R v Rik

[2004] NSWCCA 282

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:    R. v. RIK [2004]  NSWCCA 282 revised - 06/09/2004

FILE NUMBER(S):
60185/04

HEARING DATE(S):             11 August 2004

JUDGMENT DATE:               19/08/2004

PARTIES:
Regina - respondent/Crown
RIK - appellant

JUDGMENT OF:      Hodgson JA Hulme J Smart AJ   

LOWER COURT JURISDICTION:             Supreme Court

LOWER COURT FILE NUMBER(S):        SC 70042/03

LOWER COURT JUDICIAL OFFICER:   Kirby J

COUNSEL:
Mr. R. Hulme SC for appellant
Mr R. Cogswell SC with Dr. J.A. Quilter for the respondent/Crown

SOLICITORS:
S. O'Connor for appellant
S. Kavanagh for respondent/Crown

CATCHWORDS:
CRIMINAL LAW - Appeal - Manslaughter - Whether evidence sufficient - Whether verdict unreasonable - Whether conduct of appellant dangerous - Whether response of deceased reasonable or proportionate

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60185/04
SC    70042/03

HODGSON JA
HULME J
SMART AJ

Thursday 19 August 2004

REGINA  V.  RIK

Judgment

1. HODGSON JA:  On 27 October 2003, the appellant was arraigned before Kirby J in the Supreme Court on three charges concerning events that occurred on 27 October 2002 at Redfern, namely that he:

   (1)did cause the death of William Christopher Harris in circumstances amounting to manslaughter;

   (2)did threaten unlawful violence towards William Christopher Harris and his conduct was such that a person of reasonable firmness at the scene would have feared for his or her safety;

   (3)did unlawfully endanger the safety of William Christopher Harris who was on a railway.

   The three counts (which can respectively be called manslaughter, affray, and endanger safety of person on railway) were presented as alternatives.  The appellant pleaded not guilty to all counts, and a nine-day trial ensued before Kirby J and a jury.

2. On 6 November 2003, the jury returned a verdict of guilty on the manslaughter count, making it unnecessary for it to return a verdict on the other two counts.

3. On 24 February 2004, the appellant was sentenced to imprisonment for three years to commence on 24 February 2004, with a non-parole period of twelve months to expire on 23 February 2005, the sentence to be served in a Juvenile Detention Centre.

4. The appellant appeals from his conviction on two grounds:

   1.The learned trial judge erred in holding there was a case to go to the jury on manslaughter.

   2.The verdict of guilty of manslaughter is unreasonable and cannot be supported having regard to the evidence.

   CIRCUMSTANCES

5. The Crown case was that the appellant acted unlawfully and dangerously, and thereby significantly and substantially contributed to the death of Mr. Harris.  The basic facts were largely undisputed, and the critical issues were whether the appellant’s acts caused the death of Mr. Harris and whether the appellant acted dangerously. 

6. The basic facts were summarised as follows by the trial judge in his remarks on sentence:

   Mr Christopher Harris was in the habit of using the train. On the morning of 27 October 2002 he caught the train at Kings Cross Station. He intended to travel to Newtown. It was necessary for him to change trains at…