R v Smith

Judgment Introduction 1The accused, Darren Paul Smith, is charged with having murdered Russell Lyons at Fairfield on 3 June 1995. At the end of the Crown case, Ms Yehia SC who appears on behalf of the accused, made an application that I direct the jury to acquit the accused. On 30 June 2011 I refused the application. What follows were my reasons for doing so. 2The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity said to have been a contributing factor. The deceased was fully clothed but his shoes and wallet were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the accused was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was only entered on the national database in 2008 following his apprehension in Queensland on a trivial matter. Following analysis, a match was made between his profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995 a short distance from where the deceased's body was found. Also found on the shoes was blood staining which matched the deceased's DNA profile. A DNA profile matching that of the accused was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case is that the accused killed the deceased during the course of robbing him of his shoes and wallet. The Crown also asserts that the Adidas shoes had been worn by the accused but had then been discarded when the accused realised that the deceased's blood has found its way onto them as a result of the fatal attack. 3The Crown alleges that some hours prior to the discovery of the deceased's body, the accused had attempted to steal the deceased's wallet during an altercation which had occurred on The Crescent, Fairfield at about 3.30 am. That incident was witnessed by the deceased's friends and drinking companions, John Byrne and Ian Cross. Their evidence was to the effect that they had been out at various drinking establishments that evening in the company of the deceased and that they were making their way home at the time that the incident occurred. The uncontradicted evidence is that each of them was extremely intoxicated at the time. Both gave evidence that the deceased had crossed The Crescent when they heard him call out words to the effect of "He's got my wallet". Their evidence is that they then ran across the road in order to assist the deceased. His assailant was described by them as being an Australian with a goatee beard. Shortly thereafter three males described as being of "Islander" appearance joined in the altercation. The Crown case is that the deceased eventually ran from the scene of the altercation whereupon he turned into Smart Street. From there he ended up in the carpark to which I referred earlier. It was at that location, the Crown asserts, that the deceased received the fatal injuries having been pursued there by the accused. The relevant legal principles 4In R v R (1989) 18 NSWLR 74 Gleeson CJ, with whom Maxwell and Wood JJ agreed, determined that a trial judge does not have the power to direct a verdict of acquittal when the trial judge assesses that the evidence is such that a verdict of guilt based upon it would be unsafe and unsatisfactory. 5In Doney v The Queen (1990) 171 CLR 207 the High Court approved that statement of principle. The Court went on to say: It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. [at 214-5] 6In R v JMR (1991) 57 A Crim R 39 the question which was posed for the Court's determination was "is a trial judge entitled to direct a jury to enter a verdict of acquittal at the end of a Crown case based on circumstantial evidence on the basis that the Crown could not negative all reasonable inferences which were inconsistent with the guilt of the accused?" (at 40) 7Lee CJ at CL, with whom Carruthers and Finlay JJ agreed, said: On the view then that a judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated, the present case requires that the question asked must be answered in the negative. (at 44) 8For a recent analysis of the relevant authorities see R v JM (2010) 202 A Crim R 465 per Refshauge J at 472-3. 9For completeness I should observe that Ms Yehia referred in her submissions to a number of other decisions, including R v PL [2009] NSWCCA 256 and R v El Masri (No 2) [2010] NSWSC 1327. I do not regard it as necessary to make any further reference to those decisions because they each proceeded upon the basis of the well-settled principles to which I have just referred. Moreover, each of those decisions ultimately turned upon an analysis of the evidence adduced in the particular case. The accused's submissions 10In advancing the application, counsel for the accused relied upon various parts of the evidence given by three of the Crown witnesses. The first of those witnesses was Ian Cross, who as I have said, witnessed the events on The Crescent. The parts of his evidence upon which reliance was placed are set out below: Q. Your group, with these Maori three, are still in the area you say of the Crazy Prices store? A. Yes, we were all arguing. Q. You, John Byrne, Russell Lyons continued to argue with the three Maori people? A. Yes. Q. It was then that that Maori fellow with the dreadlocks assaulted Russell? A. Yes. Q. He punched him a couple of times? A. Yes. Q. And you could see that Russell was hurt and bleeding? A. Yes. Q. Is the next thing that you saw of Russell was that he was further down The Crescent near the corner where The Crescent intersects with Smart Street? A. Yes. Q. So you look up, you see Russell Lyons down near that corner. Correct? A. Yes. Q. And the islander with the dreadlocks is with Russell near that corner? A. Yes. Q. You and John Byrne are still up near the area of Crazy Prices store? A. Yes. Q. And you are still confronted by the other two Maori men. Is that right? A. That's right. Q. There was an argument still going on between you and Mr Byrne and the two Maori Men. Correct? A. Correct. Q. When you looked down to the corner of The Crescent and Smart Street and saw Russell Lyons with the Maori man with the dreadlocks, you could see that the Maori man with the dreadlocks was belting into Russell Lyons? A. Yes. Q. And it was quite a savage attack by the Maori man with the dreadlocks on Russell, wasn't it? A. Yes I think so. Q. You could see that Russell was bleeding? A. Yes, he was bleeding before he left us. 11The second witness was Dr Ellis. The parts of his evidence which are relied upon are set out below: Q. If in this case that (sic) the subdural haemorrhage was caused as a result of somebody punching the deceased, could one punch, one single punch cause that type of injury? A. Yes. Q. What sort of force would be required if it was one punch that caused that subdural haemorrhage? A. A bit difficult to be specific because it's not necessarily the amount of force, but the way it's delivered. Because if I go back to the analogy or the description of the head moving and the brain moving, what you actually have is a (sic) like a rotating motion of the head. The head is obviously fixed on the neck so it can move essentially forwards and backwards, a little less from side to side. It can't move up and down, so it rotates backwards and forwards. If the force applied causes the head to move backwards and forwards, that's the force that's most likely to give you a subdural. Clearly, if it was a blow, a punch causing that, then clearly the bigger the blow in that direction, the more likely you are to get a subdural haemorrhage. If you were to strike the head from the side, the motion is not quite the same and you're much less likely to get haemorrhage. It's not so much the amount of the force, but it's the way the force is delivered. Q. So if it was a punch that was delivered to the face of the deceased, could that be sufficient to cause a subdural haemorrhage? A. Yes it could. Q. Is it reasonably possible that the deceased could have suffered the subdural haemorrhage but not immediately become unconscious? A. Yes it is. It depends on what's caused the subdural. If a big punch caused the subdural, that big punch may have delivered enough force to actually cause the brain to malfunction by itself, effectively independent of the actual haemorrhage. In which case unconsciousness would occur pretty well straight away. If unconsciousness occurs because of the subdural alone, the subdural can take some time to develop and so we see this in boxers, you see this in other people, they may suffer trauma but then over a period of time which may be hours, they get increasing drowsiness and increasing headache and ultimately, they become unconscious and die. The only thing you find at autopsy is subdural haemorrhage. Clearly it can take a long time. There's no way by looking at the haemorrhage, to say how long that took. I don't know how long this haemorrhage took to develop, it could have happened in a small space of minutes, could have happened in half an hour or so, maybe even longer. Q. (Dr Ellis shown exhibit A.) What you're being shown in exhibit A is a map of the area depicting The Crescent which is one of the main streets in Fairfield? A. Yes. Q. And also depicting the location of the car park at the end of the lane way where Mr Lyons was found? A. Yes. Q. I think you yourself attended at that location, so you're familiar with it? A. I did, yes. Q. Just to get your bearings, do you see on exhibit A that you have there, an area that's depicted by a red star? A. Yes. Q. And it is across the road from an area that is labelled "arcade"? A. Yes I can see that. Q. Then there is a red dotted line that heads towards The Crescent? A. Yes. Q. And do you see then that there is a road that intersects with The Crescent which is Smart Street? A. Yes. Q. The red dotted line continues on into Smart Street, into the laneway and into the car park where the deceased was found? A. Yes. Q. Firstly, keeping those locations in mind, I want to put this scenario to you Dr Ellis, if there is evidence that the deceased was punched twice at the location where we see the red star? A. Yes. Q. And we also have evidence that the deceased was punched on a further two occasions at the corner of The Crescent and Smart Street? A. I understand. Q. If any of those or one of those punches caused the subdural haemorrhage, is it reasonably possible that the deceased could have made his way into the car park area and collapsed there? A. By "made his way", you mean walk or run? Q. Walked or run? A. Yes. Q. Is that a reasonable possibility? A. Yes. Q. Is it reasonably possible that having made his way into the car park area, that he could have fallen to the ground in that area causing the broken nose? A. Yes. Q. I think you saw the deceased in situ with the pooling of blood underneath him? A. Yes. Q. And the blood that you saw, could that be consistent with the broken nose? A. You said the blood I saw. Do you mean blood on the body, blood on the ground or on the wall? Q. Blood on the ground? A. Because there was some blood on the wall and I made a brief reference to it. It wasn't my job to do a detailed examination of it. But it was certainly on the ground. The other thing we must not forget he was face down and obviously like that since death. That will cause a pooling of blood and if there's an injury, that can continue to ooze even if the heart has stopped. It's certainly consistent with a broken nose, yes. Q. Is it reasonably possible that the deceased fell on to the ground in the car park causing the broken nose and bleeding, that he then could have tried to lift himself to get up and fallen again in that area? A. I couldn't exclude that possibility, yes. 12The third and final witness was Detective Flippence, who gave evidence in which he interpreted blood spatter patterns on the ground and on the wall adjacent to where the deceased's body had been located. The parts of his evidence which are relied upon are set out below: Q. I give you this scenario. The deceased was bleeding to the face and has simply fallen to the ground without any involvement of any second party. Is that consistent with the blood spatter pattern that you represented in this photogrammetry plan? A. It may be. Q. Can you explain why it may be? A. Well, the deceased would have to have blood on his face and the deceased falling on the ground represents a blood event which is a sudden downward force. Q. If there was an absence of blood on the front of the jumper of the deceased but large amounts of blood on the arm, does that affect your answer? A. Yes. Q. How A. I would say for somebody to be standing there and bleeding to a medium to large extent on his face he would almost certainly have blood underneath the chin and collar and upper chest area of the jumper. The blood on the arms is contact staining and is as a result of the deceased, whilst bleeding, having his arms underneath his face as he does when he was found. Q. The jumper itself you haven't seen? A. No. Q. It's the photos that you have seen? A. Yes. Q. Could you have a look at photograph 76, please. Photograph 76 shows the front of the jumper worn by the deceased. This is one of the photographs you have looked at, is it? A. Yes. Q. What can you say about the staining, if anything, on the front of the jumper as we can see it there? A. The staining is minimal. There is an area up on the right shoulder between the collar and the top of the arm which is a contact stain. And on the upper left chest area there is, what I can easily say is a squarish type contact stain, and there is some minor staining underneath those areas but nothing major. Q. Any of those stains caused by blood dripping down the face just as a result of gravity. That is, from the deceased having been in a standing position and bleeding on to the front of the jumper? A. One or two may but the rest are contact staining. ... Q. Ex G1 is a smaller more manageable photocopy. Use either of the two if you need to answer this. That wall that was in front of the deceased's head has that 'no parking' sign on it, the spatter pattern that was there, what was the blood event that caused that pattern? A. On the wall, the blood event was as a result of the sharp downward force of the deceased's head on the concrete. Q. Are you able to say what kind of force would have created that pattern? A. It could have been a number of things. Could have been somebody stomping on the back of the deceased's head, could have been the deceased lying down trying to get up losing consciousness and coming back down on the concrete, could have been the deceased falling. As long as he had the blood that was evident on his face and/or on the concrete underneath. ... Q. Are those two areas that you've described consistent with a movement by the deceased himself, a movement of his arms himself, if the sleeves of his jumper were blood stained? A. The stain under the left elbow moving in an upward direction I would say is consistent with that. But the stain on the right, I can't say whether it is consistent with him moving or him being moved. That's what I'm saying. Q. So it could be you can't exclude the reasonable possibility that the stain on the right was made as a result of movement by him? A. That's correct, yes. Q. That's one of two explanations? A. Yes. Q. But it could be - it's reasonably possible that both the wiped, if I can call them wiped stains that you saw to the left and to the right of his elbows were caused by his own movement? A. It could have been. Q. That would have had to have been the obviously after he was bleeding? A. Yes. Q. Because it would mean that his sleeves would have had to have been bloodied, the sleeves of the jumper would have been bloodied; correct? A. Yes. Q. Can I as (sic) you this Detective Flippence: If the deceased had fallen to the concrete as a result of a sudden movement downward and caused an injury to his face that bled, if he was there for a time so that he was bleeding and the blood pooled on to the ground underneath him and he then tried to move himself so that he could get up and fell again on to the concrete ground, could that have caused the blood to spatter that we see on the ground immediately in front of him and on the Besser block wall? A. Yes. 13The significance of the evidence of Ian Cross, so it was submitted, was that "the only direct evidence of an assault upon the deceased is that the Islander male punched the deceased a couple of times near Crazy Clints and again at the corner of Smart Street and the Crescent." (emphasis added) 14It was then submitted that the evidence of Dr Ellis demonstrated that he was unable to exclude the reasonable possibility of each of the following propositions: