Citation: R v Maybir (No 6) [2015] NSWSC 1741
Court: Supreme Court of New South Wales
Date: 16 November 2015
Judge: R A Hulme J
Background
The accused faced trial for the murder of a child. Manslaughter was available on two alternative bases: manslaughter by criminal negligence (specifically, a failure over approximately 24 hours to obtain medical attention that might have saved the child's life, to which the accused had already pleaded guilty on arraignment before the jury panel) and manslaughter by unlawful and dangerous act (where the jury, though not satisfied of murder, might find that a deliberate act caused the death).
Defence counsel applied for the judge to direct the jury, during the summing-up, to identify the specific basis upon which any manslaughter verdict was reached. The stated purpose was to assist the sentencing process, since the basis of the verdict could affect the level of culpability assessed at sentence.
The judge declined that application and this decision records the reasons for that refusal.
Legal Issues
- Whether the trial judge should direct the jury to specify the basis of any manslaughter verdict where two alternative bases (criminal negligence and unlawful and dangerous act) are left to the jury.
- Whether the circumstances of this case constituted an "exceptional case" within the meaning of The Queen v Isaacs (1997) 41 NSWLR 374, such that asking the jury for the basis of its verdict would be appropriate.
Decision
Hulme J applied The Queen v Isaacs, in which a five-judge Court of Appeal held that trial judges should refrain from asking a jury to specify the basis of a manslaughter verdict except in exceptional cases. The court in Isaacs identified seven considerations supporting that general restraint, including risks of confusion, disagreement, unclear responses, and the possibility that jurors might reach a valid general verdict by different reasoning paths.
Hulme J found that five of the seven Isaacs considerations were directly relevant here. Directing the jury to deliberate on the basis of the verdict carried a real risk of producing confusion and disagreement, particularly given that the criminal negligence basis was already conceded. Once the jury rejected murder, the concession meant little further deliberation would ordinarily be needed, and imposing an additional question about unlawful and dangerous act manslaughter risked introducing unnecessary complexity.
The judge also addressed the utility of the proposed direction for sentencing purposes. He was not persuaded that knowing whether the jury was separately satisfied of unlawful and dangerous act manslaughter would significantly affect the sentencing outcome. He noted that culpability on either or both bases appeared likely to be assessed at a very high level, pointing to a related proceeding where a starting point close to the maximum penalty had been adopted for a co-offender who pleaded guilty to criminal negligence manslaughter.
For these reasons, the application was refused. The case did not meet the threshold of being an exceptional case within the meaning of Isaacs.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that the default position under The Queen v Isaacs (1997) 41 NSWLR 374 is that trial judges should not ask a jury to identify the basis of a manslaughter verdict, reserving such a course for exceptional cases only.
- Where a criminal negligence basis for manslaughter has already been conceded by the accused, directing the jury to separately deliberate on an unlawful and dangerous act basis carries heightened risks of confusion and unnecessary disagreement.
- A potential sentencing benefit does not, of itself, elevate a case to the "exceptional" category warranting a direction about the basis of a manslaughter verdict.
- Several of the Isaacs considerations apply broadly: different jurors may lawfully reach a common verdict by different reasoning paths, and inviting them to refine that verdict may produce uncertainty rather than clarity.
- Refusing such an application is consistent with the principle that a general verdict of manslaughter remains valid and proper even where multiple alternative bases were left to the jury.
Legislation and Cases Referenced
Cases:
- The Queen v Isaacs (1997) 41 NSWLR 374 (Court of Appeal, five-judge bench)
Legislation:
No legislation was cited in this decision.