R v Johnson (No 7) - [2019] NSWSC 148

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Johnson (No 7) [2019] NSWSC 148
Hearing dates: 6; 7; 8; 11; 12; 13; 18 February 2019
Date of orders: 22 February 2019
Decision date: 22 February 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
Conviction of murder recorded

Catchwords: CRIMINAL LAW – Conviction of murder – accused found to have had the necessary mental element of murder – found to have intended to cause really serious injury to deceased – accused did not have the intention to kill deceased – partial self-defence not accepted – deliberate violent use of knife – force required to inflict extent of damage upon deceased found to be significant
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 132
Crimes Act 1900 (NSW), ss 18, 23
Cases Cited: Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466.
Category: Principal judgment
Parties: Regina (Crown)
Douglas Johnson (Accused)
Representation:
Counsel: G.J. Tabuteau (Crown)
E. Ozen SC (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2017/185278

Judgment

Douglas Johnson has pleaded “not guilty” to the charge that he murdered David Morrison on 29 June 2017 at Campsie. Without intending or conveying disrespect I will generally refer to Mr Johnson as the accused, and Mr Morrison as the deceased.`
As the accused so elected with the consent of the Crown the trial was conducted by me sitting without a jury under s 132 Criminal Procedure Act 1986 NSW.
The Crown alleges that the deceased died as a result of an intentional voluntary act of the accused, stabbing the deceased twice. One of the stab-wounds severed Mr Morrison’s femoral artery and he died from the consequences of massive blood loss leading to hypovolemic shock at St George Hospital where he was taken for urgent but regrettably unsuccessful medical treatment.
It is the Crown case that the accused initiated the confrontation with the deceased which culminated in the stabbing by approaching him in a shoes and other fashion accessories shop (“the accessories shop”) in Beamish St, Campsie. The Crown submits that the conflict occurred because the accused harboured some resentment against the deceased arising out of an unspecified incident which had occurred a day or two earlier at a methadone clinic frequented by the deceased and the accused’s partner. The Crown says that the accused fatally stabbed the deceased with the specific intent to kill or cause really serious injury to him.
Mr Ozen SC, who appears for the accused, does not dispute as a matter of fact that the accused by his voluntary act stabbed the deceased causing his death. There is no issue therefore about actus reus. Mr Ozen made clear that the real issues for trial are whether when he stabbed the deceased the accused had the actual specific intent of killing or inflicting really serious injury on the deceased; and even so, whether the Crown had excluded self-defence as a reasonable possibility. During his opening Mr Ozen made reference to the partial defence of extreme provocation under s 23 Crimes Act 1900 NSW but this argument was abandoned (properly in my view) in closing address (311.50-312.10T).

Judge alone trial: General legal matters (Directions and Warnings)

Before addressing the evidence it is convenient now, to set out some of the general legal considerations relevant to a judge alone trial. These are the relevant directions of law and warnings that would otherwise have been given to a jury. As I evaluate the evidence lead in the trial I will supplement the following general statement with directions specific to the circumstances I am addressing to resolve whether the accused is guilty or not guilty as charged.
My judgment is required by law to include a statement of the principles of law which I will apply, and the findings of fact on which I rely in coming to my final decision. To the extent to which the law would require a specific warning to be given to a jury in this case, I am required to express it in these reasons and take the warning into account in deciding the matter.
The starting point, and fundamental rule, applicable to all criminal trials is that the accused is presumed to be innocent of the crime with which he stands charged unless the evidence led before me in this courtroom satisfies me beyond reasonable doubt that he is guilty of the deceased’s murder. This burden of proof rests, and remains, throughout the trial on the Crown. The legal burden does not shift. There is no burden of proof of any issue whatsoever upon the accused.
The Crown must establish the guilt of the accused to my actual satisfaction beyond reasonable doubt. It is not enough for the Crown to show a mere suspicion of guilt, or even to show, if it can, that the accused is probably guilty. The Crown must go further and prove guilt beyond reasonable doubt. If there is any reasonable possibility that the accused is not guilty I must acquit him of murder.
Unless otherwise stated in the course of these reasons, when I use words or expressions such as “proved”, or “I am satisfied”, or “I accept”, I mean I am actually satisfied of the matter stated beyond reasonable doubt.
I acknowledge that “the criminal standard of proof is a designedly exacting standard”: Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [48]
I bear in mind that I have the responsibility of deciding what the real issues for decision in the case are. It is necessary for me only to state only so much of the relevant law as will govern the outcome on those real issues: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466.

The elements of murder

The elements of murder were briefly outlined above however I will formally set these out now. Relevantly for the present case the prosecution, in accordance with s 18 of the Crimes Act must prove beyond reasonable doubt that the acts of the accused - namely stabbing the deceased - caused the death of the deceased, and those acts were done with intent to kill or inflict grievous bodily harm upon the deceased. Grievous bodily harm is usually modernised with the phrase really serious bodily injury.
As the mental element of the offence is one of the critical issues in this case, I remind myself that the Crown must prove to my actual satisfaction beyond reasonable doubt by evidence I accept that the accused actually held the necessary specific intent I have described when he stabbed the deceased. This relates to his subjective state of mind. This is not decided by a consideration of what a reasonable, ordinary or prudent person ought to have known, appreciated or understood in the circumstances. Such matters may have some relevance to a consideration of the case. But the ultimate question – the existence of the necessary mental element of the offence that is to be proved by the prosecution beyond reasonable doubt – relates solely to the accused’s subjective state of mind: what was actually in his mind at the time he stabbed the deceased.
I remind myself, as I would a jury, that intent and intention are very familiar words. In this legal context they carry their ordinary everyday meaning. A person’s intention may be inferred or concluded from the circumstances in which the death occurred, and from the conduct of the accused person before, at the time of, and after he did the specific act or acts which caused the death of the deceased. In some cases a person’s acts may themselves provide the most convincing evidence of the person’s intention at the time. Where a specific consequence is the obvious and inevitable outcome of a person’s act, and where the person deliberately does that act, it may be inferred readily that he did that act with the intention of bringing about that outcome. This is not to say that I start from the premise that every person should be taken as intending the natural consequences of his or her acts. There is no presumption to this effect. The Crown must prove beyond reasonable doubt that the purpose of the accused, at the time he stabbed the deceased, was to kill him or to inflict really serious physical harm. To put it another way, the Crown must prove beyond reasonable doubt that when he stabbed the deceased the accused meant to kill him or inflict really serious bodily injury upon him.
In the circumstances of this case it may be pertinent to say that it is not necessary for the Crown to prove that the accused intended to kill the deceased. It is sometimes important to separate the alternatives. It is enough for the Crown case if the accused intended to inflict really serious bodily injury.
It is important to bear in mind that what is required is an actual specific intention to inflict really serious bodily injury as opposed, for example, from a mere intention to stab or wound. One may intend to draw blood without intending that the wound should involve really serious injury.
Before the accused is guilty of the most serious crime of murder I must be persuaded beyond reasonable doubt that he actually or consciously directed his mind at the time he stabbed the accused to the achievement of the purpose of inflicting really serious bodily injury.
As no-one can see into another’s mind, intention is something which can only be proved by inference. An inference is a conclusion which is drawn from other proved facts. The Crown will have failed to prove its case unless the only rational inference which can be drawn from all of the circumstances I find established by evidence I actually accept is that when he stabbed the deceased with the knife the accused had the actual specific intention of inflicting really serious bodily harm.
I have emphasised the need for the Crown to prove that the accused had actually formed the necessary specific intent when he stabbed the deceased because ordinary human experience shows a person may act without turning his mind to the consequences of his actions, especially in the heat of the moment. This does not mean that it is some kind of defence for a person to say he acted without thinking, or in anger. It is simply a reminder that the Crown need to establish beyond reasonable doubt an affirmative proposition that the accused acted with the specific intent necessary for murder.
Finally, the circumstance that the accused has admitted that he stabbed the deceased and thereby caused his death means, subject to the question of self-defence he has raised, that if I am not persuaded that he is guilty of murder I will need to consider, in the alternative, whether he is guilty of manslaughter by unlawful and dangerous act. I will return to this question only if necessary.

Whether the accused intended by his act to inflict grievous bodily harm

I will now turn to the question of whether the Crown has proved beyond reasonable doubt that the accused is guilty of murdering the deceased subject to self-defence, the legal considerations have been set out above, and these will not be recited. I will remind myself, however, that guilt must be the only rational inference that can be drawn from all the circumstances established by the evidence considered collectively, rather than in a piecemeal fashion, before a conviction can be imposed.
The evidence led at the trial, in general terms, consisted of: a compilation of contemporaneous CCTV footage showing the movements of the accused and his wife and of the deceased and his friend Scott Campbell through Campsie on the morning of 29 June 2017 extending to actual footage of the incident which led to the deceased’s death; records of gaol calls between the accused and various persons during his first six months in custody (Exhibit O); crime scene photographs; oral testimony of the crime scene officer; various “eyewitness” accounts including that of Mr Campbell; expert evidence in oral and written form; and other witness statements. Not all of the evidence was contentious. What should be made of it is the real issue in the case. An exception to this general statement is the evidence of Scott Campbell, the reliability of which was in contention in several important respects which I will refer to below.
A logical place to start is with the CCTV footage. Before dealing with it, I will remind myself that although in many respects superior to photographs in large measure because of its contemporaneity, CCTV footage has its limitations as evidence. Like photographs it remains a two dimensional depiction of events which occur in real time and space. While the footage records what transpired between the accused and the deceased as it happened, those events unfolded toward the rear of the accessories shop some distance from the camera. Moreover, the camera’s view was partly obscured by the fixtures on which goods were displayed for sale. The CCTV footage in this case did not record sound. Shortcomings like this explain why courts normally prefer to evaluate photographic evidence, whether still or moving, in the light of reliable eyewitness testimony. But not all eyewitness testimony proves reliable. And this is true in respect of some of the witness evidence in this case. Notwithstanding the shortcomings of the CCTV footage, in some respects its reliability is superior to that of the eyewitnesses. It’s common place for the recollection of eyewitnesses to deteriorate over time. Even when bolstered by relatively contemporaneous written accounts, the written word may well have been influenced by extraneous factors. In other cases persons proffered as eyewitnesses may not have been paying attention to what happened until it was all over. I remind myself that when evaluating eyewitness accounts I am not bound to either accept or reject the whole of a witness’s evidence. It is always open to the tribunal of fact, for good reason, to accept and reject parts of a witness’s evidence.
It is difficult to make a finding about whether the accused and the deceased were known to each other before the confrontation in the accessory shop on 29 June 2017, and if so how well known. In a phone call from gaol recorded on 6 July 2017, the accused claimed to have known the deceased “all my life”. Later in the same phone call he referred to the deceased, erroneously, as “Ray” but said when he spoke to him in the shop he said, “Mate, I know you mate”. In another conversation on 14 August 2017, he said that the deceased was “like … my friend now”. In the same conversation he claimed to have known both the deceased and Mr Campbell “all me life”. In a conversation on 24 August 2017, the accused said that he had not seen the deceased “for … 15 years”, but he had seen Mr Campbell more recently. He seems to have recognised the deceased at least from a methadone clinic because on 8 August 2017, he is recorded saying that the deceased “gets dosed at the same clinic as my girl”. He repeated this to another person on 24 August 2017 saying, I interpolate that if he intended to kill the deceased he would have waited “at the clinic for him”.
Other evidence (Exhibit L and Exhibit M) indicated that certainly Mr Campbell and the accused’s partner attended the same methadone clinic which both attended on 28 and 29 June 2017. They had received their doses within about 40 minutes of each other. Obviously, and there is no direct evidence about this, the accused and deceased may have been recognisable to each other at least from around the clinic. From the CCTV footage recorded by different cameras around bakery business, north of the accessory shop, the accused’s partner, who did not give evidence, appears to have recognised the deceased and possibly Mr Campbell when she saw them on Beamish Street.
It is clear that during the morning of 29 June 2017, the deceased spent time in the company of Mr Campbell, with whom he shared premises. The toxicological evidence indicates that the deceased had methadone in his blood at the time of his death. There is no evidence about when, where or in what circumstances that drug was consumed. He certainly attended the Canterbury Methadone Clinic with Mr Campbell who received his dose at 11:01 am. It was Mr Campbell’s evidence that the deceased waited outside the clinic while Mr Campbell went inside (104.10 – 25T). At some stage, Mr Campbell was somewhat unclear, (103.30 – 104.5T) probably before Mr Campbell attended the Methadone Clinic, the deceased bought a four or six pack of cans of Smirnoff mixed drinks which he carried with him in a white plastic shopping bag. He was consuming one held in his right hand when he entered the accessories shop. The plastic bag was held in his left hand as was a folded Women’s Day magazine.
As things happened, the accused and his partner also headed for Campsie after his partner had received her dose of methadone at the clinic. They too walked north along Beamish Street. They were a little ahead of the deceased and Mr Campbell and paused outside the bakery I have referred to. They remained there as the deceased and Mr Campbell made their way North along Beamish Street. The deceased was a pace or two ahead of Mr Campbell as they approached the vicinity of the accessories shop and the bakery. The deceased had a satchel swung across his left shoulder, resting on his right hip. Mr Campbell had a backpack over his right shoulder only. Another blue bag was strapped to the backpack which later was shown to contain a so-called Moon or orthopaedic boot.
When the deceased and Mr Campbell were alongside the accessory shop, Mr Campbell commenced to enter the shop while the deceased continued north. He stopped beside an Armaguard van parked at the kerb outside the bakery near where the accused and his partner were standing. From my viewing of the DVD it appears that he stopped because Mr Campbell, who was then standing in the doorway of the accessories shop called out to him. There was no sound on the CCTV footage, but that is the inference I would draw from Mr Campbell’s body language and the consideration that the deceased stopped and retraced his steps entering the accessories shop a little after Mr Campbell. There are a number of different angles of footage available from various sources depicting the scene outside the bakery. It’s important for me to record that I did not form the impression that the deceased looked in the direction of the accused and his partner or had any interaction with them whatsoever when he was near them. As I have said he simply retraced his steps and entered the accessory shop because his friend called out to him.
But it’s certainly clear from the footage that the accused and his partner noticed the deceased. They are seen to comment and certainly the accused’s partner pointed in the direction the deceased went. It’s necessary to say something more at this stage about the gaol calls. Before doing so, I should say something about the evidential status of accounts given by an accused.

Accounts of the accused as evidence

When arrested by police later on 29 June 2017 and taken to Campsie Police Station, the accused was afforded the usual cautions and warnings given to citizens spoken to about the apparent commission of crime. The accused chose not to answer questions the police wished to put to him. That is to say, he exercised the right to silence when spoken to by police that all of us enjoy in common, subject to presently irrelevant statutory exceptions. I remind myself that the accused having heeded the caution given to him by police it would be quite wrong of me to use that fact against him in any way and I will not do so. I will put it to one side.
Although the accused carries no burden of proof in the case he had the right to give evidence in his own defence if he so chose. The circumstance that he chose not to give evidence cannot be used against him in any way either. At all times it is for the Crown to prove the guilt of the accused beyond reasonable doubt and his silence at the police station and in court may not be used against him. In particular, it is impermissible to use his silence to fill perceived gaps in the evidence. If there are gaps in the evidence I am required to consider whether that matter creates a doubt in favour of the accused.

The accused has of course made statements to other persons. I have already made reference to the recordings of the gaol calls. Both counsel have made submissions based upon that material to support their arguments. As that material has been tendered it is evidence and it is of course permissible for me to take it into account with the other evidence in the case.
The fact that there is an account or accounts from the accused in evidence does not in any way alter the burden of proof. The accused does not have to satisfy me that his version as recorded in the gaol calls is true. Quite the contrary, to the extent to which the accounts given by him may be exculpatory, the Crown need to satisfy me that the accounts given by the accused should not be accepted as a version of events which could reasonably be true.
At the same time, I must assess the evidence contained in the gaol calls in the same way as that of other witnesses. It is not necessary that I accept all of it or reject all of it. I am entitled to accept some, and reject other parts of it according to my evaluation of it in the context of the whole of the evidence given at the trial. In evaluating the evidence, I will bear in mind that the gaol calls are out of court statements not tested by cross-examination. One needs to bear in mind that the accused, who knew that the calls are being recorded, may have a motive to make exculpatory statements to his family and friends.
Bearing these things in mind, to the extent to which what he says could reasonably be true the content of the gaol calls will weigh in his favour on the critical issues of intent and self-defence. In this case they cannot be determinative of it for the simple reason that statements by the accused that he did not intend to kill the deceased do not go to the whole issue which extends to whether he intended to inflict really serious injury upon him. Moreover, his statements of his belief that the deceased and Mr Campbell were going to ambush him, if I assess them as genuine, or I was unable to reject them as untrue, may inform a decision about the first limb of self-defence as I will explain below but they are not determinative of its second limb which relates to my assessment of the reasonableness of his response to any threat he perceived.

The gaol calls

As I have already said, it is obvious from the video footage that when the accused and his partner noticed the deceased outside the bakery they made comment to each other and the accused’s partner gesticulated towards him. In a phone call of 8 August 2017, the accused said that his partner “saw them” which I take to be a reference to the accused and Mr Campbell. He said that his partner saw them go into the accessory shop. He asserted that his partner noticed that one of the deceased or Mr Campbell had stayed at the front of the shop to keep an eye on the accused. He said that his partner asked whether “they’re gunna jump us”. On 23 August 2017 in another conversation he said of his partner:

“She seen ‘em yeah. I had my back turned to the corner, she watched ‘em point, tap each other and point at me and, because she knows Scott, (I interpolate Mr Campbell) we all.. both of us know Scottie, and Ray’s a big tall fella, he’s the one that got AIDS. So she thought and she watched them walk past, but they hid in the shop and looked back at me, and that’s what she told me. So when they tapped each other and looked at me, she didn’t say nothing, but when they walked past one shop and into the next shop and then Scottie kept peeping out, that’s when (my partner) goes, what’s going on here, you know what I mean.”

I should say “Ray” is apparently a reference to the deceased, as I have pointed out already, who was in fact HIV positive according to the evidence. I have looked at the CCTV footage several times. It provides a quite comprehensive record of the movements of each party. There is nothing on it to suggest tapping, pointing or the taking of any covert action on the part of the deceased and Mr Campbell, whatever the suspicions of the accused and his partner. And it was not put to Mr Campbell that he and the deceased were “tailing” the accused for example.

But apparently from this slender foundation of suspicion, the accused formed the belief that the deceased and Mr Campbell were going to ambush him. In the conversation recorded on 8 August 2017, he said “they go into the … shop to try and ambush me, I walk in cause [my partner sees them] and I go, what you doing, trying to ambush me”. In the first call on 6 July 2017 he referred to it as, “They tried to sniper me”. He also said, “I think they might have had … weapons in the back of their backpacks”. No clear reason for the deceased and Mr Campbell to ambush the accused, and possibly his partner, ever emerged other than a reference to what might have been a $40 debt made in the conversation of 6 July 2017.
In any event having formed the view that they “were planning on jumping” him, he decided to go into the shop to confront them. In the telephone call of 8 August 2017, the accused asserted that he had an “apple peeling knife” on him. He described it as “a thing you peel a potato with”. He said his partner had brought it from the house to peel a lemon that they ate. He asserted, “I put it in my pocket and forgot all about it”.
Returning for the moment to the CCTV footage, I must say that when he enters the accessories shop, the accused looked like a man bent on confrontation. As he entered Mr Campbell was in about the middle of the shop on the left as one entered with his back to the accused. The accused strode down the aisle on the right heading for the deceased who was then at the back of the shop looking at a display of shoes on fixtures that ran across the shop from left to right. The deceased was still carrying his plastic bag and folded magazine in his left hand and holding a can of the mixed drink in his right. As the accused strode towards the deceased he looked over his shoulder at Mr Campbell who then had his back to him.

Mr Campbell’s evidence

Since 2017 Mr Campbell has had a stroke and has been diagnosed with a brain tumour (100.30 - .45T). He had had difficulties with his memory and speech, but said “It’s just starting to come back now.” His memory “comes and goes”, but he said “It’s pretty good though”. I interpolate that in cross-examination it was demonstrated that he had difficulties with his recall. His evidence was that when they entered the shop he was about three aisles up looking at backpacks. When asked where the deceased was “He’s at the front” (106.50T). The CCTV footage shows that this recollection is not accurate as while Mr Campbell was looking at the backpacks the deceased had moved down towards the back of the shop as I have previously described. When asked what was the next thing he remembered Mr Campbell said at (107.15T):

“I heard somebody say, “conspiring to stab me”, and then I turned around and seen an Aboriginal male punch my friend in the groin twice.”

When pressed in chief about the very first words he heard spoken he repeated “Are you conspiring to stab me?” or “Youse (sic) are conspiring to stab me”. He said everything happened quickly. He said that the deceased responded “I don’t even know you”. Mr Campbell thought that’s when the accused punched the deceased in the groin. He had not seen the accused walk into the shop. The deceased then said to him “He stabbed me, Scottie”. But Mr Campbell said, “I didn’t see a weapon, you know what I mean. I saw no weapon.” The accused then walked towards Mr Campbell and punched him on the chin. Mr Campbell said “It was barely even a hit” (111.10T). He repeated his history of a stroke and tumour, but felt he could remember 90 per cent of what occurred, “But there’s pieces I can’t”. He gave evidence that he had made a statement to the police on 29 June 2017 which he identified in the witness box. He said he was in shock at the time he made the statement.

The usual luncheon adjournment was taken after the statement was identified by Mr Campbell. Upon resumption it became apparent that Mr Campbell had had the opportunity of refreshing his memory by reference to the statement during the break (120.25 – 121.20T). When asked again about hearing an exchange of words between the accused and the deceased, Mr Campbell said that the first thing the accused had said was, “Are you the bloke I had dramas with yesterday at the clinic”. This was an obvious reference to the methadone clinic. It was in response to that statement by the accused that the deceased had said “I don’t even know you, Mate”.
In cross-examination, Mr Campbell was forced to agree that the accused had never mentioned the methadone clinic during his exchange with the deceased. He agreed that his statement about the clinic arose out of something that investigating police had explored with him. He was asked the following questions at (125.25T):

“Q. [The police] were thinking that [the stabbing] was because of something that happened a day or two earlier at the clinic?
A. That is right.
Q. That was their theory, wasn't it?
A. That was my theory.

When asked if it was possible that the altercation between the accused and the deceased “was just something left over from an argument a day or two ago” at the clinic. Mr Campbell said “That’s a possibility”. When pressed about his answer his reply included “everything happened that fast, that, you know, I have had a stroke since then too, and I have got a brain tumour and it’s all just… you know what I mean, plays on my head.”

It’s obvious that Mr Campbell’s recollection about the content of any exchange between the accused and the deceased is shaky, probably partly borne of the type of questions he was asked by investigating police searching for answers as to why the accused stabbed the deceased and affected by his health problems. In the absence of other confirmation it is not possible to conclude that the confrontation of the deceased by the accused was the re-ignition of a previous argument that had taken place at the methadone clinic. Having said that, the accused partner, as I have said, clearly recognised the deceased from the precincts of the methadone clinic and the accused probably did too from other things he said in the gaol calls to which I will refer in a moment.
The statement by the accused first attributed to him by Mr Campbell before he looked at his statement during the lunch break was “You’re conspiring against me” is probably more reliable. It was volunteered by him as a natural response to a question he was asked and as it happens it accords with some of the things said by the accused in the gaol calls.
Moreover, Mr Campbell’s recollection seemed clearer about another matter. In cross-examination he said that he turned around and looked in the direction of the accused and the deceased because he heard the noise of them speaking to each other (128.50T). And he saw that the deceased was talking to a person, the accused, who he remembered because he had met him when they were both in gaol. The conversation sounded “a bit heated”, which was why he walked over to where the two men were standing. When he got near him, the accused “started to get really agitated” (129.20T).
Mr Campbell agreed that when he heard the voices he started to walk towards the back of the store where the accused and the deceased were because he was concerned that they were having an argument (136.15T). Mr Campbell agreed that during this argument, the deceased took a step or two towards the accused. He heard nothing about any suggestion from the deceased that the accused owed him money (139.20T). As Mr Campbell approached the men, they were still arguing (139.30 - .45T). Mr Campbell thought it may have been as he approached that he heard the accused say “you’re conspiring against me”. He agreed that the accused became clearly more agitated as he approached and when he attacked the deceased, Mr Campbell was only about an arms-length away from him. Mr Campbell denied that he was confronting the accused (146.15T). He agreed that he was then standing in the accused’s way out of the shop but he denied that he was trying to corner the accused. Mr Campbell said he remembered seeing the accused at the clinic the previous day waiting out the front for his partner. He agreed that omitted to tell the police that detail.
Returning to the CCTV footage. After looking over his shoulder at Mr Campbell, the accused continued to the shelving where the deceased was browsing. It is apparent that he spoke to the deceased. Quite clearly one sees the deceased still encumbered by the items he was holding take two steps toward the accused. Contrary to his evidence, Mr Campbell still had his back to them when that happened. There is nothing in the deceased’s movement, however, nor in the evidence of Mr Campbell for that matter, suggesting that the movement was in any way threatening or aggressive. The deceased did not get so close to the accused that he could be said to be “in his space”. My impression from the CCTV footage is that the accused was challenging the deceased in some way. It must be said that so much is consistent with his accounts in the gaol calls. After all, he went there to confront the deceased. It is also consistent with Mr Campbell’s evidence, so far as it is reliable, about the accused demanding to know if the deceased and Mr Campbell were conspiring against him. One can clearly see the deceased look towards Mr Campbell whose attention had by then been drawn to the accused’s confrontation of the deceased. Mr Campbell walked over to where they were standing. Again, this appears to me to be an entirely non-threatening manoeuvre. Although Mr Campbell halted near the accused, he was not in his space. He was not threatening the accused and it was not put to him in cross-examination that he spoke to the accused in any way let alone aggressively.
Doubtless, however one must give some weight to Mr Campbell’s evidence that at this point the accused grew agitated. I am satisfied that at this point he withdrew the knife from his pocket. I am satisfied that the knife was in the sheath found at the crime scene and tendered in evidence (Exhibit Q) which he discarded as he brandished the blade. I infer that the knife was drawn at this point in time because the deceased is clearly seen in the footage to back off. By that I mean he is walking hurriedly backwards in an attempt to get away from the accused. The accused is then seen to lunge forward reaching out to grab the deceased with his left hand and stabbing him twice with the knife. The accused’s lunging or thrusting motions appeared quick and ppowerful.

Expert medical evidence

As I have described above, the expert evidence demonstrates two stab wounds. The upper wound in the pelvic region was on a more or less vertical plane. And the lower wound in a horizontal plane. It was the lower wound which severed the femoral artery causing death. From a photograph taken at the autopsy (Exhibit E) the lower wound has a somewhat enlongated, oval appearance.
Dr Maistry, the forensic pathologist who carried out the autopsy on 3 July 2017 labelled the wounds A1 and A2. A1 was the lower and fatal wound and A2 was what she described as the lesser wound, in the pelvic region. The appearance of the wound she labelled A2 had been changed and elongated very significantly at St George Hospital by surgeons attempting to save the deceased’s life. Dr Maistry said that there were large blood vessels in the area of the A2 wound that could have been breached by a stab wound in the groin, but in the event were not. However, in relation to the wound A1 she confirmed that the femoral artery and vein are vital vessels which transport blood to the lower part of the body and back to the heart. She said these vessels serve as a vital part in terms of transport of blood, and also oxygenation, to the rest of the tissues in the lower limbs. The cause of death was hypovolemic cardiac arrest resulting from extensive blood loss due to the severing of the femoral artery.
Dr Maistry was unable to give evidence about the approximate distance between the surface of the skin and the femoral artery and vein. She said, effectively, everyone is different so it was difficult to give an approximation. But a number of tissue layers had to be breached to reach the artery.
Dr Mary Langcake, a general and trauma surgeon practising at St George Hospital in June 2017 also gave evidence. In addition to her work as a specialist surgeon in civilian life, Dr Langcake is a surgical officer in the Australian Army Reserve and has seen active service abroad including in Afghanistan. As part of her work at St George Hospital on 29 June 2017, she was engaged with the surgical team attempting to save the deceased’s life. She described the fatal wound as being approximately 1.5 centimetres in length and extending deeply through a distance of greater than 5 centimetres upward and towards the inner aspect of the left thigh (233.30T). It had been one part of her task to attempt to pack that wound to stem the bleeding and she indicated it was necessary for her to push the length of her right index finger into the wound for that purpose. Her work was the cause of the stretching of the outer edges of wound A1, I have described above.
Dr Langcake gave evidence that she had seen many stab wounds in her professional life, more so in military than in civilian service. She said that she would expect the femoral artery to be about 5 centimetres below the surface of the skin. She described it as “a deeper system” and that in treating the injury she had been attempting to compress the artery and vein against the underlying bone (238.45T). When I asked her about how much force one would have to exert with a stabbing implement to penetrate that far she said at (238.50T):

“Whilst it is not possible to say pounds per square inch, the implement would have to go through apparel, skin which is quite tough and you can see in that cross sectional anatomical diagram that white border around the outside is the skin, and the thigh is a reasonable depth. Below that you have subcutaneous fat, which has connective tissue in, and then around the muscle borders is what we call fascia, which is like a white tendonous material, best described as I described to my colleague thinking about say a leg of lamb and the bundles of muscle that have the white shiny stuff around, that fascia is very tough, so it would need, an implement would need to get through all of those layers to cause the incision as noted, and therefore it would need a reasonable degree of thrust to produce that injury.”

It goes without saying the wounds described by the experts were stab wounds not slashing type wounds.

Return to the narrative of fact

After stabbing the deceased twice, the accused turned to face Mr Campbell, punching him and walking briskly from the shop. When the accused turned to face Mr Campbell he stood very close to him in his personal space. The men circled, exchanging words, I infer. By the time the accused punched Mr Campbell he had manoeuvred himself into the position where he was between Mr Campbell and the exit to the door. It was only then that he punched him. It was an entirely unnecessary act because the coast was clear for him to get away. I could not see from the CCTV footage any resistance or anything that could be called a threat on the part of Mr Campbell. The punch was in that sense gratuitous.
An incredible feature of this event is that the confrontation which was sought out and brought about by the accused, occurred in a shop where there were at least one other customer and a shop assistant nearby. The other customer has not been identified. But the shop assistant, Jing Peng gave evidence.

Other eyewitness accounts

As is obvious from the CCTV footage, Ms Peng was standing at the cash register which was in about the middle of the shop on the left some distance from where the stabbing occurred. Ms Peng remembered people coming into the shop, probably including the deceased and Mr Campbell, but as is obvious from the CCTV footage and from her evidence (159.30T) she was not paying any attention because she was absorbed with her mobile phone. She said that she noticed the accused and Mr Campbell come in “without looking at them”. She noticed that they had gone to look at the goods displayed for sale. All Ms Peng perceived about these events was what she heard. She said “I didn’t see clearly, but I noticed some sounds like boom boom something like that” (160.30T). She remembered one of the tall males, obviously Mr Campbell ask that they call an ambulance. That was all that was said. Contrary to the CCTV footage, she said she did not look in the direction of the sounds she heard, but she did notice “one male”, obviously the accused, “pass in front of me” (160.45T). By the time she saw him he was nearly at the front door. She followed him and noticed him walking towards the train station. Ms Peng did not notice what happened to the deceased and she only noticed bloodied footprints on the floor after another person suggested she should call her boss.

Importantly, she said the police had shown her the knife sheath which is Exhibit Q. She said that the shop did not sell any knives or knife covers “that looks like that” (163.45T). I infer that the shop sold no knives at all from that evidence. Mr Ozen did not find it necessary to cross-examine Ms Peng.
Mr Nettakallappa carried on business from a small office at the back of the shop as an astrologer, mainly reading a client’s palm and face. Things were apparently rather slow and when, first, the accused and his partner, and, secondly, the deceased and Mr Campbell passed along Beamish Street, he was attempting to drum up business by standing outside the shop handing out business cards. He’s clearly depicted in that position in the CCTV footage and he remained there when the deceased and Mr Campbell entered the shop and after the accused entered the shop. In that position he heard the noise of someone saying “hey hey hey”. He turned around straight away and saw “two people who were juggling with each other inside the shop. They were down towards the back of the shop past the cash register. I interpolate that it’s obvious that the two people he saw juggling with each other were Mr Campbell and the accused. He said “one person was trying to hold the other person and other person got free and walked out” I interpolate I did not see any physical contact between the accused and Mr Campbell until the accused punched Mr Campbell before walking out.
Mr Nettakallappa demonstrated that on his recollection, Mr Campbell had two hands on the right arm of the accused. Mr Nettakallappa re-entered the shop on seeing these events and said that the accused passed him at a fast pace on his way out of the shop. From the CCTV footage, as I’ve already remarked it appeared to me that the accused strode just as purposefully out as he had strode in.
When Mr Nettakallappa re-entered the shop he saw Ms Peng indicating with her eyes down to the back of the shop and when he looked there he saw a man lying on the floor. He had not previously noticed that person (172.15T). From his evidence, Mr Nettakallappa suggested that Mr Campbell and the deceased had been in the shop before he left to hand out his cards. But he must be mistaken about this because he is clearly seen on the footpath as they walked passed. In cross-examination, Mr Nettakallappa agreed that what he saw was like two men fighting together and that struggling was a better word than juggling. He also said that when the two men were struggling just before the accused broke free and walked out, “his back was not towards him” (176.35T). Frankly this is inconsistent with the CCTV footage, which despite its limitations, as I have said, is a better record of what occurred than Mr Nettakallappa’s recall. I accept that he was an honest witness doing his best to recall the events that he witnessed, but to the extent to which his version is contradicted by the CCTV footage, as I think it is, I prefer the footage to his testimony.

Gaol calls

I have already made reference to the various accounts the accused gave as to what happened in the gaol calls. In the first call of 6 July having said Mr Campbell and the accused tried to “sniper” him he said that he told the accused, whom he erroneously referred to as “Ray”:

“I know you mate, … don’t go sneaking around like that bro, come up and talk to me it’s only $40 (expletive deleted) I’ll give it to you later and that’s when he steps forward. It’s on camera and everything, brother, [and he said he’d] just take it off me. So I stabbed him in the leg, not above the hip.” (Expletive deleted and obvious errors in transcription corrected).

From my viewing of the CCTV footage, the deceased did step forward when the accused arrived on the scene and started speaking with him. He took two steps, but in a non-threatening manner still holding his paraphernalia. There is nothing about his body language to suggest that he was intending to take $40 off the accused.

On 22 July the accused said the deceased and Mr Campbell were planning on jumping him and he went into the shop to confront them. In that conversation he asserted that the deceased had said that they “were gonna jump him”. The accused said that he said to the deceased as stabbed him “don’t try to threaten me or don’t try to jump me”. He also asserted he said “I don’t want to kill you bud”. But if you “jump me, I’m gonna stab your leg, I’m gonna … take your knee cap off”. He also said, “I don’t want to go to gaol for murder, but … don’t … hide in the shop and try and get me when I walk down the … train tracks, I’m not stupid” (expletives deleted). The accused asserted that the deceased stepped forward and said “I’m going to take what I want”, which the accused understood as the deceased saying that he was going to get him. That’s when the accused stabbed the deceased in the leg “and jumped back”. He said “I’m serious, man, don’t try to jump”. He alleged it was not a “vicious stab or anything”.
In a call of 4 August 2017, the accused asserts that the deceased and Mr Campbell tried to ambush him and then the deceased threatened him, “the idiot” and he stabbed the deceased in self-defence.
In the call of 8 August 2017 when the accused mentioned the “apple peeling knife” he asserts that the CCTV footage will show that the deceased threatened him and then he stabbed him. It was in response to the threat that the accused stabbed the deceased in the leg. He asserted that the deceased stepped “into my face”. He protested that he didn’t hit the deceased in the heart or in the head but he aimed for the knee. He told the person he was speaking to that he said “I mean business, mate don’t … try and jump me”. He asserted they were going to jump him because they knew he was getting paid that day. He asserted that murder has to be premeditated and that if he wanted to kill the deceased he could have done so at the Methadone clinic. The accused said, “I could’ve waited there and got him”.
On 14 August call, the accused complained “I ended up stabbing him in the leg, can you believe it, in the leg and he died”. He also said this:

“I haven’t provoked anything, I’ve threatened, but then I’ve realised that … threat, I’ve back peddled and then he stepped forward and threatened me … so he provoked me. You know what I mean.”

In the call of 23 August 2017, he protested that “I’m not gunna do anything”. By this I took him to mean that he didn’t intend to kill the deceased. He said, “My life ain’t in danger. I’m not that stupid”. It was then he claimed to have known the deceased and Mr Campbell all of his life.
In a call of 24 August 2017, having relayed how the deceased and Mr Campbell they were watching him, the accused asserted that he went in the shop and:

“tried to acknowledge them and … said, look I’ve got a knife here … don’t [try to] harm me, when I was walking out he steps in and goes I’m you know like basically threatens me and it’s all on camera … so I … stab him in the leg, not up in the heart, not in the head … I’m using (as little) force as possible … and he … died from that one stab in the leg”.

He again said that if he intended to kill him he would have lain in wait at the clinic for him.
On 30 August he asserted that he had stabbed the deceased once only. He added, “I didn’t stab him three or four times only once in the leg to say, here listen, lad, don’t try and jump me.”
On 3 September 2017 he gave this account:

“I tried to go [in the shop] and say, come on, man, don’t go doing anything stupid and then when I think I’m safe, I put the knife in my pocket and go to walk out and then he steps forward and threatens me. You know what I mean? … If there was another bloke there … I wouldn’t have worried about it, you know what I mean, but I had a girl with me.”

In a call on 5 October 2017 he again asserts that he was about to walk away when the deceased stepped forward and threatened him. On 13 December he explained what happened by saying the deceased had his left side exposed to the accused, but the accused “stabbed him in the right leg because I didn’t want to kill him”. The implication seems to be that he could have easily stabbed him in the heart because the deceased’s left side was exposed. The difficulty is that he stabbed him in the left leg not the right. He then said that because Mr Campbell was close by he “went to stab him but he didn’t have a weapon, so I just punched him”. In relation to Mr Campbell he asserted he used “extreme less force” [sic]. I should say despite the accused speculating that there may have been concealed weapons in each bag carried by the deceased and Mr Campbell, the deceased who’s supposed to have threatened the accused on the accused’s account did not produce any weapon and no weapon was located amongst the personal possessions of either him or Mr Campbell.
On 14 December 2017, he asserted that the deceased and Mr Campbell were closing in on him, cornering him and, “they made the first move”.
From this body of evidence, I will now make my finding about specific intent. I will remind myself again, that it is for the Crown to prove to my actual satisfaction beyond reasonable doubt on the evidence I actually accept that when he stabbed the deceased, the accused had the actual specific intent of killing him or really seriously injuring him.
I also bear in mind again, the limitations of the CCTV footage. It’s evident that the only the account of the accused pieced together through the various gaol calls which I have summarised that provides a complete version of the events as they unfolded from the time when he and his partner noticed the deceased outside the bakery until he left the shop after punching Mr Campbell. I therefore remind myself as I have set out above that the accused does not have to satisfy me that his version as recorded in the gaol calls is true. Given the burden and standard of proof lying on the Crown, it’s for the Crown to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true. That is to say, it’s not necessary that I actually accept what the accused said to give it some weight in the evaluative process.
However, in assessing the gaol calls, I have borne in mind that the accused was aware that his conversations were being recorded and that on each occasion he spoke to somebody he exhibited certain keenness to exculpate himself from his predicament. In assessing his statements, I will have regard to the objective evidence provided by the CCTV footage with its limitations, the natural desire of the accused to exculpate himself and the degree of probability that what he says could possibly be true.
I will say at the outset that I am not persuaded beyond reasonable doubt that when he stabbed the deceased, the accused intended to kill him. I must say, however, that in expressing this conclusion I have given little weight, if any, to his protestations that he did not intend to kill. Rather, from all of the circumstances proved by evidence I accept, I am not satisfied that an intention to kill is the only rational inference available.
I’m not prepared to reject the account that the accused convinced himself when the deceased and Mr Campbell were sighted on Beamish Street by the accused’s partner that the accused became suspicious of their motives and jumped to the conclusion, for which there was no foundation whatsoever, that they were somehow stalking him and out to get him – ambush him – at some point when he may be vulnerable. I must say, however, that the only rational inference is that their presence on Beamish Street at the same time as the accused and his partner, after they’d all been at some stage that morning at the same Methadone clinic was a pure co-incidence. I will leave that rational conclusion to one side. Obviously, the accused thought differently. There has to be some explanation for him deciding confrontation was the appropriate course. And the only suggestion that the evidence allows is that he acted on the impulse produced in him by what I have already referred to as the slender foundation of suspicion.
I find that on the strength of this baseless supposition the accused determined to enter the shop, confront at least the deceased or both if necessary to warn them off with use of the knife if necessary. From the CCTV footage one can detect the purpose in his stride as he enters the shop and approaches the deceased without hesitation even in the knowledge that Mr Campbell is also present. Of course, as he strode down the aisle looking over his shoulder at Mr Campbell it would have been obvious to the accused that Mr Campbell at that time had not seen him because Mr Campbell had his back to him.
I must say I do not accept the accused’s account about what happened next. I do not accept that he said words that amounted to no more than warning the deceased not to be an idiot. I do not accept that upon hearing words such as those the deceased was provoked to move toward the accused’s bag, magazine and can of drink in hand to offer some threat of robbing the accused then and there. Rather, I am convinced that when the accused appeared the deceased did no more than take a couple of steps towards him so that he could hear what the accused had to say. It is evident that what the accused had to say was not pleasant because I accept the evidence of Mr Campbell, elicited in cross-examination, that the accused soon became agitated. I have no doubt that he raised his voice under the influence of that agitation. It seems to me also that as the accused was charging the deceased and Mr Campbell of conspiring against him he gesticulated towards Mr Campbell causing the deceased to turn his head and look in Mr Campbell’s direction. Mr Campbell also doubtless in response to the accused increasing agitation turned to see what was happening and walked in the direction of the accused and the deceased. However, as I have already remarked it’s my firm impression and I infer from watching the CCTV footage that he did not get in to the accused’s face or space when he came within his near vicinity. I am firmly persuaded that under the heat of his own agitation the accused drew the knife as I have said already, discarded the sheath, and brandished the blade. This caused the deceased to back away as quickly as he could just before the accused lunged at him with the knife, using his left arm to grab the deceased drawing him towards him and stabbing him not once, but twice in the upper left thigh and lower pelvic regions. I do not accept that the placement of the stab wound was some surgical exercise in merely hurting the deceased to add emphasis to the verbal warning he’d already received. Rather the placement of those stab wounds was no more than an accident of the dynamic interaction of the deceased and the accused as the former tried to get away and the latter refused to let him.
I accept that the accused did not go on with his attack. This is an important consideration in concluding that the Crown have not established an intention to kill. However, that is not the end of the matter. I am satisfied beyond reasonable doubt that when he stabbed the deceased twice, the accused intended to really seriously injure him. Even if this was a spontaneous urge borne entirely of his self-induced increased agitation.
A number of factors have led me to this conclusion. The first is the deliberate use of a knife; the second is that it was used to stab rather than to slash; the third is the fatal stab wound required the fair degree of force that Dr Langcake described to penetrate deeply through the deceased’s clothing and into the various tissues of his thigh she described before severing the femoral artery and vein which are located deep near the bone; fourthly, although I accept he did not expect the deceased to die that is of no particular moment in the circumstances. His actions which I have described as quick and powerful demonstrate a strong desire to injure the deceased in a really serious way; fifthly this is the natural consequence of stabbing someone, which as a mature adult the accused must be taken to know; and sixthly, he appeared unsurprised and unconcerned about the deceased condition when he staggered away after being stabbed, collapsing on the floor before the accused left.
As I have already indicated in my legal directions it is a mistake to attempt to break down the reasoning process into its constituent parts. Intent is a fact that can only be proved by circumstantial evidence and it is necessary, at least in a strands-in-the cable-case, which this is, to view all of the circumstances, proved by the evidence I actually accept, as a whole rather than in a piecemeal fashion. This is because the probability of a mass of circumstances is likely to be cumulative. In such circumstances it is pointless to weigh and assess the probative value of each circumstance individually. This approach only leads to error. If having considered all the circumstances established by the evidence in this way there is an available inference consistent with innocence of murder reasonably I must decide the accused is not guilty of murder.
I have approached the question in this way and concluded that the only rational inference available on all of the circumstances which have been established to my satisfaction is that when he stabbed the deceased the accused intended to inflict really serious injury.
It is therefore necessary for me to consider whether the Crown have excluded beyond reasonable doubt any reasonable possibility that when he stabbed the deceased the accused was acting in self-defence.
I should add the available alternative of involuntary manslaughter does not arise for consideration in these circumstances. Voluntary manslaughter may have a part to play depending upon my findings referrable to self-defence.

Self-defence

A person is not criminally responsible for what would otherwise be murder if the person carries out the conduct said to constitute murder in self-defence. This is so even if the Crown prove, as here, that the act of the accused causing death was done with the requisite specific intent for murder; in this case the intent to cause grievous bodily harm.
For present purposes it is sufficient to say that a person carries out conduct in self-defence, if and only if, the person believes that the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them. In this case there is no suggestion of any need to defend anyone else, say the accused’s partner.
I remind myself that it is for the Crown to prove beyond reasonable doubt that the accused did not kill the deceased in self-defence. If the Crown does not discharge its onus, the accused must be acquitted of the charge of murder even though I am satisfied that the accused stabbed the deceased intending to inflict really serious physical injury.
Depending on the circumstances which I find, self-defence may be either a complete, or a partial defence to the charge of murder. If a complete defence the accused is not guilty of murder, or of manslaughter, I interpolate. If a partial defence, the accused is not guilty of murder, but is guilty of voluntary manslaughter, that is to say manslaughter by excessive self-defence.
The availability of self-defence depends upon the answers to the following questions:

Has the Crown excluded beyond reasonable doubt the possibility that the accused believed that stabbing the deceased was necessary in order to defend himself? and

Has the Crown excluded beyond reasonable doubt the possibility that stabbing the deceased was a reasonable response in the circumstances as he perceived them?

If “No” is the answer to each question the accused is not guilty of either murder or manslaughter. In those circumstances the accused is entitled to be acquitted and no question of manslaughter arises.

Self-defence will operate as a partial defence only, reducing murder to manslaughter, if the answer to the first question is “No”, and “Yes” is the answer to the second question.
Self-defence will not apply at all, that is to say the Crown will have excluded it, if “Yes” is the answer to the first question. It is unnecessary in those circumstances to answer the second question in this event.
The first question focusses solely upon the accused’s subjective state of mind. The second question requires an objective evaluation of all of the circumstances relevant to the question but from the stand-point of a reasonable person in the accused’s position viewing the situation through his eyes.

Finding as to self-defence

As part of my consideration of the issue of self-defence there are two further gaol calls I need to refer to. Both occurred on 7 August 2017 and both were between the accused and his partner. In the first call the accused was asking his partner to make contact with his solicitor. The extract received in evidence commences with the accused asking his partner to speak to his solicitor and to arrange for her to come and see him in custody. But he also seemed to be suggesting that his partner give an account of what happened inconsistent with the facts. He seemed to be suggesting to his partner that she should tell the solicitor that on the day the accused killed the deceased that she had been approached by Mr Campbell on the bus. The partner appeared nonplussed saying “What do you mean I got approached by Scotty”. She then corrected him pointing out that they saw him at Campsie. He told her to say that Mr Campbell had approached her and said “Oh such and such said this and said that. You know what I mean?” To which the partner answered “Yeah”. He also instructed her to say that she was there and Mr Campbell and her locked eyes when he was looking out of the entrance to the shop. The purpose of this was so that the solicitor would appreciate when she saw the CCTV footage that it was an “ambush”.
Now certainly, as I have made clear, the accused’s partner was with him outside the bakery, she noticed the deceased and pointed him out to the accused. While the deceased was near the accused and his partner Mr Campbell was in the doorway at the accessory shop calling out to his friend the deceased, or at least so I have found It’s possible that the accused’s partner saw him there, but there is no indication on the CCTV footage from either the accused’s partner nor Mr Campbell that there was any “locking of the eyes” or other expression of animosity.
In the second call the accused said “I’ve got to get found not guilty. How … am I suppose to you know tell this bloke stay away, like, don’t jump me, ambush me and he … died? (Expletives deleted). That last quote certainly seems to confirm the impression I otherwise had of the accused’s conduct leading up to him stabbing the deceased that he was intending to confront him and warn him off using the knife if he thought it necessary.
Despite the flavour of these conversations and the self-serving nature of many of the other gaol calls, I am not satisfied beyond reasonable doubt that they constitute evidence of consciousness of guilt. The particular calls of 7 August 2017 with his partner can reasonably be characterised as the accused being anxious to see his lawyer and for his partner to make a statement about what she knew. It’s understandable that a person would seek to rationalise their predicament in terms of their own innocence. That natural human failing of perhaps being unwilling to face up to the hard reality is not necessarily the product of a guilty mind.
Nor do I consider the fact that the accused left the scene of the stabbing is itself consciousness of guilt evidence. I have already accepted that notwithstanding what I have found to be his intention it was not his expectation that the deceased would die. Probably he felt he’d adequately warned the deceased and Mr Campbell off backing up his warning with what he regarded as an appropriate show of force. He might have intended to inflict really serious injury, but he did not actually intend to kill the deceased and as a medical laymen he probably had no reason to suppose that he had in fact severed the femoral artery. I am not satisfied beyond reasonable doubt that his post-offending conduct constitutes a consciousness of guilt of the murder of the deceased and I will put that submission by the Crown to one side.
The Crown, as I have said carries the onus of proof in relation to self-defence. But it’s natural to look at what’s said by the accused as to why the Crown has failed to exclude the possibility that he acted in self-defence. I did not understand Mr Ozen to rely upon the suspicion of the accused that the deceased or Mr Campbell were going to jump or ambush him as a circumstance according to the accused’s perception, itself justifying him going into the shop to confront the deceased and stab him in self-defence. I did not understand the submissions to go beyond the position that the accused’s “belief” about those matters provided context for what unfolded in the accessories shop.
The argument on behalf of the accused is that his belief that it was necessary to use the knife to stab the deceased to defend himself arose when in the language of the gaol calls, the deceased moved towards him and threatened him and Mr Campbell approached so as to corner him. There are a number of other aspects to it, as I have said that were relied upon as context that were relied upon bearing in mind that the Crown carries the onus of the criminal standard. Those other circumstances were that there were two men when the accused was there with only his female partner for support; from his previous experience the accused believed that both the deceased and Mr Campbell had criminal records and had done serious gaol time. The fact he knew Mr Campbell well, specifically as a person who had a criminal record and had done serious gaol time; and the consideration that in his mind they had been stalking him for the purpose of ambushing him (as I have said many times). It was perhaps not articulated in this way, but I understood it was implicit in the argument that when the deceased moved in to threaten him and Mr Campbell moved up to corner him, the accused formed the belief that his suspicion of being ambushed was about to materialise into actual fact. In those circumstances it is put I could not exclude the possibility that he then conceived it necessary, as there were two of them, to stab the deceased, and as there was then only one active brigand, it was sufficient to punch Mr Campbell to deter him from further threatening behaviour.
This argument runs into the immediate hurdle that it is inconsistent with the findings I have already made in relation to the accused’s intention. It must be borne in mind that from the gaol call accounts the perceived threats requiring self-defence consisted not only of actions i.e. the deceased moving close to the accused, but also of unspecified words by which the deceased making it clear he’d take what he wanted anyway, presumably the outstanding $40. I am prepared to accept that if such words were uttered they may have subjectively for the accused implied an offer of violence as he was hardly likely to give up his property without a fight. But, I am satisfied beyond reasonable doubt that those events did not occur. I have already found that the obvious movement of the deceased towards the accused was a response to the accused’s evident desire to speak with him. I cannot accept that it’s reasonably possible that the deceased was boldly offering the accused physical violence, I must say, armed as he was with a can of drink, a folded magazine and a plastic bag containing more drink. All of this in the face of a man who turned out to be armed with a knife. Nor am I satisfied that Mr Campbell posed any threat. I accept he moved over near the accused when his attention was drawn to the accused’s self-induced agitation, but I will repeat that he did not get into his space or face. He may have been only an arms-length away but there was nothing about his demeanour which was in any way threatening. I am satisfied beyond reasonable doubt that the attack of the accused on the deceased was borne of the accused’s own self-induced agitation which in turn was generated by his baseless suspicion that somehow the deceased and Mr Campbell were out to ambush him. I am satisfied beyond reasonable doubt that the Crown have excluded the possibility that the accused stabbed the deceased because he believed that conduct was necessary to defend himself from an actual threat posed by the accused or an actual threat posed by the accused and Mr Campbell in combination.
I should say in coming to this conclusion, I have not relied upon the argument put on behalf of the Crown that the deceased was not capable of presenting as a physical threat to the accused because of an injury he’d suffered on or about 27 March 2017. Without descending into the detail of the evidence lead in relation to this, it is sufficient to say that apparently the deceased was involved in an accident with a taxi as a result of which he suffered a fractured kneecap. He was examined at hospital, underwent x-rays and was released on a zimmer frame. His partner, Ms Martin, who was away at the time he was killed gave evidence that he continued to have difficulty walking and sometimes wore a brace. Some emphasis was put upon the consideration that the additional blue bag that Mr Campbell had strapped to his backpack contained a moonboot, sometimes seen worn by persons with leg injuries. But there is nothing to connect that item with the deceased. He certainly was not wearing it on that day. From my viewing of the extensive CCTV footage there is nothing about the deceased’s ambulation that suggests he was burdened with an antalgic gait. No limp whatsoever is evident and to me he seemed to move within the range of normality. There was no expert evidence that he still suffered from the fractured patella as at 29 June 2017 or that it had any effect upon his capacity to carry out the ordinary activities of daily life. As I said I have rejected that argument.
For these reasons I have answered the first self-defence question “Yes”. And self-defence has been excluded. It is unnecessary for me to address the second question in this event.
Were it necessary to answer the question, I would be satisfied beyond reasonable doubt that the Crown had excluded the possibility that stabbing the deceased was a reasonable response in the circumstances as the accused perceived them. Notwithstanding the accused’s speculation claimed in the gaol calls that the deceased and Mr Campbell may have had weapons concealed in their bags. No weapon was presented. In the gaol call of 14 December 2017, apart from asserting that the deceased and Mr Campbell were, “basically closing in on him” and that he “didn’t make the first … move”, he also said that he had the belief that they were drunk. He said “I only drew quicker because they were drunk, you know what I mean”. The accused always had the better of both the deceased and Mr Campbell when it came to a fight. He sought them out to warn them off as I have said, more than once with armed force if necessary. I am convinced that he had no doubt he was able to handle both of them without difficulty. At best any “threat” presented by the deceased, or the deceased and Mr Campbell in combination, was a verbal one even in the circumstances as the accused perceived them. Bringing a knife to the confrontation, being prepared to use it, and in fact using it when the deceased was attempting to get away was not, by any possibility, a reasonable response to the circumstances even as the accused perceived them.
No question of manslaughter arises.
Please stand up Mr Johnson. Douglas Johnson I find you guilty as charged in the indictment of the murder of David Morrison at Campsie on 29 June 2017. I direct that your conviction on this charge be recorded on the indictment by which the matter has been brought to this court.

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Amendments

25 February 2019 - Cover sheet: Amend hearing dates to include 18 February 2019

Decision last updated: 25 February 2019

Medium Neutral Citation:	R v Johnson (No 7) [2019] NSWSC 148
Hearing dates:	6; 7; 8; 11; 12; 13; 18 February 2019
Date of orders:	22 February 2019
Decision date:	22 February 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Conviction of murder recorded
Catchwords:	CRIMINAL LAW – Conviction of murder – accused found to have had the necessary mental element of murder – found to have intended to cause really serious injury to deceased – accused did not have the intention to kill deceased – partial self-defence not accepted – deliberate violent use of knife – force required to inflict extent of damage upon deceased found to be significant
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 132 Crimes Act 1900 (NSW), ss 18, 23
Cases Cited:	Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466.
Category:	Principal judgment
Parties:	Regina (Crown) Douglas Johnson (Accused)
Representation:	Counsel: G.J. Tabuteau (Crown) E. Ozen SC (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused)
File Number(s):	2017/185278