R v Mocenigo (Ruling No. 6)

[2012] VSC 456

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:	26 September 2012
DATE OF RULING:	26 September 2012
CASE MAY BE CITED AS:	R v Mocenigo (Ruling No. 6)
MEDIUM NEUTRAL CITATION:	[2012] VSC 456

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CRIMINAL LAW – Whether manslaughter by criminal negligence should be removed from jury’s consideration – Whether lack of prejudice to the accused justifies removal.

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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, on 24 September 2012, I ruled that the alternative count of manslaughter by negligence should be left to the jury as an alternative.[1]  That ruling was given over the protest of Mr Tinney SC, the prosecutor in the matter, and with the support of Mr McMahon on behalf of the accused. 

   [1]R v Mocenigo (Ruling No. 5) [2012] VSC 455.

1. This morning, at a point where I am some three‑quarters of the way through my charge and have directed the jury in relation to negligent manslaughter, Mr Tinney has sought to revisit whether or not negligent manslaughter should be left as an alternative to the jury.  He has raised a number of matters which include a submission that, albeit that he is the prosecutor, he is unable to see how it could be in the interests of the accused for this alternative to be left and adds what he described as a “rider” to his submissions that were I now willing to withdraw manslaughter by criminal negligence from the jury's consideration, the jury should be given a specific direction that in the event that they were not satisfied that the count of murder was established or that the alternative count of manslaughter by unlawful and dangerous act was established, they should proceed to verdicts of not guilty of murder and of manslaughter.

1. Mr McMahon's position is that the situation should remain as it is because that is what the law requires.  I have some sympathy for Mr Tinney's position and he has raised concerns about the risk of compromise.  He refers to practical concerns, such as, for example, as he put during the course of his submissions, in the event that the accused was found guilty of the alternative of manslaughter by criminal negligence, it might later be argued by counsel other than Mr McMahon, in the Court of Appeal, that such a count should not have been left to the jury.  I would have thought the true ground of appeal would be that such a conviction was unsafe and unsatisfactory.

1. However, it seems to me, that having concluded that this alternative of manslaughter is viable, I am bound by the words of Gummow J in Gillard v R[2] where, considering an argument, at least in broad terms, similar, Gummow J said:

In our view, there was a viable case of manslaughter to be left to the jury and the refusal to leave that case was a wrong decision on a question of law.

[2](2003) 219 CLR 1 at p 14.

1. In those circumstances, the matter should stand as it is and negligent manslaughter should remain with the jury for their consideration.