Goodwin v Williams

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Penfold J
• Judgment Date: 24 October 2018
• Docket Number: File Number(s): SCA 11 of 2015
• Date: 24 October 2018

[2018] ACTSC 279

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Penfold J

File Number(s): SCA 11 of 2015

Jason John Goodwin

(Appellant)

and

Daniel Wilton Williams

(Respondent)

Representation:

Counsel

Mr M Toole (Appellant)

Mr J Walker (Respondent)

Cases Cited:

Liberato v The Queen (1985) 159 CLR 507

Libke v The Queen [2007] HCA 30; 230 CLR 559

M v The Queen (1994) 181 CLR 487

Macleod v The Queen [2003] HCA 24; 214 CLR 230

Mapham v Bannerman [2013] ACTSC 157

R v Baxter and Brading [2012] ACTSC 82; 263 FLR 160

R v Bernhard [1938] 2 KB 264

R v Dardovska [2003] VSCA 4; 6 VR 628

R v Williams [1988] 1 Qd R 289

Roberts v Rhodes [2014] ACTCA 20

Legislation Cited:

Criminal Code 2002 (ACT) ss 38, 300, 301, 304, 306, 308 and 311

Evidence Act 2011 (ACT) s 144

Magistrates Court Act 1930 (ACT) ss 28 and 216(1)(a)

APPEAL AND NEW TRIAL — APPEAL — Criminal law — appeal against convictions — claim of errors of fact — claim of error in application of principle — whether verdict was unsafe and unsatisfactory — appeal dismissed

Decision

• 1. The appeal will be dismissed.

• 2. The parties will be heard about any orders required to give effect to sentences stayed by this appeal.

Introduction

1 Jason Goodwin was found guilty on 20 January 2015 in the Magistrates Court of one burglary and an associated theft. On 24 February 2015 he was sentenced for those offences.

2 On 17 February Mr Goodwin filed a notice of appeal against his convictions. He has not appealed against the sentences imposed, but they have presumably been effectively stayed under s 216(1)(a) of the Magistrates Court Act 1930 (ACT).

3 By an amended notice of appeal dated 19 March 2015, the grounds of appeal were specified as follows:

• (a) Her Honour erred in finding that the defendant's intent was formed whilst remaining on the premises as opposed to his intent at the time of entry to the premises;

• (b) Her Honour erred in finding that the defendant intended to treat or dispose of the property as his own, and therefore erred in finding the offence of theft was proved.

• (c) Her Honour erred in finding that the defendant acted dishonestly.

• (d) Her Honour erred in applying the principle stated by Brennan J in Liberato v the Queen (1985) 159 CLR 507 at 515.

• (e) Her Honour's finding of guilt was otherwise unsafe and unsatisfactory.

Background

4 The undisputed facts, in summary, were that the complainant, Michael Collins had lived for some months in a house in a southern suburb of Canberra rented by Kerryn, or Kerry Anne, Moore. After some months, Mr Collins left the house and moved to a house in Amaroo, in the northern suburbs of Canberra. He and Ms Moore had fallen out over the arrangements for his departure, and Mr Collins did not give Ms Moore his new address. Ms Moore considered that Mr Collins owed her money in relation to various aspects of his occupation of the house, but the existence of the debt, or at least the amount of money involved, was in dispute between the two of them.

5 Although Mr Collins did not give Ms Moore his new address, he had at some point told her about the house, including showing her pictures of it, and an internet search enabled her to identify the address quite quickly. As well, Ms Moore still had his phone number and used that to send Mr Collins text messages.

6 On 10 March 2014, Mr Goodwin, who by then had formed a relationship with Ms Moore, went to the house in Amaroo, with a view to resolving the debt. Ms Moore was with him, but remained in the car outside the house. At the house he found the front door open, and walked in. After finding no one in the ground floor of the house, he went upstairs. There he found Mr Collins in a bedroom playing music, apparently with the aid of two laptops.

7 After a conversation between the two men, Mr Goodwin left the bedroom with one of Mr Collins' laptops.

8 A call was made to police, who arrived at Mr Collins' house shortly afterwards and talked to Mr Collins. In the course of that discussion, Mr Collins apparently showed a small red mark on his arm to the police officer, indicating that “an assault may have taken place as well”.

9 Two days later, acting under a warrant, police went to Mr Goodwin's home. As soon as they entered, Mr Goodwin said words along the lines of “You must be here for the laptop”, and handed it to them.

The evidence

10 The Magistrate heard evidence from:

• (a) the complainant Michael Collins;

• (b) Senior Constable Williams, who had attended the house in Amaroo in response to a report to police of an incident at the house;

• (c) Ms Moore; and

• (d) the defendant Jason Goodwin.

The complainant

Evidence in chief

11 Mr Collins gave evidence that he had rented a room in Ms Moore's house in a southern suburb of Canberra for about 4 months, that it was always intended to be a temporary arrangement, and that Ms Moore had been “fine” when he said he was moving out. When he moved out, he had not told her where he was moving to. He had paid rent until the Wednesday, and moved out on a Saturday, but Ms Moore had said he owed her a full week's rent for the last few days. She had also asked him, in a text message, to pay for a damaged flyscreen and for a doona cover. In evidence he initially said that he was willing to pay this money, and had asked Ms Moore to give him her BSB and account details so he could transfer it. In later evidence he said that she had refused a bank transfer because she needed the money “on the day”, and explained that he had been willing to pay the rent for his last three days in the house, but had never agreed that he owed Ms Moore $200.

12 On 10 March 2014, Mr Collins said, he had been in the house to which he had moved in Amaroo, a northern suburb of Canberra. He assumed that the front door was closed. He was listening to music with headphones on. Around 5pm, he was sitting on the end of his bed when the bedroom door was opened and Mr Goodwin came in. He was a bit shocked at first, because he had never told Mr Goodwin where he had moved to, or given Mr Goodwin permission to come to his house.

13 Mr Collins summarised what happened next:

So I was sitting there, he come in and like I sort of looked up because I recognised him and I was like hey pretty much, I was like what are you doing? And then he's lent down, he's grabbed the laptop and like started pulling that apart. So as he's done that he's sort of lifted me up with the equipment because like I was all connected to it and then as he's done that that's when he's sort of like grabbed me, tried to get me to the ground, body slammed me.

14 Mr Collins gave more detailed evidence of the incident, including that Mr Goodwin had grabbed him by the arm and by the neck, that Mr Goodwin had put his leg behind Mr Collins' legs and pushed on his chest to get him to the ground, and that Mr Collins had finished up on his back with his upper body against a wall. He said:

Then after that he was sort of arguing with me being like what the hell, but before it got to that he was like leaning on me, he was right in my face and like he was pressing down on me and like I couldn't breathe pretty much. So like he's trying to talk to me and say what the hell, but you know.

15 Mr Collins said that Mr Goodwin had “pinned” him, and had stayed on top of him for a minute or a minute and a half. After Mr Goodwin got off Mr Collins, leaving him sitting on the ground, Mr Goodwin sat on the bed and:

he was trying to say like what are you doing, you know, Kerryn needed that money type thing and he was trying to talk to me about it.

16 Mr Collins said that the two men talked about the money, including Mr Goodwin's assertion that Ms Moore had needed the money “for this weekend”. Mr Collins said he had told Ms Moore that he would happily pay the money but “she didn't want to do it that way” (it was not clear from his evidence whether he said this to Mr Goodwin at the time). He also gave evidence that Ms Moore had told him she needed the money “on the day”, but that he had told her it would be difficult for him to drive to her place in the south of Canberra to pay it in person (because it was raining and he couldn't afford fuel).

17 Mr Collins gave the following evidence about the removal of the laptop:

Did he say anything to you about any of your property that was in your bedroom, about the laptop?———So like … with the PC he said to me pretty much like there's nothing stopping me from taking anything I can in this room, because I was like you know you're not taking my laptop and that was when he said that because my PCs like renting type thing, and he's like, “Do you need that, do you know I could take that.” He said pretty much he can take anything he wants and there's nothing I can do about it.

Did he say anything else about the laptop?———So like he said that he's taking the laptop as collateral for the money.

Did you agree for him to?———No, I never.

Did you give him permission to take the laptop?———No.

Did you ever say anything to him about — — — ?———So like eventually when he was down the stairs leaving like what could I do? I was pretty much like, “Just take it, I was like I was going to call the police anyway like straight away as soon as you leave.” And he's like, “Go on, do it,” he's like, “I don't care.” So like I didn't exactly grab it back.

So you didn't give him permission to take the laptop?———No.

Cross-examination

18 Mr Collins said that during the assault he had sustained a scratch on his arm, and also had a sore shoulder. Counsel put to him that he had agreed to Mr Goodwin taking the laptop as “collateral”, and he said:

No. I could only agree because he was...