R v Campbell [2009] ACTSC 60 (22 May 2009)

Last Updated: 20 July 2009

R v AARON KENNETH CAMPBELL
[2009] ACTSC 60 (22 May 2009)

CRIMINAL LAW - trial by judge alone - aggravated burglary - damage property - assault occasioning actual bodily harm - identification issue - proof of identity required beyond reasonable doubt - finding of not guilty entered

EVIDENCE - identification evidence - witness descriptions of offender - distinguishing feature of offender described as “lazy eye” - accused known to have a “lazy eye” - no identification parade or photo board evidence provided - witness identification of offender by nickname - witness participation in 'homemade' identification parade - insufficient evidence to prove identity of the offender

EVIDENCE - physical evidence - offensive weapon used during commission of offences described as “baseball bat” - baseball bat recovered from accused’s residence - not forensically tested - no forensic evidence to link seized bat to the offence

CO-OFFENDER - alleged co-offender as crown witness - witness previously entered plea of guilty - sentenced on offence - sentenced on statement of facts that named the accused as a co-offender - refusal of witness to name accused as the co-offender

Supreme Court Act 1933 (ACT), s 68C
Criminal Code 2002 (ACT), s 312, s 403
Crimes Act 1900 (ACT), s 24
Evidence Act 1995 (Cth), s 114

No. SCC 276 of 2006

Judge: Higgins CJ
Supreme Court of the ACT
Date: 22 May 2009

IN THE SUPREME COURT OF THE )
) No. SCC 276 of 2006
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

AARON KENNETH CAMPBELL

ORDER

Judge: Higgins CJ
Date: 22 May 2009
Place: Canberra

THE COURT ORDERS THAT:

1. A verdict of “not guilty” be entered in respect of each count on the indictment.

1. The accused, Aaron Kenneth Campbell, was arraigned before me on 4 February 2008 on an indictment dated 9 May 2007 containing the following four counts:

THAT [He] on the 6th day of May 2006 entered a building, namely 60 Eddy Crescent, Florey, as a trespasser with the intent to assault a person inside and at the time of doing so was in the company of another person, namely Kobi Guarini.
AND THAT ... [he] intentionally damaged property, namely two glass windows belonging to Felipe Berguno.
AND THAT ... [he] assaulted James Crane and occasioned to him actual bodily harm.
AND THAT ... [he] assaulted Adam Crane and occasioned to him actual bodily harm.

2. Pleas of not guilty were entered to each charge on 4 February 2008. The accused elected for trial by judge alone. The trial date was set for 10 March 2009.
3. That engaged the provisions of s 68C of the Supreme Court Act 1933 (ACT). That section provides:

(1) 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.
(2) 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.
(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

4. The offences alleged rely on the following provisions.
5. Section 312, Criminal Code 2002 (ACT) (the Code) is engaged by the first count. It provides:

A person commits an offence (aggravated burglary) if the person –
(a) commits burglary in company with 1 or more people.
(b) commits burglary and, at the time of the burglary, has an offensive weapon with him or her.
Maximum Penalty: 2000 penalty units, imprisonment for 20 years or both.

6. “Burglary” is defined by s 311 of the Code, as follows:

(1) ... if the person enters ... a building as a trespasser with intent
(a) ...
(b) to commit an offence that involves causing harm, or threatening to cause harm, to any one in the building
(c) ...

7. Count two refers to s 403 of the Code:

(1) A person commits an offence if the person -
(a) causes damage to property belonging to someone else; and
(b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else.
Maximum penalty: 1000 penalty units or imprisonment for 10 years or both.

8. Counts three and four refer to s 24 Crimes Act 1900 (ACT) (Crimes Act):

(1) 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.

9. The offence of burglary alleged in this case, and the associated offences allegedly following from it arise from the following facts alleged by the Crown in its Case Statement:

In the late evening of Friday 5 May 2006 the accused walked to the premises at 60 Eddy Crescent Florey, where Beatrice Berguno was having a small party with some friends. He walked there with the co-offender, Kobi Guarini, and three other young men. They walked from the premises of the co-offender, 19 Le Souef Street in Florey.
The group stayed at the party for approximately one hour, before being asked to leave by Beatrice Berguno as the accused had melted a corner of a table mat in the living room.
The accused and the rest of the group went into the back yard. The accused then attempted to spray water into the house with a garden hose through a window but was stopped by one of the friends of Miss Berguno, Jamie Baxter. The accused sprayed Miss Baxter with the hose.
The accused and the rest of the group then walked back to the co-offenders house.
Approximately one hour later the accused and co-offender Guarini drove back to 60 Eddy Crescent in a blue car owned by Guarini’s mother. They got out of the vehicle armed with baseball bats. Guarini had covered the lower half of his face with a bandana.
The accused and Guarini then used the bats to smash windows in the bedrooms of Miss Berguno and her father Felipe Berguno (Count 2). They entered the house (Count 1) and then went into the kitchen where they repeatedly struck Adam Crane and James Crane with the baseball bats in the head and body. Both Adam and James Crane sustained gashes to the head which later required stitches (Counts 3 and 4) as well as bruising to their upper bodies. James Crane also had two bones in his right hand broken.
The accused and Guarini continued to attack both Crane brothers with the baseball bats. James Crane managed to escape into the back yard of the premises. Adam Crane retreated to a bedroom and barricaded himself inside. The accused and Guarini attempted to enter the bedroom for some time before leaving the premises and driving away in their car.

10. The activities attributed to Kobi Guarini and the accused would support a conclusion that they returned to 60 Eddy Crescent, Florey (the premises), after having been asked to leave, armed with baseball bats. Kobi Guarini had his face partly covered. The smashing of windows at the house and assaults upon and injuries suffered by Messrs Adam and James Crane would support the second, third and fourth counts whilst that activity would support a conclusion that the accused, if he was the second offender, and Kobi Guarini attended the premises with the intention of causing damage and injury.
11. From the outset, Mr Gill, counsel for the accused, made it clear that the issue in the case was whether it was proved that the accused was the person in company with Kobi Guarini when the events described in the case statement occurred.
12. This is a criminal trial. The Crown, therefore, has the burden of proving the guilt of the accused beyond reasonable doubt. The accused has no onus to prove anything. He is to be presumed innocent until and unless the contrary is proved to my satisfaction as the tribunal of fact, beyond reasonable doubt. Nor can any adverse inference be drawn against the accused if he fails to advance any evidence to support his presumed innocence.

The evidence

13. James Aaron Crane was first called. Mr Lawton, for the Crown, had indicated that the Crown proposed to rely on the description of the second offender, as I will call him, who was with Kobi Guarini as being so strikingly similar to that of the accused that it should be concluded from that and surrounding circumstance that it was he who was the co-offender with Kobi Guarini. The feature of the description of the second offender so relied upon was a “lazy” eye, sometimes referred to as being “cross-eyed”. I will use the former term.
14. I mention that now because James Crane himself had such a condition. That is, perhaps, a reminder that there is no evidence in this trial, nor should it be assumed, that such a physical characteristic is so rare as to be, by itself, a reliable distinguishing feature.
15. James Crane deposed that on 5 May 2006 he went at about 10.30 pm to the premises. There was a party in progress. About one and a half hours later, he was with other persons present at the party, in front of the premises. A person he knew, Kobi Guarini, drove past and “glared out the window” of the vehicle. He recognised the vehicle as being “Kobi’s mum’s”.
16. Later that evening he saw Kobi Guarini in the kitchen of the premises. Mr Guarini came in to the kitchen with a baseball bat. There was a person with him who he believed to be the accused.
17. It should be noted at this point that this was not tendered as evidence identifying the accused as the accompanying person. It was conceded by the prosecution that there had been no compliance with s 114 Evidence Act 1995 (Cth) so as to permit the admission of any visual identification of the accused. Nor did it seem that this assumption was based on any objectively verifiable knowledge on the part of James Crane.
18. He described the second offender as wearing jeans and a hooded jumper and Caucasian in appearance. It appeared to James Crane that he had a lazy eye. The right eye was straight and the left eye turned outwards as he looked at him. The second offender had a goatee beard, “very shaved short” and short hair. That person hit him with the baseball bat he was holding. It struck the top of his head. James Crane fell to the floor and rolled under the table. He was kicked but could not say who kicked him. As he had come into the room he had seen Kobi Guarini striking his brother (Adam Crane) with a bat, Kobi Guarini said, apparently to the second offender, “hit him”. James Crane was then struck. The second offender left the room and a fight continued between Kobi Guarini and the two Crane brothers. James Crane noticed a deep gash to his head.
19. Then the second offender returned to the kitchen still armed with the bat. James Crane then fled to a neighbour’s house. Police were called. He saw Kobi Guarini outside chasing his brother Adam. Kobi Guarini was told by “Tom’s mum” to stop. He did so, getting in his car and driving off. James Crane recalled that both the bats were made of metal. He had seen the second offender only briefly and did not know then who he was. The description of the second bat is different from a bat found in the accused’s bedroom, though that is not a strong point.
20. Under cross-examination by Mr Gill, James Crane agreed that the description he had given police of his co-attacker had not included any reference to a lazy eye. He had told police he did not know who that person was. He had been at school with Kobi Guarini and knew him well. He had described the second offender as wearing a white hooded jumper, five feet 10 inches or five feet 11 inches tall, possibly wearing jeans, apparently 19-20 years of age. He had described him as having a “shaved head”.
21. He also revealed that at about the time of the committal proceedings he had gone with Ms Rita Baxter, the mother of a friend of his, to the house where Kobi Guarini’s mother and the accused lived. He had a look at the accused at his home. He could not be sure it was the same person he had seen in the kitchen of the premises at the time of the offences. Indeed, he considered that the accused looked different in the court room from when he had seen him at the house. He agreed he had expressed at committal some uncertainty about the “lazy eye” of the second offender. He was, he said, “certain” of it but “not 100%”. He was told by other people that it was the accused who was the second offender. He had been “a bit tipsy” at the time of the incident. He agreed that Ms Rita Baxter had been at the premises and appeared to have seen the attackers clearly. She also already knew Kobi Guarini, though not the second offender.
22. It is clear enough that James Crane’s evidence is not sufficient to identify the accused as the second offender though it is not inconsistent with that conclusion.
23. Adam John Crane next gave evidence. He was, he said, invited to drinks at the premises in question along with his brother. As he was about to go back home he saw Kobi Guarini whom he knew well, drive past in his mother’s car and stare at him. He went back in the house.
24. Next he became aware of a baseball bat coming through one of the bedroom windows and the front door was kicked in. He was then in the kitchen. He saw Kobi Guarini “with someone he’d never seen before”. Both had baseball bats, one was silver. He recalled that the second man had what appeared to be a lazy eye. That is, the eyes would seem to focus together but not stay so.
25. One of these men hit him with a baseball bat. He could not say who first hit him but “later on” was aware that it was Kobi Guarini hitting him.
26. He saw the second offender run out of the kitchen, but he returned and hit both him and his brother James when the latter came into the room. James Crane fell down underneath the table where the second offender kicked him.
27. The second offender threatened him with a knife. Adam Crane then ran from the room but was struck again on the back of the head as he did so. He eventually escaped from the house.
28. He had, he agreed in cross-examination, told police that the second offender may have had a bandanna across his face but the feature he recalled was the eyes. He volunteered that the blows to the head which he had received had affected his memory of the event.
29. He had gone also with Ms Baxter to the accused’s home and was given the opportunity to observe him. He agreed he was not sure if it was the same man who was the second offender. Persons who had been at both the premises and at the committal had been, he said, confused because the accused had looked “different” at the committal from the person they had recollected as the second attacker.
30. He was not able to conclude that the accused looked different at court from the appearance of the second offender. He had not seen him. He had given evidence by closed circuit television (CCTV). It was the other people present in the court room and at the premises who had told him they did not think it was the same person who had been the co-offender.
31. Thomas Leslie Castle was next called. He had accompanied Kobi Guarini to the latter’s house in Florey earlier in the evening that the incident occurred. A person he knew as “Aaron” was present there. He had seen that person before. He had short hair, longer on top with a rat’s tail. He had “like crossed eyes, or like one eye was like a bit wandering”. Aaron had gone with him and Kobi Guarini to the premises. Some of them, including “Aaron”, were drinking and playing cards. They were asked to leave after “Aaron” singed the card mat with his lighter. It was Ms Jamie Baxter, he said, who had asked them to leave. They went out to the backyard to “say goodbye”. Somehow “Aaron” squirted Jamie’s handbag with a hose. Nevertheless, they left without further incident and went back to Kobi Guarini’s house in Florey. He got a lift home with Kobi Guarini to his own place.
32. He did not see “Aaron” or Kobi Guarini again that night. He did concede that in the committal proceedings he had said that he had not seen “Aaron” before that night, though it may have been that he saw him later with Kobi Guarini and the latter’s mother and so recognised him as being associated with Kobi Guarini on the evening of the incident.
33. It is apparent that though this evidence made it more likely that “Aaron” was involved in the incident it hardly made it a positive identification. Nor was there any support from any other witness that the accused was at the premises with Kobi Guarini before the incident in question.
34. Constable Constantinos Bobolas was called. He confirmed that Adam Crane had described the two attackers, one of whom he knew to be Kobi Guarini, as each having a bandanna over his face and carrying a baseball bat.
35. Sergeant Craig Faram attended 19 Le Souef Street, Florey, the home of Kobi Guarini, his mother Deborah Anne Borland and the accused. The bonnet of the motor vehicle of Ms Borland was still “hot”. He knocked on the front door. The accused answered it. He noticed that the accused had a “lazy eye”, particularly affecting the left eye. It changed direction as he moved his eyes, out of harmony, I infer, from the other eye. He declined to give his name so Sergeant Faram arrested him for assault occasioning actual bodily harm and aggravated burglary. At the time Sergeant Faram had a reasonable expectation that the accused would be identified as the second offender at the premises.
36. On then entering, Sergeant Faram noted a black bandanna on the floor and, in Kobi Guarini’s bedroom, where he was located, there was a metal baseball bat on the bed. There were sneakers and track suit pants with blood spatter on them. On entering the master bedroom a wallet containing the accused’s identification was found. It may be concluded that was his bedroom. A baseball bat was against the wall behind the door. It was a wooden bat.
37. Sergeant Faram decided not to hold an identification parade believing that there were witnesses who had referred to the person who was to be identified by nickname. Further, the accused’s lazy eye was a prominent feature and would, he thought, be difficult to match in a line-up.
38. I must say that the latter consideration might validly inhibit a live line-up but the “lazy eye” did not show in the still photograph of the accused on the day of his arrest. That mode of identification, that is, photo board, might have been used.
39. In cross-examination, Sergeant Faram agreed that the bat found in the accused’s bedroom had been seized. However, despite the fact that it might, though not a metal bat, have possibly been used in the bloody assaults alleged, it was not forensically tested. Nor were any tests conducted on Mr Guarini’s bat or bloodied clothing. The latter had admitted his guilt from the outset. Sergeant Faram did not interview the accused after arrest as he appeared affected by liquor although the latter did say, when cautioned, “I haven’t done anything”.
40. Constable Luke Bowden had accompanied Sergeant Faram. He added nothing to his account.
41. Sergeant Christopher Bird also attended the premises. He had then gone to the accused’s premises with Sergeant Faram. He identified the aluminium bat found with Mr Guarini. He reported that James Crane had told him that there were three attackers.
42. Mr Lawton then requested that the matter be adjourned to call Kobi Guarini. The latter was, he said, a reluctant witness. That was obvious. Mr Guarini told the court that he had, before this incident had “trouble” with the Crane brothers. He alleged that as he, driving his mother’s car, passed Beatrice Berguno’s house, “They [Crane brothers] threw a bottle at my mum’s car. It missed”. Mr Guarini then drove home. He picked up, he said, “one of my friends and then I went back to the house and home-invaded them”. He went with a baseball bat. He said that he could not remember who was with him. He was drunk that night, he said, and had been hit in the head. Indeed, Adam Crane had given evidence of hitting him hard on the head with a bottle. He thought one or two people had gone with him to the house. He thought he had the only baseball bat.
43. He admitted that he went into the premises, smashed windows and hit each of the Crane brothers with the bat. The other person or persons with him also hit people he thought. He left and dropped those people off. He then went home and went to sleep. He was woken up by police and arrested.
44. It was put to him that he had pleaded guilty to aggravated burglary which charge specified the accused as a person he was then in company with. However, he denied that that assisted his memory as to the identity of his co-offenders. It was then put to him by Mr Lawton, with leave, that by agreeing to the statement of facts tendered on his sentencing proceedings he had represented that the accused had been the person committing those offences with him. His response was:

I pleaded guilty for myself it doesn’t mean I agree to everything in the statement of facts ..... The statement of facts doesn’t mean that I agree with everything in it. I’m saying I done the charge, but I don’t agree with everything that was in the statement of facts.

45. The position he took on the issue as to his co-offender was that the accused was not that person, he said:

... I’m pretty sure it wasn’t him because I don’t think it was ... because I really didn’t know Aaron that well at that time. I’d only just met him and I don’t think that that sort (sic) would happen, it would have been with Aaron.

46. I have to observe that Kobi Guarini was clearly an unsatisfactory witness. I do not accept his evidence that he did not remember who his co-offender was. Nor would his evidence have any weight, in my view, if otherwise the prosecution had adduced evidence capable of establishing the guilt of the accused beyond reasonable doubt.
47. The accused did not give evidence. I remind myself that he was under no obligation, legal or evidentiary, to give evidence and no adverse inference can be drawn from the choice he has made not to testify.
48. Mr Lawton, in final address conceded that no forensic evidence had been found linking the accused with the attacks on persons and property at 60 Eddy Crescent, Florey. He contended, however, that, given the descriptions of the co-offender by the witnesses, the apparent connection between the accused and Mr Guarini and the references to the co-offender, albeit not by the witnesses in court, as “Aaron”, the conclusion can be drawn beyond reasonable doubt that it was the accused who was the co-offender.
49. Mr Gill pointed out that no identification process had been undertaken which would have provided identification evidence pointing to the accused. Further, even allowing for the fact that the accused and the co-offender were each “cross-eyed” neither of the Crane brothers was sure that it was the accused they saw when the attack took place. The evidence of identification by means of the visit to the accused’s home would have been unsafe to rely upon even if the witnesses had purported to identify the accused as the second offender.
50. In my view, whilst the evidence supports a strong likelihood that the accused was the co-offender for the reasons advanced by Mr Lawton, the evidence is not sufficient for that conclusion to be drawn beyond reasonable doubt.
51. It follows that there must be a verdict of “not guilty” entered in respect of each count on the indictment.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 22 May 2009

Counsel for the Crown: Mr Lawton
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr S Gill
Solicitor for the Defendant: Legal Aid Office (ACT)
Date of hearing: 10, 11, 12, 16 and 18 March 2009
Date of judgment: 22 May 2009