Gumbaduck v Rothe [2011] NTSC 50


PARTIES:                                         MARK ANTHONY GUMBADUCK




                                                         JASON CHRISTOPHER ROTHE






FILE NO:                                          JA 7 OF 2011 (21041907)


DELIVERED:                                   31 MAY 2011


HEARING DATES:                           31 MAY 2011


JUDGMENT OF:                              MILDREN J


APPEAL FROM:                               MR M CAREY SM




Barca v The Queen (1975) 133 CLR 82

M v The Queen (1994) 181 CLR 487





    Appellant:                                     G Lewer

    Respondent:                                  D Jones



    Appellant:                                     North Australian Aboriginal Justice Agency

    Respondent:                                  Office of the Director of Public Prosecutions


Judgment category classification:    C

Number of pages:                             10






Gumbaduck v Rothe [2011] NTSC 50

No JA 7 of 2011 (21041907)





                                                     MARK ANTHONY GUMBADUCK





                                                     JASON CHRISTOPHER ROTHE







(Delivered 31 May 2011)



[1]       The appellant was arraigned on four counts before the Youth Justice Court alleging, first, that on 14 December 2010 at Wadeye, he unlawfully damaged property; namely, Wadeye Takeaway, with the circumstance of aggravation the damaged was caused from preparing to commit a crime; namely, stealing.  Secondly, at Wadeye on the same date he unlawfully entered a building, namely, the Wadeye Takeaway with intent to commit the crime of stealing therein.  Thirdly, that he stole drinks and confectionary, the value unknown, the property of Wadeye Takeaway.  There was a fourth charge of trespass in relation to the post office which was at Wadeye and that trespass was alleged to have occurred on the same evening.

[2]       The evidence in this matter proceeded rather unusually in that the Crown by consent tendered a statutory declaration from a man called Eric Nardjic and relied upon two statements, one by a Mr Guludahl, who gave some details concerning the entry and stealing into the takeaway business; and another from a Ms Davies whose statutory declaration related to items that were removed from the post office.  That was the entirety of the Crown case.

[3]       At the end of the Crown case, there was a submission of no case to answer which the learned Magistrate rejected.  The appellant did not give any evidence and the matter then proceeded on the basis of submissions.  The learned Magistrate found the appellant guilty in relation to the first three counts and not guilty in relation to count 4.

[4]       The facts were that Mr Nardjic on that night was sitting down at the front of his house by himself.  He could see some of the main street.  The streetlights were on.  At a time, which he estimated to be about 11 o'clock at night, he saw five boys walking up the street.  He says, “I think the time was 11, but I cannot be sure because I don’t have a watch”.

[5]       He said that he went for a walk down the street to see what they were doing.  He walked past the five boys and saw who they were.  He identified them all by name, including the appellant.

[6]       He says that he has known these boys all his life.  He went to school with some of them.  They are his enemies.  The boys are Evil Warriors and he is a Judas Priest boy.

[7]       He said he walked past them; he did not speak to them.  He said that each of the boys had weapons in their hands; they had some axes and steel bars.  He was unable to remember who was holding what, except that one boy, DP, had an axe.

[8]       He said he stayed away from them on the other side of the road and started to watch what they were doing.  He saw all of the five boys climb up onto the takeaway roof.  They climbed up from the front near the main road and on the side near the water tower.

[9]       He said that after that he could not see too much because it was dark, but he heard loud bangs and “like something metal was hitting the roof.  I think they were breaking in by lifting up tin”.

[10]     He said that he walked away from the front of the shop after that and went to his family area and went to sleep.

[11]     The statement of Mr Guludahl indicates that between “1:30 am/pm” on Tuesday 14 December 2010, the property had been entered by persons unknown without his permission, was unlawfully damaged and items were stolen.  It notes that at 6:30 pm on the same day he personally attended the premises and saw that the takeaway's ceiling was smashed inwards and “entered through roof”.  There was a list of items which were damaged.  That is the extent of his statement.

[12]     The statement in relation to the post office was given by Ms Davies, as I noted before.  She said that she was the person with lawful charge of the premises and that the property was entered by persons unknown without her permission.  The property was unlawfully damaged and items stolen at or between 2:00 am and 5:00 am on 14 December.  She says the property was broken into twice, at 2:00 am and 5:00 am.

[13]     She personally attended the premises at 2:00 am and 5:00 am that morning and made the following observations.  “Entered through front window, broken cabinets beyond repair.  Went through confidential information laying on front counter when they were stealing phones et cetera”.  She itemised a number of items which were taken.

[14]     No evidence was given as to whether or not police made any effort to take any fingerprints.  No evidence was given that the appellant or any one else was found in possession of any of the missing items.

[15]     In the statement of Mr Nardjic, he indicated that he saw the boys, which included the appellant and the other four boys “this morning when they were at the police station”. 

[16]     The submission of counsel for the appellant is that the conviction on each count by the learned Magistrate is unsafe and unsatisfactory.  That was the only ground of appeal.

[17]     The leading authority on the unsafe and unsatisfactory ground is the well-known decision of the High Court in M v The Queen.[1]  The relevant passage is in the plurality judgment where their Honours, Mason CJ and Deane, Dawson and Toohey JJ said:[2]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude whether the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

[18]     And their Honours went on to say:[3]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks creditability for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.

[19]     Although those passages refer to juries, the same principles apply equally when Magistrates are called upon to be the triers of fact.  In this case because no witnesses were called and all the evidence before the Court was in the form of statements, as counsel for the appellant rightfully submitted, this Court is in the same position as the learned Magistrate to look at the facts and to decide whether, on those facts, the Court entertains a reasonable doubt.

[20]     There was no evidence that, as I have said before, anyone actually saw the appellant enter the premises.  There was no fingerprint evidence, there was no CCTV evidence, there was no evidence of a forensic nature of any kind and the entirety of the evidence rested upon inferences to be drawn from the facts.

[21]     The principal facts upon which an inference of guilt might be drawn rest upon the combination of the following facts.  First, the appellant was with a group of five men, each of whom were seen on the roof.  The second fact is that each of these persons were carrying what was described as weapons in the form of axes and steel bars.  Mr Nardjic heard noises on the roof, loud bangs like something metal was hitting the roof.  He says that he thought that they were breaking in by lifting up tin.  Although he was not cross-examined about that, the highest one could put it was that the noise that he heard was consistent with the tin roof being lifted.

[22]     Certainly each of the five youths, if they were all youths, had implements which might well have been capable of being used for that purpose.  There was no evidence to explain what the young men were doing on the roof, other than intending to commit some kind of offence.  There is evidence, as I have said before, that the premises were entered, property was taken, the ceiling was smashed inwards and entry was gained through the roof.

[23]     From those facts, an inference can be drawn that the accused was one of a group of men who damaged the roof and the ceiling in order to gain entry into the building, that he was one of a group of men who entered the building and he was one of a group of men who stole what was alleged had been taken from inside.

[24]     Counsel for the appellant submitted that there is another reasonable hypothesis.  In a circumstantial case, the test which has to be applied is well known.  During the course of argument I referred counsel to a decision of the High Court in Barca v The Queen[4] where in the plurality judgment of Gibbs, Stephen and Mason JJ, their Honours said:

When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’ (Peacock v The King).  To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt be should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable them draw’.  Plomp v The Queen; see also Thomas v The Queen.  However, ‘an inference to be reasonable must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in the evidence’ (Peacock v The King).  These principles are well settled in Australia.

[25]     Also, as their Honours pointed out on page 105, although the finder of fact cannot be asked to engage in groundless speculation, it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.  If the court thinks that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged, the accused is entitled to be acquitted.

[26]     So, what the task of an appellate court in a case like this is to consider whether the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged.

[27]     I will not go through the whole of the submissions of the appellant, but it begins with the proposition that it is conceded that one of the inferences open on the evidence was that after Mr Nardjic observed the appellant climb on the roof, the appellant committed the offences on the charge.

[28]     Whilst this is one inference that makes it possible, even persuasive, that is not the end of the matter.  To stop there is to run the risk that one has jumped to conclusions.  The inference drawn must be the only rational inference available on the totality of the evidence.  In broad terms, that is consistent with what the authorities state.

[29]     In her submissions, Ms Lewer pointed out there are differences in the times to begin with.  Mr Nardjic’s evidence placed the sighting at about 11:00 pm, but admittedly, he did not have a watch, whereas the statement of Mr Guludahl states that it was “at or between 1:30 am/pm”.

[30]     I do not think that the difference in timing in this case is particularly important because in the first place the statement of Mr Nardjic has only been his best estimate.  There is no explanation as to how Mr Guludahl is able to state that it happened at 1:30 am.  Even if it did happen at 1:30, there is no consistency between the times.

[31]     There is no evidence that anyone else was around that night.  But, says Ms Lewer, the post office was also broken into and it was apparently broken into twice.  According to the statement of Ms Davies, she attended twice, at 2:00 am and at 5:00 am.  In her statement, she says the premises were broken into on two occasions.  From that, it is put that this gives rise to the inference that there was possibly another group of people who were involved in breaking into at least the post office.  If that is so, how can you be satisfied that it was the appellant who was involved in the break‑in of the takeaway business?

[32]     Of course there is no specific evidence that anyone else other than the five boys were out and about stealing that night.  Whilst it is a bare possibility that there was another group, that is all there is and, in my opinion, this is not sufficient to raise a reasonable doubt.

[33]     As to what else was put by Ms Lewer, she submitted, “Well, for all we know the appellant may not have even entered through the roof.  He may have changed his mind once he got up there and decided no longer to participate”.  Again, that is entirely speculative.  There is no evidence to support that.

[34]     Then it was put that, how do you know that he entered it at all?  He may have stayed up on the roof and not participated further.  Again, that is a possibility.  But as the learned Magistrate pointed out, whether he actually entered himself or not is not the point.  Either he entered, in which case he was a direct participant in the offences.  Even if he stayed on the roof as some kind of cockatoo, he was an aider and abetter.  So, on either basis he committed the offences.

[35]     I entertain no reasonable doubt of guilty and the appeal is dismissed.


[1]    (1994) 181 CLR 487.

[2]    at 493.

[3]    at 494.

[4]    (1975) 133 CLR 82 at 104.