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Supreme Court 31 March 2021

R v Reay

[2021] NSWSC 311

Homicide
CRIME MURDER JUDGE ALONE TRIAL SELF ‑ DEFENCE DISPROVED EVIDENCE OF ACCUSED REJECTED TENDENCY EVIDENCE CONSIDERED

Citation: R v Reay [2021] NSWSC 311
Court: Supreme Court of New South Wales
Date: 31 March 2021
Judge: R A Hulme J

Background

The accused faced trial for the murder of a fellow inmate at the Mid North Coast Correctional Centre on or about 10 June 2019. The accused pleaded not guilty to murder but offered a plea of guilty to manslaughter, which the Crown declined to accept. The trial proceeded before a judge alone, with both the accused and the Crown consenting to that course.

At the conclusion of the trial, the accused maintained he should be found not guilty of murder and convicted instead of manslaughter. He put that case on two alternative bases: first, that his conduct amounted to an unlawful and dangerous act falling short of murderous intent; and second, that he acted in excessive self-defence, meaning he genuinely believed defensive force was necessary but used more force than was objectively reasonable.

Both the Crown and the defence relied on tendency evidence. The Crown sought to establish the accused had a tendency toward unprovoked aggression. The accused sought to establish the deceased had a tendency toward unprovoked violence, supporting his contention that the deceased was the initial aggressor.

  • Whether the Crown proved beyond reasonable doubt that the accused's deliberate acts caused the death of the deceased
  • Whether the Crown proved the accused intended to kill or inflict grievous bodily harm at the time of those acts
  • Whether self-defence was available, specifically whether it was reasonably possible the accused believed his conduct was necessary to defend himself
  • Whether, if self-defence was not fully established, the accused was guilty only of manslaughter by excessive self-defence or by unlawful and dangerous act
  • Whether tendency evidence adduced by the Crown (regarding the accused's propensity for unprovoked violence) and by the defence (regarding the deceased's propensity for unprovoked violence) was established and what weight it should carry

Decision

Hulme J convicted the accused of murder. The court was satisfied beyond reasonable doubt that the accused committed deliberate acts causing the death of the deceased and that those acts were accompanied by an intention to inflict at least grievous bodily harm. The threshold for murder, on the element of intent, was therefore met.

The court rejected the accused's evidence. Although the judge noted that a rejection of the accused's account does not, by itself, establish guilt, the Crown's independent evidence was found to be sufficient in quality and content to satisfy the required standard. The accused's lies, identified during the trial, were not used to draw an inference of consciousness of guilt, but were treated as bearing on the credibility of his account.

Self-defence was disproved to the requisite standard. The court found the Crown had established beyond reasonable doubt that the accused did not genuinely believe his conduct was necessary to defend himself. That conclusion disposed of both the complete self-defence defence and the alternative of excessive self-defence. With self-defence ruled out, the partial manslaughter alternatives also fell away.

On tendency evidence, the court accepted that the deceased had displayed a propensity for violence and intimidation in the more distant past, based on a series of incidents spanning from 1995 to 2009 and two further incidents in March 2019. However, the court found that evidence did not, on the facts as assessed, assist the accused's case sufficiently to raise a reasonable doubt about who was the aggressor or about the accused's state of mind at the relevant time. The Crown's tendency evidence regarding the accused was also considered within the overall assessment of the evidence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In a judge-alone murder trial, the rejection of an accused's evidence does not automatically warrant a guilty verdict; the Crown's independent evidence must still satisfy the court beyond reasonable doubt on each essential element.
  • A complete acquittal on self-defence requires only that it be reasonably possible the accused believed defensive force was necessary; where that belief is disproved beyond reasonable doubt, both complete self-defence and excessive self-defence (as a basis for manslaughter) are unavailable.
  • Tendency evidence adduced by an accused to show the deceased was the initial aggressor must be assessed carefully; the Supreme Court here found that historical incidents of violence by the deceased, while accepted as establishing a past tendency, did not raise reasonable doubt on the facts presented.
  • Where the Crown limits its use of proven lies to credibility rather than consciousness of guilt, those lies remain relevant to assessing the accused's reliability as a witness but cannot support a separate inference of guilt.
  • Under the Wilson v the Queen (1992) 174 CLR 313 standard, an act is "dangerous" for the purpose of manslaughter by unlawful and dangerous act if a reasonable person in the accused's position would have recognised it exposed the deceased to a risk of serious injury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), Pt 11 Div 3
- Criminal Procedure Act 1986 (NSW), ss 133(2), 283B(3)
- Criminal Procedure Regulation 2017 (NSW), r 91
- Evidence Act 1995 (NSW), s 90
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9
- Mental Health Act 2007 (NSW)

Cases:
- Wilson v the Queen (1992) 174 CLR 313; [1992] HCA 31 (the test for "dangerous" in manslaughter by unlawful and dangerous act)