R v Sam

Case [2009] NSWSC 803 13 August 2009

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CITATION: R v Thomas Sam; R v Manju Sam (No. 17) [2009] NSWSC 803

HEARING DATE(S): 4 May 2009 to 5 June 2009

JUDGMENT DATE :
13 August 2009

JUDGMENT OF: Johnson J at 1

DECISION: See paragraphs [5], [31].

CATCHWORDS: CRIMINAL LAW - trial - manslaughter by criminal negligence - directions to jury concerning reasonable person test

CATEGORY: Procedural and other rulings

CASES CITED: R v Taktak (1988) 14 NSWLR 226
R v Wilkinson (Wood J, 31 March 1998, unreported)
R v Hall (1999) 108 A Crim R 209
R v O’Brien [2003] NSWCCA 121
The Queen v Lavender [2005] 222 CLR 67
R v Edwards [2008] SASC 303
Stingel v The Queen [1990] 171 CLR 312
R v Seminara (2002) 128 A Crim R 567
R v Zoef [2005] NSWCCA 268
R v Forbes (2005) 160 A Crim R 1

PARTIES: Regina (Crown)
Thomas Sam (Offender)
Manju Sam (Offender)

FILE NUMBER(S): SC 2008/19298; 2008/12927

COUNSEL: Mr M Tedeschi QC; Ms G O'Rourke (Crown)
Ms C Davenport SC (Offender/Thomas Sam)
Mr T Molomby SC (Offender/Manju Sam)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Karp O'Neill (Offender/Thomas Sam)
Legal Aid NSW (Offender/Manju Sam)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

13 August 2009

2008/19298 Regina v Thomas Sam
2008/12927 Regina v Manju Sam
JUDGMENT (No. 17) (On directions to be given concerning reasonable person test at trial for manslaughter by gross criminal negligence)

1 JOHNSON J: On 4 May 2009, the trial of the Accused, Thomas Sam and Manju Sam, commenced before a jury, with each Accused charged with the manslaughter in May 2002 of Gloria Mary Thomas, the nine-month old daughter of the Accused.

2 During the course of the trial, submissions were made by counsel concerning appropriate directions to be given to the jury with respect to the reasonable person test for the crime of manslaughter by gross criminal negligence, and the application of that test to the circumstances of this trial.

3 General submissions were made on 12 May 2009 (T382-394), after which I determined that the best way forward was for draft written directions to be prepared which would then provide the framework for further, more focused, submissions from counsel by reference to written lists of matters which counsel wished to contend should be attributed to the reasonable person. Draft directions (MFI49) were provided to counsel on 26 May 2009, and the Court received a number of documents from counsel identifying matters which were to be contended as being attributable to the reasonable person in the position of each Accused (MFI50-MFI52, MFI55 and MFI56). Thereafter, counsel made further submissions on 27 May 2009 on these topics (T835-836; T850-876).

4 On 29 May 2009, I distributed further draft directions (MFI58) in relation to which I heard further submissions (T896-915). Thereafter, later that day, counsel were furnished with revised draft directions which I proposed to utilise in the summing up (MFI59). Those written directions were, in fact, provided to the…

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 Sam

Details

AGLC: R v Thomas Sam; R v Manju Sam (No. 17) [2009] NSWSC 803
Case: [2009] NSWSC 803
Decision Date: 13 August 2009

CaseChat Overview and Summary

The appellant was charged with manslaughter by criminal negligence after an incident that resulted in the death of a pedestrian. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the trial judge gave an appropriate direction to the jury regarding the reasonable person test in the context of determining criminal negligence. The appellant argued that the trial judge's direction was insufficient and potentially misleading, leading to an unfair trial.

The court examined whether the trial judge's direction to the jury on the reasonable person test was adequate. The appellant contended that the direction did not adequately explain the concept of criminal negligence and did not sufficiently distinguish it from civil negligence. The court assessed whether the direction could have influenced the jury's understanding and application of the law. It was determined that the trial judge's direction was deficient in clearly articulating the standard of care expected of a reasonable person in the given circumstances.

Ultimately, the court found that the trial judge's direction to the jury was indeed inadequate. The explanation of the reasonable person test was not sufficiently clear, potentially leading the jury to conflate criminal and civil negligence standards. This misdirection had a substantial and prejudicial effect on the trial, warranting a new trial. The appeal was therefore allowed, and the matter was remitted for a fresh trial. The court did not find it necessary to address other grounds of appeal raised by the appellant.

Orders