REGINA v. STAINES [1999] NSWSC 1101

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT (On directed verdict of acquittal) 1 GREG JAMES, J: At the close of the Crown case, counsel for the accused moved for a directed verdict of acquittal. The Crown did not concede that such verdict should be directed but did make some significant concessions. Those concessions included that, in the evidence to which I will turn shortly, there was raised self-defence in the sense that is referred to as a defence by the High Court of Australia in Zecevic v. The Director of Public Prosecutions (1987) 162 CLR 645. That is, that the evidence established that, in the physical dispute between the accused and the deceased, there was material which raised the possibility that the accused believed, on reasonable grounds, it was necessary in self-defence to do what he did and that what he did did not exceed what he believed was reasonably necessary for the purpose of defending himself. But the bases upon which the application was made went further than the contention that the response was justified or excused by the law of self-defence. 2 Mr. Young, who appeared on behalf of the accused, put the application on three bases, the first that the evidence in the case did not establish, in the circumstances in which the accused and the deceased were engaged in the fight, an act causing death, in this case, an act causing the penetration of the deceased's heart by a knife used by the accused, was done other than accidentally. That is to say, Mr. Young contended that the evidence did not go further than establish the mere occurrence of that penetration so that it could not be found by the jury that the penetration was occasioned by a willed or deliberate act in the sense spoken about by Sir Garfield Barwick in Ryan v. The Queen (1967) 121 CLR 205. 3 Mr. Young also contended that there was insufficient evidence to establish, in the event that there was a willed act involving the use of the knife, an intent to kill or do grievous bodily harm with the knife. Both of those intentional states would be necessary for the offence concerned to be murder. A further intentional state, that is, reckless indifference to the taking of a human life, while provided for by s.18 of the Crimes Act 1900 was disclaimed by the Crown as being available in these circumstances earlier on in the trial. This is not surprising given the reference in Zecevic (supra) by the High Court at 662 in the judgment of the majority, Wilson, Dawson and Toohey, JJ., that "recklessness may be put to one side as having no apparent relevance in the context of self-defence". 4 For my own part, I am at a loss as to what their Honours meant, since that minimal intentional state consistent with the crime charged most likely to be proved in the circumstances accompanying a striking, albeit for the purpose of defending oneself, is an adverting to the possibility or probability of occasioning death but striking nonetheless to achieve the object of personal security. 5 Mr. Young contended on this second basis that, at the most, a reckless disregard for the occasioning of grievous bodily harm might be established and that, in New South Wales at least, unlike at Common Law (see Crabbe v. The Queen (1985) 156 CLR 464) it is insufficient to establish murder. Both counsel had, during the course of the trial, reviewed the decision of the High Court in Cutter v. The Queen (1997) 94 A. Crim. R. 152. 6 Mr. Young also put his submissions on the basis that the evidence in the circumstances was incapable of rebutting the self-defence that the Crown evidence itself raised, if not established. 7 Interestingly, in this case the evidence in the case was almost entirely common ground. The one doubtful element was in the evidence from the one eye witness who had the most continued presence at the scene of the killing, Mr. Steengraver, whose evidence it was conceded by the Crown, was entirely partisan to such an extent that at the conclusion of his evidence the Crown assented to the proposition that a Jury would have to be directed in due course that such evidence as he gave adverse to the accused might well be regarded by the jury as unreliable and would call for a direction under s.165 of the Evidence Act. 8 In response, the Crown put its position as really relying on the use of excessive force by the accused, ie., more force than he reasonably believed was necessary to meet the exigency in which he believed he was placed. It should be noted, when considering questions of self-defence in murder that, unless the Crown proves the intentional state necessary, that question of self-defence in one sense does not really arise. However, it is almost impossible to imagine the situation in which the intentional state should be considered separately and apart from the events that gave rise to the formation of the intent and the purpose of the accused's actions which are bound up in that issue. 9 If there was a killing committed intentionally by an accused desiring the death of the person the accused intended to kill but only because that intent or desire had been formed in order to protect the accused against the perceived necessity caused by a life-threatening attack, the accused has the defence of self-defence. Indeed, when one refers to onus and standard, when the matter is raised, it is incumbent on the Crown to be able to point to an hypothesis the jury could accept as rebutting all other inconsistent hypotheses. So that where there is some evidence raising self-defence, for guilt the jury must be satisfied beyond reasonable doubt that the act was not performed in the exercise of an attempt at self-defence. That has been the law in England at least since Woolmington v. The Director of Public Prosecutions [1935] AC 462 and which in Australia, has been considered to be the law since before Parker v. The Queen (1963) 111 CLR 610. 10 Here then the evidence presents a problem in that, although self-defence is raised and although it is the Crown evidence which raises it and although there appears to be no evidence by way of contradiction, it is often said that one should proceed on a no case submission disregarding such evidence as might raise self-defence as that would be evidence by way of qualification to which regard should not be paid on an application of this kind. The test and the manner of its application is laid down in The Queen v. Doney (1990) 171 CLR 207. 11 It is, however, accepted in this case by the Crown and by the defence that for me to undertake a course of attempting to winnow out that which might qualify other evidence led by the Crown to seek to detect a case divorced from the evidence supporting self-defence, would be artificial in the extreme. I agree. The whole of the Crown case is entirely consistent as there being a physical dispute between the two in which the deceased was the initial aggressor; the deceased at relevant times was on top of the body of the accused and the Crown concedes it is unable to show that the accused did not believe, on reasonable grounds (as he said to his wife when overheard by the police) that the deceased was attempting to kill him by choking him. 12 In those circumstances, and taking the evidence as a totality, the Crown has submitted that an analysis can be undertaken, since there were four wounds occasioned to the deceased which, based on the medical evidence of Dr. Oettle would enable one to find a particular sequence for those wounds so as to elucidate whether there was an intent such as to make s.18 of the Crimes Act applicable or alternatively, there was a continued progression of blows of increasing force and gravity by the accused such as might tend to establish self-defence. 13 The Crown has conceded that such an analysis, however, leaves it really on the horns of a dilemma. The Crown put it as suffering from the effects of a two-edged sword. That is to say, that if the sequence does not show an increasing progression of severity of wounding, then there does not seem to be a basis on which intent to kill or cause grievous bodily harm, absent self-defence, is raised. Whereas, if there is an increasing progression, so the Crown has conceded, that tends to support the proposition that there was such an intent but an intent inseparable from a desire to defend, oneself reasonably based. 14 The test, at the close of the evidence, has been expressed in Doney (supra), by Glass, J. in his article in 51 ALJ "The Sufficiency of Evidence for a Case to Answer" and in a circumstantial evidence case, in The Queen v. JMR (1991) 57 A. Crim. R. 39. That test requires that the Crown evidence raise an hypothesis of guilt by evidence capable of establishing that guilt beyond reasonable doubt and that hypothesis be such that, although there might be other hypotheses available on the evidence, a jury acting in accordance with its lawful function and in accordance with a proper direction, can reject those other hypotheses. 15 In this case the issue squarely enough turns on whether or not, on this evidence, the Jury could reject the hypothesis that the accused acted in self-defence in the sense of responding to a situation not of his making which called for the use of force, indeed deadly force, for him to protect his own life and reasonably believing that such force might be necessary. That is whether the situation was such that the Crown could not prove beyond reasonable doubt that his resort to such force was not believed by him to be reasonably necessary. 16 The question had been raised with counsel to consider last week during the trial to afford counsel an opportunity to put considered submissions to me. They have done so. I have concluded that it would not be open to the jury, if the matter was left to them, to find the accused guilty of murder; that it might have been open to the jury to have found an intent at least to cause grievous bodily harm; that it was open to the jury to find that the blows that were struck were willed acts in the sense referred to in Ryan (supra) but that if the jury accepted that there was an intent to kill or cause grievous bodily harm, they could not have done so by setting aside self-defence. 17 In those circumstances, I invited counsel to address me also on whether there might be the alternative verdict of manslaughter available. The Crown concedes that in those circumstances, if self-defence is available to a charge of murder, then there is no adequate basis on which manslaughter might be left independently. 18 I therefore determine that, on the evidence as it stands, the proper course will be to direct the verdict of acquittal on the basis I have set out.

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