Regina v PRFN [2000] NSWCCA 230

New South Wales Court of Criminal Appeal

CITATION : Regina v PRFN [2000] NSWCCA 230 FILE NUMBER(S) : CCA 60308/99 HEARING DATE(S) : 8 June 2000 JUDGMENT DATE : 21 June 2000

PARTIES : Regina v PRFN JUDGMENT OF : Giles JA at 1; Grove J at 60; Greg James J at 61

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70012/98 LOWER COURT JUDICIAL Newman J OFFICER :

COUNSEL : M C Marien - Crown P R Zahra - Applicant SOLICITORS : S E O'Connor, Director of Public Prosecutions - Crown T A Murphy, Legal Aid Commission of New South Wales - Applicant CATCHWORDS : CONVICTION APPEAL - self-defence - sexual assault by deceased - profound psychological effect on appellant - belief that would be further sexual assault - appellant's later decision to kill - killing carefully implemented - role of immediacy of threat to accused - no realistic hypothesis that appellant could have believed on reasonable grounds that killing necesary in self-defence. Viro v The Queen (1978) 141 CLR 88, Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 considered - R v Rogers (1996) A Crim R 542 referred to. SENTENCE APPEAL - no error shown. DECISION : Appeal against conviction and sentence dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60308/99 SC 70012/98

GILES JA GROVE J GREG JAMES J

Wednesday 21 June 2000

R v PRFN JUDGMENT The restrictions on publication or broadcasting in s 11 of the Children (Criminal Proceedings) Act 1987 apply. 1 GILES JA: The appellant was charged with the murder on 1 November 1997 of Barry Walter Coulter ("the deceased"). Issues of provocation and diminished responsibility were left to the jury, but the trial judge ruled that the issue of self-defence should not be left to the jury. The appellant was found not guilty of murder but guilty of manslaughter, and was sentenced to imprisonment for a minimum term of three years commencing on 16 April 1999 with an additional term of three years thereafter. He appealed in relation to conviction and sought leave to appeal in relation to sentence. 2 The appeal in relation to conviction was on the sole ground that the issue of self-defence should have been left to the jury. 3 The appellant was born on 16 January 1982. His family farmed on properties near Mudgee, and he and his family came to know the deceased when the deceased's son attended art classes conducted by the appellant's father in Mudgee. A friendship developed between the appellant and the deceased's son, and from time to time the appellant would visit the farming property conducted by the deceased. Sometimes the appellant would work at the property, sometimes he would stay overnight, and the deceased assisted him with his school mathematics studies. Quite a close relationship developed between the appellant, the deceased and the deceased's son, notwithstanding that the deceased was aged in his sixties and the deceased's son was considerably older than the appellant. 4 In April 1996 the appellant visited the deceased's property on a weekend, staying overnight on the Saturday. During the overnight stay the deceased anally raped the appellant. 5 The appellant was then fourteen years old. The trial judge observed that "[t]he effects of that episode had devastating psychological effects upon [the appellant]". His school work deteriorated: although an average student he had been determined to do well, but by the middle of 1997 there was doubt whether he would obtain the School Certificate for which he was then a candidate. He became withdrawn and suffered from recollections of the sexual assault, and was lethargic and subject to stomach cramps to the extent that it was suspected that he might have glandular fever. He carried out acts of self-harm including cutting himself with a razor and placing his hand on the hot plate of the family's combustion stove, and he entertained thoughts of suicide. 6 In March 1997 the appellant's sister-in-law Emily gave birth to a son, Jacob. The appellant was very fond of Jacob, and feared that the deceased might harm him. When his brother was away at night working shifts the appellant would go to the property occupied by his brother and sister-in-law in order to protect the baby. 7 The effects on the appellant could only have been exacerbated by the deceased's subsequent conduct towards the appellant. On the day following the sexual assault the deceased drove the appellant home, indicating during the journey that he wanted to repeat the episode. From time to time the deceased would ring the appellant, making sexual overtures to him during the conversation, and on chance meetings in Mudgee he did the same. In fact there was no repetition. 8 In September 1997 the appellant revealed that he had been sexually assaulted, without identifying the person involved, and his family set about obtaining psychological assistance. This had not matured into counselling prior to 1 November 1997. 9 The appellant decided to kill the deceased. It is appropriate to go at this point to the evidence explaining why. 10 In a police interview after the killing of the deceased the appellant answered the question, "Why did you shoot him?" - "I'd become basically scared of everything, heavy breathing where you, doing a long distance run at school and I had heavy breathing and, and threw up … a simple embrace made me feel sick. I'd break out in a cold sweat, started shaking, couldn't breath, stomach twist up in knots. I'd lost all my friends from one. I started off fairly popular at school, but through becoming more and more aggressive, frustrated, I you know, people just didn't want to be around me. My school marks had basically halved, and my parents couldn't understand why I hadn't, I told them but only fairly recently, I was very frustrated. I'd, I started having nightmares that Barry would come up to my baby nephew and I was finding it increasingly hard to sleep and concentrate. I also went into just reading continuously from book to book in an attempt to keep my mind occupied, building walls like I called it, so I wouldn't have stray thoughts of Barry and what he'd done to me which used to result in me being depressed or sick. I'd also start thinking heavily about suiciding, and I just didn't want any more."