Reynolds & Melville v R

Reynolds & Melville v R [2008] NTSC 30

PARTIES:DENISE CARMEN REYNOLDS

AND:

TONI LEANNE MELVILLE

v

THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:20720787 and 20720786

DELIVERED:  11 August 2008

HEARING DATES:  28 July 2008 and continuing

JUDGMENT OF:  RILEY J

CATCHWORDS:

APPLICATION – No case to answer – directed verdict of not guilty – negligence causing the death of a child – matter for the jury to determine

Criminal Code s 43AL, s 149; Community Welfare Act s 43(5)(d), s 52

Doney v R (1990) 171 CLR 207

Everuss (unreported, Supreme Court of Victoria, 17 June 1987)

R v Lavender [2005] 222 CLR 67

May v O’Sullivan (1955) 92 CLR 654

R v Nicholls (1874) 13 Cox CC 75

Nydam v R [1977] VR 430

R v Porritt [2008] ACTSC 33

R v Madhavi Rao [1999] ACTSC 132

R v Yvette Monique Saunders (unreported, Northern Territory Supreme Court, 13 October 1999)

R v Shah (unreported, Northern Territory Supreme Court, 18 May 2005)

R v Smith (1993) 117 A Crim R 298

R v Taktak (1988) 14 NSWLR 226

REPRESENTATION:

Counsel:

Applicants:J C A Tippett QC and S Cox QC

Respondent:  R Coates and H Roberts

Solicitors:

Applicants:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    C

Judgment ID Number:  Ril0811

Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Reynolds & Melville v R [2008] NTSC 30

No 20720787 & 20720786

BETWEEN:

DENISE CARMEN REYNOLDS

AND:

TONI LENNE MELVILLE
  Applicants

AND:

THE QUEEN
  Respondent

CORAM:     RILEY J

REASONS FOR RULING

(Delivered 11 August 2008)

1. In this matter the Crown has closed its case.  Mr Tippett QC and Ms Cox QC, who appear on behalf of the respective accused, have made submissions that there is no case to answer and that there should be a directed verdict of not guilty.

2. In such an application the issue is not whether the individual accused ought be convicted but, rather, whether she could be convicted: May v O’Sullivan[1].  Following the decision of the High Court in Doney v R[2], if there is evidence, even if it be tenuous or inherently weak or vague, which can be taken into account by the jury, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury.  There is no power in the trial judge to direct a jury to enter a verdict of not guilty on the ground that, in the view of the judge, a verdict of guilty would be unsafe or unsatisfactory.  Such a conclusion is the preserve of an appellate court.

3. In R v Smith[3] Coldrey J adopted the observations of Hampel J in Everuss[4] where Hampel J said:

   “The correct test is whether the accused can lawfully be convicted, that is whether the Crown’s evidence taken at its highest, can support a verdict…