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Court of Criminal Appeal 19 August 2004

R. v. RIK [2004] NSWCCA 282 revised - 06

[2004] NSWCCA 282

HomicidePublic order & justice offences
CRIMINAL LAW APPEAL MANSLAUGHTER WHETHER EVIDENCE SUFFICIENT WHETHER VERDICT UNREASONABLE WHETHER CONDUCT OF APPELLANT DANGEROUS

Citation: R v RIK [2004] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 19 August 2004
Judge(s): Hodgson JA; Hulme J; Smart AJ

Background

The appellant, a young man just days short of his eighteenth birthday, confronted a stranger seated on a platform at Redfern Railway Station. Having alighted from a train, he approached the deceased twice, twice restrained by two women accompanying him, while repeatedly demanding in aggressive terms what the deceased was staring at. The confrontation lasted approximately 28 seconds in total.

The deceased, a 44-year-old man described by witnesses as calm and conflict-averse, did not respond verbally. Instead, he walked to the edge of the platform and jumped onto the tracks, crossing toward an adjacent platform. A train approached from the opposite direction. The deceased attempted to climb onto the adjacent platform but was struck by the train and died almost immediately.

The appellant was tried before Kirby J and a jury in the Supreme Court on counts of manslaughter, affray, and endangering safety of a person on a railway. The jury returned a verdict of guilty on the manslaughter count. The appellant was sentenced to three years' imprisonment, with a non-parole period of twelve months, to be served in a Juvenile Detention Centre. He appealed against his conviction on two grounds.

  • Whether the trial judge erred in refusing to direct a verdict of not guilty at the close of the Crown case, on the basis that the evidence could not support a finding that the appellant's conduct was "dangerous" within the meaning required for unlawful and dangerous act manslaughter.
  • Whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence, including whether the deceased's response of fleeing onto the railway tracks was reasonable and proportionate in the circumstances.

Decision

On the question of dangerous conduct, the Court held that it was open to the jury to find beyond reasonable doubt that the appellant's acts would have caused a reasonable person in the appellant's position to appreciate a real risk of serious injury to the deceased. The Court noted the relevant setting: a busy railway station, a narrow elevated island platform surrounded by tracks, with exits only at the far end. A reasonable person in that position could have appreciated that aggressive conduct causing another person to flee in fear might result in that person reaching the platform edge with limited escape options.

On the question of causation and the reasonableness of the deceased's response, the Court found it was open to the jury to conclude that the deceased had acted reasonably and proportionately. The deceased had checked for approaching trains before stepping onto the tracks, and his initial decision to cross could be seen as a rational, if frightened, choice given the layout of the platform and the absence of any nearby exit. His subsequent decision to continue across the second track when a train approached was assessed as a mistake made in the agony of the moment, prompted by the startling sound of the train's warning horn.

The Court emphasised that the question on appeal was not whether the Court of Criminal Appeal would itself be satisfied of these matters, but whether no reasonable jury, properly directed, could have been so satisfied. The Court found that the evidence was sufficient to support the verdict and that the verdict was not unreasonable.

All three judges agreed in dismissing the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • For unlawful and dangerous act manslaughter, the relevant question is whether a reasonable person in the position of the accused would have appreciated a real risk of serious injury arising from the conduct, assessed in light of all surrounding circumstances including the physical environment.
  • The Court of Criminal Appeal confirmed that the physical characteristics of the scene, including a narrow elevated railway platform with limited exits, were properly treated by the jury as relevant to whether the appellant's conduct was objectively dangerous.
  • A victim's response to threatening conduct does not break the chain of causation where that response is reasonable and proportionate, including where later decisions made in the "agony of the moment" may, in hindsight, have been mistaken.
  • In dismissing the appeal, the Court applied the well-established standard that a verdict will only be set aside as unreasonable if no reasonable jury, properly directed, could have reached it. Disagreement by an appellate court with the jury's assessment is insufficient.
  • Sufficient evidence existed to support both the dangerous conduct element and the causation element, notwithstanding that the appellant never physically touched the deceased and the entire confrontation lasted fewer than 30 seconds.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment provided. The offences addressed were manslaughter by unlawful and dangerous act, affray, and endangering the safety of a person on a railway under New South Wales law.