R v Barendregt J J
[2008] SADC 35
•3 April 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARENDREGT
Criminal Trial by Judge Alone
[2008] SADC 35
Reasons for the Verdict of His Honour Judge Tilmouth
3 April 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM
Trial by judge alone - accused charged with causing serious harm with intent to cause serious harm.
Held:
1. The prosecution has failed to prove that the accused inflicted or intended to inflict serious harm endangering life.
2. The accused should be convicted of the alternative offence of causing harm with intent to cause harm.
Consideration given to meaning of "serious harm". Consideration given to availability of alternative verdicts to a charge of causing serious harm with intent to cause serious harm.
Defences of self-defence and intent considered.
Criminal Law Consolidation Act 1935 (SA) ss5, 5AA, 15, 21, 23, 24, 25, and 270, referred to.
R v Gray (1998) 98 A Crim R 589; R - Habkouk (2005) 241 LSJS 428; [2005] SADC 109; Mule v The Queen (2005) 221 ALR 85; 79 ALJR 1573; R v Olasiuk (1973) 6 SASR 255; Morgan v Coleman (1981) 27 SASR 334, applied.
R v Soma (2003) 212 CLR 299; 77 ALJR 849; Byrne v Godfree (1997) 96 A Crim R 197; R v Fahey (1978) 19 SASR 577; Zecevic v DPP (1987) 162 CLR 645; R v Dziduch (1990) 47 A Crim R 378, considered.
R v BARENDREGT
[2008] SADC 35The charge
The accused Johannes Jacobus Barendregt stands trial on a charge described in the information as “aggravated unlawfully causing serious harm with intent to cause harm” to a Mr Humphrys, contrary to s23(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act). A second count of “aggravated recklessly causing harm” to a Ms Shultz was subject to the entry of a nolle prosequi at the commencement of the trial. A number of alternative lesser verdicts are open, as will appear later. The trial proceeded without a jury, the accused having duly elected to be tried by Judge alone pursuant to s7 of the Juries Act 1927 (SA).
On 17 March 2008 Mr Barendregt was arraigned and pleaded “not guilty” to the charge, the particulars alleged on the information being these:
Particulars of Offence
Johannes Jacobus Barendregt on the 13th day of June 2006 at Gawler, while using an offensive weapon, namely a knife, unlawfully caused serious harm to Rodney Humphrys intending to cause him serious harm.
Brief summary of core events
The background to the offence charged is that the alleged victim Rodney Humphrys, an older half-brother of the accused, was drinking with him at the Terminus Hotel in Gawler and at times with the witness Hayley Schultz, on the evening of Tuesday 13 June 2006. The hotel sits on the corner of Fifteenth and Eighteenth Streets, more or less opposite the Gawler Railway Station.
The three were outside the Hotel later in the evening on the roadway close to the carpark of the Gawler Railway Station. For one reason or another the accused and Humphrys became angry with each other and they began pushing and shoving one another. At one point, the timing of which is not clear, Humphrys punched the accused. The accused pulled out a knife, cutting or stabbing him five times. It is these five wounds that form the nub of the charge.
Humphrys was taken to hospital by ambulance where he was admitted and treated for what the prosecution contended were at least three life threatening stab wounds. The nature and extent of the wounds are detailed later.
The accused left the area almost immediately, going down Eighteenth Street and through a back yard. He was arrested by police at about 1.00 am at his home in Gum Crescent, Gawler West. Humphrys also resided there at the time. He was questioned by police commencing at about 2.16 am and made certain admissions, to be detailed later. An examination of the accused under the Criminal Law (Forensic Procedures) Act 1998 (SA) was commenced at 4.42 am, during which blood was taken from him at 4.57 am. A blood alcohol content of 0.126% alcohol in 100 millilitres of blood was detected. He denies the offence, claiming to have no memory of injuring his brother, the lack of the necessary intent and he relies on self-defence.
The preceding and succeeding events
What follows by way of narrative is not seriously in contest, except to the extent otherwise specified. Humphrys and the accused were at home during the afternoon of 13 June 2006. The family had moved into the area from Enfield several years earlier. Both had a meal before leaving. At a time described by Mr Humphrys as “around 6, 6 to 7 o’clock”,[1] they went to the Kingsford Hotel, which is closer to the central part of Gawler than the Terminus, somewhere in the vicinity of Main North or Adelaide Roads.[2] No doubt they purchased a ten pack of Woodstock, a spirit mix of Bourbon and Coca-Cola and drank five of those each. It is unclear on the evidence whether they were consumed at home or when walking between the two hotels. Either way they proceeded to the Terminus arriving according to Mr Humphrys, around 8 or 9 pm. The evidence, particularly that of Ms Schultz who said she saw Mr Humphrys there just after 6.30 pm,[3] suggests they must have arrived at least an hour or so earlier than Mr Humphrys recalled. Likewise it would appear that when they set out on foot for the Kingsford, it must have been before dusk.
[1] T40 L22-L23.
[2] See Plan Exhibit P2.
[3] T102 L18.
Whilst at the Terminus they drank pints of beer and played pool. Humphrys recognised Schultz, whom he last saw about four years previously and with whom he later struck up a long conversation. According to Mr Humphrys he and Mr Barendregt consumed four pints of beer, a stubby of Pure Blonde beer and “a couple of shots of Jack Daniels”.[4] These were taken “drink for drink”.[5] On the accused’s account there were additional shots of Jim Bean; they drank “a lot” of alcohol that night.[6] Mr Barendregt was unable to quantify the number or type of drinks for which he paid, although he considered he spent more than $300 on alcohol all up.[7]
[4] T43 L17-18.
[5] T43 L21-22.
[6] T399 L24.
[7] T378 L21.
There was an incident in the front bar some time later, before they finally left. The accused on all accounts became concerned at the loss of a packet of cigarettes. There was evidence from both Humphrys and Ms Schultz that he produced a knife, when another patron “just kept staring my brother out and my brother got agitated”.[8] Ms Schultz was determined when pressed under cross-examination that “all I know is that he pulled the knife out … because Mr Humphrys told him to put the knife away and he did”.[9] Mr Humphrys and the accused described it as a “SWAT knife” ordinarily used for fishing, similar to the knife produced into evidence and seized by the police in the accused’s house.[10] Mr Barendregt admits taking the knife out in more benign circumstances, but whatever the precise facts, this incident does not throw any light on subsequent events, except only that it is evidence of him possessing a knife that night.
[8] T46 L1-3.
[9] T167 L28-33.
[10] T47 L2 and P5 respectively.
At all events the accused eventually suggested they should leave the hotel. They went outside with Ms Schultz and despite the evidence of Mr Humphrys, the evidence establishes a six-pack of Black Douglas cans was possibly purchased by the accused shortly beforehand, at another hotel further south along Fifteenth Street, the Criterion. There is however no evidence of empty cans of that description being found in the area. If so purchased, these were probably then consumed outside. Mr Barendregt returned to the Criterion again later and undeniably bought a six-pack of Kentucky Ryder cans, a bourbon and cola mix. The evidence establishes, particularly the photographic evidence, that a number of these latter cans were consumed outside on the road near the carpark close to the Gawler Railway Station.[11] The probabilities are that all three participated in this. It appears that Humphrys and Ms Schulz were attracted to each other, and were hugging and kissing at times outside, where they had by then gathered.
[11] Exhibit P1, Photographs numbers 23, 24, 25, 26, 27, 32 and 35 in particular.
For some reason an argument developed between Humphrys and the accused, the cause of which is not conclusively established on the evidence. Although there is a hint at times of an altercation over the affections of Ms Schultz, or because the accused directed pejorative or disrespectful remarks at her, no sufficient motive is established beyond reasonable doubt from which the court can draw any inference adverse to him: Penney v The Queen.[12] The exchange progressed from pushing and shoving to at least one blow to the head of the accused. Ms Schultz, who tried to intervene, received a cutting knife wound to the rear left shoulder towards the end of these events. This wound founded the charge on which the nolle prosequi was entered. Mr Humphrys then sustained the five knife wounds referred to.
[12] (1998) 72 ALJR 1316 at [26-27].
There is some degree of contention as to whether this was one closely related incident or whether there were two. On the evidence of Humphrys there was one. According to Ms Schultz there were two, the first comprising pushing and shoving with the accused jabbing at Humphrys with the knife. The second was the knifing incident itself. The evidence of the accused does not elucidate this any further.
It is not possible on the whole of the evidence to make any finding beyond reasonable doubt as to the precise course of events. However, it is evident that the argument began near the carpark of the railway station and that it ended with the knifing of Humphrys, precisely where it is impossible to say. A jacket belonging to Humphrys and a can of alcohol almost certainly carried by him were located close to Marker “1” at a point towards the centre of Nineteenth Street.
It is clearly proven that the accused inflicted the knife wounds. Humphrys then began bleeding. At about the same time the accused was hit by Humphrys to the area of the left eye and temple, causing him to bleed. The accused more than likely, went back into the front bar briefly, as deposed to by the witness Michelle,[13] then decamped down Eighteenth Street initially in an easterly direction, before going home. It is clear from the photographs and blood stain evidence that he must have entered a lane running off Eighteenth Street (sometimes referred to Bassett Common) marked on Exhibit P2 by Sergeant McKenzie, jumped the fence into the backyard 12 Eighteenth Street,[14] proceeded across garden beds[15] and then scaled a metre high gate in a side fence leading to the front of the property, returning him to Eighteenth Street.[16] From there he must have gone home, just when is a matter of speculation.
[13] T195 L5-L14.
[14] At a point shown in the photographs Exhibit P1 near the cone to the left side of photograph 18.
[15] Photographs 12, 13, 14.
[16] Photographs 6, 5, 4, 3, 2 and 1 respectively in order of direction.
In the meantime Humphrys was assisted to the hotel entrance by Ms Schultz. Very shortly thereafter police arrived, at approximately 11.10 pm. They were rung at 11.05 pm.[17] An ambulance conveyed him to the Royal Adelaide Hospital where he was admitted at 0039 hours the following morning. At that time he was fully conscious and mentally alert, although suffering compensatory shock due to blood loss.[18]
[17] Agreed fact No 11, Exhibit P6.
[18] T303 L34 – T304 L5.
The injuries to Mr Humphrys
Mr Humphrys was treated by Dr Bautz, a general surgeon specialising in trauma medicine. Five random stab wounds, three on the same side were identified. These were to the left posterolateral neck (which was bleeding), another to the posterior junction of the arm and shoulder (which was also bleeding), the midline epigastrium or stomach, the posterior proximal forearm and a fifth injury to the left proximal anteromedial thigh. These are shown in the photographs taken by him. [19] Humphrys was taken to a resuscitation room where the bleeding was controlled and the wounds were cleaned and closed, in a procedure taking several hours under general anaesthetic.
[19] Exhibit P11, photographs 1-5 respectively.
Dr Bautz described the injury to the left shoulder as 8 cm long, 2-3 cm wide and 12 cm deep; that to the left rear neck as 3.5 cm long, approximately 10 cm deep going to but not penetrating the spine; the third a 1 cm stab to the upper part of the abdomen going to the abdominal wall, possibly 1.5 – 2 cm deep; the fourth a superficial cut near the left elbow going down to the bone and the fifth a superficial 3 cm wound to the left thigh having a 12 cm tract.
According to Dr Bautz, had the bleeding stopped, Mr Humphrys would not have suffered complications. Had bleeding continued he might have suffered low blood pressure and organ injury, such as acute renal failure for example. Had the stab wound to the neck gone deeper it would probably have penetrated the spinal cord and it might have resulted in quadriplegia at worst or a “host of incomplete injuries” as a consequence.[20] The possibilities were numerous, including severing the carotid artery, which could cause death.[21] On the assumption that the same wound penetrated the chest, his opinion was that this could also have proved fatal.[22]
[20] T306 L26..
[21] T308 L24-310 L32.
[22] T310 L33-311 L20.
He was then taken by counsel to the abdominal injury. Assuming the knife had struck the aortic blood vessel, it was likely to have been fatal,[23] and potentially fatal if bowel injuries resulted.[24] With respect to the injury to the upper left thigh, Dr Bautz was of the view that a stab ‘could have cut the femoral artery’ and consequently could have caused death in the event of ‘delayed haemorrhage if one does not specifically deal with this wound’.[25] Prosecuting counsel then took him to a consideration of the shoulder injury, which he thought could have been life threatening “had it travelled more to the back…[and]…penetrated into the chest”, where it is not unknown for a knife to hit intercostal vessels which might then bleed “very significantly” and consequently could become potentially life threatening.[26] He did not regard the elbow injury to be life threatening or likely to be life threatening in any respect. He described the neck and shoulder wounds as “incisional”.
[23] T311 L21-311 L38.
[24] T312 L1-312 L14.
[25] T312 L15-312 L32.
[26] T312 L33-313 L9.
In the result, based on the evidence of Dr Bautz, we are left with five injuries, of which only the neck and the shoulder were actively bleeding,[27] two of which were superficial being those to the left forearm and the abdomen. On the other hand three of them plunged deeply into the flesh to the extent that Dr Bautz described them as involving “a fair amount of intention or force …”.[28] All proved relatively easy to treat and to stop the bleeding. To quote from the evidence of Dr Bautz:[29]
… these were all fairly superficial small vessels, plus some vessels from the muscles, luckily it wasn't a major vessel that had bled.
[27] T313 L20-L23.
[28] T346 L3-L4.
[29] T300 L23-L26.
He was asked during examination-in-chief whether these injuries might have been life threatening:[30]
Q. In relation to Mr Humphrys, was there a risk of this happening to him, assuming no medical treatment at all.
A. I think realistically, in this case, Mr Humphrys would probably have stopped bleeding. These were all small vessels that were bleeding and, in my experience, many of these patients, where the blood pressure drops, the bleeding pressure gets switched off and they tend to stop bleeding. So I think probably in this case, he would not have gone much further than he did when I saw him.
Q. So chances are, without medical treatment, he would have survived these wounds anyway.
A. I think so, yes.
[30] T305 L38-306 L9.
Under cross-examination he confirmed none of the injuries actually endangered life. He did say that the thigh, neck and shoulder wounds were deeper than he usually sees and were caused by a “relatively powerful force”.[31] He conceded however, that not “much more” force was required to penetrate the soft tissue to the extent seen here, than was required to penetrate the skin in the first place.[32] He accepted this could be measured in terms of “something like two pounds or a kilo of force … with a very sharp instrument”.[33]
[31] T339 L18-22, T346 L3-L5.
[32] T338 L34 – T339 L2.
[33] T339 L3-L7.
The evidence of Mr Humphrys and Ms Schultz
Mr Humphrys undeniably has little recollection of the events and what recall he still retains, is patchy. He has no memory of being stabbed. The evidence of Mr Humphrys as to the genesis of the alleged assault on him was this:[34]
[34] T52 L33-54 L11.
Q. What did you do when you got to the other side of the road.
A. We actually exchanged a couple of words and that's when we started fighting.
Q. What did you say to him.
A. I cannot recall what I said.
Q. What did Mr Barendregt say to you.
A. I'm not too sure either.
Q. Are you able to say what type of conversation this was.
A. A heated - heated argument.
Q. But you don't know what that argument was about.
A. No.
Q. What happens after the argument.
A. We actually exchanged a few punches.
Q. Do you remember hitting Mr Barendregt.
A. No.
Q. How do you know that you exchanged a few punches.
A. Sorry, I was like - yes, I do remember.
Q. Tell us what you did.
A.The conversation got heated and then I just remember both of us just hitting each other.
Q. How many times did you hit Mr Barendregt.
A. I can remember probably once.
Q. Did Mr Barendregt hit you.
A. Yes.
Q. Can you describe how he did that.
A. Just punched to the face.
Q. How many times; was that once or more than once.
A. Once.
Q. So you punched him once and he punched you once; is that right.
A. Opposite way around.
Q. Who punched who first.
A. He punched me first.
Q. And that was once that he punched you.
A. Yes.
Q. And then you punched him back once.
A. Yes.
Q. What happened then.
A. After that I've just gone black. That's when the knife came out.
Q. Did you see a knife.
A. Yes.
Q. Sorry, did you see a knife when you were out of the front of the hotel.
A. No.
Q.Is the only time you saw Mr Barendregt with a knife that night when you were in the hotel.
A. Yes.
Q. So during the course of your dispute and throwing punches you never saw a knife.
A. I never got one produced, no.
Q. Do you have a memory of being stabbed.
A. A burning sensation, yes.
Q. Do you know how that happened.
A. I'd say it would be with a knife.
HIS HONOUR
Q. Where was the sensation; what part of your body.
A. I had a burning sensation to my neck, to my back shoulder.
XN
Q.Is it your evidence that you just don't have a recollection as to how that happened.
A. Yes.
Q.You have told us that Mr Barendregt punched you, you punched him and then you go, I think you said, black.
A. Yes.
It can be seen on this account that it was the accused who initiated the pushing and that there was one single punch each. Under cross-examination his recollection of who punched first did not survive:[35]
[35] T90 L 37-91 L 21.
Q. Do you agree that what you initially told the police in a statement on 3 July was 'I don't remember who hit who or anything like that'.
A. Yes, I remember saying that.
Q. You agree with that.
A. Yes.
Q. Sometimes later, and you said months later, you started to get flashbacks.
A. Yes.
Q. And it was only then that you were able to put together what you are now saying is what happened.
A. Yes.
Q. And what you are saying now is from that memory, not any memory dating from the time of the incident; is that right.
A. Yes.
Q. So something that went into your head months later tells you that it was your brother who struck you first and not the other way around.
A. Yes.
Q. What is it that tells you that you only struck your brother once.
A. Because I remember doing that now.
The cross-examination returned to this subject a little later:[36]
[36] T93 L36-94 L22.
Q. You had an opportunity, on 3 July, to sign a statement or to read and sign a statement about what had happened; correct.
A. Yes.
Q. You had an opportunity to see someone from the Director of Public Prosecutions, I don't know how many times, but at least yesterday you did.
A. Yes.
Q. You had an opportunity to read and sign another statement of further memories of recollections you had yesterday.
A. Yes.
Q. At no stage did you tell anyone, the police or the DPP, that it was your brother who struck you first, did you.
A. No.
Q. In fact, you didn't tell anybody that until you got into the witness box today.
A. Yes.
Q. Is that correct.
A. Yes.
Q. And today, in your sworn, is the first time that you have suggested that your brother attacked you first.
A. Yes.
Q. Is that correct.
A. Yes.
No doubt the recollection of events, as painful and traumatic as they were, during which a black-out may have occurred and shock may have set in, can be recalled in patches, but the telling failure to inform anyone on the prosecution side shortly before the trial, means that his evidence that the accused was first to punch, is too unreliable in this report to be accepted. Clearly the injury near the accused’s eye-temple area must have been caused by Humphrys’ blow, but in the result it is necessarily a reasonable possibility that Humphrys struck the accused first.
This conclusion remains despite the following evidence of Ms Schultz, as she describes a completely different course of events:[37]
[37] T117 L 13-118 L 31.
Q. Were there any punches thrown after the head butt or was it pushing and shoving.
A. Pushing and shoving.
Q. Just to be clear, you didn't see Mr Humphrys punching Mr Barendregt at that stage.
A. No.
HIS HONOUR
Q. Which came first. Was it the head butt or the push to the shoulder.
A. The head butt, then the push.
XN
Q. So the first thing that happened was Mr Barendregt head butts Mr Humphrys.
A. Yes.
Q. And then you said a knife came out.
A. Yes.
Q. Who had the knife.
A. Mr Barendregt.
Q. And what did he do with it.
A. It was pulled out in his right hand, just pushing and shoving with the knife. It was like he had sort of taken it out. He had sort of already had it type thing, he was just pushing and shoving with it, but he didn't - he had taken it out.
Q. But you saw a knife in his hands.
A. Yes.
Q. And what do you mean by 'pushing and shoving with it'.
A. Like they were already pushing and shoving. It is like he has just pulled it out and kept going.
Q. Did you see what he was doing with the knife.
A. Just moving - like moving and backwards and forwards, like shoving, sort of just pushing and shoving.
She described standing “side-on” to them towards the fence of the station carpark,[38] grabbing the sleeve of Humphrys’ jacket to pull him away and of getting in the way. During the course of this she was cut near the rear of her left should near the armpit as confirmed by a tear to her top,[39] and as also confirmed by the observations of Constable Hayes, embodied in the agreed facts.[40] She assumed the can of Bourbon shown in photograph 26 was dropped at that point by Humphrys next to his blue top, which he also pulled off his shoulders and let drop to the ground.[41]
[38] T119 L20-120 L33 and Exhibit P1 photograph 26.
[39] Exhibit P6.
[40] Exhibit P16, 1-5 inclusive.
[41] T126 L28 – T127 L22.
After the events described in the long quotation from her evidence above, she said Humphrys followed and “went after” the accused, who turned around only to be punched by Humphrys with “extremely powerful” force to the left hand side of the face.[42] Following this “they ended up in another scuffle … powerful between the both of them … pushing and shoving … back to each other”.[43]
[42] T126 L15 – L128 L12, T165 L12 – L24.
[43] T128 L36 – T129 L6.
It was strongly submitted by the prosecution that the evidence of Ms Schultz could be accepted as reliable and convincing, because the real evidence and the objective facts, including the nature of the injuries, support her. In particular it was argued that there must have been the fighting at first towards the area of the railway yard carpark, because there is a punctured can found in that vicinity, likely to be caused by a knife. [44]
[44] Exhibit P1, photographs 23-28 inclusive.
As attractive as this argument was, it is not one that eliminates a reasonable alternative course of events. The suggestion that the can was punctured by a knife is speculative in the absence of forensic inspection – for all that is known it could have been dropped or thrown. There is no evidence suggesting a can was ruptured during the course of the struggle. Had Humphrys been injured nearer the fence, he is not likely to have been able to make his way towards the centre of Nineteenth street, as he eventually did.
On the whole of the evidence there is then a reasonable possibility that there was one composite incident of consequence, during which the knife wounds were inflicted. It is not established beyond reasonable doubt the accused produced and threatened Mr Humphrys with the knife, before Humphrys punched him in the manner described by Schultz. In other words, it is a reasonable possibility that Humphrys punched the accused first, before he produced the knife. In this context it must be borne in mind that her recall must have been influenced by the very nature of the events, in which she was directly engaged and the alcohol she had drunk must have affected her reliability somewhat. It must also to be borne in mind that the accused gave evidence of being struck first. His evidence is examined later in detail.
The record of interview
During the course of his interview with Detective Donnelly, the accused made a number of admissions in addition to exculpating statements, in relation to these events. This was video-taped, tendered and viewed by the court. [45] During the course of this the court was able to observe the demeanour, manner and mode of speech and general presentation of the accused. He was certainly indignant and verbally abusive at times, considerations otherwise throwing no light on the facts. It is fair to say he was obviously annoyed at being arrested and taken out of his bed in the early hours of the morning, by the degree to which the handcuffs were tightened around his wrists and he can be seen to be favouring his right shoulder a number of times during the course of the interview and later during the forensic procedure, for which he repeatedly asked for medical treatment.
[45] Exhibit P7.
The video also shows the injury and swelling to the area of his left eye-temple region, which troubled him at times. There appeared to be a relatively minor right hand injury as well. These were noted later by Dr Clohesy. The injury near the eye, according to Dr Clohesy was not that serious, but it was consistent with being caused by a single punch or a heavy blow or even multiple blows to the same area, in any case by “some fairly significant trauma”[46] according to him and involving “good knuckle contact” according to Dr Bautz.[47] This injury is shown in Exhibit P10, taken at 5.40 am on 14 June 2006, following this examination.
[46] T282 L34.
[47] T333 L32.
Mr Barendregt was arrested for attempted murder at home, a charge plainly disarming him. He initially told Donnelly he didn’t mean to hurt Humphrys and that he “just kept smashing me in the face”,[48] a claim he repeated a number of times, and later to Dr Clohesy.
When asked where the knife was he said:.[49]
I don’t know, I don’t know. I just kept getting punched in the face, I know I hurt him because like fucken there is blood all over my hands and shit, but I think I cut myself. Oh let go, let go. You can let go, allright, I’m not going no where
[48] Transcript aid memoire P7.5.
[49] Transcript aid memoire, P12.10.
In the car on the way to the Elizabeth Police Station he was asked by Donnelly what he done with the knife and he responded:[50]
I think I might have dropped it
and shortly thereafter he repeated:[51]
He just kept punching me in the fucken face man, he told me to fucken bring the shit with us because we were going to a fucken new pub man.
[50] Transcript aid memoire P19.10.
[51] Transcript aid memoire P20.2.
Later he told Donnelly:[52]
[52] Transcript aid memoire P22.1.
That’s my brother for you man, but fucken, I am scared for him man. Scared for him man. I fucken, I don’t know what fucken happened man. It all fucken transpired like fucken crazy shit man, you know. He kept punching me in the fucken face and shit
and then Donnelly asked him:[53]
[53] Transcript aid memoire P22.2 0 22.8.
QWhy was he doing that” he responded
ABecause some chick he’s met fucken she’s all over him and I said I’m fucken ready to go I fucken, don’t let all of this shit fucken get to you man. Let’s go. And fucken as we were walking towards her fucken just started punching me in the fucken face. Started punching me, punching me and punching me because I said no don’t let that shit get to you and he just turned around and started fucken hitting me. I’m well what the fuck and you, oh you know after, what the fuck are you doing man. He started hitting me again and again and again man. He fucken hit me the first time and I said what the fuck you doing man. And then he started punching me man. fucken again and again and again. Oh I just, I had no fucken idea to what he was punching me for. The first time he punched me oh like after I said don’t let her get to you man he just started punching me. Well fucken, I’m like what the fuck man. He just started punching me again and again after that.
QThen what happened?
AThen I fucken, I, I don’t know. Like fucken, I gather I stabbed him with fucken something man. But fucken I didn’t mean to hurt him not in that way, I just like fucken I get away from his ??? you know what I mean. Like fucken stop hitting me. He was like after you got fucken hit like that four or five times after the first time man you fucken like you know your face is fucken like caning like fuck mater, you know what I mean. He told me to bring the shit in the first place. Because we went to a new pub next to the railway station that had a pool table there. You know what I mean? We went there to play pool man, we met this bloke named Dicky and some bloke behind the pub there oh behind the bar that he used to know, ah fuck man that’s caning a lot like fuck man. Can you put them in front or what?
Later he added:[54]
Fucken bull shit they can do something. Fucken give me a fucken Panadol for all I care. This fucken hurts man. The front of my eye is busted out for no fucken reason to start with because some big chain fucken word there because he’s fucken he’s cracking onto some bald guys fucken bike or fucken shaved hair fucken goatee down to here. His cheek, Rodney’s fucken ???? were and it’s like I’m scared of him I’m scared of him. And it’s like fucken she’s not worth it Rodney. Fucken smack, smack, smack, smack. You know what I mean. I just, I don’t remember what the fuck happened man. I just fucken, it felt like I was punching him man, I fucken I knew if was something fucken more. You know. I was scared man. Fuck what did I do. I ran man, I fucken ran, I’m fucken scared as fuck man. I’m in tears, I’m, what the fuck man. I think I’ve hurt him, I think I’ve hurt him, shit man. Oh fuck it’s the last thing I want to do is fucken hurt him man.
[54] Transcript aid memoire P34.
As to these various statements, and the further extracts quoted later, the general principle is that self serving statements are usually inadmissible, yet confessional statements tendered by the prosecution containing assertions of fact favourable to an accused, become evidence probative of the truth: Queen Caroline's Case,[55] R v Higgins,[56] Jack v Smail.[57] The whole is evidence for as well as against the accused, but like all other evidence it is for the jury to say whether they believe one part of it and disbelieve another: R v Karpany,[58] R v Williamson,[59] Spence v Demasi.[60] In other words the prosecution must take “the good with the bad”: R v Soma.[61]
[55] (1821) 1 St Tr (NS) 949.
[56] (1829) 3 C & P 603, 172 ER 565.
[57] (1905) 2 CLR 684.
[58] [1937] SASR 377 at 379.
[59] [1972] 2 NSWLR 281 at 289.
[60] (1988) 48 SASR 536.
[61] (2003) 212 CLR 299; 77 ALJR 849. (per by Gleeson CJ, Gummow, Kirby and Hayne JJ.).
It is authoritatively laid down by Mule v The Queen[62] that the court is entitled to take into account when determining the weight to be attributed to such statements, that they were not made on oath, what an accused says is to be regarded as a possible version of the facts, jurors should consider them together with the sworn evidence, giving them such weight as they appear to be entitled to in comparison with the facts clearly established by the evidence, and to evaluate those statements in the light of the fact that they were self-serving.
[62] (2005) 221 ALR 85; 79 ALJR 1573 at [22].
It is also opportune at this stage to record that the accused gave evidence. This is summarised later in these reasons. He maintains no recollection of the critical events and none of what he said during his interview with Donnelly, so it was practically impossible to cross-examine him in any detail about either. The evidence of the forensic psychologist Mr White establishes that memory recall may well have been affected by either the extent of alcohol intake and the blow to the head of the accused,[63] topics to which the court will have to return. The conduct and response of Mr Barendregt must additionally be considered in the light of Mr White’s assessment that he functioned overall within the low average range, but more significantly his non-verbal abilities and capacity to problem solve, place him “in the borderline range of intelligence”.[64] Even so, the video shows time and again that he was not so affected as to be unable to converse coherently, stand on his own two feet for the most part, was disorientated and unaware of his surroundings, or responded inappropriately when required. It became quite apparent that he appreciated the enormity of what he did earlier that evening concerning his brother. This much is evident from the above extracts.
[63] T460 L25 – T462 L25.
[64] T457 L21-L33 and Exhibit D19.
Evidence of Intoxication
Without being critical of any witness in this regard, the evidence is not a great deal of assistance in assessing the levels of intoxication of the accused at about 11.00 that night, that is the time relevant to this case. The witness Schulz herself had drunk at least six glasses of wine and probably more, and according to the police was obviously, although by no means greatly affected. Her accuracy of recall must therefore be suspect. Likewise when the three officers from the police transit tactical unit coincidentally drove by and spoke to the group shortly before 11.00 pm, and described them as swaying or staggering across the roadway, that does little to quantify the extent of alcohol intake, quite apart from the fact that this was too brief to permit an informed opinion as to state of sobriety to be formed. They had other considerations in mind when making a judgment in relation to degrees of intoxication.
Likewise Detective Parfitt’s evidence that in his observation of the accused from the time of arrest and during the conveyance to the Elizabeth Police Station, that the accused “appeared intoxicated but I would not say grossly … he was highly agitated, agitated and angry”,[65] and “slightly above moderate, moderately intoxicated, if that is a measurable quantity”[66] is of little assistance. Donnelly’s opinion, formed for the purpose of the Forensic Procedures Act that the accused was a “protected person” incapable of understanding the nature and consequences of a forensic examination, is equally of little weight. That opinion was one reached for an entirely different purpose and may well have been made out of an abundance of caution, or to fully protect the rights of the accused in light of the complaints made by him.
[65] T175 L37-176 L1.
[66] T178 L11-12.
This combined evidence does not reliably quantify the potential level of intoxication at all. The better measure is the objective evidence. This consists of the amount of alcohol proven to have been consumed, over what period, the appearance of the accused on the video recording bearing in mind the inherent limitations, together with alcohol reading derived from the blood test.
It is very apparent that the accused consumed a large quantity of liquor that night, by any measure. On his own evidence he drank heavily not infrequently. He also deposed to using various illegal drugs in the past, although this forms no evidence that he is of bad character or the type of person who might commit the offence(s) charged on that account. According to Humphrys they had no less than five cans each of the Woodstock Bourbon, four pints of beer and at least two shots of Jack Daniels, quite apart from cans of Jack Daniels or the Kentucky Rider. It is likely given the number of empty cans in the area, that at least two cans of whiskey or bourbon were consumed by the accused after they left the hotel, so that all up there were a minimum of at least twelve substantial drinks, more than just “standard” drinks.
As to the period over which these were consumed, more than likely they commenced drinking by late afternoon before 5.10 pm when the sun set[67] and finished very close to 11.00 pm, that is about 6 hours or so. The evidence was that they were constantly drinking, so this must have involved more than at least two substantial drinks per hour. It follows that by whatever subjective measure one chooses, the accused must have been appreciably affected by alcohol as of 11.00 pm that night. It is clear that he did not stop drinking before the critical events. The accused considered he was “pretty well drunk” upon leaving.
[67] Agreed fact No. 12.
The video is of considerable weight, because although it shows he was affected by alcohol certainly to the point that it released inhibitions and made him garrulous and abusive at times. His speech was nevertheless clear enough to be understood easily and he responded in a way indicating he understood what he was being told or asked to do and what he had done. The signs of gross intoxication do not emerge at all.
Another and perhaps more important measure, is the blood alcohol evidence. This was given by the forensic scientist Mr Lokan, whose expertise was not challenged and whose evidence in general was not contested.[68] The inferences to be drawn from it were. As mentioned, the blood alcohol of the accused was taken at 4.47 in the morning of 14 June 2006 the following day, which produced an alcohol blood analysis of .134%, which translates to a reading of “not less than .126%”.[69]
[68] T200 L8-9.
[69] T211 L16-L23.
Lokan undertook what is accepted in his area of expertise as a “Blood Alcohol Concentration Back Calculation”.[70] This exercise entails calculating from an “available blood alcohol concentration at a particular point in time” to a “concentration at some earlier point in time”.[71] He explained there were essentially three “parameters” bearing upon the change in blood alcohol concentration between these times, first the rate of elimination, second the rise in blood alcohol concentration after drinking finishes and third the time taken to reach the blood alcohol concentration maximum.[72]
[70] T200 L33-34.
[71] T200 L29-32.
[72] T200 L37- T201 L8.
Applying this methodology, he was asked to assume a measurable blood alcohol concentration at 4.47 am on 14 June 2006 of 1.26% and a last drink at about 11.00 pm on 13 June 2006. On this basis he considered the blood alcohol concentration of the accused would have been not less than .12% at the relevant time. He then performed a second calculation using “average parameters”.[73] On this premise the blood alcohol concentration of the accused at 11.00 pm that night was probably about .17%, “but that should not be taken, of course, as a firm figure”.[74] He described this as producing the “most likely blood alcohol concentration at the time” … “and that it was the accused’s … probable blood alcohol concentration”. He conducted a third calculation using what he described as “extreme values” in each of the three mentioned parameters, to conclude it was unlikely the blood alcohol concentration of the accused at 11.00 pm was greater than .27%.[75] In the result he described the accused’s “true concentration” at .17%, but that did not “rule out that it was somewhat lower or somewhat higher”.[76]
[73] T203 L24.
[74] T204 L9-11.
[75] T205 L31.
[76] T205 L32-36.
Under cross-examination Mr Lokan conceded the longer the period of drinking, the more likely the estimates would be higher.[77] He also accepted that if the number of drinks per hour was higher than the postulated two or three or perhaps four, consumed over a longer period of time, possibly six or seven hours, it would cause him to lift the .17% estimate. He conceded the elimination rate of .030% per hour used in the third calculation, was not an extreme, but was a “assumed maximum reasonable rate for social drinking”.[78]
[77] T208 L19-27.
[78] T210 L14-24.
Evidence of the accused
Mr Barendregt gave evidence that he and his brother between them had consumed over $300 worth of alcohol, preceding these events. He was not in a position to quantify how much they had although knew he was “getting drunk”.[79] He remembers taking the knife out in the bar, but not as overtly as was alleged by the prosecution witness.[80] He said that he purchased a six pack of Black Douglas, the type of canned Bourbon mix described by Ms Schultz, which he took with him when they left the bar, which all three consumed “underneath the veranda of the hotel”. [81]
[79] T389 L13.
[80] T389 L29 – T390 L20.
[81] T390 L21 – T392 L34.
He deposed to later purchasing a six pack of Kentucky Rider cans from the Criterion, several of which in various states, can be seen in the photographs Exhibit P1. He remembers the police patrol driving by and inquiring as to the welfare of the group. In point of fact he deposed to having a lucid conversation with them on his own account, telling them “ … everything is fine, its my brother, he’s had a lot to drink, I just want to get him home”.[82] Afterwards he told the court his brother became “quite agitated and a little overbearing” and then angry, simply because he was asked to go home.[83]
[82] T399 L22.
[83] T398 L20 – T399 L9.
He described his brother then growing “even angrier”, yelling and becoming aggressive to the point of “getting up in my face and standing over me”.[84] As he tried to walk away, he felt a “really hard bang across the side of my head”.[85] As a consequence “everything went grey and blurry and very quiet”.[86] He claims to have no memory of events thereafter, until waking up in the Remand Centre and of having no recall of the interview with the police. This loss of memory is not relied on by the prosecution, as in itself, founding a reason for rejecting his evidence: R v Singh.[87] In that situation it is necessary to bear steadily in mind that there might be some explanation which the accused might have offered, had he retained a recollection of the events: Russell v H M Advocate.[88]
[84] T406 L15 – L37.
[85] T403 L11. T402 L24.
[86] T401 L9 – L38.
[87] (2003) 86 SASR 473.
[88] [1946] SC(J) 37 at 39.
The elements of the offence of causing serious harm
In order to establish the basic charge against the accused, the prosecution is required to prove four separate ingredients of the offence created by s23(1). The first is that he caused ‘serious harm’, that is harm endangering life. The second, that the harm was caused consciously and deliberately, that is voluntarily rather than accidentally. The third is that the harm was inflicted unlawfully and the fourth that the accused intended to cause serious harm, as defined. There is a fifth element by dint of the allegation of aggravation, comprised by using an offensive weapon to inflict the harm, namely the knife.
The offence was introduced by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA),[89] coming into effect on 15 May 2006, applying to offences committed after that date. In the new Division 7A, s 23 (causing serious harm) replaces the repealed s 21 (wounding with intent to cause grievous bodily harm). Section 24 (causing harm) replaces the repealed s 23 (unlawful wounding).
[89] Act number 62 of 2005.
Sections 21 to 32 inclusive are contained in Division 7A of the Act, (C)ausing physical or mental harm. The common law definition of grievous bodily harm embodied in the repealed s 21, was replaced by a statutory definition to be found in the new s21:
21—Harm
In this Division—
"serious harm" means—
(a) harm that endangers a person's life; or
(b)harm that consists of, or results in, serious and protracted impairment of physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
Hence the common law concept of grievous bodily harm or “really serious harm”: R v Perks,[90] is replaced by the notion of harm endangering life.
[90] (1986) 41 SASR 335; 20 A Crim R 201 at SASR 337; Crim R 203.
Serious harm
The charge under s23 requires proof of the infliction of serious harm. The charge as particularised in the manner quoted at the beginning of these reasons, was based on a definition of “serious harm” as it appeared in “Criminal Law South Australia”, Butterworths, paragraph [4173] which had “serious harm” defined in s21 of the Act, as “harm that endangers, or is likely to endanger, a person’s life”. The words in italics were apparently contained in an early draft Bill, but they did not make their way onto the statute books.[91] The court is required to apply legislation published pursuant to s9 of the Legislation Revision and Publication Act 2002 (SA), which “set out correctly the contents of the legislation”. As so published, s21 does not contain the italicised words.
[91] Refer Hansard House of Assembly 20/10/03 p 585.
On the basis of the evidence of Dr Bautz, quoted in material respects above, the prosecution has failed to prove this element of the offence, simply because the injuries were not life threatening. Mr Barclay for the Director of Public Prosecution conceded as much in his final address. Accordingly Mr Barendregt is entitled to an acquittal of the charge as presently framed. For the same reasons, an offence of recklessly causing serious harm under s23(3), would necessarily fail.
The result would have been the same anyway had the expanded definition applied. The degree of serious harm required is squarely allied to the consequence of the harm actually caused, so that the likelihood of endangering life must arise from the injury itself. The submission for the prosecution that those additional words imported an element of risk arising from the conduct causing serious harm, is not supported by the words of the definition. It is one that is also inconsistent with the structure of the definition of “reckless”, which does relate the unlawful conduct to the consequent harm.
A submission was mounted by Mr Niarchos for the accused that the medical evidence disclosed “no case to answer” in relation to this count. Whether that is so, is perhaps, a moot point. He submitted that a necessary consequence was that any alternative offence could not be left, had a verdict of acquittal by direction been delivered before the defence embarked upon its case. No authority was cited for such a sweeping proposition. No principle comes to mind suggesting such a consequence and no logical reason for that course, suggests itself.
The fact of the matter is that at common law, or pursuant to s25, alternative offences are available for reasons discussed later. Providing no unfairness to the accused arises, those alternatives would have been left to a jury in the event that a directed verdict of “not guilty” on the s23 charge was delivered. Furthermore, it was plainly the intention of Parliament, embodied in s25, to enable a conviction upon a “specified lesser offence”, if fairly open on the evidence: Byrne v Godfree.[92] That being so, ultimately nothing turns on that point.
[92] (1997) 96 A Crim R 197 at 204.
The second ingredient is that the accused’s act was deliberate or intentional. The defence takes no issue as to this element.
The third ingredient is that at the time the accused inflicted serious harm to the alleged victim he formed the specific intent to inflict serious harm. The case for the defence as a first step, is that the specific intention was not formed due to the effect of alcohol, either taken alone, or in combination with a heavy blow to his head. The evidence of Dr Bautz and Mr White touching this question is largely summarised or quoted above. In addition to these references, counsel referred to the evidence of Dr Bautz that an injury such as that sustained by the accused, could have left him dazed, confused, disorientated and may interfere with his state of consciousness and that if enough alcohol was taken “it certainly blocks your brain function and certainly your memory”, especially if blood alcohol content is as high as .27%.[93]
[93] T 334 L3 – T 335 L13.
All this may be accepted. The fact remains that the better measure of the impact of these considerations on the accused’s state of mind, is what he said and did at relevant times and during the interview, particularly the early stages. As to the former, he plainly had the motor capacity to take the knife from his pocket, unfold the blade and to inflict five separate wounds, three of them quite serious. Only minutes earlier he had a coherent conversation with the police patrol. He was able to make an escape all the way back to his house, whether walking or running is besides the point. He had the presence of mind to lead the police to think he was about to commit suicide by injecting air into his blood stream. His appearance and the inferences to be drawn from the video have otherwise already been discussed.
Even allowing for the fact that events moved quite quickly during the course of a struggle, as well as the accused’s limited intellectual capacity as assessed by Mr White, these objective factors, in combination, leave no reasonable doubt that the accused was able to and did in fact form a specific intention to seriously harm Mr Humphrys that night. It might conceivably have been the case that the circumstances dulled his senses to the point that he did not fully appreciate the extent of the harm he was causing, however the formation of a specific intent to cause really serious injury in the sense contemplated by the common law, cannot be doubted.
As mentioned earlier, arrest on the charge of attempted murder seemed to throw the accused into a state of disbelief. A number of times during the course of the interview he spontaneously appeared genuinely surprised that his actions were so serious, and he denied on a number of occasions an intention to cause harm to a degree that would, to his way of thinking, support such a serious charge. For instance:[94]
[94] Transcript aid memoire P15-16.
AWhat the fuck you charged me with?
QAttempted murder mate
AAttempted murder, are you fucken serious mate
QAt this stage mate, at this stage yes
AFucken seriously man
QYep
AAttempted murder, I haven’t fucken attempted to kill anybody.
QThat’s to be decided down the track mate but at this stage mate
A Down the fucken track nothing man
QThat’s whats going to be happening, all right
AWhat the fuck mate are you on about attempted fucken murder. Attempted fucken murder
QThat’s what’s happening at this stage, all right
AOh seriously man, fucken attempted murder, what the fuck are you on about? Who the fuck did I attempt to murder, fucken nobody?
QOk. Settle down. Just keep your hands there
AYah, I’lol fucken, yeah oh not really. I fucken.
QThey are not comfortable but that the most comfortable.
ANo seriously man what the fuck you talking about, attempted murder man.
QOk. Just worry about your eye at this stage all right.
ANo fuck my eye man, no man I’ll fucken, what the fuck, attempted murder, I didn’t fucken attempt to murder anybody.
QOk, just keep your eye wide open.
ANo, I’m ok, no yeah, no not ok though, know what I’m saying?
AOh yeah yeah
QJust close that eye for a little bit
AYep, just like that, that all right
QYeah, its not serious, it’s only a small split
AYeh, fucken talk shit for fucken attempted murder what? Oih attempted murder what.
QWhat do you mean mate?
AYeah fucken who’d I attempt murder?
QYour brother
AWho?
QYour brother Rodney mate
ARodney who?
QRodney Humphreys
ARight, I did not attempt to murder him. Do you understand that?
QOK
AIs that clear?
In the context of an exchange about the nature of the charge he next said:[95]
[95] Transcript aid memoire P17.3 – 18.4.
QWe’ve just got to investigate the whole incident man
AYeah, but fucken no, attempted murder, fucken charges man, that’s fucked up man, I did not want to fucken hurt him. I did not fucken mean to get hurt in the first place, ok. You get punched in the face several fucken times, like I am talking about five, six, seven times man, punched in the face. I did not want to hurt him, do you understand that? … Hey I did not fucken to attempt to murder him, ok. I did not attempt to fucken hurt him. I just wanted to get away from the situation. … yeah, absolutely, absoslutely, no, fucken, I respect that, but seriously the situation is I did not attempt to fucken hurt him in a serious situation, ok. I just fucken, I just kept getting punched in the face and I just reacted to it. Do you understand?
QI do
AOk
QYep
AI’m not
QI am interested in your side of the story too mate
AHey I did not fucken attempt to murder him ok. I did not attempt to fucken hurt him. I just wanted to get away from the situation
…
QThat’s your side being recorded too
AYeah, absolutely, absolutely, no, no fucken I respect that but seriously the situation is I did not attempt to fucken hurt him in a serious situation ok. I just fucken, I just kept getting punched in the face and I just reacted to it. Do you understand?
QI do
And still later he told Donnelly:[96]
I fucken, I did not want to hurt him, I was scared of hurting him. We going or what man? These cane my fucken hands man. Yeah man where are we going.
What the fuck is going on man. Fucken attempted murder shit. What the fuck mate. What the fuck mate, the cunt punched me in the fucken face for. You know fucken, he kept punching me in the fucken face man.
[96] Transcript aid memoire P18.2-18.4.
The accused’s intention is a matter of inference to be drawn from the proven facts and objective circumstances: Parker v The Queen[97] and from what he said and what he did: R v Olasiuk,[98] including his out-of-court statements: Simpson v The Queen.[99] Drawing inferences as to what the accused specifically intended, begins with the injuries inflicted. Given the number of wounds and their seriousness, there can be no doubting an intent to cause really serious harm. The question is whether an intention to do more to the point of intending to endanger life, can be inferred.
[97] (1963) 111 CLR 610 at 649.
[98] (1973) 6 SASR 255 at 263.
[99] (1998) 194 CLR 228 at [11-13].
A submission was put by the prosecution based of the evidence of Dr Bautz concerning the proximity of these injuries to other parts of the body, that an intention to cause life threatening harm was evident. This however places too much stress on detailed matters of anatomy and too little on the subjective intention actually formed by Mr Barendregt in this situation. Furthermore this is rather akin to an impermissible line of reasoning that an accused is taken to have intended the nature and probable consequences of his actions, a line of reasoning condemned in Parker v The Queen,[100] as applied in R v Schonewille.[101]
[100] (1963) 111 CLR 610.
[101] (1998) 2 VR 625 at [12].
No doubt it is open to consider whether the consequences of the accused’s actions and the injuries caused throw any light on his intentions: R v Hubert.[102] These two men had their ups and downs over the years, like most brothers. There was no evidence of any particular animosity or bad blood between them or of any particular difficulty that night. Although the exact cause of the argument remains somewhat of a mystery, the evidence does not permit of a guilty motive. According to the medical evidence the injuries were random, so it is not directly possible to infer an intention to inflict life threatening harm, as it might be for example, in the case of five knife wounds near the heart. These considerations and the rather spontaneous and surprised attitude of the accused upon being charged with attempted murder (weighed in the manner suggested in Mule (above)), leaves the court in a position of entertaining a reasonable doubt as to the actual formation of the necessary specific intention to endanger the life of Mr Humphrys.
[102] (1993) 67 A Crim R 181 (WA).
Self-defence
The fourth ingredient is that the accused must have acted unlawfully. This gives rise to the question of self-defence. The prospect of a defence under s15 of the Act is undoubtedly triggered in this case, on account of the evidence of at least one forceful blow by Humphrys to the head of the accused and because of the reasonable possibility that this was the first blow of any consequence, other than pushing and shoving. That being so, the prosecution bears the onus of removing any reasonable possibility of the accused acting in self-defence pursuant to s15(5): Morgan v Coleman.[103]Of course, had the accused not formed the necessary intent to inflict at least some harm, self-defence could not arise, because he would not have turned his mind to the necessary states of belief to found any kind of a “defensive purpose” under s15.
[103] (1981) 27 SASR 334 at 337.
Given the findings of the court that it is reasonably open to conclude that Humphrys struck the accused first, it is inherently a reasonable possibility that the accused genuinely believed a defensive response was necessary, even though he did not claim it in his evidence: R v Fahey.[104] In examining this question the court must give due weight to the predicament in which the accused found himself and that if struck in the manner described by Schultz and suffering the potential consequences outlined in the medical evidence, the situation would have initially furnished little opportunity for calm deliberation or detached reflection: Zecevic v The Director of Public Prosecutions.[105]
[104] (1978) 19 SASR 577.
[105] (1987) 162 CLR 645 at 662-663.
In this instance it is a possibility the accused may have reacted by using the knife as an instinctive response to the blow, bearing in mind the level of intoxication, his powers of reasoning and the medical effects the blow might have caused. One or possibly two jabs of the knife might conceivably be necessary and reasonable responses in the unconsidered heat of an attack. However that may be, it is impossible to accept that any more than one, or at the very most two stabs of the knife, were reasonably proportionate to the threat, as the accused believed it to be. A sharp knife was inherently likely to cause more damage more quickly than a fist ever could. One stab was more than likely to stop the attack and overcome the attacker and consequently put an end to the perceived defensive purpose as well as the need for any further response. In other words the nature and extent of the conduct involving the inflicting of five distinct knife wounds, was beyond doubt out of all proportion to the circumstances as the accused genuinely believed them to be: R v Dziduch,[106] R v Gray,[107] Morgan v Coleman.[108] Since at least three blows causing really serious harm (in the common law as opposed to the statutory sense) were inflicted, these were far more than was reasonably proportionate to the threat presented by Mr Humphrys. They were, objectively considered, grossly unreasonable: R v Gillman.[109] For these reasons the “defence” of self-defence under s15(1) of the Act fails.
[106] (1990) 47 ACrimR 378.
[107] (1998) 98 ACrimR 589.
[108] Above at 337.
[109] (1994) 62 SASR 460 at 465-466.
There is, in effect a fifth element to consider, that of the aggravating circumstance, in this case by the use of a knife, an element glossed onto the basic charge by reason of ss5AA(1) (b) of the Act, which provides:
5AA—Aggravated offences
(1)Subject to this section, an aggravated offence is an offence committed in the following circumstances:
(b) the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
Section 5(1) of the Act in turn defines an "offensive weapon" to mean:
(b) an article or substance that a person has—
(i) for the purpose of causing personal injury or incapacity; or
(ii)in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity;
Given the way in which the knife was wielded and used in this case, there can be no doubting that it was employed as an “offensive weapon” in the circumstances, under either definition. Accordingly the element of aggravation is proved.
Attempting to cause “serious harm”
The defence did not contend that an alternative to the section 23 charge was an attempt to commit serious harm. Indeed s270A of the Act provides specifically for attempts, there being no contrary provisions therein, or in any other Act. This alternative arises because of the fact that life threatening injury as defined by statute, was not caused. As the prosecution retains the burden of proving an actual intent to cause injury endangering life, it must necessarily follow from the above findings that it has failed to prove an attempt.
The defence of intoxication
The case for the accused is not that he was so intoxicated as to be incapable of forming a general or basic intent, but that he did not form the specific intent necessary to commit the offence. Part 8 of the Act deals with defences of intoxication. Section 267A defines serious harm in a way quite different to that applicable under Division 7A, namely:-
"serious harm" means—
(a) serious mental or physical harm; or
(b)loss of, or damage to property, where the amount or value of the loss or damage exceeds $10 000;
Section 268 then goes on to provide, so far as presently relevant:-
268—Mental element of offence to be presumed in certain cases
(1) If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2) If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
However as s268(2) has been interpreted to operate in relation to offences of basic intent, it has no bearing on the facts and issues arising for determination in this matter: R v Childs,[110] R v B, M A.[111]
[110] (2007) 98 SASR 111 at 80-81.
[111] [2007] SASC 384 at [27].
An alternative offence?
The question of the availability of alternative offences was considered extensively in R v Habkouk.[112]The position at common law was that a defendant may be convicted of a lesser offence, providing the indictment contains words apt to include both: R v O’Brien.[113] The common law embraced the principle that it was permissible to convict of a lesser offence, if that offence was an essential ingredient of the more serious offence charged: R v Desmond & Hall,[114] that is to say when the lesser offence was an essential ingredient of the major offence: R v Lillis,[115] R v Shillinforth.[116]
[112] (2005) 241 LSJS 428; [2005] SADC 109.
[113] (1911) 27 TLR 204 at 208, 6 CAppR 108 at 110.
[114] [1965] AC 960, 969-970.
[115] [1972] 2 QB 236 at 240-241.
[116] [1954] SASR 206.
In any case s25 of the Act enables alternative verdicts for a lesser offence properly open to any other offence created under Division 7A. It provides:-
Alternative verdicts
25 If –
(a) jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but
(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a anumber of specified lesser offences; and
(b) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences has been established,
the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.
Applying this provision and these principles, two possible alternative offences are left open. The first the reckless infliction of serious harm under s23(3). As such harm was not caused, a conviction on that is not open. The second is the offence of “causing harm” under s24.
Section 24(1) provides:-
Causing harm
24(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a) for a basic offence – imprisonment for 10 years;
(b) for an aggravated offence – imprisonment for 13 years.
In this instance “harm” is defined by s21 to include “physical harm” and that in turn is defined to include, “unconsciousness and pain”. Section 24 requires then, the voluntary and intentional infliction of harm that actually causes such harm. The mental element and the actus reus are both obviously lesser components of the more serious offence under s23. Accordingly the alternative offence of causing harm is an available alternative to a charge of an offence of causing serious harm under s23.
In that event the court needs to consider whether it was satisfied beyond reasonable doubt that the accused, by a deliberate act, intended to and did in fact cause harm to Humphrys, using an offensive weapon (the knife) in doing so. On the findings already made, the accused was able to and did form the intention to seriously injure Mr Humphrys. Self-defence being excluded for the reasons identified above, the offence under s24 is then necessarily proved.
Summary of findings
The court finds it is a reasonable possibility that the victim was the first to strike a blow to the accused. A reasonable possibility therefore exists of a “defensive purpose” arising. However the accused’s response in the circumstances as he genuinely believed them to exist, was not reasonably proportionate. On the whole of the evidence the court further finds that he did in fact intend to cause really serious harm to the victim. All the same there is a reasonable possibility that he did not intend to cause harm endangering life. The injuries actually caused to the victim were not in any event such as to endanger life.
Verdicts
Based on the above findings and conclusions, the court returns the following verdicts:
The accused is found not guilty of causing serious harm with an intent to cause serious harm as charged, not guilty of an attempt to do so and not guilty of the reckless infliction of serious harm. He is convicted of the lesser offence of having on the 13th day of June 2006 at Gawler, whilst using an offensive weapon namely a knife, unlawfully caused harm to Rodney Humphrys, intending to cause harm, contrary to s24 of the Criminal Law Consolidation Act.
25
15
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