Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)
File Number(s): 2015/335208
[2]
Judgment
At the close of the Crown case Mr Littlemore QC for the accused made an application for a directed verdict. He submitted that taken at its highest, the prosecution evidence cannot establish any fact other than that the accused inflicted a non-fatal stabbing injury on the deceased, and thereafter fled the scene.
The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether, at the time a no case to answer submission is made, the accused could lawfully be convicted on the evidence as it stood at that time: May v O'Sullivan (1955) 92 CLR 654 at 658; Regina v PL [2012] NSWCCA 31 at [31].
In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court said at 212 and 214-215:
There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.
…
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.
It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 and Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial.
Further, 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: R v JMR (1991) 57 A Crim R 39 at 44.
Mr Littlemore said that the evidence in relation to the stabbing was relevantly the following:
1. As the accused approached Mr El Azzi, Mr El Azzi was seated on the top step at the front of his mother's house.
2. He did not rise or attempt to rise; and he did not raise his hands or his arms.
3. The accused stabbed Mr El Azzi once, momentarily. The knife was in his chest for one or two seconds.
4. The knife struck Mr El Azzi's left anterior chest, 2cm below the collarbone.
5. The accused either pulled out the knife or it fell out, but it fell to the ground.
6. That stab injury was not life-threatening and could not have been fatal because it did not penetrate the chest wall.
7. Immediately after stabbing Mr El Azzi once, the accused retrieved the knife from the ground and ran away, jumping the fence of the property.
8. Mr El Azzi did not move from the steps after he was stabbed.
9. His mother cradled him at the bottom of the steps.
10. Mr El Azzi's torso was bare at the time he was stabbed, and thereafter.
11. Neither of the first team of ambulance officers to arrive saw any wound to Mr El Azzi except that in his left anterior chest.
12. Neither of the second team of two paramedics to arrive saw any wound to Mr El Azzi except that in his left anterior chest.
13. The chest decompression wounds made by the paramedics did not cause Mr El Azzi's death.
14. Neither member of the surgical unit, who arrived third, saw any wound to Mr El Azzi except that in his left anterior chest.
15. Mr Lisle was in close contact with Mr El Azzi's left side, and his ribs, in finding a location to insert a scalpel for the purposes of a finger thoracotomy.
16. A large volume of blood flowed from Mr Lisle's finger thoracotomy wound.
17. The origin of that blood is unknown.
18. Dr Novy was in close contact with Mr El Azzi's right side, and his ribs, in finding a location to insert a scalpel for the purposes of a finger thoracotomy.
19. Dr Novy opened Mr El Azzi's chest with a large scalpel for the purpose of performing a clamshell thoracotomy.
20. Dr Novy has no recollection of whether he joined the two thoracotomy wounds in opening Mr El Azzi's chest or used those wounds as 'landmarks', making his incision at a point slightly above where the finger thoracotomies were performed.
21. lt is possible that Dr Novy's clamshell incision was performed 'a little bit above' the left-sided finger thoracotomy wound made by Mr Lisle.
22. At autopsy, Dr Irvine found four wounds to the right lung.
23. The right lung wounds were at least possibly made during Dr Novy's performance of the clamshell thoracotomy.
24. The cause of death was a penetrating wound to the left lateral chest between the 8th and 9th ribs.
Mr Littlemore submitted, on the basis of those facts, that there was no evidence that the fatal wound was inflicted by the accused. He submitted that it was no answer to his submissions that the pathologists considered that there was another wound, which they described as the atypical stab wound, as being the cause of death. He submitted that the descriptions given by Mr Elmrabt and Mrs El-Azzi were of the stab wound to the left clavicular area. He said that they only gave evidence of a single stab wound. He submitted that the evidence disclosed that neither the ambulance officers nor Dr Novy observed the atypical stab wound said to have led to the blood loss and death.
Mr Littlemore submitted that it was no part of the accused's responsibility to explain the presence of the atypical wound, whether to suggest that it was caused by the ambulance officers or Dr Novy, or otherwise. He submitted that the evidence did not demonstrate that that injury was the act of the accused.
In my opinion, there is evidence which can be taken into account by the jury in its deliberations which is capable of supporting a verdict of guilty. I do not consider that the evidence is weak or tenuous or vague.
This case, as the Crown confirmed in submissions, is both a direct evidence case and a circumstantial evidence case. The direct evidence, relevantly for this application, is the evidence of Mrs El-Azzi and Mr Elmrabt. Both reported seeing a stab to the left clavicular area. The circumstantial evidence, however, includes a number of matters not referred to by Mr Littlemore in the facts which he set out. Those circumstances are these:
[3]
Mrs El-Azzi and Mr Elmrabt
It is apparent that Mrs El-Azzi did not see the whole of the altercation between the accused and Charlie. Her evidence was that:
I was trying to get up, I looked back towards Charlie, and John was in an upper position holding the knife in his chest.
She was then asked where Charlie was at this point and what John did. She said that Charlie was sitting on the stairs and John pushed the knife in his chest. She said he lunged at him, and she demonstrated a stabbing motion downwards with her right fist and arm.
That evidence is capable of supporting an inference that the accused inflicted two wounds. The first was the one that had been inflicted by the time Mrs El-Azzi stood up and saw the knife in his chest, and the second being a subsequent thrust as she described. She said that when she ran towards Charlie, John "took out the knife". The jury may well conclude that "taking out the knife" is not what happened when a fairly superficial wound was inflicted below the left clavicle.
Mr Elmrabt's evidence was that the man with the knife went up to the other man who stayed seated and he "stabbed him in his left side of his chest. … He had gone straight in with the knife." He then described the accused as having "pulled the knife out". He said the knife was in for a couple of seconds. The jury may also conclude that Mr Elmrabt could not have been describing the superficial wound to the left clavicular area.
Mr Elmrabt also said that there was a split second where he did not see the accused when he was behind the shrubs just after the stabbing.
Taken with other matters to which I will come, the evidence of Mrs El-Azzi and Mr Elmrabt is capable of demonstrating that there was more than one stab wound although not expressly described by Mr Elmrabt.
Both Mrs El-Azzi and Mr Elmrabt said that the knife was dropped as it was being pulled out or taken out, the accused picked it up and ran away. Mrs El-Azzi said that Charlie fell to the side and she cradled him. Mr Elmrabt said that within a couple of minutes blood started coming out of Charlie's mouth. That evidence was corroborated by Mr Ramadani who saw the man jump the fence and run away. Mr Ramadani then went over to the young man lying down and saw that he was bleeding heavily through the mouth. He commenced CPR on him.
The evidence of that blood loss and his lapse into unconsciousness is indicative of a stab wound that penetrated much more deeply than the wound to the left clavicular area.
[4]
Ambulance officers and Dr Novy
The first ambulance officer to arrive was Matthew Carter with another officer. He described the young man lying down with a lady cradling him in her arms and holding his left chest area. The man was unconscious with no pulse. He started CPR and a large amount of blood started to come from his mouth and nose. That was before any invasive procedures were undertaken.
The next ambulance officer was Ms Hill who arrived and found the man unconscious, not breathing and in cardiac arrest. She observed a great amount of frothy blood coming from his mouth. That was prior to her performing the first invasive procedure which was a needle thoracostomy.
When ambulance officer Lisle subsequently arrived, he observed a man lying at the foot of a small set of stairs with his left side towards the steps and his head in an easterly/south-easterly direction parallel with the house. Mr Lisle was jammed in between the steps and the man, whom he did not move in order to perform the finger thoracostomy.
Dr Novy also arrived at the same time. He said that he did not examine the body for wounds and, having undertaken the clam shell thoracotomy, although he performed a Hilar twist on the left side, he did not examine the left lung for stab wounds. He explained that a Hilar twist is a twist of the left lung around itself to "sort of almost stop the blood going into that side if that is where the wound is". Basically he said it was to stop or block the hole in the circulatory pathway. Dr Novy's evidence about not examining the body for wounds gave further credibility to Dr Irvine's evidence that he could have missed a fatal wound.
It is clear from the evidence of the various ambulance officers that they were intent on resuscitating the deceased and not inspecting for wounds and lesions. I accept that Mr Lisle said that he did not notice a lesion in that area "getting in [the] way" of his making an incision for the finger thoracostomy and the clamshell thoracotomy, but he did not say he was looking for any such lesion. Further, the position of the deceased provides a ready explanation, in addition to that, for the atypical wound not having been seen at the time by the ambulance officers. It cannot be doubted that it was there because it was found at the autopsy.
[5]
Dr Irvine and Professor Duflou
Dr Irvine gave as her expert opinion that the atypical stab wound caused the death of the deceased. Further, it was Professor Duflou's preferred theory that the atypical wound was responsible for the exsanguinating blood loss that caused death. Both Dr Irvine and Professor Duflou considered that the atypical wound was not caused by the paramedics or Dr Novy.
Both Dr Irvine and Professor Duflou considered that the wound in the clavicular area did not contribute to death. Professor Duflou said that the sharp force injury that led to the blood loss happened before the paramedics arrived. He said when they arrived the patient was in extremis.
[6]
Conclusion
In circumstances where the atypical wound was considered by the pathologists to be what led to the blood loss and death, and to be present before the ambulance officers arrived, and where the deceased commenced bleeding heavily through the mouth within minutes of being stabbed by the accused, and in circumstances where no other person was near the deceased except his mother and those attempting to help him after the accused left the scene, there is substantial evidence available for the jury to consider whether or not the accused is guilty of murder.
The presence of that wound is capable of being explained without speculation. It is clearly open to the jury to accept the evidence of both the pathologists that that wound caused the death, and that it must have been caused by the accused stabbing the deceased in that position even though the two eye-witnesses do not appear to describe it being inflicted in the position it was on the deceased. What happened is likely to have happened very quickly and both eyewitnesses did not see everything that occurred.
Taken at its highest, the evidence is capable of sustaining a verdict of guilty.
In those circumstances, the no case application is refused.
[7]
Amendments
26 November 2018 - Publication restriction removed.
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Decision last updated: 26 November 2018