R v Jacka [2011] ACTSC 63

2. Before the plea was taken, the charge was amended to insert the word "caused" in place of the words "attempted to cause" that appeared in the original indictment.

3. The accused also pleaded not guilty to a further charge that:

... on the 28th day of November 2009 at Canberra aforesaid [he] used a prohibited weapon and was not authorised to do so by a permit or otherwise.

Particulars:

Two 375ml bottles containing an inflammable liquid capable of killing or incapacitating someone.

4. Mr D Sahu Khan appeared as counsel for the prosecution and Ms T Warwick as counsel for the accused.

5. Before the Court first allocated a date for trial of these charges, the accused elected to be tried by judge alone.

6. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250). I must also take into account any warning or direction or comment that Territory law requires to be made to a jury when considering my verdict.

7. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

8. On 28 November 2009, at about 5.30 am, Mr Cunneen was in the lounge room of his home watching television. Mr Cunneen has disabilities which require constant pain killing medication and keep him awake at night. He heard a car drive past the front of his house, and about a minute later he heard a "whooshing" noise followed by a "clink" noise. He looked out the window and saw flames in front of the window as high as the roof. He went out the front door and saw flames covering the full length of the wall next to the front door. He saw a person, who he said was the accused, "running around near the horse float and there's a tree there ... and he's ran around that". He also said that the person slipped halfway going around the tree. He said that the person yelled out "Go, go, go" and jumped into a car. Mr Cunneen concentrated on putting out the fire near the tap at the front of the premises. The fire had scorched the wall of the house. He then proceeded to put out the fire near the front steps of the house. In relation to the fire by the tap Mr Cunneen said that "it didn't really catch alight" and in relation to the fire near the front steps he said that "it's petrol" and took him about 10-15 minutes to put out. Mr Cunneen found one beer bottle by the tap and another beer bottle which had a rag in it in the bushes near the front steps. He gave a statement to the police about these events in the afternoon of the next day.

9. The first charge is constituted by the act of causing damage to a building by fire with the fault element that of being reckless about causing that damage.

10. There was no challenge by the defence to the act being made out and the fault element being inferred from the act.

11. Of concern, however, is whether the act, in fact, caused damage to the building as opposed to the shrubbery which caught alight. The only evidence before me was that of scorch marks to the building wall which, according to Mr Cunneen's evidence, were merely washed off by him. The Macquarie Dictionary (3rd ed, 1998) (the Macquarie Dictionary) defines damage as "1. Injury or harm that impairs value or usefulness". That circumstance cannot necessarily be said to be so in this case.

12. Section 400 of the Criminal Code 2002 (ACT) provides an extended definition of "damage property" to include in para (d) "deface the property". The Macquarie Dictionary defines "deface" as "1. to mar the face or appearance of; disfigure". That does not seem particularly apt to cover what would seem to be temporary marks on a building consequent upon setting fire to shrubbery adjacent to the building. Although Mr Cunneen maintained that he washed the marks off, they were in fact visible the next day when photographs were taken. I consider this to be just sufficient to have the conduct fall within what the section proscribes by reason of the building being defaced.

13. The second charge, that of using a prohibited weapon not authorised by a permit or otherwise, involves the prosecution establishing that a small bottle with inflammable liquid, presumably petrol, to be within the description in Schedule 1, Pt 1.4, column 2 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act). That description proscribes:

a device or apparatus made or modified for use with a gas or liquid, if the device or apparatus is -

(a) capable of killing or incapacitating someone; or

(b) made or modified to kill or incapacitate someone

14. "Device" is defined in the Macquarie Dictionary as "1. an invention or contrivance; 2. a plan or scheme for effecting a purpose ...". I find it difficult to see that a bottle filled with petrol with a makeshift wick is necessarily an invention or contrivance, both of which expressions seem to import some mechanical concept, although I accept that there is certainly room for argument.

15. "Apparatus" is defined in the Macquarie Dictionary as "1. an assemblage of instruments, machinery, appliances, materials, etc., for a particular use; 2. any complex appliance for a particular purpose ...".

16. Neither of the definitions sits happily with the object under consideration here. At best, picking up upon the definition of "apparatus" as an assemblage of "machinery", it might be described by reference to the secondary definition of "mechanical" in the Macquarie Dictionary. That is, "2. of the nature of a device or contrivance for controlling or utilising material forces ...".

17. I note the following. Schedule 1 of the Prohibited Weapons Act prohibits bladed weapons as described (Part 1.1), hand weapons as described (Part 1.2), missile weapons as described (Part 1.3) as well as "Other prohibited weapons" which include the definition to which I have referred. On the other hand, s 4C of the Act deals with unregulated weapons:

4C Meaning of unregulated weapon - Act

In this Act:

unregulated weapon - a thing is an unregulated weapon if -

(a) the thing is designed, made or altered to be used as a weapon; and

(b) the only practical use of the thing is as a weapon; and

(c) the thing is not a prohibited weapon; and

(d) the possession or use of the thing is not authorised under this Act.

18. Section 4D provides for seizure of such things by police if it is necessary because the thing would pose a risk to the safety of anyone if used.

19. In my view, the "thing" in question here falls more readily into the category referred to by s 4C than the other categories of prohibited weapons to which I have referred.

20. It seems to me that if the legislature is drawing a dichotomy between "capable of killing or incapacitating someone" as a characteristic of the description in Schedule 1, Pt 1.4 under consideration here and a thing which is altered to be used as a weapon which would pose a risk to the safety of anyone if used, then some evidence needs to be called to establish the capacity of the device or apparatus to kill or incapacitate someone. Whether a "Molotov cocktail" has that characteristic has not been the subject of evidence. An application of common sense would indicate that such a thing would injure persons and damage property. I am less sure, without evidence, that it has the capacity to kill or incapacitate someone.

21. When I raised that issue with counsel, I was informed that Ms Warwick had conceded that no evidence was required to establish that the accused did not have a permit and that there was no issue about a prohibited weapon. That is not necessarily an end to the matter but it was conceded that there was evidence that the prosecution could have called, but did not, that the object described as a "Molotov cocktail" was capable of killing or incapacitating a person. In light of that concession, I think that, at least, technically, the offence under the Prohibited Weapons Act can be made out. That does not alleviate my concern that it is an appropriate charge to accompany the principal offence that has been charged here.

22. I also question the actual utility of charging this offence with the charge of arson. The nature of the object used to cause damage to a building by fire can be said to be an aggravating factor as far as the offence is concerned and will almost certainly be reflected in the penalty imposed. It is difficult to see what additional criminality is involved in not having a permit for something that would not in the ordinary course of events be the subject of an application for a permit and may well fall within the category described as an "unregulated weapon" in terms of the Prohibited Weapons Act.

23. Mr Cunneen's identification of the accused is central to the determination of this matter. I must be satisfied beyond reasonable doubt on his evidence that the person he saw in the early hours of that morning was the accused.

24. This calls for me to take into account the warnings given to a jury when identification evidence has been admitted (ss 116 and 165(1)(b) Evidence Act 1995 (Cth)).

25. The issue is the reliability of such evidence not the honesty of the witness in giving it. I have, in this case, no reason to doubt the honesty of the evidence given by Mr Cunneen. However, I note that because Mr Cunneen honestly and sincerely believes that his evidence is correct and that his evidence can be said to be given with expressed certainty and conviction and for that reason may be considered to be persuasive, I am still to approach the task of assessing it with special caution.

26. The special caution is required because of the possibility that even a completely honest witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. I am to remind myself, as I would a jury, that there have been some notorious cases over the years in which completely honest evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

27. I must carefully consider the circumstances surrounding the occasion on which the identification is said to be made.

28. In the present case, Mr Cunneen's evidence was that the accused was well known to him and that evidence was not challenged in any way.

29. Mr Cunneen's opportunity for observation was in the early hours of the morning. His description in his examination in chief was:

Okay. Now at the point in time that you were watching the TV, I assume there were some lights on in the house?---No, it was twilight. It was, like, December so it was 5.30 in the morning, there's twilight, there's a street light over the corner of the street there. It was like a moonlit night.

So you're saying you didn't have lights on inside at that time?---Didn't need them.

Okay?---You could see clear as crystal.

30. The person, who he said was the accused, was seen some 20 feet away from him. The person was seen running around the side of a tree at the front of the premises. Mr Cunneen heard the person yell out "Go, go, go" as the person jumped into a car. At that time, when Mr Cunneen came out of the house, there were flames from the bushes that had caught alight. His evidence in cross-examination was:

MS WARWICK: Now, you said you came out of the house, and going back to that photo, as you walked out of the house there were flames to your right-hand side and you were looking at those flames?---Yes.

Yes, so that would have affected your night vision to some extent?---Well, not really because it weren't night. It was broad daylight. You might as - - -

It's broad daylight?---You might as well say it's broad daylight because the moon was shining early all that night. You didn't need a light on at all. And then it was twilight because it's 5.30 in the morning and then the streetlight over the road. And there's nothing wrong with my vision. I used to shoot for a living.

And the person that you say you saw running towards the horse float, he was on the other side of the flames from you?---Yes.

And the street light was behind him?---Yes.

And then you say that you saw the person was running, so by running you mean actually moving quite quickly?---Not really that quickly, because he's trying to get around a tree and just about slipped over.

31. I take into account that the sighting was more than casual and was significant to him at the time.

32. His evidence as to the conditions under which the observation was made needs to be judged at the early hour of the morning that it was made. Although I have no evidence as to first light or sunrise on that morning, his evidence as to the conditions would indicate that they would not necessarily make his recognition of the accused as problematic as it would be if only aided by the street light. His sighting could also have been affected by the flames that he described "as high as the roof", although it was not suggested in what way that might have been and, in any event, Mr Cunneen did not accept the proposition.

33. Mr Cunneen gave no evidence of anything about the person which would have impressed itself upon him. Rather, his description was "I seen a young fella who used to knock around with my son".

34. There is no doubt that the incident placed Mr Cunneen in a stressful situation but its effect on his ability to accurately observe and keep the image in his memory was not explored. No doubt he was distracted to an extent by the immediate need to do something about the flames. I also note that he said that he did not call out to the person that he had seen because he was too worried about putting out the fire.

35. Consideration needs to be given to the certainty expressed by Mr Cunneen in the context of what a young person with whom he had a conversation after the incident said to him. I deal with that in more detail in considering the evidence of that young person.

36. It was also put that Constable Dickson, who took a statement from Mr Cunneen, recorded in his notebook that Mr Cunneen told him "Possibly Mitchell Jacka". However, Constable Dickson gave evidence that the "Possibly" is his word and not the recording of any uncertainty on the part of Mr Cunneen. I accept Constable Dickson's evidence on that aspect.

37. Bearing in mind the warnings to which I must have regard, I take into account all these matters in considering whether it is reasonably possible that Mr Cunneen's recognition of the person as the accused was in error.

38. An important aspect supporting Mr Cunneen's identification of the accused is the evidence given by a young person to whom I shall refer to as C because he is a young person and there does not seem to me to be any good reason why his identity should be made public. C gave his evidence by audio visual link from the remote witness room pursuant to s 8 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), and I draw no inference adverse to the accused by reason of that fact. He knew the accused and had known the accused's younger brother longer. He also knew Mr Cunneen's son.

39. At a bus stop in the late morning of 28 November 2009, C was with his girlfriend and their female friend. He said the accused rode up on a mountain bike and told him that he was "running from the coppers". C asked him why and his response was:

He [the accused] said he cocktailed Greg's house and Brad's house and he was going to go do it again.

40. C said that the next morning he spoke to Mr Cunneen about this conversation. C lived down the street from Mr Cunneen and went to his place at about 4.30 am. His evidence as to that conversation was:

And where did you meet him?---At - at his house.

And did you have any conversation with Greg when you got there?---I asked him about it.

About what, sir?---About what Mitchell did, if Mitchell petrol bombed Greg's house.

Can you tell us exactly what you said?---I was - - -

To the best of your recollection?---To the best. I was like, I saw Mitchell down at the bus stop yesterday and he was like yes, and I was like, yes, he said something about he petrol bombed your house and I asked him if it was true.

Can I just stop you there? Who spoke first? Did you speak about this petrol bomb or did Greg speak first?---I spoke first.

Sorry, I think the last thing you said was, was it correct or something? Was it true?---Yes, was it true.

Yes and what did?---Like, I asked him - I asked him first and I was seeing if it was true from him.

All right. And what did he say?---He said yes. He showed me the burn marks out the front of the house.

41. C gave evidence on the first day of the trial. During cross-examination he abruptly left the witness box. The matter resumed over a week later when he continued his evidence.

42. The incident of leaving the witness box demonstrated a lack of maturity on C's part but overall I consider that his leaving the witness box as he did, does not affect my assessment of his evidence. I do not regard the incident as bolstering his credit because he felt his truthful version was being challenged as Mr Sahu Kahn suggested. Nor do I regard it as symptomatic of a reluctance to give evidence so as to indicate unreliability as Ms Warwick seemed to suggest.

43. What is significant to my mind about his evidence is his adherence to asking Mr Cunneen if it were true what the accused had said to him. That accords with Mr Cunneen's evidence that he affirmed C's inquiry as to whether it was true that it was the accused.

44. Ms Warwick placed considerable emphasis on what were said to be inconsistencies in the evidence of Mr Cunneen and C on this topic. I was taken to a number of passages in the transcript. Despite those criticisms, I am satisfied that it was C who raised the topic of and named the accused as the perpetrator and that Mr Cunneen did no more than confirm that it was true. For that reason, I do not regard the identification made by Mr Cunneen as instigated by anything C said to him.

45. I note also that C assented to the proposition put to him in cross-examination that at the time that the accused rode up to him on the mountain bike that he was wearing a leg brace. His evidence about the brace, which was only given in cross-examination, was quite succinct:

Okay. He was wearing his leg brace at the time, is that right?---Yes.

...

Now the brace that Mitchell was wearing was quite a long brace wasn't it?---Yes.

It ran over the whole of his leg?---Yes, half of his leg.

And it ran over his knee?---Yes.

It started below the knee and it was attached above the knee as well?---Yes.

He couldn't ride a bicycle with that brace?---Well he did.

There was no further cross-examination on the topic.

46. Mr Jacka gave evidence. He was led at the outset about his involvement in a motor cycle accident in September 2009 in which his injuries, he said, entailed a knee reconstruction. His evidence was:

And after the surgery, how was the knee secured? What were you wearing?---I had a leg brace that went from about the - near the top of my ankle up to the - probably a bit - the highest part of my thigh and it was secured with four straps and the locking mechanism at the knee part.

...

- - - how did you feel when you got home? Like what were you able to do for yourself?---Nothing.

And how long did that continue for?---That continued for over 12 weeks I was in the brace for.

...

So for how long was your mum helping you with getting meals and getting drinks and those things?---Over 12 weeks until I got off my crutches.

Right. So was there a time where you became able to move around without crutches?---Yes. It was, I don't know, about 13 weeks after the surgery, I was able to hobble on my leg but I still wasn't able to bend my leg.

Is what you're saying you were able to move with the brace but without crutches?---Yes.

And by Christmas time, were you still wearing the brace?---Yes, I was.

47. The hospital records were tendered by consent but they do not assist on the issue of the accused's mobility.

48. As to the allegation concerning the Molotov cocktails, the accused's evidence was:

And what do you say about that allegation?---I didn't do it. I wasn't mobile to do anything. I just plainly wasn't there.

49. As to the allegation that he spoke to C, the accused's evidence was:

And what do you say about that allegation?---I wasn't there. I wasn't able to ride a pushbike. I don't associate with [C].

50. The issue before me is whether it is reasonably possible that the injuries sustained in the motor cycle accident required the constant wearing of a leg brace which so restricted the accused's mobility that he could not be said to have been where Mr Cunneen and C said he was.

51. What I find difficult to accept, in the absence of evidence, is the degree to which the accused's movement was restricted by the brace. The accused spoke of being on crutches for 12 weeks. He also said about 13 weeks after surgery, "I was able to hobble on my leg but I still wasn't able to bend my leg".

52. Against that evidence is the consideration that the brace had a "locking mechanism at the knee part". Some medical notes were tendered on the accused's behalf without explanation. Apparently the accused discharged himself from hospital the day after his operation on 10 September 2009 for an "arthroscopy of right knee, lateral meniscal repair, MCL +ACL repair". It was also noted "ROM brace on at all times locked and non weight bearing and regular observations".

53. There is, however, nothing to confirm that an injury of this nature would require immobility for the period the accused said. There apparently was a later examination on 18 February 2010. That examination contains no reference that I am able to detect as to the degree to which the accused's mobility had been or was affected.

54. What I regard as significant is C's evidence acknowledging that, at the time he had the conversation with the accused, the accused was wearing a leg brace.

55. There is no reason for me to not accept the evidence of C on this aspect. He was clearly not comfortable in giving evidence but I do not consider that he was deliberately lying to inculpate the accused or should be disbelieved about the conversation that he says that he had with the accused in the late morning of 28 November 2009.

56. I do not accept the accused's evidence that his leg injury would have prevented him from doing what Mr Cunneen says that he observed him doing or C's evidence of what the accused said to him on the same day.

57. I am also satisfied that I can accept Mr Cunneen's identification of the accused as the person that he saw in the early hours of the morning on 28 November 2009.

58. Despite my reservations on the appropriateness of the second charge on the indictment, I am satisfied beyond reasonable doubt that the accused committed the offences charged. I find the accused guilty on both counts on the indictment.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the accused: Darryl Perkins Solicitors