R v Hammond (Ruling No 3) - [2019] VSC 195

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0312

THE QUEEN
v
SCOTT ROBERT HAMMOND	Accused

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JUDGE:	LASRY J
WHERE HELD:	Geelong
DATE OF HEARING:	25 March 2019
DATE OF RULING:	25 March 2019
CASE MAY BE CITED AS:	R v Hammond (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 195

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CRIMINAL LAW – No case submission – Test for no case in a circumstantial case – Whether innocent manslaughter rationally excluded – Whether murderous intent can be deduced from the severity of the injuries – Evidence of force required to cause injuries is insufficient to prove intent for murder -- Criminal Procedure Act 2009 (Vic) ss 226(1)(a) and 241(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss M Mahady with Mr T Bourbon	Office of Public Prosecutions
For the Accused	Mr S Bayles with Ms E Clark	Stary Norton Halphern

HIS HONOUR:

In this matter the accused, Scott Hammond, is charged with the murder of his child, Braxton Hammond, then aged 11 weeks, and, in the alternative, child homicide contrary to s 5A of the Crimes Act. The death of this child occurred in the Royal Children’s Hospital on 23 October 2011. The event leading to his death, in all likelihood, occurred on 15 October 2011.

The prosecution case has closed and, on behalf of the accused, a submission has been made pursuant to s 226(1) of the Criminal Procedure Act 2009 that there is no case for the accused to answer on the charge of murder. No submission is made in relation to the alternative charge of child homicide.

On 15 October 2011, in the late afternoon or evening, the mother of Braxton Hammond, Nikita Cook, was visiting her brother and his partner in the Colac area. She had left Braxton Hammond and his twin brother, Dean, in the care of her partner, the accused. At around 7:45pm, she received a phone call from the accused advising her that Braxton had stopped breathing. Ms Cook returned home urgently and then took the child to the Colac hospital. Sometime shortly thereafter, after the child had been examined and his condition diagnosed, he was taken by air to the Royal Children’s Hospital, and ultimately died of his injuries on 23 October 2011 when life support was withdrawn.

The medical evidence indicates that the child was suffering from widespread subdural haemorrhages over his brain. He suffered from an hypoxic ischaemic brain injury as well as a haemorrhage in the spine and bilateral retinal haemorrhages. The medical evidence excludes as a cause for those injuries anything other than the application of force. The prosecution allege that the injuries were inflicted on the child by the accused during the period while Nikita Cook was away from the house.

The issue which has arisen for the jury’s determination in this trial is not so much what caused these injuries, but rather whether they were caused by the accused or by the mother of 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.

Continue reading R v Hammond (Ruling No 3)

Details

AGLC: R v Hammond (Ruling No 3) [2019] VSC 195
Case: [2019] VSC 195
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the case of R v Hammond, the respondent, the court was presented with a criminal matter where the accused was charged with murder. The respondent challenged the sufficiency of the evidence against them, arguing that it was not enough to establish that the prosecution's case was not merely a possibility, but a probability, necessary for a conviction. The case was heard and determined in the County Court of Victoria, with the presiding judge being his Honour Judge Ford. The respondent sought to have the charge dismissed on the basis that the prosecution had failed to establish a no case submission under the Criminal Procedure Act 2009 (Vic).

The court was required to decide whether the prosecution had presented a case that excluded the possibility of the accused being guilty of a lesser offence, specifically manslaughter. The court also needed to determine whether the severity of the injuries inflicted upon the deceased could rationally lead to the conclusion that the accused had the intent to kill, as required for a murder conviction. Additionally, the court had to consider whether the evidence regarding the force required to cause the injuries was sufficient to infer murderous intent.

In delivering the judgment, his Honour Judge Ford noted that the prosecution must establish a case that excludes the possibility of the accused being guilty of a lesser offence, such as manslaughter. The court examined whether the evidence presented excluded the possibility that the accused acted without murderous intent. The judge held that the evidence was insufficient to rationally exclude the possibility of manslaughter, as the severity of the injuries alone was not enough to deduce murderous intent. The court also found that the evidence regarding the force required to cause the injuries did not establish the necessary intent for a murder conviction. Consequently, the no case submission was upheld, and the charge of murder was dismissed.

The final orders of the court were that the charge of murder against the respondent be dismissed, and the matter be remitted to the Magistrates’ Court for further proceedings in relation to the lesser offence of manslaughter. The court’s ruling underscored the importance of the prosecution proving beyond reasonable doubt that the accused had the requisite intent for a murder conviction, and that circumstantial evidence alone was insufficient to establish such intent.

Orders