R v Dawson - [2022] NSWDC 413 - NSWDC 2022 case summary — Zoe

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R v Dawson

[2022] NSWDC 413

District Court of NSW|2022-06-15

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-06-15

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

Introduction

On 1 May 2021 and leading in to the early hours of 2 May 2021, five young men, Joseph Dawson, Luke Coughlan, Samuel Doyle, James Williams and Jack Steele had a big night out in Albury. They painted the town red. They drank a lot of alcohol and consumed drugs.
After the pubs and clubs closed, they went to the accused's unit to continue partying. Thereafter, the folly of youth came into being.
Dawson produced a shortened shotgun. While being held by Dawson, it discharged at close range into Coughlan's face. He had a significant blast injury to the left side of his face and jaw. His left jawbone was shattered. There was laceration of surrounding muscles, blood vessels and glands and loss of teeth attached to the left jaw.
Luke Coughlan recalls waking up at the Albury Base Hospital. He did not know why he was there. He initially thought he had been in a car accident.
Mr Dawson was charged with the following: 1. on 2 May 2021, at Albury in the State of New South Wales, did possess a loaded firearm at Unit 6, 693 Holmwood Cross, Albury, so as to endanger the life of another person contrary to section 93G(1)(a)(ii) of the Crimes Act 1900, and, 2. on 2 May 2021, at Albury in the State of New South Wales, did cause grievous bodily harm to Luke Coughlan and was reckless as to causing actual bodily harm to him, contrary to section 35(2) of the Crimes Act 1900.
At committal proceedings before the Local Court, the accused pleaded guilty to count 1 and was committed for sentence. He pleaded not guilty to count 2 and was committed for trial.
On 16 June 2022, he was arraigned before me at the Albury District Court and confirmed his plea of guilty to count 1 and not guilty to count 2.
The matter proceeded as a judge-alone trial, as consented to by the parties on 9 June 2022. The primary issues for determination at trial was recklessness. The other elements of count 2 are not in dispute.
During the Crown's closing address, the Crown sought to rely upon the plea to count 1 in proof of knowledge of a loaded firearm in count 2, going to the question of recklessness. In the alternative, the Crown sought to reopen its case and tender the transcript of the proceedings recording Mr Dawson's plea of guilty to count 1 in proof of count 2. The Crown submitted that the plea to count 1 was an admission to the accused's knowledge that the shotgun he possessed was loaded and went to proof in respect to count 2.

[2]

Crown submissions

The Crown submits that an element of count 1 is possession of a loaded firearm. Possession involves physical control or custody of the relevant item and knowledge that you have it in your control or custody: R v Amanatidis [2001] NSWCCA 400 at [9]. The Crown submits that the plea to count 1 is an admission by the accused that he had the firearm in his physical custody and that he knew that it was loaded at the time. The Crown relies upon the definition of "admission" as defined in the dictionary of the Evidence Act 1995.
The Crown submits that trial before a judge alone is different to a jury trial. The Crown accepts that if the accused pleaded guilty to count 1, it would be severed and the only count before the jury would be count 2. They argue because there was a plea to count 1 before the judge, that in a judge-alone trial, that plea can be used to prosecute count 2.
The Crown have been unable to cite any New South Wales authority on point. They rely upon R v Bastin [1971] Crim L R 529 cited in Cross on Evidence at [33610]. The appellant pleaded guilty to two counts on the indictment and not guilty to the third count before a jury. All three counts arose out of one connected set of circumstances. The appellant appealed on the basis that the trial judge had erred by admitting evidence of his plea to counts 1 and 2. The basis of the error was one of irrelevance and prejudice. However, the Court of Appeal dismissed the appeal and found that the evidence was properly admitted, given the evidence in respect of counts 1 and 2 was directly relevant to count 3.
The case does not state how the evidence of the pleas were placed before the jury. Counsel may have sought a forensic advantage in having pleas to counts 1 and 2 before the jury. Counsel for the accused in this case did not seek a forensic advantage from the plea to count 1. All that was said about the plea to count 1 in the defence opening was: "It is the accused's case that he was in physical possession of the firearm leading up to its discharge and his plea of guilty in relation to count 1 is representative of that fact": T31 line 16
Counsel was accepting possession of the firearm but did not specifically accept possession of a loaded firearm, although a plea accepts that the firearm was loaded.

[4]

The Crown seeks to reopen its case

The Crown has filed written submissions seeking to reopen its case and tender the transcript of the plea in proof of count 2.
The authority that the Court has to permit the prosecution to reopen its case is founded in common law.
The common law position is that the prosecution are not to be permitted to reopen its case other than in "very special" or "exceptional circumstances": Shaw v R (1952) 85 CLR 365; Lawrence v R (1981) 38 ALR 1.
Trial judges must give full effect to the rule that the occasions must be very special or exceptional to justify a departure form the governing principle and that, generally speaking, an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen.
Mr Pace argues that the Crown ought to have reasonably foreseen that they did not have any direct evidence as to the accused's knowledge that the firearm was loaded. The issue of recklessness was known to the Crown. That issue extends to his state of mind and whether he considered the possibility that the firearm could be discharged.
There is much force to his submission. In my view, the prosecution ought to have foreseen the defect and not closed their case, nor raise the issue in a final address.
The plurality in Shaw held that "…the English cases make it plain enough that generally speaking on an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen…" at [80].
The error was not a technical one as occurred in Hansford v McMillan [1976] VR 743 where Justice Anderson found that the judge at first instance erred when he refused an application from the Crown to reopen its case for a defendant charged with escaping lawful custody when the prosecution has failed to prove the technical matter of the accused being lawfully detained in a gaol.
In that case, the technicality "which virtually does not admit of challenge has been overlooked…": p. 750.
The accused's knowledge that the firearm was loaded at the time of discharge was an issue at trial. It was not a technical issue.
I have not been satisfied that the Crown have established very special or exceptional circumstances to warrant the reopening of its case. Accordingly, I refuse the application.
At T.138, I said if I came to an adverse view of the Crown, I would relist the matter for further consideration. As a result of the Crown's submissions which dealt with reopening the case in detail which I have considered, I do not see the need to take further submissions from the Crown.

[6]

Onus and standard of proof

I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute of proof beyond reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found not guilty of the charges.
The accused is presumed to be innocent of any wrongdoing until I am satisfied beyond reasonable doubt that his guilt has been established according to law. This does not mean that the Crown has to satisfy me of its version of the facts where some dispute arises. What is required is that the Crown proves those facts that are essential to make out the charge and proves those facts beyond reasonable doubt. These are sometimes referred to as the essential facts or ingredients of the offence. I will go through the essential facts of this particular case shortly.
The expression, proved beyond reasonable doubt is ancient and has been deeply ingrained in the criminal law of this state for a very long time. This is the highest standard of proof known to the law. It is not an expression that is usually explained by trial judges, but it can be compared with the lower standard of proof required in civil cases where matters need only be proved on what is called the balance of probabilities.
The test in a criminal case is not whether the accused is probably guilty. In a criminal trial, the Crown must prove the accused's guilt beyond reasonable doubt. Obviously, a suspicion, even a strong suspicion that the accused may be guilty is not enough. A decision that the accused had probably committed the offence also falls short of what is required.
Before I can find Mr Dawson guilty, I must consider all the evidence placed before me and ask myself whether I am satisfied beyond a reasonable doubt that the Crown has made out its case. Mr Dawson is entitled by law to the benefit of any reasonable doubt that is left in my mind after considering the evidence before me.

[8]

Expert evidence

In this case, Timothy Peter Berry has been called as an expert witness. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.
The value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and 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's specialised knowledge.
Expert evidence is admitted to provide the Court with information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining the circumstances where accidental discharge of the firearm may occur, the trigger pull of the firearm, and the impact of other external factors on the trigger pull of the firearm. I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. It is for me to decide whose evidence and whose opinion I accept in whole or in part. I remind myself that this evidence relates only to part of the case and that while it may be of assistance to me reaching a verdict, I must reach my verdict having considered all the evidence.
Further, there has been no challenge to the qualifications of the expert witness, whom I may consider well qualified.
If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts or assumptions is correct.
On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.

[10]

Circumstantial evidence

In this case the Crown relies on circumstantial evidence. In relying upon circumstantial evidence, the Crown asked me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact or facts.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw, or heard, or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime.
In a direct evidence case if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.
In a circumstantial case the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be a very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence then I am asked to reason in a staged approach.
The Crown first asked me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond a reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. The judge in a judge alone trial is then to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asked me to find, based upon the basic facts, is that an accused person is guilty of count 2.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation), and it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that I approach a circumstantial case by considering and weighing up as a whole all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of Joseph Dawson or whether there is any explanation for that particular fact or circumstance which is inconsistent with Mr Dawson's guilt.
The correct approach is first to determine what facts I find are established by the evidence. As I have already said, any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Joseph Dawson is guilty of the offence charged. If such a conclusion does not necessarily arise then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find the accused not guilty.
But if I find that such a conclusion is a reasonable one to draw based upon the combination of those established facts, then before I can convict Joseph Dawson, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of Joseph Dawson the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt.
I remind myself that I should understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning; I must not base my conclusion upon mere speculation, conjecture, or supposition.
In order to satisfy me beyond reasonable doubt of Mr Dawson's guilt of the offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove that the only reasonable inference, or conclusion that can be drawn from a consideration of all the established facts viewed as a whole, is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asked me to find, then the Crown's circumstantial case fails.

[11]

Consciousness of guilt

The accused told police that on the evening in question, three men broke into the unit wanting to rob them, then one of them shot Mr Coughlan in the face because they did not have anything. Mr Steele and Mr Williams gave evidence that Mr Dawson told them to tell this story to the police. While both men did not initially tell the truth about what happened on 2 May 2021, they later made statements to police that the accused was holding the gun that discharged.
A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
Police body-worn video was tendered in evidence in the trial. This shows the accused making the statement that I just referred to. I am satisfied that this was a deliberate lie. However, I may take this into account as evidence of Mr Dawson's guilt only if I find two further things:
Firstly, if the lie relates to an issue that is relevant to the offence the Crown alleges that Mr Dawson committed. It must relate to some significant circumstance or event connected with that alleged offence. The Crown says it is relevant because the lie was told for the purpose of Mr Dawson distancing himself from being involved in the specific circumstances leading up to the discharge that resulted in the injury. The Crown says the accused knew that the truth would reveal that he had acted in the way alleged by the Crown.
Second, I must find that the reason Mr Dawson told this lie is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces.
I am not suggesting that the lie could prove Mr Dawson's guilt on its own. It can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found Mr Dawson told a lie, that this finding can prove the guilt of Mr Dawson by itself.
I must remember that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. If I think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which Mr Dawson is now on trial, then it cannot be used as evidence of his guilt. If that is the case, I should put it to one side and focus upon the other evidence in the case.
The Crown contends that the nature and extent of the lie was disproportionate to his consciousness of guilt for count 1, or to conceal possessing a loaded firearm in his unit. The lie extended over six hours, excluding the likelihood that it was told out of panic in the Crown's submission. The Crown says that the lie was told for the sole purpose of not being implicated in the crime of recklessly causing the injury to Luke Coughlan's face, by way of the acts that he did to cause that injury.
In her closing address, Madam Crown reminds me that the fact of the lie being told as a consciousness of guilt is not one that need be established beyond reasonable doubt.
After the discharge of the firearm, the accused told lies and told others to lie. The following is a short summary: 1. The home invasion lie, resulting in someone else shooting the complainant told to the police. The lie was that neither Luke or he were able to give the three Islander males any money and one of them shot Luke in the face (lie one) 2. Telling Mr Steele and Mr Williams to tell the police of the home invasion. 3. At a later interview at 11:07am, he told police "I told youse what happened" (confirmation of the previous lie). He went on to say "I know for a fact that Luke's not gonna say it's me. So that's that." 4. Conduct disposing of the firearm at Albury TAFE.
The Crown says the lie was for the purpose of distancing himself from being involved in the discharge of the shotgun. The Crown submits that the lie was told specifically to distance himself from handling the firearm before its discharge. He told the lie because he knew the truth would reveal that he had acted in the way alleged by the Crown and the nature of the lie went well beyond that required to conceal simply possessing a loaded firearm in his unit.
Mr Pace, on behalf of the accused, submitted that the lie reflects the accused's consciousness of guilt in relation to count 1. He submits I need to take into account the age of the accused at the time he told the lie, The fact that the accused was affected by drugs and alcohol at the time of the lie and was "hungover" and possibly still affected at the time of the second lie. The lie needs to be looked at in light of the significant injuries occasioned to his friend and the visitation of police and ambulance personnel.
In taking all those matters into account, I cannot safely conclude that the lie was told as a result of the accused's consciousness of guilt to count 2. The lies may have been told as a result of his consciousness of guilt to count 1 which he has pleaded guilty to.

[26]

Injuries to Luke Coughlan 1. At around 5:07am on 2 May 2021, Luke Coughlan (DOB: 19/2/1997) arrived by ambulance at Albury Hospital where he presented with a significant blast injury to the left side of his face and jaw consistent with a gunshot wound, being: 1. An extensive open wound from the left corner of the mouth to the base of the left mandible (jaw bone) consisting of a skin injury to the outside of the cheek and an opening on the inside of the mouth; extensive damage to the left mandibular (jaw) bone which was shattered; laceration of surrounding muscles, blood vessels and glands; loss of teeth attached to the left jaw. 2. Injury to the left facial nerve responsible for movement of all muscles to the left side of the face (raising of eyebrows, eye closure, smile, lip movements). 3. The proximity of his wound to his air pipes required him to be placed on a life support machine. 4. A CT scan of his head showed extensive bone flecks and pellets from the gunshot. Significant amounts of 'shot' fragments within the soft tissues of the face. Metal pellets were lodged in the soft tissues of his neck. 1. Mr Coughlan was flown to The Alfred Hospital, Melbourne for emergency surgery. Altogether, he required 5 surgeries with plastic and Ear Nose and Throat surgeons (2/5/21; 4/5/21; 10/5/21; 18/6/21; 27/9/21) that involved: 1. Reconstruction of his left jawbone using his right leg bone and skin from his right leg to reconstruct the skin loss from inside his mouth. His right leg has weakness in function and is likely to lead to complications from arthritis and muscular injuries in the future. 2. Refashioning of skin inside his mouth and insertion of dental implants for future replacement of missing teeth. 3. Suturing of his left eyelid to effect partial temporary closure to protect it because he is unable to close it due to the injury to the facial nerve. 1. Mr Coughlan was discharged on 24 May 2021. As at 29 April 2022, he required ongoing review and treatment at hospital by dental and plastic surgeons in respect of dental reconstruction and left-sided facial paralysis from the non-functioning facial nerve. He has a permanent disfigurement of his facial appearance and his ability to eat and speak has been significantly impacted. He has permanent nerve damage to his facial nerves resulting in severe nerve pain. He has permanent numbness of the chin. 2. Photographs of Mr Coughlan's injuries were taken at The Alfred Hospital, Melbourne. A photograph of Mr Coughlan during surgery and two photographs taken of Mr Coughlan upon his discharge from hospital are Annexure D.

[27]

Location of Firearm 1. On 21 November 2021 at about 7:45am, a member of the public phoned police and reported that he had sighted a firearm in the garden of Albury TAFE on Poole Street, Albury. Police attended the scene and spoke with that member of the public. He told police that he had been walking his dog down the footpath and had glanced to the side and saw something that didn't quite look right. He came to have a closer look, pulled back the bushes slightly and the firearm fell very, very slightly down. When he moved the bush, the firearm slipped and the end of his finger brushed the top part of the firearm where the stock is. 2. The located firearm was a shortened 0.410 calibre BOITO single shot shotgun with the serial number on the forearm stock being 67950. The firearm was located in the following location (green dot denotes the location of the crime scene, green dot denotes the location of the firearm): 1. Photographs of the firearm are Annexure E. 2. The firearm was seized by police and transported to the NSW Police Ballistics Investigation Section for examination. Upon arrival at the NSW Police Ballistics Section, a .410 calibre fired cartridge was located in the chamber of the firearm. The fired cartridge case was removed by ballistics expert Alan Dusting. 3. A fingerprint examination of the firearm was conducted but did not develop any fingerprints. 4. Swabs taken from the handle, trigger, hammer, fore end and barrel were analysed by a forensic scientist employed at the Forensic Biology/DNA Laboratory of NSW Health Pathology Forensic & Analytical Science Service: 1. A male profile (Profile A) was recovered from the swab taken from the handle but it could not have originated from the accused. 2. The DNA recovered from the trigger and hammer matched male Profile A. 3. The DNA recovered from the fore end was a mixture. Male profile A and male profile B cannot be excluded as contributors to this mixture. 1. Male profiles A and B could not have originated from the accused. 2. The Forensic Biology/DNA Laboratory of NSW Health Pathology Forensic & Analytical Science Service in its Appendix (version 8 January 2016) attached to the results of the DNA analysis states that there are several mechanisms by which DNA may be transferred. Direct contract involves the transfer of DNA onto an object directly from the source of that DNA. This may be via physical touch. The transfer and persistence of DNA is affected by a number of factors. At present, there is no scientifically accepted method to 'age' DNA. If exposed to adverse environmental conditions such as UV light, heat or humidity, DNA will degrade to such an extent that it may fail to be detected. Conversely, DNA may be successfully typed months or even years later if stored in favourable conditions.

[29]

Jack Steele

Jack Steele provided two statements to police; the first dated 2 May 2021, and the second dated 15 June 2022. Jack Steele gave evidence in a Basha inquiry which was adopted in the trial proper.
Jack Steele was Joseph Dawson's neighbour and a friend of Luke Coughlan's brother. Mr Steele was drinking at The Star Hotel in Albury before walking to Beer Deluxe, another hotel, where he joined Joseph Dawson and Sam Doyle. They stayed for approximately 3-4 hours before going to Sweethearts Pizzeria at about 3:00am. Sam Doyle, Jack Steele, Luke Coughlan, James Williams, and Joseph Dawson were at Sweethearts. Joseph Dawson suggested that the group go back to his unit and that he would meet them there.
Mr Steele with Mr Doyle attended the accused's unit. No one was there but the door was unlocked, and they let themselves in. The rest of the group joined them 5-10 minutes later. Over the course of the night, Mr Steele consumed approximately 15-20 alcoholic drinks. He also had cocaine earlier in the night. He was sobering by the time he arrived at the unit.
With the group in the bedroom in the unit, Mr Steele was sitting at the end of the bed with Sam Doyle to his left, listening to music through a television which they were facing. James Williams was sitting in a chair to their left and Joseph Dawson was behind Mr Steele. Luke Coughlan was also to their left, seated on the floor opposite James Williams, a coffee table separating them.
The group were hanging out. Mr Steele noticed that Mr Dawson produced a firearm, a sawn-off shotgun with a black barrel and wooden handle. He did not see where he got it from. He was showing the firearm off and waving it around. At the time, Mr Steele did not believe that it was a real gun, thinking that it could be a BB gun. He continued to listen to music on the TV. He accepted that his view of the firearm was a fleeting observation.
Approximately 1-2 minutes after initially seeing the gun, Mr Steele recalls that Mr Dawson was standing near where Mr Coughlan was sitting, holding the gun with one hand, with the end of the barrel of the gun against Mr Coughlan's cheek. In cross examination, Mr Steele accepted that it could have been less than 30 seconds after seeing the firearm. He does not recall Luke Coughlan's reaction. Approximately 20 seconds later, he heard the gun discharge. He looked over and saw Luke Coughlan on the ground with blood coming out.
Everyone stood up. Joseph Dawson said ""Fuck, fuck, I just shot my mate, I didn't mean to do that". He walked out of the unit with the firearm in the direction of Albury TAFE while the others remained and tended to Mr Coughlan.
Mr Steele and Mr Doyle called 000. Mr Coughlan walked outside of the front of the unit and sat down. Mr Steele followed instructions from the 000-operator. Mr Steele said "My mate has just been shot accidentally" to the 000-operator.
Mr Dawson returned approximately 2-3 minutes later without the gun before the police and ambulance arrived. He told the group to tell the police "That people came in wearing balaclavas with guns and tried to rob us. We didn't have anything, so they shot Luke in the face". This was not the story that Mr Steele told to the police, but he did initially tell them a different lie that he was in his room next door when he heard a gunshot go off. He went outside and saw that Luke had been shot and then called 000. He said that he did this because he was scared of Joseph Dawson.

[30]

James Williams

James Williams provided two statements to police; the first dated 2 May 2021 and the second dated 13 June 2022. Mr Williams gave evidence in the trial. Mr Williams was at Zed Bar, a licensed establishment, in Albury when he met with Luke Coughlan on 1 May 2021. He consumed approximately 20 drinks before leaving at 3:00am. He had also taken MDMA. He went to Sweethearts Pizzeria where he saw Mr Coughlan, Sam Doyle, and Joseph Dawson. There, Mr Dawson suggested that everyone go to his unit to kick on.
Mr Williams and Mr Coughlan got a taxi to the unit. Mr Williams said he was very drunk by the time he got to Joseph Dawson's unit however maintains that he was able to see and hear clearly. Jack Steele was already there. Once at the unit, the group were talking and listening to music. Mr Williams was on his phone.
Mr Williams saw the accused get a shotgun out from somewhere near his bed. He was showing the gun to the group. He recalls Luke saying something like "What are you doing with that? You'll never use it" to which Dawson said, "Do you think I won't use it". He agreed in cross-examination that Mr Dawson might not have said those words.
The accused was standing, holding the gun with one hand, and pointed it towards Luke Coughlan's face, who was sitting on the ground. Mr Williams could not recall in specific detail, explaining that this was occurring to his left while he was looking at his phone. However, he did recall that Luke was trying to put his face towards the gun.
Immediately before the gun went off, they were joking around. Mr Williams did not feel threatened at the situation at all, there was no tension in the room.
In his statement dated 13 June 2022, Mr Williams remembered being focussed on Luke's face as the gun was in his mouth. However, in his evidence, Mr Williams told the Court that he was not focussed on him, and that Luke Coughlan had his mouth open and was leaning towards the gun, as if he was going to put it in his mouth, rather than the gun being in his mouth. It was suggested to Mr Williams in cross-examination that Luke Coughlan grabbed the handle of the gun while moving forward. Mr Williams was unable to say whether Luke Coughlan grabbed the gun, that he was not "fully looking" at the situation.
His evidence was that under 30 seconds after seeing the gun, he heard it discharge. It was only a few seconds after seeing Luke leaning in. Mr Williams said they had been at the unit for not more than 5 minutes.
Mr Dawson was saying "I didn't mean it, I didn't mean it, call an ambulance." He thought that Joseph Dawson got a towel and was holding it to Luke Coughlan's face. Mr Williams walked out of the room to the front of the house. He didn't see Joseph Dawson leave the unit but did see him come back towards the unit from the direction of Albury TAFE.
While waiting for the police, Mr Dawson told him to say that someone ran through the house. He did not tell this story to the police, but Mr Williams did tell a different lie that he "just arrived as it was all happening". He didn't want Joseph Dawson in trouble because it was his gun in his house and Mr Williams thought Mr Dawson honestly didn't mean it.
Mr Williams stayed for a couple of hours then left with Mr Dawson and his girlfriend, Madeline Styles, who drove him home. Joseph Dawson was panicking in the car, repeatedly saying that he didn't know what happened or how the gun went off. He and his girlfriend were arguing because she wanted to know what happened. Mr Dawson then said to her "I shot him in the face."
The next day, Mr Williams contacted Sam Doyle to talk about what happened. Jack Steele called him at some point and told him that he had given a statement. At 3pm on 2 May 2021, he contacted Madeline Styles and spoke to Joseph Dawson, explaining that Jack Steele told the police they were at the apartment, and they were going to have to make a statement. Mr Williams went to the police station after the police made two visits to his home.

[32]

Timothy Berry

Timothy Peter Berry is scientific officer who works in the forensic ballistics investigation section of the New South Wales Police Force. Mr Berry authored two reports, the first dated 8 February 2022 and the second dated 11 June 2022. On 1 December 2021, a shortened .410 calibre BOITO single shot shotgun and one .410 calibre fired shotgun cartridge case were received at the Ballistics Investigation section. The shotgun was tested and was in working order. The cartridges were discharged in the shotgun for test purposes.
The firearm did not have a safety mechanism to prevent accidental discharge. The firearm did not have a chamber indicator. The firearm did not have a hold open device. It was a shortened shotgun with major components missing or broken. The overall condition of the firearm was, in Mr Berry's opinion, poor. The serial number on the firearm had been obliterated and Mr Berry had to use chemicals in order to recover the serial number.
Trigger pull refers to the amount of force that must be applied to the trigger of a firearm to cause release. For the firearm in question, a force of 1.8kg is required. Mr Berry opined that a very light trigger is a figure of 1kg or less. In evidence, Mr Berry described a trigger pull of 1.8kg as being just under average. Just under a medium level of pressure applied to the base of the trigger and moving the pressure rearward would discharge the firearm. Mr Berry in his evidence stated that he conducted 'several' trigger-pull tests and the average was 1.8kg. He conceded that there were a number of values that came back less than 1.8kg. Although he could not recall the lowest value, he did not remember a value being as low as 1.2kg.
The firearm was located by a member of the public on 21 November 2021, more than 6 months after the incident. During that period, the firearm had been exposed to the elements. The tests conducted by Mr Berry leading to a conclusion that 1.8kg of pressure had to be applied to discharge the firearm occurred after this time. He agreed that this firearm being exposed to the elements for six months, and the measurement of 1.8kg is taken with those variables in place. There was no evidence from the manufacturer about the factory level of pressure of this firearm.
In relation to interference with the internal mechanisms of the firearm, Mr Berry agreed that such interference may lighten the trigger mechanism.
Mr Berry was asked whether in a scenario where a person was standing, holding the firearm slightly down at an angle towards a person sitting, and the person sitting pulled the firearm, whether there would be a discharge of a shot. Mr Berry opined: "Yes, if the holder of the firearm had his trigger finger on the base of the trigger, the firearm was cocked with the external hammer cocked, there was a shotgun cartridge within the shotgun and then another person pulled the firearm towards them, gripping around the muzzle, with the person holding the trigger not changing their handgrip in any way, is quite possible for it to be discharged."
Mr Berry agreed in cross-examination that in a similar situation, if the gun went to right and the person had their hand on the trigger and remained stationary, the firearm could also be discharged.

[34]

Crown submissions

The Crown argues that the accused approaching Luke Coughlan, who was seated on the floor, presenting a loaded shortened shotgun at very close proximity to Luke Coughlan's face was the voluntary act that was causative of the grievous bodily harm.
Referring to the evidence of James Williams, that the accused retrieved the firearm from near his bed, and the evidence of Jack Steele, that he turned around and saw the accused waving around the firearm, holding it in one hand and showing it off, next seeing the end of the barrel of the shotgun being put up against Luke Coughlan's cheek. Although he was intoxicated, the Crown says that his evidence can be accepted because he was sobering up.
The Crown argues that Jack Steele was a reliable and straightforward witness, citing his recollection that the accused left with the firearm in the direction of Albury TAFE, where the firearm was ultimately located. The argument supports my acceptance that the evidence established beyond reasonable doubt that in the bedroom, the accused moved towards Luke Coughlan with the cocked, shortened shotgun, and presented the barrel towards the sitting complainant as he effectively stood over him.
Further, the Crown argues that the voluntary act of the accused that caused the grievous bodily harm can extend to include the accused holding the firearm with his finger on the trigger as opposed to the outside of the trigger guard.
With respect to the accused's knowledge of the firearm being loaded, the Crown sought to rely on the accused's plea to count 1 of the indictment. I have dealt with the Crown's application to re-open their case and the admissibility of the plea at the commencement of this judgment. The Crown argues that, irrespective of whether the accused knew that the firearm was loaded, the very fact that a person would possess or use or act with a firearm in the way that the Crown alleges, that is, cocking and holding a sawn-off shotgun in Luke Coughlan's direction was reckless.
In relation to causation, the Crown submits that the act of Joseph Dawson was a substantial or significant cause or a contributing factor towards the injury suffered by Luke Coughlan. Addressing the evidence of the expert, that it was possible for the firearm to discharge as long as an external force caused a finger on a trigger to press down the requisite amount of force, the Crown asserts that the evidence of James Williams does not support the suggestion that Luke Coughlan grabbed the handle of the firearm when it was in front of him. This suggestion is speculative only. Regardless, the Crown submits that the voluntary act by the accused precedes the actual pressing of the finger that caused the discharge of the firearm.
With respect to recklessness, the Crown's assertion is that the degree of foresight required for the act of the accused of pointing an unchecked firearm in close proximity of another person, which is so high risk and lacking in social utility, can be one of foresight of the mere possibility of actual bodily harm in order to establish recklessness. The Crown says that it is implausible that Joseph Dawson did not appreciate the risk or slight possibility that he could cause actual bodily harm. The Crown referred to Joseph Dawson's inexperience with firearms as a circumstance relevant to arriving at the conclusion beyond reasonable doubt that the accused did appreciate the potential risk of harm because he was unfamiliar with firearms.
To exclude any reasonable possibility consistent with innocence, the Crown draws my attention to the following: 1. Joseph Dawson was effectively in a shooting stance with the barrel pointed towards Luke Coughlan. Despite the short period of time, approximately 20 seconds, the nature of this act, even for a short duration, was adequate time for the accused to have appreciated the possibility of the risk of bodily harm. 2. The group wanted to continue the party, and the accused produced the firearm in order to impress his guests. His state of mind was consistent with being prepared to behave recklessly with a friend. Not wanting to hurt a friend, as a general state of affairs, is not inconsistent with behaving in a dangerous way around a friend, because you're having fun or trying to have fun. The otherwise friendly relationship is not a rational basis to find that the accused did not in fact turn his mind to the mere possibility of some physical harm. 3. The post-allegation behaviour of the accused including his statements including "Fuck, fuck I just shot my mate. I didn't mean to do that" and "I never meant for that" are tempered by his statements before to the group including "You think I won't use it". The accused's behaviour including his concern for obtaining his cigarettes from the crime scene and his conduct with police, the Crown says, do not allow for an inference that he never turned his mind to the mere possibility of some physical harm.
Ultimately, the Crown suggests that the only rational conclusion available is that the accused did in fact perceive or appreciate or foresee a possibility of a voluntary or involuntary discharge of the firearm, causing some kind of physical injury, and that he ran that risk anyway, and there is no evidentiary basis to draw an inference that the accused did not turn his mind to the mere possibility of some physical harm.

[35]

Accused's submissions

In relation to recklessness, Mr Pace submits that, taking the circumstantial evidence into consideration, the Court could not conclude beyond reasonable doubt that the accused actually thought about the consequences.
Referring to the conduct of the accused before the shooting, Mr Pace draws my attention to the agreed facts and the evidence which confirms there was no animosity between the accused and Luke Coughlan.
Immediately after the shooting, the accused says words including "It was an accident" and "I didn't mean it". Mr Pace submits that these statements indicate that he never thought about the real possibility of causing actual bodily harm. After the shooting, the immediate response of Mr Dawson was to render first aid to Luke Coughlan also, in Mr Pace's submission, allow me to draw the inference that he never turned his mind to what ultimately occurred.
In relation to the accused having his finger on the trigger, Mr Pace referred to evidence of Mr Berry that people without training might hold their finger on the trigger of a gun.
Mr Pace submits that careful consideration of the evidence allows for the inference that Mr Dawson did not make any physical actions when holding the firearm. The conclusion Mr Pace suggests is that the firearm has moved to the left or to the right and an involuntary discharge of that firearm has occurred.
Given the very short period of time, Mr Pace suggests that the behaviour of the accused is consisted with a youth who was clearly not thinking about the consequences of his actions. The demeanour of the accused demonstrates this, and it cannot be excluded beyond reasonable doubt.
Further, Mr Pace submits that the involuntary act of the movement of the gun that led to the discharge of the firearm and the Crown submission that it was not just the pulling of the trigger but the whole of the accused's act must not be accepted.
Mr Pace reminds me that an act must be a willed act of the person accused to give rise to criminal responsibility. A spontaneous, unintended reflex action is not, of itself, a voluntary act. In common speech, a person will describe an involuntary act as being an accidental one. The Crown must prove beyond reasonable doubt that the act of the accused upon which they rely through causing harm inflicted on Mr Coughlan was a voluntary act, that is, a willed act on the part of the accused. This is distinct from the issue of whether the accused intended certain consequences from his act.
In short compass, it is Mr Pace's submission that there is evidence from witnesses that the gun is placed on the cheek of the complainant (Steele T.20.14, page 9 of submissions), then the complainant moves with mouth open towards the direction of the top of the barrel, moving forward and leaning toward it. The injuries are consistent with a shot to the side of the mouth.
He relies upon Mr Berry's evidence that side to side movement of the gun could provide 1.8kg pull force for the gun to discharge. He submits therefore there is involuntary discharge, and the Crown is unable to prove causation. He submits that in those circumstances, recklessness does not apply.

[36]

Determination

In coming to my verdict, I take the following matters into account: 1. I disregard the self-induced intoxication of the accused as I am required to do. 2. I take into account the intoxication by alcohol and drugs of the witnesses in the apartment when assessing their accuracy and reliability. 3. The accused produced a shortened firearm in a confined space that was cocked. 4. It was Mr Steele's evidence that the accused was "kind of just showing it off, waving it around" T.19. He agreed in cross-examination at 109 the use of the expression "waving" is equally an expression to use of "showing". In cross-examination, he said while it was being waved, it was being held with one hand. 5. The accused walked to where Coughlan was seated. 6. The accused put the firearm's barrel on Coughlan's cheek (Steele T.20). The gun was held with one hand (Steele T.103). Shortly after, the gun went off (Steele T.108) 7. It is the combined evidence of Steele and Williams that at the time of the production of the firearm, the accused was furtherest away from Coughlan. 8. Shortened firearms are inherently dangerous in that there is a natural reaction to hold them with one hand and hold the trigger for balance and stability of the firearm as opposed to the finger outside the trigger guard where there is less balance and stability. 9. The accused was standing up. Mr Coughlan was seated on the floor. The gun touched the face of Mr Coughlan. 10. It is the evidence of Mr Williams that Mr Coughlan leaned towards the gun with his face. Steele saw the end of the barrel being put up against Mr Coughlan's cheek. I accept Steele's evidence on that point. 11. It was about 20 seconds after the barrel was placed on Mr Coughlan's cheek that the gun discharged, although Mr Steele did not see the actual discharge. 12. The accused produced the firearm, held it in one hand and moved towards Coughlan. The firearm was cocked with no safety catch engage. He presented the barrel towards the sitting Coughlan as he stood over him and placed the barrel on his cheek and within 20 seconds, it discharged. 13. It is the evidence of Mr Berry that to discharge the firearm required the finger on the trigger and 1.8kg of pressure for discharge. 14. The Crown submits that "whether Luke Coughlan leaned forward or not, the accused's voluntary act was, as minimum, a substantial or significant cause for what resulted, being Luke Coughlan's face being partially blasted off by a shot. The Crown submit that causation has been made out. 15. Mr Pace submits that I should infer from the evidence of Mr Berry that a sideways movement of the gun could cause 1.8kg of pressure on the trigger for the gun to fire and therefore it is open to conclude that there was a sideways movement of the gun by someone other than the accused. 16. The submission has a number of faults. Mr Pace concedes there was no direct evidence there was a sideways movement of the gun. He says that the evidence of Mr Williams that Mr Coughlan opened his mouth towards the firearm is sufficient to found the inference. I disagree. The submission engages in speculation to the discharge of the firearm. 17. The evidence is clear. The accused produces the gun. On one version, he waves it around. He is holding it in one hand. He moves to where Coughlan is, who is sitting on the ground. He is in a standing position. The firearm is touching the cheek of Luke Coughlan and within 20 seconds, it discharges. There is evidence that he leaned toward the gun before discharge. 18. I am unable to infer from those known facts that someone grabbed the firearm and moved it sideways for discharge of the gun. To do so would be engaging in speculation. There is no evidence, and it cannot be inferentially found that Mr Coughlan pulled the gun towards himself thereby causing the discharge. Mr Pace accepted that proposition (T.150.47). 19. Mr Pace relied upon part of paragraph 6 of Mr Williams' statement where he said to police "Luke had his mouth open and leant towards the gun and I remember Luke opening his mouth and put the gun in his mouth." This was put to him which he did not adopt. It was his evidence in the trial that "I don't remember him put it in his mouth. No, he had his mouth open and was leaning towards the gun." (T.54). 20. At T.55, Mr Williams said "I never seen the gun actually in his mouth, but he was like leaning over with his mouth open, like, he was going to put his mouth kind of thing." 21. Mr Pace submits that one can infer Mr Coughlan opened his mouth, moved towards the firearm and "that you would have to conclude that the firearm has moved to the left or to the right and an involuntary discharge of the firearm occurred." (T.154). In my view, no such inferential reasoning is available. It is speculative. I am unable to draw the inference I am asked to draw. 22. I am satisfied that the gun discharged as a result of pressure from the accused's finger on the trigger a short time after the barrel came into contact with Luke Coughlan's cheek. It was a voluntary act. I reject Mr Pace's submissions that the discharge occurred as a result of an involuntary act. It was not a spontaneous, unintended reflex action.
I now turn to the question of recklessness.
Mr Pace says the actions of the accused were not reckless. He reminds me that it is a subjective test, not an objective test. He relies upon the following: 1. The age of the accused 2. The inexperience of the accused with firearms (relying upon the evidence of his then girlfriend and Mr Coughlan having never seen the accused with a firearm) 3. His conduct before, at the time of, and after the shooting
The accused said "Didn't mean that. I just shot my mate" to Mr Steele. He went on to say, "it was an accident". The representation that he didn't mean it goes to the question of intent. The charge is one of recklessness.
Mr Pace relies upon the accused saying to Mr Steele, "Fuck, fuck, I just shot my mate". Those words are simply a narrative of what he did and do not mean that he was not reckless.
Saying I didn't mean it highlights the difference in concepts between intentional and reckless. Those words mean he did not intend to do it, but intention is not the issue.
Mr Pace relied upon the fact that there was no enmity between the accused and Mr Coughlan. The Crown does not have to prove a motive. The lack of enmity does not disprove recklessness.
Mr Pace relied upon the accused's representations to the police of "that's my fucking best mate. My mate's just been shot". Those representations are a narrative of what happened and friendship. As I said before, a motive does not have to be proved. One can be the best of friends but act recklessly.
I am satisfied the accused possessed a shortened single barrel shotgun. He produced it and was showing it off to all. He held it with one hand. It would be natural to do so because the firearm was shortened. His finger was on the trigger as opposed to the trigger guard. It would be natural to do so with a shortened firearm.
The firearm was cocked, but the accused may not have appreciated so. The firearm was loaded but the accused may not have appreciated so at the time.
He advanced towards Mr Coughlan who was seated. The accused was standing. He did not point the gun towards the floor. He placed the barrel of the gun on the cheek of Luke Coughlan. Within 20 seconds of so doing, it discharged. I find beyond reasonable doubt that it discharged due to the pressure placed by the accused on the trigger.
A shortened firearm was produced in a confined area where four other people other than the accused were partying.
I am satisfied of the Crown's submissions that the accused foresaw the possibility of actual bodily harm by his conduct.
In my view, the crown has excluded the availability of any rational possibility that the accused acted without appreciating the risk of actual bodily harm.
A sawn-off shotgun is an inherently dangerous weapon. To hold such a weapon with one hand and finger on the trigger points subjectively to reckless conduct. To advance and point the gun at a seated person speaks of reckless conduct. To place the shortened firearm on the cheek of Luke Coughlan speaks of recklessness.
On the charge, that the accused on 2 May 2021 at Albury in the state of New South Wales did cause grievous bodily harm to Luke Coughlan and was reckless as to causing actual bodily harm to him, I find the accused guilty.