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R v Musa (No 2)

R v Musa (No 2)

Case [2023] NSWSC 247 21 March 2023

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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

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.
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.
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,…

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 Musa (No 2)

Details

AGLC: R v Musa (No 2) [2023] NSWSC 247
Case: [2023] NSWSC 247
Decision Date: 21 March 2023

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