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District Court 13 April 2021

R v Morris

[2021] NSWDC 209

Homicide
CRIMINAL LAW JUDGMENT MANSLAUGHTER REVERSAL OF PLEA ABUSE OF PROCESS DOOMED TO FAIL

Citation: R v Morris [2021] NSWDC 209
Court: District Court of New South Wales
Date: 13 April 2021
Judge: Hunt DCJ

Background

The accused had been charged with the manslaughter of his long-term partner, who died in July 2017. For approximately six years prior to her death, the accused had received a carer's pension and had taken on day-to-day responsibility for her care. The deceased had consistently refused medical oversight, including visits to general practitioners and assistance from community nurses.

The accused was arraigned in September 2018 and entered a guilty plea in February 2019. Sentence proceedings ran over four days before McLennan DCJ, who heard oral evidence from expert witnesses including Professor Kurrle. Shortly before sentencing in November 2019, the accused applied to reverse his guilty plea, which McLennan DCJ granted in December 2019.

In granting the plea reversal, McLennan DCJ found that the prosecution evidence, at its highest, was incapable of establishing a negligent duty of care and was similarly incapable of proving that any alleged negligent omissions caused the deceased's death. A judge-alone trial was listed to commence in April 2021, but the accused brought a notice of motion seeking a permanent stay of proceedings before the trial began.

  • Whether the proceedings should be permanently stayed as an abuse of process.
  • Whether the doctrine of res judicata applied to prevent relitigation of McLennan DCJ's findings on negligence and causation.
  • Whether the prosecution's evidence, assessed at its highest, was capable of establishing the elements of manslaughter by criminal negligence, specifically: a criminally negligent breach of duty and that the breach caused the deceased's death.

Decision

Hunt DCJ identified the applicable standard: a permanent stay is available only in exceptional or extreme cases, as established in Barton v R and Jago v District Court of NSW. The categories of circumstance capable of justifying a stay are neither closed nor exhaustively defined. Both parties accepted that if a prosecution were assessed as doomed to fail, that could constitute an abuse of process sufficient to warrant a permanent stay.

The court declined to determine whether the doctrine of res judicata strictly applied, finding it unnecessary to do so. On grounds of judicial comity, and given McLennan DCJ's extensive exposure to the evidence over the sentence proceedings, Hunt DCJ adopted his Honour's findings and reasoning without departure.

On the elements of manslaughter, there was no dispute that the accused owed a legal duty of care to the deceased. The contested questions were whether his omissions constituted criminal negligence and whether they caused her death. Professor Kurrle's expert opinion concluded that the accused's inaction in seeking help in the two to three days before the deceased's hospital admission may have contributed to her death only slightly more than minimally. The court found it highly unlikely that any prosecution on the available evidence could establish causation beyond that minimal threshold.

The Crown Prosecutor, in a concession the court described as being in the best traditions of the bar, acknowledged that while there was a legal duty and evidence of a breach, the prosecution was problematic at its highest in both establishing causation and proving that the breach warranted criminal punishment. Hunt DCJ adopted that concession, concluded the proceedings were doomed to fail, and held that allowing the prosecution to continue in those circumstances would constitute an abuse of process.

Orders Made

  • Permanent stay of proceedings against the accused on the manslaughter indictment.
  • Any non-publication or suppression restrictions previously made in the proceedings were lifted.

Key Takeaways

  • A criminal prosecution that is assessed as doomed to fail at its highest can constitute an abuse of process warranting a permanent stay of proceedings, consistent with the principles in Barton v R and Jago v District Court of NSW.
  • The District Court declined to resolve whether res judicata applies in this criminal context, deciding the matter instead on the narrower "doomed to fail" ground, which both parties accepted as a valid basis for a permanent stay.
  • Where a co-ordinate judge has previously conducted extensive sentence proceedings and heard expert evidence firsthand, principles of judicial comity carry significant weight in any subsequent court's assessment of the same evidentiary material.
  • For manslaughter by criminal negligence, the prosecution must establish not merely a breach of duty but that the breach involved such a great falling short of the standard of care that a reasonable person would have exercised, that it merits criminal punishment, and that it caused the deceased's death.
  • Expert evidence that an accused's omissions contributed to the deceased's death only "slightly more than minimally" was found insufficient to sustain the causation element required for a conviction in these proceedings.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), s 91

Cases
- Barton v R (1980) 147 CLR 75
- Jago v District Court of NSW (1989) 168 CLR 23
- Justins v R [2010] NSWCCA 242
- R v Edwards [2008] SASC 303
- R v Lavender (2005) 222 CLR 67
- R v Sam [2009] NSWSC 803
- R v Thompson, David and R v Thompson, Phillip [2019] NSWSC 1396
- Royall v R (2019) 1 CLR 373 (note: citation as stated in judgment)
- Sitidini v R [2009] NSWCCA 302
- Wilson v The Queen (1992) 174 CLR 313