Citation: R v Dawson [2022] NSWDC 413
Court: District Court of New South Wales
Date: 14 September 2022
Judge: Grant DCJ
Background
In the early hours of 2 May 2021, the accused and four friends gathered at his Albury unit after a night of heavy drinking and drug use. The accused produced a shortened (sawn-off) shotgun and, while holding it with one hand and his finger on the trigger, placed the barrel against the cheek of one of his companions. Within approximately 20 seconds, the firearm discharged, causing devastating injuries to the victim's face and jaw, including a shattered jawbone, lacerations to surrounding muscles and blood vessels, and loss of teeth.
The accused faced two charges: possessing a loaded firearm so as to endanger life (count 1), and causing grievous bodily harm while being reckless as to causing actual bodily harm (count 2). He pleaded guilty to count 1 and not guilty to count 2. The matter proceeded as a judge-alone trial, with recklessness as the central contested issue.
During final submissions, the Crown sought to use the accused's guilty plea to count 1 as evidence of his knowledge that the firearm was loaded, relevant to proving recklessness on count 2. When that argument encountered difficulty, the Crown sought leave to reopen its case to tender a transcript of the plea. Both applications raised distinct procedural and evidentiary questions.
Legal Issues
- Whether the accused's guilty plea to count 1 (possessing a loaded firearm) could be used as evidence against him in proving count 2 (reckless grievous bodily harm) in a judge-alone trial
- Whether the Crown should be permitted to reopen its case after closing submissions to tender the plea transcript
- Whether the accused was reckless as to causing actual bodily harm, within the meaning of section 35(2) of the Crimes Act 1900
- Whether the firearm discharged due to the accused's own conduct
- Whether causation was established between the accused's acts and the victim's injuries
Decision
Use of the guilty plea to count 1 as evidence on count 2
The District Court rejected the Crown's submission that the guilty plea to count 1 could be relied upon to prove knowledge of a loaded firearm on count 2. The court found it would be unfair to permit this, particularly because the Crown raised the point for the first time during its closing address. Had the accused known the Crown intended to use the plea in that way, the trial may have been conducted differently. The court treated the plea to count 1 as a procedural mechanism facilitating the judge-alone trial on count 2, rather than as substantive evidence on the live charge.
Application to reopen the Crown's case
The court also refused the Crown's application to reopen its case. The test at common law requires "very special" or "exceptional" circumstances before a prosecution may reopen after closing. The court found the Crown ought reasonably to have foreseen the evidentiary gap: the accused's state of mind and knowledge that the firearm was loaded were known contested issues from the outset. This was not a case involving a minor technical oversight. Allowing the Crown to address a foreseeable deficiency at the eleventh hour fell outside the narrow exceptions recognised in Shaw v R and Lawrence v R.
Recklessness and causation
Despite rejecting both Crown applications, the court was still satisfied beyond reasonable doubt that the accused was guilty on count 2. The court applied the established test for recklessness: that the accused foresaw the possibility of actual bodily harm and went ahead regardless. The accused held a sawn-off shotgun with one hand, finger on the trigger rather than the trigger guard, in a confined space occupied by four other people. He advanced toward the seated victim and placed the barrel of the weapon against the victim's cheek. The court found he discharged the firearm by pressure on the trigger. These circumstances, taken together, demonstrated that the accused subjectively foresaw the risk of bodily harm. The court also found causation established, being satisfied the accused's conduct was a substantial or significant contributing cause of the injuries.
Orders Made
• The accused is found guilty of causing grievous bodily harm to Luke Coughlan while being reckless as to causing actual bodily harm to him on 2 May 2021 at Albury in New South Wales.
Key Takeaways
- A guilty plea to one count on an indictment is not automatically available as substantive evidence on a separate, contested count, particularly where the accused received no notice of that use before the Crown's closing address.
- The District Court confirmed that the Crown's right to reopen its case after closing is confined to very special or exceptional circumstances; a foreseeable gap in the evidence, such as proof of the accused's knowledge of a key fact that was always in dispute, will not meet that threshold.
- Recklessness under section 35(2) of the Crimes Act 1900 requires proof that the accused subjectively foresaw the possibility of actual bodily harm; it does not require proof of intention to cause harm.
- An inherently dangerous weapon such as a sawn-off shotgun, held single-handed with a finger on the trigger, pointed at a person at close range in a confined space, can of itself supply the inference of subjective foresight of the risk of bodily harm.
- The absence of motive or ill-will between the accused and the victim does not negate recklessness; friends can act recklessly toward one another.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(2), 93G(1)(a)(ii)
- Criminal Procedure Act 1986 (NSW), s 21
- Evidence Act 1995 (NSW)
Cases
- Fleming v The Queen (1998) 197 CLR 250
- Hansford v McMillan [1976] VR 743
- Haoui v R [2008] NSWCCA 209
- Lawrence v R (1981) 38 ALR 1
- R v Amanatidis [2001] NSWCCA 400
- R v Bastin [1971] Crim L R 529
- R v Donovan [1934] 2 KB 498
- Shaw v R (1952) 85 CLR 365