R v KELLY [2000] NSWSC 701

New South Wales Supreme Court

CITATION : R v KELLY [2000] NSWSC 701 revised - 27/07/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70077/99 HEARING DATE(S) : 10/07/00, 11/07/00, 13/07/00 JUDGMENT DATE : 13 July 2000

PARTIES : REGINA v Amos Charles KELLY JUDGMENT OF : Barr J at 1

COUNSEL : Crown: CA Davenport Offender: AI Parker SOLICITORS : Crown: Director of Public Prosecutions (NSW) Offender: Western Aboriginal Legal Service CATCHWORDS : Criminal Law - sentencing - manslaughter - provocation. CASES CITED : R v Fernando (1992) 76 A Crim R 58 DECISION : See paragraph 21.

IN THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION

AT BROKEN HILL

GRAHAM BARR J

Thursday, 13 July 2000

70077/99 - REGINA v Amos Charles KELLY

SENTENCE

1 HIS HONOUR: At the commencement of his trial for murder, the offender, Amos Charles Kelly, pleaded guilty of manslaughter and the Crown accepted his plea in full discharge of the indictment. The offender and the deceased, Neal Mitchell, resided in Dareton. On 5 November 1998 the offender, the deceased and a number of other people were at the house of a relative of the offender, GraceAnne Smith, in Dareton. They sat around until a late hour drinking. One of the party was Sabana Quayle, the offender's partner. The atmosphere at Ms Smith's house was pleasant and there were no arguments. 2 The offender went home by himself. Some time later, Ms Jennifer Wise, Ms Quayle's sister, went to Ms Smith's house and decided to walk her home. They left Ms Smith's house and were accompanied by the deceased. The three arrived at the offender's house some time after 2am. The offender was in the kitchen cooking a meal for himself. The deceased went into the kitchen and an argument arose between the two of them. I am satisfied that the deceased started the argument, but just why it started is not clear. Ms Quayle and Ms Wise gave statements about the matter to the police but they could shed no light on the reasons and the only account that suggests any explanation is that of the offender himself. I am satisfied that he did his best to explain what had happened. The deceased said something to him about his, the offender's, being jealous and told him not to be jealous. The offender did not understand what the deceased was talking about and tried to take no notice. In an effort placate the deceased he said he was sorry and denied having said anything to suggest that he was jealous. The deceased started pushing him. 3 The deceased's aggression caused the offender concern, not only because the deceased was a heavy man and the offender a slight man but because of a particular susceptibility the offender had to head injuries. In 1994 he had suffered serious injuries when he was assaulted and kicked in the head. He was taken to Mildura Base Hospital and then to the Royal Adelaide Hospital. A serious subdural haematoma developed and had to be drained a number of times. Eventually the drain was successful and the consequent brain swelling reduced, but the offender was left with a serious indentation in the region of the right temple and weakness in the right upper and lower limbs. Those disabilities were permanent and he was advised to be careful to avoid head injury. He believed that he might suffer severe consequences, even death, from a blow to the head. 4 The attack from the deceased was unexpected and the offender had little time in which to act. When he realised that the deceased intended to continue the attack and whilst he was still on his feet the offender moved a few steps to an open kitchen drawer and took up his fishing knife. He threatened to use it on the deceased if he did not stop the attack but did not at that stage try to defend himself with the knife. The deceased responded by pushing him over. The offender hit his head and cut it as he fell. He found himself on the floor with the deceased standing over him with every appearance of continuing the attack. The offender thrust the knife at him a number of times and seven wounds resulted. One of them penetrated the heart and quickly led to the death of the deceased. The offender immediately left the knife where it was, ran next door and telephoned for the ambulance. That call alerted the police, of course, and when they arrived he told them straight away that he was the one who had stabbed the deceased. 5 Some few hours later he was formally interviewed by investigating police officers and gave them an account consistent with the findings I have made. It is significant, I think, that it was almost as an afterthought that he mentioned his concern for his own safety because of the condition of his head and that he did not try to put it forward as an excuse. I am satisfied that his concern on that account was genuine. 6 The offender pleaded not guilty when arraigned in February 2000 and this matter was listed for trial. Both sides then had available to them a transcript of the interview between the offender and the police. However, it now appears that part of the conversation was not transcribed because it was not recorded on audio tapes which were stopped during an interruption to the interview and from which the transcript was prepared. However, the conversation was recorded on the video tape, which continued to run during that interruption. 7 The new material caused both sides to reconsider their positions and that explains why the plea of guilty of manslaughter came to be made and accepted only as the trial was about to commence. In the circumstances the offender is entitled to be regarded as having pleaded guilty at the first reasonable opportunity. 8 The parties made alternative submissions about the proper basis for a conviction of manslaughter. Mr Parker, for the offender, submitted that on all the evidence the Court should have a reasonable doubt that when he stabbed the deceased the offender intended to cause him grievous bodily harm, so the manslaughter should be regarded as having been committed by the offender's unlawful and dangerous act. The Crown contended that the Court should be satisfied beyond reasonable doubt that the offender intended to do the deceased grievous bodily harm when he used the knife. The parties were agreed that if the Court were so satisfied, the proper basis for sentencing would be manslaughter resulting from the provocative act of the deceased. 9 In support of his submissions, Mr Parker pointed to the facts that the deceased had started the argument and had turned the attack from a verbal to a physical one and to the peculiar concern the offender had for his own safety, all of which I accept. Counsel then pointed to a part of the conversation between Detective Senior Constable Sikkema and the offender, previously untranscribed, viz - ACCUSED: He's the eldest, then the second eldest is me sister, me, then my younger brother and step brother. Oh mate, I didn't know.