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

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:

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.

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.

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.

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…

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 Mocenigo (Ruling No. 5)

Details

AGLC: R v Mocenigo (Ruling No. 5) [2012] VSC 455
Case: [2012] VSC 455
Decision Date: 24 September 2012

CaseChat Overview and Summary

The court was presented with a case involving the defendant, Mocenigo, who was accused of manslaughter by criminal negligence. The dispute centred around whether the jury should be left to decide whether Mocenigo was criminally negligent and whether the necessary causal link between the negligence and the victim's death was open for inference. The matter was heard in the Supreme Court of the relevant jurisdiction.

The legal issues before the court were whether the evidence presented was sufficient to allow the jury to find that Mocenigo was criminally negligent and if the jury was entitled to infer causation between the negligence and the victim's death. The court had to consider the standard of proof required for a finding of criminal negligence and whether there was a direct causal link between the defendant's actions and the victim's death.

In delivering the ruling, the court found that the evidence was sufficient to allow the jury to determine that Mocenigo was indeed criminally negligent. The court also held that the jury was entitled to infer causation between the defendant's negligence and the victim's death. The court based its decision on the principles of criminal negligence and causation, emphasising the importance of a high standard of proof in criminal cases. As a result, the court ruled that the matter should be left to the jury to decide on the matter of criminal negligence and causation.

The final orders of the court were that the matter should proceed to the jury to determine whether Mocenigo was criminally negligent and whether there was a causal link between the negligence and the victim's death. The jury was instructed to consider the evidence presented and apply the appropriate legal standards in making their decision.

Orders