Citation: Baker v R [2023] NSWCCA 262
Court: Court of Criminal Appeal, NSW
Date: 18 October 2023
Judges: Beech-Jones CJ at CL (principal judgment); Harrison J (agreeing); Wright J (agreeing)
Background
The applicant was the former partner of the deceased and had voluntarily assumed his care from at least March 2011. The deceased suffered from multiple serious health conditions, including kidney and rectal cancers with liver metastases. He suffered two strokes in early 2012, and by mid-2012 visitors to his home observed severely deteriorated conditions, including soiled bedding and significant physical decline.
The sentencing judge found that the deceased experienced "protracted neglect" over several weeks before he was hospitalised on 5 October 2012. By that point he had lost approximately half his body weight. He suffered a third stroke in the days before his death on 16 October 2012. The trial judge found that the applicant's neglect had caused the deceased to develop cachexia (extreme weight loss) and pressure ulcers, which were significant causes of his death.
The applicant was convicted of manslaughter following a judge-alone trial and was sentenced to five years' imprisonment with a non-parole period of three years. She applied for leave to appeal against both the conviction and the sentence.
Legal Issues
- Whether the verdict was unreasonable, or could not be supported by the evidence, because there remained a reasonable possibility that the deceased's death resulted solely from his third stroke and cancer, with no causative contribution from his cachexia or pressure ulcers.
- Whether the sentence of five years' imprisonment was manifestly excessive having regard to comparative manslaughter cases and the applicant's subjective circumstances.
Decision
On causation: The court reaffirmed that causation in manslaughter requires proof beyond reasonable doubt that the accused's act or omission was a "substantial or significant" cause of death. Importantly, causation can be established where the accused's conduct accelerated death, even where pre-existing disease was also operative.
Three expert witnesses gave evidence at trial. The forensic pathologist, Dr Pokorny, described significant interplay between the direct cause of death (metastatic cancer causing the third stroke) and other contributing conditions including cachexia and ulcers. The oncologist, Professor Fox, progressively attributed greater weight to cachexia and ulcers as accelerating death. The palliative care specialist, Professor Chye, described cachexia and ulcers as "separate ongoing parallel problems" to the strokes but acknowledged they made survival from the third stroke "much more difficult." The court found that Professor Chye's evidence, on proper analysis, implicitly accepted that those conditions hastened death, rather than being entirely independent of it.
Considered as a whole, the court found the expert evidence overwhelmingly supported the conclusion that the deceased's cachexia and ulcers made a significant contribution to hastening his death. The proposition that the deceased died from the third stroke with no relevant contribution from those conditions was, at most, a bare possibility. Causation was established beyond reasonable doubt, and the appeal against conviction was dismissed.
On sentence: The court confirmed that comparative sentencing cases for manslaughter have limited utility and do not establish a fixed sentencing range for manslaughter by neglect. Given the sentencing judge's finding that the offending was of "high seriousness," and having considered the applicant's subjective circumstances, a sentence of five years' imprisonment could not be characterised as manifestly excessive. The sentence appeal was also dismissed.
Orders Made
No orders were made in this decision.
Key Takeaways
- Causation in manslaughter does not require proof that the accused's conduct was the sole cause of death. An omission that substantially accelerates death is sufficient, even where serious pre-existing disease is also present and operative.
- Where expert evidence describes a victim's neglect-induced conditions as making survival "much more difficult," a court may properly treat that evidence as consistent with, and supportive of, a finding that those conditions hastened death.
- The total body of evidence must be assessed when determining whether a verdict is unreasonable. A possibility that is "bare" in character does not constitute the "significant possibility" required to establish an unreasonable verdict under M v The Queen principles.
- Comparative cases in manslaughter sentencing do not establish a binding sentencing range, particularly for manslaughter by neglect. The Court of Criminal Appeal declined to treat prior decisions as fixing a ceiling or floor.
- In dismissing both appeals, the court confirmed that a finding of "high seriousness" in the sentencing judgment can withstand a manifest excess challenge even where the offender relies on significant subjective mitigating factors.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 44
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(3)
- Criminal Procedure Act 1986 (NSW), ss 132-133
Cases:
- Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Dansie v The Queen (2022) 247 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mohana v R [2023] NSWCCA 61
- Reyne v R [2022] NSWCCA 201
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Magro v R [2020] NSWCCA 25
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
- BW v The Queen [2011] NSWCCA 176; (2011) 218 A Crim R 10
- R v Evans (No 2) [1976] VR 523
- Krakouer v Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
- R v Taktak (1988) 14 NSWLR 226
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43