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June 2014

Cases

• Limits on a judge’s power to direct an acquittal – R v PL [2012] NSWCCA 31 and R v RMC [2013] NSWCCA 285

CASES

Updated 18 June 2014

Limits on a judge’s power to direct an acquittal

R v PL [2012] NSWCCA 31 – 20 March 2012 Court of Criminal Appeal – Bathurst CJ, Simpson and Adamson JJ and
R v RMC [2013] NSWCCA 285 – 14 November 2013 Court of Criminal Appeal – Latham, Hulme JJ and Barr AJ

Crimes (Appeal and Review) Act 2001, s 107 – Crown can appeal against a directed verdict of acquittal – judge failing to follow or properly apply relevant legal principles – (in RMC) direction to acquit given before end of Crown case – evidence in Crown case should be taken at its highest

Principles: The principles to be applied are well established and were not in dispute in these cases. A summary of those principles are:

1. A judge may direct a verdict of acquittal only if there is a defect in the evidence in the Crown case such that, taken at its highest, it will not sustain a verdict of guilty. If there is evidence, even though it is tenuous or inherently weak or vague, that is capable of supporting a verdict of guilty, the case must be left to the jury to determine: Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157; [1990] HCA 51.
2. In a case based on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case even though a reasonable hypothesis consistent with innocence can be formulated: Director of Public Prosecutions v R (1991) 57 A Crim R 39.
3. There is no power to direct an acquittal on the basis that any resultant conviction would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74; 44 A Crim R 404; Doney v The Queen.

Facts: In PL, the respondent stood trial on a charge of manslaughter of his then partner. There was evidence of some admissions made by the accused and some forensic evidence linking him to the death. It was a circumstantial case that the Crown sought to make out against PL. The trial judge found in directing a verdict of acquittal that, “[i]n some cases, the multiplication of circumstances, taken together (though ignoring those matters that assist the accused), will be capable of leading to a conclusion of sufficient certainty to justify conviction, in which event, there is a case to answer. Here, however, the number of possibilities and the varying inferences available if one or another path of reasoning be followed add to uncertainty rather than reduce it.” The Crown submitted that this was a misapplication of the tests identified above, and in particular Director of Public Prosecutions v R.

In RMC, the respondent was a P-plate driver who exceeded the 50 km/h speed limit in foggy conditions. He lost control of his vehicle at a bend in the road and it crashed, killing his girlfriend. He was charged with dangerous driving occasioning death. During the course of the trial, while the Crown was still presenting its case, the judge declared “it ends now”. After giving a short judgment, he directed the jury to deliver a verdict of not guilty. The Crown submitted that trial judge simply ignored the principles to be applied in such a case which required him to take the Crown case at its highest.

In each case, the Director of Public Prosecutions appealed against the directed verdicts pursuant to s 107 of the Crimes (Appeal and Review) Act 2001.

Held: In each case the Court upheld the appeals. In the case of PL, the Court (Bathurst CJ, Simpson and Adamson JJ) held that while the trial judge correctly stated the principles to be applied, his Honour failed to apply them to the facts particularly in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused.

In RMC, the court (Latham, Hulme JJ and Barr JA) was critical of the trial judge’s approach to the issue. It noted, “[i]t is impossible to take the Crown case at its highest when the case is still being presented and the trial judge is not properly acquainted with the detail of the evidence yet to come.” The Court found that the judge appeared to have assessed the case in a light most favourable to the respondent. In fact, the trial judge developed his own theory of the case that virtually exonerated the respondent; a theory that was hypothetical and not based upon the evidence (presented or yet to be presented). Such an approach to the case was antithetical to proper principles that had to be applied.

In both cases, there remained a discretion not to order a new trial but in both cases, new trials were ordered. In the case of PL, he was subsequently convicted of manslaughter. The trial of RMC is yet to be reheard.

Remarks: These cases provide a warning to counsel about the caution needed before accepting the assistance of the overtly supportive judge. It is always necessary to ensure that the proper principles are understood and applied. In the High Court, counsel once put the matter this way in a case in which he had adopted (reluctantly) a submission that was essentially made for him by the Court of Criminal Appeal, “Your Honour, I don’t mind you arguing my appeal (case), but for heaven’s sake don't lose it.” (see R v Puckeridge [1999] HCATrans 353.) It is a phrase worth remembering. Mr Puckeridge had his acquittal for murder overturned in the High Court and subsequently, lost his other appeals.

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