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[2012] NSWSC 1161
Supreme Court of NSW
2012-09-19
Campbell J, King J
Original judgment source is linked above.
ex tempore Judgment 1Mr Waterstreet has made two applications; the first is for a verdict by direction, and the second is for a ruling from me that the Crown case as it relates to manslaughter be left to the jury on the basis that the act of the accused founding the charge is a punch only, and no other form of striking such as pushing or forcibly releasing the deceased from a grapple. I should note that Mr Waterstreet has already flagged that he may make an application under s24 of the Crimes Act 1900 (NSW) at the conclusion of the evidence. I am not dealing with that now. 2I am against Mr Waterstreet on the verdict by direction application, but I am with him in relation to the basis upon which the Crown case may be left to the jury.
Application for a verdict by direction 3It seems to me there are two difficulties with the application for a verdict by direction; the first is it's timing; and the second is its substance. As has been recounted elsewhere, Mr Waterstreet applied for a Prasad direction at the close of the Crown case, which application I acceded to. It seems inherent to me in such an application that there is an acknowledgement that the Crown case is legally sufficient to be considered by the jury; indeed, so much was said by Chief Justice King in R v Prasad (1979) 23 SASR 161 at 162: The question whether there is a case to answer, which arises in a criminal trial at the close of the case for the prosecution, is a question whether on the evidence as it stands the accused could lawfully be convicted, that is to say, whether there is evidence with respect to every element of the offence charged which, if accepted, would prove that element. 4The learned Chief Justice referred to the familiar cases of May v. O'Sullivan (1955) 92 CLR 654 and Zanetti v. Hill (1962) 108 CLR 433. His Honour (at page 163) distinguished between that legal consideration and what has become known as the Prasad direction. The essence of the Prasad direction is to give the jury the opportunity to consider for themselves whether, at a factual level, the Crown evidence is sufficient to justify a conviction beyond reasonable doubt. His Honour pointed out that a verdict by direction is quite another matter. He said that where there is evidence which if accepted, is capable at law of proving the charge, a direction to bring in a verdict of not guilty would be a usurpation of the rights and functions of the jury. 5R v Pahuja (1987) 49 SASR 191 is another South Australian case dealing with the Prasad direction. In that case Chief Justice King said this at page 201: ...when the judge is of opinion that the evidence for the prosecution, although capable of law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty [a Prasad direction may be given]. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. By that last statement it seems to me that his Honour had in mind that once the party goes into evidence it is inappropriate that there be a verdict by direction until the evidence is closed, given that once a party has commenced to give evidence, the prosecution is entitled to cross-examine in an attempt to elicit evidence that will strengthen its own case. 6This seems to me to be the basis for the rule familiar in civil cases that, in cases involving multiple defendants, no non-suit or verdict by direction can be given at the close of a plaintiff's case until all defendants have closed their cases: Wickstead v. Browne (1992) 30 NSWLR 1. 7In any event it seems to me that there is ample evidence, which, if accepted by the jury, and I acknowledge that reliability of the testimony of some of the witnesses is a live issue in the case, would justify a verdict adverse to the accused on both counts. 8I need not multiply examples, but the evidence of Mr Willis justifies, if the jury accept it, the case of assault against Mr Poile, notwithstanding the Crown's disavowal of Mr Poile as a reliable witness. 9So far as the much more serious charge of manslaughter is concerned, the evidence of both Mr Moody and Mr Miller justifies, if accepted, on the basis of the evidence elicited by the learned Crown Prosecutor pursuant to s38, a finding that it was a punch by the accused that caused the deceased to fall and strike his head heavily on the pavement. 10According to the expert evidence of Dr Wills, the heavy contact between the deceased's head and the pavement caused the severe traumatic brain injury from which Mr McLeod subsequently died. 11It seems to me that there can be no serious question that a punch is legally capable of being viewed by the jury as an unlawful and dangerous act for the purpose of the common law test laid down by the High Court in Wilson v. the Queen (1992) 174 CLR 313, relating to this form of manslaughter. 12I understand of course that there is a strong argument here of self-defence and that the Crown carry the onus of eliminating that consideration beyond reasonable doubt. The evidence which is capable, if accepted by the jury, of discharging that onus goes back as far as what happened in the mall. The evidence of Mr Willis and of some of hotel employees puts the accused in the position of aggressor. If that evidence were accepted by the jury, it would not only persuade them that the punch on Mr Poile was not in self-defence, but also would tend to prove that, in the circumstances occurring in the carpark, Mr Ryan was the one who took the opportunity to rekindle the animosity that had developed in the mall between him, on the one hand, and Mr McLeod and Mr Poile on the other. Moreover, if one accepted the evidence of Mr Moody in his recorded interview, and also the evidence adduced from Mr Miller in cross-examination by reference to his earlier police statement, one would come to the conclusion that Mr Ryan was acting as the aggressor. 13It is not relevant for me to consider whether that is a likely outcome at this stage, nor is it necessary for me at this stage, in any way, shape or form to weigh and assess the strength of the Crown case. It is sufficient that those observations I have made are firmly founded in the evidence that has been heard by the jury. 14In my view, bearing in mind what Chief Justice King said, were I at this stage to direct the jury to return a verdict of not guilty I would be usurping their proper function. The function of the jury in deciding all questions of fact in the trial of serious criminal cases is not only fundamental to the common law, but it is often said to be of high significance in a general constitutional setting. Members of the community are not convicted of serious crimes other than on the judgment of their peers.
The Crown case 15I turn, then, to the question of the basis upon which the Crown case may be left to the jury. Twice in recent times the High Court of Australia has reflected upon the impact on a fair trial of permitting the prosecution to change the basis upon which the case is brought. Those cases are Patel v. the Queen [2012] HCA 29 and Burns v. the Queen [2012] HCA 35. It is a matter of interest that Burns v. the Queen was a case of manslaughter by unlawful and dangerous act. Both were manslaughter cases. 16In Kirk v Industrial Court (NSW) (2010) 239 CLR 531, five Justices of the High Court at page 557 paragraph 26 said: The common law requires that the defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge (emphasis added) 17Their Honours discussed the origin of the rule and referred to the earlier decision of High Court of Australia in a case that the learned Crown Prosecutor drew to my attention, Johnson v Miller (1937) 59 CLR 467. In that case Dixon J, as his Honour then was, considered at 486 that an information must specify, the time, place and manner of the defendants' acts or omissions (emphasis added). McTiernan J at page 501 referred to the requirements of fair information and reasonable particularity as to the nature of the offence charged. 18In Kirk, the members of the plurality referred to the provisions of s11 of the Criminal Procedure Act 1986 (NSW), which deals, in particular, with statutory offences. The Justices pointed out that in Smith v Moody [1903] 1 KB 56 it was held that provisions like s11 did not dispense with the common law rule. 19Mr Waterstreet referred me to R v Mai & Anor (1992) 26 NSWLR 371 where Hunt CJ at CL, presiding in the Court of Criminal Appeal, at 377 and 378 referred to Johnson v Miller and like cases and cited, with approval, the following passage from Archibald's Pleading and Evidence in Criminal Cases, 14th edition, (1859): All the ingredients of the offence with which the defendant is charged, the facts, circumstances and intent constituting it, must be set forth with certainty and precision (emphasis added). The reference to setting forth is a reference to setting forth, inter alia, in an indictment; although this is no mere point of pleading, but a fundamental aspect of a common law right enjoyed by every person charged with a criminal offence. 20In opening his case the learned prosecutor at 42T.10 pointed out to the jury that it was for the Crown to prove beyond reasonable doubt the essential elements which go to make up the charge of manslaughter. 21Although at 42T.25, the learned prosecutor referred, generally, to the conduct of the accused, he said at 43T.15: Lastly, the Crown must satisfy you that the act, that is the punching, done by Mr Ryan on this occasion, was an unlawful and dangerous act. 22There was further discussion about this matter on 24 August 2012. I will not set it all out, but Mr Waterstreet properly sought, as it were, to pin the prosecution down as to the case which Mr Ryan had to meet. After some debate at page 214T.5, I asked this question: "... but the Crown case, Mr Crown, is there was one punch? CROWN PROSECUTOR: No. The Crown case is that the particulars that the Crown rely on is a punch by Mr Ryan which caused the deceased to fall backwards and dying of injury. Whether there was a punch prior to that, one would think it is a matter for the jury. The Crown has just got to particularise the transaction on which we rely and that is the punch which caused the fall..." 23It should be said that there is further context in which those statements should be understood, and that is to say, that Mr Ryan has maintained since 1 May 2011, when he was first interviewed by police, that he acted in self-defence. He also admitted, as he did in evidence before the jury on Monday 17 September 2012, that he did punch Mr McLeod. But on his evidence the punch that he delivered, done in self-defence, did not cause Mr McLeod to fall; rather, Mr Ryan's version has always been that another act, that is pushing Mr McLeod away, it seems in one way or another, is the last striking by him of Mr McLeod before Mr McLeod fell. 24It seems to me it has always been an important part of the defence case to draw this distinction between a punch and another form of striking, and that distinction explains Mr Waterstreet's insistence on having the act relied upon by the Crown particularised in clear and unequivocal terms. 25Now, I can well accept that in the circumstance of a given case that a push or an act of disentangling oneself from a grapple, could legally be capable of being a dangerous act, as that expression is understood in the common law of Australia, as I have said, by reference to the decision of the High Court in Wilson v. the Queen but that is not to the point. The point is that Mr Ryan is entitled to know at the very outset the particular act, matter or thing alleged as the foundation of the charge. This is especially so as the indictment in this case is couched in the most general terms: On 4 May 2011 at Windsor in the State of New South Wales Michael Anthony Ryan did unlawfully kill Connan McLeod in circumstances amounting to manslaughter. 26There is a reference to s18 (i)(b) of the Crimes Act. By reference to s11 of the Criminal Procedure Act, no-one says that the indictment is invalid, or in some other way insufficient to support the trial that has been conducted over the last five weeks. But in circumstances where the issues have been so clearly defined before the start of the trial, and where the indictment was couched in such general terms, I think it would be prejudicial to Mr Ryan's right to a fair trial on this charge to allow the case of the Crown to go to the jury other than on the basis that the act relied upon as unlawful and dangerous is a punch and no other form of striking. I so rule.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2012
Johnson
Miller
(1937) 59 CLR 467
(2010) 239 CLR 531
(1955) 92 CLR 654
(1992) 26 NSWLR 371
(1987) 49 SASR 191
(1979) 23 SASR 161
(1992) 174 CLR 313
(1992) 30 NSWLR 1
(1962) 108 CLR 433