Supreme Court New South Wales Medium Neutral Citation: R v JM (Verdict) [2024] NSWSC 773 Hearing dates: 20 May 2024, 21 May 2024, 22 May 2024, 23 May 2024, 24 May 2024, 27 May 2024, 28 May 2024, 29 May 2024, 30 May 2024, 31 May 2024 and written submissions dated 7 June 2024 and 11 June 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Count 1: the accused is not guilty of murder but guilty of manslaughter. Count 2: the accused is not guilty of wounding with intent to cause grievous bodily harm. Catchwords: CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made Legislation Cited: Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v JM [2024] NSWSC 584 Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191 R v Katarzynski [2002] NSWSC 613 R v Smith (1837) 8 C&P 173 Category: Procedural rulings Parties: Rex (Crown) JM (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Accused) File Number(s): 2022/155620 Publication restriction: Statutory Non-Publication Order re identity of the Accused or any person who was a child at the time of the events. The names of all persons subject to this order have been allocated pseudonyms. JUDGMENT 1. HIS HONOUR: On 20 May 2024, the trial of JM (the accused) commenced before me, sitting as a judge alone. 2. The accused was arraigned on an indictment charging him with an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) that is, an offence of murder, and a further offence contrary to s 33(1)(a) of the Crimes Act that being an offence of wounding with intent to cause grievous bodily harm. He pleaded not guilty to those offences. These are my reasons for my verdicts. 3. The accused is charged as follows: Count 1 On 29 May 2022, at Casino, in the State of New South Wales, he did murder Liam. Count 2 On 29 May 2022, at Casino, in the State of New South Wales, he did wound Hayden with intent to cause grievous bodily harm. 1. The accused entered a plea of not guilty to each charge. Trial by judge alone 1. Application for trial by judge alone was filed by the accused shortly before his trial was due to commence. The late application was precipitated by events which occurred very shortly before the application was made. The application was opposed, and the matter was heard before Button J in conformity with the Court's general practice that such applications be heard by a judge other than the allocated trial judge. On 16 May 2024, Button J granted leave for the late filing of the application and granted the application: see R v JM [2024] NSWSC 584. Background 1. On 29 May 2022, Liam (the deceased), then just 17 years old, was killed. It is not in dispute that the accused was responsible for the act or acts causing his death. Nor is it in dispute that the accused wounded Hayden very shortly prior to the killing of the deceased. Whether the accused is criminally responsible for those acts, and if so, to what extent, is what I am required to determine. 2. Much of the evidence was not in dispute. Indeed, the wounding, the killing and the events immediately preceding those acts were captured by a number of closed-circuit television (CCTV) cameras providing high-quality visual recordings from a variety of angles. In addition, footage taken by two mobile phones, and the audio from one of those phones was available to the Court. 3. It is convenient at this point to provide a brief overview before considering the evidence in detail. At the time of the killing the accused was 17 years old. He had previously been in a relationship with Julia. The relationship ended sometime in early 2022. Julia formed a new relationship with the deceased, although it appears Julia's interest in and contact with the accused continued until up until the events of 29 May 2022. It is not clear whether the deceased knew of Julia's continuing interest in the accused. There was evidence that he was aggrieved by his belief as to the accused's treatment of Julia during the accused's relationship with her. Whatever the reason, it was clear that the deceased exhibited a significant animus towards the accused. 4. On the afternoon of 29 May 2022, the accused was at the KFC restaurant at Casino with Adam and Richard. The deceased was at the apartment of Robert and Tim with a number of other friends.1 On learning of the accused's whereabouts, the deceased attended the KFC, determined to fight the accused and do him harm. The accused and his friends were in the process of leaving the restaurant when the deceased arrived and called the accused outside to fight. The deceased was wearing long pants with no shoes and no top. His hair was tied back. He was carrying a cap which obscured his left hand. His aggression, according to witnesses, was palpable. Adam left the indoor area of the restaurant followed by the accused and Richard. On exiting the restaurant there was a confrontation. The accused, Adam and Richard stood together. The deceased stood opposite them. There was a significant number of young people associated with the deceased in the immediate vicinity. 5. The deceased said that he wanted a "one on one" with the accused. The accused did not respond and in fact said very little during the encounter. Adam intervened on his behalf. Adam initially sought to dissuade the deceased from his purpose. Matters however escalated, leading to physical conflict between the deceased and Adam. Very early in that conflict it became apparent that the deceased was swinging what looked to be powerful punches with his left fist. He was no longer holding the cap over his left hand. His hand was gloved in a sock. It was later revealed that he was wearing knuckledusters on his left hand. Adam was holding a guitar capo in his right hand, which he deployed as an offensive weapon. 6. Following a number of significant round arm swings by the deceased with the knuckledusters, including at least one which connected in the area of Adam's neck, the accused rushed in, pushing the deceased backwards to the ground. The accused and Adam punched the deceased a number of times while he was on the ground. This appears to have provoked others to intervene. What followed was described, not inaccurately, as a melee. In the course of that melee the accused was, at one point, held on the ground while being punched and kicked by multiple persons. At some point during the time he was held down, the accused produced a knife. On regaining his feet, he swung the knife to his right, before turning and swinging it to the left. On the first swing he stabbed Hayden to his back. This act was the basis for count 2 on the indictment. The second swing appears to have connected with the forearm of Adam, resulting in a superficial injury which was not the subject of any charge. 7. Very shortly after those acts, the deceased approached, it appears, trying to reach the accused. The deceased swung his left fist, with the knuckledusters, narrowly missing the accused's head. The accused and the deceased then swung at each other, the deceased with the knuckledusters and the accused with the knife. The deceased sustained a knife wound to the neck, severing the jugular vein. He also sustained a knife wound to forearm. Dr Donovan Loots, the forensic pathologist who conducted the autopsy, confirmed the cause of death was the wound to the neck. Dr Loots was unable to say whether it was the result of one motion with the knife or two. 8. The deceased ran away from the melee before circling back and collapsing to the ground. He died at the scene. 9. The accused ran from the scene. He spoke to a number of close friends and relatives before being arrested. The Crown relied on his post offence conduct as probative of the accused's guilt of at least manslaughter. 10. The accused did not dispute his responsibility for the acts resulting in either the wounding of Hayden or the death of Liam. His case is that the Crown has not disproved that he was acting in self-defence or defence of another. He submits he is entitled to an acquittal with respect to both counts on this basis. There was no issue at trial that the evidentiary onus on the accused to raise self-defence was satisfied. Consequently, as discussed below, self-defence is to be excluded by the Crown. 11. In relation to the charge of murder, it is necessary to consider whether the Crown has proved that charge. If not, an alternative of manslaughter may be available by one of a number of routes. In the event the Crown fails to prove the accused intended to inflict grievous bodily harm, a verdict of manslaughter may be available based on unlawful and dangerous act. Alternatively, if an intention to inflict grievous bodily harm is proved, a verdict of manslaughter on the basis of excessive self-defence will be established if the Crown has failed to prove the accused did not believe his conduct was necessary in defence of himself or another but does prove the relevant act of the accused was not a reasonable response to the circumstances as he perceived them. As a further alternative, the accused submits, he is entitled to a verdict of manslaughter based on s 23A of the Crimes Act. That is on the basis that he was substantially impaired in a relevant capacity by a cognitive impairment which was so substantial as to warrant a verdict of manslaughter rather than murder. 12. Against this background it is helpful to consider the matters to be proved, and the directions by which I must abide in considering the evidence going to proof of those matters. The essential matters to be proved – count 1, murder and its alternatives Murder 1. To prove the offence of murder in count 1 on the indictment the Crown must prove: 1. The death of Liam; 2. That Liam's death was caused (hereafter used in the sense of "caused or substantially caused") by a voluntary, that is a deliberate, act or acts of the accused, JM; and 3. The act was done with the intention to kill or the intention to inflict grievous bodily harm; and 4. The act was not done in self-defence. 1. The death of Liam was not in dispute, nor that it was caused by the deliberate act of the accused. 2. While no emphasis was given to any issue of an intention to inflict grievous, or really serious, bodily harm it remains necessary to consider whether an inference as to that state of mind can be drawn to the requisite standard. Manslaughter – unlawful and dangerous act 1. To prove the offence of manslaughter based on an unlawful and dangerous act the Crown must prove: 1. The death of Liam; 2. That Liam's death was caused by a voluntary, that is a deliberate, act or acts of the accused, JM; and 3. The act was unlawful; and 4. The act was dangerous. 1. In the present context it is relevant to note that the act will not be unlawful if it was done in self-defence. An act is dangerous if, viewed objectively, it carries with it an appreciable risk of serious injury. Self-defence 1. The test for self-defence is provided in Division 3, Part 11 of the Crimes Act (ss 418-423). 2. If the Crown fails to prove both that: 1. The accused did not believe that his conduct causing death was necessary in order to defend himself; and 2. the conduct of the accused was not a reasonable response in the circumstances as he perceived them, the accused is entitled to be found not guilty of both murder and manslaughter. 1. If the Crown fails to prove the first of the above matters but does prove the second, the appropriate verdict will be manslaughter based on excessive self-defence (s 421). 2. If the Crown proves the first of those matters, the verdict will be guilty of murder, subject to the partial defence of substantial impairment. Manslaughter on the basis of substantial impairment. 1. The partial defence of manslaughter based on substantial impairment is provided by s 23A of the Crimes Act. In the present case there is evidence the accused suffers from a cognitive impairment within the definition in s 23A(8): For the purposes of this section, a person has a cognitive impairment if— (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (9) or for other reasons. 1. There was evidence, given by suitably qualified experts, that the accused suffers from Foetal Alcohol Spectrum Disorder (FASD), which is a condition specifically nominated in s 23A(9). Section 23A(1) of the Crimes Act provides: 23A Substantial impairment because of mental health impairment or cognitive impairment (1) A person who would otherwise be guilty of murder is not to be convicted of murder if— (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. . 1. The onus is on the accused on the balance of probabilities to establish he is not liable to be convicted of murder on the basis of substantial impairment. The essential matters to be proved - wounding with intent to inflict grievous bodily harm 1. In order to prove the offence of wounding with intent to cause grievous bodily harm charged in count 2, the Crown must prove: 1. Hayden was wounded; 2. The accused, by his deliberate act caused the wounding; 3. The accused, in causing the wounding, intended to cause grievous bodily harm. 4. The accused was not acting in self-defence. 1. Again the first two matters are not in dispute. 2. With respect to the third matter, the Crown will have proved the accused was not acting in self-defence if it is proved either that: 1. The accused did not believe that his conduct causing death was necessary in order to defend himself; or 2. the conduct of the accused was not a reasonable response in the circumstances as he perceived them. 1. In the event that the Crown fails to establish that the accused acted with an intent to cause grievous bodily harm, an alternative verdict of reckless wounding contrary to s 35 of the Crimes Act is available, subject to the proof of the elements of that offence. Directions 1. With the above understanding of the matters to be proved, I give myself the following directions. Presumption of innocence 1. The fundamental starting point is that the accused enters the courtroom with a presumption of innocence. He is not required to prove his innocence. The law and the tribunal of fact presume that he is innocent. Onus and standard of proof 1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. That onus remains on the Crown from beginning to end, subject only to the potential availability of the partial defence of substantial impairment. The accused bears no onus. He is not required to prove anything in the trial. He is not required to prove that he is innocent. 2. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction. 3. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that its important witnesses said in evidence. 4. The partial defence to the charge of murder based on substantial impairment arises only in the event that the Crown has satisfied its onus to the required standard of beyond reasonable doubt. The onus in relation to the partial defence is on the accused on the balance of probabilities. Separate counts 1. Each of the counts on the indictment is to be considered separately. The evidence as to each of the counts is not available with respect to the other count on the basis it establishes any tendency to act in a particular way or to have a particular state of mind. Essential elements 1. In considering each count separately, proof of that count is established only if each essential element is proved beyond reasonable doubt. Drawing inferences from direct evidence 1. I am able to, and will, draw inferences from the established evidence. A combination of facts or evidence may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence. Before drawing any such inference, I must take care to consider whether the inference can rationally be drawn and must consider any competing inferences that are available. When drawing inferences, there is no particular standard of proof to be applied to the individual items of evidence from which inferences are drawn, but the process is subject to the care to which I have referred. 2. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. If there are such intermediate facts, they must be established beyond reasonable doubt. 3. When it comes to drawing the ultimate inference of guilt, I must not draw such an inference unless it is the only reasonable inference, or the only reasonable hypothesis or conclusion, available on the evidence, such that I am satisfied beyond reasonable doubt. Silence of the accused 1. The accused did not give evidence in the trial. Subsequent to his arrest, and having received legal advice, the accused declined to participate in an interview with police. Consistent with the onus of proof, I draw no adverse inference against the accused based on his silence either on his arrest or at trial. The case is to be decided on the evidence before me. That evidence is to be considered without regard to any decision of the accused not to participate in an interview or give evidence. The demeanour of witnesses 1. I will have regard to both what a witness said as well as how they said it. However, as has been observed, it is better to scrutinise the evidence against objective facts than to purport to have some uncanny ability to divine a witness's honesty and reliability on the basis of how they look. [1] Character 1. At the time of his arrest in relation to the present charges, the accused had no criminal antecedents. As a result of his fingerprints being taken on his arrest, the accused was charged with offences of entering a building with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act and a charge of larceny, charged pursuant to s 117 of the Crimes Act. These charges were dismissed pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). No submission was made that this had the effect of an acquittal (which would raise issues of incontrovertibility). Rather, it was at least implicitly accepted that the inference was available that the accused was at least reasonably suspected of committing these offences, this providing the foundation for him to be charged. Ultimately, little turns on this given that the nature of the alleged offences is such that they do not impact on the character direction I would ultimately give myself. In the circumstances, it is unnecessary to recount the basis of the earlier charges other than to say that the conduct is likely to have been an opportunistic entering of the garage of a relatively close neighbour to the accused's family home in the early hours of 30 December 2021 and the taking of some property. It was opportunistic in the sense that it occurred at a time when the garage door was broken. 2. I accept that given the accused's prior good character, he is less likely to have engaged in the acts of unlawful violence alleged against him. Insofar as the accused made exculpatory statements after the events at the KFC, the circumstances in which those statements were made are so different from the dishonesty offences with which he was charged, I would not discount those exculpatory statements on the basis the accused was charged with crimes of dishonesty. To the contrary, given the accused's lack of prior convictions, (noting that the dismissed charges are no more than the evidence that he was reasonably suspected of those crimes), and the relationships of trust between the accused and the persons to whom he spoke to in the aftermath of the events of the afternoon of 29 May 2022, I accept that the accused's prior character is such as to make it more likely he told those persons the truth. Expert evidence 1. Evidence was given by a number of experts, Dr Loots, who is a forensic pathologist, Dr Susan Pulman, forensic psychologist and clinical neuropsychologist and Dr Richard Furst, forensic psychiatrist. A statement of Dr Martin Chase was tendered without objection. There was no challenge to the expertise of the any of these witnesses and their opinions based on that expertise can be accepted. Drs Pulman and Furst gave evidence in relation to similar issues. While there was a degree of difference with respect to their opinions as to the accused's functioning, their opinions were not wholly inconsistent. The evidence in more detail My approach to the evidence 1. The evidence in the Crown case consisted of evidence given by the officer in charge, Detective Senior Constable McKay; the accused's mother, Lucy, Ian, Anthony, John, Julia, Natalie, Hayden, Georgina Brown, David Kenny, Lee-Anne Keane, Lara, Noah, Tanya, Alexander, Daniel, Warren and Joel. In addition, the police statements of Therese, Nick, Richard, Robert, Jessica, Tim, Belinda, Paige and Wyatt were tendered. The report of Dr Pulman was tendered by the Crown and she was called by the Crown to give evidence. 2. The accused tendered a number of documentary exhibits through the cross-examination of Crown witnesses. He also tendered the reports of Dr Furst and called him to give evidence. 3. In the circumstances of the present case, it is unnecessary to recount the evidence as given by each witness. This is due to the substantial overlap between various witnesses and my preference for objective evidence such as is depicted in the CCTV, or evidence of intoxication revealed by blood analysis, over eyewitness evidence, where there is inconsistency. Where there is inconsistency, that inconsistency appears to be the product of a failing of memory. That is, it was not suggested, and I do not find, that any of the evidence was deliberately untruthful. Some parts of the eyewitness evidence are useful in supplementing the objective evidence and will be discussed where appropriate. In referring to the evidence of witnesses, unless otherwise stated, is generally the basis that the evidence can be accepted. While not recounting the evidence of each witness, I am mindful of the need to have regard to all the evidence, not only individually, but in the context of all the other evidence given at trial. The accused's background 1. Evidence of the accused's background was given by his foster mother, Lucy. In 2004 she took the accused into her care when he was just five weeks old. She was living in Queensland with her husband and had been involved in foster care for many years. She also took into her care the accused's siblings; his sister, Tina, whom she took into her care in 2005 at the age of 10 months, and the accused's brother, Parker, in 2006 when Parker was only days old. In addition, in 2005, she took two further young children, Alexander and his brother Joseph, into her care. The five children grew up as siblings. Alexander and the accused were particularly close, with Alexander referring to them growing up as twins. The children grew up as a family unit, referring to Lucy as "mum". Lucy's husband, and foster father to the children, died in 2007, leading Lucy to relocate to Casino. 2. Lucy had concerns in relation to the accused's development, and in particular with respect to the potential impact of his biological mother's drug and alcohol use during pregnancy. Lucy's concern in relation to the accused's potential FASD were at some point confirmed by a paediatrician, Dr Jackie Andrews. The accused was additionally diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD), anxiety, and selective mutism (albeit Lucy did not agree with the latter diagnosis). 3. The accused attended the Casino Christian School before moving to Casino High School in Year 10. Lucy said he was a quiet little boy and struggled at school. The accused received support for learning difficulties while undertaking mainstream schooling. He finished schooling in year 10 and started a course at TAFE. In 2021, the accused and Alexander both got jobs at the Meat Works in Casino. 4. Lucy said that while quiet, the accused did have friends, but was selective, and was confident when he was with his mates. This evidence appears consistent with what can be seen of the accused in the company of Adam and Richard at the KFC prior to the arrival of the deceased. [2] Expert evidence in relation to the accused Dr Pulman 1. Dr Pulman, a forensic psychologist and clinical neuropsychologist, was retained by the Crown. Her report dated 26 May 2023 was tendered. She had reviewed the report of the paediatrician, Dr Andrews, dated 11 September 2020, which confirmed the accused met the diagnostic criteria for FASD and ADHD. Additionally, she reviewed a placement review prepared by Sarah Armstrong dated 6 April 2021, which purported to identify several significant shortcomings in the parenting of the accused. Dr Pulman interviewed and I should say, which purported to identify several significant shortcomings in the parenting of the accused. Dr Pulman interviewed and assessed the accused in custody on 22 February 2023 and 5 April 2023. She gave evidence that the accused presented as having a limited vocabulary and difficulties with expressive language, as well as an anxious mood. She opined that the accused's thoughts were clear and logical and that there was no indication of any formal thought disorder. 2. Dr Pulman performed testing of the accused's intellectual functioning. The accused performed in the borderline range (fifth percentile) for verbal abstract reasoning (that is, equivalent to or above only five percent of his same-aged peers.) Conversely, in relation to non-verbal, perceptual reasoning, the accused was found to perform in the high average range, at the 77th percentile (performing better than 77 percent of his same-aged peers). Dr Pulman explained that such a difference in those two indices was clinically significant and "quite an abnormal profile as far as the difference between verbal and non-verbal skills are concerned". [3] The accused's attention and concentration fell in the borderline to low average range. His processing speed, at the 30th percentile, was average. Dr Pulman opined that the discrepancy between his processing and ability to understand verbal information "would present [the accused] with significant challenges from an academic standpoint." [4] 3. Dr Pulman said the accused suffers from a cognitive impairment within s 23A(8) of the Crimes Act. Dr Pulman said that, while the accused was impaired, he was nonetheless able to express that his actions were wrong and understood why he was in custody. [5] In cross-examination, Dr Pulman said that several of the accused's actions following the alleged offence, such as hiding under a truck, disposing of the knife, and saying to Noah, "I'm sorry bro" suggest that "he can understand right from wrong in [a] broad sense". [6] 4. Dr Pulman gave evidence that the accused experiences emotional dysregulation and impulsivity and has a reduced ability to control his actions, make reasoned decisions and consider the consequences of his behaviour. She told the Court that while the accused is certainly impaired, she was unsure "whether it meets the threshold for being substantial" in a legal sense. [7] Dr Furst 1. Dr Furst, a forensic psychiatrist, was retained by the accused. He assessed the accused in custody on 24 October 2022. Dr Furst had also reviewed the reports of Dr Andrews and Ms Armstrong. Dr Furst's two reports dated 21 November 2022 and 16 January 2024 were tendered. He confirmed that the accused meets the criteria for diagnoses of FASD, ADHD, learning difficulties and severe language delay. He opined that the accused may have an anxiety disorder and has a cognitive impairment by virtue of his FASD and associated "very low level of intellectual function and severe language/communication difficulties". [8] In cross-examination, he gave evidence that the accused experiences "significant clinical impairment and significant functional impairment". [9] Dr Furst gave evidence that the accused's language disorder would impact his ability to "talk his way out of the events" [10] and that he would be "tongue-tied at the best of times" and even more so when stressed or fearful. [11] 2. In relation to the defence of substantial impairment, Dr Furst opined that the accused's cognitive impairment "may well have contributed towards a loss of control at the time of the fatal stabbing". [12] 3. Dr Furst gave evidence that the accused had told him he felt scared for his life during the melee and that he had been scared when the deceased was around throughout May 2022. In cross-examination, counsel for the Crown put to Dr Furst that this claim was inconsistent with the accused having gone looking for the deceased after an altercation between the pair at Beef Week in Casino, however Dr Furst did not accept this suggestion. Dr Furst conceded that he "[could not] guarantee" that the accused's statement that he had been fearful for his life was not a post event rationalisation of his behaviour . [13] Dr Furst explained that anyone would have been anxious in the circumstances of the melee and would experience a "fight or flight" response [14] but that the accused's anxious tendences would have made him more fearful than the average person. He said, "the risk that [the accused] would … perceive would be a lot higher than a person without any such [anxious] tendencies". [15] In cross-examination, Dr Furst did not accept that the actions of the accused were indicative of an angry response that constituted an escalation of the incident. [16] The accused's relationship with Julia 1. Evidence of the accused's relationship with Julia was given, primarily by Lucy and Julia. Julia said that she and the accused dated for approximately three years, on and off. They met while attending Casino Christian College together. She moved to Casino High School followed by the accused. Lucy said there were difficulties in the relationship, particularly towards the end of 2021, leading to a breakup around March 2022. 2. After the breakup between the accused and Julia, Julia had what was described as a "relatively short" relationship with Patrick prior to her forming a relationship with the deceased about a month or two prior to his death. [17] Nonetheless, Julia continued to have contact with the accused. On 14 May 2022, just after midnight, Julia snuck into the accused's house to spend time with him [18] . On 16 May, Julia messaged the accused asking him to unblock her on Snapchat. After initially responding "I can't", the accused did so. [19] On 25 May, at approximately 9:26pm, Julia arranged to meet the accused, ultimately inviting him to climb through a window of her home at approximately 11:30pm. [20] When asked if she and the accused "still had feelings for each other and still were close", she said "yeah, from my side, anyway". [21] On 28 May 2022, Lucy sent a text message to the accused which read "[y]ou'd better not be back with Julia". [22] She sent this message because Talia had contacted her to tell her that she had received a message from Julia saying she was probably going to get back together with the accused. (Talia was, at the time the partner of Alexander.) Julia confirmed she had said this to Talia. It is not clear that the deceased was aware of the continuing relationship between the accused and Julia. Nothing turns on this however, given that, as I will discuss, whatever the reason, the deceased had a significant animus towards the accused. The accused's conflict with Joel 1. There was evidence of conflict between the accused and Joel, the brother of Julia. Joel said he saw the accused whilst driving on the evening of 27 May 2022 and "flipped him off", referring to an offensive gesture made with his finger. [23] The accused told his friend, Noah that Joel had, on what would have been 27 May 2022, motioned to him with his hand in the shape of a gun, mimicking shooting at him. Joel woke the next morning to find his car had been vandalised. The tyres had been slashed and abuse spray-painted on the body of the vehicle. The next day, 28 May 2022, the accused showed Noah a video depicting the acts of vandalism. The "selfie" nature of the video and its location on the accused's phone found an inference that the accused was responsible for the damage to the car. 2. The origins of this conflict were not revealed. Presumably it went deeper than Joel's gesture on 27 May 2022, given the otherwise disproportionate response. Whether Julia was on one side of this conflict or the other was also not revealed. There is no evidence that Joel was aligned with the deceased in such a way that the attack on his property might be regarded as an act of aggression towards the deceased. What is known is that the damage to the vehicle came to the attention of the deceased. Robert said the deceased raised the issue with him on the morning of 28 May 2022. More relevantly, the deceased raised it as one of his grievances when he confronted the accused on 29 May 2022. The deceased had, however, already made plain his pursuit of the accused prior to any incident with Joel's car. I regard the evidence of the damage to the car as of minimal relevance. While the evidence did establish the accused's possession of a knife, this is somewhat redundant given the absence of any issue as to this fact on 29 May 2022. The deceased's background and conduct leading up to his death Arrival in Casino 1. The deceased moved to Casino from Canberra in the months before his death. He formed a number of friendships with other young people and entered a romantic relationship with Julia which she said commenced a month or two before his death. As a result of that relationship, and things said to him by Julia, he formed a significant hostility towards the accused. 2. The deceased was working painting a house and was ultimately provided with accommodation in that house. He worked there with Mr Warren. Warren was considerably older than the deceased. He appeared to form a close relationship with him. He said that as a new person in town the deceased had "ruffled a few feathers" and as a result, had some concerns as to his safety. [24] The deceased told Warren that he was eating at McDonald's one day and was approached by some people who picked a fight with him. He had apparently triumphed in this fight but had concerns that there may be "payback". He said he was receiving abuse when walking past people. Warren said he spoke to the deceased about the measures he could take in self-defence and gave him a knife. The irresponsibility of that action, undertaken by a person many years older than the deceased, while ultimately not relevant to my task, is nonetheless remarkable. Warren described the knife as having a four to six inch blade and a decorative handle. It was similar to the knife visible in Exhibit 5. This is a picture taken at the home of Robert and Tim prior to the deceased leaving for the KFC on 29 May 2022 in which Julia is shown handling a knife which she said the deceased had brought with him. Warren said that while he had not seen any knuckledusters, the deceased had made him aware of them. The event at the ALDI 1. The first outward manifestation of the deceased's hostility towards the accused appears to have been on 2 May 2022. On that date, the deceased, having obtained the accused's phone number by, according to Julia, photographing the accused's contact details displayed on her phone, made a number of calls to the accused's phone. Further calls were made on 6 May 2022. Detective Senior Constable McKay gave evidence that the calls initially went unanswered but that on 6 May, just after 8pm there was a call that lasted for some minutes. [25] 2. The call on 6 May 2022 appears to have led to a "meeting" between the accused and the deceased near the ALDI store at Casino. Julia said the deceased had contacted the accused to arrange a fight with him. Julia said she went to the ALDI with the deceased. She said there was no-one else with them, although Joel did turn up later. Alexander said he attended with the accused. He said they were on the opposite side of the road to the deceased. He said there were "a few boys" with Liam but he could not make them out as they were some distance behind Liam. It appears the initial conversation involved the deceased and the accused identifying who the other was, apparently not having seen each other before. It seems the accused was unsure about who he was meeting. Alexander gave evidence that the accused thought the phone call may have been from Patrick. Alexander said the deceased wanted to fight the accused but that he, Alexander, told him they "were only here to have a chat, not to get into a physical altercation". [26] In cross-examination he agreed that the deceased responded by saying something to the effect of "I'm not here to talk. I want to fight". [27] Julia said her memory of the event was poor, but she did recall Alexander being with the accused and that the deceased "probably" said something like that. 3. Alexander said that the deceased did end up crossing the road to where he and the accused were standing but later gave evidence which, while equivocal, cast some doubt on that. There was no suggestion in the evidence of Julia that the deceased and accused ended up on the same side of the street. Alexander said that two Holden utility vehicles showed up, one of which was that of Joel, which, Alexander' evidence implied, had the effect of diffusing the situation. Julia confirmed that her brother arrived but said it was unconnected with the events. Joel was not asked about this event. Ultimately no physical violence ensued, it seems each side simply walking away. The event involving Patrick 1. On 9 May 2022 the deceased was again involved in an incident involving threatened violence to a former boyfriend of Julia. Tendered through Detective Senior Constable McKay was a COPS report (a record held in a police database) documenting an incident in which Patrick was chased and threatened by a group of approximately 12 young persons including the deceased and Robert. The COPS report indicated one of the young persons was in possession of a knife. Julia said she was there. She said it was not the deceased in possession of the knife and I accept there is no basis to conclude the contrary. She said that it "ended up just being [the deceased] running after him". [28] She also said that deceased had said he only wanted to speak to Patrick, but she did not know what his intentions were. When it was suggested that "it was clear … that if Lachlan caught Preston, he was going to fight him?", Julia said "[p]robably". [29] She agreed that the text messages from Patrick (which she received from the recipient as screenshots) made it clear he thought he was going to be beaten up. 2. When asked if she had told the accused about the incident involving Patrick on 9 May, Julia said, "I can't remember, but I'd say that I probably did". [30] This evidence struck me as honest. That is, whilst having no specific recollection of a conversation some two years in the past, Julia was effectively acknowledging it was something she was likely to have shared with the accused, presumably based on the nature of the event and the relationship between them. The event involving Brandon 1. On 15 May 2022, the deceased was involved in a violent altercation with another young person, Brandon. Julia said she was at the KFC with Liam and he and Brandon "were just looking at each other". [31] She said they both said, "what are you looking at" and "got pissed at each other and it fell into a fight" [32] the result of which was that "Lachlan beat Brandon up". [33] Julia said she thought "Brandon's eye socket was a bit messed up. Like, severely bruised". [34] There was no police report or call for an ambulance. On the other hand, the injuries were sufficient to prompt Julia's mother to send a photo to Julia, indicating that she did not want Julia associated with that level of violence. 2. Julia did not remember whether she had talked to the accused about this. When asked, she said "[p]ossibly". [35] When asked if she had spoken to Talia about this, she said "I think so. Maybe". [36] Given the relationships, this was clearly a route by which information may have reached the accused, although it is difficult to draw any positive conclusion in this regard. Other evidence of the deceased's possession of weapons and the relevance of such evidence more generally 1. As some of the evidence referred to above reveals, the deceased was not only from time to time in possession of weapons, he had a tendency to carry them with him. 2. A recording of a Facetime conversation between Julia and the deceased in which the deceased was in possession of a knife was recorded on Julia's phone. It appears to be a different knife to that depicted in Exhibit 5. 3. John was friendly with the deceased. He gave evidence the deceased came to his house on the evening of 27 May 2022 at which time he was in possession of a knife. He described it to police as a hunting knife, approximately 30 centimetres in length, including the handle. It is not clear whether this is the same knife as depicted in exhibit 5. 4. It is, additionally, clear that at Robert and Tim's apartment on 29 May 2022 the deceased was in possession of both a knife and knuckledusters. 5. While there was some emphasis placed on the deceased's propensity to possess weapons, including carrying them when away from his home, the evidence seems to me to be of limited use. It is not clear what the accused knew of any such propensity. Moreover, whatever the deceased's propensities, that he was armed with knuckledusters on 29 May is an undisputable fact. 6. If I were to assume the accused believed the deceased habitually armed himself with a knife, that belief, coupled with the accused's knowledge of the deceased's desire to cause him physical harm, might make the accused's possession of a knife on 29 May 2022 more understandable. What I have to decide, however, is not whether the accused's actions leading up to the fatal stabbing, including his possession of a knife, were reasonable. What must be decided is whether Crown has excluded the possibility the accused's recourse to, and use of, the knife was not done in self-defence (excessive or otherwise). The most that can be said is that, based on the evidence of the deceased's propensity to arm himself, I would not draw any inference that the accused's decision to carry a knife is evidence of a willingness to act other than in self-defence towards the deceased. 28 May 2022 - the events surrounding "Beef Week" 1. Beef Week is apparently a significant event for the town of Casino. On Saturday 28 May 2022 various streets were closed for the festivities. The accused attended with Noah. Richard said he met up with the accused and Noah there. The deceased was there with, at least, Nick and Robert. Robert recalled seeing Parker, the accused's younger brother. It appears the deceased spoke to Parker with a view to locating the accused. 2. Noah recalled the accused asking whether, if "I run off, would you think it's, like, weird". [37] It would appear likely from this evidence that the accused was concerned at the prospect of being confronted by the deceased, or, possibly, Joel. Either way, his plan appears to have been to run. In the event, the accused was approached by the deceased. According to Noah the deceased said to the accused "you shouldn't be out, what are you doing out" [38] and then invited the accused down an alleyway for a fight. Richard said a member of the other group, I infer the deceased, asked the accused where he was the night before, presumably based on a belief that the accused damaged Joel's car. Noah said the accused punched the deceased to the face and then ran. A similar account was given by Richard and Robert. Noah said, "there was a couple of them, and they just chased after him". [39] Robert in his statement confirmed that after Liam ran, he chased after them both. Richard said the deceased and three others chased the accused. It would appear that the accused was able to evade them. 3. Robert described the punch as "a shit punch" on the basis Liam did not react to it. [40] Wyatt, who joined the deceased group, said that Liam's face was red and he had a "big lump". [41] While little turns on it, I regard it as unlikely that there was any real injury to the deceased caused by the punch. No other witness described an injury. Wyatt's recollection is at odds with Robert's evidence. Robert was a close friend of the deceased and had the opportunity to observe him at the time and after the event. I do accept however, Wyatt's description of the deceased as being very angry. 4. Evidence from various sources establishes that the deceased was part of a group that went to the accused's house sometime shortly after the punching incident to which I have just referred. Exhibit 3 was a COPS entry which detailed a complaint by a neighbour to the police that, at around midday on 28 May, 15 to 20 people attended the accused's address, one carrying a hockey stick and the deceased (who the neighbour recognised) carrying a scooter. The male in possession of the hockey stick used it to hit the front of the accused's mother's car before using it to hit the front door. The neighbour armed herself with a baseball bat and went towards the group in an effort to have them disperse, which they did, but not before the deceased ran back and smashed the front window with the scooter. 5. Lucy was out of Casino at the time but received a phone call from her daughter Emma who was "crying and shouting and quite frightened". [42] Nick confirmed he was part of the group. Wyatt said there were "like, 30 more kids walking with us". [43] He put the event at about 1 pm, which is broadly consistent with other evidence. 6. Noah and Richard gave accounts of meeting up with the accused and then going to his house, where they observed that the living room window had been smashed. According to Richard, the neighbour who had intervened had spoken to the accused, and I interpolate, provided him with some detail of what had occurred. Even without further information, the accused was likely to have inferred that the deceased was responsible given the preceding events. Richard said that he, the accused, and Noah went back to the Beef Week area and walked around for about an hour before he left with Noah. [44] Noah also said that he, the accused and Richard went back to Beef Week but said that they were also with Parker, Kenneth and possibly others, and were looking for the deceased. He said that while they were looking for the deceased the accused said, "I'm ready". [45] He said they separated at some point but "regrouped" [46] at Adam's house. He said that, at that time, the accused showed him a knife he had tucked into his pants. Is an inference available that the accused was looking to assault the deceased, including, potentially by use of a knife? 1. The events leading up to and including 28 May 2022 are potentially relevant in founding an inference that the accused was motivated to assault the deceased, possibly including the use of a knife. Such a state of mind on 28 May 2022 may make it more likely that the accused acted with the same state of mind on 29 May 2022. [47] 2. It is at least possible, as submitted by the Crown, that the accused's reference to being "ready" was a reference to the accused having armed himself with a knife and, albeit more tenuously, being prepared to use it aggressively. I am unable, however, draw any inference that accused, with his companions, were actively looking for the deceased in order to assault him, with or without the use of a knife. 3. There was no evidence given, nor any suggestion made to Noah that the accused had enlisted him in any plan to assault the deceased, or even to back up the accused if the accused were do so. Richard's statement (while necessarily limited) was similarly silent. It would be surprising for the accused to enlist his companions in the plan and not give them any notice or warning as to what was to occur. Further, at least that morning, the accused had indicated that his plan was to run (although it must also be acknowledged that this may have been affected by the damage to the accused's house). 4. Conversely, the deceased had made clear some time earlier his desire to engage in a physical altercation with the accused. The accused had not reciprocated. Insofar as the accused punched the deceased, this was in the context of the deceased challenging the accused. It seems reasonably likely the punch was thrown by the accused to give himself something of a head start, noting that the accused was successful in getting away. This was consistent with his earlier stated plan to run. 5. There is no evidence that the accused was in any way jealous, or even concerned about the deceased's relationship with Julia. In this regard, while it seemed the accused was willing to continue some form of relationship with Julia, Julia's evidence tended to suggest that he was somewhat ambivalent (noting as I have said when asked of ongoing feelings between them she responded, "yeah, from my side, anyway"). In short, there is no evidence that the accused wanted to cause the deceased any harm. Rather, the evidence more strongly suggests the deceased presented a problem for the accused and the accused was looking for some way of dealing with that problem, not necessarily involving physical violence. 6. That the accused was, with others, actively looking for the deceased does not change my view that he was not looking for a violent confrontation. The accused knew the deceased was looking for him. There was, therefore, a potential advantage in looking for the deceased so as not to be taken by surprise, including, possibly, at a time when he might be very significantly outnumbered. In this latter regard it is important to note the number of persons that attended the accused's house that day, a fact I regard as likely to have been communicated to the accused. Understood in this way, that the accused would go, with others, possibly armed with a knife, to confront the deceased, does not support an inference that the accused was motivated to unlawfully use a knife to attack the deceased. While arming himself with a knife may not have been a mature response, having regard to the accused's age and circumstances, that lack of maturity is hardly surprising. 7. Ultimately, as discussed below, on 29 May 2022, during the initial parts of the confrontation, the accused did not engage with the deceased at all, but rather remained silent in the face of the deceased's aggression while Adam sought to dissuade him from his course, telling him "[d]on't be a hero". [48] As will be explained below the accused did not join the fight until it became clear that the deceased was using a weapon. Even then, the accused did not produce a knife. It was only when he was overpowered and being held on the ground and beaten that the accused produced the knife. This is inconsistent with an intention to use a knife against the deceased when the opportunity arose. 8. The result of the above analysis is that nothing in the events leading up to 29 May 2022 would allow me to draw an inference the accused was, at that time actively looking to assault the deceased, by the use of a knife or otherwise. Conversely, what is clear is the accused was aware of the deceased's intention to do him harm. The accused's post offence conduct 1. Before dealing with the critical events of 29 May including the acts of stabbing Hayden and the deceased, it is convenient to say something of the accused's conduct after the stabbings. The accused ran from the scene. He disposed of the knife. When Noah and Tanya learnt about what happened, they tried to contact the accused. 2. Noah said he spoke to the accused on the telephone and the accused said something like "I'm sorry bro" before hanging up. [49] Noah contacted the accused and asked him where he was. Noah said the accused directed him to a street. Noah drove there and after stopping, the accused emerged from some bushes and came to the car. He said that the accused described the events, stating Adam was fighting the deceased one-on-one and others jumped in. In cross examination, Noah clarified that the accused said Adam had tried to defend him by standing up to the deceased. Noah said that the accused said he swung the knife around. He thought the accused said that he was trying to scare them off with the knife. In cross examination Noah agreed that the accused said words to the effect of "it was self-defence". [50] Noah said the accused described himself as having curled up and Noah said the accused pulled himself into a ball to demonstrate. Noah said that at some stage the accused lifted his jumper to show his back where, Noah observed a red mark. He said that the deceased had knuckledusters in a sock. [51] He said that the accused also told him that Natalie was attacking him and that he saw the deceased "running around". It is not clear, but this is likely to be a reference to the deceased running towards the accused prior to anyone being stabbed. Noah said, "I think that's all he said". Noah told the accused he should go to the police and said the accused agreed but wanted to go with his CASPA worker. 3. Tanya, Noah's partner, was also present for the conversation between the accused and Noah described above. She said the accused was upset, crying and distressed. [52] Tanya said she could not really remember the words the accused used and that he said that "everyone started to jump in and he was scared" and that he "kind of just whipped out the knife, thinking it would threaten them, like, scare them away". [53] She said the accused told Noah that he loved him and "was sorry for what he had done". [54] In cross-examination she agreed the accused said he became involved in the fight and said something like "they all started jumping me"; "I couldn't get up so I reached for my knife" and "without thinking, I threw the knife around and hit whoever to get them off me". [55] She also said that the accused volunteered that he should turn himself in to the police, but would do so after contacting his CASPA worker. 4. Alexander heard from his (foster) mother, Lucy that the accused was involved in an incident at the KFC. He said he had several instances of contact with the accused. Alexander said the first time he spoke to him he asked him where he was, but the accused would not tell him. [56] Alexander said that he later heard a bang on his door, and the accused came running in and hid under the bed in the spare bedroom. Alexander said that when the accused came in, he asked him if he knew where the knife was and was told that he (the accused) had thrown the knife, "but he didn't tell me where it was". [57] Alexander said he went into the bedroom with his uncle but the accused told him to get out. 5. Daniel, whom the accused views as his uncle, went to the spare room and found the accused hiding under the bed. He said the accused told him "Uncle Daniel, I've stuffed up, I've done something bad". [58] Daniel said that he said something like "yes, I think you might [have], mate", to which he thought the accused said "yeah, I know I've done something wrong". [59] 6. The police attended and arrested the accused. Lucy attended the police station and spoke to the accused. She said that she told the accused she loved him, and that he seemed to be in shock. She said he told her "I didn't mean to hurt anybody, mum, I wanted to frighten them because I thought they were going to kill me". [60] When asked to again indicate what the accused said she said the accused said "I didn't mean to hurt anyone. I was frightened, I was just waving it around thinking that they would run away". [61] She confirmed that the "it" was a knife. She said that she may have referred to a knife and that the accused said he threw it in the river. 7. It is not possible to determine with any certainty the precise words used in any of these conversations. What is clear is that to Noah, Tanya and Lucy, the accused stressed that he was acting in self-defence and that this was based on a belief he was going to be killed. However, as will become apparent, the assertion that he was simply "waving the knife around" to scare the attackers, or in the belief they would run away, does not accurately reflect his actions. I pause at this stage to note that this was not (quite properly) relied on by the Crown as a consciousness of guilt lie. 8. It is also clear that the accused made some acknowledgement of wrongdoing (in a broad non-legal sense), firstly in his apology to Noah, and more explicitly in his statement to Daniel. His conduct in fleeing the scene and hiding under the bed are also, at least, capable of being regarded as an admission of some form of wrongdoing. It was submitted on behalf of the Crown that the accused's post offence conduct demonstrated a consciousness of guilt with respect to his responsibility for an unlawful killing. In making this submission, it was submitted that the evidence would not allow for any differentiation as between murder and manslaughter. That is, it was submitted that the evidence demonstrated a consciousness of guilt of at least manslaughter. (No submission was made as to the relevance of the evidence to count 2, the wounding of Hayden.) The difficulty with the Crown submission is that there is no dispute that the accused is responsible for the killing of Liam, a fact accepted by him in his statements made on 29 May 2022. Whether he is not guilty, or guilty of manslaughter or guilty of murder depends primarily on the issue of self-defence. Given this, a finding of manslaughter will involve the possibility the accused honestly believed his act resulting in death was necessary in self-defence. It is difficult to see how consciousness of guilt evidence can assist in differentiating between a finding of not guilty and a finding of (at least) manslaughter. That is, if the evidence is not capable of tending to disprove an honest belief in self-defence on the part of the accused it is difficult to see how it tends to prove guilt of any offence. 9. Quite apart from the issue raised above, some basic facts should be borne in mind. The accused was just 17 years old at the time of these events. In addition, he suffers the deficits referred to in the evidence of Dr Pulman and Dr Furst. On any view he was responsible for producing and then using a knife, resulting the death of Liam. In those circumstances, it is not surprising that he would regard himself as having done something "bad", or even something "wrong" and that he would seek to avoid, or at least postpone, having to deal with the police. Insofar as the accused's claims of simply "waving the knife around" understates the nature of his actions, I regard this evidence as relevant only to the credibility of the accused's assertions that he was acting in self-defence. The critical events on 29 May 2022 1. For the reasons given above, while the events leading up to 29 May 2022 provide some context to the critical events, the Crown case largely stands or falls on the evidence of what occurred that day. The events were captured by multiple different cameras, both CCTV (Exhibits D, E, F, H, J, M, O, P and Q) and mobile phones (Exhibit G, taken by Therese, and Exhibit N, taken by Brad Green). Only Exhibit G recorded sound. In the discussion below, I have, where convenient, indicated the camera which recorded the particular event. In relation to the critical part of the incident outside the KFC in the area of the disabled parking space, the discussion is based on an amalgam of what can be seen in Exhibits G, J, M, N, O, and P. Of these recordings, the footage in Exhibit M is the most significant. In addition to the recordings, I have had regard to the eye-witness evidence but only to the extent that such evidence is not inconsistent with the objective evidence. Events prior to the deceased attending the KFC 1. As noted above, the accused was at the KFC with Adam and Richard. The accused was wearing a bulky jacket with the hood up. Seated in an adjacent booth were Georgina Brown and her husband David Kenny. Both gave evidence of the accused and his friends behaving in a manner that drew attention to them. Ms Brown said they were behaving "like teenage boys". [62] Mr Kenny said they were acting a little foolishly, being "silly amongst themselves". [63] Video footage taken inside the KFC shows the accused with Adam and Richard. Their interactions appear unremarkable, talking, laughing, looking at phones and ultimately finishing their meal and tidying up, including the accused replacing a stool which had been knocked off its base. [64] 2. That afternoon, the deceased was at Tim's apartment . Tim, Robert, Julia, Nick, Hayden, Anthony and Ian were there with him. It is unnecessary to recount the evidence of the deceased's movements that day, other than to note that he consumed a quantity of alcohol. Dr Loots reported that his blood alcohol content (BAC) was measured at 0.134 grams per 100 millilitres. [65] This was, he said, reflective of the deceased's BAC at the time of death, as the body stops metabolising alcohol. As a result of the difference between the measure of the deceased's BAC and the equivalent measure in the vitreous humour Dr Loots was able to say that the accused's BAC was in the declining phase (rather than absorption or rising phase). He said that the effect of intoxication is greater in the declining phase due to a phenomenon called the Mellanby effect. 3. The evidence was generally to the effect that the deceased was in good spirits, enjoying the company of his friends. He was in possession of a knife while at Tim's apartment. At one stage, he gave it to Julia to look at. She can be seen handling it in a photograph taken by Ian. [66] The deceased apparently received word that the accused was at the KFC. There was conflicting evidence as to who told him, a matter that does not need to be resolved. At least one witness attributed it to Robert. Robert left the flat at some point to go to the KFC with Anthony and saw the accused there along with Adam and Richard. Robert said that the accused gave him a "death stare". 4. When the deceased learned of the accused's presence at the KFC, according to Julia, his mood changed. He asked his friends whether he should go to the KFC but ignored the advice that he should not. Julia said he was "drunk and angry". [67] According to Robert he said "I'm going to pump this cunt". [68] He left wearing pants, no shirt and with his hair tied into a bun. Robert said in his statement that this was something he did when he fought, Robert having seen him do this in two previous fights. [69] (Robert and Anthony left the KFC but on seeing the deceased heading there turned around and followed.) [70] The confrontation inside the KFC 1. The accused, Adam and Richard can be seen in Exhibit D to stand and ready themselves to leave the KFC when their attention appears to be drawn to the front doors (at 17:07:13). The deceased is at this point (as shown in other footage) just inside the front doors, speaking and gesticulating towards the accused and his group. Of the accused's group only Adam appears to be responding to him. Adam leads the way out of the restaurant, followed by the accused and Richard. 2. Exhibit E shows Natalie, Belinda, Therese, and Paige seated in a booth near the entry doors. Robert can be seen standing at the booth, speaking with them. Robert then leaves, as do the girls, about two minutes later (at 17:06). At around 17:07 Liam arrives. He is notable in that he is bare chested, in long pants with no shoes and carrying a cap in a manner that conceals his left hand. Robert, Natalie, Belinda, Therese and Paige follow him in, clearly interested in the events unfolding. The deceased points to the accused and gestures outside. The footage does not completely capture the event, not least due to the absence of sound. 3. Ms Brown who was in the restaurant said the deceased was pointing to the accused's table and said "[y]ou fucking dog cunt, outside." [71] She said she heard a response along the lines of "don't call my fucking friends a dog cunt, you dog cunt." [72] Mr Kenny's evidence was broadly similar, although he said the response was something like "[d]on't talk to my friends like that". [73] While Mr Kenny attributed that response to the accused, it was more likely that it was Adam that responded. Richard in his statement gave a different version of the exchange and said it was Adam who responded, which I accept. Ms Brown said the exchange was loud and aggressive, causing the atmosphere within the restaurant to change, making everyone there feel uneasy. Mr Kenny said the deceased was "aggressive, angry, and deadly serious. Definitely". [74] He said the level of unease was such that it was "flight/fight stuff". [75] 4. Lee-Anne Keane was also in the restaurant and gave similar evidence, including as to her level of discomfort caused by the entry of the deceased. She can be seen in Exhibit H sitting in the booth to the left of the booth occupied by Natalie, Belinda, Therese and Paige which was, in turn, to the left of the doors (and consequently just to the left of the deceased as he stood just inside the doors.) Ms Keane was particularly focused on what she described as the "black thing" wrapped around the deceased's left hand, which she said made her very anxious. [76] 5. Exhibit E shows Therese leaving the restaurant while the deceased was still gesticulating towards the accused's table. The footage shows the deceased leaving through the main doors at 17:07:34. He was followed by Belinda who walked out just ahead of Adam, the accused and Richard. Following them were Paige and Richard. Exhibit F comprises footage taken from a camera focused on the self-serve kiosk. The front doors are off camera to the left, capturing only the lower part of the deceased as he stands near the doors. The accused's table is at the other end of the shot. What can be seen is that, as Adam stands to leave, he pats the pocket on the right-hand side of his shorts with his right hand, and then, as he approaches the door, puts his hand in that pocket. The movements are not particularly obvious. No inference can be drawn that they would have been noticed by the accused. The deceased left through the main doors at 17:07:34. 6. Exhibits G and J capture the events immediately outside the doors. Exhibit G comprises footage taken from Therese's mobile phone. It is particularly useful in providing audio which is missing from the CCTV footage. Exhibit J is the CCTV taken from a camera covering a tiled area outside the doors leading into the restaurant. The camera is located to the left of the doors (as one would approach the restaurant.) It shows the forecourt, doors and an outdoor eating area to the right of the doors. The tiling covers an area extending at an angle of approximately 45 degrees from a point perhaps a metre from the left-hand side of the doors. There is a small garden bed, perhaps half a metre wide, providing a border between the entryway and a disabled parking space which is part of a larger car park (although Exhibit F does not capture the parking space). 7. Of significance in Exhibit J is that before any of the group exit the restaurant, Anthony, Hayden and Nick position themselves, in that order, along the edge of the tiles bordering the garden. Due to the setback from the doors and the angle, they were unlikely to be seen by a person leaving the restaurant until that person was very close to or through the front doors, although Nick did step forward to speak with Liam after Liam had left the restaurant and was waiting on the tiled area, his body turned to the doors to watch as others exited. Nick was likely in at least part of Adam's line of sight and possibly that of the accused at this point, before stepping back again to the edge of the tiles. The two groups line up outside 1. As Adam, the accused and Richard leave the restaurant, the various groups can be seen to essentially line up on two sides. [77] Anthony, Hayden and Nick are lined up along the edge of the tiles with the deceased standing almost directly in front of Nick, facing such that he is looking along a line almost parallel with the line along which the sliding doors open and close (and thus with his left shoulder turned partway towards Nick). Richard, the accused and Adam (in that order, extending from the doors) can be seen to position themselves immediately opposite Liam, perhaps between one and two metres away. Natalie is standing further away from the doors, and I estimate almost equidistant from the deceased and Adam (making very rough allowance for the effect of the camera angle). The significance of this is that whatever was thought when he left the indoor area, and whatever the intention of the others, the impression that was likely to have been given to the accused and his companions when they reached the outdoor area was that the deceased had arrived with at least Anthony, Hayden and Nick in support. 2. Within a relatively short time, Belinda and Paige position themselves in the outdoor dining area, sitting at and leaning on, respectively, a table to the right of Natalie and perhaps two metres to the left of Adam. More significantly, Robert moved from that area to a position behind and just to the left of Natalie. He can be seen to half lean and half sit on the protruding base of pole looking in the direction of the entry doors, such that he is essentially looking down the space between the opposing groups. By doing so, he made himself visible to the accused as well as Adam and Richard. While he was positioned further away than Anthony, Hayden and Nick, he was still no more than about three metres from each of the deceased and Adam. It would have been apparent to the accused that he and his friends were outnumbered by at least five to three. That analysis assumes that the accused was confident that his friends would assist. While Adam made it clear that he was there to support the accused (and ultimately did so physically) Richard, while standing next to the accused and observing, was silent through the exchange leading to the physical confrontation. As will be discussed, his conduct appears to have been commendably restrained and directed at de-escalating the situation. 3. With respect to the physical attributes of the key protagonists at this point, the deceased can be seen from the video to be lean and athletic in appearance. Dr Loots reported a body weight at autopsy of 56 kilograms. In evidence Dr Loots indicated that the deceased may have lost 3 kilograms in blood. This fits with my impression of a lean and athletic looking young man. The accused, in the footage appears to be slightly shorter than the deceased. His jacket obscures his frame, however later footage shows him to be lean, but also fit looking. Adam is taller and more solid in stature. 4. As noted above, the footage in Exhibit G includes audio. A transcript was also tendered as part of the exhibit. The recording begins from a point proximate to Adam leaving the inside area when the deceased says, while facing Adam as he walks out "I want a, I want a one on one with [JM] fair and square". Adam responds, "don't be a hero bro" followed by the deceased saying "I want a one on one with you". This was addressed to the accused as the accused walked through the doors behind Adam. 5. At that point, Adam, the accused and Richard moved into their positions discussed above opposite the deceased as the exchange continued as follows: "Adam: Don't be a hero bro. Liam: I'm not trying to be a hero bro, did you tell them what you did the other night let's go. Adam: What was your, oi, what was your fucking plan coming up here. Liam: Why did you dog shot me yesterday? Adam: Why did you come up to him? Liam: Why did you dog shot me yesterday? Adam: Why did you come up to him? Liam: beef week beef week yesterday you fucking punched me in the mouth cunt. You don't jump in. Adam: Why did you come up to him for? Liam: Cous I tried to fucking talk to him I said come up the laneway. Adam: What do you got to talk to him about? Liam: Huh? Adam: What do you got to talk to him about? Liam: Because you're a woman basher cunt. Adam: He didn't do nothing. Liam: You fucking bashed her cunt when you dated her for three years cunt. [JM]: No I didn't" 1. Notably that was the first and only thing said by the accused in the entire exchange. It was said at a much lower volume to that being used by the deceased and Adam and is barely audible on the recording. While nothing turns on the words themselves, I think it is likely he says "no I never" rather than "no I didn't". This is demonstrative of the lower volume used by the accused in contrast to the obviously raised (and escalating) volume of the deceased and Adam. The accused was still wearing his jacket with the hood up at this time, the bulk of which was likely to have obscured his vision to either side. That is to say, he had done nothing to suggest he was getting ready to engage in a fight. 2. The exchange between the deceased and Adam continued with Adam questioning the deceased as to why he was now doing something about his concerns. The volume became notably louder with each goading the other to strike first. Adam can be seen with his hand in his right pocket throughout. The remainder of the exchange was as follows: "Adam: He didn't do nothing, you didn't fucking nothing back then why are you doing something now? Liam: Huh? Why don't you do something about it then? Adam: Why are you doing something now cunt? Liam: Well then do something, do something, hit me, hit me. Adam: Well I don't think you really want me fucking hit you cunts. Liam: What are you going to do, what do you got? Adam: Why do you need to know? Liam: Huh ??? pull it out ??? Unknown female: Oh Natalie's filming it too. Adam: Why do you need to know, why don't you do something and find out? Liam: Nah I'm not going to do shit, do something to me. Adam: Yeah that's what I fucking [thought], fuck off cunt, fuck off cunt before you get fucking hurt. Liam: I'm not here to start shit but fucking do it, do it do it. Liam: I want a one on one with you mother fucker. I want to have a fair go bro one on one I'm not here to start shit with no one else, no one else, no one else. Adam: (yelling) Fucking now cunt, hey, hey cunt, I'll fucking, I'll go to gaol cunt, hey cunt." 1. While the exchange is generally unedifying some comments can be made. Insofar as the deceased claimed to want a "one on one" with the accused, "fair and square", he was clearly armed with knuckledusters and intending to use them in a fight against the accused who the deceased did not know to be armed. To this point the deceased had shown a repeated interest in fighting the accused. The accused had shown no reciprocal interest. The pointlessness, not to mention unlawfulness, of engaging in such violence as a means of resolving a grievance is obvious. More importantly, in terms of the issues to be resolved, the accused no doubt believed at this point that, for whatever reason, the deceased was intent on inflicting violence upon him. If not at that point, then very soon after the physical confrontation started, he would have been aware that the deceased was determined to do so by the use of knuckledusters. The physical confrontation up to the stabbing of Hayden 1. Around the time Adam uttered the last sentence I referred to, he took a step forward, causing the deceased to brace himself. [78] Adam then reached with his left hand and swung with his right, while almost simultaneously, the deceased reached out with his right hand and swung with his left. Adam at this time can be seen in the CCTV footage to have hold of an object in his right hand. A guitar capo was later found by police in the area where events unfolded. The capo was tendered. [79] Having regard to that object and what can be seen in the footage, I find that this was the item Adam was holding. While there was likely contact, neither punch appears to have had much effect. Each Adam and the deceased swung again with the same hand. The second swing by the deceased hit Adam towards the back of his head while, at about the same time, Adam's right fist connected with the deceased's head. Adam used his left fist and the deceased his right, each effectively fending off the other. The deceased threw what appears to have been a fast and likely powerful round arm punch, again with his left hand. Adam was able to avoid that punch by swaying backwards. The deceased, who was in the accused's line of sight, then appears to ready himself to take another swing with his left hand while Adam does the same with his right. As this occurred, the accused ran in, reaching the deceased just after the deceased's punch made contact with Adam to the area of the neck and the deceased was simultaneously hit to the side of his head. 2. Given the above sequence of events it is apparent the accused only intervened after the deceased had swung three times with his left hand and was readying himself for a fourth swing. The accused's intervention must be understood in the context of an awareness that the deceased was wearing knuckledusters on his left hand. That awareness is evident from his conversation with Noah later that day in which he reported to Noah that the deceased was armed with knuckledusters. While Adam was also armed, it is not clear that the accused was aware of this fact. Further, while the physical object was tendered, it is somewhat unclear as to how effective a weapon it would have been, although I accept it had the potential to cause some greater level of harm than a simple fist. While it is not necessary to decide, it appears that the accused's intervention at that point was likely the result of a concern that the deceased was swinging punches at his friend while armed with knuckledusters. 3. The accused ran in, swinging his right fist and driving the deceased backwards, through the small garden bed and out of the range of the "outdoor dining 2" camera. [80] Hayden, Natalie and Nick can all be seen to follow. Anthony steps in the opposite direction, toward Richard, and appears to warn him against becoming involved. Richard, I should observe, demonstrated no such intention. Anthony then turned and followed the others, followed by Richard. Richard stops at the garden bed and remains there after all the others have moved on. Paige, who was some distance away, follows last, walking behind the others, apparently into the carpark area. 4. The next stage of the event is captured by a camera which takes in the disabled car space (which was vacant) and the area behind it, including the driveway on the opposed side of the carpark from where cars can enter the drive through or the carpark. [81] The area of the disabled parking space is most easily described as if there was a car parked there, front first (ie the front towards the building). The driver's side of the space is in the foreground, with not all of that side in the frame. On the opposite, or passenger side of the parking space, the building extends from the front of the space (where the nose of a car would be) about halfway into the length of the car space, with a small strip covered with woodchips, perhaps no more than half a metre wide between the building and a kerb separating the building from the car space. The wall on the passenger side is met by another wall, perpendicular to it, and consequently running along the front of the car space, again with a gutter and a bark strip between the wall and the car space. The two walls thus create a negative corner at the front passenger side of the car space. The building also wraps around the car space at the at the front driver's side, but this appears to be a very short distance, with the result that the driver's side of the space essentially borders the garden that extends out from the building. Thus, the driver side of the car space runs alongside the tiled entry area separated by the strip of garden which provides border between the parking space and the tiled area in front of the entry doors. Throughout the exchange outside the entry doors to the KFC, the deceased had been facing with his back to that garden (and thus with his back to the driver's side of the parking space). 5. The footage in Exhibit M shows the accused, the deceased and Adam enter the frame at 17:08:58. The deceased rolls onto his back around where the bonnet of a parked car would be, with the accused and Adam standing above him. The accused is to the left of the frame and Adam to the right (placing them on the deceased's right and left respectively). The deceased is using his arms to protect his head and is clearly vulnerable at this point. The accused punched the deceased at least twice with his right fist to the head area while bent over the deceased. Adam also appears to land two punches to the deceased's head. The accused then stands with his fist raised about to deliver what looks like a significant punch downwards to the deceased. [82] It is not necessary to make any final determination as to the proportionality of the accused's response at this point, however, the accused appears to be acting aggressively rather than simply trying to stop the deceased punching his friend with the knuckledusters. 6. Before the accused was able to swing his further punch, Natalie, Robert and Nick can be seen to rush in, Natalie reaching him first. Therese follows behind Nick with Belinda behind her. Meanwhile, Adam steps back from the deceased, who was then able to get to his feet. The deceased and Adam continue to exchange blows in the area near the front of the car space. Adam has his back to the wall that runs along the front of the car space. The accused at this time was pushed or has retreated in the direction of the adjacent wall and has his back to it. 7. When Natalie reaches the accused, she grabs him by his jacket, moving him backwards. Robert and Nick then reach the accused. The accused continues to spin around, possibly throwing a punch at Robert and then stepping back such that his back is to the wall running along the passenger side of the carpark. At that point he is facing Robert, Nick and Natalie, who are directly in front of him. It is only at this point that the accused pulls the hood of his jacket off his head. The accused shapes up to fight but at the same time steps back towards the corner (the point where the two walls meet near the front passenger side of the parking space). The accused can be seen to look to his left where Adam and the deceased are fighting. Robert and Nick also step back, with the result that there appears to be something in the order of one to two metres between them and the accused. 8. While Robert and Nick step back, Natalie however steps forward and uses her right hand, (while still holding her mobile phone in her left hand), to reach forward to the top of the accused's head and take hold of his hair. The accused unsuccessfully tries to fend her away. He does not swing any punches at her. Natalie maintains her hold and the accused steps in towards her, before standing upright and bending forward in an apparent effort to separate himself from Natalie. The accused appears to throw her to the ground, Natalie landing heavily, before the accused then lands on top of her. It is, however, important at this point to interpose a part of Natalie's evidence. Natalie was clear that having taken hold of the accused's hair she maintained her grip. [83] The combination of this evidence and the footage in Exhibit M lead me to conclude that the most likely understanding of events at this point was that the accused was trying to shake Natalie clear but she, by maintaining hold of the accused's hair, effectively pulled him to the ground on top of her. The direction of the fall took the accused closer to Robert and Nick, who then stepped in. Nick reached the accused first and took hold of his jacket. Robert reached in and likely also took hold of the jacket at this point. Robert pulled the accused towards the rear of the parking space, while Nick pushed in the same direction from the other side of the accused, pulling him off Natalie. Robert was opposite Natalie and can be seen to pulling the accused's jacket away from the direction of Natalie and towards the rear of the car space and, it seems, over the head of the accused. Natalie remained on the ground but without the accused on top of her. She can be seen to be reaching forward in the direction of the accused. In her evidence she said she kept hold of his hair while she was on the ground. [84] Nick was to the left of the accused, in between Robert who was to Nick's left and Natalie who was on the ground to Nick's right. 9. Paige and Therese approached from behind Nick while Belinda circled around the opposite side. They did not appear to make any physical contact with the accused but were in close proximity to him. Hayden then moved from the front passenger side corner towards the rear of the car space. Belinda then backed away, as Hayden approached the accused from the passenger side of the car space (placing him to the accused right). At this point, the accused was surrounded with Nick to his left, Robert in front of him and Hayden to his right. Additionally, Ms Foster, Belinda, and to a lesser extent Paige were close by. Meanwhile, Adam and the deceased were still fighting at the front of the car space very close to the front wall. 10. The accused was dragged forward by Robert pulling him towards the rear of the car space and Nick pushing him in the same direction. He was on his knees with his head bent forward towards the ground. His body can be seen to be oriented towards the rear passenger side of the car space (away from the building). His head, however, is down such that he is facing in the opposite direction to his body orientation. While it cannot be clearly seen, having regard to the evidence of Natalie, together with her body position and that of the accused as shown in the footage, I find that the position of the accused's head, pointing down such that he was facing the front of the car space, was the result of Natalie maintaining hold of his hair while she remained on the ground. Robert, for a time, maintained hold of the accused's jacket such that it continued to be in a position over his head. Robert did let go of the accused's jacket, however Nick remained bent over the accused and, it seems, with his hands on the accused back, holding him down. By this time, Hayden had joined. The accused was being punched by Robert, who can be seen to swing at least three and possibly four punches at the accused's head. Nick and Hayden were bent over the accused. In his statement, Robert said he said he "went psycho" as a result of the accused hitting Natalie. [85] Paige also said that the accused was "getting into" Natalie. [86] Natalie herself said that after she was pulled to the ground "I think [the accused] started trying to punch me" [87] but when it was put in cross examination that the accused did not punch her but was struggling with her in an attempt to get away, she said "I don't think he was punching me". [88] Having regard to this evidence and the CCTV footage, I do not accept that the accused hit Natalie. Robert and Paige's perceptions in this regard are likely the result of Natalie falling heavily to the ground and the continued physical interaction between her and the accused. 11. Robert said he punched the accused to the face and "kneed and kicked him as well". [89] He told his mother shortly after the event that he had kicked the accused to the head. [90] 12. While it is not clear from the footage, Nick in his statement says that he was punching the accused. The accused's attempts to stand appear to be frustrated by Natalie who remained on the ground with a hold on the accused's hair. This appears to have acted as something of a pivot point for the various forces operating on the accused, turning him so that his body was facing the front of the car space, with his head still bent down (due to the hold on his hair). The accused around this point thus went from facing Robert to facing away from him, with Hayden to his left, Nick and Therese to his right and Natalie on the ground in front of him. Paige was behind Therese. Robert then stood and kicked the accused using a downward stomping motion directed to the accused's back. Hayden swung a punch downward at the accused. 13. At this point the accused was on his knees, apparently unable to get up. He was moved to an area to area just past the end of the wall running along the front part of the passenger side of the car space. At this location there was a wheelie bin and a stack of what look like bread crates. The result was the accused was on his knees with his head down facing into what was essentially a corner formed by the wheelie bin and crates and the building. Natalie regained her feet around this time but appears to have maintained hold of the accused's hair, bending over so that the accused's head remained pointing to the ground. 14. At about this time, Adam and the deceased separated. Adam approached the accused, moving a relatively short distance from the front passenger side of the car space towards the rear. Anthony took hold of Adam's jacket in an apparent attempt to restrain him but was not effective in holding him back. Adam approached the accused from the accused's right, effectively coming between Natalie and the accused. He reached across the accused (who was still kneeling and bent over on the ground) and pushed Hayden, who at that point was on the opposite side of the accused and had just struck a further downward punch to the accused's back. Adam's pushing of Hayden appears to have turned him slightly, so his back was towards the accused. Adam's intervention also appears to have focused Nick's attention away from the accused and onto Adam. Adam's body position also separated Natalie from the accused. These movements provided the accused with the opportunity to get to his feet. Nick in his statement said he saw the accused "get up and he pulled out a knife". [91] He states that he did not see where the accused retrieved it from. [92] It is unclear whether the reference to the accused pulling out a knife simply relates to the point at which Nick first saw it. I regard it as more likely that, while on the ground and being punched and kicked, the accused retrieved the knife he had been carrying, but to this point not used. 15. Various descriptions of the length of the knife were given. It is difficult to obtain a clear sense from the video footage as the image generally appears blurred. One frame of Exhibit M at 17:09:16 suggests a blade in the order of 10 centimetres however this may be affected by the angle or the movement of the knife or both. Noah said the knife he saw the accused with the previous day (which is reasonably likely to be the same knife the accused was carrying on 29 May) was perhaps 20 centimetres long. In evidence he agreed that he told the police in his statement that the blade was "about 3 inches long or a little bit longer than the width of my hand". [93] Three inches would approximate to about seven and a half centimetres. While the witness said the width of his hand was the from the tip of his middle finger to his wrist, an estimate of seven and a half centimetres would appear to be more consistent with what I would regard as the width of a hand, being the distance across the palm. Having agreed with that part of his statement the witness later said he did not know what three inches was. [94] The most likely explanation is that the police officer taking the statement suggested the figure of three inches as an estimate corresponding to the width of a hand. Lara was working at the KFC at the time. She observed events having stepped out from a door at the rear of the KFC at the far side of the car space. In a recorded conversation with police, [95] she gave an indication of the length of the blade of the knife using the distance between her thumb and forefinger, neither of which were fully extended. I would estimate her approximation to be in the order of 10 centimetres. In her evidence she suggested it was longer but I regard her earlier estimation as likely to be more reliable. Belinda said in her statement the blade of the knife was a bit longer than a pen. [96] In assessing the length of the knife it is also relevant to note that a number of witnesses to the events did not describe seeing a knife at all. Given the consequences of the event, the prospect of witnesses overestimating the length of the knife they saw should not be discounted. I would, having regard to the evidence, estimate the blade of the knife to have been somewhere in the range of seven and a half centimetres to, at most, 15 centimetres. It was, as submitted on behalf of the accused, "a relatively small knife in the scheme of things". [97] 16. As the accused got to his feet he turned so as to face away from the corner into which he had been forced. He raised his right hand in which held the knife above his head and swung it in a downward arc to his right. It was this movement that resulted in the wound to Hayden's back. Hayden's position at this stage was the result of him having been pushed by Adam just as the accused regained his feet. 17. The expert certificate tendered in relation to the injury suffered by Hayden established that he had a four centimetre long wound to his right posterior chest wall and a collapsed right lung. There was no evidence of the depth of the wound. 18. After stabbing Hayden, the accused immediately turned to his left and swung the knife, again in a downward motion, this time in the direction of Adam. A photograph of Adam's left forearm taken when he attended the police station later that day. Exhibit AK shows what looks like a cut of approximately three or four centimetres in length. Smeared blood is apparent around the injury suggesting it was reasonably fresh. The Crown prosecutor submitted, and I accept, that this injury was caused by the accused in the second swinging motion of the knife I have described. Proof of wounding Hayden with intent to cause grievous bodily harm? 1. I have no doubt the accused, by his deliberate act, caused the injury to Hayden. I am also satisfied the injury amounted to a wound as that term is understood. [98] I cannot however be satisfied the accused intended to cause grievous bodily harm. Obviously, swinging a knife, which was clearly sharp, at the body of another person may, and is perhaps even likely to, cause really serious injury. However, the situation in which the accused was placed was such that any inference that might ordinarily be drawn from the swinging of a sharp knife in the vicinity of the body of another cannot be safely drawn here. 2. As described above, the accused had been held down for a considerable of time, a period in the order of nine seconds. At some point while being held down, the accused engaged in a deliberate, and to some extent, considered act in retrieving the knife from wherever it was secreted. It does not follow that the acts which followed were well considered. Rather, having managed to get to his feet, I find that the accused believed he was surrounded by adversaries. In these circumstances his actions are consistent with swinging the knife with a view to clearing the space, and corresponding threat, around him. I do not ignore the possibility that a person can have multiple intentions, or an intention with a different, broader, motive. That is, it is logically possible that the accused intended to clear the space to his right by intentionally inflicting grievous bodily harm on Hayden. I do not, however, accept that to be the case. 3. Having watched the footage many times and having regard to the circumstances in which the accused found himself, I am of the view he was at this point swinging the knife indiscriminately in order to clear the space immediately around him. That he swung the knife at Adam further supports this view. 4. Having regard to the indiscriminate nature of the accused's actions, and the nature of the downward motion in swinging the knife, I am not satisfied the accused deliberately targeted any particular part of the body of Hayden. This is significant in casting doubt on an any intention to cause grievous bodily harm. 5. I accept that, having retrieved the knife, the accused must have, in swinging it, been aware of the possibility of causing at least actual bodily harm. The circumstances in which he acted were, however such that I cannot be satisfied he intended to inflict grievous bodily harm. 6. It follows that I cannot be satisfied that the offence of wounding with intent to cause grievous bodily harm has been made out. 7. The requisite mental element for the lesser, alternative offence of wounding while being reckless as to causing actual bodily harm, is established. Whether this offence has been proved is dependent on whether self-defence has been excluded by the Crown. Self-defence in relation to count 2 1. As discussed above, in order to prove this offence the Crown must establish either that (i) the accused did not believe is conduct was necessary to defend himself or another person; or (ii) the conduct was not a reasonable response in the circumstances as he perceived them. The accused's belief 1. With respect to the first of these matters, I am not satisfied that the accused did not believe his conduct was necessary to defend himself. I have already referred to the accused's prior character. That prior character, and in particular, the absence of any record or other evidence of violent conduct, suggests the accused would be less likely to have struck Hayden with the knife had he not believed it to be necessary. I have regard to his statements to others with respect to his belief at the time. People of prior good character of course do commit offences. It is necessary to have close regard to the evidence of what actually happened. 2. With respect to the immediate circumstances, as I have already observed, by the time he got to his feet he had been assaulted whilst on the ground over a period of approximately nine seconds. In the context of what was occurring, this was a very considerable period of time. The assault involved punches and kicking. At this time the accused would have believed himself to be significantly outnumbered. In this regard the accused had no reason to think that Richard had become involved in the violence (and, in fact, he had not). The result was that the accused and Adam were outnumbered, by at least two to five – that is, they were outnumbered by the deceased, Robert, Nick, Hayden and Natalie, all of whom were directly involved in the violence against the accused and Adam. Further, while not directly involved in the violence, other members of the opposing group; Therese, Belinda and Paige were at points physically proximate in a manner which likely added to the accused's perception of the threat. (I note I have not included Anthony in these calculations. He was not involved in assaulting the accused. He appears to have attempted to stop others becoming involved.) In addition to being outnumbered, the accused was aware that at least one of the persons involved, and the person most intent on doing him harm, was armed with knuckledusters. 3. In the circumstances set out above, the accused was likely to have believed that staying on the ground was not a viable option. On getting to his feet, however, the accused necessarily raised his head, in circumstances where he unaware of precisely what was going on around him. That lack of awareness is demonstrated by the accused striking with a knife towards, and injuring, Adam, with whom he was aligned. That event is demonstrative of the accused's perception being that he was under attack from all sides. 4. Further, at the time he got to his feet the accused was unlikely to have any knowledge of where the deceased was. As it happened, very shortly after the accused had lowered the knife for a second time the deceased swung a fast, round-armed punch at his head, with the knuckledusters passing very close to the back of the accused's head. 5. Added to the above is the evidence of Drs Pulman and Furst in relation to the accused's cognitive deficit and anxiety. Dr Furst, in his report, found that given the number of people, with the accused and Adam outnumbered, "it would be reasonable to conclude that [the accused] was fearful of his safety … both before and during the melee that ensued", and that this "fear was likely increased by his low level of cognitive function and anxious tendencies". This opinion was confirmed in Dr Furst's evidence, when he explained that anxiety is, by its nature an "overestimation of risk or exaggerated fear because you are overestimating the risk". [99] Further to the accused's anxiety, Dr Furst expected that his cognitive deficits would "impact on things like decision-making, self-control, emotional responses" [100] Dr Furst said: "… someone with ADHD with this kind of deficit, which he probably has, would have even more difficulty filtering information, and people screaming, there's yelling, there's fighting, there's punches that - that's just getting too much. Like, so, in other words, I'm - I'm thinking that the combination of the anxiety, FASD and ADHD is making this person overwhelmed and, like, beyond his capacity at that point." [101] 1. Having regard to the circumstances, and the evidence of Dr Furst referred to above, I cannot be satisfied that the accused did not believe that his act resulting in the wounding of Hayden was necessary in his own defence. Indeed, even without the evidence of Dr Furst and Dr Pulman, having regard to the threat which I have referred, I would not have been so satisfied. Not a reasonable response? 1. The accused submitted that, in considering the circumstances as the accused perceived them, it is necessary to have regard to matters beyond the purely physical circumstances. It was submitted that matters particular to the accused, including his cognitive deficit and anxiety, impacted the circumstances as he perceived them. In this regard I accept that aspects of the accused's makeup did affect his perception of the circumstances (Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191 at [45]-[50]. In particular, I accept that expert evidence relevant to his subjective perception, including his perception that he was going to be killed is to be taken into account in considering the circumstances as he perceived them. The question of the reasonableness of the accused's response to those circumstances is, however, a different, and wholly objective determination. 2. Further, in determining the reasonableness of the accused's response to the circumstances as he perceived them, it is necessary to have regard to his young age and relatively slight stature (R v Katarzynski [2002] NSWSC 613.) However, evidence that the accused's self-control and emotional responses were impaired is not relevant to the objective assessment of the accused's response. [102] They impacted the accused's response to the circumstances he perceived, not his perception of them. 3. As I have indicated, the accused was legitimately concerned at the prospect of being struck with the knuckledusters. There was no evidence as to the level of injury which knuckledusters might, or were likely to, inflict. In this regard, it is difficult to assess the threat posed by knuckledusters against the threat posed by a knife. The knuckledusters themselves were tendered. They were plastic, rather than metal. Nonetheless they appeared to be made from a very hard resin type plastic and were heavy for their size. The analysis of the particular knuckledusters does not, however, advance matters. The accused did not know what material they were made of. The circumstances as he perceived them included the fact that the deceased was actively swinging his left fist while wearing knuckledusters. Insofar as a judgment must be made as to the reasonableness of the response in the context of this circumstance, the absence of evidence as to the threat posed by knuckledusters is, having regard to the onus, a failing in the Crown case. While, applying my understanding as to how each weapon might inflict damage together with my common sense, I would not regard knuckledusters as posing the same threat as a knife, I would also not discount the prospect that a firm blow to the head with knuckledusters could cause serious injury or death. 4. It is also of significance in relation to this issue that, as I have found above, the act was not accompanied by an intention to inflict really serious bodily harm. While the accused was aware of at least the possibility of actual bodily harm, and probably more, he also had a legitimate concern that he was vulnerable to being struck with knuckledusters. 5. When regard is had to the extent to which the accused perceived himself to be outnumbered and at threat from the significant number of people around him, together with his perception that he was at risk of being struck to the head with knuckledusters, he was faced with a very dangerous situation. His physical position, essentially in a corner, and otherwise surrounded by persons who he perceived to be part of the threat meant that running was not an option. The use of fists against the number of attackers including one who was armed, was unlikely to be effective. In those circumstances, the use of the knife with without an intention to inflict grievous bodily harm, has not been proved to the requisite standard to be an unreasonable response to the circumstances as the accused perceived them. 6. The conclusion I have reached should not be understood to in any way condone the carrying or use of a knife. The danger in doing so is amply demonstrated by the tragic facts of this case. My conclusion is solely based on the application of the legal test to circumstances that should never have occurred, including the use of the weapon by the deceased. The killing of Liam – murder, manslaughter or not guilty? 1. As Adam moved to the accused's right (the accused then facing head down into the corner formed by the wheelie bin and crates), he came between the deceased and Natalie. At this point, the deceased ran around the other side of the group. He approached the accused coming from behind Hayden and Nick, appearing to push at them in order to get a clear swing at the accused. Richard was at this time standing in an area behind the deceased, having walked behind him as the deceased ran into the fray. Richard pushed Nick away, moving him a short distance from the accused, who was the focus of the violence. Nick does not appear to demonstrate any resistance in this regard, effectively stepping back some distance. As described above, the deceased sent a left hook style punch past the back of the accused's head as the accused turned to his left (and away from the deceased) to stab in the direction of Adam. The motion of swinging the punch took the deceased past the accused. As this occurred the accused turned back to his right with his right arm raised, holding the knife. As I have said, Nick had already backed away. Hayden, when the knife was pointed at him, backed away (although I note that Hayden did not claim to have seen the knife, only the results of its use after Liam was stabbed). [103] As Hayden backed away, the accused turned to face forward, essentially facing the position where the deceased had arrived. Due to the deceased's motion, having swung a roundarm left "hook" past the accused's head, and him at least appearing to be slightly off balance, Richard was able to put an arm around the deceased's torso and pull him backwards. Having regard to Richard's actions to this point, and the manner in which this action was taken, it is clear that that Richard was doing his best to end the fighting. 2. Having regard to the rapid motion of the accused, seeking to address perceived threats to his right, his left and again to the right before looking to the front where the deceased had just arrived, I cannot be satisfied that the accused was aware that Richard had restrained the deceased. However, be that as it may, the distance created by the deceased's movement in swinging his fist past the accused and then being held by Richard, allowed the accused to take a large step forward with his left leg and, using his right hand, to swing the knife downward, towards the area of the deceased throat. The deceased can be seen to be bleeding from the throat almost immediately after the knife passed his neck. The accused and the deceased were then standing opposite each other. The deceased appears to have his right hand extended while the accused has his left hand extended, each grappling with the other while using their respective free hands to swing their weapons. The deceased swung three punches with the knuckledusters, while the accused swung the knife twice more, again in the area of the deceased's throat. The stabbing of Liam - intention to cause grievous bodily harm? 1. As I have described, the accused took a step forward in the direction of Liam before swinging with the knife. The accused swung a second and third time in the same area although it is uncertain whether these thrusts made any contact. Given the movement and the rapid pace of events, I cannot be satisfied the accused deliberately targeted the deceased's neck. I am however satisfied that the knife was deliberately thrust in the direction of the deceased's head, neck and upper torso area. The accused would have been aware a knife wound to these areas was likely to cause serious harm. I am satisfied that the accused, in stabbing the deceased, intended to inflict grievous bodily harm. Self-defence in relation to the offence of murder 1. As I have described, the accused swung the knife in the area of the deceased's throat. Dr Loots was unable to say whether the injury to the neck was caused by one motion or two. It is possible that the injury caused by the first swing was added to by the second. The deceased also suffered a significant laceration to his forearm. This was most likely the result of one of the swings of the knife after the first swing when the two were grappling. I regard it is as likely that the first stab wound, given the location and immediate bleeding visible in the footage, was a substantial cause of death. Nonetheless, having regard to the evidence of Dr Loots I cannot rule out the possibility that death would not have resulted from that single wound, and that a second act of stabbing, or the combination of the two acts, was the substantial cause of his death. It is necessary in these circumstances to consider whether each act of stabbing has been proved not to be justified by self-defence. The accused's belief 1. Again, I have regard to the absence of any record or other evidence of violent conduct, which suggests the accused would be less likely to have struck Liam with the knife had he not believed it to be necessary. Again, however, I note that persons of prior good character do commit offences. It remains necessary to consider closely the evidence of what occurred on the day. Turning to the events, even with the benefit of video footage from multiple angles, it is difficult to place oneself in the position of the accused at the time he stabbed the deceased. As I have said, he had been on the ground for a period of approximately nine seconds while being punched and kicked. While no serious injury appears to have resulted, the accused was unlikely to know at the time the extent to which he had been injured, or would be injured. Having managed to get his feet, he is likely to have believed that he had relatively little time to make himself safe. Having dealt with threats to his right and left he faced a further threat in front of him. He was aware that the deceased was wearing knuckledusters. 2. The moments in which the accused determined to step forward and swing the knife at the deceased were marked by chaos. Various witnesses described the noise in a manner such that I am satisfied it was clamorous. In addition, the evidence of Drs Pulman and Furst is significant in terms of the accused's ability to make decisions. With respect to the evidence of Dr Furst in particular, the accused's anxiety and consequent heightened fear response are relevant to what he is likely to have believed to be necessary. 3. Against the above matters must be weighed the accused's action in stepping towards the deceased. That action, of course, occurred in circumstances where the knuckledusters had a split-second earlier passed very close to the accused's head. As I have said, I cannot be satisfied the accused was aware that the deceased was, albeit momentarily, restrained by Richard. The accused's perception, almost certainly an accurate one, was that the deceased would, very soon, swing the knuckledusters at him again. 4. I have already referred to the fact that the accused did not produce the knife until he had been overpowered in the course of the melee. That fact remains significant in relation to the stabbing of the deceased. It must be acknowledged, however, that it is possible, that, having used the knife in self-defence, the accused continued to use it without a genuine belief as to the necessity of doing so. 5. With respect to the accused's claims to various persons that he was acting in self-defence pursuant to a belief he would be killed, these claims are, to some extent, affected by his embellishment in describing himself as having simply waved the knife around. Nonetheless, I regard the accused's claims as deserving of at least some weight in the weighing of all the circumstances. 6. In weighing those circumstances it is important to have regard to the very little time the accused had to process what was going on. There was no time for deliberation. After repeated watching of the footage, I cannot exclude the possibility that the accused honestly believed it was necessary to stab the accused in the manner he did. 7. After the accused first swung the knife towards the deceased, each continued to attempt to strike the other with their respective weapons. While it is perhaps unnecessary, I am of the view that such a belief cannot be excluded with respect to any of the thrusts made with the knife towards the deceased. Has the Crown proved the act of the accused was not a reasonable response to the circumstances as the accused perceived them? 1. As I have indicated above, at the time the accused had regained his feet he perceived himself to be under threat on all sides. Having thrust the knife to his left in the direction of Adam, it is notable that the accused did not swing the knife in that direction again, despite having made minimal contact with Adam. Rather, the accused turned his back to Adam to return to face in the direction of Hayden. Whilst the time for assessment and decision-making was limited, the actions of the accused at that point satisfy me that he realised after swinging the knife at him that it was Adam standing to his left, thereby allowing him to turn back to the right. 2. As I have said, on the accused's right, Nick had retreated some distance and Hayden was also moving backwards. On turning to his right, the accused did not again swing the knife in that direction. I find this was as a result of his awareness that Nick and Hayden had backed away. Thus, the situation as the accused perceived it was that he had been subject to a prolonged attack while on the ground, but that, having regained his feet and thrust his knife to the right and the left, he had Adam who was an ally, on his left and, while Nick and Hayden were still to his right, they were moving away. . 3. As a result of the movement of Nick and Hayden, at this time, there was a gap between them. .This provided a potential escape route for the accused. In this regard, it is not without relevance that the accused had been able to outrun the deceased the previous day. The accused's actions do not become unreasonable simply because on analysis, with the benefit of hindsight, an alternative strategy presents itself. As I have indicated, the accused was faced with the threat of being hit by knuckledusters; and the absence of evidence as to the threat posed by knuckledusters is a failing in the Crown case. While this remains true, is it is also self-evident that a knife of the type used by the accused was capable of causing serious injury or death in a single blow. Resorting to use of such a weapon is unlikely to be reasonable unless the situation is dire. 4. The situation faced by the accused was, I accept, extreme. At least when he was on the ground the accused believed he was going to die. I accept that a belief that he was in serious danger or even would be killed unless he took action persisted after he regained his feet, or at least has not been excluded. But a question remains as to the action to be taken. A belief that he would be killed if he did not take action does not mean that any response is a reasonable one. The use of the knife with an intention to inflict really serious injury is an extremely serious step to take. The retreat of Nick and Hayden is of significance. In particular, it is clear, and I am satisfied would have been clear to the accused, that they were moving back as he moved towards them. In these circumstances it would have been open to the accused to continue in the same direction rather than turning to face the deceased. I appreciate that the accused's turning is understandable, having regard to his awareness of the deceased's presence and the threat posed by him. The difficulty is that the accused not only turned back but then advanced, admittedly, a short distance towards the deceased and, further, that the advance then involved the use of a deadly weapon. Despite the threat perceived by the accused, I am of the view that it was not a reasonable response to turn and strike Liam with the knife in the area in which the accused did, nor was it reasonable to continue to strike in that fashion, rather than attempting to disengage to avoid the swing of the knuckledusters. 5. It follows that the Crown has satisfied me beyond reasonable doubt that the accused's response was not a reasonable response to the circumstances as the accused perceived them. Conclusion 1. It follows from the above that the accused is not guilty of the offence of wounding Hayden, or of the alternative to that offence of recklessly wounding Hayden. With respect to the charge of murder, he is not guilty of murder but guilty of manslaughter on the basis of excessive self-defence pursuant to s 421 of the Crimes Act. It is, in the circumstances, unnecessary to consider the alternative bases of manslaughter, that is manslaughter by unlawful and dangerous act or manslaughter on the basis of substantial impairment. Orders 1. In relation to count 1, the murder of Liam, I find the accused not guilty of murder but guilty of manslaughter. 2. In relation to count 2, the wounding of Hayden with intent to cause grievous bodily harm, I find the accused not guilty. ********** Endnotes 1. This apartment was referred to by various witnesses as Tim's apartment. In his statement (Exhibit AA), Robert refers to having also been living at this address. Throughout these reasons, the residence is referred to interchangeably as Tim's apartment and Robert and Tim's apartment. 2. Hutchinson & Wilkinson [2018] NSWSC 1759 at [46] per Hamill J 3. Exhibit D, CCTV footage inside the KFC 4. Tcpt, 28 May 2024, p 361(9) 5. Tcpt, 28 May 2024, p 361(33) 6. Tcpt, 28 May 2024, p 361(35) 7. Tcpt, 28 May 2024, pp 367-368 8. Tcpt, 28 May 2024, p 368(30) 9. Exhibit AP, report of 21 November 2022, p 11 10. Tcpt, 29 May 2024, p 411(27) 11. Tcpt, 29 May 2024, p 409(25) 12. Tcpt, 29 May 2024, p 409(29) 13. Exhibit AP, report of 21 November 2022, p 11 14. Tcpt, 29 May 2024, p 393(41) 15. Tcpt, 29 May 2024, p 384(40) 16. Tcpt, 29 May 2024, p 385(42) 17. Tcpt, 29 May 2024, p 409(11) 18. Tcpt, 21 May 2024, p 133(10) 19. Tcpt 22 May 2024, p 152 20. Tcpt, 21 May 2024, p143(23) 21. Tcpt, 22 May 2024, p156(49) 22. Tcpt, 21 May 2024, p 142(7) 23. Tcpt, 21 May 2024, p 105(1) 24. Tcpt, 23 May 2024, p 283(41) 25. Tcpt, 27 May 2024, p 338(2) 26. Tcpt, 24 May 2024, p 330 27. Tcpt, 23 May 2024, p 271(3) 28. Tcpt, 23 May 2024, p 273(39) 29. Tcpt, 21 May 2024, p 137(2) 30. Tcpt, 21 May 2024, p 138(14) 31. Tcpt, 21 May 2024, p 137(43) 32. Tcpt, 21 May 2024, p 141(26) 33. Tcpt, 21 May 2024, p 141(28) 34. Tcpt, 21 May 2024, p 141(31) 35. Tcpt, 22 May 2024, p 159(4) 36. Tcpt, 22 May 2024, p 155(44) 37. Tcpt, 21 May 2024, p 141(45) 38. Tcpt, 23 May 2024, p 241(4) 39. Tcpt, 23 May 2024, p 241(14) 40. Tcpt, 23 May 2024, p 241(36) 41. Exhibit AA, [20] 42. Exhibit X, p 12 43. Tcpt, 21 May 2024, p 105(33) 44. Exhibit X 45. Exhibit Z, [11] 46. Tcpt, 23 May 2024, p 243(9) 47. Tcpt, 23 May 2024, p 243(28) 48. LJW v R [2010] NSWCCA 114; TWL v R [2012] NSWCCA 57; R v Hines (No 2) [2014] NSWSC 701 49. Exhibit G 50. Tcpt, 23 May 2024, p 245(23) 51. Tcpt, 23 May 2024, p 252(7) 52. Tcpt, 23 May 2024, p 252(15) 53. Tcpt, 23 May 2024, p 259(46) 54. Tcpt, 23 May 2024, p 258(44) 55. Tcpt, 23 May 2024, p 259(19) 56. Tcpt, 23 May 2024, p 260(14) 57. Tcpt, 23 May 2024, p 267(7) 58. Tcpt, 23 May 2024, p 271(33) 59. Tcpt, 23 May 2024, p 277(41) 60. Tcpt, 23 May 2024, p 277(49) 61. Tcpt, 21 May 2024, p 98(45) 62. Tcpt, 21 May 2024, p 99(34) 63. Tcpt, 22 May 2024, p 189(23) 64. Tcpt, 22 May 2024, p 193(48) 65. Exhibit D. 66. Exhibit AI, p 4 67. (Ex V, a clearer version of which was tendered by the accused and became Ex 5) 68. Tcpt, 21 May 2024, p 127(39) 69. Exhibit AA [37] 70. Exhibit AA [9] 71. Exhibit AA [35]-[36] 72. Tcpt, 22 May 2024, p 190(21) 73. Tcpt, 22 May 2024, p 190(29) 74. Tcpt, 22 May 2024, p 194(49) 75. Tcpt, 22 May 2024, p 198(4) 76. Tcpt, 22 May 2024, p 198(8) 77. Tcpt, 23 May 2024, p 227(32) 78. Exhibit J 79. Exhibit G 80. Exhibit AN 81. Exhibit J 82. Exhibit M 83. At 17:09:00 84. Tcpt, 22 May 2024, p 166(9) 85. Tcpt, 22 May 2024, p 166(39) 86. Exhibit AA, [44] 87. Exhibit AF, [38] 88. Tcpt, 22 May 2024, p 164(16) 89. Tcpt, 22 May 2024, p 166(41) 90. Exhibit AA, [44] 91. Exhibit AB, [33] 92. Exhibit Y, [15] 93. Exhibit Y, [16] 94. Tcpt, 23 May 2022, p 251(25) 95. Tcpt, 23 May 2022, p 251(43) 96. Exhibit S 97. Exhibit AE, [33] 98. Tcpt, 30 May 2022, p 478(24) 99. R v Smith (1837) 8 C&P 173 100. Tcpt, 29 May 2022 p 385(30) 101. Tcpt, 29 May 2022, p 386(19) 102. Tcpt, 29 May 2022, p 386(30) 103. Accused's written submissions, MFI 10 Amendments 26 June 2024 - minor typographical error 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: 26 June 2024