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Court of Criminal Appeal 14 December 2005

Harris v R

[2005] NSWCCA 432

Also reported as (2005) 158 A Crim R 454
Assault & violenceHomicide
CRIMINAL LAW EVIDENCE ACT S65(2)(B). CRIMINAL LAW SUMMING UP SELF DEFENCE

Citation: Harris v R [2005] NSWCCA 432
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Grove J, Studdert J, Whealy J

Background

The appellant was convicted by a jury in the District Court of the manslaughter of a man who died on 7 October 2002 from a subdural haemorrhage. The fatal injuries resulted from a physical altercation at the Hurstville RSL Club on 30 September 2002, during which the appellant punched the deceased twice in the face. The appellant was sentenced to seven years and six months imprisonment with a non-parole period of four years and eleven months.

At trial, the appellant accepted that he had struck the deceased but raised self-defence, contending that the deceased had returned to confront him inside the club, touched him from behind, and called him "boy," a word he experienced as a profound racial insult. The Crown relied on witness accounts suggesting that the deceased had not acted aggressively and that the appellant's response was not one of genuine self-defence.

The appellant appealed against conviction on grounds relating to the admissibility of a statement made by the deceased shortly before his death and to alleged deficiencies in the trial judge's directions on self-defence.

  • Whether a statement made by the deceased to a witness the day after the assault was admissible under section 65(2)(b) of the Evidence Act 1995 (NSW) as a representation made "shortly after" the asserted fact and in circumstances making fabrication unlikely
  • Whether the trial judge's directions on self-defence sufficiently conveyed to the jury that the Crown bore the onus of excluding, beyond reasonable doubt, the reasonable possibility that the appellant had acted in self-defence

Decision

Ground 1: Admissibility of the deceased's statement. The Court considered whether a statement the deceased made the day after the incident satisfied the requirements of section 65(2)(b) of the Evidence Act: that it was made "shortly after" the asserted fact and in circumstances making fabrication unlikely. The Court upheld the trial judge's decision to admit the statement, finding that it met both conditions.

Ground 3: Self-defence directions. The appellant argued that the trial judge had failed to direct the jury adequately on the Crown's obligation to exclude the reasonable possibility of self-defence. The Court, examining the summing-up as a whole, found that the directions clearly placed the burden on the Crown to satisfy the jury beyond reasonable doubt that the appellant either did not genuinely believe his actions were necessary for his own defence, or that his response was not reasonable in the circumstances as he perceived them.

Grove J, in a brief concurrence, addressed a specific submission that a not-guilty verdict would not depend on any factual finding but only on whether the Crown had excluded a reasonable hypothesis. His Honour rejected this as implying a false separation between the jury's fact-finding role and the application of legal tests, emphasising that legal tests are applied to facts as the jury finds them.

All three judges agreed that there was no real risk the jury misunderstood the burden of proof on the self-defence issue, having regard to the totality of the trial judge's directions. Rule 4 of the Criminal Appeal Rules, which guards against appeals succeeding on purely technical grounds, was also found to be enlivened.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • Under section 65(2)(b) of the Evidence Act 1995 (NSW), a statement by a deceased person made the day after an assault can qualify as made "shortly after" the asserted fact, provided the circumstances also make fabrication unlikely; admissibility turns on the specific facts of each case.
  • Where self-defence is raised, the Crown must satisfy the jury beyond reasonable doubt that the accused either did not hold a genuine belief that their actions were necessary for self-protection, or that their response was unreasonable in the circumstances as the accused perceived them.
  • A summing-up on self-defence is assessed in its totality rather than by microscopic examination of individual passages; the Court of Criminal Appeal confirmed the principle from R v Burt (2003) that appeals cannot succeed merely by identifying technical omissions divorced from the overall instruction given.
  • The legal tests for self-defence are not applied in a vacuum: they operate on the facts as the jury finds them, and directing the jury to determine facts first is a proper step in guiding their task, not a misdirection.
  • No error was established in the trial judge's directions, and the Court found no real risk that the jury misunderstood the burden and standard of proof applicable to the self-defence issue.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 65
- Criminal Appeal Rules, r 4

Cases
- Conway v The Queen (2000) 98 FCR 204
- Dinsdale v The Queen (2000) 202 CLR 321
- Liberato v The Queen (1984-85) 159 CLR 507
- R v Ambrosoli (2002) 55 NSWLR 603
- R v Burt (2003) 140 A Crim R 555
- R v Ita (2003) 139 A Crim R 340
- R v Mankotia (unreported, Sperling J, 27 July 1998)
- R v Polkinghorne (1999) 108 A Crim R 189
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Saulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Williams v The Queen (2000) 199 A Crim R 490