R v Williams (2)

[2018] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:	R v Williams (2) [2018] NSWDC 168
Hearing dates:	25 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Previous ruling will not be altered.
Catchwords:	CRIMINAL LAW – Whether offence under s 35(2) Crimes Act is an offence of “specific intent”.
Legislation Cited:	Crimes Act Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	McIlwraith v R [2017] NSWCCA 13 R v Brady [2012] NSWDC 222. R v Grant (2002) 55 NSWLR 80, R v Willliams [2018] NSWDC 163
Category:	Procedural and other rulings
Parties:	The Crown Darryl Mark Williams
Representation:	Counsel: B Rowe (Crown) N Mikhaiel (Accused)   Solicitors: Director of Public Prosecutions (Crown) Peter Murphy Criminal Law
File Number(s):	2017/60992

Judgment

1. HIS HONOUR: Following the judgment I delivered on Thursday R v Willliams [2018] NSWDC 163 concerning whether an offence under s 35(2) of the Crimes Act 1900 is a crime of specific intent or not, this morning, the Crown drew my attention to a decision of his Honour Judge Blackmore, R v Brady [2012] NSWDC 222. I read this judgment and took the opportunity of drawing the attention of the parties to the decision of McIlwraith v R [2017] NSWCCA 13. I was not referred to the case by either of the parties, but became aware of it over it the weekend.

2. In the judgment I delivered last Thursday, I did note that I was aware of different judges of this Court having differing views as to whether an offence under s 35(2) of the Crimes Act 1900 was a crime of specific intent. The decision of Blackmore J is merely illustrative of that observation.

3. On the other hand, the Court of Criminal Appeal decision in McIlwraith v R is supportive of the conclusion I reached last Thursday, the Court there finding that an offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was an offence of specific intent. The Court held that the trial judge was wrong to regard the fact that knowledge of a likely result is a lesser requirement than an intent to cause a specific result meant that the offence her Honour was then dealing with was not a crime of specific intent. The Court adopted the reasoning in R v Grant (2002) 55 NSWLR 80, as did I in my earlier judgment.

4. The Court also referred to the practical considerations which were relied on in R v Grant, pointing to the complexity of jury directions if the charge could be based on specific intention and knowledge of likely consequences. The Court held that that in itself would be a significant reason to doubt that the legislation was intended to be understood the way the Crown would like me to understand it.

5. The result is that I will not alter the ruling I made last Thursday.

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Decision last updated: 26 June 2018