Citation: R v Michael Anthony Ryan (No. 8) [2012] NSWSC 1161
Court: Supreme Court of New South Wales
Date: 19 September 2012
Judge: S.G. Campbell J
Background
The accused stood trial for manslaughter and a separate assault charge arising from events at Windsor on 4 May 2011. The Crown alleged that the accused punched the deceased, causing him to fall and strike his head heavily on the pavement, resulting in a severe traumatic brain injury from which he later died. The accused had consistently maintained, from his first police interview, that he acted in self-defence throughout the incident.
A key factual dispute ran throughout the trial: the accused admitted delivering a punch to the deceased but maintained that the punch did not cause the fall. His version was that a separate act, pushing the deceased away or forcibly releasing him from a grapple, was the last physical contact before the deceased fell.
Defence counsel had earlier obtained a Prasad direction (an invitation to the jury to consider, at the close of the Crown case, whether the evidence was sufficient to justify a conviction) and subsequently made two further mid-trial applications: one for a verdict by direction of not guilty, and the other for a ruling confining the Crown's manslaughter case to the punch alone as the relevant unlawful and dangerous act.
Legal Issues
- Whether, after the defence had called evidence following a Prasad direction, the court could direct a verdict of not guilty before all evidence was closed.
- Whether the Crown should be restricted to relying on a punch only, and not on any other form of striking such as a push or forcible release from a grapple, as the unlawful and dangerous act founding the manslaughter charge.
- Whether permitting the Crown to rely on alternative physical acts beyond those clearly particularised would prejudice the accused's right to a fair trial.
Decision
Verdict by direction refused. Campbell J held that the application was problematic both in timing and in substance. By accepting a Prasad direction at the close of the Crown case, the defence had implicitly acknowledged that the Crown evidence was legally sufficient. Once the accused had given evidence, the prosecution was entitled to cross-examine and potentially strengthen its own case, making a directed verdict inappropriate before all evidence was closed. The judge drew an analogy with the civil rule, confirmed in Wickstead v Browne, that no verdict by direction can be entered while any party's case remains open.
On the substance, Campbell J was satisfied that, if accepted by the jury, the evidence of several witnesses was capable of supporting convictions on both counts. In particular, the evidence of Mr Moody and Mr Miller, adduced under s 38 of the Evidence Act, was capable of establishing that the accused's punch caused the deceased to fall and strike his head. Expert evidence from Dr Wills connected that fall to the fatal brain injury. Evidence from the earlier events in a nearby mall was also capable of supporting the Crown's case against self-defence.
Crown case limited to a punch. Campbell J accepted the second application and ruled that the manslaughter case could only go to the jury on the basis that the unlawful and dangerous act was a punch, not any other form of striking. The judge relied on the High Court's recent decisions in Patel v The Queen and Burns v The Queen, as well as the principle from Kirk v Industrial Court and Johnson v Miller, that an accused is entitled to know the particular act alleged as the foundation of the charge. The indictment was couched in the most general terms, naming only the date, place, and the bare allegation of unlawful killing. In those circumstances, where the issues had been clearly defined before trial and the distinction between a punch and a push was central to the defence, permitting the Crown to rely on alternative acts would have been prejudicial to the accused's right to a fair trial.
The judge noted that a push or forcible release from a grapple could, in an appropriate case, be legally capable of constituting a dangerous act under Wilson v The Queen. However, that general proposition did not address the accused's entitlement, at the very outset of proceedings, to know precisely which act was alleged against him.
Orders Made
• The Crown case must proceed on the basis that the act relied upon as unlawful and dangerous is a punch and no other form of striking.
Key Takeaways
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The Supreme Court refused to direct a verdict of not guilty mid-trial because, once the accused had entered evidence following a Prasad direction, the prosecution retained the right to cross-examine; directing a verdict before all evidence closed would have usurped the jury's function.
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Accepting a Prasad direction at the close of the Crown case carries an implicit acknowledgment that the Crown evidence is legally sufficient to go to a jury.
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Where an indictment is couched in general terms, and the issues between the parties have been closely defined before trial, the Crown may be held to a specific particularisation of the unlawful act alleged, consistent with the accused's common law entitlement articulated in Kirk v Industrial Court and Johnson v Miller.
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The High Court decisions in Patel v The Queen and Burns v The Queen (both decided in 2012) were identified as recent reaffirmations of the principle that the prosecution cannot shift the factual basis of its case in a way that undermines a fair trial.
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A push or forcible release from a grapple is capable in principle of constituting an unlawful and dangerous act for manslaughter purposes under Wilson v The Queen, but that general legal capability does not override an accused's right to clear particularisation of the act actually alleged.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 24
- Criminal Procedure Act 1986 (NSW), s 11
Cases
- Burns v The Queen [2012] HCA 35
- Johnson v Miller (1937) 59 CLR 467
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- May v O'Sullivan (1955) 92 CLR 654
- Patel v The Queen [2012] HCA 29
- R v Mai & Anor (1992) 26 NSWLR 371
- R v Pahuja (1987) 49 SASR 191
- R v Prasad (1979) 23 SASR 161
- Smith v Moody [1903] 1 KB 56
- Wickstead v Browne (1992) 30 NSWLR 1
- Wilson v The Queen (1992) 174 CLR 313
- Zanetti v Hill (1962) 108 CLR 433