Citation: Bagster v R [2024] NSWCCA 224
Court: Court of Criminal Appeal, NSW
Date: 20 December 2024
Judge(s): Davies J (primary), Wright J, Rigg J
Background
The applicant was convicted of the manslaughter of his on-again/off-again partner following a trial in May 2022 before Judge Haesler SC and a jury. The deceased, a woman with a significant history of illicit drug use, was found face down in a wheelie bin in her Woonona apartment on 21 March 2011, with her upper body submerged in water and her right ankle bound to her waist. She had last been seen alive on 9 March 2011, in company with the applicant.
The applicant was sentenced to 11 years and 6 months imprisonment with a non-parole period of 8 years. He sought leave to appeal his conviction on one ground only: that the jury's verdict was unreasonable and not supported by the evidence.
The central forensic difficulty was that the autopsy, conducted by Dr Johan Duflou, could not determine the cause or manner of the deceased's death. The pathologist identified four possible causes, including positional asphyxia, drowning, neck compression, and drug overdose, or some combination of them.
Legal Issues
- Whether the jury's verdict of guilty of manslaughter was unreasonable or unsupported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487.
- Whether, given the undetermined cause of death, the evidence permitted the jury to exclude the reasonable possibility that the deceased died of a drug overdose independent of any act by the applicant.
- Whether the evidence sufficiently established that the applicant caused the deceased's death, even in the absence of proof of which specific act caused death.
- Whether a unanimity direction was required as to which act or acts by the applicant caused the deceased's death.
Decision
Davies J, with Wright J and Rigg J agreeing, dismissed the application for leave to appeal. The court held that the verdict was not unreasonable, finding the evidence as a whole strongly supported the conclusion that the applicant caused the deceased's death.
The court addressed the drug overdose possibility at length. The forensic pharmacologist's evidence indicated that the absence of codeine in the post-mortem samples suggested the heroin dose had not been very recent. Combined with the unusual circumstances in which the body was found, including the restraints and her position in the bin, the court was satisfied it was not a reasonable possibility that the deceased had died of a drug overdose independently of the applicant's actions.
The tendency evidence played a significant role in the court's reasoning. Evidence of the applicant's prior violent conduct toward the deceased, including prior incidents of restraining her around the neck, was described as very strong. In addition, the applicant's DNA was found on the wheelie bin handles and a light switch, his fingerprint was found on the underside of the bin's rim, and admissions were made to two witnesses. The court found that this body of evidence, taken together, supported the jury's conclusion.
On the question of which specific act caused death, the court held no unanimity direction was required. The various possible acts attributable to the applicant, including physical assault, restraint, and placing the deceased in the bin, could each have contributed to death, and tying the deceased while she was injured or incapacitated was itself unlawful and dangerous. The ongoing restraint alone was sufficient, in the court's assessment, to have significantly contributed to the deceased's death across multiple possible scenarios.
Orders Made
• Agreement with the orders proposed by Davies J
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellate court to conduct its own independent assessment of whether the evidence, viewed as a whole, was capable of supporting the jury's conclusion beyond reasonable doubt.
- Where a cause of death cannot be forensically determined, a conviction is not automatically precluded; the jury may draw inferences from the surrounding circumstances to exclude independent causes of death as reasonable possibilities.
- A conviction for manslaughter does not require proof of the specific act that caused death, provided the evidence supports the conclusion that the accused's unlawful and dangerous conduct caused the death and no unanimity direction is required where multiple acts each potentially contributed.
- Tendency evidence of prior violence by an accused toward a deceased victim can form an important part of the evidentiary basis supporting an inference of guilt, particularly where forensic evidence is inconclusive as to precise cause of death.
- Sufficient evidence existed to sustain the verdict where DNA and fingerprint evidence placed the applicant at the scene, admissions were made to witnesses, and the circumstances of the body's discovery were inconsistent with death by natural or self-administered causes.
Legislation and Cases Referenced
Legislation: None cited.
Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
- Wilson v the Queen (1992) 174 CLR 313; [1992] HCA 31
- Williams v Smith (1960) 103 CLR 539; [1960] HCA 22
- AKB v R [2024] NSWCCA 169
- AZ v R [2018] NSWCCA 294
- Flanagan v R [2013] NSWCCA 320; (2013) 236 A Crim R 255
- Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
- Lane v R [2017] NSWCCA 46
- R v Cornelissen; R v Sutton [2004] NSWCCA 449
- R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562
- R v Holzer [1968] VR 481
- R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
- Question of Law Reserved No 1 of 2022 [2023] SASCA 109