R v Meakin (No. 2)

An issue has arisen about whether reckless indifference should be left to the jury as a basis for the charge of murder. In opening the case, the Crown said this:

On the third day of the trial, the jury asked for advice on the elements of count 2 on the indictment. During debate with counsel about the wisdom of acceding to that request at such an early stage, the Crown Prosecutor said this, at 209, line 36:

On the sixth day of the trial, I raised with counsel, at the outset, about the inclusion or otherwise of reckless indifference. The Crown Prosecutor said, at 270, line 24:

My own view at that stage was that reckless indifference was available. Counsel for the accused opposed it being left to the jury.

Further debate took place after the completion of the evidence yesterday. Mr Brady, for the accused, continued to oppose it being put, particularly because of the complications which would arise in relation to intoxication. He submitted that, although there was no issue from the accused's intoxication that he had the capacity to form an intention to hit the deceased, there was an issue about intoxication when it came to the issue of foreseeability of harm from the reckless act. He said that if reckless indifference was led, he would say that the accused lacked the capacity to turn his mind to the likelihood of something occurring.

The Crown submitted that reckless indifference was available on the evidence. He drew attention particularly to what was said by Simpson J in Campbell v R [2014] NSWCCA 175 at [311] that in many cases there is very little, if any, difference between an act done with intention to kill or inflict grievous bodily harm and doing an act in the recognition that it would probably cause death.

The Crown put to the accused, as an alternative proposition, that he had driven at Mr McEvoy in order to scare him. The accused denied that. There was no other evidence in the case suggesting such an occurrence.

Consistently with the Crown's opening, the case against the accused is that he deliberately hit the deceased with his van either to kill him or at least to cause him grievous bodily harm. The principal issue for the jury's determination is whether the Crown has established that matter or whether, as the accused says, the deceased suddenly stepped in front of his van on the roadway.

It does not seem to me that there is any room for what may be regarded as the slightly less morally culpable act - see McHugh J in Royall v The Queen (1991) 172 CLR 378 - of hitting the accused with reckless indifference to the probable consequences; The Queen v Crabbe (1985)156 CLR 464.

I consider that leaving reckless indifference is likely to confuse the jury and to distract them from the relatively straightforward decision on the principal issue referred to. Whilst I doubt the correctness of Mr Brady's submission regarding the distinction between the capacity to form the intention to kill or commit grievous bodily harm, on the one hand, and to foresee the probable consequences of a deliberate act of driving a van at a pedestrian - see in that regard R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 - submissions made to the jury about the accused's intoxication in that regard are likely to create confusion where there is no primary evidence suggesting that this event arose as a result of a reckless act.

I accept that it is necessary for the jury to be advised about the possibility of an alternative verdict of manslaughter based on an unlawful and dangerous act, being an attempt to scare the deceased by the manner of driving, but that does not require murder on the basis of reckless indifference to human life to be left to them, and I rule accordingly.