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District Court 10 July 2020

R v Scroop

[2020] NSWDC 953

Assault & violenceDomestic & family violence
CRIME JUDGE ALONE TRIAL JUDGMENT TWO COUNTS ON INDICTMENT WOUNDING WITH INTENT TO CAUSE GBH

Citation: R v Scroop [2020] NSWDC 953
Court: District Court of New South Wales
Date: 10 July 2020
Judge: Tupman DCJ

Background

The accused stood trial on two counts arising from an incident on 7 October 2017 at Glendenning. The complainant, who was in a domestic relationship with the accused, suffered a severe laceration to the left side of her neck. The injury was life-threatening: it involved near-transection of the external jugular vein, exposure of the cervical spine, and ultimately required surgery to repair a bleeding vertebral artery. She remained in intensive care for four days.

It was not disputed that the accused caused the injury, or that the injury constituted both a "wound" and "grievous bodily harm" within the meaning of the Crimes Act 1900 (NSW). The sole issue at trial was the circumstances in which the injury occurred, and specifically the accused's mental state at the time.

The accused did not give evidence but had provided a consistent account across a triple-0 call, a statement to attending police, and a record of interview following his arrest. His account was that he had been suffering a psychotic delusion, believed he was being pursued, and tried to push the complainant out of his way to get inside the house. He said he forgot he was holding a knife, and that the blade made accidental contact with her neck as he pushed past her.

  • Whether the Crown proved beyond reasonable doubt that the accused deliberately wounded the complainant with the intention of causing grievous bodily harm (Count 1, under the Crimes Act 1900 (NSW)).
  • Whether, in the alternative, the Crown proved beyond reasonable doubt that the accused caused grievous bodily harm while being reckless as to causing actual bodily harm (Count 2).
  • Whether the accused's account of an accidental wounding raised a reasonable doubt sufficient to defeat either charge.

Decision

Tupman DCJ conducted the trial as a judge alone, applying the same principles that would govern a jury trial, including the requirement that the prosecution prove guilt beyond reasonable doubt on every essential element. Her Honour identified the first essential element of both counts as substantially the same: whether the wounding was deliberate (for Count 1) or whether the accused caused grievous bodily harm in circumstances of recklessness (for Count 2).

The accused's version of events, drawn from his triple-0 call, his statement to police, and his record of interview, was that the cutting of the complainant's neck was accidental. He said he had been in a psychotic state, pushed the complainant with his right hand while forgetting he was holding a knife, and that the blade contacted her neck as he moved past her. Her Honour noted that, although this account was not given under oath, the accused was entitled to have it considered, and it had been given consistently across three separate occasions.

Central to the acquittal was the expert evidence of Professor Duflou, a forensic pathologist. He gave opinion evidence that it was reasonably possible the wound was caused in the manner the accused described: that as the accused pushed the complainant while holding a knife in his fist, the blade travelled across her neck from front to back and caused the injury consistent with what was observed and documented medically. Although Professor Duflou acknowledged in cross-examination that relative body positioning was a factor, he maintained his opinion was not displaced by variations in the accused's demonstrations during the record of interview.

Her Honour accepted Professor Duflou's opinion and found the accused's explanation reasonably possible. Even setting aside the accused's version entirely, her Honour was not satisfied the Crown's own evidence established the necessary elements beyond reasonable doubt. The accused was acquitted on both counts.

Orders Made

• The accused is acquitted on both charges.

Key Takeaways

  • The District Court confirmed that in a judge alone trial, the same evidentiary and proof standards apply as in a jury trial, including the requirement that the prosecution establish every essential element of the offence beyond reasonable doubt.
  • A consistent account given by an accused person across a triple-0 call, a statement to police, and a formal record of interview can constitute a version of events that must be taken into account, even though it is not evidence given under oath and must be weighed accordingly.
  • Where expert medical evidence supports the reasonable possibility that a serious wound was caused accidentally, that expert opinion can be a decisive factor in raising a reasonable doubt sufficient to defeat charges of wounding with intent and reckless grievous bodily harm.
  • For a conviction under Count 1, the Crown must prove the accused deliberately wounded the complainant with the specific intention of causing grievous bodily harm. An accidental causing of the wound, if reasonably possible on the evidence, defeats that element.
  • No error was required in the Crown case to result in acquittal. Even where a complainant's account is considered, it is sufficient for an acquittal that the accused's alternative account, supported by expert evidence, remains reasonably possible.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 428C(1), 428D (substantial disorder provisions relating to the offences charged)

Cases: No cases were cited in the judgment.