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[2026] NSWCCA 156
General information, not legal advice.
Court of Criminal Appeal (NSW)
2026-10-12
Payne JA at [1] McNaughton J at [194] Muston J at [195]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Vujica v R [2026] NSWCCA 156
Hearing dates: 26 June 2026
Date of orders: 12 October 2026
Decision date: 12 October 2026
Before: Payne JA at [1]
McNaughton J at [194]
Muston J at [195]
Decision: (1) Time to file the notice of appeal extended to 22 April 2026.
(2) Leave to appeal against conviction granted.
(3) Appeal dismissed.
Catchwords: CRIME — appeals — appeal against conviction — judge alone trial — where applicant convicted of murder — whether unreasonable verdict by reason of trial judge’s rejection of applicant’s claim of self-defence — whether trial judge’s reasons as to “first limb” of self-defence were inadequate and failed to comply with s 133(2) Criminal Procedure Act 1986 (NSW) — whether to extend time within which to file amended notice of appeal
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 418
Criminal Appeal Act 1912 (NSW), ss 5, 10
Criminal Procedure Act 1986 (NSW), s 133
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Gall v R; Gall v R [2015] NSWCCA 69
M v The Queen (1994) 181 CLR 487
Macdonald v R; Obeid v R; Obeid v R [2023] NSWCCA 250; 412 ALR 167
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Danny Vujica [2023] NSWSC 1241
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v Vujica [2023] NSWSC 1532
RJ v R [2025] NSWCCA 68
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Slattery v R [2023] NSWCCA 117; 308 A Crim R 196
Spiteri-Ahern v R [2022] NSWCCA 56
Category: Principal judgment
Parties: Danny Vujica (Applicant)
Rex (Respondent)
Representation: Counsel:
G Bashir SC with W De Mars (Applicant)
B Hatfield SC with C Tran (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00012694
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 20 October 2023, following a judge alone trial, the applicant, Danny Vujica, was found guilty of the murder of Michael Haynes, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
The applicant encountered Mr Haynes in the early morning of 15 January 2022 walking in Emerton. They had not met before. Mr Haynes assisted the applicant’s attempt to obtain some cannabis. A man on a motorbike arrived who appeared to be known to Mr Haynes. The man took $50 from the applicant but rode off on his motorbike without giving the applicant any cannabis. Following this interaction the applicant (on his bicycle) followed Mr Haynes as Mr Haynes walked home. The applicant repeatedly sought to recover his $50 from Mr Haynes. Eventually, a physical confrontation ensued. Mr Haynes had a brick in his hand. The applicant fatally stabbed Mr Haynes in the neck with a small knife.
The trial judge found that the applicant intentionally stabbed Mr Haynes and that he intended in stabbing him to inflict grievous bodily harm. The applicant was angry about having lost his $50 and held Mr Haynes responsible. The trial judge found that the Crown had proven beyond reasonable doubt that the applicant did not believe stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes wielding the brick.
On 15 April 2026, a notice of appeal was filed, approximately 16 months out of time. The applicant appealed his conviction on two grounds:
The verdict of guilty of murder is unreasonable.
There was material error in the law by virtue of inadequacy of exposure of the reasoning process linking the principles of law to the facts and justifying them, as to the first limb of self-defence.
The ground of unreasonable verdict was confined to the trial judge’s rejection of the “first limb” of self-defence (that is, pursuant to s 418(2)(a) of the Crimes Act 1900 (NSW), that the applicant believed the conduct was necessary to defend himself).
The Court held (Payne JA, McNaughton and Muston JJ agreeing), granting leave to appeal against conviction, and dismissing the appeal against conviction:
As to ground 1:
(1) On a review of the whole of the evidence in this case, including the CCTV footage available at trial which the parties invited the Court to view, the Crown’s circumstantial case was established beyond reasonable doubt. The facts and circumstances established by the evidence did not allow for any reasonable explanation other than that the applicant did not believe that it was necessary that he stab the deceased to defend himself: at [140], [166]. Specifically:
(a) The applicant was angry at the loss of his money and he directed that anger at Mr Haynes, who had been involved in the failed transaction with the man on the motorbike: at [141]-[146].
(b) The deceased had not previously acted in an aggressive manner towards the applicant during their earlier interactions at or near the McDonald’s: at [149].
(c) The deceased’s conduct should be understood as being more defensive than aggressive or offensive in the circumstances: at [150].
(d) There was no “lack of realistic opportunity to withdraw once the deceased was approaching in close proximity to the applicant”: at [151].
(e) The applicant engaged in post-offence conduct which sought to conceal his involvement in the incident; inconsistent with any genuine belief that he stabbed the deceased believing it necessary to do so to protect himself: at [152].
(f) Swinging a knife upwards and towards the deceased’s head was excessive compared to the risk presented by the deceased given he had not been physically aggressive to the applicant before: at [153].
(g) It was the applicant who was the aggressor in his interactions with the deceased: at [154].
Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293, applied.
(h) The applicant’s submission that evidence from a passerby, Ms Jolly, should not be relied on to assist in support of a conclusion beyond reasonable doubt that the applicant did not believe that his action was necessary to defend himself, was rejected: at [155].
(i) It was not inconsistent with the findings that the applicant moved towards the deceased immediately before he stabbed him, that a witness, Mr Gregory, also said that the applicant told the deceased prior to that time, “Don’t come any closer”: at [156]-[157].
(j) Having viewed the relevant CCTV footage, the applicant was not at all scared of the deceased at that point. When viewed in context, the short passage of time serves to reinforce that the anger the applicant felt for the lost $50 remained with him throughout these interactions with the deceased: at [160].
(k) The applicant’s post-offence conduct was not “equally consistent” with believing that he had to stab the deceased to protect himself: at [161]-[163].
Gall v R; Gall v R [2015] NSWCCA 69; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied.
(l) The submission that the deceased told Mr Gregory to get back in the car so that he could isolate the applicant, or that the applicant may have perceived that to be the deceased’s intention, was entirely speculative: at [165].
As to ground 2:
(2) The applicant’s case on the first limb of self-defence advanced on appeal was barely touched upon by counsel for the applicant before the trial judge. The trial judge’s reasons must be read in light of the issues identified and submissions made by the parties at the trial. Read in that light, the reasons given by her Honour were completely adequate to the task: at [181]-[182].
Spiteri-Ahern v R [2022] NSWCCA 56; RJ v R [2025] NSWCCA 68, applied.
(3) Read fairly and as a whole, there was no inadequacy in the trial judge’s reasons about self-defence: at [180], [183].
(a) The trial judge was clearly aware that the deceased approached the applicant carrying a brick: at [184].
(b) The trial judge made findings of fact about the events that occurred and explained the reasons for those findings: at [185]-[187].
(c) The trial judge made numerous findings about the applicant’s state of mind towards the deceased, and in particular that the applicant was angry at him and held him responsible for the applicant losing $50: at [188].
(d) The trial judge’s reasons clearly revealed her Honour’s reasoning process for concluding that the prosecution had proved beyond reasonable doubt that the applicant did not believe that it was necessary to stab the deceased to defend himself. The applicant’s predominant mindset was anger towards the deceased. The applicant’s post-offence conduct was not consistent with believing that he was simply “involved in a fight”, or that the deceased was actually physically threatening him: at [189].
(e) The trial judge was not introducing a non-exhaustive list when describing the circumstances as the applicant perceived them; but was explaining that she was satisfied that the perceived circumstances encompassed those identified by the applicant, but that the Crown had nevertheless proved beyond reasonable doubt that the applicant did not believe that stabbing Mr Haynes in the neck was necessary to defend himself: at [190]-[191].
PAYNE JA: The applicant, Danny Vujica, stood trial in the Supreme Court of New South Wales before Sweeney J (“trial judge”) sitting as a judge alone between 12 and 26 September 2023, and 9 and 11 October 2023. The indictment alleged that, on 15 January 2022, the applicant murdered Michael Haynes, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
On 20 October 2023, the trial judge found the applicant guilty. The reasons of the trial judge were provided to the parties but not published on Caselaw: R v Danny Vujica [2023] NSWSC 1241 (“verdict judgment”).
On 6 December 2023, the applicant was sentenced to a non-parole period of 14 years’ imprisonment to date from 15 January 2022 with an additional term of 5 years’ imprisonment. The non-parole period expires on 14 January 2036. Reasons for sentence were published on 6 December 2023: R v Vujica [2023] NSWSC 1532.
On 15 December 2023, a notice of intention to appeal was filed. A notice of appeal was not filed, however, until 15 April 2026, approximately 16 months out of time.
At hearing, an affidavit of William Siganto affirmed 13 May 2026 was read without objection on the question of extension of time. The Court reserved its decision on that question. In that affidavit, Mr Siganto set out a timeline concerning the grant of Legal Aid to the applicant and the process of obtaining materials on the file, in order to explain the delay in the filing of the applicant’s notice of appeal. The essence of that explanation was that:
On 18 December 2023, a notice of intention to appeal to this Court was filed;
On 29 May 2024, Legal Aid New South Wales (“Legal Aid”) received a Legal Aid Application in relation to the applicant’s proposed appeal;
On 18 December 2024, the applicant’s notice of intention to appeal expired;
On 25 February 2025, the balance of the trial and sentence transcripts and exhibits were provided to Legal Aid;
On 29 May 2025, junior counsel agreed to take the brief and conduct the merit assessment into the applicant’s appeal prospects;
On 1 August 2025, junior counsel contacted Legal Aid to advise that a number of electronic trial exhibits were missing from the brief;
On 2 September 2025, those exhibits were received by Legal Aid;
On 30 October 2025, junior counsel requested that Legal Aid apply for funding for Senior Counsel to be briefed on the merit assessment;
On 10 November 2025, Mr Siganto received confirmation that the Legal Aid Criminal Law Directorate had approved funding for Senior Counsel, who was formally briefed;
On 6 March 2026, Legal Aid was provided by counsel with a written memorandum of advice finding merit in an appeal; and
On 10 April 2026, counsel provided Legal Aid with written submissions on behalf of the applicant to be filed alongside the notice of appeal.
On 22 April 2026, an amended notice of appeal was filed containing the following two grounds:
“1. The verdict of guilty of murder is unreasonable.
- There was material error in the law by virtue of inadequacy of exposure of the reasoning process linking the principles of law to the facts and justifying them, as to the first limb of self-defence.”
The trial judge set out the background to the incident the subject of the charge, which was not in dispute at trial.
Early in the morning of Saturday, 15 January 2022 the deceased, Michael Haynes, was returning from being at a friend’s place to the home of his former partner and his children in Popondetta Road, Blackett. He and his friend walked for a while towards Emerton. The deceased and the friend parted ways and the friend was later picked up and driven home. The deceased continued to walk along Popondetta Road.
At that time, the applicant, having not slept well, had left his mother’s home at Oakhurst to try to obtain some cannabis to help him sleep, relax and to prevent traumatic dreams and memories. He had tried, unsuccessfully, to obtain some cannabis from a friend.
A little before 5:30am, Mr Haynes and the applicant encountered each other at the 7-Eleven service station on Popondetta Road at Emerton. They had not met before. The applicant bought some cigarettes and pumped up the tyres on the pushbike he was riding. Mr Haynes asked the applicant for a cigarette, which the applicant gave him. The applicant told Mr Haynes he was trying to obtain some cannabis. Mr Haynes said he may be able to help with that. Mr Haynes made some phone calls and sent some text messages.
When Mr Haynes told the applicant that someone was coming with cannabis, they both walked a short distance to a KFC outlet on Jersey Road, around the corner from Popondetta Road. At 5:24am, they arrived at the KFC carpark.
Exhibit A at the trial identifies the places where the relevant events occurred:
A short while later, a person arrived on a motorbike. The three people are difficult to discern on the available closed-circuit television (“CCTV”) footage, in part because it was still dark at that time and in part because at one point they are mostly out of view of the camera.
The applicant said the man who arrived on the motorbike appeared to be known to Mr Haynes. The applicant gave the man on the motorbike $50. He said the man did not give him cannabis, but gave him rolled up lawn clippings, which the applicant said he “flicked back” at the man, said he did not want, and asked for his money back. The applicant said (though it was noted by the trial judge that the Crown did not accept this) that the man on the motorbike then pulled out a knuckleduster from which he flicked out a blade and said to the applicant, “fuck off or I’ll take everything you’ve got”. The applicant said he took a step back.
The applicant said the man on the motorbike put his $50 away, did not give him any cannabis, and rode off on his motorbike.
At about 5:26am, Mr Haynes left the KFC and walked to the McDonald’s next to the KFC, followed by the applicant. The applicant said that on that walk he complained to Mr Haynes that he had been robbed by the other man. He said Mr Haynes said, “What do you want me to do about it?”. The trial judge found that “[h]aving watched the [CCTV footage around this time] I am of the view that the [applicant’s] behaviour and manner when he is talking to Mr Haynes outside McDonald’s is not consistent with him being shocked or having just been confronted by knuckledusters and a knife. He does not appear agitated. He appears calm”: at [30].
At 5:30am, Mr Haynes and the applicant entered the front carpark of the McDonald’s. Mr Haynes is then seen on the CCTV footage to go into the McDonald’s store, and in the store he ordered some food. The applicant remained on Jersey Road outside the McDonald’s.
At 5:32am, the applicant sent a Facebook Messenger message to his friend, Mr Bryce Gregory: “Bro i just got a nife pulled onne”. The applicant tried to call Mr Gregory twice, but neither call was answered.
At 5:35am, the applicant went into the McDonald’s and spoke with Mr Haynes. The conversation was visible on the CCTV footage, though without sound. The trial judge found:
“[35] Having watched the CCTV footage I do not consider Mr Haynes’s manner or body language was aggressive in that encounter with the [applicant]. He at times appeared animated and agitated, but not aggressive. He did not stand close to the [applicant] in an aggressive or confrontational way, he appeared to show the [applicant] his phone calmly. Both the [applicant] and Mr Haynes waved their arms sometimes. At the end of the conversation Mr Haynes walked away and collected his food. He did not walk in an aggressive way.”
When Mr Haynes went to collect his food, at 5:40am, the applicant again called Mr Gregory. Mr Gregory was driving nearby, dropping Ms Marlissa Thaidy home. Mr Gregory answered. The phone conversation lasted for 12 to 13 minutes, from where Mr Gregory was driving until he reached the roundabout at Jersey Road and Popondetta Road, when he hung up the phone, shortly before he pulled up in Popondetta Road near where the applicant was. The applicant, Mr Gregory and Ms Thaidy each gave evidence about that phone conversation.
The CCTV footage shows Mr Haynes leaving the McDonald’s store, walking across Jersey Road and walking north along Popondetta Road. The applicant, who was standing in the McDonald’s car park talking on his phone when Mr Haynes walked past him, exited the McDonald’s car park, turned his bike around and walked with his bike in the same direction as Mr Haynes. The trial judge found that the applicant deliberately followed Mr Haynes and that he did so for the reason that he was intent on recovering his $50 from Mr Haynes.
The CCTV footage does not cover the entirety of the journeys taken by Mr Haynes and the applicant along Popondetta Road. The applicant said that a little way along Popondetta Road, between the roundabout at Jersey Road and 183 Popondetta Road, Mr Haynes turned around and said “10 seconds worth of blabber” to him. It included, “Fuck off”, “I’m not helping you”, and calling him obscenities. The applicant said this conversation preceded a conversation which was audio recorded by a CCTV system at 183 Popondetta Road. That recorded conversation, set out at [17] of the Agreed Facts (“AF”), provided:
“Deceased: ‘Cock sucking motherfucker. Come here you little cunt.’
Deceased: ‘Oi cunt. What’s your name?’
Applicant: *Indecipherable*
Deceased: ‘What’s your name brah?’
Applicant: ‘Michael.’
Deceased: ‘Your name’s Michael?’
Applicant: ‘Yeah. What do you want?’
Deceased: ‘I might jump on my phone *Indecipherable*…I’ll fly a car load of black fellas here in a minute you motherfucker.’
Applicant: ‘Why would you want to do that?’
Deceased: ‘Cunt, I’m telling you now, I’m going to my kid’s house. You smart arse little motherfucker. Fuck off away from me.’
Applicant: ‘I’ve done nothing wrong.’
Deceased: ‘Cunt. Get the fuck away from me.’
Applicant: ‘Have I done anything wrong?’
Deceased: ‘Cunt.’
Applicant: ‘Have I done anything wrong?’
Deceased: ‘Cunt.’
Applicant: ‘Have I done anything wrong?’
Deceased: ‘Fuck off away from me you scattered little dog. I’ll jump on your fucking head.’
Deceased: ‘Come here cunt. Come here you cheeky little motherfucker.’
Deceased: ‘Fucking play kids games with you, you gronk.’”
The applicant said he rode past Mr Haynes on the right side of the road while Mr Haynes was on the left side of the road. The applicant said at this point Mr Gregory had told him on the phone he was nearby and had thereafter hung up. Shortly after that, the applicant saw the headlights of Mr Gregory’s car. At about 5:53am, Mr Gregory with Ms Thaidy as a passenger pulled up in his vehicle on Popondetta Road near Franklin Crescent.
The deceased was not initially present at the car when it arrived. He approached afterwards holding a brick and yelling at Mr Gregory to get back in his car. He was then in close proximity to the applicant.
Shortly after Mr Gregory arrived, the applicant inflicted a stab wound to the left side of the deceased’s neck. The applicant “sort of leapt up and come down” and hit the deceased with his hand up at about shoulder level, with his elbow bent and his hand moving in a downward direction. It was a swing upwards towards the deceased’s head.
The trial judge found that the applicant intentionally stabbed the deceased and that he intended in stabbing him to inflict grievous bodily harm by swinging up towards his head with the knife in his hand. The trial judge found he was angry about having lost his $50 and held the deceased responsible.
After the wound was inflicted and while the deceased was lying on the ground, the applicant said he wanted his money back.
A number of civilian witnesses came to assist the injured deceased and called 000. The deceased was pronounced dead on arrival at Westmead Hospital. An autopsy determined that he had died as a result of a sharp force trauma (a stab wound) to the left side of his neck and the consequences thereafter. The path of the wound had proceeded medially and upwards, had perforated the skin and subcutaneous tissues of the neck, incised the left vertebral artery and entered into the foramen magnum (being the opening in the bottom of the skull).
The knife that inflicted the wound was attached to a lanyard, a photograph of which was contained in Exhibit D.
The trial judge, after surveying all of the evidence, concluded:
“[218] The Crown has proved beyond reasonable doubt that the [applicant] did not believe stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes wielding a brick. His conduct and statements, including his persistent pursuit of his $50 from Mr Haynes beforehand and his still demanding his money back after he had stabbed Mr Haynes, satisfies me beyond reasonable doubt he stabbed Mr Haynes in anger and not because he believed it was necessary to do so to defend himself from Mr Haynes in the circumstances. I am satisfied the circumstances as the [applicant] perceived them, even in his sleep deprived state, included Mr Haynes wielding a brick, Mr Haynes having told him repeatedly to leave, Mr Haynes having told Bryce Gregory to leave and most significantly his grievance towards Mr Haynes for his $50 having been taken.”
After the incident, the applicant was driven by Mr Gregory to Mr Gregory’s unit in Kingswood. The applicant’s mother picked him up from the unit and took the applicant home.
The Crown relied on, inter alia, the applicant’s post-offence conduct as circumstantial evidence negativing the first limb of self-defence. This was the subject of a ruling on admissibility, and it was admitted. That conduct was:
The applicant had left the scene quickly with the deceased still lying in the middle of the road, encouraging Mr Gregory to drive away fast;
The applicant had burned his clothes at Mr Gregory’s place;
The applicant had left his bike at Mr Gregory’s place;
The applicant left his mother’s home in the evening in a car with his brother, intending to go to Queensland;
The applicant lied to the police when he was arrested about where he had been all day; and
The applicant must, the Crown submitted, have cleaned his knife to remove Mr Haynes’ blood from it.
The trial judge found that the applicant’s conduct in fleeing the scene, going to Mr Gregory’s home and burning his clothes and disposing of his bike, and being in a “frantic and stressed mood”, illustrated his state of mind at the time he stabbed Mr Haynes. Her Honour found that behaviour consistent with the applicant having intentionally stabbed Mr Haynes, having intentionally caused him grievous bodily harm and not believing that stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes.
The ground of unreasonable verdict was confined to the trial judge’s rejection of the “first limb” of self-defence (that is, pursuant to s 418(2)(a) of the Crimes Act 1900, that the applicant believed the conduct was necessary to defend himself). The applicant no longer takes issue with the trial judge’s finding that he had the requisite intent to inflict a really serious injury on the deceased. It was argued that it was, however, not open, on the evidence, for the trial judge to exclude the reasonable possibility that the applicant believed that he needed to stab the deceased in order to defend himself.
Two critical impugned sections of the verdict judgment were:
“[207] A fact about which the evidence is in dispute is whether the [applicant] stepped back when he swung his arm at Mr Haynes, as Bryce Gregory said occurred, or did he jump forward, as Ms Jolly said. The [applicant’s] evidence about the incident I regarded as implausible. I did not believe it, and I put it aside.
…
[213] The [applicant’s] evidence that ‘I might have had my keys and my possessions in my hand’ was significant, because in my view it was an attempt to avoid acknowledging fully what he had done. What he never acknowledged was that in having his keys in his hand he also had in his hand the knife which was on his lanyard with his keys. I do not accept the [applicant’s] evidence that he just happened to have his keys in his hand at that time because he had taken them out of his bag in order to put his phone in his bag.”
The applicant submitted the following as “key parts of the evidence” must be taken into account in considering this submission:
The CCTV evidence from locations in the suburbs of Emerton and Blackett covering portions of the period between 5:03 and 5:55am, showing both the applicant and the deceased. I have set out the trial judge’s findings about that CCTV footage at [14] to [24] above. The applicant submitted that the last four minutes of that CCTV footage was of particular significance. The recorded conversation between the applicant and the deceased set out at [23] above commenced a minute prior to the fatal incident, which took place off camera further north along Popondetta Road, on the road outside house number 191. The applicant complained that the trial judge made no reference to some parts of the recording, which was “indisputable in its content”, in the factual findings in her judgment and consideration of self-defence. Her Honour referred to the deceased “uttering some threats” that were not carried out, finding that he was not trying to fight the applicant, and that he was telling the applicant to leave him alone: at [199]. The applicant submitted that this Court would rely on the Agreed Facts and CCTV footage, as to which there is no trial advantage.
The applicant submitted that the following conclusions should be drawn:
(a) While the aggression displayed in the CCTV footage by the deceased may well have arisen from a sense that he was being “pestered” by the applicant apparently following him or “hanging around”, it is evident that he had become angry, was using threatening language, and in that frame of mind challenged the applicant by telling him to “come here” on two occasions, in abusive terms, and threatened violence using the words, “I’ll jump on your fucking head”; (b) The timeline that can be derived from the recording demonstrates that the deceased was approaching the applicant in close proximity, with a brick in his hand, within approximately one minute after the end of the exchange which included the threats set out at [23] above, noting also that indistinct shouting can be heard to continue after that point; (c) The CCTV footage also demonstrates that Mr Gregory passed by the CCTV camera at number 183 Popondetta Road only 30 seconds prior to the arrival of the witness Ms Teena Jolly at the relevant intersection (within ten seconds of which Ms Jolly observed the stabbing to take place). From that point, Mr Gregory proceeded further north before stopping after Franklin Ave. The time between Mr Gregory’s stopping his utility vehicle (“ute”) further down the road, alighting from the car and making initial contact with the applicant (who was riding to the vehicle on his bike) and the arrival of the deceased on the scene and presentation of the brick, in close proximity, can only have been extremely brief, perhaps in the order of 5 to 15 seconds. The brevity of that timeframe, bearing in mind also that any departure with Mr Gregory would also have involved the need to consider loading the bike into the covered tray area of the ute, was relevant to any findings that placed significance on the fact that the applicant did not immediately depart with Mr Gregory in his ute. (d) Accepting that the applicant did not change direction after the exchange set out at [23] above (as observed by the trial judge at [199]), its proximity in time to Mr Gregory’s arrival and the fact that events unfolded within a matter of seconds thereafter, and involved the deceased arming himself with a brick, telling Mr Gregory to get back in his car, and moving towards the applicant at close proximity, is consistent with the reasonable possibility of a genuine belief by the applicant that the deceased would use the brick with which he had armed himself. The proximity in time of that exchange to the unfolding events is also consistent with the applicant not having time or capacity to calmly reflect on other options, including considering the option of trying to make his way into the car.
As to the other evidence of the stabbing incident, the applicant submitted:
No issue was taken with the trial judge not accepting the applicant’s evidence regarding the nature of the swing that he took at the deceased, that she did not believe it and she thereby “put it aside”. As I have said, however, the applicant challenged the finding to the extent that it related to the applicant’s formation of a belief that it was necessary to swing at him, and from which there may be inferred relevant beliefs about the brick.
The applicant acknowledged that the trial judge considered the evidence of Ms Thaidy, Ms Jolly and Mr Gregory, in the context of the evidence as a whole, sufficient to infer that the applicant had “deliberately and intentionally swung his hand in the direction of Mr Haynes’s head” (at [212]) and to thereby support her conclusion that the applicant had “intentionally stabbed Mr Haynes and he intended in stabbing him to inflict grievous bodily harm by swinging up towards Mr Haynes’s head with the knife” (at [214]). It was submitted, however, that the utility of the evidence of Ms Jolly and Ms Thaidy to the further question of the applicant’s belief in the need to defend himself “is at best very limited or must be considered in context”.
The applicant acknowledged the favourable findings of the trial judge about Ms Thaidy’s evidence but submitted that:
(a) A significant inconsistency between Ms Thaidy’s account and others concerned the timing of the placement of the applicant’s bike in Mr Gregory’s vehicle. On Ms Thaidy’s account, Bryce Gregory put the applicant’s bike in the back of his ute and “covered it down” prior to the interaction between the applicant and the deceased. By the time this had occurred, the deceased was “face to face” with the applicant. Her Honour found that Ms Thaidy was mistaken in this respect. (b) Ms Thaidy said that after the applicant swung at the deceased “to the face”, the deceased then “staggered back – and then got back up” before then falling back. No other witness suggested that the deceased had fallen, “got back up” and then fallen again. This was clearly wrong and was not relied on by the trial judge for her findings. (c) The applicant also pointed to the trial judge’s reliance on Ms Thaidy’s evidence that when demanding his $50 from the deceased, the applicant did so in an “angry” voice and that this included after the deceased had been stabbed and was on the ground. Her Honour relied on the finding that the applicant was angry at the deceased for her conclusion that the applicant had the intention to inflict serious harm upon the deceased. (d) The applicant submitted that there is good reason to be circumspect about Ms Thaidy’s evidence concerning the nature of any remarks made about the $50 afterwards and the applicant’s tone of voice. It was submitted that Ms Thaidy’s only reference to the applicant having an “angry voice” (as described by the trial judge at [214]) when asking for his money was in response to a question from the prosecutor directing her attention to saying in evidence that the applicant “on more than one occasion” (ie not specifically after the stabbing) said that he wanted his $50 and being asked about his tone of voice “when he said that” and her then responding, “Angry. Deep”. (e) It was submitted that none of Ms Thaidy’s evidence, taken together with the remaining evidence in the case, is inconsistent with the first limb of self-defence. Even if the applicant and the deceased were fighting over money, this does not exclude a relevant belief as to necessity in the face of confrontation with a brick during the exchange.
(a) Ms Jolly initially misdescribed by some minutes the opportunity she had to view relevant events. Ms Jolly’s capacity to have seen the events in the distance to her right was limited to a matter of seconds (that is, no more than 10 seconds); (b) The trial judge did not accept Ms Jolly’s evidence that Mr Haynes was not moving at around the time he was struck; (c) Ms Jolly’s description of the applicant “leaping up” and “coming down” on the deceased was not a neat match with the other two descriptions the trial judge referred to at [212], and was in contrast with the ultimate findings as to the act causing death at [214]; and (d) there was a lack of specificity as to relevant distances and angles of sight that were involved, there being no diagram produced in evidence that assisted in relation to scale and distances involved. In evidence, the police investigating officer agreed that there was a lack of precision and the distance between number 183 and 191 Popondetta Road may have been 60 to 70 metres as suggested by defence counsel, or 50 to 60 metres.
As to Mr Gregory’s evidence, the applicant acknowledged the findings of the trial judge earlier described about the extent to which he tailored his evidence in cross-examination.
The applicant pointed out that the trial judge accepted Mr Gregory’s evidence as to the deceased approaching with a brick, yelling at Mr Gregory to get back in his car, the deceased moving the brick, and the deceased approaching the applicant with a brick in his hand. In her factual findings, her Honour did not refer to Mr Gregory’s evidence of the applicant saying, “Don’t come any closer”. It was submitted to be significant that the trial judge did not reject that evidence. Her Honour ultimately also accepted that the swing was upwards.
It was submitted to be “very important” that the applicant had his bike with him, and that there was a closed tray on the back of Mr Gregory’s ute. It was submitted that the applicant was in a position at the front of the vehicle where he could not have put his bike in the car “in the time that the deceased is coming at him with the brick”.
It was submitted that the evidence of Mr Gregory of the actions of the deceased and the applicant’s account was consistent, along with the other evidence in the prosecution case, with the applicant acting in self-defence when the deceased moved towards him with the brick.
Senior Counsel for the applicant submitted, orally, that it should be concluded that the deceased was acting aggressively:
“It is our submission that this is aggression including the physical walking towards our client with threats by the deceased, and we do challenge her [Honour’s] factual findings which distilled down, basically he was telling him to go away. There’s a lot more going on in that including threats and aggression from the deceased and physical aggression, and we’re looking at this from the perspective of what is the reasonably possibly subjective belief of our client when the deceased later has the brick and is coming at him.”
“In relation to telling the applicant to leave, no explicit reference was made at this time by her Honour to the effect that the deceased’s threatening comments made a minute or so earlier, as recorded in the Agreed Facts and CCTV footage, and the deceased’s alternating between telling the applicant to go away and to telling him in effect to ‘come here’, may also have had in connection with the applicant’s interpretation of the action of the deceased in approaching him with the brick.”
It was also submitted on behalf of the applicant that the deceased’s words during the altercation, of, “[g]et the fuck back in your car”, were directed at Mr Gregory, not the applicant. It was submitted that this was important to the applicant’s perception, and that it was a reasonable possibility that the applicant could have thought the deceased “wanted to get the applicant on his own”.
It was submitted that the post-offence conduct was used to draw an improper conclusion about the motives of the applicant. It was argued that absconding and burning his clothes could be equally attributable to a person who stabbed someone in self-defence yet knows they may be in serious trouble as a result. It was argued that the post-offence conduct was consistent with the first limb of the test for the defence of self-defence.
It was submitted by the applicant that it was not open to the trial judge to exclude the possibility of self-defence because of:
“a) The proximity in time to the stabbing of the incontrovertible evidence in Exhibit C and the Agreed Facts as to the deceased’s conduct as recorded on the CCTV outside no. 183 Popondetta Road;
b) The evidence of Ms Thaidy and Mr Gregory … concerning events at the relevant time at scene;
c) The subjective circumstances of the applicant, including lack of sleep, being troubled by traumatic memories in the night early hours before, and importantly the undisputed fact that the deceased was approaching him wielding a brick at shoulder height/his head while telling Gregory to get back in the car;
d) The lack of realistic opportunity to withdraw once the deceased was approaching in close proximity to the applicant, while holding a brick in a threatening fashion, at a time where, as the trial judge accepted, ‘calm reflection’ was not available; and
e) The post-offence conduct in combination with other evidence not negating the reasonable possibility as to such a belief, that evidence being consistent with the act of stabbing while holding such a belief.”
The Crown submitted that the grounds of appeal relied on do not involve a question of law alone and leave is accordingly required: s 5(1) of the Criminal Appeal Act 1912 (NSW). The Crown noted that the applicant also requires an extension of time pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). As I have found at [7] above, leave to file an amended notice of appeal should be extended to 22 April 2026.
The Crown submitted that it is necessary to view all of the evidence (principally Exhibit C, comprising Agreed Facts at trial) to enable sufficient context for the events overall, and specifically, it was noted that observing a compilation of relevant CCTV footage (Exhibit E) would be necessary on this appeal. The Crown noted the chronology of the events leading up to the stabbing, highlighting that the applicant pursued the deceased for a long time after the deceased put the applicant in touch with a third party who ultimately stole $50 rather than selling him drugs, and that the evidence showed the applicant was angry during this pursuit.
The Crown submitted that the trial judge found that the prosecution had excluded the reasonable possibility that the applicant believed he needed to stab the deceased to defend himself. This ground alleged that that conclusion was not open. In considering whether the only rational inference available on the evidence is the guilt of the applicant, the Crown noted the evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
The Crown noted at the outset that, on the applicant’s version of the incident in evidence, he swung a punch but did not intend to strike the deceased at all. That being the case, the first limb of self-defence was argued not to have squarely arisen. The Crown submitted that the evidence against the applicant on the defence of self-defence amounted to an overwhelming circumstantial case.
The Crown argued that the facts and circumstances that were established by the evidence did not allow for any reasonable explanation other than that the applicant did not believe that he needed to stab the deceased to defend himself. This was so because, it was submitted:
The trial judge made findings about the applicant’s state of mind to the effect that he was angry at the deceased over his loss of $50 and the perceived role of the deceased in that loss. That is not challenged on appeal. The trial judge found that the applicant continued to follow the deceased along Popondetta Road because he was angry about losing the money, could not contact the man on the motorbike, and held the deceased partially responsible. Her Honour found that “[the applicant’s] intention towards Mr Haynes at that point was not benign”: at [198].
The trial judge found that the applicant’s anger at the deceased about the $50 continued even after the deceased was on the ground after he had been stabbed. At that time, the applicant still said he wanted his $50 in an angry tone. It was noted, however, that the applicant challenged this on appeal.
The deceased had not previously acted in an aggressive manner towards the applicant during their earlier interactions at or near the McDonald’s.
When the deceased approached the applicant holding a brick, this was in a context where the deceased had repeatedly asked the applicant to leave him alone and where the deceased was now confronted by more than one man (Mr Gregory having arrived on the scene). That conduct by the deceased was more defensive than aggressive or offensive in the circumstances.
The applicant had the means of escape, including by simply entering Mr Gregory’s vehicle.
The applicant engaged in post-offence conduct that sought to conceal his involvement in the incident and was inconsistent with a genuine belief that he stabbed the deceased believing it necessary to do so to protect himself.
Swinging a knife upwards and towards the deceased’s head was excessive compared to the risk presented by the deceased, in circumstances where the deceased had not been physically aggressive to the applicant before, where the applicant could have distanced himself from the deceased as the latter approached him, and there was at least one other person (Mr Gregory) who could assist the applicant. That the conduct was excessive is circumstantial evidence that he did not believe that stabbing the deceased was necessary to protect himself.
The Crown argued that it was the applicant who was the aggressor in the interaction. The Crown argued the applicant wanted to have a confrontation with the deceased about the $50 and pursued it. It was noted as relevant that in Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at [19(4)], Hodgson JA (Handley and Ipp JJA agreeing) said that “[a] finding that an accused ‘wanted to fight’ does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence”.
The Crown joined issue with each of the specific submissions made by the applicant under ground 1. It is convenient to later address them when considering these submissions.
The Crown’s ultimate submission at the hearing of the appeal was:
“…, her Honour was quite entitled and this case was really argued on drawing the inference about his state of mind based on what occurred before and what occurred after. And it was well open to do that. The intent and anger about the $50, we say, is very well supported by the evidence taken as a whole. And my learned friend really hasn’t said anything in the written submissions that would cause the Court to have any doubt about that looking at it for itself. We say, the Court would find that that was the overwhelming intent, the accused was angry about it.
He was persistently stalking Mr Haynes in relation to it. That clearly provoked the defensive/aggressive conduct from the deceased. And your Honours would also accept that evidence of Ms [Thaidy] is that that aggressive conduct continued even after the assault had concluded. And that’s really a very important context to this. In terms of what occurred at McDonald’s, we say again, my learned friend describes the deceased’s conduct as aggressive. We submit, your Honours make up your own mind from the footage.
But, we submit, there’s a lot of force in what the Crown said that it was the deceased’s response really at the time was, ‘What do you want me to do about it?’ And he’s standing up and throwing his arm open in a way to completely consistent with that. And then walks away and it’s the applicant that follows him. We’ve also made the point in our written submissions … about the excessive nature of the act, itself, also is a relevant consideration for an inference about any belief that what was done was necessary.”
“[113] The following principles may be drawn from [Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25] and [Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29] as to how an appellate court should approach an unreasonableness ground in such circumstances:
(1) The task to be performed by the appellate court is not to determine whether there was error in the trial judge’s factual findings, but rather to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty: Dansie at [7].
(2) The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury: Dansie at [15]; Filippou at [82].
(3) If the appellate court entertains a reasonable doubt that the accused was guilty, the court must conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt: Filippou at [82]; Dansie at [15].
(4) While the appellate court should approach the reasons of the trial judge with circumspection, it is entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings: Dansie at [16]; Filippou at [83].
(5) The advantage that a trial judge may have had by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and the nature of the issues that arose at the trial: Dansie at [17].
(6) Where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight: Dansie at [17].
(7) As a corollary of proposition (6), the advantage enjoyed by the trial judge will be greater where the prosecution case was supported by direct evidence of complainants whose testimony was challenged under cross-examination.”
In determining whether a verdict is unreasonable, this Court must independently assess the evidence and ask itself whether it was open for the trial judge to be satisfied of the guilt of the accused beyond reasonable doubt: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14]; M v The Queen (1994) 181 CLR 487 at 492–494.
In assessing the strength of the evidence, the Court must not assess the evidence in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] per French CJ, Kiefel, Bell, Keane and Gordon JJ; R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]. In order for an inference to be reasonable, it must rest upon something more than mere conjecture, and the “bare possibility” of innocence is not sufficient if the inference of guilt is the only inference reasonably open on the evidence: R v Baden-Clay at [47].
Where the Crown relies on circumstantial evidence, the task of this Court is to ask itself whether, considering and weighing all of the circumstances, it is independently satisfied as a result of its own assessment of the whole of the evidence adduced at trial that the only rational inference available on that evidence was the guilt of the applicant; and if not, whether the satisfaction arrived at by the trial judge could be attributed to some identified advantage which the trial judge had over the appellate court in the assessment of the evidence: Dansie v The Queen at [38].
In a circumstantial case, the determination of an unreasonable verdict ground requires more than mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt – the ultimate inference will not be available if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open on the evidence in the trial: Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; Dansie v The Queen at [12], [37].
As explained by this Court in Macdonald v R; Obeid v R; Obeid v R [2023] NSWCCA 250; 412 ALR 167:
“[378] The fact that this was a largely circumstantial case has two consequences, operating in different directions, for consideration of the unreasonable verdict grounds. First, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt) will not be a sufficient basis for setting aside a verdict unless the Court is satisfied that having regard to all of the circumstantial evidence, the doubt remains. On the other hand, rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome. Thus, the rejection of the specific challenges … will not preclude the formation of a reasonable doubt as to the verdict. Accordingly, [an unreasonable verdict ground] requires a broad review of the evidence.” (Emphasis in original.)
I adopt and will not repeat what I have set out above at [8] to [24] as the relevant background to events on the morning of Saturday, 15 January 2022.
There is some controversy about the circumstances attending the arrival of a person on a motorbike described above at [14]. As I have noted, the three people are difficult to discern on the available CCTV footage, in part because it was still dark at 5:30am and in part because at one point they are mostly out of view of the camera. On the CCTV footage, which I have viewed as I was invited by the parties to do, no action by the man who arrived on the motorbike can be seen consistent with his pulling out a knife or knuckledusters, although for part of the time he was present he was not visible on camera. At one point the applicant took two steps back. It is likely, in all the circumstances, that the applicant was confronted with a weapon by the motorcycle rider. Certainly, the applicant says a short time later that it was a knife.
The next issue in the chronology was that Mr Haynes then went to the McDonald’s next to the KFC, followed by the applicant. The applicant said that on that walk he complained to Mr Haynes that he had been robbed by the other man. He said Mr Haynes said, “[w]hat do you want me to do about it?”. The applicant said he was a little bit shocked. I have viewed the CCTV footage and carefully considered what may be gleaned. I find that in the CCTV footage the applicant does not appear agitated and appears to be calm. As I have noted, Mr Haynes is then seen on the CCTV footage to go into the McDonald’s, where he ordered some food. The applicant remained on Jersey Road outside McDonald’s.
At 5:32 am, the applicant sent a Facebook Messenger message to Mr Gregory: “Bro i just got a nife pulled onne”. The applicant tried to call Mr Gregory twice, but neither call was answered. At 5:35 am, the applicant went into the McDonald’s and spoke with Mr Haynes. The conversation was visible on the CCTV footage, though without sound. It was the applicant’s evidence that towards the end of that conversation, which lasted around four to four and a half minutes, Mr Haynes’s manner, hand gestures and body language became aggressive.
I have watched the CCTV footage, more than once. I find that Mr Haynes’s manner and body language were not aggressive in that encounter with the applicant. Mr Haynes did not stand close to the applicant in an aggressive or confrontational way, and he appeared to show the applicant his phone calmly. Both the applicant and Mr Haynes made gestures with their arms. I do not perceive the gestures made by Mr Haynes as threatening towards the applicant. At the end of the conversation, Mr Haynes calmly walked away and collected his food. I reject the applicant’s submission that Mr Haynes’s manner, hand gestures and body language became aggressive.
The applicant’s evidence was that he decided to go and talk to Mr Haynes at that point, to see if Mr Haynes would contact the man who had taken his money, with a view to him getting the money back. The applicant said he asked Mr Haynes if he knew that what had happened was going to happen, and asked him to message the man and see if he could get his money back. He said that Mr Haynes said, “What do you want me to do about it? If I message him you’re going to piss him off”. In the CCTV footage Mr Haynes is seen showing the applicant his phone. The applicant said he saw some messages between Mr Haynes and the man on the motorbike.
As I have noted above, when Mr Haynes went to collect his food, the applicant again called Mr Gregory. Mr Gregory was driving nearby, dropping Ms Thaidy home. Mr Gregory answered. The phone conversation lasted about 12 to 13 minutes, from where Mr Gregory was driving until he reached the roundabout at Jersey Road and Popondetta Road, when he hung up the phone, shortly before he pulled up in Popondetta Road near where the applicant was.
The CCTV footage shows Mr Haynes leaving the McDonald’s store, walking across Jersey Road and walking north along Popondetta Road. The applicant, who was standing in the McDonald’s car park talking on his phone when Mr Haynes walked past him, calmly and without incident, exited the McDonald’s car park, turned his bike around and walked with his bike in the same direction as Mr Haynes.
The applicant said his reason for following Mr Haynes was to go to Bougainville Road, where a friend may have been able to supply him with some cannabis, and he wanted to again ask Mr Haynes if he could help him get his money back. I reject that explanation. On all of the evidence, I find that the applicant deliberately followed Mr Haynes and that he did so because he was intent on recovering his $50 from Mr Haynes.
The CCTV footage does not cover the entirety of the journeys taken by Mr Haynes and the applicant along Popondetta Road.
The applicant said that a little way along Popondetta Road, between the roundabout at Jersey Road and 183 Popondetta Road, Mr Haynes turned around and said “10 seconds worth of blabber” to him. It included, “Fuck off”, “I’m not helping you”, and calling him obscenities. I find the applicant continued to follow Mr Haynes, because he was still intent on recovering his $50 from Mr Haynes.
There is then the conversation recorded which I have set out at [23] above. During this exchange, at times Mr Haynes’s voice was raised. I find on all the evidence, including the content of this exchange, that Mr Haynes was making it clear to the applicant that he wanted to be left alone and that he wanted the applicant to stop following him.
Following this exchange, Mr Haynes turned and began walking back along Popondetta Road. I find that applicant continued to follow Mr Haynes because he was still intent on recovering his $50 from Mr Haynes.
I will address and set out my findings about the critical issues here.
The applicant said he rode past Mr Haynes on the right side of the road while Mr Haynes was on the left side of the road. The applicant said at this point Mr Gregory had told him on the phone he was nearby and had thereafter hung up. Shortly after that, the applicant saw the headlights of Mr Gregory’s car. At about 5:53am, Mr Gregory with Ms Thaidy as a passenger pulled up in his vehicle on Popondetta Road near Franklin Crescent.
I find that Ms Thaidy’s evidence about the critical issues in this appeal was compelling. She was largely independent and not partial to any party.
Ms Thaidy was in Mr Gregory’s car when the applicant called Mr Gregory again. She gave evidence she tried to not listen to the call, but nonetheless heard some things said by the caller, whom the trial judge found was the applicant. She recalled the applicant saying “[t]his guy’s tried to rip me”, or “$50, he’s taken my $50”. He said he was at “Maccas” at Emerton. She said she heard him say “knuckle-busters” and “[h]e’s trying to get me”. He said “[h]urry up, please come”, in an angry manner.
As they reached the roundabout near the McDonald’s she heard yelling, either through the open driver’s window or through the phone call connected to the car’s Bluetooth system, or both. She said Mr Gregory pulled up pretty fast and got out of the car. She was looking down at her clothes scattered in the back seat. She saw “Bryce’s friend”, who was obviously the applicant. She said the car passed him riding his bike up the street. She said the applicant was on his bike, standing up, sort of pedalling, and riding from side to side until he came up to where the car was parked.
The applicant was still behind the car when it was parked. He came from the other side of the road, from behind the car, diagonally across, riding the bike. He began talking to Mr Gregory. He got off his bike, pushed it to the ground, and began talking to Mr Gregory at or near the driver’s door.
Ms Thaidy said:
“Q. What were you looking down at?
A. Just the floor.
Q. Did you have some clothes with you in the back of the car?
A. Yes, I had a basket, like a bucket of my clothing, my things from home.
Q. By the back of the car, is it a twin-cab ute, or a four-seater ute?
A. Yeah, it was a four-seater with a tray, so--
Q. And so the basket of clothes, when I see it in the back--
A. Yes, they ended up everywhere because of that turn.
Q. But that’s within the car [part] not in the tray of the ute?
A. No, it was in the car, yeah, [part], not the tray, sorry, no, the car.
Q. Again, that was my fault. So other than paying attention to the clothes that had spilled, what could you see outside the car?
A. I could just see Bryce’s friend riding on the pushbike.
Q. Had you ever seen that person before?
A. No.
Q. And when you say ‘riding on a pushbike’, where was he in relation to the ute when you first saw him?
A. Well we passed him, he was riding his bike up that street. So we’ve already passed him, he was on his bike, standing up, sort of pedalling, and yeah he was just riding from side to side until he then come up to where the car parked.
Q. So, did he come up to beside the car or behind the car?
A. Yeah, it was - he was pretty much still behind the car while it was parked.
Q. When you saw him there once he got closer to the car, what did he do?
A. He then began talking ‘cause Bryce was just like, ‘What’s going on?’
Q. Did he stay on the bike?
A. He got off the bike.
Q. When he got off the bike, what happened to the bike?
A. He kind of just let it go, pushed it to the ground and then started talking to Bryce. He went over to Bryce to pretty much - and then started confronting the other man.”
“Q. --what direction did this third person come from? Did he come from in front of the ute or behind the ute?
A. Behind. If I can remember, he definitely would’ve had to come out of trees or something, like on a pathway walking, that’s why I didn’t see him at first but yeah, he--
Q. Where did he come to in relation to--
A. The side of the car.
Q. The passenger side or the driver’s side?
A. The driver’s side.
Q. Firstly, where was Bryce at that stage?
A. Picking up the bike.
Q. At what part of the ute was he?
A. This - all on the, all on the side of the - so, not the passenger, all the driver’s side, on the road.
Q. Where was the guy that had been on the bike?
A. Just standing there on the road still.
Q. On the driver’s side of the road?
A. Yeah.
Q. And at the back of the ute or at the side of the ute or at the front of the ute?
A. Side, side.
Q. So, this third person that came towards the ute, did he say anything?
A. He just kept - what I can remember was he stated several times, ‘I don’t have your money, I don’t have your 50.’
Q. Did either Bryce or the guy that had been on the bike say anything back?
A. Not that I can remember.”
Ms Thaidy’s evidence was that Mr Gregory then put the bike in the back of the car, and “covered it down”. Ms Thaidy said in cross-examination, it could have been that the applicant assisted Mr Gregory to lift the bike in. I find that Ms Thaidy was mistaken about when it was that the bike was put in the back of the car, but that this did not affect the overall reliability of her evidence. On all of the evidence, and despite this mistake, I regard Ms Thaidy’s evidence as reliable about the critical matters the subject of this appeal.
Ms Thaidy observed the applicant and the deceased standing face to face on the road, on the driver’s side of the car between the driver’s seat and the back seat, maybe a couple of steps away from each other. They argued. The applicant said to the deceased, “I want my 50, I want my $50”.
Ms Thaidy did not see whether either of the men had anything in their hands at that stage. She did not hear anyone say anything about a brick. She was not looking the whole time at what was happening outside the car, but she caught a glimpse of the applicant throwing a punch to the deceased’s face. She said:
“Q. Where was Bryce when that argument was taking place?
A. He was near the front driver’s door facing them.
Q. While this argument was taking place, can you describe physically what the third man and Bryce’s friend who had been on the bike were doing?
A. Well, I wasn’t looking the whole time, but I did catch a glimpse of Bryce’s friend throwing a punch or that’s what I’ve seen. He threw a punch to the other person’s face.
Q. Were you able to tell if the punch connected?
A. Yeah.
Q. What happened to the third guy after the punch connected?
A. He, he staggered back, like - and then got back up, pretty much.
Q. Did he stay standing up?
A. Not for long.
Q. What did he do?
A. He then fell back.
Q. Did you hear him say anything after that?
A. No, all that I could hear him say was in the words of, ‘I don’t have your 50, I don’t need your 50.’
Q. After that, so after the third person had fallen onto--
A. Yeah.
Q. --the ground, what did Bryce do?
A. Got back in the car.
Q. What did the guy that had been on the bike do?
A. He started walking to the back of the ute, around, to go around as if to get in the car.
Q. Where were you?
A. I was still in the passenger seat.
Q. In the front seat?
A. Yes, in the front seat. So, as I’m looking in the mirror, I just assumed he wanted - he was jumping in the front.
Q. So, what did you do?
A. I then leaped into the back seat.
Q. What side of the car did you go to?
A. I ended up leaping into the back seat behind the driver.
Q. Where did the guy that had been on the bike go to?
A. He then opened the back seat, right-hand - left-hand door.
Q. The back passenger door?
A. The back passenger seat door, yes.
Q. When he opened the door, what did he do?
A. He just jumped in.
Q. Was there anything between you and he on the seat?
A. Yes, my bucket of clothing.
Q. Could you see then where the third person was?
A. Yes, he was still lying down.
Q. Was he still speaking at all that you heard?
A. Yes, he was speaking several times.
Q. What did you hear him say?
A. Just going off still about getting accused of the $50.
Q. If you can tell us the words that he actually used?
A. Just saying, ‘I don’t have your 50.’
Q. When the guy that had been on the bike got into the ute, did he say anything?
A. No, not, not straight away. I said a word to him. I’ve said to him, ‘Sorry, I thought you were getting in the front.’ I was trying to apologise for, you know - and then he just said to Bryce, speaking to the driver, ‘Go Bryce, go’, like the F word, ‘Let’s get out of here.’
Q. Did he say anything else to the guy that was on the road?
A. Yeah, ‘Oh I want my money back. I want my 50 back.’”
The applicant submitted that the reliability of Ms Thaidy’s evidence was affected by her observation that “he staggered back, like - and then got back up”, but “[n]ot for long”. I do not regard this discrepancy as significant in all the circumstances. Whether the deceased fell or staggered to the ground does not materially affect the reliability of Ms Thaidy’s account.
Mr Gregory got back in the car. The applicant got into the back passenger seat. The deceased was still saying, “I don’t have your $50”. The applicant, in the back seat of the car, said to the deceased “I want my money back. I want my $50 back”. The man on the ground was yelling and swearing. The applicant was also swearing. Ms Thaidy said, in answer to some questions:
“Q. I just want to go back and ask you some questions. You’ve told us about the guy that had been on the bike--
A. Yep.
Q. --on more than one occasion saying something about wanting his $50 or--
A. Yep.
Q. --still wanting his 50. What was the tone of his voice when he said that?
A. Angry. Deep.”
I accept this evidence and regard it as significant. I find the applicant was angry, and expressing his anger with the deceased, both before and after the applicant stabbed the deceased in the neck. I reject the applicant’s submission that yelling “I want my money back” at Mr Haynes after stabbing him was equally consistent with the applicant believing it was necessary to stab Mr Haynes in self-defence. The evidence is important circumstantial evidence consistent with the Crown case negativing self-defence. Although I accept that the time taken between Mr Gregory’s arrival and the fatal incident was brief I find that the applicant had ample time, had he chosen to do so, to have gotten into Mr Gregory’s car rather than confront the deceased.
I approach Mr Gregory’s evidence with caution. He was a friend of the applicant. He had to have his memory refreshed by having played to him the recording of his interview with police, in a voir dire, and by his being taken to parts of the transcript of the interview from time to time. His evidence appeared in many respects to be given in a manner designed to assist the applicant. As I will explain, I do not accept his evidence given in cross-examination about the precise details of the event in which the applicant stabbed the deceased.
Mr Gregory said on the morning of 15 January 2022 he received a call from the applicant as he was driving his ute in the Doonside-Mount Druitt area. The applicant sounded distressed or frantic in the call. He said “he’d been rolled, he needed a hand”. The applicant said he was at Emerton McDonald’s. He said somebody had pulled up and mugged him for his money while he was trying to buy marijuana; had ridden up on a motorbike and pulled knuckledusters and a blade on him. The applicant said a man he had met at the service station had set him up to lose $50. He said the applicant was telling him to hurry up. He wanted him there then. Mr Gregory was speeding as he drove. He told the applicant, “Be careful. Wait there and I’ll come and get you”. I accept this evidence. In context, I find that this evidence demonstrates that the applicant blamed the deceased for the loss of $50 and was determined to follow the deceased to seek to recover his $50.
Mr Gregory said he hung up the phone at the roundabout at Jersey Road and Popondetta Road. Along the journey, before he hung up the phone, he heard two voices bickering and fighting. One of the voices was the applicant. The other voice (which was plainly the deceased) was saying something like, “just leave me alone” and “Get the fuck away from here” and “Get the fuck away from me”. The applicant was saying repeatedly, “Where’s my money?”. I accept this evidence. I find that the deceased was attempting to have the applicant get away from him and cease following him. The applicant, repeatedly, was insisting on an answer to the question, “Where’s my money?”.
Mr Gregory heard the deceased say, “Fuck off, don’t follow me” and then he pulled up in the ute. The man said something like he was going to his kids’ house. I accept that evidence. This evidence given by Mr Gregory of the deceased’s repeated demands for the applicant to “get away from me” and the applicant’s response, whilst continuing to follow him of, “Where’s my money?”, provides important context to determine the issues at the heart of this appeal.
Mr Gregory stopped his car about 30 seconds to a minute after he hung up the phone at the roundabout. After Mr Gregory got out of his car he turned around and saw Mr Haynes, walking over with his jumper over his hands. Mr Haynes was on the other side of Franklin Crescent, closer to the Emerton shops, on the footpath of Popondetta Road, just stepping down the gutter as Mr Gregory got out of his car.
The applicant walked around the front of the ute, to the front corner of the ute on the driver’s side. Mr Gregory’s evidence was that the bike was lying in front of the car. Mr Gregory said:
“Q. You’ve stopped the ute and Danny Vujica and the bike are still in front of you. You got out straight away, did you?
A. Yeah, yep.
Q. What did Danny Vujica do?
A. He just walked around the, like, the front of the ute and that’s when old mate has come towards us.
Q. When Danny Vujica walked around the front of the ute, how far around did he come?
A. Just to the front side of the bull bar.
Q. So he didn’t get as far as the front door?
A. No.
Q. So he was near the front corner of the car was he?
A. Yeah.
Q. On the driver’s side or the passenger side?
A. Driver’s side.”
“Q. At that point where you were standing there, after you’ve got out of the car, you’re standing there with the door open, how far away from you was the deceased then?
A. Maybe a metre and a half, 2 metres, because he’s gone in front of my door as he’s come, come forward with the brick. So--
Q. At that point, did he say anything?
A. Not that I recall off the top of my head, no.
Q. You were out of the car at that stage, you’ve told us, you were standing there with the door open?
A. Yep.
Q. Did he say anything to you about what you were doing?
A. He - yeah, was telling me to get back in my car, but that was before he’s walked around, that’s when I told him to get away from my car and that’s when he’s walked around.
Q. I might have then got it out of sequence, so I’ll take you back. If you can tell us the actual words that he used when he said something to you about getting in your car, what did he say?
A. He said, ‘Get the fuck back in your car’.
Q. Where was he in relation to you when he said that?
A. He was walking up just behind my ute, just about to come around.”
Mr Gregory said Mr Haynes was holding a brick at about shoulder height, like he was going to throw it, like he was “trying to taunt, in a sense”, “trying to intimidate”; moving his hand back and forward. He was angry and aggressive. Mr Gregory said to Mr Haynes, “What are you going to do with that brick?”.
As to the critical incident, Mr Gregory said:
“Q. Where was Danny Vujica when the deceased was doing that?
A. He was in front of my car, like, in line with the bull bar at the time. When - and then once he’s come closer, that’s when they started - he started walking back and the deceased got closer, obviously.
Q. I just need to work out - when you say, ‘That’s when he got closer’, who did you mean?
A. The deceased was getting closer to Danny, walking towards him with the brick, taunting him.
Q. Now you had told us, as I understood it - and if I’ve got this wrong again, correct me - that the deceased had walked further out towards the centre of the road from where you were?
A. No, he was already out, when, when he was taunting me, he’s already walked out towards the centre of the road and then he starts to come back in towards--
Q. Back in towards where you were?
A. --towards the front of my car. No, towards there.
Q. What was the distance between the deceased and Mr Vujica at that time where the accused was telling you to get back in your car?
A. Probably about two metres, two and a half metres.”
The applicant was still standing in line with the bull bar of the car. In cross-examination Mr Gregory said the applicant was at the side of the ute, not the front, as Mr Haynes was approaching. The applicant started walking back and Mr Haynes was getting closer to the applicant, walking towards him with the brick, “taunting” him.
When Mr Haynes was telling Mr Gregory to get back in his car there was probably about two or two and a half metres between the applicant and Mr Haynes. He said Mr Haynes had the capacity to throw the brick at the applicant and at one stage was at or within an arm’s length reach from the applicant. He agreed Mr Haynes had the potential to inflict some damage with the brick.
Mr Gregory’s evidence was that when Mr Haynes moved towards the applicant, the applicant said to Mr Haynes, “Don’t come any closer” and “Step back”. Mr Gregory gave evidence that:
“Q. Can you describe the action that Mr Vujica performed when he hit the deceased?
A. He just - it was a swing, it looked like a hook and just bang.
Q. When you say it looked like a hook, you mean that his hand travelled in sort of a semicircular motion, did it?
A. Yeah.
Q. Where did his hand start from, like, adjacent to what part of his body?
A. Like midway, I don’t know midway and then swung, he, he stood back and then swung.
Q. You’re pointing to an area around about your waist, is that right?
A. Yeah, roughly, yeah.
Q. When he swung his hand, it’d stay at that height, at about waist height?
A. No, he swung it up obviously towards his, towards his head.
Q. As he was swinging, did you see whether his feet moved at all?
A. No, I didn’t see that.
Q. So they may have but you didn’t see it.
A. Yeah.
Q. From the noise that it made, were you able to form any opinion about how hard the hit was?
A. It was a hard hit, yeah.
Q. When the accused hit the deceased, what did the deceased do?
A. He’s hit the ground, dropped the brick and hit the ground.
Q. Was the accused saying anything at that point?
A. Something about, ‘Was it worth it?’ or something like that, ‘Was it really worth it?’ That’s it.”
“Q. He moved towards the deceased?
A. No, the deceased moved towards him.
Q. I’m suggesting that the accused, Mr Vujica, also moved towards the deceased before he hit him and stabbed him?
A. Yes, how do I explain that? Can you rephrase the question or, like, I don’t, I can’t.
Q. They moved towards each other; they were both moving, weren’t they?
A. Yes, yeah, in a sense.
Q. You told us yesterday that the accused said ‘Don’t come any closer.’ Do you remember saying that?
A. Yes, I do.
Q. I’d suggest to you the accused didn’t say that to the deceased, did he?
A. Yes, he did.
Q. I’d suggest that the way the accused moved towards the deceased immediately before he stabbed him, was that he jumped towards him as he was swinging his arm?
A. Yes, in a sense, yes.”
Pausing there, on the whole of the evidence I conclude that Mr Gregory’s evidence that immediately prior to the stabbing the deceased and the applicant were moving towards each other is correct. It is also significant that Mr Gregory agreed that “the way the accused moved towards the deceased immediately before he stabbed him, was that he jumped towards him as he was swinging his arm”. I do not regard it as inconsistent with these findings that Mr Gregory also said that the applicant told the deceased prior to that time, “Don’t come any closer”. Mr Gregory gave evidence that this was said before the applicant had himself moved towards the deceased.
In cross-examination, Mr Gregory gave a different version. He said:
“Q. Then he moved towards Danny and he has the capacity, from what you could see, to throw the brick straight at Danny?
A. Yes.
Q. And at some stage, he’s at an arm’s length reach from Danny?
A. Yeah.
Q. Correct?
A. Correct.
Q. At that stage, you said yesterday that Danny stepped back?
A. Yes, he--
Q. All right. Danny steps back, says, amongst other things, ‘Step back’ or words to that effect?
A. Yes.
Q. ‘Don’t come any closer’ or words to that effect, and it was the case that Mr Haynes kept going, didn’t he?
A. Yes, he did.
Q. It was at that point that Danny struck Mr Haynes, correct?
A. Correct.
Q. So when you were answering questions yesterday, can I suggest to you that that you’re suggesting that Mr Vujica was stepping back, Mr Haynes is still coming at him, correct?
A. Correct.
Q. And it’s at that stage that Mr Vujica swings at Mr Haynes, correct?
A. Yes.
Q. To the extent that you answered the questions that the Crown sought, you provided an answer to the Crown’s questions this morning about how either they’re coming at each other or Mr Vujica was going forward at the time that he swung--
A. Yep.
Q. It wasn’t the case that he was stepping forward; he was stepping back, wasn’t he?
A. Yes, you wouldn’t say ‘Don’t come any closer’ if you’re trying to get away from them, you know what I mean?”
I reject this evidence given in cross-examination as clearly being tailored to assist the applicant. Having independently considered the whole of the evidence, Mr Gregory’s reluctant concessions about his friend’s conduct made in his evidence in chief are to be preferred to the very different version he offered in cross-examination.
Mr Gregory said the applicant’s swing looked like a hook or haymaker; his hand moved in a semicircular motion. He swung up towards Mr Haynes’s head. In cross-examination he agreed that when the applicant swung, he had his head down or leaning down towards the ground. Mr Gregory said from the sound it made, it was a hard hit.
Mr Haynes dropped the brick and hit the ground. On the ground he was yelling and swearing. Mr Gregory did not recall Mr Haynes referring to $50 when he was lying on the ground. He said the applicant said something like, “Was it worth it?” or “Was it really worth it?”. In cross-examination he said he was not too sure if it was, “This is not worth it”. He did not recall the applicant saying, “I still want my $50”.
Mr Gregory’s evidence was that after Mr Haynes hit the ground, the applicant grabbed the bike from in front of the car while Mr Gregory opened the cover over the tray of the ute. The applicant brought the bike around and it was put in the back of the ute. I will return to Mr Gregory’s evidence when addressing the post-offence conduct.
Ms Jolly’s evidence was in a narrow compass. On 15 January 2022, she was living on Anderson Avenue, which intersected with Popondetta Road. She left her home at about 5:45am to drive to the service station on Popondetta Road for some cigarettes. As she drove up to the corner of Anderson Avenue and Popondetta Road she looked to her right up Popondetta Road, to check for approaching cars, and she saw three men standing on the road near Franklin Crescent.
Ms Jolly said there was a white ute on the left side of Popondetta Road on the corner near Franklin Crescent. There was a man right behind the ute, one further into the middle, and man who the trial judge found was Mr Haynes, was in the middle of the road. The three men were in a line.
Ms Jolly said:
“Q. So the position that Michael’s in is further towards the centre of Popondetta Road than where the ute was?
A. Yes.
EXHIBIT #K MAP MARKED BY WITNESS JOLLY TENDERED, ADMITTED WITHOUT OBJECTION
Q. What did you then see happen?
A. The man in the middle, he sort of leapt up and come down, and I seen him hit the side of the, Michael, and he just fell. There was no stumble backwards or anything. He just went straight down.
Q. Now while you were saying that, just if we can try to describe what you showed. You had your hand raised at about shoulder level--
A. But it’s - his--
Q. --with your arm bent?
A. Yeah.
Q. And then a movement of the hand forward?
A. It’s like he jumped up into the - went towards him and jumped up and come down on him.
Q. So the motion that you’ve done, you showed with your body a physical movement upwards--
A. Yeah.
Q. --and then the hand at about shoulder level--
A. Mm.
Q. --with the elbow bent back, but moving in a downward direction?
A. Yep.”
The man in the middle closer to Mr Haynes “sort of leapt up and come down” and “hit the side of … [Mr Haynes] and he just fell”. She said there was no stumble backwards; he just went straight down. She demonstrated that the man who took steps towards Mr Haynes, jumped up and “come down on him” had his hand up at about shoulder level, with his elbow bent, then the hand moved in a downward direction. She did not see anyone holding anything.
Ms Jolly originally said in cross-examination that when she stopped at the intersection of Anderson Avenue and Popondetta Road and made the observations of which she had given evidence, she was stopped for “four, five minutes”. After viewing Exhibit E, the CCTV footage, she agreed that while her car was stopped at the intersection a car drove past her along Popondetta Road and within 14 seconds of her car arriving at the intersection she turned left and drove along Popondetta Road. She agreed that her prior evidence that she had a clear unimpeded view for four to five minutes was obviously wrong. However, she maintained that she saw the three men and she saw the middle one jump forward and strike the man in the middle of the road. She said:
“Q. Do you think maybe then what you saw and what you described, do you think really you may not be a hundred per cent reliable in terms of your memory of what you claim you saw or not?
A. I seen three men on the street, one in the middle of the road, two in, one in the centre and one at the back of the car. And I seen the middle one jump forward and strike the first man.
….
Q. Then what you got to see was a matter of a few seconds, correct?
A. Yes.
Q. The swing that you’ve described - have you heard the expression haymaker or not?
A. Yeah.
Q. It was a haymaker wasn’t it?
A. Yeah, that’s exactly what it looked like.
Q. Can I suggest to you that at that point in time it was actually [Mr Haynes] who was moving towards the person that threw the haymaker--
A. No.
Q. --do you agree with that or not?
A. No, he wasn’t moving.
Q. Could you be wrong about that?
A. No, the man, the man in the middle, in the middle of the street, [Mr Haynes], never moved.”
I find Ms Jolly to have been mistaken about the length of time she was sitting in her car at the intersection watching the interaction between the applicant and Mr Haynes. I am, however, satisfied that the short time Ms Jolly observed was sufficient for her to observe what she described. I accept her observation of the incident happening on the corner of Franklin Crescent. I accept that Mr Haynes was standing in the middle of the road. I accept the applicant threw a “haymaker” punch which connected with Mr Haynes, with fatal results.
I accept Ms Jolly’s evidence about the haymaker punch she described, which was essentially the same description as given by Bryce Gregory in chief. It is of no moment whether the precise angle of the punch was upwards and if so to what degree.
I accept Ms Jolly’s evidence that she saw the applicant jump forward as he swung his hand and arm. I do not, however, accept her evidence that Mr Haynes never moved. I find, as Mr Gregory agreed in chief, the applicant and the deceased were moving towards each other at the time immediately before the stabbing.
It is next necessary that I address the applicant’s evidence.
The applicant said when Bryce Gregory’s car pulled up he was on the right side of the road and he went diagonally across the road on his bike to between the two doors of Mr Gregory’s car. He said Mr Gregory, in the driver’s seat, asked him, “You right?” and told him to get in. He said he spoke to Mr Gregory first and did not immediately go to put his bike in the back of Mr Gregory’s ute, because the ute had a cover and a tray, and he did not know how to open the tray. He said Mr Gregory jumped out to help him put his bike in the back. He was standing with his bike between his legs, about a metre from Mr Gregory when he got out of his car. They were talking. Mr Gregory went to put the bike in the back. He heard yelling again from behind him.
He turned around and Mr Haynes was yelling. He was yelling, “Get back in your car you motherfucker”. He was coming at a fast pace towards them. He was just before the back light of the car. He had a jumper over his right hand. He was yelling and screaming. He lunged towards them, having removed his jumper from over a brick he was holding.
One important issue about the applicant’s evidence is the knife used in the fatal stabbing of the deceased. It is not disputed by the applicant that it was his knife that killed the deceased and that on the morning of 15 January 2022 the knife was on his lanyard with his keys. It was an agreed fact that the applicant inflicted a stab wound to the left side of Mr Haynes’s neck.
The applicant’s evidence about how it was that he came to have his keys, which had a knife on the keyring, in his hand at the time of the confrontation with the deceased merits close scrutiny:
“Q. Your evidence initially today, I’d suggest, was that you might have had your keys in your hand?
A. Yes, I said I had my keys in my hand.
Q. No, you said, ‘I’d suggest I might have had my keys in my hand’?
A. And then I said, yes, I did.
Q. You were trying to say that you weren’t sure whether you had them in your hand or not?
A. No, I did.
Q. And that’s why you said that something had, after you threw the punch, something hit your wrist and you didn’t know what it was?
A. No, I, I felt impact on my wrist.
Q. I’d suggest that your evidence changed to, ‘I grabbed my keys and I had them scrunched up in my hand’?
A. Yes.
Q. And I’d suggest that the reason you changed your evidence there is because you’re lying?
A. No.
Q. The truth is that you deliberately grabbed the knife?
A. No.
Q. The truth is that the way you held the knife was to put two fingers through the hole in the handle the way I’ve asked you some questions about before?
A. No.
Q. And you deliberately swung the knife at Mr Haynes, didn’t you?
A. No, no.
Q. You knew you had the knife in your hand?
A. No, the only reason I got my keys out was because I was trying to put my phone in and I had a little boom box in my bag as well.
Q. From time to time that night your phone had been in the pocket of the hoodie that you were wearing, [hadn’t it]?
A. Yeah, and in my bag too.
Q. Your phone was safe as far as you were concerned in the pocket of your hoodie?
A. It would have fallen out. It was a big phone.
Q. You had been riding all the way up Popondetta Road with it in your hand?
A. Yes, in my hand, yes.
Q. There was no reason that the phone would now fall out of the hoodie, was there?
A. But there was no reason to have it out.
Q. You deliberately opened the bag to take the knife out?
A. No, I just wanted to put my phone out so it didn’t smash.
Q. And you deliberately - sorry, I started talking over you.
A. Sorry.
Q. I thought you’d finished.
A. Sorry about that.
Q. Please. You intended to hit Mr Haynes, to stab him with the knife, didn’t you?
A. No, no.
Q. I’d suggest that you were lying when you said you didn’t intend to hit him?
A. No, I didn’t intend to hit him.”
This evidence about a critical issue going to the applicant’s state of mind at the time is implausible. It causes me to doubt the applicant’s entire account about his true mental state immediately before and at the time of inflicting the fatal wound.
The applicant said Mr Haynes was about two metres away when he first saw the brick, and Mr Haynes was moving progressively faster. He said he told Mr Haynes to stay back. Mr Haynes “went to hit [him]” with the brick. He lunged forward with his right arm up and went to hit him with the brick. Mr Haynes did not stay back; he got closer. The applicant took a couple of steps back. Mr Haynes came at him even faster. He went to hit the applicant, so the applicant swung a punch.
The applicant said his eyes were shut and his head was bowed down. He was trying to not get hit. He swung a punch above, in front of him. He demonstrated with his hand moving in a semicircular motion. He said:
“Q. He was within a metre of you, wasn’t he?
A. When I closed my eyes and, and put my head down.
Q. You jumped towards him, didn’t you?
A. No, no.”
He said he thought Mr Haynes “was about to brick [him]”, and if he did that, his head was “going to get caved in”. He said Mr Haynes’s demeanour at that point was “[a]bsolutely ballistic”, “infuriated”.
The applicant said he swung so that Mr Haynes would step back, but he did not. He said his intention was not to connect with Mr Haynes or any part of his body. The applicant said he was going backwards, but when he closed his eyes and swung Mr Haynes moved forward, to where he did not know. He said when he went to swing, Mr Haynes was just over a metre away. He denied he jumped towards Mr Haynes.
The applicant said his head was down, he swung a punch, he felt something touch or hit his wrist. He did not know what that was, because his eyes were closed. He swung only once, with his right hand, with a scrunched hand. He said, “I might have had my keys and my possessions in my hand”. His keys were scrunched up in his hand when he swung his hand in a semicircular motion.
The applicant denied he deliberately grabbed his knife or deliberately swung it at Mr Haynes. He said he did not intend to hit him. He said when he swung he was thinking if he did not swing, he was getting hit in the face. He was in fear for his safety at the time. He had no other options. He thought the only option he had was to swing.
The applicant said he looked up and saw Mr Haynes take a couple of steps backwards. He went to fall down. The applicant grabbed the bike. He and Mr Gregory put the bike in the back of the ute. Mr Haynes was on the ground yelling and screaming, calling the applicant, among other names, a “junkie dog”.
The applicant said he did not know when Mr Haynes was on the ground that he had stabbed him. He said he said, “it wasn’t worth it”. He said what he meant by that was “Like, the … whole thing was just not worth it. Like, I just wanted to go up the road and get on and go home. Like, I was having my day off”.
The applicant said when he was in the ute he said to Mr Haynes on the ground, “I still want my money back”. The applicant said he thought Mr Haynes was going to get back up and hit him with the brick, or get up and keep fighting.
The applicant said he did not hold Mr Haynes responsible for his having been “ripped off”. This evidence is wholly implausible. The applicant said he was not angry with Mr Haynes. I reject that evidence. The applicant said Mr Haynes did not make clear to him that he was not going to help him recover his money. I reject that evidence.
The applicant said it was not his intention, when he rang Mr Gregory, to demand Mr Haynes give him the $50. That evidence is wholly implausible and I reject it.
The applicant said when Bryce Gregory told him to stay where he was and he would come and collect him, that was later, when he was all the way up the street, that Mr Gregory did not say he was coming to get him when he was at McDonald’s. I reject that evidence.
The applicant disagreed that when he left McDonald’s he was following Mr Haynes, at all, or to exact revenge. I reject that evidence. The applicant said he was going along Popondetta Road to go to a mate’s house in Bougainville Road. That evidence is implausible.
The applicant says he tried to get in the car. That evidence is implausible and is inconsistent with evidence I accept.
The applicant says he told Mr Haynes to stay back; to stay away from him. He stepped back. The applicant says Mr Haynes took another lunge and “went to whack [him]”. The applicant maintained he acted in self-defence, that he did not have a choice, although he also said he did not mean to swing at him, he swung in front and did not intend to hit him. That evidence, including his evidence about his state of mind is in all the circumstances implausible.
I accept that in considering the applicant’s state of mind I must take into account that he had not slept well and had been troubled by bad dreams and traumatic memories in the night before the early hours of the morning on which this event occurred. I also accept that Mr Haynes was approaching the applicant with a brick in his hand, in reasonably close proximity. I accept that calm reflection was not available to the applicant in the circumstances he faced immediately before the fatal incident.
Having considered all of the evidence, however, I reject the applicant’s account about his state of mind at and immediately before the time the applicant stabbed Mr Haynes in the neck. That is, I reject his evidence that he thought it was necessary to swing at Mr Haynes as he did in to protect himself from Mr Haynes. The applicant’s evidence about his state of mind at all relevant times is implausible and I do not believe it.
After the incident, the applicant was driven by Mr Gregory to Mr Gregory’s unit in Kingswood. The applicant’s mother picked him up from the unit and took the applicant home.
I find that:
The applicant left the scene quickly with the deceased still lying in the middle of the road;
The applicant burned his clothes after the incident occurred; and
The applicant disposed of the bicycle that he had been riding.
This post-offence conduct is circumstantial evidence which I find, when considered together with other evidence, negatives the applicant’s contention that he stabbed Mr Haynes as he considered it necessary to do what he did to defend himself from Mr Haynes: Gall v R; Gall v R [2015] NSWCCA 69.
I have concluded that on a review of the whole of the evidence in this case, the Crown’s circumstantial case was established beyond reasonable doubt. The facts and circumstances that were established by the evidence did not allow for any reasonable explanation other than that the applicant did not believe that it was necessary that he stab the deceased to defend himself. I have reached this conclusion for the following reasons.
First, I have independently come to the same conclusion as the trial judge about the applicant’s state of mind. Shortly put, at all relevant times, the applicant was angry with the deceased over the applicant’s loss of $50 and wanted it back. Some unchallenged findings made by the trial judge provide significant context to the critical events:
“[195] I am satisfied that Bryce Gregory told the [applicant], who had told him that he was at McDonald’s, to stay there and he would come and collect him. I do not accept the [applicant’s] evidence that Mr Gregory said that to him later when he was further along Popondetta Road, although even if he had said that there, there was no reason why the [applicant] could not have stopped there and waited for Mr Gregory. Why did he not wait for Mr Gregory to come and collect him but instead follow Michael Haynes? Because he was intent on following Michael Haynes to recover the $50 he had lost.
[196] Mr Gregory said the [applicant] told him in the phone call that a man he had met at the service station had set him up to lose $50. The [applicant] denied that he held Mr Haynes responsible for having set up the stealing of his money; he said that he said Mr Haynes had set up the deal, that is the supply of cannabis. I do not accept that evidence from him, and furthermore his conduct at the scene was inconsistent with it, including his asking Mr Haynes in McDonald’s to show him his phone, in response to the [applicant’s] belief that Mr Haynes was involved in setting him up to have his money stolen, and by his constant demands of Mr Haynes for his money along Popondetta Road, overhea[r]d in the phone call with Mr Gregory and continued after Mr Haynes was struck and lying on the ground. It is clear from the [applicant’s] words and conduct at McDonald’s and along Popondetta Road that he was aggrieved about having lost his $50, was intent on recovering it, held Mr Haynes at least partly responsible for his money having been stolen, and was focused on Mr Haynes assisting him to recover his money in some way.”
I conclude, as did the trial judge, that Mr Gregory told the applicant to stay at McDonald’s and he would come and collect him there. I am satisfied that the applicant did not wait for Mr Gregory to come and collect him but instead followed Mr Haynes as he was intent on following him to recover the $50 he had lost. The evidence included the applicant’s words and conduct at McDonald’s and along Popondetta Road, his aggrieved feelings about having lost his $50, his clear intent to recover that money, and that the applicant held Mr Haynes at least partly responsible for his money having been stolen. I agree with the trial judge that the applicant was shown to be focused on Mr Haynes assisting him to recover his money in some way.
I have also carefully considered, in context, the evidence of Ms Thaidy. This evidence is highly significant. I accept Ms Thaidy’s evidence that the applicant’s voice in the phone call, conducted whilst he was following the deceased, was angry. Properly understood, Ms Thaidy’s evidence was that the applicant’s voice remained angry after Mr Gregory’s car had arrived at the scene where the fatal interaction occurred between the applicant and Mr Haynes. Ms Thaidy heard the applicant still asking Mr Haynes for his money back in an angry voice, even after Mr Haynes was lying on the road after being fatally stabbed in the neck by the applicant.
I am satisfied the applicant was angry at Mr Haynes because he had lost his $50, because Mr Haynes would not contact the man on the motorbike and help him recover his $50, and because he held Mr Haynes at least in part responsible for the loss of his $50.
The manner in which the applicant followed the deceased from the McDonald’s car park, as shown in the CCTV footage, immediately and deliberately, illustrates that his intention towards Mr Haynes at that point was not benign. Like the trial judge, I am satisfied the applicant was angry at the loss of his money and he directed that anger at Mr Haynes, who was the only other person present who had been involved in the transaction in which the man on the motorbike attended and took the applicant’s money.
The applicant’s anger at the deceased about the $50 continued even after the deceased was on the ground having been stabbed in the neck. I agree with the trial judge’s finding that at that time the applicant still said he wanted his $50 in an angry tone:
“[214] I am satisfied that the [applicant] intentionally stabbed Mr Haynes and he intended in stabbing him to inflict grievous bodily harm by swinging up towards Mr Haynes’s head with the knife which appears in the photographs in Exhibit D in his hand. I am satisfied that he had that intention because he was angry about having lost his $50 and held Mr Haynes responsible. That is apparent from his saying, even after Mr Haynes was lying on the ground, that he wanted his money back in an angry voice, as Ms Thaidy said.”
“Q. I just want to go back and ask you some questions. You’ve told us about the guy that had been on the bike--
A. Yes.
Q. --on more than one occasion saying something about wanting his $50 or--
A. Yep.
Q. --still wanting his 50. What was the tone of his voice when he said that?
A. Angry. Deep.”
Ms Thaidy gave evidence of the applicant saying that he wanted his $50 on two occasions, both before and after the stabbing. In terms, the evidence about an angry and deep tone applies to both occasions rather than to only one of those occasions. The cross-examination on behalf of the applicant did not seek to distinguish between the two events but sought only a concession that “he wasn’t screaming at the top of his voice, carrying on like a madman”.
Secondly, I have concluded that the deceased had not previously acted in an aggressive manner towards the applicant during their earlier interactions at or near the McDonald’s. As I have earlier found, based on my independent review of the CCTV footage, the deceased did not act in an aggressive manner towards the applicant during their earlier interactions at or near the McDonald’s.
Thirdly, while it is true that immediately prior to the stabbing the deceased approached the applicant holding a brick, the relevant context was that the applicant had followed him from the McDonald’s and the deceased had repeatedly told the applicant to leave him alone. The applicant had summoned Mr Gregory who had arrived at the scene. On all of the evidence, I find that Mr Haynes wanted the applicant to leave him alone and made that clear. After he left the McDonald’s, the deceased regarded himself as having no further business with the applicant and he wanted to go to his children’s home in peace. I accept the Crown’s submission that the deceased’s conduct should be understood as being more defensive than aggressive or offensive in the circumstances.
Fourthly, in determining whether the Crown has negatived the reasonable possibility that the applicant believed it was necessary to stab the deceased in order to protect himself from harm, it is significant that when the critical events occurred the deceased was outnumbered, in that the applicant had his friend Mr Gregory present. I find that the applicant had a ready means of escape from the deceased, by simply entering Mr Gregory’s vehicle. I reject the submission that the applicant was distracted or somehow prevented from doing so by the alleged perceived need to secure his bicycle. On Mr Gregory’s evidence, the bicycle was stolen. Even Mr Gregory, whose evidence in cross-examination was clearly intended to be tailored in significant respects favourably to the applicant, said that immediately prior to the stabbing the applicant “was going onto fight mode” and “he wasn’t going into flight mode”. As I have found above, the applicant and the deceased were moving towards each other immediately before the fatal blow. I reject the applicant’s submission that there was a “lack of realistic opportunity to withdraw once the deceased was approaching in close proximity to the applicant”.
Fifthly, the applicant engaged in post-offence conduct which sought to conceal his involvement in the incident. I have concluded that this conduct was inconsistent with any genuine belief that he stabbed the deceased believing it necessary to do so to protect himself. That conduct comprised:
Fleeing the scene;
Going to Mr Gregory’s home and burning his clothes (which I am satisfied was the applicant’s idea);
Disposing of his bike; and
Being in what Mr Gregory described as a “frantic and stressed” mood at Mr Gregory’s home.
Sixthly, I accept the Crown’s submission that swinging a knife upwards and towards the deceased’s head was excessive compared to the risk presented by the deceased given he had not been physically aggressive to him before. The applicant could readily have distanced himself from the deceased as the latter approached him. There was at least one other person, Mr Gregory, who could have assisted the applicant. The Crown highlighted that the deceased died as a result of a sharp-force trauma, in which the knife had entered through the left side of his neck and entered the opening at the base of the skull. It was a significant injury, and a “long way into the body in an upwards direction”. That the applicant’s conduct was excessive is another piece of circumstantial evidence that he did not believe that stabbing the deceased was necessary to protect himself.
Seventhly, I find that it was the applicant who was the aggressor in his interactions with the deceased. The applicant wanted to have a confrontation with the deceased about the $50. As I have already noted, in Colosimo v Director of Public Prosecutions (NSW), Hodgson JA (Handley and Ipp JJA agreeing) said that “[a] finding that an accused ‘wanted to fight’ does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence”. This is such a case. It is another factor relevant in my being satisfied beyond reasonable doubt that the applicant did not believe his conduct to be necessary for his defence.
Eighthly, I reject the applicant’s submission that Ms Jolly’s evidence should not be relied on to assist in support of a conclusion beyond reasonable doubt that the applicant did not believe that his action was necessary to defend himself. Whilst she was grossly mistaken about the time spent viewing the relevant incident, there is no doubt, on all of her evidence, that Ms Jolly witnessed the blow that caused Mr Haynes’s death. Whether her description of the applicant as having “sort of leapt up and come down” was consistent with the applicant “swinging up” was of little significance. In any event, Ms Jolly’s evidence did not play a substantial part in the trial judge’s reasons and plays no significant part in my independent assessment of all of the evidence in the trial.
Ninthly, the applicant made much of Mr Gregory’s evidence that the applicant said to the deceased, “Don’t come any closer”. The applicant submitted that her Honour did not reject that evidence. What her Honour actually said was as follows:
“[69] Bryce Gregory was a friend of the [applicant]. He was, on his own account, not happy to be giving evidence in the trial. He had to have his memory refreshed by having played to him the recording of his interview with police, in a voir dire, and by his being taken to parts of the transcript of the interview from time to time. Despite that, I formed the view that some of his evidence could be relied on. It was the Crown’s position that Mr Gregory was tailoring his evidence to try to protect the [applicant]. Mr Gregory denied he was trying to protect the [applicant]. He did not appear to tailor his evidence to assist the [applicant] to any great extent during his evidence in chief. I consider he did do that to an extent when he was being cross-examined by counsel for the [applicant], but he did not succeed entirely in trying to help the [applicant] in his evidence, as some of his evidence was inconsistent with the [applicant’s] and did not assist the [applicant].”
As I have said, the real matter of significance in Mr Gregory’s evidence is that he agreed that “the way the accused moved towards the deceased immediately before he stabbed him, was that he jumped towards him as he was swinging his arm”. I do not regard it as inconsistent with these findings that Mr Gregory also said that the applicant told the deceased prior to that time, “Don’t come any closer”. Mr Gregory gave evidence that this was said before the applicant had himself moved towards the deceased.
Tenthly, I reject the applicant’s submissions about the exchange set out at [23] above. Having viewed the corresponding portion of Exhibit E, I conclude that the applicant was not at all scared of the deceased at this point. The clear message conveyed by the deceased to the applicant was that the deceased wanted the applicant to leave him alone. That is, the deceased was not acting as the aggressor, although I find that Mr Haynes used a raised voice and crude language. I accept the submission of Senior Counsel for the Crown in this Court that:
“The stalking conduct of the applicant and continuing to follow him, particularly, if he’s going to his children’s house which he says he is. And it’s also clear from that footage that although the applicant kept his distance, he was not scared or perturbed or put off by that aggression.”
The limited amount of time between the exchange set out in [23] above and the stabbing incident, which the applicant stressed in written argument, is not significant once the true character of that exchange is considered and taking into account the intervening arrival of Mr Gregory.
I have earlier accepted that events unfolded relatively quickly and that there was no time for calm reflection. It does not follow that there is a reasonable possibility that the applicant believed it was necessary to stab the deceased to protect himself. To the contrary, when the evidence is viewed in context, the short passage of time serves to reinforce that the anger the applicant felt for the lost $50 remained with him throughout these interactions with the deceased.
Eleventhly, I reject the applicant’s submission that the post-offence conduct I have found at [151] is “equally consistent” with his believing that he had to stab the deceased to protect himself. In his evidence, the applicant justified the post-offence conduct by asserting that Mr Gregory told him to burn his clothes because he “thought [he] was going to get in trouble for punching old mate”. In cross-examination, the applicant denied that he knew he had caused the deceased a really serious injury. The submissions put on behalf of the applicant at trial were that “[h]e knew he’d been in a punch up. He knew he could be in trouble” and that fleeing to Queensland was out of self-preservation because of fear of retribution.
I accept the Crown submission that the post-offence conduct bore on the issue of self-defence in the same manner as it did in Gall v R; Gall v R at [93].
I also accept the Crown’s submission that, in the absence of any evidence from the applicant that he believed it was necessary to stab the deceased in the neck with a knife, acceptance of that proposition was essentially speculative. It was not, at least directly, addressed by counsel for the applicant at trial in his closing address. The considerations in R v Baden-Clay apply. Reasonably viewed, the applicant’s evidence in fact excluded the hypothesis. To the extent that the issue required consideration, the issue was ultimately bound up with and met by the same evidence going to intention and could be rejected for the same reasons. There was no reasonable possibility that the applicant believed that his conduct was necessary to protect himself.
Twelfthly, the applicant’s submission about the applicant’s subjective circumstances, in particular the lack of sleep and traumatic memories, do not take the applicant very far. I have found that the applicant had not slept well and had been troubled by bad dreams and traumatic memories in the night before the early hours of the morning on which this event occurred. Those matters may, perhaps, explain in part why the applicant became so angry about losing $50. They do not, however, provide any support, alone or together with other matters, for the reasonable possibility that the applicant believed it was necessary to stab the deceased in self-defence.
Thirteenthly, I reject the applicant’s submission that the deceased told Mr Gregory to get back in the car so that he could isolate the applicant, or that the applicant may have perceived that to be the deceased’s intention. This was, as the Crown submitted, “entirely speculative”. No basis was shown for drawing that inference in the circumstances and I do not do so.
There is no longer an issue that the Crown proved beyond reasonable doubt that the applicant deliberately, intentionally stabbed Mr Haynes in the neck, with the intention of causing him grievous bodily harm, and that stab wound caused Mr Haynes’s death.
I would grant leave to appeal on ground 1 but dismiss ground 1.
It was submitted that s 133(2) of the Criminal Procedure Act 1986 (NSW) requires, in a judge alone trial, that the trial judge expose the reasoning process linking the principles of law with the facts found to justify the verdict reached. It was submitted that the trial judge failed to comply with the requirements of s 133(2) in relation to the first limb of self-defence.
It was submitted that a failure to observe the requirements of s 133(2) of the Criminal Procedure Act may constitute a wrong decision on a question of law or a miscarriage of justice, per Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [27] which addressed the predecessor provision to s 133 of the Criminal Procedure Act.
It was submitted that in considering the first limb of self-defence, the trial judge was required to consider “whether the Crown had proved beyond reasonable doubt that the applicant did not believe at the time of stabbing the deceased that it was necessary to do so in order to defend himself.”
It was submitted that the trial judge was required to evaluate how the applicant’s state of mind differed between the circumstances prior to the deceased approaching with the brick, and when the deceased approached with the brick, to satisfy s 133(2). The perception of the applicant was said to be critical to determine whether the first limb of self-defence was proved. It was submitted that was not indicated in her Honour’s reasons:
“The trial judge’s findings do not disclose an evaluation and process of reasoning by which the trial judge was able to discount the reasonable possibility that the applicant believed it was necessary to stab the deceased with the knife in order to defend himself from a fear that the deceased was about to inflict really serious or serious injury on him. This is particularly so as the trial judge set out only some of the circumstances said to be perceived by the applicant at the critical time.
At J [217] the trial judge, on the question of the applicant’s ability to leave, stated ‘[h]e had the means to escape, and knew he had the means to escape but he stayed. He took hold of his knife and with it in his hand swung in the motion described, intending to stab and cause grievous bodily harm.’ This finding is contradicted by the finding of calm reflection not being available at the point that the deceased was approaching the applicant with the brick in hand at close proximity (J [208]), the mere seconds involved, and the evidence as to him being there with his bike (which needed to be loaded in the ute).” (Emphasis in original.)
It was submitted that the trial judge thus failed to grapple with some of the “incontestable” evidence in the agreed facts as to threats by the deceased and his “invitations to treat” (that is, the angry exchange audible in the CCTV footage in Exhibit E), as well as the evidence of Mr Gregory as to the circumstances, and to the reasonably possible impact on the perceptions and beliefs of the applicant at the time. The applicant submitted that this Court would “reject that there was no aggression from the deceased”.
It was conceded by the applicant that her Honour identified that the court was required to consider all the circumstances, and that her Honour did indicate that the court was required to look at the matter, realising that calm reflection cannot always be expected in these situations.
A subject of oral argument from both parties at hearing before this Court included the way in which the argument of self-defence had been put to the trial judge in the court below. In short, the applicant submitted that self-defence had been left to the trial judge and highlighted instances where the applicant had relied on the aggression of the deceased.
The Crown submitted that the central case for the applicant had actually been one of accident, and that the trial judge had not received detailed submissions on the question of self-defence. Her Honour was therefore not required to deal in detail with an issue which she had not been asked to deal with.
In any event, the Crown submitted, the trial judge gave adequate reasons for her Honour’s conclusion that the Crown had negatived the first limb of self-defence.
133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
“[38] The requirements in ss 133(2) and (3) are ‘legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law … and may also mean that justice has miscarried’ within the second and third limbs of s 6(1) of the Criminal Appeal Act: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27] (considering its identical predecessor s 33(2)); see also Wade v R [2018] NSWCCA 85 at [102].
[39] The requirements of s 133(2) are not ‘satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached’: Fleming at [28]; see also W v R [2014] NSWCCA 110 at [108].
[40] In Fleming at [30], the Court continued:
Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act.”
The adequacy of a trial judge’s reasons in a judge-alone trial is a question of degree and it is necessary to read those reasons as a whole: RJ v R [2025] NSWCCA 68 at [99]-[102] (Ward P, Yehia and Coleman JJ agreeing).
I have concluded that read fairly and as a whole, there is no inadequacy in the trial judge’s reasons about self-defence.
At the hearing in this Court, the Crown highlighted the limited way the case for the applicant on the first limb of self-defence had been put in the closing address of counsel for the applicant at trial. It was submitted:
“… So there’s nowhere, there’s not a breath about asking the judge to analyse in detail the circumstances, the movement by movement circumstances at the car in the way that my friend now puts on appeal. That’s not at all the way the case was put below. It was all based on the clear thrust and the clear issue was this mistake - sorry the accidental striking and self-defence hung in the background. In my submission the Crown quite generously took the view that it was still live and dealt with it. And counsel for the applicant didn’t really advance that argument at all in any significant way. And we say that’s important. Her Honour nevertheless dealt with it and we say appropriately and we come to ground 2.
Of course the degree to which her Honour’s complied with the obligation to expose the reasoning is also - it’s important that that’s in the context of the issues as - and the arguments made by the parties in the hearing itself. And we say she’s covered that more than adequately.” (Emphasis added.)
I agree. The applicant’s case on the first limb of self-defence was barely touched upon by counsel for the applicant before the trial judge. The Crown is correct that there was “not a breath about asking the judge to analyse in detail the circumstances, the movement by movement circumstances, at the car in the way that [the applicant] now puts on appeal”. The trial judge’s reasons must be read in light of the issues identified and submissions made by the parties at the trial. Read in that light, the reasons given by her Honour were completely adequate to the task.
In reaching the conclusion that, read fairly and as a whole, there is no inadequacy in the trial judge’s reasons about self-defence, I find the following.
First, the trial judge was clearly aware that the deceased approached the applicant carrying a brick:
“[208] Michael Haynes was approaching the [applicant] with a brick in his hand, in close proximity, although he had repeatedly told the [applicant] to go away and leave him alone. I accept that calm reflection was not available to the [applicant] in those circumstances.”
“[201] The next factual matters in dispute are about events which occurred when Bryce Gregory arrived in his car. The first issue about which witnesses were in dispute was where the [applicant] and his bike were when Bryce Gregory pulled up, in front of the ute as Mr Gregory said or across the road diagonally behind the car as Ms Thaidy and the [applicant] said. Although in my view it does not matter for the resolution of the ultimate issue, it seems likely that Mr Gregory was mistaken about this. Given that the [applicant] was on his bike on the right side of the road, as recorded on the CCTV footage at 183 Popondetta Road, and Mr Gregory arrived shortly thereafter at 191 Popondetta Road, it is likely the [applicant] was still on his bike on the right side of the road when Mr Gregory and Ms Thaidy arrived. That appears to be shown at the end of the CCTV footage in Exhibit E, after the interaction at 183 Popondetta Road, when the [applicant] rides his bike in the same direction as Mr Haynes, then he appears to glance back behind him, consistent with his evidence that he saw the headlights of Mr Gregory’s car approaching, and then a white dual cab utility vehicle is seen on the CCTV footage to drive past the [applicant] at some speed, quite likely Mr Gregory’s vehicle.
[202] The next issue about which witnesses were in dispute was whether, when Bryce Gregory arrived in his car, the [applicant] and Bryce Gregory put the [applicant’s] bike in Mr Gregory’s ute before the interaction with Mr Haynes, as Ms Thaidy said, or afterwards. I have come to the view that Ms Thaidy, although generally an impressive witness, must have been wrong about that. However, if it was the [applicant’s] intention to leave the scene, rather than confront Mr Haynes, he could have gotten into the car as soon as it arrived. In the end I think not much can be made of whether the [applicant] put his bike in the car before or after the interaction with Mr Haynes, in respect of the [applicant’s] intention. I accept that the events happened relatively quickly, although I accept the evidence of Ms Thaidy and Mr Gregory that Mr Haynes was not present at the car immediately it arrived, but arrived shortly thereafter, and there was time for the conversations at or around the car, of which Ms Thaidy and Mr Gregory gave evidence, which I accept happened.
[203] There were also differences between the witnesses as to where people were standing around the car. I do not consider the differences as to people’s positions significant or necessary to resolve. It was the evidence of each of Ms Thaidy, Mr Gregory and Ms Jolly that Mr Haynes was in the roadway on the driver’s side of the car. It is clear from the evidence that Mr Haynes and the [applicant] were in close proximity to each other.
[204] The next factual event in dispute is Mr Haynes’s behaviour and intention with the brick. I have found that Mr Haynes wanted the [applicant] to leave him, that he regarded himself as having no further business with the [applicant] and he wanted to go to his children’s home in peace. He did not physically confront the [applicant] before Bryce Gregory arrived in his car. At 183 Popondetta Road he did walk towards the [applicant], although they were separated by some distance and the [applicant] was on his bike and towards the other side of the road. Then Mr Haynes turned and walked away from the [applicant]. He was never, before the arrival of Mr Gregory’s car, on Popondetta Road, in sufficient physical proximity to the [applicant] to physically threaten him, and when he was in closer proximity to the [applicant] back at McDonald’s, he did not at any time during their interactions behave in a physically threatening way. I am satisfied by Mr Haynes’s approaching with a brick after Mr Gregory arrived in his car, and Mr Haynes yelling at Mr Gregory to get back in his car, that he regarded Mr Gregory's arrival as providing reinforcements for the [applicant], that he wanted them to leave, and that he armed himself with the brick to defend himself against two men and attempt to persuade them to leave.
…
[207] A fact about which the evidence is in dispute is whether the [applicant] stepped back when he swung his arm at Mr Haynes, as Bryce Gregory said occurred, or did he jump forward, as Ms Jolly said. The [applicant’s] evidence about the incident I regarded as implausible. I did not believe it, and I put it aside.
[208] Michael Haynes was approaching the [applicant] with a brick in his hand, in close proximity, although he had repeatedly told the [applicant] to go away and leave him alone. I accept that calm reflection was not available to the [applicant] in those circumstances.”
I reject the applicant’s complaint about the breadth of the finding that her Honour did not believe the applicant’s evidence about the incident. As I have earlier explained, I have independently formed the view that the applicant’s account about the incident and his state of mind at that time is implausible. Her Honour explained her reasons for rejecting the applicant’s evidence in sufficient detail and by reference to the issues identified by the parties for determination, here whether the applicant stepped back when he swung his arm at Mr Haynes, or jumped forward. The findings of fact that the judge has made were exposed as was the reasoning process linking them to the principles of law which had correctly been identified.
The trial judge expressly took into account and referred to the applicant’s perception of the circumstances:
“[206] However, I am conscious that it is the [applicant’s] perception of the circumstances which I must consider, not anyone else’s, including Bryce Gregory’s. In considering the [applicant’s] perception of the circumstances I take into account that he had not slept well and had been troubled by bad dreams and traumatic memories in the night before the early hours of the morning on which this event occurred.
…
[208] Michael Haynes was approaching the [applicant] with a brick in his hand, in close proximity, although he had repeatedly told the [applicant] to go away and leave him alone. I accept that calm reflection was not available to the [applicant] in those circumstances.”
“[195] I am satisfied that Bryce Gregory told the [applicant], who had told him that he was at McDonald’s, to stay there and he would come and collect him. I do not accept the [applicant’s] evidence that Mr Gregory said that to him later when he was further along Popondetta Road, although even if he had said that there, there was no reason why the [applicant] could not have stopped there and waited for Mr Gregory. Why did he not wait for Mr Gregory to come and collect him but instead follow Michael Haynes? Because he was intent on following Michael Haynes to recover the $50 he had lost.
[196] Mr Gregory said the [applicant] told him in the phone call that a man he had met at the service station had set him up to lose $50. The [applicant] denied that he held Mr Haynes responsible for having set up the stealing of his money; he said that he said Mr Haynes had set up the deal, that is the supply of cannabis. I do not accept that evidence from him, and furthermore his conduct at the scene was inconsistent with it, including his asking Mr Haynes in McDonald’s to show him his phone, in response to the [applicant’s] belief that Mr Haynes was involved in setting him up to have his money stolen, and by his constant demands of Mr Haynes for his money along Popondetta Road, overhead in the phone call with Mr Gregory and continued after Mr Haynes was struck and lying on the ground. It is clear from the [applicant’s] words and conduct at McDonald’s and along Popondetta Road that he was aggrieved about having lost his $50, was intent on recovering it, held Mr Haynes at least partly responsible for his money having been stolen, and was focused on Mr Haynes assisting him to recover his money in some way.
…
[215] The [applicant] could have left at McDonald’s. He could have gone home ruing a bad night. He could have waited at McDonald’s for Mr Gregory to arrive. He could have left at any time along Popondetta Road. He could have left once Mr Gregory arrived in his car. He did none of those things. He followed Mr Haynes deliberately. He was intent on recovering his money from Mr Haynes, as his repeated reference to his money in speaking with Mr Haynes demonstrates. His evidence that he worked hard and ‘Like, the whole, whole thing was just not worth it. Like, I just wanted to go up the road and get on and go home. Like, I was having my day off’ indicates he was self-focused and intent on recovering his money, he had a grievance that he had lost his money and he directed that grievance at Mr Haynes. His still demanding his money when Mr Haynes was lying on the ground is evidence of his angry, aggrieved state of mind.
…
[217] He had the means to escape, and knew he had the means to escape, but he stayed. He took hold of his knife and with it in his hand swung in the motion described, intending to stab and cause grievous bodily harm. He did so because of his anger towards Mr Haynes because he held Mr Haynes responsible for his having been robbed of $50 he had worked hard for.
[218] The Crown has proved beyond reasonable doubt that the [applicant] did not believe stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes wielding a brick. His conduct and statements, including his persistent pursuit of his $50 from Mr Haynes beforehand and his still demanding his money back after he had stabbed Mr Haynes, satisfies me beyond reasonable doubt he stabbed Mr Haynes in anger and not because he believed it was necessary to do so to defend himself from Mr Haynes in the circumstances. I am satisfied the circumstances as the [applicant] perceived them, even in his sleep deprived state, included Mr Haynes wielding a brick, Mr Haynes having told him repeatedly to leave, Mr Haynes having told Bryce Gregory to leave and most significantly his grievance towards Mr Haynes for his $50 having been taken.”
Fourthly, the trial judge’s reasons clearly revealed her Honour’s reasoning process for concluding that the prosecution had proved beyond reasonable doubt that the applicant did not believe that it was necessary to stab the deceased to defend himself. The applicant’s predominant mindset was anger towards the deceased. The applicant’s post-offence conduct was not consistent with believing that he was simply “involved in a fight”, or that the deceased was actually physically threatening him.
Fifthly, there was debate about the meaning of [218] of the verdict judgment, which provided (as set out above):
“[218] The Crown has proved beyond reasonable doubt that the [applicant] did not believe stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes wielding a brick. His conduct and statements, including his persistent pursuit of his $50 from Mr Haynes beforehand and his still demanding his money back after he had stabbed Mr Haynes, satisfies me beyond reasonable doubt he stabbed Mr Haynes in anger and not because he believed it was necessary to do so to defend himself from Mr Haynes in the circumstances. I am satisfied the circumstances as the [applicant] perceived them, even in his sleep deprived state, included Mr Haynes wielding a brick, Mr Haynes having told him repeatedly to leave, Mr Haynes having told Bryce Gregory to leave and most significantly his grievance towards Mr Haynes for his $50 having been taken.”
The applicant submitted that the word “included” in the last sentence introduced a non-exhaustive list. I reject that submission. Her Honour, in context, was explaining that she was satisfied that the perceived circumstances encompassed those identified by the applicant as favourable to his case, but that the Crown had nevertheless proved beyond reasonable doubt that the applicant did not believe that stabbing Mr Haynes in the neck was necessary to defend himself from Mr Haynes.
I would grant leave to appeal but dismiss ground 2.
For the foregoing reasons I propose the following orders:
Time to file the notice of appeal extended to 22 April 2026.
Leave to appeal against conviction granted.
Appeal dismissed.
McNAUGHTON J: I have had the advantage of reading the draft judgment of Payne JA. Having carefully considered the trial record including having viewed the CCTV footage, my independent conclusions about the evidence accord with those of Payne JA. For the reasons set out by Payne JA, I agree with the orders proposed by his Honour.
MUSTON J: I too have had the advantage of reading in draft the judgment of Payne JA. I have also made my own independent assessment of the evidence. Having done so, I am satisfied, for reasons which align with those given by his Honour, that the Crown’s case was established beyond reasonable doubt. I otherwise agree with the orders proposed by Payne JA and with his Honour’s reasons.
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Vujica
R
[2023] NSWSC 1241
(2020) 267 CLR 654
(2022) 274 CLR 651
(1998) 197 CLR 250
(1994) 181 CLR 487
(2016) 258 CLR 308
(2007) 228 CLR 618
(2011) 243 CLR 400
(2015) 256 CLR 47