Updates and background for this project (Digest)

EXTRACT 1

Now moving on, I would like to talk about the first count on the indictment – manslaughter. I want to explain what this count entails and what the Crown must prove in order for you to be satisfied of the accused’s guilt. Whilst I think it will be useful to provide you with some information, I’ll direct the jury only very briefly as I don’t want to confuse you. I want to clarify that manslaughter and murder are very different under the law. You of course would understand that in this trial we are not discussing a charge of murder. In regard to proving murder, the Crown would have to prove two elements. Firstly, that a person died as a result of the direct actions of an accused person; but also that the accused had formed an intention to kill that person. So there is a deliberate or intentional act that has caused that death or has caused serious harm to the person. Causing serious harm to the person is known as “grievous bodily harm”.

So a murder charge consists of an element of trying to consider what might have been happening in the mind of an accused person at the time of the event, appreciating their words, their language, their behaviour and trying to discern what may have been the intention in the accused’s mind – so the charge is dependent on the behaviour and whether the person intended to kill the person or to cause them grievous bodily harm. So that’s murder and it is clearly very different from a charge of manslaughter. 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.

Moving on, I want to talk about precise issues for consideration soon but at the moment I’d like to distribute some written directions that you can keep throughout the trial. They are marked as exhibit 10. I’m going to ask you to read this information for yourselves.

(APPARENT PAUSE IN PROCEEDINGS)

Now what I would like to do is explain the information that can be found in document on the various pages to clarify what we are talking about and then we are going to go back to the first page and I will work through the different parts of the paper and explain the various aspects in greater detail.

On the first page we talk about the first count, manslaughter by an unlawful act. Under this initial heading there are 3 specific elements on the page. Have you read these? The Crown must prove these beyond reasonable doubt. In regard to the third element, the act(s) of the accused, there are two further aspects to consider. So, there are essentially 4 parts under the heading on page 1. I will return to these later.

Please turn to page 2 now. The page is titled “Notes re manslaughter by an unlawful and dangerous act”. The phrase directly under the title is “Did cause the death”. This phrase is an extract taken directly from the wording of the first charge. You can see for yourself if you look to the next page. Have a look at page 3 now. It refers to an unlawful act and a dangerous act and definitions are offered about what these mean, clarifying the terminology. I would like to return to these points of information later to discuss them in more detail.

Now if you could turn to page 4 please. The title is “Alternative (count 2) Affray”. This is the alternate, or second option, in charging the accused. In relation to the charge of affray, there are also 3 elements of the count to consider. If you have a look at page 5 the title is “Alternative (count 3) railway charge”. Similarly, this particular alternate charge also requires 3 elements to satisfy this count. This is what the Crown must prove in order to satisfy you beyond reasonable doubt.

So I have concluded my preliminary directions and let’s return to page 1 again. As noted, there are 3 elements on this page in relation to the accused being charged with manslaughter by an unlawful or dangerous act. Please review the language in the introductory passage at the top of the page. This language is critical. The words clearly note that before you can convict the accused of manslaughter by an unlawful and dangerous act you must be satisfied beyond reasonable doubt.

So I am compelled to remind all of you to firstly bear in mind that it is the responsibility of the Crown – that the burden of proof lies with the Crown to make its case in raising these counts against the accused. Secondly, I must stress that the standard of proof required is also significant and must be delivered beyond reasonable doubt.

Now, let’s have regard for the 3 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.

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.

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 victims death. Was the accused’s conduct an act that contributed to the death of the deceased?

In relation to the first question under consideration – we know what the accused did. Later in my summation, I would like to remind you of a few points about the various witnesses that you have heard testimony from, and you’ve also seen evidence in exhibit B from the video footage that was taken at the train station. So, you’ve already seen what actually occurred at the scene at train station.

You’ve also heard both the prosecution and the defence evidence presented during the course of this trial and perhaps you feel you know what actually happened. On many points of fact there is little disagreement in relation to what happened. I’d like to elaborate on this more later, but for now I will note the points of agreement. Both counsel present an agreed position that the victim died and that the accused and the victim didn’t know each other prior to this event – they had never met before. The victim was seated at the train station at the far end of the last row of seats on the platform on platform 7 at Redfern train station waiting for a train which was soon to arrive on platform 6. A train then arrived at platform 7 and the accused person alighted from the train in the vicinity of the victim and sat near the victim. Now at this point some disagreement occurs in terms of the exact location of the parties concerned, but essentially they were in the vicinity of the end of platform 7.

The accused started talking to the victim, using expressions such as ‘what the fuck are you looking at?’ ‘what the fuck are you staring at?’ or something similar. The accused then started to approach the victim and then other people tried to intervene – two women tried to stop the accused from getting any closer to the victim. He broke free from the two women and came closer to the victim and the women then grabbed him again to prevent him from getting too close. He was then straining to pull away from the women. You’ve seen all this on the video footage already.

According to all the witnesses, there is only one different aspect to the testimony. All of the witnesses agreed that no physical contact occurred between the victim and the accused. The accused didn’t actually touch the victim at any time. Now the Crown have stressed this is not part of their case – they are not arguing that the accused assaulted or came into physical contact with the victim. At all times there was a distance between the two groups or the two parties roughly of about two metres, some people have said as much as 10 metres separated the parties, and other people have said somewhere between two to 10 metres. Mr Button, the accused’s solicitor, has said that Mr Mikulic, another witness, more precisely believes it was four to eight metres. Mr Harris, the victim, ignored the taunts from the accused and did not respond to the accused. Of his own accord, he got up and moved to his right, around behind the row of seating and proceeded to walk, not in hurried fashion, to the edge of the platform and then he jumped down onto the train tracks.

This is the point where the testimony starts to differ as to how he got down onto the tracks. It appeared initially he was looking north to the city to see if the train was coming soon. But some other witnesses presented other stories about what happened next, some stating the victim was looking in different directions at this point, including looking back at the group of the people where the accused had remained on platform 6/7. At some time while the victim was still on the tracks a woman on the platform called out to him to say the train was coming. The woman turned to watch the train approaching – it was coming up to platform 5. I believe all the witnesses agree that shortly after the woman calling out that a train was coming that the train signal was sounded very loudly. At that point, most people said that the man quickly tried to get off the tracks at that point as the train was coming. He got to the edge of the tracks, but could not pull himself back up onto the platform in time. He was scrambling up and had his hands up near the edge of the platform and you can see the photos in exhibit F that demonstrate that he was trying to do that when at that point the train struck him and that he died from his serious injuries.

This series of events all happened in a relatively short space of time. You can note the time for yourselves. If you regard the video footage you will see that there is a time and date stamp on the footage, as well as on the photo images of the station happenings. So for example, photo number 3 shows the time of the first train arriving when the accused first alighted and that was at 12.45 and 37 seconds that photo was taken. Then at 12.46 and 5 seconds exhibit photograph E shows the man trying to get up onto the edge of the platform just prior to the train colliding with him.

In my estimation then, and you don’t have to take my word for it, the series of events took place in approximately 28 seconds, or less than half a minute during which all of this occurred.

It is apparent that it was a very short duration of time. How can you make a decision in regard to the first count then? You need to consider the facts of the incident in relation to the first charge. So what the accused did…consider the accused’s behaviour, what he said, and his words to the victim and whether you feel satisfied that this was indeed what occurred.

Now I would like to turn your attention to the second element of count 1. This element is important, in fact critical. The second element of the manslaughter count is in regard to causation – whether the accused’s behaviour contributed to or substantially influenced the victim’s behaviour. Just as in your course of everyday life there is clearly a chain of causation that occurs. You can see that if you do something whereby something else eventuates as a result of an initial incident, that there may well be a causal link between these two matters. You have to consider the context of situations carefully to decide whether the latter result that occurred was linked to the initial incident.

The law operates in a similar fashion. Lawyers must consider a series of events in context to determine whether there is a chain of causation – whether cause and effect are linked. In this example please use your common sense. You must consider the chain of events – whether the incidents that occurred are all linked to one another. Members of the jury, you have to consider your significant legal duty in determining criminal responsibility very carefully. It requires very serious and thoughtful deliberation before making a decision in relation to this matter.

**So, causation may be able to be applied if the accused’s actions did cause the death of the victim, however causation may also play a role in the context of the other alternate counts in this matter which I will address in more detail later.

Counts 2 and 3 do include the question of causation. If you review the written directions in regard to Count 2 – Affray – please have a look now for yourselves by reading page 4. In regard to Count 2, there are three elements that must be satisfied, and the third element makes reference specifically to the accused’s acts and words. Whether these were such as would create a sense of apprehension and cause a person of reasonable firmness, present at the scene, to fear for his personal safety and want to flee the scene. Once again, this element relates to a potential chain of causation – that the actions of the accused may be directly linked to the resulting response of the victim. It must be considered whether such behaviour on the part of the accused would contribute to a sense of trepidation in the mind of a reasonable person. Please approach the question of causation using your common sense, rather than in a technical manner, appreciating you are determining criminal responsibility for serious criminal offences.

Again returning to page 5, the third count is the railway charge and the wording of element 3 makes specific reference to you being satisfied that the accused person made the victim feel a sense of apprehension or fear. That the accused’s conduct then caused the victim to flee and led him to go down onto the train track where he was then struck by a train. You must carefully consider that matter.

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?

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.

In some other cases of manslaughter, the question of causation is sometimes very simple to demonstrate. For example, if someone assaults a person and they die of a head injury from a fall after receiving punch then causation is very easy to prove as the chain of causation is quite evident. Such a case would be relatively simple to determine. This particular case is more difficult and in this case the link of causation may be less evident and is more complex.

Much of the test for chain of causation in this instance is in regard to the response of the victim. You need to consider the reaction of the victim in response to the accused’s conduct. Did the accused’s conduct lead to a well-founded sense of apprehension on the part of the victim? Did he fear physical harm, such that it was reasonable for him to seek to escape? If so, then the fact that the death occurs in the course of that escape does not breach the link in the chain of causation. If the Crown can satisfy you beyond a reasonable doubt that the response of the victim in this situation was reasonable and proportionate with regard to the nature of the conduct of the accused.

So you have to deliberate a few different issues. You have to consider the accused’s conduct – what he did and what he said. Secondly whether his conduct in regard to the victim did a cause a sense of apprehension of assault and in fear of his safety, caused the victim to flee and whether this was a reasonable response in such circumstances. So you must objectively consider whether the conduct of the accused led to the victim’s death, and furthermore whether the response of the deceased was in proportion to the nature of the conduct of the accused and the fear it is likely to have provoked. Would any reasonable person also respond this way in the same situation? Would the members of the jury respond in this manner if in the same circumstances? So, whether the victim’s response was reasonable and proportionate and in line with the response likely from other reasonable persons.

You must take account of all the circumstances, and the short time span in which all this occurred, of only 28 seconds. This includes the way in which a person, fearful for his safety, and forced to react on the spur of the moment, may react.

It may be contextually very different for you to sit comfortably with no time pressures and to ponder at length as to how this person should have reacted. This person didn’t have the luxury of considering over a course of time as to how they might react in this situation but instead made a spur of the moment decision, so you have to try and put yourself in the shoes of the victim who acted very quickly.

It is the responsibility of the Crown to demonstrate the burden of proof beyond reasonable doubt that the accused’s conduct did cause the death of the victim. That the victim’s response was reasonable or proportionate to the nature of the provocation from the accused.

If you are not satisfied the Crown has met its burden, or if you have any doubts at all, you must find the accused not guilty in relation to count 1.

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.

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. The character and personality of the accused is also not relevant to this specific question of law. A lot of people have talked about the character of the accused, but this is not relevant, you must only consider the question of the reasonableness of the response of the victim.

You may well ask me if there is any relevant evidence to consider when trying to establish the character of the parties. I think everyone has agreed or indicated that the victim was a non-confrontational person and was not an assertive or aggressive personality. This particular evidence may be important to consider. So what was it about the accused’s conduct that led the victim to feel a sense of apprehension? When you consider the conduct of the accused, was it to such an extent that a fear for his safety on the part of the victim was reasonable, or was the nature of conduct disproportionate to the response? This is for you to deliberate.

Do you feel that that the accused was behaving sufficiently provocatively, that his personality or the character of the victim was influential in him trying to flee the situation because the accused’s conduct gave him a well-founded apprehension of physical harm and that it was reasonable for him to want to flee the scene? Or is it perhaps the case that the victim did not get up due to the language or the conduct of the accused per se, but rather because the victim’s own personality type meant that he did not want to engage in any confrontational situation.

So that is how the evidence about the emotional substance of the victim may have some relevance in regard to the victim’s character. It may be relevant and indeed important to consider the character of the deceased. He was 44 years of age and had no disabilities. You must consider whether there is a chain of causation between the conduct of the accused and the response of the victim and whether such a response was reasonable and proportionate. Think about the fact that he sought to escape and whether such an action was reasonable enough in the circumstances. Consider his character and his physical fitness.

If it had been a different person, perhaps, for example, someone with a mobility disability would they have responded differently? Two people in the same circumstances may have responded differently. So his body and physical fitness may also be relevant and also his emotional character in being reluctant to court confrontation may also be relevant. Everyone seemed to agree the victim was a passive type of character and that is only relevant to thinking about in regard to his response to his perception of the accused’s conduct and as to whether his apprehension was well-founded. Was his reaction to flee as a result of the accused’s conduct, or due to the influence of his own character type in wanting to avoid the accused? If the victim was fearful that he may be harmed in that situation and the conduct of the accused induced in the victim a sense of apprehension, would other reasonable persons in the same circumstance have felt the same way and reacted in the same way?

Members of the jury, we are approaching lunchtime now and I think it is an appropriate time to adjourn proceedings for lunch. We will close now and we will resume shortly after 2 o’ clock this afternoon. You can take the video with you.

EXTRACT 2

Good morning, members of the jury. When we concluded yesterday, you tendered some issues in a document that has since been labelled exhibit 11. There were some terms noted in the document and I would like to read that for you now and respond to the issues that you presented to me.

The document consists of three sections. The first section requests, can the judge please expand on what is meant by reasonable or proportionate according to the information on page 2 in the notes given to the jury two days ago? These would be the written directions with the heading “Did cause the death”.

The second section of the document I have received from you queries whether you should consider the deceased in this matter, Mr Harris, or other victims generally. Specifically, Mr Harris or other victims generally?

In the third section of the document, you query the issue of apprehension for his personal safety. You ask if you must only consider Mr Harris’s response, or the response of other reasonable persons in the same situation.

In paragraph 5 on page 2, there are some questions also. You asked me three questions at the end of yesterday. I don’t want to answer immediately in relation to some of these particular questions that you have asked. I think I will defer responding to the queries you raise in the first section and instead will address your questions relating to the second section of the document.

In regard to your second question, I will read the information again now to refresh your memory.

Your comments are about the deceased. You ask if the information relates to him specifically or whether it relates to other reasonable persons. In responding to your issues, I have asked my Clerk of Courts to distribute a copy of your queries back to you in case you do not have a copy of the letter you provided to me yesterday so you can re-acquaint yourself with the specific comments.

So to offer you a brief response to your issues…in regard to the middle paragraph on page 2, you ask was there a deliberate act on the part of the accused towards the victim? We will speak more on that point shortly. On my page 2, paragraph 2, it talks about Rodney Kerr, the accused person, and the victim, William Christopher Harris, who is the deceased. I would like to expand somewhat with my response to clarify what I mean and what you need to consider and assess before making your decision. I think it might be valuable to read the written directions again to ensure they are uppermost in your mind in terms of the guidelines I gave you two days ago in regard to causation. It would be helpful to review these once more. I know you may have read these written directions six or more times already, but please have a look at page 2. The sub-heading notes “Did cause the death”. That is the precise wording on the paper.

The Crown must have proved beyond reasonable doubt that the accused’s conduct created a chain of causation that led to the deceased’s death. You must carefully deliberate the causation issue, approaching the question in a common sense non-technical manner. You have to determine criminal responsibility here in regard to a very serious crime. You are charged with the duty of considering whether the act or acts of the accused significantly or substantially influenced the victim by inducing a fear for his personal safety and causing him to flee, which led to his death.

In the following paragraph, you specifically ask question number 2, whether the accused’s conduct induced in the victim a well-founded apprehension of physical harm, and to such an extent that any reasonable person would have felt the same in the same situation and if, in seeking to escape, then the fact that the death occurs in the course of the escape does not break the link in the chain of causation? One issue for determination is whether the victim’s response was reasonable or proportionate in relation to the nature and extent of the accused’s conduct. If the conduct was sufficient to have provoked such fear and apprehension resulting in the person fleeing, then it is.

It would be useful to read in more depth now, and return to this section later for further discussion.

In order to establish a context for the next section, I’d like to read it again for you. In considering whether the victim’s response was reasonable and proportionate in regard to the accused’s conduct, you must take into account all of the circumstances of the matter, including the manner in which any reasonable person fearful for his own safety and forced to react on the spur of the moment may react in the same situation.

The Crown must prove beyond a reasonable doubt that the victim’s response would be in keeping with any other reasonable person based on the accused’s conduct. Maybe the accused’s behaviour created a heightened sense of fear in the victim. If you are dissatisfied and have any doubts at all, you must find the accused not guilty on count 1 of manslaughter. So the specific finding would be “not guilty on count 1”.

Moving on now from the written directions and the chain of causation. If you return to page 2, the middle paragraph talks about the victim, the person that was injured in this instance. I would like to explain the paragraph including the term ‘victim’ has been cited from another case – a matter which appeared in front of the High Court of Australia, the uppermost court of Australia. That is why it has been referred to in this sense. It has simply been adopted from another case and applied in this trial. A judgment in the other matter resulted in a specific test or ruling and, in a legal context, we can use other findings from other trials and cases to provide a test for application across other contexts. So the other trial established a general rule or test about the concept of a ‘victim’ and the ‘accused’ and then that had been used and applied in this case, in relation to the victim and the accused. You must understand this general rule can then be linked to this trial in that Mr Harris is the victim in this instance and Mr Kerr is the accused.

In reading further into the middle paragraph on page 2 in relation to the victim, I note there are a few separate issues that may need to be explained by me more clearly to help you make a decision and to help you understand the decision-making process more comprehensively.

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.

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.

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?

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.

** It certainly 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.

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.

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.

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.

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 to 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 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.

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.

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.

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.

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.

Further, in relation to question 4, you have to think about the context where the event occurred, the situation including how it happened and the fact that it was a very rapid series of events. Consider where people were placed during the incident, and the extent of trepidation experienced by the victim, in being concerned for his personal safety and in being forced to react on the spur of the moment. So you need to deliberate these four main questions. We have many facts available to us. We know the facts, we know the times, we know decisions and the reactions taken.

I’d like to move onto the bottom paragraph on page 2. In reading this, you’ll see that the particular phrasing requires you to consider to decide whether you think the victim’s reaction was a reasonable response and in proportion to the conduct exhibited by the accused. You must take into account all of the factors and circumstances, including whether any other reasonable person would feel the same fear or apprehension and possibly react in the same way that the victim did given the limited time available to him, or not.

That is just referring back to that latter paragraph and offering you a reminder of the point also that you now have the luxury of time and a considered response to this incident – you should not however take your time in considering all of this. You must quickly come to a decision, and ensure in making such a decision that you feel satisfied beyond reasonable doubt that the response was a reasonable and proportionate reaction to the accused’s conduct. Bear in mind the time pressures on the victim at that instant as well and the fact the series of events occurred in rapid succession. Consider whether a reasonable person in the same situation would have reacted in the same way or not.

There is some difficulty with question 2 and question 3, I’ll read question 3 again. Because it is related to the last paragraph on page 2, question number 3 from yesterday that you provided to me refers to a person who fears for their own safety and you ask me if you are to consider this only in relation specifically to Harris or in relation to any reasonable person. My answer to that then is that you have to consider only the specific victim’s response in this case. However, you can objectively consider the situation and apply the test of reasonableness and whether another reasonable person would do the same. You may ask yourself whether the Crown has satisfied you beyond a reasonable doubt that the victim fleeing from the situation was a reasonable and proportionate response to the accused’s conduct. Consider the accused’s conduct and the possible extent of apprehension experienced by the victim.

Returning your attention now to question 1, your first question presented to me from yesterday was “can Your Honour please elaborate on what is meant by reasonable and in proportion?” on page 2. Again, members of the jury, I can advise you that this phase “reasonable and proportionate” has been adopted from findings in other cases. The test used in the High Court of Australia is the test used for this matter and it is a test based on the ordinary man in the street, persons just like you and is a test developed for application in situations such as the matter we have before us now.

If you will recall in summing up, I noted that I wouldn’t like to particularly differentiate between the terms reasonable and proportionate. In essence they are the same. It means that the response was fair enough – that it was what would be expected of any other sensible person in the same situation. Your position as members of the jury carries a grave responsibility. You are representing the wider community. You are the members of the jury selected for this particular trial and therefore are charged with the responsibility of defining the terms reasonable and proportionate and trying to attach meaning to the terms within the context of this trial. It is with your judgment that you may consider what is reasonable and what is proportionate with regard to the facts of the matter in this trial, given the specific context and situation of this case.

Given you are charged with this purpose, I do not want to elaborate any further on defining proportionate and reasonableness because I might add in further terms that may cause some confusion to you or reduce your understanding further. So you really need to consider yourself on how you apply this test in this case without further input from me.

I hope that my answers have been helpful. You are however charged with the responsibility of representing your community and you must use your common sense and apply a community standard as to what you may think would be an appropriate result for this trial. In making your decision you must be satisfied beyond reasonable doubt that the victim’s response was reasonable and in proportion with the nature of the accused’s conduct and that it induced a well-founded apprehension for his safety. I think that concludes my response to your questions.