New South Wales

Supreme Court

  • R v June Oh Seo [2019] NSWSC 639 (31 May 2019) – New South Wales Supreme Court
    Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Jealousy’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Poor literacy skills’ – ‘Separation’ – ‘Suicide threats

    Charges: Murder x 1.

    Case type: Conviction and sentence.

    Facts: The offender and victim were in a ‘romantic’ relationship and lived together at the victim’s apartment. The victim found the offender to be possessive and controlling. The victim tried to end the relationship, but the offender threatened to commit suicide if she did. The offender eventually moved out of the victim’s apartment, but continued to contact her. On 7 October 2017, the offender went to the victim’s apartment. He punched her in the face, and then threw her body over the balcony railing. He did not call for help. The precise cause of death is not entirely clear. The offender had two prior convictions for common assault and contravention of an apprehended domestic violence order for which he was placed on bonds ([43]-[44]). The bond imposed on the offender for the assault was current at the time of the offending, and thus was breached ([45]).

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: Wilson J convicted the offender of murder. Taking into account a further offence of assaulting and occasioning actual bodily harm to the victim, and his guilty plea, the offender was sentenced to imprisonment for 22 years and 6 months, with a non-parole period of 16 years and 10 months. Wilson J took into account the objective gravity of the crimes, the personal circumstances of the offender, and the relevant principles of sentencing.

    The murder was found to be serious ([51]) and brutal ([57]). The victim was physically smaller than the offender, and was unable to sufficiently defend herself. An aggravating circumstance was that she was attacked in her own home – a place of peace and safety ([53]). The offender’s moral culpability was found to be high, as his conduct demonstrated a violent disregard for the victim’s right to autonomy, that is, to choose to end their relationship if she wishes ([59]). He acted from a profound sense of entitlement ([79]). Her Honour noted the ‘distressing frequency’ of the offender’s crime, and the significant role of general and specific deterrence in determining his sentence [79]-[84].

    The offender’s background and the breach of his bond suggested that he had relatively poor prospects of rehabilitation ([85]-[86]). Further, the offender was a Korean national with limited English skills and no family locally. Although Wilson J took this into account when fixing the sentence, she was not persuaded that the offender’s circumstances were special or that the statutory ratio of the sentence should be varied ([87]-[88]).

  • R v Ahmed (No 2) [2019] NSWSC 517 (8 May 2019) – New South Wales Supreme Court
    Abnormality of mind’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Murder x 1.

    Case type: Judge alone trial.

    Facts: Mr Ahmed allegedly murdered his wife (the victim) by inflicting 14 stab wounds. He called 000, and told the operator that he had stabbed and killed his wife. He told police that he assaulted and threatened to kill her if she did not give him access to her phone, and that it was only after he read her recent text messages, which confirmed the continuation of an affair she had with Mr Khan, that he lost control and stabbed her. He also said that he did not intend to kill her. When Mr Ahmed killed the victim, he was suffering a mental illness, which the experts agreed was likely to have been an adjustment disorder, that being a form of depressive illness ([13]). He later offered to plead guilty to manslaughter, but this was not accepted by the Crown. At his trial, Mr Ahmed advanced a partial defence of substantial impairment under section 23A of the Crimes Act 1900 (NSW) which would, if established, reduce the conviction of murder to manslaughter ([1]-[5]).

    Section 23A requires that Mr Ahmed establish, on the balance of probabilities, that at the time that he killed the victim:

    • He suffered an abnormality of mind arising from an underlying condition;
    • That abnormality substantially impaired his capacity to control himself; and
    • That his impairment was so substantial as to warrant his liability for murder being reduced to manslaughter.

    Issues: The issue before the Court was whether the partial defence of substantial impairment could be established. There were also issues as to what should be made of Mr Ahmed’s various accounts and which expert’s opinion should be preferred.

    Decision and reasoning: Mr Ahmed was convicted of murder and did not discharge his onus of establishing the partial defence of substantial impairment by abnormality of mind. In coming to this conclusion, Schmidt J considered the facts, as well as the issues about Mr Ahmed’s accounts and the experts’ competing opinions ([35]). His Honour noted that it was difficult to determine whether the stabbing was a result of Mr Ahmed’s ‘abnormality of mind’ or his deliberately acting on his feelings of humiliation and fury ([221]). This was explained by the diverging expert opinions ([222]).

    Schmidt J agreed that Mr Ahmed suffered from an ‘abnormality of mind’ when he killed the victim ([25]), but held that this did not ‘substantially impair’ his capacity to control himself ([200]-[253]). He was satisfied that it had been established on the evidence, beyond reasonable doubt, that he deliberately acted on an intention, formed when he read the text messages, to kill the victim, instead of having an impaired capacity to control himself ([253]). Not only was Mr Ahmed well aware that the victim was intent on divorce, but he also suspected that it was the continuation of her relationship with Mr Khan which was driving her desire for a divorce. This led him to assault and threaten her in order to gain access to her phone, and then kill her when he read the text messages which confirmed his suspicions ([246]).

    His Honour held that his sentence could not, in any event, be reduced to manslaughter, particularly in light of community standards. Mr Ahmed neither had a criminal record, nor any history of domestic violence, apart from one occasion in 2016 when he admitted to punching a wall in an argument. However, despite his prior good character, Mr Ahmed was found to have deliberately acted on his intention to kill his wife, evidenced by his deliberate delay in calling 000 until he was certain she had stopped breathing ([255]).

  • R v Ahmed [2019] NSWSC 55 (8 February 2019) – New South Wales Supreme Court
    Adverse media’ – ‘Fair trial’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Prejudice’ – ‘Social media’ – ‘Trial by jury

    Charges: Murder x 1.

    Case type: Application for trial by judge alone.

    Facts: Mr Ahmed allegedly murdered his wife (the victim) by inflicting 14 stab wounds. He called 000, and told the operator that he had stabbed and killed his wife. He told police that he assaulted and threatened to kill her if she did not give him access to her phone, and that it was only after he read her recent text messages, which confirmed the continuation of an affair she had with Mr Khan, that he lost control and stabbed her. He also said that he did not intend to kill her. When Mr Ahmed killed the victim, he was suffering a mental illness, which the experts agreed was likely to have been an adjustment disorder, that being a form of depressive illness. He pleaded not guilty to murder, but later offered to plead guilty to manslaughter, which was not accepted by the Crown. At his trial, Mr Ahmed advanced a partial defence of substantial impairment under section 23A of the Crimes Act 1900 (NSW) which would, if established, reduce the conviction of murder to manslaughter.

    Issue: A key issue was that a fair trial was unlikely before a jury because of the significant general and social media posts about the accused and the homicide. There was a risk of prejudice from the adverse media and social media commentary about his racial background and faith.

    Held: Schmidt J dismissed the application for a trial by judge alone.

    The killing attracted substantial social media coverage, with such coverage being shared on Facebook pages of media organisations and ‘professed anti-Islamic’ groups. Many Facebook users shared ‘negatively biased views against Mr Ahmed’ ([26]), and the majority of comments were either directly or indirectly racist ([27]). Some of this adverse coverage focused on his background as a Bangladeshi immigrant and presumed membership of the Muslim faith ([32]). However, as per the Court in Hughes v R [2015] NSWCCA 330, an offender who is subject to intense community interest may still be able to receive a fair trial ([33]). The Court in Hughes v R stated that the modern world is one of instant, largely unregulated communication of opinions, ranging from mild to extreme, which can be accessed and responded to by others. However, there is good reason to continue in the expectation that, notwithstanding advances in technology and what they permit, jurors will decide cases on the basis of evidence, the judge’s directions, and the submissions advanced at trial.

    Schmidt J held that a jury would be required to be directed at trial to impartially approach the issue as to whether he has a partial defence, and to make its decision only on the evidence, the parties’ submissions and the judge’s directions, rather than on the basis of their own enquires on the internet ([35]). His Honour held that ‘there is no question that there is a risk, which exists at every trial, that a member of the jury will not adhere to such directions, but will access prejudicial material of the kind on which Mr Ahmed relies, to advance this application’ ([36]). Nevertheless, as observed in Hughes v R, it has been long settled that jurors will ‘approach their tasks conscientiously’. In Schmidt J’s view, the stereotypical opinions expressed on social media about Mr Ahmed would not necessarily deprive him of a fair trial before the jury, even though it may have to consider some distressing photographs of the victim’s injuries ([38]). The issues for determination in relation to the domestic violence killing had nothing to do with his racial background or religion, but on his mental state and whether that entitles him to a partial defence ([37]).

    Note: Schmidt J refused Mr Ahmed’s application for a judge alone trial. However, only days before the trial was due to commence, a large volume of documents was served, which included internet searches by Mr Ahmed about punishing adulterous wives. The Crown consented to the offender being tried by a judge alone. Therefore, a trial by judge alone order was made under section 132(2) of the Criminal Procedure Act 1986 (NSW). See R v Ahmed (No 2) [2019] NSWSC 517 (8 May 2019).

  • R v Raquel Hutchinson [2019] NSWSC 25 (31 January 2019) – New South Wales Supreme Court
    Children’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Sentencing

    Charges: Manslaughter x 1.

    Case type: Sentencing.

    Facts: The offender, with the help of her new fiancé, murdered her ex-husband after luring him to his townhouse, where she was lying in wait for him. When he returned home, he was struck and punched many times, resulting in a broken nose. There was also evidence that an electrical prod or Taser was used during the assault. He later died of asphyxia. The major perpetrator of the violence was found to be the offender due to the anger and hatred she had for the victim as he had custody of their two children. One of those children, their son, was present in the house at the time of the offence and witnessed many of the events leading to his father’s death ([4]-[11]).

    Issues: The issue was the appropriate sentence to be imposed.

    Decision and reasoning: The offender was sentenced to imprisonment for 9 years with a non-parole period of 5 years and 6 months. In Hamill J’s opinion, this was a serious example of manslaughter because of the planning and premeditation involved in the assault. Even though there was no intention to inflict grievous bodily harm, the fact that the intention was formed whilst the offender was in a rage adds to the gravity of the manslaughter. There were various aggravating features, the most serious being the fact that the offence was committed in the presence of a child ([26]). She exposed her son to the extreme brutality of the assault and killing of his father, which resulted in emotional and psychological damage. Another powerful aggravating feature was the fact that the offence was committed inside the victim’s home – a place where people are entitled to feel protected and safe ([27]). The psychiatric incapacity of the offender also played an important role in reducing her liability from murder to manslaughter, and was relevant to the subjective component of self-defence and to her defence of substantial impairment. The offender’s personal circumstances were considered. She was a victim of child sexual abuse, had a long-standing substance abuse disorder and a history of psychiatric problems ([36]). Although it was found that she tried to be a good mother, Hamill J was not satisfied that she was a person of good character due to her bad associations, erratic behaviour and chronic drug dependence ([38]). However, given her lack of significant prior offences and the efforts she made in custody, his Honour was satisfied that she had good prospects of rehabilitation and was unlikely to reoffend. She also made an early plea of guilty to manslaughter.

  • R v AKB [2018] NSWSC 1628 (2 November 2018) – New South Wales Supreme Court
    Arson’ – ‘Children’ – ‘Factors affecting risk’ – ‘Murder’ – ‘People with children’ – ‘Sentencing

    Charges: Murder x 1.

    Proceeding type: Sentencing.

    Facts: The offender and deceased married in Iran. The offender started a fire in his wife’s bedroom in the family home. She died in the fire. Their relationship prior to the fire had ‘deteriorated’ [5]. Davies J accepted that the offender became aware of the deceased’s intention to leave him. This was confirmed by the offender’s visit to the Department of Human services the day before the fire where he made a claim for a benefit, on the basis that he was separated. His Honour also accepted beyond reasonable doubt that the offender was responsible for the fire in the presence of their two young children.

    Issues: Davies J determined the appropriate sentence for the offender.

    Decision and reasoning: The offender was sentenced to imprisonment for a period of 36 years with a non-parole period of 27 years. His Honour remarked that ‘[t]he murder of any person is intolerable and unacceptable, but the circumstances of this murder can only be described as confronting, shocking and gruesome to a marked degree’ ([24]). The murder was aggravated by the fact that it was carried out in the presence of their two young children, in circumstances where the offender actively prevented one of their children from trying to save his mother, and at the deceased’s home where she was entitled to feel safe. It also involved gratuitous cruelty and planning and preparation (albeit minimal, [32]). However, his level of culpability was not so extreme so as to attract a life sentence. Whilst specific and general deterrence are important factors in sentencing for murder in a domestic setting (see Hiron v R [2007] NSWCCA 336), specific deterrence was not significant because of the offender’s low risk of reoffending. This was consolidated by the fact that the offender had no prior criminal record, the offence was committed against a person known to the offender (rather than the public at large) and his older age. His Honour concluded at [37] –

    ‘This was a very bad murder, but the limited planning, the absence of the need to give significant weight to community protection, and the fact that a lengthy sentence will meet the need for specific deterrence, mean that the community interest in retribution, punishment, community protection and deterrence can be met by other than the imposition of life sentence.’

    Although his Honour noted that the offender had no prior convictions, he was not able to mitigate the enormity of the crime against the deceased ([46]). Further, his Honour found it difficult to see how the offender could be fully rehabilitated without acknowledging the shocking act against his wife and the impact that it continued to have on their children and the deceased’s family. Accordingly, his prospects of rehabilitation were only average.

  • R v Cahill (No 3) [2018] NSWSC 2025 (12 October 2018) – New South Wales Supreme Court
    Evidence issues’ – ‘History of abuse of accused’ – ‘Relationship, context, tendency and coincidence evidence

    Charges: Murder x 1.

    Case type: Trial.

    Facts: The accused and the victim were in a relationship, characterised by incidents of violence by both sides. They immigrated to Australia from Ireland and shared accommodation with different people over a period of time. The accused stabbed the victim in the neck, resulting in his death. This matter relates to the additional evidence that Johnson J demanded from the Crown in R v Cahill (No 2) [2018] NSWSC 1531. This evidence related to things said by the victim to other persons with respect to events concerning the accused ([2]). Firstly, the Crown sought to tender a statement by a man who claimed that the victim told him that the accused hit him when he was sleep ([3]). He also stated that the victim told him that the accused had sent him a text that she would kill him ([25]). Secondly, the Crown sought to tender evidence arising from another man’s statement that the victim told him that he was attacked by the accused with a screwdriver ([16]).

    Issues: Whether certain evidence is admissible.

    Decision and reasoning: The decision involved rulings made on admissibility of evidence (see [12], [14], [24] and [28]). With respect to the first statement, the Court held that the passage of time and the lack of precision as to the incident to which the statement related affected the question as to whether or not it ought to be admitted as evidence of truth of the fact ([10]). However, the Court held that this evidence will be admitted at the trial, but the jury will be directed that it cannot be used as evidence of the truth of the facts of the matters asserted in the representation ([11]-[12]). The Court did not allow the Crown to adduce the additional statement about the text message as there was no indication as to when it was sent. The absence of any time when it was said to have occurred significantly reduced the evidentiary use of the material ([25]-[28]). With respect to the second statement, the Court considered s 65 of the Evidence Act 1995 and admitted it as evidence of the truth of the fact ([21]-[24]).

  • R v Cahill (No 2) [2018] NSWSC 1531 (11 October 2018) – New South Wales Supreme Court
    Evidence issues’ – ‘History of abuse of accused’ – ‘Relationship, context, tendency and coincidence evidence

    Charges: Murder x 1.

    Case type: Trial.

    Facts: The accused and the victim were in a relationship, characterised by incidents of violence by both sides. They immigrated to Australia from Ireland and shared accommodation with different people over a period of time. The accused stabbed the victim in the neck, resulting in his death. The defence adduced evidence from various people, such as an ex-partner of the victim and the father of another ex-partner. Both provided supporting evidence of incidents of violence during the relationships ([92]-[93]). The Crown submitted that the material lacked significant probative value as it was expressed vaguely and was remote in time from the events in the trial ([94]). The Crown also sought to have admitted as relationship evidence the totality of the evidence sought to be tendered for tendency purposes together with additional evidence of the accused’s various roommates ([96]-[98]).

    Issues: Whether certain evidence of the Crown and defence was able to be adduced.

    Decision and reasoning: The judgment by Johnson J deals with a number of evidentiary issues, involving tendency and relationship evidence ([99]-[123]). With respect to the statements by an ex-partner and the father of another ex-partner, the events to which they referred were significantly remote in time from those relevant to the trial and did not involve the accused. Consequently, his Honour did not allow the accused to rely upon this evidence for tendency purposes ([114]-[119]). Further, Johnson J was satisfied that the evidence tendered by the Crown should be admitted as relationship evidence ([99]-[103]). At [120]-[122], Johnson J sought further submissions about particular areas of the tendered material. These areas related to the Crown’s intention to adduce evidence of things said by the victim to other persons with respect to events concerning the accused.

  • R v Jenkin (No 10) [2018] NSWSC 705 (18 May 2018) – New South Wales Supreme Court
    Audio visual link’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Safety and protection of witnesses’ – ‘Tendency evidence

    Charges: Murder x 1.

    Case type: Applications to adduce evidence from former partner of accused and to give evidence via video link.

    Facts: The defendant was on trial for murder of an associate. The prosecution sought to adduce evidence from the defendant’s former partner describing assaults he committed against her while he was on drugs ([5]). The prosecution sought to establish a tendency to ‘detain persons and to intimidate and physically assault them’ ([3]).

    Issues: Whether the evidence should be admitted.

    Decision and Reasoning: Most of the evidence was not admitted because it did not show that the accused had a tendency to detain persons ([8]). One paragraph of the evidence was admitted because it evidenced the defendant locking her in a room and making sure she couldn’t leave ([14]). While the evidence concerned uncharged acts of violence, the judge considered that there was little risk of prejudice given that the trial is a judge-alone trial ([14]).

    The former partner applied to give evidence via videolink after evidence from psychologists stated that giving evidence would be an extremely stressful situation. The judge accepted that using the videolink facility would reduce her trauma. The defence’s ability to assess her credibility was not significantly compromised ([18]).

  • R v TP [2018] NSWSC 369 (23 March 2018) – New South Wales Supreme Court
    Children’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Negligent manslaughter x 1.

    Case type: Sentencing.

    Facts: The offender’s partner, JK, committed serious acts of physical and psychological violence against the defendant and her two daughters for years ([4]), including striking them with sticks, tying one of them (CN) to a bed and hitting her with wooden slats ([13]-19], [36]-[38]). The worst of the violence was directed towards CN, which eventually resulted in her death. By her plea of guilty, the offender acknowledged that her failure to remove CN from the violence and obtain medical treatment for her serious injuries was the cause of her death ([3], [25]). Expert evidence established that the offender suffered from ‘battered wife syndrome’ - a syndrome likely to exhibit symptoms of post-traumatic stress disorder and depression caused by repeated exposure to violence ([5], [40]-[41]).

    Issues: The issue was the appropriate sentence to be imposed.

    Decision and reasoning: Hamill J remarked that ‘[the] criminal law is a blunt tool in circumstances such as these’ ([8]). The offender’s psychological conditions substantially impacted the application of the principles of sentencing, the purpose of punishment and reduced the ultimate sentence. The impact was significant for various reasons. Firstly, there was a clear and direct link between the violence suffered by the offender and her criminal neglect of CN ([55]). Secondly, the weight afforded to general deterrence was greatly reduced ([56]-[57]). Thirdly, the offender’s rehabilitation through regular visits to psychologists and psychiatrists would be interrupted if a full-time custodial sentence was imposed ([58]). Fourthly, a custodial sentence would weigh more heavily on the offender than it would on a person who does not suffer from the severe depression, grief and post-traumatic stress disorder ([59]). Fifthly, the offender was unlikely to re-offend ([60]). The offending was aggravated by CN’s young age and fragility after her long-term exposure to abuse ([62]). Having considered all possible alternatives, including a fine, bond or community service order, Hamill J concluded that only a period of imprisonment was appropriate ([78]). His Honour sentenced the offender to four years’ imprisonment with a non-parole period of 18 months ([79]-[80]). Annexed to the judgement, at [82], is a useful summary of comparable cases. However, there are no cases in the annexure that had precisely the same features as this one.

  • Franklin v Commissioner of Police [2018] NSWSC 310 (14 March 2018) – New South Wales Supreme Court
    Assault’ – ‘Scope of subpoenas’ – ‘Self-represented litigant’ – ‘Systems abuse

    Charges: Assault x 1.

    Case type: Application

    Facts: The Plaintiff was charged with assaulting his wife ([2]). The Plaintiff issued a number of subpoenas to the Commissioner of Police and a hospital, seeking material including all police records for the immediate proceeding, the victim, all attendances at their home, all records of complaints proceedings instigated by the Plaintiff against the police, copies of notebooks of certain officers, and copies of all internal police communications in relation to the proceedings ([3], [28]).

    At a hearing on 5 April 2017 in a Local Court, the police objected to the subpoenas on the basis that they were too wide ([29]). The Plaintiff then issued two more subpoenas to prosecution witnesses, which were also objected to on the grounds of absence of legitimate forensic purpose and public interest immunity ([34]). At a hearing on 18 and 19 July 2017, the magistrate allowed access to some documents but refused access to others ([36]).

    Issues: The Plaintiff appealed against the Magistrate’s decision on 5 April 2017 on 5 grounds outlined at [37]. The Plaintiff appealed against the Magistrate’s decision on 19 July 2017 on 8 grounds outlined at [51].

    Decision and Reasoning: The appeal was dismissed because there was no error of law and no basis for a grant of leave for the Plaintiff to rely upon the grounds of appeal ([46], [81]).

    Justice Johnson appeared to refer to the Plaintiff being self-represented at [80]:

    I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.

  • R v Fesus (No 9) [2018] NSWSC 176 (23 February 2018) – New South Wales Supreme Court
    Factors effecting risk’ – ‘Historical offence’ – ‘Historical sentencing practice’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Strangulation

    Charges: Murder

    Case type: Sentence.

    Facts: The defendant was convicted of the 1997 murder of his 18-year-old wife. The judge found that the defendant strangled his wife after she proposed to leave him and take the children with her ([50]). The defendant denied the allegations and attempted to cover up the murder, but later made admissions to an undercover police officer in 2013 ([23]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Justice Johnson had regard to sentences imposed for similar cases in 1997 ([88]-[93]) and imposed a head sentence of 22 years’ imprisonment with a non-parole period of 16 years and 6 months ([98)). At [50]-[51] Johnson J explained:

    The Offender murdered his young wife in the course of a domestic dispute arising from her declaration that she proposed to leave him and take the children with her. Although the Offender and Jodie had lived together for about two years, they had only been married for three months at the time of her death. Jodie was a young mother who, despite her considerable life experience at that time, was barely an adult. The Offender was 26 years old at the time of the offence.

    The fact that the marriage was breaking down (after only three months) does not assist the Offender. It has been observed that killings within a domestic situation occur very often when there has been a build-up of tension between the killer and victim over a period of years: R v Whitmore [1998] NSWCCA 75 at [16]. That is not the position in this case. Here, the Offender murdered his very young wife at a time of marital strain after just three months of marriage.

    Justice Johnson also noted the lack of previous domestic violence, and the prevalence of choking in domestic violence:

    The evidence does not suggest a prior history of domestic violence on the part of the Offender towards Jodie. That said, their relationship was not a particularly long one and his response to Jodie’s desire to leave was a savage and homicidal one.

    The use of choking in the course of domestic violence is now well recognised as a gross form of control with a capacity (as occurred here) to cause death: Cherry v R [2017] NSWCCA 150 at [75].

  • R v Stephen (No 2) [2018] NSWSC 167 (6 February 2018) – New South Wales Supreme Court
    Abused person’ – ‘Court processes’ – ‘Fair hearing and safety’ – ‘Mental health’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder

    Charges: Murder.

    Case type: Application by the accused to sit outside the dock.

    Facts: The accused was on trial for murder for stabbing the victim, who was her husband. It was undisputed that at the time of stabbing, she had been subjected to severe violence at the time of the offence, and for over a year prior to the stabbing (see R v Stephen (No. 3) [2018] NSWSC 168 (20 February 2018) ). The accused made an application to sit outside the dock, next to her legal team. The Crown supported the application ([1]-[2]).

    Issues: Whether the judge should exercise his discretion to grant the request pursuant to s 34 Criminal Procedure Act 1986 (NSW).

    Decision and Reasoning: The application was refused.

    Justice Button weighed up the countervailing factors. Factors in favour of granting the application were that the accused had been on bail for many months, she was not a security risk, she suffers from post-traumatic stress disorder, and she argued that sitting in the dock will be prejudicial for the jury ([3]-[6], [9]). Factors weighing against granting the application were that the accused is not a child or a person suffering from a disability, that the dock is a traditional symbol of the gravity of the proceedings, that there is no inconvenience for the accused being in the dock, and she is charged with a very serious offence ([8], [10]-[14]).

    Justice Button concluded that there was nothing exceptional about the matter to justify the request being granted. The next day, his Honour received further submissions with more detailed evidence about the accused’s mental health issues but declined to alter the ruling ([18]).

  • R v McMaster [2017] NSWSC 1063 (16 August 2017) – New South Wales Supreme Court
    Alcohol abuse’ – ‘Bail’ – ‘Co-operation with police’ – ‘Drug abuse’ – ‘Factors affecting risk’ – ‘Firearms

    Charges: Possession of unauthorised firearm x 1; Intimidation x 1; Handling firearm while intoxicated x 1.

    Case type: Bail application.

    Facts: While under the influence of alcohol and cocaine, the defendant repeatedly called and texted the complainant, his ex-partner ([5]). He drove to her house with the gun in the passenger seat (of which she took photographs). He aimed the gun at her with his finger on the trigger. He ultimately returned to his vehicle ([3]). The defendant refused to co-operate with the police or disclose the location of the firearm ([5]). The defendant had been in custody for four months ([6]).

    Issues: Whether bail should be granted. The application was opposed by police.

    Decision and Reasoning: Judge Harrison refused bail. The decisive matter was that the complainant had not revealed the location of the firearm, so there was a real possibility that he would have unrestricted access to it if he was released. But for this matter, Harrison J would have granted bail with appropriate conditions.

  • R v Walker (No 7) [2017] NSWSC 1049 (10 August 2017) – New South Wales Supreme Court
    Hearsay evidence’ – ‘Murder’ – ‘Not unfairly prejudicial

    Charges: Murder x 1.

    Case type: Voir dire.

    Facts: The accused was on trial for murdering his de facto partner. During the relationship, neither the victim nor the police had obtained an AVO against the accused, despite evidence of injuries caused by the accused ([3]). The Crown sought to adduce hearsay evidence of statements the victim had made to her doctor. In a discussion about the victim taking out an AVO, the victim had said ‘I don’t deserve it’ and ‘don’t want to cause trouble’ ([1]).

    Issues: Whether the evidence was admissible.

    Decision and Reasoning: The evidence was admitted.

    The statements fell within an exception to the hearsay rule because they were evidence of the victim’s state of mind (s 66A of the Evidence Act 1995 (NSW)) ([5]). Nevertheless, the accused argued that the statements should not be admitted for three reasons:

    • the statements were not relevant because they could not affect an assessment of the probability of the existence of a disputed fact ([5]);
    • the statements would result in unfair prejudice, because the victim had made contradictory statements that were not admitted ([6]); and
    • the statements were simply likely to invoke sympathy for the deceased ([7]).

    However, Schmidt J held that the statements should be admitted for three reasons:

    • the statements allowed the jury to consider why the victim never sought an AVO despite complaints of violence ([9]);
    • the statements allowed the jury to consider the reliability of other hearsay representations to establish the tendency evidence led by the Crown ([9]); and
    • the doctor to whom the representations were made was available to be cross-examined (citing R v Clark [2001] NSWCCA 494, per Heydon JA at [12]).

    Therefore, the statements were not unfairly prejudicial ([11]).

  • Romero v DPP [2017] NSWSC 1190 (17 July 2017) – New South Wales Supreme Court
    Error of law’ – ‘Judicial review’ – ‘Orders’ – ‘Post-separation violence’ – ‘Procedure’ – ‘Remitted to local court

    Charges: Common assault x 1.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted of common assault against his former partner ([1]). The police applied for an apprehended domestic violence order ([3]). The Magistrate conducted the summary trial on the basis that the Magistrates Court had jurisdiction to hear the criminal proceedings and civil proceedings for apprehended violence orders concurrently, which was incorrect ([5], [15]).

    Issues: Orders to be made.

    Decision and Reasoning: The DPP conceded that the Magistrate erred in law, so the only contentious point was in relation to the orders to be made. First, McCallum J ordered the DPP to pay half of the plaintiff’s costs, since the plaintiff had been denied a hearing according to law ([22]). Second, the parties sought an order remitting the matter to a ‘differently constituted Local Court’ ([23]). Judge McCallum considered that there was no need for an order to a ‘differently constituted’ Court in the absence of apprehended bias or prejudgement ([24]). Judge McCallum remitted the matter of the assault charge to the Local Court to be heard and determined according to law.

  • R v De Beyer [2017] NSWSC 752 (13 June 2017) – New South Wales Supreme Court
    Children's evidence’ – ‘Murder’ – ‘Relationship evidence

    Charges: Murder x 1.

    Case type: Judgement on the admissibility of relationship evidence.

    Facts: The accused and deceased were married. The accused was on trial for her murder. It was the Crown case that the accused had stabbed his wife. He gave evidence that she stabbed herself. The prosecution case was circumstantial ([1]).

    Issues: Whether evidence of the accused and deceased’s relationship was admissible ([2]).

    Decision and Reasoning:

    Evidence that was admitted without objection:
    • Eyewitness evidence from the accused and deceased’s son and daughter, including witnessing the accused punching and kicking the deceased, throwing things at the deceased and threatening to kill her ([3], [17]).
    • Statements made to the police by one child, the deceased and police officers after police attendance at a violent incident ([9]-[10], [15]).
    • Parts of recordings made by the deceased of arguments between her and the deceased ([13], [25]).
    Evidence that was objected to, and admitted:
    • A conversation between the deceased and her sister, including statements that the accused would not let the deceased out of the house or have a phone “because he was scared she would call the police”, and that she would not leave him “because if he found her he would kill her” [23]. The statements were objected to on the basis that they were representations of the accused state of mind ([23]). The Court held that they were expressions of fear, and were admissible as an exception to the hearsay rule ([24]).
    • Notes and diary entries made by the deceased, which included assertions of fact about episodes of abuse, and statements about the deceased’s state of mind about the relationship ([31]). Only general statements of fact were admitted, because they were not hearsay evidence ([30]).
    Evidence that was not admitted:
    • Statements made by the deceased to her daughter that the accused attempted to drown her. The daughter only recollected these statements once she was shown the deceased’s diary. The daughter’s recollection did not appear to be firm. Therefore, Hidden AJ held that evidence was not highly probable to be reliable ([20]-[22]-[22]).
  • R v Biles (No 2) [2017] NSWSC 525 (3 May 2017) – New South Wales Supreme Court
    Aboriginal and torres strait islander people’ – ‘Murder’ – ‘Pattern of behaviour’ – ‘People affected by substance misuse

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender was found guilty at trial of murdering the victim, his 18-year-old girlfriend and mother of his child ([2]). Both were of Aboriginal descent ([32]). He had frequently been violent towards her over their relationship of two years ([8]). The murder occurred after both had consumed alcohol throughout the day ([13]). Six other women were in the house ([4]). The offender dragged her from the kitchen into the bedroom ([15]). There were no witnesses to the attack in the bedroom, but witnesses gave evidence that the deceased screamed for approximately twenty minutes before falling silent ([17]). When the police arrived, the bedroom was covered in blood, and she was declared dead at the scene ([21]). She had injuries consistent with multiple blows to the head ([24]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Fagan J sentenced the offender to 24 years’ imprisonment, with a non-parole period of 18 years.

    His Honour considered that the murder was in the middle of the range of objective seriousness ([31]). He considered that the deceased’s young age, vulnerability, and the fact that the offender lied to other women who tried to intervene, all contributed to the seriousness of the offence ([31]).

    His Honour examined the offender’s personal circumstances ([32]-[38]). His verbal comprehension was in the lowest 1% of the general population, a circumstance which contributes to a higher propensity to violence ([34]). He had a criminal history since 15 years old ([39]), but he proved unresponsive to good behaviour bonds and community service orders ([42]-[47]).

    His Honour considered that these offences were the culmination of a course of domestic violence (see from [52]). His Honour remarked at [52]:

    ‘The experience of courts in this State has shown that men who perpetrate violence against their female partners do not stop after one occurrence. Often they become accustomed to inflicting violence of escalating severity.’

    On the failure of the other women in the house to call the police, his Honour said [55]:

    ‘The apparent lack of a sense of urgency amongst the other women in the house … may have been due to resignation amongst them; a feeling that to some extent domestic violence is inevitable and must be endured and, perhaps, that it is a matter private to the couple, in which others should not interfere. None of that is so.’

  • R v Adams (No 6) [2016] NSWSC 1565 (4 November 2016) – New South Wales Supreme Court
    Evidence’ – ‘Judge-alone trial’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Tendency

    Charge/s: Murder.

    Hearing: Judge-alone trial judgment.

    Facts: On 27 September 2016, the accused pleaded not guilty to the murder of Mary Wallace (the deceased) on 24 September 1983. A significant part of the Crown’s circumstantial case was that the accused possessed a tendency at the time of the alleged murder to choke or strangle women in order to force them to submit to having penile/vaginal sexual intercourse with him. The Crown led evidence of three women who had alleged that they had been sexually assaulted by the accused.

    Issue/s: Whether the accused was guilty of the charge of murder.

    Decision and Reasoning: In reaching this decision, His Honour first listed the legal matters he took into account in reaching the verdict (see [320]-[359]). Most relevantly, Justice Button noted that it would have to be proven beyond reasonable doubt that at the time of offence the accused possessed a tendency to strangle women to cause them to submit to intercourse with him. This was for at least two reasons: (1) there was authority that tendency must be proven to the criminal standard in order to be taken into account (see the discussion of HML v The Queen in DJV v R at [30], and R v Matonwal & Amood at [92]). (2) In the circumstances of this case, it was agreed between parties that the alleged tendency was an indispensible intermediate fact with regard to the guilt of the accused (Shepherd v The Queen)(see [337]-[339]).

    Justice Button then stepped through his sequential reasoning for reaching the verdict of guilty (see [360]-[493]). One of the steps in this reasoning was that His Honour found that the accused possessed a tendency to rape women and to strangle them ancillary to that crime. This was after considering the evidence of three women (see [419]-[420]).

    In light of the following evidence, at [491]-[492], Justice Button held that the accused’s guilt had been proven beyond reasonable doubt:

    ‘the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body’.

    Justice Button concluded: ‘the accused treated the deceased very much as an object, just as he had treated three other young women’.
  • R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Manslaughter by excessive self-defence’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Sentence

    Charge/s: Manslaughter by excessive self-defence.

    Hearing: Sentencing.

    Facts: The offender stabbed and killed her partner, James Polkinghorne. The relationship had been characterised by escalating physical and verbal abuse from the deceased towards the offender. On the 13 May 2012, the deceased made increasingly threatening and abusive telephone calls and messages to the offender. That night, he went to the home of the offender’s parents, where the offender was present. He was highly aggressive and high on methylamphetamine. The facts of what followed were confused and confusing (see [29]-[36]). In summary, the deceased threatened to kill the offender, he assaulted the offender, and the offender’s brother and father intervened. They began fighting with the deceased. The offender retrieved a knife from inside and, while the offender was on top of her brother, stabbed and killed the deceased. The offender was found not guilty of murder but guilty of manslaughter.

    Decision and Reasoning: A sentence of 18 months imprisonment, wholly suspended was imposed. Hoeben CJ first made a number of factual findings. At [38] His Honour found that:

    ‘the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury’s verdict, the offender’s conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence’.

    His Honour also had regard, with some qualifications, to the evidence of Associate Professor Quadrio, a consultant psychiatrist. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which were described as ‘Battered Woman Syndrome’. She also concluded that the offender continued to suffer from PTSD. Hoeben CJ found at [40]:

    ‘In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased’s death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender’s relationship with the deceased and was in existence before the deceased’s death’.

    However, His Honour did accept that the offender stabbed the deceased when she was in a highly emotional and hysterical state (see [41]-[43]).

    In reaching an appropriate sentence, Hoeben CJ took into account a number of considerations. These included that specific deterrence were not relevant in light of the offender’s rehabilitation and the unlikelihood of re-offending (see [58]). General deterrence was not accorded substantial weight in light of exceptional factual circumstances (the deceased had made escalating threats of violence approaching the offender’s home and the offender’s state of mind was affected by being already brutally assaulted and witnessing the struggle between her family members and the deceased) (see [59]). The objective seriousness was at the lower end of the range as was the offender’s culpability (see [60]-[61]).

    As against these matters, Hoeben CJ had regard to the sanctity of human life, the need to denounce the conduct of the offender and hold her accountable for her actions (see [62]).

    The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen [2016] NSWCCA 284 (7 December 2016).
  • DPP (NSW) v Lucas [2014] NSWSC 1441 (20 October 2014) – New South Wales Supreme Court
    Damaging property’ – ‘Evidence’ – ‘Intentionally or recklessly damaging property’ – ‘Intimidation’ – ‘Relationship/context evidence

    Charge/s: Intentionally or recklessly damaging property, intimidation.

    Appeal Type: Crown appeal against the dismissal of the charges.

    Facts: The male defendant had been in a domestic relationship with the female complainant that had ended some years prior to the offence. Since that time, the complainant had taken steps to conceal where she was living with her children from the defendant. He found where they were living and was permitted to have contact and access to children. One evening, the defendant turned up to the complainant’s home uninvited and unannounced. She locked herself and the children inside the house while the defendant was yelling and screaming and making threats, including threatening to deflate the tyres on her car. It was alleged that he then deflated a tyre on her car. These charges were dismissed by a magistrate.

    Issue/s: One of the grounds of appeal was that the magistrate erred in excluding evidence of a ‘pattern of violence’, such evidence being relevant to the intimidation charge under s 7(2) of the Crimes (Domestic and Personal Violence) Act.

    Decision and Reasoning: This ground of appeal was dismissed but the appeal was upheld on other grounds (failure to give reasons and error as to what constituted damage). Examination of the transcript indicated that the magistrate’s approach was that the prosecutor should lead evidence of the actual incident itself before leading any other evidence under s 7(2), if it was then considered necessary (See [24]-[30]).

  • R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014) – New South Wales Supreme Court
    Character evidence’ – ‘Following, harassing, monitoring’ – ‘Moral culpability’ – ‘Murder’ – ‘Objective seriousness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentencing hearing.

    Facts: The offender was found guilty for the murder of his female de facto partner after a judge only trial. While the relationship was, at times, loving and happy it was also tumultuous as the offender was a jealous and possessive partner. The offender scrutinised the victim’s conduct openly and covertly, keeping track of her movements through surveillance cameras and secretly monitoring her mobile phone. On 30 July 2011, the victim had decided she was leaving the offender and attempted to leave their apartment. She was physically dragged back into the apartment by the offender and sixty-nine seconds later she fell to her death from the balcony. McCallum J was satisfied beyond reasonable doubt that, in a state of rage, the offender carried the unconscious complainant to the balcony and ‘unloaded’ her over the edge.

    Decision and Reasoning: A sentence of 26 years imprisonment with a non-parole period of 18 years was appropriate in the circumstances. McCallum J took into account of a number of considerations in imposing this sentence. Her Honour assessed the objective seriousness of the offence. McCallum J was satisfied beyond reasonable doubt that the act of unloading the complainant’s body over the balcony was done with intent to kill and that, although unconscious, the complainant was undoubtedly in a state of complete terror in the last moments before her death (See [16]-[18]).

    A further relevant issue in assessing objective seriousness was whether the killing was planned or premeditated. The Crown tried to adduce evidence establishing that the offender had long had in mind the possibility of committing such an act, and making it look like suicide, in the event of her leaving him. Although witness testimony substantiating this assertion was excluded for its prejudicial content, other evidence was relevant to assessing the offender’s state of mind. During the relationship, the offender engaged in an extraordinary degree of manipulative behaviour and while he was not to be punished for this conduct nor did this conduct aggravate the offence, it did inform the state of mind in which he committed the offence. McCallum J was not satisfied that the offence was planned or premeditated in the traditional sense; however, she was satisfied that the offender must have anticipated the prospect that he would fly into a rage if ever she were to leave him (See [19]-[39]). Her Honour concluded:

    ‘In my view, that history informs the degree of moral culpability of the offence. The arrogance and sense of entitlement with which Mr Gittany sought to control Lisa Harnum throughout their relationship deny the characterisation of his state of mind in killing her as one of complete and unexpected spontaneity. By an attritional process, he allowed possessiveness and insecurity to overwhelm the most basic respect for her right to live her life as she chose. Although I accept that the intention to kill was formed suddenly and in a state of rage, it was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love’ at [40].

    In sum, the objective seriousness of the offence committed was not above the middle of the notional range, having regard to the fact that the murder was not premeditated or planned. However, the offence was of sufficient seriousness that the standard non-parole period of twenty years was to be regarded as a strong guide in this case (See [43]).

    McCallum J also noted the offender’s personal circumstances, including a troubling prior conviction for malicious wounding (See [44]-[59]) and noted that the complainant was vulnerable. She took into account good character references provided (noting though the contradiction posed by the way he treated the complainant) but was not persuaded that any prospect of rehabilitation existed in this case (See [65]-[74]).

    This case was unsuccessfully appealed to the New South Wales Court of Appeal. See Gittany v R [2016] NSWCCA 182 (19 August 2016).

  • R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Difficulty leaving an abusive relationship’ – ‘Expert evidence - psychosocial report - specific experience in drug and alcohol related domestic violence issues’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’ – ‘Women

    Charge/s: Manslaughter.

    Hearing: Sentencing.

    Facts: The female offender had lived with her male de facto partner, the deceased, for 25 years (since she was 17 years old). The deceased had been violent towards the offender throughout their relationship, including hitting her in the eye with a baseball bat, but she did not have the means to leave the relationship. The deceased would often taunt the offender and dare her to stab him. They both suffered from alcoholism. One evening, the offender was heavily intoxicated and stabbed the deceased in the chest, killing him. At the time, she did not intend to kill him nor did she realise he was dead and she went to bed. The next morning she called the police and made full admissions. The offender’s recollection of events was imperfect because of her intoxication.

    Decision and Reasoning: Buddin J had extensive regard to a psychological report prepared by Ms Danielle Castles, who had 17 years’ experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence (See [32]-[35]). Ms Castles commenced her report by explaining the nature of domestic violence and stated at [32] that:

    ‘domestic violence is the term used to describe the violence and abuse perpetrated upon a partner in a marriage or marriage like relationship. It is essentially the misuse of power and the exercise of control by one person, usually the man, over another, usually the woman. “Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse). It is the interplay between making the woman fearful and reducing her self-esteem which results in the abuse having significant and prolonged effects on the woman.”

    The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy’.

    Ms Castles then set out the ways in which domestic violence impacted upon the offender here (See [33]-[34]).

    Buddin J ultimately found that the offender’s criminality was at the lower end of the scale of culpability of an offence of this kind i.e. non-intentional homicide in circumstances of tragic misadventure. Her intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending any real harm or worse to the deceased. This, in conjunction with the very powerful subjective case advanced on behalf of the offender, meant that an exceptional sentence of a good behaviour bond for four years was appropriate, notwithstanding the fact that a life was taken (See [50]). The subjective factors that mitigated sentence included that ‘the offence took place against the background of continuing domestic violence over a prolonged period of time, the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated’ (See [45]). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See [48]).