Citation: R v Miller [2020] NSWDC 857
Court: District Court of New South Wales
Date: 10 September 2020
Judge(s): Buscombe DCJ
Background
The accused attended a 21st birthday party at a residential premises in Schofields on the evening of 23 March 2019. A dispute arose at the party when a friend of the accused's group was confronted near a back fence over alleged inappropriate conduct towards a female guest. The complainant intervened to remove his friend from that confrontation and then attempted to leave the premises with his girlfriend and his friend.
A group of partygoers followed the departing trio up the street. The accused moved toward the complainant and the friend. A physical interaction occurred during which the complainant sustained a right clavicle fracture, a temporal bone fracture, a laceration to the back of the head breaching both layers of skin, a bifrontal cerebral contusion, and a parafalcine subdural haematoma.
The accused stood trial in a judge-alone proceeding on a single count of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW). The core dispute was whether the accused committed the wounding, and if so, whether he acted in lawful self-defence.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused wounded the complainant and was reckless as to causing actual bodily harm.
- Whether self-defence was made out, specifically whether the accused believed his conduct was necessary for self-defence and whether his response was reasonable in the circumstances as he perceived them.
- Which witness accounts were sufficiently reliable to support findings of fact, given widespread intoxication, competing versions, and the chaotic circumstances of the incident.
Decision
Issue 1: Wounding and Recklessness
The court found that the accused placed the complainant in a bear-hug or tackle, lifted him off the ground, and speared him head-first into the roadway, causing the complainant to lose consciousness (at [121]). The complainant's laceration to the back of the head breached the dermis, satisfying the legal definition of a wound (at [95]). The court was satisfied beyond reasonable doubt that the accused realised actual bodily harm may possibly be caused to the complainant at the moment he lifted and speared him into the ground (at [125]).
Issue 2: Self-Defence
Self-defence was raised as a live issue. The court found that the complainant had stepped into the accused's path and pushed him in the chest, and the court accepted that the accused may have believed his conduct was necessary to defend himself in the chaotic circumstances, taking into account his youth, intoxication, and the tension on the street (at [122]). However, the court was satisfied beyond reasonable doubt that lifting and spearing the complainant head-first into the roadway was not a reasonable response in the circumstances as the accused perceived them (at [123]). The court disregarded the accused's intoxication in assessing the reasonableness of his response, consistent with established authority (at [97], [124]). Because the complainant was clearly in retreat and leaving the party at the time of the interaction, the Crown negatived self-defence on the basis that the accused's response was disproportionate and therefore excessive (at [124]-[125]).
Issue 3: Credibility and Witness Assessment
The court undertook a careful credibility assessment of the numerous witnesses, all of whom had consumed alcohol to varying degrees. The court placed considerable reliance on Mr Vasallo, found to be a straightforward witness doing his best to recall events accurately (at [107]). Ms Lawford was found to be a reasonably straightforward witness despite her emotional state (at [104]). By contrast, the court placed no reliance on Brendan Hawes, finding his account irreconcilable with nearly all other evidence (at [108]). Jeremy Hawes and Lachlan Spencer were similarly treated as unreliable, the latter having consumed an extraordinary quantity of alcohol and having experienced a blackout (at [109]-[110]). The accused's own evidence was found to be vague and uncertain under cross-examination, and his claims to have no memory of events immediately after the incident and no recollection of any conversation about it at the party were rejected as impossible to accept (at [111]).
Orders Made
- The accused is found guilty of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW), on the basis of acting in excessive self-defence.
Key Takeaways
- A conviction for reckless wounding under s 35(4) of the Crimes Act 1900 (NSW) requires proof that the accused caused a break or cut to the dermis (interior skin layer), and that the accused realised actual bodily harm may possibly result from the conduct. A break or cut to the epidermis alone is insufficient (at [95]).
- Where self-defence is raised, the Crown may negative it by proving either that the accused did not hold the requisite belief that the conduct was necessary, or that the response was not objectively reasonable in the circumstances as the accused perceived them. Proof of either limb is sufficient (at [96]-[97]).
- Under the excessive self-defence framework applied in this judgment, a court must assess the reasonableness of the accused's response without reference to self-induced intoxication, even though intoxication may be considered when assessing whether the accused subjectively believed the conduct was necessary (at [97], [124]).
- In a judge-alone trial, the court is required by s 133 of the Criminal Procedure Act 1986 (NSW) to expose in the judgment the principles of law applied, the findings of fact relied upon, and the reasoning process linking those principles to the verdicts reached (at [92]).
- Where multiple witnesses gave conflicting accounts of a fast-moving, late-night incident, the District Court undertook witness-by-witness credibility analysis, weighing factors including alcohol consumption, relationship to parties, prior inconsistent statements, and the inherent plausibility of each account before identifying which evidence could safely be relied upon (at [101]-[112]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 35(4), 418 and 419
- Evidence Act 1995 (NSW) ss 38, 138
- Criminal Procedure Act 1986 (NSW), s 133
Cases
- R v Katarzynski [2002] NSWSC 613
- Mahmood v R (2008) 232 CLR 397; [2008] HCA 1