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. Inferences 1. This is a matter where I am asked to draw inferences. I remind myself, and direct myself in terms of what juries are normally directed on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. 2. I remind myself of the illustration routinely given to juries from the Trials Bench Book of the telephone call to a friend. In a criminal trial, as the tribunal of fact, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference. 3. In the context of a criminal trial where proof is required beyond reasonable doubt, as the tribunal of fact I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. CCTV and DVEC interview 1. The complainant gave evidence by way of closed circuit television from a room in the court complex but remote from the court room. There is nothing unusual or exceptional about that in this day and age so far as complainants in matters involving allegations of domestic violence are concerned. It is very much the rule rather than the exception. The complainant was the domestic partner of the accused for a number of years and is the mother to his two children. 2. The complainant gave a considerable portion of her evidence in chief by way of that is known by the acronym "DVEC" video, the acronym standing for domestic violence evidence in chief. That is now the customary manner in which complainants in matters involving allegations of domestic violence routinely give their evidence. Conformably with what I understand to be the principles enunciated by the Court of Criminal Appeal in R v NZ (2005) 63 NSWLR 628, the recording did not become an exhibit but remained an MFI. With the acquiescence of counsel for both parties I had access to a transcript during the playing of the video. That transcript is an aide memoir. If there was any difference detected between the recording and the transcript it is the electronic recording that must take primacy and precedence. 3. So far as the complainant giving evidence by closed circuit television and the bulk of her evidence in chief by DVEC video, I must not draw any inference adverse to either the complainant or the accused. I must give the evidence no greater or lesser weight because the evidence is given by CCTV or the bulk of the evidence in chief by way of DVEC video. Onus and burden of proof 1. I go to what is undoubtedly the most important direction of any criminal trial; that is the direction relating to the onus and burden of proof. This direction applies to both the count pleaded on the indictment and the statutory alternative. Before I could return a verdict of guilty in respect of any of either the count on the Indictment or if I get to consider the statutory that is before me the Crown would need to prove the guilt of the accused and prove that guilt to the criminal standard of beyond reasonable doubt. The words "beyond reasonable doubt" are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges on the meaning of the expression "beyond reasonable doubt" is neither necessary nor desirable. However, as part of the direction on the onus and burden of proof I direct myself that suspicion even the gravest of suspicion cannot amount to proof beyond reasonable doubt. 2. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and evidence led in the accused's case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and counsel for the accused in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do. 3. I remind myself that it is vitally important that I clearly understand that an accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him "not guilty". 4. Conformably with the decision in Pell v The Queen [2020] HCA 12 I direct myself that beyond reasonable doubt is the highest standard of proof known to the law. 5. In this case in order for a verdict of guilty to be returned in respect of either the primary count pleaded on the indictment or the statutory alternative, as the tribunal of fact I would need to be satisfied beyond reasonable doubt of the truth, accuracy and reliability of the complainant Chloe Spinks. Essential elements 1. I will now go to the essential elements or ingredients of the charges that I am considering. In order for me as the tribunal of fact to return a verdict of guilty in respect of the primary count pleaded on the indictment the Crown would need to satisfy me of the following essential elements or ingredients: 1. That it was the accused John Joseph Harris; 2. Who wounded the complainant Chloe Harris; and 3. At the time of the wounding the accused had the specific intent to cause grievous bodily harm to the complainant. 1. A wound is an injury that penetrates both layers of the skin. As I understand the manner in which this case has been conducted, there is no dispute that in the course of what happened in the flat at 2/20 Cecil Street, Ashfield on the evening of 3 November 2019 the complainant Chloe Spinks sustained a wound. In any event, I note the contents of Exhibit O, the brief medical report of Dr Benjamin Robinson, Cardiothoracic Surgeon. In part that document reads under the heading Operative Findings: "4cm laceration extending through pectoralis major to anterior chest wall without entering left hemithorax". Further, on the issue of medical evidence exhibit N in the trial is a series of extracts from the complainant's file held at the Royal Prince Alfred Hospital. There are numerous references to a wound in the course of the various entries contained in that exhibit. A number of entries within that exhibit are also significant in my view. 1. Under general anaesthetic the wound was cleaned and a drain inserted. The wound was sutured. As the tribunal of fact I am satisfied beyond reasonable doubt that the injury sustained by the complainant is a wound for the purpose of sections 33(1)(a) and 35(4) of the Crimes Act, 1900. 2. I did not understand that there was any real dispute that it was the accused who was responsible for the infliction of the injury. Rather one of the real or live issues are whether the accused had the requisite intention, i.e. the mens rea in that the case for the accused is that the injury was the result of an accident. It is for the Crown to prove beyond reasonable doubt that the accused had the necessary mens rea and further it is for the Crown to prove that the injury was not occasioned as the result of an accident. Of course, one of the other live issues is whether the Crown is able to prove beyond reasonable doubt that the accused had the specific intent to the cause the complainant grievous bodily harm. 3. The expression grievous bodily harm simply means really serious bodily injury. In order to convict the accused of the primary count as the tribunal of fact I would need to be satisfied beyond reasonable doubt that the accused had the specific intent to cause grievous bodily harm as well as being satisfied beyond reasonable doubt of the other two elements namely that it was the accused who was responsible and the element that a wound was caused. 4. Intent and intention are very familiar words; in this legal context they carry their ordinary meaning. Intention may be inferred or deduced from the circumstances in which specific acts were committed. Intention may be inferred or deduced from the circumstances in which the wound was occasioned to Chloe Spinks and from the conduct of the accused before, at the time of, or after he did the specific act, in this case, inflicting the wound. The Crown relies upon, for example the use of a not insubstantial knife, the fact that the accused on the Crown case went to the kitchen drawer and deliberately armed himself with that knife, the manner or motion of the accused at the time the injury was inflicted and the extent of the wound. I will be saying more about circumstantial evidence a little later in these reasons. 5. In some cases, a person's acts may themselves provide the most convincing evidence their intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where he deliberately does that act, the tribunal of fact may readily conclude that he did that act with the intention of achieving that specific result. 6. I will set out the illustration that I would normally give to a jury at this point. If one person hits another on the head really hard with a sledgehammer, it is (one may think) both obvious and inevitable that that person will receive a really serious bodily injury as a result. If, therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter for a tribunal of fact to conclude that he did so with the intention of inflicting really serious bodily injury upon that other person. One may think that there is no difficulty at all about coming to such a conclusion. But as the tribunal of fact I must remember that I am considering the intention of not what my intention might have been had I been in that position, nor the intention of any theoretical person, but the specific intention of the accused. 7. I will now go to the statutory alternative. Before as the tribunal of fact I could return a verdict of guilty to the statutory alternative of Reckless Wounding contrary to s 35(4) of the Crimes Act, the Crown would need to satisfy me beyond reasonable doubt of the following essential elements or ingredients: 1. It was the accused; 2. Who inflicted a wound on the complainant Chloe Spinks; and 3. The accused acted recklessly at the time of the infliction of the wound. 1. Wounding for the purposes of the statutory alternative has the same meaning as for the primary count pleaded on the indictment. Actual bodily harm is an expression given its usual English meaning and involves any bodily injury other than something that is transitory or trifling. Specific intent and recklessness contrasted 1. The concepts of a specific intent and recklessness are in sharp contrast. I have already explained the concept of the specific intent. The element of recklessness is made out if at the time of the infliction of the injury the accused realised that he may possibly cause actual bodily harm to Chloe Spinks by his actions yet he went ahead and acted as he did. Recklessness merely requires that the accused avert to the possibility of actual bodily harm but proceeds with his actions nevertheless. I remind myself that in respect of the statutory alternative of Reckless Wounding nevertheless the Crown must still prove the necessary mens rea beyond reasonable doubt. Circumstantial evidence 1. Essentially the Crown relies on circumstantial evidence in seeking to prove beyond reasonable doubt that at the time of the wounding the accused had the specific intent to cause grievous bodily harm to Chloe Spinks. Circumstantial evidence is evidence of a basic fact or facts from which the tribunal of fact is asked to drawn a conclusion as to a further fact or facts. 1. Circumstantial evidence is sometimes contrasted with direct evidence, that is to say, evidence from a person who says that he or she saw, or otherwise perceived, the fact or facts upon which the Crown relies as establishing its case or one of the essential ingredients or elements of the charge. 2. Such direct evidence may take the form not only of a witness saying that he or she saw the accused do the act which the Crown says constitutes the alleged crime, it may also take the form of, for example, a video recording showing an accused committing that act, or the evidence of a person who says in the witness box that he or she heard the accused admitting that the act was done by him. In this case for example there is the evidence of the complainant as to the what she says are the actions of the accused in picking up the knife and stabbing her. 3. Where, however, the Crown's case depends in part on circumstantial evidence, then it relies upon evidence of a basic fact or facts from which the tribunal of fact is asked to infer or conclude that a further fact or facts existed, being guilt of the crime, in particular that it was this accused had the specific intent to cause grievous bodily harm to Chloe Spinks at the time of the wounding. 4. Because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, any such inference or conclusion from basic facts relied upon by the Crown must, of course, be a conclusion reached by me as the tribunal of fact beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown but also any material presented on behalf of the accused and after having given careful consideration to the submissions of counsel on behalf of both the Crown and the accused. 5. A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending on the nature of the circumstances relied upon when considered as a whole (not individually or in isolation) and the degree of clarity and certainty to which that evidence may lead inevitably to the conclusion that the Crown has proved or established beyond reasonable doubt that the accused did have the specific intent to cause grievous bodily harm to Chloe Spinks at the time of the wounding. 6. It is essential that as the tribunal of fact I examine the evidence with care and consider whether it is reliable before drawing any conclusions from facts which as the tribunal of fact I regard as established by it. If, in my view, it is not of sufficient reliability to enable me as the tribunal of fact to come to the conclusion which the Crown says I will come to after having taken into consideration all of the evidence that is before me and having given due weight to the submissions of counsel on both sides, then the accused must be found not guilty of the primary count. 7. The Crown relies upon the following as part of its circumstantial case to prove beyond reasonable doubt that the accused had the specific intent to cause grievous bodily harm to Chloe Spinks: 1. The accused deliberately armed himself with the knife by obtaining that knife from the kitchen drawer; 2. The knife was not insubstantial; 3. The manner in which the knife was being held; 4. That the accused wielded the knife in the fashion that he did; 5. The part of the body to which the blow was directed, i.e. the upper left chest area of the complainant; and 6. The depth of the wound; and 7. The words said by the accused to the complainant in the triage area of the RPA hospital, i.e. "he told me he should have finished me" (p 23/07). 1. As I understand the evidence, it is the case for the accused that as the tribunal of fact I would not be satisfied to the requisite standard of that those actions alleged were taken by the accused and further that the words attributed to the accused by the complainant were not said. Ultimately it was put that I would not be satisfied beyond reasonable doubt that the accused ever formed an intent to injure the complainant let alone inflict grievous bodily harm upon the complainant. Flight as consciousness of guilt – direction – evidence and conclusions later 1. On the afternoon of Thursday 31 March 2022 the court watched several lots of footage taken by the body worn cameras of a number of police officers. That footage shows that the accused runs from police when he was first approached outside the RPA hospital and engages in what is commonly referred to as a foot pursuit. The evidence from a couple of officers, in particular Constables Rushford and Treacy, is that that pursuit continued for some few hundred metres. The accused was arrested at gunpoint and directed in very robust terms to get on the ground. I interpolate here that given the events as they transpired and the dynamics of the situation with which the officers were met it is my view that no reasonable criticism can be levelled at the officers for their actions at the arrest of the accused. 2. The Crown maintains that the actions of the accused in running from police and engaging in that pursuit amounts to flight, which the Crown submits demonstrates a consciousness of guilt on the part of the accused. 3. Post offending conduct as consciousness of guilt was one of the issues that called for consideration by the Court of Criminal Appeal in Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 where Latham J in brief additional comments at [6] said: "As I observed in McKey, the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions". 1. In the present matter the conduct relied upon is flight, which is precisely identified and proved by the evidence of the body worn camera footage shown to the court on 31 March 2022. What the Crown alleges to be flight occurred relatively soon after the complainant was injured in circumstances where the police from whom the accused ran were asking questions about the events concerning the infliction of the wound on the complainant. Before I could use that evidence as consciousness of guilt, as the tribunal of fact I would need to be satisfied that the accused ran from police in circumstances where the explanation for that conduct was a realisation of guilt on the part of the accused and for no other reason. Even if I do make these findings the issue of flight as consciousness of guilt is just one of the factors to be considered noting that the onus and burden to prove the guilt of the accused beyond reasonable doubt remains on the Crown from beginning to end. It is not suggested that the flight even if accepted by me as the tribunal of fact as consciousness of guilt could by itself prove the guilt of the accused beyond reasonable doubt either in respect of the primary count or the statutory alternative. 2. The case for the accused is that although the accused ran from police there are explanations other than a realisation of guilt. The accuse gave evidence that he ran from police because he was of the opinion that one of the conditions of the bail to which he was then subject was that he was to be in the company of his then partner Ms Spinks (i.e. the complainant) if he was away from the residence in Cecil Street, Ashfield. This is something that will need to be considered by me as the tribunal of fact. Lies as consciousness of guilt 1. Crown also relies on a number of utterances by the accused which the Crown says are lies, and a consciousness of guilt by the accused. I will deal with the evidence upon which the Crown relies later in these reasons but while I am dealing with the legal directions I will go to the test as set out by the High Court of Australia in Edwards v The Queen (1993) 178 CLR 193. I will adopt as best I can the directions that would be given to a jury on this issue. 2. To lie is to say something that is untrue knowing at the time of making the statement that it is untrue. It is not a lie if when the utterance is made the person making that utterance does not realise it is untrue or if it is made out of mistake or confusion. A lie by itself cannot establish guilt of an accused beyond reasonable doubt. The Crown does not suggest in this case that even if I do find the utterances relied upon as lies going to consciousness of guilt that by itself establishes the guilt of the accused beyond reasonable doubt. 3. Before a lie can be used as consciousness of guilt it must relate to some significant circumstance or event connected with the alleged offence. Further, before a lie can be used as consciousness of guilt the tribunal of fact must also find the reason that the accused told the lie is it because he feared that telling the truth might reveal his guilt about the charge that he faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial. 4. Of course, in considering the issue of lies going to consciousness of guilt the tribunal of fact must always remember that people do not always act rationally and that telling a lie may sometimes be explained in other ways. A person may have a reason for lying other than for the purposes of concealing guilt. For example a lie may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence unrelated to the offence. 5. If as the tribunal of fact I conclude the lie may have been told for some reason other than the accused avoiding implicating himself in the offence which is now on trial, then it cannot be used as evidence of the accuse guilt. 6. In summary before as the tribunal of fact I can use what the accused has said is something which points towards his guilt, I need to be satisfied that he lied deliberately, I would need to find that the lie related to some significant circumstance or event connected with the alleged offence, and I must find that the accused told the lie because he feared that the truth would implicate him in relation to the commission of the offence which is now on trial. Complaint evidence 1. The Crown relies upon a volume of what is commonly known and referred to as complaint evidence. It is uncontroversial that very soon after the injury was sustained by the complainant the accused drove the complainant to the Royal Prince Alfred Hospital. Further it is uncontroversial that en-route to the hospital the complainant rang Ms Tamara Bellear-Mayers, an aunt of the accused. In the course of that call the complainant said to Ms Bellear-Mayers that "John" (a reference to the accused) stabbed her. That call was played to the court during the trial. The accused must have heard that conversation. There is no suggestion that the accused contradicted what the complainant said, or for that matter reacted in any way whatsoever. Further, it is clear enough as soon as the complainant was by herself with the medical staff at the hospital she gave an account of the accused having stabbed her. 2. Although the account given initially to the nursing staff at the triage section of the hospital and later to treating medical staff is in the form of a complaint, it is also in the form of the history given at the time of medical treatment being administered. In those circumstances I will admit the evidence of what was said to Ms Bellear-Mayers as complaint evidence but what was said to the medical staff is simply the complainant giving a history to treating medical professionals. 3. It is for me as the tribunal of fact to decide whether the complaint was made, if I am satisfied that it was, then the rhetorical question I should ask is did the complainant act in the way that one would expect her to act if he had been assaulted as she said she was. Is what she did the sort of conduct you would expect of a person in her position at the time? If as the tribunal of fact I think that the complainant has done what one would expect someone in her position to do, that may support the Crown case because it makes the evidence of the respective complainant more believable. As the tribunal of fact I may find that there is a consistency between the complainant's conduct and the allegation she makes against the accused. 4. Clearly the complaint was made. In my view there is a consistency between the complainant's conduct and the allegation against the accused. On one view the complaint is consistent with the Crown case that it was an intentional act by the accused committed with the specific intent to inflict really serious bodily injury. However, the accused so far as the trial is concerned, despite what was said to police officers at the time of his arrest, does not deny being responsible for the injury, albeit on his version it was an accident. Accused gives evidence 1. In this case the accused has given evidence. That was a course he was entitled to take. It was not a course he was obliged to take. The accused could have remained mute, and if he had done so, I would have been required to direct myself that as the tribunal of fact I must draw no adverse inference against the accused by that fact. 2. I will summarise the evidence of the accused when I deal with the other evidence in the trial. However, I will give the directions as to the use of that evidence at this point in these reasons. 3. If as the tribunal of fact I accept the evidence of the accused, then he is entitled to be acquitted of both the primary count and the statutory alternative. 4. If, after having given consideration to the evidence of the accused and any evidence which the Crown asks me to take into consideration, as the tribunal of fact I do not positively accept the evidence of the accused, but that evidence leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then as the tribunal of fact I am bound, in law, to bring in verdicts of "not guilty". In other words, it is not the position that as the tribunal of fact I have to positively or affirmatively believe and/or accept that the accused is telling the truth before the accused is entitled to be acquitted. As I have previously emphasised, it remains the position that the Crown must establish beyond reasonable doubt the charge, which it brings against the accused, and it is never for the accused to prove that he or she is not guilty. 5. The accused has not assumed any onus because he has elected to give evidence. 6. Further, even if I were to reject the evidence from the accused, before I could return a verdict of guilty in respect of either the primary count pleaded on the indictment or the statutory alternative as the tribunal of fact, I would still need to be satisfied beyond reasonable doubt of the guilt of the accused on the material contained within the Crown case. 7. On the subject of the accused giving evidence there is one other matter that I wish to make very clear. It is not simply a case of comparing the versions in the Crown and defence case. As I have already said a number of times the onus of proof is on the Crown from beginning to end to prove its case beyond reasonable doubt. 8. Essentially that completes legal directions that I need to give myself in the trial and I will now go to review the evidence. Review of the Evidence 1. The events with which this matter is concerned occurred at residential premises at 2/20 Cecil Street Ashfield, which was the home of the complainant and the accused as at 3 November 2019. As will be obvious from one of the legal directions set out above, part of the evidence in chief relied upon by the Crown other contents of what has become known as DVEC interviews, which means domestic violence evidence in chief. 2. Although the interviews and associated transcripts were marked MFIs it is my understanding that there was no objection by either party to me retaining a copy of the relevant transcripts for the purpose of preparation of these reasons. The first interview, MFI 1, is a three minute recording taken on body worn camera while the complainant was at the hospital. 3. The complainant told police that her husband, the accused, suffers from schizophrenia and he had been unwell over the weekend, noting that 3 November 2019 was a Sunday. The complainant went on to tell police "Um every movement I did he just took it the wrong way. Um, I had my back turned and when I turned around, I just felt him hit my chest and I wasn't sure what with, and when I looked down I seen that I was cut." 1. The complainant saw that the accused was holding a knife. She said she needed to go to hospital. When asked if she knew which knife that he used the complainant told police that there were two knives were in the driver side door. I note that it is uncontroversial that when the accused left the Cecil Street unit with the complainant he took with him two knives which were placed in a compartment in the driver's door of the vehicle in which they drove to the hospital. 2. MFI 2 is a much longer interview between police and the complainant, which commenced at 11:19 PM on 3 November 2019. It is uncontroversial that the accused suffered at the time of this incident, and indeed at the present continues to suffer, a mental illness. It would seem that the mental illness is in the nature of paranoid schizophrenia. It appears from the DVEC recording MFI 2 that the accused was feeling unwell on 2 November 2019 and in order to avoid issues in the home went to stay with his father. The complainant collected the accused from his father's home the next day. On the way home food was purchased for the complainant to prepare for the evening meal that night. The accused also reported as required by the bail conditions to which he was subject at the time. 3. After arriving at the unit in Cecil Street Ashfield the complainant allowed the accused to sleep while she prepared dinner. An argument arose as to the food that was being cooked. It would seem that the food that was prepared was placed in the bin by the complainant before any of it was consumed. 4. According to the complainant the accused began to question her fidelity while she was preparing the food. The complainant said she began to feel uncomfortable and scared she said that she took some rubbish to the bin that was outside, and the accused followed her and continued to question her about her fidelity. 5. The complainant's account continued (see pp 2-3, transcript MFI 2) that once back inside she heard a kitchen drawer open and then close. She turned around and the accused hit her in the chest. Clearly in this recording there is only mention of one hit in the chest. When she looked up at his hands, she noticed that he had a knife in his hand, she looked down and she saw a cut in her chest. She grabbed a cloth and put pressure on the wound as she did not want it to bleed. The complainant told the accused that she needed to go to hospital and that she did not want to die. She said the accused did not want her to leave. 6. The complainant sustained the injury at about 6 o'clock in the evening. When asked (see Q 28, MFI 2) the complainant said the knife look like a long steak knife but she said that she wasn't sure how many were in his hands. This evidence is significant given the evidence of the accused. I will deal with the version of the accused later in these reasons but essentially he maintained he was holding two knives and two forks because he was preparing food for the children and the injury was occasioned to the complainant as an accident. 7. The complainant maintained that the accused was using his right hand at the time he inflicted injury (Q 38, MFI 2). She said that it felt like a punch. The complainant maintained (Q 71, MFI 2) that the accused did not want her to go to the hospital but rather want to take her to the home of a relative. 8. The complainant gave an account (MFI 2) of gathering a few things in a bag, organising the children and going to the car which was outside. The accused took two knives with him, placing them in a section of the driver's door of the vehicle. There was a considerable amount of photographic and other evidence relating to what occurred at the Royal Prince Alfred Hospital after the complainant and the accused arrived at that location. 9. There was quite extensive examination in chief and even more extensive cross examination of the complainant in the course of the trial. The complainant was taken in some very considerable detail to the photographs of the interior of the unit in Cecil Street Ashfield. Those photographs are exhibit C. The complainant was also taken in very great detail to the events at the emergency section of the Royal Prince Alfred Hospital. 10. In evidence (p 10:40ff) the complainant confirmed that at the time of receiving the injury it felt like a punch. She said that she felt two or three hard punches to her chest. When she looked down she realised "he had cut me". 11. A little later in evidence (p 11) the complainant was asked, "later on you told the detective that it was in his right hand. Do you recall saying that?" The complainant replied, "it was his left hand, but to me it was right". She went on to say that when she saw the knife it was in the air. 12. The two knives that the accused took with him in the vehicle to the Royal Prince Alfred Hospital were photographed and those photographs are exhibit D in the case. Photograph number three within exhibit D, that is the knife with a hole in the blade, was identified by the complainant as the knife that the accused used to inflict injury – see p 13:05. The complainant confirmed in evidence in chief that the accused was reluctant to take her to the hospital, but wanted instead to take her to the home of a relative. The complainant also gave an account of the accused doing a lap around the hospital essentially as I understood the evidence to prolong not taking her for treatment. 13. Closed-circuit television footage of the arrival of the complainant and the accused and their children was played a number of times in the course of the evidence of the complainant. There are a number of still images taken from that footage which are exhibit F in the case. Those photographs are date and time stamped and there was no issue taken at the trial about the accuracy of the date and the time as shown on the photographs. 14. The complainant maintained that in the waiting area at the Accident and Emergency section of the hospital, which was also referred to in evidence as the triage area, the accused asked her what she was going to say to the nurses about what had happened to her. At p 23:05ff the complainant gave an account of telling the accused that she was going to say she accidentally stabbed herself while sharpening a knife. She maintained that the accused said to her at that point in time that he should have finished her. 15. It would seem that initially the complainant did give an account of the injury being an accident but after the accused left she mouthed to the medical staff that the accused had been responsible. The police were then called. 16. I turn now to the cross examination of the complainant. By way of background as at the date of the incident, i.e. 3 November 2019 the accused was subject to bail that had been granted by the Supreme Court of New South Wales on 4 September 2019. It is my understanding from something that was said in the course of the trial that the accused was ultimately acquitted of the matter to which that related. The issue of this bail is relevant in that the Crown relies on flight as consciousness of guilt in respect of the accused fleeing when he was initially confronted by police outside the hospital on the evening of 3 November 2019. 17. As that was the initial subject to which Ms Rowan, counsel for the accused, went in the course of the cross examination this is an appropriate time as any to go to some detail as to that bail. The conditions included in amount of money to be forfeited in the event of breach, reporting to police several times a week, residing at unit two of Cecil Street Ashfield with the complainant. There was also a condition as to abstinence from illicit substances and alcohol. At p 36:20 the complainant was asked, "He had to obey all of your reasonable directions is that one of the conditions?" The complainant replied that she wasn't sure but she remembered that the accused was meant to be with her at all times. 18. The complainant was then cross-examined about an incident that had apparently occurred a day or two before 3 November 2019. The incident related to the accused dropping a tablet on the floor in the unit, the complainant finding it and the complainant becoming very upset and angry given the potential that one of the young children could have found the tablet and ingested it. The cross examination was initially about a Zyprexa tablet but later in the evidence of the accused the accused said it was a Valium tablet. Nothing really turns on this. 19. As I understood the cross examination of the complainant, it was suggested that the injury was inflicted by the accused as an accident in the course of this argument over the tablet. It was suggested to the complainant that she initially had punched the accused in the chest. That was denied. 20. There was then what at the time appeared to be perfectly unremarkable cross examination going to the credit of the complainant. This cross-examination related to the complainant calling the accused a number of unsavoury names such as cocksucker, dog, and cunt. Essentially the complainant denied much of what was put to her. 21. Ms Rowan then played to the complainant a recording of telephone call that had been recorded whilst the accused and a relative were driving along in a motor vehicle. The recording is contained within Exhibit 2. The complainant is heard to be very angry, screaming at the accused calling him the names that were put to him in the course of cross examination. The complainant maintained that call was from several years earlier. 22. The telephone call took on a life of its own in the course of the trial. Progress at the trial was delayed while the Crown arranged expert evidence as to the date of that call. This was done after some initial investigation by the Crown. Clearly enough, that call was made several years before this incident. In this regard I note the evidence of Allan Watt, an expert in digital forensics, which is at p 129ff of the trial transcript. 23. While there is absolutely no criticism of Counsel or her instructing solicitor, I am quite satisfied that those who provided that call to the accused's legal advisers were perfectly content for counsel to believe that the call was contemporaneous to the events out of which this trial arises. I will be saying more about this recorded call when dealing with some of the witnesses called on behalf of the accused. 24. Returning to the cross examination as it progressed at the trial, it was put to the complainant that there were in fact two types of chicken schnitzel being prepared. It was put that an argument developed because the complainant told the accused that he was going to have the chemically enhanced food. The complainant denied there were two types of schnitzel. Doing the best I can looking at the photographs of the rubbish contained within exhibit C there would seem to be only one packet from which the chicken could have come. In this regard I note the cross-examination at pages 53 and 54 of the transcript where it was put to the complainant that there was "a" (meaning one) chicken packet. 25. Essentially it was put to the complainant that in the course of the preparation of the meal the accused took two knives and two forks from the kitchen in order to cut up food for the children which was to be consumed in the living room of the home. It was put to the complainant (p 46:29) that the accused obtained the knives from the cutlery drawer. The complainant replied, "the knives that I was stabbed with were from the cutlery drawer". The complainant maintained that the accused said he wanted to go and get McDonald's. She denied the accused said, "I don't want that shit" (a reference to the food she had prepared). It was put but denied that the complainant started yelling and swearing at the accused and began throwing the food in the bin. The complainant maintained that she threw the sweet potato mash into the bin as no one was going to eat it. 26. It was then put to the complainant that after the food was thrown out the accused asked what the children will eat. It was put but denied the complainant said, "Fuck the kids". It was also denied the complainant said that they could starve. The accused apparently at about that point indicated he want to leave the premises but the complainant told him to stay. She maintained his back was turned. There was further cross examination to the effect that the complainant telling the accused he could have potentially killed the children by his actions in leaving that ill lying about. 27. At p 48:01 it was put to the complainant that she moved towards him as if she were going to push him. She denied this saying that she was too scared to push the accused or to say anything to him. A little later – see page 50 of the transcript – it was put to the complainant that as she moved towards the accused, he moved towards her and there was a single incident. The complainant did not agree with that. She then maintained that she turned around and the accused punched her chest two or three times. The complainant said (p 50:50) that she had two little punch marks and one big mark. She denied telling medical staff at the hospital that the accused punched her two or three times. 28. The cross-examination continued (p 51:29) to the effect that it was in the evidence in chief that for the first time the complainant said she was punched to or three times. The complainant said, "I didn't mean that he physically punched me. It felt like that. It felt like that, then I looked down and there was a big hole in my chest." She went on to say there was a single movement towards her chest (p 54:05). I will deal with this issue in more detail when dealing with the issues raised in counsel's addresses. Impressions of the complainant as a witness 1. The complainant gave a clear and concise account in the two interviews given at the hospital. The accounts were given in what appeared to me to be a totally objective fashion. The complainant made no attempt to exaggerate or to make any gratuitous comments relating to the accused. Given the situation she was in, i.e. in an emergency department of a major hospital with the stab wound to the left side of her chest, she was particularly calm and measured. 2. In court, particularly under cross-examination, the complainant was a little aggressive and indeed on some occasions more than a little aggressive particularly when challenged. Her answers however mostly were very matter of fact. There was never any hesitation in her answers under cross-examination. Again, there did not appear to me to be any attempt to exaggerate or to denigrate the accused in any way. 3. As events transpired, the complainant was perfectly correct about that phone call about which she was cross-examined. The complainant was correct to maintain what she did about the time at which that call was made. However, she made no attempt to prevaricate or hide from the contents of that call. This in my view goes to her honesty as a witness. 4. To my observations there was certainly nothing that was inherently unbelievable about the evidence of the complainant nor is thereanything on the face of the evidence that would lead a tribunal of fact to necessarily reject that evidence. I was reasonably impressed with the complainant as a witness. However, as I will discuss later, the issue to which I refer at [95] of these reasons gives me, as the tribunal of fact, some real cause for concern. Medical evidence 1. Exhibit N in the trial containw extracts from the complainant's file at the Royal Prince Alfred Hospital. It is plain from those records that a number of medical personnel spoke to and treated the complainant on 3 November 2019 and later. Only one doctor gave evidence, namely Dr Timothy Royle, who gave evidence on 1 April 2022. It would seem that he was not one of the treating doctors but rather is a senior staff specialist in the emergency department of Royal Prince Alfred Hospital. He reviewed the records relating to the complainant. At places within the documents contained within exhibit N, the complainant is referred to by a pseudonym, but it seems from the evidence of Dr Royle that that is usual procedure so far as matters involving allegations of domestic violence are concerned. No issue was taken and nothing rises or falls on the use of the pseudonym. 2. The injury is described at the bottom of page 2 of exhibit N as a left chest wall stabbing. On page 3 under the heading "Findings" it is recorded that "clots noted through wound, 8 cm weren't penetrating through subcutaneous tissue and pectoral major, no obvious chest wall defect and lose from muscle edges". The wound was washed out, drained and sutured. Dr Royle (p 89:27) gave evidence that the wound went through the skin, the fatty tissue just under the skin, and through the muscle underlying the front of the chest wall the pectoralis major. The reference to blues indicated bleeding at a low rate. 3. Significantly, so far as the count on the indictment is concerned and the element of the specific intent to do grievous bodily harm, there was no question directed towards Dr Royle as to the degree of force that would be necessary to inflict the wound sustained by the complainant. In the course of closing addresses this was raised with the learned Crown Prosecutor. It seems this was a deliberate decision essentially due to him having received the brief at late notice and because of that late receipt being unable to place those who appeared for the accused on notice as to what the answer might be. As I thought I made quite plain in the course of taking addresses is difficult for the Crown to succeed on the charge involving the specific intent do grievous bodily harm without some medical evidence as to the degree of force required for the injury. This is particularly so in circumstances where it is not disputed by the accused that he was responsible for the injury, although the case for the accused is of course, that the injury was accidental. 4. I will now go through some of the contents of exhibit N. At page 13 of 132 there is a note to the effect, "left chest step wound requiring operative washout and closure today". There is a notation towards the bottom of the page that the patient, that is the complainant gave a history that as she "was making dinner she turned around and felt him hit my chest". 5. Going to entries under the heading "Progress Notes" on pages 15 and 16 of exhibit N there is a reference to a full trauma call which is apparently a reference to a team being assembled at the hospital for the purposes of treating the patient who presents with an injury as the complainant did in this case. There is reference made to a "left chest stabbing wound nil other injuries noted" in approximately the middle of page 16 it is noted "8 cm laceration on left upper chest wall with haematoma nil other injuries visualised". 6. On page 17 of the notes there is a notation that the patient presented with "sharp trauma to superlateral left anterior chest – vertical knife wound inferior to lateral aspect of left clavicle". 7. In notes made on 4 November 2019 as set out on page 20 of exhibit N on the bottom half of the page, it is recorded that the complainant told the author of the note that her husband (i.e. the accused) is paranoid schizophrenic and took illicit drugs. A little later there is a note, "whilst she was cooking dinner, she turned towards him and heard a sound and looked down to find that he had stabbed her twice in the left chest with a kitchen knife". A little later there is a note, "she reports that she is unsure how many times she was stabbed (?2 ?3) but it was confined to left upper chest, no other injuries and she remembers all of the events". 8. That entry appears to continue to page 21 of exhibit N. There is a notation, "surgical dressing noted upper left chest with bellovac drain, to further small puncture wounds left upper chest, no bony tenderness, equal air entry, no other bruising or abrasions". As Ms Rowan counsel for the accused noted in her closing address, this notation was made after medical intervention. 9. At p 27 of exhibit N there is again reference to a single stab wound. The various entries in the medical records within exhibit N leads to a deal of uncertainty about the number of injuries and further the extent of the injuries. This uncertainty to my mind is factually significant when the initial account of the complainant in the DVEC videos and the account given by the accused in his evidence at the trial are considered. Police attend the hospital 1. Constable Rushford and Constable Treacy attended the hospital at about 6:30 PM on 3 November 2019 in response to a police radio broadcast. That broadcast included that the suspect was currently across the road from the ambulance bay and a light blue T-shirt and red shorts an update was received by the officers to the effect confirming that the female had been stabbed that her husband still had access to the knife, which was in the car. 2. Police observed the accused, with Constable Treacy saying in his statement, "I observed a male I now know to be John Harris…" The police vehicle was stopped beside the accused and the officers alighted from the vehicle. At this point in time according to Constable Treacy the accused began to walk away from the officers, at which point Constable Tracy called out, "Stop there, mate". The accused then ran from police and a lengthy foot pursuit then followed with the accused being arrested at gunpoint at a nearby oval. The officer estimated (p 99:43) that the pursuit lasted for about 500 metres. Exhibit J in the trial shows both by way of aerial photograph and by way of map the location of the hospital and the route of the pursuit. 3. That pursuit was captured on a body worn camera and it shows the arrest in graphic and in some ways confronting detail, with the accused being ordered at gunpoint to get on the ground. I wish to make it clear that given what confronted the police so far as the accused's behaviour is concerned no reasonable criticism can be levelled at any of the officers of the manner in which they conducted themselves during the pursuit or at the arrest. 4. Other police officers then arrived. The accused complained of chest pains and an ambulance was called. What occurred and what was said by those at the scene including the accused was also captured on body worn camera worn by Constable Rushford and was played during the course of the trial. That recording is exhibit K in the trial. The accused constantly complained of chest pains and constantly complained about the time it was taking the ambulance to arrive. Again, in my view no reasonable criticism can be levelled at in if the officers the way in which they conducted themselves in dealing with the accused. The accused, once arrested and on the ground, gave every impression to me as exaggerating and to some extent fabricating his condition while talking to police. The accused certainly had no trouble in interacting with the police and telling them what was wrong. The answers he gave to police were clear and responsive. 5. The accused was taken to St Vincent's Hospital by ambulance from the location at the Oval where he was arrested. Constable Treacy accompanied the accused to the hospital in the back of the ambulance and recorded the interaction between himself and the accused in the back of the ambulance by using his body worn camera. That recording is exhibit Q in the trial. The accused declined the request of the treating paramedic to take a small blood sample to test for blood sugar levels. The Constable gave an account of the accused vomiting at the time of the arrest but the officer opined that it was most likely just Powerade or something. 6. After the accused was cautioned he was asked, "So why has Chloe gone to the hospital?" The accused told the officer that she cut herself with a knife. The account continued that she cut herself with the knife once to the chest he told the police officer that he saw that occur when asked did he know why she cut herself the accused replied probably because she was agitated. 7. A little later – see page 7 of the transcript of exhibit Q – the accused maintained that he and the complainant had a good relationship, that she is really good to him and that he keeps stressing her out. 8. At that point of the exchange the accused said, "She hit me". The officer then asked, "How do you mean"? The accused replied, "She hit me, abused me mentally." The accused went on to say that the complainant also said to him at the time of the incident, "Do you want me to kill myself?". The accused then went on to say that the complainant hit him with her fists 9. At one point there is some discussion between the police officer, the paramedic and the accused about the police finding a small bag of a substance in the accused's pocket. The accused maintained police put that small bag in his pocket. Having seen the body worn camera footage of Constable Rushford, any suggestion the police did any such thing must be clearly rejected. At the end of the recorded exchange the officer asked the accused as to how the substance was injected. The question was never really answered as it seems the ambulance arrived at the hospital. 10. The Crown relies upon the accused running from police as flight as consciousness of guilt. The Crown also relies upon what the Crown maintains is lies, including some of what was said to the police officer in the rear of the ambulance, as also going to consciousness of guilt. I will return to these issues after dealing with the evidence led in the case for the accused. Evidence of the accused 1. The evidence of the accused was taken somewhat piecemeal, however that was due to some extent to the conduct of the accused in absconding to Victoria. The evidence commenced on 5 April 2022. The following day the current partner of the accused suffered a severe medical issue during the day while at court. The aftermath of this was witnessed by counsel for the accused, who was understandably visibly upset at the time. Evidence continued on 19 and 20 April 2022. However the accused, in breach of his bail conditions, left New South Wales and went to Shepparton in Victoria. He was arrested, taken into custody at Shepparton and later extradited to New South Wales. The accused remained in custody. The matter was mentioned on a number of occasions with counsel appearing remotely. It was accepted that the continuation of the matter would have to wait until such time as the mental health of the accused was stable. There were also issues so far as availability of counsel for both parties was concerned. There was also an issue of finding court time at the Wagga Wagga District Court, where I normally preside. The court was kept informed of the progress or otherwise of the mental health of the accused. During one of those mentions it was agreed that the matter would continue before me at the Wagga Wagga District Court on 11 July 2022. By happenstance, the accused was being detained at the Junee Correctional Centre some 40 km from Wagga Wagga, making Wagga Wagga the more appropriate venue for the matter to continue. 2. The evidence of the accused commenced (p 138 transcript) with counsel taking him to the issue of the bail conditions to which he was subject as at 3 November 2019. As I understand the submissions advanced on behalf of the accused, the answer to the Crown's submission that flight should be used by me as a tribunal of fact going to consciousness of guilt is that the accused was concerned about being detected breaching his bail conditions. This issue achieved a particular significance at the trial and in the addresses of counsel. 3. Although it is of no particular issue, I understand that the matter with which the accused was charged in respect of which bail was granted by the Supreme Court on 4 September 2019 resulted in the accused being acquitted of that matter. 4. Evidence was led as to the bail conditions to which the accused was subject. MFI 9 is a copy of the bail report which sets out those conditions. Constable Hennon, the officer in charge of the case, gave evidence of those conditions. Those conditions are set out at pages 109 and 110 of the trial transcript. Those conditions include 1. $3000 to be forfeited by an acceptable person; 2. report to Ashfield police station Monday, Wednesday and Saturday between 6am and 9pm. 3. must reside at 2/20 Cecil Street Ashfield with Chloe Spinks and nowhere else; must not leave that apartment between the hours of 9pm and 6am the following day, without exception; 4. must not use an illegal or prescribed drug. The only exception is described drug for which he has a prescription from a doctor. He must not drink alcohol; 5. he must appear on 14 January 2020 at the local Court at Waverley and any other time when he is required by law to be at court; 6. he must not drive a motor vehicle or even sit in the driver's seat of the motor vehicle; 7. he must obey the reasonable direction of Chloe Spinks. He must not be released except into the custody of Chloe Spinks. 1. There were further conditions to that bail relating to the obligations of the accused seeking medical treatment upon release from custody. 2. The evidence continued – see pages 110 and 111 of the trial transcript – of a bail imposed at the Downing Centre local Court which included conditions as follows: 1. $20,000 to be forfeited by an acceptable person; 2. report to Ashfield police between 7am and 7pm between 1 October 2019 and 5 December 2019; 3. not to enter the suburb of Balmain; 4. not to be absent from 2/20 Cecil Street Ashfield between 8pm and 6am unless in the company of Chloe Spinks 5. not to consume any illicit drugs or any drug not prescribed by medical professional. 1. Again, there were conditions relating to obligations of the accused so far as medical treatment was concerned. 2. Although I will go into some detail of the version of the accused, but essentially I understand the position of the accused to be that when confronted with the presence of police he panicked because he was concerned that he was in breach of his bail by not being in the company of Ms Spinks. I note in this regard it was certainly the understanding of Ms Spinks that the accused was meant to be with her at all times – see p 36:22. 3. In compliance with his bail conditions, the accused went to live with Ms Spinks and the children at 2/20 Cecil Street Ashfield. The accused gave an account of being diagnosed with PTSD, bipolar disorder and paranoid schizophrenia. He had been prescribed Zyprexa and Abilify. He was also on the buprenorphine program. 4. The accused gave an account of dropping one of the tablets of his medication in the house (p 140:14ff). The account continued that he dropped the pill around the bathroom and it caused a big fight between him and the complainant. The account included that the complainant hit him and he ended up at his dad's place. He recalled the argument occurred on Friday, 1 November 2019. He maintained that it was a Zyprexa tablet that he dropped (p 141). 5. According to the accused when the complainant found the tablet she reacted angrily and said to the accused words to the effect of, "John, fucking come here now," and while holding the pill said, "What's this, you fucking cocksucker, what the fuck". The account continued that the complainant closed distance on him and in the course of the argument she punched him in the chest (see p 142). 6. The accused said that the punch took his breath away (p 142:25). The complainant on his version said to him, "You could have fucking killed he kids" (p 142:26). It was agreed the accused would go to his father's house. The memory of the accused was that on Saturday, 2 November 2019 they spoke about the accused returning to the home and there not being a repeat of dropping a pill. 7. It seems uncontroversial that the accused spent the night of 2 November 2019 at his father's home. The complainant went to that home with the children earlier on 3 November 2019. Ms Spinks made brunch for those present. After leaving the home of the accused's father the accused reported to the Ashfield police station to comply with his bail conditions and they also went to an IGA supermarket where food for the evening meal was purchased. 8. The version of the accused continued, with the accused saying that upon arriving back at the unit in Cecil Street the complainant told him to go and lie down and watch television with the children, which he did. He did not recall for how long he slept. When he woke the complainant was saying that dinner was ready, the dinner was cooked, and she asked him to cut up the children's food. The accused was taken to a number of photographs within exhibit C, which is a series of photographs of the interior of the unit. 9. To assist with orientation and physical layout of the premises if this decision is ever reviewed, page 2 of exhibit C is a photograph of the entry hallway and to the right as one looks at the photograph is a doorway to which there is attached a baby gate. That room to the right is the kitchen where the incident involving the injury to the complainant occurred. The entrance to the kitchen and portion of the kitchen is also shown in other photographs, for example the photographs on pages 7 to 19 inclusive. Towards the back on the photograph on page 6 of that exhibit is a set of green children's table and chairs. 10. The accused gave evidence (p 147) that he took plates of food for the children to that green table and chopped up the food at that table. He then went back into the kitchen. The evidence continued that he looked over the complainant's shoulder, saw that there were two packets of meat open, one said Parmesan schnitzel and the other said chemically grown chicken schnitzel. The accused asked the complainant what they were having for dinner and according to him she replied, "Oh, we're all having parmesan and you're having the chemically grown chicken schnitzel". 11. I interrupt the recitation of the evidence of the accused to comment on this issue of the two types of schnitzel. I reject the suggestion that there were two types of schnitzel. Photographs of the content of the rubbish bin are before the court. I can only discern one meat type packet. In this regard I also note Exhibit 1 also contains photographs of the contents of the garbage bin inside the kitchen. Given what soon thereafter transpired with the complainant being injured, little if any time would have been available for either the accused or the complainant to have tidied or cleaned up the kitchen. This is particularly so in circumstances where the complainant was injured; she grabbed a tea towel to place on the injury and was obviously concerned about getting to hospital. I also have a particular difficulty with the expression "chemically grown chicken schnitzel". 12. Returning to the evidence of the accused, he said (p 149:03ff) that he used a knife and fork which he obtained from the cutlery drawer in the kitchen to cut up the food for the children. He said he took two knives and two forks out of the drawer. I understood the accused to give evidence to the effect that he recognised the knives that are depicted in the photographs within exhibit D. 13. The accused maintained that he told the complainant that he did not want the chemically grown schnitzel. At p 150:26ff the accused gave evidence to the effect that the complainant reacted angrily by starting to "chuck food out", "just throwing it, like throwing it everywhere, slamming stuff down and getting really aggressive". He went on to say she threw all the food in the bin started slamming the dishes, washing the dishes up at the same time, water was going everywhere. 14. Looking at the dishes on the sink as depicted at pages 11,12 and 13 of exhibit C, I accept that part of the evidence of the accused so far as the complainant washing up the dishes and throwing out the food is concerned. Again, given what transpired with the injury to the complainant that washing-up must have been done before the complainant was injured. In this regard, I note that while the accused was under cross-examination I attempted to clarify a question put by the Crown Prosecutor and put to the accused, "Another way of putting it might be, Mr Harris, everything in the kitchen was left as it was after Chloe was injured?" The accused replied "Except the knives". In all the circumstances I accept that this is the case. 15. The evidence continued that the complainant took out the rubbish and when she came back in he said to her, "Do you want me to go? I can't stay here." The complainant replied, "No you can fucking stay here and be a father". At this point the accused said, "Why don't you love me?" To which the complainant replied, "Cause you could have fucking killed my kids". 16. The accused then gave an account of the complainant coming at him with a hand raised with a hand in a forward punching type motion. The account continued (p 151:47) "she was facing the stove, and then she turned around really quick, like, turned around really quick, yeah." He put his hand out with his head turned to the left the left hand close to his face palm out in the right hand fully extended in a palm out stop type motion (p 152:01ff). 17. He maintained his hands were clenched. He still had the forks and knives in his hand. He went on to say, (p 152:27) "I had – when I had gone like this, I could feel something happened. I didn't see anything, but it's like time stopped and I looked, and I followed my arm like that with my arms, and I seen that the knife had got her here. Just somewhere around here". The accused indicated the right side of the chest. Later on at the conclusion of the evidence in chief of the accused, (p 169:10) the accused was asked, "At the time that you put your hand out, what was going through your mind?" The accused replied, "To protect myself and just to not be hit in the face or the stomach again. To basically get away." 18. The evidence continued of the complainant taking a tea towel and applying pressure to the wound that she had sustained. The complainant said to him that she wanted to go to hospital and he maintained he agreed to that. He maintained that he assisted in packing a small bag including nappies and other requirements for the children. He maintained they went straight to the hospital he said he took the knives with him because he wanted to show what had happened and how the complainant had sustained the injury. The knives were placed in a compartment in the lower part of the driver's side door. 19. While travelling to the hospital there was a call between the complainant and Tamara, aunt of the accused. During that call the complainant said to Tamara, "John had just stabbed me." The complainant asked Tamara to collect the children from the hospital. 20. Contrary to the evidence of the complainant, the accused maintained he did not delay in taking the complainant to the hospital. The evidence continued (p 156:44ff) that upon arriving at the hospital, the accused alighted from the vehicle with the two knives in his hand. The complainant enquired as to what he was doing and whether he was "fucking stupid". According to the accused, the complainant expressed some concern that the children would be taken from them. 21. The accused maintained that he could recall the complainant telling the nurses that she had sustained the injury herself, that she fell onto the knife herself. The father of the accused also arrived at the hospital. 22. At p 158:28ff the accused was taken to the issue of him running from police at the hospital. He maintained that he ran because he knew he was meant to be in the company of Ms Spinks. There was no evidence given by the accused at that point of the evidence about what if anything the police officer said to him at the time the foot pursuit commenced. However, this issue achieved some significance during the cross-examination of the accused and in the evidence of Ms Bellear-Mayers, one of the witnesses called on behalf of the accused. 23. The cross-examination of the accused was thorough in the extreme. The cross-examination of the accused by the Crown Prosecutor commences at page 169 of the transcript and that cross-examination concludes at page 284 of the transcript. 24. One of the many aspects of the cross examination was the understanding of the accused of his bail conditions and in particular the requirement that he be in the company of the complainant, Ms Spinks. He maintained his understanding was that he was to be with the complainant at all times he left the house (see for example p 176:11). 25. The cross examination continued as to when it was that the accused promised that he would not drop another pill - see pages 178ff of the transcript. It seems that initially the accused maintained that was said on Saturday and in the course of the cross-examination was changed to the Sunday. 26. There was a lengthy cross examination as to the plates and cutlery the accused was supposed to have used so far as the children's food was concerned. It would seem (see generally p 188-9) that the children were not going to use the knives that are depicted in the photographs within exhibit D. 27. As to the events closer to the point in time where the complainant sustained injury, the accused maintained that he still had the two knives and two forks in his hands even though the complainant had left to take out the rubbish (see p 197). The accused confirmed – page 198 – that one minute the complainant is saying, "Fuck the kids. They can starve" and very soon thereafter she is remonstrating with the accused about him dropping the tablet and possibly have killed one of the children. 28. There was also considerable cross examination as to the motions of both the accused and the complainant in the immediate lead up to the point of time at which the complainant was injured. The accused maintained his position as to what he initially described. 29. At the beginning of the evidence on 20 April 2022 the Crown Prosecutor took the accused to the events at the hospital. The accused agreed that he remembered seeing the closed-circuit television footage of the complainant and himself being at the hospital, but he found it distressing. He agreed that the time stamp on the photographs contained within the exhibit was correct. Soon thereafter the evidence for that day stopped essentially, as I understood the situation, because of the mental health of the accused. 30. That then takes the matter to the recommencement of the evidence of the accused at the Wagga Wagga District Court on 11 July 2022. It is appropriate that I record that before any further evidence was called on that date I enquired of the parties as to whether there was any issue so far as the delay is concerned. At pages 225 and 226 of the transcript is recorded that neither party had an issue, nor did any party wish to make any application. The matter then proceeded. 31. Initially the accused was taken to what occurred at the emergency department of the Royal Prince Alfred Hospital. The accused said he did not remember any the details of what he said to nursing staff at the counter. I understood the evidence of the accused at one point to be that he did enquire of the complainant as to what she was going to say to the nurses. There appeared to be some uncertainty in the mind of the accused as to when that conversation was had between him and the complainant. At p 231:18 it was put to the accused that he said, "What are you going to say to the nurses?" and the complainant replied, "It was an accident". The answer by the accused was, "I don't think so but I don't know. I can't be sure. I can't remember what went on in the hospital." 32. A little later – see page 233 – the accused said he could not really remember whether the complainant told a nurse that there had been an accident where she fell over and the knife stabbed her. 33. Peter Chester, the father of the accused, and Teleah Harris arrived at the hospital. The closed-circuit television footage within exhibit G shows some of the interaction between the accused and his father. The accused was cross-examined about what he said to his father about the events in the unit at Cecil Street, Ashfield. The accused said he could not really remember in depth what he said to his father about the events. He then agreed that he did tell his father that he had accidentally hurt Chloe. 34. The Crown Prosecutor then moved to the topic of the accused running from police outside the hospital. It was put to the accused (p 237:44) that he was running from the police because he was worried about what happened at the unit. The accused replied that he was not worried about what happened in the unit he was worried about his bail conditions. A little earlier in the evidence the accused maintained that police called out his name when they first spoke to him. This is an issue that also achieved some notoriety in the course of the hearing of the evidence. I note that the evidence of the police officers is that they called out, "stop mate". It was not suggested to the police in cross-examination that they called out his name. 35. This issue was raised with counsel for the accused and the closing addresses. Counsel became a little animated when this issue was raised with her, and in particular the lack of cross examination of the police officers to that effect. Counsel was quick to remind the court of the evidence of the officers that they had received updates via broadcast over the police radio. It was put that the police could well have been aware of the name of the accused. 36. In this regard I note the evidence of Ms Bellear-Mayers, one of the witnesses for the accused. She also made her way to the Royal Prince Alfred Hospital on the evening of 3 November 2019. She maintained – see page 324 of the transcript – that she saw the police jump out of the vehicle, and in particular she heard them say "John". 37. In in his closing address the Crown Prosecutor dealt with this by going to the timestamp of the closed-circuit television footage and the still photographs taken from that footage. Page 27 of exhibit F in the trial is time stamped 6.55:21 pm and shows Ms Bellear-Mayers arriving at the hospital. 38. The difficulty with this for the accused and Ms Bellear-Mayers is that it is clear from exhibit K, which is the video from the body worn camera of Constable Rushford, that the accused had been apprehended by police well before 6.55:21 PM. I reject the suggestion that the police officers called out the name of the accused. 39. Returning to the cross examination, the Crown Prosecutor in considerable detail took the accused through the conditions of bail to which the accused was subject. The accused maintained that he was under the impression it was a condition of his bail that he had to be in the company of Chloe Spinks at all times – see p 245:09ff. I note that this also accords with the evidence of Ms Spinks as to her understanding of the bail conditions to which the accused was subject. 40. The cross examination continued on the issue of what the Crown maintains are lies going to the consciousness of guilt by the accused. The accused agreed (p 247:36ff) that told the police soon after his arrest at the Oval that his wife was in hospital because she fell over. He maintained he did not remember telling police that she fell over with a knife. Part of the recording in exhibit K was played to the accused and the accused agreed that he told police that she fell over with a knife and that she was holding a knife. 41. The cross examination continued (page 248) that the accused told police that Chloe was in the kitchen at the sink moving dishes and that he did not know what made her grab the knife. The accused conceded (page 249) that that was completely different to what he had told the court. It was put to the accused that the reason he told the officer that Chloe fell over with a knife is because he thought that that is what Chloe was going to say to the nurses. The accused said that that suggestion is not correct. 42. Next, the Crown Prosecutor asked the accused in cross-examination about the knives. The accused was reminded that in the exchange with police recorded in exhibit K he said, "I don't know where the knife is." The accused conceded that that was a lie. He conceded he had put the knives in the car. 43. The Crown Prosecutor then asked the accused about the trip to the hospital which was recorded by body camera worn by Constable Treacy, and which is exhibit Q in the trial. On the way to St Vincent's Hospital the accused told the officer that Chloe had cut herself with a knife. The account continued that she cut herself once with a knife and he was the only person that saw her doing that. The accused agreed that that was not a truthful version. 44. Further, in the back of the ambulance the accused told the officer that the complainant had hit him and she had abused him mentally. It was put to the accused (p 254:21), "So, you were telling this officer that Chloe had cut herself because she was upset and taking it out on herself, correct?" The accused replied, "It certainly looks that way, yeah". A little later the accused agreed that Chloe was not holding a knife and stabbed. A little further on in the cross examination, the accused also agreed that he and Chloe had been arguing about the accused stressing her out, taking the car and not coming home. He agreed there was a few arguments. 45. The cross examination then went to the issue of the accused dropping that tablet. I note that in evidence in chief while giving evidence in Sydney in April 2022 the accused maintained it was a Zyprexa tablet that he dropped. In answer to question by me at p 258:42 the accused maintained was a Valium tablets. Ultimately not much can be drawn from this difference. 46. In cross-examination the accused was asked about that 2015 phone call which is within Exhibit 2. Initially the accused agreed it was made in 2015 but then said he did not know when it was made but it was made sometime around before the child Amira was born. The child's birthday is 24 June 2016. The particular issue I have with the accused and some of the witnesses for the accused so far as that phone call is concerned is that it must've been well known to them that the call was made some years before the weekend of 2 and 3 November 2019. It is plain enough to me that the accused was at least prepared to acquiesce in his counsel believing that call was made on 2 November 2019. 47. At p 265:25 the Crown Prosecutor put to the accused, "I suggest you used a lot of force causing the knife to go through into her body?" The accused answered, "Disagree and not true". One of the more substantial difficulties faced by the Crown in this case is the dearth of medical evidence so far as the mechanics of the infliction of the wound sustained by the complainant is concerned. As I observed in the course of taking final addresses, there was no evidence led from Dr Royle as to the degree of force that would have been necessary to inflict the wound. In any event Dr Royle was not one of the medical practitioners who actively treated the complainant while she was in hospital. The fact remains as the tribunal of fact I simply am unable to determine the degree of force or for that matter the precise mechanics of how that wound was inflicted on the complainant. 48. It was then suggested to the accused that, "… At the very least you flung the knife at her realising that she may suffer a real injury?" The accused queried the question and the Crown Prosecutor then asked, "I suggest that you struck out at her with a knife, and realising that at least it was possible that she would suffer serious injury to her upper left chest?" The accused replied, "No. Not true". 49. Later – see page 266, 267 – it was put to the accused that he was lying to police at the time of his arrest about suffering chest pains and that he was pretending to be confused when police arrested him. I understood the accused to disagree with the suggestions put to him. 50. The accused was then cross-examined in some detail about precisely what occurred at the time the complainant was injured. It was put to the accused that the complainant did not hit him. The accused was quite clear that she did hit him. The accused was then taken to what he said in his evidence in chief (see p 269). It was then put to the accused person in the description he gave, nowhere did he say that the complainant actually struck him. He answered, "I probably didn't get to say it or no one asked, but Chloe hit me. That's the truth. That's the truth. Chloe hit me". 51. It was put to the accused that at no stage did he obtain two knives and two forks from the cutlery drawer in order to prepare for dinner. The accused disagreed with that. A little later in cross-examination (see p 274ff), as he was required to do, the Crown Prosecutor put the version of the complainant to the accused. Unsurprisingly, essentially the accused maintained his position. 52. During the evidence in chief it was led from the accused that he had not been charged with any domestic violence offence. I presumed at the time that counsel for the accused was going to ask for some limited character type direction. Ms Rowan made it clear in her closing address that that was not sought. That is hardly surprising given the cross examination of the accused as to the matters of violence that are on his record. 53. While the Crown Prosecutor was putting what in shorthand might be referred to as the Brown v Dunn type questions to the accused, it was put (p 276:06) "On your version, she says fuck the kids, they can starve." The accused answered, "Yeah, that's the truth. That's my truth. Yeah". As the tribunal of fact I am concerned about the expression, "That's my truth". It occurs to me the only reasonable interpretation that can be placed on those words in the circumstances is that that is what the accused is maintaining is the truth. Potentially there are issues relating to the credit of the accused. The answer was given by the accused in the course of a series of questions where the Crown Prosecutor was putting the version of the complainant to the accused. 54. The cross-examination also included extensive cross examination on the plates allegedly used in the unit at Cecil Street Ashfield on the evening of 3 November 2019. In my view nothing much turns on this, given the photographs of the kitchen, and in particular the sink and what is on the sink as previously discussed. The photographs of the sink and what is on the sink in my view lead to a conclusion that most of the dishes and utensils that had been used by the complainant in the preparation of the meal were washed some time prior to the complainant and the accused leaving the unit and going to the hospital. 55. Under re-examination the accused confirmed that he ran from police because of his bail conditions. Further, in re-examination the accused was taken to the lies he told police about the knives. When asked why he lied to the police (p 286) (that is, about the knives) the accused said that Chloe said that that was what she was going to say and she told him to put the knives back in the car. It is the evidence of the accused the complainant told him to put the knives back in the car as she was concerned about the authorities removing the children from them. Impression of the accused as a witness 1. That completes the summary of the evidence of the accused. When assessing the accuse as a witness it must be remembered that the accused is facing a very serious charge which carries a very significant maximum penalty. It must also be remembered that the evidence was given piecemeal, although it was the accused that had absented himself part-way through the hearing in breach of his bail conditions. Moreover, there is the issue of the mental condition, amounting to a mental illness, which the accused suffers. In these circumstances it occurs to me it would be quite inappropriate to make any particular adverse findings against the accused based on his demeanour in the witness box. 2. During the lengthy cross-examination (this is not meant as any criticism of the Crown Prosecutor, but rather an observation) the accused essentially maintained a calm demeanour and on the whole gave answers that were responsive. The accused was also giving evidence about events that occurred at least two and a half years before the hearing before me. That same issue must be taken into account when considering the complainant's evidence. However, one aspect of the events in that unit in Cecil Street on 3 November 2019 remain something of a mystery to me. When the complainant gave evidence, I was curious as to why no one thought to call an ambulance. That curiosity continued during the evidence of the accused. Neither party appears to have asked any questions relating to why ambulance was not called. 3. Whilst the cross-examination of the accused was underway during the hearing in April 2022 in Sydney, I made a note to the effect that the accused appeared to be consistently unsure, and was shifting around in his seat, appeared to be very nervous and was fidgeting. While I do not resile from those observations it occurs to me that what I said a little earlier in these reasons about taking into account the position in which the accused found himself into mental illnesses such that it would be inappropriate to be too critical of the accused by reason of his demeanour in the witness box. 4. However, the accused appeared to me to be generally unwilling to make any concession unless he was confronted with incontrovertible proof such as the recordings made by the various closed-circuit television cameras or body worn cameras. He also gave the impression from time to time as wanting to put the complainant in a bad light. The accused was not the most impressive witness I have ever seen, but he was far from the worst. Other witnesses called on behalf of the accused 1. On the morning of 12 July 2022 Karana Harris was called to give some evidence about the 2015 telephone call that is contained within Exhibit 2. Before continuing with the evidence counsel for the accused indicated that Ms Harris required a certificate pursuant to section 128 of the Evidence Act. That call was recorded on Ms Harris's telephone while she was travelling in the car with the accused. She said that she recorded that call because at the time she was going through a lot of domestic violence issues herself and that the complainant was constantly calling and harassing (see p 293:42ff). Under cross examination she said that she was holding the telephone at the time the call was recorded. She believed it was the complainant that called the accused. She maintained it was not the intention to "rile up Chloe" (p 297). 2. The witness could not remember whether she renamed the file under which the call was recorded. She said that she provided the recording of that call to her auntie Tamara, and she may have done that via an email. It was provided to auntie Tamara for reasons of preparation of the defence case in this trial. She conceded that Chloe was not informed that the call was being recorded. It was plain enough to me that Ms Harris and indeed auntie Tamara were very well aware that call was recorded some time in 2015. Auntie Tamara is a reference to Ms Bellear-Mayers upon whose evidence I have made comment earlier in these reasons. 3. Talea Harris, the youngest sister of the accused, then gave evidence. She went to the Royal Prince Albert Hospital on the evening of 3 November 2019. She also said that in the days leading up to that day the accused's mental health was not good. Once at the hospital she saw the accused who was talking to his father. During evidence she gave an account of seeing the accused earlier on in the day on 3 November 2019 while the accused was at his father's home. At the home of the accused's father, Ms Harris and the complainant made a meal, either brunch or lunch for those present. 4. The final witness called for the accused was Ms Bellear-Mayers. Her presentation in the witness box was robust bordering on the aggressive, particularly when she was challenged in the course of cross-examination. Overall, I was not very impressed with her as a witness. 5. At p 315:39 she was asked "Can you just tell the court how that came about please, that you came into possession of it?" This was of course a reference to the recording of the 2015 telephone call. She replied that some time ago the accused was represented by a different solicitor they were preparing the case and she told that solicitor that she understood there was a recording of that nature and she offered to get a copy. She got a copy and forwarded to the previous solicitor who acted for the accused. A little later she said she kept the recording for some time before forwarding that according. 6. For more abundant caution I wish to make it very plain that there is absolutely no criticism of the legal advisors of the accused and in particular counsel for the accused who did an excellent job in representing him. However, I am more than satisfied that the accused and the witnesses for the accused were initially more than prepared to have counsel for the accused and indeed the court believe that the telephone call was made on the weekend of 2 and 3 November 2019. 7. I have already dealt with the evidence of Ms Bellear-Mayers on the issue of what she said she heard at the time the accused ran from police outside the Royal Prince Alfred Hospital. At the risk of repetition, clearly enough given the objective evidence that is contained within exhibit K, that is the body worn camera footage from Constable Rushford, Ms Bellear-Mayers simply could not have seen the accused run from police, nor could she have heard what she said she heard so far as police calling out the name of the accused. This is sufficient in my view for me to disregard her evidence. 8. Ms Bellear-Mayers became particularly robust, if not aggressive when answering questions by the Crown Prosecutor as to her not making a statement to investigating police. Given what I have already said in the paragraph immediately above where there is any difference between the evidence of the police officers concerned in particular Constable Hennon as to why it was that she did not make a statement I accept unequivocally the evidence of the police officers. Addresses of counsel and issues arising 1. the Crown Prosecutor made available to the court a document entitled circumstances/inferences relied upon by the Crown which became MFI 11 to assist the court during the course of the delivery of his final address. 2. Earlier in these reasons I set out under the heading circumstantial evidence what I understood the Crown relied upon to go to the specific intent to cause grievous bodily harm. The Crown correctly submits that the knife is a substantial weapon and it appears to have a sharp blade. The blade is some 11 or so centimetres in length. The wound is to the upper left chest of the complainant. According to the medical records, see exhibit N (p 43 of that exhibit) and 90:16 the wind at a vertical orientation. As the Crown Prosecutor submitted that is consistent with a stabbing motion with the accused facing the complainant. I also observe that it is to some extent inconsistent with the version given by the accused, that is the complainant closing in on him while he was holding the knives. 3. Further, (p 90:27) wound go through the skin, the fatty tissue just under the skin and through the muscle underlying on the front of the chest wall, the pectoralis major. The wound also caused a small pneumothorax, which is the presence of air between the lung and internal chest wall. As to the depth of the wound at page 3 of exhibit N wound is recorded as being a 8 cm wound penetrating through subcutaneous tissue. The depth of 8 cm is also recorded on page 16. However page 17 there is a notation to the effect of 5 cm vertical wound inferior to left clavicle. 4. Exhibit O is the operation report prepared by a Dr Benjamin Robinson however it seems the surgical procedure was conducted by Dr James Farag assisted by Dr Charis Tan. Under the heading operative findings the notation is, "4 cm laceration, extending through pectoralis major to anterior chest wall with out entering left hemothorax." The report also sets out the wound was washed with normal say line a drain was inserted and the wound was sutured. 5. The Crown submits the court would find as a matter of common sense considerable force was required to inflict this type of wound. Again at the risk of repetition, there is no evidence from any treating or other medical practitioner going to the amount of force that would be required to inflict the wound. It occurs to me that the sharpness or otherwise of the blade would also be a relevant consideration, and likewise there is no evidence of that beyond perhaps the observations of the complainant and the accused. The complainant said that the knives were her sharpest knifes. 6. Clearly enough the wound was a relatively deep penetrating wound of sufficient depth and severity to cause that minor pneumothorax. So far as the force with which the knife was wielded it seems that essentially the best I could do is a finding beyond reasonable doubt that there was sufficient force to cause that injury. I am not able to make any findings as to the degree of force beyond that. I am not unfamiliar with dealing with matters in the criminal jurisdiction of this court arising out of stabbings. I have heard before him of expert evidence over many years of legal practice and sitting as a judicial officer relating to the degree of force required to inflict particular injuries. However, I note the decision of the High Court of Australia in Dasreef Pty Ltd v Harchaw (2011) 243 CLR 588; [2011] HCA 21 especially at [44]. As I understand that authority I am not able to use expert evidence given in other cases or my familiarity with that evidence to decide this issue in this case. 7. The Crown submits that the version given by the accused is implausible and illogical. The accused gave an account of the complainant and himself being in the kitchen in the unit in Cecil Street Ashfield. It seems there was some type of disagreement or argument about the food the complainant was preparing although I reject the two types of schnitzel being prepared. The accused gave an account of holding two knives and two forks tightly in his palms with the points or tips of the blades of the knives pointing towards the complainant. The Crown submits (see page 3 of MFI 11) that although the accused is firmly holding both knives by the handles pointed in the same direction, only one knife stabs the complainant. Clearly enough the stab wound that I have described a little earlier in these reasons was inflicted with only one knife however upon closer analysis of the medical records within exhibit N this issue may not be as clear-cut as it superficially may appear. 8. The Crown argues that the complainant was struck more than once, which is consistent with an intent to "cause a very serious injury (as opposed to an accident)". In that regard the Crown relies upon the evidence in chief of the complainant (p 10:46) that she felt two or three hard punches to her chest. Under cross-examination (p 50:50) the complainant said she had two puncture marks and one big mark. It is probably as well to set out the relevant portion of the cross examination at that point of the evidence: (commencing page 50 line 36) Q. And the truth of the matter is that you moved towards him, he's moved toward you and there was a single incident; is that right? A: No, that is not correct. Q. Is it because you say he punched you two or three times? A. I turned around and he had punched my chest two or three times. Q. You're just making that up, aren't you, Miss Spinks? A. I beg your pardon? Q. I suggest – – A. How am I making it up when I have a stab wound in my chest? Q. Do you have two or three stab wounds in your chest? A. I have two little puncture marks and one big mark (to p 51) Q. Did you tell them at the hospital that he punched you two or three times? A. No, I did not. Q. Did you tell the police when you did your DVEC interview, that he punched you two or three times? A. No Q. When you did a statement two weeks later did you say anything about him punching you two or three times? A. No … Q Did you tell him (reference to the Crown Prosecutor) he punched you two or three times? A. No Q. In fact the first time you said that was on Tuesday? A. On Tuesday? Q. When you gave your evidence on Tuesday, that's the first time that you said, "he punched me two or three times". A. I said it felt like a punch not that he did punch me. I felt a punch and I looked down and there was a stab mark. … (p. 51:44) Q. That is the first time that you've ever said anything about two or three punches? A. I didn't mean that he physically punched me. It felt like that. It felt like that, and then I looked down and there was a big hole in my chest. Q. Miss Spinks, it's the first time you suggested that there was two or three blows? (to p 52) A. It was not a punch. It was not a punch. Q. There was a single movement towards your shoulder? A single one; not to all three. One? A. Towards my chest – towards my chest, not my shoulder, thank you. My chest. … Q. Single blow; that what I'm saying. Not two or three; one? A. No. …Q. what is correct? Are you saying now that there's two or three blows, or are you just saying there's blows? A. I'm saying there was more than one because there were two little puncture marks, and I set it to Detective Keegan Hennan as well. 1. Returning to exhibit N, and in particular page 20 of that exhibit there is a notation, "she reports that she is unsure how many times she was stabbed (? 2 ? 3)" but it was confined to the upper left chest. There is a further notation, "no other injuries and she remembers all of the events". The complainant has always maintained that she was struck more than once. Given the uncertainties that arise when the contents of exhibit N are examined in detail, with which I will deal in more detail when dealing with Ms Rowan's submissions, this is a particular issue for the Crown. 2. The Crown also submits that the physical evidence at the unit 2/ 20 Cecil Street Ashfield is inconsistent with the version given by the accused. In particular, the Crown submission on this aspect of the case goes to the type of plates about which the accused gave evidence of preparing food for the children. The submission by the Crown is that no such plates can be seen in the photographs contained within exhibit C. Doing the best I can going to photographs on pages 11 to 19 inclusive of that exhibit there is no obvious plate or plates with divisions about which the accused gave evidence. However, there are plastic plates or at least what appears to be plastic plates within those photographs. Ultimately, I'm not persuaded that this issue of what plates are where or whether they exist is not going to be decisive of any particular issue that I need to determine. 3. Further to this issue I note the Crown relies upon the evidence of the accused given at pages 279 to 280 of the trial transcript as to no one cleaning up or tidying up the unit before they left to go to the hospital. However, as I have previously observed in the course of these reasons, it is tolerably plain from the appearance of the dishes on the sink, all of which seem to have been washed and left to drain, that somebody - and clearly it was the complainant - washed or cleaned those dishes. This is quite consistent with the account given by both the complainant and the accused. 4. The next issue raised by the Crown within MFI 11 is the actions of the accused in taking the knives away from the unit in Cecil Street. The Crown case is that this is evidence of an attempt to conceal the weapon used in the incident. Exhibit M in the trial is the body worn camera footage of Constable Scott. That is recorded while the accused is at the oval. He told police he did not know the whereabouts of the knife. 5. The accused also maintains that the complainant told him to secrete the knives when they are at the hospital. The portion of the evidence upon which the Crown relies to ground the submission is found at page 156 line 44 and following the transcript. The evidence is merely that the complainant told the accused to put the knives back in the car. 6. At various points of exhibit N, that is the medical records of the complainant, it is clear enough the complainant talks of being stabbed with a knife. The description she gives of the knife is generally consistent. 7. Despite the cross-examination I cannot find any part of the evidence where it is suggested by the Crown Prosecutor to the accused that he put those knives in the vehicle to secrete them and remove them from the scene of the unit in Cecil Street. 8. The next issue set out within MFI 11 is the issue of complaint, with which I have dealt earlier in these reasons. The complaint to Ms Bellear-Mayers is perhaps arguably not necessarily inconsistent with the case for the accused (acknowledging the accused does not bear any onus). However, the complaint made is that "John stabbed me", not "John accidentally stabbed me". As the tribunal of fact what I find telling about that call is that the accused makes no attempt to intervene, or interject, or explain. As the Crown submits the accused makes no attempt to contradict the complainant. 9. Undoubtedly the complainant was distressed at the hospital. Given the injury she had sustained that is hardly surprising. The distress which was obviously being suffered by the complainant can be explained by the number of factors. 10. The issue of flight as consciousness of guilt was something to which both parties devoted considerable attention. Earlier in these reasons I have set out the evidence upon which the Crown relies, in particular the accused fleeing from police when he first saw them and when they first called out to him outside the hospital. A lengthy and somewhat dramatic foot pursuit followed with an even more dramatic arrest. 11. The accused has always maintained that he ran from police because he was concerned about breaching his bail conditions. The complainant herself gave evidence that she was of the understanding that the accused was obliged to be with her if he were outside the premises in Cecil Street in Ashfield. 12. Without being critical of the complainant she did not impress me as being a "shrinking violet". The complainant adopted a somewhat robust manner with counsel for the accused, particularly when she was challenged. There is also the demeanour of the complainant in that phone call recorded in 2015. Although not the subject of evidence I have little doubt that the complainant would not have been backward in coming forward and reminding the accused of his bail conditions. 13. In the course of taking final addresses, I raised with Ms Rowan the issue that the accused apparently was not concerned about breaching his bail conditions by leaving the unit in Cecil Street on Saturday 2 November and going to stay with his father. Ms Rowan answered with the submission that so far as the situation was which the accused was met outside the hospital, the difference was likelihood of detection. This submission has some real force in my view. 14. Given what the complainant said about her understanding of the bail conditions to which the accused was subject, which is essentially the same understanding that the accused had about those same conditions, I am not prepared to treat the accused fleeing from police as flight being consciousness of guilt. This is a conclusion I have reached after a great deal of consideration, and with some prevarication. I wish to make it plain there could be no reasonable criticism of the Crown for relying on flight as consciousness of guilt, nor could there be any reasonable criticism of the Crown devoting the attention to that issue that he did. But for the evidence of the complainant about her understanding of the bail conditions that decision may well have been different. 15. The Crown also relies on lies as consciousness of guilt. Early in these reasons I set out the relevant legal directions going to admission and acceptance of lies as consciousness of guilt. 16. There are two utterances by the accused, which the Crown says in this case are lies going to consciousness of guilt. The first is an account given to police shortly after he was apprehended as to how the complainant came about her injuries, and this includes the location of the knife. It is plain from the contents of exhibit K that the accused told police that the complainant sustained a wound after she fell over the holding the knife. The accused admitted – see pages 250, 251 – that what he told police about the location of the knife, namely that he did not know where the knife is was a lie. Given the way the evidence felt the accused had little choice it seems to me. 17. Further in regard to lies as consciousness of guilt the Crown also relies upon what the accused said to Constable Treacy in the rear of the ambulance on the way to St Vincent's Hospital. It is plain enough from exhibit Q (see page 4 of the transcript) that the accused told police that the complainant cut herself using a knife. At p 253:25 the accused admitted that this was not a truthful version. 18. It was put to the accused (p 251:11) that he told the lie to the police about the location of the knife because he did not want them to be able to investigate the stabbing. The accused said that that was not correct but he did not appear to give any other explanation for the lie. It may be that the lie was told out of panic, but the accused did not give that evidence. When analysed there is no satisfactory explanation for the lies told by the accused and accordingly at the tribunal of fact I will use them going to consciousness of guilt. However, as I made plain when I set out the legal directions much earlier in these reasons the lies by themselves cannot amount to proof beyond reasonable doubt. 19. There is perhaps another issue on this: that is the crime in which the accused was concerned about implicating himself is the primary count on the indictment with the statutory alternative relied upon by the Crown. Ultimately given the reliance by the Crown on circumstantial evidence in respect of both the primary and the statutory alternative it seems to me that potentially the lies told as consciousness of guilt can go to both the primary count in the alternative count. 20. I now go to the last issue in MFI 11, it is the outline of the circumstances and inferences relied upon by the Crown. The Crown sets out what I said to be circumstances demonstrating the accused's ongoing alertness, decision-making capacity and careful judgement. The Crown appropriately makes the point that there is no expert evidence or diagnosis of the mental illness suffered by the accused person. Whilst that is the case, it seems uncontroversial given the manner in which this case was conducted that the accused does suffer from a mental illness of some description. 21. The Crown relies in particular on the ability of the accused to drive the vehicle from Ashfield to the hospital; taking the conscious decision to take the knives from the unit; that he was acting in a calm cooperative and communicative fashion whilst at the Royal Prince Alfred Hospital while the complainant was waiting to be attended to by medical personnel; the fact he made no effort to seek medical attention himself; he made no complaint to any person about being unwell until he was arrested; and that he was able to communicate with his father at the hospital. 22. Further to this, the Crown submits that the accused in telling lies to the police, as I have found he did, demonstrates an ongoing capacity to reason and make decisions. The Crown also submits, correctly in my view that the various footage from body worn cameras indicates the accused was responsive when dealing with police officers. 23. The Crown Prosecutor carefully went into considerable detail in the course of his closing address and I have only purported to summarise the main issues that he raised in the course of that very thorough and comprehensive address. 24. Ms Rowan commenced her address on the afternoon of 13 July 2022 and continued her address the following morning. At the beginning of proceedings on 14 July 2022, I observed (page 410) that if there was an acquittal it would be on the basis of me as the tribunal of fact being unable to determine where the truth lies. Ms Rowan said, "That's in fact, that's precisely where I was going with your honour." Ms Rowan then concentrated the bulk of her efforts on the morning of 14 July 2022 to what were submitted were inconsistencies within the medical records relating to the complainant's treatment and stay in hospital on 3 November 2019 and following. 25. Earlier in these reasons I went through the contents of exhibit N in the trial in some detail. Going to that exhibit, on page 3 there is a notation of 18 cm wound; there does not appear to be a notation relating to any other injury. Going then to page 13 of that same exhibit, again there is only one wound noted with no other notations relating to other injuries. Ms Rowan then went to page 16 again, noting there was one laceration on the upper left chest wall with haematoma with nil other injuries visualised. Going then to page 17 of the exhibit, under a heading, "wound reviewed in ED" it is noted there was a 5 cm vertical wound inferior to left clavicle. 26. Counsel for the accused then addressed on the contents of page 20 of those records. Under a subheading, "history reviewed", it is noted, "whilst she was cooking dinner she turned towards him and heard and sound (sic) and looked down to find that he had stabbed her twice in the left chest with a kitchen knife". A few lines down there is a notation, quote she reports that she is unsure how many times she was stabbed (?2 ?3) but it was confined to the left upper chest, no other injuries and she remembers all of the events." 27. The court was then taken to page 21 of the records where a note is made, "surgical dressing noted left upper chest with a bellovac drain, to further small puncture wounds left upper chest, no bony tenderness, equal air entry no other bruising or abrasions." A little lower on the same page is a notation, "no additional injuries." 28. Then on page 25 of those records within the exhibit is a notation, "stabbing from steak knife to left sub and middle clavicle." Going then to page 26 under the heading, "assessment" there appears a notation, "Afebrile. Skin otherwise intact. No other injuries observed, no other injuries reported by patient no visual observations intact." 29. At page 27 of the notes there is a notation, "left-sided stab wound, stated husband has stabbed a patient with a kitchen knife during a psychotic episode." At page 43 of the notes under the heading, "trauma call" there appears a notation "M stabbed in the left upper chest by partner during DV. Knife is estimated to be 20 cm long, handle did not break off, knife not in situ on presentation, patient unsure of angle of entry". The next line reads, "one deep puncture wound to left chest under clavicle and level of rib 1". I understood the submission to be made in respect of those last entries noting that there was only one movement and one deep puncture wound. The submission continued that this is contrary to what the complainant maintained about being struck a number of times by the accused. Conclusions 1. Clearly enough there was an argument at the unit at 2/20 Cecil Street, Ashfield on the evening of 3 November 2019. The complainant sustained a significant stabbing injury. Clearly that injury was inflicted with one of the knives depicted in Exhibit D. Clearly the accused was holding that knife at the time the injury was inflicted. The real or live issue is then the mens rea of the accused. 2. It should be apparent from what I have said earlier in these remarks, I was at the time of hearing the matter and at the time of preparation of these reasons remain concerned about the lack of medical evidence as to the degree of force that would be required to inflict the stab wound on the complainant. Common sense would dictate that considerable force would have been required to penetrate the skin, the fatty tissue and leave a wound as deep as it was. However, there is no expert medical evidence as to what force would be required. That is sufficient reason in my view for me to entertain a reasonable doubt about the count on the indictment i.e. the count averring a specific intent to cause grievous bodily harm. 3. That concern set out in the paragraph immediately above is only exacerbated by a thorough examination of the entries within exhibit N. I appreciate that those records within exhibit N are created by medical personnel in a difficult situation where they are treating a patient who has presented with a traumatic injury. Those notes are made for the benefit of medical personnel "on the ground" who have to treat a patient. However, the observations ,notations and history given are not consistent with each other. Some of the accounts apparently given by the complainant are not consistent with her evidence in chief. 4. I do not resile from my observations about the complainant as a witness generally she was credible and there is no particular reason to reject her evidence. I certainly could not make any finding that she was not a witness of truth. 5. Of particular concern about the evidence of the accused was that part of his evidence where he said (p 276:07), "Yeah, that's the truth. That's my truth. Yeah". The expression, "that's my truth" is possibly indicative of either a false version the accused maintained or alternatively a version of which he has persuaded himself or has allowed himself to believe is in fact what occurred. However this was not pursued by the Crown and in all of the circumstances given the accused was never asked to explain what he meant it would be inappropriate to make any adverse finding against the accused because of that utterance. 6. For reasons given earlier I am satisfied the accused told lies and those lies go to a consciousness of guilt. However, with some little hesitation I will not deal with the evidence of flight as consciousness of guilt. 7. The accused and the witnesses called on behalf of the accused in my view at points in their evidence were intent on attempting to put the complainant in as poor a light as possible. The 2015 telephone call is but one example. At the risk of repetition, I am of the opinion that those responsible for providing that call to those who appear for the accused were quite content, as was the accused, to have counsel for the accused and those who instruct her believe and accept that call was made on the weekend of 2 and 3 November 2019 as opposed to 2015. For reasons given I do not accept Ms Bellear-Mayers as to what she said she saw and heard in the interaction between the accused and police outside the hospital. 8. None of the witnesses called on behalf of the accused could be accepted as independent witnesses. I was left very much with the impression they were doing what they could to assist the accused. 9. Given the nature of the injury and in particular the place of the injury and the substantial nature of that injury sustained by the complainant I remain very deeply suspicious that the wound was inflicted by way of an intentional act. 10. In all of the circumstances it occurs to me that the accused is perhaps fortunate that there is that issue in the complainant's evidence extracted at paragraph [199] of these reasons where the complainant is cross-examined about the number of blows struck by the accused. Further, the accused is perhaps fortunate so far as the inconsistency and confusion with the medical notes relating to the complainant are concerned. 11. I return to a direction I gave at an early stage of these reasons when dealing with the legal directions on the onus on burden of proof. That is, "It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him "not guilty". 12. That is the situation in which I find myself in this case. I come to this conclusion with some little unease but nevertheless in all of the circumstances I am of the opinion the appropriate verdict is one of acquittal. Orders 1. John Joseph Harris in respect of the charge on the indictment of wound with intent to cause grievous bodily harm I find you not guilty. In respect of the statutory alternative of reckless wounding I also find you not guilty. You are discharged in respect of the indictment presented at the Sydney District Court on 29 March 2022. ***** 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: 03 August 2022