R v Musa (No 2)

Case [2023] NSWSC 247


Supreme Court


New South Wales

Medium Neutral Citation: R v Musa (No 2) [2023] NSWSC 247
Hearing dates: 14 November – 12 December 2022
Decision date: 21 March 2023
Jurisdiction:Common Law
Before: Button J
Decision:

Jury directed in accordance with narrow understanding of the legal concept of voluntariness

Catchwords:

CRIMINAL PROCEDURE — murder trial — directions to jury – where accused raises issue as to whether the collision that directly caused death was voluntary - voluntariness as a legal concept – whether the jury should be directed that the collision had to be “deliberate” to be satisfied of the element of voluntariness – discussion of the decision in Ryan v The Queen – voluntariness as part of the actus reas rather than mens rea – jury directed in accordance with narrow interpretation of voluntariness

Legislation Cited:

Crimes Act 1900 (NSW) Pt 11A

Cases Cited:

Bratty v Attorney-General (Northern Ireland) [1963] AC 386

Herodotou v R [2018] VSCA 253

Jiminez v R (1992) 173 CLR 572

Murray v R (2002) 211 CLR 193

Penza and Di Maria v R [2013] NSWCCA 21

R v Cottle [1958] NZLR 999

R v Falconer (1990) 171 CLR 30; [1990] HCA 49

R v Hines (No 1) [2014] NSWSC 701

R v Meakin [2019] NSWSC 1311

R v Schaeffer (2005) 13 VR 337; [2005] VSCA 306

R v Venna [1976] QB 421; [1975] 3 All ER 788

R v Whitfield [2002] NSWCCA 501

R v Williamson (1996) 67 SASR 428; (1996) 92 A Crim R 24

R v Winter [2006] VSCA 144

Ryan v The Queen (1967) 121 CLR 205

Ugle v R (2002) 211 CLR 171

Category:Procedural rulings
Parties: Rex (Crown)
Jackline Sabana Musa (Accused)
Representation:

Counsel:
S Hughes (Crown)
M Avenell SC with R Khalilizadeh (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2020/190754
Publication restriction: Nil

JUDGMENT

The issue

  1. An issue arose in the trial for murder of Ms Jackline Sabana Musa (for these purposes, “the accused”) about how I should direct the jury regarding the legal concept of voluntariness. This judgment explains why I directed the jury as I did, both orally and in writing, and both before and during my summing-up.

  2. By way of background, and expressing myself generically in light of the issue, Mr Payman Thagipur (“the deceased”) died as a result of the application of force to his body by an SUV, in the driver’s seat of which the accused was sitting at the time.

  3. As can be seen from the transcript [1] , senior counsel for the accused and I discussed the question at length before it was resolved by me giving the jury the attached Document 2 about the elements of murder, and explaining it to them. Later the same day, I adopted the same approach with the further attached Document 3 about the elements of manslaughter.

    1. See voir transcript (VDT) at 4-6, 45,48; and trial transcript (TT) at 2, 29, 38-47, 113-114, 116,…

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AGLC
R v Musa (No 2) [2023] NSWSC 247
Case
[2023] NSWSC 247
Decision Date

CaseChat Overview and Summary

The case of R v Musa (No 2) involved the respondent, Musa, who was on trial for murder. The primary dispute centred on the voluntariness of the collision that led to the death of the victim. The trial took place in the Supreme Court of New South Wales. Musa argued that the collision was not voluntary, thereby negating the element of voluntariness required for the crime of murder.

The legal issues the court needed to resolve were whether the jury should be directed that the collision had to be "deliberate" to satisfy the element of voluntariness and how the concept of voluntariness should be interpreted in the context of the actus reus. The court considered the decision in Ryan v The Queen and the distinction between voluntariness as part of the actus reus rather than the mens rea. The court examined whether the jury should be directed that the collision had to be deliberate to satisfy the requirement of voluntariness.

The court concluded that voluntariness is an integral part of the actus reus and does not necessarily require a deliberate act. The court held that the jury should be directed in accordance with a narrow interpretation of voluntariness, which did not require a deliberate act. The court found that the respondent's actions, while not deliberate, were still voluntary, and the trial proceeded on this basis. The court did not find it necessary to direct the jury that the collision had to be deliberate to satisfy the element of voluntariness. The final orders of the court were to proceed with the trial based on the narrow interpretation of voluntariness as part of the actus reus.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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