardly corroborates Simon Howse as he has given a different description. He also apparently retracted his identification, suggesting it was RW who he had identified as “William”. He said he had known WMM from “riding around”; that WMM had stolen a phone from him; he agreed someone had pointed out WMM to him; he didn’t know his name at the time but would not tell the court who told him the name; he agreed there was only one alleged offender who he he knew 100% (not WMM); he agreed he couldn’t identify WMM at the time of the assault and much of his evidence about WMM is based on what other people told him. As I warn myself I am inclined to think this is not even a bare identification and I probably should have excluded it at the time it was introduced. It also suffers from contamination. The previous dealings and knowledge of WMM by this witness hardly can be said to save this identification in the sense required by Carr and Hanning, in fact rather than the circumstances being clear, they are completely unclear, with a huge chance for mistake.
47. Spencer Smith identified WMM in court. Such an identification is weak. It was not bolstered by line-up or photoboard. It suffers firstly as being an identification where he expected to see the alleged perpetrator; there is a danger of making a relative identification between members of the group rather than an absolute identification; he did not include WMM in his statement to police because he said he didn’t know him at the time; he was not sure whether he knew WMM before the incident; he would not tell the court who he got the name “William” from; he said he had met WMM after the incident. Even if there was some knowledge of WMM by this witness, given the circumstances of this case, including the speed of the incident, the number of alleged perpetrators, I would need some strong corroboration to rely on this identification. So far as I can determine, that corroboration is not forthcoming. In the sense of Carr and Hanning, there is a huge chance of error and in my view I should not rely on this identification. In my view there is some evidence of WMM’s presence at the scene but not his participation. I cannot exclude the possibility beyond reasonable doubt that WMM was there but not involved. I will dismiss the charge against WMM.
Consideration of the Evidence and Identifications against SC
48. There is an admitted fact in relation to SC, namely that he was present at the Alawa shops at the relevant time. However, the prosecution need to prove beyond reasonable doubt that he was part of the offending group and that by his acts or at least encouragment, he has participated or assisted or aided in the assault. Simon Howes identifed a number of the alleged perpetrators in court including SC. He included SC in the group that was hitting Daniele. His identification of SC as being present or in the vicinity is corroborated by SC’s admitted fact of presence, however, his evidence of what SC did or did not do requires closer scrutiny. Simon Howes said he was sure SC punched Daniele.There is a problem with his evidence in that he initially thought “Gexie” was RW and conceded that he then learnt “Gexie” was not RW’s nickname. “Gexie” is in fact SC’s nickname. In terms of assessing whether the alleged punch by SC is proven, there is a real problem that some of the actions attributable to RW have been transferred to SC. Simon Howes did agree that there was one member of the group who did not participate in the hitting. During his observations he left the group trying to get help, he agreed he was panicking. Because of the possible confusion between acts attributable to RW and SC, I will disregard Simon Howe’s evidence in as much as it pertains to SC.
49. Matthew Murphy referred to seeing “Gexie” but he did not identify him in court when he identified other alleged perpetrators. He told the court he obtained the name “Gexie” from a friend, but he didn’t know what he looks like. Clearly there have been discussions about “who is who” between some of the witnesses – that is not necessarily fatal, but here, it is very difficult to be satisfied that there is any independent recollection of “Gexie” and precisely what he did or didn’t do. I will disregard Matthew Murphy’s evidence as it pertains to Gexie, other than to note he was not identified.
50. I note there is also evidence from Ms Patricia Howse that not all of the boys were participating. She thought she saw three of them hitting and kicking him.Spencer Smith identified Gexie as part of the group surrounding Daniele and identified him as hitting Daniele. He agreed when he was in the police station he could hear what others were saying; he agreed he did not have Gexie (along with others) in his original statement – he said he didn’t know them at the time; he did not have anything in his police statement about Gexie hitting Daniele. That means his evidence is somewhat unreliable as it relates to SC. In some circumstances weak evidence by one witness may be strengthened by other evidence in the case but there is a real risk of reconstruction, (I am not suggesting it is deliberate), by these witnesses on this point due to their discussions and evident in the significant diversions from their police statements.
51. Jacob Solien-Senge identifies other perpetrators hitting Daniele but not SC. He says SC got “chased out” of the group or “chased around” by Daniele. It is unclear whether Daniele had hold of SC’s shirt. Dylan Taft gave evidence suggesting that SC was not in the group that originally surrounded Daniele, (or, he could be mistaken about that); he told police SC was one of the persons at the Alawa shops prior to the assault and possibly standing there straddling his bike; he said SC got off of his bike and pushed Daniele after Daniele ran at the first person he saw after being hit; he also agreed he didn’t mention SC in his statement. The evidence from Dylan Taft about a push by SC after the main incident is at odds with all other witnesses in the case. There is minor support for this scenario. He appeared to me to be a suggestive witness. Overall, when I review the evidence against SC it is so fraught with inconsistencies and instances of unreliability that although I can find SC was at the scene, and I have suspicions about his involvement, I cannot be satisfied beyond reasonable doubt that he aided or participated in the assault. Although the evidence in chief was enough to establish a prima facie case, each relevant witnesses testimony has been seriously undermined. I will dismiss the charge against SC. I cannot exclude beyond a reasonable doubt that he was present but not participating. I cannot exclude beyond a reasonable doubt that he was in a group not associated with the assault but that the incident moved towards him at the end.
Consideration of the Evidence and Identifications against AT
52. Daniele Borgese gave evidence identifying RW in the body of the court as the offender who who came up and said words to the effect of “are you dissing my cousin?”and then folded his arms and shoved them into his chest. As was noted above, he later purported to correct that and identified AT instead who was in the dock. It may be that Daniele Borgese didn’t see AT initially given the configuration of the court room, but this only illustrates how dangerous court room identification can be. AT was not known to Daniele Borgese. Daniel Borgese had given a description to police that when looked at relative to other defendants might be said to better fit AT, however, given this was a dock identification without being bolstered by an identification parade or photoboard, it is a very weak identification. Initially I considered that the relatively distinctive looks of AT may be a reason to allow evidence of his identification by Daniele and some others, however, in the safer contexts where line-ups etc are used, those matters of distinctiveness need to be moderated to take account of the change in witness decision criterion, but in this situation as between a number of defendants, such a process still calls for a relative choice being made between defendants – Daniele made two choices in the court – it would be unfair to act on the identification.(Brewer, “Eyewitness Identification, “Distinctiveness” at 185) I can hardly ignore the fact that he identified one person first and then AT. This was in circumstances where AT was unknown to him, where he might be expecting to see the perpetrator, when the incident itself was very stressful and frightening and where there were multiple perpetrators. Although as I have mentioned I broadly accept the evidence of Daniele Borgese, I am compelled to reject his identification of AT. That does not however preclude the prosecution from attempting to prove AT perpetrated or participated in the assault through other evidence.
53. Matthew Murphy gave some evidence about “Choongse” (AT) and his statement “Oi, that’s my cousin” at the start of the incident; he was initially unable to identify AT in court; he told the court a friend had told him the name “Choongse”; he said someone had pointed out Choongse to him and told him on the day he gave evidence that his name was AT. It is not clear to me that Matthew Murphy implicated AT in terms of his participation. There seemed to be some confusion about whether some of the punches were from AT or RW. Matthew Murphy’s evidence does not implicate AT to the criminal standard.
54. Spencer Smith identified AT saying that he knew “most of them” (meaning the group); he identified AT as taking up the altercation after YN; he said AT was one who wrapped the shirt around his hand; AT was in the group surrounding Daniele; he places AT hitting Daniele. This was a pure dock identification; aside from an assertion that he “knew” AT there is very flimsy material about how well and on what basis Spencer Smith might have known AT; the identification was not bolstered by an identification parade or a photoboard; he even said he was not 100% sure that “Choongse” was present in court; he had nothing in his statement about Choongse hitting Daniele; he wasn’t asked by police to give descriptions. This is really very unsatisfactory.Once again, the event happened in a short time frame, there were many perpetrators of similar appearance and the risk of mistake is high as to who was participating. In terms of the authorities I have mentioned, I am of the view that a warning is not enough. Although it would have been better to reject this identification during the course of the hearing, I will now formally reject the identification of AT by this witness.
55. It will be recalled that Jacob Solien-Senge was not present for the full incident but he clearly states that when he came out of the shops he saw (with others) AT hitting Daniele; he has known AT for four years, hanging around with him and playing sport; he couldn’t remember what AT was wearing. He is unclear about whether AT went to the aid of another boy who may have been pulled off of his bike during the incident by the victim. I warn myself this is a weak identification, notwithstanding this witness knew AT. I warn myself it is still a dock identification, unsupported by either a line-up or photo-board. I warn myself it suffers from a weakness in these circumstances: there are multiple perpetrators; there are similarities in the appearance as between the perpetrators, although this defendant does have some distinguishing attributes; not enough however to make it a strong identification. In all the circumstances the fact that this witness knew AT does not mean the circumstances of the identification are straightforward; there is still a risk of mistake as to his level of participation when the perpetrators are in a small group. I warn myself that there are dangers in acting on this identification without corroboration.
56. Anthony Vincent identified AT (along with others). He said he knew AT. His evidence was that AT hit Daniele on the back of the head; he said AT was a friend who he had known for about one year; he had learnt AT’s sur name before coming to court; he believes he was told his last name; he agreed he could not see everything going on in the circle; he was in a separate room when he gave his statement to police; his evidence was that he did not discuss the evidence with friends; he did not know about his friends going to the newspaper. This identification also suffers from some weaknesses identified in the other identifications, namely it is a dock identification unsupported by an identification parade; it is a quick incident with multiple offenders; there are similarities in the appearances of the offenders. The other problem with this identification is that Anthony Vincent gives a completely different description about how the incident started – it is quite at odds with other witnesses thus casting doubt on the reliability of the identification; he also agreed he was not paying particular attention to the fight, thus casting some doubt over the identification of what precisely AT was doing.
57. Dylan Taft said he knew AT from Casuarina shops and had known him for about one year; he didn’t mention AT in his statement to police; his evidence is quite unclear about what he actually saw AT do apart from being in the group. He gave some evidence that he thought AT hit the victim after the victim hit someone he was swinging at. At the end of considering the evidence against AT the weaker identifications can really only corroborate each other as far as making a finding that AT was present; it does not allow me to make a finding beyond reasonable doubt that AT was actually one of the perpetrators as the identifications are not strong enough to exclude beyond reasonable doubt the possibility of mistake as to what he did. Each witness says something different about that. Even considering the common purpose basis for liability, I cannot find beyond reasonable doubt that AT was one who encouraged or otherwise aided the rest of the group or that it showed evidence of pre-concert. Although there was some evidence generally in the case concerning cheers and the like, that evidence was then qualified and the witness (Ms Howse) conceded it may have been sounds of some of the boys yelling “stop”.
Consideration of the Evidence and Identifications Against RW
58. The flip-side of the problem of the mistaken identification by Daniele Borgese concerning AT is that he initially identified RW as being the perpetrator who instigated the assault. This was an in court identification that was in error. I must exclude evidence from the victim that identifies RW as the risks are too high that the identification attributes certain acts to him that may well be attributable to others. I confirm however that I largely accept the victim’s evidence and this ruling does not preclude the prosecution from relying on other evidence.
59. Simon Howse said he knew RW; from upstairs he saw RW wrap a shirt around his hand and punch the victim towards the head and shoulders area; he identified RW in the body of the court; he said his recognition of some boys was stronger than others; he reiterated that he knew RW and YN although his knowledge of RW seems to mainly be focussed on an incident with him at Casuarina shops and security guards told him who he was; he had spoken to him previously. Once again, there are weaknesses with this identification. I warn myself it is a court room or dock identification. It is weak because it is unsupported by an identification parade or a photo-board. The defendant is known to the identifying witness, however, I warn myself that in the circumstances of this case there are dangers in that the defendants resemble each other in appearance; the incident was a quick incident; this witness viewed much of the incident from upstairs; he was panicking;he agreed that after the incident he spoke to a reporter at his house; I note that some of this witnesses friends were in the same room or a least could hear each other when they gave statements. I have mentioned already the risk of contamination. He also made a concession in cross examination that it may not have been RW that he saw doing the hitting.That does tend to undermine his identification in terms of what he saw RW doing. There is also confusion in this witnesses mind between RW and Gexy. For some period he had the two persons confused. I really cannot, in those circumstances, act on this identification in terms of the defendant’s role. Aside from being prepared to find RW was present on the basis of this evidence, (this is particularly so when this witnesses evidence is seen along-side the record of conversation), I am not going to rely on this witnesses evidence in terms of proof of RW’s role.
60. Matthew Murphy identified RW who he said he knew; he said RW was hitting the victim; he said he knew RW; he also put RW as part of the group “swarming”.He attributed significant assaults to a person called “William” in his evidence in chief but in cross examination says it was RW who he identified as William. This really does undermine this identification and I exclude it. There are simply too many risks that this witness has “William” and RW confused.
61. Spencer Smith identified RW in the body of the court. This is a weak identification unsupported by an identification parade or photo-board; the whole procedure of picking out potenital defendants from the group in court without material to bolster those identifications is unsatisfactory; the witness is expecting to see the alleged perpetrators; there is also the problem of the witness assessing the identity in relative terms; he said he “knew pretty much most of them” which I presume included this defendant – there is very little material to substantiate his familiarity with RW – not much at all can be drawn from that; he said RW and possibly two others wrapped a towel around their hands; he said RW was in the group (with others) hitting the victim; this witness was with the group at the police station; he discussed the incidents with his friends; he agreed he said nothing in his statement to police about DR hitting the victim; he gave no description to police; he named RW in his statement but nothing about what RW had done. There is also the problem of the incident being quick with multiple defendants of similar appearance. These are all weaknesses in the identification evidence. I warn myself it is unsafe to act on such an indentification unless corroborated.
62. Jacob Solien-Senge told the court he saw DR when “everyone was fighting”. He saw RW and others hitting Daniele; he is related to RW and DR; he calls them cousins and they are “close”; he said RW was punching Daniel but he didn’t know how many times. Anthony Vincent gave evidence that RW took his shirt off and wrapped it around his fist and hit the victim 2-3 times; he also is related to RW and DR and calls them cousins; he has known RW all of his life. In relation to these identifications, I remind myself that even honest witnesses can be mistaken as to identification; these witnesses did not see the commencement of the incident; the incident was quick and there were a number of perpetrators of similar appearance; the fact that these witnesses are related to RW and know him well does not remove the obligation on me to warn myself that even in these circumstances, particularly here because of the multiple offenders there are risks with acting on an uncorroborated identification. There is also the stress and shock involved in witnessesing such an event. I warn myself of those dangers. I note also Anthony Vincent said he was not paying particular attention to the fight. I note he agreed he did not have that part of the testimony he gave about RW and the shirt around his hand in his police statement; I note he says he may have talked to someone about that; I note these witnesses were not involved in speaking together with other witnesses to the reporter. I note Anthony Vincent did not give a credible account of the commencement of the assault and that tended to undermine his evidence, however I do think that many of the dangers associated with identification of other perpetrators are not present in relation to his identification of RW. Having warned myself about the dangers, I do think the evidence of these two witnesses (Jacob Solien-Senge and Anthony Vincent) had strong qualities such as clarity and lack of risk of contamination that have been issues in relation to other witnesses. There is clarity in relation to RW (who they both knew well and are related to him) in terms of him wrapping the shirt or towel around his hand and hitting with that. I have come to the conclusion there is no chance of there being a mis-identification of RW from these two witnesses. Their evidence is clear. They know him, they observed him hitting Daniele a number of times. I agree no witness had a full view of the circile and what went on in it and I warn myself of that problem. Having warned myself of the risks, in my view it is safe to act on the evidence of Jacob Solien-Senge and Anthony Vincent. They are clear on what they observed RW do.
63. I note also that Dylan Taft gives evidence that RW hit the victim after DR; he said Daniele hit one of the boys but he didn’t remember who that was; he said one of the boys had a towel wrapped around his hand; he said Daniele retaliated or reacted and started running and swinging at a person; he was pretty sure Daniele hit the person or was fighting with him.
64. I note also the Record of Conversion of RW that I have summarised above. In my view it lacks credibility on some fairly major points; he says Daniele pushed YN first; that Daniele started swearing. In my view that is an attempt to distort the position of who started the fight. The evidence in this case may be topsy turvy and inconsistent on a lot of points, but not on how the assault came about in the intial stages. RW is essentially providing a scenario consistent with either self defence or provocation by suggesting that after Choonges hit him, the victim got up, rushed him (RW) and hit him (RW) and that is when RW retaliated.In my view the evidence is overwhelmingly against that scenario. There is evidence that at some Point Daniele swung some punches, but not at the beginning of the incident. The prosecution must negative both the defence of self defence and the excuse of provocation beyond reasonable doubt. I know his counsel did not argue self defence but it may be raised on the evidence in RW’s record of conversation and in those circumstances I will deal with it. The relevant part of the Criminal Code is as follows:
65. 29. Defensive conduct justified
(1) Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event.
(2) A person engages in defensive conduct only if –
(a) the person believes that the conduct is necessary –
(i) to defend himself or herself or another person;
(5) A person does not engage in defensive conduct if –
(a) he or she is responding to the lawful conduct of another person; and
(b) he or she knows that the other person's conduct is lawful.
(6) Nothing in subsection (5) is to be taken to prevent a person from engaging in defensive conduct in circumstances where the other person's conduct is lawful merely because he or she would be excused from criminal responsibility for that conduct.
(7) Sections 31 and 32 do not apply in relation to defensive conduct.
66. In my view while some of the evidence supports a version of the events of Daniele protecting himself by swinging some punches, or pushing someone away, or he may have grabbed a person, or he may have tried to pull a person off of a bike, there is nothing in the evidential material consistent with a subjective belief that it was necessary for RW to defend himself by hitting Daniele at that time. I reject RW’s version of events. I note Anthony Vincent (who knows RW well) says he didn’t know who the boy was that Daniele hit and then the boy hit back. In my view RW had participated in the assault well prior to the victim coming in swinging at him,(if that occurred), or even, to give him the benefit of the doubt, a punch from the victim connected. Even if in these circumstances that is what happenned, all RW had to do was to get out of the way. If this punch from Daniele did occur, it happened after he was being beaten up by the boys including RW. Daniele was by himself after having been hit by a member or members of the group from the perpetrators – even at an early stage of the assault it was clear to see he was by himself against a number of offenders. I note RW acknowledges his belief that the victim hit him “because he was being hit by everyone else”; he acknowledges the victim would have been “scared” and that he would have been scared if he was in the position of the victim. In my view the prosecution can readily negative the justification of self defence as in these circumstances RW could not have believed he needed to defend himself.
67. In my view provocation is negatived beyond reasonable doubt also. "provocation" means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person, to deprive him of the power of self-control;
68. 34. Provocation, &c.
(1) A person is excused from criminal responsibility for an act or its event if the act was committed because of provocation upon the person or the property of the person who gave him that provocation provided –
(a) he had not incited the provocation;
(b) he was deprived by the provocation of the power of self-control;
(c) he acted on the sudden and before there was time for his passion to cool;
(d) an ordinary person similarly circumstanced would have acted in the same or a similar way;
(e) the act was not intended and was not such as was likely to cause death or grievous harm; and
(f) the act did not cause death or grievous harm.
69. Firstly, there must be evidence of a “wrongful act” in the sense of the definition of the Criminal Code. In circumstances where the victim was clearly defending himself against a group attack, I find it difficult to think the prosecution cannot negative that matter at the outset, however I will give the benefit of the doubt to the defendant. In my view RW cannot rely on provocation because the prosecution are able to show beyond reasonable doubt that RW incited the provocation. He was with the group of boys who were the aggressors. Daniele was already being beaten up when he threw some punches (although it is not entirely clear to who). If I am wrong on that, in my view an ordinary person similarly circumstanced bearing in mind a 14 year old male would not have reacted to a punch in these circumstances unless he was already intent on participating in the assault. The ordinary 14 year old who had an appreciation of the fact the victim was scared (as RW did) and was being beaten up would not have felt provoked to the point that he would punch back in response the victim throwing punches or even connecting one.
70. Relying primarily on the evidence of Jacob Solien-Senge and Anthony Vincent, I find the assault proven against RW. There is much evidence I have rejected in relation to RW from other witnesses. For sentencing purposes, consistent with the evidence I have accepted, I find he was part of the offending group, that after the initial punches from other persons, RW hit the victim with his shirt around hand 2-3 times. That is the only fact that in my view has been proven beyond reasonable doubt in relation to RW. I am prepared to accept for sentencing purposes on the balance of probabilities that one of those hits was after he was hit by Daniele, but I confirm, I do not regard it as self defence or provocation.
Dated this 5 day of September 2005.