Australia: Man cuts off finger of neighbour – was he guilty of recklessly inflicting grievous bodily harm? Which case won?

The Facts

Festering hostility between neighbours culminates in confrontation

On a balmy afternoon on new year's eve, in one of Sydney's most exclusive suburbs, well away from the anticipated rowdiness of the city, down a very long concrete driveway that leads to his battle-axe block home, an elderly man is clipping the shrubbery that divides the driveway from the home that fronts the street.

Inside that home, an equally elderly couple are going about dinner preparations in different areas of the house, having had a couple of glasses of wine as they recalled significant events of the passing year. Upstairs, with a view of the driveway and hedge, is an adult son, just about to start a computer game.

A few minutes later the woman in the house has lost a finger and police are called en masse to the address.

Forensic police gather evidence and man charged at police station

The neighbour is still clipping the hedge and all manner of neighbours, alerted by the victims' screams, have arrived to see what is going on. Yet nobody has seen what happened except the victim and the alleged assailant / hedge clipper.

The driveway is liberally spattered in blood, forensic police take over the scene and the neighbour ("Mr SML") is on the driveway, face down, handcuffed from behind, also spattered in blood, and protesting his innocence.

Man gives video statement to police through interpreter

Mr SML is taken to the police station and allowed to call the Legal Aid hotline, as he knows no solicitors. They advise him not to make a statement to police at that stage. He considers this and, as often happens, decides he would like to do so anyway, on video, with an interpreter assisting his broken English replies.

During that interview, Mr SML is shown the horrific photos of the injuries to the woman's hand, the bloodstained scene, his own blood-spattered clothing, face and hands, and the offending heavy-duty hedge clippers. Mr SML gives a detailed version of events in the electronic interview, which extends to over 66 pages of transcripts plus 16 pages of exhibit photos.

He is charged with recklessly inflicting grievous bodily harm ( section 35(2) of the Crimes Act NSW 1900). He is photographed, fingerprinted and DNA samples are taken. He is granted bail and released just after midnight.

Man engages lawyers to represent him and pleads not guilty

The media were on the scene on the night of the incident and have followed up relentlessly (slow news period, perhaps). As in the police interview, he has been fulsome in his comments to them, especially stressing that he is the victim. As the first court date approaches, Mr SML realises the significance of the charges and retains a lawyer to act on his behalf.

On the first court date he enters a plea of "not guilty" and the magistrate makes Brief Service Orders. Four weeks later the compendious brief is served and the matter is set for a three day hearing.

Both parties agreed there was a history of disagreement between them regarding the hedge. The victim, her husband and her son had been drinking lightly immediately before the incident.

The issue is whether Mr SML did, recklessly, inflict grievous bodily harm on his neighbour. The charge carries a maximum sentence of two years in the Local Court.

case a - The case for the prosecution

case b - The case for the defence

  • Mr SML used the hedge clippers recklessly.
  • He lunged at his neighbour when she was pointing to an area around hip height to indicate where she believed he should not trim.
  • He cut his neighbour when she was in his line of sight, deliberately inflicting grievous bodily harm on her.
  • I was reaching down to ground level with the hedge clippers when my neighbour came onto my property and confronted me.
  • I was bending forward and didn't see my neighbour's hand.
  • My neighbour suffered an injury because she attempted to grab the hedge clippers to stop me from pruning the hedge.

So, which case won?
Cast your judgment below to find out

Vote case A – The case for the prosecution
Vote case B – The case for the defence

John Gooley
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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