The Incident
2 Mr Christopher Harris was in the habit of using the train. On the morning of 27 October 2002 he caught the train at Kings Cross Station. He intended to travel to Newtown. It was necessary for him to change trains at Redfern. Once at Redfern, he sat alone on the end seat of platform 7.
3 A train arrived on platform 7 at 12.45 pm. Mr Kerr was a passenger on that train. He alighted near Mr Harris. He was accompanied by his girlfriend, Ms Yvonne Sekope, and her friend, another young woman. Shortly after getting off the train Mr Kerr addressed Mr Harris, who remained seated. He said words to the effect: "What the fuck are you staring at?" As he said these words he moved towards Mr Harris. However, he was restrained by his girlfriend and the other young woman.
4 Mr Kerr then broke free of that restraint. Again he moved in the direction of Mr Harris. He repeated words to the effect: "What the fuck are you staring at?" Again he was physically restrained by the two women.
5 Mr Harris and Mr Kerr were perfect strangers. The attack was entirely unprovoked. Mr Harris had done nothing to excite the attention of Mr Kerr. He was sitting quietly on a suburban railway station, waiting for his train. He was wearing sunglasses.
6 Mr Harris did not respond to Mr Kerr's words. Rather, he got up and walked behind the railway seat and then to the edge of the platform. He looked towards the city, presumably checking that there were no trains coming from that direction. He then jumped down onto the track.
7 Mr Harris made his way directly across the tracks towards platform 5. As he did so, he looked back at Mr Kerr. A train was in fact approaching platform 5 from the opposite direction, that is, travelling towards the city. The driver saw Mr Harris. He sounded a long blast, termed a "country horn". At the same time the two women with Mr Kerr shouted out "train", attempting to warn Mr Harris.
8 Mr Harris responded by turning his body in a full circle. He then saw the train. In the agony of that moment he was called upon to make a split second decision. He ran directly across the path of the train, attempting to reach the safety of platform 5. He managed to place his hands on the platform, but was unable to pull himself up before the train was upon him. He was struck by the train and died almost at once.
9 The area where the incident took place was isolated. The stairs which provided an exit from the platform were at the other end. Like all suburban railway platforms, it was relatively narrow and elevated, an island surrounded by railway tracks.
10 Mr Kerr was, at this time, almost eighteen years old. He presented as a muscular young man. Mr Harris was forty-four years old. The jury were satisfied, as I am satisfied, that the actions of Mr Kerr were both unlawful and dangerous. They were an assault upon Mr Harris, engendering a well-founded apprehension of imminent physical violence. There was no-one nearby, apart from Mr Kerr's companions. The narrowness of the platform, its elevation and its proximity to the railway tracks added to the danger. It was reasonable and unsurprising that Mr Harris should have sought to escape. The jury, by its verdict, determined that crossing the tracks was a reasonable and proportionate response to the conduct of Mr Kerr, and the fear that it had engendered.
11 Nonetheless, it should be said that the incident was obviously unplanned. It was a spontaneous outburst on the part of Mr Kerr. He had no weapon. He did not actually touch Mr Harris. The closest he came to Mr Harris was about two metres. The whole episode was captured on the video surveillance maintained by the railway station. The video frames record the time. From beginning to end, that is from the time Mr Kerr got off the train, until the time the train struck Mr Harris, twenty-eight seconds elapsed.
12 Mr Kerr says that he personally did not foresee that Mr Harris would react in the way that he did. At the moment of the confrontation, he did not intend that Mr Harris should suffer grievous bodily harm, much less that he should be killed. He intended, by his aggression, to intimidate or frighten Mr Harris. I accept that these statements accurately represent Mr Kerr's state of mind.
13 At the time of this attack Mr Kerr was seriously affected by alcohol. He was also tired. He had been to a number of parties in the fifteen or so hours before the incident. He had consumed a significant quantity of alcohol, including spirits, beer and wine. The fact that Mr Kerr was drunk may be an explanation for his conduct. It plainly is not an excuse.
14 The incident received a good deal of publicity. Still photographs from the video surveillance appeared in a number of newspapers. There was an appeal by the police that those depicted should come forward. The female companions of Mr Kerr determined that they would do so. They spoke to Mr Kerr. He agreed to accompany them to the police. Mr Kerr was later interviewed by the police. The incident had occurred four days before his eighteenth birthday. He was still, at law, a child. The interview was therefore conducted in the presence of his father. Mr Kerr readily admitted his involvement.