R v Lockett [2013] NSWSC 860

Supreme Court New South Wales

Medium Neutral Citation: R v Lockett [2013] NSWSC 860 Hearing dates: 31 May 2013 Decision date: 31 May 2013 Before: Price J Decision: Application for directed verdict rejected. Catchwords: CRIMINAL LAW - procedure - whether evidence of deliberate act - whether directed verdict Legislation Cited: Criminal Appeal Act 1912 s 6 Cases Cited: Doney v The Queen [1990] HCA 51; (1991) 171 CLR 207 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Ryan v The Queen (1967) 121 CLR 205 Category: Procedural and other rulings Parties: Samuel Lockett Crown Representation: Counsel: Solicitors: File Number(s): 2010/384692

EX TEMPORE Judgment 1HIS HONOUR: Mr Smith makes an application that a verdict of not guilty should be directed. He submits that there is no evidence that it was the deliberate act of the accused that caused the death of the deceased. The submission is that the Crown cannot prove that the accused deliberately discharged the firearm, and, in a case where the sole cause of death is that discharge, the case must fail. 2The accused has pleaded not guilty to the charge that he on 12 October 2010 at Mt Pritchard in the State of New South Wales did murder Wallace Ruiz-Sanchez. In order for the jury to find the accused guilty of the charge, the Crown must prove beyond reasonable doubt all of the following essential legal elements: (1)it was the deliberate act (or acts) of the accused that caused the death of Wallace Ruiz-Sanchez; and (2)the act (or acts) causing death were done with an intention to inflict grievous bodily harm upon him. 3The test to be applied in a no prima facie case submission is that referred to in Doney v The Queen [1990] HCA 51; (1991) 171 CLR 207 in the joint judgment of the High Court where it was said at 212: "The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehall v The Queen. There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict." (citations omitted) 4Further, at 214: "It follows that if there is evidence (even if tenuous or inherently weak or vague), which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 5The Crown case must be taken at its highest and it is for the jury, not the judge, to resolve conflicts of evidence: see Doney at 215. 6Furthermore, it is not sufficient to find that a conviction would be unreasonable within the statutory formula for criminal appeals found in s 6 Criminal Appeal Act 1912. 7For the purpose of the application, the accused accepts there is clear evidence that the accused struck the deceased to the head with the firearm. Rhiannon Knaggs and Ashley Riddell say that occurred once. Ms Psaroudis said it occurred a couple of times. There is a deal of evidence that the firearm discharged when the deceased was struck with it. 8Mr Smith submits that there is no evidence that the accused knew that the object with which he struck the deceased was a loaded firearm. He contends that the act which killed the deceased was the discharge of the firearm and not the use of it to hit the head of the deceased. 9He argues that the discharge of the firearm was not voluntary and in that sense the discharge of the firearm was unwilled and not a deliberate act of the accused. 10Mr Smith cited what was said by the Chief Justice in Ryan v The Queen (1967) 121 CLR 205 at 218, where the Chief Justice said: "For if the presentation of the gun which subsequently discharged without the willed act of the applicant is to be chosen, a question of causation is involved. That presentation in the setting of its circumstances must cause the death. It seems to me that it could only be held to do so if the unwilled discharge of the gun ought to have been in the contemplation of the applicant at the time..." 11On the other hand, it is the Crown case that it was the deliberate act of the accused, in hitting the deceased on the head with the shotgun, that caused the death of the deceased. 12It is well established that there must be a causal relationship between the doing of an act by the accused and the death of Mr Ruiz-Sanchez. The direct cause of his death was the discharge of the firearm which, taken at its highest, the evidence does not establish that the accused deliberately discharged that firearm, nor is there evidence that the accused ought to have contemplated that the firearm would discharge. 13However, as Brennan J observed in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398: "The basic proposition relating to causation in homicide is that the accused's conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of death..." (citations omitted) 14The question of the cause of the deceased's death is to be determined by the jury in a common sense way. In my view, taking the Crown case at its highest, the jury could capably conclude: (1)that the accused deliberately hit the deceased on the head with the firearm; (2) that, although that deliberate act was not the direct or immediate cause of death, it made a substantial contribution to the death; (3) that at the time the accused hit the deceased on the head with the firearm, he had the intention to inflict grievous bodily harm on him. 15There is evidence, in my view, taking the Crown case at its highest, from which the jury could capably conclude that it was the deliberate act of the accused that caused Mr Ruiz-Sanchez's death. 16I reject the application.