Citation: R v Meakin (No. 2) [2016] NSWSC 1035
Court: Supreme Court of New South Wales
Date: 27 July 2016
Judge(s): Davies J
Background
The accused stood trial for murder, with the Crown alleging he deliberately drove his van into the deceased. The Crown's primary case was that the accused either intended to kill the deceased or intended to cause him grievous bodily harm by striking him from behind with the vehicle.
The accused's version was that the deceased suddenly stepped onto the roadway in front of the van, making the collision accidental. The key factual dispute was therefore a binary one: a deliberate act by the driver, or an unavoidable collision.
During the course of the trial, a question arose about whether the jury should also be directed on a third basis for murder liability, namely reckless indifference to human life. This prompted argument from both the Crown and defence counsel before Davies J ruled on the issue.
Legal Issues
- Whether there was a sufficient evidentiary basis to leave reckless indifference to human life as an alternative route to a murder verdict.
- Whether leaving reckless indifference would risk confusing the jury, particularly given intoxication evidence and the relatively binary factual dispute.
- Whether manslaughter on the basis of an unlawful and dangerous act remained available as an alternative verdict.
Decision
Davies J ruled that reckless indifference to human life would not be left to the jury as a basis for murder. The Crown had opened and conducted its case on the footing that the accused deliberately struck the deceased, either to kill him or cause grievous bodily harm. Beyond one suggestion put to the accused in cross-examination, that he had driven at the deceased merely to scare him, there was no evidence in the trial capable of supporting a reckless rather than intentional act. The accused denied even that alternative proposition.
His Honour noted that reckless indifference, as a basis for murder, contemplates a slightly less morally culpable act than intentional killing, citing McHugh J in Royall v The Queen and The Queen v Crabbe. Where the evidence presented no primary basis for concluding the accused acted recklessly rather than deliberately, that alternative pathway simply had no evidentiary foundation.
Davies J also expressed doubt about the defence submission that intoxication could affect foreseeability of consequences differently from the capacity to form an intention to kill, referencing R v Grant. However, his Honour accepted that submissions about intoxication in the context of reckless indifference would be likely to create unnecessary confusion for the jury, where no primary evidence pointed to a reckless act in the first place.
The court did accept that manslaughter on the basis of an unlawful and dangerous act remained available. An attempt to scare the deceased by the manner of driving could, in principle, ground that alternative verdict. Leaving manslaughter on that basis did not require the additional step of directing the jury on reckless indifference to human life for murder.
Orders Made
• Reckless indifference is not to be left to the jury
• An alternative verdict of manslaughter based on an unlawful and dangerous act (attempt to scare the deceased by manner of driving) is to be left to the jury
Key Takeaways
- Reckless indifference to human life as a basis for murder requires an evidentiary foundation: where the Crown's entire case is built on deliberate, intentional conduct, and no primary evidence points to a merely reckless act, the alternative is not properly left to the jury.
- A suggestion put to an accused in cross-examination that was flatly denied, standing alone, was insufficient to create an evidentiary basis for leaving reckless indifference to the jury.
- The Supreme Court confirmed the distinction drawn in Royall v The Queen between intentional killing or grievous bodily harm and a reckless act done in disregard of probable consequences, the latter being regarded as slightly less morally culpable.
- Leaving a legally available but evidentially unsupported direction risks confusing jurors and distracting them from the genuine issues in dispute, particularly in trials involving intoxication evidence.
- Manslaughter on the basis of an unlawful and dangerous act can remain available as an alternative verdict without it being necessary also to direct the jury on murder by reckless indifference.
Legislation and Cases Referenced
Cases:
- Campbell v R [2014] NSWCCA 175
- R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
- Royall v The Queen (1991) 172 CLR 378
- The Queen v Crabbe (1985) 156 CLR 464
Legislation: No specific legislation was cited in the judgment.