R v Heggie

[2004] NSWSC 723

CITATION:	R v Heggie [2004] NSWSC 723
HEARING DATE(S):	21/06/2004 - 26/06/04, 28/06/04 - 02/06/04
JUDGMENT DATE:	1 July 2004
JUDGMENT OF:	Dowd J at 1
DECISION:	n/a
CATCHWORDS:	Summing up - murder/ manslaughter - defence of another person
PARTIES :	Crown Brian Jason Heggie
FILE NUMBER(S):	SC 070120/03
COUNSEL:	Crown: Mr P Lynch Defence: Mr B Stewart
SOLICITORS:	Crown: Ms S Vitomir Defence: Ms S George

- 33 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Thursday, 1 July 2004
Friday, 2 July 2004

070120/03 REGINA v BRIAN JASON HEGGIE

SUMMING UP

1 DOWD J: Members of the jury, at this stage of the trial it is my duty to sum up the case, and as part of that summing up, to give you directions about the law so far as you need to know in order for you to carry out your function. The Court will continue to sit during normal hours but I intend to break the summing up after a period, firstly, because I think it is hard to concentrate on what I have been saying for too long a time, and secondly, to give counsel an opportunity to make submissions to me about anything I have said. They might want to put something to me about how I should frame my summing up, or they might want me to put something differently or put some additional matter to you having regard to what I have said to you up to that point. If I agree with such a request, I will do so.

2 I take this opportunity of reminding you at this stage that at all times you are free to ask any questions about these legal directions that I am giving you, if you have any difficulty with them. You can ask questions as often as you like and ask any questions you wish to with regard to both the legal directions and any questions of fact.

3 Members of the jury, the accused, Brian Jason Heggie, stands before you upon an indictment which charges that he, on 19 October 2003 at Waterloo in the State of New South Wales, did Murder Jamie Robb. To this charge there is an alternative verdict available as a matter of law, of Manslaughter. Members of the jury, to this charge, the charge of murder, the accused has pleaded that he is not guilty. It becomes your responsibility, therefore, to consider whether the accused is Guilty or Not Guilty of the charge of Murder and similarly whether he is Guilty or Not Guilty of the charge of Manslaughter if you find him not Guilty of the charge of murder, and you are obliged to return your verdict according to the evidence which you have heard. On the written directions I will give you there are three possible verdicts: Murder, Manslaughter, and Not Guilty of Murder or Manslaughter. You will be given directions about that, and about the two ways to get to Manslaughter which I will get to as well.

4 I propose to commence this summing up with a number of general directions which, to some extent, will be a preparagraphtion of remarks which I made at the commencement of the trial. It is important that I give them to you again, not only to remind you of what I said earlier, but to place those directions in the context of the trial which has now taken place, and the evidence that you heard. What I said earlier was, in a sense, an explanation to you of the part you were expected to play in the trial, and a warning to you that it is necessary for you to participate in the determination of the factual issues from the outset. I remind you that those principles of law which I now give you, you are bound to accept. You are bound to apply them to the facts of the case as you find them to be. The facts of the case and the verdicts you give are for you, and you alone, because you alone are the judges of the facts.

5 The first thing I want to speak to you about is the legal principles relating to onus of proof and standard of proof.

6 There are two principles of law which are fundamental to our criminal justice system. The first is that every accused is presumed innocent unless and until they are found guilty. The accused at this trial has the benefit of that presumption of innocence. That means he is entitled to have you return a verdict of Not Guilty unless you find that the Crown has proven his guilt. At no stage of the trial is there any onus or obligation on the accused to prove that he is innocent. That is presumed. At no stage is there any onus or obligation on him to disprove any part of the Crown case or indeed to prove anything at all.

7 From the start of the trial to the end, the onus rests on the Crown to prove every matter which is necessary to establish guilt on the part of the accused. This does not mean that the Crown has to prove the truth of each statement made by each and every Crown witness, nor does it mean that you have to find in favour of the Crown on every issue that arises and is disputed on behalf of the accused, nor do you have to attempt to resolve every apparent conflict in the evidence that might arise. You do not have to chase every rabbit down every burrow. That is because at the end of the day there might be some matters upon which you are unable to form any concluded view, but which may not impact upon your determination of the issues upon which the outcome of the trial depends. What the Crown must prove are the essential facts necessary to support a finding of guilt, nor more and no less.

8 I will tell you in due course what those essential facts are in this case but, before that, I have to tell you about the second fundamental principle. It is this: everything which the Crown is required to prove must be proved to your satisfaction beyond reasonable doubt. Therefore, the next question I raise is to what degree or standard of proof must the Crown establish each and every one of the essential ingredients? The Crown must prove each of the essential ingredients of the charge which I will outline to you shortly. I will direct you as to what the essential ingredients are of each of the offences. What I want to emphasise here, however, is that unless the Crown succeeds in proving each and every one of these essential ingredients or elements of the charge, then in relation to that charge the accused must be found Not Guilty.

9 The law in relation to the standard of proof is quite clear. The Crown must prove each of the matters essential to its case beyond reasonable doubt. Unless you are satisfied beyond reasonable doubt that the Crown has done so, then it is your duty to bring in a verdict of Not Guilty in respect of that charge.

10 Putting together these two propositions of the law, the Crown must prove each and every essential element of the charge which it brings against the accused, but it must do so to the degree or standard to which I have referred - beyond reasonable doubt. If, at the end of your deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to you by each of the counsel in their address, you are not satisfied the Crown has established any one of these essential matters beyond reasonable doubt, then it is your duty to bring in a verdict of Not Guilty, as I have said, because the Crown will have failed to do what the law requires it to do.

11 Let me say something more about the onus of proof. As you have been told more than once, a criminal trial is a trial of a most serious nature. The burden of proof placed on the Crown is in respect of every element of the charge. There is no onus of proof on the accused. The words "beyond reasonable doubt" are words, as you have heard, which have their ordinary meaning. They should be taken as you understand those words to be meant in their ordinary meaning in the English language. That is the standard of proof.

12 I would like next to repeat to you what I said earlier in the trial about the subjective roles of the trial Judge and the jury. Together you, as the jury, and I, as the presiding Judge, constitute the Court to which the community has entrusted the trial of the accused. However, although the thirteen of us constitute the Court, you and I have different functions. My responsibility during the trial has been, in effect, to act as a referee, making sure the rules of procedure and evidence have been observed. My responsibility now is to give you directions as to the principles of law relevant to these proceedings and to give you some assistance in the way you deal with the evidence and with the submissions that have been made. I have to tell you, as I have said, that you are bound to accept that what I say is the law, is the law. Every word I now say is being recorded by court reporters. If I make an error in relation to the law, that may provide a ground of appeal to a higher Court. That is of no concern to you. You have to know the legal framework in which you exercise your function and you have to know it with certainty. The only way to know that with certainty is for you to accept without reservation that what I say about the law is the law, and that you must do.

13 By contrast, your responsibility lies in determining the facts and deciding the outcome of this trial by the application of the law, as I state it to you, to the facts, as you find them to be. That function is for you and you alone. So there are two stages in relation to the evidence. You must find what evidence you reject or accept and, having made those findings, you then must make a determination on the law as I have directed you.

14 In performing my role, you have seen I had the role during the course of the trial of ruling on evidence sometimes in your presence, and sometimes not in your presence I act, therefore, as referee, but also as the determinant of the procedural law and admissibility of evidence in the trial but, in performing my role in summing up and directing you on law, I must, of necessity, refer to the evidence as to only parts of it. I do not propose to refer to all of the evidence. It follows that you should not think that, merely because I refer to some parts of the evidence and not to some other part of it, that you should confine your attention to the evidence to which I refer. That would be wrong. If I have failed to refer to something you regard as significant, then you must act on your own view and give the material the weight it deserves. By the same token, merely because I refer to some evidence or other does not necessarily mean that you must attach significance to it.

15 The second observation I make to you in this context is this: if it appears to you that I hold an opinion about a question of fact, you are entitled to disregard my opinion. Indeed, you are obliged to disregard it if it does not accord with your own view of the facts. I repeat, it is no part of my function to decide the facts of this case. That is your responsibility, not mine. I am, of course, entitled to express a view. I do not, however, propose to try to persuade you one way or the other in the case. That is not my task. I may, when I come to a particular issue, suggest to you that there is no real dispute about it. That, of course, is my view. It is open to you, if you wish, to reject that view if it does not accord with your own independent assessment of the evidence. I shall, of course, endeavour during this summing up to focus attention on those parts of the evidence which seem to me to be the areas in respect of which counsel has focused their attention. Of course, it is necessary for you, in deliberating, to consider the totality of the evidence, and not only the evidence to which I have referred you or to which you have been referred by counsel.

16 It is appropriate at this stage to remind you of the role of the lawyers that appear, that is, the Crown Prosecutor and counsel for the accused. They have, as is their right and duty, referred to the evidence, or part of it, and have addressed various arguments to you concerning the evidence. However, it is not for them to decide the facts any more than it is for me to do so, and they have not purported to do so. You should, of course, consider what they have put to you and give their arguments the weight you consider they deserve. You are at liberty to agree with what they submit, you are at liberty to reject it, and you are at liberty to adopt it and apply it to the facts in a way which is different from any approach that has been suggested by either of them. That again is to emphasise your responsibility as the sole judges of the facts in these proceedings.

17 At the end of the trial, when you give your verdict, the verdict must be unanimous. We do not in this State recognise majority verdicts of juries. That is not to say, however, that each of you must have the same reasons for the result. You might each differ in some respects about how you view the evidence, but the final decision as to guilt or innocence must be the unanimous verdicts of you all. Without unanimity there can be no verdict, whether Guilty or Not Guilty. Unanimity is to be achieved by discussion in the jury room, by listening to the views of your fellow jurors, by putting forward your own views, by modifying your own thinking if something is suggested to you which you think is right, by giving your fellow jurors the benefit of a view from you, even which they might not think is right.

18 Now I said to you that you are the sole judges of the facts, and that is true, but you must exercise that role responsibly, not capriciously and not irrationally. You are obliged to determine the relevant issues of fact in these proceedings according to the evidence that has been presented during the course of the trial. That evidence consists of what has been said by the various witnesses whom you have seen and heard, the various exhibits which have been tendered, which you will have with you in the jury room when you retire at the end of the summing up to consider your verdict. You do not see those documents which have been marked for identification that have not become exhibits, those are just marked for record purposes.

19 What you have seen admitted as exhibits, photographs and all the other documents - A and B, etc. for the prosecution and 1 and 2, etc. for the defence - you will have with you in the jury room, along with the two videos for you to operate. I take it there is video equipment in there for you to operate. You will not have the evidence of the panoramic view which was operated by the specific computer equipment. If you need to see that, then we will have to arrange for the officers to come and demonstrate that to you, if you find that necessary, but the other evidence you will have.

20 You can play the videos remembering - and I have already given you this direction - that the aide memoir that is given to you in respect of the two records of interview are aide memoirs only, and it is what is on the video which is the evidence and, if there is any discrepancy, it is the video evidence which prevails. I know I have said that to you before but I have said it again.

21 The evidence is not just the exhibits, but it is also the evidence which you have observed given orally in examination and cross examination.

22 It is important that you approach your task dispassionately, judging the facts of the case without emotion. Obviously enough, there are those of you that would be saddened by the death of the deceased. I have to tell you that it is a totally irrelevant consideration and you must put it entirely from your minds. It would be a terrible injustice if justice were tipped in favour of a conviction for murder with such a consideration. I repeat, you must approach your task dispassionately. You must dissociate yourself from the emotional responses of others. You are the judges, others are not.

23 You have very important matters to decide in this case, important not only to the accused but to the whole community. The privilege which you have of sitting in judgment upon your fellow citizens is one which carries with it corresponding duties and obligations. You must, as a jury, act impartially, dispassionately and fearlessly. You must not let sympathy or emotion affect your judgment. We all have our prejudices and our biases. They must be set aside. You are required to decide these proceedings according to the legal principles that I will give you, not according to any personal belief.

24 In the same vein, I have to warn you against being influenced by any opinion you may have formed concerning the moral worth of the accused and the deceased relative to each other. There is no question of ‘which of them will have them deserving of your praise, your consideration or your sympathy’. There is no weighing up which is more worthy than the other, and allowing that to influence the result. The law dictates the questions by which to decide the case. I will in due course tell you what they are. The relative worth of the accused and the deceased is not one of them.

25 Obviously enough, it is an important part of your function to decide what evidence you accept and what evidence you do not accept on the issues that matter; what evidence you find reliable and credible; what evidence you feel you can safely act upon.

26 In performing the task of assessing the credibility and reliability of witnesses, you need to bear in mind that your concern is not just with honesty but with reliability. Of course, you may decide not to accept the evidence of a particular witness because it has appeared to you that that witness has not been honest, that is to say, has not done his or her best to give a truthful account of what he or she knows. But, apart from any questions of honesty, you need to bear in mind that the evidence of a completely honest witness may be unreliable because of errors in observation or errors in recalling or describing what the witness saw or heard. It is for you to assess the various witnesses and decide whether they are telling the truth. You have seen each of the witnesses as they have given their evidence. It is a matter for you entirely as to whether you accept that evidence in whole or only in part. Your ultimate decision as to what evidence and what parts of the evidence, if not all of it, you accept, and what evidence you may reject may be based on all manner of things, including what the witness has to say, the manner in which the witness said it and the general impression that the witness made upon you when giving evidence.

27 In relation to accepting the evidence of witnesses, you are not obliged to accept the whole of the evidence of any one witness. You may, if you think appropriate, accept parts and reject parts of the same witness' evidence. The fact that you do not accept a portion of the evidence of a witness does not necessarily mean you reject the whole of the witness' evidence. It does not mean that you should not accept the remainder of that evidence if you think it is worthy of acceptance.

28 When you come to consider the credibility and reliability of witnesses you should bear in mind you do not have to make a decision which involves everything that a particular witness has said, or reject everything. You may, of course, do that in relation to any of the witnesses, but it is also open to you to recognise that a person may tell lies in some part of his or her evidence and tell the truth in respect of other aspects. They may tell lies on a previous occasion and tell the truth in the witness box, or indeed vice versa. A person may give accurate and reliable evidence about one part of the case but his or her evidence in other respects may be unreliable. That might occur because of faulty recollection or some motive to distort, conceal or embellish the truth. It may be that things are observed in an emotional context, and people do not necessarily remember consistently events. You would be very interested to see studies done of a number of people observing the same event and reporting back quite different things. People recollect things in different ways so, as I have said, you are not obliged to accept the whole of what a witness says or to reject the whole of what a witness says but approach the evidence of any witness on the basis you may accept all or part.

29 I am not going to give you directions about how to go about assessing the credibility and reliability of a witness. You are here as representatives of the community. You bring to the case your experience of life and your common sense in everyday life. One sometimes has to decide whether someone is being honest and reliable in what they say. You have to make the same sort of judgment here, when it comes to deciding whether a particular witness is honest and reliable and in what respects that is or is not so but, in the context of fact finding, I would like to say something to you in relation to drawing inferences. You may, in your role as judges of the facts, draw inferences from the facts as you find them. Inferences are conclusions made on the basis of some proven facts or from a combination of proven facts.

30 Let me give you an illustration remote from the facts of this case, as an illustration of the proposition. If you telephone a friend whom you expect to be at home and the phone rings and rings unanswered, you might infer that the person has gone out. Nowadays with answering machines you will probably yell at them and say, "Pick up, I know you are listening". You might get the engaged signal; you might infer the person is at home and is speaking to someone else on the phone. Either of those conclusions might be reasonable in everyday life, but this is a criminal trial, and conclusions of that kind are far more important than in everyday life so you have to be extremely careful. A possible inference must be carefully examined.

31 Let us go back to the telephone call. I suggest that you might infer that the person was out if the phone did not answer; that you might infer that the person was on the phone if there was an engaged signal. Those inferences are questionable if you have to come to a conclusion beyond reasonable doubt. That is because the phone may have been out of order and that may have been the reason why it rang and was unanswered or why it gave the engaged number; or you might have dialled the wrong number with the result that someone else was out or on the phone; or your friend might have been in the shower which accounted for the phone being unanswered; or it might have been accidentally left off the handset and that is the reason you got the engaged signal. So when you have regard to other reasonable possibilities you might be wrong to conclude that someone was not at home because the phone kept ringing, or was at home because there was an engaged signal. Certainly that would be an unsafe conclusion if it had to be proven beyond reasonable doubt that the person was at home at a particular time or that he was not.

32 So, in a criminal trial, you should not draw any inference from the evidence that is essential to the Crown case unless it is the only rational inference which should be drawn in the circumstances.

33 What I have said about fact finding by inferences applies to facts concerning state of mind. You should not draw any inference concerning the accused's state of mind where that is essential to the Crown case, unless it is the only rational inference that could be drawn in the circumstances. In this case there are critical issues concerning the accused's state of mind. As you will see when I come to it, to secure a conviction for murder in this case the Crown must establish, amongst other matters, beyond reasonable doubt, that the accused did not believe it was necessary to stab the deceased as he did in defence of Christine Dawson. No one can look into the accused's mind, as it was on 19 October 2003, to see whether or not he had that belief. It could be found that he did not have that belief by a process of inference, by reasoning from other facts and circumstances that can be established by consideration of his and other oral evidence. It is that process of reasoning which has to be approached with extreme caution, taking care that any critical inference is the only rational inference to be drawn from the facts as you find them.

34 In the course of my summing up, as I have indicated, I am going to remind you of some of the evidence which bears on the questions you have to decide. My review will be selective and, if you consider any matter I refer to should be rejected, then that is a matter for you and your prerogative.

35 In this case you will be required to make a decision, and more than one decision, as to what was or was not reasonably believed or what was or was not reasonable to have been done. What is reasonable, whether reasonable in belief or reasonable in action, is for you to judge according to the standards of the community. Who better to decide such a question than twelve members of the community drawn at random from the wide spectrum of individuals who make up our society.

36 As I have told you, before you draw an inference or conclusion in relation to guilt, you must be satisfied as to the existence of the facts and circumstances from which you are asked to draw that conclusion, and you must avoid any speculation or conjecture in arriving at such conclusion if such conclusion is to be drawn beyond reasonable doubt. It must be on the basis of a rational and logical process of thought. In a case such as the present, where competing inferences have arisen, you must determine not merely whether the inferences drawn point to a strong possibility of guilt but whether the inferences clearly overcome all other inferences or hypotheses as to leave no reasonable doubt in your minds.

37 This, of course, follows from the direction I have given concerning the onus of proof being on the Crown and all the necessary elements it must establish beyond reasonable doubt before it can succeed. If, at the end of your deliberations, there is more than one conclusion that is favourable to the Crown available to be drawn, then obviously the Crown has not proven its case beyond reasonable doubt and your duty would be to acquit.

38 You may, in your role as judges of the facts, draw inferences from direct evidence. There is nothing extraordinary about that, we do it every day of our lives. Inferences are conclusions of facts drawn from a combination of proven facts. If A, B and C are established as facts, then one might rationally conclude that D is also a fact even though there is no direct evidence that D is a fact.

39 Let me just say something to you about the fact that here there are alternative verdicts available. If you find each of the elements of the lesser offence, that is Manslaughter, proved beyond reasonable doubt but are not satisfied of each element in the more serious offence has been proved beyond reasonable doubt, then you may find the accused Not Guilty of the more serious offence and Guilty of the other. However, you should not regard this as an invitation to compromise. Suppose, for instance, six of you went for a verdict of Guilty on the count of Murder and six of you believed the accused was Not Guilty of anything at all, it would be quite wrong in these circumstances to convict the accused on the less serious charge, that is Manslaughter.

40 I want to give you a further direction. In this trial the issue of the character of the accused has been raised as an issue. The accused has asserted on oath that he is a person of good character. It is conceded by the Crown that he holds no criminal convictions, and the evidence is there are no prior convictions. In the light of this evidence, it is open to find that the accused is a person of good character.

41 Now, the law provides that the accused is entitled to have you take that evidence into account in favour of him in the following ways. Firstly, the fact that the accused is a person of good character entitles you to consider the improbability of him having committed the offence alleged. In other words, you are entitled to take the good character into account on the question of guilt. Secondly, the accused has given evidence at this trial. The fact that he is a person of good character supports his credibility. This is a factor which the accused is entitled to have you take into account when deciding to accept or not to accept his evidence.

42 Further, the accused has given an explanation as to the events. In considering that explanation and what weight you should give to it, you should bear in mind it was made by a person of good character, and the accused is entitled to have you take that into account in believing you accept the explanation. None of this means that that provides the accused with some kind of defence, it is only one of the many factors which you must take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused.

43 Members of the jury, because part of the offence of Murder is intention, I want to direct you in relation to what that means in law.

44 In the legal context, intent and intention are familiar words. They carry their ordinary meaning. Intention may be inferred or deduced from the circumstances in which, for instance, the death occurred and from the conduct of the accused before the time of the specific act or after. What a person says about his intention may be looked at for the purposes of finding out what that intention was in fact at the relevant time. In some cases, a person's act may itself provide the most convincing evidence of the person’s intention, where a specific result is the obvious and inevitable consequence of a person's act, and where he or she does that act you may readily conclude that he or she did that act with the intention of achieving that specific result.

45 Let me help you with an illustration: if one person hits another on the head with a hammer, you may think it might be obvious that inevitably the person will receive a really serious injury as a result. If, therefore, the person intends to deliberately hit the other on the head with a hammer, it is a simple matter for a jury to conclude that he did so with the intention of inflicting really serious bodily harm upon that other person. You may think there is no difficulty at all in coming to such a conclusion. You must remember that you are considering the intention of the accused, not what your intention might have been had you been in his position, nor the intention of any theoretical person. That, however, is different to what I will explain to you about the reasonableness of actions in relation to self defence.

46 But before getting to the elements of the offence, I just want to remind you about the two expert witnesses that gave evidence.

47 You had evidence from Dr William Allender, the forensic scientist in Medical Chemistry who gave evidence about the drugs and the affects of drugs, and you also heard evidence from Johan Duflou, the forensic pathologist. In referring to expert evidence, qualified expert witnesses are permitted to give evidence of their opinions in their field of expertise. You as the jury are not bound to accept such evidence of opinion. You are bound to consider whether you accept or reject such evidence in whole or in part just as you are in relation to any other evidence in the proceedings. It is for you to give such weight to expert evidence as you think appropriate, having regard to the qualifications of the witness, the reasoning beyond the opinion, whether the witness struck you as impartial or otherwise, and the extent to which the opinions expressed are to your mind consistent with other evidence. But, of course, where the evidence is unchallenged, you will more readily accept it, and you have noticed in relation to the expert witnesses, substantially the evidence was not challenged in these proceedings.

48 Now I want to take you to the elements of the offences, and I will start to explain to you the written directions that you will be given.

49 There are four ingredients in the offence of Murder which the Crown must establish (and this is in the written directions so you need not take this down). There are four ingredients in the offence of Murder which the Crown must establish beyond reasonable doubt. Firstly, that it was the accused who did the act which caused the death of Jamie Robb, and that is not a matter that I think will represent too much difficulty. Secondly, that that act was a deliberate act on the part of the accused. Thirdly, it was done, that is, the act, with intention to kill or to inflict grievous bodily harm. And in this respect "grievous bodily harm" means really serious bodily harm. And fourthly, that the accused was not acting in self defence, which in this case is defence of another person. So that "self defence" is the general term covering defence of yourself and another person, but ignore the word "self" thereafter. It is a shorthand way to cover in this case solely the defence of Christine Dawson.

50 Where an accused is charged with Murder, but the Crown has failed to establish that his act, here, the stabbing, was done with the intention required to amount to the crime of Murder, there is an alternative verdict available to you, that is one of being guilty of Manslaughter. Before you would be justified in bringing in the alternative verdict of Manslaughter, the Crown must establish, and this is the first route to Manslaughter, the Crown must establish beyond a reasonable doubt each of the following elements:

1. That it was the act of the accused in stabbing the deceased that caused the death,

2. That the act, here, the stabbing, was an unlawful and dangerous act.

An act is unlawful if it involves a deliberate application of force to another person without that person's consent. For instance, if you want to have your appendix taken out, there is an application of force to you but done with your consent so that is not unlawful.
An “act is dangerous” means that it carries with it an appreciable risk of serious bodily injury, and an act is dangerous if it is such that a reasonable person in the position of the accused would have realised by that act that the deceased was being exposed to an appreciable or significant risk of serious injury.

3. That the third element of Manslaughter is that the act was not done in defence of another,

4. That an act is seen to have been done in defence of another if, and only if, the accused personally believed in the circumstances as he perceived them that it was necessary to do what he did to defend another person and his act was a reasonable response in the circumstances as he perceived them.

51 As to the charge of Murder, if the Crown has established beyond reasonable doubt that the accused in this case did not personally believe that it was necessary for him to do what he did to defend Christine Dawson, then subject to the other ingredients of Murder being proved, it has established that the accused committed Murder, that it has removed self defence from the charge of Murder.

52 If, in relation to the charge of Murder, you are left in a position that you are satisfied beyond reasonable doubt that the accused used force, here, the stabbing, with intent to kill or to inflict grievous bodily harm thereby causing the death of Jamie Robb, and you are of the view that it is reasonably necessary that the accused did believe that his conduct was necessary in defence of another person, here, Christine Dawson, or you had a reasonable doubt as to whether he had that belief or not, yet you are satisfied beyond reasonable doubt that his act, the stabbing, was not a reasonable response in the circumstances as the accused perceived them because the force used was excessive, then subject to the other elements being established, a proper verdict is one that he did not commit Murder but he did commit Manslaughter.

53 In relation to the alternative verdict available, that is one of Manslaughter as set out in paragraphgraphs 2 and 3, if the Crown has established beyond reasonable doubt that the accused in this case did not personally believe that it was necessary to do what he did to defend himself or another person, here it is Christine Dawson, then subject to the other ingredients of Manslaughter being proven, it has established that the accused committed Manslaughter, that is, it has removed self defence from the alternative charge of manslaughter.

54 If, in relation to the alternative charge of Manslaughter, as set out earlier, you are left in the position you are of the view that it is reasonably possible that the accused did believe that his conduct, that is the stabbing, was necessary in defence of another person, here Christine Dawson, or you had a reasonable doubt as to whether he had that belief or not, but you are satisfied beyond reasonable doubt that his act, the stabbing, was not a reasonable response in the circumstances as the accused perceived them, then subject to the other elements of Manslaughter being proved, the Crown has established that the accused committed Manslaughter, that is, it has removed self defence from the crime of Manslaughter.

55 If, as to the alternative verdict of Manslaughter, you are left in the position that you are of the view that it is reasonably possible the accused did believe that his conduct was necessary in defence of another person, here Christine Dawson, or you had a reasonable doubt whether he had that belief or not and you are of the view that it is reasonably possible that his act, the stabbing, was a reasonable response in the circumstances as the accused perceived them, or you had a reasonable doubt the conduct was not a reasonable response in the circumstances as he perceived them, then the proper verdict is to find the accused Not Guilty of Manslaughter.

56 You should note (this is the last direction) in considering each of the offences of Murder or Manslaughter, in considering whether the accused believed that it was necessary to do what he did in defence of Christine Dawson, you look at the accused's personal belief, not that of a theoretical reasonable person. In considering whether the accused's response was reasonable, you look at that response by reference to what you consider to have been a reasonable response in the circumstances as the accused perceived or understood them. That is, his personal perception or understanding of the circumstances provides the framework or setting against which you then assess objectively whether what he did was reasonable, and it is for the Crown to satisfy you beyond reasonable doubt that the accused was not acting in defence of, here, Christine Dawson.

57 As to the charge in the alternative verdicts, therefore, they are Guilty of Murder, Guilty of Manslaughter or Not Guilty of Murder or Manslaughter.

58 Now, I will give you the written directions in the morning because of the time. I will then sum up the relevant evidence that go to each of the elements of the offence, and I will summarise the effects of the arguments of counsel, then send you out to deliberate. You might like to go now members of the jury.

ADJOURNED PART HEARD TO FRIDAY, 2 JULY AT 9.30 AM

59 Good morning members of the jury, I am now going to have handed to you copies of directions which I referred to last night and I will go through them with you again.

60 (A copy of the written directions was distributed to each member of the jury.)

61 Now there are two changes, two superfluous words that I took out in paragraph 7. So that does not matter, I do not think they are relevant. And I misread in paragraph 6 a word and inserted a word. So far as that word that disagrees with what I read, now this prevails.

62 I would like to take you then to paragraph 1, and I would ask you to read through the four elements of the offence of Murder, remembering that in “self defence”, the word "self" is irrelevant. It is defence of another.

63 Now the relevant thing in paragraph 3, of course, is that the action can be done on an alternative basis either with an intention to kill, or if there were no intention to kill, with intention to inflict grievous bodily harm. So it is not necessary to find an intention to kill, you need to have either an intention to kill based on the evidence as you ultimately find it, or an intention to inflict grievous bodily harm. In fact, if the death results from the action, even though there was no intention to kill, but there was an intention to inflict grievous bodily harm, then that is sufficient for Murder.

64 Now I would ask you now to read paragraph 2, noting that what it does is take out the intention. If you do not for some reason find an intention to either kill or inflict grievous bodily harm, then it explains to you there is an alternative verdict of Manslaughter.

65 Therefore, having in paragraph 2 explained the difference, paragraph 3 sets out the elements that must be established in the alternative offence of Manslaughter. If you find the accused Not Guilty of Murder therefore, you may then proceed to Manslaughter. I would ask you to read paragraph 3.

66 Now, paragraph 4 is an explanation of the elements necessary in defence of another, that is: the Crown must negative, negate or exclude self defence to achieve either of the two offences of Murder or Manslaughter. And if you look, you will find there are two elements there to self defence, and self defence is relevant to either Murder or to Manslaughter.

67 Paragraph 5 sets out what the Crown must establish on the evidence to remove self defence or defence of another from the charge of Murder. So I would ask you to read that. This is when you are considering paragraph 1.

68 When you are considering the charge of Murder, and if you read down to paragraph 6(a), and if you are satisfied to that extent of either intent to kill or inflict grievous bodily harm and that the accused did the stabbing and (b), you are of the view that it is reasonably possible that the accused did believe his conduct was necessary in defence of another person (Dawson) or you have a doubt about whether he had that belief.

69 So in the two alternatives - reasonably possible the accused believed his conduct was necessary or in defence of another person, or you had a reasonable doubt as to whether he had that belief or not, yet you are satisfied beyond reasonable doubt the act, the stabbing, was not a reasonable response in the circumstances as the accused perceived them’, that is, as you objectively find the accused perceived them, because the force was excessive - then subject to the other elements being established, that is, the elements of the offence, the proper verdict is he did not commit Murder but he did commit Manslaughter.

70 I am going to leave these with you and I will go through the rest, but you will have them in the jury room to rely on and discuss.

71 We then go on in relation to the alternative verdict available, that is, being Guilty of Manslaughter as set out in paragraphs 2 and 3. If the Crown has established beyond reasonable doubt that the accused did not personally believe it was necessary to do what he did, that is, the stabbing, to defend another person, then subject to the elements of Manslaughter being proved, it has established that the accused committed Manslaughter, that it has removed self defence from the alternative charge of Manslaughter.

72 Now I take you to paragraph 8. If in relation to the alternative (this is while you are considering the alternative verdict of Manslaughter as set out in paragraphs 2 and 3) you are in the position that you are of the view that it is reasonably possible the accused did believe his conduct, that is, the stabbing, was necessary in defence of Christine Dawson, or you had a reasonable doubt about whether he had that belief or not, but you are satisfied beyond reasonable doubt that his act, that is, the stabbing, was not a reasonable response in the circumstances as the accused perceived them, then subject to the other elements of Manslaughter, that is, as set out in paragraph 3 being proven, the Crown has established that the accused committed Manslaughter, that it has removed self defence/defence of another from the charge of Manslaughter.

73 Paragraph 9 I will read with you:

"If as the alternative verdict to Manslaughter you are left in the position you are of the view that it is reasonably possible that the accused did believe that his conduct was necessary in defence of Christine Dawson, or you had a reasonable doubt that he had that belief or not, and you are of the view it is reasonably possible that his act, the stabbing, was a reasonable response in the circumstances as the accused perceived them, or you had a reasonable doubt that the conduct was not a reasonable response in the circumstances as you perceived them, then the proper verdict is to find the accused not guilty of Manslaughter.”

74 Now paragraph 10 is a paragraph which enables you to consider how you consider the response. So when you are considering, firstly, Murder and, secondly, Manslaughter in considering whether the accused (I am reading from 10(a)) believed it was necessary to do what he did, the stabbing in defence of another person - here Christine Dawson - you look at the accused's belief, not that of a theoretical reasonable person. You look at how he perceived it, that is, how you find he perceived it.

75 In considering whether the accused's response was reasonable, this is (b), you look at that response by reference to what you consider to have been a reasonable response in the circumstances, as the accused perceived them or understood, that is, his personal perception or understanding of the circumstances provides the framework or setting against which you then assess objectively whether what he did was reasonable. That is, you have to look at the whole of the evidence and look at what you find is the evidence at the time to understand what the accused then perceived. The Crown must satisfy you, on the evidence, beyond reasonable doubt, that the accused was not acting in defence of Christine Dawson.

76 Therefore, you have got the three alternative verdicts: Guilty of Murder, Muilty of Manslaughter by either of the two means, and then Not Guilty of Murder or Manslaughter.

77 Now I want to take you to some of the evidence that both the Crown and the accused rely on. Then I will go through the arguments of counsel and then tell you the final directions that have to be given.

78 I just want to remind you the Crown relies, in establishing what happened, the evidence of Terry Lydon, which at page 49 of the transcript Terry Lydon has the accused standing with Christine Dawson. He has the deceased with his hands near her throat. At page 49 of the transcript the Crown relies on the fact that Lydon says that the accused suddenly changed, he pulled a knife from under his jacket and he had the knife in his hand, and he stabbed the deceased and the knife came out his chest, that is, he stabbed him.

79 In later evidence you will remember when he was recalled he saw the demonstration, he denied that that was the way it happened, and he said he stabbed him from behind. But in his evidence, and this is relied on by the accused, you will remember Mr Lydon said he could have been choking her in one of the answers in cross examination. His evidence was that the accused was there, and at transcript page 60 his evidence was then that the deceased was touching her upper chest, not touching her throat. But in the end when he was recalled, the Crown relies on the evidence that he was stabbed from the back.

80 Catherine Hernandez's evidence was that she was standing with her stepfather. She saw that all three were there - not just the deceased and Christine Dawson - but all three were there. And you will remember she demonstrated the downward stabbing motion with the closed fist in her evidence in chief, and when she was recalled to have the demonstration of how it was put to her that that was the way it occurred with the demonstration with the two court officers and the instructing solicitor for the accused, she said: "No, it didn't happen as in the demonstration. It happened with the downward stabbing motion from the back" and she said that Christine Dawson was still standing there.

81 Then, at transcript page 70 line 27, in cross examination:

“Q. I suggest that while in the car park Jamie put his hands around the neck and throat area of Ms Dawson?

A. I'm not sure. Yeah, probably from shoulders to her neck. I'm not sure.”

82 I want to remind you of the evidence of Connie Reutte, who said she saw the accused and Christine Dawson at Jamie's door - that was what she saw first - and Jamie Robb was not there at that stage. Then when he did come out she described the holding of Christine Dawson's neck in the upper chest area, that is, either side of the throat, and she described later, at page 85 of the transcript, that he was holding her neck. Then she said the accused went behind his back and there were two sharp downward actions of a stabbing motion with a closed fist with the blade held down. She then said, contrary to what Lydon had said, that after the stabbing he dropped the T shirt and the shoes.

83 The evidence then that I want you to refer you to is the evidence of Duflou, who you will remember is the expert (and I have told you about expert's evidence). The Crown relies on this evidence at page 160.45. You will remember he dissected the wound, and said: "I noted that the distance" (this is the first wound); "The wound entering the body was 111 centimetres, that is, about 11 centimetres, about 4 inches. It passed backwards from the front to the back of the body horizontally, assuming he was standing upright, and slightly towards the midline so at a right angle towards the middle of the body", and that is when he gave the evidence about that injury passing through the subclavian artery. He could not say which injury, because the knife was not there, but he described it as the first, but it may not have been the first injury.

84 At 132.43 he was asked:

Q. Did you note any further injuries?

A. Yes, the second injury I have described is on the top of the right shoulder, that is, a 61 millimetre stab wound, that is 6 centimetres, which was located 17 centimetres to the right of the midline so roughly in that area.”

85 And he indicated the mid shoulder:

“It was 1.52 metres above the right heel. The track of this wound passed downwards and slightly backwards and in doing so it passed only in the soft tissues, the fat and the skin of the shoulder, and came out the back as a 28 millimetres, that's almost 3 metres, stab wound about 6 centimetres below the entry wound so about 2 and a half inches and came out slightly below it".

86 That is relied upon by the Crown as to the issue of cause of death. You heard De Flou's evidence and I think you will have no difficulty ascertaining the cause of death being the bleeding resulting from the stab wound.

87 The other witness that the Crown relies on is Anna Barro, who was going to the compost heap, and she saw Christine Dawson near the entrance to the other side of the units with a young man. She put the rubbish in the compost, then five minutes later she heard the screaming.

88 I want to just refer you to parts of the accused's evidence, firstly, as to the reasonableness of his belief in doing what he did. I remind you of the incident concerning the altercation near the bus stop in Pitt Street where he saw 1 inch of a blade protruding from the back pocket of the deceased when he was riding on his bike or when he had come off his bike, that evidence going to the accused's state of mind. The accused said that he thought the deceased was dangerous.

89 He also gave the evidence of the incident with his mother, and her evidence was unchallenged. Of course, the earlier incident some time previously as to that goes to his state of mind.

90 Also the accused relies on what he was told by Christine Dawson of her being robbed by Jamie Robb, and that he thought he was dangerous. He says it was Robb who was the aggressor - and you can form your own view about that, you have heard the evidence - and he said he got the knife - and you remember when he was down there, on whoever's version you accept, he had the knife with him when he came down. Now, he says he went back up to get it but at the time of the choking he already had the knife, but he got that because Robb had one earlier. You saw and heard his demonstrations as to how the stabbing occurred. He denies Ana Barro's evidence, and you have heard the evidence of him describing Christine Dawson as turning blue, turning purple, as if choking and could not speak but he agreed she could tell him to "fuck off".

91 The other evidence, you will remember, as to the state of mind of the accused was in his record of interview where he said he had heard that Jamie Robb had been involved in previous matters of violence.

92 I now want to turn to the evidence relied on by the accused of Jamie Robb's record. Jamie Robb is not on trial here and the accused does not assert that the accused knew of the whole of Jamie Robb's record. He knew there had been a robbery, he knew there had been the assaults. That evidence is admitted to assist you in evaluating the accused's belief. Whether there were traffic matters or matters some years ago, the accused did not know about that, but his record is admitted and it is admissible in this trial to assist you in evaluating the state of mind of the accused, as he said in the record of interview and as he said in the trial, as to why he was dangerous. It is evidence that enables you to evaluate what he says was his state of mind, but the whole of it is clearly not relevant to the ancient matters because the accused did not know about them. As I say, Jamie Robb is not on trial.

93 The Crown then asks you, having set out the elements of Murder and Manslaughter, when examining a witness' evidence - and that is every witness' evidence - you have got to base it on the witness' honesty and reliability. Does it have a ring of truth about it? Does it accord with common sense and are there consistent versions given by the witness? Is the witness' evidence consistent with evidence of other witnesses?

94 Now in that respect I remind you of the evidence of Putland, an independent witness, of what she saw outside at the bus stop. That is an independent witness who said she saw the altercation and she saw the accused and Christine Dawson laughing afterwards. So what you have got to look at with her, as indeed other witnesses, is that the Crown puts to you that it is difficult to reject any witness in totality, including the accused, but you must evaluate.

95 The Crown says that when looking at the case for the accused, the accused said he never saw aggressive conduct on the part of Christine Dawson. Well, you have heard the other witnesses. The Crown says you will take that evidence for what it is worth; that eight other witnesses did see aggressive conduct on the part of Christine Dawson; and there were a number of confrontations between Christine and Jamie Robb. The Crown puts to you that the accused wanted to sanitise all his conduct and play it down, and that he altered his evidence, in effect, to suit the case that he was putting.

96 The Crown points to the accused saying he drank four glass of wine. That is not an issue, but 3.8 litres was gone from the cask and Christine Dawson must have had a very significant amount of liquor, and the evidence of witnesses was that that is when she became aggressive.

97 The Crown says that although the accused said he had never seen Jamie Robb in his life before that morning at the bus stop, he had been living for five months in the apartment, and you will remember that the accused said that he left at 6am, came home at 6pm and had not seen him.

98 The accused said he was standing behind Christine Dawson at the bus stop and he saw an inch of metal. Priscilla Putland said she saw that Christine Dawson was yelling the loudest but that the deceased was also yelling, and she heard the deceased threaten to burn down Christine Dawson's house and then the laughter. The Crown puts it to you that the accused was deliberately in his evidence trying to sanitise events to put him, the accused, in the best light.

99 The Crown puts it to you that the accused's position in cross examination was that he told everything in the first interview correctly, except that he lied about being the person who stabbed the deceased. That was put to him. But in the first interview, he did not mention that Christine Dawson was having trouble breathing, was turning blue. There was no mention of her being choked by Jamie Robb, and the accused agreed when Constable Beehag put a point that Jamie Robb pushed her away or nudged Christine Dawson. In the second interview the accused said that Christine Dawson was being choked, that she could not breathe and was turning blue, and that he thought she would die notwithstanding her telling him to “fuck off”.

100 The Crown case is that the evidence that the accused was on the balcony during the second interview should be rejected. Six people said he was standing next to Christine Dawson. In the first record of interview he said he was standing on the balcony on what is the third floor, that is, the fourth one up from the ground, some 60 metres away. The Crown says the accused claims to have seen Jamie Robb walk out of his flat and spit at Christine Dawson.

101 Now there are variations in where the witnesses say Jamie Robb dropped his shoes, but they were found a very short distance away in the car park, and you will see that evidence. The evidence from more witnesses is that it was Christine Dawson started that.

102 Of course, the evidence was that the deceased had taken methylamphetamine and cannabis, he had an extensive criminal record from ten years of age, and Sharon Rose said that there were arguments, although not violent, and she was eight months pregnant at the time.

103 Now the Crown says that in confrontation between Dawson and the deceased, it was Dawson who sought out the deceased, that after the accused told Dawson that Robb had a knife in his pocket she went to the flat yelling at the deceased about the knife. Christine Dawson drank all day and told the accused things about the deceased. At about 6 o'clock she went down to the flat.

104 The Crown reminds you, as I have told you, that the deceased tried to coax Robb out, that he came to the door, told her to “piss off” - and the accused agreed with this - and said: "Take her away or I'll kill her. Take her away I don't want to hurt her". The Crown argues that Robb wanted to get rid of her.

105 The Crown puts it to you that when Robb said “take her away”, he was saying to the accused to take her away, and that the accused was not on the balcony as he says, he was there at the scene where the other witnesses placed him. The Crown says that the significant witnesses -Hernandez, Reutte, Lydon - all said Jamie Robb was not looking for a fight. He was either getting dressed or undressed at the time. Whatever the drug intake, the Crown said that Robb was asleep during the day and had not smoked, and Rose said he had not smoked the marijuana that day. The Crown argues that Robb did not come out the flat with the intention to choke Christine Dawson at all, but to get rid of her.

106 Now in relation to the evidence of choking, the Crown put to you that Hernandez and Lawrence saw Robb pushing Dawson away with one hand. As I have said before, it was after the stabbing that Robb dropped the shoes and shirt. Lydon said that he was using two hands on Christine Dawson. She pushed him first, he pushed her, there was a scuffle, a wrestling match, and Robb dropped the shoes and the shirt. Lydon said he saw Robb choking Dawson for about twenty seconds and then when re-examined by the Crown he said that Robb had his hands straight out in front of him, around Dawson's upper chest, not on the neck; that Dawson's conduct after the stabbing was to run to unit 209; that she was not having trouble with breathing, not holding her neck; that she continued to scream abuse; and she told police that she did not remember being choked.

107 The Crown puts to you that the accused's case is to attempt to paint himself into a better light. He said he was an innocent bystander on the balcony and he said in the first interview, you will remember, he did not see the knife until it was on the shoulder of Jamie Robb. And clearly, only with the three of them, the implication, in the first record of interview, is that she did it. Then, in the second record of interview, he says he was not in shock and he had no trouble remembering details. He blamed Dawson and changed his story when he knew he was charged. And you will remember in the first interview he looked bored and arrogant rather than in shock. The Crown put it to you that you will reject his version of the evidence and that you will find Murder.

108 Now the defence put to you that what was done by the accused was done in self defence, it was not in anger or impulsive behaviour. The defence, Mr Stewart, put to you that in his terms that it left a hole in the Crown case, that is, if you take out the accused's version it leaves a hole in the Crown case. The Crown does not have to prove a reason for why the accused did what he did. It has to prove the elements of the offence, and so the suggestion that there is a hole in the Crown case is not valid. The Crown does not have to show a reason for the actions. It has to show each of the elements in firstly Murder, to achieve Murder. And if they do not persuade you as to Murder then the Crown says, as to Manslaughter, you should look at the elements of that which I have written out there for you.

109 On behalf the accused, Mr Stewart has told you that his client gave evidence on the stand that what he was doing was to stop Jamie Robb choking Dawson. He said he did not know where he had stabbed him, that he was not aiming, that he did not lose his temper and he was scared, panicked and thought it was the only way to stop him.

110 Just if I can remind you of the matter I have omitted to mention in the Crown case, in determining whether it was reasonably necessary to do as he did, the Crown puts to you that there were other alternatives. He did not have to do as he did. He could have produced the knife. He could have jabbed him. He could in some other way done something with the knife, which is a pretty savage weapon, that it would not have been necessary for him to do what he did.

111 But in the case put to you by Mr Stewart, the stabbing was in effect conceded. It was not done in anger or impulse. The accused gave a clear explanation that it was Dawson being choked, that the Crown must negate all of the elements, that is, in particular self defence. The large part of this case is about both Murder and Manslaughter. He reminded you that the accused gave an explanation in his second interview of the panic and why he said what he said in the first interview, that it was quite reasonable to take Robb seriously based on what he believed was Robb's dangerousness, that it was highly charged circumstances when you put all the circumstances together.

112 He reminded you that Lydon said the deceased dropped his shoes and shirt then, that both hands were near her neck, and it is put to you that the accused's evidence was that he came afterwards. He gave evidence - he did not have to give evidence but he did - and subjected himself to cross-examination. And it is put to you that what the accused did was done in self defence, that the Crown has not made out its case for Murder or for Manslaughter and that you will accept the version given by the accused in oath before you.

113 Now I am not going to remind you of the exhibits. You will have all of those with you to assist you in understanding the evidence and to evaluate that evidence and the oral evidence before you. I remind you that if there is any evidence you wish to be reminded of, the oral evidence, or if there is any matter about these directions that you want clarified, then send a message through the officer and I will answer that question, if there is a question, or I will let you know about the evidence if you want to be reminded of that. The document that I have given you is to explain how once you have found what the facts were at the time, looking at the whole of the evidence, you then apply those facts as you have found them.

114 There are just a couple more notes I want to remind you of about the accused's case.

115 The defence put to you that the level of hostility between the deceased and the accused needs to be put in perspective. There is the evidence of the prior occasion of Robb assaulting Dawson in response to Dawson's actions in relation to the bus stop incident. Putland's evidence was that it was Robb who looked at Dawson and the accused spun his bike around and confronted them, and that Putland said the accused showed no aggression, stood behind Christine Dawson and that Dawson was protective of the accused.

116 It was argued by the defence that the incident at the bus stop was a significant experience and contributed to the accused forming a perception. He saw aggression, violent threats by the deceased and the demeanour of the deceased. Even in his first interview with the police the accused said: “I never seen anyone like this, he looked dangerous”. It is put to you on behalf of the accused that he had no criminal history, was a person of good character - and I directed to you as to how that is to be taken into account - and that the deceased had an extensive criminal history - and I have told you about how that record is to be used. It is argued then that the accused's perception of the deceased was as a dangerous person, and it is put to you that that can be accepted as genuine.

117 The other evidence about the accused's perception is that Christine Dawson told him things, which you will see in the record of interview, about the deceased being violent towards his de facto; that the accused saw the knife in the pants of the deceased, and this is supported by Mazzeo who said he heard Christine Dawson say, "How dare you confront me with a knife"; and to look at the incidents concerning Mary Currie, his mother, and the choking incident; that these events caused the accused's perception to be heightened and affected his capacity to assess that situation; and that you should find that the Crown has not made out its case.

118 I ask you therefore if you would withdraw briefly and I will talk to counsel about whether there are any other matters they want clarified.

DISCUSSION IN THE ABSENSE OF THE JURY

119 Just a few matters. Firstly, I may not have made it clear as to the accused's evidence as to not seeing Christine Dawson act aggressively. His evidence was clear, he had not seen her act aggressively previously, but clearly he saw her acting aggressively on the day. I miscast that.

120 The second thing is that the accused did not hear said, "Take her away, I don't want to hurt her", the accused heard, "Take her away or I'll fucking kill her".

121 I just want to give you a little more detail of the evidence of Mr Lydon. Both counsel have agreed that I should remind you of this. At page 58 of the first re examination of Mr Lydon, at line 39, these questions were asked:

“Q. And your evidence is that you saw Mr Robb with both hands on the neck of Miss Dawson?

A. Yes.

Q. Your evidence was that from your observations he appeared to be choking her?

A. Yes.

Q. By the use of the term choking, what you mean is, and correct me if I am wrong, choking in the sense of applying force to her throat and neck in order to cut off her breath?

A. Yes.”

122 Further on page 59 just a little bit after that, at line 13:

“Q. You observed it happen, the choking, you observed that choking not merely to be momentary but for some period of time; you agree?

A. Maybe 20 seconds.”

123 I will give you the evidence in re-examination (and that is not when he was brought back but re examination when he first gave evidence):

“Crown Prosecutor: Q. This choking incident, what part of Jamie could you see when this was going on?

A. I could only see his back and his head was down.

Q. Where were his hands?

A. Around.

Q. Demonstrate the way he was holding his hands?

A. He had them up like that.”

124 I said:

“Q. You indicated palm downwards straight out from the shoulder?

A. Yes.

Crown Prosecutor: Q. And with what part of Christine's body did the hands make contact?

A. Around this area here, around the neck here.”

125 Then I interpolated:

“Q. You indicated using your right hand, upper part chest, and then not actually touching the neck?

A. That's right, yes.

Crown Prosecutor: Q. Were the two persons stationary while this was going on?

A. No, it was just like a wrestle.

Q. How were they moving?

A. They had both hands on each other like that and moving around wrestling.

Q. Was either person saying anything while this was taking place?

A. I don't remember the exact words they were saying to each other.”

126 Now, members of the jury, I remind you that if there are any questions the Court will reassemble and we'll deal with those questions as to evidence or as to the directions I have given.

127 As to the timing, I am sending you out in a couple of minutes. You can sit on as you choose. Indeed, you can break at 4 o’clock and come back on Monday. We do not lock up juries, we locked up one jury but that is another story, you do not get locked up, you can come back on Monday if you cannot finish your deliberations now or, if you wish, you can sit on beyond 4 o'clock. It is entirely a matter for you if you want to continue. I will be here this afternoon. I have got another matter in Court but we will interrupt that matter if any question arises during the afternoon.

128 I want to tell you what to expect when you reach your verdict, and remember, it does not matter the means whereby you achieve your verdict of either Murder, Manslaughter or Not Guilty, all twelve of you must agree on that verdict. So you will come back in when you have sent a message you have achieved that verdict and I will say, "Will the foreperson of the jury please stand?". My Associate will then ask, "Members of the jury, have you agreed on your verdict?", and will ask, "How say you, is the accused Guilty or Not Guilty of the charge of murder?". If the foreperson's reply is, "Yes", my Associate then asks you collectively, "Members of the jury, you say the accused is Guilty of murder. So says your foreperson, so say you all?". If, "No", if the foreperson says, "No", the Associate says, "Members of the jury, is the accused Guilty of Manslaughter?", and if the foreperson says, "Yes", the Associate then asks you collectively, "Members of the jury, you say the accused is Guilty of Manslaughter. So says your foreperson, so says you all?". If, "No", then the Associate asks you, "Members of the jury, you say the accused is Not Guilty of Manslaughter. So says your foreperson, so says you all?".

129 As I have said, it does not matter how you achieve any one of those three results, your verdict must be unanimous, and I now ask you to retire to consider your verdict.

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Last Modified: 08/12/2004