R v Holmes (No 3)

1. [1]

   HIS HONOUR I circulated a draft of my proposed written directions for the jury to counsel last week. After legal argument on 17 February 2020, most of the issues raised by counsel were resolved by consent and changes which will adequately appear from the transcript of proceedings for that day were incorporated into my draft. Two issues remained concerning a general direction as to lies propounded by the Crown and the questions of whether excessive self-defence should be left to the jury in circumstances were the accused has pleaded not guilty to murder, but guilty to manslaughter. He has adhered to that latter plea throughout.

2. [2]

   After consideration overnight I pronounced the following rulings on the morning of 18 February 2020:

   1. (1)

      I propose to give the jury a general direction as to lies, but not lies as consciousness of guilt. That general direction will be related specifically to the exchange between Mr Wood and Mr Holmes after the event relied upon by the prosecution.

   2. (2)

      I do not regard Mr Holmes account on the ERISP as providing an evidential foundation for leaving excessive self-defence to the jury. I am of the view that there is nothing in the evidence generally to suggest that Mr Holmes assaulted Mr Hadden on the foreshore because he believed it was necessary to do so to defend himself. I note that the case has been conducted on the common ground that the plea of guilty to manslaughter forecloses any consideration of self-defence as a complete defence.

Directions as to lies

1. [3]

   The evidence relied upon as constituting a lie arises out of the evidence of a Mr Wood, an eyewitness to some of the events on the foreshore. After witnessing blows delivered by Mr Holmes to Mr Hadden who was then prostrate on the foreshore walk at Newcastle Harbour, Mr Wood followed Mr Holmes to the vicinity of the Harrys Café De Wheels trailer on the southern side of Wharf Road. He said he had the following exchange with Mr Holmes when he caught up to him (339.36T):

2. [4]

   Mr Kristenthal of Counsel cross-examined Mr Wood to suggest that his evidence about that exchange was mistaken. It was put that Mr Holmes had denied “nearly killing” Mr Hadden and that he had never said, “That wasn’t me” (346.9 - .35T).

3. [5]

   I should say that Mr Holmes dealt with this topic more than once in his Electronic Recording of Interview with a Suspected Person, which has been admitted into evidence as Exhibit L. I interpolate that his account is not always easy to follow because when compared with undisputed evidence it is apparently out of sequence. But at question 235 Mr Holmes said that a person, obviously Mr Wood approached him and said:

4. [6]

   There’s clearly an issue of fact for the jury to resolve about whether in the immediate aftermath of the assault on Mr Hadden from the effects of which he eventually died, Mr Holmes denied being the assailant. If the jury are satisfied that he did then the Crown wish to argue that this was a lie, which the jury are entitled to take into account in conjunction with the other evidence when considering whether they are persuaded beyond reasonable doubt that when he assaulted Mr Hadden he did so with the necessary requisite specific intent of inflicting really serious bodily injury upon him.

5. [7]

   In Edwards v The Queen (1993) 178 CLR 193 at p 205 Brennan J (as the Chief Justice then was) pointed out that lies told by an accused may be admitted at a trial for various purposes. They may merely go to credit, they may be relied upon as “a confession of guilt” when certain conditions are satisfied, and:

6. [8]

   The plurality in Edwards v the Queen said at (p 210 – 211):

7. [9]

   The plurality in Zoneff at [21] did not regard the impugned cross examination about lies as being material “capable of being regarded as a lie stemming from a consciousness of guilt” which, as I understand it, would fall into Brennan J’s second category, which is also the focus of the quoted passage from the judgment of the plurality in Edwards v The Queen. About a case not involving lies as an implied admission, their Honours said at [23]:

8. [10]

   It may be that this formulation is at least in part derived from the opinion of the Judicial Committee of the Privy Council (Lord Devlin) in Broadhurst v The Queen [1964] AC 441 at p 457 (see Zoneff at [57] per Kirby J; and Edwards at p 205 per Brennan J).

9. [11]

   In Broadhurst v The Queen, Lord Devlin said:

10. [12]

    It seems to me that the use sought to be made by the prosecution of the asserted lie in this case, falling as it does into Brennan J’s third category, is permissible and would be adequately covered by a direction which picked up aspects of Lord Devlin’s formulation and the formulation of the plurality in Zoneff. I have attempted to capture these elements in the direction contained in paragraphs [31] to [36] of the fourth draft of my Written Direction No 2.

Excessive self-defence

1. [13]

   It is well established in murder cases that an accused person has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given: Bullard v The Queen (1957) AC 635 at 644. In Australian cases the question may revolve around an inquiry as to whether there is any viable case of manslaughter to be left for the jury’s consideration. In James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [19] French CJ , Hayne, Crennan, Kiefel, Bell and Keane JJ said:

2. [14]

   In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, when dealing with the proposition in a circumstantial case that a jury cannot be satisfied beyond reasonable doubt of the guilt of the accused unless his guilt is the only rational inference that the circumstances would enable them to draw, arising out of Barca v The Queen (1975) 133 CLR 82 at 104, the High Court pointed out (at [47]) that for an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”: Peacock v The King (1911) 13 CLR 619 at 661. Their Honours also emphasised that the duty is a “duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused” (my emphasis). (Citing Pemble v The Queen (1971) 124 CLR 107 at 118).

3. [15]

   I am not satisfied that there is any basis in the evidence that would enable me to leave a defence of excessive self-defence to the jury. As I have said Mr Holmes has pleaded not guilty of murder, but guilty of the manslaughter of Mr Hadden. That plea has not been withdrawn. It is clear from the way that the trial has been conducted that the substantial issue relates to the mental element of the offence of murder. Mr Holmes’ case is that the Crown cannot prove beyond reasonable doubt that he when he struck the blow from which Mr Hadden eventually died, he had the requisite intent of causing really serious bodily injury. Mr Kristental of Counsel has not only disavowed any intention of putting excessive self-defence to the jury as a basis for acquitting Mr Holmes of murder, but also has been unable to point to any evidence which would engage my duty to leave the question of manslaughter to the jury on that basis. So far the jury have been told that if they find Mr Holmes not guilty of murder he will be sentenced for manslaughter.

4. [16]

   The evidence at the trial consists of evidence about a scuffle in the brewery where Mr Holmes and Mr Hadden were drinking together not long before the fatal encounter. There is also evidence of eyewitnesses of events at the conclusion of the fatal encounter. However, this evidence is of persons whose attention was drawn to the events by the sound of a thud or a crack when, apparently, Mr Hadden was knocked down and his head struck the concrete pavement. The only account about how that came about is that account provided by Mr Holmes in the ERISP.

5. [17]

   The account given by Mr Holmes is entirely inconsistent with the case that he delivered the punch that knocked Mr Hadden to the ground because he believed that that was necessary in the circumstances as he perceived them to defend himself from Mr Hadden. (Exhibit VD3).

6. [18]

   After the scuffle in the brewery Mr Holmes and Mr Hadden were ejected separately and sent in different directions. Mr Holmes’s account (it’s not disputed) is that subsequently Mr Hadden approached him. He was asked about the circumstances in which he punched Mr Hadden in the face, he gave this account at Q 301 (omitting the interjected questions).

7. [19]

   He also said at Q 510:

8. [20]

   When asked whether he thought Mr Hadden was capable of carrying out the threat (Q522). He said:

9. [21]

   When asked about his intention when he punched Mr Hadden (Q520), he said:

10. [22]

    In my opinion this account does not lay an evidential foundation for a viable case of excessive self-defence.