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Supreme Court 9 June 2015

R v McNeil (No 3)

[2015] NSWSC 758

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE MURDER INTENTION TO CAUSE GRIEVOUS BODILY HARM EVIDENCE TO BE TAKEN AT IS HIGHEST APPLICATION REFUSED

Citation: R v McNeil (No 3) [2015] NSWSC 758
Court: Supreme Court of New South Wales
Date: 9 June 2015
Judge: R A Hulme J

Background

The accused stood trial for the murder of a young man struck with a single punch on Victoria Street, Kings Cross on New Year's Eve 2013. The Crown alleged the accused approached the deceased, a complete stranger, and delivered a punch that caused him to fall and strike his head on the roadway. The deceased suffered catastrophic injuries and subsequently died.

The Crown's case rested on the proposition that the accused intended to cause grievous bodily harm (that is, really serious bodily harm) when he threw the punch. The defence accepted that the act was unlawful and dangerous but disputed the existence of any such intention, contending the appropriate verdict was manslaughter rather than murder.

At the close of the Crown case, senior counsel for the accused applied for a directed verdict of not guilty on the murder charge, arguing that the evidence was incapable of establishing the requisite intent beyond reasonable doubt.

  • Whether the evidence, taken at its highest in favour of the Crown, was capable of supporting a finding that the accused intended to cause really serious bodily harm at the time of the fatal punch.
  • Whether the trial judge had power to direct a verdict of not guilty on the basis that a guilty verdict would be unreasonable or unsupported by the evidence, as distinct from there being a defect in the evidence itself.

Decision

Hulme J applied the established test from Doney v The Queen and R v LK: a directed verdict is available only where there is a defect in the evidence such that, taken at its highest, it cannot sustain a guilty verdict. The judge noted that even tenuous, weak, or vague evidence must be left to the jury if it is capable of supporting a guilty verdict. It is not the trial judge's role to direct an acquittal simply because a guilty verdict might be thought unreasonable.

The judge identified several bodies of evidence relevant to the question of intent. These included CCTV footage, eyewitness descriptions of the punch, the accused's own police interview, and expert forensic pathology evidence. The eyewitness accounts described the punch in terms suggesting a powerful, deliberate, sweeping blow delivered at speed, travelling from low near the waist and upward to the face. In his police interview, the accused himself described the punch as an "upper cut."

Hulme J also took into account contextual matters. Shortly before the fatal assault, the accused had punched and kicked another person. In the moments immediately preceding the attack on the deceased, witnesses described the accused as muscular, physically agitated, and stating he was an MMA fighter. The accused weighed approximately 110 kg and trained with weights.

Taking all of this evidence at its highest, the judge concluded it would be open to the jury to find the accused intended to cause really serious bodily harm. Whether that conclusion would ultimately be a reasonable one was a question for the jury, not the judge. The application was refused.

Orders Made

• The application is refused.

Key Takeaways

  • A trial judge's power to direct a verdict of not guilty is narrow: it arises only where there is a defect in the evidence such that, taken at its highest, it cannot sustain a guilty verdict, not merely because a verdict might appear unreasonable.
  • The Supreme Court confirmed that even weak, vague, or tenuous evidence must go to the jury if it is capable of supporting a guilty verdict, consistent with Doney v The Queen (1990) 171 CLR 207.
  • In assessing intent to cause grievous bodily harm, circumstantial factors such as the accused's physical build, prior aggressive conduct moments earlier, self-identification as a trained fighter, and the nature and trajectory of the blow were all capable of being taken into account by a jury.
  • The distinction between the judicial function and the jury function is critical: the reasonableness of a verdict is a matter for the jury; the legal sufficiency of the evidence to go to the jury is a matter for the judge.
  • Refusing the directed verdict application did not determine guilt; it confirmed only that the murder charge was properly to be resolved by the jury on the evidence available.

Legislation and Cases Referenced

Cases:
- Doney v The Queen [1990] HCA 51; 171 CLR 207
- R v LK [2010] HCA 17; 241 CLR 177
- R v R (1989) 18 NSWLR 74

Legislation: No specific legislation was cited in the provided text.