Citation: R v Sione; R v Dawson [2024] NSWSC 378
Court: Supreme Court of New South Wales
Date: 15 April 2024
Judge: R A Hulme AJ
Background
Two accused, referred to here as the male accused and the female accused, were charged with the murder of a 16-year-old who died from complications arising from blunt force trauma. The assault occurred in two phases at the female accused's home in western Sydney on 4 August 2021. Multiple assailants were involved.
Both accused elected to have the matter determined by a judge sitting alone, following a ruling made in December 2023. Neither accused gave evidence at trial.
The male accused admitted to assaulting the deceased but maintained he had left the premises before a more sustained and serious assault was carried out by others. The female accused accepted that she was guilty of murder but argued her liability should be reduced to manslaughter on the basis of substantial impairment by cognitive impairment under s 23A of the Crimes Act 1900 (NSW).
Legal Issues
- Whether the male accused was guilty of murder on one or more of four bases: direct responsibility, joint criminal enterprise, extended joint criminal enterprise, or constructive murder (the predicate offence being specially aggravated kidnapping).
- Whether the male accused was also guilty of specially aggravated kidnapping on a joint enterprise basis.
- Whether the female accused had established the partial defence of substantial impairment by cognitive impairment, so as to reduce murder to manslaughter.
- How to assess witness credibility in the context of significant credit issues, and how to approach the drawing of inferences in a judge-alone criminal trial.
Decision
The court found the male accused guilty of murder. His argument that he had left the premises before the more serious phase of the assault was not accepted. The court concluded that his acts substantially or significantly contributed to the harm that caused the deceased's death, satisfying the causation requirement even where a subsequent assault by others also contributed. The Crown proved murder on at least one of the pleaded bases.
The court found the male accused guilty of specially aggravated kidnapping on a joint enterprise basis. The charge related to the detention of the deceased for advantage, and the court was satisfied the elements of the offence were established through the participation of multiple persons acting in concert.
The female accused's concession of murder was accepted. However, her partial defence of substantial impairment by cognitive impairment was not established. The defence under s 23A of the Crimes Act requires the accused to prove, on the balance of probabilities, that at the time of the act she was substantially impaired by an abnormality of mental functioning arising from an underlying condition, and that the impairment was so substantial as to warrant liability being reduced to manslaughter. The court found the evidence did not rise to that standard.
Throughout the judgment, Hulme AJ carefully addressed witness credibility. Several witnesses had significant credit issues, but the court identified a consistent factual theme supported by objective evidence, which underpinned the findings of fact on which the verdicts rested.
Orders Made
No orders were made in this decision.
Key Takeaways
- Causation in murder does not require the accused's acts to be the sole or principal cause of death. It is sufficient that those acts substantially or significantly contributed to the harm that caused death, even where a subsequent assault by others also played a role.
- A joint criminal enterprise does not require a pre-formed or expressly articulated agreement. The agreement may be inferred from the circumstances surrounding the commission of the offence, and participants need not play identical or equally active roles.
- Under the extended joint criminal enterprise doctrine, a participant who foresees the possibility that another participant might intentionally inflict grievous bodily harm may be liable for murder, even if the participant did not personally inflict that harm.
- The partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) is established by the accused on the balance of probabilities. Conceding guilt of murder does not automatically engage the partial defence; the accused must affirmatively prove the statutory elements.
- Where witness credibility is seriously contested, a judge-alone tribunal may still reach firm factual findings where the overall evidence discloses a consistent factual theme corroborated by objective material.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a) (murder), 23A (substantial impairment by cognitive impairment), 86(3) (specially aggravated kidnapping), 428B and 428C
- Evidence Act 1995 (NSW), ss 38 (unfavourable witnesses) and 141(2) (standard of proof in criminal proceedings)
Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Sione; R v Dawson [2023] NSWSC 1594 (ruling on judge-alone trial election)
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35