R v Robb (Ruling No 3)
[2015] VSC 505
•18 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0123
| THE QUEEN |
| v |
| KRISTY ROBB |
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2015 |
DATE OF RULING: | 18 September 2015 |
CASE MAY BE CITED AS: | R v Robb (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 505 (First revision: 21 September 2015) |
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CRIMINAL LAW – Evidence – Submission of no case to answer – Manslaughter by unlawful and dangerous act – Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 – DPP v Lawson & Ors (Ruling No 3) [2012] VSC 526 – R v Moffatt [2000] NSWCCA 174.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC with Ms S. Coombes | Ms V. Anscombe, Acting Solicitors for Public Prosecutions |
| For the Accused | Mr C. Mylonas | Paul Vale Criminal Law |
HIS HONOUR:
The accused, Ms Kristy Robb, is charged with one count of manslaughter and one count of, without lawful excuse, intentionally causing serious injury. The charges arise from an incident that occurred on 30 January 2014 at premises occupied by the deceased, Mr Alan Matthews, at 25 Henry Street, Noble Park.
In short, it is alleged that Ms Robb, in company with Mr Gino Rachele, attended these premises at approximately 2.30am for the purpose of retrieving various items belonging to Ms Robb that Mr Matthews was holding on account of what he claimed was outstanding rent from Ms Robb. Ms Robb, with her children, had, for a brief period of time earlier in January, rented a bungalow at the rear of the premises.
Ms Robb and Mr Rachele, whilst removing items from the bungalow at the rear of the premises, were disturbed by Mr Matthews. The Crown alleges that Ms Robb, in the loungeroom of the bungalow, struck Mr Matthews to the head with a blunt instrument, causing lacerations and either struck or stomped on Mr Matthews, causing a fracture of his sternum. It is claimed that these events caused Mr Matthews stress, pain and blood loss.
Mr Rachele, prior to the commencement of this trial, pleaded guilty to recklessly causing injury and false imprisonment. Upon his plea, Mr Rachele undertook to give evidence in this trial. The Crown case is that Mr Rachele did not cause any serious injury to Mr Matthews. The evidence of Mr Rachele is that during the course of the incident, he took Mr Matthews to the floor, that in taking him to the floor Mr Matthews bumped his head and may have injured his nose, that he restrained Mr Matthews on the floor of the kitchen for a period of a couple of minutes, and upon releasing him from the floor, he falsely imprisoned Mr Matthews, firstly in the lounge of the bungalow by holding the door shut, and then in the kitchen area of the bungalow by holding the door at the entrance to the bungalow shut. He stated he did not see Ms Robb strike or otherwise assault Mr Matthews.
Police were contacted by Mr Matthews at 2.53am. Mr Matthews informed the 000 operator that he had been ‘bashed by a woman and a bloke who came to get some stuff [sic]’ because ‘she had a bungalow here and I held some – held a couple of things back from them because they owed me rent … they bashed me with something and I think it was a torch. I’m not sure’.
Police attended the premises a short time later, where they located Mr Matthews dead in the bathroom. Evidence in the prosecution case at trial was to the effect that Mr Matthews suffered from advanced ischaemic heart disease and that the injuries and consequential stress, pain, and blood loss ‘ha[ve] stressed the heart to the point where because of its pre-existing disease it’s caused the heart to arrest’.[1]
[1]Woodford, Transcript at 387.3 - 387.8. See also Strathmore, Transcript at 425.10 - 425.14.
Mr Mylonas, counsel for the accused, at the conclusion of the prosecution case, has made a submission that there is no case to answer on the count of manslaughter. That submission is premised on the ground that, at the end of the prosecution case, the Crown is unable to establish which act in the overall circumstances of the incident caused the death of the deceased; that it cannot be established on the evidence whether the conduct of Ms Robb was a ‘substantial and operating cause of death’.[2]
[2]See Royall v R (1991) 172 CLR 378.
Mr Mylonas pointed to evidence in this case that could have caused the stress that potentially lead to Mr Matthew’s cardiac arrest but which was consistent with Ms Robb’s innocence. He pointed to the anger of the deceased, the deceased being woken up in the early morning, the verbal altercation with the accused, the pain and injuries as a consequence of being held on the ground by Mr Rachele and being falsely imprisoned by Mr Rachele. It was contended that the jury would be unable to disentangle this evidence and, further, ‘that the doctors themselves could provide no relative weighting or discrimination or guidance to the jury on how to do this’.[3] He referred to the evidence of Dr Noel Woodford where he agreed that he was in no position to advise the Court as to what individual role the conduct of Ms Robb and Mr Rachele, as alleged by the Crown, played in causing the death of Mr Matthews. Mr Mylonas submitted ‘that each of the acts of the accused, the co-accused and the deceased himself may have played a part in generating the documented injuries and they cannot be viewed globally, given the case is not argued on the basis of joint criminal enterprise. Not all the events in the narrative are the acts of the accused …’.[4]
[3]No Case Submission filed by the accused, [21].
[4]Transcript at 490.19 - 490.23.
In considering a no case submission, the Full Court of Victoria in Attorney-General’s Reference (No 1 of 1983) made it clear that:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly, a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury’s, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused …[5]
[5][1983] 2 VR 410, 415.
As Lasry J stated in DPP v Lawson & Ors (Ruling No 3) (‘Lawson’):
The fact that a reasonable hypothesis consistent with innocence can be formulated does not mean there is no case for the accused to answer; the question is whether, to the reasonable mind, inferences of guilt are reasonably open. Whether a verdict of guilty could be later set aside by the Court of Appeal as unsafe is not part of my concern in determining these issues.[6]
[6][2012] VSC 526, [6].
The submission made on behalf of the accused by Mr Mylonas is that none of the injuries sustained by Mr Matthews were, of themselves, lethal. It is for the prosecution to identify the acts that are said in this case to have caused death.
In R v Moffatt,[7] the New South Wales Court of Criminal Appeal stated:[8]
[7][2000] NSWCCA 174.
[8]Ibid, [66] - [68].
It does not matter that there is more than one cause of death: Butcher (1986) VR 43, even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a misapplication of principle to attempt a search for a principal cause of death
…
In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health.
Having noted that the precise mechanism of death was “obscure”, in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation.
Lasry J, in Lawson, conveniently brought together issues and authorities relating to causation, stating as follows:[9]
[9]Lawson [2012] VSC 526, [24] - [27].
A number of authorities were cited supporting the proposition that the presence of a constitution or defect unknown to the assailant which makes the victim more susceptible to death than would be a person in normal health does not enable the assailant to claim that the death is an accident. The Court of Criminal Appeal [in Moffat] noted that the trial judge directed himself in accordance with the judgment of the High Court in Royall where the court referred to the comments of Burt CJ in Campbell v R.[10] The Court of Criminal Appeal then said:
[10][1981] WAR 286, 290.
What is clear is that the act of the appellant must have more than a coincidental or insignificant effect – rather it must provide a substantial contribution towards the death of the deceased. Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context I am content to accept for the present purpose the latter.[11] (citations removed)
[11]R v Moffat [2000] NSWCCA 174, [71].
It is to be remembered that the law says that the conduct of the accused need not be the sole cause of the death of the deceased but must be a substantial cause of it. In R v Hallett,[12] the Court noted:
[12][1969] SASR 141.
The question to be asked is whether an act consciously performed by the accused is so connected with the event that it must be regarded as having sufficiently substantial causal effect which subsisted up to the [death of the deceased] without being spent, or without being in the eyes of the law sufficiently interrupted by some other act or event.
In Campbell v R,[13] in a passage accepted by the High Court in Royall,[14] Burt CJ said:
[13][1981] WAR 286.
[14](1990) 172 CLR 378, 387, 411, 412 and 423.
It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
In accordance with the test on a no case submission, I need not satisfy myself that causation is established. As Brooking JA said in R v Franklin,[15] the issue of a cause of death is of course one of fact for the jury. In R v Evans & Gardiner(No 2),[16] the Court said:
[15](2001) 3 VR 9, 28.
[16][1976] VR 523, 527 (Young CJ, Gillard and Anderson JJ).
The question whether the alleged act caused the death is not a question for the judge at a criminal trial. It is a question of fact for the jury.
As Barwick CJ said in Ryan v R:
But the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction.[17]
The only question that I have to determine is whether there is evidence which would leave it open to the jury to conclude that the acts of the accused Lawson in the putting of the deceased to the floor and his subsequent restraint face down into the floor caused the death of Dunning.[18]
[17](1966-1967) 121 CLR 205, 218.
[18]Lawson [2012] VSC 526, [24] - [27].
Mr Mylonas, in submissions, acknowledged that the Crown had presented sufficient evidence ‘to go to the jury that [the accused] committed some sort of act in that it had some sort of consequence’.[19] Much of the prosecution case may be circumstantial as it concerns the allegations made against Ms Robb, however, it cannot be doubted that the Crown ‘has led evidence upon which the accused could be convicted’.[20] The assaults alleged against Ms Robb are capable of being found by the jury to amount to a substantial contribution towards the death of the deceased. The question of cause ‘is not a philosophical or a scientific question’; it is a question of ‘common sense’ being applied ‘to the facts as [the jury] find them’.[21] I do not accept that the fact-finding task ahead of the jury is complicated. The jury will determine on the evidence if the Crown has proved its case against Ms Robb. If the jury were to find, as alleged by the Crown, that Ms Robb is responsible for the assaults causing injury to Mr Matthews’ head, if the jury were to determine that Ms Robb is responsible for the fracturing of the sternum of Mr Matthews, on the evidence adduced in this case by the Crown from Dr Woodford and Dr Neil Strathmore, the jury could find that the acts of Ms Robb made a substantial causal contribution towards the death of Mr Matthews.
[19]Transcript at 489.23 - 489.27.
[20]Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 415.
[21]Royall (1990) 172 CLR 378, 387 (Mason CJ).
The submission made by Mr Mylonas that the Crown case ‘is not argued on the basis of joint criminal enterprise’ and that ‘not all the events in the narrative are the acts of the accused’,[22] is not a relevant consideration. As stated, it is for the jury to determine on the narrative of evidence if it finds Ms Robb assaulted Mr Matthews and whether such assault had a substantial causal effect in, or a substantial contribution to, the death of Mr Matthews.
[22]Transcript at 490.19 - 490.24.
Mr Mylonas placed particular emphasis on the case of The Queen v Grant (‘Grant’).[23] Mr Mylonas relied upon the judgment of the New Zealand Court of Appeal to support his submission concerning causation that a ‘constellation’ of events caused the death of Mr Matthews and it is not possible to attribute any action of Ms Robb to the death. The facts in Grant are very different to those alleged in this proceeding. Grant was charged with manslaughter. In Grant, the deceased was accidentally killed in a fight with his two brothers against the accused Grant and another. The Court of Appeal, in finding no miscarriage from the course of trial, found the trial judge should have charged the jury that they could not properly convict without excluding the possibility that the death of the deceased could have been caused by some voluntary act of aggression by the deceased himself in participating in the fight. I am unable to see how the circumstances and reasons given in the judgment of Grant in any way relate to the circumstances of the matter before me.
[23][1966] NZLR 968.
I reject the application that there is no case to answer made on behalf of the accused.
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