AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
19
Court of Criminal Appeal 30 November 1999

R v CRAMP [1999] NSWCCA 324 revised - 10

[1999] NSWCCA 324

Also reported as (1999) 110 A Crim R 198
Homicide
CRIMINAL LAW MANSLAUGHTER CRIMINAL LAW HELD: THEY DID NOT.

Citation: R v Cramp [1999] NSWCCA 324
Court: New South Wales Court of Criminal Appeal
Date: 30 November 1999
Judge(s): Sully J, Ireland J, Barr J

Background

The appellant was a 55-year-old man who, over the course of an afternoon and evening, supplied alcohol to a 16-year-old girl and encouraged her to drive his car at high speeds on public roads near Maitland. Three children, aged between ten and fourteen, were passengers throughout. The appellant acknowledged he was too drunk to drive and handed the keys to the deceased, a learner driver, in order to avoid the consequences of drink-driving himself.

After several hours of driving, during which the car reached speeds of up to 150 kilometres per hour on the appellant's encouragement, the vehicle left the road and struck a telegraph pole. The deceased was killed and the appellant suffered severe head injuries. The blood alcohol reading of the deceased at the time of the collision was 0.167, while the appellant's was estimated to have been between 0.13 and 0.178.

The appellant was convicted of manslaughter by a District Court jury and sentenced to penal servitude for nine years and four months. He appealed against both conviction and sentence.

  • Whether the trial miscarried because the Crown relied on two alternative bases of guilt: unlawful and dangerous act, and gross negligence.
  • Whether the trial judge was required to direct the jury that they must be unanimous as to which of the two bases they accepted.
  • Whether the directions given to the jury were confusing or otherwise inadequate.
  • Whether the appellant ought not to have been charged on the basis of aiding and abetting himself as a passenger.
  • Whether the sentence of nine years and four months was manifestly excessive.

Decision

The Court of Criminal Appeal dismissed all conviction grounds. On the central jury unanimity question, the Court held that where manslaughter can be established on alternative bases, such as gross negligence or an unlawful and dangerous act, a trial judge is not required to direct the jury that they must reach unanimous agreement as to which basis applies. The key requirement is unanimous agreement that the accused is guilty of the offence charged, not unanimous agreement on the particular route by which guilt is reached.

The Court further found that the two bases in this case did not involve materially different issues or consequences. Both arose from the same factual circumstances and both constituted the same offence. No separate or special directions were therefore required to distinguish them, and the trial judge's directions were adequate.

On the aiding and abetting ground, the Court found no error in the way the case was left to the jury. The appellant's conduct as a passenger and instigator of the dangerous driving was capable of founding liability on the Crown's case.

Turning to sentence, the Court accepted that the sentencing judge had made a technical error in comparing the offence to aggravated dangerous driving causing death under s 52A(2) of the Crimes Act, which carries a maximum of 14 years, rather than treating manslaughter on its own terms with its maximum of 25 years. However, that error favoured the appellant and did not vitiate the sentence. The Court held that the objective facts placed this case among the worst of its kind, and that the sentence imposed was not manifestly excessive.

Orders Made

  • Appeal against conviction dismissed.
  • Leave granted to appeal against sentence; appeal against sentence dismissed.

Key Takeaways

  • A jury deciding a manslaughter charge need not be unanimous as to which legal basis, such as gross negligence or unlawful and dangerous act, establishes guilt; unanimity as to the verdict itself is sufficient.
  • Where two alternative bases for manslaughter do not involve materially different issues or consequences, no special jury direction is required to treat them separately.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that manslaughter carries a maximum of 25 years' penal servitude and is a more serious offence than aggravated dangerous driving causing death under s 52A(2) of the Crimes Act.
  • A sentencing error that favours the accused does not, of itself, provide grounds for a successful sentence appeal.
  • Conduct involving the supply of alcohol to a young learner driver, active encouragement of dangerous speeds over an extended period, and the placing of multiple children at risk was assessed as falling within the worst category of motor vehicle manslaughter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 31A, 52A(2), 346
- Traffic Act 1909 (NSW), s 4E(1D)
- Accessories and Abettors Act 1861 (UK), s 8
- Crimes Act 1958 (Vic), s 338

Cases cited (selected):
- KBT v The Queen (1997) 191 CLR 417
- Giorgianni v The Queen (1984-1985) 156 CLR 473
- Cain v Doyle (1946) 72 CLR 409
- Thatcher v R (1987) 39 DLR (4th) 275
- R v Isaacs (1997) 41 NSWLR 374
- R v Beach (1994) 75 A Crim R 447
- R v Demirian [1989] VR 97
- R v Clarke & Johnstone [1986] VR 643
- R v Muto & Eastey [1996] 1 VR 336
- R v Serratore [1999] NSWCCA 377
- R v Leivers & Ballinger (1998) 101 A Crim R 175