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Court of Criminal Appeal 18 October 2023

Baker v R

[2023] NSWCCA 262

Homicide

Citation: Baker v R [2023] NSWCCA 262
Court: Court of Criminal Appeal
Date: 18 October 2023
Judges: Beech-Jones CJ at CL, Harrison J, Wright J

Background

The applicant was the former partner and primary carer of a man diagnosed with multiple serious conditions, including rectal cancer with liver metastases and the sequelae of two strokes. She had voluntarily assumed care of him and he lived with her at her home when not hospitalised. Between May and October 2012, his condition deteriorated markedly under her care.

By early October 2012, when a caseworker prompted an ambulance call, the deceased was severely emaciated, covered in infected pressure wounds extending to the bone in some areas, infested with lice, and in an advanced state of starvation and dehydration. He was admitted to Hawkesbury Hospital and appeared to suffer a third stroke shortly after admission, dying on 16 October 2012.

The applicant was tried before a judge alone and convicted of manslaughter by neglect. She was sentenced to 5 years imprisonment with a non-parole period of 3 years. She sought leave to appeal against both conviction and sentence.

Legal Issues

  • Whether the verdict was unreasonable or unsupported by the evidence, specifically whether the expert evidence left open a reasonable possibility that the deceased's death was caused solely by the third stroke attributable to his cancer, with no significant contribution from his cachexia or pressure wounds.
  • Whether causation in manslaughter by neglect can be established where the accused's omissions are said to have accelerated or hastened death from an independently operating terminal condition.
  • Whether the sentence of 5 years imprisonment was manifestly excessive.

Decision

Conviction Appeal: Unreasonable Verdict

The sole issue on the conviction appeal was causation. The applicant accepted all other elements of the offence and accepted the trial judge's findings that her failures caused the deceased's cachexia and pressure wounds. The contested question was whether those conditions contributed to his death (at [53]).

The Court confirmed that causation in manslaughter is assessed as a matter of common sense to attribute criminal responsibility, and that it is established where an accused's omissions were a substantial or significant cause of death. Importantly, causation can be established by showing that the omission accelerated death, even where the deceased would have died in any event from a pre-existing disease (at [54]-[58]).

The applicant argued that three expert witnesses left open a reasonable possibility that the third stroke, caused by the deceased's cancer and unrelated to his cachexia or pressure wounds, was the sole cause of death. The Court examined each expert in turn. The forensic pathologist Dr Pokorny consistently emphasised the multi-factorial nature of the death and was unshaken that the deceased's cachexia almost certainly contributed to the occurrence of the third stroke (at [67]-[69]). Professor Fox expressed the view that cachexia had accelerated the process of death, and the Court found his evidence, assessed as a whole, reduced the proposition that the third stroke killed independently of the cachexia to a "bare possibility" rather than a reasonable possibility (at [80]). Professor Chye identified the third stroke as the direct cause of death and described the cachexia and ulcers as "separate ongoing parallel problems," but the Court found a significant flaw in his reasoning: he repeatedly located the stroke in the arterial system when it had in fact occurred in the venous system, undermining two of the three causal pathways he nominated (at [86]-[96]). Further, Professor Chye had stated that the deceased's recovery from the third stroke was "highly unlikely" because of his cachexia and pressure wounds, which the Court treated as implicitly accepting that those conditions hastened his death (at [97]).

Considering the totality of the evidence from all three experts, the Court concluded that the contribution of the cachexia and pressure sores to the hastening of the deceased's death was overwhelming. Causation was proved beyond reasonable doubt (at [99]-[100]).

Sentence Appeal: Manifest Excess

The trial judge found the offence to be of "high seriousness," having regard to the deceased's profound vulnerability, his protracted neglect across four domains (hygiene, nutrition, wound care and medical attention), the availability of resources to the applicant, and the presence of the couple's young son during the period of neglect (at [105]). These findings were not challenged on appeal.

The Court noted that, given the protean nature of manslaughter offences, comparative cases rarely establish a meaningful sentencing range (at [117]). Two cases cited by the parties, one involving a sentence reduced from 7 years to 3.5 years for neglect of an elderly mother, and another in which 16 years for the death of a seven-year-old child by starvation was upheld, were not treated as establishing any range for manslaughter by neglect (at [118]). Giving full weight to the mitigating factors, including the effect of the applicant's mother's death on her heroin addiction, the delay in proceedings, and her low risk of reoffending in the same manner, the Court was not satisfied that a 5-year sentence for an offence of "high seriousness" was manifestly excessive (at [119]).

Orders Made

  • Time extended for the applicant to seek leave to appeal against conviction and sentence up to and including 15 July 2023.
  • Leave to appeal against conviction granted.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Causation in manslaughter by neglect can be established by proof that the accused's omissions accelerated or hastened death, even where the deceased was already dying from an independently operating terminal condition such as cancer (at [54]-[58]).

  • The Court of Criminal Appeal confirmed that a concession by an expert witness that an alternative cause of death was "possible" does not automatically create a "reasonable possibility" sufficient to raise a doubt about causation. The evidence must be assessed in its totality, and a bare possibility is distinguished from a reasonable possibility (at [79]-[80], [99]).

  • Where an expert's opinion rests on a factual premise later shown to be incorrect (here, the location of the stroke in the arterial rather than venous system), the weight afforded to that opinion is correspondingly reduced, and the tribunal of fact was entitled to prefer the evidence of other experts (at [96], [98]).

  • In a judge-alone trial, findings of fact not challenged on appeal are available to the Court of Criminal Appeal as a foundation for assessing the unreasonable verdict ground, consistent with the approach endorsed in Mohana v R [2023] NSWCCA 61 (at [11]).

  • Manslaughter by neglect does not carry a recognised sentencing range or tariff. The protean nature of manslaughter offences limits the utility of comparative cases in establishing manifest excess or inadequacy, and the sentencing exercise must be conducted by reference to the specific facts and the sentencing judge's assessment of objective seriousness (at [117]-[119]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code (WA)
- Criminal Procedure Act 1986 (NSW)

Cases
- BW v The Queen [2011] NSWCCA 176; (2011) 218 A Crim R 10
- Dansie v The Queen (2022) 247 CLR 651; [2022] HCA 25
- Krakouer v Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Magro v R [2020] NSWCCA 25
- Mohana v R [2023] NSWCCA 61
- R v Blackledge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Evans (No 2) [1976] VR 523
- R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- R v Taktak (1988) 14 NSWLR 226
- Reyne v R [2022] NSWCCA 201
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64