R v Cook

[2014] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:	R v Cook [2014] NSWDC 18
Hearing dates:	25 - 26 March 2014.
Decision date:	26 March 2014
Before:	Berman SC DCJ
Decision:	The accused is found guilty of Count 1 on the indictment
Catchwords:	CRIMINAL LAW - Judgment and verdict - Inflict grievous bodily with intent to commit grievous bodily harm - Intoxicated at time of attack - Only issue concerned accused's intention
Category:	Principal judgment
Parties:	The Crown Cameron cook
Representation:	Mr C Watson - Accused Director of Public Prosecutions Kiki Kyriacou Lawyers - Accused
File Number(s):	2013/16172

Judgment

The Events of 16 January 2013

1. On 16 January 2013 Mr Raymond O'Neill, then 65 years of age, planned to go fishing. He drove to old Ferry Road at Illawong where he parked his car and commenced to unload his fishing equipment. As he arrived he saw a Harley Davidson motor cycle with two people standing next to it. One of them, the accused Cameron Cook, approached him and asked whether he had any jumper leads. Mr O'Neill told Mr Cook that he didn't. Mr O'Neill took his equipment to the spot where he planned to fish and returned to his car. Again Mr Cook asked him for assistance saying something like "can you help me?" Mr O'Neill again told Mr Cook that he couldn't help him because he didn't have any jumper leads.

1. What I have described so far would be the sort of interaction between human beings which occurs regularly as part of every day life. But what immediately followed Mr O'Neill's response to the accused's second request for assistance was very much out of the ordinary.

1. Without warning the accused punched Mr O'Neill to his head. Mr O'Neill fell to the ground where the accused began kicking him to his body and his head. At one stage Mr O'Neill was able to grab the accused's leg. The accused then bent over and began punching Mr O'Neill in the head. Mr O'Neill tried to roll away and had almost got to his feet when he went down again, he presumed because he had been hit. The accused began kicking him again. Whilst all this was happening Mr O'Neill was, not surprisingly, trying to get away. Because he couldn't get up he was forced to crawl 20 or 30 metres, all the time being kicked or punched by the accused.

1. At one stage whilst he was trying to crawl away from the accused the accused said that he was going to shoot him and kill him. Mr O'Neill thought that if he carried out this threat, it was obviously all over for him.

1. At another stage the accused briefly paused, long enough to say something to Mr O'Neill which he recounted in the following way:

"if the police caught him he was going to say that I attacked him first and there was two of them and police probably wouldn't believe him but the judge, they're stupid, or silly, and he'll believe me."

1. Eventually the accused stopped kicking and hitting Mr O'Neill and he, significantly injured, went to seek assistance. He couldn't find anyone but when he walked back to where his car was parked he saw the police had arrived and had the accused under control.

1. Mr O'Neill was left with injuries which, it is conceded, amounted to grievous bodily harm: fractures to an eye socket and swelling to his throat which affected his breathing and which required later draining.

1. As a result of what the accused did he now faces trial on a charge of causing grievous bodily harm to Mr O'Neill with intent to cause grievous bodily harm to him. He pleaded not guilty to that charge but pleaded guilty to an alternative, recklessly causing grievous bodily harm, which the Crown did not accept in satisfaction of the indictment.

Trial by Judge Alone

1. The accused elected for trial by judge alone. An election signed by the accused was filed. On the first day of the trial before me, the Crown indicated that it had no opposition to the late application by the accused, and consented to that mode of trial. The Crown Prosecutor then signed the election.

1. I viewed that election and satisfied myself, through making enquiry of the accused, that he had received appropriate legal advice before choosing to have his trial heard by a judge rather than a jury.

Relevant Principles of Law

1. Before I further discuss the evidence called in the trial, and the conclusions which I draw from it, I will set out some preliminary matters. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused.

1. I have determined all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court, including the accused, and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial. I have never been to the location where the attack occurred.

1. I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charges he faces. Judges are not immune to feelings of sympathy. It is impossible not to feel sorry for Mr O' Neill who was looking forward to an afternoon's fishing before being attacked without warning by a complete stranger. I have recognised those feelings, recognised their effect upon me and then put those feelings to one side. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy.

Onus of Proof

1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty.

1. The accused does not have to prove that he is innocent, The accused does not have to prove that he is not guilty. It is for the Crown to prove his guilt if it can.

1. What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charges on the indictment.

1. As it turned out, and as I will shortly explain, there was much that was not in dispute in this trial. The real issue concerned the state of mind of the accused when he did certain things.

1. There is no dispute that Mr Cook did what Mr O'Neill said that he did. As I have mentioned there is no dispute that the accused caused grievous bodily harm to Mr O'Neill. Indeed the accused made formal admission to that effect. I therefore make findings that the Crown has proved those matters beyond reasonable doubt.

1. The only issue for me to resolve is whether I am satisfied beyond reasonable doubt that at the time he did what he did, the accused intended to cause grievous bodily harm to Mr O'Neill.

The Issue at the Heart of this Trial

1. Intent and intention are very familiar words; in this legal context they carry their ordinary meaning. There is little point in me using synonyms to explain what intention is.

1. In this regard the accused raises the issue of his intoxication. He says that is a relevant factor in determining whether he intended to cause grievous bodily harm. Of course this is correct. When examining the question as to whether the Crown has proved that Mr Cook intended to cause grievous bodily harm that afternoon I look at the accused as he was at the time he was assaulting Mr O'Neill.

1. I must examine the accused's state of mind as it was when he was assaulting Mr O'Neill. So this means that in deciding what he intended, I must take into account any effects of alcohol or dugs or both.

1. It is for the Crown to satisfy me beyond reasonable doubt that the accused had the intention to inflict really serious bodily injury upon Mr O'Neill in spite of the evidence of how intoxicated he appeared to be.

1. In some circumstances, an intoxicated person may act without forming any particular intention at all. On the other hand, a person may be considerably affected by alcohol or drugs or both and yet still commit an act with a specific purpose in mind.

1. The fact that his or her judgment was affected so that the person acts in a way different to how he or she would have acted if sober does not necessarily mean that the person was not acting with a specific intention.

1. And it is important to remember that a person may not be able to remember what they did, but nevertheless have acted intentionally. To say the same thing another way, a person may have intended to do something, and to achieve a certain result, even if they later can't even remember doing anything at all.

1. I will give an example which is often used when instructing a jury on the issue of intoxication and intent.

1. A man drives to a hotel where he drinks a lot. Well over the limit he then drives home and goes to bed. The next morning he has no recollection of how he got home. He goes outside and sees his car in the driveway and realises that he must have driven home but has no memory of doing so. In that situation it may well be that the man intended to drive even though the following morning he has no memory of doing just that.

1. Of course it is important to remember that it is not enough for the Crown to prove an intention to commit the acts, namely hitting and kicking Mr O'Neill. What has to be proved beyond reasonable doubt is the specific intention stated in the charge in the indictment, that is an intention to cause grievous bodily harm. That is simply bodily injury of a really serious kind. This type of injury does not have to be permanent or even life threatening.

1. There is no obligation on the accused to prove either that he could not or did not act with the intention to cause grievous bodily harm. It is an essential fact that the Crown must prove before I can find the accused guilty of the offence charged.

Did the Accused Intend to Cause Grievous Bodily Harm to Mr O'Neill?

1. The accused gave evidence in his trial. He said that he had no memory of having struck Mr O'Neill although he accepted that he did. In fact he said he had no memory from when he started drinking earlier that day until waking up in the police cells. He was thus of course unable to say that he did not intend to inflict grievous bodily harm on Mr O'Neill. But of course that does not alter the fact that the prosecution must prove beyond reasonable doubt that the accused had that intention.

1. The accused was certainly under the influence of alcohol and possibly drugs as well. The accused can remember starting to drink and when he was breath tested about two hours after his arrest his blood alcohol level was 0.123. Thus, when he assaulted Mr O'Neill about two hours earlier his blood alcohol level was not at an extreme level. I am not suggesting that he wasn't significantly under the influence of alcohol, but it would have been a blood alcohol level which is fairly commonly achieved by a substantial proportion of drinkers.

1. But then there is the unknown concerning the possibility that the accused took some form of drug as well which would have added to his inability to form the relevant intention. He could not remember taking any drug but he was prescribed Xanax at the time, carried that drug with him in case he needed it, and there were drugs available where he was drinking. It is thus a possibility, indeed a likelihood, that the accused took drugs as well as alcohol.

1. Rather than focusing on blood alcohol levels and the possible effect of the accused having consumed drugs in an abstract sense, the best evidence as to his state of intoxication in those circumstances, is to be found in his behaviour.

1. There were some aspects which were quite strange. Pointing to a significant level of intoxication is the very behaviour that has led to these proceedings. The assault upon Mr O'Neill was committed in bizarre circumstances. The accused had no grudge against him and indeed Mr O'Neill apologised for being unable to provide jumper leads which the accused had sought.

1. Many of the police officers who were involved in the accused's arrest describe him as "ranting", "not making any sense", "away with the fairies", speaking in jumbled words and similar descriptions. A video of the accused's behaviour soon after he was arrested was played. He is shown to be seated on the ground in handcuffs yelling out, amongst other things, that he had merely come down to check on his, or his father's, houseboat when he was hit in the face by a man with a fishing rod. He has trouble remaining upright, and is clearly agitated.

1. After going back to the police station he slept for a long time before being finally interviewed some nine hours after arrest. A video of that interview was also played. In it the accused appears to be sober although tired and crying at times. He then spent some time detoxifying in jail (although his behaviour during that time was not explored).

1. On the other hand there are many features of the evidence which point to an awareness on the part of the accused as to what was happening around him and what he was doing.

1. Firstly as mentioned earlier, the accused at one stage told Mr O'Neill that if police got involved he would blame Mr O'Neill. That is a logical thought process. Even the accused's assertion about the relative gullibility of police and judges points to an ability to reason, a knowledge of wrongdoing and an awareness of a suitable argument which might persuade Mr O'Neill not to report the matter to police.

1. But there is more on this topic to be taken into account. After police had arrived and arrested the accused, he did precisely what he said he was going to do, supporting the Crown's assertion that the accused was capable of carrying out a connected set of actions. The accused told police that it was Mr O'Neill who had assaulted him, rather than the other way around, by hitting him in the mouth with a fishing rod. For example Constable Ross said that although the accused was ranting and not making any sense, he said about Mr O'Neill "I didn't do anything. It was that fucking cunt over there. He hit me with a fishing rod. He can get fucked."

1. Then there is the video of the accused taken at the scene of his arrest. As I mentioned earlier, the accused explained his presence by saying that he had been checking out a houseboat owned by him and his father. In his evidence the accused told me that he and his father did own a houseboat which was moored in the vicinity. Thus the accused knew where he was. Also on the video it is apparent that he is aware of what is going on, able to comprehend what was said to him, and able to make himself understood.

1. Although, as I have noted earlier, it is important to distinguish between an intention to do the acts and intention to cause grievous bodily harm (the Crown needing to prove the latter beyond reasonable doubt) the ferocity of the assault upon Mr O'Neill, and the length of time over which it took place, are such that proof of an intention to do the act goes a long way to proving an intention that grievous bodily harm result. Indeed the accused said in his evidence that he would expect that kicking someone to the face and the throat would cause really serious injuries.

1. I am satisfied that despite the accused's intoxication he displayed a clarity of thinking at the time of the assault and soon after it, which demonstrated that he did intend to cause grievous bodily harm to Mr O'Neill. That is a finding I make beyond reasonable doubt. I have found particularly important in making that finding the following unchallenged evidence and conclusions I have drawn:

• The nature of the assault was such that grievous bodily harm would inevitably result.

• The accused demonstrated an ability to reason that the police would be after him for what he had done.

• The accused was capable of using a threat in an attempt to have Mr O'Neill not report the matter to the police.

• The accused kept that thought in his mind when he later carried out the threat to falsely claim that Mr O'Neill had attacked him.

• The accused knew where he was, knew that the houseboat was nearby, and, as revealed in the video taken of him immediately after arrest, understood what was being said to him, understood what was happening and was able to make himself understood.

1. In accordance with the findings I have made I find the accused guilty of Count 1 on the indictment.

**********

Decision last updated: 26 March 2014