R v Williams

Legal Principles

1. In Mordaunt v DPP (NSW) [2007] NSWCA 121, McColl JA (with whom Beazley and Hodgson JJA agreed) at [36] summarised principles which her Honour extracted from the authorities dealing with applications for a certificate under the Act. The following extract of her Honour's summary is relevant to the matters to be considered in this case: "(a) The … Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (NSW) (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 at 559-560 per Kirby P, Meagher JA, Handley JA; … (d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley [(2000) 49 NSWLR 203; 112 A Crim R 570] at [15] per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) at [17], [29] per Simpson J (Wood CJ at CL agreeing); (e) The task of the court dealing with an application under the… Act is to ask the hypothetical question, 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 at 559-560; the judicial officer considering an application must find what, within the Act, were 'all the relevant facts' and assume the prosecution to have been 'in possession of evidence of' all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue': Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler [v Director of Public Prosecutions (NSW) (1995) 82 A Crim R 128] at 134-135 per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the… Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton at 559-560; Manley at [9] per Wood CJ at CL; the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (NSW) (1992) 65 A Crim R 160 at 164-165 per Sheller J (with whom Mahoney JA and Hope AJA agreed); (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): R v Fejsa (1995) 82 A Crim R 253 at 255; Manley at [3]-[14] per Wood CJ at CL, however the factors set out in (h)-(n) have been identified as germane; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R v Ahmad [2002] NSWCCA 282; (i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: McFarlane; app. Manley per Wood CJ at CL (at [12]); … (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported); (n) … (o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing); (p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]). (q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston per Sully J (at [10]); (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court (NSW) [[2002] 211 CLR 119] (at [50]) per McHugh J."

Evidence

1. The parties both rely on all the evidence which was admitted at the applicant's trial. The applicant also relies on an affidavit affirmed by his solicitor on 10 June 2022. I have had careful regard to all of this evidence.
2. It is not necessary to recount all of the evidence in these reasons. However, the following may be said about the facts of the case.
3. On 5 June 2013, the applicant and members of his family, including his son in law, Reuben Anderson, drank alcohol and watched the State of Origin at their home, which was in Goonellabah, a suburb of Lismore.
4. That night, without the applicant's knowledge, the applicant's teenage son, Malique Walker, attended the deceased's home, which was a short walk away from the applicant's home. The deceased was drinking alcohol.
5. At around 11:15pm, the applicant and Mr Anderson drove past the deceased's house and saw Malique Walker with the deceased. Malique Walker had been told by his parents not to attend the deceased's house because the applicant considered the deceased to be a bad influence on him. There was some evidence about drug use by, and the violent tendencies of, the deceased.
6. At around 4:45am, 6 June 2013, the applicant and Mr Anderson walked to the deceased's home to collect Malique Walker. Mr Anderson and the deceased argued and engaged in fisticuffs. At one point, the deceased struck Mr Anderson on his back with a metal bar.
7. Malique Walker, the applicant and Mr Anderson walked back to their home. The applicant was angry with Malique Walker for going to the deceased's home.
8. At around 5:25am, the deceased arrived at the applicant's home, yelled obscenities, threatened violence and argued with various members of the applicant's household. Mr Anderson and the deceased again fought on the front lawn and on the street in front of the applicant's home. At one point, Mr Anderson may have tackled the deceased over a low retaining wall and the deceased could have landed on a concrete manhole. At another point, Mr Anderson may have tackled the deceased onto a concrete driveway.
9. At the commencement of this fight with Mr Anderson, the deceased was carrying a baseball bat. And although no one except the applicant saw the deceased carrying a knife, it was clear that the deceased was carrying a knife because Mr Anderson was cut several times during the fight. The deceased also punched the applicant's daughter in the head.
10. The deceased and Mr Anderson moved down the street, away from the applicant's house. The applicant collected the baseball bat which had been dropped by the deceased and followed them. The applicant's evidence is that he then saw the deceased wave his arms in a slashing motion towards Mr Anderson. At this point, the applicant considered the deceased may have been carrying a knife and moved closer to the pair. His evidence was that when he reached them, the deceased was arched over Mr Anderson and was holding a knife. People were screaming.
11. The applicant stepped closer and struck the deceased once in the head with the baseball bat. He said he acted instinctively to protect Mr Anderson and to stop the fight, which had been getting progressively worse. He said he thought the deceased was going to kill Mr Anderson.
12. The deceased ran back to his home and collapsed on the front steps. Police and ambulance officers arrived at the scene and the deceased was taken to hospital. He became unconscious as a result of a subdural haemorrhage. Doctors performed an emergency craniotomy to relieve the resulting pressure on the deceased's brain but he died two weeks later, on 25 June 2013, ultimately as a result of pneumonia.
13. It was not in contest at trial that the deceased had died. The applicant did not contest, either, that he struck the deceased on a single occasion with the baseball bat.
14. The critical issues which were left to the jury at trial were causation and self-defence.

History of the Prosecution

1. As noted above, the incident to which the trial related occurred on 5 and 6 June 2013.
2. Following the initial police investigation, the matter was referred to the Director of Public Prosecutions who determined that no charges ought be laid against the applicant.
3. In or around September 2015, family members of the deceased covertly recorded a conversation between them and Mr Keen, who described witnessing the applicant strike the deceased with the baseball bat. He hadn't provided this account to police prior to this point.
4. On 15 May 2018, a coronial inquiry into the death of the deceased commenced.
5. On 5 July 2019, the matter was referred by the Coroner to the Director of Public Prosecutions.
6. On 23 October 2020, the applicant was notified by the Director of Public Prosecutions that he would be charged with the murder of the deceased.

Applications to the Crown

1. The applicant draws attention to two emails he wrote the prosecutor before the commencement of his trial. The first was sent on 5 May 2022, just over a week prior to the commencement of his trial, and attached a report prepared by an expert witness who was called by the applicant during his trial. The applicant invited the Crown to discontinue the proceedings and in doing so drew attention to, first, evidence which he said caused doubt as to whether he caused the deceased's death and, secondly, evidence which he said suggested that the applicant's actions were done in defence of another. The applicant also suggested that the prosecutor "take a realistic view of the prospects of our [client's] uncautioned interview being admitted".
2. The second email was sent by the applicant on 18 May 2022, shortly after I determined on a voir dire, conducted on the two previous days, to refuse to admit statements which were made by the applicant to two police officers following the incident the subject of the charge. The prosecutor had intended to rely upon those statements, in the first place as being lies giving rise to an inference of consciousness of guilt and, secondly, as evidence that the applicant did not act in defence of another. In his second email, the applicant reiterated his submission that the Crown ought discontinue the proceedings given the state of the admissible evidence regarding the cause of the deceased's death and the motivation of the applicant to act in defence of another.

Application to the Court

1. After the Crown closed its case, on Friday, 27 May 2022, the applicant applied for a directed verdict on the indictment of not guilty. For reasons which I gave orally on Monday, 30 May 2022, I dismissed the application. In essence, I determined that there was evidence in the Crown's case, which if accepted by the jury, was capable of proving each of the elements of the offence, including that the applicant caused the deceased's death and that the applicant did not act in self-defence.

Applicant's Submissions

1. In his submissions, the applicant draws attention to these particular factual matters: 1. In relation to causation: 1. Donald Fing, who was the only witness other than the applicant to give evidence that the applicant struck the deceased with a baseball bat, and the applicant both gave evidence that the deceased was struck on the back right-side of the head. His skull was fractured on the front right-side, and there was no evidence that such a strike could cause such an injury; 2. The medical expert called by the applicant expressed doubt about the cause of death; 3. The medical experts called by the Crown were not shown the factual evidence which had been given during the trial and therefore gave "hypothetical evidence". 1. In relation to self-defence: 1. The applicant admitted striking the deceased with the baseball bat and gave cogent, persuasive and "virtually unchallenged evidence as to the facts that underpinned his self-defence claim, including of seeing a knife and blood in [the fight] and hearing a scream… all being matters the prosecution case was incapable of excluding"; 2. Mr Fing's evidence, which was relied upon by the Crown to negative self-defence, was largely inconsistent with the rest of the Crown case; 3. Mr Fing was much less credible than the applicant; 4. Properly considered, Mr Fing's evidence did not undermine the case that the applicant acted in self-defence; 5. Kyle Keen and other potential witnesses were not available at trial and none of their recorded evidence was sought to be led; 6. The Crown's "anger" or "punishment" case theories were not supported by evidence other than that the applicant was unhappy that Malique Walker attended the deceased's home; 7. The circumstances of the applicant's recorded statement to police on the day of the incident were such that it was likely to be excluded (as it ultimately was); 8. The Crown case included the concession that the deceased carried a knife a short time before the applicant struck the deceased with the baseball bat.
2. The applicant submits that "by the conclusion of the trial the [a]pplicant's claim to have acted in self-defence was virtually unassailable and a reasonable prosecutor would not have commenced proceedings in knowledge of that". He also submits that there was "fundamental doubt as to the question of causation".
3. The applicant submits that a "reasonable prosecutor, … with [knowledge of] all the relevant facts as they transpired at the trial, would not have subjected the applicant to these criminal proceedings". He draws attention to the long history of the prosecution of the matter, which I have earlier summarised.

Crown's Submissions

1. In relation to causation, the Crown draws attention to the evidence of Dr Robert Simon to the effect that, when he performed an emergency craniotomy on the deceased, he shaved the deceased's entire head, and the only visible injury was to the right side of the deceased's head. The Crown points to various other opinion evidence which it says amounts to an agreement by the experts "that the most obvious cause of the fracture was the strike from the baseball bat".
2. The Crown submits that, in light of the evidence regarding causation, there is no basis to conclude that it was not reasonable to institute the proceedings.
3. In relation to the issue of self-defence, the Crown notes that none of the Crown witnesses gave evidence of seeing the deceased armed with a knife immediately before the applicant struck the deceased with the baseball bat.
4. The Crown says issues at the trial included the timing of the infliction of the knife wounds to Mr Anderson and, also, the reasonableness of the applicant's response in striking the deceased to the head with a metal baseball bat. The Crown submits that these were issues to be determined upon the reliability, credibility and demeanour of the witnesses.

Discernment

1. The relevant facts which the prosecution is hypothesised to have had before the proceedings were instituted include those which were not in evidence at the trial: Mordaunt at [36(f)]. In this case, however, although I have carefully considered all of the relevant facts, it is not necessary to discuss those other than as they were admitted at trial and formed the basis of the dispute left for the resolution by the jury.

Causation

1. In dismissing the applicant's application for a directed acquittal, I formed the view that the Crown's case was capable of demonstrating that the blow to the head of the deceased by the accused: 1. caused a fracture to the skull; 2. was of sufficient force to cause a subdural haematoma; and 3. that that subdural haematoma led to unconsciousness, with resulting pneumonia and the death of the deceased.
2. In my brief reasons for dismissing the application, I said this: "… [W]hether there was any other blunt-force trauma applied to the head of the deceased in the course of the events of that evening depends upon a wide range of facts, some of which point to the existence of blunt-force trauma, others of which do not. In those circumstances, there are facts which if accepted by the jury, would suggest that the blunt-force trauma of the baseball bat hitting the head of the deceased was the only cause of the injury which followed."
3. Professor Peter Ellis, a medical expert called by the applicant in his case, gave evidence after I dismissed the application. His evidence may be fairly characterised as throwing shades of doubt on the Crown's causation case. But, ultimately, his evidence about the possible alternative causes of the deceased's death depended on findings by the jury about whether any other blunt-force trauma was applied to the head of the deceased.
4. The applicant gave evidence that Mr Anderson "picked up" the deceased and "tackled him off" the retaining wall, landing on or near the concrete manhole cover. He also gave evidence that Mr Anderson tackled the deceased onto the concrete driveway. Both of these matters weakened the Crown case on causation because, if accepted by the jury, they may have contributed to a finding of reasonable doubt as to whether the strike with the baseball bat by the applicant caused the deceased's death.
5. However, as to the question of causation, in light of all the relevant facts, including the expert medical evidence given in relation to the autopsy which was performed and the ordinary causes of subdural haemorrhages and, especially, the evidence of Dr Simon that he noticed only one major injury to the right side of the head before he performed the emergency craniotomy, the applicant has not persuaded me that it was not reasonable to institute the proceedings. It was well open to the jury, even taking account of the evidence led in the defence case, to find that the prosecution had established beyond reasonable doubt that the applicant caused the death of the deceased.

Self-defence

1. The questions of self-defence left open to the jury at the trial were governed by ss 418 and 421 of the Crimes Act 1900. Those sections relevantly provide: "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary - (a) to defend himself or herself or another person, … … and the conduct is a reasonable response in the circumstances as he or she perceives them. … 421 Self-defence - excessive force that inflicts death (1) This section applies if - (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary - (c) to defend himself or herself or another person, … (d) … (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
2. Those sections required the jury to determine: 1. whether the applicant believed the conduct, namely striking the deceased to the head with a baseball bat, was necessary to defend Mr Anderson; 2. what the applicant perceived the circumstances to be at the time the applicant engaged in that conduct; and 3. whether that conduct was a reasonable response in the circumstances as the applicant perceived them.
3. Those are all matters which, on the facts of this case, turned significantly on matters of judgment concerning the credibility and demeanour of the applicant and other witnesses. They also involve, critically, a qualitative assessment of the reasonableness of the response which was taken by the applicant. That assessment involves an evaluation of a kind left to the jury.
4. In dismissing the application for a directed acquittal, I said this: "As to whether the Crown's case is capable of eliminating self-defence, in my view, on one version of the facts which involve: an analysis of the location in the street at which the accused struck the deceased; the time in the sense of the stage at which the fight between the deceased and Ruben Anderson had reached; the fact that there was a statement made by Mr Fing designed to discourage participation by the accused; and the subsequent participation, including the way in which and the force with which the baseball bat struck the head of the deceased; could lead a jury acting rationally to conclude that the accused was not acting in self-defence."
5. The applicant gave evidence after I dismissed his application. His evidence strongly supported the case that he acted in self-defence. In part, it conflicted with the version of the facts I recounted in my reasons for dismissing the application for a directed acquittal. But that does not mean that the Crown's case against the applicant was inherently weak. It was open to the jury to reject the applicant's account. And although Mr Fing was discredited during the course of his evidence during the trial, I cannot conclude that a jury which accepted his evidence would have been acting unreasonably. Key elements of his evidence were corroborated by the applicant.
6. I also take into account the evidence of the other witnesses who were present around the time the applicant struck the deceased. None of them, including Mr Anderson and the applicant's daughter, saw a knife in the hands of the deceased.
7. These matters combine to lead me to the conclusion that the applicant has failed to persuade me that the prosecution would not have reasonably instituted the proceedings if they had been in possession of evidence of all the relevant facts.
8. It follows that the application for a certificate under the Act must be dismissed.
9. If I am wrong about whether it was reasonable to institute the proceedings, I would have exercised my discretion under s 2 of the Act to refuse to grant the certificate. Because the applicant admitted to the use of violent force which, in my view, very likely caused the death of another person, and the legality of that action necessarily involved matters of judgment of credibility, demeanour and an evaluation of the reasonableness of the applicant's conduct, I do not think it is appropriate for the applicant to receive the costs of the proceedings.
10. In summary, this was a matter that was reasonably brought for determination in accordance with the law by a jury of the applicant's peers.

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: 18 August 2022