R v Meakin (No. 2) [2016] NSWSC 1035

Supreme Court New South Wales

Medium Neutral Citation: R v Meakin (No. 2) [2016] NSWSC 1035 Hearing dates: 26 July 2016 Date of orders: 27 July 2016 Decision date: 27 July 2016 Jurisdiction: Common Law - Criminal Before: Davies J Decision: See paragraph [11] Catchwords: CRIMINAL LAW – murder – crown case that accused deliberately struck the victim with his motor vehicle – whether reckless indifference should be left to the jury – no basis in evidence for reckless act – crown opening – reckless indifference not left to jury Cases Cited: Campbell v R [2014] NSWCCA 175 R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 Royall v The Queen (1991) 172 CLR 378 The Queen v Crabbe (1985) 156 CLR 464 Category: Procedural and other rulings Parties: Crown Michael Meakin (Accused) Representation: Counsel: P Barrett (Crown) G Brady SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2014/55959

JUDGMENT 1. An issue has arisen about whether reckless indifference should be left to the jury as a basis for the charge of murder. In opening the case, the Crown said this: We say that the accused deliberately drove into collision with the deceased. He did so, if not intending to kill Mr McEvoy, at least to cause him serious injury...We say that even if the accused did not intend to kill, which we ultimately submit would be difficult to imagine, even if the accused did not intend to cause serious injury by striking with the motor vehicle the deceased from behind, he, even without those intentions, would be responsible for the alternative charge of manslaughter, which is an alternative to murder, because that conduct would be found by you to be both unlawful and dangerous in the circumstances. 1. On the third day of the trial, the jury asked for advice on the elements of count 2 on the indictment. During debate with counsel about the wisdom of acceding to that request at such an early stage, the Crown Prosecutor said this, at 209, line 36: One of the matters, your Honour, I would like to consider a little further before your Honour does give them those directions and give them the written directions, is to consider whether your Honour should leave reckless indifference to the jury because of the complexity. 1. On the sixth day of the trial, I raised with counsel, at the outset, about the inclusion or otherwise of reckless indifference. The Crown Prosecutor said, at 270, line 24: Your Honour, I'm of the view that it is, strictly speaking, available. My only concern was that there's a multiplicity of matters the jury have to consider, but it was simply my instant reaction to my first reading, but I'm not going to press your Honour not to leave it to the jury. 1. My own view at that stage was that reckless indifference was available. Counsel for the accused opposed it being left to the jury. 2. Further debate took place after the completion of the evidence yesterday. Mr Brady, for the accused, continued to oppose it being put, particularly because of the complications which would arise in relation to intoxication. He submitted that, although there was no issue from the accused's intoxication that he had the capacity to form an intention to hit the deceased, there was an issue about intoxication when it came to the issue of foreseeability of harm from the reckless act. He said that if reckless indifference was led, he would say that the accused lacked the capacity to turn his mind to the likelihood of something occurring. 3. The Crown submitted that reckless indifference was available on the evidence. He drew attention particularly to what was said by Simpson J in Campbell v R [2014] NSWCCA 175 at [311] that in many cases there is very little, if any, difference between an act done with intention to kill or inflict grievous bodily harm and doing an act in the recognition that it would probably cause death. 4. The Crown put to the accused, as an alternative proposition, that he had driven at Mr McEvoy in order to scare him. The accused denied that. There was no other evidence in the case suggesting such an occurrence. 5. Consistently with the Crown's opening, the case against the accused is that he deliberately hit the deceased with his van either to kill him or at least to cause him grievous bodily harm. The principal issue for the jury's determination is whether the Crown has established that matter or whether, as the accused says, the deceased suddenly stepped in front of his van on the roadway. 6. It does not seem to me that there is any room for what may be regarded as the slightly less morally culpable act - see McHugh J in Royall v The Queen (1991) 172 CLR 378 - of hitting the accused with reckless indifference to the probable consequences; The Queen v Crabbe (1985)156 CLR 464. 7. I consider that leaving reckless indifference is likely to confuse the jury and to distract them from the relatively straightforward decision on the principal issue referred to. Whilst I doubt the correctness of Mr Brady's submission regarding the distinction between the capacity to form the intention to kill or commit grievous bodily harm, on the one hand, and to foresee the probable consequences of a deliberate act of driving a van at a pedestrian - see in that regard R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 - submissions made to the jury about the accused's intoxication in that regard are likely to create confusion where there is no primary evidence suggesting that this event arose as a result of a reckless act. 8. I accept that it is necessary for the jury to be advised about the possibility of an alternative verdict of manslaughter based on an unlawful and dangerous act, being an attempt to scare the deceased by the manner of driving, but that does not require murder on the basis of reckless indifference to human life to be left to them, and I rule accordingly.