R v Thomas Sam; R v Manju Sam (No. 17) [2009] NSWSC 803

New South Wales Supreme Court

CITATION : R v Thomas Sam; R v Manju Sam (No. 17) [2009] NSWSC 803

HEARING DATE(S) : 4 May 2009 to 5 June 2009

JUDGMENT DATE : 13 August 2009

JUDGMENT OF : Johnson J at 1

DECISION : See paragraphs [5], [31].

CATCHWORDS : CRIMINAL LAW - trial - manslaughter by criminal negligence - directions to jury concerning reasonable person test

CATEGORY : Procedural and other rulings

R v Taktak (1988) 14 NSWLR 226 R v Wilkinson (Wood J, 31 March 1998, unreported) R v Hall (1999) 108 A Crim R 209 R v O'Brien [2003] NSWCCA 121 CASES CITED : The Queen v Lavender [2005] 222 CLR 67 R v Edwards [2008] SASC 303 Stingel v The Queen [1990] 171 CLR 312 R v Seminara (2002) 128 A Crim R 567 R v Zoef [2005] NSWCCA 268 R v Forbes (2005) 160 A Crim R 1

Regina (Crown) PARTIES : Thomas Sam (Offender) Manju Sam (Offender)

FILE NUMBER(S) : SC 2008/19298; 2008/12927

Mr M Tedeschi QC; Ms G O'Rourke (Crown) COUNSEL : Ms C Davenport SC (Offender/Thomas Sam) Mr T Molomby SC (Offender/Manju Sam)

Solicitor for Public Prosecutions (Crown) SOLICITORS : Karp O'Neill (Offender/Thomas Sam) Legal Aid NSW (Offender/Manju Sam)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

Johnson J

13 August 2009

2008/19298 Regina v Thomas Sam 2008/12927 Regina v Manju Sam

JUDGMENT (No. 17) (On directions to be given concerning reasonable person test at trial for manslaughter by gross criminal negligence) 1 JOHNSON J: On 4 May 2009, the trial of the Accused, Thomas Sam and Manju Sam, commenced before a jury, with each Accused charged with the manslaughter in May 2002 of Gloria Mary Thomas, the nine-month old daughter of the Accused. 2 During the course of the trial, submissions were made by counsel concerning appropriate directions to be given to the jury with respect to the reasonable person test for the crime of manslaughter by gross criminal negligence, and the application of that test to the circumstances of this trial. 3 General submissions were made on 12 May 2009 (T382-394), after which I determined that the best way forward was for draft written directions to be prepared which would then provide the framework for further, more focused, submissions from counsel by reference to written lists of matters which counsel wished to contend should be attributed to the reasonable person. Draft directions (MFI49) were provided to counsel on 26 May 2009, and the Court received a number of documents from counsel identifying matters which were to be contended as being attributable to the reasonable person in the position of each Accused (MFI50-MFI52, MFI55 and MFI56). Thereafter, counsel made further submissions on 27 May 2009 on these topics (T835-836; T850-876). 4 On 29 May 2009, I distributed further draft directions (MFI58) in relation to which I heard further submissions (T896-915). Thereafter, later that day, counsel were furnished with revised draft directions which I proposed to utilise in the summing up (MFI59). Those written directions were, in fact, provided to the jury as part of the summing up (SU14-15) subject to one alteration made, at the request of counsel, during the summing up (SU52). 5 Before the commencement of closing addresses on 1 June 2009, I explained the basis for my ruling concerning the content of written directions in MFI59, so that counsel would be apprised of these matters prior to addresses (T916-918). I indicated that I would give more detailed reasons for the ruling at a later time (T916). This judgment contains those reasons.