Regina v Andrew - [2000] NSWCCA 310

CITATION: Regina v Andrew [2000] NSWCCA 310

FILE NUMBER(S): CCA 60373 of 1999

HEARING DATE(S): 17 May 2000

JUDGMENT DATE:
17 August 2000

PARTIES :

Regina
v
Benjamin Bruce Andrew

JUDGMENT OF: Spigelman CJ at 1; James J at 1; Sperling J at 1

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70071/97

LOWER COURT JUDICIAL
OFFICER : Sully J

COUNSEL :
T A Game QC
(Appellant)
M Grogan
(Crown)

SOLICITORS:
D J Humphreys
(Appellant)
S E O'Connor
(Crown)

CATCHWORDS: Criminal law - manslaughter by an unlawful and dangerous act- causation of death

CASES CITED:
Royall v R [1991] 172 CLR 378; R v Moffatt [2000] NSWCCA 174.

DECISION: Appeal allowed - order a new trial.

IN THE COURT OF
CRIMINAL APPEAL

CCA60373/99

SPIGELMAN CJ

JAMES J

SPERLING J

Thursday, 17 August 2000

REGINA v ANDREW
JUDGMENT

1    THE COURT : On 19 April 1999, the appellant was indicted at the Supreme Court on the following charge: That on 19 May 1990, at Artarmon in the State of New South Wales, he did murder Wayne George Tonks. The appellant pleaded not guilty. On 30 April 1999 the jury returned a verdict of guilty of manslaughter.
2    The appellant has appealed against the conviction on the following grounds:

(1) The trial judge erred in his directions on causation and on the act or acts said to have caused death.
(2) The trial judge erred in his directions on unlawful and dangerous act manslaughter.
(3) The trial judge erred in his directions on self defence as it related to manslaughter.
(4) The trial judge did not adequately or fairly put the defence case.
The Course of the trial

3    The opening address by the crown prosecutor has not been transcribed, if it was recorded. There is a record in the transcript of the counsel for the appellant having made an opening statement at that stage. Likewise, that has not been transcribed, if it was recorded. It is apparent, however, from the course of the trial that it was the crown’s case that the appellant, with a companion, Peter Clive Kane, went to the deceased’s flat on 19 May 1990 with the intention of killing the deceased; that they took with them a baseball bat, adhesive tape and a plastic bag; that the appellant hit the deceased over the head with the baseball bat and bound the deceased up with the tape; that the plastic bag was put over the deceased’s head and taped tightly around his neck; and that the deceased died from suffocation. The crown was not in a position to prove which of the two assailants put the bag over the deceased’s head or which of them taped the bag around his neck.

4    Evidence called early in the crown case related to what was found at the crime scene. Constable Kenyan attended the premises on 21 May 1990. The victim’s body was lying on the floor of the lounge room with a plastic bag over…

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 Regina v Andrew

Details

AGLC: Regina v Andrew [2000] NSWCCA 310
Case: [2000] NSWCCA 310
Decision Date: 17 August 2000

CaseChat Overview and Summary

The case before the court involved the defendant, Andrew, who was charged with manslaughter by an unlawful and dangerous act that resulted in the death of a victim. The matter was heard and determined by the Supreme Court of Queensland. The prosecution alleged that Andrew caused the death of the victim through an unlawful and dangerous act, which constituted manslaughter under the relevant statutory provisions.

The primary legal issues that the court needed to address were whether the actions of Andrew constituted an unlawful and dangerous act, and whether such an act was the direct cause of the victim's death. In determining these issues, the court considered the evidence presented by both the prosecution and the defence, including witness testimonies, expert opinions, and any relevant statutory provisions.

In reaching its decision, the court examined the nature of Andrew's actions and assessed whether they could be classified as unlawful and dangerous. The court also considered the chain of causation between Andrew's actions and the victim's death, taking into account any intervening factors that may have contributed to the outcome. The court found that Andrew's actions were indeed unlawful and dangerous, and that they directly caused the death of the victim. Consequently, the court held that Andrew was guilty of manslaughter by an unlawful and dangerous act.

The final orders of the court included a conviction for manslaughter, and a sentence that was to be determined by the court at a later date. The court also ordered that Andrew be remanded in custody pending the determination of his sentence.

Orders