R v Katarzynski [2002] NSWSC 613

New South Wales Supreme Court

CITATION : R v Katarzynski [2002] NSWSC 613 FILE NUMBER(S) : SC 070013/02 HEARING DATE(S) : 24/06/02 to present JUDGMENT DATE : 9 July 2002

PARTIES : Regina v Kirstain William Katarzynski JUDGMENT OF : Howie J at 1

COUNSEL : Mr L. Babb - Crown Mr G. Cusack QC - Accused SOLICITORS : S.E. O'Connor - Crown Mark Rumore - Accused CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Criminal liability and capacity - self-defence - relevance of the accused's self-induced intoxication. Crimes Act 1900 - Part II Div 3 ss 418-423, 428 LEGISLATION CITED : Home Invasion (Occupants Protection) Act 1998 - ss 6 - 9, 11 Crimes Amendment (Self Defence) Act 2001 - s 4 Tasmanian Code - s 46 R v Michael James Taylor [2002] NSWSC 610 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 CASES CITED : Dziduch (1990) 47 A Crim R 378 R v Hawes (1994) 35 NSWLR 294 R v Conlon (1993) 69 A Crim R 92 McCullough v R [1982] Tas R 43 R v Munro [2001] NSWCCA 187 DECISION :

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Howie J

TUESDAY 9 JULY 2002

070013/02 R v KIRSTAIN WILLIAM KATARZYNSKI

JUDGMENT 1 Howie J: The accused has been indicted for murder and is currently standing trial before a jury. The deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although, it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder. 2 The Crown has conceded that on the evidence led in the trial it is open for the jury to find that there was a real possibility that when the accused shot the deceased he was acting in his own self defence. The Crown has also conceded that the applicable law relevant to that issue is Part 11 Division 3 of the Crimes Act 1900 (NSW), see R v Michael James Taylor [2002] NSWSC 610. 3 The relevant provisions of the Crimes Act are, therefore, as follows: 418 Self-defence — when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.