Barnes v R

1. [1]

   ADAMSON JA: On 13 April 2022, Kurt Barnes (the applicant) was found guilty by a jury over which N Williams DCJ (the trial judge) presided of causing grievous bodily harm to Manish Chauhan (the victim) with intent to cause grievous bodily harm (count 1). The alternative charge of causing grievous bodily harm to the victim being reckless as to causing actual bodily harm to him did not arise (count 2). The applicant was also charged with and convicted of assaulting Pradeep Manoharan and occasioning actual bodily harm to him (count 3).

2. [2]

   The circumstances of the offence charged as count 1 are established by CCTV footage of platforms 3 and 4 at the Clyde railway station, as well as the evidence of eye-witnesses who were present at that location at the time. The effect of the evidence (which is addressed in more detail below) was that the applicant, without the slightest provocation, punched the victim multiple times to the head, in circumstances where the victim took no retaliatory or defensive action against him. The victim lost consciousness and fell backwards onto the platform, suffering grievous bodily harm.

3. [3]

   The applicant seeks leave to appeal against his conviction on count 1 on the single ground that the verdict of guilty of wounding with intent to cause grievous bodily harm was unreasonable because it was not open to the jury to be satisfied beyond reasonable doubt that he intended to cause grievous bodily harm. He does not challenge the conviction on count 3. Mr Woods, who appeared on his behalf, accepted that, if the ground were made out, this Court would find the applicant guilty of count 2 and proceed to re-sentence him accordingly. Re-sentence would be required as the maximum penalty for count 1 is 25 years’ imprisonment, with a standard non-parole period of 7 years (s 33(1)(b) of the Crimes Act 1900 (NSW)); whereas the maximum penalty for count 2, the alternative charge, is 10 years’ imprisonment with a standard non-parole period of 4 years (s 35(2) of the Crimes Act).

4. [4]

   As the appeal was filed out of time, an extension of time is required. As I consider the appeal to be without merit, I am not persuaded that an extension of time ought be granted. My reasons for proposing that the application for extension of time be refused are as follows.

5. [5]

   Mr Woods, who appeared for the applicant, made various concessions, including the following:

   1. (1)

      the applicant in fact caused grievous bodily harm when he punched the victim in the head on more than one occasion (having thrown multiple punches at his head, some of which connected);

   2. (2)

      it was open to the jury to find that at least one of the punches had caused the victim to lose consciousness and fall backwards onto his head on the platform;

   3. (3)

      it was open to the jury to find that the victim had his arms by his side while the applicant was punching his head; and

   4. (4)

      an intent to cause grievous bodily harm can, in some cases, be inferred from an assault in the absence of a weapon and by the use of an accused’s fists alone.

6. [6]

   It is difficult to comprehend, having regard to the concessions made by Mr Woods (each of which was sensibly made), how the ground of appeal is even arguable. Mr Woods sought to defend the ground by contending that not every man who punches another man in the head and kills him is guilty of murder. He submitted that, if the act of punching another in the head was, of itself sufficient to entitle a jury to find intention to cause grievous bodily harm, this would not be the case. Generalities are rarely helpful in this area and are particularly unhelpful when the hypothetical proposed bears little relation to the actual evidence in the trial, which must be assessed for the purposes of addressing the proposed ground (the strength of which bears on whether an extension of time ought be granted).

7. [7]

   It is necessary for this Court to review the evidence identified by the parties as germane to the issue identified by the applicant: ZT v The King (2025) 281 CLR 137; [2025] HCA 9 at [11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). The sole issue is whether it was open to the jury to find that the applicant intended to cause the victim grievous bodily harm, at the time of the assault alleged in count 1.

8. [8]

   The relevant principles are well established. It is for this Court to determine whether it was “open” to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). This Court must make its own independent assessment of the evidence. The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

9. [9]

   The evidence in the prosecution case, which was open to be accepted by the jury is summarised below. It derives from:

   1. (1)

      evidence of CCTV footage taken at Rosehill and Clyde railway stations and the Commercial Hotel in Parramatta;

   2. (2)

      evidence of prosecution witnesses:

   3. (3)

      admissions made by the applicant in his Electronically Recorded Interview with a Suspected Person (ERISP) which took place on 4 December 2018.

10. [10]

    On 1 December 2018, the applicant and his girlfriend, Jessie McLean, attended a function at Rosehill racecourse associated with her work. They arrived at about midday or 1pm and stayed for about five hours. They both consumed alcohol there. The applicant estimated that he had consumed about five “beers” and had not eaten all day and that Ms McLean had drunk “maybe four glasses of wine”. As the applicant was leaving, an “obviously attractive lady” came up to him and asked him for a cigarette lighter, which he gave her. Ms McLean saw this happen and started “yelling” at the applicant.

11. [11]

    At 5.31pm, the applicant and Ms McLean boarded a train at Rosehill railway station which was travelling in the direction of Clyde (Ex 4, 3.41-4.00).

12. [12]

    Ms McLean was so “obviously emotional [and] upset” that they travelled on the train from Rosehill to Clyde in different carriages. The applicant explained that he actually left her in one carriage to “cool off” and told her to “[c]alm down”. When they got to Clyde, the applicant told her that they had reached their stop but they otherwise separated when they left the train.

13. [13]

    At about 5pm, the victim, Mr Manoharan, Mr Arunthavanathan and Mr Banerjee met at the Commercial Hotel in Parramatta. They left the hotel between 5.17pm and 5.30pm and went to the Rosehill railway station where they boarded a train bound for Clyde station where they intended to change trains to go to the city.

14. [14]

    Anuradha Mehra, who was also a passenger on the train from Rosehill to Clyde, saw the applicant and Ms McLean walking through the carriage. Ms McLean, who was “swaying and not very stable” was shouting abuse at the applicant. Ms Mehra got off the train at Clyde, as did the applicant and Ms McLean.

15. [15]

    When Mr Banerjee got on the train at Rosehill with his three friends, he noticed a woman (Ms McLean) sitting on the “handicap seat” in the carriage. He gave evidence that she was “saying things that didn’t make sense and her body language wasn’t right”. He found her behaviour “quite shocking” and exchanged glances with others when she left the carriage. When the train arrived at Clyde railway station, the victim and his three friends alighted from the train. Three of the four used the restroom on platform 1 while Mr Banerjee waited outside. When they emerged from the restroom, the four of them went to platform 4 to wait for a train to take them to the city.

16. [16]

    As they were going up the stairs from platform 1 to platform 4, Ms McLean followed them and called out to them, saying, “Do you have the balls to fuck my pussy?” and “You guys have pencil dicks”. The four men chose not to respond. Mr Banerjee explained:

17. [17]

    Mr Banerjee sat next to other commuters while his three friends stood near him.

18. [18]

    Matthew Carey, who had also been on the train from Rosehill to Clyde, observed a woman on the train who “was wearing a tight-fitting skirt and long … brown hair with dreadlocks [who] had a small black bag and very tall heels”. He recognised her at Clyde railway station. Mr Carey described the victim and his friends as remaining “incredibly quiet” when she interacted with them. He inferred that they “didn’t want any part of it” because he heard one of the group say, “We don’t, you know, want any of this”.

19. [19]

    As Ms McLean walked onto the platform, she kept yelling at the victim and his friends. It was Mr Banerjee’s impression that Ms McLean was looking for someone she knew on the platform. She approached the applicant, who was sitting facing platform 3 and said, “Hey, what are you looking at?” and “What are you going to do about it?”. She pointed towards the victim and his three friends before she “started charging towards [them]”. She then “frantically started … using her hands to slap … all of [them]”. Mr Banerjee raised his palms, which were open and facing forward at head height to protect his head from being slapped. He said that Mr Arunthavanathan eventually did “push her back … in self defence”. Other witnesses gave evidence to the same effect.

20. [20]

    One witness, Njegos Veljovic, who was standing on platform 5 (across the tracks from platform 4) heard a woman (Ms McLean) say loudly, “[s]ay it to my face if you have guts.” Mr Veljovic saw the woman slap or hit at least one of the men on the head and saw that the men put their hands up to their faces to protect their heads. He heard one of the men telling her that they were not talking about her or to her.

21. [21]

    The CCTV footage showed the applicant approach the group. Mr Banerjee said that “all of a sudden, [he] hear[d] this man screaming saying that, “She is my girlfriend”, or “She is … my wife”. Mr Manoharan gave evidence that the applicant told him to “stop touching [his] girlfriend”. Mr Manoharan put his hands up with his palms facing forwards at about face level to indicate that he “didn’t do any harm to this lady”. The applicant punched him and he fell onto the platform (possibly because he lost his balance after the blow glanced his glasses). This assault resulted in a conviction on count 3, which was not challenged on appeal.

22. [22]

    The CCTV footage depicted Mr Arunthavanathan putting his hands up in an apparently defensive fashion before running away from the applicant in the direction of platform 3.

23. [23]

    It was open to the jury to find the following, from the CCTV footage and the evidence of witnesses. The applicant approached the victim and threw a punch with his left hand which appeared (from the CCTV footage) to connect with the right side of the victim’s head. The victim’s arms were by his side. Ms McLean then approached the victim on his left side and slapped the left side of his head with her right hand. The victim turned towards her. His hands were raised in a defensive way. While he was facing Ms McLean, the applicant approached the victim on his right side and punched him again with his left hand, which connected with the right side of his head. The applicant positioned himself to face the victim, whose arms were lowered although his right hand was slightly extended in the applicant’s direction. The applicant punched the right side of the victim’s head again, using his left hand. This caused the victim’s body to move, apparently from the force of the punch. Almost straight away, the applicant punched the complaint’s head with his right hand. The force of the punch caused the complainant’s head to swing backwards. The victim’s body appeared to be lifeless as he fell to the platform.

24. [24]

    Mr Woods accepted that it was open to the jury to find that the victim had lost consciousness as a result of the last punch or the cumulative effect of more than one punch, before he fell to the ground, hitting the back of his head on the platform. There is some indication that the applicant threw another punch at the victim with his left hand.

25. [25]

    Several eye-witnesses gave evidence about the number and force of the punches thrown by the applicant at the victim’s head, including Anthony Kresa, who said that he had “seen plenty of boxing fights and UFC [Ultimate Fighting Championship]”. Mr Kresa considered that the victim was unconscious when he fell as “no one falls like that consciously”.

26. [26]

    Mr Banerjee said of the series of punches inflicted by the applicant to the victim’s head after the applicant punched Mr Manoharan, who fell to the ground:

27. [27]

    Mr Banerjee described the punches as “brutally [sic] closed fist punches”. Mr Kresa heard the applicant say, after punching the victim, “you won’t say that to my girlfriend again”.

28. [28]

    The applicant then led Ms McLean away and they left the station. One witness, Lee Barnard, called after the applicant saying, “You got to stop. You could have killed that guy”.

29. [29]

    The harm to the victim was accepted to amount to grievous bodily harm. The victim required significant surgery, was hospitalised for six weeks and had a period of 32 days of post-traumatic amnesia (Agreed Facts).

30. [30]

    The applicant’s defence at trial was conducted on the basis of self-defence. He maintained in his ERISP that he believed that one of the men had assaulted Ms McLean and that he was fearful for his own sake. The applicant exercised his right to silence and did not give evidence at the trial.

Consideration

1. [31]

   Mr Woods accepted that it was open to the jury to find the following:

   1. (1)

      the applicant had thrown multiple punches at the victim although it was not clear from the CCTV footage precisely how many of those punches actually connected with the victim’s head;

   2. (2)

      for the purposes of inferring the requisite intent, it was not important whether the punches connected or not;

   3. (3)

      the victim was an innocent bystander who was not responsible for any conduct which would be relevant to whether the applicant had the requisite intent;

   4. (4)

      the applicant was not acting in self defence; and

   5. (5)

      the words, “you won’t say that to my girlfriend again”, which Mr Kresa heard the applicant say to the victim who was lying, inert, on the platform, showed that the applicant was “taking ownership of what he had done, and he was pleased that he had inflicted that level of pain”.

2. [32]

   Mr Woods submitted that it was significant that the applicant had drunk five beers over five hours, had not eaten and had just had a fight with his girlfriend. Mr Woods accepted that it was open to the jury to find that the applicant had assaulted the victim in the presence of Ms McLean to prove his manliness and commitment to her and that there “may have been an attempt on his part simply to knock this man to the floor and to achieve a feeling of dominance over him … [and] to throw his weight around to demonstrate that he was protecting Ms McLean, and he may have wanted to knock the victim over.”

3. [33]

   Mr Woods submitted that what the applicant had said to the victim immediately after the assault (“you won’t say that to my girlfriend again”) could not be used to infer intent at the time of the assault and that, even if the words spoken by the applicant could be construed as vindictive, they were insufficient to prove what his intent was beforehand. In substance, Mr Woods submitted that it was not open to the jury to infer intent to cause grievous bodily harm from the applicant’s acts in the circumstances established by the evidence.

4. [34]

   I consider that, having regard to the evidence as a whole, and particularly the actions of the applicant which are summarised in [23] above, when taken with the concessions identified in [31] above, it was open to the jury to find that the applicant intended to cause the victim grievous bodily harm. The applicant’s statement (discussed below) strongly supported that inference, which was, in my view, plainly open even without the statement.

5. [35]

   The evidence showed that the applicant’s consumption of alcohol equated to about one beer per hour for five hours. There was no evidence to suggest that he was intoxicated at the time of the assaults. The applicant did not raise intoxication at trial as amounting to a reason why he did not form the intent to cause grievous bodily harm. In these circumstances, I do not consider intoxication to be relevant.

6. [36]

   The present case does not turn on credibility of witnesses since the observations of witnesses were to similar effect and were largely borne out by what was able to be detected on CCTV footage. The surrounding circumstances showed that each of the concessions made by Mr Woods was well made.

7. [37]

   I reject the submission that the jury was not entitled to take into account the applicant’s statement to the victim (who, being unconscious, could neither hear, nor understand it) that the victim would not say “that” to his girlfriend again. The statement was made seconds after the last punch and formed part of the surrounding circumstances. As it was a statement adverse to the applicant’s interests, it was capable of amounting to an admission and was therefore admissible pursuant to s 81 of the Evidence Act 1995 (NSW). It was open to the jury to regard the statement as revealing that the applicant’s motive to punch the victim repeatedly was to cause the victim grievous bodily harm for the performative and vindictive purpose of demonstrating (including to Ms McLean herself) that Ms McLean was his girlfriend, that no other man should speak to her (in a particular way) and that he would act violently to punish anyone who spoke to her or was associated with anyone who had spoken to her or who might have spoken to her.

Whether time ought be extended to file the notice of appeal

1. [38]

   The need for an extension of time was occasioned by the fact that there was a delay in briefing counsel to advise on the appeal due to matters outside the applicant’s control. A merit advice for the purposes of a Legal Aid application was received on 30 November 2024 (from which it can be assumed that counsel briefed advised that there was no merit in an appeal). The applicant then sought a second opinion from private counsel in late March 2025. The advice was received on 27 July 2025 and the appeal filed on 31 July 2025.

2. [39]

   It was common ground that, if the appeal had merit, time ought be extended. As referred to above, the appeal lacks merit. Time to file the notice of appeal out of time ought not be extended. Accordingly, the question of leave to appeal does not arise.

3. [40]

   While the question whether an argument is worth putting can be a difficult one, it is important that counsel do not, by advising that an appeal has prospects when it has none, give false hope to those who are imprisoned that this Court might abbreviate the period of their incarceration.

Proposed order

1. [41]

   I propose the following order:

   1. (1)

      Refuse an extension of time for leave to appeal.

2. [42]

   CHEN J: In my view, having reviewed the evidence at trial and what was conceded by the applicant on appeal as being open to accept by the jury, as set out by Adamson JA, there was an abundance of evidence available upon which a jury could, in relation to count 1, infer and find to the required standard that the applicant had the requisite intent to cause grievous bodily harm to the victim. It follows, given the narrow issue raised by the applicant’s proposed ground of appeal, that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. I agree with the order proposed by Adamson JA.

3. [43]

   R A HULME AJ: The analysis described in the judgment of Adamson JA accords with my own. I agree with the order proposed.