Citation: R v Williams (2) [2018] NSWDC 168
Court: District Court of New South Wales
Date: 25 June 2018
Judge: Berman SC DCJ
Background
This short judgment is a follow-up to an earlier ruling delivered in the same matter just days before: R v Williams [2018] NSWDC 163. In that earlier decision, Berman SC DCJ had considered whether an offence under s 35(2) of the Crimes Act 1900 (recklessly causing grievous bodily harm) constitutes a crime of "specific intent." The distinction matters because a finding of specific intent affects whether voluntary intoxication can be raised as a relevant consideration.
After delivering that ruling, the Crown drew the judge's attention to a District Court decision by Judge Blackmore in R v Brady [2012] NSWDC 222. The judge also independently identified the Court of Criminal Appeal's decision in McIlwraith v R [2017] NSWCCA 13 over the intervening weekend, and raised it with both parties.
The judge reconsidered his earlier ruling in light of these two additional authorities before confirming his position.
Legal Issues
- Whether an offence under s 35(2) of the Crimes Act 1900 (recklessly causing grievous bodily harm) is a crime of "specific intent"
- Whether R v Brady [2012] NSWDC 222 and McIlwraith v R [2017] NSWCCA 13 altered the analysis applied in the earlier judgment
Decision
Berman SC DCJ noted that different District Court judges had reached different conclusions on the specific intent question, and that R v Brady was simply one further illustration of that divergence. Its existence did not persuade his Honour to change course.
More significantly, the Court of Criminal Appeal's decision in McIlwraith v R supported the conclusion his Honour had already reached. In that case, the Court of Criminal Appeal found that intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was an offence of specific intent. The Court of Criminal Appeal rejected the proposition that "knowledge of a likely result" is a lesser form of mental element that takes an offence outside the category of specific intent. It adopted the reasoning in R v Grant (2002) 55 NSWLR 80, as had Berman SC DCJ in his earlier judgment.
The Court of Criminal Appeal in McIlwraith also emphasised a practical consideration drawn from R v Grant: permitting an offence to straddle both specific intention and knowledge of likely consequences would generate unacceptable complexity in jury directions. That consideration provided a further reason to resist the Crown's preferred construction.
Having reviewed both additional authorities, Berman SC DCJ confirmed that his original ruling would stand.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that its earlier ruling on s 35(2) of the Crimes Act 1900 would not be disturbed after consideration of two further authorities.
- The Court of Criminal Appeal's decision in McIlwraith v R [2017] NSWCCA 13 supported the position that an offence may qualify as one of "specific intent" even where the required mental element is framed as knowledge of a likely result rather than a purpose or desire to cause a specific outcome.
- Under the framework established in R v Grant (2002) 55 NSWLR 80 and applied in McIlwraith, the complexity that would arise from jury directions if a charge could rest on both specific intention and knowledge of likely consequences is itself a reason to treat such offences as requiring specific intent.
- Conflicting District Court decisions on this question existed at the time of judgment; the Court of Criminal Appeal's analysis in McIlwraith provided the more authoritative guidance.
- R v Brady [2012] NSWDC 222, which took a different view, was noted as illustrating the divergence among District Court judges but did not alter the outcome.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Cases
- R v Williams [2018] NSWDC 163 (earlier ruling in the same matter)
- R v Brady [2012] NSWDC 222
- McIlwraith v R [2017] NSWCCA 13
- R v Grant (2002) 55 NSWLR 80