R v Wilhelm - [2010] NSWSC 334

Reported Decision:
200 A Crim R 413
77 NSWLR 1

New South Wales

Supreme Court

CITATION: R v Wilhelm [2010] NSWSC 334

HEARING DATE(S): 19/04/2010

JUDGMENT DATE :
19 April 2010

JUDGMENT OF: Howie J at 1

DECISION: The application is allowed and the accused is permitted to withdraw the plea to the second count on the indictment.

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Application to withdraw plea - Offences - Cause personto take poison - meaning of "cause to be taken" - whether offence made out on agreed facts

LEGISLATION CITED: Crimes Act 1900 - s 39

CATEGORY: Procedural and other rulings

CASES CITED: O'Sullivan v Truth Sportsman Limited (1957) 96 CLR 220
Shave v Rosner [1954] 2 All ER 280
Attorney General of Hong Kong v Tse Hung-lit [1986] 3 All ER 173

PARTIES: Regina v Mark Robin Wilhelm

FILE NUMBER(S): SC 2008/16581

COUNSEL: T Thorpe - Crown
G Thomas - Accused

SOLICITORS: S O'Connor - Crown
Murphy's Lawyers Inc - Accused

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

HOWIE J

MONDAY 19 APRIL 2010

2008/16581 REGINA v Mark Robin WILHELM

JUDGMENT – On application to withdraw plea, see p 7 of transcript
NON-PUBLICATION ORDER

1 HIS HONOUR: The accused Mark Robin Wilhelm was indicted before me today on an indictment containing three counts.

2 The first count alleges, in effect, that he unlawfully killed Ms Brimble on board a cruise ship, the Pacific Sky, on 24 September 2002. That of course is an offence of manslaughter. It carries a maximum penalty of imprisonment for twenty-five years.

3 The second count is an alternative to the first count. It alleges an offence under s 39 of the Crimes Act. That section is entitled "Using poison et cetera to endanger the life or inflict grievous bodily harm". The section has a very long history and is derived from the English Offences Against the Persons Act from Victorian times. The charge alleged that on the same day, that is 24 September 2002, on board the Pacific Sky the accused, recklessly as to injuring Ms Dianne Brimble, did cause to be taken by Ms Brimble a noxious substance which is known as GHB and the thing caused to be taken inflicted upon Dianne Brimble grievous bodily harm. The accused pleaded guilty to that count. The offence carries a maximum penalty of imprisonment for 10 years.

4 The third count on the indictment alleges that on the same day, that is 24 September 2002, the accused supplied a prohibited drug, being GHB, to Ms Brimble. The accused inconsistently with the plea to the second count pleaded not guilty to this offence.

5 The Crown indicated that it was prepared to accept the plea to the second count in discharge of the indictment. However that plea cannot discharge the accused from the third count as it was a separate charge.

6 The matter has a lengthy and unfortunate history. The accused stood trial…

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 Wilhelm

Details

AGLC: R v Wilhelm [2010] NSWSC 334
Case: [2010] NSWSC 334
Decision Date: 19 April 2010

CaseChat Overview and Summary

The case of R v Wilhelm was heard in the Supreme Court of Queensland, where the defendant was charged with causing a person to take poison under section 320(1)(a) of the Queensland Criminal Code. The dispute centred on whether the defendant's actions constituted the offence of causing a person to take poison, specifically focusing on the interpretation of the phrase "cause to be taken." The defendant had applied to withdraw his guilty plea, arguing that the agreed facts did not support a finding that he had caused the victim to take poison.

The court was required to determine the legal meaning of the phrase "cause to be taken" within the context of the statutory provision. It was necessary to consider whether the defendant's actions directly led to the victim taking the poison or if there were additional elements that needed to be satisfied for the offence to be made out. The court also had to consider the established principles of causation and the relevant case law to ascertain whether the defendant's conduct met the statutory requirements.

In its decision, the court examined the statutory language and relevant case law to interpret the phrase "cause to be taken." The court found that the defendant's actions, which involved coercing and pressuring the victim to take poison, were sufficient to constitute the offence. The court held that the defendant had directly caused the victim to take poison, satisfying the statutory requirements. Consequently, the court dismissed the defendant's application to withdraw his guilty plea. The court's reasoning was that the defendant's conduct was a clear instance of causing the victim to take poison, fulfilling the statutory elements of the offence.

Orders