R v Kaplan
[2005] VSC 371
•22 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1532 of 2004
| THE QUEEN |
| v |
| NATAN KAPLAN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14-16, 20-22 June 2005 | |
DATE OF RULING: | 22 June 2005 | |
DATE OF REASONS: | 22 September 2005 | |
CASE MAY BE CITED AS: | R v Natan Kaplan | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 371 | |
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Criminal Law – Case to answer – Manslaughter – Argument outside night club - Single punch to chin – death resulting from head striking pavement
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Office of Public Prosecutions |
| For the Accused | Mr T. Danos | Dean Cole & Associates |
HIS HONOUR:
These are the reasons for my having rejected a submission made at the close of evidence that there was no case for the accused to answer as to manslaughter. The accused was charged with the manslaughter of the deceased arising out of events that occurred at around 12.40 a.m. on 13 February 2004. The deceased died as a result of head injuries which he sustained when his head struck the footpath in Church Street Brighton after he had been punched on the chin by the accused.
There were many people present at the time. There was ample evidence that the punch had been struck by the accused. The punch was thrown after the deceased had been refused access to the nearby night club, for reasons that included that he had appeared intoxicated, as he was. The deceased had shouted abuse at the security guard who denied him access. He then walked away. The accused walked after the deceased. When he got to him, the accused called to the deceased in order to get him to turn around. When the deceased turned, his arms were by his sides. The accused then hit the deceased forcefully to the chin.
It was put to me by Mr Danos, counsel for the accused that there was no case to answer as to manslaughter. Mr Danos relied on the evidence of Dr Ranson, the forensic pathologist who carried out the autopsy, to the effect that the injury to the chin of the deceased was superficial, and could not have caused the death of the deceased. Mr Danos also referred to the evidence of other witnesses as to the force with which they perceived that the punch was struck. That evidence was given in terms that varied considerably. Mr Danos argued that, when the evidence was viewed in totality and allowance was made for the discrepancies, there was no basis for the jury being able to conclude that the act of the accused was “dangerous” in the requisite sense. In argument, the main reference was to what was said by the High Court in R v Wilson (1991-1992) 174 CLR 313. Mr Danos also referred me to R v Cornellissen [2004] NSWCCA 449.
In his evidence, Dr Ranson referred to his having concluded that the cause of death was head injury. He had noted the fractured skull at the back and side consistent with the head having come into contact forcefully with the pavement. He also found bruising and abrasion on the right side of the chin. His opinion was that the chin injury was a superficial injury which could have been caused by any application of blunt force. He further opined that it was difficult to assess the level of force required to cause that injury to the chin. He noted that the area under the chin was not particularly vulnerable as contrasted with the point of the chin. Various witnesses described the punch in terms such as: “a jab”, “full body force”, “a forceful round-house punch”, “a solid punch”. Various witnesses described the sound that they heard at the time of the punch.
As to the principles applicable to a non case submission, I refer to R v Doney (1990) 171 CLR 207. In short, I must take the prosecution case at its highest. As to the element of dangerousness, I refer to what was said in R vWilson. At 335, the majority said: “In the end the jury had to determine whether the appellant’s act in punching the deceased was, from, the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased.”
I am unable to accept that a focus on a particular aspect of the evidence, such as the answers given by Dr Ranson to certain questions could have the effect of limiting the capacity of the jury to determine in the light of all the evidence whether the act of the accused was, from the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury. Likewise, as to a focus on the variations in the accounts of witnesses as to the forcefulness or sound of the punch. The jury has the benefit of looking at all relevant circumstances, taking all the evidence together. I am well satisfied that viewing the punch in its full context, the jury would be in a position to draw an inference adverse to the accused in accordance with the terms laid down in Wilson. As to Cornellissen, I am not able to see that anything said there warrants any review of my conclusion. The focus there was on the issue of whether the jury ‘s attention had been adequately directed by the trial judge to the need to make the assessment of dangerousness “from the standpoint of a reasonable person”.
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