R v Johnson (No 3)

[2017] NSWSC 572

Supreme Court

New South Wales

Medium Neutral Citation:	R v Johnson (No 3) [2017] NSWSC 572
Hearing dates:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Common Law
Before:	Button J
Decision:	Application for “Prasad invitation” rejected.
Catchwords:	CRIMINAL – application to invite the jury to consider acquittal at the close of the Crown case – Prasad invitation – assessment of whether the Crown case is weak – assessment of Crown case as strong – application rejected
Cases Cited:	Browne v Dunn (1893) 6 R 67 (HL), R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 at [70]-[72] R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161
Category:	Principal judgment
Parties:	Regina Steven John Johnson
Representation:	Counsel: L Carr (Crown) C Taylor (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Rice, More & Gibson (Accused)
File Number(s):	2015/146675
Publication restriction:	Nil

ex tempore Judgment

1. Defence counsel has submitted that I should provide the jury with an invitation in accordance with the principles discussed in the well-known case of R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161; namely, an invitation to consider whether they are unanimously of the view that the Crown has not proven its case beyond reasonable doubt.

2. An essential practical precondition of me adopting that course would be my own personal assessment that the Crown case is in some way weak. For the following reasons, I am not of that opinion.

3. First, to my mind, the Crown case is strong that it was indeed the accused himself who administered a brutal bashing to the deceased on the evening of Friday 15 May 2015. I say that because a notably recurring theme in the evidence of the Crown witnesses is that the assailant was wearing a football jersey that was very similar to the jersey of the South Sydney Rabbitohs Rugby League team. And it was not disputed by defence counsel in cross-examination, by way of the rule in Browne v Dunn (1893) 6 R 67 (HL), that the accused was wearing such a jersey when the police arrived, and indeed divested himself of it at their request.

4. It is true that, entirely as one would expect, there are divergences and inconsistencies in the evidence of the plethora of eyewitnesses who saw the events unfolding that included the assault, at various stages and from various perspectives. Anything other than that state of affairs would be contrary to human experience, and indeed suspicious. But those inconsistencies do not persuade me that the Crown case that the accused was the assailant is a weak one.

5. The other factor that needs to be considered is the hearsay evidence from the deceased that one can infer – exercising due caution – was to the effect that he had been assaulted by the accused and only the accused.

6. Secondly, as for the necessary mental element for murder, I regard the evidence in that regard as strong as well. To give but one example, Mr Smith, the driver of the West Tamworth Leagues Club courtesy mini-bus, gave a compelling demonstration of the repeated, extremely forceful kicks that he saw administered to the man who one can readily infer was the deceased. Other witnesses gave similar evidence supporting an intention to inflict grievous bodily harm. I regard the evidence for the mental element of murder as strong as well.

7. Thirdly, as for causation, it needs to be recalled that the Crown must prove that an assault committed by the accused substantially contributed to the death of the deceased: R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 at [70]-[72]. In other words, even if the pre-existing state of ill-health of the deceased was also a substantial contribution; or a pre-existing injury; or even if the failure of the deceased to obtain medical assistance after the assault could be put in the same category; or a combination of those factors; that by no means exculpates the accused.

8. Defence counsel has placed particular emphasis on the evidence of forensic pathologist Dr Beer in cross-examination, to the effect that the tears or cuts to the spleen of the deceased could have been caused by some trauma before 15 May 2015. So much may be accepted as a matter of scientific opinion; but scientific opinion is by no means the only evidence of causation in this case.

9. The simple fact is that, before 7.30PM on Friday 15 May 2015, whilst undoubtedly a man in very poor health, the deceased was also talking, walking extended distances, purchasing alcohol, drinking, and socialising generally. Substantially less than 24 hours after the alleged assault he was complaining of enormous pain, and a little over 24 hours after the assault occurred he was dead.

10. In those circumstances, as a matter of common sense, I consider it would be well open to the jury to infer that the assault substantially contributed to his death, whatever other factors may have been in play.

11. Finally, to my mind there is nothing to suggest that the treatment of the deceased at hospital was in any way negligent.

12. In short, far from being of the opinion that the Crown case is weak, I respectfully regard it as strong that the accused has committed the offence of murder. And I regard it as very strong that he has committed some, more extended, form of the general offence of homicide.

13. For the foregoing reasons, I do not accept the application to invite the jury to consider acquittal at this stage on any basis with regard to any count upon the indictment.

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Decision last updated: 23 May 2017