Supreme Court New South Wales Medium Neutral Citation: R v Johnson [2021] NSWSC 1405 Hearing dates: 19, 20, 21, 22, 25 and 27 October 2021 Date of orders: 04 November 2021 Decision date: 04 November 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The accused is not guilty of murder but guilty of manslaughter. (2) The accused is convicted of manslaughter. Catchwords: CRIME – Manslaughter – Excessive self-defence – Trial by judge alone Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Oblach v Regina (2005) 65 NSWLR 75; [2005] NSWCCA 440 R v Katarzynski [2002] NSWSC 613 R v Murray (1987) 11 NSWLR 12 R v Nguyen (1995) 36 NSWLR 397 Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; [1987] HCA 26 Category: Principal judgment Parties: Regina (Crown) Shaun Garry Johnson (Accused) Representation: Counsel: N Adams SC (Crown) C Watson (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Ramsland Laidler Solicitors (Accused) File Number(s): 2019/405914 Publication restriction: Nil Judgment 1. On or about 26 December 2019, Steven Michael O'Brien died as a result of the infliction of a wound to his neck by the accused, Shaun Garry Johnson. 2. The accused stands charged that he did murder Mr O'Brien contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). 3. On commencement of the trial the accused entered a plea of not guilty to the charge of murder but offered a plea of guilty to manslaughter. The Crown did not accept that plea in satisfaction of the indictment. 4. The accused admits that he killed Mr O'Brien but says that he did so in self-defence, albeit that he acted with excessive force in doing so. 5. On 19 October 2021 the accused applied for a trial by judge alone in accordance with s 132 of the Criminal Procedure Act 1986 (NSW), having earlier foreshadowed that such an application would be made. The Crown did not oppose the application. 6. The trial commenced during the period of the pandemic immediately after the lockdown in Sydney and Newcastle had been lifted, but before the recommencement of jury trials in this State. 7. I was satisfied that the order should be made and granted the application for a judge alone trial. Legal principles 1. I remind myself at the outset that the Crown bears the onus of proof on the criminal standard, being beyond reasonable doubt and that it is necessary for the Crown to prove all of the elements of the offence set out in s 18(1)(a) of the Crimes Act. The accused bears no onus. 2. It is necessary for the Crown to prove that: 1. a deliberate act of the accused caused the death of the deceased; 2. the act was done with reckless indifference or with an intention to kill or inflict grievous bodily harm; and 3. the act was unlawful. 1. The trial was conducted on that basis (and the accused accepts) that he did kill Mr O'Brien, and that, if the defence of self-defence is not available then he would be guilty of murder. This was accepted by Counsel for the accused during final submissions. 2. As set out in s 419 of the Crimes Act, in proceedings in which self-defence is raised the prosecution has the onus of proving, beyond reasonable doubt, that the accused did not carry out the conduct in self-defence. 3. I am required to consider two questions being: 1. is there a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself; and 2. if there is, is there also a reasonable possibility that what the accused did was a reasonable response in the circumstances as he perceived them. [1] 1. I must consider the first question from a subjective point of view considering all the personal characteristics of the accused at the time he engaged in the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused's response to a situation that he subjectively perceived. [2] The accused accepts that his response to the circumstances was not reasonable but says that he believed that his conduct was necessary in order to defend himself. The Crown must disprove this, that is, prove that he did not so believe. 2. However, before the Crown assumes the burden of disproving self-defence, self-defence must be properly raised (see s 419 of the Crimes Act). 3. It is also important to observe that the Crown case on what occurred in the short period prior to the accused inflicting the wound to Mr O'Brien is essentially dependent upon the evidence of one witness being Mr Billy Gee. By the time the critical event occurred, there were only three people sitting in Mr O'Brien's shed area: the accused, Mr O'Brien and Mr Gee. 4. Mr Gee is the only witness who is said to have observed (or been part of) the events which happened which led to the death of Mr O'Brien. I must exercise caution in assessing his evidence. [3] 5. Having said that, there is a good deal of surrounding evidence from persons who saw or observed certain things, such as neighbours and Mr O'Brien's mother. Further, there is evidence from the accused which arises from a number of sources including the cameras worn by the Police who attended within minutes of the incident, video of the accused being spoken to whilst in the Police station at Waratah a number of hours after being taken into custody, and an ERISP interview of the accused on 8 September 2020. 6. The caution which I should exercise in assessing the evidence of Mr Gee is particularly pertinent in this matter as even the Crown did not suggest that I should accept all of Mr Gee's evidence. 7. I also observe that I may accept part of the evidence of a witness and reject other parts. The fact that I might find a witness to be unreliable does not necessarily mean that I must reject all of his evidence. 8. Further, as the Crown emphasises, although the onus is on the Crown to disprove self-defence beyond a reasonable doubt, that does not mean that the Crown has to prove every aspect of the evidence of every witness on which it relied. Rejection of some evidence from a witness does not necessarily lead to the Crown failing to discharge its onus of proof. The evidence 1. The Crown adduced evidence from a number of neighbours (Leonie Burnham, Leanne Burley, Toni Foot and Leo Bergamo). They gave evidence of what they heard and observed on Boxing Day and in the period before and after the incident. 2. The Crown also adduced evidence from Mr O'Brien's mother, Beverley O'Brien. She and her husband were visiting Mr O'Brien over the Christmas period. They were in their motorhome which was parked on the grass verge just on the other side of the shed area where the events occurred. 3. Mr Gee also gave evidence. Any assessment of Mr Gee's evidence must include a consideration of all his earlier statements including what was captured on the Police body worn cameras when they arrived at the scene. He also provided information directly to the Police which was again captured on the cameras. He also subsequently provided a statement to the Police. He is the principal Crown witness. The accused says that I should not accept his evidence. 4. The Crown also adduced evidence from relevant Police Officers, crime scene investigators and a forensic pathologist, Dr Hannah Elstub. The autopsy report was admitted into evidence as were reports of DNA testing and fingerprint analysis. There were many photographs of the scene. 5. As is his right, the accused did not give evidence. No inference can be drawn from his decision not to give evidence. [4] 6. During closing submissions the Crown referred me to Weissensteiner v The Queen [5] and specifically to the following passage: "….it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it." 1. It does not seem to me that the passage referred to in Weissensteiner necessarily takes the evidentiary issues very far. The absence of evidence from the accused may make it easier to accept other uncontradicted evidence from other witnesses but that does not mean that I would draw any adverse inference about the failure of the accused to give oral evidence. 2. During opening submissions the Crown referred to Part 11A of the Crimes Act (which relates to intoxication) and suggested that one or other of those provisions might have some relevance. In the end, neither party submitted that those provisions had any role to play. 3. It is clear that whether the accused was intoxicated and whatever his state of intoxication might have been, that provides no defence to him. Events of the day 1. Mr O'Brien lived at Silsoe Street, Mayfield. His house was on the corner of Silsoe and Myola Streets. His premises consist of a residence and a large shed which had been added to the residence at some stage. He resided with his children. 2. The accused lived a short a distance away. He was in a relationship with Karmon Gilroy. They had a child a month earlier. Ms Gilroy had two children to an earlier partner, Glen (alternatively spelled as "Glenn") Cooper. It is not clear how the accused came to know Mr O'Brien but he must have known him. 3. During Boxing Day, there were a number of people congregating in and around Mr O'Brien's house, albeit, the precise number remains uncertain. At the very least, there was: 1. his mother, Beverley O'Brien and his stepfather Gordon O'Brien, who had travelled to Newcastle before Christmas and parked their motorhome on the grass verge directly outside the gate in the fence leading to the house and shed; 2. some of Mr O'Brien's children; 3. Billy Gee, a person said to be a good friend of Mr O'Brien; and 4. the accused. 1. At some stage during the Boxing Day evening, the children had gone to bed. Around 10.00pm Mrs O'Brien, shortly followed by Gordon O'Brien, retired to their motorhome. That left Mr O'Brien, Mr Gee and the accused sitting in the back shed area. 2. According to neighbours and indeed Mrs O'Brien, during the course of the afternoon and evening, the persons in and around the shed area had been doing what many do on Boxing Day, that is, sitting around laughing, joking and engaging in loud conversation. 3. It is apparent that there had been drinking of alcohol, albeit, there is some issue as to the amount of alcohol consumed, in particular, by the three persons who were left in the shed area after Mrs O'Brien and Gordon O'Brien retired to their motorhome. 4. The circumstances in which the accused came to be at Mr O'Brien's house sitting around the back shed drinking and laughing, are a little unclear, but there is no dispute that he had been there for a number of hours prior to the events which give rise to these proceedings. 5. As identified by the Crown during closing submissions, it is the Crown case that the accused attended the premises to foment conflict; that he was there as a provocateur; and that the accused was a protagonist in the events which occurred. 6. It is the Crown case that he had a knife in his back pocket (although the Crown case is not dependant on establishing that) which he brought into the premises and that in some way he was there to confront Mr O'Brien in relation to the possibility that Mr O'Brien might have, at some stage, been in some sort of sexual relationship with Ms Gilroy. This version of events is entirely dependant on acceptance of what Mr Gee said, or at least acceptance of one of his versions. 7. At some stage after Mrs O'Brien and Gordon O'Brien had retired to their motorhome, a neighbour who lived across the road, Leonie Burnham, heard a person unsuccessfully trying to turn over his car. That person then said "Oh, I'm not going anywhere, car's not going to start … Looks like I'm staying." She then heard Mr O'Brien's large gate shut as if that person had walked back through the gate. 8. Ms Burnham's evidence is consistent with the evidence of Leanne Burley who was staying at her house at the time. Ms Burley had been packing her car as she was leaving the next day. She heard the noise of the gate opening and then heard the noise of someone trying to start a car. She heard that person say "I guess I'm staying here longer now". She heard the bonnet slam and a further attempt to start the car. 9. She then saw Mr O'Brien on his grass verge. He nodded at her and she nodded at him and he went back inside the gate. She explained that when she heard the person say that it looked like they were staying, she thought it was a little bit joking or it was an expression of someone who was just having bad luck with his car. 10. I accept that about perhaps 10 or 15 minutes before the incident in the shed area the accused had gone to his car with the intention of leaving. Text messages from his partner, Ms Gilroy, suggest that he was expected to return home. 11. When he could not start his car he decided to go back inside, which is what he did. I accept that when the accused had gone out to try and start his car, Mr O'Brien had also come through his gate. I do not know what he was doing but he was seen by Ms Burley. He also went back inside. There is no evidence of any animosity or problem between the accused and Mr O'Brien at that time. 12. While time estimates may be imprecise, within about 15 minutes of the accused re-entering Mr O'Brien's premises, he had inflicted the fatal wound to Mr O'Brien. 13. There is no evidence of anything that had occurred up to that time that could have caused the accused to do what he did. All of the evidence is to the effect that there was laughing and joking and they were generally having a good time. Indeed that was the position when Mrs O'Brien retired to her motorhome. It is consistent with what the neighbours heard during the course of the day and the evening. That which occurred in the hours prior to the infliction of the fatal wound is inconsistent with the Crown case that the accused was there to foment conflict or as a provocateur. It would be surprising if the accused was there for so long beforehand, seemingly having a good time, and engaging in conversation in a normal way, if his purpose in being at the premises was to start some sort of a fight with Mr O'Brien. 14. Thereafter (the precise minutes are uncertain), noises, a commotion, a thud, yelling and a wailing sound were heard coming from Mr O'Brien's premises. Neighbours looked through their windows, or, in the case of Mr Bergamo, went into the yard to have a look and have a cigarette. Mrs O'Brien, who was in her motorhome, heard screaming and yelling. 15. The first noise that Ms Burnham heard was some muffled talking sounds followed by a thud. She described it initially as sounding like feet scuffling a little bit and somebody bumping into the side of the house. She said it possibly could have been someone being punched in the stomach. She said it was hard to describe. She referred to hearing a thud then an exhale. It is not clear what that thudding sound might have been. 16. She describes the next thing that she heard was a female wailing. This would have been Mrs O'Brien screaming at the sight of her son collapsing in front of her from his wound. It is difficult to make any positive finding about the thud that Ms Burnham heard but there are a number of possibilities. 17. According to Mr Gee, the incident occurred during or following a conversation instigated by the accused about whether Ms Gilroy had been visiting Mr O'Brien the night before or something more direct. 18. It was not suggested to Mr Gee that no conversation of that type took place, albeit he has provided a number of versions of it. In circumstances where it was never suggested to Mr Gee that he was simply fabricating the subject matter of the discussion, improbable as it might have been, I would accept that there was some discussion of the general type referred to by Mr Gee. 19. In any event, whilst the three men were in the shed area, the accused took hold of an implement, again the nature of which is in dispute, and lashed out in a backhand motion coming into contact with Mr O'Brien's neck. Whether he did so as part of a deliberate attack or lashed out recklessly but in self-defence is in dispute. 20. The forensic pathologist, Dr Hannah Elstub, gave evidence. Photographs of the wound to Mr O'Brien's neck were tendered. Dr Elstub opined that the cause of death was an incised wound of the neck involving an injury to the left internal jugular vein and an injury to the left thyroid cartilage. The wound extended from the central neck to the left lateral neck. Dr Elstub opined during her oral evidence that the wound was consistent with a laceration or incision by a blade with a sharp edge rather than the point of some type of implement or the end of a hook. 21. There is an issue as to the implement used by the accused which will be the subject of further analysis later in this judgment. It is not in dispute that the wound was inflicted by a backhand type slashing motion rather than a stabbing motion. Again that could be relevant. 22. Two other neighbours also gave evidence, being Toni Foot and Leo Bergamo. Ms Foot lives near Mr O'Brien's house. She says that at around 10.30pm she was going to bed when she heard three or four different male voices saying "I'm going to kill you. I'm going to kill you." She looked out but she could only see shadows. She saw silhouettes of people. They were out on the side of Mr O'Brien's house on Myola Street. She heard someone say "I'm going to stab you. I'm going to stab you." 23. The next thing she heard sounded like an injured animal noise. She heard lots of screaming saying "You've stabbed him. You've killed him". She then called triple zero. The triple zero call was played. 24. She saw a man jump the fence of her house. He was wearing a black singlet and dark shorts. He ran from across the road. She saw this as she was on the triple zero call. She could see a man and could hear water running. She heard the water running and it sounded like he was slapping, like putting water in his mouth and spitting it out. She then heard her neighbour's fence rattle as if the person was jumping a neighbour's fence. She was hearing moaning and lots of yelling. She saw the Police arrive. She saw the Police drag the man out of a four-wheel-drive land cruiser. This was the accused. She saw somebody run across the road and yelling at the person. This was Mr Gee. 25. It is not necessary to comment on Ms Foot's evidence further, as Counsel for the accused did not dispute that the person who jumped into her yard and was using the hose was the accused. He must have been washing the blood off him. Whether he still had the weapon is uncertain, although Mr Gee said that he was 100% sure that the accused had the weapon in his car when the Police arrived. 26. Another neighbour, Leo Bergamo, also gave evidence. Mr Bergamo lives on the opposite corner from the O'Brien house. The first relevant thing he heard was the sound of someone having car trouble out the front of his house. It seemed like he was struggling to turn the car over. He went out to the backyard to have a look and to have a cigarette. The next thing he heard was a lot of yelling and screaming, swear words, including slurred swear words. He didn't feel comfortable so he went back inside. 27. He thought someone was telling another person to stay away from him. This was possibly the person trying to start his vehicle. He then heard someone say something along the lines of "He's been stabbed" or "I'll stab you". He thought those words were coming from the intersection out the front of his house. He thought one voice was coming from the car and another was from the house opposite. He thought by this stage it was getting close to when the sirens were going and the Police were almost out the front. He heard further yelling after the Police arrived, including "Stay away from me". 28. In my view, that which Mr Bergamo saw and heard happened after the incident in the shed area. 29. I accept that after the wounding in the shed area, the accused went to his car in an attempt to get it to start again, ended up not being able to and ended up trying to push start it. 30. Both Mr Gee and Mr O'Brien followed or chased him after the incident. The accused was backing away from them. It is likely that the screaming and yelling Mr Bergamo heard was that between the accused and at least Mr Gee. 31. Blood staining of the roadway outside of Mr O'Brien's residence tends to suggest that Mr O'Brien must have got to a point before turning back towards his house. 32. On hearing the screaming and yelling, Mrs O'Brien walked out of her motorhome. As she did so, she was confronted by her son holding his neck and bleeding. Mr O'Brien said to her "He's cut my throat, mum". He said something about a knife. She did not remember whether any other persons were there. She was screaming. She called triple zero. Her anguish is evident from the triple zero call. 33. She and Gordon O'Brien did everything possible to try and save her son's life. While she and Gordon were attending to Mr O'Brien she noticed the accused standing right next to her leaning over saying "I'm sorry. I'm sorry." She says he just kept repeating it. He was heard on another occasion saying "I'm sorry." She eventually told him to go away. 34. Further, again whilst they were there attending to Mr O'Brien she observed Mr Gee coming in towards the shed. He picked up a sledgehammer or something like that. He said "I'll kill him" or "He's killed my mate". 35. Mr Gee is heard on other occasions on the body worn video saying he would kill the accused. Mrs O'Brien said words to the effect of "It's bad enough as it is." The ambulance then arrived and took over attending to Mr O'Brien. 36. There is some doubt as to when the accused was standing next to Mrs O'Brien saying "I'm sorry" but there is no doubt that he was there at some point saying "I'm sorry". 37. The doubt arises because, at least according to Mr Gee, immediately following the accused lashing out at Mr O'Brien, the accused left and went towards his car. Mr Gee and Mr O'Brien went after him. There is no other plausible explanation for Mr Gee chasing the accused. It must be that Mr O'Brien did not originally realise the extent of his injury, albeit, he said to Mr Gee "He got me good". Further on one version given by Mr Gee, Mr O'Brien fell to the ground immediately on being struck. Again, this seems unlikely. 38. In any event, I am satisfied that both Mr Gee and Mr O'Brien did follow the accused as he went towards his car. Indeed, I am satisfied that the accused was backing away from the other two men and that at least Mr Gee and the accused were yelling at each other. 39. I am satisfied that shortly thereafter the Police arrived, although I cannot be certain as to how many minutes or seconds there might have been between Ms Foot observing the man in her front yard and then a man with no shirt yelling he was going to kill a person and the Police arriving. There is evidence that the accused was again trying to start his car by pushing it when the Police arrived. 40. Fingerprint analysis revealed a fingerprint from Mr Gee on the door of the accused's land cruiser. 41. I do not know whether the accused was still holding the implement as there was an altercation between Mr Gee and the accused as the accused was in the driver's seat of his car. Having regard to the way that Mr Gee endeavoured to present the events unfolding in his oral evidence, it is puzzling that Mr Gee not only chased the accused but was seemingly reaching into the car as the accused was in the driver's seat apparently armed with a weapon. 42. It seems likely that after that altercation, Mr O'Brien struggled back towards his house. Mr Gee may have followed him. It was after that, that the accused tried to push his car and then went to wash his hands. At some point he must have realised that Mr O'Brien was on the ground around the gate of his house and went over and stood next to Mrs O'Brien saying "I'm sorry". 43. As is evidenced by the body worn cameras, when the Police arrived the accused was made to lie on the ground. Although he seemed initially calm, when he was placed into the Police van, he became agitated and kept yelling out. Mr Gee, who was not wearing a shirt, was wandering around in a highly agitated state. He was making threats directed at the accused that he would be killed, in particular, that he would be killed in jail. He used the word "Cooper" in this context. The central issue 1. The central issue is whether the accused believed that his conduct was necessary to defend himself. The test is subjective. That is, I am not assessing objectively what a reasonable person might have done in the circumstances. 2. Although the accused did not give evidence, there is other evidence which might allow me to assess what the accused believed on a subjective basis. 3. Mr Gee's evidence in chief was initially as follows: "Q. Okay, all right, well, go on? What happened after that? A. I don't know, we were sitting there and we were having a few drinks and Steve was pouring drinks for me, he was pouring drinks for Shaun and next minute this fellow's just jumped up and went started going sick. Q. Going sick? A. Yeah, like, he slashed my mate's throat. Q. All right, well, did something happen before that? Was anything-- A. No. Q. Was anything said before that? A. A couple of things about this bloke's-- Q. Well, sir, if you can-- A. --partner—" 1. He then elaborated: "Q. Well, what did he say? A. Something about his partner was sleeping with Steve. Q. Well, doing the best you can, take yourself back to when these events were happening? A. Yep. Q. And tell us to the best of your recollection precisely what was said? Not 'something about'. Tell us what was said? A. Okay. What was said was, 'Have you been with my girl?' Q. Yes, and? A. And the reply was, 'No.' Q. Did - and who replied saying, 'No'? A. The reply was from Steve. Q. Did he say anything else other than, 'No'? A. No, he said, 'No, I' - no, he said, 'No, I didn't. I wouldn't do that, mate. I don't need to do that. I've got my own missus.' Q. Did he say anything else about why he wouldn't do it? A. Not really. Q. When you say 'not really'-- A. He just said - he just said that he had his own, he had his own partner and that's why he didn't do it, wouldn't do anything like that. He said he doesn't need to do nothing like that. Q. And what was the response from Steven - sorry, what was the response from Shaun? A. Him jumping up and - his response was, mate, he just starting waving around with a knife or whatever he - what it was." 1. Mr Gee was giving evidence by AVL. The Crown expressed some concern that Mr Gee appeared to be intoxicated. As he was at a Police Station, an enquiry was made. He was not. His evidence continued. 2. He was asked again what happened. He said that the accused had said "my partner went out last night and I don't know where she went". Mr O'Brien replied "well she didn't come here mate". The accused replied "Well it's my turn to go out tonight". Having regard to the recent birth of their child and the serious medical issues confronting the baby (and my impression of Ms Gilroy from her interview the next day), the idea that Ms Gilroy just went out seems somewhat improbable. 3. Mr O'Brien then said "I don't need to touch your girl mate and I wouldn't touch her … [I've] got my own". Mr Gee then said that they started to get a bit mouthy with each other. There was a heated argument. He then said "Steve went to pour another drink for Shaun which Steve is the type of bloke to do you know. Couldn't care whether you just had an argument." According to Mr Gee it was at this point that the accused lashed out at him. That is whilst Mr O'Brien was doing nothing more than pouring another drink for the accused. 4. Mr Gee was then asked how the accused used the weapon and he explained that it was from the back again across his body and in a slashing motion. 5. He then said he didn't know whether he had the weapon on him there or if he picked it up off the table. Mr Gee then said he jumped up but the accused had started moving towards the gate. Mr Gee tried to get hold of him but he took off and he jumped out the gate and ran out towards his car. He said he stayed with Mr O'Brien making sure he didn't fall to the ground. He saw that the accused had started pushing his car. Thereafter he jumped out of his car and came over towards Mrs O'Brien and Gordon O'Brien. He was walking back saying "I'm sorry, I'm sorry, I'm sorry, I didn't mean it". Then the Police turned up. 6. He was asked whether he had any injuries. He said he sustained a small laceration under the chin and one to his shoulder. The laceration under the chin came from the accused swinging and waving whatever he was waving around in the air. He didn't know whether it was a knife or a pick but it was an implement. He said he was struck inside the gate before he left to go outside the gate. 7. At this point the Crown applied to cross-examine Mr Gee under s 38 of the Evidence Act. Counsel for the accused did not oppose that course. Mr Gee was then showed a statement that he made on 31 December 2019. He was asked about how he got the injuries to his chin. It was pointed out to him that in his statement he said that after the accused had reversed his car Mr Gee went to the driver's side window and the accused "had a go" at him through the window with the knife. However, despite this earlier version Mr Gee maintained in his oral evidence that he got injured before he went to his car, although he had another go at him as he was in his car. 8. In cross-examination, Mr Gee was taken to the various versions that he had given prior to entering the witness box. Firstly, he was reminded that he initially said to Senior Constable Mearns at the scene that the accused had just come running through the house with a knife. Mr Gee responded denying that he said that. 9. He was then asked questions about a person by the name of Glen Cooper, particularly as he had mentioned a person called "Cooper" at the scene. Mr Gee said he was talking about one of the children with a similar name, rather than Mr Cooper. I do not accept this. 10. As it turns out, Mr Cooper is someone Mr Gee knew in prison. Mr Cooper is Karmon Gilroy's ex-partner. It was put to Mr Gee that Mr Cooper had asked Mr Gee to bash the accused. Mr Gee initially denied knowing anything about this but later admitted that he was so asked but said that he "took no knowledge of it". I assume he means "no notice of it". 11. Further, as evidenced by the body worn video, Mr Gee initially said to the Police that he (meaning the accused) came chasing me and another bloke and another bloke. Mr Gee wasn't able to explain what he meant. He said that he meant by "come out chasin' me" was that the accused was chasing him back towards the gate with the weapon in his hand. When asked to describe the weapon, he then said it was a "small spiky thing". 12. Mr Gee also agreed that he did not know whether the accused got the weapon off the table or from the back of his pants. So on that version it is possible that the accused never had a knife but picked up a garden implement from a table in the shed. 13. Mr Gee also agreed that he had told the Police that the accused had asked him whether he was the one attempting to have sex with Ms Gilroy. He explained that the accused was directing the question at both of them, that is, both Mr O'Brien and Mr Gee. He answered that he didn't touch Ms Gilroy. He explained that they were both drunk, all just sitting there. Again this earlier statement is quite inconsistent with his later statements. 14. In the end, Mr Gee became agitated with the questioning. He suggested that "[t]his body cam bullshit is all wrong." He denied saying things that he obviously said as evidenced by the body worn video. 15. Further, he maintained that he told Sergeant Jones at the scene that the weapon was a garden spike. He said that the Officer had written down knife, and that he had written down the wrong thing. Mr Gee maintained that he said "spike". So even in evidence in these proceedings Mr Gee was saying that the weapon was not a knife but a spike. The body worn video was in evidence and Mr Gee can clearly be heard to repeatedly say "knife." 16. Further Mr Gee described Mr O'Brien as following the accused out the gate, with Mr O'Brien holding a shovel. This might be inconsistent with Mr O'Brien collapsing to the ground immediately or Mr Gee having to stay in the shed area to hold Mr O'Brien up, both of which Mr Gee said at different times. Where the shovel came from and what happened to it when Mr O'Brien collapsed is not known. 17. The Crown suggests that it is unlikely that Mr O'Brien was holding a shovel as no such shovel was found during the Police investigation and search. That is, the Crown asks me to reject that part of Mr Gee's evidence. 18. Having said that, the Police were not looking for a shovel and there was no suggestion at the time that a shovel was relevant but if Mr O'Brien was holding a shovel, it is somewhat surprising that Mr O'Brien might have grabbed the shovel after being slashed in the neck and it is also surprising that the shovel was not found anywhere on the street or on the grass verge if Mr O'Brien had headed out through the gate with the shovel after he had been struck. 19. There are many problems with Mr Gee's evidence. His evidence in chief is inconsistent with his evidence in cross-examination. 20. More significantly, his evidence is inconsistent with what he said to Detective Senior Constable Petersen at 3.00am on 27 December 2019. At that time, he said that the accused just turned up and started accusing Mr O'Brien of sleeping with Ms Gilroy. Mr Gee said that the accused just pulled the knife and started stabbing away. Of course the accused did not just turn up and start accusing Mr O'Brien. Nor is there any evidence of him stabbing away. 21. He said that he tried to defend Mr O'Brien by getting in front of him. He copped a couple and the next thing he saw was Mr O'Brien lying on the ground with his throat cut. That does not fit with Mr O'Brien chasing the accused out onto the road. 22. He said that the accused lived up the road and that he came down accusing Mr O'Brien of sleeping with Ms Gilroy. Mr Gee said that the accused didn't say anything at first then all of a sudden he just jumped up and said "You've been sleeping with my missus" and he pulled the blade out and started slashing away. Mr Gee said that he jumped, dived over the table to stop it and copped a couple of them himself. In his evidence at trial he denied diving and maintained that he said "dodged". 23. He looked over at Mr O'Brien who was lying on the ground bleeding profusely. He described the knife. He said it had a bandage around it, with Elastoplast around the handle. He then said "Oh, he accused him of sleeping with his missus…accused me of being, um, trying to stop, you know, trying to bash him or some shit like that. I, I did nothing". 24. It is curious that one of the first things volunteered by Mr Gee, that is, within hours of the incident was a reference to a suggestion that he might be going to bash the accused followed by Mr Gee denying it. 25. When asked where the accused had the knife, Mr Gee said he pulled it out from the back of his pants. He then said that the accused slashed at Mr Gee first. Mr Gee dived across the table to grab the knife. He said the accused "just pulled up and went whack". He said that the accused went to his car, jumped in, reversed back and went across the road and "that's where we got him". 26. He said he ran over and jumped in front of him and he was still slashing away. He went to the window and Mr Gee motioned that the accused was stabbing at him with the weapon. The accused started crying. He was asked whether he was "suggesting that he still had the knife on him when he was in his car[?]". He answered "100 per cent". He said that the accused was still flashing it around just before the Police got there. 27. He later said that as far as he was concerned if a person came with a blade down the back of their pants, their intention was to "do something." 28. He further explained "he thinks that old mate had grabbed her on the ass" and then said that Mr O'Brien never had. I am not sure how Mr Gee might know (as he purports to) whether Mr O'Brien so touched Ms Gilroy. 29. This comment is most likely a reference to an incident involving Mr O'Brien and Ms Gilroy some 8 months earlier to which I will return to later in the judgment. Again, this comment is significant as it at least could be a reference to what Ms Gilroy told the accused 8 months earlier. He referred to Ms Gilroy as being "a spinner". I take this to be a derogatory comment by Mr Gee about Ms Gilroy, suggesting that she is someone who makes things up. I'm not sure of what Mr Gee knew about Ms Gilroy before this night but he did spend time in prison with Ms Gilroy's ex-partner, Mr Cooper. 30. On 9 November 2020, Mr Gee attended at the Newcastle Police Station for the purposes of providing a further statement saying that he would like to add information. He wanted to add some further information about "a bit of an altercation" between the accused and Mr O'Brien. 31. Mr Gee said that after the accused had levelled an accusation that Ms Gilroy had been going to Mr O'Brien's place, that Mr O'Brien then said he's got bigger or better standards than that. Mr O'Brien then grabbed the accused's shirt and that is when the altercation started. He said the accused was sitting down but Mr O'Brien was standing up. 32. Prior to grabbing his shirt, Mr O'Brien had told the accused to get out of the yard. He said the accused then cut Mr O'Brien's throat and then jumped up and started running around like a maniac. The accused went to the side of the house. Mr Gee said he was standing there and the accused lunged at him. Mr Gee attempted to grab him by the arm. 33. He further explained at this time that the accused was walking back going "I'm sorry". Mr O'Brien was going towards the accused. He thought Mr O'Brien had a shovel on him or something like that in his hand but he was not a hundred percent sure. He said he picked up a sledgehammer but Mrs O'Brien told him to put it down. 34. He further explained that he had a feeling that the accused may have come there with "intentions" because the dispute was about Ms Gilroy but he thinks the weapon might have already been sitting on the table in reaching distance for him to grab. He recalled a pick sitting on the table earlier in the night. It seems plain that Mr Gee gave this further statement for the purposes of telling the Police that in his view the accused was at the house with the intention of doing what he did and to make sure that the Police knew that this was an altercation between the accused and Mr O'Brien. 35. I have considerable reservations about Mr Gee's evidence. It is littered with inconsistencies. It is clear from the earlier exchanges with Police that he was keen to ensure that he would not be in trouble. He was acting aggressively towards the accused when the Police arrived essentially telling him that he would kill him or he would be killed in prison. 36. His recollection as to precisely what was said in the minutes before Mr O'Brien being struck changed depending on who he was speaking to and when he was speaking. 37. He wavered on his initial statement that the accused had reached around the back of his pants to pull out a knife to accepting that he might have just grabbed the implement from the table in front of him. In cross-examination he was adamant that the weapon was a garden spike. His evidence on the weapon is so inconsistent that I am unable to accept any part of his evidence as to what the accused had in his hand at the time or where it came from. 38. His account as to how long the accused had been there with them and what he was doing was inaccurate. 39. Further Mr Gee did not mention until months after the event the fact that Mr O'Brien had stood over the accused grabbing him by the shirt immediately before he was struck. On Mr Gee's earlier version Mr O'Brien was simply pouring himself a drink whilst the accused and he were discussing Ms Gilroy when the accused stood up and lashed out at Mr O'Brien and struck him in the neck. 40. Of course I may accept parts of his evidence even though I reject other parts. 41. In the end it is a matter of assessing Mr Gee's evidence with all the other evidence. Mr Gee may have been the only person who saw what actually occurred but there is other evidence which bears on the extent to which I could accept his version of events. 42. My doubts about both his credibility and reliability arise for a number of reasons, including: 1. as is apparent from the body worn video, when the Police arrived, Mr Gee was wandering around in a very agitated state, yelling and threatening the accused. He was plainly telling the accused what would happen to him in gaol, referring to "Cooper". He also said that he (Mr Gee) would kill him; 2. almost as soon as the Police approached Mr Gee, he expressed concern about his own position saying he was involved with the Drug Court and that he should not have a blood alcohol concentration over 0.05. He was trying to convince the Police that he was not really over that. It was apparent that he did not want to get into trouble saying he thought he might go back to gaol; 3. when the Police asked to speak to him, he initially wanted the camera off, but then beckoned to one particular Officer to come over to a different part of the road, as if he wasn't prepared to speak in the presence of other Officers; 4. Mr Gee was trying to maintain that he was not intoxicated, although he appeared to be and, on this hearing, he admitted he was; and 5. his versions have always been entirely self-serving. He wanted to tell the Police that the incident had nothing to do with him. He said that the accused just turned up, referred to Mr O'Brien and Ms Gilroy and started running through the house waving a knife, suggesting as well that Mr Gee wanted to bash him. 1. I am unable to determine which version should be accepted. It is surprising that within hours of the incident, Mr Gee maintained that the accused had lashed at him first, referring to diving across the table. On the version given by Mr Gee within the hours of the event, the accused was accusing both Mr O'Brien and Mr Gee of sleeping with Ms Gilroy. Mr Gee chose not to mention the important fact that seemingly immediately before he was struck Mr O'Brien had a hold of the accused as he stood over him. 2. Mr Gee's suggestion, made shortly after the incident, that he had been accused of wanting to bash the accused is of some significance. At the time he said that, he was endeavouring to suggest that the incident was just an unprovoked attack by the accused. In his evidence in these proceedings he said that he took no notice of Mr Cooper's request that he bash the accused. 3. On Mr Gee's contemporaneous statement something was said about Mr Gee wanting to bash the accused. Yet Mr Gee now maintains that nothing was said. It is inconceivable that Mr Gee would have mentioned something about bashing unless there had been some comment about it. It is also notable that after the incident the accused is backing away telling the other men to stay away from him as they chased him. 4. As far as the weapon is concerned, Mr Gee has given many versions. It was identified as a knife and he specifically stated that the knife had Elastoplast around the handle. In cross-examination, he was adamant that it was a garden spike. He also said it may have been a pick which was sitting on a table in front of them. When spoken to hours after the event he plainly tried to give the impression that the accused might have placed the weapon on the table in front of him with the intention of using it. Yet, when he gave evidence in chief, he demonstrated by reaching around his back that he was picking something out of his back pocket. He then said it may have been on the table. 5. Mr Gee was adamant that the accused was waving the implement around at Mr Gee as he sat in his car just before the Police arrived. He said he was a hundred percent sure that the accused still had the implement when the Police arrived and the accused was in his car. 6. In terms of his own injuries, there is photographic evidence of some marks under the chin and other parts of the body. There is evidence varying between receiving these injuries whilst they were at the car and whilst they were outside the shed. Statements by the accused 1. Although the accused did not give evidence in these proceedings, there is other evidence which contains statements by him and from which inferences might be drawn. Of course, I must assess whether this other evidence should be accepted. It seems plain that the accused has not always told the truth but again I remind myself that rejection of parts of his evidence does not necessarily lead to rejection of all of his evidence. 2. The accused was first seen and heard by Senior Constable Williams and Senior Constable Pacey when they arrived at the scene. The accused was sitting on the ground just outside of his car at 11.30pm. As Senior Constable Pacey approached the accused, the accused said "he attacked me." It is not clear whether he was referring to Mr Gee or Mr O'Brien. 3. When the accused was placed in the back of the Police van he was again asked what happened. Although he said he didn't know them, the only other thing he said was "All except for he wanted to stab me or ba". The accused stops speaking abruptly but on my review of the audio it seems that he was saying "bash me." He is asked if he knew who Mr Gee was and he said he didn't know him. 4. Of course, it may be quite convenient for the accused to have been telling the Police Officers on their arrival that he was attacked and that he (being Mr Gee or Mr O'Brien) wanted to bash or stab him, but the fact remains that it was said and said on a number of occasions, even when the accused was locked in the van, he was yelling out to a similar effect. 5. Again, I refer back to the statement of Mr Gee to the Police given at 3.00am in the morning that the accused was accusing Mr Gee of wanting to bash him. It seems an unlikely coincidence that Mr Gee was telling the Police about this and the accused was saying something similar. Further, when asked specifically whether he stabbed the gentleman over the road, he said that "he attacked me". 6. It is plain from the accused's appearance in the body worn video that he was intoxicated. The simple point is that there is contemporaneous evidence from both the accused and Mr Gee about the subject of the accused being bashed. 7. The next piece of evidence involving the accused is when he was spoken to at the Waratah Police Station. He was either woken up or under the effects of something. He was rambling but he was plainly not telling the truth. He said that he knew Mr O'Brien but denied having any altercation with him ever in his life. Most of the interview consists of the accused rambling about matters completely irrelevant. The accused is then seen in the forensic procedure video. There is nothing of significance on that video. 8. The accused participated in an interview on 8 September 2020. The accused denied any involvement with the murder saying it was the "other fella". He could only be referring to Mr Gee. He then said "he's Billy I think... it was in the paperwork… he was gunna kill me. So I, I don't know." The accused was asked did he know what happened to Mr O'Brien. He said "It was dark and I didn't exactly see… I got punched in the face so I don't really know." He said that he had been punched in the face by Mr Gee and that he had a broken nose. 9. The accused said "all I know is, whatever had happened, [Mr O'Brien] was trying to keep me apart from [Mr Gee]." He said he had no idea why it started. He said that Mr Gee was heavily intoxicated and was telling the accused that he was going to kill him. He said this happened outside on the street. 10. Bearing in mind the accused now admits to being the person who caused the wound to the neck, it must be that the accused was not telling the truth when he said that the other fella did it during his interview on 8 September 2020. The investigation 1. The Police attended within minutes of the incident. There is evidence of bloodstaining which indicates where Mr O'Brien may have been. There is evidence of blood on the seat of the accused's car and Ms Foot's fence. 2. However, none of the crime scene material assists in determining precisely what happened in the minutes before or immediately after Mr O'Brien was killed. 3. In particular, I am unable to be satisfied that the weapon or implement used by the accused has been identified. This is firstly because Mr Gee has provided a number of different descriptions of the knife or implement that was used and where it might have come from. There are no fingerprints or DNA on the knife found underneath Throsby Creek bridge the next morning. It is a knife with a sharp blade and it could have been the knife used. It would be consistent with the nature of the wound. However, it does not have Elastoplast on the handle. 4. Further, as I observed on my inspection of the scene during the trial, it was found in a position right under the bridge but not in the water. It is difficult to understand how it might have ended up in that position. 5. On an analysis of all of the evidence there is just no evidence of the accused ever heading in that direction. The evidence is that he was seen heading in the opposite direction before going back to the area of his car. The Crown submits that there was time for him to go down to the bridge and back again. That may be so, but before I would make a finding adverse to the accused it is necessary that I be satisfied of the fact beyond a reasonable doubt. I am not satisfied that the Crown has established that the weapon was the knife found under the bridge. A screwdriver and a swiss army knife were found in the accused's car. The weapon could not have been a screwdriver. It could possibly have been the swiss army knife. No blood or DNA was found on the swiss army knife. 6. Further, other than when he was asked whether it was a knife, Mr Gee tended to suggest that it was not a knife. It was some sort of implement that was on the table inside the shed area. His description of it being a garden spike would be more likely be something which is found in a garden shed. It may be surprising that it was not located by the Police on their search but it was admitted under cross-examination that the search of the area inside the shed or the mezzanine area was cursory. 7. Further, according to Mr Gee, the accused was waving a knife around as he sat in his car as Mr Gee was apparently reaching in. Mr Gee said he was one hundred percent sure that he was there with the knife when the Police arrived. Again, it is difficult to accept this evidence. 8. It is only necessary to say that I am not satisfied that the Crown has established precisely what weapon or implement was used or that it was located by the Police after the event. The Crown has not established that the accused went to the premises with a knife in his back pocket. He may have had a swiss army knife which could be used for a number of purposes (including as a bottle opener). There are a number of possibilities. I may not make a finding adverse to the accused unless it is established beyond a reasonable doubt. I am unable to make the finding about the weapon urged upon me by the Crown. 9. Other than the issue of the weapon the forensic evidence seems uncontroversial. Self-defence 1. The Crown case on self-defence is as follows: 1. self-defence has not been raised within the meaning of s 419 of the Crimes Act; 2. even if it has been, I should find that the accused went to Mr O'Brien's premises with the idea of a fight or engaging in a conflict and that even if the accused then felt it necessary to defend himself, that is not the type of situation in which self-defence is available; [6] and 3. in the alternative, the Crown has discharged its onus and established that the accused did not believe that his conduct was necessary in order to defend himself. 1. In Colosimo & Ors v Director of Public Prosecutions (NSW) [7] Hodgson JA observed that all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact whether the prosecution has excluded self-defence. Evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation. 2. Further, in considering whether self-defence has been raised, the evidence must be taken at its highest in favour of the accused. [8] 3. Plainly, in considering whether self-defence is raised, it is not necessary that I determine whether I accept all of that evidence. 4. There may be a difficulty in determining whether self-defence has been raised in circumstances in which the accused does not give evidence. At least on one view, that difficulty arises in this case. Again, in Colosimo at [19] Hodgson JA described the approach in these circumstances as follows: [9] "It is not essential that there be evidence from the accused as to the accused's beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused's relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances." 1. In my view, the possibility of self-defence has been sufficiently raised. There is a reasonable doubt as to whether the Crown has excluded self-defence. That is not to say that I accept all of the evidence relating to self-defence but I am satisfied that the evidence is sufficient to raise self-defence. I must take the evidence at its highest in favour of the accused. This includes the statements made by the accused and Mr Gee in the immediate aftermath of the death of Mr O'Brien. 2. As far as the Crown's second point is concerned, I have already indicated that the Crown has not established that the accused went to the premises for the purposes of fomenting conflict and to act as a provocateur. To some extent, this argument is dependent upon an incident between Mr O'Brien and Ms Gilroy. 3. Ms Gilroy was spoken to by the Police on the day after the killing. At the time she was holding her newborn baby. She explained that the child had undergone a serious operation, that is, a spinal fusion only a few days earlier. She rejected the idea that she was having an affair with Mr O'Brien. She seemed surprised at the suggestion. She followed up the question with a comment that Mr O'Brien had touched her on the bottom 8 months ago in or around a school. She had told the accused about it that day, that was 8 months ago, but she thought the accused had brushed it off as they had never spoken about it again. 4. Without meaning to minimise such conduct, it is difficult to accept that the accused was storing up some sort of a grudge against Mr O'Brien for the next 8 months and chose Boxing Day to take it out on Mr O'Brien. Ms Gilroy also referred to her former abusive partner (I take that to mean Mr Cooper) and referred to the accused in very supportive terms. 5. Of course that might be expected but I accept Ms Gilroy's evidence. She came across as a decent and articulate person doing her best in the difficult circumstances. Again, her evidence raises a rather large doubt about what was really said by whom on the night. 6. It makes no sense to suggest that 8 months after Ms Gilroy had mentioned Mr O'Brien touching her as they were picking up their children from the school that the accused would go around to the home of Mr O'Brien and have it out with him or have a fight with him. 7. All of the evidence points to all of the men having a good time prior to the incident. Something was said and something happened which led to the death of Mr O'Brien but I do not accept that this is the type of case which falls within the principles set out in cases such as Nguyen. 8. In those circumstances, the onus falls on the Crown to disprove self-defence. 9. Two difficulties arise. The first difficulty is that I do not accept much of the evidence of the Crown's principal witness, Mr Gee, as being either reliable or credible. From the moment the Police arrived he was looking out for his own interests whilst of course at the same time telling the accused either he would kill him or someone else would. His initial statements were self-serving and he was contradicting himself on a number of important matters. 10. The other difficulty which arises in a case such as this in which the accused did not give evidence (and I emphasise that I am not drawing any inference in that regard), is that one of the limbs of the test for self-defence must be assessed subjectively. The question is not whether it was objectively reasonable for a person to have acted in self-defence. The assessment is subjective, that is whether or not the accused reasonably believed the conduct was necessary. I must not find facts adverse to the interests of the accused unless they are established by the Crown according to the criminal standard. 11. Whilst the accused has plainly tried to deny any involvement and exculpate himself on later occasions, he was clearly maintaining that he was attacked on the night. 12. At the same time Mr Gee was wandering around saying the accused would be killed. 13. It is somewhat puzzling that after, according to Mr Gee, the accused had jumped up unexpectedly and slashed Mr O'Brien's neck, Mr Gee chased him. Even on Mr Gee's evidence the accused is backing down the street saying "I'm sorry". He went over to where Mr O'Brien was lying on the ground and was again saying "I'm sorry". 14. Mr Gee has himself tried to do something to the accused as the accused is sitting in the car. Obviously he wasn't making a citizen's arrest. Further, according to Mr Gee, this was after he had already been hit with the knife or some other implement in different parts of his body. Again, it is not clear how Mr Gee could have been struck with the knife inside the shed area on Mr Gee's evidence in these proceedings. Of course, if as he said on the night, he dived on top of the accused, this account may be more plausible. 15. It is notable that when asked about diving on top of the accused, Mr Gee said in cross-examination that "dive" was wrong and that what he meant was that he had dodged the accused. I have reviewed the body worn video footage and it is clear that Mr Gee says that he attempted to dive onto the accused. 16. Further, I do not know what caused Mr Gee to attend the Police Station 11 months after the event to clarify his earlier statements to tell the Police for the first time that in fact Mr O'Brien had taken a hold of the accused's shirt whilst Mr O'Brien was standing and whilst the accused was sitting, that is, Mr O'Brien was standing over the accused. 17. His unwillingness to describe it as an altercation on his evidence is inconsistent with what he said on 9 November 2020. If he dived on him, he must have dived on him whilst the accused was sitting down. On one version given by Mr Gee, Mr O'Brien must have been struck immediately after Mr Gee dived on him. Mr Gee was intoxicated as were the other two men. The idea that Mr Gee had the presence of mind to immediately dive on the accused as he pulled out a weapon as some sort of act to protect Mr O'Brien seems absurd. Yet Mr Gee told the Police on the night that he dived on the accused. 18. Precisely when in this sequence of events the accused suggested that Mr Gee wanted to bash him (as Mr Gee said he suggested) is not clear. Why the accused would be talking about this seemingly out of the blue is not known. 19. In my view there are really 3 possibilities as to the events which occurred in the shed that night. The Crown case is that the accused went to the premises with a knife in his back pocket intending to engage in a conflict with Mr O'Brien. He suggested to Mr O'Brien that he had been with his partner and reacted when Mr O'Brien said he had better standards, simply lashing out at Mr O'Brien with the knife when Mr O'Brien was doing nothing more than standing there, perhaps pouring a drink. I don't accept the Crown case. 20. The second possibility is that the incident simply happened in the spur of the moment when the accused reacted to the heated argument with Mr O'Brien by pulling some sort of a weapon from his back pocket or even grabbing something from the table and again lashing out at Mr O'Brien in a backhand motion, striking him in the neck. This possibility does not involve any aspect of self-defence on the part of the accused. 21. The third possibility is that the accused believed it was necessary to defend himself. He either grabbed his swiss army knife from his pocket or took a hold of something that may have been on the table. There was some sort of physical altercation with Mr O'Brien grabbing his shirt as he stood over him (which is what Mr Gee said happened in his statement of November 2020) and Mr Gee, using his words, "diving" at the accused. The accused lashed out recklessly such that his conduct was not a reasonable response to the circumstances as he perceived them but even so, he did perceive that he needed to defend himself. 22. In the minutes after the event the accused was protesting that he'd been attacked, Mr Gee was wandering around in an intoxicated state threatening the accused that either he would kill him or that someone else would in prison referring to someone called Cooper who just happened to be Ms Gilroy's ex-partner (described by Ms Gilroy as abusive), who had been in prison with Mr Gee and who just happened to have mentioned to Mr Gee about bashing the accused. Yet according to Mr Gee it was the accused who raised the topic of being bashed by him and not Mr Gee. I am satisfied that there was some physical altercation between the accused, Mr O'Brien and Mr Gee. Mr Gee has said on different occasions that Mr O'Brien had a hold of the accused's shirt and that he dived on the accused. 23. In our system of justice the Crown must prove beyond a reasonable doubt that the accused did not believe that his conduct was necessary to defend himself. I am unable to make any positive finding as to precisely what occurred because Mr Gee is not a credible or reliable witness and at least in his interview with the Police, some of what the accused said could not be true. 24. However, I must determine the guilt of the accused having regard to the question which I must ask myself as identified earlier in this judgment. Is there a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself? I believe that there is such a reasonable possibility. 25. I have a reasonable doubt as to whether the accused did not act in self-defence. In circumstances in which I have such a doubt it must be that the Crown has not proved beyond a reasonable doubt that the accused did not act in self-defence. The possibility remains that he did. 26. The accused accepts that his conduct was not reasonable such that even if he believed that his conduct was necessary to defend himself he must still be guilty of manslaughter. 27. I emphasise that the conduct of the accused was not a reasonable response to the circumstances as he must have perceived them. He used excessive force. It follows that having regard to s 421 of the Crimes Act he is guilty of manslaughter but not murder. 28. Accordingly: 1. I find the accused not guilty of murder but guilty of manslaughter. 2. The accused is convicted of manslaughter. 1. I remand the accused in custody for sentencing. ********** Endnotes 1. R v Katarzynski [2002] NSWSC 613 at [22]-[23] (Howie J); Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [122] (Meagher JA, R A Hulme and Beech-Jones JJ). 2. Oblach v Regina (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [50]-[54] (Spigelman CJ). 3. R v Murray (1987) 11 NSWLR 12. 4. Section 20 Evidence Act 1995 (NSW). 5. (1993) 178 CLR 217 at 227; [1993] HCA 65 (Mason CJ, Deane and Dawson JJ). 6. R v Nguyen (1995) 36 NSWLR 397; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; [1987] HCA 26. 7. [2006] NSWCA 293 at [19] (Handley and Ipp JJA agreeing). 8. Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [36] (French CJ, Crennan and Kiefel JJ). 9. See also Sivaraja at [124]-[126]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2021