R v Mumbulla [2020] NSWDC 207

District Court New South Wales

Medium Neutral Citation: R v Mumbulla [2020] NSWDC 207 Hearing dates: 20-24 April 2020 Date of orders: 19 May 2020 Decision date: 19 May 2020 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: I find the accused not guilty of all 3 Counts. Catchwords: Judge alone trial- assault occasioning actual bodily harm – break and enter and commit a serious indictable offence namely set fire to a house – witness with Multiple Personality Disorder, Bipolar Disorder and Schizophrenia- witnesses under the influence of methamphetamine – unreliable witnesses – hearsay- recognition and identification evidence Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen [1998] HCA 68 Category: Principal judgment Parties: Regina (Crown) Mr William Mumbulla (Defence) Representation: Mr B Page (Crown) Mr I Todd (Defence) File Number(s): 2018/272995 Publication restriction: N/A

Judgment 1. The accused is charged with one count of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900 (alleged to have occurred on 1 August 2018) (Count 1), one count of break and enter a dwelling house and commit a serious indictable offence contrary to section 112(1)(a) of the Crimes Act 1900 (alleged to have occurred on 3 August 2018) (Count 2), and in the alternative to Count 2, a count of intentionally destroying property by fire contrary to section 195(1)(b) of the Crimes Act 1900 (alleged to have occurred on 3 August 2018) (Count 3). 2. The allegations relate to a time when the accused had just ended a short relationship with the complainant Ms Ashley Ellington. 3. For the purpose of considering the elements which the Crown must prove in the context of this case, the elements have been agreed between Mr Page on behalf of the Crown and Mr Todd on behalf of the accused. The elements of each offence are found at Annexure "A" of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt. 4. The Crown case is that the accused and Ms Ellington were in a relationship during the months leading up to 3 August 2018. On 1 August 2018 after leaving hospital, it is alleged that the complainant returned home, and got into an altercation with the accused. On the stairs it turned physical, and Ms Ellington was struck by the accused two to three times with a curtain rod to her arm. It caused her pain. It subsequently caused her swelling and a large bruise. That is the allegation that forms Count 1 on the indictment. 5. The Crown case in relation to Counts 2 and 3 is that in the days leading up to 3 August 2018, the accused spoke to the complainant over the phone and threatened to burn her house down. That threat was repeated in the early hours of the morning on 3 August 2018. Later the accused presented at Ms Ellington's back door. The accused managed to open that door, and as a result Ms Ellington and Ms Brennan ran out of the house. Some short time later Ms Ellington's home was ablaze. The accused called Ms Ellington to inform her, to look at her house which was on fire, and was laughing as he did so. Fire fighters and police attended the house a short time later, the fire was extinguished, but not before the house was totally destroyed. Those allegations form Count 2 and Count 3 on the indictment. 6. Upon his arraignment the accused pleaded not guilty. An order for trial by judge alone was made on 26 March 2020 by his Honour Judge Colefax SC with the consent of the accused and the Crown. On 20 April 2020, the accused consented to appear by audio visual link (AVL). The entirety of the trial was conducted by AVL due to the Covid-19 pandemic. 7. Pursuant to section 133 of the Criminal Procedure Act 1986, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings on fact on which I rely. 8. In Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached. 9. I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law. 10. Having brought the charges, it is the Crown who bears the onus of proving the charges. The accused is presumed by law to be innocent of the charges brought against him unless, and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proved beyond reasonable doubt. If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements of a particular offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally without acting capriciously. It is necessary to bring into account when assessing the evidence, the common sense of the court and to deliver any verdict according to the evidence. The abovementioned principles of law must be applied to the facts as I find them to be. 11. The accused did not give evidence in this case. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. He does not have to disprove the Crown case. I direct myself that as a matter of law, his decision not to give evidence cannot be used against him in any way. That decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that he decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what the accused might have said, had he given evidence. 12. In this case, the Crown case in relation to each charge is based largely on the evidence of the complainant Ms Ashley Ellington. Her evidence is said to be supported in part by the evidence of Ms Skye Brennan, Ms Gillian Wright, Mr Bernard Daly and various documents including text messages. There is direct evidence from the complainant as to Count 1. The case with respect to Counts 2 and 3 is entirely circumstantial. 13. I remind myself that if a conclusion is reached on one of the charges that the Crown has not proven its case, and the reason is due to a doubt as to the honesty or accuracy of the complainant's evidence, then I must consider whether that doubt affects a consideration of her honesty or accuracy with respect to the other charges. These common sense factors may impact on what someone might be able to remember about an event or how clearly they might remember it. What I have to decide in relation to the evidence of a particular witness is whether I consider their evidence to be sufficiently reliable such that I can act upon it. 14. My function in deciding what evidence I accept as proved and what is not, involves making an assessment of the witnesses. In making an assessment of whether I accept evidence is established by a particular witness's account, I need to bear in mind that what I am concerned with is not just the honesty of the witness, but the reliability of the witness. Of course, I may well decide not to rely on the evidence of a particular witness if it appeared to me that the witness was not giving evidence honestly. However, I must also bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation, errors in the witness's recall of events or a witness's inability to accurately describe what it is he or she saw or heard. I bear in mind that I do not have to accept everything that a witness said or reject everything that that witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said to me, but equally, it is open to accept certain parts of what the witness said as reliable evidence that I can act on, but I am not prepared to accept that witness about other parts of the evidence that he or she gave. 15. In making my assessment of witnesses I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make. 16. I acknowledge that reliability depends upon two quite different but overlapping factors. One factor is the witness's honesty and the other is the witness's accuracy. There are many factors which can have a bearing upon a witness's honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness strike me as being objective and impartial or did the witness strike me as appearing to be colouring his or her evidence in some way? 17. Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. Demeanour and impression alone do not determine the honesty or accuracy of the witness's evidence. 18. If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness's accuracy. A witness can be perfectly honest and accurate or perfectly honest, but completely or partly inaccurate. To determine how accurate a particular witness's evidence is, I may look to a number of factors. How carefully did the witness observe the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic or fear that might have impacted their powers of observation and/or the laying down of an accurate memory? Are there issues relating to drug dependency or mental illness? How important to the witness were surrounding details of an incident or event such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? 19. Judges do not have the ability to discern if a witness is telling the truth by only observing their demeanour. It is for that reason that the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above.