R v Jacobs [2009] NSWSC 235

New South Wales Supreme Court

CITATION : R v Jacobs [2009] NSWSC 235 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23 February - 5 March 2009

JUDGMENT DATE : 12 March 2009

JURISDICTION : Criminal

JUDGMENT OF : McClellan CJatCL at 1

DECISION : Accused not guilty. Verdict of acquittal entered.

CATCHWORDS : CRIMINAL LAW - particular offences - offences against the person - murder - intention to kill - criminal liability and capacity - self defence - CRIMINAL LAW - procedure - trial had before judge without jury - election

LEGISLATION CITED : Criminal Procedure Act 1986

CATEGORY : Principal judgment

PARTIES : Gregory William Jacobs (Accused) The Crown

FILE NUMBER(S) : SC 2008/13631

COUNSEL : W A Dawe QC/P Bodisco (Accused) A Robertson (Crown)

SOLICITORS : Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

McCLELLAN CJ at CL

THURSDAY 12 MARCH 2009

13631/08 JACOBS, Gregory William

JUDGMENT 1 HIS HONOUR: Gregory William Jacobs was arraigned on an indictment charging him with the murder of Xandre (Sandy) Jacobs on 10 March 2008 at Ingleside in the State of New South Wales. He entered a plea of not guilty. The trial was fixed to commence on 23 February 2009. 2 The accused signed a form of election under s 132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. He signed that form on 18 February 2009. He stated that before making his election he had sought and received advice in relation to the matter from Mr Greg Walsh. Mr Walsh is a solicitor and acts for the accused in connection with these proceedings. 3 On 18 February 2009 the Director of Public Prosecutions consented to the trial of the accused proceeding before a judge alone. I am satisfied that before making the election the accused obtained advice in relation to the election from an Australian legal practitioner. The trial has proceeded before me as a judge sitting alone. 4 Section 133(1) of the Criminal Procedure Act 1986 provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account in dealing with the matter (s 133(3)). 5 The burden of proof lies on the Crown. It is incumbent on the Crown to establish each element of the offence beyond reasonable doubt. The accused raised four issues: self-defence, diminished responsibility, provocation and automatism. 6 In relation to the offence of murder the Crown must prove beyond reasonable doubt that the act of the accused, which caused the death of the deceased, was voluntary in the sense that it resulted from an exercise of will on the part of the accused. A voluntary act is to be distinguished from an act which was done accidentally. The Crown must also prove beyond reasonable doubt that the act of the accused that caused the deceased's death was done with the intention of killing her or with the intention of inflicting grievous bodily harm upon her. Grievous bodily harm means really serious bodily injury. 7 If I am satisfied that the Crown has proved the elements constituting the offence of murder I am required in the present case to consider issues of self-defence, diminished responsibility and provocation. 8 If the Crown has not proved the relevant intention for murder the accused may nevertheless be guilty of manslaughter if the act of the accused which caused the death of the deceased was voluntary and both an unlawful and dangerous act. The application of force by one person to another without the other's consent is an assault and is unlawful. An act is dangerous if a reasonable person in the position of the accused would have realised (whether or not the accused in fact realised) that it involved a significant risk of causing serious injury. If the Crown has proved beyond reasonable doubt the elements of manslaughter, it will be necessary to again consider self-defence. If the Crown has not excluded self-defence, the accused is not guilty of manslaughter and must be acquitted. 9 With respect to self-defence, although described as a "defence", it provides matters which the Crown must prove beyond reasonable doubt. The Crown must prove beyond reasonable doubt that the death of the deceased was not done in lawful self-defence. This may also be expressed in terms that the Crown must exclude any reasonable possibility that the accused acted in lawful self-defence. The questions which I must consider in relation to self-defence are: