New South Wales Supreme Court CITATION : R v Wilkes [2001] NSWSC 730 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70101/98 HEARING DATE(S) : 14/08/01-22/08/01 JUDGMENT DATE : 29 August 2001 PARTIES : Regina Stephen John Wilkes JUDGMENT OF : Hidden J at 1 COUNSEL : M Cunneen (Crown) T Golding (Wilkes) SOLICITORS : Solicitor for Public Prosecutions (Crown) Many Rivers Aboriginal Legal Service (Wilkes) CATCHWORDS : CRIMINAL LAW - murder - trial by judge alone - question of identity of offender DECISION : Verdict of Not Guilty THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Wednesday 29 August 2001 70101/98 Regina v Stephen John Wilkes Reasons for Verdict 1 HIS HONOUR: The accused, Stephen John Wilkes, has been tried before me, sitting without a jury, upon a charge that he murdered a man called Thomas Dungay at a caravan park at Kempsey in the afternoon of the 22 September 1998. He is alleged to have beaten the deceased severely about the head and body with a piece of wood, such that the deceased had already died from the head injuries when ambulance officers and police arrived at the scene. 2 That morning the accused and a number of others gathered at one of the caravans in the park, caravan 40. Most of the group, including the accused, were Aboriginal. Among those present were the accused's two brothers, John and Robert Wilkes. At some later time the deceased, who lived in caravan 5, joined them. 3 The accused did not give evidence but he gave an account of the events of that afternoon to police in an electronically recorded interview. A number of people who were in caravan 40 gave evidence, as did several other eye witnesses. As one would expect, given the vagaries of human observation and recollection, there is a measure of conflict in this evidence. Particularly is this so of the testimony of the people in van 40, most of whom, like the accused himself, had had more than enough to drink. However, a number of facts emerge clearly enough from the evidence and, indeed, it would appear from the final addresses of counsel that these are common ground. 4 After he arrived at caravan 40 the deceased got into an argument. It is not entirely clear who the initial participants were or what the argument was about, but nothing turns on it. The deceased produced a knife. At about this time the accused became involved in the altercation, and the deceased menaced him with the knife. According to John Wilkes, the deceased was waving the knife around and threatening to kill whoever was standing in front of him. He punched the accused, causing him to fall and to suffer a bleeding nose. 5 Another man disarmed the deceased, who left caravan 40 and ran back to caravan 5. He was pursued by three men. Two of them were John Wilkes and a fair skinned man named Scott Payne. The third man, who was Aboriginal, was carrying the piece of wood to which I have referred. In fact, it was a fence picket which had been used as a garden stake for a shrub immediately outside caravan 40. It is that man who beat the deceased to death behind caravan 5. The central issue in the case is whether that man was the accused. 6 According to John Wilkes, it was. However, his evidence must be approached with circumspection. He claimed to have witnessed the killing from a position about thirty to forty metres away, when it is clear that he himself was behind caravan 5 at that time. In addition, he gave police an entirely inconsistent account, which did not implicate the accused in any way. The matter turns primarily upon the evidence of some independent and sober eye witnesses, together with some other evidence to which I shall turn in due course. 7 The resident of caravan 39, next to caravan 40, was Karen Ridgeway. The deceased's caravan, number 5, was more or less at the opposite end of the park. About midway between them stood the house of the park's proprietors, Pieter Slappendel and his wife, Sandra Slappendel. Graeme Clenton lived in caravan 4, next to the deceased's. All four gave evidence. Their honesty is unquestioned. Ms Ridgeway and Mr and Mrs Slappendel gave evidence in an intelligent and dispassionate manner. Mr Clenton's evidence was vivid and emotional, suggesting that what he witnessed has left emotional scars which have not yet healed, but there is no reason to doubt the accuracy of his account of material matters. 8 Ms Ridgeway heard the sound of an altercation in caravan 40 and went to investigate it. As she approached the caravan, the deceased emerged from it. She saw him pursued by two Aboriginal men, neither of whom she knew. She did not notice a third man. One of the Aboriginal men was carrying the fence picket and her description of that man was consistent with the appearance of the accused. It seems that Robert Wilkes was the only one of the three brothers whom she knew. He, she said, was still in the caravan. 9 Mrs Slappendel was at home and she was able to observe the pursuit of the deceased by the three men. She said that she recognized the man carrying the fence picket as a man who had been pointed out to her about twelve months earlier as the accused. He was wearing a red checked shirt. Her view of the beating was obscured by caravan 5, but immediately after it the three men emerged from behind the caravan and walked towards the house. She approached them and asked them what was going on. The man she believed to be the accused, who was still holding the fence picket, said, "He pulled a knife on me." One of the other men said, "Yeah, he cut him on the hand." At this point, I should observe that there is no evidence that the accused had such a cut (although it seems that John Wilkes suffered a minor cut to his hand.) 10 Mr Slappendel was mowing the lawn some fifty metres from caravan 5. He did not see the deceased being pursued but he saw him standing behind caravan 5 gesticulating, as if in an altercation. He then saw a large Aboriginal man strike him a number of times with the fence picket. Although he knew the accused, he did not recognize him as that man at that moment. He saw the assailant and the other two men, who had been obscured from his view by the caravan, walk to where they were met by his wife. He recognised John Wilkes and "suspected" that the man carrying the fence picket was the accused. He also said that that man was wearing a red checked shirt. He saw him throw the piece of wood into the garden next to the office. The three men then walked in the direction of caravan 40. 11 Mr Slappendel went to attend to the deceased and had his wife call the ambulance and the police. A police officer arrived very promptly and asked Mr Slappendel what the deceased's assailant looked like. Mr Slappendel walked in the direction in which the three men had gone, and he said that he saw them outside caravan 40. There were a number of people there but the three men were standing apart from them. He was then certain that the man he had seen with the fence picket was the accused, whom he observed to have removed his shirt. The three men were arguing, as he put it, "over who had done what and who had done what first". He assumed them to have been speaking of the incident which he had just witnessed. About five minutes had elapsed since his seeing the men speaking to his wife. 12 A little later, Mr Slappendel saw the accused arrested at the scene and observed him still to be bare-chested. From the police evidence, however, it is clear that the accused was then wearing a blue and white striped, collared T-shirt. 13 Mr Clenton witnessed the beating of the deceased from the rear window of caravan 4. At the time of the attack he could see the arms of the assailant, particularly the right arm which was wielding the fence picket. That man's skin colour was consistent with his being Aboriginal. He saw him walk away after the beating and, although he could not identify him, he observed that he was a big man. Reconciling his recollection in this Court with his statements to police shortly after the event, it would seem that he could see the bare arms of that man as he walked away and the man was wearing a red checked upper garment, either a singlet or a short sleeved shirt. At no time, apparently, did he see the other two men. 14 The only independent witnesses purporting to identify the accused as the attacker are Mr and Mrs Slappendel. I am mindful of the dangers of identification evidence and, forthright and honest as it was, I must examine their evidence carefully to assess its accuracy. 15 Mrs Slappendel had never met the accused but, as I have said, her evidence was that he had been pointed out to her about twelve months earlier, apparently as a participant in some disturbance at the caravan park. She had seen that man on two or three occasions since, when he visited the park, although she said that those occasions were no more than "fleeting glances". This was the first occasion she had ever spoken to him. 16 She said that, from her first sighting of him, she had been impressed by his large, solid physique. This, I suppose, is very much in the eye of the beholder. I only saw him seated in court, but during the videotaped interview he was asked to stand so that an assessment might be made of his height and build. He is a little over six feet tall and I would agree with his own description of his build as "medium". More importantly, Mrs Slappendel described the hair of the man she believed to be the accused on the day in question as blonde but darker at the roots, apparently having been dyed. It is true that the accused's hair, which was grey, had been dyed but it was a dark colour. It can be seen in photographs taken of him after his arrest and was described by one of the police officers as "a maroony brown colour" with "grey through it". Although the photos also depict facial stubble and a prominent moustache, Mrs Slappendel did not notice those features. Nor did she observe his bleeding nose. 17 She did not know Robert Wilkes but she said that she knew John Wilkes "pretty well", having seen him as a frequent visitor to the caravan park over some years and having spoken to him on a number of occasions. Nevertheless, when shown a photograph of Robert Wilkes, she initially did not recognize the person depicted but then said that she believed that it was John Wilkes. Of course, there may be some similarity between the two men as they are brothers. I did not see Robert Wilkes, as the Crown was not able to secure his attendance at the trial. 18 These matters must cause one to question the reliability of her assertion that the man she saw with the fence picket was the man who had earlier been pointed out to her as the accused. Moreover, there is now no way to test the accuracy of the identification of the accused on that earlier occasion, because Mrs Slappendel had no firm recollection of who it was who pointed him out. She believed that it was Karen Ridgeway, but that could not be so because, as I have said, Ms Ridgeway did not know the accused. 19 Mr Slappendel said that he had known the accused for seven or eight years as a visitor to the caravan park. He had spoken to him on many occasions, although their conversations had never been more than "a few words". His description of the height and build of the man he saw with the fence picket was consistent with the appearance of the accused. He said that the man's hair "looked like he had put blonde tips or streaks through it a bit". He was asked no more about this, and it is difficult to determine how consistent that description is with the appearance of the accused's hair at the time. Mr Slappendel was better acquainted with John Wilkes, whom he had known longer. He also had never met Robert Wilkes. 20 His evidence also raises concerns about the accuracy of his identification of the accused on the day in question. Like his wife, he made no mention of the accused's facial hair. He said that he had last seen him about three months prior to the incident. In fact, the accused had travelled to Kempsey from Sydney the night before and had not been in the area for about six months. In the light of the police evidence, I am satisfied that he was mistaken when he said that the accused was not wearing a shirt at the time of his arrest. Equally, he may have been mistaken when he said that the accused was bare-chested outside caravan 40, or it may be that the man he saw at that time was not the accused. 21 Perhaps more importantly, there is a danger that his seeing the accused arrested caused him unconsciously to assume that he was the man whom he had seen earlier. Despite his prior contact with him, he was not confident until he saw the three men outside caravan 40 that the accused was one of them. He had gone to that caravan in response to a question by a police officer about the appearance of the offender, no doubt expecting that he would find him in that vicinity. He may well have assumed that the three men he then saw were the same as those he had seen earlier, given that the group comprised two Aboriginal men and a fair skinned man and included John Wilkes, whom he knew well enough. Certainly, he assumed that the conversation he heard between those men related to the incident he had seen. As he put it in evidence, "I wouldn't think they would be talking about any other fight from what I had just seen a few minutes earlier". Of course, he had no knowledge at that time of the earlier altercation in caravan 40. His evidence also suggests that it was the presence of this man in the company of John Wilkes, at the time they were speaking to his wife, which initially led him to suspect that it was the accused. 22 Mr and Mrs Slappendel did not say whether the shirt the assailant was wearing was short-sleeved but, in the light of Mr Clenton's evidence, I am satisfied that it was. That being so, it is significant that none of the three witnesses described the accused's tattoos which, from the photographs of him, appear to be prominent and to cover both forearms. In fairness, it should be said that Mr Clenton was the only one of the three witnesses who was specifically asked about them. 23 As I have said, the shirt which the accused was wearing at the time of his arrest was different from that which the witnesses described. The Crown prosecutor suggested that the accused had changed his shirt after the incident, perhaps because it had incriminating blood stains, and that this explained Mr Slappendel's evidence that he was bare-chested when he saw him outside caravan 40. She referred to scientific evidence that the shirt the accused was wearing at the time of his arrest was stained with blood which was neither his nor the deceased's, despite the fact that his nose was bleeding and there were blood stains on his jeans which proved to be his own. 24 On the other hand, I have already questioned the reliability of Mr Slappendel's evidence that the accused was without a shirt at caravan 40. Police searched for a red checked shirt, without success. Of course, if the accused had changed his shirt he could have done so only by exchanging it for someone else's, as he did not live in the caravan. Nevertheless, from the photographs it appears that the blue and white striped shirt fits him. The presence of the unidentified blood stains on that shirt might be explained by the evidence of one witness that, prior to his arrest, he was cuddling other people who had been in the caravan. At the time of his arrest he was also wearing a baseball cap, to which none of the witnesses referred, although the evidence does not disclose whether he had it on earlier. 25 Mr and Mrs Slappendel frankly acknowledged that they had talked together about what they had seen, including their belief that the assailant was the accused, before they made their statements to the police. The police did not conduct any formal identification procedure, such as an identification parade or a photographic array. In all the circumstances, I am left with a sense of unease about the identification evidence. It is necessary, then, to turn to the other evidence in the case and to determine what conclusions can fairly be drawn from the whole of the evidence. 26 It is also common ground that the killing of the deceased was triggered by his behaviour during the altercation in caravan 40, so that the perpetrator must have been one of the men who had been in that caravan. An ambulance officer who attended the scene after the attack spoke to a man whom he described and who, it was accepted, must have been the accused. The accused said, "I hit him". Asked what he had hit the deceased with, he said with his hands. He added, as the witness put it in evidence, "You'd have done the same too if he had done what he threatened to do to his family". The witness thought that he also said that he didn't mean to kill him. 27 In the recorded interview with police, the accused described the argument in the caravan, the deceased producing a knife and he himself being hit. He said that he did not know who hit him, but it is clear from other evidence that it was the deceased. He said that he was "sort of in a daze and knocked out". He believed that someone had helped him up and that he walked to the area where the deceased was killed, although he had no clear recollection of this. He said that he was intoxicated, having been drinking since around 8am. He denied striking the accused with the fence picket, although he added, "… if he deserved to go in there to hurt, to hurt your family, he deserved to get it….". He described himself as "very protective … of my family …". 28 Detective Senior Constable Rutledge saw the accused some time after 4pm that day at Kempsey Police Station, and he described him as "slightly to moderately affected by alcohol". He said that the accused appeared much the same at the time the recorded interview commenced a little after 7pm, and I find this consistent with my own viewing of the video tape. However, he had earlier complained of pain in his ribs and left arm and was taken by police to Kempsey District Hospital, arriving there at 4.45pm. Hospital notes describe him as "heavily intoxicated" . I think it likely that he was substantially affected by alcohol at the time of the incident and, in particular, when he spoke to the ambulance officer. 29 This is significant in assessing the weight to be given to the evidence of that conversation. On the face of it it is incriminating, but it is curious that the accused would claim to have struck the deceased only with his hands when it was obvious from the injuries that that could not be so. It is possible, as his counsel submitted, that he was referring to the altercation in caravan 40. Although the accused did not say in the recorded interview that he hit anyone at that time, one of the witnesses (Jodie Doyle) described him and the deceased as "sort of fighting". Ms Ridgeway believed that there was fighting inside the caravan as she could hear a lot of noise, including "things breaking", consistent with there being an all-in brawl. As I have said, the ambulance officer was not sure that the accused had said that he did not mean to kill the deceased. In all the circumstances, I am not satisfied that what the accused said to that officer amounts to an admission of the killing. 30 The same must be said of the accused's assertion in the recorded interview to the effect that the deceased deserved what happened to him because he had threatened the accused's family, of whom he was protective. At the relevant time the accused might well have believed that members of his family who were present in the caravan were in danger, given John Wilkes' evidence that the deceased was waving the knife around and, effectively, threatening everybody with it. 31 It will be seen, then, that there are four major strands to the Crown case: the accused's motive to attack the deceased, given what had happened in the caravan; John Wilkes' direct evidence that he had done so; the identification evidence; and evidence of the accused's partial admissions to the ambulance officer and to police. As the Crown prosecutor rightly pointed out, these strands of evidence should be viewed not in isolation, but as a whole. She argued that each lent support to the other, so as to establish the accused's guilt to the requisite degree. 32 There is no doubt that there is a substantial Crown case but, upon careful analysis, it is not the "overwhelming" case for which the Crown prosecutor contended. Who else, she asked rhetorically, could the assailant have been? Cross-examination in the Crown case explored the possibility that it was John or Robert Wilkes. I think that unlikely, given that Mr Slappendel knew John Wilkes well enough to distinguish him from the man he saw wielding the fence picket and given Ms Ridgeway's evidence that Robert Wilkes remained in the caravan after the deceased fled from it. Scott Payne denied that he was the perpetrator and, on the evidence, it is also unlikely that he was. Two other men who had been in caravan 40 gave evidence but there is nothing to suggest that either of them was responsible for the killing. 33 However, it appears that there were a number of other men present. Four were referred to by name by some of the witnesses, and Ms Ridgeway spoke of seeing "a pile of Aboriginal men outside the van", while fighting continued inside it. The appearance of these men was not explored in the evidence, although the accused said in the recorded interview that there were "plenty of people the same build as me walkin' around there". Given the evidence of John Wilkes to which I have referred about the deceased's behaviour in the caravan, any one of those men might have been sufficiently outraged to have pursued the deceased and beaten him. 34 Be that as it may, it is no part of my function to search for alternative culprits. The only question I must determine is whether the accused has been proved beyond reasonable doubt to be the perpetrator. It is sufficient to say that he was not necessarily the only man in that caravan with a motive to kill the deceased. The evidence of John Wilkes implicating him is, of course, significant. One can imagine that that witness might initially have lied to the police in a misguided attempt to protect his brother. The fact remains that his evidence is seriously flawed. So is the identification evidence, for the reasons I have given, and I am unable to afford to the evidence of the accused's partial admissions the significance for which the Crown prosecutor contends. Certainly, there is the gravest suspicion that it was the accused who killed the deceased. However, having carefully considered the whole of the evidence, assisted by the comprehensive submissions of counsel, I am left with a reasonable doubt about the matter. 35 I find the accused not guilty. ********** Last Modified: 09/14/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.