R v Reid (Ruling No 3)
[2009] VSC 241
•12 June 2009
| 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: | 12 June 2009 | |
DATE OF RULING: | 12 June 2009 | |
CASE MAY BE CITED AS: | R v Reid (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 241 | |
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CRIMINAL LAW – Criminally negligent manslaughter – Alternative bases for finding of duty of care – Whether jury has to be unanimous on the duty of care.
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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:
This ruling assumes knowledge of my earlier rulings in this matter.[1]
[1][2009] VSC 221; [2009] VSC ?.
This ruling concerns the wording of a draft aide memoir for the jury regarding the elements of each charge that was distributed to counsel.
In this document the following was said in relation to the circumstances in which a duty at law will arise (insofar as relevant to the circumstances here):
At law, the following duties arise:
A. Where a person by his deliberate wrongful act places another in peril or in danger he has a duty to take reasonable steps to remove that danger or peril.
B. Where persons live together as domestic partners and one of them is rendered helpless through illness or injury the other has a duty to take reasonable steps to provide the helpless person with proper attention.
Submissions were made this morning by Mr Lincoln on behalf of the prosecution and Mr Georgiou on behalf of the defence, about whether the jury is required to be unanimous on the issue of the basis upon which any duty arises.
In substance I accept the submissions of Mr Georgiou. The principles have been set out in two appellate court decisions cited to me this morning; R v. Cramp,[2] a decision of the New South Wales Court of Criminal Appeal, and R v. Beach,[3] a decision of the Victorian Court of Criminal Appeal.
[2](1999) 110 A Crim R 198; [1999] NSWCCA 324.
[3](1994) 75 A Crim R 447.
In R v. Cramp what was said is that there is no reason to require unanimity in relation to alternate bases of criminal liability which do not involve materially different issues or consequences. In R v. Beach it was said that it is necessary to insist on unanimity where the alternate bases of liability are based upon disparate findings relating to the very foundations upon which the verdict rests.
It seems to me that, as Mr Georgiou submitted, there are two matters here which mean that the jury need to be unanimous about the duty.
The first is that duty A (on the aide memoir distributed to counsel) only arises where there has been a deliberate wrongful act, so that the jury would have to be satisfied beyond reasonable doubt that the coffee cup incident was a deliberate wrongful act which placed the deceased in peril.
The second matter is that the consequences of there being a duty under A are different to under B because, as Mr Georgiou submitted, the duty under A is potentially more onerous than the duty under B. It may well be, as Mr Lincoln submitted, that in the practical circumstances of this case there is little difference, but it seems to me that the potential is there for the duty under A to be more onerous than under B.
As the foundation for the duty is different and involves a finding of a deliberate wrongful act, and as the consequences are different, it seems to me that this is a situation where unanimity is required and I will instruct the jury accordingly.
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