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Supreme Court 17 December 2019

R v Batterham

[2019] NSWSC 1798

Homicide
CRIMINAL LAW COSTS WHERE MEDICAL OPINION THAT PRE WHERE COURT OF OPINION IN S 3(1)(A).

Citation: R v Batterham [2019] NSWSC 1798
Court: Supreme Court of New South Wales
Date: 17 December 2019
Judge(s): Fagan J

Background

The accused was acquitted by a Newcastle jury on 20 November 2019 of murdering Ricky Slater, a man who had broken into the accused's home in the early hours of 26 March 2016 and stolen items from his infant daughter's bedroom. Following the break-in, the accused gave chase on foot for approximately 325 metres before tackling Slater to the ground and restraining him, pending the arrival of police. Slater died at the scene.

The accused punched Slater repeatedly about the head and neck during the restraint, and held him face down with an arm around his neck. Slater was heard to say he could not breathe. The restraint was witnessed by a friend of the accused and several neighbours who came outside during the struggle.

Following his acquittal, the accused applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). If granted, such a certificate enables the holder to apply to the Director-General of the Attorney General's Department for payment of defence costs.

  • Whether, had the prosecution possessed evidence of all relevant facts before instituting proceedings, it would not have been reasonable to charge the accused with murder (s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW))
  • Whether any act or omission by the accused that contributed to the institution of proceedings was reasonable in the circumstances (s 3(1)(b))
  • The lawfulness of the accused's citizen's arrest and the degree of force used in effecting it

Decision

Fagan J granted the certificate. The central issue was causation: whether the accused's actions caused Slater's death. Medical evidence established that Slater had severe underlying cardiac disease attributable to chronic methamphetamine use, and that methamphetamine was present in his system in a potentially lethal concentration at the time of the incident. The cardiologist, Dr Kennedy, gave evidence that the combination of maximal physical exertion and the powerful stimulant effect of the drug created conditions highly likely to trigger a fatal cardiac arrhythmia, regardless of any external restraint applied.

In Dr Kennedy's opinion, if Slater had not been using methamphetamine, it was highly unlikely he would have died. The cause of death was, in the doctor's view, the drug acting on a damaged heart under conditions of extreme physical stress, rather than the actions of the accused. This medical opinion went directly to the causation element of the murder charge.

Fagan J reasoned that if the prosecution had held this expert opinion at the time the charge was laid, it would not have been reasonable to institute murder proceedings. The medical evidence removed the factual foundation for the causation element. The court also noted that the accused's conduct in chasing and restraining Slater was consistent with a lawful citizen's arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), noting that the entitlement to use reasonable force in effecting such an arrest was relevant to the overall assessment. The force used, while significant, was examined in that context.

On the second limb of s 3(1)(b), the court was satisfied that the accused's actions in pursuing and detaining a person who had broken into his home were reasonable in the circumstances. Both conditions for the certificate were therefore met.

Orders Made

  • A certificate was issued under s 3 of the Costs in Criminal Cases Act 1967 (NSW) in respect of the prosecution of the accused for the murder of Ricky Slater on 27 March 2016 at Hamilton, New South Wales.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the applicant bears the onus of showing, on an objective analysis, that it would not have been reasonable to institute proceedings had the prosecution possessed evidence of all relevant facts at that time.
  • Where expert medical evidence establishes that a pre-existing condition and drug use caused death independently of the accused's actions, that evidence can negate the causation element of a murder charge and support the grant of a costs certificate.
  • The existence of a prima facie case does not automatically mean institution of proceedings was reasonable, particularly where contradictory expert evidence bears on a central element such as causation.
  • A citizen's arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was treated by the court as a relevant contextual factor in assessing whether the accused's conduct contributing to the proceedings was reasonable within the meaning of s 3(1)(b).
  • Applying the framework from Cittadini v R [2010] NSWCCA 291, the court conducts a hypothetical inquiry based on all facts established up to the conclusion of trial, not merely those known to the prosecution when the charge was laid.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- Cittadini v R [2010] NSWCCA 291
- Mamote-Kulang v The Queen (1964) 111 CLR 62; [1964] HCA 21
- R v Moffatt [2000] NSWCCA 174
- Royall v The Queen (1990) 172 CLR 378
- Chahal v Director of Public Prosecutions [2008] NSWCA 152 (cited in Cittadini)
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (cited in Cittadini)