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Supreme Court 20 February 2018

R v Stephen (No. 3)

[2018] NSWSC 168

Homicide
CRIMINAL LAW PROCEDURE TRIAL BY JURY ON COUNT OF MURDER APPLICATION FOR VERDICT BY DIRECTION TRIAL TO PROCEED ON MANSLAUGHTER

Citation: R v Stephen (No. 3) [2018] NSWSC 168
Court: Supreme Court of New South Wales
Date: 20 February 2018
Judge: Button J

Background

The accused stood trial at Broken Hill on a single count of murder. The Crown alleged she had stabbed the deceased in the chest on 5 October 2015 at their shared home, causing his death. The Crown never disputed that she had been subjected to severe violence by the deceased, both on the night in question and repeatedly throughout their relationship.

From the outset, a central issue at trial was whether the accused had acted in self-defence when she inflicted the fatal wound. After the Crown closed its case on 15 February 2018, defence counsel applied for a directed verdict of not guilty on the murder count.

During argument on that application, it emerged that the Crown prosecutor had never actually intended to seek a verdict of guilty of murder from the jury. The Crown's true objective was a verdict of manslaughter on the basis of excessive self-defence, under s 423 of the Crimes Act 1900 (NSW). The murder count had been included in the indictment on the view, held within the DPP's chambers, that arraignment on murder was a necessary legal technicality to pursue that manslaughter pathway.

  • Whether, on the Crown case taken at its highest, there was sufficient evidence that the accused intended to inflict grievous bodily harm on the deceased to support a murder count (the first application for a directed verdict).
  • Whether, on the Crown case taken at its highest, there was any evidence capable of disproving the "first leg" of self-defence, namely that the accused believed it was necessary to stab the deceased to defend herself (the second application).
  • Whether a directed verdict of not guilty on the murder count was required once the Crown conceded it was not, in truth, alleging the accused was guilty of murder.

Decision

Button J initially rejected the first application for a directed verdict. He found that the combination of undisputed facts, including the use of a knife, the precise location of the wound on the left side of the chest, the track of the blade through the lung and into the heart's right ventricle, and its depth of 12 to 14 centimetres, provided at least some evidence from which a jury could infer an intention to inflict grievous bodily harm. That was sufficient under the test in Doney v The Queen (1990) 171 CLR 207.

The second application prompted a discussion between the Bench and counsel about what evidence in the Crown case could, by inferential reasoning, disprove the accused's alleged belief that stabbing was necessary. This included potential "consciousness of guilt" evidence, such as the accused washing the knife after the stabbing. During that exchange, the Crown prosecutor made clear he would not rely on such evidence for consciousness of guilt reasoning, and went further: he disclosed that, despite having presented an indictment alleging murder, he would not be asking the jury to convict of murder at all.

Button J noted he had not previously appreciated this position. Once the Crown confirmed it was not genuinely alleging murder, his Honour concluded that a directed verdict on the murder count was inevitable. The reasoning was not based on his own assessment of whether the Crown case could disprove self-defence; rather, where the Crown itself does not allege the accused is guilty of the offence charged, it is inconceivable that a trial on that count can properly continue.

On 16 February 2018, Button J directed the jury to return a verdict of not guilty of murder, and they did so. The trial then continued on a count of manslaughter by way of excessive self-defence, with separate judgments addressing subsequent procedural questions arising from that count.

Orders Made

  • A verdict of not guilty of murder was directed, and the jury returned that verdict on 16 February 2018.
  • The trial was to continue on a count of manslaughter (excessive self-defence) under s 423 of the Crimes Act 1900 (NSW), subject to further applications addressed in separate judgments.

Key Takeaways

  • Where the prosecuting authority concedes before the jury that it is not alleging guilt of the offence charged in the indictment, a directed verdict of not guilty on that count is, as Button J held, inconceivable to resist.
  • The test for refusing a directed verdict at the close of the Crown case remains whether there is some evidence on each element: Doney v The Queen (1990) 171 CLR 207. The combination of physical facts surrounding a stabbing can, in appropriate circumstances, provide sufficient evidence of an intent to cause grievous bodily harm.
  • Button J expressly declined to express any opinion on the Crown's proposition that arraignment on a count of murder is a legal prerequisite to pursuing manslaughter by excessive self-defence under s 423 of the Crimes Act 1900 (NSW), noting he was aware of no authority supporting it.
  • Judicial disclosure of preliminary views on evidence during a directed verdict application may raise questions of apprehended bias. In this case, the matter was raised by counsel but no formal disqualification application was ultimately made, following reference to Antoun v The Queen [2006] HCA 2.
  • A court assessing the Crown case "at its highest" for the purpose of a directed verdict must have a clear and accurate understanding of what the Crown actually alleges. The Crown's own concession about the limits of its case directly shapes the legal analysis.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 418, 423 (self-defence and excessive self-defence)

Cases
- Antoun v The Queen [2006] HCA 2; (2006) 159 A Crim R 513
- Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207