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Supreme Court 22 February 2019

R v Johnson (No 7)

[2019] NSWSC 148

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW CONVICTION OF MURDER PARTIAL SELF DEFENCE NOT ACCEPTED DELIBERATE VIOLENT USE OF KNIFE

Citation: R v Johnson (No 7) [2019] NSWSC 148
Court: Supreme Court of New South Wales
Date: 22 February 2019
Judge: Campbell J

Background

The accused was charged with the murder of the deceased, who died on 29 June 2017 at Campsie after being stabbed twice. One stab wound severed his femoral artery, causing fatal blood loss. The accused and the deceased were known to each other through attendance at a methadone clinic.

The Crown alleged the accused initiated a confrontation in a retail accessories shop on Beamish Street, Campsie, motivated by resentment arising from an earlier incident. The accused did not dispute that he stabbed the deceased, causing his death. The central disputes were whether he held the requisite mental element for murder, and whether self-defence had been excluded as a reasonable possibility.

The trial proceeded before Campbell J sitting alone, without a jury, pursuant to section 132 of the Criminal Procedure Act 1986 (NSW), with the Crown's consent.

  • Whether the accused held the specific intent required for murder, namely the intention to kill or to inflict really serious bodily injury upon the deceased.
  • Whether the Crown had excluded self-defence as a reasonable possibility, having regard to the circumstances as the accused perceived them.
  • Whether a partial defence of extreme provocation under section 23 of the Crimes Act 1900 (NSW) applied (this was raised but ultimately abandoned by defence counsel).

Decision

Campbell J found the accused guilty of murder beyond reasonable doubt. His Honour was satisfied that the accused held the necessary mental element of murder, specifically an intention to inflict really serious bodily injury upon the deceased, even if not an intention to kill him outright. The deliberate, forceful use of a knife to inflict the wounds found on the deceased supported this conclusion.

On the question of intent, Campbell J directed himself consistently with the approach required in a jury trial: intent is a subjective state of mind, proved by inference from all circumstances, including conduct before, during, and after the act. The nature and force of the stab wounds provided strong circumstantial evidence of the accused's purpose at the time.

On self-defence, Campbell J was satisfied beyond reasonable doubt that the Crown had excluded this defence. The evidence showed the accused sought out the deceased and came armed, prepared to use the knife. No weapon was produced or presented by the deceased or his companion. The accused had the physical advantage over both men and, on the evidence, the threat presented was at most verbal. Stabbing the deceased as he attempted to leave was not a reasonable response to the circumstances, even as the accused perceived them.

The partial defence of extreme provocation was properly abandoned in closing address and required no further consideration.

Orders Made

  • The accused, Douglas Johnson, was found guilty of the murder of the deceased at Campsie on 29 June 2017.
  • Campbell J directed that the conviction be recorded on the indictment.

Key Takeaways

  • In a judge-alone murder trial, the Supreme Court is required to set out the principles of law applied and the findings of fact relied upon, performing the same function a jury would otherwise discharge.
  • A conviction for murder does not require proof of an intention to kill. An intention to inflict really serious bodily injury is sufficient under section 18 of the Crimes Act 1900 (NSW).
  • Intent is a subjective mental state proved by inference from all proved circumstances. A person's deliberate acts can themselves constitute the most compelling evidence of purpose, particularly where serious consequences were the obvious outcome.
  • Self-defence was excluded where the accused armed himself before the confrontation, sought out the deceased, retained a physical advantage throughout, faced no weapon, and stabbed the deceased as the deceased was attempting to withdraw.
  • Under the Criminal Procedure Act 1986 (NSW), s 132, an accused may elect to be tried by judge alone with the Crown's consent; in such trials the judge applies the same legal standards, including the criminal standard of proof described in Douglass v The Queen, as would apply before a jury.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132
- Crimes Act 1900 (NSW), ss 18, 23

Cases
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- Alford v Magee (1952) 85 CLR 437; [1952] HCA 3