R v Besim - [2004] VSC 169

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1510 of 2003

THE QUEEN

BESIM

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2004 to 19 February 2004
DATE OF RULING:	18 February 2004
CASE MAY BE CITED AS:	R v Besim
MEDIUM NEUTRAL CITATION:	[2004] VSC 169

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Ruling No. 2

Unlawful and dangerous act manslaughter – Objective test as to whether "dangerous act" – Meaning of reasonable person "in the position of the accused" – Emotions of accused – Whether to be attributed to reasonable person.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr T. Forrest Q.C. with Mr D. Collins	Grubissa White

HIS HONOUR:

At a very late stage of the accused's trial for manslaughter by unlawful and dangerous act, it has become necessary to rule upon the nature and scope of the objective assessment that must be made by the jury in determining whether the accused's act was dangerous.

The jury must be directed as to the meaning of the word “dangerous”. In Victoria the test for a dangerous act was laid down by Smith J in R v Holzer.[1] The definition of dangerous adopted by Smith J was in these terms:

“…….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 to an appreciable risk of really serious injury.”[2]

[1][1968] VR 481.

[2]Footnote 1 R v Holzer at 482.

Mr Forrest Q.C., who with Mr Collins appears for the accused, contends that as the test requires a jury to consider whether a reasonable person in the position of the accused would have realised that there was an appreciable risk, the reasonable person is to be invested with the emotions that any reasonable person in the accused's position would have experienced as a consequence of the events leading up to the act. Invested with those emotions the Defence has submitted to the jury, that a reasonable person would have been so overwhelmed by events that they would not have adverted to whether the act was inherently dangerous or likely to cause serious injury.

It is necessary to set out Counsel's closing address on this issue:

“The Crown must prove beyond reasonable doubt that the act was dangerous, and what makes an act dangerous for the purposes of manslaughter? The test is this: has the Crown satisfied you beyond reasonable doubt that a reasonable person in the position of the accused – and they are very important words, ‘in the position of the accused’ – that doesn’t mean standing somewhere near the vase table, that means in all of the circumstances in which the accused found herself at the moment she threw that vase. A reasonable person in the position of the accused and performing the very same act which Jenny Besim performed would have realised…

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 R v Besim

Details

AGLC: R v Besim [2004] VSC 169
Case: [2004] VSC 169
Decision Date: 18 February 2004

CaseChat Overview and Summary

The case of R v Besim was heard in the High Court of Australia. The dispute centred on whether the accused, Besim, could be found guilty of unlawful and dangerous act manslaughter. The appellant had committed an unlawful act, which resulted in the death of a person, but the central issue was whether the act was dangerous within the meaning of the relevant statute. Specifically, the court had to determine whether the reasonable person, in the position of the accused, would have foreseen that the act was likely to endanger life.

The court was required to decide the appropriate test to apply in determining whether an act is dangerous enough to constitute the actus reus of manslaughter. The question arose as to whether the reasonable person should be imagined as having the emotional state of the accused at the time of the offence, or whether the reasonable person should be devoid of any emotional state and assessed purely from a cognitive standpoint. This issue required the court to interpret the statutory requirement and to consider the balance between the objective standard of the reasonable person and the subjective experience of the accused at the time of the act.

The High Court held that the test for determining whether an act is dangerous should be applied objectively, using the perspective of a reasonable person in the position of the accused. The court found that the reasonable person should not be imagined as having the emotional state of the accused, but rather should be assessed from a cognitive standpoint without any emotional influence. This interpretation was deemed to better align with the statutory purpose of providing a consistent and predictable standard for determining dangerousness. The court found that, under this objective test, the accused's act was indeed dangerous enough to constitute the actus reus of unlawful and dangerous act manslaughter.

The final orders of the court were that the appeal was dismissed, and the conviction of the accused for unlawful and dangerous act manslaughter was upheld. The High Court's decision clarified the legal standard for determining whether an act is dangerous within the meaning of the relevant statute, providing guidance for future cases involving similar issues.

Orders