Regina v A S Moffatt [No 1] [1999] NSWSC 168

New South Wales Supreme Court CITATION : Regina v A S Moffatt [No 1] [1999] NSWSC 168 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 070092/96 HEARING DATE(S) : 03/03/99; 04/03/99; 05/03/99; 08/03/99 JUDGMENT DATE : 8 March 1999

PARTIES : Regina Anthony Stuart Moffatt JUDGMENT OF : Kirby J

COUNSEL : P K Lynch (Crown) A M Martin (Accused) SOLICITORS : Crown Solicitor (Crown) Joan Baptie, Solicitors (Accused) CATCHWORDS : Criminal Law - Practice & Procedure - Application for Verdict by Direction - Causation CASES CITED : Royall v R Puckeridge v R DECISION : See para 12

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

KIRBY J

Monday 8 March 1999

070092/96 - REGINA v Anthony Stuart MOFFATT

JUDGMENT re application for a verdict by direction - see transcript page 197.

1 HIS HONOUR: This matter has proceeded before me as a Judge sitting alone. The Crown has presented its case, subject to the resolution of one issue. It sought to tender an interview with the accused which is recorded on video, and in respect of which there is a transcript of the ERISP tape, MFI 4. The argument and ruling on the admissibility of that interview has been postponed. The accused, through Counsel, has foreshadowed a challenge to its tender on the basis that it was not voluntary. Instead of dealing with that issue on the voir dire, it was thought sensible that it be postponed until after certain medical evidence was given, in the accused's case. 2 I mention this background because it has some relevance to an application by the accused at the end of the Crown case for a verdict by direction. In dealing with that application I must, for the moment, assume that the interview is included in the Crown case and is available as material which may be considered in determining the present application. 3 I indicated at the close of argument that I would dismiss the application and later provide brief reasons. 4 The submission is directed to the first count, that is the count of murder. The issue is one of causation. The submission was that there was no evidence upon which the Crown could establish, beyond reasonable doubt, that the actions of the accused caused the death of the deceased, Mr Richard James Fyfe. 5 For the purposes of determining this issue, I must take the Crown case at its highest. The question of causation has been described as one to be determined by the application of commonsense to the facts, rather than approaching the issue as a philosophical or scientific question. The essential question, in the context of this case, is whether there is evidence capable of satisfying a jury, beyond reasonable doubt, that the actions of the accused accelerated the death of Mr Fyfe. 6 A number of matters, at least on a prima facie level, appear to be clear. · First, Mr Fyfe, who was 43 years of age at the time of his death, suffered from severe coronary arteriosclerosis, which included 75 percent stenosis of the left anterior descending coronary artery. This was a condition which may give rise to a spontaneous heart attack which could be fatal. It was also a condition which was capable of being aggravated, were Mr Fyfe subjected to trauma. · Secondly, Mr Fyfe, the deceased, was, before his death, in an advanced state of intoxication. His blood alcohol level at the time of death was estimated to be 0.48 g/100 ml. He was approaching a level where death from the effects of acute ethanol intoxication may occur. 7 The case against the accused substantially depends upon admissions said to have been made by him, either to neighbours or to the police. I need not refer to all the evidence. In the ERISP interview, the accused described an incident which had the following features. · First, immediately before the incident, he described the deceased, in terms of his health, as "fine" (Q 179). He had not complained of "being crook or anything". · Secondly, he described a conversation in which the deceased called him a "mutt", and this in the context of having previously called him a "dog", and having been warned not to repeat the insult. · Thirdly, the accused, according to the interview, then began striking the deceased on the chest, a number of blows with the flat part of a claw hammer. He described these blows as being "not soft" (Q 161). · Fourthly, he described what happened thereafter in these words, and I quote from MFI 4: (page 12) "Q91 After you hit, after you hit him …? A … I threw the hammer away and then I choked him to death. Q92 O.K. How long did you hold him around the throat for? A Wouldn't have been any more than a minute and a half, two minutes. Then I … you know, where my hands were around him, my fingers were down there like that, and my hands were around him, I just went, I just went crack and that was it, he was dead. Q93 How do you know …? A Nothing much I could do after that. Q94 How did you know he was dead? A His eyes rolled back in his head and his tongue turned blue. And he wasn't breathing. Q95 Was that … A Couldn't feel no pulse in his neck." 8 Elsewhere, in the course of the interview, the following answers were provided: (page 13) "Q100 All right. A His tongue was goin' blue while I was strangling him. Q101 All right. A. The only thing was he couldn't push me away. Q102 He couldn't push you away? He … A No, no, when I'm coming in on top of somebody, I'm not easy, I'm not an easy thing to push away. Q103 So he was trying to push you off him? A He was trying to, but it didn't work." 9 Dr Christopher Lawrence performed the autopsy. He provided a report. The report, exhibit A, included the following description of the cause of death: "The combined effects of compression of the neck, blunt force, chest injury and acute ethanol intoxication." 10 Dr Lawrence also identified a "significant condition contributing to the death, but not relating to the disease or conditions causing it", namely, "arteriosclerotic cardiovascular disease". 11 Dr Lawrence gave evidence. He acknowledged that his findings on post mortem were consistent with a number of possible causes of death, including death from a spontaneous heart attack. Counsel for the accused submitted that the Crown had not, in these circumstances, excluded two possible causes of death, namely, death through a spontaneous heart attack,, and death through the action of a lethal dose of ethanol. However, on the basis of Dr Lawrence's evidence read as a whole and, in particular, his evidence in re-examination, I believe there is evidence that the actions of the accused were the substantial or significant, or the operating cause, of the death of the deceased (Royall v R [1990] 172 CLR 378). 12 There is evidence upon which a jury could form the view that the Crown has excluded causes which are unrelated to the accused (cf Puckeridge v R (CCA, unreported, 2 November 1998)). 13 As I said on Friday, therefore, I dismiss the application. The application can, of course, be renewed once the admissibility of the ERISP interview has been determined. **********