District Court New South Wales Medium Neutral Citation: Matthew Domio [2018] NSWDC 16 Hearing dates: 05 February 2018, 06 February 2018, 07 February 2018, 08 February 2018 Date of orders: 08 February 2018 Decision date: 08 February 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Jury Directions Catchwords: Assault causing death while accused intoxicated, Summing up to jury, causation - a statutory or common law test? Legislation Cited: Crimes Act 1900 Cases Cited: Andrew v R [2000] NSWCCA 310 R v Mofatt [2000] NSWCCA 174 Texts Cited: Quitler, J, (2014) One punch laws, Mandatory Minimums and 'Alcohol-Fuelled' violence as an aggravating factor: Implications for NSW Criminal Law. International Journal for Crime, Justice and Social Democracy 3(1); 81-106 Category: Procedural and other rulings Parties: Matthew Domio (Offender) Director of Public Prosecutions Representation: Counsel: Mr Flynn (for the offender) Mr M Clarke (for the Director of Public Prosecutions) Solicitors: Ms Quinn (for the offender) Mr D Coulton (for the Director of Public Prosecutions) File Number(s): 2015/00154250 Judgment 1. Matthew Domio is on trial at Wollongong District Court charged with an offence of assault causing death aggravated by him being intoxicated: s25A(2) Crimes Act 1900. This matter had been to trial before me in 2016. That jury could not agree and were eventually discharged. 2. A jury was empanelled this Monday, 05 February 2018. The Crown case has now closed. No defence evidence was called. The jury have been given a written direction setting out the elements that must be proved and key terms: MFI 12. Counsel have just addressed. I will sum up to the jury after lunch 3. In short summary it is alleged that on 24 May 2015 Matthew, then 29 years old and his father Dario Domio, then 56 years old, were drinking at the family home in Dapto. Both were heavily intoxicated. 4. Dario Domio had a number of physical and mental health problems. He had recently been detained for a short period at Shellharbour Hospital. At times when Matthew was growing up Dario was violent toward him. It is alleged that following an argument Dario stood up and "got in Matthew's face." Instead of restraining him, as he had done on a number prior occasions when confronted by his father, Matthew "lost it" and intentionally hit his father to the jaw. The blow fractured Dario's jaw and loosened a tooth, which soon after came out. Dario fell to the carpet unconscious. 5. Matthew immediately called to his brother Adam, who was in another room, to come and help. Matthew then ran off to nearby house where Mr Meyers and Mr Weston lived. Earlier that day he was involved in a drunken dispute with those men at that house. 6. Dario Domio soon regained consciousness. When Matthew returned he abused him. Dario phoned his wife, Mathew's mother. He complained to her of being hit and losing a tooth. He resumed drinking. An hour or so later he slumped in chair. It soon became apparent that he was unconscious not asleep. An ambulance was called. Dario was operated on. Dario Domio never regained consciousness. Life support was withdrawn and Dario died on 26 May 2015. 7. Counsel have just addressed. There is no issue an incident occurred at the Domio home on the 24 May 2015. There is no issue that Matthew Domio was over 18 at the time. No issue that at the time Matthew Domio was intoxicated. There is no issue that Matthew Domio hit his father to the head and that Dario Domino fell to the ground and was for a short period unconscious. There is no issue that Dario Domio died from a brain injury that he could not recover from leading to his life support being turned off. 8. The critical issues remaining for the jury are: 1. Whether the hit by Matthew to Dario Domio's head and the injuries resulting from the consequent fall to the carpet caused the death. 2. Whether the Crown can rebut a lawful excuse of consent. 3. Whether the Crown can rebut a lawful excuse of self-defence. 1. I will sum up after lunch. Before I do I wish to raise three points. 2. Firstly: I intend give a context direction concerning an incident at Mr Myers' house that occurred very soon before the incident. They jury will be cautioned against tendency reasoning. They will be advised that the evidence goes to the state of mind of the accused when he hit his father. The evidence, which was admitted without objection cuts both ways. The Crown say: well the accused was angry, he was intoxicated; he was involved in a scuffle just before hitting his father. The defence say; well, all of those things may be true but he didn't hit anyone then. 3. Secondly: Yesterday I raised with Mr Flynn whether consent had been raised by the evidence. Despite my reservations I gave the jury written direction on the point: MFI 12. I will have to direct the jury that you cannot consent to an assault which occasions actual bodily harm. I will have to tell the jury that actual bodily harm means any hurt or injury that interferes with the health or comfort of a person. The harm does not need to be permanent, but it must have more than a fleeting or trivial effect upon the person hit. I can't for myself see how having your tooth loosened so it falls out, and a jaw fracture, would be other than actual bodily harm. While I will tell the jury it is a matter of fact for them, it is not the defence's strongest point. 4. The third matter concerns a direction to the jury I gave during the last trial as to causation. I used the phrase from the common law, "substantial or significant contribution to the death". I do not intend to use that phrase in this direction. 5. Section 25A (3) reads: For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault. It is not well a particularly well drafted subsection. I parse the subsection this way: An assault causes the death of a person, where the person is killed: 1. as a result of the injuries received directly from the assault; or 2. as a result of the injuries received directly from hitting the ground (or an object) as a consequence of the assault. 1. A critical word here is "directly". In Andrew v R [2000] NSWCCA 310, is an example of the Court of Criminal Appeal, reminding Judges, when giving the common law direction as to causation that it is wrong to suggest to the jury they should search for the principal cause of death: "…it was an error to instruct the jury to determine the cause of death by making a selection from various acts left to them by the trial judge for this purpose. "[I]t is a misapplication of principle to attempt to search for a principal cause of death": R v Mofatt. [2000] NSWCCA 174, per Wood CJ at CL at [66]. A fortiori, the cause of death." At [60]. 1. But with s25 A the legislature has set in s 25A (3) what must be proved to establish causation. The section commences with the words "For the purposes of this section …" By incorporating a causation clause the legislature has evinced clear intention that the common law be displaced. A further example of that intention is the confining of the assault to "intentional hitting." 2. Accordingly, any direction to the jury must keep the jury's focus on the words of the sub-section. Were I to include in the direction the words "substantial or significant contribution to the death" I would be in error. 3. In the circumstances of this trial, were no object was involved and it is not suggested the hit to the jaw directly caused the death, I intend to direct the jury: An assault causes the death of a person, where the person is killed as a result of the injuries received directly from hitting the ground as a consequence of the assault. 1. It appears the legislature have confined section 25A to a particular and narrow category of unlawful deaths cases: see Quitler, J, (2014) One punch laws, Mandatory Minimums and 'Alcohol-Fuelled' violence as an aggravating factor: Implications for NSW Criminal Law. International Journal for Crime, Justice and Social Democracy 3(1); 81-106. 2. Practically it will make no significant difference in this trial. The Crown case has always been that that the injuries arose directly from the Dario Domio hitting the ground, as a consequence of an unlawful and intentional hit by his son. There is no other cause of death put forward other than traumatic arterial bleeding leading to a large clot under the dura of the brain (a subdural Haematoma) followed by subsequent pressure from the clot and brain swelling led inevitably to death despite medical intervention. The defence response on the question of causation is that Matthew did hit his father and there was a fall to the ground but there is an alternative explanation for the arterial bleeding which led to the death; being the possibility of another undocumented fall. ********** Amendments 20 February 2018 - 20/2/18 Typographical error in paragraphs 1, 2 and 7 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2018