R v O'Neill [2004] ACTSC 64 (30 July 2004)

Last Updated: 16 September 2004

THE QUEEN v O'NEILL

[2004] ACTSC 64 (30 July 2004)

CRIMINAL LAW - trial by judge alone - using offensive weapon likely to endanger life intending to hinder apprehension - police officer struck by motor vehicle - whether intent established.

Supreme Court Act 1933, s 68A, s 68C

Criminal Procedure Act 1986 (NSW), s 33

Crimes Act 1900, s 24, s 27

Human Rights Act 2004, s 24

Evidence Act 1971, s 65

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

R v Massey [2000] ACTSC 107

R v Collins [2004] ACTSC 48

R v Tran [2003] ACTSC 53

Hamilton v R (1993) 66 A Crim R 575

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521

Shepherd v R [No 5] [1990] HCA 56; (1990) 170 CLR 573

No SCC 56 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 30 July 2004

IN THE SUPREME COURT OF THE )

) No SCC 56 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

SHANE NORMAN O'NEILL

REASONS FOR DECISION

Judge: Connolly J

Date: 30 July 2004

Place: Canberra

THE COURT FINDS:

1. on the charge that on the 13^th day of February 2004 at Canberra in the Australian Capital Territory Shane Norman O'Neill used against Constable Douglas Inwood an offensive weapon, namely a blue Holden Commodore Sedan YYK173, likely to endanger human life, intending to prevent or hinder his lawful apprehension, the accused guilty.

1. At about 12.30 in the afternoon of 13 February 2004 Constable Douglas Inwood of the Australian Federal Police was on motorcycle duty in southern Canberra, and was struck by a Commodore motor vehicle which had stopped in Barritt Street, Kambah. The car had stopped after being directed to do so by Constable Inwood, who stopped about two to two and a half metres behind the vehicle. After stopping, the vehicle reversed, and struck Constable Inwood's motorcycle, pushing the motorcycle over and onto the Constable causing him to sustain a fractured wrist. The car then accelerated away.

2. The accused, Shane Norman O'Neill, is said by the Director of Public Prosecutions to have been the driver of the car on that day, and he is charged with using an offensive weapon, namely the motor vehicle, against Constable Inwood, likely to endanger human life, intending to prevent or hinder his lawful apprehension. He is further charged with assaulting Constable Inwood occasioning him actual bodily harm.

3. On 29 June 2004 the accused pleaded not guilty to both counts. He had earlier, on 24 June 2004, elected to be tried by judge alone, in accordance with the provisions of s 68A of the Supreme Court Act 1933 (the Supreme Court Act). Section 68C of the Supreme Court Act sets out the procedure to be followed in a trial by judge alone as follows -

68C Verdict of judge in criminal proceedings

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.

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.

4. Similar provisions permitting trial by judge alone exist in other States, and the equivalent New South Wales provision, being s 33 of the Criminal Procedure Act 1986 (NSW), was considered by the High Court in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. The Court there held that the requirement to set out the principles of law and the findings of fact in the judgment would not be satisfied "merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached" (per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ at 263).

5. There are a series of decisions of judges of this Court, beginning with R v Massey [2000] ACTSC 107 per Einfeld J, to the effect that the requirements imposed by s 68C of the Supreme Court Act are essentially the same as those considered in Fleming, and accordingly it is the obligation of a judge of this Court conducting a judge alone trial to state each and every legal principle that is applied in reaching a conclusion as to the accused's innocence or guilt. In R v Collins [2004] ACTSC 48 Weinberg J observed at [5] that -

It follows that I am required to set out the general principles that are applicable to this trial, both as to matters adjectival, and substantive as well as the findings on fact on which I rely.

I adopt this approach.

6. It is important to restate certain general observations concerning the conduct of any criminal trial, and to remind myself that these must be applied in the case of a trial by judge alone. A statement of general principle made by Gray J in R v Tran [2003] ACTSC 53 at [4]- [5] was adopted by Weinberg J in R v Collins, and with respect I adopt the same observations, being -

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 established guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied 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.

THE OFFENCES CHARGED

7. The accused is first charged that -

on the 13^th day of February 2004 at Canberra in the Australian Capital Territory Shane Norman O'Neill used against Constable Douglas Inwood an offensive weapon, namely a blue Holden Commodore Sedan YYK173, likely to endanger human life, intending to prevent or hinder his lawful apprehension.

8. This offence is created by s 27(4)(b) of the Crimes Act 1900 (the Crimes Act) which relevantly provides -

27(3) A person who intentionally and unlawfully-

(c) uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm;

is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

(4) A person who does an act referred to in subsection (3)-

(b) intending to prevent or hinder his or her lawful apprehension or detention or that of another person; or

(c) intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation by the officer;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

9. It is common ground that a motor vehicle may be capable of being an offensive weapon if used deliberately to drive at another person, and so much has been decided by the New South Wales Court of Appeal in Hamilton v R (1993) 66 A Crim R 575. It seems to me to follow that a motor vehicle deliberately driven at another person in circumstances where it is intended to knock that person off their stationary motorcycle amounts to a use that is likely to endanger human life or cause a person grievous bodily harm.

10. The real issue in the present trial is whether the accused, who admits at the trial to having been the driver of the motor vehicle, deliberately or intentionally reversed the motor vehicle into Constable Inwood, and whether, if he did so, he did it intending to prevent or hinder the Constable from lawfully investigating an act, or to prevent or hinder his lawful apprehension or that of another person.

11. He is further charged in the second count that, at the same date and place, he "assaulted Constable Douglass Inwood occasioning to him actual bodily harm". This offence is created by s 24 of the Crimes Act which provides that -

A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

12. The assault is said to be the reversing of the motor vehicle into Constable Inwood's motorcycle, and again the real issue to be tried goes to intention.

13. I should observe that, if this were a trial before a jury, I would instruct the jury that they should first consider count one, and that, if they returned a verdict of not guilty on this count, they should consider count two, but that if they returned a verdict of guilty on count one, they should not consider the second count. This is because it seems to me that the second count, although an offence carrying a considerably lower maximum penalty, arises from precisely the same facts, that is to say the intentional reversing of a motor vehicle into Constable Inwood, as the jury would have found to have occurred and given rise to the conviction for the first count. It is an elementary principle of criminal law that a person may not be put to trial twice for the same offence. It seems to me that the accused is here charged with two separate offences that arise from the one act, that act being the alleged deliberate reversing of a motor vehicle into Constable Inwood. The principle of double jeopardy, described by the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 a deeply ingrained principle in Anglo-American, as well as Australian jurisprudence, finds specific statutory basis in s 24 of the Human Rights Act 2004 which provides that -

No one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

Therefore, if I were to find the accused guilty on the first count, I would not proceed to the second count.

THE PROSECUTION CASE

14. The prosecution case is that on 13 February 2004 Constable Inwood was rostered on mobile general duties as a police motorcycle rider, based at Tuggeranong Police Station. At about 12.20 pm he was directed by Sergeant Lester to attend at an incident at a supermarket at the suburb of Kambah. As he arrived he observed a blue Holden Commodore sedan leave the supermarket precinct by driving out of the entry only lane. This drew the vehicle to police attention, and Sergeant Lester directed Constable Inwood to follow the vehicle.

15. Constable Inwood says that he followed the vehicle left onto Boddington Crescent, and that at the time the vehicle was about 200 metres in front of him. A map of the relevant area was tendered as exhibit A in the trial. The vehicle turned left onto O'Halloran Circuit towards Drakeford Drive. He says that by this time he was about 100 metres behind. They turned left into Drakeford Drive, and then left again back into Boddington Crescent. He says that the vehicle was travelling at about 60 to 65 kilometres per hour, and failed to slow down as it passed through a school zone, before turning right into Barritt Street. He says that as the vehicle turned into Barritt  Street he activated his blue flashing lights, but the vehicle did not respond.

16. Constable Inwood says that after the turn into Barritt Street he moved his motorcycle level with the rear right hand side of the vehicle, and observed a male driver with a goatee beard or moustache. He says he then dropped back behind the vehicle, and sounded his horn, and motioned with his left hand held out at shoulder height for the vehicle to stop. He says that he observed the driver look at him in the rear view mirror, but the driver did not stop.

17. He says that he then sounded the police siren on the motorbike for a second or so, and he observed the driver to look at him. He says the vehicle did not stop, but was gradually slowing, and would have been travelling at about 25 to 30 kilometres per hour.

18. He says that the vehicle then stopped abruptly in the middle of the carriageway. He says that he was able to stop in time, and brought his motorcycle to a stop about two to two and a half metres behind the vehicle. He says that he prepared to dismount the motorcycle, which involved holding his right hand on the brake lever, with his right foot on the ground, and his left foot going to activate the kick stand to enable the large police BMW motorcycle to safely stand. As he was doing this he said "the vehicle reversed at me". He says that he observed the vehicle's reversing lights come on, and heard "a squeal from the tyres". He estimated the speed of the vehicle as it reversed at 25 kilometres an hour. He says the vehicle hit the front of the motorcycle, and pushed him back about one metre, before the bike fell over towards the left, pushing him to the ground. He says that he then "heard a squeal of tyres again, and I could smell burnt rubber". After a couple of seconds he was able to sit up, and observed the vehicle leaving the scene, towards Kambah Pool Road.

19. Bystanders then came to assist Constable Inwood and he was able to use his police radio to advise that he had been hit by a car. He said that he sustained an injury to his left hand, being a collateral sprain to his ligament, and it is common ground that this injury was the result of the collision between the car and the bike.

20. In cross-examination he conceded that his estimate of the reversing speed of the vehicle was merely an estimate based on a split second observation, and was probably wrong, giving a better estimate of 15 kilometres an hour. After the incident Detective Sergeant Neit, team leader of the Collision Investigation and Reconstruction Team performed certain experiments with the vehicle, and says that by applying hard acceleration, the vehicle can reach speeds of between 12 and 15 kilometres an hour in reverse gear over 2.1 metres. I accept this evidence, and I accept that Constable Inwood was in error in respect of his original estimate of the speed.

21. There were independent witnesses to the incident. Mr Bowles is a resident of Barritt Street, and is retired, so he was at home on the day. He says that he heard a siren, and looked out of his bedroom window. He says he saw a car being followed by a police motorcycle, and that outside his home the car came to a stop, which he described as "quite an abrupt stop". He says that he saw the police motorcycle stop about two metres behind the car, and "after the police vehicle, the motorcycle had stopped, the police officer appeared to dismount his motorcycle. At that point in time I saw the vehicle in front reverse back into the motorcycle knocking the motorcycle and the police officer to the road". He said that the car then took off up the road with "quite a screech of tyres". He then went out to render assistance to the police officer.

22. Mr Smart was driving a commercial vehicle down Boddington Crescent turning right into Barritt Street when he noticed in front of him a police motorcycle with its blue lights on and a Commodore sedan. He says that he saw the police motorcycle pull up alongside the driver's side of the Commodore and motion for the car to pull over, but the car did not. He says he saw the motorcycle drop back behind the vehicle, and then both vehicles stopped. He was asked where the car stopped in relation to the road and said -

It wasn't to the side, it was still more or less still in the middle - in that same lane, it wasn't to the side of the gutter.

23. He says he then saw the reversing lights come on on the Commodore and the car "backed into the officer and then the Commodore went, put it, went in forward gear and smoked the wheels up and took off". He estimates that he was about 100 metres behind as he observed this. Mr Smart then drew level with the scene, and placed his vehicle behind Constable Inwood with his hazard lights on. He observed the Commodore "going around the roundabout on the wrong side of the road". Mr Smart noticed that the motorbike was leaking fuel, and he picked it up and moved it to the side of the road.

24. Mr Cope was driving a government vehicle and turned from Drakeford Drive into Boddington Crescent. He says that he observed a dark Commodore sedan being followed by a police motorcyclist. He observed them turn into Barritt Street, and he followed. At this point they were about 300 to 400 metres in front of him, and he observed the police motorcycle's blue lights flash. He says that he then looked at some pedestrians, and then observed smoke and the motorcycle fall to the ground, and the Commodore leave the scene. Mr Cope says that he noticed another vehicle stop and bystanders render assistance, and he decided to follow the Commodore. He says that he followed the vehicle for a period until it was abandoned in a vacant block of land left from the bushfire emergency, and he observed two persons, a male and a female, leave the car. He then returned to Barritt Street and told attending police where the car had been left.

25. Police took a statement from another resident, Mrs Charles, who resided in Barritt Street and made certain observations. Mrs Charles has since passed away, and her statement was tendered into evidence, without objection, pursuant to s 65 of the Evidence Act 1971. Her statement relevantly provides -

Between 12.00 and 12.45 pm on Friday 13^th February 2004, I was sitting at my computer desk in my front room, which overlooks Barritt Street, when I heard a short burst from a police siren, immediately in front of my home. On looking out my window I could clearly see a policeman on motorcycle which had just then come to a stand still. A few metres ahead of the police motorcycle was a car, but this vehicle was mostly obscured from my vision by a tree in my front yard. Within seconds (no longer than 4 seconds) the car reversed with rapid acceleration, I heard a loud crash as the car crashed into the front of the police bike. I then saw the police bike fall to its left side onto the ground and at that time I couldn't see the policeman and believed he must have been underneath the bike. Then, in forward gear the car took off with a screech of tyres and exhaust smoke, heading for the Kambah Pool Road.

26. The prosecution case also established from the owner of the Commodore that the vehicle had been stolen from a car park at the Australian National University some 11 days before this incident, and that the gears and automatic transmission in the vehicle were in good working order, both before and after the vehicle had been stolen and recovered.

27. The prosecution case is that I should be satisfied beyond reasonable doubt that the accused, who is acknowledged to have been the driver of the Commodore, stopped the vehicle only after repeated requests, and stopped the vehicle suddenly and in the middle of the carriageway. There were police photographs taken at the scene shortly after the incident, which clearly show the point at which the impact occurred, identifiable due to the presence of a skid mark where the police motorcycle's front wheel, which had the brake applied, was pushed backwards, and where the Commodore left an acceleration mark consistent with a rapid escape from the scene. I am satisfied from the photographs, and the evidence of Constable Inwood and Mr Smart, who was behind the scene, that the vehicle stopped towards the middle of the carriageway, and not towards the kerb. Photograph 1 in the police photographs clearly shows a police vehicle pulled up towards the kerb, and the tyre marks are clearly more towards the middle of the carriageway than towards the side of the road. It is apparent from the photograph that the road is of sufficient width that a vehicle could remain safely within its carriageway and get past another vehicle parked by the side of the road. It is the prosecution case that the accused deliberately reversed into Constable Inwood in order to prevent Constable Inwood apprehending him or his de facto.

28. Ms Scott was called to give evidence in the prosecution case. She is the de facto of the accused, and is presently serving a period of imprisonment for certain offences, including offences arising from this incident, being riding in a vehicle without authority, and possessing housebreaking implements. This was lead without objection. She said that she was in the car with the accused on the day and that after this incident she made a statement to police. In cross-examination she says that she borrowed the car from a friend "Dave". She says that when the accused stopped the car, "I then informed him that the car was stolen and that I was meant to be in court being sentenced on another offence and I was yelling at him to go and to get me out of there". She says that he "started panicking and he went to drive off and accidentally hit - he went to put it into drive and accidentally went into reverse".

29. In re-examination she acknowledged that in the police record of interview she had claimed that she had been the driver of the car, and that she had stolen the car. She acknowledges that these were lies. She also acknowledges that when first apprehended she lied in relation to her name. She acknowledged that she told those lies in order to protect the accused, but denied that she was lying in court today. She said, "I lied to protect Shane because up until we got pulled over, he didn't know that he was driving a stolen car". She acknowledged that the ignition in the vehicle was broken, and that a screwdriver was being used to operate the ignition in the vehicle, but when it was put to her that because of this the accused would have known the vehicle was stolen, she denied this saying she has a car of her own that must be operated by a screwdriver because "we lost the keys".

30. Ms Scott was not at all impressive as a truthful witness, and was in the classic position of a witness who must say, as she did, that I was telling lies before when I said that I was telling the truth because I wanted to protect the accused, and was prepared to lie to protect him, but I am now telling the truth when I tell you a different version of events that will protect him.

31. The prosecution sought to tender the original police interview with Ms Scott. This was objected to on the basis of relevance, but it seemed to me to be relevant and admissible. In the interview she gives a very detailed account of how she stole the car (Questions 22-24), and correctly said that it had been stolen from the ANU in Civic. In the interview she gave an account, which she acknowledges now to be a fabrication of how the incident occurred. The fabrication is very close to the account that she now says is true, save for the change in driver. She said -

then I like stopped the car and I realised that I was actually meant to be in court that day for sentencing and I like sort of freaked out because I was going to be in breach. And I wanted to take off again but I'd accidentally put the car into reverse and hit the police officer and knocked him off his bike.

32. After the prosecution closed its case, Mr Sabharwal, for the accused, made a submission of no case to answer. This was on the basis that Ms Scott had provided an explanation consistent with innocence, which the prosecution had not been able to rebut, and that there was no evidence on which a jury, properly instructed, could find the requisite intention on the part of the accused to reverse the vehicle into Constable Inwood. It seemed to me that there was adequate material from which a jury could properly draw the inference that the reversing of the vehicle was a deliberate act, and that the worth of Ms Scott's evidence, which was frankly attacked as being a lie, would be a matter that a jury would have to consider. I therefore ruled against the application for a directed acquittal on the basis of there being no case to answer.

THE DEFENCE CASE

33. The accused then gave evidence. He says that he was driving in the Commodore that day with Ms Scott. He says that he recalls being followed by a police motorcycle, and that he "was pulled over". He says that he "pulled over to the side of the road". He was asked by his counsel whether he meant by this the extreme edge of the road and replied -

Yes, where we were coming - where I was coming through was like, like they were doing a bit of work, work on the side of the road it was a 40 zone and so I started pulling over to the left.

34. He said that as he did this Ms Scott "started yelling at me saying the car was stolen". He says that she also yelled that she had to be in court, and that he could not concentrate. He was asked whether he was looking at where the motorcyclist was, and replied -

No I didn't ever - I just pulled over, once I pulled it over I was looking at her and not paying any attention to the bike behind me.

35. He had denied looking at the police officer at any time, which I find incredible. This is directly contradicted by Constable Inwood's evidence, which I accept. I make the observation that his assertion that he was "not paying any attention to the bike behind me" is a clear acknowledgement that he knew the bike was behind him.

36. He said -

Well she just said "go go go" and I sort of put the gear down and I wasn't looking at the back, I wasn't looking at the officer, started the car, it started going backwards and I realised the car was starting to go back, I hit the brakes.

37. He said that he then "just panicked because I realised that I felt the bump, just realised that I was in trouble then so I panicked and put it in forward, took off".

38. In cross-examination, the accused maintained that he pulled over to the side of the road. When it was put to him that the photographs showed the incident occurred when the vehicles were in the middle of the carriageway and not towards the side, he again referred to road works. He was then asked to look at photograph 2 in the police photos, which is taken from the scene looking back in the direction the vehicles had travelled, and it is clear from this photograph, which I am satisfied was taken on the day of the incident, that there were no road works at all being carried on in Barritt Street in the area of the incident. He conceded that there were no road works shown in the photo, but could not explain his earlier assertions, retreating into repeated "I don't remember".

MY FINDINGS ON THE EVIDENCE

39. I am mindful that it would be necessary to properly instruct myself, as I would a jury, about the proper approach to be taken where the prosecution seeks to establish a crucial element in an offence by inference. I would direct myself along the lines recognized as appropriate by the High Court in Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521 and Shepherd v R [No 5] [1990] HCA 56; (1990) 170 CLR 573. I would remind myself of Brennan J's statement of the law in Chamberlain v R (at 599) as follows -

The prosecution case rested on circumstantial evidence. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which the jury finds. The drawing of the inference is not a matter of evidence: it is solely a function of the jury's critical judgment of men and affairs, their experience and their reason. An inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open upon the whole body of primary facts.

40. In this case there is no admission of intention, and the accused has given evidence that he did not intend to put the vehicle into reverse. In order to succeed, the prosecution must prove intent, but it can do that if it can establish sufficient primary evidence from which an inference can be drawn that the reversing was deliberate. The primary facts from which an inference can be drawn must of course themselves be proven beyond reasonable doubt, and once those facts are so proven, the inference can only be established if it is the only rational inference in the circumstances of those primary facts.

41. The primary facts here are that the accused formed an intention to flee from Constable Inwood and then reversed his car rapidly into the police motorcycle. The Crown says the only rational inference in these circumstances is that he intended to ram the motorcycle to make his escape possible.

42. I formed the clear impression that the accused's assertion that he pulled over to the side of the road was a lie, and that, confronted with the evidence that had been lead in his presence in the prosecution case that the incident occurred toward the middle of the road, he invented the story that he pulled over as far as road works permitted. There was no evidence of any road works, and I am satisfied that this is a lie.

43. His assertion that it was an accident is the same assertion as originally made by Ms Scott. She acknowledges that was a lie, but now supports his version. He says that he intended to flee, but accidentally put the car into reverse.

44. The accused maintained that he did not know the vehicle was stolen, despite it being operated by means of a screwdriver jammed in the ignition. He says that Ms Scott told him that the vehicle was borrowed. I do not accept his explanation. I am satisfied that he was aware that the vehicle that he was driving, with the ignition made operable only by means of a screwdriver jammed where the key should be, was stolen. This was an incentive for him to avoid being stopped by police. He gave evidence that at this time he was on parole. Being stopped driving a stolen car would have obvious implications for his parole. In any event, on his case, he became aware that the car was stolen when he stopped. Ms Scott also gave evidence that, as a consequence of their being stopped in this vehicle, she was charged with possession of housebreaking implements, which could have been another reason for him to wish to avoid being arrested. It is both his and Ms Scott's evidence that Ms Scott told him, at the time he stopped, that she was in breach of a court date and this would, if true, and I am prepared to accept that this is true, be another reason for him to wish to avoid being stopped by police. It is indeed acknowledged that he intended to flee and it is his case that, in his panic at deciding to flee, he accidentally put the car into reverse.

45. There is an inherent improbability, as counsel for the Crown argued in his address, at the story that the accused, in an old family sedan that was stationary, intended to flee from a powerful police pursuit motorcycle, which was faster, more manoeuvrable, and radio equipped. The only way he could realistically hope to avoid apprehension would be if the motorcycle was disabled and the way to disable the motorcycle would be to reverse into it.

46. I am satisfied that he stopped his vehicle abruptly in the middle of the road. I am satisfied that he lied about pulling to the side, which clearly did not occur, and that he further lied by saying there were road works, which there clearly were not. I am satisfied from all of the evidence that he stopped in the middle of the carriageway, and I can draw the inference from this that a decision to suddenly stop was in the hope that it may have caused the motorcyclist to fall, providing him with an opportunity to then evade apprehension. I am satisfied that, when the police officer stopped behind him and sought to alight, the accused put the vehicle into reverse with the intention of knocking the police officer off the motorcycle so that he could evade lawful apprehension. Given his stated intention to evade apprehension, seems to me is the only way he could have hoped to avoid the police.

47. I am satisfied that there is adequate material proven to the relevant standard to allow me to draw the inference of intention. I am satisfied that there is no rational hypothesis consistent with innocence. I am satisfied that the hypothesis presented in the defence case is based on a series of lies. I am satisfied that the accused, on parole and in a stolen car, that car containing housebreaking implements, and with his de facto in breach of a sentencing date, determined to avoid capture. He stopped suddenly, and then reversed with the intention of knocking the police motorcyclist over, and then fled the scene at speed. I am satisfied that he then drove at speed around the suburb of Kambah, eventually abandoning the stolen vehicle in a vacant block, and escaped on foot. Unfortunately for him an alert resident followed him, and was able to advise police of where the car was, leading to the apprehension of him and Ms Scott shortly afterwards.

48. I am satisfied beyond reasonable doubt that the prosecution has proven both an intentional use of an offensive weapon likely to endanger human life or cause grievous bodily harm, being the deliberate reversing of the Commodore sedan into the police motorcycle while Constable Inwood was in the process of alighting from the motorcycle, and that this action was done both intending to prevent his lawful apprehension, and the apprehension of another person, being Ms Scott, and intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation by the officer.

49. I accordingly enter a verdict of guilty on the first count on the indictment.

50. For the reasons previously given, it seems to me that a verdict of guilty on the first count should be in full satisfaction of the indictment, as the elements said to make out the second charge, being the deliberate reversing of the Commodore sedan into the police motorcycle while Constable Inwood was in the process of alighting from it, are the elements that I have found to have been proven and to have led to a finding of guilt on the first count.

51. I therefore direct that a verdict of guilty be entered in respect of the first count only.

52. It seems to me appropriate to make the observation that a number of Canberra citizens acted very commendably in both coming to the assistance of Constable Inwood after observing this attack on a police officer and providing assistance to investigating police that lead to the apprehension of the accused. But for this assistance, the accused may have succeeded in evading arrest after disabling Constable Inwood and dumping the stolen vehicle some distance from the scene of this offence and fleeing on foot.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 30 July 2004

Counsel for the Prosecution: Mr J Lawton

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr J Sabharwal

Solicitor for the Defence: South Eastern Aboriginal Legal Service

Date of hearing: 21 July 2004

Date of judgment: 30 July 2004