Citation: R v Johnson (No 5) [2019] NSWSC 146
Court: Supreme Court of New South Wales
Date: 12 February 2019
Judge(s): Campbell J
Background
The accused, Mr Johnson, was on trial for the stabbing death of Mr Morrison. Mr Johnson admitted the stabbing but raised self-defence as a live issue. The Crown sought to negative that defence beyond reasonable doubt.
To do so, the Crown tendered two documents relating to Mr Morrison's physical condition in the months before his death. The first was a medical certificate from an emergency physician who examined Mr Morrison following a taxi accident on 28 March 2017. The second was an extract from a police officer's notebook recording Mr Morrison's own statement about the accident, including complaints about his injuries and difficulty walking.
The medical evidence showed Mr Morrison had sustained a comminuted fracture of the left patella and was discharged with a Zimmer splint and crutches. The defence opposed admission of the documents, arguing the evidence did not sufficiently establish that Mr Morrison would have been physically incapable of threatening or provoking the accused at the time of the stabbing, some three months later in June 2017.
Legal Issues
- Whether the two documents relating to Mr Morrison's antecedent medical condition were admissible in the Crown's case against self-defence
- Whether the evidence was capable of being probative of a fact in issue, specifically Mr Morrison's physical capacity to engage in threatening or provocative behaviour at the time of the stabbing
Decision
Issue 1: Whether the evidence sufficiently proved Mr Morrison's incapacity
Campbell J accepted the defence submission that the evidence, taken as a whole, did not rise to the level of demonstrating that Mr Morrison would have been incapable of offering offence or making threats by word or action at the time of the stabbing (at [9]). The medical findings were described as unclear and nonspecific, and there was no expert opinion directly addressing his capacity three months later. Evidence from Mr Morrison's partner indicated he had "good days and bad days" with his knee by June 2017, and CCTV footage from the day of his death showed no walking stick, brace, or other assistive device in use (at [6]-[7]).
Issue 2: Whether the evidence nonetheless met the admissibility threshold
Campbell J held that it was not necessary, at the point of admission, for the evidence to demonstrably prove any particular proposition about Mr Morrison's physical limitations (at [10]). It was sufficient that the evidence appeared capable of being probative of some fact in issue. His physical capacity, to the extent the evidence could establish it, was capable of informing a finding about a fact that might underpin a self-defence argument if that defence were otherwise fairly raised on the evidence (at [10]). On that basis, the evidence was admitted.
Orders Made
- Evidence admitted: the statement of Constable Adrienne Lamparelli with attached notebook entry, and the certificate of Dr Givorshner, admitted together as Exhibit N
Key Takeaways
- The Supreme Court confirmed that admissibility does not require evidence to conclusively prove a contested fact; it is sufficient that the evidence appears capable of being probative of some fact in issue (at [10]).
- Evidence of a deceased's antecedent physical condition was admitted even where it fell short of establishing incapacity, because it could still inform a finding relevant to whether self-defence was reasonably available on the facts (at [10]).
- A gap of approximately three months between a documented injury and the events at trial did not render the medical evidence inadmissible, though that gap was acknowledged as affecting its weight (at [6]-[9]).
- CCTV footage depicting the deceased's movements immediately before his death, and witness evidence about his condition in the intervening period, were treated as going to the weight of the medical documents rather than their admissibility (at [6]-[8]).
- Where the threshold for admissibility is met, Campbell J indicated the documents would be considered alongside all other evidence when the verdict was ultimately assessed (at [10]-[11]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated