CRIMINAL LAW – Appeal – Conviction – Manslaughter by unlawful and dangerous act – Death of baby resulting from subdural haemorrhage – Expert evidence rejected shaking of baby as ‘real possibility’ – Whether verdict contrary to expert evidence – Whether other evidence justified jury in concluding that shaking by applicant did cause death – Whether open to jury to conclude that act was dangerous in the required sense – Whether verdict unsafe and unsatisfactory – Appeal allowed – Conviction quashed – Verdict of acquittal entered.
CRIMINAL LAW – Trial – Jury direction – Requirement of unanimity – Manslaughter case advanced on alternative bases – Separate physical acts on different days each said to be capable of constituting the offence – Whether jury directed as to the need to be unanimous as to which act founded conviction – Walsh (2002) 131 A Crim R 299.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant
Mr D Grace QC
Robert Stary & Associates
MAXWELL P:
After a trial before a Supreme Court jury, the applicant was convicted of the manslaughter of his four week old son, Izaiah. He was sentenced to five years’ imprisonment with a non-parole period of two years. He now seeks leave to appeal against his conviction. An application for leave to appeal against sentence was abandoned.
The application was first heard on 11 March 2008, before a bench comprising Neave JA, Coldrey AJA and myself. In the course of the hearing, Coldrey AJA raised the question of whether the jury had been appropriately directed as to the need for unanimity, an issue dealt with later in these reasons. That matter not having been raised in advance by the applicant, the Court gave leave to the parties to file written submissions after the hearing. After a review of those submissions, the Court decided that further oral argument was necessary. It was not practicable for that to take place before the retirement of Coldrey AJA on 4 April 2008. It was, accordingly, necessary for the application to be reheard, before the bench as presently constituted.
The sole ground of appeal raised in the written application was that the conviction was unreasonable. At the conclusion of the rehearing, leave was granted to the applicant (without objection from the Crown) to add a second ground, concerning the adequacy of the direction on unanimity. Before dealing with the grounds, it is necessary to set out the relevant facts as disclosed by the evidence at the trial.
The events leading up to the death
The child Izaiah was born on 29 June 2005. The birth was induced electively at 39 weeks. The baby was healthy…
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
AGLC
R v Klamo [2008] VSCA 75
Case
[2008] VSCA 75
Decision Date
CaseChat Overview and Summary
In the case of R v Klamo, the respondent, Klamo, was initially convicted of manslaughter following the death of his baby due to a subdural haemorrhage. The court of appeal was tasked with reviewing the conviction and considering whether it was contrary to the expert evidence presented, whether the other evidence justified the jury's conclusion that the shaking by the applicant caused the death, and whether it was open to the jury to conclude that the act was dangerous in the required sense. Additionally, the court examined whether the verdict was unsafe and unsatisfactory.
The legal issues the court had to decide involved the interpretation of the manslaughter charge, specifically whether the jury was adequately directed regarding the requirement of unanimity in a manslaughter case advanced on alternative bases. The court had to consider whether the jury was properly directed as to the need to be unanimous as to which act founded the conviction, in accordance with the principles established in Walsh (2002) 131 A Crim R 299.
The court found that the conviction was unsafe and unsatisfactory as it was not open to the jury to convict the applicant on the basis of the expert evidence which was rejected. The court held that it was open to the jury to convict on the basis of other evidence, but the jury had not been properly directed on the requirement of unanimity in a case advanced on alternative bases. The court quashed the conviction and entered a verdict of acquittal.