R v Thomas Beattie

[2024] NSWDC 651

District Court

New South Wales

Medium Neutral Citation:

R v Thomas BEATTIE [2024] NSWDC 651

Hearing dates:

2 December – 5 December 2024

Decision date:

05 December 2024

Jurisdiction:

Criminal

Before:

Everson SC, DCJ

Decision:

1.        On count 1 I find the accused NOT GUILTY.

2.        On the 2^nd count I find the accused GUILTY.

Category:

Principal judgment

Parties:

Rex
Thomas Beattie

Representation:

Crown: Ms C Hurford, instructed by the Solicitor for Public Prosecutions

Accused: Ms T Hennessy, instructed by Legal Aid Commission, NSW

File Number(s):

2022/00184103

JUDGMENT

Introduction

1. Mr Thomas BEATTIE ("the accused") was presented for trial on an indictment pleading three alleged offences. The 1st count charged him with wounding Brendan Cook with intent to murder at Cambridge Park on 21 June 2022. That is an offence contrary to section 27 of the Crimes Act 1900. The 2nd count was pleaded in the alternative to the 1st count, and it charged the accused with wounding Brendan Cook with intent to cause grievous bodily harm. It is an offence contrary to sub-section 33(1)(a) of the Crimes Act. The 3rd count was pleaded in the alternative to the 2nd count, and it charged the accused with wounding Brendan Cook whilst being reckless as to causing actual bodily harm, contrary to sub-section 35(4) of the Crimes Act.

2. Upon arraignment before me on 2 December 2024, the accused pleaded not guilty to the 1st and 2nd counts. The accused pleaded guilty to the 3rd count. The Crown declined to accept that plea of guilty in discharge of the indictment. Whilst the plea of guilty remains, the accused stood trial only on the 1st and 2nd counts.

3. The trial proceeded without a jury.

4. The case itself concerned an incident involving motorists that had been driving on a public road. The accused was one of those motorists. He gave evidence in the trial. Consistent with his plea of guilty to the 3rd count, he admits wounding Mr Cook, the other motorist. The accused denies wounding Mr Cook with either an intention to murder, or an intention to cause grievous bodily harm.

5. As prescribed by section 133 of the Criminal Procedure Act 1986 (NSW), this Court's judgment must state the applicable principles of law, including any warnings that would have been given to a jury trying the case and the findings of fact relied upon in reaching the verdicts.

6. That latter phrase means stating the findings on the main grounds critical to the contest between the parties, and on which the verdict rests. It also means exposing the Court's reasoning process by linking the relevant principles of law to the facts as found. I am not required to generally summarise the evidence. I have been assisted in that regard by the detailed summary by the Crown prosecutor in her closing address. As well, I have a transcript of all of the evidence.

Principles of Law

7. The applicable principles of law start with an acknowledgment of my roles.

Impartiality

8. In this bench trial, I am both the tribunal of fact and the tribunal of law. As the former, I am obliged to impartially and dispassionately evaluate the evidence with a common-sense approach, which includes my understanding of human affairs. My findings and ultimate verdict, or verdicts, must be based only on the evidence that has been adduced in the trial.

Onus and Standard of Proof

9. For each offence that requires a verdict, the Crown bears the onus of proving each offence element beyond reasonable doubt. As French CJ and Hayne, Crennan, Kiefel and Bell JJ declared in the 2012 case of Douglass v The Queen (86 ALJR 1086; 290 ALR 699; HCA 34) at [48] this "criminal standard of proof is a designedly exacting standard". The accused does not have to prove anything. He is presumed to be innocent until the Crown proves his guilt beyond reasonable doubt, if indeed it can.

10. Proof beyond reasonable doubt necessarily demands that the prosecution proves that there is no other reasonable explanation that can come from the evidence presented at trial other than the guilt of the accused. That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove every single fact, or issue, beyond reasonable doubt. The onus is on the Crown to prove the elements of the offence beyond reasonable doubt.

11. When the accused was arrested on 27 June 2022 he was cautioned as to his right to silence. The accused exercised his right to silence. That is a matter about which no inference unfavourable to the accused will be drawn.

12. This is not a case in which the Crown case relies solely or substantially upon the evidence of a single witness. Whilst the evidence of Mr Cook will be carefully scrutinised in light of the other evidence, a conclusion that that the accused is guilty of either the 1st or 2nd count does not depend on an acceptance of the evidence of Mr Cook.

Offence Elements

13. The legal elements of the 1st count on the indictment are:

• One, the accused wounded Brendan Cook; and

• Two the accused did so, with intent to murder Brendan Cook.

14. The elements of the 2nd count on the indictment are:

• One, the accused wounded Brendan Cook; and

• Two, the accused did so, with intent to cause grievous bodily harm to Brendan Cook.

15. The definitions of some of the expressions used in that articulation of the offence elements are as follows.

16. A wound is an injury involving the breaking or cutting of the interior layer of the skin, technically known as the dermis, and the breaking of the outer layer of the skin, technically known as the epidermis. Breaking merely the outer layer is not sufficient to establish a wound: R v Smith (1837) 8 C & P 173.

17. Intent carries its ordinary everyday meaning. A person's intention may be inferred or concluded from the conduct of the accused person before, at the time of, or after they did the physical element of the charged offence. Whilst there is no presumption that a person intends the natural and probable consequences of his or her act, a person's acts may provide evidence of their intention at the time they did those acts.

18. Murder is defined in section 18 of the Crimes Act. In the context of the charged offence in the 1st count, intent to murder means an intent to kill.

19. Grievous bodily harm is bodily injury of a really serious kind. It does not have to be permanent or even life threatening. What sort of injury amounts to being really serious is a question of fact.

Alternative Count

20. A verdict on the 2nd count is only required if the accused is acquitted of the 1st count. Whilst that is the sequence in which, at the point of final decision, the possible verdicts will be addressed, the processes of reasoning can be addressed and resolved in whatever order is convenient.

Assessment of witnesses

21. In deciding the guilt or otherwise of the accused, I may accept or reject, in whole, or in part the evidence of any given witness's evidence. That includes the evidence of the accused. Deciding what testimony is accepted or rejected may be based on all manner of things, including what the witness said; the manner in which they said it; and the general impression they made when giving evidence.

22. Each witness as to the incident on Richmond Road that gave rise to the charges recounted what they said they remembered. What they said was obviously in response to the questions they were asked. Those questions varied considerably in their relevance to the fundamental issue in this trial, which was made abundantly clear by the accused man's respective pleas and the defence opening statement. The fundamental issue in this trial is what was the intent of the accused when he wounded Brendan Cook.

23. How well a person remembers something depends on different things, including: that person's capacity to lay down an accurate memory in the first place; their capacity to retain that memory and its associated detail; their capacity to recall the memory; and their ability to articulate what they recall. That last aspect is closely associated with the vocabulary of the witness and their understanding of the words and phrases deployed by the questioner. What I must decide in relation to the evidence of any particular witness, including the accused, is whether I consider their evidence to be sufficiently reliable such that I can act upon it.

24. The reliability of the testimony of any given witness depends on their honesty and their accuracy. There are many factors that can have a bearing upon a witness's honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Whilst demeanour and impression are important and valid, I bear in mind generally, that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply equally to prosecution and defence witnesses. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness's evidence.

25. If I conclude that a particular witness has been doing his or her best to be honest, their reliability must be scrutinised. In a practical sense, the reliability of a witness means how accurate were they in recounting what happened. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.

26. Determining the accuracy of a witness invites considerations of various factors such as:

• How carefully did the witness observe the event about which they were giving evidence.

• Was the witness calm and composed at the time of the event about which they are giving evidence, or were they emotionally affected by stress, panic, fear, or some other emotion, or alcohol, or drugs, such that their powers of observation and/or laying down an accurate memory were diminished.

• How important to the witness were the surrounding details of an incident or event, such that the witness focused on committing to his or her memory all aspects of the event as opposed to what the witness perceived to be were the significant parts of the event.

• Has the witness provided a consistent account of the incident or event. Is their evidence capable of giving rise to in inference of suggestibility or contamination, such as to make the evidence, or parts of the evidence of a particular witness, unreliable.

The Accused as a Witness

27. The evidence of the accused will be considered in the same way that the evidence of other witnesses is considered, bearing in mind the onus and standard of proof. By entering the witness box, the accused has not and does not assume any onus of proof in the trial. He does not have to prove innocence. The onus of proving the charge remains with the prosecution throughout the trial.

28. To the extent that any part of the accused's evidence is disbelieved or otherwise rejected, then it will be put to one side. In that event, the question will remain: has the Crown, upon the basis of evidence that is accepted, proved the accused's guilt beyond reasonable doubt?

Intoxication

29. The 1st and 2nd counts are offences of which an intention to cause a specific result is an element.

30. In his evidence in chief, the accused said that on 21 June 2022 he started drinking "roughly around" 3.30pm although it "could have been a little before" as in 2:30pm. The accused said he drank two 700 ml bottles of Jack Daniels brand bourbon whiskey "straight" as in without any mixer such as a cola soft drink.

31. As a matter of law, intoxication by alcohol or drugs is a relevant matter to be taken into account in determining whether the accused had the intention to kill or the intention to cause grievous bodily harm. Whether the accused was intoxicated at the relevant time and the degree of that intoxication are questions of fact.

32. It is for the Crown to prove beyond reasonable doubt that the accused had an intent to kill or to cause grievous bodily harm despite the evidence of him having consumed alcohol before the alleged conduct giving rise to the charge. In each case if the Crown fails to prove that specific intent the accused must be acquitted of the offence of specific intent.

33. It is important that I bear in mind, that in some circumstances, an intoxicated person may act without forming any particular intention at all. Equally, an intoxicated person may still commit an act with a specific purpose. An absence of post-event recollection does not necessarily mean that he or she was not acting with a specific intention at the time of the event. The fact that his or her judgment was affected so that the person acts in a way different to how he or she would have acted if sober does not necessarily mean that the person was not acting with a specific intention.

Expert Opinion Evidence

34. In this case, Drs Shuang FU and Michael Robertson were called as expert witnesses in the field of forensic pharmacology. Dr Fu was a Crown witness. Dr Robertson was called in the defence case. Their respective statements were tendered, and they were each examined and cross-examined.

35. The value of their respective expert opinions very much depends on the reliability and accuracy of the material which they used to reach their opinion. After giving the matter careful consideration, if the facts upon which their opinion is based do not accord with the facts as I find them to be, I am not required to accept the expert's opinion. I am to a degree, entitled to take into account my own common sense and experiences if they are relevant to the issue upon which the expert evidence relates.

36. In resolving any conflict in the expert evidence, I am entitled to consider that particular evidence in the context of all of the adduced evidence, and especially that part of the evidence which may have a bearing on the acceptance or otherwise of a particular opinion.

Inferences

37. As the judge of the facts in this case, my function extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established.

38. Given I must be satisfied of the guilt of the accused beyond reasonable doubt, that means that I should be extremely careful about drawing any inference. Any possible inference will be examined to ensure that it is a justifiable inference. I will not draw an inference from the direct evidence unless it is a rational and justifiable inference in the circumstances.

The Crown Case

39. The case for the Crown is that notwithstanding any alcohol consumed beforehand by the accused, he (the accused) wounded Mr Cook with an intention to kill or in the alternative an intention to cause grievous bodily harm. In advancing the argument the Crown relies on the words and conduct of the accused before during and immediately after he stabbed Mr Cook.

The Defence Case

40. On behalf of the accused, it is argued that the evidence falls short of proving either such specific intent necessary to make out the 1st or 2nd counts.

41. It is argued on behalf of the accused that the words attributed to him at the scene, said to evince an intention that the victim should die, even if accepted, do not establish such an intention. Moreover, counsel for the accused argues that the accused was, at the time, so intoxicated that he did not form either an intent to kill or cause grievous bodily harm.

Fact Finding

42. Consistent with the plea of guilty by the accused to the 3rd count and as made clear during the opening statement by counsel for the accused, the key issue that is in dispute in this trial is whether the Crown can prove beyond reasonable doubt, the requisite intent required in the 1st count or the 2nd count. That efficient conduct of the trial was reinforced by the tender of four statements of agreed facts and the receipt of some other uncontested evidence.

43. I turn then to the facts critical to the contest between the parties, and on which the verdicts rest.

44. The sun set in Penrith at 4:45pm on 21 June 2022. At about 5pm on 21 June 2022, Brendan Cook finished work at Moorebank. He drove a white coloured Mitsubishi tabletop utility towards Penrith to collect some work-related things however that chore was cancelled or changed on the drive towards Penrith. Consequently, he drove towards his home in Londonderry. Accordingly, he drove north on Richmond Road. A median strip separated the two north bound lanes from the two south bound lanes of Richmond Road. Mr Cook was driving in the lane closest to the median strip. At the intersection of Dunheved Road in Cambridge Park some 3 kilometres northeast of the city centre of Penrith, he stopped his car behind a probably small red car. In the lane to the passenger side of that small red car was a maroon-coloured Toyota Camry sedan. It was being driven by the accused.

45. The traffic lights on Richmond Road turned to green. The red car did not move. Mr Cook pressed on the horn of his car. It made a noise and the red car drove off followed by Mr Cook. The accused drove his car in a manner that caught the attention of other motorists. Within 800 metres the accused had positioned his car in front of the car driven by Mr Cook and before the lights at the intersection of Richmond Road and Andrews Road, the accused applied the car's brakes and came to a stop. So too did Mr Cook. Neither man knew the other.

46. In his evidence in chief, Mr Cook was asked, "what happened after you stopped at those lights?" He answered, "the man in the car in front jumped out of the car, proceed to walk over to my car, visibly with a knife in his hand, with a stabbing motion stabbing at my driver's side window". He described that man as having, "a tattoo down the side of his face, and he was holding a knife". He said, "at the time I thought it was just a butter knife … everything sort of happened so fast, but in slow motion if you know what I mean".

47. When asked, what happened next, Mr Cook testified that the driver's side door opened and he released his seatbelt. After he was dragged out of his car Mr Cook said that he ended up alongside his car on the aisle in the median strip. He said that at first, he was on his feet "sort of in a scuffle and it wasn't very long until I was on my back". After he ended up on his back, Mr Cook testified: "The guy tried to kick me in the face, which I shielded my face with my arms … And my arms took the brunt of the kick, and then, he leaned over and stabbed me several times in the head, neck and shoulder. Leant over the top of my body on the ground, and told me to' die, you dog'." Mr Cook went to state, "after he stabbed me and told me to die, he jumped in his car and sped off …"

48. Mr Cook was challenged about his evidence during these exchanges in cross-examination by counsel for the accused:

Q. Are you sure that he said those words? A. Yes, definitely sure.

Q. Could you be mistaken? A. No, I could not.

Q. He never said the words, "Die, you dog" at all, did he? A. Yes, he did.

Q. And he never said the word "die" to you at any point during the incident, did he? A. Yes, he did.

49. The accused testified that his recollection of being on Richmond Road commenced when he was at the lights at Andrews Road and that he could not remember anything before that. The accused's version of the physical altercation between he and Mr Cook was that he was driving his mother's car on Richmond Road when somebody beeped their horn at him and yelled, "move, you dog." That prompted the accused to get out of his car. He testified that he walked to that car. He was asked, "why did you do that?" He answered, "because the person in the car behind me was yelling out, 'you dog'. I don't fully remember why I got out the car." The accused said that he used his knuckles to knock twice on the window of that car and told the driver, who was Mr Cook, to get out the car. He was asked, "why did you do that?" He answered, "I don't know".

50. The accused said that the person in the car took their seatbelt off and tried to hit him with their door as they opened it. According to the accused, "the guy stepped out of his car, and I punched him in the head with a left hook". He said he did that because , "he'd come at me with his fist up". The accused said that after the man was hit, "he fell headfirst into my stomach" and he, the accused, proceeded to .hold the man by the shoulder and continue to "punch him". The accused was asked, "why did you punch him then?" He answered, "I do not know". He was also asked, "did you have anything in your hands when you were punching him?" To that he answered, "I didn't think so at the start, no." He elaborated by saying, "near the end when I was hitting him, I realised that I had stabbed him".

49. Further exchanges in the evidence in chief of the accused included:

Q. Where did you hit him on his body? A. Around the head and top of his back.

Q. Do you recall which hand you were using? A. My right hand.

Q. When you said you realised you stabbed him, when did you realise that? A. After the third or fourth time I hit him I cut myself on my hand, and I looked and realised that I had a knife in my hand.

Q. What sort of knife? A. I do not remember.

Q. Do you remember how you got that knife? A. No, I don't.

Q. What's the next thing that happened? A. I let him go and he fell to the ground. And I stepped back and ran back to my car.

52. Three of the witnesses were on their way home from work when they saw Mr Cook lying near his car on Richmond Road after he had been stabbed. They attended to Mr Cook whilst awaiting the arrival of an ambulance crew. One of those witnesses was Rachel Muir, a cardio-thoracic nurse. She testified that Mr Cook told her that the guy that stabbed him said, "Die, motherfucker". Asked if she was sure that Mr Cook used the word, "motherfucker", Ms Muir answered, "That's what I recall on the day that he said, "die, motherfucker."

53. Close to the end of the evidence in chief of the accused there was this exchange:

Q. Mr Beattie, did you intend, when you were punching the man, did you intend to cause him really serious injury? A. No.

Q. When you were punching the man - by punching I mean the first punch, but also the punches when he fell into your belly button area, when you were punching the man did you intend to kill him? A. No.

Q. After you made the realisation that you had stabbed him did you see on his body where it was that you had stabbed him? A. No.

54. Under cross-examination, the accused agreed that his memory of the events on 21 June 2022 was fractured and limited due to the alcohol that he had drank.

55. The knife used by the accused penetrated the clothing worn by Mr Cook and each of those stab wounds breached the dermis and epidermis. There is no direct evidence of the depth of any of those wounds. The length and location of the wounds were:

1. a 2 cm laceration to the right side of the front of the neck;

2. a 9 cm laceration of the right rear base of the neck;

3. a 3 cm laceration of the right rear shoulder bone;

4. a 2 cm laceration of the back of the head;

5. a 5 cm laceration of the left middle side of the base of the neck; and

6. a 1 cm semi-circular shaped laceration of the back of the head.

56. The nurse Rachel Muir, also testified that "one of the nurses had actually cut his shirt open just so we could assess what was going on … my main concern was this wound on his right shoulder that had caused what I thought was pneumothorax, because it was bubbling out with air". The agreed facts state that Mr Cook had indeed sustained a right-sided pneumothorax.

CONSIDERATION

57. I have attentively listened to the arguments advanced by the Crown Prosecutor and counsel for the accused. I also queried some of the statements they made in those closing arguments. I have afforded those closing arguments the weight which I consider they deserve.

58. This is not a case in which the incident giving rise to the charge or charges was captured by camera such that the incident can be viewed and reviewed by the tribunal of fact, in order to better understand who did what, when and how. The reliance on mere witness testimony limits the conclusions that can be made as to the direct evidence and the justifiable inferences that can be made from that direct evidence.

59. Mr Cook may or may not have beeped his horn. He may or may not have said something to the accused. Whether or not he did, is not determinative of the state of mind of the accused. There is no dispute that the accused got out of his car, approached the car driven by Mr Cook and that Mr Cook exited his car. Whether Mr Cook did so by being dragged out his car by the accused or did so by himself, is another issue that is not determinative of the state of mind of the accused. The same consideration applies to the issue of whether or how the accused made contact with the windows of the car containing Mr Cook, before Mr Cook exited the vehicle.

60. I am satisfied beyond reasonable doubt that after he had stabbed Mr Cook, the accused said, "die you dog". That retrospectant piece of circumstantial evidence does not satisfy me that the accused actually intended to kill Mr Cook.

61. I did not assess the accused to be evasive or dishonest in his evidence. I accept that he was intoxicated to an unknown degree at the time that he wounded Mr Cook. I find that his intoxication contributed to his fragmented and limited memory of the afternoon of 21 June 2022.

62. I accept as a reasonable possibility that the first blow thrown by the accused towards Mr Cook was the clenched-fist left hook punch, as stated and demonstrated by the accused in his evidence. Afterall, Mr Cook said in his evidence, that he had his forearms in front of his body in a manner that he described as a defensive manner. It is a standard way in which someone that is involved in a fistfight would position their arms both to throw a punch and to defend a punch. The fact that the punch was a left hook is indicative of the fact that Mr Cook was successful, at least in part, from avoiding being punched directly in the face from a jab or a cross.

63. In any event, that left hook punch is not a blow, from which I am able to infer, that manifests an intention on the part of the accused to kill Mr Cook. I find that when the accused landed that left hook, it likely caused Mr Cook to fall headfirst into the abdomen of the accused, as to the accused so testified. Mr Cook may or may not have, at some point, have been lying on his back. Ultimately, it matters not. That is because the evidence is undisputed as to where he was stabbed. I find that the accused held Mr Cook by his shoulder and continued to strike him. As I said, it is undisputed the accused was armed with a knife and that he used that knife to stab Mr Cook six times.

64. The fact that Mr Beattie's judgment was affected so that he acted in a way different to how he would have acted if sober does not necessarily mean that he was not acting with a specific intention.

65. I return to the evidence that I have recited as to what was said by the accused in his evidence in chief, and note what I find is an inconsistency. When asked, "Why did you punch him?" The accused answered, "I don't know." The assertion by the accused that he did not have a specific intent to either kill or cause grievous bodily harm in effect means that the accused is asserting he has a recollection as to what his state of mind was at the time. All things considered, I reject the assertion by the accused that he accurately recalls his intention at the time he repeatedly stabbed Mr Cook. Consequently, I put that assertion to one side.

66. Given the number and locations of the six stab wounds, coupled with the post offence statement "die you dog", I am satisfied beyond reasonable doubt that the accused wounded Mr Cook with the intention of causing him grievous bodily harm.

67. Accordingly, on count 1 I find the accused NOT GUILTY.

68. On the 2nd count I find the accused GUILTY.

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Decision last updated: 04 March 2025