Director of Public Prosecutions v O'Connell (No 4)
[2023] ACTSC 173
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v O’Connell (No 4) |
Citation: | [2023] ACTSC 173 |
Hearing Date: | 6 June 2023 |
DecisionDate: | 7 June 2023 |
Reasons Date: | 10 July 2023 |
Before: | Baker J |
Decision: | (1) I decline to direct the jury that it would be open to them to return a verdict of manslaughter by criminal negligence. |
Catchwords: | CRIMINAL LAW – whether manslaughter on basis of criminal negligence as well as unlawful and dangerous act should be left to jury – whether unfairness arise if manslaughter by criminal negligence left to jury |
Legislation Cited: | Crimes Act 1900 (ACT) |
Cases Cited: | Bullard v The Queen [1957] AC 635; [1961] 3 All ER 470 Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim R 201 Gilbert v The Queen [2000] HCA 15; 201 CLR 414; 74 ALJR 676 Gillard v The Queen [2003] HCR 64; 219 CLR 1; 78 ALJR 64 James v The Queen [2014] HCA 6; 253 CLR 475 Martinez v The Queen; Tortell v The Queen [2019] NSWCCA 153 Mraz v The Queen (1955) 93 CLR 493; ALR 929 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Jackson [1993] 4 SCR 573; 86 CCC (3d) 385 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 R v Keenan [2009] HCA 1; 236 CLR 397 R v Nghia Trong Nguyen (Ruling No 2) [2010] VSC 442 R v Pullman (1991) 25 NSWLR 89; 58 A Crim R 222 |
Texts Cited: | Judicial Commission of New South Wales, Criminal Trials Courts Bench Book |
Parties: | ACT Director of Public Prosecutions ( DPP) M O’Connell ( Accused) |
Representation: | Counsel M Smith ( DPP) J White SC and S McLaughlin ( Accused) |
| Solicitors ACT DPP ACT Legal Aid ( Accused) | |
File Number: | SCC 251 of 2022 |
Publication Restriction: | Nil |
BAKER J:
Introduction
By indictment dated 26 May 2023, accused, Michael O’Connell, was charged with one count of murder. He pleaded not guilty to that count.
Prior to the commencement of the trial, the Director of Public Prosecutions sought leave to amend the indictment so as to expressly include the statutory alternative of manslaughter, pursuant to s 49 of the Crimes Act 1900 (ACT). The amendment of the indictment was opposed by the accused. Ultimately, the parties agreed that the Director would not press his application for formal amendment of the indictment, but that the prosecution would be permitted to rely on manslaughter as a statutory alternative to the count of murder on the indictment pursuant to s 49 of the Crimes Act.
In brief, the Crown case is that the deceased died when she fell from the bonnet of a dual cab utility, which the accused was driving, at approximately 4:00am on 15 April 2022. Both in pre-trial proceedings, and in his opening address to the jury, the prosecutor limited the case of manslaughter to an allegation of manslaughter by unlawful and dangerous act.
At first, the prosecutor sought to particularise the ‘unlawful act’ as an allegation of negligent driving and/or dangerous driving contrary to ss 6 and/or 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). However, after consideration of the decisions in Pullman v R (1991) 25 NSWLR 89, R v Borkowski [2009] NSWCCA 102 and R v Nguyen (No 2) [2010] VSC 442, the prosecutor particularised the ‘unlawful act’ as one of assault (specifically, that the accused drove with the deceased on the bonnet of his dual cab utility, with the intention that she would fall from the vehicle and collide with the roadway). The accused accepted that it was open to the prosecution to particularise the ‘unlawful act’ in this way.
However, on 6 June 2023, which was the last day of the evidence in the prosecution case, the prosecutor raised a question as to whether manslaughter by criminal negligence should also be left for the jury’s consideration. This course was strongly opposed by Mr White SC, who appeared for the accused.
On 7 June 2023, I declined to direct the jury that it would be open to them to return a verdict of manslaughter by criminal negligence. These are my reasons for so ordering.
The party’s submissions
Both parties agreed that it was necessary for the jury to be directed to consider an alternative verdict of manslaughter by unlawful and dangerous act if the jury were not satisfied beyond reasonable doubt that the accused was guilty of murder. The issue between the parties concerned whether both manslaughter by unlawful and dangerous act and manslaughter by criminal negligence must be left to the jury to consider.
The prosecutor submitted that, although the prosecution did not advance a case of manslaughter by criminal negligence, the Court may fall into error if manslaughter by criminal negligence was not also left to the jury. In support of this submission, the prosecutor relied on the decision of the New South Wales Court of Criminal Appeal in Martinez v R; Tortell v R [2019] NSWCCA 153 (“Martinez and Tortell”).
This course was strongly opposed by Mr White SC, who appeared for the accused. Mr White SC emphasised that the prosecution had never advanced a case of manslaughter by criminal negligence, and submitted that there was “no fair basis” to permit such a case to be left at the conclusion of the prosecution case. Mr White SC drew a distinction between “leaving manslaughter [to the jury] and leaving it on two bases”, emphasising that the case had not been run by the prosecution as a criminal negligence manslaughter case.
10. Mr White SC further submitted that there was no viable case of manslaughter by criminal negligence. He contended that an act of driving with the deceased on the bonnet of the dual cab utility does not constitute “such a significant falling from standards of care as to give rise to liability by criminal negligence”.
11. Mr White SC expressed concern that should the jury be left with the option to consider manslaughter by criminal negligence in the absence of such a case having been run by the prosecution, there may be a possibility of the jury wrongly concluding that a verdict of manslaughter by criminal negligence could be established in the present case by inadvertence or by compromising their verdicts.
12. The prosecutor responded that these risks may be alleviated by expressing the ‘unlawful act’ in “very particular terms” together with “the most strongly worded direction”. In particular, the prosecutor submitted that the jury could be instructed that they would be duty bound to acquit the accused of manslaughter on either basis if they were not satisfied beyond reasonable doubt that the accused was driving the vehicle across the distance driven, knowing the deceased was on the bonnet.
Consideration
13. I do not accept Mr White SC’s submission that there is no viable case of manslaughter by criminal negligence. In my view, it would have been open to the jury to conclude that an act of driving with the deceased on the bonnet of the car, knowing that the deceased was on the bonnet, would (if established beyond reasonable doubt) constitute such a significant falling from standards of care as to give rise to liability by criminal negligence. Indeed, it may be noted that it is more usual for manslaughter charges that arise from driving offences to be particularised as manslaughter by criminal negligence, rather than as manslaughter by unlawful and dangerous act: Pullman v R at 97, R v Borkowski at [12] and R v Nguyen (No 2) at [25].
14. However, the prosecutor did not open on a case of manslaughter by criminal negligence. Rather, as outlined above, at all times prior to the trial, and until the conclusion of the prosecution case, the prosecution limited its case on manslaughter to an allegation of manslaughter by unlawful and dangerous act.
15. The prosecution did not seek to change its case at this late stage of the prosecution. The prosecutor expressly characterised his submission as a “warning” rather than an “application”. That is, the prosecutor submitted that the Court may fall into appellable error if I did not instruct the jury as to the availability of both forms of manslaughter. It is to this issue that I now turn.
16. It is well-established that, at common law, a trial judge in a murder trial is required to direct the jury to consider an alternative verdict of manslaughter if a ‘viable’ case is available on the evidence. Such a course is necessary even if the possibility of a manslaughter verdict has not been raised by any party, and even if the accused objects to manslaughter being left to the jury: James v The Queen [2014] HCA 6; 253 CLR 475 at [19] – [23]; Gilbert v R [2000] HCA 15; 201 CLR 414 at [102]; Gillard v The Queen [2003] HCA 64; 219 CLR 1 at [133]; and R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [75].
17. The duty to leave manslaughter to the jury as an alternative to murder, regardless of the forensic decisions of counsel, is a product of the development of the law of homicide: NSW Judicial Commission Criminal Trials Courts Bench Book at [2-205]. Specifically, when murder attracted the death penalty, appellate courts “took account of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict”: Gilbert at [14]. In more recent times, the concern of juries may be with “victims of violent crime, and their relatives”: Gilbert at [17]. Bearing in mind these matters, the duty to leave manslaughter to a jury recognises that “a jury may be hesitant to acquit, and may be glad to take a middle course which is offered to them”: Gilbert at [17], citing Mraz v the Queen (1955) 92 CLR 493 at 513. See similarly, Gilbert at [101] and Gillard at [27]. For this reason, the duty does not extend to alternative verdicts for offences other than murder. For offences other than murder, the test is “what justice to the accused requires” in the circumstances of the case: James at [34]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at [138]. For offences other than murder, fairness will not necessarily demand that an alternative verdict be left: James at [33] (“Fairness in such a case may favour that an accused’s chances of outright acquittal on the issues joined not be jeopardised by the trial judge’s decision to leave an alternative verdict”).
18. The recognition that the jury should be permitted to chart a “middle course” in respect of an allegation of murder does not require that manslaughter be left to the jury on the basis of criminal negligence over the objection of an accused in circumstances where manslaughter is left to the jury on the basis of unlawful and dangerous act. There is nothing in the decisions of the High Court in James, Gilbert or Gillard which require that more than one “middle course” be left to the jury.
19. It remains necessary to consider the decision of the New South Wales Court of Criminal Appeal in Martinez and Tortell, which the prosecutor submitted requires that manslaughter be left to the jury on more than one basis where multiple bases are viable. Martinez and Tortell in turn followed the decision of the High Court in Nguyen v The Queen [2010] HCA 38; 242 CLR 491. It is convenient to consider the decision in Nguyen before considering Martinez and Tortell.
20. The High Court’s decision in Nguyen concerned an appellant (Mr Nguyen) and two co-offenders, who were each convicted of murder and attempted murder following a jury trial before the Supreme Court of Victoria. The Crown alleged that Mr Nguyen and the co-offenders had attended a flat with the intent of collecting a debt owed for heroin. Upon entry, the three demanded to know where the debtor was. Mr Nguyen was holding a Samurai sword. Another co-offender (Mr Ho) produced a gun and fired two shots. The first shot hit an occupant of the flat who survived the injuries. The second shot hit an occupant of the flat who died as a result of the wound inflicted.
21. On appeal, the Victorian Court of Appeal held that the jury’s verdicts of murder and attempted murder in respect of Mr Nguyen were unsafe and unsatisfactory and ordered that verdicts of acquittal be entered in respect of both counts. The Victorian Director of Public Prosecutions appealed to the High Court. Mr Nguyen cross-appealed, alleging that the trial judge had erred by not sufficiently leaving manslaughter to the jury. The High Court upheld the Director’s appeal against the Court of Appeal’s finding that the verdicts were unsafe and unsatisfactory. However, the Court also upheld Mr Nguyen’s cross-appeal, accepting that manslaughter had not been sufficiently left to the jury.
22. Specifically, whilst a possible verdict of manslaughter had been left to the jury by the trial judge, the trial judge instructed the jury that a verdict of manslaughter was only available in respect of Mr Nguyen if Mr Ho was found guilty of manslaughter (Nguyen at [43]). In other words, the jury were instructed that if Mr Ho were found guilty of murder, Mr Nguyen was either guilty of murder or not guilty of any crime (Nguyen at [44]).
23. The High Court unanimously accepted Mr Nguyen’s contention that a verdict of manslaughter would have been open even if Mr Ho were found guilty of murder. In particular, the Court accepted that it would have been open to the jury to reach a verdict of manslaughter if they were satisfied that Mr Nguyen knew of the presence of the gun before the shootings occurred and was a party to a plan that violence would be threatened to recover a drug debt (the purpose, however, being to do no more than to cause harm falling short of really serious injury): Nguyen at [45] and [46]. The Court concluded (at [49]) that “[i]t was wrong not to leave manslaughter as an available verdict against [Nguyen] even if Bill Ho was guilty of murder”.
24. Martinez and Tortell concerned two co-offenders (Martinez and Tortell) who were alleged to have engaged in a fight with the deceased. The deceased was wounded in this altercation (count 2). The deceased ran away. The Crown case was that both Martinez and Tortell chased him. The deceased was subsequently found deceased on a driveway, after having sustained eight stab wounds to his body.
25. Martinez and Tortell were each charged with murder (count 1) and wound with intent to cause grievous bodily harm (count 2). In respect of count 1, the Crown case was that whilst it was “most likely” that it was Tortell who inflicted the fatal stab wounds, regardless of who inflicted the wounds, both co-accused were guilty because they were acting jointly with the “desire to cause serious harm” to the deceased: Martinez and Tortell at [34].
26. Both Martinez and Tortell were convicted of murder. In respect of count 2, Martinez was convicted of the statutory alternative (reckless wounding in company) and Tortell was acquitted.
27. As in Nguyen, the trial judge had left manslaughter to the jury, but only on a limited basis. Specifically, the trial judge instructed the jury that there was “one basis” upon which a verdict of manslaughter could be returned; namely, if the jury “found that the person who inflicted the fatal stab wounds on [the deceased] did not intent to kill or really seriously injure him”: Martinez and Tortell at [49]. In other words, as in Nguyen, a verdict of manslaughter would not have been available in respect of an accused who did not inflict the fatal stab wounds if the jury was satisfied that the person who inflicted the fatal stab wounds intended to kill or seriously injure the deceased.
28. Martinez and Tortell each contended that the trial judge had erred in so limiting the availability of a verdict of manslaughter.
29. The New South Wales Court of Criminal Appeal (“NSWCCA”) accepted Martinez and Tortell’s contention that manslaughter should not have been so limited. In so finding, the Court relevantly held that:
(i) The possibility of returning a verdict of manslaughter should be left to the jury if the verdict is “reasonably open on the evidence”, that is where there is any evidence upon which a verdict of manslaughter could reasonably be given: Martinez and Tortell at [78(4)];
(ii) The absence of a request by an accused’s counsel for the possibility of a manslaughter verdict to be left to the jury, or even opposition to that occurring, does not relieve the trial judge of the duty to take that course if such a verdict is reasonably open on the evidence: Martinez and Tortell at [78(6)]; and
(iii) That the trial judge has left to the jury the possibility of returning a verdict of manslaughter on a particular basis does not preclude a complaint on appeal that the trial judge should have left it to the jury on some other basis: Martinez and Tortell at [78(7)], citing Nguyen.
30. After examination of the evidence, Meagher JA (with whom R A Hulme and Adamson JJ agreed) held that it was open to the jury not to be satisfied as to the identity of the assailant (at [79]), and that it was also open to the jury to have concluded that “the Crown had not excluded as a reasonable possibility that any agreement between [Martinez] and [Tortell] was for the infliction of a lower level of violence than grievous bodily harm” (at [85], see also at [83]). His Honour concluded (at [85]):
Verdicts of manslaughter were therefore open on the evidence before the jury. The possibility of returning them, on the basis to which I have referred, ought to have been left to the jury. This is so notwithstanding that there was no request by counsel to that effect.
31. As can be seen from the above, the decisions of the High Court in Nguyen and the NSWCCA in Martinez and Tortell each held that the trial judge had erred in failing to leave manslaughter on a different basis to that proposed by counsel at trial.
32. However, it is important to take into account the specific context in which those findings were made. Nguyen and Martinez and Tortell both concerned cases of joint criminal liability. Importantly, in both Nguyen and Martinez and Tortell, manslaughter had only been left to the jury in the event that a particular factual finding was made in respect of the co-offender: specifically, that the person who inflicted the fatal injuries did not intend to kill or to inflict grievous bodily harm on the deceased. In both cases, manslaughter was effectively removed from the jury’s consideration in the event that the jury held that the principal offender did not have that intent.
33. The courts in both Nguyen and Martinez and Tortell held that this direction was in error because it would have been open to the jury to make a finding of manslaughter even if the person who inflicted the fatal injuries intended to kill or to inflict grievous bodily harm. In other words, those decisions concerned a direction in which a viable verdict of manslaughter was effectively removed from the jury’s consideration in the event that a specific factual conclusion was reached by the jury in respect of the liability of a co-offender.
34. Neither Nguyen or Martinez and Tortell is authority for the proposition that every viable form of manslaughter must be left to the jury in every case. Such a rule could only overcomplicate the already difficult task of instructing the jury as to the real issues in the case: see similarly James at [29]. Rather, Nguyen and Martinez and Tortell should be seen as limited to cases in which directions would have the effect of removing a viable verdict of manslaughter in the event that a specific factual conclusion is reached by the jury in respect of the liability of a co-offender.
35. In contrast to Nguyen and Martinez and Tortell, in the present case, the jury’s consideration of a possible verdict of manslaughter by unlawful and dangerous act is not conditioned upon the jury reaching a particular verdict in respect of a co-offender. Indeed, in the present case manslaughter by criminal negligence could only be left on essentially the same factual basis as manslaughter by unlawful and dangerous act. Specifically, as the prosecutor acknowledged, a verdict of either manslaughter by criminal negligence or manslaughter by unlawful and dangerous act could only be returned if the jury were satisfied that the deceased was on the bonnet of the accused’s car and the accused was aware that the deceased was on the bonnet of the car at the time that she fell and sustained the fatal injuries.
36. I acknowledge that, unlike manslaughter by unlawful and dangerous act, manslaughter by criminal negligence would not require a finding that the accused had an intention that the deceased fall from the vehicle and collide with the roadway. However, to establish manslaughter by criminal negligence, it would be necessary for the prosecution to satisfy the jury that the circumstances involved such a great falling short of the standard of care which a reasonable man would have exercised and involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. In these circumstances, I do not consider that declining to leave manslaughter by criminal negligence would deprive the jury of a realistic “middle course”.
37. Most importantly, as Mr White SC submitted, in the present case, there would be real unfairness in introducing the possibility of a verdict of a manslaughter by criminal negligence at this late stage of the prosecution. It would have the effect of introducing an additional pathway to guilt on the statutory alternative at the conclusion of the prosecution case, that additional pathway having at all times been disavowed by the prosecution.
38. The introduction of this additional pathway to guilt by the trial judge may increase the risk that jurors will be confused by the directions: see similarly James at [48]. As Mr White SC submitted, there is a risk that the jury may misunderstand the directions, and wrongly conclude that a verdict of manslaughter by criminal negligence could be established in the present case by inadvertence (which was not the case alleged by the prosecution). There is also a risk that any such confusion may cause the jury to compromise their verdicts.
39. The principles enunciated by the High Court in cases such as Gilbert, Gillard and James are concerned with fairness to the accused. In the present case, I was satisfied that fairness to the accused required that the jury only be directed as to manslaughter by unlawful and dangerous act and that manslaughter by criminal negligence should not be left for the jury’s consideration.
Orders
40. For the above reasons, I declined to direct the jury that it would be open to them to return a verdict of manslaughter by criminal negligence.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 10 July 2023 |
0
4
0