Citation: R v Stephen (No. 4) [2018] NSWSC 169
Court: Supreme Court of New South Wales
Date: 20 February 2018
Judge: Button J
Background
The accused was charged on a single count of murder. At trial, self-defence was a central issue, with both parties flagging its significance in their openings. On 15 February 2018, Button J directed verdicts of not guilty on certain alternative bases, and ultimately the Crown prosecutor indicated he would not press for a murder conviction at all.
The Crown instead confined itself to manslaughter on the basis of excessive self-defence. Under that theory, the accused voluntarily caused the death of the deceased with the requisite intent, believed her actions were necessary in self-defence, but did not act with a reasonable response in the circumstances as she perceived them (the second limb of s 418 of the Crimes Act 1900 (NSW)).
The defence applied for a direction that manslaughter by unlawful and dangerous act (referred to in the judgment as "substantive manslaughter") should not be left to the jury. The Crown prosecutor supported that position by confirming he would not rely on that alternative basis. The question for Button J was whether the trial judge nonetheless had an independent obligation to leave it.
Legal Issues
- Whether a trial judge is obliged to leave an alternative basis of manslaughter (manslaughter by unlawful and dangerous act) to the jury where a viable evidentiary pathway to that verdict exists, but the Crown has expressly chosen not to rely on it.
- Whether the principles requiring alternative verdicts to be left as "pathways away" from murder remained relevant once murder had been removed from the jury's consideration by direction.
- Whether the historic indivisibility of murder and manslaughter continued to apply in this context.
Decision
Button J initially took the view that substantive manslaughter should be left to the jury regardless of the Crown's position, for three reasons: the pathway to that verdict appeared viable on the evidence (applying the test in Carney v R; Cambey v R); the alternative verdict could serve as a "pathway away" from murder conviction consistent with Gillard v The Queen; and the historic indivisibility of the two forms of homicide was relevant.
His Honour's analysis shifted once the directed verdict on murder was entered. With murder removed, the rationale for leaving an alternative pathway away from that charge fell away entirely. There was simply no longer any murder verdict from which the jury needed a route of escape.
Button J drew an analogy with cases in which the Crown "pins its colours to the mast" on a particular legal theory or factual case, as discussed by the Court of Criminal Appeal in Romolo v The Queen [2018] NSWCCA 3. He likened the position to one where the Crown elects to allege only that an accused was a principal in the first degree, even though the evidence might also support liability as a principal in the second degree. In those circumstances, a trial judge is not obliged to leave the unchosen basis of inculpation.
Button J concluded that leaving substantive manslaughter to the jury in those circumstances would "border on the bizarre," given that the Crown was not contending for it. Accordingly, he accepted the defence submission and declined to leave that alternative basis to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The obligation on a trial judge to leave alternative manslaughter bases to the jury, even without Crown reliance, is closely connected to the presence of a murder count. Once murder is removed by direction, that rationale dissolves.
- Where murder is no longer before the jury, the principle that alternative verdicts serve as "pathways away" from a murder conviction has no application.
- The historic indivisibility of murder and manslaughter does not independently require a trial judge to leave an alternative manslaughter basis in the absence of a murder count.
- A distinction exists between the general "interests of justice" test for leaving statutory alternatives and the "viability" test applicable to murder and manslaughter alternatives, as drawn by the High Court in James v The Queen (2014) 253 CLR 475. However, viability alone is not determinative once the murder count is gone.
- When the Crown expressly confines its case to a particular legal pathway, leaving a separate unchosen basis of liability for the same charge can be inappropriate, consistent with Romolo v The Queen [2018] NSWCCA 3.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 418 (self-defence provisions)
Cases
- Carney v R; Cambey v R [2011] NSWCCA 223
- Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- James v The Queen [2014] HCA 6; (2014) 253 CLR 475
- Romolo v The Queen [2018] NSWCCA 3