R v Stein [2007] VSCA 300

R v Stein [2007] VSCA 300 - VSCA 2007 case summary — Zoe

[7]

5 On Friday 6 June 2003 the deceased rang Ms Doolan. It was arranged that he would attend on the evening of 6 June at the house in Queen Street, Ormond for the purpose of purchasing some sex video tapes. He brought with him wine and cans of bourbon and coke. The deceased was not well known to the applicant but they had met briefly on previous occasions. Upon arrival at the home in Ormond, the deceased, the applicant and Ms Doolan sat around talking, drinking and watching videos. During a discussion about his sexual interests, including his interest in bondage, the deceased agreed to buy two videotapes. Subsequently Ms Doolan and the deceased moved to the front bedroom of the house where she provided services to her clients. A discussion took place between Ms Doolan and the deceased as to the possibility of three persons being involved in a bondage session. He agreed to pay her $400 for such a session. She left the bedroom and spoke to the applicant. She told the applicant that it was intended that she and the deceased would play the role of 'submissives'. She returned to the front bedroom and the deceased, as was his usual practice, then snorted a sexual stimulant, amyl-nitrate. Ms Doolan then dressed the deceased in pantyhose, a skirt, one of her tops and some high heeled shoes. Having applied lipstick to the deceased, she tied him up using leather restraints and rope, and left him spread-eagled on his back on the bed. The applicant then entered the room. He had with him two handkerchiefs that were knotted together at the ends to form a gag, which was then tied around the head and mouth of the deceased. Some short time after the tying was completed the deceased started to breathe 'hard and fast' and his eyes fluttered. It was clear to Ms Doolan that he was in some distress. His distressed reaction caused Ms Doolan to tell the applicant to 'take care'. She left the bedroom. The applicant stayed and did not leave the bedroom for some time. The deceased died in the room during this time. The police were not called but the applicant removed the rope and restraints from the deceased. The deceased's body was left in the bedroom for some days prior to the applicant moving the body into the station wagon owned by the deceased. The applicant drove the station wagon containing the body of the deceased to a remote location near Tarwin Lower. The applicant then placed the body of the deceased upon some cardboard, added briquettes and petrol and set it alight.

[19]

16 The prosecution case put to the jury was that although the deceased had agreed to be restrained as part of a bondage session, there was no evidence before them that he had agreed to have a gag tied around his mouth. The evidence of Ms Doolan in this regard was that the deceased had telephoned her and arranged to come to her home to buy some sex videos. When the deceased arrived there was a brief discussion between Ms Doolan and him about his being involved in 'a threesome' with the applicant. There was mention of 'bondage' but no discussion about the details of such bondage. Before this occasion the deceased had never engaged in such conduct with Ms Doolan. After this discussion, the applicant, Ms Doolan and the deceased sat down in her lounge room and watched videos. Ms Doolan and the deceased consumed some alcohol. Later in the evening Ms Doolan and the deceased left the lounge room and went to her bedroom. There she and the deceased sat talking, drinking and smoking cigarettes. They were together in the room for 'quite some time' and 'maybe a couple of hours' smoking and drinking before a discussion took place whereby Ms Doolan 'explained to him about having this threesome arrangement' and enquired as to whether he would like it. Ms Doolan dressed the deceased in female clothing before the applicant entered the room. Ms Doolan gave evidence that she had discussed tying up the deceased as she and the deceased were to play 'the submissives'. She said that the deceased had agreed to be restrained. He was then restrained on his back with both wrists and both ankles being tied to legs of the bed. When the deceased was in that position Ms Doolan told the applicant that she was ready to commence. The applicant came in and placed a mouth gag around the mouth of the deceased. Ms Doolan observed a reaction from the deceased. She described his reaction as being one of panic. He started panting and breathing heavily. His eyes were fluttering. Ms Doolan told the applicant to 'watch out' or 'take care'. She gave evidence that soon thereafter she had panicked and fled from the room.

[74]

So I then move from the matter of unlawfulness to that of dangerousness, and you must be satisfied that the act or acts that caused death were dangerous, and "dangerous" in this context means what a reasonable person, finding himself in the same position as the accused did, would consider dangerous in the sense of exposing the victim to an appreciable risk of serious injury. This is an objective test, not a subjective test. Subjective is what is in the mind of the person, in this case the accused. Objective is looking at the matter objectively or from outside. So it is not what the accused might have thought dangerous. When considering this element you are not dealing with the intent or understanding of the accused, but with an objective assessment of what a reasonable person would assess as being dangerous in the particular circumstances. So the prosecution must prove that a reasonable person in the position of the accused, performing the very acts that the accused performed, would have realised that he was exposing the deceased to an appreciable risk of serious injury. You must be satisfied that the accused had the intention of performing that unlawful and dangerous act and it is a very different intention from the intention required for murder, namely to kill or to do really serious injury. You have to make your assessment of the dangerousness of the activity in which the accused and the deceased were engaged and that involves, amongst other things, a scrutiny of the evidence of Ms Doolan. You have the evidence of a number of matters which are relevant to dangerousness, including as to the nature of the preliminary tying up of the deceased, and you take account of the effects of the restraints on the wrists and ankles. You take account as to what was said to the deceased before and during that tying up. You take account of the application of the two handkerchiefs, knotted together as a gag and you make what you do of the distress of the deceased to the application of that gag and the other circumstances of that matter as portrayed by the evidence of Ms Doolan.

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Judgment (96 paragraphs)

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Cases Cited (6)