New South Wales Court of Criminal Appeal CITATION : R. v. RIK [2004] NSWCCA 282 revised - 06/09/2004 HEARING DATE(S) : 11 August 2004 JUDGMENT DATE : 19 August 2004 JUDGMENT OF : Hodgson JA at 1; Hulme J at 25; Smart AJ at 26 DECISION : Appeal dismissed. CATCHWORDS : CRIMINAL LAW - Appeal - Manslaughter - Whether evidence sufficient - Whether verdict unreasonable - Whether conduct of appellant dangerous - Whether response of deceased reasonable or proportionate PARTIES : Regina - respondent/Crown RIK - appellant FILE NUMBER(S) : CCA 60185/04 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 LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70042/03 FILE NUMBER(S) : LOWER COURT Kirby J JUDICIAL OFFICER : 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 Redfern. Once at Redfern, he sat alone on the end seat of platform 7. A train arrived on platform 7 at 12.45 pm. [RIK] was a passenger on that train. He alighted near Mr Harris. He was accompanied by his girlfriend, Ms Yvonne Sekope, and her friend, another young woman. Shortly after getting off the train [RIK] addressed Mr Harris, who remained seated. He said words to the effect: "What the fuck are you staring at?" As he said these words he moved towards Mr Harris. However, he was restrained by his girlfriend and the other young woman. [RIK] then broke free of that restraint. Again he moved in the direction of Mr Harris. He repeated words to the effect: "What the fuck are you staring at?" Again he was physically restrained by the two women. Mr Harris and [RIK] were perfect strangers. The attack was entirely unprovoked. Mr Harris had done nothing to excite the attention of [RIK]. He was sitting quietly on a suburban railway station, waiting for his train. He was wearing sunglasses. Mr Harris did not respond to [RIK's] words. Rather, he got up and walked behind the railway seat and then to the edge of the platform. He looked towards the city, presumably checking that there were no trains coming from that direction. He then jumped down onto the track. Mr Harris made his way directly across the tracks towards platform 5. As he did so, he looked back at [RIK]. A train was in fact approaching platform 5 from the opposite direction, that is, travelling towards the city. The driver saw Mr Harris. He sounded a long blast, termed a "country horn". At the same time the two women with [RIK] shouted out "train", attempting to warn Mr Harris. Mr Harris responded by turning his body in a full circle. He then saw the train. In the agony of that moment he was called upon to make a split second decision. He ran directly across the path of the train, attempting to reach the safety of platform 5. He managed to place his hands on the platform, but was unable to pull himself up before the train was upon him. He was struck by the train and died almost at once. The area where the incident took place was isolated. The stairs which provided an exit from the platform were at the other end. Like all suburban railway platforms, it was relatively narrow and elevated, an island surrounded by railway tracks. [RIK] was, at this time, almost eighteen years old. He presented as a muscular young man. Mr Harris was forty-four years old. … Nonetheless, it should be said that the incident was obviously unplanned. It was a spontaneous outburst on the part of [RIK]. He had no weapon. He did not actually touch Mr Harris. The closest he came to Mr Harris was about two metres. The whole episode was captured on the video surveillance maintained by the railway station. The video frames record the time. From beginning to end, that is from the time [RIK] got off the train, until the time the train struck Mr Harris, twenty-eight seconds elapsed. [RIK] says that he personally did not foresee that Mr Harris would react in the way that he did. At the moment of the confrontation, he did not intend that Mr Harris should suffer grievous bodily harm, much less that he should be killed. He intended, by his aggression, to intimidate or frighten Mr Harris. I accept that these statements accurately represent [RIK's] state of mind. At the time of this attack [RIK] was seriously affected by alcohol. He was also tired. He had been to a number of parties in the fifteen or so hours before the incident. He had consumed a significant quantity of alcohol, including spirits, beer and wine. The fact that [RIK] was drunk may be an explanation for his conduct. It plainly is not an excuse. The incident received a good deal of publicity. Still photographs from the video surveillance appeared in a number of newspapers. There was an appeal by the police that those depicted should come forward. The female companions of [RIK] determined that they would do so. They spoke to [RIK]. He agreed to accompany them to the police. [RIK] was later interviewed by the police. The incident had occurred four days before his eighteenth birthday. He was still, at law, a child. The interview was therefore conducted in the presence of his father. [RIK] readily admitted his involvement. 7 The video surveillance referred to by Kirby J was shown to the jury. It did not show the incident clearly, but did demonstrate how quickly it occurred. 8 Redfern Railway Station was described at the trial as being the second busiest railway station after Central in the City Rail network. The deceased was in the habit of changing trains at Redfern. 9 At the trial, evidence was given in the Crown case by police officers, one of whom agreed that the appellant had no criminal record. Evidence was also given by eye witnesses to the accident (including the two young women with the appellant), who gave varying descriptions of the events; and also by persons acquainted with the deceased, concerning his character. Their evidence was to the effect that he was a calm person who avoided confrontations. The exhibits included the video tape, and a recording and transcript of a record of interview with the appellant. 10 The appellant did not give evidence, but character evidence was given on his behalf by two witnesses, including evidence to the effect that they had not known him to be aggressive. SUBMISSIONS 11 Mr. Hulme SC for the appellant submitted that the trial judge should have acceded to an application made by the appellant at the close of the Crown case that there be a directed verdict of not guilty on the manslaughter count. That application was made on two bases: first, that the evidence could not support a finding that the appellant acted dangerously, because a reasonable person in the position of the appellant would not have realised that his acts were exposing another to a significant risk of serious injury; and second, on the issue of causation, that the evidence could not support a finding that the response of the deceased was reasonable or proportionate in all the circumstances. Furthermore, Mr. Hulme submitted, the evidence at the end of the case, taken at its highest, was incapable of satisfying a reasonable jury to the requisite standard of these two matters. 12 On the issue of dangerousness, Mr. Hulme submitted that the only appreciable risk of serious injury was if the deceased was somehow to come into the path of an oncoming train. No reasonable person in the appellant's position would realise that his behaviour would expose the deceased to that risk. The position might have been different if the appellant had chased after the deceased and put him in a situation where he had no option for escape other than on to the railway tracks, but that was far removed from the facts of this case. 13 Mr. Hulme submitted that the conduct of the appellant could not be considered as having been life-threatening; and a reasonable person would not have perceived that the deceased would have taken the option of fleeing from this conduct into a situation that was life-threatening. 14 On the causation issue, Mr. Hulme submitted that the trial judge correctly directed the jury that it was for the Crown to prove beyond reasonable doubt that the response of the deceased was reasonable or proportionate having regard to the nature of the conduct of the accused, and the fear it was likely to have provoked. Mr. Hulme submitted that, while the deceased could well be expected to have been fearful of the possibility of the appellant continuing to approach him and perhaps hitting him, this presented no occasion for taking the dangerous step of getting down onto the railway tracks; and in circumstances where the appellant's actions were at most aggressive and threatening, it was not open to the jury to be satisfied beyond reasonable doubt that the deceased's response was reasonable or proportionate. 15 Mr. Hulme accepted that the deceased had little time to pause and reflect upon his options. However, he submitted, reasonable or proportionate responses might have ranged from ignoring the appellant or orally engaging him in an attempt to placate him, at one end of the spectrum, through to getting up and running away at the other. As to the latter, there was the option of moving in a southerly direction towards the end of the platform, where there was a fence he could put between himself and, if pursued, his assailant. There was also the option of moving in a northerly direction towards the building in the middle of the platform. This was not a case where the deceased had commenced to move away, and the appellant had continued to pursue him. DECISION 16 In my opinion, the two questions on which the Court has been addressed on behalf of the appellant, namely (1) whether a reasonable person in the position of the appellant would have realised that his acts were exposing another to a significant risk of serious injury and (2) whether the response of the deceased was reasonable or proportionate in the circumstances, were quintessentially questions appropriate for determination by a jury, being questions concerning what amounts to reasonable human belief and behaviour. Those questions were fairly put to the jury by the trial judge; and there is no complaint about the way those questions were left to the jury. In those circumstances, in my opinion it is appropriate for this Court to exercise considerable care before coming to the view that no reasonable jury, properly directed, could find beyond reasonable doubt in favour of the Crown on these questions. 17 In considering whether there was evidence capable of supporting such a finding, it is necessary to consider what options were available to the deceased when the appellant approached him in a threatening manner. If he wished to get away from the appellant, he had the alternatives of moving south towards the end of the platform, moving north towards the building on the platform, moving towards the train from which the appellant had alighted, or moving towards the tracks on the other side of the platform. Moving north towards the building would have taken him closer to the appellant; and even if he had moved from his seat towards the edge of the platform opposite the train from which the appellant had alighted, he would have been in a position where he could have been blocked by the appellant if he attempted to move north. If he had moved towards the train from which the appellant had alighted, again he would have been coming closer to the appellant. If he had moved south towards the end of the platform, he would have been moving to a place from which there was no exit except on to railways tracks, with the possibility that the appellant would have pursued him to the end of the platform. There was no-one on the platform between where the deceased was and the end of the platform. In those circumstances, the deceased could well have seen the option that he took as the one giving most assurance of avoiding the appellant and avoiding pursuit by the appellant. 18 Another matter that needs to be considered is the nature of the appellant's conduct. This was variously described by witnesses, and to some extent captured by the video surveillance. It was a matter for the jury, on the basis of the evidence before it, to come to a conclusion as to the degree to which this conduct was objectively threatening and frightening. Another matter that the jury could take into account in reaching a view on this matter was the character of the deceased, as disclosed in the evidence, as being a person who reacted calmly to crises and avoided confrontations: it was open to the jury to consider that the response of such a person tended to support a conclusion that the appellant's conduct was objectively threatening and frightening to a high degree. The jury could also have considered that, because the aggressive behaviour of the appellant was entirely unprovoked, its future course was all the more unpredictable and therefore frightening. 19 The jury could properly have considered that, if a person is caused to flee in fear for his or her safety, that will in very many circumstances involve a real risk of serious injury, because a person in flight will often not be able to take the care for safety that can usually be taken, and for that reason be at appreciable risk of serious injury from whatever hazards there may be in the vicinity, even if these hazards would be obvious to and avoidable by a person taking usual care. Common experience tells us that even a trip can cause serious injury. And the jury could properly have considered that a reasonable person would appreciate all these matters. 20 Accordingly, in my opinion it was open to the jury to conclude beyond reasonable doubt that the appellant's conduct was such as to cause a person in the situation of the deceased to flee in fear for his safety; and that, having regard to the circumstances, including the place where the conduct occurred, a reasonable person in the position of the appellant would have appreciated that this involved a real risk of serious injury. 21 On the question of whether what the deceased did was reasonable or proportionate, a jury could properly have considered that the deceased was placed in fear for his safety, and that he could reasonably have believed that quick and decisive action was required to protect himself. The reasonableness and proportionality of his response would then be assessed in terms of the response of a person, in fear for his safety, making a quick decision as to what to do. Having regard to the options set out above, the initial step of going on to the railway tracks could have been seen by the deceased as giving the best chance of avoiding further contact with or pursuit by the appellant, and, where no train was approaching from the city, as involving no disproportionate risk to himself. The further step, of continuing across the next track and trying to get on to the next platform, when a train was approaching, could have been assessed as a mistake made in the agony of the moment, when the deceased was startled and perhaps terrified by the sound of the train's 'country horn'. The jury visited the station where the events occurred, and so was in a good position to assess these matters. 22 In my opinion, having regard to all these considerations, it was open to the jury to be satisfied, beyond reasonable doubt, that the response of the deceased was reasonable and proportionate. 23 The question before this Court is not whether this Court would be satisfied that the appellant acted dangerously or that the response of the deceased was reasonable or proportionate. Unless this Court is of the view that no reasonable jury, properly directed, could be satisfied beyond reasonable doubt of these matters, the appeal must fail. 24 For those reasons, in my opinion the appeal should be dismissed. 25 HULME J: I agree with Hodgson JA 26 SMART AJ: I agree with Hodgson JA. ********** Last Modified: 09/06/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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