R v Mocenigo (Ruling No. 5)

[2012] VSC 455

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0029 of 2012

THE QUEEN

v

ADAM MOCENIGO

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2012
DATE OF RULING:	24 September 2012
CASE MAY BE CITED AS:	R v Mocenigo (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2012] VSC 455

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CRIMINAL LAW – Whether manslaughter by criminal negligence should be left to the jury – Whether finding of criminal negligence open – Whether inference of causation open.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney SC with Ms S Flynn	Office of Public Prosecutions
For the Accused	Mr J McMahon with Ms K Argiropoulos	Michael J Gleeson & Associates

HIS HONOUR:

1. In this matter, an issue has arisen as to the way in which manslaughter as an alternative to murder should be left to the jury.  It is common ground that as an alternative to murder, the offence of manslaughter should be left on the basis of manslaughter by unlawful and dangerous act.  The question which has arisen is whether an alternative basis for manslaughter, that is manslaughter by criminal negligence, should also be left to the jury.

1. As I understand the position, on a charge of murder the trial judge is required to leave alternatives to the jury which, in his or her opinion, on the evidence, are viable.[1]

   [1]Gillard v The Queen (2003) 219 CLR 1; Gilbert v The Queen (2000) 201 CLR 414; R v Gill; R v Mitchell (2005) 159 A Crim R 243; R v Parsons; R v Stocker (2004) 145 A Crim R 519; R v Makin (2004) 8 VR 262; Koutsouridis v R (1982) 7 A Crim R 237; R v Evans and Lewis [1969] VR 858 at 866.

1. This is a trial where the Crown has put the case to the jury on the basis that an act or acts of the accused caused the death of the deceased without specifically identifying that act or those acts because there is no medical evidence or evidence from a witness to the death of the deceased which enables the precise nature of the cause of death to be identified. Nonetheless, the Crown put the case, as I have already ruled they should be entitled to,[2] to the jury on the basis that a combination of all the circumstantial evidence permits a conclusion that the accused caused the death of the deceased by some conscious, voluntary and deliberate act, perhaps relevantly for these purposes, unknown.

   [2]R v Mocenigo (Ruling No. 4) [2012] VSC 442.

1. This issue arises on the understanding that it would only be considered by the jury if: 1) the jury reject the Crown contention that the accused caused the death of the deceased with an intention to kill her or cause her really serious injury; and 2) the jury is not satisfied that the Crown, on the alternative of manslaughter, have established the elements of manslaughter by an unlawful and dangerous act, particularly the unlawful and dangerous components of the elements of that offence.  The question is whether negligence is an appropriate alternative verdict to be left.

1. Mr Tinney, on behalf of the prosecution, submits that it should not be left.  Mr McMahon, on behalf of the accused, submits that it should be.  There is only one evidentiary basis on which such a verdict could even be considered, that is the accused’s own account of the death of the deceased.  In the statement of the accused read to the police during the course of a record of interview on 6 April 2011, he said in part: 

After maybe 30 seconds, she calmed down and I heard her making strange noises.  She was on her front and I rolled her over on to her back.  I thought she had passed out but it was then realised she wasn't breathing.  We were both still on the bed and I shook her to try and wake her up but she did not move.  I then tried to give her mouth‑to‑mouth resuscitation.  In doing so, she coughed something into my mouth but didn't start breathing again.  I then slumped down on the floor, crying, in the bedroom and couldn't move my legs.  I think I was paralysed by the shock of what had happened.  It all felt too surreal.

1. Negligent manslaughter arises for consideration in circumstances where, firstly, the accused owes a duty of care to the victim, in this case to Kristy‑Lee Hall.  As I understand the law,[3] there could be no argument that he did not owe her such a duty, particularly in the circumstances that arose here.  The third element of negligent manslaughter, that the act which breached the duty of care, was committed consciously, voluntarily and deliberately, also could not really be in contention. 

   [3]R v Reid [2010] VSCA 234.

1. The question is whether or not the second element of proof of criminal negligence is open to be established on that piece of evidence.  A person acts with criminal negligence if their acts fell so far short of the standard of care that a reasonable person would have exercised and involve such a high risk of death or really serious injury that it deserves criminal punishment.  In the circumstances that arose here, on the account given by the accused, there had been a physical confrontation of some kind, as he describes it, between himself and the deceased; towards the end of that physical confrontation, he became aware that the deceased had ceased to breathe; and he had the presence of mind to then attempt mouth‑to‑mouth resuscitation, evidence from which the accused’s realisation that Kristy-Lee Hall was in some difficulty could be inferred.  He then became aware that his attempt at resuscitation had failed, in circumstances where he was apparently working to render medical assistance in order to save the life of the woman in respect of whose relationship with him he was trying to save.  To have got to the point where his own efforts at saving her life appeared to be failing and then to have done nothing seems to me to be inexplicable and therefore potentially criminally negligent. 

1. Depending on the interpretation of the evidence, the fourth element, that the breach of duty was the cause of the victim's death, on this version of the facts, is also open to be concluded adversely to the accused.  Mr Tinney argued that it was not possible to establish that the accused’s failure to obtain further medical assistance for the deceased caused her death.  Mr McMahon submitted that the jury would be entitled to draw that inference on the totality of the evidence, just as the jury would be entitled to infer that an act of the accused caused the death of the deceased in respect of murder and unlawful and dangerous act manslaughter.  In my opinion, the jury would be entitled to draw the inference from the totality of the evidence, including the accused’s statement that the deceased “coughed something into [his] mouth”, that the failure to obtain medical assistance caused Kristy-Lee Hall’s death.

1. I do not, by this ruling, indicate that the case in relation to that, bearing in mind the submissions made to me by Mr Tinney, is an overwhelmingly strong case.  There might be all sorts of difficulties which could be raised of the kind that Mr Tinney raised, but I do not accept that the circumstances on which such a verdict might be based are fanciful, though they do depend on acceptance of what is in the statement of the accused made to the police on 6 April 2011.

1. In all the circumstances, it seems to me I should leave that as an alternative basis for manslaughter.  I would add that, in the event that the verdict is a verdict of not guilty of murder but guilty of manslaughter, the jury will be asked to specify whether it is manslaughter by unlawful and dangerous act or by criminal negligence.