[2017] ACTSC 274

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - disputed facts hearing - aggravated burglary - whether the accused committed the burglary in company

Mason v Demasi [2009] NSWCA 227

R v Carney [2013] ACTSC 266

R v Murray (1987) 11 NSWLR 12

Office of the ACT Director of Public Prosecutions (Crown)

1. This is a disputed facts hearing. At the commencement of the hearing, the defendant was arraigned on an indictment dated 18 September 2017. There is a single charge:

That on 28 January 2017 at Canberra in the Australian Capital Territory Jeremy Greentree remained in a building, namely [an address in the Australian Capital Territory] as a trespasser with intent to commit an offence that involved causing harm to anyone in the building, in company with Steven Lockwood and two unknown males and at the time had an offensive weapon with him.

2. The defendant pleaded 'guilty' but on the acknowledged basis that he disputed being in company with Mr Lockwood and/or anyone else. This is the subject of the hearing; namely, whether or not the defendant, when committing the burglary, was in company with any other persons.

3. The first matter I need to note is the principles that apply to hearings of this sort. They were comprehensively set out by Refshauge J in R v Carney [2013] ACTSC 266 in [148] and [149]. I have proceeded on the basis of these principles.

4. The first witness that the Crown intended to call was the victim of the offence, Mr Brian Walters. Unfortunately, he was delayed in arriving at court. This meant that the first witness actually called was Constable John Campbell.

5. On 28 January 2017, Constable Campbell was stationed at Woden. He responded to a call for assistance at an address in the Australian Capital Territory. When he arrived, ambulance staff were waiting for police clearance. The officer knocked on the door, which was opened by Mr Walters.

6. Constable Campbell observed what he thought was a puncture wound to Mr Walters' upper left chest. He asked Mr Walters if he had been stabbed. He received an affirmative reply. He helped Mr Walters outside and onto the ground. He asked him if anybody was inside the unit. The reply was "no", which prompted the officer to invite the ambulance team to minister to Mr Walters' wounds.

7. Constable Campbell obtained a key to the unit from Mr Walters and, with his permission, entered the premises. He was primarily concerned with whether or not any other person was in the unit and his search was for that purpose. He did, however, notice that the unit was "in disarray". This condition is confirmed by the photographs forming part of Exhibit A.

8. The officer later again spoke to Mr Walters. He asked him if he knew who had stabbed him. Mr Walters replied: "Jeremy Dash, I knew him in the AMC". There is no dispute that the defendant is also known as Jeremy Dash and that the AMC refers to the prison in the Australian Capital Territory.

9. Mr Walters gave evidence. He did so from a remote location. I have not drawn any inference against the defendant or given Mr Walters' evidence any greater or lesser weight because of the manner in which it was given.

10. Mr Walters met the defendant in prison, in the remand centre. This was in 2013 or 2014. Mr Walters was released from prison in about July 2014. He did not see the defendant again until late 2016 or early 2017. He denied seeing him on a regular basis. He denied borrowing money from him and he denied any dealings concerning marijuana with the defendant.

11. The first occasion when Mr Walters saw the defendant, after their time in prison, was when he noticed him outside the Ainslie shops with some luggage. He stopped and asked if he could give the defendant a lift. The defendant was on his way to Tuggeranong but Mr Walters only took him as far as Woden because he was expecting a friend.

12. The defendant entered Mr Walters' apartment. He stayed about 20 minutes. They smoked some cannabis.

13. Mr Walters was a keen 'Call of Duty' competitor. He would play the game online, on his PlayStation, which meant friends and competitors might also be online. They could be communicated with through the system. A friend of his had the PlayStation name of "Flavours HD".

14. Mr Walters' usual habit was to sleep until about 2.00 pm. He believes he would have done so on 28 January 2017. Over the next eight or so hours, he smoked about 10 'bongs' of cannabis. He said this was not a great deal. It helped him to lessen his anxiety, to eat and sleep and assisted with pain management. He had been injured in a motor vehicle accident in 2015.

15. On the night of the incident, at about 10.00 pm, there was a knock on the door. Mr Walters looked through the peephole and saw the defendant. He could not see any other person. He opened the door and, after a short conversation, invited the defendant into the apartment.

16. Mr Walters said that he was then punched on the left side of his face, near his nose, and he fell to the ground. As he was getting up, he noticed three other males enter the apartment behind the defendant. He described each one. The first man was quite tall, had a shaved head, many "prison" tattoos, piercings and leathery skin.

17. The second man was also tall, had red hair and a red beard and was wearing khaki shorts and top. The third man was described as "half Aboriginal". He was short and stocky with shoulder length curly hair.

18. Mr Walters did not recognise any of the three men but he was later given the name "Steven Lockwood" after a forensic examination was conducted in his apartment. This is corroborated by Exhibit B, which identifies fingerprints of a Mr Steven Lockwood being found on some containers that were in the apartment.

19. Armed with the name, Mr Walters began a Facebook search and identified Mr Lockwood under the name "Steve Lockwood".

20. Returning to the events of the night, Mr Walters said that he tried to get up after being hit. He was tackled onto the couch and then threatened with a pair of "chef's scissors" by Mr Lockwood. The scissors were held to his throat. Money was demanded from him. He handed over $20 which was the extent of the cash he had with him.

21. While he was on the couch, he was struck a number of times. The defendant hit him with a golf club on his left arm. He tried to get up. Mr Lockwood stabbed him on the left side of his chest with the scissors. The reference to the "scissors" is to one half of the chef's scissors.

22. At the same time, the various participants searched through his house, seemingly under Mr Lockwood's direction. After the stabbing, Mr Walters' hands and ankles were tied up and he was placed on the couch. The couch was then tipped over so that he was looking up at the ceiling.

23. Before departing, Mr Walters was threatened that if he said anything he would be killed. The four men then left. He had also been threatened that his eyes would be cut out and he was hit with a dumbbell.

24. The robbers took some rings, the $20, a face shaver, a phone and some cannabis.

25. Mr Walters was able to free himself from his bounds and, not having his telephone, contacted "Flavours HD" through his PlayStation. He told "Flavours HD" that he had been stabbed and asked him to call an ambulance. This was done.

26. A little later, the police and an ambulance arrived. Mr Walters spoke to the police and told them that the defendant and three other men had entered his apartment. Mr Walters was transported to Canberra Hospital. He was admitted to the hospital in the early hours of 29 January 2017. He underwent a number of assessments. He was discharged later that day.

27. He could not remember telling hospital staff that he had been hit by a cricket bat or baseball bat. He did say that he was hit by a golf club. I see no significance if an incorrect history was given. It is perhaps more likely that an incorrect history was taken. Although usually arising in a civil law context, the unreliability of medical records is well known (Mason v Demasi [2009] NSWCA 227).

28. Under cross-examination, Mr Walters denied that the defendant had come alone to the apartment, demanding a debt owed to him in the sum of $1,000. He denied any drug dealings with the defendant and he denied that the defendant found marijuana under his mattress.

29. Mr Walters denied that there had been two separate incidents that occurred on the same night; firstly, that the defendant had arrived and hit him with a golf club and then, after the defendant had left, other men arrived and assaulted and stabbed him.

30. I do not know why Mr Walters spent time in prison. It was not suggested that his credit would be affected by any history of dishonesty. I found him to be an honest witness who gave his evidence in a straightforward and forthright manner.

31. I was concerned about whether his memory might have been affected by the cannabis that he took. However, there is a good deal of independent evidence to corroborate his version. This includes the photographic evidence showing the ransacked apartment, the blood on the couch, the fingerprints of the defendant and Mr Lockwood, and the medical descriptions of his injuries.

32. Mr Cameron is "Flavours HD". He gave evidence by telephone from Victoria where he resides. The fact that he gave evidence in this manner is not significant and was really done by way of convenience. No inference or question of weight flows from him giving evidence in this way. His evidence was ultimately not controversial. Mr Cameron said that in the late evening on 28 January 2017 he was contacted by Mr Walters. He was told by Mr Walters that "they" took his phone and stabbed him in the chest. Mr Walters asked Mr Cameron to contact emergency authorities, which he did. A transcript of the conversation with '000' is Exhibit D.

33. The Crown relied on Mr Cameron because of his reference to "they" having stabbed Mr Walters. However, even on the defendant's version, "they" is an appropriate description, because other persons came to Mr Walters' home after the defendant had left.

34. Some written and photographic material was tendered by the Crown.

35. Exhibit A is a statement by Dr Michelle Weir. She is a crime scene investigator. Her qualifications are set out at the beginning of the statement. She attended the premises on 29 January 2017 and later prepared a report dated 6 June 2017.

36. The following points in the report are relevant to the disputed facts question:

(a) A golf club was located in the bedroom. It can be seen in photographs in Exhibit A, as can the golf bag.

(b) Fingerprints were taken. The results are in Exhibit B.

37. Exhibit B shows that the defendant's fingerprints were found on the security door and Mr Lockwood's fingerprints were found on two green containers which were located inside the apartment.

38. Exhibit C is a report from a forensic medical officer, Dr Van Diemen. The report describes the various injuries suffered by Mr Walters. They include a wound to the right side of his neck, a stab wound to his anterior chest wall, a fractured rib, a bruise to the left of his skull and an abrasion to his left elbow. The injuries are consistent with the description of the actions of the four assailants given by Mr Walters.

39. Perhaps most importantly, the medical records suggest all of the injuries occurred at the same time, or at least in the same incident. The ambulance notes record that Mr Walters was "stabbed with Chefs scissors" and "assaulted with a golf club".

40. The defendant gave evidence. The defendant said he met Mr Walters in prison in 2011. After leaving prison, perhaps in 2012, he was in a rehabilitation centre in the Australian Capital Territory. After that, he stayed in Canberra for four or five months before leaving for Western Australia. It was during the four or five months that he had a good deal of contact with Mr Walters and Mr Walters incurred the debt of $1,000.

41. The defendant was not able to collect the debt before he left for Western Australia, where he remained for about two years. On his return, he coincidentally came across Mr Walters when waiting with his luggage outside the shops in Ainslie. He went with Mr Walters to the latter's home. They had three or four cones of marijuana before he took a bus to Tuggeranong.

42. The defendant said that he came back about two weeks later to collect his money but Mr Walters told him to return on "pay day".

43. His next visit was on 28 January 2017. On this day, he was hearing voices. To defeat the voices, he wanted to smoke some marijuana which, in his experience, helped him. The defendant said he was schizophrenic and sometimes had psychotic episodes.

44. The defendant arrived at Mr Walters' home at about 7.30 or 8.00 pm. They smoked two or three cones. He asked for his money or for marijuana. Neither was forthcoming, so the defendant took a golf club and hit Mr Walters on the arm. He said he used force to the measure of about five out of 10. This is inconsistent with the bruising on Mr Walters' arm.

45. After striking Mr Walters, the defendant said that he was told there was marijuana between the mattresses in the bedroom. There were two and a half ounces which he took in full satisfaction of the debt. Altogether, he was in the apartment for 20 to 30 minutes. He left, shutting the door behind him. He surmised that Mr Walters was later attacked by a drug dealer.

46. Under cross-examination, the defendant agreed that he knew Mr Lockwood from prison and that he had actually been with him that evening. Mr Lockwood and an Aboriginal man were in a nearby car park while he went into the apartment. It is unclear why Mr Lockwood and the other man did not accompany him to see Mr Walters. Nevertheless, after his visit, the defendant sold some marijuana to Mr Lockwood and they went their separate ways. He thought Mr Lockwood might have returned to Civic where he lived.

47. It was submitted that I should exercise caution in accepting the Crown's case because the evidence disclosed an essentially one witness versus another witness scenario. I was asked to give myself a "Murray direction" (derived from R v Murray (1987) 11 NSWLR 12). I did so. I have exercised appropriate caution but also note that there is a good deal of independent evidence to reinforce Mr Walters' version.

48. As noted, the defendant admitted hitting Mr Walters with a golf club. This leaves the other injuries, in particular the stab wound, to be otherwise explained. The only explanation proffered was that there were two separate incidents. There is simply no evidence that might lead to such a conclusion. Although there is no onus on the defendant to prove his case, I note that Mr Lockwood did not give evidence nor did Wayne Hunt or Jimmy Hunt, both of whom were said to have been present when the $1,000 debt was incurred.

49. The defendant gave his evidence in a reasonably straightforward manner. He was not argumentative and was not shaken in cross-examination. I was concerned that his memory may have been affected by his psychotic episodes and schizophrenic condition. Perhaps he has no real memory of the evening. Whatever the case, his version is simply not believable.

50. I reject the 'two incident' possibility and accept the evidence of Mr Walters.

51. Having accepted the evidence of Mr Walters, and noting the independent evidence corroborating his version, the remaining issue is whether I am satisfied beyond reasonable doubt that the defendant acted in company. I am so satisfied.

(a) On 28 January 2017 at Canberra in the Australian Capital Territory Jeremy Greentree remained in a building, [an address in the Australian Capital Territory] as a trespasser with intent to commit an offence that involved causing harm to anyone in the building, in company with Stephen Lockwood and two unknown males and at the time had an offensive weapon with him.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.