R v Williams (2) [2018] NSWDC 168

District Court New South Wales

Medium Neutral Citation: R v Williams (2) [2018] NSWDC 168 Hearing dates: 25 June 2018 Date of orders: 25 June 2018 Decision date: 25 June 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Previous ruling will not be altered. Catchwords: CRIMINAL LAW – Whether offence under s 35(2) Crimes Act is an offence of "specific intent". Legislation Cited: Crimes Act Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: McIlwraith v R [2017] NSWCCA 13 R v Brady [2012] NSWDC 222. R v Grant (2002) 55 NSWLR 80, R v Willliams [2018] NSWDC 163 Category: Procedural and other rulings Parties: The Crown Darryl Mark Williams Representation: Counsel: B Rowe (Crown) N Mikhaiel (Accused)

Solicitors: Director of Public Prosecutions (Crown) Peter Murphy Criminal Law File Number(s): 2017/60992

Judgment 1. HIS HONOUR: Following the judgment I delivered on Thursday R v Willliams [2018] NSWDC 163 concerning whether an offence under s 35(2) of the Crimes Act 1900 is a crime of specific intent or not, this morning, the Crown drew my attention to a decision of his Honour Judge Blackmore, R v Brady [2012] NSWDC 222. I read this judgment and took the opportunity of drawing the attention of the parties to the decision of McIlwraith v R [2017] NSWCCA 13. I was not referred to the case by either of the parties, but became aware of it over it the weekend. 2. In the judgment I delivered last Thursday, I did note that I was aware of different judges of this Court having differing views as to whether an offence under s 35(2) of the Crimes Act 1900 was a crime of specific intent. The decision of Blackmore J is merely illustrative of that observation. 3. On the other hand, the Court of Criminal Appeal decision in McIlwraith v R is supportive of the conclusion I reached last Thursday, the Court there finding that an offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was an offence of specific intent. The Court held that the trial judge was wrong to regard the fact that knowledge of a likely result is a lesser requirement than an intent to cause a specific result meant that the offence her Honour was then dealing with was not a crime of specific intent. The Court adopted the reasoning in R v Grant (2002) 55 NSWLR 80, as did I in my earlier judgment. 4. The Court also referred to the practical considerations which were relied on in R v Grant, pointing to the complexity of jury directions if the charge could be based on specific intention and knowledge of likely consequences. The Court held that that in itself would be a significant reason to doubt that the legislation was intended to be understood the way the Crown would like me to understand it. 5. The result is that I will not alter the ruling I made last Thursday.