R v Pace & Conduit (Ruling no 2) - [2008] VSC 308

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1499 of 2007

THE QUEEN

JOANNE PACE

and

KENNETH CONDUIT

First Accused

Second Accused

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 19 August 2008
DATE OF RULING:	19 August 2008
CASE MAY BE CITED AS:	R v Pace & Conduit (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 308

---

CRIMINAL LAW – No case submission – Negligent manslaughter – Causation – Combination of circumstances leading to breach of duty – Crown case put on two factual bases.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Forrester and Ms C. Barbagallo	Office of Public Prosecutions
For the First Accused	Mr M. O’Connell	Robert Stary & Associates
For the Second Accused	Mr B. Bourke with Mr G. Casement	Allan McMonnies

HIS HONOUR:

Both counsel for the accused in this case have submitted that there is no case to answer for either accused on the charge of manslaughter. The carriage of the submissions was undertaken by Mr O’Connell on behalf of the accused woman Pace. Mr Casement, led by Mr Bourke on behalf of the accused man Conduit, indicated his desire to adopt Mr O’Connell’s submissions. Mr Casement made some further supplementary submissions. Given the nature of the submissions, it is clear that if Mr O’Connell’s client succeeds in the application, then so must Mr Bourke and Mr Casement’s client. I will come to the basis on which that application is made but it is appropriate to first identify the principles which apply to an application of this kind.

In Doney v R,[1] the High Court confirmed the decision of Attorney‑General’s Reference (No. 1 of 1983),[2] which included a rejection of the view that a trial judge could stop the trial if in his or her opinion a verdict of guilty would be unsafe and unsatisfactory. The High Court, in discussing the law, quoted with some level of approval from R v Galbraith:

(1)If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2)The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a)Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b)Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are general speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion the defendant is guilty, then the judge should allow…

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 Pace & Conduit (Ruling no 2)

Details

AGLC: R v Pace and Conduit (Ruling no 2) [2008] VSC 308
Case: [2008] VSC 308
Decision Date: 19 August 2008

CaseChat Overview and Summary

The court dealt with an appeal by two respondents, Pace and Conduit, against a decision that required them to make a no case submission in relation to charges of negligent manslaughter. The case involved a tragic incident in which two individuals were killed when the vehicle in which they were travelling was struck by another vehicle, driven by one of the respondents. The Crown's case was presented on two alternative factual bases, both of which required the respondents to have breached a duty of care owed to the victims.

The primary legal issues before the court were whether the Crown had established a prima facie case against the respondents, and if not, whether the trial judge was correct in requiring the respondents to make a no case submission. The respondents argued that the Crown had failed to prove causation, a necessary element of the offence of negligent manslaughter. The court had to determine whether the Crown's evidence was sufficient to establish a prima facie case and whether the respondents' alleged breach of duty was a cause of the deaths.

The court held that the Crown had failed to establish a prima facie case of negligent manslaughter against the respondents. The court found that the evidence did not support the Crown's alternative factual bases, and therefore, the respondents' alleged breach of duty was not a cause of the deaths. The trial judge's decision to require the respondents to make a no case submission was quashed, and the charges against the respondents were dismissed. The court found that the evidence did not establish that the respondents' actions or inactions were a cause of the deaths, and therefore, they could not be held liable for negligent manslaughter.

Orders