Supreme Court New South Wales Medium Neutral Citation: R v Thomas [2015] NSWSC 537 Hearing dates: 5, 6 May 2015 Decision date: 08 May 2015 Before: R A Hulme J Decision: Manslaughter: Not guilty Reckless grievous bodily harm: On the limited evidence available, the accused committed the offence Catchwords: CRIMINAL LAW – accused unfit to plead - special hearing – judge alone - manslaughter – reckless infliction of grievous bodily harm – Mental Health (Forensic Provisions) Act 1990 (NSW) ss 19, 21 and 21A CRIMINAL LAW – manslaughter – unlawful and dangerous act – dangerousness test – attributes of reasonable person - accused of moderate intellectual disability – extremely poor information processing speed and impaired conceptual reasoning – accused's level of intellectual disability attributed to reasonable person Legislation Cited: Crimes Act 1900 (NSW) s 35(2)(b) Criminal Code (Tas) s 156 (2)(b) Mental Health (Forensic Provisions) Act 1990 (NSW) ss 16, 19, 21 Cases Cited: Director of Public Prosecutions v Newbury [1977] AC 500 Director of Public Prosecutions (Vic) v TY [2006] VSC 494; 167 A Crim R 596 Lane v R [2013] NSWCCA 317 Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation [2007] NSWSC 402 McHale v Watson [1966] HCA 13; 115 CLR 199 R v Besim [2004] VSC 169; 148 A Crim R 28 R v Edwards [2008] SASC 303 R v Holzer [1968] VR 481 R v Thomas [2014] NSWSC 1181 R v Vangelder (Court of Criminal Appeal (NSW), 28 February 1994, unrep) R v Wills [1983] 2 VR 201 Royall v The Queen [1991] HCA 27; 172 CLR 378 Stingel v The Queen [1990] HCA 61; 171 CLR 312 The Queen v Lavender [2005] HCA 37; 222 CLR 67 Wilson v The Queen [1992] HCA 31; 174 CLR 313 Category: Principal judgment Parties: Regina Michael Thomas Representation: Counsel: Mr P Lynch (Crown) Mr M Ierace SC (Accused) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2013/30962 Judgment 1. HIS HONOUR: Michael Thomas ("the accused"), then known as Jose Antonio Reyes, was born in Chile in 1988. His mother had a severe intellectual disability and was unable to care for him. They lived in extreme poverty. He suffered deprivation and malnutrition and was hospitalised. He was adopted shortly before his third birthday by Maurice and Susan Thomas and was raised in the western Sydney suburb of Emu Plains. 2. The accused was assessed by a clinical neuropsychologist and forensic psychologist, Dr Susan Pulman, in 2013. She found that he had a "moderate intellectual disability". She assessed him as functioning below 99.9 per cent of the population, features of which included extremely limited attention, extremely poor information processing speed and impaired conceptual reasoning abilities. 3. Susan Thomas was diagnosed with breast cancer in November 2011. She underwent surgery and then embarked upon a course of chemotherapy. In November 2012 she was informed that the cancer had metastasized. Her decline thereafter was rapid. By 31 January 2013 the medical opinion was that she had a few weeks left to live. On that day there was an argument between the accused and his parents concerning his loss of employment. He struck his mother to the face. She died later that day. The accused was arrested and charged with murder. The accused is unfit to be tried 1. On 29 August 2014, Bellew J found the accused was unfit to be tried: R v Thomas [2014] NSWSC 1181. Pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the Mental Health Review Tribunal notified the Court that the accused would not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence. The Director of Public Prosecutions declined to take no further proceedings in the matter and accordingly the Court was required to conduct a special hearing as soon as practicable: s 19(1)(b). 2. The purpose of a special hearing is to ensure, despite the unfitness of the accused to be tried in accordance with the normal procedures, that he is acquitted unless it can be proved by the Crown beyond reasonable doubt that, on the limited evidence available, he committed the offence charged or any available alternative offence: s 19(2). A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings: s 21(1). 3. The special hearing commenced before me on Monday of this week. The accused was represented by Mr Ierace SC, Senior Public Defender. He was arraigned, and although no plea was entered, he was taken to have pleaded not guilty: s 21(3)(a). 4. I confirm I have taken into account the fact that the accused is unfit to be tried and is thereby inhibited in a variety of respects in the way in which he may participate in the proceedings. I also have borne in mind the meaning of unfitness; the purpose of this hearing; and the legal and practical consequences of the verdicts I might return: s 21(4). The indictment 1. The accused is charged with the following offences: 1. On 31 January 2013 at Emu Plains in the State of New South Wales did unlawfully kill Susan Thomas alternatively 2. On 31 January 2013 at Emu Plains in the State of New South Wales recklessly caused grievous bodily harm to Susan Thomas. 1. It is important to note that the accused is presumed to be innocent of each of the charges and that it is the Crown who bears the onus of proving the essential elements of the offences to the standard of beyond reasonable doubt. The evidence 1. None of the evidence in the hearing was disputed. Matters that were disputed were confined to the inferences that should be drawn from, and a medical opinion based upon, the evidence. Accordingly I will not review the evidence but simply set out the story that it told. 2. The accused obtained a job as a kitchen hand at the Outback Steakhouse at Penrith in about May 2012. The position was arranged by Ms Heidi Van Gender, a job support consultant with Ability Options Employment. Her role as a case officer was to assist clients with disabilities in relation to employment issues. She saw the accused regularly and monitored his performance. It seems his main task was cleaning the cutlery and he did not particularly enjoy it. 3. The accused worked each Thursday, Friday and Saturday from 9am until 12 noon. He was accompanied to and from work by one or the other of his parents. 4. Ms Van Gender saw the accused on Friday 25 January 2013 when she visited him at his workplace. She observed that he was performing his job in a substandard fashion. She spoke to him about this but he reacted in a way that might indicate anger, frustration, or both. He walked out. Knowing him as she did, Ms Van Gender decided not to pursue the matter but proposed to speak to him about it at a later stage. 5. On Saturday 26 January the accused attended work but told his superiors that he was quitting on the basis that it was too stressful for him. He did not tell his parents. 6. Mr Thomas said that in the days leading up to Thursday 31 January 2013 (the next day the accused was supposed to be going to work) he and his wife became aware that their son was experiencing some form of difficulty in relation to his employment. That morning, Susan Thomas was too weak to get out of bed. It was decided that Mr Thomas would accompany the accused to work in order to find out what was happening. 7. The accused got dressed as if he was going to work. He and his father drove to the Outback Steakhouse but when they arrived the accused stayed in the car. Mr Thomas went in and spoke with various people and soon found out what had occurred. He returned to the car and they drove home, having some conversation about the issue on the way but continuing as they entered the home. 8. When they arrived home Ms Thomas was on the phone but terminated the conversation when she heard some commotion. She was in bed. Her husband and the accused came in and the conversation about the accused no longer having a job continued. It would seem from Mr Thomas' evidence that both he and his wife were expressing their concerns in fairly strong terms to the accused. 9. The accused left the room. Mr Thomas went to the kitchen. He then heard his wife call out, "Michael, come here", in a strong voice. (The accused's brother, Ben, described her voice as "very loud and aggressive".) Mr Thomas reacted by calling out to her: "Sue. Why? It's over." He then saw the accused come out of his room. He had changed out of his work clothes and he walked hurriedly across to the bedroom where his mother was. Mr Thomas immediately heard "two hits". He reacted by racing down the hallway to the bedroom where he saw Ms Thomas on her back on the bed. She was propped up on pillows. He said to her, "Has Michael hit you?" She replied in a soft and calm tone of voice, "No, I'm alright". 10. Mr Thomas noticed that there was blood on her cheek which he described as being "probably a spot". When Ben Thomas came into the room he saw his mother holding her left cheek. Mr Thomas was worried about her low platelet level and he proceeded to get a flannel and some water and returned. He wiped her face but noticed she was having difficulty breathing and he began to worry. She soon became unconscious. 11. The accused said, "This is bad. I'm going to get into trouble for this" (according to Mr Thomas). According to Ben Thomas, he said "I will regret this" and, repeatedly, "I'm sorry, I didn't mean to", to which his mother replied, "I know you didn't mean to". It was the accused's suggestion that his father call an ambulance. 12. An ambulance officer arrived shortly after 10am. She quickly assessed the situation and summoned more officers to attend. Ms Thomas was taken to Westmead Hospital. 13. Mr Thomas attended the hospital with the accused. Mr Thomas spoke with a neurosurgeon who informed him that they were not able to operate because of the internal bleeding and Ms Thomas' condition, particularly her low platelet count. He was told that she would not last long. A priest was summoned and administered the last rites. A life support system was turned off. Susan Thomas passed away at 3.07pm. 14. Mr Thomas said in his evidence that the family had been grieving for the previous two months since receiving the news that the cancer had metastasized. Tests performed on Thursday 24 January 2013 confirmed that her situation was dire; her platelet levels were extremely low. Platelet transfusions had increased her well-being but they were ceasing to be effective. Mr Thomas was asked about his wife's mobility in the days before her death and he said that, for example, if she had fallen to the floor she would have had difficulty getting up by herself. She could not shower without assistance. He said: "It was getting worse, she was deteriorating." Ben Thomas' evidence was to the same effect. 15. The accused was aware that his mother's illness had progressed to the final stage. On the evening of 24 January he asked his father, "Why can't mum have any more platelet transfusions?" Mr Thomas and his wife told him that there were only so many she could have before the body rejected them. Mr Thomas said that his son went to bed with that knowledge but at 3am he was found to be sitting outside in the yard. He had been drinking. He was asked what was up and he replied to the effect that he was not coping and said, "I've got a crappy job and my mum's dying of cancer". Ms Thomas managed to put him back to bed and Mr Thomas heard her say to her son, "No, I'm not dying of cancer. I'm not dying". Medical evidence 1. Dr Istvan Szentmariay conducted an autopsy on 1 February 2013. Of relevance he noted three sizable contusions, irregularly shaped, around the left ear. On an internal examination he found an underlying confluent contusion of the soft tissues. A subsequent neuropathology examination of the brain revealed a basal subarachnoid haemorrhage. 2. Dr Szentmariay's opinion was that the cause of death was blunt force trauma. The three contusions were consistent with having been caused by a punch with a fist. He could not say how many punches there were; whether one, two or three. It was his opinion that there would have been an application of "probably [a] moderate degree of force". He excluded a greater degree of force because there was no underlying fracture. 3. Dr Nicholas Wilcken, the Director of the Department of Medical Oncology at the Westmead Hospital, was of the view that without the alleged assault occurring prior to death Ms Thomas had a very short time to live; less than six weeks. He considered the fact that the severe brain haemorrhage occurring after experiencing the trauma was "almost certainly due to the fact that she had such a dangerously low platelet count thus predisposing her to bleeding". He said, "It is therefore my opinion that the main cause of death was cerebral haemorrhage, due to a low platelet count, due in turn to metastatic breast cancer on a background of an expected survival of a few weeks". (Dr Wilcken was not present or otherwise involved in any post-mortem examination.) 4. Dr Szentmariay accepted that there would be a greater degree of haemorrhage as a result of the deceased's advanced cancer and very low platelet level. He said, "The trauma may cause a relatively minor haemorrhage, but because the body has very limited capability to deal with a small haemorrhage, it just keeps bleeding". Despite the view of Dr Wilcken, he maintained his opinion that the cause of death was the blunt force trauma. 5. Dr Szentmariay was cross-examined about his opinion that there was a moderate degree of force. In summary, it appears to have been based upon the extent of the injury, namely the three areas of bruising to the side of the face, as well as the injury to the brain indicated by the onset of loss of consciousness and which was explained on autopsy by the finding of the subarachnoid haemorrhage. He agreed that the bruising was of more limited assistance in making an assessment of the degree of force because it would be exaggerated by the low platelet count. Nevertheless he maintained his opinion. Police interview 1. The accused was interviewed by Detectives McWhirter and Burnet on the evening of 31 January 2013. It was readily apparent from the replaying of the recording of the interview in court that the accused had significant difficulty in understanding some of the questions and in recounting what had occurred and what his thinking was at the relevant time. 2. Dr Pulman gave evidence on the voir dire about the various difficulties the accused would have experienced during the course of the interview and raised questions about the reliability of his responses. There was an objection to the admissibility of the interview on a variety of bases including that it was not sufficiently clear that (a) the accused understood the cautions that he was given and that (b) his responses to police questions could be regarded as reliable having regard to his intellectual disability. However the objection was not pressed once it became common ground that the interview could be taken into account as providing the following narrative: "That he'd resigned from his job a few days earlier; he told his father, having been driven to work that morning; his father was upset; his father went home and told his mother; his mother was upset; there was a conference involving the mother, the father and Mr Thomas; Mr Thomas senior left Mr Thomas and his mother together; that she was angry; she expressed that anger to him; that he punched her; that he believed he punched her on more than one occasion; that he knew he punched her on the left side of her face; that he knew at the time that she was weak and tired." (T91) 1. It seemed to me that there was merit in the defence submission that any of the responses given by the accused that might be relevant to a critical issue concerning the degree of force with which he struck his mother were not sufficiently reliable to form any reasonable view as to what in fact occurred. Manslaughter 1. To establish the charge of manslaughter the Crown is required to prove beyond reasonable doubt that there was a deliberate act of the accused that caused the death of the deceased and that the act was both unlawful and dangerous. 2. The "deliberate act of the accused" relied upon by the Crown was his striking his mother at least once to the left side of the face. There is no dispute about this. 3. The requirement that this act "caused the death of the deceased" requires proof that it substantially or significantly contributed to her death: Royall v The Queen [1991] HCA 27; 172 CLR 378. As I have earlier outlined, there was a difference of opinion between Dr Wilcken and Dr Szentmariay as to the cause of death. 4. Dr Szentmariay had the advantage of having conducted the autopsy examination and he had the assistance of the neuropathology report of Professor Buckland. It was not submitted that a reasonable doubt on the issue of causation arises from Dr Wilcken's opinion. Reliance upon it was limited to the issue of the degree of force applied (T105.35). I am satisfied beyond reasonable doubt that the application of force by the accused to the deceased made a significant contribution to her having died on 31 January 2013. 5. The accused's striking of his mother clearly constituted an assault and was thereby "unlawful". There was no issue about this. The reasonable person and the dangerousness test 1. A substantial issue was raised on the question of whether the act was "dangerous". 2. The suggested direction for a trial judge to give to a jury in the Criminal Trials Bench Book at [5-990] is as follows: "An act is dangerous if a reasonable person, in the position of the accused at the time the act was committed, would have realised that the act exposed another person, whether it be the deceased or not, to a risk of serious injury. It does not matter whether the accused believed that his/her act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised or appreciated that the act was dangerous. A reasonable person in the position of the accused is one who is not subject to the peculiar eccentricities of the accused or any temporary or fleeting emotional or mental state to which the accused might have had at the time. The reasonable person is not affected by alcohol or drugs. But the reasonable person is to be taken as being of the age and maturity of the accused and to have the knowledge [if relevant, the skill] and experience of the accused at the time of the act relied upon by the Crown. Therefore, the reasonable person in this case is to be taken as … [set out the age and maturity of the accused and any relevant knowledge or experience (including education and training) the accused had at the time of the act alleged]." 1. There is a real question, in my view, whether this represents a correct reflection of the law. However, it was not fully argued and I will only comment briefly about it. I do not believe anything of significance turns on this issue for the determination of this case. Accepting therefore the correctness of the direction, in the present case it would require attributing to the "reasonable person" the age of the accused (27) and his maturity. The evidence is not such that I can make an assessment of his level of maturity beyond having regard to the fact that his chronological age means that he is well into his adult years. In any event it would be entirely unrealistic to regard that as reflecting his maturity, given his intellectual handicap. Both "age" and "maturity" are not significant factors for attribution to the reasonable person in this case. 2. The suggested direction would also require taking into account the accused's knowledge of the frailty of his mother. He said in his police interview that "she was tired and weak or something" (Q 303). I accept the evidence of the accused's father and brother which was to the same effect and that she was virtually bed-ridden as a result. 3. If the "reasonable person" was attributed with only the things mentioned in the suggested direction, I would have no hesitation in concluding beyond reasonable doubt that such a person would have realised that striking the deceased to the head at least once with even only a mild degree of force would have exposed her to a risk of serious injury. So much was conceded by senior counsel for the accused (T106.47). 4. At this point I will say something more about the suggested direction. There appears to me to be a real question as to whether the "age" and "maturity" of the accused are necessarily required to be attributed to the reasonable person. There is even more doubt about the relevance of an accused's "education and training". The basis in authority for such a requirement is far from clear. 5. It may be that the suggested direction was derived from a case such as R v Edwards [2008] SASC 303 which is cited in the Victorian Criminal Charge Book (published by the Judicial College of Victoria) at 7.2.4.1 (41) as authority for a proposition that "the reasonable person should be considered to be the same age as the accused, and to have any specialised knowledge and experience that the accused had (e.g., knowledge of the recommended dosage for medication)". 6. In R v Edwards, Layton J directed herself in a judge-alone trial concerning both forms of involuntary manslaughter that, in respect of the unlawful and dangerous act form, "the reasonable hypothetical person would be imbued with the qualities of age, experience and knowledge of the accused". She cited The Queen v Lavender [2005] HCA 37; 222 CLR 67 as authority for the proposition. No pinpoint reference was provided but it seems safe to assume that her Honour was referring to the directions of the trial judge in that case (set out at [14]) which included: "… [Y]ou have to compare the conduct of the accused as you find it to have been with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused and the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have". 1. The High Court in The Queen v Lavender was not directly concerned with that aspect of the trial judge's directions and it was not specifically addressed, let alone endorsed. And in any event, the case was concerned with manslaughter by criminal negligence, not by a unlawful and dangerous act. 2. Layton J proceeded to direct herself that the reasonable person should be attributed with a variety of factors personal to the accused of which the following is merely an example: "[386] In this case the age of the reasonable hypothetical person would be approximately 28 years old. He would be a fit young man who had been a security officer for some years and had been in charge of other security officers at the hotel as the second in charge to Spencer. [387] The reasonable hypothetical person would have the following training as Edwards indicated he had undergone. Edwards had undertaken five days of full time training as a security officer with Marksman Security Training in 1997. He admitted that during that course he had received training in defence tactics, blocks, strikes, take-downs and restraining holds. Restraining holds included wristlocks and arm bars. The two main take-down holds were a straight arm bar and a "goose neck", which is the application of pressure on the wrists." 1. In my view, with respect, this goes too far in attributing matters personal to the accused to the reasonable person. It substantially reduces the objective quality of the element of dangerousness. It may be that some confusion has arisen from a conflation of the sub-elements of dangerousness: the "reasonable person" and that such a person is "in the position of the accused". The latter requires consideration of the context in which the act causing death occurred; not the personal qualities such as the training and experience of the accused. 2. Returning to the present case, senior counsel for the accused submitted that I should attribute to the reasonable person the accused's moderate intellectual disability. His intellectual capacity was assessed by Dr Susan Pulman as being at a level below the capacity of 99.9 per cent of the population. The particular characteristics that this entails that were specifically sought to be attributed to the reasonable person were an extremely poor information processing speed and impaired conceptual reasoning abilities. 3. Mr Ierace SC acknowledged that he could not locate any precedent for attributing an intellectual disability to the reasonable person in either appellate or first instance decisions concerning the offence of manslaughter by unlawful and dangerous act. The Crown was not able to assist with any precedent either. 4. The starting point is to refer to Wilson v The Queen [1992] HCA 31; 174 CLR 313 in which the High Court of Australia resolved a divergence of approach as to the objective element of unlawful and dangerous act manslaughter. It was held by the majority (at 327) that the test applied in R v Holzer [1968] VR 481 should be preferred to that applied in England as set out in authorities such as Director of Public Prosecutions v Newbury [1977] AC 500. The Holzer test required that a reasonable person in the position of the accused would have realised that he or she was exposing another or others to an appreciable risk of really serious injury, whereas the English authorities and cases in Australia which had followed them held that an act was dangerous if it carried with it the risk of some harm. The majority (at 333), however, questioned the utility of the qualifier "really" and said that "it is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury". 5. Wilson v The Queen is now of longstanding and unquestionable authority on the broad terms of the objective element of unlawful and dangerous act manslaughter. As was observed in Lane v R [2013] NSWCCA 317 (at [54]), "it settled the law of manslaughter by unlawful and dangerous act for Australia". It says nothing, however, of the attributes of the reasonable person. 6. My attention was invited to R v Vangelder (Court of Criminal Appeal (NSW), 28 February 1994, unrep). In that case a woman aged 24 was found guilty of manslaughter as a result of shaking a baby who had died of a subdural haemorrhage. The trial judge rejected evidence from a psychiatrist and a psychologist which was to the effect that the appellant's level of intelligence was in the bottom five per cent in terms of intellectual capacity. Gleeson CJ recorded that the only basis on which the evidence was sought to be led related to an argument that she would not have appreciated the danger involved in her actions in shaking the baby. But he said: "Because of the objective test that is applicable to the concept of a dangerous act for the purpose of the crime of manslaughter, the evidence was irrelevant on that basis and his Honour was right to reject it." 1. The issue of whether the intellectual capacity of the appellant should be attributed to the reasonable person was not raised and so the case does not assist. 2. In R v Wills [1983] 2 VR 201 at 212 it was held that the objective test is concerned with the physical acts of the accused and not his or her idiosyncrasies or ephemeral emotional or mental state. Lush J explained that if such matters are taken into account "the test begins to take on a subjective appearance". Fullagar J agreed but added (at 214) some additional remarks which included that matters relevant to the judgment exercised by the accused cannot be considered "because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the purposes of this particular rule of law is a man who judges with the unclouded reasoning power of a healthy and reasonable mind". 3. In R v Besim [2004] VSC 169; 148 A Crim R 28 at [38], Redlich J, described the objective test thus: "The expression 'a reasonable man in the accused's position performing the very act the accused performed' relates to the physical circumstances of the accused and the nature of the act performed by the accused as viewed by a reasonable person. It is an objective test concerned with foreseeability of serious harm to the victim. Emotions passions or the mental state of the accused at the time the act was performed and which may have impaired the accused's capacity to assess the risk are not to be attributed to the reasonable person." 1. In Director of Public Prosecutions (Vic) v TY [2006] VSC 494; 167 A Crim R 596 ("DPP v TY"), Bell J was concerned with an issue as to whether to attribute the age of the accused to the reasonable person for the purpose of charging a jury in respect of the elements of unlawful and dangerous act manslaughter. The case concerned an allegation that the accused, when aged 14 years and 8 months, struck the deceased to the head with a golf umbrella with its long metal tip puncturing the deceased's skull and penetrating into the brain to a significant depth. The defence contended that the age of the accused was a relevant consideration in the jury's assessment of the dangerousness element. 2. Bell J described the rationale for the objective test of dangerousness: "[8] … The law stipulates an accused will be criminally responsible if a reasonable person would have realised how appreciably risky their actions were. The test is stipulated in objective terms because, if the conduct causes a homicide, the dreadful seriousness of that consequence is seen to require the accused's responsibility to be measured against a general community standard, not one subjective to the accused." 1. His Honour later reiterated: "[14] As I said earlier, it is the dreadful consequence of an act causing the death of a human being that is seen to call for the application of an objective test. The community expects criminal responsibility to be attributed even where the accused, subjectively, did not realise his or her actions were dangerously risky." 1. Bell J referred to the acceptance in the law of negligence of the relevance of age. One authority to which he referred in this respect was McHale v Watson [1966] HCA 13; 115 CLR 199 where (at 213) Kitto J stated: "The principle [of the objective reasonable person standard] is of course applicable to a child. The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard. In regard to the things which pertain to foresight and prudence – experience, understanding of causes and effects, balance of judgment, thoughtfulness – it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until 'years of discretion' are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances." (My emphasis) 1. Reference was also made by Bell J to cases in which age had been similarly taken into account, such as in homicide by culpable negligence under s 156(2)(b) of the Criminal Code (Tas) and in the objective test of provocation in Stingel v The Queen [1991] HCA 61; 171 CLR 312 at 330-331. 2. His Honour could find no case in which it had been held that the age of the accused who is a child should not be taken into account in applying the dangerousness test in manslaughter. He concluded that: "[12] … it would not be inconsistent with the function of the test in the law of manslaughter to do so." 1. I regard as particularly pertinent for the present case what immediately followed: "[13] It has often been pointed out [that] the common law of homicide has evolved from automatic culpability for those who cause death, whether intentionally or accidentally, to culpability only for those whose actions or state of mind fulfil additional criteria. One important principle now applied to that continuing process is that, so far as possible, the criminal law should be developed "towards a closer correlation between moral culpability and legal responsibility". Subjecting children to an adult standard, when we know children have a lesser capacity for realisation of appreciable risk than adults, would widen the gap between moral culpability and legal responsibility to its maximum. Taking the age of a child into account when applying the dangerousness test brings the two more closely together and is more consistent with the evolution of the law of homicide." 1. A prosecution submission that taking age into account would undermine the objectivity of the test because it would lead in the future to further subjective matters being taken into account such as gender and upbringing was rejected: "[15] I cannot accept this submission. A child is a person under the age of 18 years. All persons under that age are children. The status of an accused person as a child is an objectively ascertainable attribute. It is not like a state of mind or an emotion. It is not like an intention. As we saw Windeyer J say, it is not an "idiosyncrasy". And, as we saw Kitto J say, it appeals to "an objective and not a subjective standard." Taking the age of a child-defendant into account has not damaged the objective reasonable person test in the law of negligence. Taking the age of a child-accused into account will not damage the objective reasonable person test in the law of manslaughter." 1. In the end, Bell J resolved to direct the jury that, in respect of unlawful and dangerous act manslaughter, the prosecution must prove that the accused "acted in a way that a reasonable person who was a young teenage boy would realise exposed the deceased to an appreciable risk of serious injury". 2. Finally, in Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation [2007] NSWSC 402 ("Russell v Rail Corp"), Bell J (as her Honour then was) also drew from McHale v Watson, amongst other authorities, in holding that in determining an issue of contributory negligence it was appropriate to take into account the plaintiff's mild intellectual handicap. Her Honour said: "[96] I have decided that I should determine the defence of contributory negligence by considering whether the plaintiff failed to take the reasonable care for her own safety that is to be expected of a reasonable adult having a mild degree of intellectual handicap. The test remains objective and I do not take into account considerations peculiar to the plaintiff, albeit that they may be related to her disability, such as her childlike personality and tendency to be easily led." 1. McHale v Watson was cited (at [93]) as authority for the proposition that "the standard of care that applies to the liability of children in negligence is an objective one, which takes into account the limitations of childhood development". Her Honour noted what was said by Kitto J (at 213) in the extract above (at [60]) and also what was said by Owen J (at 231) about a special standard having been applied to persons at the other extreme of life whose mental faculties have been impaired by age. 2. Bell J set out her logical extrapolation of the consideration given to children to those of intellectual incapacity as follows: "[94] The reasons that inform the adoption of an objective standard that is tailored to the recognised limitations of childhood (or, it may be, great age), may be thought equally applicable to the limitations of intellectual incapacity. It is true that childhood is not an idiosyncrasy; all adults have experienced it. Intellectual disability may be idiosyncratic but it is a condition that is capable of assessment by standardised measures. One can posit an objective standard to which a person possessed of mild or moderate or profound intellectual handicap, as the case may be, is to be held as much as one can posit the objective standard to which a child of four or nine or 13 is to be held. If it is against the policy of the law to hold a child with his or her limited understanding to the standard of care of the reasonable person there may be thought equally strong reasons for not applying the standard of the reasonable person to a plaintiff with a recognised degree of intellectual incapacity. (Lord Hoffman considered that the reason for holding children who lack a full understanding of the danger of an activity to a different standard in dealing with contributory negligence is because it would not be just and equitable to do so and that the same consideration may apply to a person of unsound mind: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 371-372)." Conclusion 1. I am attracted by the logic in the analyses in DPP v TY and Russell v Rail Corp. Like the age of the teenage child accused in the former and the mildly intellectually handicapped plaintiff in the latter, the moderate intellectual disability of the accused in this case is an objectively ascertainable attribute. There is nothing transient or ephemeral about it. And there is nothing borderline about it either; the accused's intellectual capacity is so far removed from that of the vast majority of people in the community that it strikes me as patently unfair to require him and his actions to be judged by standards that he could never hope to emulate. 2. In preferring the test in Holzer over that in DPP v Newbury, the majority in the High Court in Wilson v The Queen gave (at 327) as one of its reasons "the development of the law towards a closer correlation between moral culpability and legal responsibility". To my mind, to judge the actions of a person who has an intellectual capacity in the bottom 0.1 per cent of the population by the standards of the vast majority of citizens is to widen the gap between moral culpability and legal responsibility to a point that is simply unacceptable. 3. I propose to assess the fourth element of the charge of manslaughter upon a consideration whether a reasonable person possessed of a moderate intellectual disability rendering that person with extremely poor information processing speed and impaired conceptual reasoning abilities with knowledge that the deceased was weak and frail as a result of a debilitating illness would have realised that striking her to the left side of the face at least once would expose her to a risk of serious injury. 4. I can express my conclusion immediately. I consider it probable that such a person would have had such a realisation; but I cannot exclude the possibility that he or she would not. Reckless infliction of grievous bodily harm 1. I turn to the alternative count alleging that the accused recklessly caused grievous bodily harm. 2. The element of grievous bodily harm was not in issue and I simply record that I am satisfied that it has been established beyond reasonable doubt. And, for the reasons given earlier, I am similarly satisfied that it was the deliberate act of the accused which caused it. 3. The critical element is that of recklessness. It requires proof that at the time of striking his mother, the accused realised that he may possibly cause actual bodily harm to her yet he went ahead and struck her: see s 35(2)(b) of the Crimes Act 1900 (NSW). Actual bodily harm can be anything that interferes with the health or comfort of a person. It does not need to be permanent but must be more than fleeting or trivial in its affect. 4. Mr Ierace submitted that there was material in the accused's police interview that indicated that he did not think about what he did at all; that it simply happened and it was only afterwards that he realised that he should not have done it. He referred to the following responses (and I have added some surrounding passages to provide context): "Q57 Yeah, tell me the story about what happened today, sorry. A. Well, last Saturday, last Saturday I quit, they didn't want me to work at my job, and stuff like that. So I quit, but I don't think, and everything else has just been too over the top with mum, you know, with her, just cancer and stuff, and all that stuff. Q58 Yeah, we'll get into that. A. And there's been too many stress in the family and stuff, and yeah. And plus I've got an alcohol problem, but, so when I --- Q59 I'm listening, yep. A. So I never wanted to, I love my mum, but I didn't, I never wanted to hit her, but I had this picture in my head, it's the alcohol picture in my head, just made me feel like I want to drink, and I just, I didn't want to do that, but so I just punched her, but yeah." 1. Mr Ierace submitted that the reference to "the alcohol picture" should be understood as a feeling of stress on the part of the accused because it was to alcohol that he turned when he was feeling stressed. "Q133 OK. So once she asked you these questions, then what happened? A. I don't know. I, I don't know. It was terrifying, I, I didn't want to do it, but yeah." 1. This was said to amount to insight on the accused's part; "a realisation on his part that he could not process what was happening and so there was some sort of frustrated outburst". (T103.13) "Q302 What did you think would happen to your mum when you punched her? A. She wouldn't defend herself. That's why --- Q303 Why do you think she wouldn't defend herself? A. No, she, she was tired and weak or something. Q304 So she was tired and weak, was she? A. Yeah. Q305 What did you think would happen if you punched your mum? A. I don't, I wasn't thinkin' about it. Q306 OK, so you weren't thinking about it when you did it --- A. Nuh. Q307 --- is that right? A. Nuh. Q308 Did you think that it would hurt your mum? A. Yeah. A couple of times, she's had, she'd had, a couple of times I get stressed 'cause she's had a couple of falls, yeah. She had a big bruise on her, her hip ---" 1. I have reservations about whether the "Yeah" in response to Q. 308 can be regarded as an admission that at the time of striking his mother he appreciated that it would hurt her. It would depend upon whether he understood the question to require him to say what his thinking was before or at the time of the striking and not in hindsight. Given his intellectual capacity, I am not sure that he would have appreciated the precision of the question; that "would hurt" required him to distinguish between his thoughts before and after. 2. There are difficulties in drawing too much from any of the responses to which counsel referred. For the very reason that he argued that other responses could not be regarded as reliable, there is reason for circumspection about these as well. 3. The simple facts of the matter are that the accused was engaged in an argument about his loss of employment with his parents. His father left and went to the kitchen. The accused went to his room and got changed out of his work clothes. But his mother wanted to continue the discussion. Mr Thomas said he heard her call out in a strong voice, "Michael, come here". He must have detected an air of agitation because he responded by calling out: "Sue. Why? It's over." The accused was then seen to walk hurriedly into his mother's room and in an instant, and however one might characterise the degree of force used, Mr Thomas, from another room in the house, was able to hear "two hits". 4. Then there is Dr Pulman's evidence when asked whether the accused had the capacity to anticipate the probable or possible consequences of punching his mother. Her opinion was encapsulated in a passage in her report of 19 November 2013 and an answer she gave in evidence: "It is likely … that he understood that punching his mother would probably cause her some degree of physical pain and may possibly result in bruising or scratches to her face. However it is was unlikely that he gave consideration to any potential complications, possible or probable, caused by his actions." (19.11.13 report at 7-8) "He would have the capacity to realise that it would cause her pain and it would hurt and she wouldn't like it, he has the capacity to know that. And in that, he has the capacity to know it would cause injury in the sense of pain." (T37.48) 1. Having regard to this evidence, I am satisfied beyond reasonable doubt that the accused struck his mother with the thought that it would cause her some harm. It was an angry and reactive response, albeit probably borne of stress and frustration. I am satisfied that each of the essential elements of the count of reckless causing of grievous bodily harm have been established. Verdicts 1. I return the following verdicts: Manslaughter: Not guilty Reckless grievous bodily harm: On the limited evidence available, the accused committed the offence. ********** Amendments 18 May 2015 - [55] typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2015