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District Court 1 August 2022

R v Harris

[2022] NSWDC 301

Assault & violenceDomestic & family violence
CRIME

Citation: R v Harris [2022] NSWDC 301
Court: District Court of New South Wales
Date: 1 August 2022
Judge(s): Lerve DCJ

Background

The accused was charged with wounding with intent to cause grievous bodily harm under the Crimes Act 1900, with reckless wounding as a statutory alternative. The complainant and the accused were in a domestic relationship and living together with their children at a unit in Ashfield. On the evening of 3 November 2019, the complainant sustained a stab wound to her upper left chest during an argument in the kitchen.

The Crown alleged the accused deliberately took a knife from a kitchen drawer and stabbed the complainant. The accused did not deny causing the injury but maintained it was accidental, saying he was holding two knives and two forks to prepare food for the children when the complainant moved toward him and the knife made contact with her chest.

The accused took the complainant to Royal Prince Alfred Hospital by car. After dropping her off, he was observed by police, fled on foot, and was arrested at gunpoint at a nearby oval. He was tried before a judge alone.

Legal Issues

  • Whether the injury sustained by the complainant constituted a "wound" for the purposes of the Crimes Act 1900
  • Whether the Crown proved beyond reasonable doubt that the accused had the specific intent to cause grievous bodily harm (the primary count)
  • Whether, if the primary count was not made out, the Crown proved beyond reasonable doubt that the accused acted recklessly in causing a wound (the statutory alternative)
  • Whether the accused's flight from police constituted consciousness of guilt
  • Whether lies told by the accused to police constituted consciousness of guilt
  • Whether the complainant was a credible and reliable witness

Decision

Issue 1: The wound element

The court was satisfied beyond reasonable doubt that the injury sustained by the complainant constituted a wound within the meaning of the Crimes Act. The operative findings recorded a laceration extending through the pectoralis major muscle to the anterior chest wall, supported by surgical treatment including drainage and suturing (at [25]-[26]).

Issue 2: Specific intent to cause grievous bodily harm

The absence of expert medical evidence as to the degree of force required to inflict the wound was the central problem for the Crown's case on the primary count. The court observed that common sense suggested considerable force was required to penetrate the skin, fatty tissue, and muscle to the depth recorded, but found it could not make findings about the degree of force without expert evidence, particularly where the accused disputed that the act was intentional (at [232]). This gap, combined with inconsistencies and uncertainties in the hospital medical records regarding the number and nature of the injuries, created a reasonable doubt that the court could not resolve (at [232]-[233]). Lerve DCJ noted that the wound's vertical orientation was consistent with a stabbing motion and somewhat inconsistent with the accused's version, but this observation alone was insufficient to fill the evidentiary gap (at [195]).

Issue 3: Reckless wounding

The court acquitted the accused of reckless wounding on the same reasoning. The evidentiary gaps and uncertainties that prevented satisfaction beyond reasonable doubt on the primary count equally prevented that standard being reached on the statutory alternative (at [243]).

Issue 4: Flight as consciousness of guilt

The court rejected the Crown's submission that the accused's flight from police constituted consciousness of guilt. The complainant herself had given evidence that she understood a bail condition required the accused to be in her company if he left the premises. The court accepted that this alternative explanation, supported by the accused's consistent position throughout the trial, was sufficient to create a reasonable doubt on this issue, though the conclusion was reached with some prevarication (at [215]).

Issue 5: Lies as consciousness of guilt

The court found that the accused had lied to police about the circumstances of the complainant's injury and the location of the knife. He told arresting officers the complainant had fallen over while holding a knife, and told a constable in the ambulance that she had cut herself. He later conceded both accounts were untrue. No satisfactory explanation was offered for these lies, and the court accepted them as consciousness of guilt. However, the lies alone could not prove guilt beyond reasonable doubt (at [219]).

Issue 6: Witness credibility

The court found the complainant to be generally credible, with no particular reason to reject her evidence and no basis to find she was not a witness of truth (at [234]). However, her evidence contained inconsistencies regarding the number of times she was struck, and those inconsistencies were compounded by conflicting entries in the medical records (at [232]-[233]). The court rejected the evidence of Ms Bellear-Mayers, a witness for the accused, as inconsistent with objective body-worn camera footage (at [164]). The accused was found to have maintained his position throughout extensive cross-examination, though he was not regarded as an impressive witness (at [185]).

Orders Made

  • The accused was found not guilty of wounding with intent to cause grievous bodily harm.
  • The accused was found not guilty of the statutory alternative of reckless wounding.
  • The accused was discharged in respect of the indictment.

Key Takeaways

  • The District Court confirmed that the absence of expert medical evidence on the degree of force required to inflict a wound can be decisive in a case where specific intent is contested and the accused admits causing the injury but denies intent. Without such evidence, the court was unable to draw the necessary inference beyond reasonable doubt (at [232]).

  • Where the Crown relies on the accused's flight from police as consciousness of guilt, an alternative explanation supported by evidence from the complainant herself, here the accused's concern about breaching bail conditions, may be sufficient to displace that inference (at [215]).

  • Lies told to police about the circumstances of an injury and the location of a weapon were accepted as evidence of consciousness of guilt, even where the accused ultimately conceded the lies in cross-examination. However, lies alone cannot establish guilt beyond reasonable doubt (at [219]).

  • Inconsistencies within hospital medical records, particularly where notations about the number and nature of injuries conflict with each other and with a complainant's testimony, can contribute to a reasonable doubt even where the complainant is otherwise found to be generally credible (at [233]-[234]).

  • A tribunal of fact is entitled to accept part and reject part of any witness's evidence. The court accepted aspects of both the complainant's and the accused's accounts while being unable to resolve the ultimate factual contest to the criminal standard, with the consequence that the accused was entitled to the benefit of that doubt (at [241]-[242]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Evidence Act , 1995

Cases
- Dasreef Pty Ltd v Harchaw (2011) 243 CLR 588; [2011] HCA 21
- Edwards v The Queen (1993) 178 CLR 193
- Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
- Pell v The Queen [2020] HCA 12
- R v NZ (2005) 63 NSWLR 628