From: AAP February 14, 2011 2:59Pm
All charges dropped … Benjamin McCall was accused of the manslaughter of his brother Kristen in a fight outside Clovelly RSL.
CHARGES against a man accused of killing his older brother in a fight on Anzac Day have been dropped.
Benjamin McCall’s solicitor said the result came as a relief to the long-suffering family, who had accepted the death of his brother Kristen in 2009 as a “tragic accident”.
Kristen, 32, died in Prince of Wales Hospital, Randwick, four days after he was allegedly punched in the face in the fight with Benjamin, now 28.
He suffered serious injuries and went into cardiac arrest when he was hit shortly after the pair left Clovelly RSL, in Sydney’s eastern suburbs, on April 25, police alleged.
Staff had asked Kristen, who had been drinking at the venue, to leave about 8.45pm and his brother had joined him. An argument between them soon escalated.
Benjamin was charged with manslaughter and recklessly causing grievous bodily harm.
A committal hearing began last year but at Sydney’s Downing Centre Local Court today, solicitor Nick Borosh, for the Director of Public Prosecutions (DPP), sought leave to withdraw all charges against Mr McCall.
“The director has reconsidered the matter,” he said.
Magistrate Clare Farnan then dismissed each of the offences.
Mr McCall’s solicitor said the DPP had decided to drop the case after an application was made “upon evidence from pathologists and other witnesses”.
The issue of self-defence was raised and another problem for the prosecution was determining the cause of death.
“The precise cause of death was very much left in some doubt and the prosecution at all times bears the onus of proof beyond reasonable doubt,” his solicitor said outside court.
“The family didn’t want action taken against Benjamin and they accepted it as a tragic accident.
“Not only were they dealing with the prosecution of one son, they were dealing with the death of another.
“There are no winners when a person passes away. It has been a very terrible time for Benjamin and his mother in particular.”
Mr McCall, who was on bail, did not appear in court today.