Updates and background for this project (Digest)

[Note the notation “S” refers to paragraphs in the Judge’s Summation. The notation “BT” relates to paragraphs in the Back Translation]

Key legal concept No 1 – defining “manslaughter”

[S6] Now, this is quite different to the issue that arises in manslaughter. Manslaughter is an unlawful killing falling short of murder. The criminal culpability attaching to manslaughter is less than murder, although it is still a very serious criminal offence. The difference in very broad terms is that you judge whatever are the actions of the accused, not according to what he intended, that is, his subjective state of mind, but rather his words and actions are examined from an objective viewpoint. The measure of responsibility is that of a reasonable person in his position getting off the train at Redfern; what such a person would have appreciated in the circumstances.

[BT3] Manslaughter is not treated the same under the law as murder. Although a person has been killed it is considered a less serious charge than murder. The degree of responsibility linked to the charge of manslaughter is less than that associated with murder. It is still very serious but isn’t treated with the same gravity as a charge of murder. In regard to this difference between the charges, you must only consider the accused person’s behaviour, not form an opinion about his intention, or what might have been going on in his mind, what his views were per se. You can however make a decision about his words, his language, his behaviour. You can objectively step back and analyse his conduct in making your decision. We have to consider the position of any reasonable person alighting from a train in Redfern.

Comment: The issue of the difference between murder and manslaughter, that being the mens rea or intention to commit a crime is accurately translated. However, the “reasonable person test is not well-translated. The summation clearly directs the jury to consider “the measure of responsibility being that of a reasonable person stepping off a train at Redfern”. The back translation states, “You can however make a decision about his words, language, his behaviour”. Although, the use of the word “objectively” is used in the very next sentence, I am not sure that the average juror would understand the term “objectively” without the use of the example of the reasonable person. I think this is a problem in this part of the translation.

Key legal concept No 2 – the first element of manslaughter

[S14] Let me go to the elements, and you will see that the first element is “that William Christopher Harris died”. There is, of course, no issue that Mr Harris died at the Redfern railway station at 12.49 pm on 27 October 2002, having received multiple injuries after having been struck by a train. Indeed, that is an agreed fact in exhibit O, I think it is the first agreed fact. So clearly element 1 will occasion you no difficulty.

[BT11]Now, let’s have regard for the three elements in count 1. William Christopher Harris died. This first part of the manslaughter charge is a given – there is no question that he is deceased. We know that he died at Redfern train station at 12.49 pm on 27 October 2002. He suffered multiple injuries after being hit by a train. We all agree on that fact it is noted in exhibit marked “0”. So, at the outset we can concede the first point in count 1 of the indictment.

Comment: No problems here.

Key legal concept No 2 – the second element of manslaughter

[S15] Let me move at once to element 2. You will see it there: “2: That his death was caused by the deliberate attack or attacks of the accused”, and deliberate in this context simply means voluntarily or willed as opposed to something that may happen by mistake or accident or something that is a reflex action, something that is not willed. It is not being suggested by Mr Button on behalf of Mr Kerr that the actions of his client were not deliberate in that sense, but it is a matter in respect of which you must be satisfied beyond reasonable doubt.

[S16] Now, this second element, I should say, really involves two questions, and indeed, both questions are important, you may think fundamental, to this trial. The first concerns the actions of Mr Kerr. Exactly what did he do or say? What were his acts? And the second issue is concerned with causation. Whatever Mr Kerr may have said or done, can it be said that that caused the death of William Christopher Harris?

[BT12] The second part of this count is whether his death was caused by the deliberate act of the accused. Meaning that he wilfully caused the action as opposed to it being a mistake or an accident. I’m not suggesting that Mr Button (the accused’s solicitor) said that his client did or didn’t deliberately perform this act, but you need to consider this question and decide for yourself beyond a reasonable doubt in making a judgment in this matter.

[BT13] Further to this second part to count 1. There are two key issues or questions in relation to this part, and both questions are very important. You have to consider these carefully, they may appear to be very basic points but they are integral to this trial. The first key issue relates to the act or acts of the accused. What was his behaviour? What did he do? What did he say? What was his conduct? The second pertinent issue is in relation to chain of causation - whether the accused’s behaviour can be directly linked to the victim’s death. Was the accused’s conduct an act that contributed to the death of the deceased?

Comment: The only comment here would be the subtle difference between the summation referring to acts that “caused the death” of the victim compared to the back translation that refers to acts that “contributed to the death” of the victim. An act or acts that contribute to someone’s death is different to an act or acts that cause someone’s death. The accused may have contributed to the death but his act may not have caused the death.

Key legal concept No 3 – test of “causation”

[S25] But returning to count one, that is the count dealing with manslaughter, an event may have a number of causes. The Crown is not obliged to prove beyond reasonable doubt that the conduct of the accused was the only cause leading to death; for instance, the action of the train was plainly one of the causes and indeed the immediate cause of death. So what does “cause” mean in this context? The test is whether or not the act or the acts of the accused significantly or substantially contributed to the death of the deceased. So that even if you were to find that the deceased himself, by his actions, contributed to his own death, it would not follow that the accused cannot be convicted. The question in that circumstance would be, notwithstanding the contribution to his own death made by the deceased himself: Can it be said that the Crown has established to your satisfaction beyond reasonable doubt that the conduct of the accused significantly or substantially contributed to the death of the deceased?

[BT27] According to the written directions I would now like to return to count 1 again, the charge of manslaughter. It is possible that the victim’s death was as a result of many factors. The burden isn’t on the Crown to prove beyond a reasonable doubt that the accused’s behaviour was the only cause leading to the victim’s death. For example, the train was actually what caused the death of the victim, quite obviously, so the nature of causation, what is it really?

[BT28] You have to consider whether the accused’s conduct significantly and substantially contributed to, and ultimately caused, the death of the deceased. The deceased himself by his own conduct of getting onto the tracks clearly contributed to the final result of death, however the accused can end up with a jail sentence in relation to this charge. Naturally the victim shouldn’t have jumped onto the tracks in front of an oncoming train. You have to be satisfied then beyond a reasonable doubt that the accused’s conduct significantly influenced the victim’s response and caused the victim’s death.

Comment: There is a major problem here. The summation clearly leaves the interpretation of the evidence to the jury – “So that even if you were to find that the deceased himself, by his actions, contributed to his own death…” whereas the back translation makes an assumption about the interpretation of the evidence – “The deceased himself by his own conduct of getting onto the tracks clearly contributed to the final result of death…”. A judge never tells the jury how to interpret evidence. The jury are called “the tribunal of fact” because their job is to establish whether the facts support the charge. The judge is the “tribunal of law” and determines questions of law that help the jury in their job of only assessing admissible evidence. The translation would indicate to the deaf juror that the judge has already decided this issue and, therefore, the jury should follow suit.

Key legal concept No 4 – defining “reasonable” and “proportionate”

[S30] When I use the phrase “reasonable or proportionate”, I am not seeking to draw a distinction between those two words. That is simply the formula that is traditionally used, but it embodies essentially the one concept; that is, the concept of reasonableness. It is an objective test. It is looking at the flow of events, the conduct of Mr Kerr, the response of Mr Harris, and asking is the latter a reasonable and proportionate response to the former such that the former can be said to be a cause. If it was not reasonable or proportionate, then there was a break in the chain of causation.

[S31] So that you can see from the statement that the issue does not depend upon Mr Kerr’s view as to what he thought Mr Harris might do. It is an objective view; nor does it depend upon the character of the deceased. It is an objective view based upon what the deceased did in response to the threat made to him, if you find that there was such a threat.

[BT36] I say reasonable or proportionate not necessarily because I want to differentiate between the two. We have to think about the notion of reasonableness and what is reasonable to the regular person and what they might do in the same situation. The concept of reasonableness is a test as to what people might do – it is an objective test, not a subjective test of what you might think, but an objective assessment of the situation. Ask yourself, was the victim’s response reasonable in regard to the nature of the accused’s conduct. If the answer is ‘yes’, then you may consider the accused did cause the death of the victim. However, if you consider the victim’s reaction to the accused unreasonable and disproportionate then this would mean the events are not causally linked and you cannot make a determination of guilty.

[BT37] How to solve the problem doesn’t depend on the accused’s view of what he thinks he would do. It’s a more detached objective view. Your decision also doesn’t depend on the victim’s character or personality. You must distance yourself from judgments about that. You have to consider only the victim’s response to the conduct of the accused and whether you feel there was a chain of causation occurring there ...

Comment: The back translation is better, in terms of plain English, than the summation! The only minor comment is that the summation asks the jurors to consider first if there was a threat at all – “It is an objective view based upon what the deceased did in response to the threat made to him, if you find that there was such a threat” whereas the back translation assumes there was a threat, although I admit the language is not conclusive.

Key legal concept No 5 – clarifying the written directions: what did the accused do?

[S46] Analysing that paragraph, that middle paragraph speaking of the victim, you will see that it gives rise to a number of separate issues, and I think an analysis of that paragraph might clarify the way in which you should go about your task. The first issue is: What did the accused do? What did he do or say? I do not think it is in the least controversial, having heard counsel’s addresses, although this is a comment from me, to say that whatever he did appeared on the evidence to be directed at Mr Harris, and Mr Harris is, in the context of those actions of the accused, the victim. So that is the first thing, you have to make up your mind as to exactly what he did. What exactly was it that he said and did, and that is really the first issue, and that is the bedrock of whatever inquiry you make which affects other issues further down the track.

[BT58] The first issue is the accused’s conduct - what did he say, what did he do? I think it would be agreed and will not be a point of contention because the counsel for both parties have already given their address on this, but this is my opinion, that the evidence in this matter points to the accused clearly directing his actions against the victim. All would agree that the victim was directly targeted, so you need to consider what exactly did the accused say, what exactly did the accused do? That is the primary issue for you to consider and is the most important factor in the decision-making process in regard to other considerations you must later make in that it is the first issue to contemplate.

Comment: The summation leaves the question of what the accused did to the jury. The judge goes close to commenting on the truth of the evidence but ultimately leaves it to the jury by opining – “ I do not think it is in the least controversial …” whereas the back translation states on this issue, “All would agree that the victim was directly targeted …” This important difference is the difference in leaving facts for the jury to determine and the judge directing the jury on accepted facts – accepted by him and by implication the jury.

Key legal concept No 6 – clarifying the written directions: did the accused’s actions give rise to a well-founded apprehension of physical harm?

[S47] The second issue is whatever he did, did it give rise to a well-founded apprehension of physical harm? In other words, was it reasonable that Mr Harris should have been fearful of physical harm at the hands of Mr Kerr? That is an objective matter, not a subjective matter. Let me explain what I mean by that. It does not depend upon the reaction of Mr Harris, the determination of that issue. That is, whether personally he was in fear; rather, it is a matter for you to determine whether objectively a reasonable person in his position would have been in fear having regard to what you find were the acts of Mr Kerr directed at Mr Harris.

[S48] That is not to say that Mr Harris’s reaction to whatever happened on the station at Redfern is irrelevant to your determination, but it does not conclude the matter. It is not determinative, it does not determine the outcome. You must stand back, having determined in your own mind what you believe Mr Kerr did or said on that platform, and say to yourself: Well, was it reasonable that a person confronted by that in that situation, that geographical situation, that end of the platform, that time of the day, that situation, was it reasonable that a person confronted by those actions, words and actions, should have been apprehensive of physical harm, should have had, to use the phrase which appears in that middle paragraph, a well-founded apprehension of physical harm? So that is the second issue.

[BT59] The second issue for you to carefully deliberate is whether the accused’s conduct – regardless of whatever that may have been – induced in the victim a sense of apprehension of physical harm and concern for his personal safety, and whether such extent of fear provoked was reasonable in regard to the extent and nature of the accused’s conduct.

[BT60] It is an objective test, not a subjective consideration but an objective view of the chain of events. I will elaborate on what I mean by this. In considering the victim’s reaction and his sense of fear, was the person himself the kind of person that would experience trepidation more than any other reasonable person? If it was another person in the same place of this particular victim would they have responded in the same way? Would another reasonable person have felt the same extent of trepidation should the accused’s conduct be directed at them?

[BT61] It doesn’t mean that the victim’s own reaction to the incident at Redfern train station isn’t important – certainly his reaction in this instance is important to regard.

[BT62] ** It certainly it isn’t a quick decision you can make but it was a spur of the moment decision for the victim in the circumstances that led on to other consequences.

[BT63] It is an objective assessment of the situation. You must consider the victim’s response and judge objectively whether you think that whatever the accused’s conduct and actions may have been, and given what he did and what he said, that the victim in listening and observing the conduct of the accused felt sufficiently threatened in that place at the end of that platform at that time of night or day in the same situation would a reasonable person when experiencing that conduct or in hearing that language feel the same extent of trepidation as Harris did? Using the same language from the text, was there a ‘well-founded apprehension of physical harm”? That is essentially the second issue for you to deliberate.

Comment: The order of the translation is problematic here. The following sentence, “In considering the victim’s reaction and his sense of fear, was the person himself the kind of person that would experience trepidation more than any other reasonable person?” should have appeared at the end of BT59 not mid-way through BT60. It confuses the subjective with the objective test. The summation had it in the right order. I do not think it is hugely damaging because the objective test is clarified, particularly in BT63 – it is just a bit confusing.

Key legal concept No 7 – clarifying the written directions: was it reasonable for the victim to seek to escape?

[S49] The first issue is what Mr Kerr did. The second issue is, whatever he did, did that give rise to a well-founded apprehension of fear of physical harm. Then you get to the third issue, which is a related issue, and it comes from the phrase which you will see in that paragraph “such that it was reasonable for the victim”, that is Mr Harris, “to seek escape”. Again, that is an objective matter, and it depends upon reasonableness. Was it reasonable for a person in the position of Mr Harris, having been confronted by that conduct, having felt that fear of physical harm, to seek to escape? That is the next issue, the third issue, being reasonableness and escaping.

[BT64] So the first issue is in regard to what Mr Kerr did or didn’t do, and the second issue is, regardless of what he did, whether then his behaviour was causally linked to the fear for personal safety on the part of the victim.

[BT65] The third issue is perhaps related to the first two concerns. It comes from section 2 again, meaning whether it was reasonable for the victim to have felt his only course of escape was to do what he did. Again, this is an objective test. You are not a subjective party in this incident. You need to consider whether the course of action was appropriate in that situation, that as the accused approached the victim and as the sense of apprehension on the part of the victim developed to such an extent that he was fearful of his personal safety given what he was hearing and what he was seeing. That he was fearful of physical harm and that this led him to react in the way that he did by fleeing. That is essentially the third key issue for you to consider, how reasonable it was for him to seek to escape.

Comment: The use of the word “causally” in BT64 is wrong – again not hugely damaging but confusing as the issue of well-founded apprehension of fear is not determinative alone of the issue of causation – it merely contributes to the issue of the presence of causation. Otherwise, no problems.

Key legal concept No 8 – clarifying the written directions: was the method of escape reasonable and proportionate?

[S50] The fourth issue assumes to some extent that you answered the question: Well, that is what he did, that is the fear he felt, ‘yes’ or ‘no’ it was reasonable. If you felt it was not reasonable for him to want to escape, then that would be the end of that, but if you believed it was reasonable for him in that circumstance to seek to escape then you come to the fourth issue. This is the issue which concerns the mode of escape. We know the mode of escape chosen by Mr Harris was to cross the tracks to safety on platform 5. We know that in doing that he met his death. But what the Crown must prove beyond reasonable doubt is that the death was caused by the conduct of the accused, and what that paragraph in the middle which is the subject of your questions says, there will be a break in the chain of causation, unless the Crown satisfies you beyond reasonable doubt that the response of Mr Harris in choosing to cross the tracks to the safety of platform 5 was reasonable or proportionate, having regard to the conduct of the accused and the fear it is likely to have induced, so you are going back to the conduct of the accused and the fear it is likely to have induced.

[S51] Again, that is an objective inquiry. It is a question of reasonableness. It is a question of your view as to whether that was reasonable or proportionate for him to do, he having chosen to escape. It is a matter for your judgment as to whether that was reasonable or proportionate, having regard to the conduct of the accused and the fear that it induced.

[BT66] The fourth matter for you to consider is dependent on how you answer whether it was reasonable for him to feel such a sense of fear and to try and escape. Perhaps you consider it was reasonable to seek escape given the circumstances. However, you may feel it was not reasonable for him to try to escape – that his apprehension wasn’t well-founded or that it was based on a weakness in the character of the victim, then you do not need to consider the matter any further.

[BT67] However, if in regard to the third issue, that you do believe his sense of apprehension was well-founded, and that it was legitimate for him to seek a route of escape from the situation due to the accused’s conduct, then you do need to consider a fourth issue.

[BT68] The fourth issue is essentially how the victim chose to escape and what his possible options for escape were. We know how he ultimately decided to flee – he jumped down onto the train tracks, perhaps in an endeavour to cross the tracks and to reach the next platform along, platform 5. We know that’s how he died, whilst on the track. However, the Crown must prove beyond a reasonable doubt that the deceased’s death occurred as a result of the accused’s conduct.

[BT69] The paragraph in the middle of page 2 addresses a question to me as presented yesterday afternoon. The question is in regard to if you are not satisfied that the victim’s death was caused by the accused’s actions. The Crown must satisfy you beyond a reasonable doubt that the victim’s decision to flee to safety over on platform 5 was reasonable and was substantially caused by the accused’s conduct, which induced a well-founded apprehension in the victim. Once again then we return to the initial consideration of the accused’s conduct in this instance and whether the victim’s apprehension was reasonably induced from the acts of the accused.

[BT70] Again it is an objective test. A consideration taking into account all the circumstances and the notion of ‘reasonableness’. Your perception of whether the victim’s response was reasonable and in proportion with the nature of the accused’s conduct, leading to his decision to escape, is important. Members of the jury, it is for you to decide whether the response in seeking to escape was reasonable and proportionate having regard to the nature of the conduct of the accused and the fear it is likely to have provoked.

Comment: The reference to the victim escaping because of a “weakness in character” in BT66 is wrong and was not mentioned in the summation. This is an objective test not an assessment of the victim’s character as to whether it was reasonable to escape the threat posed by the accused. Otherwise, no problems.