R v Pace & Conduit (Ruling no 2)

Case [2008] VSC 308


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1499 of 2007

THE QUEEN
v

JOANNE PACE

and

KENNETH CONDUIT

First Accused

Second Accused

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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

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

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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:

  1. 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.

  1. 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…

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R v Pace and Conduit (Ruling no 2) [2008] VSC 308
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[2008] VSC 308
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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.

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