R v Castaneda (No. 3)

[2015] NSWSC 1104

Supreme Court

New South Wales

Medium Neutral Citation:	R v Castaneda (No. 3) [2015] NSWSC 1104
Hearing dates:	21 July 2015
Date of orders:	21 July 2015
Decision date:	23 July 2015
Jurisdiction:	Common Law - Criminal
Before:	Wilson J
Decision:	1. Verdict of not guilty directed on the charge of murder. 2. Application for Prasad direction on the alternative charge of manslaughter is refused.
Catchwords:	CRIMINAL LAW – procedure – trial before a jury – application for a directed verdict – whether evidence adduced by the Crown capable of supporting a verdict of guilty – inability of evidence to negative issue of self-defence – question of whether Prasad direction should be given in relation to alternative charge of manslaughter
Legislation Cited:	Crimes Act 1900
Cases Cited:	Doney v The Queen [1990] HCA 51; 171 CLR 207 R v LK [2010] HCA 17; 241 CLR 177 R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161
Category:	Procedural and other rulings
Parties:	Regina Marcela Castaneda
Representation:	Counsel: P Barrett (Crown) P Strickland SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Watsons Lawyers (Accused)
File Number(s):	2013/56854
Publication restriction:	Restricted to parties until a verdict is reached,Verdict returned on 30 July 2015

Judgment

1. On 15 July 2015 the accused was arraigned before a jury panel on an indictment charging her with the murder of Gregory Peck, on 22 February 2013, at Cecil Hills in the State of New South Wales.

2. On 21 July 2015, at the end of the Crown case, I acceded to an application from her to direct the jury to return a verdict of not guilty to that charge. I declined an application to give the jury a direction in accordance with R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161, with respect to the alternative charge of manslaughter.

3. These are my reasons for those decisions.

4. This is a case in which the issue of self-defence has always loomed large. The Crown case in summary is that, after an argument between the accused and the deceased, her de facto partner, at the couple’s home on the late evening of 22 February 2013, the accused inflicted a single stab wound to Mr. Peck’s chest. The wound penetrated some fifteen centimetres into the body, penetrating Mr. Peck’s heart. The wound was of a type that was unlikely to be survivable, even if medical treatment had been rendered immediately. Although the accused immediately contacted the triple 0 emergency operator, and ambulance officers arrived at the location very quickly, Mr. Peck was declared dead at 12.30am on 23 February 2013 after his arrival at hospital.

5. The accused was arrested at the scene and taken to the Green Valley Police Station. She was subsequently charged with Mr. Peck’s murder.

6. The Crown opened its case to the jury in this way.

“The issue for you in this trial will ultimately be twofold. The issue will be why did she stab him and was it done in self-defence. Or on the Crown case, was it done in retaliation for the dispute; the argument that had been taking place, and in earlier actions by the deceased towards Ms Castaneda.” (T65:39 - 43).

[…]

Ms Castaneda spoke to the triple-0 operator when she called for assistance shortly after she stabbed Mr Peck and I expect you’ll hear that version this afternoon. She also spoke with police who attended shortly afterwards and she gave an account to them of what happened. I expect you’ll also hear that account this afternoon.

It’s those two accounts; the first given to the triple-0 operator over the telephone and the second to police officers who first attended that will be the primary focus of your consideration of the issues in this trial (T65:48 – T66:07).

[…]

It’s the Crown case that when you consider what she told the triple 0 operators and then what she subsequently told the police officers at the house, and then what she later told her former husband about what had happened. When you compare those you will see that there’s a distinction or a difference between the accounts. The first account was that she thought he was going to hit her, the latter account was that he had taken her by the throat and then released her and then she’d got the knife and following that had stabbed him (T68:47 – T69:03).

[…]

It’s the Crown case that albeit it was during or after an argument between Ms Castaneda and the deceased, in circumstances where the deceased had been drinking heavily, at their home on the Friday evening, that Ms Castaneda did not act genuinely in self-defence when she stabbed the accused, but did so in retaliation or because of having been provoked in the lay sense of having been angered by what had happened to her shortly before that, and had happened to her in this argument that they were having about their intended, but postponed, wedding in the circumstances of their relationship (T71:43 – T71:50).”

7. It was the Crown’s contention that it would prove to the requisite standard that the accused stabbed Mr. Peck, not in self-defence but in retaliation or in anger, which has not been borne out by the evidence.

8. In support of the application for a directed verdict Mr. Strickland, senior counsel for the accused, referred to particular aspects of the evidence led in the Crown case which raised the issue of self-defence, something which he submitted the Crown had failed to negative.

The Evidence

9. The evidence of Dr. Johan Duflou, the forensic pathologist who examined Mr. Peck post mortem, was that Mr. Peck died as a consequence of a single stab wound to the left side of the chest, which passed from the front of the body, through the cartilage of the fourth rib, through the upper lobe of the left lung, and through the heart, ending in the lower lobe of the left lung. The wound tracked slightly downwards and slightly to the left, although its path relevant to a body in motion as opposed to rigidly upright could not be determined.

10. Such a wound when inflicted by a knife with a sharp point, as was the case here, would require a minor amount of force. If the deceased had been moving forward towards the accused at the time, it may have been inflicted with no force used by the accused (T291:23). The depth of the wound could be accounted for, at least partially, by the deceased falling onto a table with the knife in his chest, causing deeper penetration, a scenario put to and accepted by Dr. Duflou as a reasonable possibility (T292:38).

11. Dr. Duflou noted some other, trivial injuries, but these appear to have no particular relevance.

12. The deceased had a blood alcohol level of about 0.15 grams per 100 millilitres, a figure familiar as the high range prescribed concentration of alcohol. He also had a condition commonly known as “fatty liver” which is frequently associated with the excessive consumption of alcohol over an extended period.

13. In a telephone call to a triple 0 emergency operator shortly before 11.42 on the evening of 22 February 2013 the accused told the operator,

“My partner went to hit me and I grabbed the knife and I, I, I, I. I stabbed him (Ex. B, p.1).”

14. She later said,

“I did it ‘cause he was trying to hit me and I got scared.” (ibid, p.7)

15. In the recording of the call played to the jury the accused’s state of distress was plain. She repeatedly asked the operator to help her, and repeatedly asked that the ambulance hurry. At one point, in the context of some instruction from the operator concerning first aid, Ms. Castaneda told the operator,

“He’s been drinking all night, does that matter.” (ibid, p.3)

16. During the conversation she also said,

“Oh my god, I didn’t mean to, I didn’t mean to do this.” (ibid, p.4).

17. The first police to arrive at the Cecil Hills address were Senior Constable Gavin Richardson and Constable Sarah McMurtrie. The officers arrived at 11.51 that night. They could hear a woman’s voice calling for help. They saw the accused at the rear of the premises on a patio area kneeling beside Mr. Peck, holding a bloody towel to his chest.

18. Constable McMurtrie asked the accused where the knife was, and she indicated its location, on the grass in the back garden. When asked who had stabbed Mr. Peck she said, “I did” (T102:45). She also said,

“He was coming at me. I got scared, so I went like that.” (T103:01).

19. In saying “that”, the accused demonstrated a motion to the officer, replicated by Constable McMurtrie in evidence, where her left arm was held up with her left hand held palm outwards in a gesture such as that used by a police officer when signalling to traffic to stop. Her right hand was held in a fist as if clasped around something, at about chin level, with the hand advancing in a slightly forwards motion. This demonstrated the movement, holding a knife, Ex. F, that led to the infliction of the fatal wound.

20. To Senior Constable Richardson, the accused said that she and Mr. Peck had been in the kitchen arguing. She said,

“[…] he tried to choke me. I defended myself and he stumbled out here [the rear patio area] and knocked over the glass, then he went up the side.” (T121:16 – 19).

21. She later added,

“We were having an argument and he came up to me. He grabbed me by the throat.” (T123:20).

22. The balance of the conversation was recorded by another officer on a mobile telephone. The recording and a transcript were tendered as Ex. C. The accused told Senior Constable Richardson,

“We were arguing and he grabbed me by the throat, and then I ran back here and then he’s like, ‘Don’t fucking start with me’. I go, ‘You need to get away from me,’ and I grabbed the knife and he goes, ‘Aw, you want to do this.’ He went around and then he got close to me, and I just hit him, and then he stumbled out, hit the table and then went to the floor, and I was like, ‘oh my God’, and then I called the police.”

23. The accused was arrested, taken to Green Valley Police Station, and admitted into custody. She asked officers there to contact her former husband on her behalf, and David Jancovic subsequently attended the police station and sat with the accused. She told him,

“I was on the computer and we were arguing about the wedding. I wanted to call it off. He started choking me. When he let go I got up and went to the kitchen. I grabbed a knife. I was really scared.’ She said ‘all I wanted to do was keep him away. He came towards me and I was trying to keep him away. Somehow the knife ended up in his shoulder. I didn’t mean to stab him. He stumbled back, then he walked outside and collapsed. I rang the ambulance straight away and tried to stop the bleeding.”

24. Mr. Jancovic saw an injury to Ms. Castaneda’s forehead.

25. Consistent with Ms. Castaneda’s claim that the deceased had his hands on her throat choking her prior to the stabbing was evidence from Clinton Cochrane, a senior forensic biologist who examined various samples from the crime scene, the deceased, and the accused. Mr. Cochrane extracted DNA from a swab taken from the accused’s neck and found it to be a mixture of the DNA of two individuals. The major component of the mixture was, as might be expected, DNA consistent with that of the accused. The minor component was DNA consistent with that of the deceased.

26. Mr. Cochrane deposed that one method by which the deceased’s DNA could have been deposited on the accused’s neck was by contact between the deceased’s hands and the accused’s neck, leaving skin cells behind. Because skin cells are not a high yielding source of DNA, a degree of friction or the forceful or prolonged application of the deceased’s hands would be necessary to deposit the amount of DNA found there. Alternatively, Mr. Cochrane said it was possible that DNA could have been deposited at the high level noted, by the accused touching her neck and thereby transferring the deceased’s blood from her hands to her neck. Mr. Cochrane deposed that this route of deposition was possible even where no blood was visible on the neck where it was swabbed, as was the case here.

27. In photographs which are part of Ex. A, areas of discolouration can be seen on the accused’s neck. Photograph 29 of Ex. A appears to show an area of mottled skin on the right side of the accused’s throat, whilst photograph 30 shows an area of redness on the left side of her throat, at about the level of the top of the shoulders. These photographs of the accused were taken by police at around 8.15 on the morning of 23 February 2013.

28. There was evidence in the Crown case of acts of previous violence to which the accused was subjected by the deceased.

29. In March 2010 there had been a violent argument between the couple, and the deceased had placed the accused into what he referred to as a “sleeper hold”. According to Dr. Duflou a sleeper hold is where the victim’s neck is placed between the forearm and the upper arm of the person administering the hold, such that the victim’s neck is wedged into the inner crook of the arm. Such a hold can lead to unconsciousness within ten to fifteen seconds, and there is a risk of death (T293 – 294).

30. The police had been called to this incident and the deceased had acknowledged placing the accused into a sleeper hold, he said to restrain her when she hit him. Senior Constable Alice Kula saw an injury to the accused’s neck and knee, and photographs were taken (Ex. 4). A statement was obtained from the accused, and details of her statement were given in evidence (T306 – 307). Her allegation against the deceased included an allegation that he had choked her to the point where she felt unable to breathe. The deceased was arrested by police but later released without charge. An interim Apprehended Domestic Violence Order (“ADVO”) was obtained by the police for the accused’s protection.

31. On 2 September 2012 the police were again called to attend the accused’s shared residence with the deceased. Although it was the deceased who contacted police on that occasion, when Constable Michael Johns arrived at the scene at about 2.30 that morning his observations of Mr. Peck were such that he sought and obtained an interim ADVO for the protection of the accused. A copy of the order was tendered as Ex. 2.

32. Constable Johns deposed that the deceased was intoxicated; he smelled of alcohol and was unsteady on his feet. Mr. Peck told the officer that the accused had given him “a soft push” (T228:38). He said there had been an argument about the television being too loud, at a time when the deceased was watching grid iron football.

33. The accused told Constable Johns,

“I’m scared of him when he drinks. I don’t know what he might do. I’m worried that one day he might hurt me.” (T229:08)

34. The accused also expressed her concerns about the increased consumption of alcohol by the deceased.

35. There was additional evidence as to the accused’s accounts to others, such as Mr. Peck’s maternal aunt, of his heavy drinking and repeated acts of violence towards her. She had made complaint from time to time to her former husband, the police, and Judy Carr.

36. There was other evidence of the deceased’s acts of violence towards a former girlfriend, Ms. Lucas. This evidence was admitted because Ms. Lucas had, in e-mail and Facebook messages, told the accused that the deceased had been violent and abusive to her during the course of their relationship. It was also relied upon by the accused to establish a tendency of the deceased to violence towards his partners when drinking.

The Applications

37. It was Mr. Strickland’s submission that there was nothing in the evidence led by the Crown which was capable of establishing beyond reasonable doubt that the accused had not acted lawfully, in that the issue of self-defence within the meaning of s.418 of the Crimes Act 1900 had been raised but not negatived.

38. It was submitted that the Crown had failed to establish each element of the charge of murder, and the accused was entitled to a verdict of not guilty with respect to that charge.

39. Mr. Strickland submitted that a Prasad direction relevant to both murder (should the application for a directed verdict fail) and manslaughter should be given in any event.

40. The Crown opposed the applications. With respect to the application for a directed verdict for murder, the Crown argued that the evidence capable of negativing the s.418 issue was to be found in the purported differences in the accounts of the stabbing given by the accused to various individuals. The Crown contended that the versions given to the emergency operator, to Senior Constable Richardson, and to Mr. Jancovic were very different, and the differences, of themselves, negatived self-defence.

Consideration

41. A trial judge must direct a jury to acquit an accused person if, at the conclusion of the Crown case, the evidence is as a matter of law incapable of proving the offence charged. A jury may only be directed to return a verdict of not guilty if there is a defect in the evidence advanced in support of a finding of guilt which is such that, taken at its highest, the evidence will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207; R v LK [2010] HCA 17; 241 CLR 177.

42. A directed verdict cannot be given simply because the trial judge views the evidence as unsatisfactory, or considers that a verdict of guilty would be unsafe: R v R (1989) 18 NSWLR 74 at 85.

43. The principles set out in Doney at 214 – 215 are,

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory nor the inherent power of a court to prevent an abuse of process provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial."

44. The charge of murder alleged against the accused requires the Crown to prove that, at the place and on the date averred,

1. The accused did a deliberate act which caused the death of Gregory Peck;

2. When she did that act, the accused intended to kill Mr. Peck or to cause him grievous bodily harm (reckless indifference not being relied upon by the Crown); and

3. That the accused’s act was done without lawful excuse.

45. The accused does not dispute the first element.

46. Although she disputes the second element, and contends – as she told the emergency operator – that she did not mean to stab Mr. Peck, the act itself in these circumstances is evidence which could establish that element of the charge. It is open to the jury to infer the necessary intent from the act of striking out at the chest area or upper body of another person when armed with a large and very sharp knife.

47. It is the third element where the evidence falls short, as the accused contends.

48. Section 418 of the Crimes Act 1900 provides, relevantly,

418 Self-defence—when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) […]

(c) […]

(d) […]

and the conduct is a reasonable response in the circumstances as he or she perceives them.

49. Self-defence will be negatived where the Crown proves beyond a reasonable doubt that either,

1. The accused did not believe at the time of the act causing death that it was necessary to do what she did in order to defend herself, or that

1. The act was not a reasonable response in the circumstances as the accused perceived them to be.

50. In the call to the emergency operator, Ex. B, the accused raised the issue of self-defence, within what must have been no more than seconds to a minute of the stabbing, telling the operator that she acted from fear, believing her partner was going to hit her. The detail given to the operator was brief, and in response to questions from the operator. It is clear from listening to the conversation that the accused’s primary concern was for Mr. Peck, and to do what she could to get aid to him as quickly as possible. The account she gave of the stabbing was neither thorough nor considered.

51. The account to Senior Constable Richardson is not different to the account to the Triple 0 operator; it simply adds detail, again in response to questions. This conversation reflects its different purposes rather than revealing anything which could of itself or in combination with other evidence negative self-defence. Unlike the emergency operator, whose focus was on the patient, and keeping the caller calm, the police officer was seeking information as to what had happened and why. He asked questions directed to obtaining that information, as well as directed to keeping the accused as calm as was possible given what he believed to be the state of shock that she was in (T127:05). Senior Constable Richardson obtained greater detail than did the operator as to the circumstances surrounding the stabbing, but the detail was not inconsistent with that given to the emergency operator. The greater detail simply added to and developed the issue of self-defence.

52. In her conversation with her former husband, some relatively short time later, at Green Valley police station, the accused gave an account that was not identical in its terms to those to the emergency operator or Senior Constable Richardson but, again, nothing she said to Mr. Jancovic was inconsistent with or different to her earlier accounts of the stabbing. The context and circumstances of this third conversation were different to the previous conversations; here, Ms. Castaneda was speaking with someone close to her for solace, rather than answering an official’s questions. Mr. Jancovic did not record the conversation in any way, and gave his account of it as his best recollection of what was said.

53. In my judgment, the account given by the accused to her ex-husband was not in any way inconsistent with the earlier accounts; it was simply a partial account of the incident.

54. The differing level of information provided to the persons to whom the accused spoke in the period immediately after the stabbing cannot rebut self-defence; to the contrary, it is these assertions by Ms. Castaneda, in conjunction with the other evidence of earlier acts of violence by the deceased towards Ms. Castaneda that raises self-defence so prominently.

55. The Crown emphasised the accused’s recounted act of getting a knife and submitted that such an act was not done in self-defence.

“My submission is that there is sufficient evidence, given the demonstration, given the claim that he had choked her and subsequently she went and got the knife, the knife was not taken up in response to being choked, it was taken up after having been choked and the knife was not taken up where she was in fear of being hit but rather after she had been choked, as she put it.”

56. I do not accept that submission because it presupposes that this event occurred in instalments, rather than as a rapidly devolving and fluid incident. There was, on the evidence, no break in either time or atmosphere that means that the accused’s act of taking up a knife should be seen divorced from what had gone before, that being on the evidence both a physical assault and the threat by conduct of a further assault. The incident involved continuous action, with no temporal gap between the deceased’s act (as recounted by the accused) of choking her and the stabbing, and no lessening in the pervasive atmosphere of threat that was perceived by the accused and conveyed by her to those with whom she spoke.

57. On the whole of the evidence led in the Crown case, the knife was taken up as a direct response to the deceased’s act of choking the accused, and from fear that more was to come. There is simply no evidence to sustain the Crown’s opening comments to the jury that the evidence would establish that the accused stabbed the deceased in anger, or as retaliation after all danger had passed.

58. Having considered the evidence very carefully, and even taking the Crown case at its highest as one must, I am unable to identify any evidence capable of negativing the self-defence issue by proving beyond reasonable doubt that the accused was not acting in her own defence, as contemplated by s.418 of the Crimes Act 1900. Other than the asserted “differences” in the accounts given by the accused to others, the Crown can point to none.

59. The Crown having opened on the common law alternative of manslaughter, on the basis of what is generally referred to as excessive self-defence, that charge remains for the jury’s consideration and determination.

60. Mr. Strickland asked for a Prasad direction to be given in relation to that charge.

61. Such a direction is a direction to the jury that a verdict of not guilty can be returned at any time after the close of the Crown case without hearing any further evidence, or the addresses of counsel and the summing up by the trial judge. It is a direction rarely given, and generally only where there is significant fragility to the Crown case.

“It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings, Archbold Criminal Pleading & Practice (39th ed., 1976) p. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty: R v Prasad per King CJ at p.163.”

62. I do not regard this as a case where a Prasad direction should be given.

63. I do not consider the Crown case to be a compelling one in any sense, but nor is it as frail and lacking in cogency as would militate in favour of the direction (or invitation, as it is sometimes termed) being given.

64. Additionally, concepts of self-defence and the reasonableness of the degree of force employed in response and the like are, in my opinion, not straightforward or, perhaps more properly, they are made complex by the way in which the law defines and applies them. The jury will in my view benefit from the addresses and summing up, even if there is no further evidence.

65. On that basis I declined to give the Prasad direction to the jury.

**********

Decision last updated: 07 August 2015