Citation: R v Burns [2021] NSWSC 1536
Court: Supreme Court of New South Wales
Date: 29 November 2021
Judge(s): McCallum JA
Background
The offender pleaded guilty to the murder of Erol Tokcan, who died from a single stab wound sustained during a home invasion at his residence in Dharruk in March 2018. The offender, together with three associates, had first visited the deceased's home to purchase cannabis, was turned away, and then returned with a plan to rob the occupants of drugs and money. The offender had consumed a substantial quantity of alcohol and cannabis that evening but retained, on the court's findings, a meaningful capacity for rational thought.
The offender originally pleaded guilty only to manslaughter and armed robbery with wounding. The Crown did not accept those pleas in discharge of the indictment, and trial proceedings were listed. Approximately three weeks before the trial date, the offender entered a guilty plea to murder. The plea was entered on the basis that certain facts would remain contested.
Three factual issues remained in dispute between the parties at the time of sentencing: the type of knife used, whether the stabbing was accidental or deliberate, and whether the offender had the intention to cause grievous bodily harm (really serious harm) at the time of the stabbing.
Legal Issues
- What type of knife did the offender carry and use during the home invasion?
- Was the stab wound inflicted deliberately or accidentally?
- Did the offender form an intention to cause really serious harm to the deceased, and if so, when was that intention formed?
Decision
On the first issue, the court rejected the Crown's original contention that the offender used a large "SPIKA" brand hunting knife designed for pig hunting. The court accepted the offender's account that he used a folding pocket knife approximately 15 to 20 centimetres in total length, with a blade of around 10 centimetres, which he ordinarily carried as a utility knife for work.
On the second issue, the court rejected the offender's claim that the stabbing was accidental. The court accepted the evidence of David Lupica, a friend of the deceased who was present during the incident, over the offender's own account on key contested points. The court was satisfied beyond reasonable doubt that the act of stabbing was deliberate.
On the third issue, the court found that the offender did form the intention to cause really serious harm, but that this intention arose spontaneously during a physical struggle between the offender and the deceased. The intention was not premeditated in the sense of being formed before the offender entered the house. Rather, it emerged in the moment when the offender was trying to escape from the deceased's grip during the fight.
Sentencing was not concluded in this judgment. The court noted that further evidence on the offender's subjective case remained to be heard, with delays attributed to the impact of COVID-19 on prison systems. The final sentencing judgment was to follow on a later date.
Orders Made
No orders were made in this decision.
Key Takeaways
- A guilty plea to murder entered on the basis of contested facts requires the sentencing court to resolve those disputes before imposing sentence, with the Crown bearing the burden of proof beyond reasonable doubt on aggravating factual matters.
- Under the constructive murder provisions of s 18(1)(a) of the Crimes Act 1900 (NSW), an intention to cause really serious harm need not be premeditated; it can be formed spontaneously in the course of a struggle, and the sentencing court will inquire into precisely when and how that intention arose.
- Where a Crown witness proves unable to complete cross-examination due to distress, the court may excuse the witness, and the Crown may in fairness withdraw that evidence entirely, as occurred here with the deceased's girlfriend.
- Sufficient evidence supported a finding that the stabbing was deliberate, notwithstanding the offender's significant intoxication that evening, where the offender had demonstrated rational tactical thinking immediately before entering the premises.
- The type of weapon used remained a contestable sentencing fact; the court resolved this by accepting the offender's account of a folding pocket knife rather than the larger hunting knife originally alleged by the Crown.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes Act 1900 (NSW), s 98 (armed robbery and wounding)
Cases cited: No cases were cited in the provided text of the judgment.