REGINA v Timothy James COATES [2002] NSWCCA 441

New South Wales Court of Criminal Appeal

CITATION : REGINA v Timothy James COATES [2002] NSWCCA 441 revised - 12/12/2002 FILE NUMBER(S) : CCA 60232/02 HEARING DATE(S) : 4/11/02 JUDGMENT DATE : 6 December 2002

PARTIES : REGINA Timothy James COATES (Appellant) JUDGMENT OF : Sully J at 1; Dunford J at 2; Bell J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0063 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : P. Barrett (Crown) A. Cook (Appellant) SOLICITORS : S E O'Connor T A Murphy

LEGISLATION CITED : Crimes Amendment (Self-Defence) Act 2001 R v Dziduch (1990) 47 A Crim R 378 CASES CITED: R v Hawes (1994) 35 NSWLR 294 R v Lean (1993) 66 A Crim R 296 R v Zecevic (1987) 162 CLR 645 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60232/02

SULLY J DUNFORD J BELL J

6 December 2002 REGINA v Timothy James COATES Judgment 1 SULLY J: I agree with Bell J. 2 DUNFORD J: I agree with Bell J. 3 BELL J: The appellant appeals against his conviction on an indictment charging him with the malicious infliction of grievous bodily harm upon Jason Scott Billett with intent to do grievous bodily harm to Jason Scott Billett. He was arraigned upon this charge in the District Court at Lismore on 29 January 2002. After a trial lasting seven days the jury returned a verdict of guilty. He was sentenced to imprisonment for four years to date from 7 February 2002. A non-parole period of two years and three months was specified. 4 By notice of appeal dated 21 April 2002, the appellant signified his intention to appeal against conviction and to seek leave to appeal against the severity of the sentence imposed upon him. By notice dated 13 September 2002 the appellant abandoned further proceedings in respect of the application to appeal against the severity of sentence. 5 The appeal against conviction was argued upon a single ground, namely, that the trial judge misdirected the jury as to self-defence. It is necessary to set out the evidence given at the trial in some detail in the light of the way the parties developed the submissions with respect to this single ground. 6 The incident occurred on 16 December 2000 at Ulmarra. The complainant was employed at the Ulmarra Sawmill ("the mill"). The appellant had worked at the mill for a short period of time prior to the incident. On this day it is common ground that the appellant approached the complainant outside the mill and struck him about the head with a large piece of wood causing injuries including a fractured skull. The defence case at trial was conducted upon the basis that the Crown was not able to negative that at the time the appellant struck the complainant he was acting in defence of his partner, Leah Taylor. 7 Ms Taylor had been involved in a domestic relationship with the complainant for a period of some months. Their relationship came to an end about two months prior to 16 December 2000. 8 Following their separation Ms Taylor applied to the Grafton Local Court for an order restraining the complainant from making contact with her. She alleged that the complainant had been telephoning her in an attempt to resume the relationship. She considered this contact to be harassment. 9 About one week after her separation from the complainant Ms Taylor commenced a relationship with the appellant. She moved to the appellant's home at Tyndale with her son. Ms Taylor alleged that on 1 December 2000 the complainant telephoned her and spoke in an abusive and threatening manner in breach of the terms of the apprehended violence order that she had obtained. This matter was reported to the police. Arrangements were made for a police officer to speak to the complainant. In the event, the police failed to locate him. 10 On the morning of 16 December 2000 Ms Taylor was speaking with a man named Alan Egan near the mill when she heard a wolf whistle. She saw someone walking towards her from the mill and believed it to be the complainant. She told Mr Egan that she did not wish any trouble. She drove to the local hotel where she telephoned the Grafton Police. Senior Constable Lysaght and Constable Trivett responded to her call and attended the mill in an endeavour to speak with the complainant. They were not able to locate him. 11 At about 6:00 pm on 16 December 2000, Ms Taylor picked up the appellant from work. She told him what had happened earlier in the day and, on her account, the appellant became angry. The couple drove to the Ulmarra Hotel where they each consumed a beer. Before leaving the hotel the appellant purchased three cans of rum and coke. He and Ms Taylor then drove to the mill. Ms Taylor said the appellant expressed his wish to sort the issue out with the complainant. The appellant drank two cans of pre-mixed rum and coke in the course of the trip. 12 Ms Taylor dropped the appellant off near the mill. She said that she had not wished to have any confrontation with the complainant. 13 The owner of the mill, Paul Jones, lived in the grounds of the mill. Around 6:00 pm on 16 December as he entered his residence he saw the appellant. He said that the appellant was in a very agitated state, pacing back and forth. The appellant asked where the complainant was. Mr Jones told him that the complainant was at the mill and enquired what was going on. The appellant responded saying he had come, "to sort this show once and for all" (Jones, T 206.16). During this conversation Mr Jones said that the appellant stated that, he was, "going to kill that bastard" (Jones, T 207.53). The appellant left Mr Jones' premises, jumping over some thirteen steps and landing on the concrete slab at the bottom of the stairs. 14 A number of persons were present at Mr Jones' premises and witnessed his conversation with the appellant. One of these persons was Kieren Kelly. Mr Kelly went to the mill to warn the complainant of the appellant's approach. 15 After receiving Mr Kelly's warning the complainant saw a white Ford parked in the showground. He saw Ms Taylor sitting in the vehicle and he approached her. As the complainant came near the white Ford Ms Taylor alighted from it and began to hit him. She said that she had taken hold of his shirt with her left hand and hit him with a closed right fist about the face. She kicked him in the shins and broke her toe because she was not wearing shoes at the time. 16 Ms Taylor estimated that the entire incident lasted between ten and fifteen minutes. She said that the complainant had not hit or grabbed her at all. He had not put his hands up to her throat. His arms had remained by his side, although at one stage he had raised them in order to fend off her blows. 17 A short time after Ms Taylor stopped hitting the complainant she saw the appellant running across a paddock towards them. The complainant was facing Ms Taylor with his back towards the appellant. He asked why she had struck him. Before she was able to answer the appellant reached them and hit the complainant across the back and shoulders. Ms Taylor said that she heard the complainant say, "Oh fuck" and he then fell to the ground (Taylor, T 67). The complainant attempted to stand up. He was on his knees when the appellant struck him a second time to the back of his head. After the first blow the complainant appeared to be groggy, stunned and unbalanced. The second blow, according to Ms Taylor, knocked the complainant unconscious. Immediately after this blow the appellant went to strike the complainant again. Ms Taylor said that she ducked under the blow, pushing the appellant in the stomach and causing him to lose his balance. Yvette Egan, who was present at the scene, gave evidence that she had not seen Taylor do this. 18 Kieren Kelly, Terry O'Driscoll, Yvette Egan, Alan Egan, and Dillon Portis all witnessed the incident. Each gave an account that the appellant had struck the complainant three times. 19 The complainant said that he had returned from the pub after lunch between 4:30 pm and 5:00 pm. He was fixing motorbikes at the mill. While he was doing this Dillon Portis approached him and told him that the appellant was at the mill and that he was going to give him a hiding. Dillon told him that the appellant was "going off his head" and that he wanted to kill him (Billett, T 12). 20 The complainant saw Leah Taylor sitting in her car in the showground. He said he walked over to the car to see if she was all right. When he got to the car he said that Ms Taylor jumped out of it, yelling obscenities and punched and kicked him. Some of the blows connected with his head. Ms Taylor was saying that she would send him to jail. When he asked why she replied that it was because he had been ringing her and harassing her. He said that he had not thrown any punches at Ms Taylor, nor had he tried to grab her. On his account he responded to the assault on him by backing away, putting his arms up in an attempt to shield himself from the blows. He said that he had talked to her in an endeavour to calm her down. 21 None of the witnesses to the incident gave evidence of observing the complainant choking or attempting to choke Ms Taylor. None gave an account of seeing him place his hands near her neck. 22 After the appellant struck the complainant Ms Taylor ran to the car and got into the driver's seat, unlocking the passenger side door for the appellant. He dropped the piece of wood with which he had stuck the complainant on the ground.