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Reid v The Queen

Reid v The Queen

Case [2010] VSCA 234 16 September 2010

Criminal Liability

Manslaughter by Criminal Negligence

Aggravating Circumstances

Manifest Excessiveness

Appeal

Jurisdiction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

DAVID JOHN REID	S APCR 2009 0766
	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 September 2010
DATE OF JUDGMENT	16 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 234
JUDGMENT APPEALED FROM	[2009] VSC 326 (Whelan J)

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CRIMINAL LAW – Conviction – Manslaughter by criminal negligence – Alcoholic man bashing alcoholic de facto wife on head with wine cup, causing serious apparent blood loss and leaving her to die without medical or other assistance – Whether open to jury to convict of manslaughter by criminal negligence – Whether verdict unsafe and unsatisfactory.

Verdict – Alternative verdicts – Included offences – Whether count of intentionally causing injury included allegation of recklessly causing injury – R v Salisbury [1976] VR 448, followed; R v Wilson [1984] AC 242, distinguished – Crimes Act 1958, s 421(2).

Practice and procedure – Amendment – Presentment – Whether open to amend presentment after accused put in charge of jury – Whether open to amend presentment preferring count of intentionally causing injury, to add count of recklessly causing injury, after jury retired to consider verdict – Observations as to desirability of re-arraigning accused following amendment – R v Martin [1962] QB 221, Reg v Johal [1973] 1 QB 475, applied; R v Hoser [1998] 2 VR 535, R v Ernst [1984] VR 598, R v Radley (1973) 15 Crim App R 394, 404 referred to – Crimes Act 1958, s 372(1); Indictments Act 1915 (UK), s 5(1).

Sentencing – Manslaughter by criminal negligence – Aggravating circumstances – Whether judge erred in treating applicant’s acceptance of victim’s rejections of offers of assistance as aggravating circumstance or absence of mitigating circumstance – Manifest Excessiveness – Whether sentence of five years’ imprisonment with non-parole period of three years manifestly excessive.

Applications for leave to appeal against conviction and sentence dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P J Lawrie	Victoria Legal Aid
For the Crown	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

HARPER JA
HANSEN JA:

Following a trial in the Criminal Division, the applicant was convicted of one count of the manslaughter by criminal negligence of his de facto wife, Nola Joan Ritter, at Noble Park on 21 May 2006, and one count of recklessly causing her injury, and he was sentenced therefor to a total effective sentence of five years’ imprisonment[1] with a non-parole period of three years. He now applies for leave to appeal against conviction and sentence.
[1]The judge imposed an individual sentence of five years’ imprisonment on the count of manslaughter, and of one month’s imprisonment on the count of recklessly causing injury, to be served concurrently.

The facts

The applicant and the deceased were alcoholics who lived together as de facto man and wife and who spent the better part of their combined social security benefits in purchasing cheap cask wine…

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 Reid v The Queen

Details

AGLC: Reid v The Queen [2010] VSCA 234
Case: [2010] VSCA 234
Decision Date: 16 September 2010

CaseChat Overview and Summary

The case of Reid v The Queen involved the defendant who was convicted of manslaughter by criminal negligence. The defendant had bashed his de facto wife on the head with a wine cup while both were heavily intoxicated. This action caused her serious blood loss, and he left her to die without seeking medical or other assistance. The case was heard in the court of appeal, where several significant legal issues were addressed. The first issue was whether it was open to the jury to convict the defendant of manslaughter by criminal negligence. The second issue was whether the verdict was unsafe and unsatisfactory. Additionally, the court considered whether the count of intentionally causing injury included the allegation of recklessly causing injury.

The court examined the legal precedents, applying the principles from R v Salisbury and distinguishing R v Wilson. It was held that the jury was entitled to consider the charge of manslaughter by criminal negligence. The court also ruled that the verdict was not unsafe or unsatisfactory. Regarding the issue of including offences in the count of intentionally causing injury, the court concluded that the allegation of recklessly causing injury was not included, following the principles established in R v Salisbury. The court further examined the practice and procedure concerning amendments to the presentment and whether it was permissible to amend the presentment after the accused had been put in charge of the jury and after the jury had retired to consider the verdict.

In addressing these procedural issues, the court referred to R v Martin and Reg v Johal, while also considering R v Hoser and R v Ernst. The court held that it was not open to amend the presentment after the jury had retired to consider the verdict. However, the court did observe that in certain circumstances, it may be desirable to re-arraign the accused following an amendment. Finally, the court considered the sentencing issue, specifically whether the judge had erred in treating the applicant's acceptance of the victim's rejections of offers of assistance as an aggravating circumstance or an absence of a mitigating circumstance. The court also examined whether the sentence of five years' imprisonment with a non-parole period of three years was manifestly excessive.

The court concluded that there was no error in the judge's treatment of the circumstances and that the sentence was not manifestly excessive. Consequently, the applications for leave to appeal against the conviction and sentence were dismissed.

Orders