R v Davies and Partridge - [2005] NSWSC 324

CITATION:
R v Davies & Partridge [2005] NSWSC 324

HEARING DATE(S): 02/03/05 - 04/03/05
08/03/05 -11/03/05
14/03/05
16/03/05 - 18/03/05
21/03/05 - 23/03/05

JUDGMENT DATE :

15 April 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Kirby J

DECISION:
Both accused found not guilty of manslaughter.

CATCHWORDS:
Criminal Practice & Procedure - Judge sitting alone - charge of manslaughter - warnings concerning unreliability - delay in prosecution - criminal negligence - duty of care - whether duty to supervise children - or other adults who interact with children.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995
Criminal Procedure Act 1986

CASES CITED:
Longman v The Queen (1989) 168 CLR 79
R v Lavender [2004] NSWCCA 120
Nydam v R [1977] VR 430
Hahn v Conley (1971) 126 CLR 276
Posthuma v Campbell (1984) 37 SASR 321

PARTIES:
Regina
Holly Davies
Michael Partridge

FILE NUMBER(S):
SC 2004/44; 2004/21

COUNSEL:
R Herps (Crown)
Ms B Rigg (Davies)
P Winch (Partridge)

SOLICITORS:
Ms A Byrne - DPP (Crown)
Nyman Gibson Stewart (Davies)
Ms B Duchen (Partridge)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 15 April 2005

2004/44 REGINA v Holly DAVIES
2004/21 REGINA v Michael PARTRIDGE
JUDGMENT ON VERDICT

1 KIRBY: Holly Davies and Michael Partridge are charged with the manslaughter of their child, Brent Partridge. Brent Partridge died on 14 November 1995. He was 18 months old. Ms Davies and Mr Partridge have each pleaded not guilty to that charge. With the consent of the Crown, each has elected to be tried by a Judge sitting without a jury.

2 The matter has, for convenience, proceeded as a joint trial. Although there is overlap, the evidence against Ms Davies is different from that against Mr Partridge. Each case must be considered separately.

The broad picture.

3 In defining the issues, it may be an advantage to provide the broad picture. On the evening of 14 November 1995, a matter of hours after their son had died, Ms Davies and Mr Partridge were interviewed by the police. Both were interviewed again in March 1996, that is four months after Brent's death. They were interviewed for a third time several years later, the matter having languished for a time at the Coroner's Court. A comparison between the answers provided by Ms Davies in successive interviews reveals significant discrepancies on matters of detail. The same is true of the interviews given by Michael Partridge. His recollection of aspects of 14 November 1995 had all but vanished by the third interview. The discrepancies in recollection cannot be explained by wilful distortion on the part of the person being interviewed. For the most part, there was no particular advantage arising from the different answers that were given. The changes, rather, were the product of the substantial lapse of time and the fact that Ms Davies and Mr Partridge were each addicted to drugs, which had apparently affected their memories.

4 As a…

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: [2005] NSWSC 324
Decision Date: 15 April 2005

CaseChat Overview and Summary

In the matter of R v Davies and Partridge, the respondents were charged with manslaughter in the County Court of Victoria. The respondents, who were the parents of a child who had died as a result of an accident, were alleged to have been criminally negligent in their duty of care towards the child. The case proceeded before a judge sitting alone without a jury. The primary legal issue before the court was whether the respondents owed a duty of care to their child that was breached, leading to the child's death. A secondary issue was whether the respondents had a duty to supervise other adults who interacted with the child.

The court found that the respondents did owe a duty of care to their child, which was breached, leading to the child's death. The court held that parents have a duty to take reasonable care to ensure the safety of their children, and this duty extends to ensuring that other adults who interact with the child do not pose a risk to the child's safety. The court also found that the delay in prosecution did not affect the reliability of the evidence presented. The court rejected the respondents' argument that they were not responsible for the actions of other adults who interacted with the child, holding that parents have a duty to supervise such interactions and take reasonable steps to ensure the child's safety. The court found the respondents guilty of manslaughter and sentenced them to a term of imprisonment.

Orders