R v W N T & Dowdy

[2005] VSC 173

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1438 of 2004

THE QUEEN

v

WNT AND FIONA ANNE DOWDY

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2005
DATE OF RULING:	15 February 2005
CASE MAY BE CITED AS:	R v WNT
MEDIUM NEUTRAL CITATION:	[2005] VSC 173

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Criminal law – Ruling – Relationship of doctrine of concert to manslaughter by criminal negligence considered – Criminal liability of WNT derived from acts adopted by agreement – Complexities of applying concept of aiding and abetting identified

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Doherty	Kay Robertson, Solicitor for Public Prosecutions
For the First Accused	Mr P. Jones	Ryan Maloney Anderson
For the Second Accused	Mr L. Barker	Gallagher Holcroft

HIS HONOUR: 

1. The arguments in relation to concert, common purpose and aiding and abetting, are contained in the transcript in this matter, and I do not intend to repeat them.

1. I have already indicated my view that a common purpose to harass the deceased does not found an agreement to set fire to the carpet in the humpy, either as being within the ambit of that agreement or as a possible foreseeable consequence of that common purpose.

1. I reiterate my view that the foundation of criminal liability must be an agreement to the performance of acts or omissions capable of constituting the offence of criminal negligence, namely, the lighting of the fire, the circumstances surrounding its ignition and the subsequent conduct of the parties in relation to it.

1. If and when that agreement is established the acts and omissions become those of the accused (WNT).  Thereafter, whether the concerted acts which may be attributed to the accused constitute criminal negligence is to be determined by reference to the reasonable person of about the age of the accused.

1. Additionally, the Crown have pressed for the case against the accused  to be put on the alternative ground of aiding and abetting.  I will assume for the sake of argument that this alternative is open (see, for example, Giorgianni v. R[1]). 

   [1]16 A.Crim.R. 163

1. To establish complicity in this manner the Crown must at least prove the intentional aiding by acts or abetting by encouragement of WJR of acts perpetrated by him which go to make up the criminal offence, namely, manslaughter by criminal negligence.

1. In the circumstances here prevailing, whether the acts or omissions of WJR could amount to manslaughter by criminal negligence involves a retrospective objective assessment of the factual situation. 

1. Consequently, utilising this concept, the most that the accused could be aiding and abetting are the acts of WJR, which may be capable of constituting manslaughter by criminal negligence. 

1. Whether or not these acts do in fact constitute criminal negligence would need to be assessed by a jury, taking into account WJR's evidence, and having regard to his age.  In other words, the criminal liability of the accused would be derived from the criminal liability of WJR.

1. That task of assessment to which I have referred would involve the differentiation between the reasonable person test applied to what might conveniently be called the concerted acts of WNT, and that applied to WJR for liability based on aiding and abetting.  Again that jury task is notionally possible, but it would be rendered more onerous by the fact that the jury would have before them a plea of guilty by WJR, to manslaughter by criminal negligence, which is a concession by his plea that his acts and omissions in fact constituted the offence of manslaughter by criminal negligence.

1. Moreover, given the age of the accused at the time of the alleged offence I regard it as fairer and more straightforward that any criminal liability he may bear is based upon acts which he has adopted by agreement, explicit or inferred, which are assessed having regard to his level of maturity.

1. Accordingly, I rule that the prosecution should proceed upon what may be conveniently called the doctrine of concert, and not on the doctrine of aiding and abetting.

1. As I indicated yesterday I intend to allow the Crown to adduce evidence of the plea and conviction of WJR, GSJ and Reynolds, on a count of manslaughter.  I do not think that this approach would warrant a separate trial for the accused WNT.  A jury may be directed as to the limited purpose of the admission of this evidence and how it should be used.

1. Further, as was acknowledged in argument, the fact that the accused has pleaded not guilty may of itself be a factor which serves to favourably differentiate him from those that have admitted culpability.

1. Additionally, the way in which the Crown case will be presented, following these rulings, will necessarily concentrate the mind of the jury specifically upon the criminal liability or otherwise of the accused.

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