Stephen v Director of Public Prosecutions (NSW)

[2018] NSWSC 1018

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Stephen v Director of Public Prosecutions (NSW) [2018] NSWSC 1018
Hearing dates:	3 May 2018
Decision date:	03 July 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) A certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is granted to the applicant to the following effect: (a) In my opinion, if the prosecution had, before the proceedings were instituted against Ms Jonda Rhani Stephen, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings against her. (b) Furthermore, no act or omission of Ms Jonda Rhani Stephen contributed, or might have contributed, to the institution or continuation of the proceedings against her. Accordingly, there is no question of any such act or omission not being reasonable in the circumstances.
Catchwords:	CRIMINAL LAW – costs in criminal cases – application to award certificate under the Costs in Criminal Cases Act 1967 (NSW) – whether institution of proceedings for murder by the hypothetical prosecutor unreasonable with hindsight – certificate granted
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Cox v R (No 2) [2017] NSWCCA 129
Category:	Costs
Parties:	Jonda Rhani Stephen (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: P Dwyer (Applicant) L Shaw (Respondent)   Solicitors: PJ Donnellan & Co (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2017/00099898
Publication restriction:	Nil

Judgment

Introduction

1. This is an application brought by Ms Jonda Stephen (the applicant) by way of the Costs in Criminal Cases Act 1967 (NSW) (the Act), seeking to have a certificate issued pursuant to that Act.

2. The application was brought after the applicant was acquitted of both murder and manslaughter at the conclusion of a trial conducted in the Supreme Court sitting at Broken Hill, at the commencement of which she had been arraigned before a jury panel and me upon an indictment containing a single count of murder.

3. On the application, the applicant was represented by the same counsel who had appeared at her trial. For convenience, I shall continue to refer to her as “defence counsel”. Counsel for the Director of Public Prosecutions (the DPP), who had also acted as Crown prosecutor in the trial, was heard on the application. Although he did not resist the granting of the certificate, he emphasised that determination of whether the statutory test had been made out was a matter for me.

4. In support of the application, defence counsel relied upon the entire transcript of the trial, and all of the exhibits tendered in the trial. She also tendered a written “no bill application” of 3 November 2016; the judgment of a learned Magistrate of 25 January 2017 refusing to commit the applicant on a count of murder, but committing her to the District Court on a count of manslaughter; a further no bill application of 3 March 2017; a third no bill application of 15 December 2017, and the Prosecution Guidelines of the Office of the DPP that were in force throughout the relevant period.

5. Counsel for the DPP neither required any person for cross-examination pertaining to the evidence in the applicant’s case, nor tendered any further evidence of his own on the application.

Governing statute

6. The salient portions of the Act are as follows:

…

2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

…

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

…

3A Evidence of further relevant facts may be adduced

(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to:

(a) the relevant facts established in the proceedings, and

(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and

…

4 Payment of costs

(1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate.

…

7. It was never suggested that there is any question about the course of the proceedings (which I shall shortly discuss in some detail) not falling within the preconditions to be found in s 2 of the Act. Nor has it ever been suggested that any act or omission of the applicant or her legal team should count against the application, in accordance with s 3(1)(b) of the Act.

8. In accordance with the position of the parties, this judgment therefore focuses upon the question posed by s 3 (1)(a) of the Act: whether, if a hypothetical prosecutor had, at the time immediately prior to the initiation of proceedings, possessed evidence of all the relevant facts, it would not have been reasonable to institute the proceedings against the applicant.

Procedural history

9. The salient events prior to the commencement of the trial are as follows.

10. On 5 October 2015, the applicant was arrested at Broken Hill following the alleged commission of the offence on the same day. She was charged with murder, and incarcerated bail refused. I understand that she was released to bail many weeks later.

11. On 3 November 2016, defence counsel made a written no bill application to the DPP, submitting that the charge of murder should be withdrawn. The primary submission of counsel was that the murder charge should not be replaced with any alternative; the ancillary submission was that, at the most, the applicant should face only a charge of manslaughter. Subsequent events show that that submission was rejected.

12. On 24 January 2017, a contested committal hearing was conducted in the Local Court at Broken Hill before Magistrate Pearce. At the conclusion of that hearing, the accused was committed for trial to the District Court on a count of manslaughter only, and discharged with regard to the count of murder.

13. According to the document described immediately below, on 22 February 2017, the matter was adjourned for one month at the request of the DPP, so that consideration could be given to the filing of an ex officio indictment averring murder.

14. On 3 March 2017, defence counsel authored a document entitled “Post-committal considerations”, an application in response to the committal. I infer that it was provided to the DPP shortly after that date. In a nutshell, it submitted that no such indictment should be filed.

15. On 6 April 2017, contrary to the written submission outlined above, an ex officio indictment containing a count of murder was filed in this Court by the DPP.

16. On 15 December 2017, a letter was sent by the solicitor for the applicant to the DPP, the third no bill application. In a nutshell, the submission was that the count of murder should be withdrawn, and it should not be replaced with a count of manslaughter.

17. Self-evidently, all of those submissions on behalf of the applicant were rejected by the DPP.

Relevant aspects of trial

18. I turn now to provide a thumbnail sketch of the course of the trial, focusing of course on those aspects that are relevant to this application. Much of what appears below is reflected in judgments of mine delivered before, during or after the trial: see R v Stephen [2017] NSWSC 1740; R v Stephen (No.2) [2018] NSWSC 167; R v Stephen (No. 3) [2018] NSWSC 168; R v Stephen (No. 4) [2018] NSWSC 169; R v Stephen (No. 5) [2018] NSWSC 170; and R v Stephen (No.6) [2018] NSWSC 243.

Aspects up to and including arraignment in presence of jury panel

19. The Court convened on Monday, 5 February 2018, a number of pre-trial matters having been identified. During discussions, the Crown prosecutor made it clear that “the Crown case is one of murder or excessive self-defence. The Crown is not relying on unlawful and dangerous act or any other form of manslaughter” (trial transcript (TT) 3.38).

20. On the same day, defence counsel made it clear that her position was that “manslaughter should only be left to the jury on the basis of excessive self-defence” (TT 4.15). In other words, her position was that, the Crown prosecutor having elected not to rely upon manslaughter substantively (by that shorthand I mean, manslaughter by way of unlawful and dangerous act, in the possible absence of proof of one of the necessary mental elements for murder, not manslaughter by way of excessive self-defence), I should not leave it to the jury. The latter legal question was reserved for further discussion and consideration.

21. That question was returned to on 6 February 2018. During those discussions, defence counsel made it clear that in due course she would be “making an application for a directed verdict in relation to the murder” (TT 40.24).

22. On Wednesday 7 February 2018, the applicant was arraigned on an indictment containing a single count averring that on 5 October 2015 in Broken Hill she murdered Mr Christopher Tiffin (the deceased). She pleaded not guilty to that count. The indictment said nothing on its face about manslaughter; nor, by way of any plea, did the applicant.

Opening address of the Crown prosecutor

23. Later on the same day, the Crown prosecutor gave his opening address to the jury. He spoke of the fact that he would “explain the charge and what the essential ingredients of the charge of murder are. I will also explain to you when a person is charged with murder, they are, as will be in this case, it is quite likely you will also have to consider an alternative verdict of manslaughter” (TT 105.9).

24. The Crown prosecutor went on to explain that “[i]n relation to the allegation of murder”, the Crown case was that the applicant and the deceased were engaged in an argument on the evening in question at her home in Broken Hill. The applicant told the deceased that their intimate relationship of some months was over. A struggle ensued over a laptop computer that the applicant had been holding. Thereafter, the deceased grabbed a domestic electric iron and struck the applicant to her face, her shoulder, and her elbow. From one of those blows, the applicant suffered “a fracture to the bone above and around her eye” (TT 105.33 and following).

25. The Crown prosecutor further opened that the applicant grabbed a sheathed knife, removed it from the sheath, and stabbed the deceased once in the heart, which wound shortly thereafter caused him to collapse and die. The applicant telephoned 000 a few minutes after that (TT 105.42 and following).

26. The Crown prosecutor outlined that the applicant was arrested, and interviewed at 10.40 pm at Broken Hill Police Station on that day. She engaged in a second interview on 12 October 2015.

27. The Crown prosecutor foreshadowed evidence from two other women in the Crown case to the effect that the deceased had a tendency to perpetrate violence on his domestic partners prior to his relationship with the applicant (TT 106.8 and following). He also foreshadowed a large number of witnesses having observed “violence or threats or abuse or controlling behaviour” committed by the deceased against the applicant (TT 107).

28. He foreshadowed: expert evidence in the Crown case to the effect that the injuries observable to the applicant were consistent with what she told police had occurred; expert evidence about the autopsy performed on the body of the deceased; and expert evidence from a psychiatrist about the state of mind of the applicant at the time when she stabbed the deceased, bearing in mind the effect of the violence to which she had been subject in the months preceding the day in question, and in the moments before the stabbing (TT 107).

29. The Crown prosecutor went on to explain the elements of murder in orthodox terms, including the mental element of an intention to cause grievous bodily harm.

30. He also spoke of the “defence” of self-defence, and its two “legs”, and outlined the pathway “through” those two legs whereby a jury could return a verdict of not guilty of murder but guilty of manslaughter, based upon excessive self-defence (TT 114 – 115).

31. He spoke also of the role of the Crown prosecutor as a Minister of Justice, not merely an advocate for a particular cause (TT 115.40 and following).

32. The Crown prosecutor concluded his opening address by emphasising the importance of the onus of proof, and requesting that the members of the jury come to no conclusions before they had heard all of the evidence (TT 117.40).

Opening address of defence counsel

33. In her opening, defence counsel explained that it was not disputed that the accused caused the fatal wound to the deceased. But she opened that the applicant was guilty of neither murder nor manslaughter, because she had been acting in self-defence. She also opened that, at the time of the stabbing, the applicant intended neither to cause death nor grievous bodily harm (TT 118.13 and following).

34. Counsel foreshadowed evidence of the violence inflicted by the deceased upon the applicant during their relationship; the violence he had inflicted upon other women; and the violence evidenced by the criminal history of the deceased. She spoke of the applicant as a woman who was 47 years of age when she met the deceased, and who was at all times completely free of criminal antecedents (TT 119).

35. Counsel spoke of the two recorded interviews of the applicant of 5 October and 12 October 2015, and the fact that a video recording had been made on 8 October 2015 of the injuries suffered by the applicant. She also spoke of evidence that corroborated the history given by the applicant that she had been subject to bizarre and life-threatening violence at the hands of the applicant some days before the stabbing (TT 121).

36. She emphasised that the applicant had raised self-defence in her first interview on the very evening in question. She placed before the jury the proposition that on the evening of 5 October 2015, the applicant “had no desire to do Chris Tiffin any harm but when she was faced with this assault, and he bashed her with that iron, she thought she was going to die and she was trying to stay alive” (TT 123.36).

37. Thereafter the trial unfolded in accordance with the openings, as follows.

Crown case

38. In the Crown case, tendency evidence was tendered with regard to the violence of the deceased towards a number of other women.

39. Evidence was tendered about the extreme violence inflicted by the deceased upon the applicant during their intimate relationship. That came from a number of witnesses, and in a number of different forms. It included evidence of an excruciatingly painful attack by the deceased upon the shins of the applicant by use of a baseball bat. At least one witness spoke of the initial belief, when told of an incident of violence having occurred on 5 October 2015 between the applicant and the deceased, that it was the applicant who had been violently killed.

40. There was evidence placed before the jury of the good character and caring nature of the applicant.

41. There was also evidence from more than one witness of their observations of the severity of the injuries to her face, and in particular to the vicinity of the eye of the applicant, even some days after the evening in question.

42. Detailed evidence from a scene of crime officer was provided, which included the finding of a broken, bloodstained domestic iron (TT 276.3).

43. On the same day, I provided the jury with a document setting out the elements of murder in orthodox form, and expressing my understanding that the mental element for murder was disputed, as was the proposition that the applicant had caused the death of the deceased unlawfully, on the basis that she had acted in “complete” self-defence.

44. On 12 February 2018, counsel and I continued our discussion as to whether, despite the fact that the Crown was not relying upon substantive manslaughter as a path to conviction of manslaughter, nevertheless I should leave it as a path away from conviction for murder. Although the question was not finally resolved, by that stage the position of the Crown prosecutor was that I should leave substantive manslaughter to the jury (TT 367 and following).

45. On 13 February 2018, a distinguished forensic psychiatrist who had assessed the applicant many months after the fatal event was called in the Crown case (TT 371 and following). She spoke of the psychological and psychiatric injury that the applicant had suffered as a result of her relationship with the deceased and the events of 5 October 2015. She provided details of the history provided to her by the applicant. That included a version of events of 5 October, including the applicant saying with regard to the knife “I aimed for the arm and I stabbed him in the chest” (TT 383.45). She also provided an analysis of the personality of the deceased, and the dynamics of the relationship between him and the applicant.

46. She agreed with the characterisation provided by another psychiatrist of the conduct of the deceased towards the applicant as “torture” (TT 388.35). She also expressed the opinion that studies suggest that “it was in fact likely that she might have been killed”, referring to the position of the applicant on the evening in question, in the context of the relationship in the preceding months (TT 392.11).

47. The Crown prosecutor took the psychiatrist to the following portion of a written report that she had prepared:

“Given her likely mental state at the time, in addition to the head injury she sustained, it is possible that Ms Stephen was unable to form a coherent intention or belief including a belief at the time that the actions she took were necessary to defend herself.” (TT 406.10)

48. The psychiatrist explained that she meant by that that the applicant was in “the throes of an extremely traumatic and dangerous altercation”, and that in the opinion of the witness, “I don't think she was able to sit down with any composure or reflect with any composure during this incident as to whether what she was doing was really necessary or not” (TT 407).

49. The forensic pathologist who conducted the autopsy upon the body of the deceased gave evidence of her findings, none of which were inconsistent with the version of events given by the applicant. The findings included a bruise to the crown of the head of the deceased, which the witness described as “a nondescript injury” (TT 434.26). In cross-examination, defence counsel established that only mild to moderate force would have been needed to inflict the fatal stab wound, and that the necessary force would be reduced further if the deceased had been moving towards the applicant at the time (TT 435).

48. A police officer detailed the injuries from which the applicant was seen to be suffering on 5 October 2015. CCTV from the premises where the stabbing took place was tendered through the same witness. Again, it was not inconsistent with the version of events of the applicant.

49. The extensive criminal record of the deceased was the subject of detailed evidence.

50. The two recorded interviews of the applicant were placed before the jury. In a nutshell, the consistent position was that: she had been subject to severe ongoing violence during her relationship with the deceased; she was subject to potentially deadly violence on the evening in question, namely being struck by an iron numerous times to the head; and during the attack by the deceased, the applicant grabbed the knife and stabbed the deceased, in order to “stop him from hitting me with the, with the iron” (Page 33 ERISP 12.10.15).

51. The applicant maintained that position throughout the second interview, stating “I didn’t mean to kill him. I didn’t mean. I just wanted him to stop hitting me with, with the iron” (Page 34 ERISP 12.10.15), and later repeated “I was trying to get him to stop…stop hitting me with the iron…” (Page 42 ERISP 12.10.15).

Legal developments after close of Crown case

54. The Crown case closed on 15 February 2018. Thereafter, defence counsel made an application for a verdict by direction. The first basis for the application was the submission that there was simply no evidence of an intention to kill or cause grievous bodily harm.

55. The response of the Crown prosecutor to the application is to be found at TT 542.36 to 543.36. As I understood it, he agreed that there should be a verdict by direction of not guilty on the count of murder; or, at the least, he did not actively disagree with that proposition.

56. I rejected the application – based as it was on the proposition that there was a complete absence of any evidence of an intention to inflict grievous bodily harm – on 15 February 2018, and gave concise reasons for doing so (TT 543.41).

57. The next application of defence counsel for a verdict by direction on the count of murder was founded on the separate proposition that there was no evidence in the Crown case that could disprove the “first leg” of self-defence; that is, the proposition that the applicant believed that her conduct was necessary to defend herself, in accordance with s 418(2)(a) of the Crimes Act 1900 (NSW):

418 Self-defence—when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c)  to protect property from unlawful taking, destruction, damage or interference, or

(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them. [emphasis added]

58. An extensive discussion took place between Bench and Bar table. During submissions from the Crown prosecutor, the following exchanges took place:

“CROWN PROSECUTOR: Your Honour, the Crown's had a consistent position throughout this trial, and I don't think it needs to be restated.

HIS HONOUR: Well, could you restate it clearly. Do you submit that there is no evidence to disprove the first limb of self defence?

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: Has something unexpected happened in the trial?

CROWN PROSECUTOR: No, your Honour.

HIS HONOUR: Well, then, why was an indictment presented for the count of murder then?

CROWN PROSECUTOR: A view was taken by the Director's chambers that to run an excessive self defence case it needed to have murder on the indictment under s 421. A reading of that was that it was required.

HIS HONOUR: Very well, but to be clear, just to explore that more deeply, was a view taken that it was impossible to present an indictment for manslaughter alone, implicitly conceding the first limb but putting in dispute the second limb?

CROWN PROSECUTOR: That was the view taken, your Honour, I was not part of that but that is what I was asked to present.” (TT 564.1- 565.11)

…..

HIS HONOUR: Yes, I understand. But just to explore a little more deeply, I appreciate the difficulties presented in this case, Mr Crown. I'm not denying that for a moment but I just seek to understand, as Dr Dwyer [defence counsel] has said, it is up to me to assess the Crown case at its highest.

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: Just let me finish my thought, please, so in a sense, in the usual case that calls for an analysis of evidence at its highest. But if the Crown case will be or is right now this woman is not guilty of murder because the Crown does not succeed on limb 1, leaving aside the mental elements of murder, well possibly that puts a different complexion it.

Now, if just let me collect my thoughts for a moment. Well arguably, Mr Crown, if your position now is that if murder went to the jury, you would say to the jury "I accept we cannot disprove the first leg of self defence and, accordingly, even if you found the mental element for murder proven, your verdict at the most should be manslaughter". If that's what's going to happen and if that's the Crown case in truth, well then arguably I have to take the Crown case at its highest but I need to understand that and be assured of it arguably.

CROWN PROSECUTOR: I think your Honour has accurately summarised it.

HIS HONOUR: To be clear, then, your position is, taking the Crown case at its highest, the Crown could never succeed on the first limb of self defence?

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: And if I left the matter to the jury you would explicitly concede that to the jury and make it clear to them you disavow, for that reason, a verdict of guilty of murder?

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: That is very helpful to understand, Mr Crown. Perhaps it was my fault for not turning to you first, as it were. All right. That is perfectly clear, Mr Crown.

CROWN PROSECUTOR: Thank you, your Honour.

HIS HONOUR: Just exploring, then, your position is if the Crown case is that she is not guilty of murder, taking the Crown case at its highest, whether there be three pieces of circumstantial evidence or 33 or 333, the Crown case at its highest will never be that this woman is guilty of murder so I should order a verdict by direction, if I am analysing the Crown case at its highest.

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: That is very helpful to understand. I confess I did not understand that before lunch. As I say, perhaps I should have expanded my understanding by turning to you first.

CROWN PROSECUTOR: We have arrived at that position now.” (TT 566.5 – 567.9)

59. As my judgment in R v Stephen (No. 3) makes clear, I thereafter accepted the proposition that, if the Crown was conceding that it could never disprove beyond reasonable doubt the first leg of self-defence with regard to the count of murder, then there should be a verdict by direction on that count, and the trial should proceed with regard to manslaughter only, with a focus on whether the Crown could disprove, beyond reasonable doubt, the second leg of self-defence; namely that “the conduct is a reasonable response in the circumstances as he or she perceives them”.

60. Later on 15 February 2018, counsel and I returned to the discussion of whether substantive manslaughter should be left. The Crown prosecutor confirmed that he would be submitting to the jury that an intention to inflict grievous bodily harm could be established (leading however to a verdict of nothing more than manslaughter, due to the failure to disprove the first leg of self-defence), and that substantive manslaughter should be left by me, even though it was not being contended for by the Crown (TT 569-570).

61. Defence counsel made the point that murder was, by that stage of the trial, no longer “in play”, and accordingly substantive manslaughter had no role to play as a “path away” from conviction for murder. She maintained her resistance to substantive manslaughter being left (TT 570).

62. In the event, I accepted the submission of defence counsel: R v Stephen (No. 4).

63. The next legal application discussed between counsel and me was the application for a Prasad direction (or invitation) made by defence counsel with regard to the second leg of self-defence; that is, whether the Crown could prove, beyond reasonable doubt, the proposition that, when she stabbed the deceased, the conduct of the applicant was not a reasonable response in the circumstances as she perceived them, in accordance with the concluding words of s 418 of the Crimes Act. Proceedings adjourned on that day, with the intention that we would return to the Crown’s response to it the following morning (TT 580).

64. The following day, 16 February 2018, the Crown prosecutor confirmed that he would make clear in the presence of the jury that murder was not being contended for by the Crown.

65. As for the Prasad application with regard to the second limb of self-defence, the Crown prosecutor concluded his oral submissions by submitting that it was “a very complex issue”, and emphasised that a Prasad invitation should not be seen as a diminution of the autonomy of the jury (TT 587.28 and following).

66. On the same day, I rejected the application for a Prasad direction on manslaughter that was founded on the weakness of the Crown case with regard to disproving the second leg of self-defence (TT 596.31). I subsequently expanded on my reasons for doing so in R v Stephen (No. 5).

67. The jury re-joined us, and, in accordance with what had been discussed about the count of murder, the Crown prosecutor said the following in the presence of the jury:

“CROWN PROSECUTOR: Thank you, your Honour. The Crown says that it cannot disprove that the accused did not believe at the time of the stabbing that it was necessary to do what she did in order to defend herself and, on that basis, your Honour, we are asking that your Honour direct a verdict of not guilty on the charge of murder, but leave for the jury's consideration manslaughter on the basis of the second leg of self defence, being, "Has the Crown established that the actions of the accused was not a reasonable response in the circumstances as she perceived them?”” (TT 598.19-598.28)

68. Again as foreshadowed, I thereafter directed a verdict of not guilty on the count of murder. The jury complied with my direction, and the trial proceeded with regard to a count of manslaughter alone.

Defence case

69. Defence counsel opened her case later on the same day. She asked the jury to focus on the question of the reasonableness of the response of the applicant in the circumstances as she perceived them, in accordance with the second leg of self-defence.

70. A character witness was called who spoke of the exemplary character of the applicant. Her evidence was not disputed in cross-examination.

71. On 19 February 2018, a doctor highly experienced in emergency medicine was called in the defence case. In a nutshell, his opinion was that the attack by the deceased upon the applicant could have inflicted fatal injuries upon her if it had continued (TT 641.43). The specialist criticised the absence of a thorough medical examination of the applicant after her arrest, in the circumstances of the particular case. He explained that the injury to the area of the eye socket of the applicant should, in truth, be understood as a skull fracture. He was of the opinion that such an injury would have required “a lot of force applied” (TT 644.49).

72. With regard to the question of the formation of an intention to cause grievous bodily harm, the following exchange took place in chief:

“Q. Doctor Fulde, does the fact that Ms Stephen suffered a fractured eye socket and concussion mean that it would have been unlikely she could form any intention at all when she stabbed the deceased?

A. The answer is yes, because I also think it's has to be seen together with somebody who is in optimum fear of their life, which is a very primal part of their brain function, the core of basically a human or any animal is the ability to react to self‑preservation and survival.” (TT 649.12 to 649.18)

73. With regard to the fact that the applicant had told police that she had washed the knife in question after the stabbing, and thereafter pointed out its location to them, the specialist said the following:

“Q. Could the concussion and trauma that she suffered explain some of the reactions like that immediately after the event?

A. I think it is very sure that the reaction of Ms Stephen was, in washing the knife, was a sort of, a regressive, because she was concussed, because she was absolutely upset, disturbed, because it just doesn't really make sense, and what happens once again, I'm not a psychologist but it's commonly seen that when people are really stretched out they regress, to doing things like obsessive compulsive, what they've always done, wash it, or what have you, the knife or put things away, which at the time really does not fit in with any common sense thing to do.” (TT 650.40-49)

74. Neither the credibility, nor the qualifications, nor the opinion, of the specialist were impugned in cross-examination by the Crown prosecutor.

75. Thereafter, a distinguished forensic psychiatrist was called in the defence case. In a nutshell, her evidence was entirely consistent with that of the psychiatrist called in the Crown case. It included characterisation of the conduct of the deceased towards the applicant as torture; the relevance of the fact that the applicant had given a history of being so terrified by the violence of the applicant as to have urinated involuntarily on at least one occasion during their relationship; the opinion that victims of domestic violence can reach a point where it is “almost impossible” to leave; and the opinion that the fact that the applicant gave a history of having been strangled prior to the fatal incident constituted “a particularly menacing sign”.

76. The psychiatrist proceeded to provide an analysis of the adverse aspects character of the deceased that does not require detail for the purposes of this judgment.

77. The psychiatrist emphasised that when a victim of domestic violence foreshadows departure from the relationship, as the applicant had done on the evening in question, “the chances of her being killed are very high at that time” (TT 683.39).

78. The witness agreed that the applicant, whilst being beaten around the head with an iron would have been “in a state of abject terror”, and posited that in all likelihood she believed she was on the edge of death (TT 684.38). She spoke of actions undertaken in order to survive as being “[n]ot really voluntary in the sense of considered, they're more reflexive” (TT 684.50). The psychiatrist expressed the view that concussion caused by the blows from the iron, combined with abject terror, would mean that “higher order functions can't possibly be operating” (TT 685.49).

79. The psychiatrist went on to provide a conspectus of research with regard to typical characteristics of intimate relationships affected by violence.

80. There was no cross-examination by the Crown prosecutor of the psychiatrist called in the defence case.

81. Thereafter, defence counsel foreshadowed (in the absence of the jury) a further Prasad application. This application was explained to be founded upon the weakness of the evidence in the Crown case of an intention to cause grievous bodily harm, and the proposition that the jury had by that stage heard expert evidence from three witnesses that the applicant could not have formed the necessary intention at the time of the stabbing (TT 698.36). At my request, in order to permit reflection, that application was deferred.

82. Thereafter, three character witnesses were called in the defence case, none of whom were impugned in cross-examination. Indeed, with regard to one of them, the Crown prosecutor elicited evidence that the applicant was not “the type of person who would intend to harm another person” (TT 713.24).

Conclusion of the trial

83. The following day, counsel and I returned to the question of the further Prasad application on manslaughter by way of excessive self-defence, based upon the asserted weakness of the evidence of an intention to cause grievous bodily harm.

84. With regard to the medical experts who had asserted that the applicant could not have formed an intention to cause grievous bodily harm at the relevant time, the Crown prosecutor made it clear that a concession was made that “the Crown cannot establish an argument contrary to that unchallenged medical evidence, that it would be open to the jury to find that element established” (TT 727.13).

85. As before, that position was, at my invitation, confirmed in the presence of the jury by the Crown prosecutor. Once that occurred, I directed a verdict of not guilty on the remaining count of manslaughter (bearing in mind that the only “pathway” to a verdict of guilty of manslaughter, via excessive self-defence, required satisfaction of a mental element for murder beyond reasonable doubt), a direction with which the jury again complied. That procedure is discussed in my judgment of our R v Stephen (No. 6). Thereafter, I entered verdicts of acquittal on all counts arising from the indictment upon which the applicant had been arraigned on 7 February 2018, and discharged her (TT 734–735). That was, of course, the end of the trial, and the conclusion of the sittings at Broken Hill.

Discussion

86. Although I received extensive helpful written and oral submissions from each counsel, after a period of reflection I do not believe there is any necessity to recount them at length.

Concise summary of submissions for the applicant

87. The submissions made by defence counsel relied upon the key events and evidence in the trial. They included: the refusal of the Magistrate at the committal hearing to commit the accused for trial on a count of murder; the two written no bill applications and the application responding to the possible ex officio indictment, which highlighted the weaknesses in the Crown case, and demonstrated that nothing the applicant did contributed to the continuation of the proceedings; the proposition that the DPP proceeding on an ex officio indictment for murder was unjustified and contrary to the obligations found in the Prosecution Guidelines; the deceased’s criminal history across Australia; the deceased’s past violent relationships with women; the good character of the accused; the concession made by the Crown, on 15 February 2018, that the charge of murder could not be sustained; the unchallenged and consistent expert evidence; the unsurprising nature (in the sense of it being expected, and foreshadowed in written statements) of the evidence at trial; and the second concession of the Crown, on 20 February 2018, that it could not prove an intention to cause grievous bodily harm, and was therefore unable to prove the necessary elements for manslaughter via excessive self-defence.

Determination

88. Again on reflection, I do not believe, in the circumstances that I have set out in some detail above, that I need to be prolix in my determination. Nor do I believe that there is a need for me to refer to the extensive case law about the statute.

89. The question is merely whether I am satisfied that, if the prosecution had, as at 5 October 2015, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute proceedings. In accordance with what was said in the Court of Criminal Appeal in Cox v R (No 2) [2017] NSWCCA 129 at [3], referring to what was said by Basten JA in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [10], I have resisted the temptation to impose some sort of gloss on the section.

88. Explaining my approach to the test a little, whilst it is undeniable that manslaughter is always an implicit alternative form of homicide that is “invisibly present” on any indictment explicitly averring murder, nevertheless I believe that the question I must ask myself is whether it would not have been reasonable to institute proceedings for murder. I say that simply because that is the count to which the applicant was called upon to enter a plea at the commencement of the trial, an event that she had been resisting through her legal team for many months.

89. In my opinion, that question must be answered in the affirmative.

90. I say that not because of any deficiency in the evidence regarding proof of a necessary mental element for murder; at the least, an intention to inflict grievous bodily harm. In my opinion, even despite the uncontradicted evidence of the expert witnesses in the trial about that question, the fact that the applicant had admittedly stabbed the deceased to the left side of his chest to sufficient depth fatally to pierce his heart, means that it would not have been unreasonable to institute proceedings for murder on that basis. I also come to that view because the very fact that the applicant consistently and firmly claimed to have acted in self-defence provided her with a reason or motivation to intend serious, disabling harm to the deceased.

91. To complete my analysis of this factor, the second concession by the Crown prosecutor that led to the conclusion of the trial on the remaining count of manslaughter is significant, but not, in my opinion, determinative of this question.

92. In contrast to that analysis of mine, however, I do believe that, if all of the evidence available in the trial had been available to a putative prosecutor on the evening of 5 October 2015, it would have been unreasonable to prosecute the applicant for murder, because the Crown was incapable of disproving, beyond reasonable doubt, the first leg of self-defence.

93. In other words, in all of the circumstances that I have recounted above – the unblemished character of the applicant, a woman of mature years; her gentle nature; the tendency to violence of the deceased, evidenced in a multitude of ways; the nature of their relationship, observed by many witnesses, and corroborated by other sources as well; the corroborative findings at the scene; the consistent claim of having acted in self-defence in the two recorded interviews of the applicant; and the expert evidence with regard to domestic violence, its perpetrators and victims, both in general and in this particular case; I consider that the Crown would never have been able to disprove beyond reasonable doubt that, when she stabbed the deceased, the applicant believed that it was necessary to do what she did in self-defence.

94. Again, the first concession of the Crown prosecutor with regard to disproving this element of the defence is significant, and in this context confirmatory of my own assessment.

95. As I have said, on reflection I do not believe it is incumbent upon me to make an ancillary assessment of whether it would have been reasonable, on the date in question, to institute proceedings for manslaughter. I say that for the simple reason that, whatever view may have been taken about the asserted necessity to aver murder when, in truth, the prosecution is alleging only manslaughter – the correctness of which proposition is, in my respectful opinion, open to doubt – the simple fact is that the trial that took place before the jury and me commenced with the presentation of an indictment containing a single count of murder. Furthermore, as my summary of the forensic history of the matter shows, if the DPP had been content to proceed on the basis of the determination of Magistrate Pearce, at most there would have been a short trial for manslaughter in the District Court. And the applicant would never have been exposed to a lengthy trial in this Court, and to the special opprobrium – and fear of the possibility of an extremely lengthy sentence – that any murder trial entails for an accused person.

96. Finally, my summary of events above demonstrates that nothing was done by the applicant or her legal team that contributed, or might have contributed, to the institution or continuation of the proceedings against her. To the contrary, at every stage prior to arraignment she was submitting that she should not be prosecuted for murder, and yet that is what occurred.

Conclusion

99. The statutory test having been, in my opinion, amply made out, I propose to issue a certificate in the form mandated by s 3 of the Act.

Orders

100. For the foregoing reasons, I make the following order:

(1) A certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is granted to the applicant to the following effect:

(a) In my opinion, if the prosecution had, before the proceedings were instituted against Ms Jonda Rhani Stephen, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings against her.

(b) Furthermore, no act or omission of Ms Jonda Rhani Stephen contributed, or might have contributed, to the institution or continuation of the proceedings against her. Accordingly, there is no question of any such act or omission not being reasonable in the circumstances.

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Decision last updated: 03 July 2018