R v Britten [2011] ACTSC 49

4. The accused upon commencement of the hearing on 30 August 2010 confirmed a plea of not guilty.

5. The procedure for trial is governed by s 68C of the Supreme Court Act 1933 (ACT):

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

6. I must remind myself of the principles governing a criminal trial.

7. First, the Crown assumes the heavy burden of proving each element of the alleged offence to the criminal standard, that is, beyond reasonable doubt.

8. Second, the accused, whether he offers an answer to the accusation or not, bears no onus of proof, disproof or persuasion. That remains so throughout the trial.

9. Third, the accused is entitled to the presumption of innocence. That is not only a general entitlement but also applies to any invitation to draw an adverse inference from the evidence. An adverse inference is only permissible if no other reasonable alternative inference is available or if any favourable inference is excluded by other evidence which itself is accepted.

10. I emphasise that the process of drawing inferences is one which depends on the assessment of all the evidence not merely a portion of it.

11. The offence charged is defined by s 20 of the Crimes Act 1900 (ACT) (the Crimes Act):

(1) A person who recklessly inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

12. Under s 49, the alternative offences under s 23 (recklessly inflict actual bodily harm and s 25 (causing grievous bodily harm by any unlawful act or omission) are alternative offences to that charged. The penalties are five years and two years of imprisonment respectively.

13. The nature of "grievous bodily harm" is that it should, in fact, amount to "really serious bodily injury". "Bodily injury" means something more than the experience of pain. There must be something in the nature of damage to the structure of the body (see Brown v Blake [2000] WASCA 132 (11 May 2000) [5] - [6]). That suffices for "actual bodily harm" even if the damage is not "really serious".

14. The degree of foresight of injury was considered in R v Stuart [2005] QCA 138

(3 May 2005). Effectively, it is sufficient if the accused did intend serious injury or foresaw it as a possible outcome or that a reasonable person in the position of the accused would have foreseen the outcome as reasonably possible. That was a decision in relation to the Criminal Code 1899 (Qld) but it is consistent with the common law, that is, if the injury entailed a "strong chance" or "probability" of danger to life.

15. The other element is that, with whatever foresight of harm may be required, the act causing harm must have been a voluntary act or omission of the accused.

16. The concept of foresight is also engaged by the element of "reckless". I note that in DPP v Walker [2011] ACTCA 1 (3 February 2011), the Court of Appeal decided that, if an offence is expressed in terms of intent or recklessness with respect to a consequence, then the Crown need not elect between them. That no doubt will create sentencing difficulties unless the jury indicates the level of foresight it agrees upon. If it disagrees, the trial judge would need to make an election in sentencing between those two different factual circumstances.

17. The foresight of consequences for recklessness at common law was adverted to by the High Court in R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, 469:

If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm.

18. The definition of recklessness in the Criminal Code 2002 (Cth) (the Criminal Code) is not yet applicable to the provisions of the Crimes Act but there is little practical difference in the two formulations as to recklessness.

19. Besanko J adverted to this in Sims v Drewson [2008] ACTSC 91 (25 September 2008) approving a statement that, at least where consent is an issue, a failure to advert at all to that issue constitutes recklessness. It may be, though it is unnecessary so to decide in this case, that it does not embrace what has been referred to as "non-advertent recklessness".

20. In this case, there was no doubt that the victim, Ms McClenahan, suffered an injury. The severity of that injury is a matter for objective judgment. Whatever level of severity it attracts, the question at the forefront of the prosecution case is whether the accused inflicted it and, if so, with what level of awareness of the consequences.

21. The first witness was Ms McClenahan. She was working at HMAS Harman as at

2 March 2008 as a bartender. She had been so employed then for 18 months and resided at a townhouse unit at Malahide Gardens in Wanniassa. She ceased living there from 3 March 2008 as a result of her injury. The front door of the unit required a key to open it. There was a carport shared with the next door unit.

22. On 1 March 2008 the accused came to stay with her. She had met him at HMAS Harman in 2007. He was a customer at the mess. They commenced a friendship. That led to sexual relations on one occasion. The accused was then living at Banks. Early in 2008 she assisted the accused to pack up. He was moving to Batemans Bay where his parents resided. There had been some kind of disagreement between them but it was both minor, and non-violent.

23. About a month before 2 March 2008, the accused called on her to say "Hi", as he put it. He said he was planning to join the RAAF, or something of that nature, and they exchanged telephone numbers.

24. Towards the end of February 2008, pursuant to an arrangement between them, the accused came to stay with Ms McClenahan for the weekend. She gave him a key. He arrived on Friday in the afternoon. She left the door unlocked for him on this occasion. He met her in her bedroom and was then given a key. She had an ex-boyfriend who had also been given a key. The latter had ceased to live with her two years before and told her he had lost that key. That relationship had not ended well and had been attended by some violence.

25. On Saturday 1 March 2008, Ms McClenahan went to work at HMAS Harman. Her shift commenced at 11.00 am. The accused had stayed at the unit but had left before she got up to go to work. She finished work about 11.30 pm. She parked her car beside the carport because the accused's vehicle was in the carport.

26. She entered the house, using her key. It is a little unclear as to whether she locked the door behind her but she did say that the deadbolt was automatically engaged when the door was closed.

27. The accused was asleep on the lounge. He woke with Ms McClenahan going into the kitchen. They had a conversation. He suggested sleeping downstairs as it was warm upstairs. She declined that suggestion. She went upstairs, had a shower and went to go to bed. The accused had, in fact, gone upstairs to his bedroom. Before going to bed, she had a brief conversation with the accused before going to her bed. She took some medication, Mersyndol Forte and went to sleep. She did wake up twice during the night. The first time was to go to the toilet. The second time was when she felt a sharp pain in her right ear. She felt liquid in her ear and called out to the accused. She went to the bathroom. She could see blood coming from her ear when she looked in the mirror. The accused came to the bathroom in answer to her call. She asked him to take her to the hospital. The accused got a towel, wet it and applied it to her neck to help staunch the bleeding. She was feeling very groggy. The accused also cleaned up blood that was on the door or wall of the bathroom.

28. Ms McClenahan went downstairs, got her Medicare card and met the accused at the front door. He was coming down the stairs. She opened the front door. He followed her out. She thought he latched the door behind him which would lock it. That, however, was not an assertion she made with any certainty.

29. They "eventually" arrived at the hospital. She described the route the accused took to the Canberra Hospital. He did not go directly to the Emergency entrance. That, she stated, was because the accused turned left on the approach to the Emergency Department and then, having turned around, turned right instead of left. He stopped at the lights, presumably at Yamba Drive. She got out there and walked to the Emergency Department. It added, perhaps, 100 metres to her walk to the Emergency Department. She was an in-patient for four to five days thereafter. The accused did not visit her.

30. The injury to her head required extensive stitches.

31. In cross-examination, she acknowledged that her former boyfriend had been violent towards her. There had, she agreed, never been any indication of violence or hostility towards her from the accused. The only argument they ever had was a minor one when he moved down the coast as to where he would stay that night.

32. It is quite clear that there was no evidence, save opportunity, to establish or even suggest that it was the accused who injured Ms McClenahan.

33. Forensic evidence was provided by Professor James Robertson. There was damage to a pillow taken from Ms McClenahan's bedroom. It had been cut by a sharp object. There was also a cut in the doona cover. It was made by a sharp object heavier than a knife in his opinion. There was no challenge to that opinion.

34. This evidence clearly raised the spectre of a blow being struck on the bed by a sharp heavy object which could also have struck Ms McClenahan on the side of the head. Of course, it was possible that two blows were struck, one hitting Ms McClenahan.

35. Constable Alexander Jamieson attended the address at Malahide Gardens about

7.20 am on 2 March 2008 to investigate the apparent assault. There were no vehicles at the given address. He said initially that he found both the screen door and the front door to be locked but conceded he was not sure that both were secured when pressed on the point. In the rear of the premises he noticed the rear screen door was ajar. The main door at the rear was closed but he did not enter the rear yard to see if it was locked.

36. About 10.40 am, as a result of information received, he went to an area behind the units on Sternberg Crescent and found the red Holden Barina belonging to

Ms McClenahan. The doors of it were closed though unlocked. The bonnet was still warm and the keys were in the ignition. He remained with the car until relieved by other police.

37. He had not noticed that vehicle when he had passed along Sternberg Crescent about 7.50 am that day. It seems unlikely that it was there at that time.

38. Constable Sally Nayda attended at Ms McClenahan's unit about 9.15 am. A locksmith was requested to attend and did so about 10.55 am. Police then entered to inspect the premises. About 9.45 pm Constable Nayda attended Canberra Hospital and spoke to Ms McClenahan.

39. The locksmith, Mr Cranage, deposed that he gained entry by unlocking the front timber door. He rekeyed that door and the rear screen door. The date he gave in his statement was 3 March 2008 but it seems that should have been 2 March 2008 as that was the date he attended at the unit, not 3 March 2008.

40. The accused was questioned by Constables McEwan and Gough at Eden, New South Wales, on 23 April 2008.

41. He denied having anything to do with hurting Ms McClenahan but agreed with her evidence as to the events proceeding and following the injury she suffered.

42. His account of dropping her off at the emergency department was:

A92 I dropped her off at the emergency.

Q93 Yes. Whereabouts at emergency?

A93 Um, just basically at the front door.

Q94 All right, okay. What did you do then?

A94 I, um, went to park the car ---

A95 --- and I decided to go home and - go back to her place, I should say, and um get some stuff first.

Q96 Yes. What stuff did you collect at the unit?

A96 Um, I was collecting some of her pyjamas and stuff like that.

A97 Um, but then I sort of seen the blood and that in her room and on her bed so I stayed away.

43. He agreed that that might be thought a strange reaction though it is significant that there was no apparent interference with the crime scene which could support an adverse inference. Indeed, Ms McClenahan deposed that she asked him to go home and get her mobile phone.

44. The accused left the car, he said, on the "median strip" outside the unit.

45. He had to use the keys to enter the unit, but thought he had left them on the computer desk. He had sent a text message to Ms McClenahan, the following Tuesday, but got no reply.

46. He could not explain how the vehicle came to be at the verge of Sternberg Crescent, over the rear of the units, not the front where he said he left it, nor why he was shown on CCTV dropping Mc McClenahan at the traffic lights some hundred metres from the entrance to the Emergency Department.

47. There were two cups used by the accused found in the sink. The accused denied any other person had been brought by him back to the unit.

48. There were possessions of Ms McClenahan in her car which, apparently, were missing. The accused could not explain that but did assert that he left the vehicle unlocked. Indeed, it was unlocked when found, though the keys were in it.

49. There was no record found of any phone call or text message from the accused's phone to Ms McClenahan's phone on the Tuesday following the incident. However, it does appear that her mobile phone was missing. It is not revealed whether it was found or replaced with the same number.

50. The accused could offer no suggestion as to how Ms McClenahan may have sustained her injury. He had no police record.

51. On 30 April 2008, the accused rang Constable McEwan requesting a further interview to "tell the truth about stuff". On 8 May 2008 he rang again to advise that, on legal advice, he would not provide a further interview.

52. This, of course, is the accused's right and no adverse inference can be drawn from it. However, he did concede that some of his replies to previous questions had been "fibs". That emerged later to be the presence of Ms Simone Arnold on 1 March 2008 and his interaction with her.

53. On 12 May 2008, the accused was arrested at Eden, NSW, and returned to the ACT. He was further interviewed on 13 May 2008.

54. He disclosed that on the Saturday morning of 1 March 2008, he had met with a woman called Simone Arnold. He went shopping with her and then received a call from his ex-partner, Vanessa Haigh. She wanted him to return to the coast. He and Ms Arnold argued about that. However, instead of returning straight away to the coast he stayed at Ms McClenahan's unit as he had previously arranged to do.

55. He agreed that he had dropped Ms McClenahan, after she had asked to go to the hospital, at the traffic lights, refusing to go further. He said:

I then returned back to her place, saw what had happened, panicked, grabbed my stuff and fled back down to the coast where I went straight to Vanessa's place.

56. Ms Haigh had wanted him to return urgently to discuss their son Lex. She knew nothing of his meeting Ms Arnold nor that he had been staying with Ms McClenahan.

57. Otherwise, he reiterated, he knew nothing of Ms McClenahan's injury or the whereabouts of any property taken from her car.

58. He admitted that he asked Ms Arnold to say, falsely, that she had not been with him on 1 March 2008. He explained that he did not want to involve her in the matter.

59. I have to agree that, though dishonest, that lie does not bespeak or support an inference of guilt. Nor do the other lies the accused admitted telling.

60. Intercepted phone calls from the accused to Ms Haigh elicited nothing by way of admissions or consciousness of guilt. There were two later intercepts referring to the incident but, again, eliciting nothing.

61. It was revealed that Ms McClenahan had been issued with five house keys. She returned only three including the one that she had loaned to the accused.

62. There had been five incidents previously reported to police involving the premises between 3 December 2004 and 21 December 2007.

63. The first involved Ms McClenahan coming home and finding an intruder in her lounge room. He was intoxicated but not threatening.

64. The second involved Ms McClenahan's then partner who was on her premises intoxicated. It is not revealed how he gained access to the premises.

65. The third involved damage to her premises arising out of a neighbourhood dispute.

66. The fourth incident did not directly involve Ms McClenahan.

67. The fifth incident involved Ms McClenahan's vehicle being vandalised and wheels stolen.

68. None of these incidents really assists to confirm or deny the likelihood of a third party intruder entering the premises and perpetrating the attack on Ms McClenahan.

69. Phone records indicated that, on 2 March 2008 at 12.08 pm, the accused's mobile phone was in the Merimbula area, about 227 kilometres from Wanniassa. It was used to phone the accused's mother. It seems more than likely that it was the accused who was then using that phone.

70. Telephone intercepts of conversations between the accused and Simone Arnold support the view that she did not want to be involved in the matter. They do not provide any support for an inference of guilt against the accused arising out of those communications.

71. A curious feature, though not adverse to the accused, was that he referred to the injury as a "stabbing". That is not the nature of the presumed attack.

72. On that issue medical evidence was called from Professor Graham Buirski. He examined the wound to Ms McClenahan. He opined it resulted from a blow with a heavy sharp object. That is, an object like a cleaver rather than a knife.

73. The crime scene examination revealed no signs of forced entry. There was no evidence to identify any person who entered Ms McClenahan's bedroom or the weapon that apparently caused her injury.

74. Nothing else of significance was revealed at the crime scene or on examination of the victim.

75. Ms Simone Arnold deposed that she met the accused online in August or September 2007. She had met him face to face only twice. The first occasion was in late December 2007, the second, on 1 March 2008. On the latter occasion they met at Kambah Pool. They proceeded to Ms McClenahan's residence in the accused's vehicle. The accused entered using a key. They went into the lounge room, watched a movie and had sex. They then left, returning to Ms Arnold's car at Tuggeranong. At that location the accused received at least one phone call from his ex-partner. He told Ms Arnold he had to return to Eden urgently. It was also made clear to her that their relationship would not continue.

76. She later got an SMS message from him saying that he was in Eden though it appears he was then at Ms McClenahan's home, where he stayed the night.

77. On 23 April 2008, she received a message from the accused asking her to deny, if asked, that she had seen the accused on Saturday, that is, 1 March 2008, "cause I'm a suspect for a stabbing".

78. It was followed by phone calls to the same effect, first from him at 1.52 pm and then from her to him at 6.13 pm. He spoke to her again on 24 April 2008, calling

79. Those calls do not support any inference as to guilt. Ms Arnold could not have shed any light on the attack on Ms McClenahan. It is not incredible that the accused wished, as he said, to avoid involving her and it is also clear that she did not wish to be involved.

80. It is also clear that the accused had not told Vanessa Haigh of his liaison with

Ms Arnold. His concealment of that fact does not support any inference that he attacked Ms McClenahan.

81. Mr Archer then submitted, the Crown case then closing, that though there was ample evidence of opportunity, there was no evidence of any motive for the accused to attack Ms McClenahan. Indeed, the evidence was that he bore no ill-will towards her, and had consistently protested his innocence. There was also evidence suggesting that when Ms McClenahan's car was found, the accused was so soon thereafter in Merimbula as to raise doubt as to whether he was the person who left it where it was found. There was no apparent reason for him to have taken the items in it or for any person who had merely stolen items from the car to move it. To move it they would have had to have access to the keys to it. That would involve accessing the unit if, as he said, the accused left the keys in the unit.

82. In response, Mr Doig pointed to the various lies the accused had told. He had to concede that, though they reflected badly on the credit of the accused, they did not bespeak a consciousness of guilt with respect to the attack on Ms McClenahan. There was a conflict of evidence as to the immediate actions of Ms McClenahan following her awareness of her injury. The accused said she came to his room to call out to him. She said she called out from her bedroom and went to the bathroom.

83. That could be a confusion in recollection but, again, as Mr Doig properly conceded, it could not be construed as bespeaking a consciousness of guilt. Even the untruths as to where the accused dropped Ms McClenahan at the Hospital campus, though unsatisfactorily explained, do not offer any rational support for the hypothesis that the accused was the perpetrator of her injury.

84. Further, as Mr Doig agreed, the accused had no history of violence towards anyone, let alone Mc McClenahan.

85. It is necessary to address the issue raised by Mr Archer. I agree with Mr Doig that it would be open to a jury to convict the accused. There is no evidence of an intruder perpetrating the attack and then fleeing. On the other hand, the accused had no reason to attack Ms McClenahan. There were only amicable exchanges between them. Then there is the disposition of the victim's vehicle and the theft of items from it. The timing of that suggests a third person involved. That third person must, on the accused's account of it, have entered the premises and taken the keys, leaving them in the vehicle. It is, of course, possible he left the keys in the car and a thief decided to move the vehicle and steal from it.

86. That evidence is, accordingly, not sufficiently compelling to contradict the Crown case but, along with the steadfast denial expressed by the accused, even his apparent misdescription of the wound to the head of the victim, I am left with a reasonable doubt as to the guilt of the accused. It is open to me, if of that mind, as the tribunal of fact, not to require the accused to elect whether to go into evidence but to enter a verdict of not guilty accordingly.

87. In the unusual circumstances of this case that is the appropriate course and I enter a verdict of not guilty accordingly.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Date of hearing: 30 and 31 August 2010 and 1 September 2010