R v Gobin [2012] ACTSC 57

4. The incident which led to the trial occurred, if it occurred at all, at about 12.45 am on 22 December 2010. I say "if it occurred at all" because, as it transpired, the issue in the trial is, in layman's terms, "Did the accused do what the complainant alleges he did" or, in lawyer's terms, "Does the evidence satisfy me as the tribunal of fact beyond reasonable doubt that the accused pointed a weapon at the complainant and threatened to kill him".

5. What happened between the complainant and the accused on 22 December 2010 is this:

6. The complainant, Mrs Gobin and the accused live together in a home at 32 Woollum Crescent, in Rivett, in the ACT. The complainant and Mrs Gobin occupy the home's master bedroom and the accused occupied the home's enclosed verandah at the front of the home.

7. On the night of 21 December 2010 the complainant, Mrs Gobin and the accused were at the home together.

8. At some time before 11.30 pm Mrs Gobin retired to bed.

9. At about 11.30 pm the complainant retired to bed. At this time the accused was in the verandah.

10. At some little time before about 12.45 am on 22 December 2010 the complainant was awoken from his sleep by noises emanating from the verandah. Mrs Gobin was not awoken by these noises.

11. At about 12.45 am the complainant left his bed and walked from his bedroom to the verandah. He intended to ask the accused why he was making the noises.

12. The door allowing access from the main part of the home onto the verandah is a sliding door. The door is covered by curtains.

13. Upon reaching the verandah the complainant parted the curtains and slid open the door. The complainant could see into the verandah as a television set and a table light were on providing light in the verandah.

14. When he moved his head past the door to enter into the verandah, the complainant saw the accused holding a double barrelled gun which was pointed at his, the complaint's, face with the end of the barrels about 10 inches from his face. The complainant froze with shock.

15. Before the complainant could say anything to the accused, the accused said to the complainant "You fucking cunt. I am going to kill you". These were the only words spoken by the accused.

16. After about 10 seconds, as nothing more was done by the accused, the complainant backed away from the door, turned around, walked back to his bedroom and returned to his bed.

17. However, as he could not sleep, the complainant woke his wife and he told her what had happened, saying "Andre pointed a gun at me". Mrs Gobin said that she did not believe him. So he told her to ask the accused what had happened.

18. Thus, Mrs Gobin left her bed and walked from her bedroom to the verandah at where, after opening the curtains and the door, she asked the accused, "Did you point a fucking gun at your father?", to which the accused replied, "No". Mrs Gobin noticed that the television set in the verandah was on providing light in the verandah. She did not see that the table lamp was on.

19. Mrs Gobin returned to her bedroom and, after getting into her bed, she said to the complainant "He said he didn't point a gun at you", to which the complainant said, "He did".

20. Then, 5 or 10 minutes later, the complainant said to his wife, "I can't sleep. Let's go for a drive". They dressed and Mrs Gobin gathered up her dog and they left the bedroom. As they were dressing, the accused left the home. As it happened, he walked to the back of the home to smoke a cigarette.

21. As they were walking along the hallway of their home, Mrs Gobin told her husband to get any gun that the accused may have had in the verandah and so the complainant went to the verandah and, after looking under the accused's bed, the complainant found three guns under the bed. Mrs Gobin did not go with the complainant to the verandah at this time.

22. After removing the guns from under the accused's bed in the verandah the complainant joined his wife and he put the guns into the boot of Mrs Gobin's motor vehicle - see photograph number 4 of Exhibit F - and they took the guns to police at Woden Police Station.

23. At some time before 1.30 am the complainant and his wife arrived at Woden Police Station. The complainant parked his wife's motor vehicle at the station. They went together into the station and the complainant spoke to Constable Robert Raue, telling him what had happened - see Exhibit C.

24. At about 2.15 am Senior Constable Scott Sindel removed two rifles and a shotgun from the boot of Mrs Gobin's motor vehicle - see Exhibits B and E. The rifles were:

(a) a 30 06 bolt action rifle with five bullets in the magazine; and

(b) a .22 calibre lever action rifle which was unloaded; and

the shotgun was an over/under 12 gauge shotgun with a cartridge in each chamber - see the photographs numbered 5 to 15 of Exhibit F.

25. At about 5.25 am police arrested the accused and, after arresting him, police took the accused to the ACT watchhouse - see Exhibit D.

26. At 8.54 pm Senior Constable Freeman commenced to interview the accused. The interview was recorded on a video disk, Exhibit A1. A transcript of the interview is Exhibit A2. The interviewer asked 526 questions and the accused answered each of them. The interview finished at 10 pm. The following questions and answers seem to me to be relevant:

Q 35 Have you recently consumed any alcohol?

A Yes.

Q36 When was the last time you had a drink?

A About 4 o'clock this morning.

Q 37 4 o'clock this morning?

A Yeah.

Q 38 And when did you start drinking?

A Probably about 8 o'clock I dare say, yeah.

Q 39 8 o'clock when?

A The previous night.

Q 40 So 8 pm?

A Yeah.

Q 41 And how many drinks would you have consumed in that time?

A Not exactly sure.

Q 42 Don't know?

A Maybe 6, 8 or 10, 12.

Q 43 Okay.

A Could have been. Who would know?

.....

Q 77 On Wednesday 22 December 2010 at 32 Woollum Crescent, Rivett, in the ACT, you threatened to kill your father Mario Gobin by pointing a firearm at him. Do you understand the allegation?

A I do.

Q 78 In your own words tell me what you care to tell me.

1. (In part) That's bullshit. Total fucking bullshit. Bullshit. He would have been in bed by that time. He is just an arsehole. Basically he tries to sabotage everything I fucking do. He's an absolute arsehole. There is no fucking way I pointed a gun at him. I don't know anything like that. And like I said he would've been in bed at that fucking time.

.....

A 91 (The question is irrelevant) Just was drinking piss and what I can remember is the old lady - I think my old actually because I am living at the front of the house there and you have got these curtains and I closed the curtains.

Q 92 Yes?

1. You would have to look at it but anyway and I think he must have fucking yanked it open like the curtains and he was fucking yelling something out right. And the old lady has popped her head in and said 'do you have a gun?' I said 'No, I am looking for my fucking lighter' because I think I had to go back outside to look for my fucking lighter.

1. And, yeah, I didn't think too much of it and I went outside and I fucking had a smoke and shit and I came back in and my guns were fucking gone. So he reckoned, the arresting officer, reckons the police got them straight away like the old man didn't touch them. I thought the fucking old man took them.

.....

A 128 (The question is irrelevant) That allegation is a lot of shit.

Q 129 Okay.

A There is no way I pointed the fucking gun at him.

.....

Q 163 What condition were they in under your bed?

A Just under my bed. What do you mean 'what condition'?

Q 164 Well were they loaded? Were they unloaded? Did they have magazines in them?

1. I think the shotgun might have been loaded. I don't know about the other one.

Q 165 How many firearms do you have would you say?

A Just the three.

.....

Q 177 So you said that the shotgun was loaded.

1. Yeah, usually I have some just dummy blanks in it, you know what I mean. You just cut the fucking end off it.

.....

Q 221 When was the last time you handled them?

A Probably a couple of days ago, I don't know.

.....

Q 236 Did you handle (I interpose - the rifles and shotgun) last night?

A No.

.....

Q 264 Did you say anything to your father to that effect (I interpose - hitting him on the head with an iron bar) any time during the night?

A No, I didn't. I didn't talk to him.

.....

Q 305 Regarding the shotgun you said that you stored them under your bed. Did anyone else know that you stored them under there?

1. No. I assume the old man must've known because he took them but he, like, he never even knew they were at the fucking house. No one knew they were at the house. But he has obviously gone in there and seen them because he has taken them and he must have known that they were there for awhile. So fucking who knows. I don't give a shit.

27. In due course, the accused was charged with, on 22 December 2010, having made a threat to the complainant to kill him, intending that the complainant should fear that the threat would be carried out, making the threat without lawful excuse, and in circumstances in which a reasonable person would have feared that the threat would have been carried out, contrary to s 30 of the Crimes Act.

28. Subsequently, on a date during February 2011, and I do not know the precise date, the accused appeared before a magistrate in the Magistrates Court and, on being arraigned with the charge, he pleaded not guilty to it.

29. Then on 30 March 2011 on his again appearing before a magistrate in the Magistrates Court the accused was committed to this court to stand his trial.

30. On 15 July 2011 the accused, after having received advice from his solicitor as to its effect, signed an election to be tried by a judge alone.

31. On 19 July 2011 the court's registrar fixed the accused's trial for 2 October 2012.

32. On 2 February 2011 the date for the accused's trial was brought forward from 2 October 2012 to 16 April 2012.

33. On 16 April 2012 the accused appeared before me to stand his trial. He was represented by Mr Sabharwal, of counsel. The Crown prosecutor presented an Indictment. The Indictment charged the accused with, on 22 December 2010, having made a threat to the complainant to kill him, intending that the complainant should fear that the threat would be carried out, or being reckless as to whether he would fear that the threat would be carried out, making the threat without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out, contrary to s 30 of the Crimes Act. It is to be noted that the words "or being reckless as to whether he would fear that the threat would be carried out" did not appear in the charge with which the accused was arraigned previously - see paragraph 27 above. On his being arraigned with the charge, the accused pleaded not guilty to it.

A. the video disk of the interview and the transcript of the interview - see paragraph 26 above;

B. a statement of Constable Sindel - see paragraph 24 above;

C. a statement of Constable Raue, - see paragraph 23 above;

D. a statement of Constable Damien Clarke - see paragraph 25 above;

E. a statement of Constable Katherine Corvisy, - see paragraph 24 above;

35. The accused did not give evidence or adduce any evidence during the trial.

36. After hearing submissions from the Crown Prosecutor and the accused's counsel, I stood over the trial to today for my judgment.

37. As I am the judge of the facts as well as the judge of the law, I recognise that the following principles, which are designed to ensure that the accused receives a fair trial according to law, govern the trial:

(i) The Crown has the burden to prove the guilt of the accused.

(ii) The accused does not have any burden to prove anything.

(iii) The level or standard of proof is proof beyond reasonable doubt.

(iv) The accused is presumed to be innocent unless and until his guilt is proved by the evidence beyond reasonable doubt.

(v) I must bring an open and unbiased mind to the evidence. I must view it coldly, clinically, and dispassionately and I must not let emotion enter into the decision making process.

(vi) I must assess the evidence rationally, using logic and common sense.

(vii) I may accept a witness's evidence wholly or in part, or reject a witness's evidence wholly or in part.

(viii) The accused's silence in court is not evidence, I must not use the accused's silence in court against him, I must not use the accused's silence in court to add to the evidence or to fill any gaps in the evidence, I must assess the evidence without reference to the accused's silence in court.

(ix) If the evidence satisfies me beyond reasonable doubt of the accused's guilt, then the accused loses the presumption of innocence and I must find him to be guilty.

(x) If, however, the evidence fails to satisfy me beyond reasonable doubt of the accused's guilt, then the accused remains presumed to be innocent and I must find him to be not guilty.

38. As I have said already, the issue in the trial is "Does the evidence satisfy me as the tribunal of fact beyond reasonable doubt that the accused pointed a weapon at the complainant and threatened to kill him".

39. The elements of the subject offence are these:

(i) the accused made a threat to the complainant; and

(ii) the threat was that the accused would kill the complainant; and

(iii) the accused intended that the complainant would fear that the threat would be carried out or the accused was reckless whether or not the complainant would fear that the threat would be carried out; and

(iv) the threat was made without lawful excuse; and

(v) the threat was made in circumstances in which a reasonable person would fear that the threat would be carried out.

For a case wherein the requirements to prove the offence are discussed - see Luu v Cook (2008) ACT SC 54 per Penfold J and the cases therein cited.

40. The evidence of the complainant and Mrs Gobin is both plausible and compelling, notwithstanding that there are three instances of difference between the evidence of the complainant and that of Mrs Gobin. I am not prepared to reject the evidence of the complainant simply because the evidence of Mrs Gobin differed from his evidence in three instances, nor am I prepared to reject the evidence of Mrs Gobin simply because the evidence of the complainant differs from her evidence in three instances. The evidence of the complainant is generally consistent with that of Mrs Gobin other than for the three instances of difference. Neither the complainant nor Mrs Gobin was undermined by cross-examination. Indeed, cross-examination was limited to suggesting a proposition which both the complainant and Mrs Gobin rejected. I accept the evidence of the complainant and Mrs Gobin.

41. I accept the evidence of Constable Challenger and the evidence contained in the statements of police Exhibits B to E inclusive.

42. The evidence of Mrs Gobin as to the complaint made by the complainant to her - see paragraph 17 above - and the evidence of Constable Raue as to the complaint made by the complainant to him - see Exhibit C - is evidence which is consistent with the evidence of the complainant, which tends to prove the truth of the incident of which the complainant complained and which supports the credibility of the complainant - see s 66 of the Evidence Act.

43. The fact that three guns were kept under the accused's bed in the verandah when, as the accused conceded - see the answer to question 305 in Exhibit A2, no one knew that the accused had any gun in the home, tends to corroborate the complainant's complaint that the accused pointed a gun at his face when he was about to enter into the verandah.

44. The evidence of Constable Raue - see Exhibit C - and Constable Challenger as to the complainant's distress when speaking with them is evidence which tends to support the complainant's evidence of the incident.

45. I am satisfied beyond reasonable doubt, indeed I am utterly convinced, that at about 12.45 am on 22 December 2010:

(i) The accused was armed with a double barrelled shotgun which was loaded with a cartridge in each chamber.

(ii) The accused pointed the shotgun at the face of the complainant, holding the shotgun with the end of the barrels about 10 inches from the complainant's face.

(iii) The accused said to the complainant "You fucking cunt. I am going to kill you".

(iv) The accused held the shotgun at the face of the complainant for about 10 seconds without firing the shotgun before the complainant backed away from the accused, turned around and walked away from the accused. I digress to say that the complainant is to be commended for what he did because any other response might have resulted in the shotgun being fired.

(v) The accused, by what he did and what he said, intended that the complainant would fear that he would be killed, or he was reckless whether or not the complainant would fear that he would be killed. I digress again to say that, having regard to the issue fought in this trial, I need not decide whether the accused acted intentionally or recklessly, although, frankly, I do not doubt that he acted intentionally, or whether the indictment is bad for duplicity.

(vi) The accused did not have any lawful excuse for making the threat; and

(vii) The threat was made in circumstances in which a reasonable person would fear that the threat would be carried out, particularly if the person knows what the accused thinks of the complainant as revealed by the police interview of the accused.

46. Accordingly, I find the accused to be guilty of the offence of making a threat to kill the complainant.

I certify that the preceding (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

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

Solicitor for the Defendant: Legal Aid ACT