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District Court 12 June 2024

R v Tuifua

[2024] NSWDC 246

Assault & violence
CRIME JUDGE ALONE TRIAL RECKLESSLY CAUSING GRIEVOUS BODILY HARM

Citation: R v Tuifua [2024] NSWDC 246
Court: District Court of New South Wales
Date: 12 June 2024
Judge(s): Colefax SC DCJ

Background

The accused was charged with wounding a neighbour with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1990 (NSW), arising from a violent confrontation in the early hours of 30 July 2022 at a residential address in Blackett. The confrontation was triggered when the complainant, annoyed by noise from a birthday party at a neighbouring property, threw bricks and planks of wood over the fence into that yard, injuring a guest and narrowly missing a child. A group from the party then went around to the front of the complainant's property, where a melee broke out.

The Crown alleged that the accused picked up a rusty steel tyre rim weighing approximately 10 kilograms and struck the complainant to the head with it while he was lying on the ground. The complainant was taken to Westmead Hospital's intensive care unit but was discharged the following day.

The matter proceeded as a judge-alone trial. The accused did not give sworn evidence but participated in an electronically recorded interview, which was played during the trial.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that the accused wounded the complainant, specifically by striking him with the tyre rim.
  • Whether the Crown proved beyond reasonable doubt that the accused acted with intent to cause grievous bodily harm.
  • If not guilty on the primary count, whether the Crown proved the statutory alternative of recklessly causing grievous bodily harm under s 35(4) of the Crimes Act 1990 (NSW).
  • Whether a summary damage-to-property charge (s 166 certificate matter) was made out.

Decision

Issue 1: Reliability of the Crown's key witnesses

The Crown's case rested heavily on three witnesses present at the birthday party: Alfred, Kapeli, and Ms Mateai. Each gave oral evidence at trial that was, in the judge's assessment, very substantially unreliable. The Crown Prosecutor frankly conceded as much, describing their 2024 testimony as "appalling" (at [45]-[46]). The Crown instead relied on statements each had made to police in 2022. However, each of those witnesses had initially denied seeing the accused strike the complainant, only later making inculpatory statements after what the court described as "highly questionable conduct by police" (at [49]). All three recanted those inculpatory statements on oath at trial.

The court identified four specific reasons why those earlier statements could not be given meaningful weight. Alfred's claimed vantage point made it improbable or impossible for him to have seen what he described (at [54]). Alfred and Kapeli gave materially inconsistent accounts: Alfred said the accused struck the complainant three to five times, while Kapeli said she dropped the rim once (at [53]). The circumstances in which the inculpatory statements were obtained gave rise to real concerns about reliability independent of the recantations (at [52]). Finally, the witnesses who recanted had no apparent motive to lie on oath about this topic, and their sworn evidence deserved to be taken seriously (at [51]).

Issue 2: The forensic and circumstantial evidence

The circumstantial case against the accused was also insufficient. Neither the complainant nor another witness at the property gave evidence that the accused caused the injuries with the tyre rim (at [43]). No fingerprints or DNA from the accused were found on the tyre rim, despite no evidence she was wearing gloves (at [63]). The complainant's blood and another party-goer's DNA were found on a metal trolley used during the confrontation, leaving open the possibility that the trolley caused the head injuries (at [64]). There was also no expert evidence that the complainant's injuries were consistent with being struck by a 10-kilogram steel rim, whether once or multiple times. The court noted that multiple blows from such a heavy object to a person lying on the ground would more likely have produced far more catastrophic injuries than the complainant actually sustained (at [58]-[59]).

The court also noted that poles were present, that at least one pole bore the DNA of an unidentified man, and that there was no expert evidence excluding the possibility that the head injuries were caused by a pole rather than the tyre rim (at [60]-[61]).

Issue 3: Overall conclusion on the counts

The court was not satisfied beyond reasonable doubt that the Crown had proved either element of the primary count (at [68]), and accordingly found the accused not guilty (at [69]). Because the first element, that the accused caused the wound, was not proved, the statutory alternative count of recklessly causing grievous bodily harm also failed (at [70]).

Issue 4: Section 166 certificate matter

A separate summary charge relating to alleged damage to a shed was dismissed. The accused's own account in her electronically recorded interview described falling through the shed roof, which the court found did not prove damage, as the fall may have been through an existing opening (at [76]-[78]).

Orders Made

  • Not guilty of wounding with intent to cause grievous bodily harm (primary count on indictment).
  • Not guilty of recklessly causing grievous bodily harm (statutory alternative count).
  • Section 166 certificate matter (intentionally or recklessly destroy or damage property) dismissed.

Key Takeaways

  • The District Court acquitted the accused where the Crown's three key eyewitnesses made inculpatory statements to police that were obtained in questionable circumstances, were materially inconsistent with each other, and were recanted under oath at trial, leaving the court unable to give those statements meaningful weight (at [45]-[55]).

  • A conviction cannot rest on inculpatory statements to police alone where witnesses subsequently recant on oath, the circumstances of obtaining those statements are questionable, and the sworn evidence of recantation lacks any apparent motive to lie (at [51]-[52]).

  • Absence of the accused's DNA or fingerprints on the alleged weapon, where no evidence suggested the accused wore gloves, formed part of the reasoning against the Crown's circumstantial case (at [63]).

  • Where multiple mechanisms for the complainant's injuries remained open as reasonable possibilities, including poles and a metal trolley, and no expert evidence excluded those alternatives, the Crown could not establish that the accused's conduct caused the wounds (at [60]-[65]).

  • The absence of expert evidence connecting the nature and extent of injuries to the specific weapon and manner of assault alleged by the Crown was a material gap in the prosecution case, particularly where the injuries were relatively minor compared with what might be expected from repeated blows by a 10-kilogram steel rim (at [58]-[59]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1990 (NSW), s33(1)(a) and s35(4); Evidence Act 1995 (NSW), s191

Cases
- Not stated