Nydam v R CASE NOTE - case note PDF

Preview

Summary

case note...

Description

NYDAM v R [1977] VR 4301 I. MATERIAL FACTS Mr Nydam and Miss Stradling had developed a friendship over the past five years through a penfriend correspondence. The relationship however, had begun to deteriorate after Miss Stradling and her sister decided to relocate to Melbourne, due to difficulties whilst living with Mr Nydam. Upon Miss Stradling and her sister returning to Melbourne and deciding to reside within their own flat, the relationship between Miss Stradling and Mr Nydam continued to become strained, illustrated through the agreement made by Miss Stradling that she would concede to seeing Mr Nydam on specified days based on the understanding he would be reasonable and not otherwise bother her. Nevertheless, the relationship continued to worse, Miss Stradling’s assertion that she may no longer be able to see Mr Nydam led to a development in his possessiveness. Hence, Mr Nydam engaged in stalking Miss Stradling, it is through these behaviours that Mr Nydam began to suspect both Miss Stradling’s of making plans to leave for England. On the 15th of January, suspicion and jealousy led Mr Nydam to confront Miss Stradling whilst at the hairdressers, although Miss Stradling told Mr Nydam he was not wanted at the hairdressers and that she would see him later, Mr Nydam returned a second time. Upon Mr Nydam’s return to the salon he carried with him a bucket containing petrol, Mr Nydam advanced to throw the petrol upon Miss Stradling threatening that she would “pay for this” as he continued to light a cigarette lighter towards the direction of Miss Stradling. Miss Stradling was engulfed in flames, dying almost instantly, furthermore, another woman within the salon Miss Karen Bush was killed as a result of the flames ignited by Mr Nydam. II. PROCEDURAL HISTORY The case of Nydam v R2 was presented to the Court as a consequence of the actions undertaken by the applicant, Mr Eric George Nydam, which had resulted in charge of two counts of murder. The case has been bought before the court three prior times, each heard in the Supreme Court of Victoria. The first trial of Mr Nydam was aborted within the early stages, at a second trial the jury deliberated but were unable to reach a unanimous decision and thus discharged with no verdict. Most recently, at third trial, the defendant was convicted on charges of murder, subsequently applying for an appeal against that conviction. The case is currently on being heard on appeal at the Full Court of the Supreme Court of Victoria. III. GROUNDS OF APPEAL/ISSUES The Court were confronted with the decision of whether the misdirection in the learned trial Judge’s charge in relation to ‘murder by recklessness’ had portrayed a decree of failure in efforts to relate the relevant evidence in regard to the understanding of the concept of reckless indifference in opposition to the consequences of the current contemplated act in Nydam3. The court was dealt with deciding if the past Judge had been inadequate in merely referencing the terms ‘reckless’ and ‘reckless indifference’ to the Jury without referring them to examine the state of mind to which they must find to identify within the specific facts of

1 Nydam v R [1977] VR 430 2 Ibid. 3 Ibid.

Nydam4. There was no reiteration of evidence that may have inclined the jury to establish or deny a quality of foresight within the state of mind of the applicant. Raising a critical issue before the court, involving the ability to provide proper direction for a jury in a case which is open to both charges of murder by recklessness and manslaughter by criminal negligence. IV. ANALYSIS OF DECISION In reaching the final decision, in the case of Nydam v R 5, of allowing the appeal, the court displayed that throughout the prior trial, the Judge had failed in its role of informing the jury in regard to legal principle and theory. In efforts of the Justices to portray that the previous learned trial Judge had indeed delivered an incorrect direction to the Jury, the court formulated a new test to be used in determining the establishment of a ruling of manslaughter by criminal negligence. The court determined that a charge of manslaughter by negligence must constitute evidence that the act or behaviour of the accused was performed “consciously and voluntarily, without any intention of causing death or grievous bodily harm”6 but that it was performed particularly in situations which display such a significant “falling short of the standard of care which a reasonable man would have exercised”7 compounded with the nature that such actions produce a “high risk that death or grievous bodily harm would follow”8. In consequence of this test formulated by the court, if the accused fulfilled the components previously stated above the court holds that it would warrant “criminal punishment” 9. In response to the newly formulated test, the court considered that the orders given in Nydam by the previous Judge were not in alignment with views of manslaughter by criminal negligence as they had articulated it. The decision of the court to produce a new test for manslaughter by criminal negligence proved reason enough to support rejecting the verdict. V. FINAL DECISION AND ORDERS The final decision held by the Court was that the original direction delivered by the learned trial Judge was not in accordance with what the current Court had formulated in regard to the test for manslaughter by criminal negligence and therefore provides for an additional reason to support rejecting the prior decision. The final orders issued by the Court identify that the application was granted, with an appeal allowed, the prior conviction of murder rejected, and a new trial instructed. VI. RATIO DECIDENDI The Court’s reasoning in arriving at their decisions can be identified through legal principles used in order to determine their own judgement. In order to formulate a new test of manslaughter by criminal negligence, the court applied that the crown “is not obliged to show that the accused ‘acted with the realisation of the extent of the risk which his unlawful act was creating’” 10. Furthermore, choosing to dissent from the once authoritative dictum of Smith J. in R v Holzer11, that whilst acting in a reckless breach of care, it had to be proven 4 Nydam v R [1977] VR 430 5 Ibid. 6 Nydam v R [1977] VR 430, 445 [43] 7 Ibid 445 [45] 8 Ibid 445 [47] 9 Ibid. 10 R v Holzer [1968] VR 481, 482 11 R v Holzer [1968] VR 481

that the accused “nevertheless chose to run the risk” 12. This court dissented based on differing judgements found within Pemble v R13 and La Fontaine v R14, choosing to align itself with the rule of law regarding manslaughter by negligence presented by Menzies J in Pemble15, that “to do a careless act causing death, without any conscious acceptance of the risk which its doing involves is manslaughter, if the negligence is of so high a degree to show a disregard for life deserving punishment16”.

12 Ibid. 13 Pemble v R (1971) 124 CLR 107 14 La Fontaine v R (Unreported, Full Court, 8 October 1976) 15 Pemble v R (1971) 124 CLR 107 16 Ibid....