Citation: R v Dwayne Anthony CARR (No 3) [2011] NSWSC 771
Court: Supreme Court of New South Wales
Date: 14 July 2011
Judge: Rothman J
Background
The accused faced charges of manslaughter and recklessly inflicting grievous bodily harm arising from events at a private premises on the evening of 25 and 26 November 2009. A group of people, including the accused and the deceased, had been consuming alcohol and marijuana. The Crown's case centred on an allegation that the accused forcefully pushed the deceased, causing the deceased to strike the back of his head against a wall with considerable force.
The deceased appeared dazed immediately after the incident, which occurred at around 9.00pm. Approximately five hours later, at 2.33am, an ambulance was called after the deceased was found on the kitchen floor. No witness saw the deceased fall, and there was no evidence of what had occurred in the intervening five-hour period.
Following an earlier ruling that excluded an electronically recorded police interview with the accused (R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724), the Crown closed its case. The accused then applied for a directed verdict, arguing there was insufficient evidence to sustain a guilty verdict.
Legal Issues
- Whether the evidence adduced by the Crown was sufficient to sustain a conviction, or whether a directed verdict of not guilty was required.
- Whether the existence of a reasonable hypothesis consistent with innocence is a basis on which a trial judge may direct a verdict.
- Whether it was open to a jury to draw the inference that the accused's conduct caused the deceased's fatal injuries, given the five-hour gap in the evidence and conflicting witness accounts.
Decision
Rothman J acknowledged that the Crown case faced significant difficulties. The pathology evidence indicated the deceased's most serious head injury was more consistent with a fall than with striking a flat wall. One witness, Ms Stewart, gave evidence that the deceased was on the kitchen floor shortly after the push, but her account was substantially undermined: she admitted her perception of time was unreliable due to intoxication, and her account was contradicted by another witness (Ms Mongta) who did not see her at the scene. A further witness, Mr Simms, suggested the deceased fell shortly before the ambulance was called at 2.33am, not immediately after the push.
Despite accepting that reasonable hypotheses consistent with innocence existed, and acknowledging that a guilty verdict might be unreasonable on the evidence, Rothman J concluded these matters did not ground a directed verdict. The applicable legal principle requires a court considering such an application to take the Crown case at its highest, disregarding contradictory evidence unfavourable to the Crown and including all available inferences consistent with guilt. It is the jury's role, not the trial judge's, to resolve conflicts in the evidence and determine which inferences to draw.
The court held that, on the Crown case taken at its highest, it remained open to a properly instructed jury to find that the deceased fell immediately after the push and that his death was caused by the accused's conduct. That inference, though difficult on the evidence, was not legally unavailable. A directed verdict was therefore not warranted.
Rothman J noted that if the jury returned a guilty verdict despite the weaknesses in the Crown case, that outcome would be a matter for the Court of Criminal Appeal on appeal. The trial judge has no residual discretion to withhold a case from the jury simply because a verdict of guilty might be unreasonable.
Orders Made
The application for a directed verdict was refused.
Key Takeaways
- A trial judge is not entitled to direct a verdict of not guilty merely because a reasonable hypothesis consistent with innocence exists on the evidence. The existence of such a hypothesis is a matter for the jury, not a basis for withdrawing the case from them.
- Where a directed verdict is sought, the court must take the Crown case at its highest, setting aside contradictory evidence unfavourable to the Crown and giving full weight to any inference consistent with guilt that is available from the evidence.
- Once the threshold for a directed verdict is not met, no residual discretion exists to direct in any event. The High Court confirmed in Doney v R (1990) 171 CLR 207 that once the test is satisfied, a directed verdict is mandatory; where it is not satisfied, the case must go to the jury.
- The possibility that a jury verdict of guilty might be unreasonable on the evidence is not, of itself, a ground for a directed verdict at trial. Such an argument is properly addressed on appeal to the Court of Criminal Appeal.
- Significant evidentiary gaps and witness credibility problems, including a five-hour unexplained interval and materially inconsistent accounts, may go to the reasonableness of a verdict but do not automatically remove a case from the jury's consideration.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases:
- R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- R v R (1989) 18 NSWLR 74
- R v JMR (1991) 57 A Crim R 39