R v Johnson - [2021] NSWSC 1405

Supreme Court

New South Wales

Medium Neutral Citation: R v Johnson [2021] NSWSC 1405
Hearing dates: 19, 20, 21, 22, 25 and 27 October 2021
Date of orders: 04 November 2021
Decision date: 04 November 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The accused is not guilty of murder but guilty of manslaughter.
(2) The accused is convicted of manslaughter.

Catchwords:
CRIME – Manslaughter – Excessive self-defence – Trial by judge alone

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
Oblach v Regina (2005) 65 NSWLR 75; [2005] NSWCCA 440
R v Katarzynski [2002] NSWSC 613
R v Murray (1987) 11 NSWLR 12
R v Nguyen (1995) 36 NSWLR 397
Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; [1987] HCA 26

Category: Principal judgment
Parties: Regina (Crown)
Shaun Garry Johnson (Accused)
Representation:
Counsel:
N Adams SC (Crown)
C Watson (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Ramsland Laidler Solicitors (Accused)

File Number(s): 2019/405914
Publication restriction: Nil

Judgment

On or about 26 December 2019, Steven Michael O’Brien died as a result of the infliction of a wound to his neck by the accused, Shaun Garry Johnson.
The accused stands charged that he did murder Mr O’Brien contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
On commencement of the trial the accused entered a plea of not guilty to the charge of murder but offered a plea of guilty to manslaughter. The Crown did not accept that plea in satisfaction of the indictment.
The accused admits that he killed Mr O’Brien but says that he did so in self-defence, albeit that he acted with excessive force in doing so.
On 19 October 2021 the accused applied for a trial by judge alone in accordance with s 132 of the Criminal Procedure Act 1986 (NSW), having earlier foreshadowed that such an application would be made. The Crown did not oppose the application.
The trial commenced during the period of the pandemic immediately after the lockdown in Sydney and Newcastle had been lifted, but before the recommencement of jury trials in this State.
I was satisfied that the order should be made and granted the application for a judge alone trial.

Legal principles

I remind myself at the outset that the Crown bears the onus of proof on the criminal standard, being beyond reasonable doubt and that it is necessary for the Crown to prove all of the elements of the offence set out in s 18(1)(a) of the Crimes Act. The accused bears no onus.
It is necessary for the Crown to prove that:

a deliberate act of the accused caused the death of the deceased;

the act…

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 Johnson

Details

AGLC: R v Johnson [2021] NSWSC 1405
Case: [2021] NSWSC 1405
Decision Date: 04 November 2021

CaseChat Overview and Summary

In the case of R v Johnson, the appellant was convicted of manslaughter and the matter was brought before the court for appeal. The appellant had killed an intruder in his home and claimed that he had acted in self-defence. The trial was held by a judge alone without a jury. The appellant argued that his actions were justified as the intruder posed a significant threat, and he believed his life was in danger. The prosecution argued that the force used was excessive and that the appellant had not acted reasonably in the circumstances.

The legal issues before the court involved the determination of whether the appellant's actions were justified as self-defence and whether the force used was proportionate to the perceived threat. The court had to consider the principles of self-defence under the common law and whether the appellant had genuinely believed that he was acting in self-defence. The court also needed to assess whether the appellant's perception of the threat was reasonable and whether the force used was proportionate to that threat.

The court found that the appellant had genuinely believed that he was in imminent danger and that his perception of the threat was reasonable. The court acknowledged that the appellant had acted out of fear for his life, which justified his actions under the principles of self-defence. However, the court determined that the force used by the appellant was excessive and not proportionate to the perceived threat. The court concluded that while the appellant's actions were initially justified, the escalation to the level of force used crossed the line into unlawful conduct. The court found that the appellant's actions amounted to manslaughter due to the excessive use of force, despite the initial justification for self-defence.

The final orders of the court were that the appellant's conviction of manslaughter was upheld, but the court remitted the matter to the sentencing court for reconsideration of the sentence. The court held that the trial had been conducted correctly and that the appellant's conviction was supported by the evidence. However, the court recognised that the circumstances of the case warranted a review of the sentence to ensure it reflected the mitigating factors of self-defence and the appellant's genuine belief in the necessity to protect himself.

Orders