R v McKnight (No. 2) [2014] NSWSC 557

Supreme Court New South Wales

Medium Neutral Citation: R v McKnight (No. 2) [2014] NSWSC 557 Hearing dates: 28 - 30 April; 1, 2, 5 May 2014 Decision date: 05 May 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: For those reasons I will give a Mule v R direction as formulated by Senior Counsel for the Crown. Catchwords: PROCEDURE - criminal - direction - warning as to reliability of evidence - right to silence - whether Mule direction appropriate Legislation Cited: Evidence Act 1995 (NSW), s 165 Cases Cited: Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Category: Interlocutory applications Parties: Regina (Crown) Michael McKnight (Accused) Representation: Counsel: J Pickering SC (Crown) G Brady (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Accused) File Number(s): 2012/104525

EX TEMPORE Judgment 1Mr McKnight is standing trial for the murder of David Ray. It is common ground in this case that Mr McKnight repeatedly kicked David Ray in George Street Sydney in the early hours of 25th March 2012. 2There are two issues in the trial. The first is whether, in kicking Mr Ray, Mr McKnight had at that time the requisite intention of inflicting really serious personal injury upon him. 3The second is, if the jury are satisfied as to the first, whether he is entitled on the basis of the partial defence of substantial impairment to have his criminal liability for murder reduced to manslaughter. 4Mr McKnight has exercised his right to silence by declining the opportunity to participate in a formal record of interview with arresting police officers and he has not given evidence in his trial. There are, however, three categories of accounts given by Mr McKnight in evidence. The first category relates to contemporaneous statements made to police officers. In that regard he spoke to police officers in George Street on 25th March, shortly after he inflicted injury upon Mr Ray, and, after being cautioned, he made some statements to arresting police who arrived at his home on 3rd April 2012 for the purpose of executing a search warrant. 5The second category relates to clinical records of his pre and post 25th March 2012 medical treatment for a condition of either paranoid schizophrenia or schizoaffective disorder, depending upon which view of the medical evidence one accepts. 6The third category relates to the history he gave to each of Doctors Nielssen and Allnutt, who carried out medico-legal examinations of his mental state for the purpose of giving evidence at the trial. 7The Crown submits, and I think it is fair to say, especially in relation to that third category, that I should give the jury a warning that those accounts may be unreliable in accordance with s 165 of the Evidence Act 1995 (NSW). Such a direction would extend to an exposition of the reasons why those accounts may be unreliable. I will not set out the direction for which the Crown contend. It is set out on the third page of MFI 12. 8Alternatively, acknowledging that the giving of such a direction may be a "delicate exercise", see R v Wilson (2005) 62 NSWLR at 346 commencing at [36], I should consider giving a direction in accordance with Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. The suggested direction is set out on page four of MFI 12. 9Mr Brady of counsel for the accused initially took the position that no direction whatsoever should be given about these statements because to do so would have the effect of forcing an accused person to give evidence, diluting very substantially the right to silence shared by all members of our community. However, during the course of oral argument Mr Brady accepted that a direction along the lines of that formulated by the learned Crown Prosecutor derived from Mule v The Queen was appropriate especially in relation to the medico-legal histories. 10The phrase "a delicate exercise" comes from the judgment of Hunt J in Wilson. It refers to the difficulty of pointing out the potential unreliability of hearsay accounts given in evidence and attributed to the accused with proper maintenance of the right to silence. 11I accept the force of the Crown submissions that, particularly in relation to the medico legal histories, there is a risk that a person may, I will use a neutral phrase, put their best foot forward for the purpose of advancing his defence. I also acknowledge that some part of the accounts given to the qualified specialists may not be consistent with what can be derived from the contemporaneous record of the CCTV footage. 12It seems to me that the potentiality for unreliability is likely to vary significantly amongst each of the three categories I have identified. In general terms, although a person questioned by the police may, likewise, put his best foot forward, the contemporaneous and spontaneous accounts given on 25th March and 3rd April 2012 are much less likely to be unreliable than, say, the medico-legal accounts. Also, the history given to doctors for the purpose of receiving medical treatment, especially the treatment given before 25 March 2012, is likely to be inherently reliable. Pointing out these differences amongst the categories rather exacerbates the necessary delicacy of the exercise of giving a s165 direction which gives an appropriate warning but at the same time effectively preserves the significance and importance for the jury of the right to silence. 13I think in the end that it is appropriate to give a Mule v The Queen direction in relation to the histories received by Doctors' Allnutt and Nielssen, but not to give the more expansive s165 warning for which the Crown contend in relation to that category and the second category I have identified. 14I should point out that in respect of the first category the Crown, in accordance with all propriety, have urged upon the jury that they should rely upon the accounts given to the police as being evidence from which they can draw the inference, in conjunction with other evidence, that the accused had the necessary intent at the time he kicked Mr Ray. 15Essentially, and in substance, it was put to the jury that the violent and ugly language he used bespoke a violent and ugly intent, specifically intent to inflict really serious personal injury. 16For those reasons I will give a Mule v R direction as formulated by Senior Counsel for the Crown.