Baker v R [2023] NSWCCA 262

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Baker v R [2023] NSWCCA 262 Hearing dates: 28 July 2023 Date of orders: 18 October 2023 Decision date: 18 October 2023 Before: Beech-Jones CJ at CL at [1] Harrison J at [122] Wright J at [125] Decision: (1) Extend the time in which the applicant may seek leave to appeal against her conviction and sentence up to and including 15 July 2023; (2) Grant the applicant leave to appeal against conviction; (3) Dismiss the appeal against conviction; (4) Grant the applicant leave to appeal against sentence; and (5) Dismiss the appeal against sentence. Catchwords: CRIME — appeals — manslaughter by neglect — judge alone trial — applicant voluntarily assumed care of former partner who suffered serious health conditions from cancer diagnoses — deceased suffered two strokes and experienced protracted neglect — deceased hospitalised and suffered third stroke days before death — two experts emphasised multi-factorial nature of death and opined deceased's cachexia and ulcers had contributed to and hastened death — third expert identified direct cause of death as third stroke caused by deceased's cancer — third expert considered cachexia and ulcers as "separate ongoing parallel problems" to strokes — applicant convicted and sentenced to 5 years imprisonment with non-parole period of 3 years — appeal against conviction — unreasonable verdict — whether it remained a "reasonable possibility" that deceased's death occurred independently of his cachexia and ulcers — proposition that the deceased died from third stroke with no relevant contribution from his cachexia (or ulcers) no more than a bare possibility — third expert's opinion that recovery from the third stroke was "highly unlikely" because of deceased's cachexia and ulcers appeared to implicitly accept it was also highly likely those conditions hastened his death — overall effect of evidence leads to overwhelming conclusion deceased's cachexia and ulcers made a significant contribution to the hastening of death — causation proven beyond reasonable doubt — appeal against sentence — manifest excess — comparative cases and present sentence do not establish a sentencing range for manslaughter by neglect — sentence not manifestly excessive having regard to sentencing judge's finding of "high seriousness" — leave to appeal against conviction and sentence granted — appeals dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code (WA) Criminal Procedure Act 1986 (NSW) Cases Cited: BW v The Queen [2011] NSWCCA 176; (2011) 218 A Crim R 10 Dansie v The Queen (2022) 247 CLR 651; [2022] HCA 25 Krakouer v Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Magro v R [2020] NSWCCA 25 Mohana v R [2023] NSWCCA 61 R v Blackledge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Evans (No 2) [1976] VR 523 R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 R v Taktak (1988) 14 NSWLR 226 Reyne v R [2022] NSWCCA 201 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Libby Jade Baker (Applicant) Rex (Respondent) Representation: Counsel: Ms M Avenell SC (Applicant) Ms A Bonnor (Respondent)