R v Harris [2022] NSWDC 301

District Court New South Wales

Medium Neutral Citation: R v Harris [2022] NSWDC 301 Hearing dates: 29 March, 31 March, 19 April, 20 April, 11 July, 12 July, 13 July and 14 July 2022 Date of orders: 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Criminal Before: Lerve DCJ Decision: Finding of not guilty Catchwords: CRIME - wound with intent to cause grievous bodily harm Legislation Cited: Crimes Act 1900 Evidence Act, 1995 Cases Cited: Dasreef Pty Ltd v Harchaw (2011) 243 CLR 588; [2011] HCA 21 Edwards v The Queen (1993) 178 CLR 193 Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Pell v The Queen [2020] HCA 12 R v NZ (2005) 63 NSWLR 628 Texts Cited: CRIME - wound with intent to cause grievous bodily harm Category: Principal judgment Parties: Regina John Joseph HARRIS Representation: Counsel: Mr A Abdulhak (for the Crown) Ms L Rowan (for the Accused)

Solicitors: Ms L Nichols, Office of Director of Public Prosecutions Ms C McCristal, George Sten & Co File Number(s): 2019/345733 Publication restriction: No

of exhibit C Judgment 1. On 29 March 2022 the accused appeared before me at the Sydney District Court and pleaded not guilty to one count on an indictment, namely that he: On the 3rd day of November 2019 in Ashfield in the State of New South Wales did wound Chloe Spinks with intent to cause grievous bodily harm to Chloe Spinks. The accused elected to be tried by judge alone. The Crown consented to that course and the Election is exhibit A in the trial. 1. I should indicate at this point that the matter progressed in a piecemeal fashion. The matter was listed to commence some weeks earlier than Monday, 28 March 2022. The reason for it not commencing earlier is not known to me. In any event evidence was commenced on 29 March 2022 but the complainant was not available the following day and her evidence continued on 31 March 2022. Later in the trial the partner of the accused suffered an acute medical episode, which required urgent surgery. The evidence later continued on 19 April and 20 April 2022. The accused then breached his bail by leaving New South Wales and going to Shepparton in Victoria. The accused was later arrested and extradited back to New South Wales. There were then issues relating to the availability of both counsel in the matter. By arrangement the matter was listed to continue before me on 11 July 2022 at Wagga Wagga. It is uncontroversial that the accused suffers significant mental health issues and those issues had to stabilise before the trial could continue. After extradition the accused was held at the Junee Correctional Centre and it was therefore convenient for the matter to continue before me at Wagga Wagga. Both counsel attended Wagga Wagga to complete the matter. The court is grateful to counsel for their co-operation in this regard. 2. The piecemeal fashion in which this matter has been conducted is of course not desirable. However, given the variety of circumstances with which the court was met, the trial being conducted in a piecemeal fashion was largely unavoidable. In the preparation of this decision, I have the benefit of a transcript and very thorough and comprehensive submissions from each of the counsel in the matter. 3. In the course of the opening the Crown Prosecutor indicated that apart from the count on the indictment the Crown also relied upon the statutory alternative of Reckless Wounding contrary to s 35(4) of the Crimes Act 1900. If pleaded on the indictment that charge would be, the accused: "On the 3rd day of November 2019 in Ashfield in the State of New South Wales did wound Chloe Spinks and was reckless as to actual bodily harm being caused to Chloe Spinks". 1. The procedure to be adopted by me as the tribunal of fact is to initially determine whether the Crown has proved its case beyond reasonable doubt in respect of the count pleaded on the indictment. If at the end of my considerations I determine that the Crown has proved the guilt of the accused beyond reasonable doubt in respect of the count pleaded on the indictment I would not need to consider the statutory alternative. If I am not satisfied beyond reasonable doubt of the guilt of the accused in respect of the count pleaded on the indictment I would then go on to consider whether the Crown has proved the guilt of the accused beyond reasonable doubt in respect of the statutory alternative of Reckless Wounding. 2. What follows is a short explanation of some of the issues in the case. What follows for the remainder of this paragraph does not constitute any finding of fact. Essentially the matter involves an allegation of serious domestic violence. The complainant and the accused were in an intimate domestic relationship as at 3 November 2019. It is alleged by the Crown that the accused and the complainant were together in the kitchen area of a residential flat or unit at 2/20 Cecil Street Ashfield on the evening of 3 November 2019. It is further alleged by the Crown that in the course of an argument the accused took a sharp knife from a draw and stabbed the complainant in the left upper chest region. The Crown relies essentially on circumstantial evidence to prove the specific intent. The accused denies that he had any specific intent and essentially the incident involving the complainant was an accident. The accused went with the complainant to Royal Prince Alfred Hospital where the complainant was treated. The accused was later arrested near the hospital following a foot pursuit. 3. General Directions 4. It is for me as the tribunal of fact to assess the various witnesses and decide whether they are telling the truth. I have had the opportunity of seeing the witnesses and have had ample opportunity to observe the manner in which they gave evidence. It is entirely for the tribunal of fact to determine what evidence is accepted and what evidence is rejected. 5. My ultimate decision as to what evidence I accept and what evidence I reject may be based on all manner of things, including what the witness has had to say; the manner in which the witness said it; and the general impression which he or she made upon me when giving evidence. 6. In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness' evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness' evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. This being a Judge Alone trial it will be necessary for me to give reasons as to why I accept or reject the whole or part of the evidence of any one particular witness. 7. As the tribunal of fact I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge in s 144 of the Evidence Act, 1995. 8. I have heard addresses from counsel for the Crown and counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. In no sense are those submissions evidence in the case.