R v Holmes (No 3)

[2020] NSWSC 137

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Holmes (No 3) [2020] NSWSC 137

Hearing dates:

10, 11, 12, 13, 14, 17, 18 February 2020

Date of orders:

18 February 2020

Decision date:

18 February 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)      I propose to give the jury a general direction as to lies, but not lies as consciousness of guilt. That general direction will be related specifically to the exchange between Mr Wood and Mr Holmes after the event relied upon by the prosecution.

(2)      I do not regard Mr Holmes account on the ERISP as providing an evidential foundation for leaving excessive self-defence to the jury. I am of the view that there is nothing in the evidence generally to suggest that Mr Holmes assaulted Mr Hadden on the foreshore because he believed it was necessary to do so to defend himself. I note that the case has been conducted on the common ground that the plea of guilty to manslaughter forecloses any consideration of self-defence as a complete defence.

Catchwords:

CRIMINAL LAW – directions to jury – lies as supporting an inference of guilt – general direction as to lies – whether excessive self-defence should be left to the jury – no evidentiary foundation for supporting excessive self-defence

Cases Cited:

Edwards v The Queen (1993) 178 CLR 193

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Broadhurst v The Queen [1964] AC 441

Bullard v The Queen (1957) AC 365

Gammage v The Queen (1969) 122 CLR 444; 1969 HCA 68

Peacock v The King (1911) 13 CLR 619

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Procedural rulings

Parties:

Regina (Crown)
S. Holmes (Accused)

Representation:

Counsel: L Carr (Crown)
P Krisenthal (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
J.A. Solicitors (Accused)

File Number(s):

2018/200129

Judgment

1. HIS HONOUR I circulated a draft of my proposed written directions for the jury to counsel last week. After legal argument on 17 February 2020, most of the issues raised by counsel were resolved by consent and changes which will adequately appear from the transcript of proceedings for that day were incorporated into my draft. Two issues remained concerning a general direction as to lies propounded by the Crown and the questions of whether excessive self-defence should be left to the jury in circumstances were the accused has pleaded not guilty to murder, but guilty to manslaughter. He has adhered to that latter plea throughout.

2. After consideration overnight I pronounced the following rulings on the morning of 18 February 2020:

1. I propose to give the jury a general direction as to lies, but not lies as consciousness of guilt. That general direction will be related specifically to the exchange between Mr Wood and Mr Holmes after the event relied upon by the prosecution.

2. I do not regard Mr Holmes account on the ERISP as providing an evidential foundation for leaving excessive self-defence to the jury. I am of the view that there is nothing in the evidence generally to suggest that Mr Holmes assaulted Mr Hadden on the foreshore because he believed it was necessary to do so to defend himself. I note that the case has been conducted on the common ground that the plea of guilty to manslaughter forecloses any consideration of self-defence as a complete defence.

Directions as to lies

3. The evidence relied upon as constituting a lie arises out of the evidence of a Mr Wood, an eyewitness to some of the events on the foreshore. After witnessing blows delivered by Mr Holmes to Mr Hadden who was then prostrate on the foreshore walk at Newcastle Harbour, Mr Wood followed Mr Holmes to the vicinity of the Harrys Café De Wheels trailer on the southern side of Wharf Road. He said he had the following exchange with Mr Holmes when he caught up to him (339.36T):

“You just nearly killed that bloke over there. What were you doing , Mate?”

According to Mr Wood, Mr Holmes replied: “I didn’t do that. That wasn’t me.”

4. Mr Kristenthal of Counsel cross-examined Mr Wood to suggest that his evidence about that exchange was mistaken. It was put that Mr Holmes had denied “nearly killing” Mr Hadden and that he had never said, “That wasn’t me” (346.9 - .35T).

5. I should say that Mr Holmes dealt with this topic more than once in his Electronic Recording of Interview with a Suspected Person, which has been admitted into evidence as Exhibit L. I interpolate that his account is not always easy to follow because when compared with undisputed evidence it is apparently out of sequence. But at question 235 Mr Holmes said that a person, obviously Mr Wood approached him and said:

You’ve assaulted your mate, you’ve killed your mate, he’s over there he’s not breathing. I said, I didn’t kill [my] mate. I said I’ve been assaulted twice. I said, you’re making me out to be the victim (sic) mate, you know. I said youse (sic) are all looking at me and that. And I said, he attacked me twice, and I, you know, I, I punched him and I left. I said, when I punched him and he hit the ground, he was breathing and looking up at me. You know what I mean?

6. There’s clearly an issue of fact for the jury to resolve about whether in the immediate aftermath of the assault on Mr Hadden from the effects of which he eventually died, Mr Holmes denied being the assailant. If the jury are satisfied that he did then the Crown wish to argue that this was a lie, which the jury are entitled to take into account in conjunction with the other evidence when considering whether they are persuaded beyond reasonable doubt that when he assaulted Mr Hadden he did so with the necessary requisite specific intent of inflicting really serious bodily injury upon him.

7. In Edwards v The Queen (1993) 178 CLR 193 at p 205 Brennan J (as the Chief Justice then was) pointed out that lies told by an accused may be admitted at a trial for various purposes. They may merely go to credit, they may be relied upon as “a confession of guilt” when certain conditions are satisfied, and:

The jury may be able to infer guilt from the making of the statement and from the surrounding circumstances. In such a case, the making of the statement is not necessarily advanced as corroboration of another witness – it may be a case where no question of corroboration arises – but it is advanced as one piece of evidence among others from which the jury is invited to act in finding facts adverse to the accused.

The Crown relies upon the asserted lie in this third sense.

8. The plurality in Edwards v the Queen said at (p 210 – 211):

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied having regard to those circumstances and events that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in [the commission of] the offence …

The words in italics have been added by reference to the judgment of the plurality in Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [16].

9. The plurality in Zoneff at [21] did not regard the impugned cross examination about lies as being material “capable of being regarded as a lie stemming from a consciousness of guilt” which, as I understand it, would fall into Brennan J’s second category, which is also the focus of the quoted passage from the judgment of the plurality in Edwards v The Queen. About a case not involving lies as an implied admission, their Honours said at [23]:

A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:

You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

10. It may be that this formulation is at least in part derived from the opinion of the Judicial Committee of the Privy Council (Lord Devlin) in Broadhurst v The Queen [1964] AC 441 at p 457 (see Zoneff at [57] per Kirby J; and Edwards at p 205 per Brennan J).

11. In Broadhurst v The Queen, Lord Devlin said:

It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts … inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness (my emphasis).

12. It seems to me that the use sought to be made by the prosecution of the asserted lie in this case, falling as it does into Brennan J’s third category, is permissible and would be adequately covered by a direction which picked up aspects of Lord Devlin’s formulation and the formulation of the plurality in Zoneff. I have attempted to capture these elements in the direction contained in paragraphs [31] to [36] of the fourth draft of my Written Direction No 2.

Excessive self-defence

13. It is well established in murder cases that an accused person has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given: Bullard v The Queen (1957) AC 635 at 644. In Australian cases the question may revolve around an inquiry as to whether there is any viable case of manslaughter to be left for the jury’s consideration. In James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [19] French CJ , Hayne, Crennan, Kiefel, Bell and Keane JJ said:

The obligation to leave manslaughter in most, although not all, cases was identified by Barwick CJ as arising from the necessity to satisfy the jury of the elements of murder. This was so whether the element in issue was proof of the intention accompanying the unlawful and dangerous act causing death, or whether the prosecution had negatived a partial defence.

(See Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68 at 451).

14. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, when dealing with the proposition in a circumstantial case that a jury cannot be satisfied beyond reasonable doubt of the guilt of the accused unless his guilt is the only rational inference that the circumstances would enable them to draw, arising out of Barca v The Queen (1975) 133 CLR 82 at 104, the High Court pointed out (at [47]) that for an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”: Peacock v The King (1911) 13 CLR 619 at 661. Their Honours also emphasised that the duty is a “duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused” (my emphasis). (Citing Pemble v The Queen (1971) 124 CLR 107 at 118).

15. I am not satisfied that there is any basis in the evidence that would enable me to leave a defence of excessive self-defence to the jury. As I have said Mr Holmes has pleaded not guilty of murder, but guilty of the manslaughter of Mr Hadden. That plea has not been withdrawn. It is clear from the way that the trial has been conducted that the substantial issue relates to the mental element of the offence of murder. Mr Holmes’ case is that the Crown cannot prove beyond reasonable doubt that he when he struck the blow from which Mr Hadden eventually died, he had the requisite intent of causing really serious bodily injury. Mr Kristental of Counsel has not only disavowed any intention of putting excessive self-defence to the jury as a basis for acquitting Mr Holmes of murder, but also has been unable to point to any evidence which would engage my duty to leave the question of manslaughter to the jury on that basis. So far the jury have been told that if they find Mr Holmes not guilty of murder he will be sentenced for manslaughter.

16. The evidence at the trial consists of evidence about a scuffle in the brewery where Mr Holmes and Mr Hadden were drinking together not long before the fatal encounter. There is also evidence of eyewitnesses of events at the conclusion of the fatal encounter. However, this evidence is of persons whose attention was drawn to the events by the sound of a thud or a crack when, apparently, Mr Hadden was knocked down and his head struck the concrete pavement. The only account about how that came about is that account provided by Mr Holmes in the ERISP.

17. The account given by Mr Holmes is entirely inconsistent with the case that he delivered the punch that knocked Mr Hadden to the ground because he believed that that was necessary in the circumstances as he perceived them to defend himself from Mr Hadden. (Exhibit VD3).

18. After the scuffle in the brewery Mr Holmes and Mr Hadden were ejected separately and sent in different directions. Mr Holmes’s account (it’s not disputed) is that subsequently Mr Hadden approached him. He was asked about the circumstances in which he punched Mr Hadden in the face, he gave this account at Q 301 (omitting the interjected questions).

[After the incident in the brewery] … he’s come up and going … you ever do that, I’ll kill you. And that was it I thought, Oh, what, kill me, you’re gunna kill me … I’ve down nothing and you accuse me of stealing your smokes and you’re gunna to kill me. … So I, I punched him.

19. He also said at Q 510:

I just hooked him … Because he angered me, he threatened me, you know, he threatened me.

20. When asked whether he thought Mr Hadden was capable of carrying out the threat (Q522). He said:

Oh, not at all, not at all, no, don’t, yeah. If you’re thinking, yeah, re, you know, like that, oh, no, no, not at all, Sir.

He said he wasn’t concerned:

… that he was gunna kill me, not at all, you know. … It wasn’t like, I’m, I’m, immediate threat, I’m gunna die. It wasn’t like that, Sir, at all.

…

Q 526

…. Uh, it was more like going, Oh, yeah, you’re gunna kill me, are you, you bitch. Boom. You know, that was it, that was it. It wasn’t like, No, oh, yeah, you, you know. Not at all, Sir, it wasn’t like that, no, no.

21. When asked about his intention when he punched Mr Hadden (Q520), he said:

I didn’t have an intent, I didn’t have an intent. It was like, boom, you know what I mean? … there was no intent. I didn’t mean to hurt him, … I wasn’t that angry, you, you know to the point where I wanted to, … but, that’s the problem I’m worried about, if he’s hurt. I didn’t … want to even assault the man.

22. In my opinion this account does not lay an evidential foundation for a viable case of excessive self-defence.

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Amendments

19 February 2021 - Publication Restriction lifted

Decision last updated: 19 February 2021