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Baker v The King

Baker v The King

Case [2023] NSWCCA 262 18 October 2023

Manslaughter by Neglect

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Baker v R [2023] NSWCCA 262
Hearing dates: 28 July 2023
Date of orders: 18 October 2023
Decision date: 18 October 2023
Before: Beech-Jones CJ at CL at [1]
Harrison J at [122]
Wright J at [125]
Decision:
(1)   Extend the time in which the applicant may seek leave to appeal against her conviction and sentence up to and including 15 July 2023;
(2)   Grant the applicant leave to appeal against conviction;
(3)   Dismiss the appeal against conviction;
(4)   Grant the applicant leave to appeal against sentence; and
(5)   Dismiss the appeal against sentence.

Catchwords:
CRIME — appeals — manslaughter by neglect — judge alone trial — applicant voluntarily assumed care of former partner who suffered serious health conditions from cancer diagnoses — deceased suffered two strokes and experienced protracted neglect — deceased hospitalised and suffered third stroke days before death — two experts emphasised multi-factorial nature of death and opined deceased’s cachexia and ulcers had contributed to and hastened death — third expert identified direct cause of death as third stroke caused by deceased’s cancer — third expert considered cachexia and ulcers as “separate ongoing parallel problems” to strokes — applicant convicted and sentenced to 5 years imprisonment with non-parole period of 3 years — appeal against conviction — unreasonable verdict — whether it remained a “reasonable possibility” that deceased’s death occurred independently of his cachexia and ulcers — proposition that the deceased died from third stroke with no relevant contribution from his cachexia (or ulcers) no more than a bare possibility — third expert’s opinion that recovery from the third stroke was “highly unlikely” because of deceased’s cachexia and ulcers appeared to implicitly accept it was also highly likely those conditions hastened his death — overall effect of evidence leads to overwhelming conclusion deceased’s cachexia and ulcers made a significant contribution to the hastening of death — causation proven beyond reasonable doubt — appeal against sentence — manifest excess — comparative cases and present sentence do not establish a sentencing range for manslaughter by neglect — sentence not manifestly excessive having regard to sentencing judge’s finding of “high seriousness” — leave to appeal against conviction and sentence granted — appeals dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code (WA)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
BW v The Queen [2011] NSWCCA 176; (2011) 218 A Crim R 10
Dansie v The Queen (2022) 247 CLR 651; [2022] HCA 25
Krakouer v Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Magro v R [2020] NSWCCA 25
Mohana v R [2023] NSWCCA 61
R v Blackledge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Evans (No 2) [1976] VR 523
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Loveridge [2014] NSWCCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v The King

Details

AGLC: Baker v The King [2023] NSWCCA 262
Case: [2023] NSWCCA 262
Decision Date: 18 October 2023

CaseChat Overview and Summary

The applicant, Baker, appealed against his conviction and sentence for manslaughter by neglect. The case was heard in the court of appeal, which had to determine the legality of the conviction and sentence. The applicant had voluntarily taken care of his former partner, who had serious health conditions resulting from cancer diagnoses. The deceased suffered two strokes and experienced prolonged neglect, which ultimately led to her hospitalisation and a third stroke, ultimately causing her death. The appeal against the conviction hinged on whether it was a reasonable possibility that the deceased's death occurred independently of her cachexia and ulcers. The court concluded that the deceased's cachexia and ulcers made a significant contribution to the hastening of her death, and therefore, the causation was proven beyond reasonable doubt.

The appeal against the sentence focused on whether it was manifestly excessive. The court considered that there was no established sentencing range for manslaughter by neglect and that the present sentence did not fall outside the range. The sentencing judge had found the offence to be of high seriousness, and the sentence was not manifestly excessive. The court granted leave to appeal against both the conviction and the sentence but ultimately dismissed both appeals. The court found that the applicant's conviction for manslaughter by neglect was lawful, and the sentence was appropriate given the circumstances of the case.

Orders