R v Philip Wan Por LEUNG (No 3) [2009] NSWSC 450

New South Wales Supreme Court

CITATION : R v Philip Wan Por LEUNG (No 3) [2009] NSWSC 450

HEARING DATE(S) : 20 April 2009-23 April 2009, 27 April 2009-1 May 2009, 4 May 2009 JURISDICTION : Common Law

JUDGMENT OF : Rothman J

EX TEMPORE JUDGMENT DATE : 4 May 2009

CATCHWORDS : CRIMINAL LAW – directed verdict – no evidence upon which a jury, directed in accordance with law, could properly convict – Crown case taken at highest – inference to be drawn if human experience would be contradicted otherwise – act causing death speculative – deliberate act is more speculative – intention necessary for murder mere conjecture – jury not entitled to conjecture – likewise, commission of unlawful and dangerous act to establish manslaughter would be conjecture – verdict directed on murder and manslaughter

CATEGORY : Procedural and other rulings

Doney v R [1990] HCA 51; (1990) 171 CLR 207 Fabre v Arenales (1992) 27 NSWLR 437 CASES CITED : JMR (1991) 57 A Crim R 39 Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 R v R (1989) 18 NSWLR 74 Wilson v R [1992] HCA 31; (1992) 174 CLR 313

PARTIES : Regina (Crown) Philip Wan Por Leung (Accused)

FILE NUMBER(S) : SC 2008/6766

COUNSEL : N Williams (Crown) W Terracini SC / J Trevallion (Accused)

SOLICITORS : Office of the Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J

4 MAY 2009

2008/6766 R v Philip Wan Por LEUNG (No 3)

JUDGMENT 1 HIS HONOUR: Philip Leung is charged with the murder of Mario Guzzetti on Easter Saturday, 7 April 2007. Mr Leung and the deceased were partners, who lived together in a terrace house in Alexandria. 2 Mr Terracini SC, who, with Mr Trevallion, appears for Mr Leung, applies to the Court for a directed verdict of acquittal on the basis that the Crown, having closed its case, has no basis in evidence for the charge, nor for the alternative of manslaughter. His submission is, as it must be to succeed, that there is no evidence upon which a jury, directed in accordance with law, could properly convict. The Principles on Directed Verdict 3 The principles upon which such a direction may be given are strict and confined, but the test, once satisfied, is not discretionary. It is a trial judge's duty to direct a verdict of acquittal, if the evidence could not sustain a guilty verdict, or, as more commonly expressed, if there be no evidence upon which a jury, properly directed, could convict: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 212.6. 4 In determining whether there is no evidence that can sustain a guilty verdict, the court is required to ignore contradictory evidence unfavourable to the Crown case and to take the Crown case at its highest, including any inferences that may arise from the evidence adduced. It is for the jury, not the judge, to resolve conflicting evidence: R v R (1989) 18 NSWLR 74 per Gleeson CJ at 81. 5 While the test has been described as a question of law, it necessarily involves an assessment of the facts that are proved by the evidence adduced. Two issues are clear. First, it is not for the trial judge to determine the issue on the basis that a jury verdict would be unreasonable or, as it was once described, unsafe and unsound (Doney, supra). If there be evidence (even tenuous, inherently weak or vague evidence) which the jury is able to take into account and which, if accepted by the jury, would support a verdict of guilty, the matter must be left to the jury. It is not a matter for the trial judge to pre-empt a potentially unreasonable verdict by a jury, but a matter for the Court of Criminal Appeal, if the verdict ultimately reached be found to be unreasonable. 6 Second, it is insufficient, in determining whether to direct a verdict, for a trial judge to come to the conclusion that a reasonable hypothesis consistent with innocence can be formulated: JMR (1991) 57 A Crim R 39. If an inference is available from the evidence adduced that is consistent with guilt, it is a matter for the jury, properly instructed, not for the trial judge. Evidence 7 The Crown case against Mr Leung is circumstantial. The primary facts, leaving aside for the time being cause of death, are, with one exception, uncontroversial and uncontroverted. The one exception relates to an express intention by the deceased to end his relationship with Mr Leung and that he, the deceased, was scared. I will assume, for the current exercise, that Mr Di Francesca's evidence of Mr Guzzetti's desire to end the relationship, the desire to sell the house and that the deceased was scared is proved and accepted, notwithstanding some issues as to its probability. 8 Otherwise the facts, taking the Crown case at its highest, are these (not in any order of priority, nor in chronological order):