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Supreme Court 4 November 2021

R v Johnson

[2021] NSWSC 1405

Homicide
CRIME MANSLAUGHTER EXCESSIVE SELF DEFENCE TRIAL BY JUDGE ALONE

Citation: R v Johnson [2021] NSWSC 1405
Court: Supreme Court of New South Wales
Date: 4 November 2021
Judge: Cavanagh J

Background

On Boxing Day 2019, the accused fatally wounded the deceased with a cut to the neck during a gathering at the deceased's property in Mayfield, Newcastle. The accused lived nearby and had some existing connection to the deceased, though the precise nature of their relationship was unclear. By the time of the fatal incident, only three people remained in the shed area where it occurred: the accused, the deceased, and one other man.

The accused was charged with murder under s 18(1)(a) of the Crimes Act 1900 (NSW). At the outset of the trial, he pleaded not guilty to murder but offered a guilty plea to manslaughter. The Crown did not accept that plea, and the matter proceeded to trial.

The accused admitted causing the death but contended he acted in self-defence, conceding at the same time that the force he used was excessive. The trial proceeded by judge alone, an application made in October 2021 and not opposed by the Crown, during the period after Sydney and Newcastle's COVID-19 lockdown but before jury trials had resumed in New South Wales.

  • Whether the Crown proved beyond reasonable doubt that the accused did not act in self-defence under s 419 of the Crimes Act 1900 (NSW)
  • Whether there was a reasonable possibility that the accused genuinely believed his conduct was necessary to defend himself (the subjective limb of the self-defence test)
  • Whether the accused's response was objectively reasonable in the circumstances as he perceived them (the objective limb)
  • Whether the facts, if self-defence was not fully established, supported a verdict of manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW)
  • Whether the evidence of the sole eyewitness to the critical events was sufficiently credible to discharge the Crown's onus

Decision

Cavanagh J applied the two-stage self-defence test drawn from the authorities. The first question, assessed subjectively by reference to the accused's personal characteristics, was whether there was a reasonable possibility that the accused believed his conduct was necessary to defend himself. The second question, assessed objectively, was whether his response was reasonable in the circumstances as he subjectively perceived them.

The central evidentiary difficulty was that the Crown's case on what occurred immediately before the fatal wound was almost entirely dependent on one witness, who was present in the shed. His Honour found that witness to be neither credible nor reliable, and even the Crown did not submit that his evidence should be accepted in full. Cavanagh J noted that unreliability does not compel rejection of all of a witness's evidence, and that the Crown does not need to prove every aspect of every witness's account to discharge its overall burden.

Taking all the evidence together, including recordings from police body-worn cameras, footage from the police station, and an ERISP interview of the accused, his Honour concluded that a reasonable possibility remained that the accused believed his conduct was necessary to defend himself. Because that reasonable doubt existed, the Crown had not proved beyond reasonable doubt that the accused did not act in self-defence.

However, the accused himself conceded that his response was not objectively reasonable. Cavanagh J accepted that the force used was excessive. Applying s 421 of the Crimes Act, the accused was therefore guilty of manslaughter rather than murder.

Orders Made

  • The application for a trial by judge alone was granted.
  • The accused was found not guilty of murder.
  • The accused was found guilty of manslaughter and convicted accordingly.
  • The accused was remanded in custody for sentencing.

Key Takeaways

  • Under s 419 of the Crimes Act 1900 (NSW), once self-defence is properly raised, the Crown bears the burden of disproving it beyond reasonable doubt; that burden does not shift to the accused at any point.
  • The two-limb self-defence test operates distinctly: the first limb (whether the accused believed the conduct was necessary) is assessed subjectively, while the second limb (whether the response was reasonable) is assessed objectively against the circumstances the accused subjectively perceived.
  • Where the subjective limb is satisfied but the objective limb is not, s 421 of the Crimes Act operates to reduce what would otherwise be murder to manslaughter by excessive self-defence.
  • A finding that the sole Crown eyewitness to the critical events lacked credibility and reliability can be sufficient to prevent the Crown from discharging its onus of disproving self-defence, even where no contradictory evidence comes from the accused directly.
  • The absence of oral evidence from an accused does not, of itself, permit an adverse inference about their credibility; its principal effect, consistent with Weissensteiner v The Queen, is that uncontradicted evidence from other witnesses may be more readily accepted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 419, 421
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), s 20

Cases
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Oblach v Regina (2005) 65 NSWLR 75; [2005] NSWCCA 440
- R v Katarzynski [2002] NSWSC 613
- R v Murray (1987) 11 NSWLR 12
- R v Nguyen (1995) 36 NSWLR 397
- Sivaraja v R; Sivathas v R [2017] NSWCCA 236
- Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
- Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; [1987] HCA 26