R v Kadric (No 2)
[2002] VSC 240
•11 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1403 of 2002
| THE QUEEN |
| v |
| HARRIS KADRIC |
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JUDGE: | FLATMAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 May 2002 | |
DATE OF RULING: | 11 June 2002 | |
CASE MAY BE CITED AS: | R v Kadric (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 240 | |
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CRIMINAL LAW RULING - Prasad invitation - Self-defence - Substantial operating cause of death.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. B. Kayser | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Defendant | Mr. I. Brewer | Joannidis & Associates |
HIS HONOUR:
The Crown case having concluded, Mr Brewer on behalf of the accused, Harris Kadric, has submitted that the jury should be directed to acquit the accused on the count of murder because the evidence, and such proper inferences as may be drawn from it, cannot in law support a conviction. Alternatively, he requested that I give the jury what has become known as a Prasad invitation.
The circumstances in which a judge may direct an acquittal as a matter of law is well settled. Doney v. The Queen (1990) 171 C.L.R. 207 at 214, reflected the unanimous view of the court:
"It follows that, if there is evidence, even 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, will not sustain a verdict of guilty."
It is equally well established that the power of a trial judge does not extend to directing an acquittal on the basis that a verdict of guilty would be unsafe or unsatisfactory. This is the preserve of the appellate court. The approach suggested by Hampel, J. in an Unreported ruling dated 17 June 1987 is apposite:
"The correct test is whether the accused can lawfully be convicted, that is, whether the Crown's evidence taken at its highest can support a verdict of guilty by a properly directed jury applying the correct standard of proof. The question whether the accused can properly be convicted is a question of law, based though it must be on the judge's examination of the facts, but it does not depend on the judge's view of the credibility of witnesses or the existence of competing inferences. It is concerned with whether the evidence is capable of proving the elements of the charge against the accused."
This approach was followed by Coldrey, J. in an unreported decision of Smith, 12 February 1993, and more recently in a case of Pretty, Unreported 27 February 1997.
The Crown case is that the accused man stabbed the deceased, Ly Thai Phong, and that his death was caused by the conscious, voluntary and deliberate act of the accused at a time when he had at least the intention to do really serious injury and at the time the accused was not acting in self-defence or the defence of others. The issue in this trial is whether or not the Crown can prove that the accused was not acting in self-defence in the sense that he believed upon reasonable grounds that it was necessary in self-defence to do what he did. Put another way, the question ultimately is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did, as set out in Zecevic v. The DPP (1977) 162 CLR 449.
The Crown in its opening pointed to evidence which the Crown Prosecutor relied on to ask the jury to be satisfied beyond reasonable doubt that self-defence was negatived. In particular, the prosecutor indicated he would lead evidence that the accused man Kadric threatened the witness, Tran, with a knife prior to the accused’s own involvement with the deceased man, Phong. It was therefore the Crown case that the accused was the first to produce the knife in the car.
The prosecutor also opened the case that he would lead evidence that the accused man threatened the deceased, Phong, with the knife when he got in the car. He also suggested that the deceased was under control in the rear seat of the car in that, amongst other things, the witness, Tran, had him in a headlock. In the end, none of this evidence was forthcoming in the trial.
The evidence disclosed two distinct episodes. Firstly, an episode in the car whereby the deceased suddenly produced a knife and attacked the occupants and, secondly, an episode outside the car after the deceased had lost his knife. The Crown prosecutor, Mr Kayser, made the following submissions in relation to the first episode:
"The Crown will not submit that it is open to the jury to convict of murder in relation to any acts of stabbing committed by the accused up to the point in time when the deceased gave up possession of the knife. It is not able to point to evidence which in the circumstances would enable the jury to be satisfied beyond reasonable doubt that the Crown has negatived self-defence up to that time."
In relation to the second episode, Mr Kayser submitted that, after the deceased was removed from the car, he did not thereafter present a danger of causing death or serious injury to the other occupants of the car, and I accept that proposition. He then relied on the evidence of Brooke Rees that the accused lunged at the body of the deceased. Mr Kayser said it was open to the jury to find that her evidence of thrusting movements towards the body of the deceased, married up with injuries to the abdominal area of the deceased and that this meant that the accused Kadric stabbed the deceased in the abdomen at that time. He also relied on the evidence of Brooke Rees that the accused had said on his return to the car that he had "seen red" and "gone overboard".
Whilst I accept that, even having regard to the vague and tenuous nature of this evidence, it would be open to a jury to find that a stabbing occurred outside the car, there is a further link in the chain of reasoning that needs to be established before the Crown case can be made out. Although Professor Cordner gave evidence that Phong died as a consequence of bleeding or inhaling of blood due to the multiple stab wounds, it does not follow that all stab wounds contributed to this process. In particular, Professor Cordner gave evidence in relation to the stab wound to the abdomen at p.583 of the Transcript. He said:
"You can see there some old scarring associated with previous surgery running across the middle of the photo."
And he referred to a colostomy bag in the photo, and then he said:
"And you can see there the stab wound. Although I have recorded it in my report that it's 3.5 centimetres, as I see it there, it's really closer to three centimetres stab wound. And although this stab wound entered the belly, it only just did so and didn't cause any injury inside the abdomen."
Later, at p.587, after reviewing Exhibit 2, provided by the defence, which contained five particular stab wounds, he said:
"It leaves out the stab wound near the umbilicus, which I have said penetrated the abdomen - well, it could have been fatal when time passed, but actually hasn't caused any damage internally, but if he had survived for days, there might have been an issue of peritonitis, and it of course leaves out the stab wound in the groin and around the back of the thigh, but they weren't, I think it would be fair to say, life threatening injuries."
The evidence of Professor Cordner quite clearly qualifies the cause of death as multiple stab wounds contributing to bleeding or inhalation of blood.
The test to be applied to determining when a felonious act has caused death is whether that felonious act is an operating and substantial cause of the death; see R. v. Evans and Gardner No.2 (1976) VR 523. Given the way the Crown ultimately put its case in two distinct episodes, the incident outside the car must be viewed on its own.
After anxious and lengthy consideration, I am satisfied that it is not open at law on the evidence in this case to hold that the act or acts of the accused outside the car could be said to constitute an operative and substantial cause of death. It follows that a jury properly instructed could not lawfully convict the accused of murder and I propose to direct the jury to acquit the accused.
Having regard to my finding on this application, it is unnecessary to consider the Prasad invitation. Having regard to the matters raised by Mr Kayser this morning, I think my view is set out in the course of argument with Mr Kayser.
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