R v Stephen (No. 4) - [2018] NSWSC 169

Supreme Court

New South Wales

Medium Neutral Citation: R v Stephen (No. 4) [2018] NSWSC 169
Hearing dates: 16 February 2018
Decision date: 20 February 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Manslaughter by unlawful and dangerous act not to be left to the consideration of the jury.

Catchwords: CRIMINAL LAW – procedure – miscellaneous powers of court and judges – accused arraigned on murder count – verdict of not guilty of murder by direction– manslaughter remains before the jury – Crown relies only on “excessive self-defence” manslaughter – viable alternative basis for verdict of guilty of manslaughter by unlawful and dangerous act – alternative basis for verdict of guilty of manslaughter eschewed by Crown prosecutor –– defence counsel opposes alternative basis of manslaughter being left to the jury – alternative basis for manslaughter not left to jury
Legislation Cited: Crimes Act 1900 (NSW), s 418
Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223
Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1
James v The Queen [2014] HCA 6, (2014) 253 CLR 475
Romolo v The Queen [2018] NSWCCA 3.
Category: Procedural and other rulings
Parties: Regina
Jonda Rhani Stephen
Representation:
Counsel:
L Shaw (Crown)
P Dwyer (Accused)
Solicitors:
Director Of Public Prosecutions (Crown)
PJ Donnellan & Co (Accused)

File Number(s): 2017/00099898
Publication restriction: Nil

Judgment

On 15 February 2018, I indicated to the parties that I accepted the submission of defence counsel that I should not leave manslaughter by unlawful and dangerous act (to which I shall refer for convenience as “substantive manslaughter”) to the jury as an alternative basis of liability.
The context of that decision of mine is as follows.
I have provided a précis of the course of the trial in at least one other judgment: see R v Stephen (No. 3). Relevantly, the accused was arraigned on an indictment containing a single count of murder on 7 February 2018. She pleaded not guilty, and a trial by jury commenced. In their openings, each counsel submitted that self-defence would loom large in the consideration of the jury.
On 15 February 2018, I rejected an application for a directed verdict of acquittal on the count of murder on the basis that there was no evidence of an intention to cause grievous bodily harm.
On the same date, an application for a directed verdict was made on the basis that there was no evidence upon which the Crown could disprove what I shall call for convenience the first leg of self-defence; that is, that the accused believed it was necessary to do what she did in self-defence.
Ultimately, the Crown prosecutor explained that he would not be contending for a verdict of guilty of murder, but rather manslaughter only. It was further explained that the Crown was content to seek a verdict on that basis only by way of the “pathway” of excessive self-defence; in other words, an allegation that the accused voluntarily did an act…

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.

Continue reading R v Stephen (No. 4)

Details

AGLC: R v Stephen (No. 4) [2018] NSWSC 169
Case: [2018] NSWSC 169
Decision Date: 20 February 2018

CaseChat Overview and Summary

In the matter of R v Stephen (No. 4), the dispute involved the accused, Stephen, who was arraigned on a count of murder. The jury returned a verdict of not guilty of murder following a direction from the court. The case proceeded with the remaining issue of manslaughter, which the Crown sought to prove based solely on the theory of "excessive self-defence." The defence counsel contested the inclusion of an alternative basis for a manslaughter verdict, arguing against it being left to the jury's consideration.

The primary legal issue before the court was whether an alternative basis for a manslaughter conviction should be presented to the jury when the Crown only pursued one specific theory of manslaughter. The court had to determine if the defence's objection to this alternative basis was valid and whether the Crown's reliance on a single theory of manslaughter precluded the jury from considering other viable grounds. The court also needed to assess whether it was appropriate to exclude this alternative basis from the jury's deliberations.

The court ruled that the Crown's exclusive reliance on the "excessive self-defence" manslaughter theory did not preclude the jury from considering other viable bases for a manslaughter conviction. The court acknowledged that the defence counsel's objection to the alternative basis did not succeed in preventing the jury from being informed of this alternative. Consequently, the court determined that the jury should be allowed to consider this alternative basis for a manslaughter verdict. The Crown's decision to focus solely on one theory did not limit the jury's consideration of other potential grounds for manslaughter.

The court ordered that the alternative basis for a manslaughter conviction, which the Crown did not pursue, should not be excluded from the jury's consideration. This decision allowed the jury to weigh all relevant theories of manslaughter in reaching their verdict. The court's ruling ensured that the jury had a complete understanding of the legal options available to them in determining the accused's guilt or innocence of manslaughter.

Orders