R v Reid (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1684 of 2008

THE QUEEN	Plaintiff
v
DAVID JOHN REID	Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2009
DATE OF RULING:	11 June 2009
CASE MAY BE CITED AS:	R v Reid (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 240

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CRIMINAL LAW – Criminally negligent manslaughter – No case submission – Causation – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Lincoln	Office of Public Prosecutions
For the Defendant	Mr G Georgiou	Victoria Legal Aid

HIS HONOUR:

The accused is charged with manslaughter by criminal negligence (Count 1) and with intentionally causing injury (Count 2).
In substance, the Crown case is that he struck the deceased with a coffee cup causing injury (Count 2) and that, having struck her, he failed to assist her, either himself, or by calling in aid outside intervention, when he had a duty to do so, and that as a result of that criminally negligent failure to act the deceased died (Count 1).
The prosecution case closed yesterday morning and upon closure counsel on behalf of the accused submitted that I should direct an acquittal on Count 1, the manslaughter. The submission was that the prosecution case had a fatal defect.
There is no controversy as to the legal principle to be applied. The test is set out in Doney v. R.[1]
[1](1990) 171 CLR 207, 214‑215.
The High Court said:
"[I]f there is evidence (even if tenuous or inherent weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
Here counsel for the accused submitted that the defect which means that, taken at its highest, the evidence will not sustain a verdict of guilty is exposed by the evidence of the forensic pathologist called on behalf of the prosecution, Dr Woodford. Two passages were relied upon in this respect. The first is at transcript 161 and the second is at transcript 177‑178. I will turn to Dr Woodford's evidence more generally in a moment. For present purposes it suffices to say that Dr Woodford considered blood loss consequent upon what I will call the coffee cup injury to be a significant factor in the death.
At transcript 161 Dr Woodford responded to a question about the deceased's likelihood of survival if she had received medical attention some time shortly after that wound. He said:
"Given that I think that the blood loss here is a significant factor in the death, any medical attention that was able to be brought to bear to stop the bleeding is likely to have increased her chances of survival".
At transcript 178, in response to a question from me about the effect of medical intervention, he said:
"If stopping the bleeding would have increased her chances of survival, my opinion is probably, yes, but at what stage that intervention could have occurred, I don't really know, Your Honour".
The submission was that the jury must conclude from these passages that if the deceased had obtained medical treatment there was still a reasonable possibility she would have died. It was submitted that there is no evidence that the deceased would have survived if she had received medical treatment. Thus, it was submitted, the jury could not be satisfied beyond reasonable doubt that any neglect by the accused caused the death in the relevant sense. In this respect counsel for the accused particularly relied upon a decision of Lasry J in R v. Pace & Conduit (Ruling No. 2).[2]
[2][2008] VSC 308.
Counsel for the prosecution submitted that Pace & Conduit was significantly different to the position here. He submitted that Dr Woodford's evidence concerning the significance of blood loss, the means by which it might have been stopped, and the evidence about intervention, assessed in context, meant that there was evidence capable of supporting a verdict of guilty.
Whilst the submissions focused on Pace & Conduit, I have overnight read and considered the authorities on directed acquittals referred to by Lasry J in that decision, being the Full Court decision in R v. Evans & Gardiner (No.2);[3] R v. Everuss;[4] R v. Colomer;[5] the Court of Criminal Appeal decision in R v. Jones v. Waghorn;[6] the decision of Coldrey J in R v. Smith;[7] a further decision of Coldrey J in R v. Pretty,[8] and the English decision R v. Misra & Anor.[9]
[3][1976] VR 523.
[4](Unreported, 17 June 1987, Supreme Court of Victoria, Hampel J).
[5](Unreported, 17 August 1990, Supreme Court of Victoria, Smith J).
[6](Unreported, 22 March 1991, Supreme Court of Victoria Court of Criminal Appeal).
[7](1993) 117 A Crim R 298.
[8](Unreported, 27 February 1997, Supreme Court of Victoria, Coldrey J).
[9](2005) 1 Cr App R 21.
Before addressing the specific defect asserted to exist here on the basis of the two passages of Dr Woodford's evidence to which I have referred, it is necessary to say something of Dr Woodford's evidence more generally.
In due course, if the matter goes to the jury, they will have to assess Dr Woodford's evidence, just as they must assess all the evidence. Taken at its highest from the prosecution point of view, Dr Woodford's evidence could properly be assessed as establishing the following:
1.The cause of death was scalp injury in a woman with an enlarged heart and alcohol‑related liver disease.[10]
2.The scalp injury was the cause of death because it was the source of significant blood loss.[11]
3.The blood loss was "the significant inciting event" in the mechanism of death.[12]
4.As the examining forensic pathologist, he would not accept an hypothesis of death in the absence of the blood loss.[13]
5.Adequate pressure applied to the wound in the right position, even by a layperson, should have significantly staunched the bleeding.[14]
6.As the examining forensic pathologist, he was guarded and cautious in expressing opinions about the hypothetical outcome had medical intervention occurred shortly after the injury was inflicted, or at some unspecified time thereafter. He was not prepared to go beyond saying that medical intervention would have increased the deceased's chances of survival.[15]
[10]Transcript 161.
[11]Ibid 173.
[12]Ibid 180 and 160, 161, 166‑7, 168 and 176.
[13]Ibid 166, 167 and 168.
[14]Ibid 179.
[15]Ibid 178 and 161.
I emphasise that in setting out these matters I am endeavouring to put the prosecution case at its highest on these aspects of Dr Woodford's evidence. Obviously, other conclusions are also open.
Whilst the matter was not addressed in submissions, it is also important to observe that the jury has a detailed account of events from the accused which they may accept or reject or accept in part, and they also have detailed evidence of the physical circumstances at the house from which conclusions might be drawn as to the activities of the accused and the deceased over the relevant period.
I turn then to the defect in the prosecution case which, it is submitted, means that there is no evidence, even tenuous, weak or vague evidence, which is capable of supporting a verdict of guilty.
The law recognises that criminal responsibility may arise in cases where a person dies as a result of a process, or of circumstances operating over a period of time, which another person during that period of time could have interrupted or removed, where that other person had a duty to interrupt that process or remove those circumstances, but failed to do so.
Issues which almost invariably arise where allegations of that kind are made are whether there was a duty to act and the nature and extent of that duty. The kind of cases to which I am referring include those which are the subject of the authorities I cited in my earlier ruling in this case,[16] but extend more widely than those specific circumstances, as is revealed in the various catalogues of cases in which a duty to act has been recognised which are set out in some of the authorities I cited. They encompass a variety of failures, including failure to save a person from drowning, failure to feed and/or care for infants, and failure to care for people who are ill or injured or suffering from the effect of drugs. The existence of a duty to act will depend on the particular relationships and circumstances, as will the extent of that duty. The authorities reveal that one circumstance where a duty to act will arise is where a person creates the relevant fatal circumstances or initiates the fatal process by his or her own deliberate wrongful act, such as by binding and gagging a woman in the course of a burglary and then leaving her.
[16][2009] VSC 221.
The submission on behalf of the accused here, if accepted, would mean that in such cases the prosecution case is fatally flawed unless there is medical evidence that excludes the possibility of death even if action had been taken. I ask rhetorically, what doctor could ever say that in any such case? What doctor could say that there is no possibility a drowning person if removed from the water, or a starving child if fed and cared for, or a woman bound and gagged if released, would not have died anyway?
It is the jury's task in such cases to decide in a practical and commonsense way, using their own life experience, and having proper regard to their own assessment of the medical evidence, whether the prosecution has proved beyond reasonable doubt that the accused's failure to act, when there was a duty to do so, caused the death.
The nature and importance of the jury’s role was explained in this context by the Full Court in R v. Evans & Gardiner (No.2) and by the Court of Criminal Appeal in R v. Jones & Waghorn.
My conclusion is that there is no requirement that the jury may only reach a conclusion of guilt where there is expert medical evidence that positively excludes the possibility of death even if action had been taken. Dr Woodford's evidence taken at its highest is, it seems to me, capable of sustaining a conclusion of guilt, whether assessed in isolation or in the context of the accused's account of events and the other evidence.
In my view, Pace & Conduit is not authority for the proposition that medical evidence excluding the possibility of death even if action had been taken is essential. In that case a disabled person ingested poison in circumstances which were held not to involve criminal negligence. The medical evidence was that there was a real possibility of death from that moment onwards, whatever action had been taken thereafter. In the circumstances of that case, that was held to constitute a fatal flaw in the prosecution case that the disabled person's carers were criminally responsible for the death due to their failure to obtain prompt medical intervention. In my view, the infliction of the superficial wound by the accused here is not at all analogous to the ingestion of poison by the disabled person in Pace & Conduit. Further, in this case there is no medical evidence that death was a real possibility whatever was done after the point when the period of alleged neglect begins, in contrast to the position in Pace & Conduit.
I accordingly rule that I will not direct an acquittal on Count 1.

[2009] VSC 240

11 June 2009