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…
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- AGLC
- Reid v The Queen [2010] VSCA 234
- Case
- [2010] VSCA 234
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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