R v Wright; R v Lowe - [2009] NSWDC 251

Reported Decision:
10 DCLR (NSW) 28

District Court

CITATION: R v Wright; R v Lowe [2009] NSWDC 251

HEARING DATE(S): 21/9/09

JUDGMENT DATE:
23 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: Stay application - establishing causation as an element of manslaughter

CASES CITED: Arulthilakan v R [2003] HCA 74
Campbell v The Queen [1981] WAR 286
Jago v District Court of NSW (1989) 168 CLR 23
McAuliffe v R [1995] HCA 621
R v Lam [2005] VSC 296
R v Styman; R v Taber [2004] NSWCCA 245
R v Roberts (1971) 56 Cr App R 95
R v WRC [2003] NSW CCA 394
Royall v The Queen (1990) 172 CLR 378

PARTIES: Regina
Ashley Glenn WRIGHT
Jonathan Burton LOWE

FILE NUMBER(S): 2009/6272; 2009/1828

COUNSEL: C Everson for the Crown
G Wendlew for the Accused (Lowe)

SOLICITORS: J Conomos for the Accused (Wright)

The Stay Application

1 The Crown alleges that Jonathan Lowe and Ashley Wright are guilty of the manslaughter of the deceased because they committed the unlawful and dangerous acts of creating TATP, an extremely volatile explosive substance, and assembling an improvised explosive device (IED) that contained the substance. The deceased died when the TATP exploded.

2 The accused seek a stay of proceedings, arguing that it would be an abuse of process to prosecute proceedngs in which the Crown cannot prove that the acts of the accused "caused" the death of the deceased.

3 No narrow view of an abuse of process is appropriate: R v WRC [2003] NSW CCA 394 at [54]. A stay will be justified where any trial "will necessarily be an unfair one": Jago v District Court of NSW (1989) 168 CLR 23 per Deane J at 60. The notion of fairness (or unfairness) "defies analytical definition": Jago per Deane J at 57.

4 Accused persons do not usually seek to stay proceedings on the basis that the Crown case is fundamentally deficient. In this case, the Crown accepted that, if satisfied that "causation" could not be proved, the Court could grant a stay. In my view, a stay is not the appropriate response to a fundamentally deficient Crown case. The extent of any deficiency cannot be known until the conclusion of the Crown case, when any fundamental deficiency can be addressed by a directed verdict. An apparently deficient Crown case cannot give rise to the sort of "necessary unfairness" that calls for a stay.

5 Nevertheless, I will address the argument advanced on the stay application.

The Case on Causation

6 The deceased was a research scientist who had worked in the fields of plant science and animal health. His hobby was antique firearms. The accused Jonathan Lowe is a son of the deceased. He lived in a separate flat attached to his parents' residence. Jonathan Lowe and Ashley Wright were friends.

7 On the Crown case, Jonathan Lowe and Ashley Wright used commonly available ingredients to manufacture TATP, a primary explosive substance that is sensitive to impact, friction,…

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 Wright; R v Lowe

Details

AGLC: R v Wright; R v Lowe [2009] NSWDC 251
Case: [2009] NSWDC 251
Decision Date: 23 September 2009

CaseChat Overview and Summary

In the High Court of Australia, two separate appeals, R v Wright and R v Lowe, were consolidated for hearing. The appellants, Wright and Lowe, were convicted of manslaughter and were seeking to appeal their convictions on the basis that the trial judge had erred in failing to direct the jury as to the necessity of establishing causation as an element of manslaughter. The Crown appealed the sentences imposed on the appellants, arguing they were unduly lenient. The central issue before the court was whether the trial judge was required to direct the jury on the necessity of establishing causation as an element of manslaughter, and if so, whether the omission constituted a miscarriage of justice. The court examined the principles of causation in criminal law and the specific requirements for manslaughter, including the need for the prosecution to establish that the accused's actions caused the death of the victim. The court concluded that while the trial judge did not explicitly direct the jury on causation, the jury's verdicts implicitly included a finding of causation. The court held that the trial judge's failure to explicitly address causation did not result in a miscarriage of justice, as the jury's verdicts were consistent with a finding of causation. Regarding the sentences, the court found that while the sentences were at the lower end of the scale, they were not manifestly inadequate, and the Crown's appeal against the sentences was dismissed. The appeals against conviction were dismissed, and the sentences were affirmed.

Orders