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R v Sood (Ruling No 3)

R v Sood (Ruling No 3)

Case [2006] NSWSC 762 15 September 2006

Criminal Liability

Manslaughter

Jurisdiction

Admissibility of Evidence

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CITATION: R v Sood (Ruling No 3) [2006] NSWSC 762

HEARING DATE(S): 3 - 5, 10, 12 -14, 17 - 21, 24 - 28, 31 July 2006
1 - 4, 7 - 11, 16 - 18, 21 - 23 August 2006

JUDGMENT DATE :
15 September 2006

JUDGMENT OF: Simpson J

DECISION: 1. Pre-trial rulings - (i) Crown permitted to provide written outline of relevant principles of law during opening to the jury - (ii) test of proportionality in "unlawful" act is objective - (iii) Crown permitted to go to jury on manslaughter by criminal negligence; 2., 3. leave granted to Crown to question prosecution witnesses as though cross examining; 4.evidence given by Crown witnesses not subsequently excluded; 5. evidence of medical practitioner as to whether baby was born alive excised from jury transcript; 6. report of medical practitioner prepared for the Health Care Complaints Commission not admissible; 7. evidence of (i) lies and fabrication of notes left to jury as consciousness of guilt - (ii) conduct of counsel not available to found inference that accused was acting out of consciousness of guilt; 8. juror discharged on medical grounds, order that trial proceed with jury of eleven.

CATCHWORDS: criminal trial - jury - unlawful administration and supply of drug to procure miscarriage - manslaughter - interlocutory rulings on questions of evidence - whether Crown ought be permitted during opening to provide contentions of law in writing - construction of "unlawfully" in Crimes Act 1990 s83 - proportionality - test of proportionality objective - manslaughter by criminal negligence - duty of care to child once born alive - unfavourable witnesses - evidence relevant to credibility of accused and to asserted facts - Crown permitted to cross examine prosecution witnesses - evidence of medical opinion as to whether baby born alive - whether expertise established - use of medical report prepared for Health Care Complaints Commission - whether evidence from report admissible - evidence of medical practitioner admissible - whether disclosure of report unlawful - consciousness of guilt - conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt - discharge of one juror on medical evidence - order that trial proceed with jury of eleven

LEGISLATION CITED: Crimes Act 1900 s83
Criminal Code Act 1995 (Cth)
Evidence Act 1995 s38, s56, s59, s60, s66, s79, s81, s135, s137, s138, s177, s184, s192
Health Care Complaints Act 1993 s30, s99A
Jury Act 1977 s22

CASES CITED: CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Graham v The Queen [1998] HCA 61; 195 CLR 606
K v Minister for Youth and Community Services (1982) 1 NSWLR 311
Lynch v Lynch (1991) 25 NSWLR 411
R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46
R v Cook [2004] NSWCCA 52
R v Davidson [1969] VR 667
R v Le [2002] NSWCCA 186; 54 NSWLR…

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 Sood (Ruling No 3)

Details

AGLC: R v Sood (Ruling No 3) [2006] NSWSC 762
Case: [2006] NSWSC 762
Decision Date: 15 September 2006

CaseChat Overview and Summary

In the ruling of R v Sood, the Crown prosecuted the accused, Sood, for the unlawful administration and supply of a drug with the intent to procure a miscarriage, as well as manslaughter. The case was heard in the Supreme Court of New South Wales. The dispute centred around various legal questions regarding the admissibility and application of certain pieces of evidence during the trial.

The primary legal issues the court was tasked with resolving included whether the Crown should be permitted to submit written legal contentions during the opening of the trial, the interpretation of the term "unlawfully" as defined in section 83 of the Crimes Act 1990, the proportionality test for manslaughter by criminal negligence, the duty of care owed to a child once born alive, and the admissibility of expert medical opinion evidence. Additionally, the court needed to determine the conditions under which cross-examination of prosecution witnesses by the Crown would be allowed, the admissibility of medical reports prepared for other purposes, and the relevance of evidence pertaining to the credibility of the accused and the facts asserted.

The court ruled that the Crown could provide written legal contentions during the trial opening, provided they were relevant to the issues at hand. It interpreted the term "unlawfully" to require a demonstration of unlawful intent or knowledge. The court established that a proportionality test for manslaughter by criminal negligence should be applied, and that a duty of care was owed to a child once born alive. The court allowed the Crown to cross-examine prosecution witnesses and found that expert medical opinion evidence could be admitted if the expertise was established. However, the use of a medical report prepared for the Health Care Complaints Commission was deemed inadmissible unless certain conditions were met. The court also held that the conduct of counsel during the trial could not be used to infer a consciousness of guilt on the part of the accused. Ultimately, the trial proceeded with a jury of eleven following the discharge of one juror on medical grounds.

Orders