R v Stephen (No. 3) [2018] NSWSC 168

Supreme Court New South Wales

Medium Neutral Citation: R v Stephen (No. 3) [2018] NSWSC 168 Hearing dates: 16 February 2018 Decision date: 20 February 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Verdict of not guilty directed on the count of murder; trial to proceed on manslaughter. Catchwords: CRIMINAL LAW – procedure – miscellaneous powers of court and judges – trial by jury on count of murder – application for verdict by direction – Crown prosecutor concedes before jury that murder cannot be proven and will not be contended for – verdict of not guilty directed on the count of murder – trial to proceed on manslaughter Legislation Cited: Crimes Act 1900 (NSW), ss 418, 423 Cases Cited: Antoun v The Queen [2006] HCA 2; (2006) 159 A Crim R 513 Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 Category: Procedural and other rulings Parties: Regina Jonda Rhani Stephen Representation: Counsel: L Shaw (Crown) P Dwyer (Accused)

Solicitors: Director Of Public Prosecutions (Crown) PJ Donnellan & Co (Accused) File Number(s): 2017/00099898 Publication restriction: Nil

Judgment 1. This judgment explains the unusual turn of events that led me to direct a verdict of not guilty of murder in this trial conducted at Broken Hill. 2. A broad outline of the Crown allegation against the accused is contained in a previous judgment that I have delivered in this matter (R v Stephen (No. 1)). In a nutshell, it is that the accused stabbed the deceased in the heart on 5 October 2015 at their home in Broken Hill. The Crown has never disputed that she was being subjected to severe violence by the accused at the time, and that she had been subjected to it on many occasions throughout their romantic relationship of less than a year. 3. The accused was arraigned before a jury panel and me on 7 February 2018. The indictment contained a single count of murder, to which she pleaded not guilty. The Crown prosecutor and defence counsel opened to the jury, and the Crown case unfolded. It was clear from the start of the trial that an important issue for the determination of the jury would be whether, when she stabbed the deceased to the chest, causing his death, the accused was acting in self-defence. 4. The Crown case closed on 15 February 2018. Thereafter an application was made by defence counsel for a verdict of not guilty by direction on the count of murder on a number of bases. 5. The first basis for the application was that, taken at its highest, there was no evidence in the Crown case that the accused intended to inflict grievous bodily harm upon the deceased (the Crown did not allege an intention to kill). 6. I rejected that application, on the simple basis that the combined effect of the undisputed use of a knife, the location of the wound (on the left-hand side of the chest of the deceased), its track (between the ribs, through the lung, and piercing the right ventricle of the heart) and its depth (between 12 and 14 cm) meant that there was some evidence upon which the jury could find that that element had been established: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. 7. Because it is not determinative of the application, I do not believe that that ruling of mine, founded upon an evaluation of evidence, requires further discussion. 8. Thereafter, an application was made for a verdict by direction on the count of murder on the further basis that the Crown case contained no evidence, taken at its highest, that could disprove the "first leg" of self-defence. In other words, it was submitted that there was no evidence that, taken at its highest, could prove that the accused did not believe it was necessary to stab the deceased in the chest to defend herself: see s 418 and following of the Crimes Act 1900 (NSW). 9. I proceeded to provide defence counsel with a conspectus of the various pieces of evidence already placed before the jury that, to my mind, could be relevant to the question of whether the Crown could disprove that state of mind on the part of the accused, by a process of inferential reasoning. I did so in order for her to be aware of the pieces of evidence that, on initial reflection, I considered could possibly fulfil that role. Some of them featured potential "consciousness of guilt" reasoning; for example, the undisputed fact that, after the stabbing, the accused washed the knife that had inflicted the fatal injury. I also made clear to both parties my view that the position of the Crown about the application was significant but not determinative; in other words, the determination of the legal question was ultimately a matter for me. 10. After the luncheon adjournment, each counsel raised a concern whether the things that I had said before lunch gave rise to an appearance of actual or apprehended judicial bias. I was provided with a copy of the paradigm judgment of the High Court of Australia in Antoun v the Queen [2006] HCA 2; (2006) 159 A Crim R 513. I expressed my readiness to receive any application for disqualification; in the event, none was made. 11. Separately, defence counsel invited me to enquire of the Crown prosecutor whether consciousness of guilt reasoning would be urged upon me at the stage of the application, or indeed upon the jury, by him. The point was made by her that, in assessing the Crown case at its highest, I would need to understand how the Crown prosecutor proposed to present it, and the use to which he would ultimately submit it could be put by the tribunal of fact. 12. The Crown prosecutor made clear that much of the evidence to which I had invited the attention of defence counsel would not be relied upon for consciousness of guilt reasoning. Indeed, he went further, and, in discussion between Bench and Bar table, made it clear that, despite having presented an indictment averring murder on 7 February 2018, and despite nothing unexpected having happened during the presentation of the Crown case, in fact, at the end of the trial, he would not be seeking a verdict of guilty of murder from the jury. 13. At no stage prior to that explanation had I appreciated that, although an indictment had been presented alleging murder, the Crown would not be seeking from the jury a verdict of guilty of the single offence contained in the indictment. 14. I enquired how it was that that was the case. It was explained that the view had been taken within the Chambers of the Director of Public Prosecutions that, in order to seek a verdict of guilty of manslaughter, by way of an allegation by the Crown of "excessive self-defence" (pursuant to s 423 of the Crimes Act), it was necessary to have the accused arraigned on a count of murder, as a matter of legal technicality. 15. I interpolate that, having heard no argument about the correctness of that proposition, I express no opinion about it, except to say that I know of no authority to support it. 16. Once it was made clear to me that the prosecuting authority that had presented an indictment containing a count of murder was not, in truth, alleging that the accused was guilty of that offence, my approach to the question of a verdict by direction on that count inevitably changed. 17. Although I had been engaging in a process of discussing with defence counsel my initial thoughts about the Crown case at its highest, of course that was on the fundamental assumption that the Crown case was an allegation of murder. 18. It seemed to me thereafter that it was inconceivable that the application should not succeed. 19. That was not on the basis of any assessment of my own of the circumstantial case that could arguably, at its highest, disprove the mental element that is the "first leg" of self-defence. 20. Rather, it was on the simple basis that, if I am called upon to assess the Crown case at its highest, and the Crown case is not that the accused is guilty of murder, it is inconceivable that a trial on a count of murder could continue further. 21. For that reason, after a period of reflection, I indicated to the parties that I would be content to direct a verdict of not guilty of murder the following morning. In order to aid comprehension on the part of the jury of what was occurring, I proposed to invite the Crown prosecutor to make clear the position of the Crown in the presence of the jury. 22. Each counsel was content for the trial to continue on a count of manslaughter (by way of excessive self-defence), subject to an application for a "Prasad direction" on that count, which I discuss in a separate judgment. 23. There was also a question about whether a basis of manslaughter different from excessive self-defence should be left to the jury, the murder count having been the subject of a directed verdict of not guilty. Again, I discuss that topic in a separate judgment. 24. It is in the above context, and for the reasons that I have explained, that on 16 February 2018 I directed the jury to return a verdict of not guilty of murder in this trial, and they duly did so.