R v McKnight (No. 3)

[2014] NSWSC 558

Supreme Court

New South Wales

Medium Neutral Citation:	R v McKnight (No. 3) [2014] NSWSC 558
Hearing dates:	28 - 30 April; 1, 2, 5 - 8 May 2014
Decision date:	08 May 2014
Jurisdiction:	Common Law - Criminal
Before:	Campbell J
Decision:	I decline the application to redirect the Jury
Catchwords:	PROCEDURE - criminal - redirection - whether redirection required EVIDENCE - proof - circumstantial evidence - presumption of continuance - whether presumption operates in respect to criminal matters in which the civil standard of proof applies
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	R v Jeffrey Paul Noonan [2002] NSWCCA 46; Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93
Texts Cited:	Cross on Evidence, Australian Edition (looseleaf)
Category:	Interlocutory applications
Parties:	Regina (Crown) Michael McKnight (Accused)
Representation:	Counsel: J Pickering SC (Crown) G Brady (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Accused)
File Number(s):	2012/104525

EX TEMPORE Judgment

1. Yesterday, in answering a question from the Jury, which indicated to me and counsel the need for a Black direction, I accepted submissions by counsel for both parties that I should prelude my Black direction with a reminder of what I had said in the course of my oral and written directions about the necessity for the question which arises under s23A (1)(a) of the Crimes Act 1900 (NSW), to be decided by reference to circumstantial evidence, albeit on the balance of probabilities.

1. During the course of giving that prelude to my Black direction,(at page 107 summing up) the expression "the presumption of continuity ". What I said in context is follows:

"There is something which I have not mentioned to you previously. There is a principle of the law of evidence, referred to as the presumption of continuity. If there is evidence showing before a salient event a condition exists, but no evidence at the time of the salient event that it exists, but after it there is evidence that it exists, then the tribunal of fact is entitled-not required or obliged-it is entitled to work on the basis of a presumption of continuity that the condition continues throughout, even though there is no direct evidence; that is to say, you don't have to call evidence that everyday he's got schizophrenia, because the evidence is that he had it as late the March 2010. The evidence is he's got it now and has had it since he has been in prison. Neither of the doctors suggested that it has been cured in the meantime and then he's got it again. You are entitled to work on the assumption that he has had the condition throughout. As I reminded you from recounting the arguments of Mr Brady, you are also entitled to rely upon the fact that it is untreated. If it is untreated, it may well be symptomatic, but not necessarily. Those are the approaches to the evidence you are entitled, but not required, to adopt and take."

1. After I had completed my direction, including the Black direction, the learned Deputy Director of Public Prosecutions applied for a redirection to the effect that I withdraw the use of the expression "the presumption of continuity".

1. I stood his application over for argument this morning to enable learned Senior Counsel, learned counsel for the accused, and me, to consider the transcript of my direction overnight. When the Court resumed at 9:45 am for the purpose of hearing the application, learned Senior Counsel handed up a proposed redirection which I marked MFI 24.

1. The proposed redirection, in substance, restates closely what I said by way of prelude to the Black direction but omits reference to the phrase, or, principle of, "the presumption of continuity".

1. Senior Counsel argues that the phrase has the flavour about it of a direction that the onus of proof has shifted for the prosecution, contrary to the provisions of s 23A(4) which imposes it upon the accused.

1. I must say, as acknowledged by counsel in argument, that at no time during the course of anything I said to the Jury yesterday did I refer to the elusive concept of shifting evidential onuses.

1. According to the authors of Cross on Evidence, Australian Edition, at [1125], the presumption of continuance is no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts. As such, it is a method of reasoning by which circumstantial evidence may be used to infer the existence of certain facts. In R v Jeffrey Paul Noonan [2002] NSWCCA 46 at [19] per Bell J (Beazley JA and Smart AJ agreeing), in relation to an attempt to utilise the presumption for the purposes of identifying the accused as the driver of a vehicle held that:

I am not able to accept that the retrospective operation of the presumption of continuance might be called in aid so as to admit of an inference being drawn beyond reasonable doubt

1. However, this is not such a case. I directed the Jury regarding the presumption of continuance on an issue that has to be proved on the balance of probabilities, not beyond reasonable doubt, as was the case in Noonan. This is an issue on which the accused carries the onus on, effectively, the civil standard of proof. It is not an onus borne by the Crown on the criminal standard of proof.

1. In Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Campbell JA (at [64-65])provided a succinct explanation of the way in which the presumption operated in a case that was to be decided on the balance of probabilities. Given that Stanoevski was a disciplinary matter regarding a legal practitioner, the consequences of which were grave, it has a quasi-criminal flavour and as such is especially relevant to the present case. His Honour said:

Those remarks are in my view directly applicable in the present case, where the Law Society had the onus of proving a negative proposition, namely that the Appellant was not a fit person to remain on the roll. The evidence it adduced of the various acts of professional misconduct in the period 1991 to 1993 were enough to establish that the Appellant was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that the Appellant was still unfit, unless the Appellant could produce evidence that gave reason for believing i. That is a totally conventional application of a shifting evidential onus. It involved no error of law by the Appeal Panel.

There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared. However, the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone's entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed. [emphasis added]

1. This passage demonstrates two pertinent points regarding the presumption of continuity and its application to this case. The first is that it may be used in this case to raise the presumption that at the time of the events the accused suffered from the underlying condition of schizophrenia by virtue of the fact that there was extensive clinical evidence that he suffered from the condition prior to 2010, and also subsequent to his incarceration as a Justice Health patient. This body of evidence was referred to by the expert psychiatrists who have given evidence in this trial as the longitudinal history.

1. Applying the reasoning of Campbell JA, it seems that the presumption would operate to enable the Jury to infer that given the medical history of schizophrenia both before and after the offence, they could make a finding that the underlying condition then existed or subsisted at the time of the offence. This is of course different from the question whether it produced the relevant partial mental incapacity required by s 23A.

1. Having said that, a finding that the underlying condition existed at that point in time would be a circumstance the Jury would be entitled to take into account in deciding whether they were satisfied on the balance of probabilities that the inference of mental incapacity was an inference more likely than any of the other available inferences in the case.

1. Secondly, Campbell JA's reasoning regarding the strengths of the inference is relevant. In Stanoevski it was held that a person's character is something that can persist over decades, even a lifetime, thereby strengthening the presumption of continuity.

1. To my mind the presumption is strong in the present case. Schizophrenia is a condition which is managed, not cured. There is evidence that the accused demonstrated symptoms of the disease as early as 2002 and continues to do so today. In the absence of evidence to the contrary, it could be a strong presumption that, despite the absence of any direct evidence that the accused suffered from the underlying condition on 25 March 2012, it continued to affect him. As I have said already, in directing the Jury yesterday I said nothing of the difficult and elusive concept of shifting evidential onuses.

1. It seems to me that the direction I gave yesterday was entirely appropriate, given that the relevant onus of proof is on the balance of probabilities. Moreover, I said nothing whatsoever to the Jury about any obligation, forensic or otherwise, of the Crown to rebut the inference. What I said to the Jury made it entirely clear that what I was describing was a permissible mode of reasoning only. I did not describe it as a presumption of a type that was either irrebuttable or could only be rebutted by the Crown discharging an affirmative duty to call evidence.

1. I remark, in passing, that the Crown did call Dr Allnutt, and as I have reminded the Jury, more than once, Dr Allnutt's evidence is that the question of mental incapacity is not decided solely by reference to the existence of the underlying disease, but depends upon the symptoms of it being active at the time of the event in question; the kicking of Mr Ray.

1. In argument this morning, Mr Brady of learned counsel who appears for the accused has, with no disrespect, with some hesitation, indicated that he adheres to his approbation of yesterday afternoon, that my direction was appropriate. But if I am of a different view this morning, he is content for me to read MFI 24 to the Jury as an accurate direction.

1. Though normally I would hesitate to disagree with two such eminent, highly experienced members of the criminal bar on a question of the management of a criminal trial, and of what directions are appropriate to be given to a Jury, on this occasion I am going to.

1. It seems to me that the direction I gave was correct, in law, for the reasons I have given. It did not have the vices that the Crown apprehend. To call the Jury back and to say to them that I withdraw everything I said yesterday, and then read something new to them, might engender confusion rather than clarity. I accept that the purpose of the Crown's proposed re-direction is, in part, to ensure clarity, as well as to expunge perceived error.

1. This is the fourth day on which the Jury have been deliberating on a trial which lasted six days. It is clear from the questions that were asked yesterday that the Jury are finding it no easy task. I apprehend that if I recall what I said yesterday, and it is never an easy to successfully recall words once spoken, notwithstanding the admirable clarity of the suggested redirection, it is likely to lead to confusion and questions in their minds about whether their deliberations conducted this morning are to the point.

1. Now, I acknowledge and accept the importance of ensuring that the Jury is properly directed. Even when the Jury has made its mind up and is anxious to return, it is the fundamental obligation of a trial Judge to stop them delivering a verdict until any error in a direction, previously given, has been corrected; or, any question yet unanswered is answered to enable the Jury the opportunity of continuing according to law, rather than terminating, their deliberations.

1. But as I am conscientiously of the view the direction I gave yesterday was correct at law, and was accurate as to the factual matters I drew to their attention, a matter which counsel seem to agree with according to MFI 24, I decline the application to redirect the Jury for the reasons I have given.

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Decision last updated: 12 May 2014