R v Godfrey [2024] NSWSC 181 | Case summary

Supreme Court of NSW|2024-02-05|Before: Cavanagh J

JUDGMENT

This is the judgment in respect of the offender's application for costs in relation to the charge of murder that was pursued against him but was subsequently not pressed by the prosecution.
As stated in my judgment of 3 November 2023 (R v Godfrey [2023] NSWSC 1312), on 4 April 2021 the offender killed Giuseppe ("Joseph") Pagano. He was charged with his murder but entered a plea of not guilty to that charge.
The trial came on before me and a jury on 22 March 2023. On 11 April 2023, the jury was discharged.
On 5 July 2023 (subsequent to the discharge of the jury), the prosecution filed an amended indictment which included a count of manslaughter in the alternative to murder.
On 7 July 2023, the offender was rearraigned, this time including the charge that he had unlawfully killed Mr Pagano contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). He pleaded not guilty to murder and guilty to manslaughter. The prosecution accepted that plea in full satisfaction of the indictment.
The basis upon which the offender offered to plead guilty to manslaughter (which was accepted by the prosecution), was excessive self-defence, as set out in s 421(2) of the Crimes Act.
On 3 November 2023, the offender was sentenced to a term of imprisonment in respect of the manslaughter of Mr Pagano.
As will be evident from the sentencing judgement, Mr Pagano died following the offender applying a chokehold to him in the area outside the offender's apartment around 3:00 am on 4 April 2021. At least some of the relevant events were captured on CCTV footage.
The offender now makes an application for costs pursuant to the Costs in Criminal Cases Act 1967 (NSW) in respect of the proceedings that were pursued against him based on the charge of murder.
The Crown opposes the application.

The principles to be applied

The principles to be applied are not in dispute. This is an application under ss 2 and 3 of the Costs in Criminal Cases Act. Sections 2 and 3 are in the following terms: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and - (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. (2) (Repealed)
The applicant seeks a certificate under s 2 specifying the matters referred to in s 3. In order to grant the certificate, I must be satisfied (that is, have the opinion) that if, before the proceedings were instituted, the prosecution had been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, that is indict the applicant for murder.
I must also be satisfied that any act or omission of the offender that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.
The approach to the granting of a certificate was set out by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] as follows: "The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination whether that act or omissions was, in the circumstances, reasonable."
The offender bears the onus of establishing on the balance of probabilities that it was not reasonable for the prosecution to institute and maintain the proceedings (that is, for the charge of murder). There is no definition or specified criteria as to what may be reasonable. Each case is fact specific and it is necessary to consider all the circumstances of the particular case (R v Fejsa (1995) 82 A Crim R 253).
It is necessary to undertake an objective analysis of the whole of the relevant evidence. The existence of issues that may fall to be determined based on credibility may detract from the strength of the application, particularly as they are matters to be determined by the ultimate factfinder, in this case, the jury (Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510 at [36] per McColl JA).
As the Crown submits, the Court is required to ask a 'hypothetical question' being "whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings" (Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560; see also R v Johnston [2000] NSWCCA 197 at [16]; Beatson v R [2015] NSWCCA 17 at [10]).
Further, the Crown emphasises that the purpose of the provisions is not to be critical of the police or the prosecutor but to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings.

The applicant's contentions

The applicant contends that, on an objective assessment of all of the evidence, it was not reasonable for the Crown to proceed with the charge of murder because, on any view of the evidence, it would not have been able to satisfy its onus in respect of the first limb of self-defence.
In the particular circumstances of this case, it would have been necessary for the Crown to prove beyond reasonable doubt that the applicant did not carry out the acts which caused Mr Pagano's death in self-defence. Self-defence operates as a total defence to murder (in the circumstances of this case) only if: 1. the applicant believed that it was necessary to defend himself; and 2. his conduct was a reasonable response in circumstances as he perceived them.
The applicant's central submission is that, having regard to all of the evidence, the prosecution would not have been able to discharge its onus of proving that the applicant did not believe that it was necessary to defend himself.
This application is not consequent upon the discharge of the jury. The applicant accepts that the discharge of the jury (on unrelated grounds) is not relevant to the application he now brings. It is thus not necessary to consider further why the jury was discharged during the proceedings for murder.
The applicant submits that there was no evidence available to the prosecution to exclude the first limb of self-defence. Specifically, the applicant says that his application of the rear naked chokehold was applied following the deceased commencing to assault him by delivering a series of heavy blows to his head.
The applicant says that he was initially unable to defend himself. He sustained an injury to his left eye involving blood and significant swelling. Despite the blows against him, he did not use the box cutter which was located in his pocket or any other weapon against the deceased.
On the applicant's contention, the fight then moved to the ground. The applicant was on the back of the deceased, but the deceased continued to act violently by kicking his legs out and reaching back for his right arm. The deceased continued to try and get up and responded violently to the applicant's attempt to subdue him.
It was an agreed fact that the applicant first rendered the deceased unconscious by the application of the chokehold. It was also agreed that those actions were undertaken in lawful self-defence. Further, the chokehold was designed to leave a person with no injury whatsoever. The issue on this application relates to the subsequent conduct of the applicant in reapplying the choke hold, after the deceased had been subdued initially.
The applicant submits that the court should not revisit any finding of facts made for the purposes of sentence, but rather relies on those findings (from my sentencing judgment) as follows: "[27] It is agreed that, as the men approached the elevator door, Mr Pagano adopted a fighting stance. He grabbed and punched the offender several times around the head and face. The offender's head came into contact with a wall. This resulted in an injury involving blood and significant swelling to his right eye. [28] The offender was unable to protect himself and adopted a stance to avoid a further two blows. As they fell to the ground, the offender got on top of the back of Mr Pagano, who was positioned with his face down. Mr Pagano resisted by kicking his legs out and reaching back with his right arm but the offender was holding him from the back whilst on top of him. [29] Although not everything that happened can be seen on the CCTV footage, to the extent that it can be seen, it is clear that the offender remained on top of Mr Pagano. The offender is shown applying a choke hold, albeit Mr Pagano was still resisting. That continued for a further 50 seconds, at which point the offender and Mr Pagano move off screen entirely for a brief period. Two minutes and 27 seconds from the commencement of the footage, the offender's head and body are visible. He is on top of Mr Pagano applying some form of choke hold around his neck. Mr Pagano appears to briefly lose consciousness, but he then regains consciousness. This is consistent with the offender telling the police that he rendered Mr Pagano unconscious on two separate occasions. It is also consistent with some of the words that the witnesses heard. [30] The offender suffered an injury to his eye as well as a large scratch on his throat and down his chest. This was from Mr Pagano clawing at him as he was being choked. [31] The parties agree that up to this point, the actions of the offender represented a reasonable response to the circumstances as he perceived them. However, the parties also agree that, after Mr Pagano was rendered unconscious for the first time, the ongoing application of the choke hold was not a reasonable response. This is because the offender maintained the choke hold around Mr Pagano's neck despite the fact that Mr Pagano was not moving. [32] Whilst this was going on, a number of residents on the floor were woken up or disturbed and could hear what was happening. Police and paramedics attended. Their attempts to revive Mr Pagano were unsuccessful. [33] Adjoining residents heard Mr Pagano crying out for help, saying, "he's trying to get me", "help, rape" and "call police, call police." The offender was also heard calmly telling the offender to "shut up, be quiet, I'll put you to sleep like I did before". [34] After releasing Mr Pagano from the choke hold, the offender got up. Mr Pagano was not moving. Shortly thereafter, he went through Mr Pagano's pockets and took out $60 cash. He then tried to put Mr Pagano's wallet back into his pocket. He made no attempt to assist him. Prior to the arrival of emergency services personnel, the offender walked into his unit and then walked out again. [35] In the short period after the police attended, the offender made a number of statements about what had occurred inside the unit. I am unable to be satisfied that they are true. [36] He also said that Mr Pagano became unconscious when he had him in a "sleeper hold" for about three seconds. He told police, 'I did not wish to kill this man, if that is what the circumstances end up being'. [37] When the offender was searched, a knife case was found in his pocket. A Stanley knife was located in another one of his pockets. He said the knife was from his work. Mr Pagano's wallet was also located on the offender. … [45] I am unable to draw any conclusion that, at the time when the offender first placed Mr Pagano in the choke hold, he intended to kill him. I am unable to be satisfied that the offender had formed an intention to kill him or even cause grievous bodily harm. The parties agree that I should not make such a finding. [46] Further, as the actions of the offender in applying the choke hold are the same when he was acting lawfully (that is, when he was acting in self-defence) as they were when he was acting unlawfully (when his actions were excessive) and as there was no weapon involved, I accept that the degree to which the offender's actions were excessive or unreasonable was not extreme or high. [47] The sad reality of the circumstances of Mr Pagano's death is that both men were suffering from drug addiction and had taken drugs. In the hours and minutes before the incident, the offender had consumed significant quantities of alcohol and some drugs. Mr Pagano had consumed methamphetamine. Something happened inside the apartment which caused Mr Pagano to leave and be followed by the offender. They became involved in a fight. No weapons were involved. Whatever the offender's state of mind might have been at the time, he continued to apply force to Mr Pagano after he was already subdued. He killed Mr Pagano. It is for that reason that he is in prison and must be sentenced."
Further, the applicant submits that the jury would have been entitled to take into account the applicant's intoxication when making a determination about the first limb of self-defence. The applicant had consumed about 8 blended scotch whiskies between 5:30pm and 12:30am. He appeared to be drunk and edgy between 2:15am and 2:30am.
The applicant and the deceased met each other in the joint pursuit of obtaining prohibited drugs. Having done so, they returned to the applicant's unit. The deceased's intent was to exchange some methamphetamine for cannabis once inside the applicant's unit.
The applicant submits that the prosecution was required to exclude the first limb of self-defence in the face of evidence that: 1. the deceased was a larger and much more powerful man who had turned into "fight mode" when he commenced assaulting the applicant and had landed a number of heavy blows upon him; 2. the applicant did not use a weapon and instead deployed a hold designed to subdue the deceased; 3. the type of force that resulted in the deceased's death was prima facie lawful. It just extended for a period that was too long (said to be by a very narrow margin); and 4. the length of time that the applicant had the deceased in a chokehold is not to be equated with the length of time that the applicant was in a position to apply chokehold.
The applicant submits that the only basis on which the prosecution could exclude, as a reasonable possibility, that the applicant believed it was necessary to do what he did was to establish that the applicant maintained an effective chokehold for a period longer than he believed it was necessary to do so, in circumstances where he was aware that death was a probable but not inevitable consequence of his actions. The applicant submits there was no evidence to support the establishment of that fact beyond reasonable doubt.
The Crown accepts that the indictment presented to the jury contained only the murder charge but submits that the Crown opened on manslaughter as an alternative to murder. Further, the Crown made it clear that: 1. the deceased was rendered unconscious, not once but twice; 2. it was the second time the deceased was rendered unconscious that killed him; and 3. whether or not the applicant was acting in self-defence the first time he rendered the deceased unconscious, he was not acting in self-defence the second time.
The Crown refers to the evidence from the neighbours, to which I have already referred, emphasising that it is important what the bystanders did not hear. There is no evidence of anyone hearing that which the applicant said in his ERISP interview about threats continuing to be made by the deceased. Further, the Crown refers to the lie told by the applicant to police about a fear of being attacked with a knife and that being the basis on which he applied the chokehold on a second occasion.
The Crown submits that once the deceased had been rendered unconscious for the first time, the threat posed by him was negated. To persist with the chokehold, that is to apply it again, was neither reasonable nor necessary. Further, the Crown disputes the applicant's analysis of the preceding events, including the fight which ensued and who was in "defence mode".
The Crown points out that the applicant was shown chasing the deceased as he left the apartment. Certainly, the deceased went into "fight mode", but it is said that it was the deceased who was acting in self-defence.
The fact that the deceased was a bigger man did not lead to the opposite conclusion. The applicant did not give evidence at trial, but the Crown points to his ERISP interview, and some answers he gave during that interview, as evidence of his interactions with the deceased. In particular, the Crown says that, based on the answers in the interview, it was clear that when the applicant applied the chokehold the second time it was not for fear of further punches, but it was either a response to the noise being made by the deceased or because of the claimed threat by the deceased that he would "fucken cut" the applicant. Again, the Crown submits that the Court would not accept that these words were spoken by the deceased and that the applicant told a deliberate lie to protect himself.
The Crown submits that, contrary to the applicant's submissions, the Crown could rely on the weight of the evidence, including evidence of the applicant's intoxication, to prove that the applicant intended to inflict GBH when applying the chokehold the second time; was not acting under any perceived threat at that time; and that the deceased died as a direct result of the chokehold.
The Crown says that in those circumstances, it was reasonable for the Crown to pursue the charge of murder, leaving it to the jury to make a determination on the facts.

Determination

The critical point is whether, on an evaluation of all of the evidence, there was a reasonable possibility of the prosecution discharging its onus and establishing that the applicant did not believe that it was necessary to defend himself when applying the chokehold on the second occasion.
I am not satisfied that it was not reasonable for the prosecution to institute proceedings for murder. I say this for the following reasons.
First, it is evident from the CCTV footage that it is the applicant who was chasing the deceased as the deceased left the unit.
Secondly, whilst it is correct that the deceased changed from flight to fight mode, in the sense that he squared up against the applicant and that he struck the applicant, it would have been a matter for the jury to determine who was the instigator of that fight.
Thirdly, even though the deceased was a big man, it is clear from the CCTV footage that the applicant was able to quickly get on top of him and subdue him. The applicant's characterisation of the ongoing violent conduct of the deceased as he lay on the ground with the applicant on top of him might be described, alternatively, as the deceased fighting for his life as he was being choked by the applicant.
Fourthly, the applicant was seeking to subdue the deceased but once he had subdued him on the first occasion, he had a number of options available to him. Again, there was an alternative view of why the applicant applied the further choke hold (other than a belief that it was necessary to defend himself).
The evidence of the neighbours is important to this application. Mrs Northam said the applicant sounded calm and heard him say, "be quiet or I will put you to sleep again." Mr Northam heard something similar. Scott Rayson heard the applicant telling the deceased to shut up in a loud voice. Lewis Rayson heard someone say, "this is what you get."
Further, again as submitted by the Crown, in his ERISP interview the applicant referred to the potential for the deceased to get up and harm him with a knife, but this assertion was a lie. It was a matter for the jury to determine what evidence they would accept and not accept. The credit of the applicant was in issue, albeit he bore no onus.
I am not persuaded that the fact that the deceased was a bigger man and had managed to punch the applicant somehow leads to the conclusion that the prosecution could never have established that the applicant did not believe it was necessary to defend himself.
It seems plain that the applicant had subdued the deceased through the application of the rear naked chokehold. It was accepted that the initial application was lawful. The reason for or the basis on which the applicant thought it necessary to reapply the same chokehold, effectively continuing with the choking of the deceased for a lengthy period, was ultimately a matter for the jury to decide.
As I have outlined, there was evidence which might have caused the jury to accept, as the Crown outlined, that the applicant did not believe that it was necessary to defend himself when he applied the second chokehold. He did so for other reasons.
As has been emphasised in earlier cases (see Beatson v R [2015] NSWCCA 17 at [12] per Hoeben CJ at CL quoting R v Manley (2000) 49 NSWLR 203 at [10] per Woods CJ at CL), it is not necessary that I be satisfied that the jury would be likely to convict. It is not necessary that I make such a finding. What is reasonable depends upon the circumstances of the particular case.
On my consideration of all the evidence, there was evidence on which the Crown could rely in order to establish that the applicant did not believe that it was necessary to defend himself at the time and that he reapplied the chokehold and continued with it, thereby killing the deceased.
In these circumstances, the applicant has not established that it would not have been reasonable to institute the proceedings for murder.
The application is thus dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 February 2024

R v Godfrey

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