R v Anthony Mark James

[2015] NSWSC 1831

Supreme Court

New South Wales

Medium Neutral Citation:	R v Anthony Mark James [2015] NSWSC 1831
Hearing dates:	23-26 November 2015 & 30 November 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Common Law - Criminal
Before:	Hidden J
Decision:	Verdict of not guilty
Catchwords:	CRIMINAL LAW – trial by judge alone – manslaughter – killing by a single stab wound – self-defence – main issue whether accused’s conduct was a reasonable response to the circumstances as he perceived them
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v Conlon (1993) 69 A Crim R 92
Category:	Principal judgment
Parties:	Regina (Crown) Anthony Mark James (accused)
Representation:	Counsel: Mr L Lungo (Crown) Mr K Averre (accused)     Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (accused)
File Number(s):	2011/174642
Publication restriction:	No

Judgment

1. HIS HONOUR: The accused, Anthony Mark James, is on trial before me, sitting without a jury, upon an indictment charging the manslaughter of a man named in the indictment as Dana Lomas at Doonside on 26 May 2011. It is alleged that the accused killed the deceased by a single stab wound in the course of a violent confrontation between the two men at the townhouse where they were living at the time.

2. The accused is alleged to have committed manslaughter by an unlawful and dangerous act. There is no issue that he inflicted the fatal wound and that that act was dangerous but, in any event, there is ample evidence to satisfy me of both those things beyond reasonable doubt. The issue is self-defence. To adopt the language of s 418 of the Crimes Act 1900, it is the accused’s case that he stabbed the deceased because he believed that it was necessary to do so to defend himself, and that his conduct was a reasonable response in the circumstances as he perceived them. Of course, he does not bear the burden of proving either of those things. He is entitled to be acquitted unless the Crown proves beyond a reasonable doubt that he did not believe that his conduct was necessary to defend himself, or that it was not a reasonable response in the circumstances as he perceived them.

3. Most of the evidence is undisputed, and the primary focus of these reasons is upon the fatal event. There is evidence by way of background, particularly directed to the relationship between the two men, which can be summarised briefly. This is a re-trial, following a successful appeal against conviction in an earlier trial, and a significant proportion of the evidence has been presented through transcripts of evidence given in the previous trial. The accused did not give evidence before me. That, of course, was his right and gives rise to no adverse inference against him.

Background

4. The first name of the deceased in the indictment is shown as Dana, but he was better known as Dale and was referred to in the evidence by that name. It appears that he was homosexual, and from time to time used female names. He and the accused had been living together at the townhouse since May 2010, although the deceased had been living there for some time prior to that. It is apparent from the evidence of members of the deceased’s family and of neighbours in the area that the relationship between the two men was volatile. They would regularly have arguments, with raised voices. One of their neighbours, Mr Alan Jones, described their relationship as not “very good.” Mr Jones’ brother, Robert, who lived with him, said that they were “always at each other.”

5. On occasions the deceased complained to members of his family of aggressive behaviour towards him by the accused. Late in 2010, he told his sister, Bella Winikerei, that the accused had hit him, causing scratches and bruising on his chest and back, which she saw. In March 2011, he had been at a party with his sister, Bella and another sister, Gloria Anderson, at the home of his niece, Eileen Winikerei. Late in the evening he left for a period and returned to his townhouse. He came back to the party, visibly distressed, and told his sisters and his niece that the accused had chased him out of the house. According to Bella Winikerei, he said that the accused had chased him out of the house with a knife.

6. There was eye-witness evidence of another occasion on which the accused inflicted violence on the deceased. On 20 May 2011, another neighbour, Ms Sandra Crawford, saw an altercation between the two men outside the townhouse. They were arguing and the accused swung a piece of wood, which Ms Crawford described as a “bed slat,” towards the deceased’s back three times, missing him the first time but striking him twice. The deceased ran in to the townhouse, and emerged with what Ms Crawford described as a “pole” in his hand and chased the accused down the street.

7. On the other hand, there were eye-witness accounts of occasions on which the deceased behaved violently or aggressively towards the accused. Some time in May 2011, Alan and Robert Jones and another neighbour, Peter Rofe, saw an incident while the accused was working on his car. The deceased approached him and verbally abused him. According to Mr Rofe, the accused told him to calm down and the deceased became very agitated and threw what Mr Rofe described as a stick from a tree at the accused three times. Robert Jones also described a big stick from a tree, and Alan Jones described it as a “hunk of timber.” Whatever the object was, it did not strike the accused.

8. In the afternoon of 24 May 2011, two days before the fatal incident, Ms Julie Pardey, her son, Blake Pardey, and her daughter, Kirralee Howley, were travelling in a car in the street where the deceased and accused lived. They saw an incident involving two men whom they did not know, but it is accepted that they were the deceased and the accused. The deceased was chasing the accused, brandishing what Ms Pardey described as a machete and her son and daughter described as a samurai sword. Ms Pardey described the accused as “running for his life.” The two men ran out of their sight.

9. In the period leading up to his death the deceased abused illicit drugs, and Ms Anderson noticed that he was losing weight and not looking after himself.

The events of 26 May 2011

10. Around the middle of the day on 26 May 2011, the day of his death, the deceased injected himself with methylamphetamine and smoked cannabis at the townhouse in the company of a longstanding acquaintance, Michael McCluskey. In Mr McCluskey’s presence, the accused and deceased were arguing. The deceased complained that the accused was not paying his way and demanded that he pack his belongings and leave. The accused was still there when Mr McCluskey left in the early afternoon.

11. It appears that the deceased then went to visit Ms Crawford, to whom he was close, and was there until sometime after 5pm. She described him as “a bit stressy” and upset, because he had told the accused that he had to leave that day. Between 5.30 and 6pm another neighbour, Raylene Gregg, saw two men in the front yard of the deceased’s townhouse having a heated conversation. Their voices were raised but she could not hear what they were saying. She did not know the men but, again, it is accepted that they were the deceased and the accused.

12. In the afternoon of 26 May, Mr Stavan Bora was in the area to visit residents and discuss their gas and electricity expenses on behalf of the Australian Gas Light Company (AGL). At about 5.15pm he went to the deceased’s home and spent some time with him in conversation about the matter. Asked by Mr Bora to produce some identification, he provided a key card in the name of Stacey Wells. During this encounter two calls were made to AGL, the second of them timed by call charge records at 5.57pm. Mr Bora left very shortly thereafter but, before he did, the deceased asked him for a cigarette and, as he put it, came very close to his face and made him feel “a bit uncomfortable.”

13. For some years the accused had been assisted by the Adventist Development and Relief Agency (ADRA) in the Blacktown area, conducted by Pastor Eddy Johnson. Through his contact with that counselling service he had met Matthew Holmes. Mr Holmes rang the accused in the early evening of 26 May and the accused sounded very distressed when he answered the phone. He said words to the effect of “I’ve done something” and “What have I done?” He asked Mr Holmes to ring Pastor Johnson. Mr Holmes said that he would do so and that he would go over to see the accused, urging him to keep calm and not do anything to harm himself. Call charge records reveal that this call was made at 6.08pm. Plainly enough, the fatal incident occurred sometime between the 5.57pm call to AGL and this call.

14. Mr Holmes told his mother that the accused had been “talking about necking himself” and was very depressed. The two of them travelled to the townhouse. The accused was not there, but Mr Holmes entered and saw the body of the deceased. A little later he saw the accused approaching him in the street. The accused said that Pastor Johnson was on his way. They did not discuss what had occurred and Mr Holmes and his mother left.

15. In the meantime the accused had gone to the home of Alan and Robert Jones. According to Mr Jones, he was shaking and he started crying. He said, “I’ve hurt Dale.” Asked what he had done, he said that he had done something bad to Dale. Mr Jones said, “How bad is he?” The accused replied, “Bad.” The accused wanted Mr Jones to contact Pastor Johnson, but he made contact with the Pastor himself. Mr Jones apparently took him to mean that he had killed the deceased, and he rang 000 to report the matter. The accused had a towel wrapped around his left arm, and he pulled it back to show what Mr Jones described as “a really nasty cut.”

16. Pastor Eddy Johnson gave evidence that the accused had visited him in the morning of 26 May, when he appeared normal and friendly. However, at about 7.15pm he received a call from him on his mobile. He was sobbing and incoherent. Pastor Johnson asked him to calm down. The accused said, “Please come, please come, I need you, Pastor Eddy.” Pastor Johnson ascertained that he was at Alan Jones’ place, and he set off to see him in the company of two members of his support group.

17. When they arrived in the vicinity, the accused approached them. Pastor Johnson said that he was still to some extent incoherent. When he asked what had happened, the accused said, “I want to die, give me a rope.” Pressed as to what had happened, he said, “He came at me with a knife and slashed my arm, so I let go, I think … . I want to die, I want to die.” The Pastor could see the towel wrapped around his left arm and the wound. The accused said, “I stabbed him, I stabbed him. Somehow I got the knife away from him and I took the knife and then I stabbed him.” He also said words to the effect that there was grappling or struggling and he “stopped” the deceased.

18. Pastor Johnson said that it would be necessary to call the police. He and his companions accompanied the accused to Mr Jones’ home, where the accused sat on a bed with his head between his hands, sobbing.

19. At about 8.40pm Senior Constable Michelotti arrived, accompanied by Acting Sergeant Cook. Senior Constable Michelotti spoke to the accused, but found him difficult to understand because he was crying and mumbling. However, the accused did say, “I’ve stabbed my friend. I think I killed him.” The officer asked him to stop crying and tell him again what had happened, and the accused said, “I had a fight with my friend. I was defending myself and I stabbed him.” Senior Constable Michelotti then went to the townhouse, accompanied by Pastor Johnson, where he found the deceased lying on a lounge in a corner of the lounge room. Ambulance officers arrived, and confirmed that he was dead.

20. At 9.10pm the accused was interviewed in the street outside the townhouse by Detective Sergeant Bristow, and an audio recording was made of the interview. That recording came into evidence as exhibit D. It is apparent that the accused was still distressed, and at times he was crying. He maintained his account that the deceased was the original aggressor with the knife, that he disarmed him and that he stabbed him, as he saw it, in self-defence.

21. He told Detective Bristow that the deceased was “going off his head” because he, the accused, was packing up to leave. He said that he wanted to move out because the deceased had been making homosexual advances towards him. Early in the interview, he said that the deceased had the knife and slashed him a couple of times to his arms. He said that didn’t really want to fight, that “after a couple of times” he just didn’t know what to do, and he just stabbed him (Qs 13-17). He said that he stabbed the deceased “just once” (Q 29), after the deceased had slashed him “about three or four times” (Q 34). A little later he said:

“… Dale was going off his head and slashed me a couple of times and I took a couple of, like I took a couple of slashes because I didn’t know what to do. I didn’t know whether to respond or just to take it. … And then after a couple of times I seen this one was really open. … I thought it was a bit too dangerous to be just copping it. … So I grabbed it and stabbed him.” (Qs 51-54)

22. Asked how he stabbed the deceased, he demonstrated a sideways motion with his right hand (Qs 84-88). Asked what he was trying to do by that action, he said that he “really didn’t have any intentions to do anything,” that it was “reflex really,” and that he was scared and confused (Qs 89-91). Again asked what he was trying to do with the knife, he said, “Just protect meself” (Q 94).

23. The effect of what he said and demonstrated was that he stabbed the deceased in the left hand side of his body as he was facing him. Asked what he was trying to do by “trying to get him with the knife,” he said:

“I was just trying to swing it around and like just scare him back. But I think he stepped in or something. He was just going wild, mate. I don’t really know what happened, mate. It just went so quick. …”

(Qs 97-103)

24. There was then the following exchange:

“Q113   … What were you intending to do by trying to get him with the knife?

A   Keeping a distance, get him away. You know what I mean? Like - - -

Q114   Were you trying to injure him?

A   No way, man.

Q115   Well if you weren’t why would you do that?

A   I was just trying to like swing it in front of him.

Q116   Yep.

A   But he’s gone like that.

Q117   Yep.

A   Like grabbing - - -

Q118   You’re sort of indicating that he, that he sort of jumped at you with his arms up?   

A   Yeah, he just went like that. And I went … And I just went to swing it like that.

Q119   Yep.

A   And I think I got him in here somewhere.

Q120   So it’s gone into his side under his left arm has it?

A   (NO AUDIBLE REPLY)

Q121   That’s what you’re sort of indicating to me.

A   Yeah”.

25. Asked how hard he stabbed the deceased, he said that it didn’t feel hard (Qs 124-125). He said that prior to the incident the deceased had had people at the townhouse “taking drugs and stuff,” although it is unclear at what stage of the day this was said to have happened (Q 65). He later said that the deceased “goes right off his head when he is on pills and shit” (Q 105).

26. He denied that it was his intention to kill the deceased or, indeed, to injure him (Qs 126-128). He tearfully expressed his remorse, saying “I’m so sorry, man. I’m just fucken so sorry. … please forgive me, man. I’m so sorry” (Qs 146-147).

27. The accused was taken to Blacktown Hospital, where he was seen in the Emergency Department by a registered nurse, Jacqueline Borsato. Ms Borsato saw three cuts to his right forearm and a wound to his left forearm. She also observed what appeared to be recent red marks on his left eye and his cheek and scratch marks on his chest. He was treated by Dr Farooq, who sutured the cuts to his forearms. Dr Farooq reported that the laceration to the left forearm involved the fat layer inside the skin, but there was no muscle injury.

28. Photographs of the accused’s forearms are part of exhibit E. The wound to the left forearm looks large and deep. Photographs of the red marks on the accused’s face are part of exhibit W.

The expert evidence

29. A post-mortem examination of the deceased was conducted by Dr Riane Van Vuuren in the morning of 28 May 2011. I received the transcript of her evidence in the previous trial. She found the cause of death to be a stab wound to the posterior lateral aspect of the chest, that is, on the left hand side towards the back and under the arm. The wound was 24cm deep, and had penetrated the left lung and the heart. Her opinion was that it probably needed moderate to severe force to inflict the wound.

30. Dr Van Vuuren noted superficial injuries to the deceased’s left hand, consistent with defence injuries. She also noted that the hyoid bone, which is in the neck, had been fractured. There was a small bruise associated with the fracture, and two abrasions on the right side of the neck and two small incisions on the right lateral aspect of the chin. She was of the view that the fracture of the hyoid bone and these other injuries were occasioned at the same time as the stab wound.

31. She said that a fracture of the hyoid bone is normally the result of manual strangulation. However, in cross-examination by counsel then appearing for the accused, she agreed that it was possible that the fracture and at least some of the injuries on the right side of the neck and jaw were caused by the accused seizing and squeezing the deceased’s neck or the area between the shoulder and the neck. The scenario was put to her of the accused grabbing the deceased in the neck area with his left hand, while holding the knife in his right hand, in a “defensive action,” and she could not rule out the possibility that the injury to the hyoid bone was caused in that way.

32. Also in cross-examination, Dr Van Vuuren agreed that the stab wound was horizontal, consistent with the knife having been held in that plane when it was inflicted. Counsel demonstrated a movement whereby the knife was turned on its side and swung in a sideways action, and the doctor agreed that that would be consistent with the wound. Counsel then took her to the accused’s account in the recorded interview at Qs 113-121, quoted above, the effect of which was that while the accused was swinging the knife in front of the deceased, the deceased jumped towards him with his arms up and the accused, by a sideways swinging action, caused the knife to penetrate his side under the left arm. The doctor agreed that that was a possible scenario.

33. I also received a transcript from the previous trial of the evidence of Dr Judith Perl, the well-known forensic pharmacologist, who was supplied with a blood sample taken from the deceased. She found that the blood contained 0.3 mgs per litre of amphetamine and 0.24 mgs per litre of methylamphetamine. Also present was delta-9-THC acid, consistent with the deceased having used cannabis. She described the concentration of methylamphetamine as within the toxic range, that is, a level at which one would expect to see adverse effects upon an individual. Those effects, however, would vary depending upon the degree of tolerance that person had developed to the drug. She found that the methylamphetamine had been partly metabolised, which means that it would have been ingested at least 2 to 4 hours before death.

34. She described the effects of methylamphetamine, initially producing excitability, hyperactivity, agitation, and even paranoia in high doses. However, when the drug starts to wear off the body goes into a withdrawal stage, producing fatigue, decreased alertness and slower movements. The deceased’s interaction with Mr Bora, the AGL representative, was described to her, and she said that he appeared to have been “functional and not grossly impaired” at that time. She said that the methylamphetamine he had used around the middle of the day with Mr McCluskey would have been past its peak level of intoxication, and may have been at the beginning of the withdrawal stage, at around the time of the fatal incident. However, if he had used the drug later in the afternoon he could have been at his peak level of intoxication at that time. She agreed that if the deceased took to the accused with a knife and slashed his forearms, that would be consistent with the “aggressive, hostile behaviour that can occur with methylamphetamine.”

Verdict

35. The history of aggression in the relationship between the deceased and the accused is relevant, insofar as it discloses a tendency on the part of both of them to react to disagreements with a measure of violence. Counsel for the accused, Mr Averre, put some weight upon the incident of the 24 May when the deceased chased the accused, armed with a machete or samurai sword. That certainly was remarkable behaviour, possibly fuelled by methylamphetamine. Nevertheless, it is not in dispute that from time to time there was aggression on both sides, and it cannot be said that the deceased exhibited a propensity to violence that was not shared by the accused.

36. Whether the ingestion of methylamphetamine contributed to the deceased’s behaviour on the occasion in question and, if so, to what extent, I cannot say. Certainly, he used the drug in the company of Mr McCluskey but I can make no finding as to whether he used it again at some later stage. It is difficult to know what, if anything, should be made of his conduct towards Mr Bora before they parted which made that gentleman feel uncomfortable. In the light of Dr Perl’s evidence, I can say no more than that his behaviour is consistent with his being intoxicated by methylamphetamine.

37. Nor can I make any clear finding about what triggered the incident. It appears to relate to the question of the accused leaving the townhouse, but I cannot say whether that was because the deceased had ordered him out because he was not contributing to the household, or the accused had chosen to leave because the deceased was making sexual advances towards him.

38. All that said, it is clear, and the Crown prosecutor accepted, that the deceased was the original aggressor. This was consistently the accused’s account of the incident to people that night, an account which was fleshed out in some detail in the recorded interview with Detective Bristow. Of course, it is also borne out by the injuries to his forearms, particularly the deep cut to the left forearm.

39. The Crown prosecutor submitted that, nevertheless, the accused managed to disarm the deceased, notwithstanding his injuries, and that he should then have retreated. He argued that there was nothing in the accused’s account to suggest that he was cornered or trapped, so as to be unable to do so. He also noted that the deceased was not a larger and more powerful man than the accused. He pointed to Ms Anderson’s evidence that the deceased was losing weight and not looking after himself at the time, and in the recorded interview the accused said that he and the deceased were “about the same size” (Q 104).

40. In the light of these matters, the Crown prosecutor raised an issue as to whether the accused believed that it was necessary to stab the deceased to defend himself. His principal submission, however, was directed to the issue of proportionality: that I would be satisfied that the accused’s act was not a reasonable response to the threat which he perceived.

41. In response, Mr Averre noted that, on the accused’s account, the struggle between the two men continued after he had wrested the knife from the deceased. The accused said as much to Pastor Johnson. He maintained that account, in greater detail, in the recorded interview, particularly in answer to questions 97 to 103 and questions 113 to 121, referred to at [23]-[24] above. Mr Averre also relied upon the evidence of Dr Van Vuuren that his account in answer to questions 113 to 121 was consistent with her post-mortem findings.

42. Mr Averre submitted that the other injuries to the deceased, including the fracture of the hyoid bone, were consistent with being caused in the course of a struggle, as were the marks on the accused’s face and the scratch marks on his chest. He noted that the accused inflicted only one stab wound on the deceased, not multiple wounds, and that that wound was to the posterior lateral aspect of the deceased’s chest, not to the front of his chest or his head or neck. All this, he argued, conveys that the accused was dealing with an ongoing confrontation from which there was no easy retreat.

43. In my view, Mr Averre’s submissions should be accepted. The evidence supports a finding that the deceased’s aggression towards the accused continued even after he had been disarmed, raising the possibility that he might have got hold of the knife again and caused the accused further injury. This was so notwithstanding the relative strength of the two of them. I accept the accused’s account, referred to at [22] above, that the deceased was “going wild” and that the event happened very quickly. The accused’s reaction must be assessed in a practical, common sense way. Regard must be had to the urgency of the situation and the impossibility of a person in his position to “weigh precisely the exact measure of self-defensive action which is required”: R v Conlon (1993) 69 A Crim R 92 at 98 (Hunt CJ at CL).

44. I find it reasonably possible that the accused believed that his conduct was necessary to defend himself, and that his response was reasonable in the circumstances as he perceived them. Accordingly, I am not satisfied beyond reasonable doubt that he was not acting in self-defence, and I find him not guilty.

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Decision last updated: 03 December 2015