//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWSC 771
procedural. The application for a directed verdict was refused (para 25).
No linked legislation citations have been extracted yet.
Carr asked the Court to stop the case from going to the jury, arguing that the evidence did not connect his alleged push to the deceased’s fatal injuries and that reasonable explanations consistent with innocence remained. The judge agreed that the Crown case had serious evidentiary difficulties, but held that the jury could still accept evidence and draw an inference consistent with guilt. Under the directed-verdict principles applied, the judge could not decide which conflicting evidence to believe or direct a verdict merely because an innocent explanation was reasonably possible. The application was therefore refused. This judgment decided only that procedural application, not whether Carr was guilty.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,104 words · generated 30/09/2026
In R v Dwayne Anthony CARR (No 3) [2011] NSWSC 771, Rothman J considered an application for a directed verdict made after the Crown closed its case. Carr was charged with manslaughter and recklessly inflicting grievous bodily harm. The judgment records that the charges arose from events at the deceased’s premises on the evening and night of 25 and 26 November 2009, where the deceased, Carr and others had been consuming alcohol and marijuana (paras 3–4).
The Crown case was that Carr forcefully pushed the deceased, causing him to strike his shoulders and then his head against a wall. Witnesses described the push as forceful, the head movement as a “whiplash”, and the sound of the impact as loud. The deceased appeared dazed and raised a hand to the back of his head. Other evidence suggested that he later shook hands and farewelled people who were leaving the gathering (paras 5–6).
The deceased was found on the kitchen floor about five hours later. At 2.33 am, a person at the premises called an ambulance; the deceased was twitching (para 7). No witness described the deceased falling during the intervening period, and the Crown case had to rely on an inference about when the fall occurred and what caused it (paras 8, 11).
The evidence about the head injuries did not provide a simple link between the alleged push and the injuries. The expert pathologist considered the injury to the crown or back of the head more likely to have resulted from a fall than from hitting the wall as described. An injury to the side of the head was not explained by either a fall backwards against a flat surface or the described impact with the wall. The expert allowed that the side injury might have resulted from a fall against a complex surface, while noting that this possibility made the proposed explanation of the other injury less likely (paras 9–10).
The judgment also sets out difficulties in the witness accounts, including inconsistency over whether one witness saw another inside the unit and uncertainty about timing due to intoxication. A separate witness said he did not see the deceased fall because he was in the toilet, then came out and found the deceased on the floor (paras 13–18).
Rothman J accepted that reasonable hypotheses consistent with innocence were available and that a guilty verdict on the Crown evidence might be unreasonable. The application nevertheless failed because the judge considered that an inference consistent with guilt remained open to the jury under the applicable directed-verdict principles (paras 20–25). The ruling did not decide guilt or innocence.
The Court distinguished the question for a judge on a directed-verdict application from the question the jury would ultimately decide. The judge’s task was not to choose between competing accounts, assess whether the Crown’s theory was the most likely explanation, or decide whether a guilty verdict would be unreasonable. The relevant inquiry was whether evidence existed on which a jury, taking the Crown case at its highest, could find guilt (paras 20–22).
Rothman J stated that the judge must consider the Crown case at its highest, including inferences that may arise from the evidence, and must leave conflicts in the evidence to the jury (para 21). This approach mattered because the evidence here could be read in competing ways. The Court identified problems with the Crown theory, including the unexplained five-hour gap, the absence of an observed fall, the medical evidence, and inconsistencies in the witnesses’ accounts (paras 8–10, 14–18). But those problems did not automatically remove the case from the jury’s consideration.
The proposed Crown inference was that the deceased fell in the kitchen shortly after hitting his head against the wall, and that the fall was caused by the push and impact (paras 11, 16). If the jury accepted Ms Stewart’s evidence in the way necessary to support that sequence, it could infer a causal connection between Carr’s conduct and the fall (para 16). The Court considered that this route to a finding of guilt remained open, even though there were significant reasons to doubt it.
The judgment’s key boundary is that a reasonable hypothesis consistent with innocence does not itself justify a directed verdict. Rothman J acknowledged that such hypotheses were available, but held that where an inference consistent with guilt could be drawn, choosing between those possibilities was a jury function (paras 22–24). If a jury returned a guilty verdict despite the innocent hypothesis, the judgment stated that the matter could be corrected on appeal. That possibility did not transfer the jury’s fact-finding role to the trial judge (paras 23–24).
This explains the result. The judge did not endorse the Crown’s account as persuasive or find that the evidence proved guilt. Rather, the judge held that the legal threshold for removing the case from the jury had not been met. The distinction is important: refusing a directed verdict meant only that the jury could consider the case, not that a conviction was required or that the Crown’s inference was ultimately correct.
The judgment presents its reasoning as an application of existing principles, not as a change or expansion of the law. It cites Doney v R [1990] HCA 51; (1990) 171 CLR 207 for the proposition that the principles governing a directed verdict are strict and confined, and that once their requirements are met a verdict must be directed, with no residual discretion not to do so (para 20).
It cites R v R (1989) 18 NSWLR 74 for the requirement that the judge, when deciding whether evidence can sustain a guilty verdict, take the Crown case at its highest and leave resolution of conflicting evidence to the jury (para 21). It cites R v JMR (1991) 57 A Crim R 39 for the proposition that a judge cannot direct a verdict merely because a reasonable hypothesis consistent with innocence exists (para 22).
The “before” position, as described in the judgment, is therefore a threshold inquiry focused on whether there is evidence capable of supporting guilt. The judge does not determine whether the jury would be unreasonable to convict, and does not resolve competing inferences as if deciding the verdict. The “after” position in this case was that those same principles controlled despite substantial weaknesses in the Crown case. The judgment did not purport to alter the test; it applied the test to the evidence before it.
The judgment also refers to the earlier ruling in R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724. In that proceeding, the Court ruled the electronic record of Carr’s police interview inadmissible. For the present application, Rothman J adopted the earlier reasons as a short-form summary of the proceedings and evidence (para 1). The present decision did not reconsider the admissibility ruling.
Although the heading lists the Evidence Act 1995 and the Law Enforcement (Powers and Responsibilities) Act 2002, the reasons in this judgment do not identify or apply particular provisions of either Act to the directed-verdict question. The stated analysis instead relies on the cited directed-verdict authorities and the evidence summarised in the reasons.
At paragraph 20, Rothman J says that the principles are “strict and confined” and that, once their requirements are satisfied, “there is no residual discretion not to direct.” In plain English, the judge must apply the legal threshold, rather than deciding freely whether it seems desirable to let the case continue. If the threshold for a directed verdict is met, the judge must direct one; if it is not met, the judge cannot substitute a view that the jury probably ought not convict.
At paragraph 21, the judgment says the Court must take the Crown case at its highest, including inferences available from the evidence, and that it is “for the jury, not the judge, to resolve conflicting evidence.” This means the directed-verdict hearing is not a mini-trial in which the judge chooses which witness to believe. The judge asks whether the evidence, viewed in the Crown’s favour for this limited purpose, could support guilt.
At paragraph 22, Rothman J states that “a judge is not entitled to direct a verdict because there is a reasonable hypothesis consistent with innocence.” In plain English, the possibility of an innocent explanation is not enough, on its own, to prevent a jury from considering the case. If an inference of guilt is also open on the evidence, weighing the competing explanations is generally left to the jury.
At paragraph 24, the Court accepts that an innocent hypothesis existed and that a guilty verdict might be unreasonable, but says these were not matters on which it could base a directed verdict. The passage demonstrates the difference between the trial judge’s threshold role and a later assessment of whether a jury’s verdict can stand. The judgment identifies appeal as the possible forum for argument about an unreasonable guilty verdict, without deciding how any appeal would be resolved (paras 23–24).
The ruling is relevant to a directed-verdict application made after the prosecution has closed its case where the accused argues that the evidence is too weak, internally inconsistent, or incomplete to permit a guilty verdict. It is particularly pertinent where the prosecution depends on a chain of inferences, and the defence points to another reasonable explanation consistent with innocence.
The fact pattern here included a gap of about five hours between the alleged wall impact and the deceased being found on the floor, no witness who saw the fall, medical evidence that did not straightforwardly support the Crown’s causal account, and uncertainty in witness timing and observation (paras 8–10, 14–18). Despite those features, the Court found that the jury could accept evidence supporting an inference consistent with guilt (paras 16, 22–24).
The precedent should be read within that procedural setting. It does not establish that every case containing a possible inference of guilt must go to a jury, regardless of the evidence. The judgment states that the directed-verdict principles are strict and confined, and its conclusion turned on the Court’s view that an inference consistent with guilt remained available on this record (paras 20–24). The reasons do not set out a broader test for other types of criminal application or for deciding guilt after all evidence is heard.
Nor does this ruling determine how a jury should evaluate the evidence at trial. The Court expressly left the choice between evidence and inferences to the jury, properly instructed (para 22). It also did not determine the eventual verdict in Carr’s trial. Its disposition was limited to refusing the application for a directed verdict (para 25).
The materials provided contain this judgment and the authorities it cites, but no later decisions discussing or applying Carr (No 3). On this source record, it is not possible to describe how later courts have treated the decision, whether they have followed or distinguished it, or whether they have questioned any part of its reasoning.
The judgment itself identifies the authorities it relied on: Doney v R, R v R and R v JMR (paras 20–22). It refers to Carr (No 2) as the earlier ruling concerning the interview’s admissibility and as the source of the adopted summary of the evidence (para 1). Those references show the authorities and earlier ruling considered in this decision; they do not provide evidence of later treatment of Carr (No 3).
The judgment does not decide whether the Crown’s inference was ultimately accepted by the jury. It does not disclose a jury verdict, and its disposition is only that the directed-verdict application was refused (paras 2, 25). The factual question of when and how the deceased fell therefore remained unresolved in this ruling.
The reasons also do not decide whether a later guilty verdict would be unreasonable or liable to be set aside. Rothman J states that concerns of that kind could be the subject of argument in the Court of Criminal Appeal if the jury returned a guilty verdict (paras 23–24). The judgment identifies that possible procedural route but makes no prediction about its outcome.
Finally, the provided material does not establish the decision’s subsequent treatment by other courts. A researcher assessing its present precedential status would need sources beyond the judgment supplied here. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment 1On 13 July 2011, the Court, as presently constituted, delivered judgment on an objection to the admissibility of an electronically recorded interview with the accused conducted by the police. During the course of that judgment, the Court summarised, in short form, the nature of the proceedings and the evidence before the Court: R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724. For present purposes, I adopt, as a summary of the evidence, the reasons for judgment on that application. The Court ruled inadmissible the electronic record of interview. 2On 13 July 2011, following the aforesaid ruling, and after the close of the Crown case, the accused applied for a directed verdict. On 14 July 2011, I refused an application to direct the verdict and reserved reasons. The Court did comment that the decision to refuse to direct a verdict was based upon the principle that a directed verdict was not available on the basis that there is a reasonable hypothesis consistent with innocence. As earlier stated, I reserved reasons. These are the reasons. 3The accused, Dwayne Carr, is charged with manslaughter and recklessly inflicting grievous bodily harm. The Crown case has, due to agreement between the Crown and counsel for the accused, been run relatively efficiently, but there are significant issues with the case as presented. 4Essentially, the charges relate to events at the premises of the deceased on the evening and night of 25 and 26 November 2009. The deceased and a number of other persons, including the accused, were consuming alcohol and marijuana. 5The Crown case essentially rests upon the proposition that the accused pushed the deceased with much force, the deceased was forced backward hitting his shoulders and then his head against a wall. The motion of the head and the force with which it hit the wall was such that the push was described as forceful, the motion of the head as a whiplash, and the sound of the head hitting the wall as loud. 6When the deceased's head hit the wall, he was described as dazed, looking like he was about to faint and leaning against the wall in order to stay up. Two seconds after hitting his head, he raised his hand to the back of his head. Other evidence suggests that he thereafter shook hands and farewelled some persons leaving the party. 7Approximately 5 hours later, at 2.33am, a person in the premises, one of the "partygoers", called an ambulance, because the deceased was on the floor. At that time he was "twitching". 8As earlier stated, there are significant problems with the Crown case. Apart from anything else, there is no evidence as to what had occurred during that 5-hour period. Further, no one, notwithstanding the presence of a number of people, actually saw the deceased fall. Thus, we have evidence that the accused pushed the deceased, he hit a wall and banged his head with much force. We have evidence that the deceased looked dazed, but we have no evidence that the deceased fell immediately or shortly thereafter. The next relevant evidence was that the deceased was seen on the kitchen floor over 5 hours' later. 9The injuries to the deceased's head were significant. The injury to his crown, or the back of his head, was described by an expert pathologist as more likely to have occurred from a fall than from hitting his head against the wall, as described. There was an injury to the side of his head, which could not be explained by the fall backwards against a flat surface. Nor could it be explained by banging his head against the wall. There is no evidence of any other act of violence. 10The medical expert does hold out the possibility that the injury to his right temporal area could have been caused by a fall backwards against a complex surface, or series of complex services or the striking of his head while falling backwards. The last-mentioned possibility lessened the likelihood that the fall backwards would have caused the first mentioned injury. 11The Crown case depends upon the drawing of an inference that the fall in the kitchen occurred within a short time after the push against the wall and was, therefore, caused by the push against the wall and the banging of the head against the wall. 12The accused submits that there is no evidence linking the push against the wall with the head injuries and therefore linking the act of the accused and the death of the deceased. 13There is some conflict in the evidence, albeit in minor respects. There is little doubt that the push against the wall occurred at or about 9.00pm on the evening of 25 November 2009. Ms Mongta saw the accused push the deceased and left with her boyfriend immediately thereafter. She did not see the deceased fall. Ms Stewart, who had been involved in a domestic argument with the accused, with which the deceased was seeking to interfere, did not see the push against the wall, having run out of the unit at the time that the deceased sought to interfere in the disagreement between her and the accused. 14Ms Stewart says that she heard Ms Mongta scream and went into the unit. She says Ms Mongta was in the unit at the time. However, Ms Mongta did not see that which is then described by Ms Stewart. Ms Stewart says she went into the unit after she saw Ms Mongta leaving in a timeframe that she describes as "straightaway". Ms Mongta does not see Ms Stewart. There are serious difficulties with the inconsistency in this evidence, given the size of the unit and the means of entry and exit. 15The other difficulty with the evidence is that Ms Stewart openly admits that she was so drunk and so affected by marijuana that her appreciation of time is, effectively, meaningless. Minutes may have been hours; and hours may have been minutes. 16The Crown case depends, necessarily, on the jury taking the view that Ms Stewart went into the unit as soon as she heard Ms Mongta scream, saw Ms Mongta leaving (even though Ms Mongta did not see her) and saw the deceased on the floor of the kitchen. Such evidence, if accepted, would necessarily involve a finding that the deceased fell immediately after the push against the wall and banging his head against the wall. If that evidence were accepted, and that inference drawn, then the jury could infer that the fall in the kitchen was caused by the push against the wall, the banging of the head and, necessarily, the conduct of the accused. In those circumstances, the jury could find the accused guilty. 17It must be said that the application for a directed verdict has some significant merit. There are abundant reasons why those findings of fact would or could not be made. There are further reasons why the inferences on which the Crown case depends could or should not be made. Ms Stewart, as earlier stated, saw Ms Mongta in the unit, but Ms Mongta did not see Ms Stewart. This is almost a physical impossibility. The evidence is reconcilable only on the basis that Ms Stewart saw Ms Mongta leaving the unit from a position outside the unit. If that were so, given the unreliability of Ms Stewart as to timing, the inference that the Crown seeks the jury to draw would be, to say the least, problematic. 18Moreover Ms Stewart attests that, on entering the unit, and seeing the deceased prostrate on the kitchen floor, steps were taken to call an ambulance. No account is taken of the 5-hour gap. Further, Mr Simms, another witness, attests to the fact that he did not see the deceased fall, because he was in the toilet. He came out of the bathroom, saw the deceased on the floor, and arranged for a call to the ambulance immediately. That would necessarily mean that the deceased fell some short time before 2.33am on the morning of 26 November 2009. 19On the foregoing bases, counsel for the accused submits that there are reasonable hypotheses inconsistent with guilt available to the jury and those reasonable hypotheses are more likely to be the circumstances that in fact occurred. In other words, counsel for the accused maintains that it would be a serious error of law for the jury to conclude that the fall in the kitchen occurred immediately followed the banging of the head against the wall. 20I accept that, on the evidence that has been adduced, there are reasonable hypotheses consistent with innocence available to the jury. However, the principles upon which a directed verdict may be given are strict and confined. Once satisfied, those tests demand a directed verdict, and there is no residual discretion not to direct: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 212.6. 21In determining whether there is no evidence that can sustain a guilty verdict, the Court is required to ignore contradictory evidence unfavourable to the Crown case and to take the Crown case at its highest, including any inferences that may arise from the evidence adduced. It is for the jury, not the judge, to resolve conflicting evidence: R v R (1989) 18 NSWLR 74, per Gleeson CJ at 81. 22One thing is clear from the principles that have been developed in relation to direct verdicts: it is not for the trial judge to determine the issue on the basis that a jury verdict would be unreasonable. Further, a judge is not entitled to direct a verdict because there is a reasonable hypothesis consistent with innocence: R v JMR (1991) 57 A Crim R 39. If an inference is available from the evidence adduced that is consistent with guilt, it is a matter for the jury, properly instructed, not for the trial judge, to draw that inference and to determine which evidence is accepted and which is rejected. 23Ultimately, if the jury, notwithstanding the existence of a reasonable hypothesis consistent with innocence, determines that the accused is guilty, that is a matter that may be corrected on appeal. It is nevertheless for the jury to determine guilt or innocence, if there be evidence adduced that is consistent with guilt and upon which, assuming other evidence is not accepted, it would be open to find guilt. 24In my view, while there is a hypothesis consistent with innocence and while a guilty verdict on the evidence of the Crown may be unreasonable, those are not matters upon which the Court, as presently constituted, may base a directed verdict. They are matters that, should the jury return a guilty verdict, may be the subject of argument in the Court of Criminal Appeal. 25For the forgoing reasons, I determined that the application for directed verdict should be refused and ruled accordingly.
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: 22 July 2011
R
Dwayne Anthony CARR
The application for a directed verdict was refused (para 25).