R v Hegarty [2011] VSC 111

2 I heard further submissions after completion of the evidence and before addresses. I ruled that the prosecutor could address the jury on the reckless murder alternative and that I would then give the jury directions as to that alternative. I indicated that I would give my reasons subsequently. These are those reasons.

3 On Friday 28 August 2009 the accused, Ms Hegarty, assaulted an elderly man, Mr Hughes, who she did not know in a suburban street. At the time Ms Hegarty was in her early 30's, and able bodied. A number of witnesses have described her as stocky. Mr Hughes, on the other hand, was 89 years old and was very frail.

4 There is dispute as to the extent to which Mr Hughes' frailty was apparent, and, in particular, apparent to Ms Hegarty. For present purposes it suffices to say that it would be open to the jury to conclude that Mr Hughes was apparently an elderly and frail man.

5 There is a good deal of evidence that at the relevant time Ms Hegarty was under the influence of alcohol, and perhaps other drugs as well. There is evidence indicating she was behaving aggressively and irrationally towards other people, who she either did not know or knew and had no reason or no good reason to feel antipathy towards. On the evidence, it would be open to conclude that Ms Hegarty's intoxication is part of the reason for what was otherwise an unprovoked and irrational attack upon a person who she did not know.

6 On the evidence, it would be open to conclude that Mr Hughes died because he was vulnerable to spinal fracture due to a medical condition from which he suffered, and that whilst he received a number of injuries in the attack, the force which Ms Hegarty applied to him was in the range of mild to moderate.

7 It is not in dispute that Ms Hegarty assaulted Mr Hughes. There is dispute about how many times she punched him and how forceful those blows were and about whether she kicked him at any point.

8 The authorities indicate that the circumstances in which a jury ought to be called upon to consider reckless murder are "unusual"[1] or indeed "quite rare".[2] It is only where, on the evidence, reckless murder arises as a practical issue, which is not so incidental as to be a distraction from the real case, that the jury should be directed to consider it.[3]

9 Whilst it is suggested that the circumstances in which reckless murder arises ought to be rare, I note that, at least in the situation of deaths involving persons in a domestic relationship, the issue appears to have arisen out of explanations for the death suggested by the accused which do not seem to me to be unusual, including accidents unrelated to any conduct of the accused[4], accidents related to the conduct of the accused[5], and the consequences of attempts to frighten which get out of hand.[6] Reckless murder arises most obviously in circumstances such as that which was the subject of an example given in one of the leading cases where a person intentionally drops a large block of stone from a high building into a crowded street.[7]

10 As the House of Lords explained in Hyam, the issue becomes significant in cases where there is a view of the evidence which suggests that, whilst a person might not have intended the outcome of death or really serious injury in the sense that they wished or desired to bring that particular state of affairs about, they nevertheless knew that that was probable and went on regardless. Doubt as to whether they intended to produce that outcome might be because there was some other intention (such as to frighten a romantic rival in Hyam) or because there are circumstances suggesting the accused did not desire to bring about that position in relation to someone they purported to love (of which Nydam and Barrett may be examples), or because they did not know the victim at all (as in R v TY[8]), or because the accused "just lost it" and lashed out at a very vulnerable person (Aiton). One factor which it seems can give rise to a circumstance where it is open to conclude that a particular outcome was not intended in the sense that the accused decided to procure it, but that there was nevertheless knowledge of that probability, is where there is a significant disparity between the strength of the accused and the vulnerability of the victim (see Aiton and Barrett). Another way of analysing the cases may be to say reckless murder arises as an issue where the evidence is such that the jury could take the view that, at its highest, there was an intention to expose the deceased to the risk of really serious injury, with that being the known probable outcome, without necessarily an intention to actually cause it.

11 In this particular case it seems to me that that view of the evidence is open. In this case there is the disparity between the vulnerability of the victim and the strength of the accused (as there was in Aiton and Barrett). Here, there is not a situation where the nature of the relationship might cause a doubt as to whether the accused desired to bring about really serious injury (as perhaps in Pemble, Nydam and Barrett), but there is the element of what seems to be almost random violence between strangers (as in TY), which might lead to a doubt as to whether the accused desired to produce the outcome of really serious injury notwithstanding knowledge that that outcome was probable. This is not a case where the activity by its very nature suggests an intention to expose someone to a serious risk, such as creeping up on a person with a loaded weapon (Pemble), dropping a block of stone from a building (Pemble example), attempted self-immolation (Nydam), or attempting to burn down a house (Hyam), but given what was, on one view, the apparent vulnerability of the victim, combined with the almost random nature of the violence between strangers, the jury might not be satisfied the accused made a decision to bring about a state of affairs where really serious injury was suffered but did actually foresee that probability and went ahead anyway.

12 I accordingly concluded that the issue was a practical issue on the evidence and not an incidental distraction and ruled that the prosecutor could put it to the jury on that basis and that I would give the jury appropriate directions (as per Pemble, Barrett and TY).

[1] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 118 ("Pemble").

[2] R v Barrett [2007] VSCA 95 at [49] ("Barrett").

[3] Pemble; Nydam v R [1977] VicRp 50; [1977] VR 430 ("Nydam"); R v Aiton (1993) 68 A Crim R 578 ("Aiton"); and Barrett.

[4] R v Jakac [1961] VicRp 62; [1961] VR 367.

[6] Hyam v DPP [1974] UKHL 2; [1975] AC 55 ("Hyam"); and Nydam.

[8] R v TY [2006] VSCA 113 ("TY").