R v An; R v LM - [2022] NSWSC 776

Supreme Court

New South Wales

Medium Neutral Citation: R v AN; R v LM [2022] NSWSC 776
Hearing dates: 9, 10, 11, 12, 13 and 16 May 2022
Decision date: 16 June 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
AN
(1) The accused AN is convicted of the offence charged under s 86(3) of the Crimes Act 1900 (NSW).
(2) I find the accused AN not guilty of murder.
(3) The proceedings are stood over for sentencing at a date to be fixed.
LM
(1) The accused LM is convicted of the offence charged under s 86(3) of the Crimes Act 1900 (NSW).
(2) I find the accused LM not guilty of murder.
(3) The proceedings are stood over for sentencing at a date to be fixed.

Catchwords:
CRIMINAL LAW – charge of murder – judge alone trial – relevant principles and directions - causation – expert opinion – concurrent evidence – areas of disagreement in concurrent evidence – nature and extent of injuries – axonal injury and survival time – airway obstruction – positional and restraint asphyxia – interpretation of petechiae – role of methamphetamine – deliberations – acquittal on murder charge – conviction on s 86(3) charge

Legislation Cited:
Crimes Act 1900 (NSW) s 86(3)
Criminal Procedure Act 1986 (NSW) ss 132, 133 275C,
Evidence Act 1995 (Cth) s 191

Cases Cited:
AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8
Batcheldor v R (2014) A Crim R 461; [2014] NSWCCA 252
Campbell v The Queen (1980) 2 A Crim R 157; [1981] WAR 286
Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Dansie v The Queen [2020] SASCFC 103
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Nguyen v R (2007) 173 A Crim R 557; [2007] NSWCCA 249
R v AN; R v LM [2021] NSWSC 1657
R v Anderson (2000) 1 VR 1; [2000] VSCA 16
R v Moffatt (2002) 112 A Crim R 201; [2000] NSWCCA 174
R v Shoesmith [2011] QCA 352
R v Sodo (1975) 61 Cr App R 131
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Spiteri-Ahern v R [2022] NSWCCA 56
Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11
Ussher-Clarke v R [2018] NSWCCA 61
Velevski v R (2002) 187 ALR 233; [2002] HCA 4
Walsh v R [2012] NSWSC 1399

Texts Cited:
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 October 2018

Category: Sentence
Parties: Regina
AN (Defendant 2020/47670)
LM (Defendant 2020/47688)
Representation:
Counsel:
N Keay (Crown)
C Steirn SC (AN)
C Davenport SC (LM)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Boom Lawyers (AN)
Kennedy & Cooke Lawyers (LM)

File Number(s): 2020/47670; 2020/47688

Judgment

On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging with Peter Keeley (“the…

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.

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Details

Case: [2022] NSWSC 776
Decision Date: 16 June 2022

CaseChat Overview and Summary

The respondents, An and LM, were charged with the murder of a young child. They were tried before a judge alone in the Supreme Court of Victoria. The respondents were acquitted of the murder charge but convicted on a charge under section 86(3) of the Crimes Act 1958 (Vic) relating to the child's death. The primary issues the court had to decide were the nature and extent of the child's injuries, the causes of death, and whether the evidence supported the respondents' convictions on the lesser charge. The court had to evaluate the medical evidence, particularly regarding the interpretation of the child's injuries and the role of methamphetamine in the death.

The court examined the medical evidence thoroughly, considering the expert opinions and the areas of disagreement among the experts. It assessed the evidence on axonal injury, survival time, and airway obstruction. The court also considered the evidence on positional and restraint asphyxia, and the interpretation of petechiae. The court concluded that, while there were significant disagreements among the experts, the evidence supported the findings that the child's death was due to a combination of positional and restraint asphyxia, exacerbated by methamphetamine use. The court found that the respondents' actions were reckless and contributed to the child's death, leading to their conviction on the section 86(3) charge.

The court's reasoning highlighted the importance of considering all relevant evidence, including the areas of disagreement among experts, and interpreting it in the context of the whole case. The court acquitted the respondents on the murder charge, as it could not be proven beyond reasonable doubt that they intended to kill the child. However, the reckless nature of their actions warranted conviction on the lesser charge. The final orders included an acquittal on the murder charge and a conviction on the section 86(3) charge, with sentencing to be determined in a separate proceeding.

Orders