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Supreme Court 16 June 2022

R v AN; R v LM

[2022] NSWSC 776

Homicide
CRIMINAL LAW CHARGE OF MURDER JUDGE ALONE TRIAL RELEVANT PRINCIPLES AND DIRECTIONS CAUSATION EXPERT OPINION

Citation: R v AN; R v LM [2022] NSWSC 776
Court: Supreme Court of New South Wales
Date: 16 June 2022
Judge: Walton J

Background

In February 2020, two accused (referred to as AN and LM) participated with a co-accused (WD) in a planned attack on a man lured from Canberra to the NSW south coast under the pretence of a sexual encounter arranged via the Grindr app. The three men detained the deceased at a remote powerline easement near Broulee, bound his wrists and ankles, taped his face and head with packaging tape, and inflicted actual bodily harm upon him. The deceased was found dead at the scene between approximately 3.33 pm and 4.45 pm on 2 February 2020.

Both accused pleaded guilty to the foundational offence of detaining the deceased without consent and with intent to commit assault occasioning actual bodily harm, in circumstances of special aggravation, under s 86(3) of the Crimes Act 1900 (NSW). They each pleaded not guilty to murder. The trial proceeded as a judge-alone trial following a successful application by the accused over the Crown's opposition.

The central contested issue was causation: specifically, whether the Crown had proved beyond reasonable doubt that the accused's acts caused the death of the deceased.

  • Whether the Crown established beyond reasonable doubt that the deceased died from craniofacial trauma with airway obstruction, as determined by the forensic pathologist.
  • Whether the Crown excluded, as a reasonable hypothesis consistent with innocence, the possibility that the deceased died from methamphetamine toxicity.
  • Whether, on the causation standard in Royall v The Queen (1991) 172 CLR 378, the acts of AN or LM were a substantial and significant cause of the deceased's death.
  • Whether the accused were guilty of murder, given the contested expert evidence on cause of death presented through concurrent evidence sessions.

Decision

The forensic pathologist, Dr I'Ons, determined the cause of death to be craniofacial trauma with airway obstruction. However, this conclusion was contested by the accused through competing expert evidence. The trial involved concurrent expert evidence sessions in which significant areas of disagreement emerged, including disputes about the nature and extent of axonal injuries, survival time, airway obstruction, positional and restraint asphyxia, the interpretation of petechiae (small haemorrhages sometimes used as indicators of asphyxia), and the role of methamphetamine in the deceased's death.

Having considered the competing expert opinions, Walton J was not satisfied that the Crown had established to the requisite standard that the deceased died from the combined effect of craniofacial injuries and airway obstruction. Critically, the Crown had not excluded to the required standard the reasonable possibility that the deceased died from methamphetamine toxicity. Relevant expert disagreement included differing views on whether tolerance to methamphetamine can be lost and on the concept of sensitisation, whereby drug effects may intensify over time.

Applying the causation test from Royall, the court found that the Crown had not proved, on the evidence considered in a common-sense way, that the acts of AN or LM were a substantial or significant cause of the deceased's death. Both accused were accordingly acquitted of murder. Each accused was, however, convicted of the foundational s 86(3) offence to which they had pleaded guilty.

Orders Made

  • AN found not guilty of murder.
  • AN convicted of the s 86(3) offence (detention without consent with intent to commit assault occasioning actual bodily harm, in circumstances of special aggravation).
  • LM found not guilty of murder.
  • LM convicted of the s 86(3) offence (detention without consent with intent to commit assault occasioning actual bodily harm, in circumstances of special aggravation).
  • Crown Prosecutor and senior counsel directed to confer and provide a timetable for sentencing by Short Minutes of Order.

Key Takeaways

  • To sustain a murder conviction, the prosecution must prove beyond reasonable doubt that the accused's acts were a substantial and significant cause of death, as required by Royall v The Queen (1991) 172 CLR 378. A reasonable hypothesis of another cause of death is sufficient to defeat that element.
  • Competing expert evidence on cause of death, including disagreement about the role of methamphetamine toxicity and the significance of physical findings such as petechiae, can create reasonable doubt even where the autopsy report identifies a specific cause of death.
  • Concurrent evidence sessions (commonly called "hot tub" proceedings) are a procedural mechanism that allows experts to give evidence simultaneously and engage directly with areas of disagreement. This case illustrates how unresolved disagreements emerging from concurrent evidence can bear directly on the ultimate verdict.
  • A guilty plea to a foundational offence does not preclude an accused from contesting whether the death that followed was caused by their acts. Conviction on the lesser charge and acquittal on murder remained available outcomes on the same facts.
  • Under s 86(3) of the Crimes Act 1900 (NSW), detention without consent combined with an intention to commit a serious indictable offence, in circumstances of special aggravation, constitutes a standalone serious offence independently of whether a death results.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 86(3)
- Criminal Procedure Act 1986 (NSW) ss 132, 133, 275C
- Evidence Act 1995 (NSW) s 191

Cases
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- R v AN; R v LM [2021] NSWSC 1657
- AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8
- Velevski v R (2002) 187 ALR 233; [2002] HCA 4
- Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11
- Batcheldor v R (2014) A Crim R 461; [2014] NSWCCA 252
- Nguyen v R (2007) 173 A Crim R 557; [2007] NSWCCA 249
- Spiteri-Ahern v R [2022] NSWCCA 56
- Ussher-Clarke v R [2018] NSWCCA 61
- Walsh v R [2012] NSWSC 1399
- Dansie v The Queen [2020] SASCFC 103
- R v Anderson (2000) 1 VR 1; [2000] VSCA 16
- R v Moffatt (2002) 112 A Crim R 201; [2000] NSWCCA 174
- R v Shoesmith [2011] QCA 352
- Campbell v The Queen (1980) 2 A Crim R 157; [1981] WAR 286
- R v Sodo (1975) 61 Cr App R 131