DPP v Myers

1. Stewart Myers (the accused) was found unfit to plead by Taylor J in a judgment dated 21 November 2024: DPP v Myers [2024] ACTSC 373. Accordingly, a special hearing of the charge against the accused pursuant to s 316 of the Crimes Act 1900 (ACT) (Crimes Act), was conducted by judge alone in accordance with an election by the accused.

2. The accused faces one charge under s 19 of the Crimes Act: (a) That on 9 November 2022 at Canberra in the Australian Capital Territory Stewart Myers intentionally inflicted grievous bodily harm on RM (the complainant).

3. Were the accused fit to plead, the maximum penalty for an offender found guilty of this offence is 20 years’ imprisonment.

4. The accused was not present for most of the special hearing, from its commencement, and his behaviour satisfied me that he refused to participate at his own hearing. Notwithstanding, counsel for the accused was prepared to continue to act on the accused’s behalf for the entirety of the hearing, and accordingly, the Court exercised its discretion to continue the hearing. My detailed reasons for the hearing to proceed in the absence of the accused are set out in DPP v Myers (No 2) [2025] ACTSC 354.

5. I respectfully adopt the procedures to be followed in a special hearing, as outlined by Mossop J in R v Chute (No 10) [2019] ACTSC 73 (Chute (No 10)) at [6] to [12]: 6. The special hearing has been conducted as a trial by judge alone as a result of an election made by a guardian appointed by the Australian Capital Territory Civil and Administrative Tribunal (ACAT): see R v Chute (No 4) [2018] ACTSC 259 at [6]-[7]. At the special hearing the accused is taken to have pleaded not guilty: Crimes Act, s 316(8). Notwithstanding his unfitness to plead, the accused was legally represented at the special hearing and his unfitness was not taken to be an impediment to that representation: s 316(6)-(7). The purpose of the special hearing as articulated in s 316(9)(c) is to ensure, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, that he should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offences charged. 7. The verdicts available at a special hearing are described in s 317. If the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged then the judge is obliged to find the accused not guilty of the offence charged. On the other hand, if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged, the finding is not a basis in law for recording a conviction for the offence charged and, unless the accused becomes fit to plead after the special hearing, the finding bars further prosecution of the accused for any offence in relation to the conduct: s 317(3)-(4). 8. Prior to its amendment in 2004, the requirement in s 317 for a verdict of non-acquittal was that the accused person “committed the acts that constitute the offence charged”. The confusion arising from the use of this form of words and the terms of the relevant explanatory memorandum was described by Crispin J in R v Ardler [2003] ACTSC 24; 175 FLR 272 at [13]-[29]. A reference appeal was brought by the Crown in order to determine the correctness of the approach taken by Crispin J: R v Ardler [2004] ACTCA 4. However, after the appeal was argued, but before it was decided, the Crimes Amendment Act 2004 (ACT) came into effect. That Act relevantly substituted for the words “committed the acts that constitute the offence charged” the words “engaged in the conduct required for the offence charged”. It also defined the term “conduct” and “engage in conduct” by reference to the definition of those terms in s 13 of the Criminal Code 2002 (ACT). Those definitions are: conduct means an act, an omission to do an act or a state of affairs. … engage in conduct means- (a) do an act; or (b) omit to do an act. 9. The definitions in s 13 of the Criminal Code do not pick up the concept of “physical elements” in s 14 and hence the requirement for voluntariness in s 15. Notwithstanding that, it does appear to have been the legislative intention to incorporate the requirement for voluntariness in s 15. The explanatory statement for the Crimes Amendment Bill (No 2) 2004 provided, relevantly: The term “engage in conduct” is inserted. The term is derived from the existing definition under the Criminal Code 2002 and shall have the same meaning as that given to the term under the Code. This definition includes only the physical elements of the offence, and includes omissions. … Clause 5 substitutes the term “engage in conduct required for the offence charged (or an offence available as an alternative to the offence charged)” for the current phrase “committed the acts that constitute the offence.” This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The prosecution is not required to establish intent, or any mental element, of any offence. 10. The reference to physical elements is apt to pick up the requirement for voluntariness in s 15. In the present case I have proceeded on the basis most favourable to the accused, namely that the prosecution needs to prove that the accused did or omitted to do an act and that the conduct was voluntary. Examples of involuntary conduct given in the Criminal Code include spasms, convulsions or other unwilled bodily movement, acts during sleep or unconsciousness or an act done during impaired consciousness depriving the person of the will to act. The prosecution is not required to prove intention or other mental element for the offence. 11. For offences of the type charged in the present case, s 318 describes the powers of the court if the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. Section 318(2) provides: (2) The Supreme Court may make the orders that it considers appropriate, including— (a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. 12. It is significant to note that the use of the word “may” indicates that the making of orders is discretionary and that the use of “including” indicates that the range of orders that may be made is not exclusively defined by paragraphs (a) and (b). That contrasts with the provisions of s 319, which relate to non-acquittal at a special hearing in relation to a “serious offence”, where the Supreme Court is obliged to make one or other of the particular orders set out in s 319(2).

6. The principles in Chute (No 10) were recently applied by Kelly AJ in DPP v Rossiter (No 5) [2025] ACTSC 328 (Rossiter (No 5)).

Elements of the offence

7. It is necessary for the prosecution to prove the following elements of the charge beyond reasonable doubt: (a) That the accused voluntarily engaged in conduct; and (b) That the accused’s conduct resulted in grievous bodily harm being inflicted on another person.

8. In a special hearing, only the physical conduct making up the offence in question must be proved: see s 317 of the Crimes Act. Accordingly, it is not necessary for the prosecution to prove that the accused intended to inflict grievous bodily harm.

General directions

9. The general directions which I apply are those set out by Kelly AJ in Rossiter (No 5) at [5] to [13], which I respectfully adopt: 5․ Section 316 of the Crimes Act dictates that a special hearing must be conducted as nearly as possible to an ordinary criminal proceeding. 6․ Section 68C of the Supreme Court Act 1933 (ACT) requires that in a trial by judge alone, reasons must be given for the verdict, which include the principles of law applied by the judge and the findings of fact on which the judge relied. Further, if a territory law requires a warning or direction to be given or a comment to be made to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict. The importance of including the principles of law as well as the warnings and directions that would be given to a jury in these reasons has been emphasised by the decisions of the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250 and AK v The State of Western Australia [2008] HCA 8; 232 CLR 438. 7․ I will now identify the principles of law which I have applied and the general directions that would have been given to a jury had one been determining the outcome of this matter. 8․ The prosecution bears the burden to prove the case against the accused, beyond reasonable doubt. That burden does not ever shift to the accused. The accused is presumed to be innocent unless and until the prosecution establish that the accused is guilty beyond reasonable doubt. 9․ It follows that if I am left unable to decide whether the prosecution has proved its case beyond reasonable doubt, even though I might suspect the accused committed the offence, the accused is entitled to the benefit of that doubt and I cannot conclude that he is guilty of the offence. 10․ The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. I must determine the relevant facts, according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. In assessing the evidence, I must apply my common sense and life experience. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion into the decision-making process. I must determine whether each of the witnesses is a reliable witness. That is whether the witness has an accurate memory of the event, about which the witness has given evidence. 11․ I am not required to accept the witness’ evidence entirely or to reject a witness’ evidence entirely. I can accept part of a witness’ evidence if I consider I am able to rely upon it and reject the rest of their evidence if I consider I am unable to rely upon it. 12․ I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances. 13․ The accused did not give evidence in these proceedings. There is no obligation on him to give or call evidence in a criminal trial and therefore has no obligation in a special hearing. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case, nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.

10. Ms AB was called as a prosecution witness and was provided with an intermediary to assist with giving her evidence in Court. I direct myself, in accordance with s 4AM of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMPA), that a witness giving evidence in the presence of an intermediary is a usual practice. I must not draw any inference against the accused or give the evidence of the witness more or less weight because the intermediary is present.

11. The complainant was accompanied by a support person while giving his evidence in Court. I direct myself, in accordance with s 49 of the EMPA, that a witness having a support person in the Court while giving evidence is a usual practice. I must not draw any inference against the accused or give the evidence of the witness more or less weight because a support person is present.

12. A pre-recording of an evidence-in-chief interview between the police and the complainant formed part of the complainant’s evidence-in-chief before me. The audiovisual recording of the interview was admitted into evidence. I direct myself, in accordance with s 57 of the EMPA, that the admission of an audiovisual recording is a usual practice. I must not draw any inference against the accused or give the evidence of the witness more or less weight because the evidence was given in this way.

13. Some of the evidence led at trial, including the evidence of the witnesses Ms CG and Mr DC, was given by audio link from a location remote from the courtroom connected to these proceedings. I direct myself that giving evidence by audio link is a usual practice and that I must not draw any inference against the accused or give the evidence of the witness more or less weight because evidence is given remotely.

14. These principles and directions are qualified by the matters referred to in Chute (No 10) as set out at [5] above.

Expert evidence

15. An expert witness is someone who has specialised knowledge based on study, training or experience. An expert witness, with specialised knowledge, may express an opinion on matters within the expert’s area of expertise, unlike other witnesses.

16. Dr Emily Rushton was called as an expert witness by the prosecution. Dr Rushton, who at the time was a forensic medical officer, examined the complainant on the night of the incident on 9 November 2022 at the Canberra Hospital Emergency Department. Her report dated 1 June 2023 was also tendered into evidence by the prosecution.

17. I direct myself that the value of any expert opinion is only as good as the facts on which the opinion is based. It is also dependent upon the degree to which the expert analyses the material upon which the opinion was based and on the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

18. Further, I direct myself that if, upon careful consideration of her evidence, I do not accept Dr Rushton’s evidence, I do not have to act upon it. To a degree, I am also entitled to rely on my own experiences and common sense, if that is relevant to my consideration and assessment of the expert evidence. Dr Rushton’s evidence was admitted without challenge from counsel for the accused. Therefore, I may not reject her evidence unless I have a good reason to reject it. While I am not obliged to act on the expert evidence, I must not disregard unchallenged evidence capriciously.

The prosecution case

19. The prosecution case is that the accused struck the complainant on the face and head three to four times when a verbal argument ensued in a garage in the backyard of Ms AB’s home on the afternoon of 9 November 2022. The accused is alleged to have struck the complainant with some form of a pole. It is alleged that at some point after being struck, the complainant moved from the garage, up the stairs into the backyard, and fell to the ground. The accused allegedly followed and, after abusing the complainant, stomped the complainant’s legs and his head, causing the complainant to lose consciousness.

20. I heard evidence from the complainant; three witnesses, namely Ms AB and two neighbours (Ms CG and Mr DC); and from Dr Rushton.

21. By consent, a number of documents and recordings were tendered including: (a) Recordings of 000 calls made by Ms AB and Ms CG; (b) Medical report of the complainant by Dr Rushton dated 1 June 2023; (c) A bundle of photos of the complainant taken by Dr Rushton during medical examination; (d) A six-page bundle of photographs taken by Officer Watts on 9 November 2022 of the premises at Emu Bank; (e) Body-worn camera footage of Detective Beau Saddler on 9 November 2022; (f) Body-worn camera footage of Detective Craig Rowell on 9 November 2022; (g) Four photographs taken on 9 November 2022 by forensics member Mel Tan; and (h) The transcript of an AFP record of evidence-in-chief interview with the complainant dated 15 December 2022, which was marked for identification. The evidence

Factual setting

22. It is necessary first to set out the scene of the incident which was at Ms AB’s home in Belconnen. The property forms part of a contiguous development of residences, including detached, semi-detached and high-rise unit developments, and viewed from the front, the property falls from the right towards the left-hand side. There is a driveway on the far left-hand side of the property. The improvements on the property consist of a detached dwelling, a garage, a rear shed, a sealed driveway and concrete stairs leading up to the yard at the rear of the house; a portion of this yard is also covered in concrete. As a result, a portion of the dwelling and the shed sit well below the level of the rear yard area. Consistent with the earlier described topography of this site, adjacent and to the right of the property is a block of residential units which, consequentially, sit well above the subject premises. At the rear of the house property of Ms AB, there is a courtyard area on which is a couch. There is also a small shed and a garage where the accused was residing with his dog. The concreted stairs lead from the courtyard area down to the garage.

23. The tendered photographs of the premises at Emu Bank disclose the physical state of the garage that the accused was living in at the time. In the garage, there was a mattress, a brown table, two chairs, and a baby cot. There were numerous cigarette butts and rubbish strewn across the floor. There is a photo of a form of pole that was allegedly used by the accused. There are also photos of stains and a puddle of blood on the ground outside.

24. The other witnesses in this case are Ms CG and Mr DC. Ms CG and Mr DC lived together in an apartment complex in Belconnen near Ms AB’s home. They were on the second floor of the apartment. From their bedroom window and the balcony, they could see straight down into the courtyard of Ms AB’s property. Ms CG described that from her unit, she could see the driveway out the front of Ms AB’s property where the cars are, but not the garage. Mr DC said that the view is “quite aerial”, and that their unit would be “about five storeys up from the ground” of Ms AB’s property. Mr DC said that the top of the house, the roof, the side wall, the back wall, and then the whole backyard are visible. He observed that there was a shed in the back corner of the courtyard. Ms CG and Mr DC did not know the accused, the complainant or Ms AB.

The complainant

25. The complainant met the accused at work. His relationship with the accused was mostly work-based, and the two had not met outside of work until the two days leading up to the incident. At the time of the incident, the complainant had known the accused for around a few months.

26. On 8 November 2022, the day before the incident, the complainant had been “hanging out” and drinking with the accused and the accused’s partner, Ms AB. The complainant said that the accused and Ms AB had started “bickering” at each other. In particular, the complainant recalled the accused began getting jealous and had asked, “why does [Ms AB] keep looking at [the complainant]”. The complainant left the property at this point.

27. Later, on the day of the incident, the complainant received a call from Ms AB. The complainant said Ms AB had told him she had to leave her house because the accused was “going psycho” and had been nagging her. Ms AB told the complainant she did not want to return to her house by herself. The complainant then drove to Jamison Centre, picked up Ms AB, and dropped her off at her house.

28. After dropping Ms AB at the house, the three began drinking whiskey, whilst sitting on chairs placed in the garage of the house. The complainant started talking to Ms AB and the accused. The complainant estimated he had “three to five” drinks that night, with the accused drinking a similar amount, and Ms AB drinking less. The complainant said that at the time of the incident he was “quite drunk”.

29. The complainant said that during the conversation, the accused had tried to “sort things out” with Ms AB, and that Ms AB was not interested in making up. The accused tried to ask the complainant to help “sort out things” between the accused and Ms AB. The complainant said he “did what [he] could”, but the accused and Ms AB continued to bicker. The complainant was telling the accused words to the effect of “[g]ive her space” and “leave her alone for, like, five minutes”.

30. The complainant said that the conversation then “turned awkward for a bit”. The complainant thought that “something got said or something that must have ticked [the accused] off.” The complainant said the accused then got up from where he was sitting and started attacking him. The complainant said he was unable to recall what happened immediately before he was hit or what exactly had been said. He was unable to recall if he had been acting aggressively towards the accused during the period before he was hit, or whether he had been sitting or standing at the time.

31. The complainant said that he thought the accused first hit him once in the nose with a closed fist, causing the complainant to land on the ground “in a heap”. The accused then went and grabbed what the complainant thought at the time was a bat. The complainant said the accused then got on top of him and began hitting him in the head repeatedly with the object. The complainant was unable to recall how many times he was hit in the head, either with fists or by the object.

32. The complainant said the accused eventually stopped hitting him. He thought the attack may have ceased because two unidentified people arrived at the house and told the accused to stop. The complainant then yelled at Ms AB to call the police.

33. The complainant said he had blacked out for periods of time after this, but that he remembered the police arrived at some point while he was in the driveway of the house. He told the police what had happened while waiting for an ambulance to arrive. As recorded by police body-worn camera footage, while the police were present the complainant had a short exchange with the accused. The complainant agreed he had said words to the accused to the effect of “I’m going to knock your head off”. He agreed that he had acted aggressively towards the accused in the exchange captured by body-worn camera, “given the situation”, but did not believe he was acting aggressively towards the accused before police arrived.

34. When the ambulance arrived, the complainant had an argument with paramedics about which hospital he was being taken to. Under cross-examination, the complainant said he may have argued aggressively with the paramedics “to a degree”. The complainant was eventually taken for treatment at the Canberra Hospital in Woden.

35. At the hospital, the complainant was examined by a forensic medical officer, who conducted x-ray and computer tomography scans on the complainant. The complainant said he sustained facial and skull fractures, including to the nose and eye socket. He also indicated a protruding bump on his forehead and lumps on the back and top of his head as a result of the fractures.

36. The complainant gave evidence of the long-term impact of the injuries he had sustained. He said he sometimes got headaches and had problems with “fuzzy vision”, and that he was unable to breathe through his nose at all. The complainant demonstrated to the Court that he still had a visible protruding lump in the middle of his lower forehead, above the bridge of his nose, which he said made him feel “ugly”. The complainant said he had refused surgery to address his facial fractures.

37. The complainant said that his memory of the period between being hit and being in hospital was “hazy” but that he otherwise had no issues with his memory of the incident.

Ms AB

38. Ms AB met the accused on Facebook. She did not know the accused but she reached out to him as she “liked the look of him”. She had known the accused for around two years at the time of the incident. She let the accused stay at her house as she felt pity for his situation. He lived in her garage free of charge. She said that they were not in a committed relationship, but she described them as “friends with sex”. At the time of the incident, the accused had lived for approximately six to seven months in her garage.

39. In the morning of the incident, the accused asked Ms AB to be in a relationship with him. They had an argument after he accused Ms AB of cheating when she was texting one of her friends. The accused told her she was not allowed to talk to her family or friends. Ms AB left her house as she felt scared of the accused.

40. Ms AB was dropped off at Jamison Park by her mum and she contacted the complainant. She asked him to pick her up from Jamison as the accused was still at her house and she “felt scared” about the accused’s “coercive” behaviour towards her. When the complainant came to pick her up, he convinced her to return to her home and “try and work out this relationship together with” the accused.

41. Ms AB, the complainant and the accused went to the garage and consumed alcohol together. Ms AB and the accused also smoked marijuana. The complainant did not smoke any marijuana. Ms AB said she “was probably more stoned than drunk” at the time.

42. She says that the complainant made a certain comment, which she could not recall, and then the accused “flipped out and it’s - it sent him crazy and he just - he just went crazy; he had this crazy look in his eye. It’s - and it wasn’t - it was like he - it wasn’t him anymore. It was weird”. Ms AB said that the accused started to yell and scream at the complainant. Then the accused grabbed a metal pole from the ground in the garage. Ms AB said that the accused had kept the pole in the garage “for protection from the neighbourhood because he was worried about his safety”.

43. After grabbing the pole, the accused hit the complainant on the face. She said that the complainant fell onto the mattress in the garage the second time the accused hit him with the metal pole. Ms AB does not remember exactly how many times the accused hit the complainant but that he hit him “again and again and again”, mainly on his face. She said that there was a lot of blood, and her cement was stained by the blood.

44. She remembers yelling at the accused to stop but that he did not stop, and that he told her that she “would be next”.

45. Ms AB said that the complainant looked unconscious on the mattress and that he was not moving.

46. The accused then left out the open garage door with his dog. The last thing she remembers is being on a stretcher in an ambulance. She does not remember anything after that. She said she could not remember calling the police as she was in shock.

47. When it was put to her that the accused punched the complainant, Ms AB said he never punched the complainant, and that he only used the metal pole on the complainant.

48. Ms AB also denied that the complainant was ever violent with the accused.

49. Ms AB still has nightmares and flashbacks of the complainant getting hit by the metal pole.

Ms CG

50. On the morning of 9 November 2022, Ms CG woke up at about 6am as she heard a male and a female screaming and yelling. She looked outside her bedroom window and could see a man and a woman yelling at each other. She called the police. Her partner, Mr DC, was asleep at the time.

51. Ms CG then went to work that day and came home around that afternoon. Her partner was at home during the day and he texted her saying that the people were still yelling at each other. When she got home, they were both sitting inside their unit on the couch when they heard a loud “crack”. Ms CG ran to the bedroom and Mr DC went to the balcony. She said that they both saw a male standing on top of another man and that he was holding a “thick” stick. She then went to the balcony and saw the male kick the “guy that was laying down in the head a few times”. She remembers seeing him “whacking him with the stick as well”. She remembers seeing a woman yelling at them to stop then seeing the man sit up. There was blood pouring down his face. Ms CG then called the police and paramedics.

Mr DC

52. On the morning of 9 November 2022, Mr DC remembers waking up to his partner, Ms CG, standing and looking outside their bedroom window. He remained at home and heard a lot of yelling from a male and a female throughout the day.

53. Mr DC said that he and Ms CG were both sitting on the couch at home when he heard a “loud crack”. He went out to the balcony and saw one person lying on the ground and another man was standing over the top of him and a woman was there sitting down. Mr DC said it was the same man and woman who were yelling throughout the day.

54. Mr DC said the pole was a metre long and straight. He did not see the pole make contact with the person who was on the ground. Once the man on the ground sat up, Mr DC could see that the man was bleeding quite heavily from the head.

Dr Emily Rushton

55. As outlined above, Dr Rushton was the forensic medical officer who examined the complainant on the night of the incident. I have considered her evidence given in Court and her report dated 1 June 2023.

56. The report was written at the request of ACT Police for an expert opinion on the injuries sustained by the complainant. Her report is based on her contemporaneous notes she took of the complainant on 9 November 2022 and other medical records from the Canberra Hospital and the ACT Ambulance Service. Photos that were taken by Dr Rushton of the complainant were also tendered into evidence.

57. The expert evidence of Dr Rushton was admitted in this case to explain the injuries sustained by the complainant and the possible causation of those injuries, and the possible temporary and permanent sequelae as a result of those injuries. The evidence is capable of establishing that the conduct that the accused voluntarily engaged in resulted in grievous bodily harm being inflicted on the complainant.

58. Dr Rushton’s report outlined the extensive list of injuries observed by her, including: (a) Swelling of the forehead around both eyes and at the back of the head. (b) Bruises around both eyes and of the forehead, right arm, back and left leg. (c) Abrasions of the nasal bridge, forehead, right forearm, tongue, back, right third finger, and left elbow. (d) Lacerations of the forehead and the back of the head. (e) Extensive facial bone fractures. (f) Fractures of the frontal and occipital bones of the skull. (g) Pneumocephalus (air around the brain). (h) Intracranial haemorrhages (bleeding around the brain). (i) Possible parenchymal contusion of the brain (brain bruising).

59. Further, Dr Rushton opined that the complainant had multiple injuries of different types across several anatomical planes of the body and that this “indicates multiple applications of force”. She wrote at p 12 of her report that: a. The bruise injuries were the result of blunt force trauma. It is not possible to determine the exact causative object/s, or the timing of the bruise injuries. i. The bruise injuries to the right upper arm and left lower back had a tramline appearance and were caused by application of force with a linear object. Other mechanisms cannot be excluded. b. The abrasion injuries were the result of blunt force trauma. It is not possible to determine the exact causative object/s. i. The abrasion injuries showed no signs of healing, indicating they were recent injuries. ii. The abrasion injuries will heal and may or may not scar. c. The laceration injuries were the result of blunt force trauma. It is not possible to determine the exact causative object/s. i. The laceration injuries showed no signs of healing and were actively bleeding, indicating they were recent injuries. ii. The laceration injuries will heal and are likely to scar. d. The facial bone fractures were the result of blunt force trauma. It is not possible to determine the exact causative object/s. i. [The complainant] required antibiotic treatment and prolonged maxillofacial surgery follow up for the facial bone fractures. e. The skull fractures were the result of blunt force trauma. It is not possible to determine exact causative object/s. i. The intracranial haemorrhage, pneumocephalus and possible brain contusion are the result of the skull fractures. ii. [The complainant] required antibiotic treatment and specialist neurosurgery management of his skull fractures and intracranial injuries.

60. Dr Rushton opined that the complainant may have temporary or permanent sequelae as a result of his injuries, including: (a) Permanent alteration of the facial appearance. (b) Permanent scarring. (c) Double vision. (d) Altered sensation in the face. (e) The possibility of psychological sequelae relating to the experience of a traumatic event.

61. Dr Rushton’s evidence has assisted me to assess the various injuries sustained by the complainant, its seriousness and the possible causation of those injuries. It especially assisted me in assessing whether grievous bodily harm was inflicted on the complainant.

62. Dr Rushton said in her evidence that the injuries suffered by the complainant were caused as a result of the impact of blunt force upon the centre of the complainant’s face. Dr Rushton gave evidence about the level of force required to fracture the complainant’s midface bones. From her experience, Dr Rushton explained that the facial and head injuries sustained by the complainant suggested that if the injuries had been caused by a fist, the person applying force would have sustained some broken hand bones. Dr Rushton explained that because midface bones are thicker than the metacarpal (bones forming part of the hand), the metacarpal would typically break on impact.

63. I have had the advantage of viewing the state of the accused’s hands shortly after the incident, captured by police body-worn camera footage while the accused was talking to police on Ms AB’s driveway. Although the body-worn camera footage was not of the highest resolution, I was able to observe the accused’s hands, which did not appear red or inflamed in the footage. The accused’s recorded behaviour does not suggest his hands were injured in any significant way. The accused makes a number of gesticulations with his hands while talking to police which do not suggest any impediment to the mobility of his hands. This does not completely align with the expert opinion of Dr Rushton as to the injuries that would be sustained by the accused had the complainant’s injuries been caused solely by the application of the accused’s fist. This evidence allows me to infer that the accused did not just use his hands, but that he also used a tool (such as a metal pole) to strike the complainant’s face and head.

Analysis of evidence

64. Upon my consideration of the witness’ evidence, as is to be expected there are some differences in the accounts of the witnesses. None of these differences caused me to have any doubt about the truthfulness and reliability of the evidence given by these witnesses. Upon my assessment of the whole of the evidence, I was satisfied that the elements of the offence were made out to the relevant level of satisfaction. I will now detail the inconsistencies on the evidence and why they do not affect my assessment of the evidence.

65. Ms AB was affected by alcohol and the consumption of cannabis. The complainant was affected by alcohol. In order for the accused to have first struck the complainant with a pole, he needed to stand up and get the pole. He was sitting at the time. The complainant did not see him do this as he had already been struck hard in the face and was on the floor. I am satisfied beyond reasonable doubt that the first strike of the accused upon the complainant was with a fist, and then with the pole. I consider Ms AB was so shocked and overwhelmed by the events, that her memory on this specific aspect is not sufficiently accurate.

66. Firstly, the complainant said that he thought the accused first hit him in the nose with a closed fist which caused him to land on the ground. Ms AB gave evidence that the accused never punched the complainant and that the accused first grabbed the metal pole and hit the complainant on the face which caused him to fall on the mattress.

67. Ms AB stated that the complainant was standing up when he was hit by the accused with the metal pole. The complainant was unable to say whether he was sitting or standing up when he was hit by the accused.

68. The events that the neighbours Ms CG and Mr DC witnessed occurred in the courtyard and not in the garage. It is not clear on the evidence how or when the accused and the complainant left the garage, or to what extent the injuries sustained by the complainant occurred in the courtyard rather than the garage. Only Ms AB gave evidence that the accused left with his dog through the open garage. Ms AB and the complainant’s evidence is based on what occurred in the garage, whereas the neighbours’ evidence is mainly about what they observed from their apartment of what was happening in Ms AB’s courtyard.

69. The different accounts given by the witnesses do not make any witness’ account less credible or reliable, but it does give me a basis to find that the violent acts commenced in the garage and continued to occur when the accused and the complainant were in the courtyard, as witnessed by the neighbours. I also accept that the witnesses’ memory and ability to recall the details of the incident may have been affected by the stressful and violent situation in which they were placed.

70. Both the complainant and Ms AB were unable to recall how many times the complainant was hit in the head, but both gave evidence that the complainant was hit multiple times by the accused.

71. Despite this, I am satisfied beyond reasonable doubt that the accused voluntarily engaged in conduct which resulted in grievous bodily harm being inflicted on the complainant. Any inconsistencies in the accounts given by the witnesses are of a minor nature, and do not undermine the reliability of the significant body of evidence which establishes and satisfies the elements of the offence. The chronology of the testimony given by the complainant and Ms AB is not necessarily inconsistent. The complainant and Ms AB both say that without warning the accused violently struck the complainant in the middle of the face, rendering him semi-conscious. He was struck again by the accused, who was using a pole, a number of times, and managed to escape the shed and get up the stairs to the back patio area. Here he was struck again by the accused using the same pole.

72. On the evidence, it is clear the accused consumed alcohol and some type of illicit substance. It is not necessary for me to find what kind of substance he was using at the time, although Ms AB said they had both used marijuana.

73. Further, based on the evidence including the witnesses’ accounts, I find that the breakdown of the relationship of the accused and Ms AB was occurring at least from the morning of the incident, which was heard by the neighbours. By the time Ms AB, the accused and the complainant were sitting in the garage of Ms AB’s home later that day, I am satisfied that the accused understood, and that it was quite objectively clear, that Ms AB did not want to continue a romantic relationship with the accused.

74. Based on the complainant and Ms AB’s evidence, I am satisfied that the complainant said something to the accused which enraged him, which caused him to strike the complainant on the front of his head, face, forehead and on his body.

75. I am satisfied beyond reasonable doubt that the accused first hit the complainant’s head (with his fist) which rendered the complainant semi-conscious and ultimately unconscious on the ground in the courtyard. I am similarly satisfied that the accused then repeatedly struck the complainant with a pole while the complainant was on the ground. I also find that the sound the neighbours heard was the complainant getting struck on the head by the accused.

76. The issue of whether the accused’s conduct was voluntary (which I note was not raised as an issue by counsel for the accused) is dealt with later at [96]-[98].

Grievous bodily harm

77. Grievous bodily harm is defined in the Dictionary to the Crimes Act as follows: Grievous bodily harm to a person includes— (a) any permanent or serious disfiguring of the person; and (b) for a pregnant woman—loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).

78. The injuries sustained by the complainant are very serious. In making this finding, I rely on Dr Rushton’s medical evidence about the extensive injuries sustained by the complainant, and the complainant’s evidence of the injuries which were sustained and the long-term effects on his health. I refer particularly to the multiple facial fractures sustained by the complainant and the serious, long-term disfigurement of the complainant’s facial structure, including to the forehead, which would require surgery to correct.

Intoxication of witnesses

79. On the evidence, I am satisfied that both the complainant and Ms AB were intoxicated to a significant degree from drinking alcohol prior to the incident. Ms AB was also under the influence of cannabis.

80. The level of intoxication is relevant to the finding I must make about the reliability and credibility of the complainant and Ms AB as witnesses, and what weight I put on their evidence. The level of intoxication may be a factor influencing their ability to accurately recall details from the evening.

81. However, the fact that a witness is intoxicated and may have difficulty with recall does not mean the entirety of the evidence of that witness is of low probative value. I am entitled to accept some of the complainant and Ms AB’s evidence, while rejecting other parts of it: Umunakwe v DPP [2025] ACTCA 34 at [87]. The overall reliability of an intoxicated witness’ evidence may be impacted by its overall consistency with other evidence and the surrounding circumstances.

82. The evidence given by the complainant and Ms AB, that the complainant was attacked by the accused with a metal pole, is generally consistent with the evidence given by the neighbours, the medical evidence given by Dr Rushton in relation to the severity of the injuries sustained by the complainant, and the 000 calls to police made by Ms AB and Ms CG. The body-worn camera footage taken on Ms AB’s driveway captured the accused acknowledging to police he had seriously injured the complainant. The evidence given by the complainant and Ms AB was generally lucid and demonstrative of a reasonably clear chronology of events.

83. The consistency of the accounts given by the complainant and Ms AB with the other evidence before the Court satisfies me that the overall reliability of their evidence was not significantly impacted by their level of intoxication. The fact that the complainant and Ms AB could not recall the exact minutiae of what happened on the night of the incident does not undermine the general probative value of their evidence as to the elements of the offence being made out. Submissions in defence on the evidence

Self-defence

84. Section 42 of the Criminal Code 2002 (ACT) (Criminal Code) provides a complete defence to a charged offence if there is a reasonable doubt as to whether the charged person carried out the prima facie offending conduct in self-defence. For self-defence to apply, the following must be made out in relation to the accused’s conduct. (a) The accused believed the conduct was necessary: (i) To defend himself or herself or someone else; or (ii) To prevent or end the unlawful imprisonment of himself or herself or someone else; or (iii) To protect property from unlawful appropriation, destruction, damage or interference; or (iv) To prevent criminal trespass to land or premises; or (v) To remove from land or premises a person committing criminal trespass; and (b) The conduct was a reasonable response in the circumstances as the accused perceived them.

85. The statutory form of self-defence found in the Criminal Code is similar to the test at common law, as set out by the High Court in Zecevic v DPP (Vic) (1987) 162 CLR 645 (Zecevic). In Zecevic, the High Court stated the test as “whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did”. This requires a finding, firstly, that the accused subjectively believed at the time of the conduct that what was done was necessary, and secondly, that objectively, the belief was based on reasonable grounds.

86. There was some discussion between the parties as to whether the statutory test or the common law test for self-defence would apply to this particular offence. However, there is no need to make a finding on which specific test applied, as none of the facts in this case would discriminate about the distinction between the wording of the statutory and the common law tests. The application of either test to the facts provides the same pathway to a result.

87. In police body-worn camera footage captured during the accused’s arrest, the accused can be heard telling police that “it was self-defence”. In the footage, the accused alleges to police that the complainant was “getting lippy and mouthy and violent”, and that the complainant “stood over” and threatened him. As correctly conceded by counsel for the accused, this was the only apparent ground for self-defence raised by the accused to defend himself.

88. The accused having raised self-defence, I must be satisfied beyond reasonable doubt that the prosecution has disproved the defence, or otherwise acquit the accused. I must be satisfied that the accused either did not actually believe his actions were necessary to defend himself, or that there were no reasonable grounds for a belief held by him that his actions were necessary to defend himself.

89. Notwithstanding the contention raised by the accused, I am not satisfied that there is any evidence to support a finding of self-defence. As submitted by the prosecution, the response of the accused to whatever was said by the complainant was not consistent with someone defending himself. The numerous strikes to the complainant, and the continuation of the attack out of the garage and up into the courtyard area, does not suggest the accused was acting in self-defence. Neither do the significant injuries sustained by the complainant. As submitted by the prosecution, had the accused genuinely feared for his safety, it was open for him to simply leave the garage rather than engage in a lengthy altercation with the complainant.

90. Counsel for the accused submitted that the Court needed to make a finding about whether the injuries to the complainant’s face were caused by a pole or by the accused’s fist. Counsel properly conceded that self-defence could only be raised by a finding that the injuries were caused by the accused’s fist. As stated above, I am satisfied that the accused picked up a weapon as a result of what the complainant had said to him, having already punched the complainant, and that the injuries sustained by the complainant are consistent with being hit with a pole. I find that the accused’s decision to pick up a weapon and then return to hit the complainant, who was by then prostrate on the ground, is entirely inconsistent with self-defence.

Aggression of complainant

91. It was submitted by counsel for the accused that I should infer that the complainant was acting aggressively towards the accused before the incident. This inference, it was submitted, was founded on the aggression shown by the complainant towards the accused while waiting for the ambulance to arrive and the complainant’s interaction with paramedics.

92. Given the injuries he had just sustained, I find that the complainant acted no more aggressively than one would expect in the circumstances. In any case, the complainant’s behaviour sometime after the incident towards the accused and paramedics does not provide a basis, absent any other cogent evidence, to find the complainant must have therefore acted aggressively towards the accused before the incident.

93. Under cross-examination, the complainant agreed with the proposition that when he drinks, he sometimes becomes either “aggressive or emotional … depending on the situation”. This also does not provide a sufficient basis to infer the complainant was acting aggressively while drinking with the accused and Ms AB, in circumstances where both Ms AB and the complainant have given evidence denying there was any physical threat made to the accused.

Conclusion on self-defence

94. I find that the possibility that the accused acted in self-defence has been disproved beyond reasonable doubt. The accused violently overreacted in a moment of drunken outrage and jealousy against the complainant. There is no basis on the evidence to conclude that the accused believed his conduct was necessary to defend himself from the complainant.

95. Even if I were to find there was a reasonable doubt that the accused did believe his conduct was necessary to defend himself, there would be no basis on which to conclude that the belief was based on reasonable grounds or constituted a reasonable response to the circumstances.

Voluntariness

96. For the accused to be found to have engaged in the conduct the subject of the offence, I must be satisfied the accused’s act against the complainant causing grievous bodily harm was his deliberate act. I direct myself that an act is not deliberate if it was not voluntary; the act must be a willed act of the accused.

97. The voluntariness of the accused’s actions was not pressed as an issue by counsel for the accused and the evidence before me does not suggest a lack of voluntariness.

98. Nevertheless, even if, taking the accused’s case at its most favourable, the voluntariness of the accused’s conduct had been raised as an issue and needed to be disproved by the prosecution, I am satisfied beyond reasonable doubt that the accused’s act was a voluntary one. I rely on the findings I made in relation to self-defence.

Findings and conclusion

99. For these reasons, having accepted the critical aspects of the evidence of the complainant and Ms AB and taking into account the whole of the evidence, I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence of intentionally causing grievous bodily harm, pursuant to s 317(4) of the Crimes Act.

Is the offence a serious or non-serious offence?

100. I must now consider ss 318 and 319 of the Crimes Act. The sections are as follows: 318 Non-acquittal at special hearing—non-serious offence (1) This section applies if— (a) an accused is charged with an offence other than a serious offence; and (b) at a special hearing that is a trial— (i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or (ii) by jury—the jury advises the court under section 317 (1). (2) The Supreme Court may make the orders that it considers appropriate, including— (a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. 319 Non-acquittal at special hearing—serious offence (1) This section applies if— (a) an accused is charged with a serious offence; and (b) at a special hearing that is a trial— (i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or (ii) by jury—the jury advises the court under section 317 (1). (2) The Supreme Court must— (a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

101. The definition of serious offence is found in s 300(1) of the Crimes Act: serious offence means— (a) an offence punishable by imprisonment for longer than 1 year if the factual circumstances of the offending involve actual or threatened violence and substantial risk of harm to another person; or (b) an offence against section 27 (3) or (4).

102. Both limbs of subs (a) need to be satisfied for an offence to be classified as serious.

103. I am satisfied that the offence with which the accused was charged is a serious offence, within the meaning of s 300(1) of the Crimes Act. The elements of the offending involved the actual application of violence to the complainant, where the complainant suffered substantial harm as a result as described and shown by him during his evidence. I also rely on the evidence of Dr Rushton as to the injuries suffered by the complainant and the significant ongoing effect this has had on his life.

Orders

104. I make the following orders: (1) I am satisfied beyond reasonable doubt that the conduct of the accused satisfied each of the elements of the offence of intentionally inflicting grievous bodily harm pursuant to s 317(4) of the Crimes Act 1900 (ACT). (2) I find the offence with which the accused was charged is a serious offence within the meaning of s 300(1) of the Crimes Act 1900 (ACT). (3) I will now hear the parties further on the operation of ss 308 and 319 of the Crimes Act, any orders that should be made thereunder, and consequentially any orders that should be made under s 301 of the Crimes Act.

I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Slattery. Associate: Date: