R v Maybir (No 6) [2015] NSWSC 1741

Supreme Court New South Wales

Medium Neutral Citation: R v Maybir (No 6) [2015] NSWSC 1741 Hearing dates: 16 November 2015 Decision date: 16 November 2015 Before: R A Hulme J Decision: Request to judge to question jury as to basis for verdict of guilty to manslaughter refused Catchwords: CRIMINAL LAW – directions to jury – manslaughter – whether judge should inquire as to basis of verdict of manslaughter – where manslaughter by criminal negligence and manslaughter by unlawful and dangerous act left to jury – The Queen v Isaacs (1997) 41 NSWLR 374 considered – exceptional cases – not an exceptional case – request refused Cases Cited: The Queen v Isaacs (1997) 41 NSWLR 374 Category: Procedural and other rulings Parties: Regina Kodi James Maybir Representation: Counsel: Mr C Maxwell QC (Crown) Mr G Brady SC (Accused)

Solicitors: Solicitor for Public Prosecutions Younes Espiner Criminal Lawyers File Number(s): 2015/285215

Judgment 1. HIS HONOUR: Mr Brady SC on behalf of the accused has submitted that in the course of my summing-up to the jury I should direct them to determine the basis upon which any verdict of guilty of manslaughter has been arrived at. 2. In this case manslaughter will go to the jury on two possible bases, the first is criminal negligence and is the basis upon which the accused pleaded guilty to manslaughter on arraignment in front of the jury panel. The basis of the negligence is a failure for a period of about 24 hours after the deceased child was injured to obtain medical attention, which would have had a prospect of saving the child's life. 3. The alternative basis of manslaughter is unlawful and dangerous act, in that the accused committed a deliberate act or acts which caused the death of the deceased but the jury, not being satisfied of the Crown's contention that the act or acts were accompanied by an intention to kill or inflict really serious harm. 4. Mr Brady acknowledges that it would necessitate directing the jury, if they were not satisfied of murder, to consider, first, whether they were satisfied beyond reasonable doubt of unlawful and dangerous act manslaughter. If they were not satisfied of that, it is accepted as inevitable that they would return a verdict on the basis of criminal negligence. 5. The Queen v Isaacs (1997) 41 NSWLR 374 was cited as the relevant authority. At p 379, in the joint judgment of a bench comprising five judges, it was said that: "In our view, the following considerations should lead trial judges to refrain from asking a jury the basis of a verdict of manslaughter save in exceptional cases." 1. The judgment then proceeds to list seven considerations: "First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict. Secondly, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed. Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief. Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel's address to a jury be expressed in terms appropriate to a plea in mitigation. Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious. Sixthly, the judge may be embarrassed if he or she does not agree with the jury's answer to the question. Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others." 1. Of those seven considerations it seems to me that the first, second, third, sixth and seventh are relevant in the present case. 2. It is understandable that Mr Brady would seek that I proceed in the manner I have outlined because he contends that the result might be significant in terms of sentence. It would involve either sentencing the accused for manslaughter solely on a criminal negligence basis, or possibly on the basis of both an unlawful and dangerous act manslaughter with the admitted failure to obtain medical attention. 3. I am not sure that there is any great utility for the purpose of sentencing in knowing whether the jury were satisfied beyond reasonable doubt of unlawful and dangerous act manslaughter in addition to the conceded criminal negligence manslaughter. On my understanding of the facts, culpability on either basis and perhaps both are likely to be found at a very high level and I say that on the basis of the starting point adopted for the sentence that Harrison J imposed upon Ms Kayla James, who pleaded guilty to manslaughter on a criminal negligence basis. His Honour's starting point was not far short of the maximum penalty. 4. The things that concern me most about this proposal is that it is possible that the jury might be satisfied beyond reasonable doubt unanimously of unlawful and dangerous act manslaughter and criminal negligence manslaughter, or unanimously only on criminal negligence manslaughter or some jurors might be satisfied beyond reasonable doubt of unlawful and dangerous act manslaughter whilst others were not, and unless I were to direct the jury to reason and to deliberate upon verdicts sequentially, some jurors might not see the need to consider both bases and would be content to return a verdict of manslaughter on the conceded basis of criminal negligence without needing to take the time to trouble themselves with unlawful and dangerous act manslaughter. 5. Another difficulty is that if the jury were satisfied that they should return a verdict of not guilty of murder, the deliberations from that point would in the ordinary course not require much further deliberation because of the concession as to criminal negligence manslaughter. To have the jury grapple with a request that they decide whether they are unanimous as to unlawful and dangerous act manslaughter would be productive of possible disagreement, confusion, uncertainty and the like. 6. For those reasons, I do not propose to accede to the request that I proceed in the fashion sought by Mr Brady.