R v Tiburcy [2007] VSCA 124

4 It is not disputed, nor could it be, that the evidence established beyond reasonable doubt that there was a violent, unlawful disturbance of the peace, in public, of which a bystander of reasonable firmness and courage might reasonably be expected to be terrified. It is contended, however, that the evidence did not establish beyond reasonable doubt that the applicant was an offender or an aider and abettor.

Unsafe and unsatisfactory

5 When this Court is asked to conclude that a verdict is unsafe or unsatisfactory, we are obliged to ask whether we think that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, we must, of course, pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the fact that the jury has had the benefit of having seen and heard the witnesses. But, if we experience a doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced. If, on the other hand, a jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, we may conclude that no miscarriage of justice occurred.[1] It follows, in effect, that the function of this Court is to determine whether the jury, acting reasonably, and appreciating the burden and standard of proof, could have convicted the applicant on the evidence available to support the conviction.

6 In this case, I do experience a doubt as to the guilt of the applicant, which in my view should be treated as a doubt which the jury ought also to have experienced. I consider that the evidence on which the Crown relied did not exclude beyond reasonable doubt the possibility that, although the applicant was present during the time of affray, he was not participating in the affray and not aiding or abetting those who were. In my view, it is at least possible that, whatever he may have done before police arrived at the scene, he was there after they arrived because he had been badly injured and was seeking to have the police do something about it.

7 I have referred already to the judge's summary of the evidence but for present purposes it assists to extract out of it just that evidence which in any way could be thought to associate the applicant with the affray. As I see it, it comes to this:

Senior Constable Josephs' evidence that when he was still in the police car, he, Josephs, saw Mr Justin Tiburcy standing at the front of the police car with a significant injury to his mouth and some teeth missing and a heavy amount of blood around his mouth and on his clothing. He saw an unknown female approach Mr Tiburcy and look at his injuries and appear to get agitated and appear to call over five or six males, who came over, spoke to Mr Tiburcy, became verbally and physically aggressive and agitated and ran towards the house and attacked it, and also some attacked a white sedan that was in that vicinity.

Senior Constable Chapman's evidence that, as he was first getting out of the police car, he had a conversation with the accused, who had walked over to him, with blood on face, significant blood on his mouth. The accused was aggressive. He was very aggressive in body language and words.

Senior Constable Chapman's evidence that, after Senior Constable Josephs had caught and arrested Tyler, they were encircled by about 20 intoxicated aggressive people, some of whom had cans and bottles and were threatening to use them against the police in a violent manner. They were making aggressive comments such as, "hit us", and egging the police on as if to hit the people in the crowd, and several in the group were shaping up with raised fists. Some of the people were threatening him by raised fists and some with raised cans and bottles. The accused was in that group, according to Chapman. But he did not place the accused as one of the people raising any items such as that. He said he saw Mr Tiburcy had moved up to that group, but did not say that Tiburcy touched or threatened him at that stage in any way.

Senior Constable Chapman's evidence that, after he and Senior Constable Josephs got away from that group, and Senior Constable Josephs had caught Tyler again and had him in a headlock, they were surrounded by a core group of the crowd who manhandled and shoved and pushed in on them until the grip on Tyler was broken and he ran away again. Senior Constable Chapman said that at that point the accused was standing around. He was still up there. He said he believes Mr Tiburcy was still there, but had had no conversation with him there, and he saw no direct touching or threatening by Mr Tiburcy there. It is just he believes he was in the vicinity.

Senior Constable Josephs' evidence that the group followed the police and surrounded them again within one or two seconds. He says he saw the majority was armed with bottles and cans, full bottles, and were gesturing aggressively as though to throw the bottles and cans at him and Chapman and verbalising that they wanted to fight. There was physical contact of being bumped and pushed because they were so close. He says he saw the accused was there. He agreed that at the committal hearing he had answered yes to a question that the accused's motive in approaching and taking up conversation with him and appeared to be to asking what action would be taken about what had happened to him. He adopted that evidence at trial He turned to him, the accused, and the accused was very aggressive and angry towards him, Josephs. Josephs said he asked Tiburcy if he needed immediate medical assistance by an ambulance and Tiburcy verbally abused him. The response was, "What are you going to do about this?", indicating his injuries. He agreed that Tiburcy had not threatened him in those conversations. He did not see if Tiburcy was part of the encircling group when Tyler was first arrested. He did not see Tiburcy actively fighting or throwing punches, nor wrestling anyone, nor touching him or Champman, nor verbally threaten him or Chapman, nor challenge either of them for a fight, nor threaten either of them with any object, nor throw any bottles.

8 As is apparent from that compilation of the evidence, there was no direct evidence of participation by Tiburcy in the affray, and apart from the applicant's presence among or near to the groups of people who twice surrounded the policemen, no direct evidence of aiding and abetting.

9 Moreover, as to the evidence of Tiburcy's presence on the occasions when the policemen were surrounded, the highest that it goes concerning the first occasion is the evidence of Senior Constable Chapman that he saw Mr Tiburcy had moved up to that group, but does not say that Tiburcy touched or threatened him at that stage in any way. That occurred, as Senior Constable Chapman put it, before things went "berserk", and so, as it appears to me, before the affray began.

10 The substance of the evidence concerning the second occasion was Senior Constable Joseph's evidence that the applicant approached him and took up a conversation with him and appeared to ask what action would be taken about what had happened to him. Senior Constable Josephs turned to the accused, who was very angry and aggressive towards him. Senior Constable Josephs said he asked Tiburcy if he needed medical assistance by an ambulance and Tiburcy verbally abused him. He agreed that Tiburcy had not threatened him at that time.

11 In my view, that evidence does not exclude the reasonable possibility that the applicant was present because he had been injured and was seeking to have the police do something about it. Certainly it establishes that the accused was aggressive, rude and abusive, and, combined with his own admissions as to the amount of alcohol he had consumed that evening, probably also intoxicated. But, however impolite he may have been, it is plain that he did not put the police in fear by asking what they intended to do about the fact that he had been injured, or by emphatically refusing their invitation to go in the ambulance to receive medical attention.

12 There is, then, the evidence of the third sighting and conversation with the applicant but, as both policemen testified, that occurred after police units had arrived and they had gained control of the situation. The main protagonists who had damaged the police car and caused other damage to the house had gone by then. According to Senior Constable Josephs, Mr Tiburcy approached a number of police there, including Mr Josephs. Senior Constable Josephs said that Tiburcy was not attempting to touch or assault him or other police in any way. He wanted to know what action would be taken about what had happened to him. According to Senior Constable Chapman, he approached Mr Tiburcy rather than Mr Tiburcy approaching him near the police car and tried to get him to go in the ambulance. It was at that point that he responded that the police should "Fuck off, they're not looking at me, they cost too much". Arguably, the fact of the applicant's continued presence at the scene at that stage could be viewed as evidence from which to infer that his presence at an earlier stage was as a participant or principal in the second degree. But I regard that as a most unlikely inference, given that it was he who approached the police and asked what they would do about the injuries he had suffered.

13 Aside from the evidence of what happened after police arrived, the Crown also adduced a volume of evidence of what had occurred before they arrived, in order, it was said, to establish the context and background and so, as I understand it, provide a basis from which to infer that the applicant's state of mind after the police arrival was of the same nature as before the police arrival and, as such, sufficient to constitute an intention to participate in the affray, or to aid and abet those who did. That evidence included that the applicant had thrown a bottle and that he had thrown a punch during a fight. It is apparent, however, that the jury rejected the evidence that the applicant had thrown the bottle, and so found the applicant not guilty on the count of reckless conduct endangering serious injury, and there is reason to doubt the evidence that the applicant had thrown a punch. That evidence was given by only one witness, a Ms Clark, and her description of the man she saw throw a bottle was inconsistent in significant respects with other evidence of the appearance of the applicant on the night. But even if that evidence established beyond doubt that before the police arrived the applicant threw a punch and a bottle,

and in my view it does not, I do not consider that such inference as might be drawn from that would be sufficient to eradicate the reasonable doubt as to the applicant's involvement in the affray which results from the relative paucity of evidence on that subject given by the two policemen.

14 I wish to add only that, although the jury came to a conclusion which in my view was not supported by the evidence, it does not appear to me that that was in any way the fault of the trial judge. To the contrary, if I may say so with respect, her Honour's directions on the elements of the offence were clear and accurate and her summary of the evidence by reference to the issues was admirable.

15 Nevertheless, for the reasons which I have given, I would allow the appeal, and set aside the verdict of the jury on the ground that it cannot be supported by the evidence.

VINCENT JA:

16 I agree that this application for leave to appeal against conviction should be allowed and the conviction set aside as unsafe and unsatisfactory in the circumstances. I have reached this conclusion after consideration of the whole of the evidence and bearing clearly in mind that the jury is not only entrusted with the primary responsibility of determining the question of guilt but has the opportunity of hearing the witnesses.

17 In this case, however, there has been, for practical purposes, no dispute concerning the factual foundation upon which the verdict rested, and the questions which have fallen for consideration relate to the inferences that arise on those facts. In my opinion, in view of the absence of any evidence that would justify a finding that the applicant was directly involved in the affray, and bearing in mind the paucity of evidence that could support inferentially the conclusion that he encouraged or in any way supported those involved in it, the jury should have had a reasonable doubt concerning his guilt of that offence.

NEAVE JA:

18 For the reasons given by Nettle JA, I would also allow the appeal.

VINCENT JA:

19 The order of the Court is:

At a glance

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Judgment (9 paragraphs)

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Cases Cited (1)