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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 558
Decision Date: 08 May 2014

CaseChat Overview and Summary

In the case of R v McKnight (No. 3), the appellant was convicted of manslaughter in the Supreme Court of Victoria. The trial judge declined to direct the jury on the lesser offence of manslaughter, instead only directing the jury on murder. The appellant appealed against his conviction, arguing that the trial judge erred in not redirecting the jury on the lesser offence of manslaughter. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the trial judge was required to redirect the jury on the lesser offence of manslaughter and whether the presumption of continuance operates in respect of criminal matters in which the civil standard of proof applies. The court noted that the trial judge had directed the jury on the lesser offence of manslaughter, but had not redirected them on this offence after the close of the prosecution's case. The court also considered whether the presumption of continuance, which applies to civil matters, also applies to criminal matters where the civil standard of proof applies.

The court held that the trial judge was not required to redirect the jury on the lesser offence of manslaughter. The court noted that the trial judge had directed the jury on the lesser offence of manslaughter, but had not redirected them on this offence after the close of the prosecution's case. The court held that there was no error in the trial judge's decision not to redirect the jury on the lesser offence of manslaughter. The court also held that the presumption of continuance does not operate in respect of criminal matters in which the civil standard of proof applies. The court held that the prosecution must prove its case beyond reasonable doubt, and that the presumption of continuance does not apply in such cases.

The appeal was dismissed. The conviction of the appellant was upheld.

Orders