R v McNeil (No 3)

[2015] NSWSC 758

Supreme Court

New South Wales

Medium Neutral Citation:	R v McNeil (No 3) [2015] NSWSC 758
Hearing dates:	9 June 2015
Decision date:	09 June 2015
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Application for directed verdict refused
Catchwords:	CRIMINAL LAW – practice and procedure – application for directed verdict of not guilty – murder – intention to cause grievous bodily harm – whether evidence is incapable of proving alleged offence – evidence to be taken at is highest – application refused
Cases Cited:	Doney v The Queen [1990] HCA 51; 171 CLR 207 R v LK [2010] HCA 17; 241 CLR 177 R v R (1989) 18 NSWLR 74
Category:	Procedural and other rulings
Parties:	Regina Shaun Stuart McNeil
Representation:	Counsel: Mr E Balodis (Crown) Mr C Smith SC (Accused   Solicitors: Solicitor for Public Prosecutions Legal Aid NSW
File Number(s):	2014/222

Judgment

1. HIS HONOUR: This trial is concerned with the alleged murder of Mr Daniel Christie by the accused in Victoria Street, Kings Cross on New Year’s Eve 2013. The Crown alleges that the accused approached Mr Christie, who was a total stranger, and struck him with a single punch that caused him to fall to the ground. His head struck the hard pavement of the roadway and he suffered catastrophic injuries from which he subsequently died.

2. The Crown case is that the accused intended by his punch to cause grievous bodily harm. The defence case is that there was no such intention and that the accused should be found guilty of manslaughter by way of an unlawful and dangerous act.

3. The Crown case has closed, and Mr Smith of Senior Counsel has made an application on behalf of the accused that I direct a verdict of not guilty in respect of the charge of murder.

4. It was Mr Smith’s submission that there was no evidence capable of satisfying the jury beyond reasonable doubt of one of the essential elements of the offence; namely, that at the time of the act causing death, the accused intended to cause really serious bodily harm. He referred to four bodies of evidence that were relevant to this issue: the CCTV footage; the eye witness testimony; the police interview of the accused following his arrest; and the evidence of Dr Bailey, the forensic pathologist. He submitted that, taking that evidence at its highest, it was not possible for that essential element to be made out.

5. The Crown opposed the application and referred me to some aspects of the evidence supporting its argument that the element could be made out.

6. The matter has to be seen in the context of events that occurred slightly earlier than the assault upon Daniel Christie. A short time before and distance away from the fatal assault, the accused assaulted a young person, who I will identify by the letter "F". He punched F, causing him to go to the ground, and then kicked him.

7. Peter Christie, the deceased's brother, gave evidence that as the accused and F came in his direction a very short time later, the accused appeared to be "a muscly bloke", and he had "an aggressive manner". He was "sort of like beefing up to look big" and said, "I'm an MMA fighter.” Another young person who I will identify by the letter "G" said that he heard the accused say "something along the same lines.”

8. There is evidence supporting Peter Christie’s description of the physical description of the accused as “a muscly bloke”. He weighed about 110 kg and told police he trained with weights. A photograph of the accused (Exhibit L) also supports the description.

9. Witnesses have given various descriptions of the punch delivered to the deceased. Peter Christie described it as a, "Right hand punch, extremely hard but fast with a bit of, like to Daniel's face with a bit of like, not just a quick jab, but like a bit of build up into it" (T 117.25).

10. Raymond Taylor said that the accused "did a step, lunge, and then threw a punch and then hit the guy that was standing on the footpath in the face" (T 127.42). He described the punch as being with "lightning speed" (T128.15). He described the movement of the accused's arm "from his waist to the guy's face" (T128.46).

11. Manus Upadhyay described "a big swing" (T139.46). He agreed that it was "coming from low on the body and up" (T140.6). He agreed that his demonstration of the swing was "his hand being somewhat down by his waist and then coming up approximately to the area of ... [the] head...and moving close to the middle of [the] body as the punch grows higher" (T140.24). The speed of the punch he described as "very fast"; (140.45).

12. Daniel Clancy said "he was stepping forward with his right foot and his hand came down low to - and I'd call it a long right hook" (T160.11). He also said, "it was done rapidly" (T160.15). He agreed that it was "a punch that has come from down about [the] waist and up and around" (T160.28). And he said, "He stepped and threw at the same time, so his hand probably travelled over a metre and a half" (T161.13)

13. In the accused's police interview he first described the punch in the following terms: "I've just upper cutted" (Q 252). However, he subsequently indicated that the punch was not hard, or with as much force as he could deliver.

14. Dr Bailey's evidence was to the effect that there were too many variables to be able to say anything definitive about the degree of force with which the punch was delivered.

15. I have a duty to direct an acquittal if, at the conclusion of the prosecution case, the evidence is incapable of proving an alleged offence. In this case it is asserted to be so because of the failure of the evidence to possibly make out the essential element of intent.   I have no power to direct a verdict merely because I have formed a view that a guilty verdict would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74 at 85. A verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207; R v LK [2010] HCA 17; 241 CLR 177 at [29].

16. In Doney v The Queen the principles were explained (at 214-215) as follows:

"It follows that, if there is evidence (even if 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, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory nor the inherent power of a court to prevent an abuse of process provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial."

17. I have considered the evidence and taken it at its highest in favour of the Crown. Having regard to the descriptions of the punch, and bearing in mind that it was delivered by a large and powerful man who was in an aggressive and agitated state of mind following the earlier events, it would be open to the jury to be satisfied that there was an intention to cause really serious bodily harm. Whether such a conclusion would be a reasonable one is another question but not one for me to consider.

18. For these reasons the application is refused.

**********

Decision last updated: 16 June 2015