R v Johnson (No 5)
[2019] NSWSC 146
•12 February 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Johnson (No 5) [2019] NSWSC 146 Hearing dates: 6; 7; 8; 11; 12 February 2019 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Common Law Before: Campbell J Decision: Evidence admitted
Catchwords: EVIDENCE LAW – Evidence admitted - sufficient that evidence seems capable of being probative of some fact in issue to the extent to which the evidence can establish it – evidence informs a decision about a fact which might underpin an argument about self-defence. Category: Procedural and other rulings Parties: Regina (Crown)
Douglas Johnson (Accused)Representation: Counsel: G.J. Tabuteau (Crown)
Solicitors:
E. Ozen SC (Defence)
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)
File Number(s): 2017/195278
Judgment
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The learned Crown Prosecutor has tendered two documents relating to the antecedent medical condition of the deceased, Mr David Morrison. The first document is an expert's certificate under the hand of Dr J Givorshner, who examined Mr Morrison in relation to a taxi accident in which he was involved in as a pedestrian on or about 28 March 2017. The second document is an extract from the Police official notebook of Constable Adrienne Lamparelli which contains a statement dated 28 March 2017, by Mr Morrison in relation to the circumstances of that accident, and his complaints in relation to injuries he suffered in the accident.
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Just to complete a short narrative of what facts this evidence is tendered to prove, in his statement to Constable Lamparelli, Mr Morrison told the officer that although he had previous problems with his gait and ambulation, he, following the taxi accident, as at the day on which it occurred, had great difficulties walking, and required the assistance of a walking cane. That report was made at 12.15pm on 28 March 2017.
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He was examined in the Emergency Department of Sydney Hospital by Dr Givorshner at 5.30pm, and Dr Givorshner, without expanding on the full history he had received, completed a report which included his or her findings on clinical examination and assessment. The doctor recorded that physical examination, notwithstanding the complaint of pain, produced unclear findings due to the nonspecific nature of the pain. However, analgesia was provided, and an x-ray taken, which supported the diagnosis of a comminuted patella fracture of the left knee. Mr Morrison was treated and discharged with a Zimmer splint and crutches. One can readily infer that he received instructions to be non-weight bearing on the injured knee.
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He was also referred to the Prince of Wales Hospital Fracture Clinic for a follow-up. There is no further evidence in relation to his progress between March and June 2017.
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The purpose of the tender is said to be to evidence which will negative, or at least assist the Crown to negative beyond reasonable doubt any reasonable possibility that when Mr Johnson stabbed Mr Morrison, which Mr Johnson admits, he was acting in self-defence. The way the case is explained is that I would be invited to infer that, given these injuries, and given those complaints as at March, I would be satisfied beyond reasonable doubt that Mr Morrison was in no position to engage in provocative or threatening behaviour, conduct or words towards Mr Johnson.
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That issue is certainly relevant. The question, however, arises is whether I can infer by reference to a presumption of continuity or otherwise that the complaints, bearing in mind they were nonspecific, made by Mr Morrison on 28 March, 2017 and the fracture would have continued over the following period of three months without any improvement whatsoever in his condition. It seems to me that I have received evidence already which is not challenged so far as it tends to suggest that by June 2018 Mr Morrison's condition as regards his left knee was such that he had good days and bad days. I should interpolate that was evidence which came from his partner Ms Martin, who gave evidence before me this morning. She was challenged by Mr Ozen of Senior Counsel as to the nature and extent of the disabilities he still suffered on the 28th of June.
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I have also seen, as Mr Ozen reminds me, a compilation of CCTV footage taken on the day in which Mr Morrison was killed. This shows his movements around about the Twin Shoe Shop where he was killed in the minutes leading up to receiving the severe stabbing injury at the hands of Mr Johnson. No walking stick, brace or other curative apparatus is in evidence about his person in that footage.
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I have looked very carefully at the footage. Although I have seen it but once in its entirety, I saw some of it yesterday. I have not, I must say, directed my specific attention to the matter of Mr Morrison's gait in the footage depicting him, although, I should say, there was no obvious limp on my viewing of it today. Admittedly, I was looking at it for a different purpose than to assess whether he continued to exhibit a limp when I watched it this morning. Doubtless I will be shown excerpts of it again and doubtless I will consider it again when I review the evidence in chambers while considering my verdict in due course.
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Having said all that, it does seem to me that the evidence tendered, the whole of the evidence tendered does not rise to the level of showing that Mr Morrison would have been incapable of offering offence, or making threats by word or action by reason of this injury and there is nothing in the the expert evidence of the doctor, for instance, that might be taken as suggesting that. So to that extent, Mr Ozen's submission is correct.
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However, I am not of the view that it is necessary at the point of admission that the evidence demonstratively proves that any threat or provocation was beyond Mr Morrison's capacity because of a fractured kneecap. It is sufficient that it seems capable of being probative of some fact in issue and in my view his physical capacity to the extent to which the evidence can establish it, is capable of informing a decision about a fact which might underpin an argument about self-defence, if it is otherwise fairly raised, on the evidence led at the trial, and in the circumstances, being relevant, I propose to admit it.
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I will treat it as a body of evidence and I will say that the statement of Constable Adrienne Lamparelli with attached notebook entry and the certificate of Dr Givorshner together will be Exhibit N.
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Decision last updated: 22 February 2019
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