Bushell v The King - [2025] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bushell v R [2025] NSWCCA 23
Hearing dates: 26 February 2025
Date of orders: 26 February 2025
Decision date: 07 March 2025
Before: Davies J at [1]
Lonergan J at [77]
Yehia J at [78]
Decision:
1. The Court grants leave to the appellant to add Ground 4 of the Grounds of Appeal in accordance with the document filed 25 February 2025.
2. Grant leave to appeal.
3. Uphold the appeal.
4. Quash the conviction of the appellant in the Supreme Court.
5. Quash the aggregate sentence imposed by the Supreme Court on 17 November 2023.
6. Order a new trial on a count of manslaughter.
7. Stand the matter into the Supreme Court arraignment list on 7 March 2025.
8. Stand over counts 1, 2 and 3 on the sentence indictment to the arraignment list on 7 March 2025 along with the retrial of the manslaughter.

Catchwords:
CRIME – appeals – appeal against conviction – where the applicant and co-accused were charged with murder – where the Crown case was that the deceased died because one or other or both of the applicant and co-accused injected the deceased with drugs – where jury initially directed that if deceased self-injected the applicant was not liable – where trial judge permitted Crown to broaden its case after jury sent out to deliberate – whether trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing – where jury redirected inconsistently with IL v The Queen - where there can be no liability for the applicant for manslaughter in accordance with IL – conviction and sentence quashed – new trial ordered

Legislation Cited:
Crimes Act 1900 (NSW) s 18
Crimes (Appeal and Review) Act 2001 (NSW) s 107
Drug Misuse and Trafficking Act 1985 (NSW) ss 12, 13, 14, 19

Cases Cited:
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
Moussa v R [2017] NSWCCA 237
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
R v IL [2016] NSWCCA 51
R v IL (No 2) [2014] NSWSC 1710
R v Bushell (No 18) [2023] NSWSC 1454

Texts Cited:
Nil

Category: Principal judgment
Parties: Daniel Bushell (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Quilter & C Feiner (Applicant)
B Hatfield SC & C Brain (Respondent)
Solicitors:
Jamieson Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/127752 & 2018/229735
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

17 November 2023

Before:

Rothman J

File Number(s):

2017/127752 & 2018/229735

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant and John Tozer were charged with the murder of Ricky Ciano and tried jointly. The jury was discharged in the case…

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 Bushell v The King

Details

AGLC: Bushell v The King [2025] NSWCCA 23
Case: [2025] NSWCCA 23
Decision Date: 07 March 2025

CaseChat Overview and Summary

In Bushell v The King, the applicant and his co-accused faced charges of murder, with the Crown alleging that they caused the deceased's death by injecting him with drugs. The case was brought before the court after an appeal against the conviction, focusing on whether the trial judge correctly allowed the jury to consider the possibility of the applicant's guilt for manslaughter if the deceased self-injected the drugs. The High Court was tasked with determining the legality of the trial judge's decision to permit the Crown to expand its case and whether the jury's direction was inconsistent with established legal principles.

The central legal issue in this case revolved around the trial judge's allowance of the Crown to alter its case after the jury had been sent out to deliberate. Specifically, the court had to decide whether the trial judge erred by enabling the jury to convict the applicant of manslaughter in the event that the deceased self-injected the drugs. Furthermore, the court examined whether the jury's redirection was in accordance with the principles established in IL v The Queen, which set out the conditions under which an individual could be held liable for manslaughter when the deceased self-administered the lethal substance.

The court found that the trial judge's decision to permit the Crown to broaden its case after the jury had been sent to deliberate was improper. The High Court held that there could be no liability for the applicant for manslaughter in the circumstances presented, following the principles established in IL v The Queen. Consequently, the conviction and sentence were quashed, and a new trial was ordered. The court emphasised the importance of adhering to established legal principles and ensuring that a defendant's right to a fair trial is not compromised by any procedural errors.

Orders