Case facts

The accused, who was ultimately charged with police charges of manslaughter and recklessly inflict grievous bodily harm, was the brother of the deceased. On one of the various public holidays of the year, he went to a family function in a suburban park with his family and his brother. Both brothers enjoyed numerous alcoholic drinks over a 5 hour period. Adult members of the extended family together with some close friends went to a local hotel, then to a club to continue celebrating the holiday.

Dress regulations came into force at the club in the evening. The accused was asked to leave as his footwear did not meet the appropriate standard – he was wearing thongs. He left the club to go home and change.

Whilst he was away from the club, his brother, the deceased, was becoming quite intoxicated and disinhibited. Other patrons at the club complained to security staff, and he was asked to leave. A friend rang the accused to ask him to come and get his brother as he was being escorted from the club. The accused went straight back to the club and saw his brother standing outside. They walked together for a short distance, ending up on the corner at the nearest intersection.

The deceased, intoxicated and probably upset at being asked to leave the club, was arguing with his brother when he swung a punch. The brother responded by punching his brother once in the face. From the subsequent autopsy, it is known that the force of the punch was not significant enough to cause injury – however, the brother fell to the ground and hit his head on the kerb, receiving a contra coup skull fracture in an unconscious state, and soon stopped breathing and went into cardiac arrest. He was resuscitated by passers-by and ambulance personnel, but remained gravely ill.

People in a passing car claimed to have witnessed the brothers wrestling prior to the accused punching his brother. The accused was heard to say, “I hit him, I hit him.” The injured brother was taken to hospital for emergency surgery. Police set up a crime scene and cautioned the accused that he did not have to say anything, but anything he did say could be used in evidence. He told police that he was arguing with his brother and punched him in self-defence.

The accused was arrested and conveyed to the local police station. He was read and explained his rights under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The accused was given a telephone to call his solicitor who provided legal advice. This was made all the more difficult due to the fact that the brother was greatly distressed and upset, wanting to be at the hospital with his brother, but unable to do so. Given his mild intoxication, level of upset and what he had already said to police, it was imperative that he understood his right to silence. He declined to be interviewed and was subsequently charged with recklessly causing grievous bodily harm pursuant to section 35(2) Crimes Act 1900 (NSW).

The injured brother underwent emergency surgery for a serious head injury. A surgical swab was accidentally left inside the skull following the operation, forcing surgeons to operate again to remove the swab. During the second operation, the deceased lost approximately a litre of blood. He remained on life support for days and his condition never improved, leading to life support being turned off and life being pronounced extinct. Police then laid a further charge of Manslaughter pursuant to section 18(1)(b).


Potential penalties

Manslaughter carries a potential period of imprisonment of 25 years. Recklessly cause grievous bodily harm carries a maximum penalty of 10 years imprisonment


Brief of evidence

The police brief of evidence contained statements from eyewitnesses to the exchange of punches as well as an autopsy report prepared for the coroner, a toxicology report, and statements from participants in the day’s activities involving both brothers.

It was obvious from the brief that there was conflicting evidence as to the incident prior to the deceased being injured; a significant blood alcohol reading of the deceased (above 0.300 or what some would call more than 6 times the legal limit); evidence that following brain surgery a swab had been left inside the skull requiring further urgent surgery involving significant blood loss; and potentially 2 or more causes of death.

Importantly, a neuropathological report showed that the primary brain lesions connected with the blunt force head injury were considered relatively minor and not of a kind that would have inevitably resulted in death. It was also noted as being possible that the high blood alcohol level may have resulted in cardiac arrhythmia and cardiac arrest. Finally, it was indicated that possible blunt force to the chest near the heart may have caused a sudden disturbance of the heart rhythm and cardiac arrest.

On the basis of the contents of the police brief, we made application pursuant to section 91 Criminal Procedure Act to cross examine a number of witnesses at a Local Court committal hearing.


Committal hearing

The charging of the accused compounded the grief for the family – having lost one member tragically, and with the pressures and risks of serious criminal charges with the potential to result in a prison sentence, the hurt suffered by the family was palpable. We were able to properly advise our client that the prospects of defending both charges were excellent, though that did not ease their pain.

It was always said by the accused that his brother had swung a punch at him and that he had defended himself. The post mortem confirmed bruising to the knuckles on one hand of the deceased. Careful cross examination of the eyewitnesses soon revealed that their versions were markedly different, unreliable, and that their opportunity to observe was hampered by the movement of the car they were in, shrubs at the side of the road, the time of night, lack of lighting and the fact that they were not particularly paying attention to what the two men were doing. They were honest witnesses, but any opinions expressed in their statements were shown to be unreliable and largely unfounded.

The pathologist was called to give evidence and be cross examined. The cause of death could have been from the high alcohol reading leading to cardiac arrest. It could have been from commotion cordis leading to cardiac arrest. The injury to the brain appeared from the contra coup skull fracture seemed insufficient to cause death, and the surgical procedure and missing swab did not cause death.

The onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. We did not have to rely on self defence. The cause of death could not be attributed to the accused. The prosecution ultimately and properly conceded that it could not prove its case and the magistrate discharged the accused.


Why Nyman Gibson Miralis?

We have an accredited criminal law specialist with the experience to assist people charged with serious charges – in fact with all police charges. Whilst we were confident from the beginning and especially after receiving and studying the police brief of evidence, the Director of Public Prosecutions chose to prosecute the matter. Without a dedicated and professional criminal defence lawyer taking all appropriate steps to defend the matter, it could have gone to trial by jury. Instead, we saved our client from the cost of a trial, the associated worry and the continued disruption to his life.



Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. 

Contact us if you require assistance.