R v Coath [2009] ACTSC 89 (22 July 2009)

Last Updated: 1 September 2009

R v ALICE COATH
[2009] ACTSC 89 (22 July 2009)

EX TEMPORE JUDGMENT

No. SCC 275 of 2006

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

IN THE SUPREME COURT OF THE )
) No. SCC 275 of 2006
AUSTRALIAN CAPITAL TERRITORY )

R

v

ALICE COATH

ORDER

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

THE COURT ORDERS THAT:

1. A verdict of not guilty be entered on the grounds of mental impairment.
2. The accused submit to the jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal, to enable that body to make a mental health order.

1. This is a criminal trial held by judge alone, it is without a jury. The Supreme Court Act 1933 (ACT) provides that such a trial is to be held, so far as possible, as if it were before a jury, the judge being the jury.
2. For that reason I need to remind myself that the Crown brings this accusation and accepts the burden of proving it to the standard of beyond reasonable doubt. I remind myself that Ms Coath is entitled to the full benefit of any presumption of innocence. That includes, not only the burden on the Crown to the extent I have mentioned, but also the fact that any evidence given must be construed with that warning in mind.
3. The offence which is charged is that of aggravated robbery. Robbery is the stealing of property, in this case it is alleged to be $20, by means of force or the threat of force. That threat of force will be constituted by the threat, whether express or implied, to inflict harm on the person who holds the property, in order to persuade them to give it up. In this case the aggravation is the presence of a weapon, which is alleged to be a syringe containing a needle at the end of it.
4. First, I note that in this trial Ms Coath has given evidence. She is not obliged to do so, just as she was not obliged to speak to police. No adverse inference can be drawn from a failure to give evidence or a failure to give an account to police. However, in this case, as I say, she has given evidence, and her evidence must be considered in a similar way to any other witness giving evidence. That includes a consideration of whether her evidence is in conflict with the evidence of any other witness, and if it is so, what might account for that.
5. I bear in mind that people may see things in different ways. This is particularly relevant when I look at the evidence of Ms Bajwa and Mr Murray. I appreciate that some are in a condition which may make their powers of observation less reliable than that of others and I take those matters into account when I come to assess the evidence which was given.
6. I turn first to the evidence of Mr Scott Murray. He gave an account of being in Garema Place. He said he was sober. He saw a person, obviously in context, Ms Coath. She was talking to herself and hunched down, about a metre away from a window. She was not sitting on a bench but was crouched on the pavement. He said to Ms Bajwa, “Watch out for this woman, I think she’s a bit crazy.” Now it cannot be known whether that was heard by Ms Coath or not. It may be that she heard something.
7. Ms Bajwa withdrew $20 and then turned to leave the vicinity of the ATM. According to Mr Murray’s account of it, Ms Coath said, “Are you calling me a pig, you fucking cunt?” Nothing had been said directly to her by Mr Murray, at that point. He said, “No, we’re not trying to do anything to you”. It may be that that was said in what Ms Bajwa described later as a “Cool tone.” Ms Bajwa, according to him, says something to the effect of, “No we’re not, you’re beautiful”, which might have been taken as being, I suppose, regarded as ironic or not particularly literally meant. Anyway the woman, Ms Coath, then said “Give me your money or I’ll stab you with a fucking dirty fit” and had a syringe without a cap in her left hand.
8. Mr Murray said he encouraged Ms Bajwa to hand over the money. She did so. He then described leaving the scene. I appreciate that there is some difference in the account between the way in which the scene was left. He also says that he called police. We have a record of the conversation that Mr Murray had with police emergency. The transcript of that conversation has been tendered and indeed there can be no doubt about what was said there.
9. He started by saying, “Hi. Someone just tried to stab me with a syringe and she’s getting away. I want you to charge her.” He further said “I think she robbed us as well. She robbed fucking $20 off us”. He then gave a meticulous identification of the person obviously intended to be Ms Coath. In the course of that conversation he said, she was holding a syringe full of blood, that “she tried to stab us”.
10. There is further conversation about the whereabouts of Ms Coath. It is probably not necessary to have regard to any further part of it in any express way, suffice to say, that the police did catch up with Ms Coath and did take her into custody.
11. In cross-examination Mr Murray denied that he had used the words “junkie” or “psycho”. He did, he said, say “a bit crazy”. He did describe Ms Coath as aggressive and paranoid, though he denied using any other abusive language.
12. He did expressly say that he thought there was a milky-white substance in the syringe, not blood. It was pointed out to him that he had said the latter previously. He said that he was mistaken, and that he did not actually see blood in the syringe.
13. He did seem to me, I must say, to be an honest witness. He did explain the anomalies that certainly existed in his evidence, and did so, it seemed to me, without any reservation or equivocation.
14. Ms Bajwa gave evidence that was, as has been pointed out and addressed, not entirely free from inconsistencies. Nevertheless she agrees that Ms Coath was squatting on the ground. She says she did not address her. She withdrew $20. She recalls Ms Coath saying something to the effect “Why did you say that? What did you say?” but she could not actually recall what then followed. She described a syringe being held out.
15. As I say, Ms Bajwa could not really describe anything being said except “Give me your money”. She said the syringe was held tip out, thumb out. She saw a white liquid in it and she saw a cup in Ms Coath’s other hand. Again, everybody seems to agree upon the cup in the other hand.
16. She denied the scenario that Mr Murray gave Ms Coath $20 to go home. She did agree in cross-examination that she had said to Ms Coath before the demand for money “We weren’t speaking to you”. She says she saw the syringe quite clearly with the white fluid in it. Now she, of course, was not responsible for the statement to police made by Mr Murray about the blood, so whether she originally thought there was blood in the syringe, or not, is not revealed by the evidence.
17. Constable Horrocks found Ms Coath a little later. He found the syringes in her bag which have been photographed and placed in evidence. It is quite clear that there is one syringe which can be described as blood-filled, in the sense that about one-third of it seems to have a red substance in it. The other is a syringe which may or may not have any white liquid in it, but certainly does not contain any red liquid. Constable Ludwin described Ms Coath as “incomprehensible” and recalled several uncapped syringes.
18. That was effectively the case for the prosecution. As I say, the accused was not obliged to give evidence but did so, in any event. Her evidence must be evaluated as it would be with any other witness, bearing in mind, of course, that the prosecution bears the onus of proving the case beyond reasonable doubt. Ms Coath does not and did not have to explain anything or offer any account.
19. Ms Coath’s recollection was that there had been a transaction at an ATM near where she was sitting on a bench. A woman withdrew money. The woman appeared to be nervous of her, so Ms Coath moved further away, but, she says she sat on a bench not the ground.
20. Then a man and a woman came up. This is clearly a reference to Mr Murray and Ms Bajwa, and she says they called her a “junkie” and a “piece of shit” and were glancing at her as this was said. As to which of them said that, she says that it was the female person.
21. She asked why she “should be subjected to this shit for missing a bus”. She described the woman in question as being drunk and yelling at her and calling her names. She said Mr Murray seemed to be trying to reason with Ms Bajwa and received some abuse, she recollects from Ms Bajwa about why he was being conciliatory towards Ms Coath.
22. She recounts a conversation where, in effect, Mr Murray says, “Well why don’t you go and get a cab?” she replies that she can’t afford to waste money on taxis. She did not actually say that she did not have money, but rather that she could not afford to waste it on taxis. He offered to give her money to leave. She accepted the offer. He offered, and gave her, a $20 note and told her to get a cab. She did not get a cab from the cab rank nearby because there were no cabs there, instead she decided to go further away, apparently up towards Braddon, in order to find a cab there.
23. She did concede that she had used heroin. She agreed that she was “stoned” as she put it. She had further heroin in a syringe and while she was going towards the BP service station she did attempt to give herself a further dose of heroin, however, could not do so. I do not know quite what she went through in order to do that. Maybe she did attempt to inject, maybe that is why one of the syringes has blood in it. That is not clear, nor is it necessary that it be so.
24. She saw police at the service station, she spoke to them, and was subsequently arrested and charged. She gave an account of having taken shopping to the St Vincent de Paul bus or food van. There was some mix-up about that, which was to explain the reason she was still in Garema Place.
25. She denies showing a syringe or demanding money. She thought that the syringe which she did have, described as “the one with the bent shaft”, that is the bent plunger, was in a pocket, but she was not exactly clear about that. She did say that she would not have flashed any syringe that had heroin in it because that would be wasting or potentially wasting the heroin which was worth, she said, $100.
26. In addition the report of Dr Thompson was tendered. I do not need to refer to that anymore than to say both counsel are agreed that it would, in the event of an adverse finding on the question of what actually happened, warrant an acquittal on the grounds of mental impairment.
27. I accept that it is not a mere question of what is more likely to be the accurate account of what took place. I must be satisfied beyond reasonable doubt that the account given by Mr Murray and Ms Bajwa is accurate, at least, so far as the essential part of it is concerned. That essential part is that Ms Coath demanded money from them and presented a syringe as a menace in order to achieve that objective, whether accompanied by words that made that expressly clear or whether accompanied by actions that made that intention clear is not, of course, an essential element of the offence.
28. In my view there are a number of matters which do tend to support the account given by Mr Murray and Ms Bajwa. The first, obviously, is the text of the telephone call to police operations through triple 0. Mention is made there of not only robbery but also of the presence of a syringe. I do not think there is much significance in the phrasing of the statement that “I think she robbed us as well”, as people do sometimes speak that way even though they are saying what they are certain occurred.
29. He said she “Tried to stab me with a syringe”, no doubt that was what Mr Murray was suggesting that he feared would occur and that was the reason why he handed the money over. In terms of making that statement, as it was during what was conceded to be an emotional phone call to police operations, he may well have exaggerated.
30. In his evidence he did concede, quite frankly I thought, that his description of the syringe could be regarded as an exaggeration and blood in the syringe was not something he had actually seen. He said that what he does now recall is that it contained something that seemed to be white. That could be because there was nothing in it, because the shaft of the plunger is white, or maybe it was because there was white liquid. That is not entirely clear nor does it have to be.
31. The question is whether that event took place. I appreciate that Ms Coath has said that it did not, however, I also bear in mind Ms Coath’s state of mind at the time. Both her underlying mental state and the fact that she was, as she put it, “nodding” make it quite likely in my opinion that she was imagining at least most of it. She was obviously aware of some things that were going on about her, however, I am quite satisfied that she did not hear those things which she said she heard. I accept that she imagined them. In other words she believed that what she heard was what they might be saying about her, but, I think that was a reflection of her underlying paranoia.
32. In essence, it seems to me, that she did demand money. Whether it was Ms Bajwa or Mr Murray, as she thought it was, who handed her the money, I am satisfied it was Ms Bajwa and that the $20 was handed over in response to a perceived threat of attack with a syringe.
33. That makes out the actus reus of the charge of aggravated robbery. That, of course, does not dispose of the matter as it is quite clear from Dr Thompson’s report that Ms Coath was in no fit state either to recollect accurately what had happened or to have formulated the intention of doing that which the law forbid.
34. In other words she was not in a fit state to have the mens rea, as we would put it, for the commission for the offence, that is, to act both deliberately and intentionally with an understanding of the consequences of what she was doing. Quite clearly she was not. That inability arises from the mental impairment which Dr Thompson has so fully described in her report.
35. In consequence I enter a verdict of not guilty on the ground of mental impairment.
36. I have regard to section 308 of the Crimes Act 1900 (ACT) and to the fact that Ms Coath has been on bail for some considerable time without there having been any adverse report.
37. There has certainly been no suggestion that during that time her health and safety was likely to be substantially impaired, nor that she was likely to be a danger to the community. In addition if I have regard to the circumstance of the offence I certainly do not reject her perception that she thought she was being offered money, and that she thought she was being insulted, however as I say, I think those were more expressions of paranoia than reality and I think that symptom of illness has been controlled.
38. I consider therefore it to be a reasonable option for her to be released into the community. That option is open, and it is a more appropriate one. I direct that the accused submit to the jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal, to enable that body to make a mental health order.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 3 August 2009

Counsel for the Crown: Mr A Doig
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: 22 July 2009
Date of judgment: 22 July 2009