PARTIES: ROBERT ROLAND BURGOYNE

v

DONALD ARTHUR HAYES

TITLE OF COURT: Juvenile Court

JURISDICTION: Juvenile Court - Alice Springs

FILE NO(s): 20407729

DELIVERED ON: 7 June 2004

DELIVERED AT: Alice Springs

HEARING DATE(s): 17 May 2004

JUDGMENT OF: M Little

CATCHWORDS:

REPRESENTATION:

Counsel:
Prosecutions: J Dominguez
Defendant: A Hopkins

Solicitors:
Prosecutions: Police Prosecutions
Defendant: CAALAS

Judgment category classification:
Judgment ID number: [2004] NTMC 046
Number of paragraphs: 20

IN THE JUVENILE COURT
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20407729

BETWEEN:

ROBERT ROLAND BURGOYNE
Police

AND:

DONALD ARTHUR HAYES
Defendant

REASONS FOR JUDGMENT

(Delivered 7 June 2004)

Ms M LITTLE SM:
1. The defendant has entered into a plea of not guilty to a charge of unlawfully assaulting David Wilshaw on the 21st of March 2004 at Alice Springs and further that David Wilshaw suffered bodily harm. There is no issue whatsoever that David Wilshaw was the victim of a vicious assault or that he suffered bodily harm in this matter. The identity of the person who assaulted him is the main issue in question. Issues as the exact sequence of the assault will only be addressed if the issue of identification results in a finding that the defendant was the assailant or aiding and abetting the assailant.
2. Prosecution bears the onus of proving each and every element of the offence and if they do not do so there must be a finding of not guilty recorded.
3. I will not summarise in great detail all of the evidence in this matter. I am of the view that there is clear evidence of an assault in this matter. The matters that I will summarise relate solely to the question of the identity of the assailant. If necessary I will consider the sequence of the assault.
4. David Wilshaw gave evidence first and he said that he was coming home from Bo's through the Coles car park area when he was stopped by a youth (who he did not know) and that another youth come from his side and hit him. He said he saw the assailant after he was hit and that person had a baseball cap on and a grey outfit. The person who stopped him originally was all in black. He could not describe either of these persons other than that they were approximately 17 years old. He said he was about to start throwing punches at the one who had hit him when the police arrived. The bloke who had assaulted him had gone back into a larger group and had mixed in with them. As a result of the assault he received a fracture to his right cheek. He agreed that there was dim lighting where the incident occurred and that he had seen a large group of approximately 10 to 15 youths between 17 and 18 years of age in the area. He said they looked of Aboriginal appearance. He said he was not sure if there were males and females in the group and he did not look at the group as to what they were wearing. He was not able to give any sort of description as to the faces of the persons who were involved in the assault upon him. He agreed he was under the influence of alcohol, but said that this had not affected his memory of the night.
5. I accept that his right cheekbone was broken as a consequence of the assault. P3 confirms the injury.
6. The next witness was Monica Donaghue. She was an employee at Coles Alice Springs and at approximately 3am she had gone to get the trolleys and she noticed a group of youths by the telephones. She later saw David Wilshaw and it was evident he had been assaulted. She tried to get him to come into Coles but he would not and she noticed that he was then raising his fists. She agreed that in her statement she said there was approximately 12 kids. She agreed that they were approximately 12 to 16 years of age and she was not sure of their sex. She could not recall what they were wearing. She did not personally know any of the young people.
7. The next witness was Kelly-Anne Stewart. She said she saw an old man walking past and "Donald and these boys" asked him for a smoke. She was sitting near Tandy. She said there were approximately six boys in the group who asked for the smoke. She heard the man calling them black cunts and the boys started hitting the man. She said that it was Lewis and Donald who was hitting the man. She said she did not know who hit him first. She said Lewis slapped him on the head and then Donald punched him with his fist on the cheek area. She was pointing to the right side of the face. It is evident that this witness was asserting that a person named Donald had been the one who had hit at the cheek area where the right cheekbone had been broken. She said at a later time the man and Donald were fighting. That they were hitting each other with closed fists with slaps and punches. With respect to the earlier part of the incident she said Lewis was on the side of the man and that Donald hit the man. She said Donald was in front of the man.
8. In cross-examination she agreed the incident occurred two months ago and it was hard to remember. She was talking with friends about what was happening, and she turned away to talk to friends at times. She said there was three who walked up to the man. Lewis came from the side and that after Donald hit him the man went to the ground. Richie was standing there but he did not hit the man. She saw the man swinging at Donald and the police arrived. There was then some confusion about whether she had seen Donald hit the man the second time as opposed to the first time.
9. In re-examination she said that the first time Donald had been in the front and that they had both hit the man. She said when Donald hit the man he fell. She said the old man ran off and then came back. She said Lewis slapped him first then Donald punched him.
10. There was further cross-examination allowed and she agreed that she may have been mistaken as to who had caused the man to fall to the ground. She agreed that she had seen Donald and the fellow swinging at each other.
11. Senior Constable Steven McGuire was then called and a tape of conversation between the defendant and McGuire was played and became exhibit P2. In that tape the defendant denies that he was the one who hit the man. He agreed that he was part of the group who was in the Coles complex area that night but said that other persons assaulted the victim. He agreed he had been fighting with the man on the second occasion but not the first occasion (the second occasion being the time when the Mr Wilshaw came back seeking to have a fight shortly before the police arrived).
12. A statutory declaration was then tendered and became P3 which set out the injuries sustained by the victim. There is no doubt that Mr Wilshaw suffered bodily harm.
13. The next witness was Senior Constable Michael Hickey who gave evidence that he arrived with Constable Lee at approximately 3am to a disturbance at Coles. There were ten juveniles spread between Cole's footpath to Railway Terrace area. They were aged between 14 and 17 years old. David Wilshaw was on the footpath near the entrance to Coles. He spoke to a number of juveniles including the defendant Donald Hayes. He identified the defendant in Court as one of the persons he spoke to on the night. The juveniles left the area after no complaint was made by the man on the night.
14. Mr Hopkins for the defence made a no case submission. I found that there was a case to answer. No evidence was called by or on behalf of the defendant
15. Submissions were then made. The issue of identification is the most significant one in this case.
16. At no stage was the defendant, Donald Hayes, identified by any of the witnesses as the person who had inflicted the blow to the right cheek of the victim or been aiding and abetting the commission of the offence. The complainant's evidence that the person who assaulted him was the person he approached to start throwing punches can not be given any weight. I have no evidence as to how he says the person was the same person who assaulted him. I do not doubt that he honestly believed it to be the person. Nevertheless there are many factors which affect the reliability of the evidence and I can not give the evidence any weight.
17. The witness Ms Stewart referred to a person named Donald. There was never an identification of this defendant as the person Donald who she named. She gave evidence of numerous people being in the group at the Coles complex that night. While it may be said to be a coincidence that she named the person as Donald and the defendant is named Donald, I can not proceed to make a finding beyond reasonable doubt that they are one in the same person based upon the evidence before me.
18. The defendant was at the Coles complex on this night. He denies inflicting a blow to the face area of the victim or being apart of the assault upon the victim when this injury was inflicted upon him. He has admitted being part of a fight with the man after the assault subject of this charge. While I am not satisfied that the cross-examination of the witnesses as to whether this defendant did make contact with Mr Wilshaw on the second occasion complied with Browne v Dunn in the end that issue does not need to be resolved.
19. Those and other issues which arise in this case are not necessary to be decided as I am not satisfied that the prosecution has proven beyond reasonable doubt that this defendant was the person who inflicted the blow to the complainant or aided and abetted in the infliction of the blow to the right cheek area. There is no evidence of an identification of this defendant as the assailant. Accordingly, there is no requirement that I consider the matters set out in cases such as Domican as to identification evidence.
20. Prosecutions have not discharged their onus of proof in this case. I record a finding of not guilty to the charge and the circumstance of aggravation.

Dated this 7th day of June 2004.

_________________________
M Little
STIPENDIARY MAGISTRATE