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District Court 11 August 2016

R v Jason Hans Speelman

[2016] NSWDC 322

HomicideFirearms & weaponsPublic order & justice offences
ATTEMPT MURDER JUDGE ALONE TRIAL KEY DIRECTIONS SHOT TO HEAD IDENTITY OF SHOOTER WITNESS CREDIBILITY

Citation: R v Jason Hans Speelman [2016] NSWDC 322
Court: District Court of New South Wales
Date: 11 August 2016
Judge: A Haesler SC DCJ

Background

The accused stood trial on two charges arising from events at Unanderra, south of Wollongong, on 8 April 2015. The first count alleged he shot at a man named Joseph Ison with intent to murder him. The second count alleged that, later the same day, he used a knife as an offensive weapon with intent to prevent his own lawful apprehension by police.

The accused exercised his right, after receiving legal advice, to waive trial by jury and elect for a judge-alone trial. The Director of Public Prosecutions consented. The trial ran at Wollongong, with evidence and submissions concluding the day before judgment was delivered.

It was not disputed that two serious incidents occurred that day. The central contest was whether the accused was the person who shot Ison, and whether his use of the knife was intended to prevent his lawful arrest.

  • Whether the prosecution proved beyond reasonable doubt that the accused was the person who shot Joseph Ison
  • Whether the shooting was carried out with the specific intent to kill, as required for attempted murder
  • Whether the accused used a knife as an offensive weapon with the specific intent to prevent his lawful apprehension by police
  • Whether the accused's level of intoxication at the time negated the formation of specific intent for either offence
  • Whether the police apprehension was lawful, as required to establish the second count

Decision

Count 1: Attempted murder

The key factual dispute was the identity of the shooter. Ison gave direct evidence that the accused shot him. His Honour carefully examined the reliability of that evidence, noting the well-established dangers of both identification and recognition evidence, including the risk that a sincere witness may nonetheless be wrong. The court weighed Ison's evidence against attacks on his credibility, reliability, and the conditions under which he observed the shooter. Despite those challenges, the court was satisfied beyond reasonable doubt that the accused was the person who shot Ison, and that he did so with intent to kill.

Intoxication

Both offences required proof of specific intent, engaging Part 11A of the Crimes Act 1900. His Honour considered whether the accused's intoxication may have prevented him from forming the requisite intention. The court found that, notwithstanding any intoxicants consumed, the prosecution had proved beyond reasonable doubt that the accused acted intentionally in both instances.

Count 2: Using an offensive weapon to prevent apprehension

The court accepted that the accused produced a knife and threatened police. Several possible intentions were identified, including threatening police, provoking them to shoot him, or self-harm. However, the court found that the evidence as a whole, including the accused's flight from the scene, his disposal of the gun and associated items, his knowledge that he had committed a serious offence, and his deliberate conduct when police attempted to stop him, established beyond reasonable doubt that one of his intentions was to prevent his lawful apprehension. The court was satisfied the police were acting lawfully in seeking to arrest him.

Orders Made

  • The accused was found guilty of attempted murder (Count 1)
  • The accused was found guilty of using an offensive weapon with intent to prevent his lawful apprehension (Count 2)
  • The accused was convicted in accordance with both findings

Key Takeaways

  • In a judge-alone trial, the judge must not only deliver verdicts but also set out the full reasoning process, including the applicable legal principles, key warnings, and resolution of all disputed issues of fact and law.
  • Recognition evidence carries the same special dangers as identification evidence: a witness who previously knew the accused may still be mistaken, and the court must exercise particular caution before acting on such evidence to the criminal standard.
  • A conviction for using an offensive weapon to prevent lawful apprehension does not require that prevention of arrest was the accused's sole intention; it is sufficient that it was one of the intentions operating at the time.
  • Where specific intent offences are charged, evidence of intoxication must be considered as it may, in some circumstances, negate the formation of the required intention, though significant intoxication does not automatically do so.
  • Circumstantial evidence, including conduct before and after an alleged offence, can be considered alongside direct evidence when the court assesses whether the elements of an offence have been proved beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including Part 11A (intoxication and specific intent)
- Evidence Act 1995 (NSW), ss 116 (identification evidence), 144 (common knowledge)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 99, 202, 210

Cases
- Christie v Leachinsky [1947] AC 573
- Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229