R v Castaneda (No. 3)

1. [1]

   On 15 July 2015 the accused was arraigned before a jury panel on an indictment charging her with the murder of Gregory Peck, on 22 February 2013, at Cecil Hills in the State of New South Wales.

2. [2]

   On 21 July 2015, at the end of the Crown case, I acceded to an application from her to direct the jury to return a verdict of not guilty to that charge. I declined an application to give the jury a direction in accordance with R v Prasad (1979) 2 A Crim R 45; (1979) 23 SASR 161, with respect to the alternative charge of manslaughter.

3. [3]

   These are my reasons for those decisions.

4. [4]

   This is a case in which the issue of self-defence has always loomed large. The Crown case in summary is that, after an argument between the accused and the deceased, her de facto partner, at the couple’s home on the late evening of 22 February 2013, the accused inflicted a single stab wound to Mr. Peck’s chest. The wound penetrated some fifteen centimetres into the body, penetrating Mr. Peck’s heart. The wound was of a type that was unlikely to be survivable, even if medical treatment had been rendered immediately. Although the accused immediately contacted the triple 0 emergency operator, and ambulance officers arrived at the location very quickly, Mr. Peck was declared dead at 12.30am on 23 February 2013 after his arrival at hospital.

5. [5]

   The accused was arrested at the scene and taken to the Green Valley Police Station. She was subsequently charged with Mr. Peck’s murder.

6. [6]

   The Crown opened its case to the jury in this way.

7. [7]

   It was the Crown’s contention that it would prove to the requisite standard that the accused stabbed Mr. Peck, not in self-defence but in retaliation or in anger, which has not been borne out by the evidence.

8. [8]

   In support of the application for a directed verdict Mr. Strickland, senior counsel for the accused, referred to particular aspects of the evidence led in the Crown case which raised the issue of self-defence, something which he submitted the Crown had failed to negative.

The Evidence

1. [9]

   The evidence of Dr. Johan Duflou, the forensic pathologist who examined Mr. Peck post mortem, was that Mr. Peck died as a consequence of a single stab wound to the left side of the chest, which passed from the front of the body, through the cartilage of the fourth rib, through the upper lobe of the left lung, and through the heart, ending in the lower lobe of the left lung. The wound tracked slightly downwards and slightly to the left, although its path relevant to a body in motion as opposed to rigidly upright could not be determined.

2. [10]

   Such a wound when inflicted by a knife with a sharp point, as was the case here, would require a minor amount of force. If the deceased had been moving forward towards the accused at the time, it may have been inflicted with no force used by the accused (T291:23). The depth of the wound could be accounted for, at least partially, by the deceased falling onto a table with the knife in his chest, causing deeper penetration, a scenario put to and accepted by Dr. Duflou as a reasonable possibility (T292:38).

3. [11]

   Dr. Duflou noted some other, trivial injuries, but these appear to have no particular relevance.

4. [12]

   The deceased had a blood alcohol level of about 0.15 grams per 100 millilitres, a figure familiar as the high range prescribed concentration of alcohol. He also had a condition commonly known as “fatty liver” which is frequently associated with the excessive consumption of alcohol over an extended period.

5. [13]

   In a telephone call to a triple 0 emergency operator shortly before 11.42 on the evening of 22 February 2013 the accused told the operator,

6. [14]

   She later said,

7. [15]

   In the recording of the call played to the jury the accused’s state of distress was plain. She repeatedly asked the operator to help her, and repeatedly asked that the ambulance hurry. At one point, in the context of some instruction from the operator concerning first aid, Ms. Castaneda told the operator,

8. [16]

   During the conversation she also said,

9. [17]

   The first police to arrive at the Cecil Hills address were Senior Constable Gavin Richardson and Constable Sarah McMurtrie. The officers arrived at 11.51 that night. They could hear a woman’s voice calling for help. They saw the accused at the rear of the premises on a patio area kneeling beside Mr. Peck, holding a bloody towel to his chest.

10. [18]

    Constable McMurtrie asked the accused where the knife was, and she indicated its location, on the grass in the back garden. When asked who had stabbed Mr. Peck she said, “I did” (T102:45). She also said,

11. [19]

    In saying “that”, the accused demonstrated a motion to the officer, replicated by Constable McMurtrie in evidence, where her left arm was held up with her left hand held palm outwards in a gesture such as that used by a police officer when signalling to traffic to stop. Her right hand was held in a fist as if clasped around something, at about chin level, with the hand advancing in a slightly forwards motion. This demonstrated the movement, holding a knife, Ex. F, that led to the infliction of the fatal wound.

12. [20]

    To Senior Constable Richardson, the accused said that she and Mr. Peck had been in the kitchen arguing. She said,

13. [21]

    She later added,

14. [22]

    The balance of the conversation was recorded by another officer on a mobile telephone. The recording and a transcript were tendered as Ex. C. The accused told Senior Constable Richardson,

15. [23]

    The accused was arrested, taken to Green Valley Police Station, and admitted into custody. She asked officers there to contact her former husband on her behalf, and David Jancovic subsequently attended the police station and sat with the accused. She told him,

16. [24]

    Mr. Jancovic saw an injury to Ms. Castaneda’s forehead.

17. [25]

    Consistent with Ms. Castaneda’s claim that the deceased had his hands on her throat choking her prior to the stabbing was evidence from Clinton Cochrane, a senior forensic biologist who examined various samples from the crime scene, the deceased, and the accused. Mr. Cochrane extracted DNA from a swab taken from the accused’s neck and found it to be a mixture of the DNA of two individuals. The major component of the mixture was, as might be expected, DNA consistent with that of the accused. The minor component was DNA consistent with that of the deceased.

18. [26]

    Mr. Cochrane deposed that one method by which the deceased’s DNA could have been deposited on the accused’s neck was by contact between the deceased’s hands and the accused’s neck, leaving skin cells behind. Because skin cells are not a high yielding source of DNA, a degree of friction or the forceful or prolonged application of the deceased’s hands would be necessary to deposit the amount of DNA found there. Alternatively, Mr. Cochrane said it was possible that DNA could have been deposited at the high level noted, by the accused touching her neck and thereby transferring the deceased’s blood from her hands to her neck. Mr. Cochrane deposed that this route of deposition was possible even where no blood was visible on the neck where it was swabbed, as was the case here.

19. [27]

    In photographs which are part of Ex. A, areas of discolouration can be seen on the accused’s neck. Photograph 29 of Ex. A appears to show an area of mottled skin on the right side of the accused’s throat, whilst photograph 30 shows an area of redness on the left side of her throat, at about the level of the top of the shoulders. These photographs of the accused were taken by police at around 8.15 on the morning of 23 February 2013.

20. [28]

    There was evidence in the Crown case of acts of previous violence to which the accused was subjected by the deceased.

21. [29]

    In March 2010 there had been a violent argument between the couple, and the deceased had placed the accused into what he referred to as a “sleeper hold”. According to Dr. Duflou a sleeper hold is where the victim’s neck is placed between the forearm and the upper arm of the person administering the hold, such that the victim’s neck is wedged into the inner crook of the arm. Such a hold can lead to unconsciousness within ten to fifteen seconds, and there is a risk of death (T293 – 294).

22. [30]

    The police had been called to this incident and the deceased had acknowledged placing the accused into a sleeper hold, he said to restrain her when she hit him. Senior Constable Alice Kula saw an injury to the accused’s neck and knee, and photographs were taken (Ex. 4). A statement was obtained from the accused, and details of her statement were given in evidence (T306 – 307). Her allegation against the deceased included an allegation that he had choked her to the point where she felt unable to breathe. The deceased was arrested by police but later released without charge. An interim Apprehended Domestic Violence Order (“ADVO”) was obtained by the police for the accused’s protection.

23. [31]

    On 2 September 2012 the police were again called to attend the accused’s shared residence with the deceased. Although it was the deceased who contacted police on that occasion, when Constable Michael Johns arrived at the scene at about 2.30 that morning his observations of Mr. Peck were such that he sought and obtained an interim ADVO for the protection of the accused. A copy of the order was tendered as Ex. 2.

24. [32]

    Constable Johns deposed that the deceased was intoxicated; he smelled of alcohol and was unsteady on his feet. Mr. Peck told the officer that the accused had given him “a soft push” (T228:38). He said there had been an argument about the television being too loud, at a time when the deceased was watching grid iron football.

25. [33]

    The accused told Constable Johns,

26. [34]

    The accused also expressed her concerns about the increased consumption of alcohol by the deceased.

27. [35]

    There was additional evidence as to the accused’s accounts to others, such as Mr. Peck’s maternal aunt, of his heavy drinking and repeated acts of violence towards her. She had made complaint from time to time to her former husband, the police, and Judy Carr.

28. [36]

    There was other evidence of the deceased’s acts of violence towards a former girlfriend, Ms. Lucas. This evidence was admitted because Ms. Lucas had, in e-mail and Facebook messages, told the accused that the deceased had been violent and abusive to her during the course of their relationship. It was also relied upon by the accused to establish a tendency of the deceased to violence towards his partners when drinking.

The Applications

1. [37]

   It was Mr. Strickland’s submission that there was nothing in the evidence led by the Crown which was capable of establishing beyond reasonable doubt that the accused had not acted lawfully, in that the issue of self-defence within the meaning of s.418 of the Crimes Act 1900 had been raised but not negatived.

2. [38]

   It was submitted that the Crown had failed to establish each element of the charge of murder, and the accused was entitled to a verdict of not guilty with respect to that charge.

3. [39]

   Mr. Strickland submitted that a Prasad direction relevant to both murder (should the application for a directed verdict fail) and manslaughter should be given in any event.

4. [40]

   The Crown opposed the applications. With respect to the application for a directed verdict for murder, the Crown argued that the evidence capable of negativing the s.418 issue was to be found in the purported differences in the accounts of the stabbing given by the accused to various individuals. The Crown contended that the versions given to the emergency operator, to Senior Constable Richardson, and to Mr. Jancovic were very different, and the differences, of themselves, negatived self-defence.

Consideration

1. [41]

   A trial judge must direct a jury to acquit an accused person if, at the conclusion of the Crown case, the evidence is as a matter of law incapable of proving the offence charged. A jury may only be directed to return a verdict of not guilty if there is a defect in the evidence advanced in support of a finding of guilt which is such that, taken at its highest, the evidence will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207; R v LK [2010] HCA 17; 241 CLR 177.

2. [42]

   A directed verdict cannot be given simply because the trial judge views the evidence as unsatisfactory, or considers that a verdict of guilty would be unsafe: R v R (1989) 18 NSWLR 74 at 85.

3. [43]

   The principles set out in Doney at 214 – 215 are,

4. [44]

   The charge of murder alleged against the accused requires the Crown to prove that, at the place and on the date averred,

   1. (1)

      The accused did a deliberate act which caused the death of Gregory Peck;

   2. (2)

      When she did that act, the accused intended to kill Mr. Peck or to cause him grievous bodily harm (reckless indifference not being relied upon by the Crown); and

   3. (3)

      That the accused’s act was done without lawful excuse.

5. [45]

   The accused does not dispute the first element.

6. [46]

   Although she disputes the second element, and contends – as she told the emergency operator – that she did not mean to stab Mr. Peck, the act itself in these circumstances is evidence which could establish that element of the charge. It is open to the jury to infer the necessary intent from the act of striking out at the chest area or upper body of another person when armed with a large and very sharp knife.

7. [47]

   It is the third element where the evidence falls short, as the accused contends.

8. [48]

   Section 418 of the Crimes Act 1900 provides, relevantly,

9. [49]

   Self-defence will be negatived where the Crown proves beyond a reasonable doubt that either,

   1. (1)

      The accused did not believe at the time of the act causing death that it was necessary to do what she did in order to defend herself, or that

   2. (2)

      The act was not a reasonable response in the circumstances as the accused perceived them to be.

10. [50]

    In the call to the emergency operator, Ex. B, the accused raised the issue of self-defence, within what must have been no more than seconds to a minute of the stabbing, telling the operator that she acted from fear, believing her partner was going to hit her. The detail given to the operator was brief, and in response to questions from the operator. It is clear from listening to the conversation that the accused’s primary concern was for Mr. Peck, and to do what she could to get aid to him as quickly as possible. The account she gave of the stabbing was neither thorough nor considered.

11. [51]

    The account to Senior Constable Richardson is not different to the account to the Triple 0 operator; it simply adds detail, again in response to questions. This conversation reflects its different purposes rather than revealing anything which could of itself or in combination with other evidence negative self-defence. Unlike the emergency operator, whose focus was on the patient, and keeping the caller calm, the police officer was seeking information as to what had happened and why. He asked questions directed to obtaining that information, as well as directed to keeping the accused as calm as was possible given what he believed to be the state of shock that she was in (T127:05). Senior Constable Richardson obtained greater detail than did the operator as to the circumstances surrounding the stabbing, but the detail was not inconsistent with that given to the emergency operator. The greater detail simply added to and developed the issue of self-defence.

12. [52]

    In her conversation with her former husband, some relatively short time later, at Green Valley police station, the accused gave an account that was not identical in its terms to those to the emergency operator or Senior Constable Richardson but, again, nothing she said to Mr. Jancovic was inconsistent with or different to her earlier accounts of the stabbing. The context and circumstances of this third conversation were different to the previous conversations; here, Ms. Castaneda was speaking with someone close to her for solace, rather than answering an official’s questions. Mr. Jancovic did not record the conversation in any way, and gave his account of it as his best recollection of what was said.

13. [53]

    In my judgment, the account given by the accused to her ex-husband was not in any way inconsistent with the earlier accounts; it was simply a partial account of the incident.

14. [54]

    The differing level of information provided to the persons to whom the accused spoke in the period immediately after the stabbing cannot rebut self-defence; to the contrary, it is these assertions by Ms. Castaneda, in conjunction with the other evidence of earlier acts of violence by the deceased towards Ms. Castaneda that raises self-defence so prominently.

15. [55]

    The Crown emphasised the accused’s recounted act of getting a knife and submitted that such an act was not done in self-defence.

16. [56]

    I do not accept that submission because it presupposes that this event occurred in instalments, rather than as a rapidly devolving and fluid incident. There was, on the evidence, no break in either time or atmosphere that means that the accused’s act of taking up a knife should be seen divorced from what had gone before, that being on the evidence both a physical assault and the threat by conduct of a further assault. The incident involved continuous action, with no temporal gap between the deceased’s act (as recounted by the accused) of choking her and the stabbing, and no lessening in the pervasive atmosphere of threat that was perceived by the accused and conveyed by her to those with whom she spoke.

17. [57]

    On the whole of the evidence led in the Crown case, the knife was taken up as a direct response to the deceased’s act of choking the accused, and from fear that more was to come. There is simply no evidence to sustain the Crown’s opening comments to the jury that the evidence would establish that the accused stabbed the deceased in anger, or as retaliation after all danger had passed.

18. [58]

    Having considered the evidence very carefully, and even taking the Crown case at its highest as one must, I am unable to identify any evidence capable of negativing the self-defence issue by proving beyond reasonable doubt that the accused was not acting in her own defence, as contemplated by s.418 of the Crimes Act 1900. Other than the asserted “differences” in the accounts given by the accused to others, the Crown can point to none.

19. [59]

    The Crown having opened on the common law alternative of manslaughter, on the basis of what is generally referred to as excessive self-defence, that charge remains for the jury’s consideration and determination.

20. [60]

    Mr. Strickland asked for a Prasad direction to be given in relation to that charge.

21. [61]

    Such a direction is a direction to the jury that a verdict of not guilty can be returned at any time after the close of the Crown case without hearing any further evidence, or the addresses of counsel and the summing up by the trial judge. It is a direction rarely given, and generally only where there is significant fragility to the Crown case.

22. [62]

    I do not regard this as a case where a Prasad direction should be given.

23. [63]

    I do not consider the Crown case to be a compelling one in any sense, but nor is it as frail and lacking in cogency as would militate in favour of the direction (or invitation, as it is sometimes termed) being given.

24. [64]

    Additionally, concepts of self-defence and the reasonableness of the degree of force employed in response and the like are, in my opinion, not straightforward or, perhaps more properly, they are made complex by the way in which the law defines and applies them. The jury will in my view benefit from the addresses and summing up, even if there is no further evidence.

25. [65]

    On that basis I declined to give the Prasad direction to the jury.