Supreme Court New South Wales Medium Neutral Citation: R v Bryce (No 4) [2014] NSWSC 589 Hearing dates: 12 May 2014 Decision date: 12 May 2014 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Application for a verdict by direction rejected. Catchwords: MURDER - application for directed verdict - intention - no question of principle. Cases Cited: - Doney v R [1990] HCA 51; 171 CLR 207 - Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 - R v Bryce (No 1) [2014] NSWSC 495 - R v Bryce (No 3) [2014] NSWSC 498 Category: Procedural and other rulings Parties: Crown (Prosecutor) John Keith Bryce (Accused) Representation: Counsel: E. Balodis (Crown) P.S. Williams (Accused) Solicitors: Director of Public Prosecutions (Crown) Andrew Scali (Accused) File Number(s): 2012/156908 Publication restriction: Not published until after verdict reached. ex tempore Judgment On application for directed verdict on the charge of murder: see page 418 of the transcript 1At the close of the Crown case, counsel for the accused, Mr Williams, applied for a directed verdict on the charge of murder. He submitted that the Crown case, taken at its highest, is not capable of sustaining a guilty verdict to that charge (see Doney v R [1990] HCA 51; 171 CLR 207 ("Doney")). In particular, Mr Williams submitted there was no evidence upon which it could be concluded that, in causing injury to the deceased, the accused intended to inflict grievous bodily harm, that is, really serious physical injury. 2I summarised the Crown case in R v Bryce (No 1) [2014] NSWSC 495 at [3] to [10], and further explained it in R v Bryce (No 3) [2014] NSWSC 498 at [3] to [12]. 3Mr Williams' submission takes as its premise an acceptance that the evidence adduced by the Crown is capable of supporting a finding that the injury which resulted in the subdural haematoma suffered by the deceased and which caused her death, was inflicted sometime after 5:00pm on 15 May 2012, and that it was the accused by some act or acts who so inflicted it. 4It was common ground amongst the various medical experts who gave evidence that the deceased died as a result of a subdural haematoma. Although a number of external bruises and a laceration on her scalp were found post-mortem, the evidence establishes they were all caused to the deceased at a time prior to the period when the Crown contends that the accused did the act or acts which killed her. 5The only injuries which were potentially associated with the subdural haematoma suffered by the deceased were two bruises under the skin, identified by Dr Duflou in the post-mortem, namely, a bruise under the skin of the right part of the temple of the deceased "overlying the temporalis muscle", and an area of bruising 25 by 30mm in size over the left orbital ridge of the deceased, that is, above her left eyebrow. On the evidence, these areas of bruising could have been occasioned at the time of whatever blow or act caused the subdural haematoma, or they could have been inflicted at an earlier time. 6Two medical practitioners were called by the Crown and gave evidence as to the level of force necessary to cause the subdural haematoma suffered by the deceased, namely, Dr Parkinson and Dr Duflou. 7The Crown Prosecutor submitted, and I agree, that Dr Duflou's evidence represents the highest aspect of the Crown case on this issue. In particular, he was asked and answered as follows: "Q. How much force would have to be involved to cause such a subdural haemorrhage? A. That is a very difficult question to answer. In general terms, a subdural haemorrhage is an uncommon outcome from both a blow to the head and from a fall, but they absolutely do occur. A fall from your own height to the ground can, under uncommon circumstances, result in a subdural haemorrhage. Certainly a blow to the head, with often an associated fall, can cause a subdural haemorrhage as well and can cause, for that matter, a range of other injuries to the brain. That is not to say that it only needs to be relatively speaking a minute amount of force. It can certainly be a significantly larger amount of force as well. But, as a minimum, a fall to the ground can do it and a punch, as an example, can do it. Q. We have already heard that, generally, it is accepted that the force, whether by punch or fall or by some combination, would have to be of the range to cause a concussion; would that be a fair summary or at least description of the degree of force necessary? A. Yes, I think that is quite reasonable. There can be exceptions though but, in general terms, yes. The whole mechanism of subdural haemorrhage tends to be, more often than not, a rotational movement of the head. If anything, the subdural haemorrhage is an indication of a rotational movement not in fact the primary problem in the majority of cases, but it indicates to us there has been a significant force applied to the head and certainly such a significant force, which causes rotational movement, can at the same time be reasonably expected in the majority of cases to cause quite significant concussion as well. 8While Dr Duflou did accept that either a fall to the ground or a punch could have inflicted the subdural haematoma suffered by the deceased, his evidence is capable of supporting a conclusion that whatever it was that caused it, that is the subdural haematoma, it had to be applied with "significant force" to the head and, in particular, with "such significant force which causes rotational movement" and such force can be "reasonably expected in the majority of cases to cause quite significant concussion as well". 9The phrase "grievous bodily harm" has been construed to mean "really serious physical injury". It does not mean that the injury must be permanent or the consequences of the injury be life lasting or life threatening (see Haoui v R [2008] NSWCCA 209; 188 A Crim R 331). 10Juries are commonly reminded of this and then instructed in terms to the effect that "what sort of injury would be described as really serious physical injury in the circumstances of the relevant matter is a finding of fact, that is for you, that is the jury, you alone to determine". This formal instruction reflects the underlying position that questions of fact and degree are involved in ascertaining what constitutes really serious physical injury. 11In Doney at 214 to 215, the High Court stated: "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. It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory nor the inherent power of a court to prevent an abuse of process provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial." 12In this case, the Crown case on the question of intention is anything but strong. However, in light of Dr Duflou's description as to the level of force that had to be applied to the head region to cause the deceased's subdural haematoma, namely, "significant force", I am persuaded there is evidence capable of supporting the verdict of guilty to murder, that is, capable of supporting an inference that in inflicting that level of force it was done with the intention to inflict really serious physical injury. Whether such a finding would survive the appellate scrutiny is, of course, a different question. It is not a matter that is appropriate for me to comment upon. It follows that I must reject Mr Williams' application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2014