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Court of Criminal Appeal 6 May 2003

R v O'Brien

[2003] NSWCCA 121

Homicide
CRIMINAL LAW MANSLAUGHTER DURESS BATTERED WIFE SYNDROME SUFFICIENCY OF SUMMING UP LIES

Citation: R v O'Brien [2003] NSWCCA 121
Court: New South Wales Court of Criminal Appeal
Date: 6 May 2003
Judges: Giles JA, Dunford J, Smart AJ

Background

The appellant was a mother convicted of the manslaughter of her 14-month-old daughter, who died of malnutrition on 8 February 2000. Despite repeated warnings from a doctor, a Department of Community Services officer, a naturopath, and a family acquaintance that the child was gravely ill and required urgent hospitalisation, the appellant consistently refused to seek conventional medical treatment. The family instead pursued naturopathic remedies.

Medical practitioners and welfare officers who observed the child described her as severely malnourished, jaundiced, and deteriorating rapidly. On 29 January 2000, a general practitioner examined the child and arranged for her admission to hospital that day. Rather than attending hospital, the appellant and her de facto husband took the family to Queensland, where the child died ten days later.

The appellant was convicted by a jury in the District Court at Port Macquarie and sentenced to five years' imprisonment with a non-parole period of two years. She appealed against both conviction and sentence.

  • Whether the trial judge's summing-up adequately related the evidence to the issues in the trial, including the defence of duress and the operation of Battered Wife Syndrome (also referred to as evidence of family violence and its psychological effects on the appellant's capacity to act independently)
  • Whether the jury was properly directed on how to treat the appellant's lies, if any were found
  • Whether the sentencing judge erred in the discount applied to the sentence for the appellant's assistance to authorities
  • Whether evidence that the appellant was serving her sentence on protection, which arose after sentencing, constituted fresh evidence warranting a reduction in sentence

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. The court found that the trial judge's summing-up was sufficient. The evidence relating to duress and Battered Wife Syndrome, which the appellant relied on to explain why she did not act independently of her husband in seeking medical care, had been adequately put to the jury. No error in the directions on lies was established.

Evidence at trial showed the husband had been domineering and that the appellant appeared subservient to him. However, the evidence also showed that the appellant herself, on multiple occasions and in her husband's absence, declined offers of hospitalisation and expressed her own opposition to conventional medical treatment. The jury was entitled to conclude that the defence of duress was not made out.

On sentence, the court rejected the argument that the 30% discount for assistance to authorities was insufficient. Dunford J emphasised that under the relevant sentencing legislation, any reduced penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. Given the gravity of the conduct, namely a mother allowing her helpless infant to die despite clear and repeated medical warnings, the court found that no lesser sentence could be regarded as proportionate.

The fresh evidence ground relating to protection status was also rejected. The fact that the appellant ultimately came to serve her sentence on protection arose only after sentencing, following advice from her counsel. The sentencing judge had already taken the possibility of serving on protection into account, and its subsequent realisation did not warrant appellate intervention.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed
  • Conviction and sentence confirmed

Key Takeaways

  • A conviction for manslaughter by omission can be sustained where a parent, despite repeated and clear medical warnings, refuses to seek treatment for a fatally ill child, even where the parent attributes their inaction to a partner's domination.
  • Evidence of Battered Wife Syndrome (now more commonly referred to as evidence of family violence and coercive control) is capable of supporting a defence of duress, but its availability does not guarantee that defence will succeed where other evidence shows the defendant independently and personally refused treatment.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the sufficiency of a trial judge's summing-up is assessed by reference to whether the evidence was adequately related to the live issues, not by whether every piece of evidence was addressed in detail.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a discounted sentence for assistance to authorities must not be unreasonably disproportionate to the nature and circumstances of the offence, and this constraint can limit the size of the discount even where assistance is genuine.
  • Post-sentencing developments, such as a decision to enter protective custody on counsel's advice, do not constitute fresh evidence capable of reducing a sentence, particularly where the sentencing judge had already contemplated that possibility.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Domican v The Queen (1992) 173 CLR 555
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v Button & Griffen [2002] NSWCCA 159; 129 A Crim R 342
- R v Jeffrey (unreported, CCA, 16 December 1993)
- R v Runjanjic (1991) 56 SASR 114
- R v Zorad (1990) 19 NSWLR 91
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234