Supreme Court New South Wales Medium Neutral Citation: R v Stephen (No. 4) [2018] NSWSC 169 Hearing dates: 16 February 2018 Decision date: 20 February 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Manslaughter by unlawful and dangerous act not to be left to the consideration of the jury. Catchwords: CRIMINAL LAW – procedure – miscellaneous powers of court and judges – accused arraigned on murder count – verdict of not guilty of murder by direction– manslaughter remains before the jury – Crown relies only on "excessive self-defence" manslaughter – viable alternative basis for verdict of guilty of manslaughter by unlawful and dangerous act – alternative basis for verdict of guilty of manslaughter eschewed by Crown prosecutor –– defence counsel opposes alternative basis of manslaughter being left to the jury – alternative basis for manslaughter not left to jury Legislation Cited: Crimes Act 1900 (NSW), s 418 Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223 Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 James v The Queen [2014] HCA 6, (2014) 253 CLR 475 Romolo v The Queen [2018] NSWCCA 3. 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. On 15 February 2018, I indicated to the parties that I accepted the submission of defence counsel that I should not leave manslaughter by unlawful and dangerous act (to which I shall refer for convenience as "substantive manslaughter") to the jury as an alternative basis of liability. 2. The context of that decision of mine is as follows. 3. I have provided a précis of the course of the trial in at least one other judgment: see R v Stephen (No. 3). Relevantly, the accused was arraigned on an indictment containing a single count of murder on 7 February 2018. She pleaded not guilty, and a trial by jury commenced. In their openings, each counsel submitted that self-defence would loom large in the consideration of the jury. 4. On 15 February 2018, I rejected an application for a directed verdict of acquittal on the count of murder on the basis that there was no evidence of an intention to cause grievous bodily harm. 5. On the same date, an application for a directed verdict was made on the basis that there was no evidence upon which the Crown could disprove what I shall call for convenience the first leg of self-defence; that is, that the accused believed it was necessary to do what she did in self-defence. 6. Ultimately, the Crown prosecutor explained that he would not be contending for a verdict of guilty of murder, but rather manslaughter only. It was further explained that the Crown was content to seek a verdict on that basis only by way of the "pathway" of excessive self-defence; in other words, an allegation that the accused voluntarily did an act that caused the death of the deceased with intent to cause grievous bodily harm; combined with an acceptance that she believed it was necessary to do what she did in self-defence (the first limb of self-defence); but also combined with an allegation that her act was not a reasonable response in the circumstances as she perceived them (the second limb of self-defence): see s 418 and following of the Crimes Act 1900 (NSW). 7. For reasons that I have explained in a separate judgment, once I appreciated that the Crown was not alleging the form of homicide that the indictment was averring, I believed it was inconceivable that I should not accede to the verdict by direction on the count of murder. 8. On the assumption that there would be such a verdict (as there duly was the following day), defence counsel renewed a pending application that I not leave substantive manslaughter. 9. During the course of that application, the Crown prosecutor made it clear that he would not be "going to the jury" on the alternative basis for manslaughter of what I call substantive manslaughter. In other words, he would not be submitting to the jury that, if they were not satisfied beyond reasonable doubt of the necessary intention for murder, still and all, they could return a verdict of guilty of manslaughter, if they were satisfied that the accused had committed an unlawful and dangerous act, and the second limb of self defence had been disproven against her (the first limb, as before, having been conceded by the Crown prosecutor). 10. Prior to all of those developments, I had formed the initial view that it was incumbent upon me to leave the alternative formulation of substantive manslaughter to the jury, even if the Crown prosecutor was not relying upon it. I held that view for the following reasons. 11. First, in James v The Queen [2014] HCA 6; (2014) 253 CLR 475, the High Court of Australia drew a sharp distinction between the law about leaving alternatives to do with murder and manslaughter, and the law about other, often statutory, alternatives. In the latter case, the test may be summarised as being whether it is in the interests of justice to do so; in the former case, it may be summarised as being whether a case for manslaughter is "viable": see Carney v R; Cambey v R [2011] NSWCCA 223. 12. I felt that the "pathway" to a verdict of guilty of substantive manslaughter discussed by me above was viable, and therefore prima facie should be left. 13. Secondly, I felt that, in accordance with such cases as Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, and Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, substantive manslaughter provided a further "pathway away" from conviction for murder. In other words, I felt that, whatever the position of defence counsel, it was incumbent upon me to leave an alternative basis for liability for manslaughter if I judged it to be viable. 14. Thirdly, I considered that the historic indivisibility of the two forms of homicide had its role to play. 15. My view changed, however, once it became clear that murder would no longer be before the jury. That is so for the following reasons. 16. First, the special position of indivisibility no longer applied. 17. Secondly, one no longer needed to consider "pathways away" from conviction for murder, for the simple reason that murder would be mandatorily removed from the consideration of the jury. 18. Thirdly, the Crown prosecutor made it clear that he was content to rely only on excessive self-defence manslaughter, and to eschew any reliance on what I have called substantive manslaughter. On reflection, I regarded the case as similar to one in which the Crown "pins its colours to the mast" by way of a particular legal analysis or factual assertion: see the recent decision of the Court of Criminal Appeal in Romolo v The Queen [2018] NSWCCA 3. 19. In other words, the case by that stage seemed to me to be analogous to one in which the trial judge considers that the Crown could, on the evidence, allege that an accused person is guilty of an offence on the basis that he or she was a principal in the first or second degree; nevertheless, the Crown makes it clear that it relies only on the first proposition. 20. In those circumstances, I did not believe that it is incumbent upon a trial judge to leave a separate basis of inculpation for the same charge. Indeed, to do so, when the Crown is not contending for that basis of inculpation before the jury, would border on the bizarre. 21. In short, once I possessed a deeper understanding of the way the Crown was putting its case on homicide; once it became clear that there would be a verdict by direction on the count of murder; and once I confirmed that the Crown prosecutor was content to eschew substantive manslaughter and rely only on excessive self-defence manslaughter, I accepted the submission of defence counsel that the alternative formulation of manslaughter by unlawful and dangerous act should not be left to the jury. ********** 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: 22 February 2018