R v Dwayne Anthony CARR

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.