Director of Public Prosecutions v Singleton
[2010] VSC 428
•20 September 2010
| IN THE SUPREME COURT OF VICTORIA | ||
| AT MELBOURNE | Not Restricted | |
CRIMINAL DIVISION
S CR 2010 00040
| DPP |
| v |
| DANIEL ROBERT SINGLETON |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 15 September 2010 | |
DATE OF RULING: | 20 September 2010 | |
CASE MAY BE CITED AS: | DPP v Singleton | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 428 | |
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CRIMINAL LAW – Manslaughter by unlawful and dangerous act – Meaning of “dangerous” – Whether realisation of appreciable risk of really serious injury required – R v Holzer [1968]VR 481 – Wilson v R (1992) 174 CLR 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B F Kissane | Office of Public Prosecutions |
| For the Accused | Mr A R Lewis | Michael Brugman Solicitors |
HER HONOUR:
Mr Singleton has been charged with manslaughter by unlawful and dangerous act in relation to the death of Mr Nathan Alsop. It is alleged that he punched Mr Alsop in the head shortly before he died. The prosecution says that this blow was unlawful and dangerous.
There is an issue between the parties about the proper description of the meaning of the adjective “dangerous” for the purposes of the proof of the elements of manslaughter by unlawful and dangerous act.
Counsel for Mr Singleton argues that to be properly classified as “dangerous”, his client’s act must have been one which a reasonable person would have realised exposed another or others to an appreciable risk of really serious injury, as opposed to serious injury. The prosecution responds that the word “really” does not form part of the description of that element of the crime.
Counsel for Mr Singleton argues that Smith J correctly stated the test in R v Holzer[1] when he said:
Authorities differ as to the degree of danger which must be apparent in the act. The better view, however, is I think that the circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of really serious injury.[2]
[1][1968] VR 481.
[2]Ibid, at 482.
The parties agree that, in Wilson v R,[3] the majority of the High Court approved the Holzer description of the requisite dangerousness of the unlawful act. They disagree as to whether the High Court also held that it was inappropriate for the qualifier “really” to form part of the description of the dangerous act in all cases of alleged manslaughter by unlawful and dangerous act.
[3](1992) 174 CLR 313, [47].
Counsel for Mr Singleton contends that the court decided that the word “really” was only inappropriate in a jury direction when the charge was murder and guilt of manslaughter was an available alternative verdict. He maintains that the majority in Wilson only entertained doubts about the language necessary to convey the test to a jury in a murder trial. He argues that their Honours endorsed the statement of the test by Smith J in Holzer. He also says that there is subsequent authority supporting his contention.
Counsel for the prosecution responds that it would be inconceivable that there could be different tests to be applied in the determination of guilt of the crime of manslaughter depending on whether the verdict was to be reached as an alternative to one of guilt of murder or following a charge of manslaughter itself.
For the reasons which follow, I am not persuaded that a jury should be directed in different ways as to the elements of the crime of manslaughter in different circumstances, as counsel for Mr Singleton contends.
Wilson v R
In Wilson, the majority held that there was no place in contemporary law for a type of manslaughter where death was caused by the intentional infliction of only some harm, but that manslaughter by unlawful and dangerous act “in the Holzer sense” was a “relevant and appropriate category”.[4]
[4](1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ).
Their Honours nevertheless questioned the usefulness of the word “really” in Smith J’s statement of the objective test of dangerousness in Holzer.[5] They recognised that the expressions “really serious injury” and “serious injury” might have quite different connotations, citing R v Perks[6] in which the South Australian Court of Appeal equated the terms “grievous bodily harm” and “really serious bodily harm”, differentiating them from “serious bodily harm”.[7]
[5]Ibid.
[6](1986) 41 SASR 335.
[7]Ibid 337 ( King CJ), 212 , 348 (White J, O’Loughlin J agreeing).
The majority in Wilson considered that the emphasis on “really serious injury” brought manslaughter “perilously close to murder” and might easily result in the distinction between the two crimes being blurred in the minds of the jury. The majority concluded that:
It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury. Direction in those terms gives adequate recognition to the seriousness of manslaughter and to respect for human life, while preserving a clear distinction from murder.[8]
[8](1992) 174 CLR 313, 333.
Describing the two common law types of involuntary manslaughter as manslaughter by an unlawful and dangerous act “carrying with it an appreciable risk of serious injury”[9] and manslaughter by criminal negligence, the majority differentiated between the tests of dangerousness for each type. They again repeated their conclusion that an appreciable risk of serious injury was required for unlawful and dangerous act manslaughter and cited Nydam v R[10] as authority for the criminal negligence manslaughter test being one involving “a high risk that death or grievous bodily harm would follow” the alleged negligent act.[11]
[9]Ibid.
[10][1977] VR 430, 445.
[11](1992) 174 CLR 313, 333.
Counsel for Mr Singleton argues that the High Court’s conclusion must be read in the context of the case in which the appellant faced a count of murder. The citation of Perks indicates, he maintains, that the court intended to consider harm that was “really serious”.
Counsel for Mr Singleton relies upon R v Lavender[12] in which the High Court in 2005 referred to the test of dangerousness both with[13] and without[14] the word “really”.
[12](2005) 222 CLR 67.
[13]Ibid 83, [40].
[14]Ibid 70, [2], 82 [38].
In Lavender it was, however, common ground that Wilson was accepted as authoritative for the purposes of the issue as to whether s 18 of the Crimes Act (1900) (NSW) had altered the common law with regard to unlawful involuntary homicide. The prosecution case was put as one of manslaughter by criminal negligence and the impugned decision of the New South Wales Court of Criminal Appeal had set aside Mr Lavender’s conviction for criminal negligence manslaughter on the grounds that the trial judge had failed to direct the jury that malice was an essential element of the offence under s 18 of the Crimes Act.
In 2009, the High Court again stated the Wilson test for dangerousness for manslaughter by unlawful and dangerous act without using the word “really”, in Carroll v R.[15] There, the appellant had been sentenced after a plea of guilty to manslaughter by unlawful and dangerous act and the issue was as to the range of seriousness comprehended by the plea. Mr Carroll had head-butted the victim who had fallen, hitting his head, and had subsequently died.The New South Wales Court of Criminal Appeal had been divided about the objective gravity of the offence. The majority had proceeded on the basis that the plea indicated that the severe injury was the clearly foreseeable result of the act and that death was a possibility. The High Court held that the plea was rather an acknowledgment that the head-butting was “an unlawful and dangerous act that carried with it an appreciable risk of serious injury”, citing Wilson.[16] The plea did not admit what the court described as ”the larger proposition”.[17]
[15][2009] HCA 13.
[16]Ibid [21].
[17]Ibid [22].
I am not persuaded that the High Court in Lavender did intend to depart from the majority view in Wilson about its preference for a direction which did not use the word “really” as part of the description of a dangerous act, as counsel for Mr Singleton maintains.
Counsel also seeks support for his argument in the Court of Appeal’s joint judgment in R v De Montero[18] where it, at one point, stated the test of dangerousness for manslaughter by unlawful and dangerous act in terms of risk of really serious injury, referring both to Holzer and Wilson.[19] De Montero concerned challenges to jury directions relating to the offences of culpable driving causing death by gross negligence, contrary to s 318(2)(b) of the Crimes Act 1958, and dangerous driving causing death under s 319(1). As counsel for the prosecution points out, the passage relied upon was by way of obiter dicta.
[18][2009] VSCA 255.
[19]Ibid [35].
I am not persuaded by counsel for Mr Singleton’s argument that the word “really” was used by the Court of Appeal advisedly, as a necessary part of a “careful and complete” definition of the elements of manslaughter by unlawful and dangerous act, to contrast them with the offences of culpable driving and dangerous driving causing death, which they were considering. The Court had previously repeated the Wilson test without the word “really”. There was no indication of an intent to depart from those earlier decisions in De Montero.
Indeed, in R v Schaeffer,[20] the Court of Appeal had considered a challenge to a jury direction that there was no real difference between the terms “really serious injury” and “serious injury”. The judge had given the impugned direction in response to a specific jury question about any difference. Eames JA (with whom Warren CJ and Ormiston JA agreed) considered that the High Court in Wilson had held that there was a distinction and noted the majority’s preference for a statement of the test without the qualifier “really”.[21]
[20][2005] VSCA 306.
[21]Ibid [95] [96].
In R v Barrett[22], the Court of Appeal again repeated the test for dangerousness in terms of the risk of serious, as opposed to really serious injury. The Court there described the “additional emphasis” provided by the word “really” as having been held to be “not inconsequential”, citing Wilson.[23]
[22][2007] VSCA 95.
[23]Ibid [58].
In R v Stein,[24] the trial judge’s challenged directions as to the elements of manslaughter by unlawful and dangerous act included a statement of the test of dangerousness in terms of exposing the victim to an appreciable risk of serious injury. They were described by Kellam JA as being clear and succinct.[25]
[24][2007] VSCA 300.
[25]Ibid [38].
In R v Darren Paul Gould[26] the Court of Appeal again stated that the test in Wilson, set out in the head note to that case, was to be applied.[27] The issue was whether the jury had been misdirected when told that they must decide whether a reasonable person would have appreciated that an act of stabbing “was likely to” expose the deceased to an appreciable risk of serious injury, as opposed to appreciating that the act “would” so expose the deceased.
[26][2009] VSCA 130.
[27]Ibid [47].
In 2010, in Withers v R (No 2),[28] the Court of Appeal, constituted by Buchanan JA and Ashley and Weinberg JJA (two members of the Court in De Montero), once more stated the test of dangerousness without including the qualifying word “really”, citing Wilson.[29] The Court re-sentenced Ms Withers after her conviction for murder was set aside and she had made a guilty plea in relation to manslaughter by unlawful and dangerous act.
[28][2010] VSCA 151.
[29]Ibid [22], [24].
I am not persuaded by counsel for Mr Singleton’s argument that wherever the Court of Appeal has failed to use the word “really” when describing the appreciable risk for an act to be dangerous, it has used a shortened or more concise description of the test which would involve the word “really” as a qualifier to the words “serious injury”.
Given the High Court’s recognition in Wilson of the possible different connotations of the terms “really serious injury” and “serious injury”,[30] I am not persuaded by the argument that one might be used where the charged crime was manslaughter and the other where a jury was being directed as to the elements of the crime where a manslaughter verdict was an alternative and the charge was murder.
[30](1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ).
The jury should be directed in this case in accordance with the preferred view of the majority in Wilson, without the word “really” preceding the words “serious injury” in the description of the requisite dangerous act.
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