Regina v Baartman (No. 6) Matter No 70368/93 [1998] NSWSC 658 (28 October 1998)

Last Updated: 12 January 1999

REGINA v JON LESLIE BAARTMAN (NO. 6)

70368/93

28 October 1998

Dunford J

The Supreme Court of New South Wales Criminal Division

JUDGMENT: (Re no case to answer - see page 291 of the transcript).

HIS HONOUR: The Crown case has now been completed subject to the reading of a statement by a witness who is unable to attend which is corroborative of the evidence of Detective Sergeant Smith, and so will not affect the issues with which I am now dealing.

Mr Di Suvero, counsel for the accused, has submitted that there is no case to answer and that I should direct the jury to return a verdict of not guilty. He made his submissions yesterday after the jury left the Court and it is convenient I give my ruling thereon before the jury returns.

Subsidiary to that submission, he made a few additional submissions which I can also deal with, including that all evidence of the finding of the pistol in the premises of the witness known as Miss Brown, and the evidence that flowed therefrom, should be excluded due to the unavailability of the pistol. I have already ruled on this and I make the same ruling for the same reasons as I gave earlier.

He then renewed his application for exclusion of evidence of the accused picking up the calculator, looking at it and throwing it down. This occurs in the evidence of Yvonne Johnson. I have already ruled on this and admitted it and I make the same ruling for the same reasons as I gave then.

Mr Di Suvero has further submitted that in the first trial Abadee J excluded this evidence in the exercise of his discretion, and that this creates some form of issue estoppel and his Honour's ruling is binding on me. I reject that submission. This is not a case where there has been determined an issue of fact such as whether a confession has been voluntarily made, which in accordance with recent High Court authority does raise an issue estoppel. The evidence was admissible; the issue was whether in the exercise of my discretion I should exclude it. The material was excluded in the first trial on discretionary grounds. The exercise of discretion in those circumstances would not give rise to an issue estoppel and I would not be bound to exercise my discretion in the same way.

The first trial took place before the Evidence Act, 1995 came into force, but now s137 of that Act applies. This is not a case where I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, and so s137 has no application. I still have the general discretion under sections 135 and 136. As I say, I am not bound by the exercise of the discretion given by Abadee J in the first trial. I note that the evidence was admitted, apparently without objection, in the second trial, and I can see no record of Grove J being asked to exclude it.

Next Mr Di Suvero renewed his application for the exclusion of the extract from the solicitor's letter which was the subject of my judgment referred to at page 128 of the transcript, and it was read on to the record rather than admitted as an exhibit at pages 130 and 131. For the reasons I gave then, I make the same ruling.

In relation to the submission that there is no case to answer, Mr Di Suvero made a number of points. He submitted that the Crown case was that the enterprise contemplated was to shoot a person in the leg, but the shooter shot the person in the abdomen and accordingly the Crown cannot show that the shot in the abdomen is within the joint enterprise. I am satisfied that the Crown case is a joint enterprise to cause grievous bodily harm to a person, and although the intended manner of causing grievous bodily harm was intended to be a shot in the leg, shooting the person in the abdomen also caused grievous bodily harm. The joint enterprise I am satisfied, as alleged by the Crown, was to cause grievous bodily harm and there is evidence that that joint enterprise was carried out. It does not matter that it was the wrong part of the body nor, in my view, does it matter that the wrong person was shot.

Mr Di Suvero's next point was that the Crown case does not place the accused at the scene of the shooting. In my view, there is evidence from Mr Bicanic that the arrangements were that the accused would go to the area where the shooting was to take place to keep a lookout. If the jury are satisfied of that, that would be sufficient association of the accused with the joint enterprise of the shooting.

Next he submitted that the Crown opened that this was a two person joint enterprise but there is evidence suggesting that it was a three person joint enterprise, and he referred me to R v Mok (1987) 27 A Crim R 438.

What the Crown opened, as appears from pages 17 and 18 of the transcript, was that the accused was involved in a joint enterprise with Paul Crofts, without specifying whether there was anyone else involved, although quite obviously it was part of the Crown opening that Chris Sharpe, known as Big Boy, was also involved, at least indirectly. The Crown opened at the foot of page 18 that the vehicle used belonged to Wayne Crofts or Wayne Kelly.

It is true that at page 19 the Crown indicated that the venture was to be the accused and Paul Crofts acting in combination, but I do not see it as necessarily limited to those two. In any event, in my view, it does not matter. The Crown case has always been that Paul Crofts fired the shot and the accused went with him to keep a lookout. It does not matter to this trial whether there was a third person involved or not. Mok was a conspiracy case and the Court pointed out at 441 that a person could hardly plead to a conspiracy charge unless he knows precisely with whom it is alleged he conspired and the scope of the conspiracy alleged.

Here the essential facts were that the accused was engaged in a joint enterprise with the shooter. That proposition has never been deviated from by the Crown.

In addition, I note this is the third trial and the accused has been fully acquainted with the evidence led in the first two trials as to what the evidence would be in this case, and there is no scope for him having been misled in any way.

In my view, there is a case to answer and I refuse the application to direct a verdict of not guilty for the accused.