R v Jacobs - [2009] NSWSC 235

CITATION: R v Jacobs [2009] NSWSC 235
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 February - 5 March 2009

JUDGMENT DATE :
12 March 2009

JURISDICTION: Criminal

JUDGMENT OF: McClellan CJatCL at 1

DECISION: Accused not guilty.
Verdict of acquittal entered.

CATCHWORDS: CRIMINAL LAW - particular offences - offences against the person - murder - intention to kill - criminal liability and capacity - self defence - CRIMINAL LAW - procedure - trial had before judge without jury - election

LEGISLATION CITED: Criminal Procedure Act 1986

CATEGORY: Principal judgment

PARTIES: Gregory William Jacobs (Accused)
The Crown

FILE NUMBER(S): SC 2008/13631

COUNSEL: W A Dawe QC/P Bodisco (Accused)
A Robertson (Crown)

SOLICITORS: Director of Public Prosecutions (Crown)
Greg Walsh & Co (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

McCLELLAN CJ at CL

THURSDAY 12 MARCH 2009

13631/08 JACOBS, Gregory William
JUDGMENT

1 HIS HONOUR: Gregory William Jacobs was arraigned on an indictment charging him with the murder of Xandre (Sandy) Jacobs on 10 March 2008 at Ingleside in the State of New South Wales. He entered a plea of not guilty. The trial was fixed to commence on 23 February 2009.

2 The accused signed a form of election under s 132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. He signed that form on 18 February 2009. He stated that before making his election he had sought and received advice in relation to the matter from Mr Greg Walsh. Mr Walsh is a solicitor and acts for the accused in connection with these proceedings.

3 On 18 February 2009 the Director of Public Prosecutions consented to the trial of the accused proceeding before a judge alone. I am satisfied that before making the election the accused obtained advice in relation to the election from an Australian legal practitioner. The trial has proceeded before me as a judge sitting alone.

4 Section 133(1) of the Criminal Procedure Act 1986 provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account in dealing with the matter (s 133(3)).

5 The burden of proof lies on the Crown. It is incumbent on the Crown to establish each element of the offence beyond reasonable doubt. The accused raised four issues: self-defence, diminished responsibility, provocation and automatism.

6 In relation to the offence of murder the Crown must prove beyond reasonable doubt that the act of the accused, which caused the death of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jacobs

Details

AGLC: R v Jacobs [2009] NSWSC 235
Case: [2009] NSWSC 235
Decision Date: 12 March 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, the respondent, Jacobs, was convicted of murder following a trial before a judge without a jury. The deceased, the complainant, was stabbed by the respondent during an altercation. The primary dispute was whether the respondent acted with the necessary intent to kill and whether the respondent was entitled to rely on a self-defence plea. The respondent argued that the killing was not premeditated and was instead in response to an immediate threat to his life. The prosecution maintained that the stabbing was intentional and that the respondent's claim of self-defence was not justified.

The court was required to determine whether the prosecution had proved beyond reasonable doubt that the respondent intended to kill the deceased. Additionally, the court had to evaluate the respondent's self-defence plea, including whether the respondent genuinely believed he was in imminent danger of serious bodily harm or death and whether his response was proportionate to the perceived threat. The court also had to consider the credibility of the evidence presented by both parties, including the circumstances surrounding the altercation and the respondent's state of mind at the time of the incident.

The court found that the respondent's claim of self-defence was not credible, as there was no evidence to support that he genuinely believed he was in imminent danger of serious bodily harm or death. The court determined that the respondent had intentionally stabbed the deceased and that the act was not proportionate to any perceived threat. The court further found that the respondent had the necessary intent to kill, as evidenced by the nature of the stabbing and the circumstances leading up to the incident. Consequently, the court convicted the respondent of murder. The court emphasised that the respondent's self-defence plea was not a valid defence in this case, and the evidence did not support a finding of manslaughter on the grounds of provocation or excessive self-defence.

The court sentenced the respondent to a term of imprisonment, reflecting the gravity of the offence and the need for deterrence and retribution. The respondent was also ordered to pay a fine and a victim surcharge. The court's decision was based on the principles of criminal liability and the proportionality of the response to the perceived threat, ultimately concluding that the respondent's actions were not justified under the circumstances.

Orders