Mansell v The Queen
[1990] TASSC 43
•24 August 1990
Serial No 40/1990
List “A”
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Mansell v R [1990] TASSC 43; A40/1990
PARTIES: MANSELL, Jamie Edward
v
R
FILE NO/S: CCA12/1990
CCA 15/1990
DELIVERED ON: 24 August 1990
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Cox and Crawford JJ
Judgment Number: A40/1990
Number of paragraphs: 34
Serial No 40/1990
List "A"
File Nos CCA 12/1990CCA15/1990
JAMIE EDWARD MANSELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
COX J
CRAWFORD J
24 August 1990
Orders of the Court
The appeal against conviction is dismissed.
Leave to appeal against sentence is granted. The appeal is dismissed.
Serial No 40/1990
List "A"
File Nos CCA 12/1990CCA15/1990
JAMIE EDWARD MANSELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
24 August 1990
I agree with the reasons and orders proposed by Cox J
Serial No 40/1990
List "A"
File Nos CCA 12/1990CCA15/1990
JAMIE EDWARD MANSELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
24 August 1990
The appellant has appealed against his conviction for manslaughter following the death of Darren Phillip Dalco on or about 14 August 1986. He has also applied for leave to appeal against the sentence of five years six months imposed upon him in respect thereof.
The Appeal Against Conviction
About mid–August 1986 the deceased, a young man of sixteen years had gone missing from his residence in Forster Street, Launceston. In June 1988 certain human remains were found on the banks of the Tamar River. There were insufficient remains to determine whether the deceased had been subjected to any kind of violence or to establish a cause of death. A Melbourne expert in oral anatomy compared the remains with dental records of the deceased and identified them as his. This was the subject of a formal admission by the appellant upon his trial for murder.
The basis of the appeal against conviction is the refusal of the learned trial judge to exclude not only evidence of certain statements made under oath by the appellant to a coroner's inquest and evidence of photographs being taken of the appellant at a place in the Gorge Reserve to which he thereafter took police (all of which his Honour did exclude), but also certain verbal admissions and a record of interview at the Launceston police station and evidence surrounding a further photographic expedition to the Gorge, all of which events took place on the afternoon following the inquest and first visit to the Gorge. In substance the submission is that the admissions of the appellant were not voluntary, having been procured by oppression, and in the alternative were procured in circumstances such as to require his Honour to exclude them in the exercise of his discretion.
After the finding of the deceased's remains, the coroner was informed and police enquiries were commenced. Detective Gilbert was the officer in charge of the investigation. He collected evidence indicating that the deceased had been in the company of the appellant on the night of 14 August 1986. The appellant and a witness, Hall, had been living in a boys' shelter in Launceston. On that night the appellant and the deceased had gone out intending to drink alcohol at about 6.00 pm. Later that night, according to Hall, the appellant had returned to the shelter, affected by alcohol, and said that the deceased "was going to jump off the bridge", whereupon Hall had dispatched the appellant back to look for the deceased. Hall said he was not sure whether the appellant was referring to the Bridge Hotel or a particular bridge.
In September 1988 Detective Gilbert interviewed the appellant, and after a lengthy discussion, procured from him a statement in the form of an affidavit under the Coroner's Act 1957. In substance he said in it that on a night in August 1986 he had gone out with the deceased drinking, and that when they were on their way to the Charles Street bridge the deceased, who was drunk, upset with his mother and "cranky", had wanted to "have a go" at the appellant and had also said that he was going to get up on the bridge and jump into the river. On the bridge they had spoken to other passers–by, and on the Invermay side of the bridge the deceased had tried to punch the appellant who had successfully countered with a punch to the deceased's arm. Then the deceased had run away towards Invermay and the appellant had gone back to the shelter.
The further hearing of the inquest was entrusted to a lay coroner and set for 7 March 1989. The appellant was summoned to appear but failed to attend, and the inquest was adjourned until 2 May 1989. A further summons was served on him by Detective Gilbert and on the morning of 2 May, Detective Gilbert called at the appellant's home and took him by police vehicle to the court.
At the court, Detective Gilbert advised Sergeant Watkins, the coroner's clerk, of the appellant's intention to change his version of events and the coroner and Miss Rigby, who represented the deceased's family, were also notified of the proposed change in his evidence. When the appellant was sworn and commenced to give oral evidence he did not immediately make the correction to his affidavit which Detective Gilbert had been led to believe he would make. Instead he omitted any reference to a fight and said that after drinking some wine with the deceased in a tunnel adjacent to the Gorge footpath, he left him there and when he, the appellant, had proceeded to the Gorge bridge, he heard something go into the water. He then went back and found that Dalco was no longer there. He said that he had not seen the deceased since that time. The appellant was then examined extensively by Sergeant Watkins, was asked (inter alia) whether he would be able to take the police back to the spot where the wine cask had been consumed and replied in the affirmative. He was asked this question on two separate occasions during his evidence and he responded in a similar manner on each occasion. As his evidence before the coroner progressed, the appellant gave yet another version of the evening's activities. He said that the deceased threatened to jump off the Gorge bridge. He claimed to have done his best to dissuade him from this course, but in the end he left the deceased on the bridge and returned to the Northern Boys' Shelter where he was then residing.
The appellant was also cross–examined by Miss Rigby and in the course of that cross–examination, he admitted to her that he had been telling untruths. At no time during the hearing was the appellant told of the privilege against self–incrimination. At the end of the coroner's clerk's re–examination of the appellant, the coroner said, "I think it is pointless that any more questions be put to Mr Mansell. I personally don't believe very, very much of anything you've said is true and in the circumstances er, I obviously can do nothing more than adjourn at this stage". There then followed this exchange:
"Coroner's Clerk: Mr Coroner, I would like to seek an adjournment because I think it is rather important that we should get to know a little bit more of where this cave is. I think the police should make a few more enquiries into this matter eh, photograph the area and eh, so that a clearer picture can be placed before the court in this matter.
Coroner:Right. Well, we'll do that to er,
Miss Rigby:I would ask that you do not excuse this witness from further proceedings that um, that once the enquiries have been made it may be that further questions would be asked of this witness. So he not be excused at this stage? (sic)
Coroner:Most certainly.
Coroner's Clerk: Mr Mansell, where do you live?
Appellant:256 Peel Street.
Coroner's Clerk: And who lives there?
Appellant:My mum and dad.
Coroner's Clerk: Do you have any other places that you stay in Launceston?
Appellant:No.
Coroner's Clerk: Is it your intention to stay in Launceston? Appellant: Probably for a little while, yeh.
Coroner's Clerk: And you can be contacted through the home in Peel Street?
Appellant:Yes.
Coroner:Right. In the circumstances, you are not excused and you may be required to come back but eh, when we reconvene."
Detective Gilbert gave evidence on the voir dire conducted by his Honour that after the coroner's retirement from the Bench he asked the appellant if he would be prepared to come with Detective Gilbert to the Gorge with a police photographer just to photograph where this new scene was and that he had replied, "Yes, let's get it over with". He accompanied Gilbert back to the Launceston CIB office where he was shown into Gilbert's office and left there for a few minutes while Gilbert consulted other officers. He was then introduced to Detective Hind and told, "I would like you to indicate where the tunnel is and tell us what happened. A police photographer will be coming with us to photograph you". The appellant replied, "Alright". They then all travelled by police car to the old Trevallyn Bridge and walked up the pathway to a small cave opposite the guard rail which extends along the river side of the path. There a number of statements were made by the appellant, none of them admitting any direct involvement in the death of the deceased. Photographs were also taken.
At the conclusion of these events, the party returned to the police car at the bridge and thence to the police station, Detective Gilbert saying in cross–examination, "We couldn't just leave him at the Gorge, could we?" Gilbert maintained throughout his evidence on the voir dire that the appellant was never in his custody. He had not made up his mind to charge him; he had simply asked the appellant to accompany him to the scene to get it photographed and to try to get the full story as to what had happened. He said the appellant was free to go at any time he wanted, but agreed he had not told the appellant so.
Back at the police station, the party returned to Detective Gilbert's office. Again there was no advice that the appellant was under no obligation to remain. Nor was there any formal request as such for him to do so. Detective Gilbert said he did not regard the appellant as being there as part of any initial arrangements made by the coroner but regarded his presence as part of an on–going inquiry.
By this time it was about 12.30 pm and Detective Gilbert gave evidence he said to the appellant:
"'Jamie, look you have given us three versions as to how Darren met his death at the Gorge. You have also given us several versions at the inquest to–day. Did you have a fight with him before his death?' He said, 'Yes. Look, it's been worrying the guts out of me since it happened.' I said, 'What did happen?' He said, 'The truth is I punched him in the mouth and he backed on to the rail and then I shoved him in the chest over the rail'. I said, 'I must warn you that you are not obliged to say anything further at this stage, and that anything that you do say will be noted and may later be given as evidence. Do you understand that?' He said, 'Yes. I haven't told anyone this before.' I said, 'Why did you push him over the rail?' He said, 'I just wanted to get rid of him.' I said, 'Why did you want to get rid of him?' He said, 'He used to shit–stir me, I'd had enough.' Mansell then started to cry and I said, 'Just stay there Jamie and we will be back in a few minutes.' I left the office and conferred with senior officers and a short time later I returned to the office. I said, 'Jamie, I want to conduct a typed record of interview with you.' And he said, 'Yes.'"
A record of interview was then conducted by Detective Gilbert in the presence of Detective Hind. At its conclusion as the appellant is virtually illiterate, another detective was brought into the room and the record of interview was read aloud to the appellant. Detective Gilbert asked whether he agreed that it was a true and correct record of the questions asked by him and the answers given by the appellant, to which the latter replied in the affirmative. The record of interview contained admissions from which the jury could have inferred the existence of acts and one of states of mind necessary to a conviction for murder or manslaughter. Some time after the interview, further photographs were taken of the appellant at the Gorge and a re–enactment of some of his acts took place.
Counsel for the appellant successfully persuaded the learned trial judge to exclude the evidence of what the appellant had said at the inquest. His Honour held that as no warning against self–incrimination had been given by the coroner, the statements of the appellant given on oath under compulsion of a summons to attend for examination were not voluntary. He further held that although the coroner did not specifically instruct Detective Gilbert to take the appellant to the Gorge in terms which unequivocally indicated that he was in effect placing him in the custody of the police officer, his directions were capable of being understood in that light and almost inevitably would have been so understood by the appellant. He held therefore that the Crown had failed to prove that what the appellant had said on the first visit to the Gorge was admissible, as the photographs themselves would have been meaningless without explanatory testimony of the appellant's oral statements. Evidence of them was also excluded.
The learned trial judge, however, rejected the submission that evidence of the oral admissions at the police station of the record of interview and of the second visit to the Gorge and the resultant photographs should be excluded. He said:
"It was submitted that the accused was at all relevant times in the unlawful custody of the police. In my opinion there is nothing of substance in the evidence to suggest that the accused was in the custody of the police, much less that such custody was in any sense unlawful during these procedures. There is no reason to suppose that he believed himself to be at the police station pursuant to the coroner's direction at that stage or that at that stage he was obliged to answer any questions if he chose not to do so. Although closely linked in time with the inquest and the first visit to the Gorge, that phase of the day's events had, in my opinion, plainly concluded. The accused gave no evidence to suggest that he believed he was under compulsion when he entered the police station and began to talk to Constable Gilbert in his office or that he had been given grounds by the police for believing and was caused in fact to believe that if he wished to leave he would be unable to go. See Regv Amad [1962] VR 545; Smith v The Queen (1956–7) 97 CLR 100 at p129 per Williams J, and Van Der Meer v The Queen (1988) 82 ALR 10 at p18 per Mason CJ, at p34 per Deane J. In my opinion, his confessional statements to the police were made voluntarily and there are no discretionary grounds for excluding the statements or the photographs from the jury."
His Honour also gave directions that some of the evidence ruled admissible should be edited in such as way that without affecting its substance there should be no reference to earlier statements excluded by him. Thus, for example, reference to the appellant having given a number of different versions to the police and at the inquest was deleted.
It was submitted on behalf of the appellant that the events of the inquest which had caused his Honour to find the appellant's statements there and at the first visit to the Gorge involuntary so permeated the later events of the same day when the oral and written incriminating statements were made that such statements should likewise be regarded as involuntary.
In Van der Meer v The Queen (1988) 62 ALJR 656 at p660 Mason CJ said:
"The requirement that a statement be voluntary means that it must have been made by the author in the exercise of his free choice to speak or remain silent. Although the cases largely concern statements said to be non–voluntary because they were procured by an inducement held out by a person in authority, it is well settled that a statement made as a result of duress, intimidation, or sustained or undue insistence or pressure cannot be voluntary: McDermott, (1948) 76 CLR 501 at p511. The Crown bears the onus of proving that a confessional statement is voluntary before it become admissible: Lee, (1950) 82 CLR 133 at p144; Cleland v the Queen (1982) 151 CLR 1 at pp18–19."
The learned trial judge found that there was no reason to suppose the appellant believed himself to be at the police station pursuant to the coroner's direction or that he was then obliged to answer questions if he chose not to do so and that the phase of the day's events comprised of the inquest and first visit to the Gorge were plainly concluded. From a perusal of the material before his Honour, I respectfully agree. Nothing the coroner said could reasonably have been interpreted, even allowing for the disabilities of intellect and education suffered by the appellant, as a direction to him to remain indefinitely in the presence of police and to answer questions they might put to him. It was submitted that in declining to excuse the appellant from further proceedings of the inquest after the coroner's clerk had said he thought it important that the locality of the cave should be established and photographed and that the police should make further enquiries the coroner would have created this impression in the appellant's mind, but I consider this an unrealistic stretching of the language used. After enquiries had been made of the witness as to where he could be contacted, the coroner's final statement was, "In the circumstances, you are not excused and you may be required to come back but er (sic) when we reconvene." I do not believe there is any reasonable possibility that the appellant, after the first visit to the Gorge, had been concluded and the party had returned to the police station could have thought he was under any obligation imposed by the coroner or other authority to answer any further questions. He had the opportunity to give evidence as to his belief on the voir dire but chose not to avail himself of it.
In the same way there is no evidence that Detective Gilbert or any other police officer in any way misled him about his situation or induced the belief that he was not free to leave when he wished. His Honour, in my view, was right in rejecting the submission that at the conclusion of the first visit to the Gorge and on his return to the police station the appellant was in custody, let alone in unlawful custody.
It is submitted that the statements were not voluntary because induced by oppression (DPP v Ping Lin [1976] AC 574). But I agree with the comments of Cosgrove J in Reg v Oates (1979) Tas R 203 at pp204–205 where he said:
"No such free choice (ie to speak or be silent – see Lee (supra) at p149) is available if the will of the confessor is overborne by oppression (eg, abuse of power) or by a trick or by some other alien force. But the mere fact that a person being interrogated changes course as a result of weakening of resolve, or a feeling of isolation, or of a growing realisation of the accumulating strength of the evidence against him, or for any similar reason does not of itself point to oppression or the lack of free choice. It is in each case a question of fact whether the confession emanated from the will of the confessor or resulted from the overthrow of that will from without by an act upon which the law frowns."
The appellant, by his failure to give evidence, having regard to the circumstances of this case as they unfolded on the voir dire, faces a very difficult task of establishing that there was any reasonable possibility his statements came from a will overborne. The evidence simply does not demonstrate overbearing behaviour by any person in authority. The style of questioning adopted by Detective Gilbert was far removed from the "condescending and judgmental insinuations" condemned by Deane J in Van der Meer v The Queen (supra) at p671. Nor was it of the kind "intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies" which Williams J in McDermott (supra) (at p517) classed as cross–examination of the kind proscribed by the Judges' Rules. While Detective Gilbert had some reason to believe that the appellant knew more about the death of the deceased than appeared from his conflicting versions to date, he really had no reason to suspect that the appellant was in any way responsible for that death. Indeed there was no evidence that Dalco had died by his own hand or that of another. Accidental immersion in a drunken state and consequent drowning was as consistent with the limited known facts as any other explanation, so it was not even a situation similar to that adverted to by Cosgrove J in Oates (supra) at p209 where "there was something of the character of the hunt in this interview – the implacable pursuer in the form of Sergeant Kruse and the twisting quarry in the form of the accused". His Honour there was satisfied that it was not the manner in which the questions were put nor any impropriety in the conduct of the interview which caused the accused to break down but rather it was his growing realisation that the hunt was up which brought about his ultimate confession. In the present case, the learned trial judge was satisfied on the evidence he heard that the confessions were voluntary and not the product of a mind overborne. I am unpersuaded that he erred in so finding.
The appellant seeks to have this material excluded on a discretionary basis if the finding that it was voluntary is upheld. It was further urged that the failure to exclude this material resulted in unfairness to the appellant for "even if the statement was voluntary, and therefore admissible, the trial judge had a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused" (per Gibbs CJ in Cleland v The Queen (1982) 151 CLR 1 at p5). As Wilson, Dawson and Toohey JJ in Van der Meer (supra) at p666 said:
"In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee, at p154; Cleland at p18. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."
Thus as Deane J points out therein at p669:
"Breach (of the requirement of fairness as embodied in for example Judges' Rules) will not automatically mandate exclusion; nor will adherence to them necessarily prevent it ... The 'real justification' for regard being paid to the general standards of fairness which they reflect was explained in the joint judgment of Latham CJ McTiernan, Webb, Fullager and Kitto JJ in Lee (at p159) in terms which drew attention to the great vulnerability of the ordinary person, particularly one with a criminal record, to being 'very unfairly' prejudiced by a statement obtained by the exercise of pressure while he is 'in the hands of an over–zealous police officer'. Their Honours pointed out that a statement made as the result of such pressure may seem 'very damning' but be 'really very unreliable' and went on to stress that such a person should be afforded 'that protection which only an extremely vigilant court can give' him".
In my view, it has not been shown that there was unfairness, especially in this sense in the circumstances surrounding the making of the statements in question. The conduct of the police did not infringe any particular rule of fair play (such as the Judges' Rules or their equivalent in Police Standing Orders), it did not involve persistent or cross–examinational questioning and in my view there is no basis for concluding that the reliability of the statement was affected by the circumstances in which it came to be made. It was for the appellant, once the Crown had satisfied the trial judge as to voluntariness, to activate his Honour's discretion to exclude the statements by establishing a basis for a finding of unfairness. He failed to do so, and in my opinion, the learned trial judge's decision cannot be said to have been erroneous. Ground 1 of the grounds of appeal which attacks his Honour's ruling and failure to exclude those confessional statements has not been made out.
Two further grounds of appeal are included in the Notice of Appeal. Ground 2 complains of error on the learned trial judge's part in permitting evidence to be given by an officer of the Social Services Department as to when the deceased last drew benefits from the Launceston office of the Department. The relevance of this evidence was that it tended to confirm that the deceased had died in about mid–August 1986 when the witness, Hall, said the appellant had told him Dalco had threatened to jump off the bridge. Ground 3 complains of a direction to the jury concerning the belief of a witness as to when the deceased left his home. This material was relevant to the same issue. In his unsworn statement at the trial the appellant, although not nominating a date, admitted to being present with the deceased one night at a cave on the Gorge pathway when there were altercations between them and said:
"He went outside the cave and was walking around. I was still in the cave, either having a smoke or a drink. Then he was gone, over the railing. I can't say whether he jumped or fell over. I can't say because I didn't see how he went over. He was sort of there one minute and not the next. He had been talking about jumping earlier but he was drunk. He could have staggered and fallen. I didn't push him over. I heard the bushes move. I went to the railing and looked over. I couldn't see him. I couldn't see any movement in the water. I didn't know what had happened to Darren but everything was scary. I was shaking.
I threw the cask up near the top of the cave. I sat in the cave there wondering what to do. I was that worried and started panicking. I was all shaky and didn't know what to do or who to tell. I tried to ride my push–bike. I was tipsy and ran into a fence and bent the handle bars. I got off and started walking back with my bike. I went back to the shelter. I don't recall seeing Hall at the shelter."
From this it is quite clear that the appellant was making no issue of the fact that the deceased disappeared in those circumstances, and it could not be said that even if his Honour in any way erred in permitting the evidence to be given by the departmental officer or commenting upon that of the other witness, there had been any miscarriage of justice. In my opinion, the appeal should be dismissed.
The Appeal Against the Sentence
As to the application for leave to appeal against sentence, a term of five and one half years imprisonment was, in my view, appropriate if the learned trial judge accepted that the appellant intended the physical act of pushing the deceased to precipitate him over the guard rail with resultant bodily harm occasioned to the deceased by his falling onto rocks or into water some distance below the level of the pathway. In those circumstances, although not then foreseeing or adverting to the probability of fatal consequences, the appellant's act was still a very dangerous and hostile one, fully deserving condign punishment.
On the other hand, if the factual basis on which his Honour proceeded was that the appellant intended no more by his act than that bodily harm from the impact of his hand on the deceased's body or from the impact of that body on the guard rail or foot way, if he fell against or upon either, then the appellant's culpability even though that act was causative of death was far less. An intermediate position would be that he intended his push to precipitate the deceased over the guard rail and that he would fall on some outcrop at about the same level as the foot path, thereby sustaining some form of bodily harm, and that the appellant did not advert to the possibility that the deceased would fall as far as he did with his resultant immersion in the river and consequent death.
In my view, each of these three possibilities was open to his Honour, and as I say, had he accepted the first, the sentence he imposed was appropriate. Having regard to all the circumstances, it seems hard to conclude that he accepted the second, for such an act as manually pushing an intoxicated youth towards a guard rail is not in the ordinary course of events prone to result in an injury or hurt likely to interfere with health or comfort which is more than trifling. If the appellant intended to cause "bodily harm" as his Honour defined it in his memorandum, one would expect him to have intended his act of pushing to achieve a more significant impact upon the deceased's body such as a fall on the other side of the guard rail at least.
The only feasible possibilities, in my view, are the remaining two; but at the end of the day I feel unable to conclude that his Honour proceeded on the intermediate one I have mentioned rather than the first or most reprehensible one. I derive little assistance for present purposes from his Honour's summing up or the memorandum he incorporated in it, for that was addressed to a different issue, it being important to distinguish between the specific states of mind essential to murder urged by the Crown and the lesser intention required for a verdict of manslaughter. His Honour did not see the need in his charge to the jury to differentiate between the possible ways in which the intended result of causing bodily harm only might be achieved. What needed to be emphasised was that the act of the appellant must have been causative of death and either have been accompanied by an intention to cause bodily harm or have been an act commonly known to be likely to cause death or bodily harm.
More assistance can, I think, be gained from his Honour's comments on passing sentence seen in the light of the record of interview which there is no reason to suppose he did not accept as genuine. He rejected any finding of murder reduced to manslaughter by sudden provocation and equally rejected the contention that the fatal and unlawful act of pushing was but an act commonly known to be likely to cause death or bodily harm. He was entitled to do so. No complaint is made of his rejection of provocation, but the appellant claims he should not have rejected the latter contention. In my view, there is no basis for that complaint. There was ample evidence of an intention to cause some bodily harm, and such a finding was not inconsistent with the jury's verdict. His Honour said (in part):
"It is my opinion that the prisoner pushed Dalco near the hand rail intending to cause him some hurt or injury, but not then foreseeing or directing his mind towards the probability of fatal consequences. I think he was angry with Dalco and wished to be rid of him, as he told the police, but probably he intended this expression to mean that he simply wanted him to go away. I reject Mr Slicer's submission to me that his client did not intend to harm Dalco at all, and that sentence should proceed on the basis only that what he did was an activity commonly known to be likely to cause bodily harm."
His Honour found anger with the deceased on the part of the appellant and a desire to be rid of him, not by death or grievous disablement but inferentially by doing something more drastic than a repetition of their earlier scuffles and more productive than they had been of the deceased's parting company with him. In the light of an unequivocal acknowledgment in the record of interview that it was his intention when he pushed the deceased in the chest for him to fall over the rail, it would not have been surprising for his Honour to have formed the view that what was intended was not a fall simply on to the other side of the rail and of no more consequence than a fall on the footpath, but rather a fall down the bank on the other side of the rail sufficiently severe as to disable the deceased from an immediate return to the scene or to frighten him away from it.
I am unable to conclude that the learned trial judge did form a view of the facts on any more lenient assessment of the appellant's state of mind than this. The Court of Criminal Appeal can only intervene if it is of opinion that some other sentence is warranted in law and should have been passed (the Criminal Code s.402(4)). Unless it is shown that the trial judge did find a factual basis different to the above or that he has otherwise fallen into error, I do not feel able to form an opinion that a different sentence should have been passed. In saying that I have not overlooked the age, background, intellectual development and other personal attributes of the appellant. I would grant leave to appeal against sentence, but I would dismiss the appeal.
Serial No 40/1990
List "A"
File Nos CCA 12/1990CCA15/1990
JAMIE EDWARD MANSELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
24 August 1990
I agree with the orders proposed by Cox J, for the reasons he has expressed.
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