R v Stein [2007] VSCA 300

**3 The applicant, Peter Godfrey Stein, was convicted of manslaughter after trial on 5 June 2006. This is an application for leave to appeal against that conviction.

4 The background facts may be stated briefly. For many years prior to 7 June 2003 the applicant had been in a relationship with Catherine Doolan who, at that time, was working as a prostitute. The applicant acted as her pimp. At that time the prostitution services were provided at the home in Queen Street, Ormond, where the applicant and Ms Doolan were residing. One of Ms Doolan's clients was the deceased man David Macdouall. He had been a regular client of Ms Doolan for some years prior to June 2003. Ms Doolan provided sex services to him approximately once a month, usually on a Friday night.

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.

6 On 10 June 2003 the deceased was reported to the police as being missing. In the course of their investigation the police discovered that the deceased had made a phone call to Ms Doolan on 6 June 2003. The police first spoke to her on 16 June 2003. On 20 June 2003 the police found the station wagon owned by the deceased in a laneway near Ms Doolan's home. On 29 June 2003 the badly burned body of the deceased was found in Tarwin Lower.

7 Subsequently, in September 2004, police obtained a surveillance warrant and placed a listening device in Ms Doolan's home. The listening device led to a discussion being recorded between the applicant and Ms Doolan whereby the applicant described the deceased as being a pervert and a paedophile.

8 Subsequently the applicant was charged with the murder of the deceased. However, the jury found him not guilty of murder, but guilty of the crime of manslaughter.

9 The applicant now relies upon four grounds of appeal, grounds 4 and 6 of the statement of grounds being no longer pursued.**

Ground One: The verdict is unreasonable in that it was not open on the evidence to a properly instructed jury to return a guilty verdict on the count of manslaughter

**10 The applicant, through his counsel, argues that no jury, properly instructed, could have been satisfied that the applicant had committed an unlawful and dangerous act or that the death of the deceased was caused by his criminal negligence.

11 In essence, the prosecution case as to manslaughter was that the placing of the gag over the mouth of the deceased by the applicant and his failure to remove the gag when the deceased displayed obvious signs of distress was an unlawful and dangerous act and/or was criminally negligent.

12 It is submitted before us that for several reasons the conclusions sought to be drawn by the prosecution were not open. First, it is argued that the jury could not have been satisfied that the applicant had committed an unlawful and dangerous act because it would have been unsafe for the jury to have excluded the possibility that the act of tying the gag around the mouth of the deceased and leaving it there was a circumstance of the bondage session to which the deceased had consented. Secondly, it is submitted that the prosecution failed to exclude a reasonable hypothesis consistent with innocence; that being that the death of the deceased was caused by accidental vasovagal inhibition process. Thirdly, it is submitted that it could not have been inferred safely that the failure of the applicant to remove the gag was in any way a cause of the death of the deceased, as it may have been already 'too late' by the time the deceased was observed to be in distress. As I understand this submission, it is that the removal of the gag at the time that distress was first observed may not have saved the life of the deceased.

13 Fourthly, before any adverse inference could have been drawn from the applicant's conduct in disposing of the body, the jury had to exclude the possibility that the applicant had acted out of panic or fear, not because he had done anything wrong, but because of the sexual circumstances surrounding the death of the deceased and because both he and Ms Doolan were drug users. In this regard, it is submitted that even if the jury were entitled to infer from the applicant's conduct that he believed some unlawful act of his had led to the death of the deceased, accident could not have been excluded as being a reasonable possibility; that is, that the conduct of the applicant in removing the body and burning it could support an inference about his belief only that he had done something unlawful, and no more than that. Finally, it is argued that the evidence upon which the prosecution relied as to motive for murder was weak and tenuous and could not have been in any way probative of manslaughter.

14 In response to the submission advanced on behalf of the applicant that the verdict of manslaughter was unreasonable and/or unsafe, the respondent relies upon the fact that the case against the applicant was a circumstantial one depending upon inferences to be drawn from the following evidence. First, that the deceased became obviously distressed and agitated following and as a result of the application of the gag. Secondly, at the time that the gag was placed around his mouth he was unable to remove it, by reason of being restrained. Furthermore his capacity to dissent was removed by the applicant placing the gag around his mouth. Thirdly he died soon after the application of the gag around his mouth. Fourthly, the placing and the leaving of the gag around his mouth was the cause of his death, there being no underlying pathology or medical history which could suggest that the death of the deceased was coincidental or unexplained. The application of the gag made a substantial contribution to the death of the deceased notwithstanding the fact that the exact mechanism of death could not be established. Fifthly, the applicant disposed of and attempted to destroy the body of the deceased.

15 As to the contention of the applicant that the jury could not exclude the possibility that, as part of the bondage session, the deceased consented not only to the tying of the gag around his mouth, but the leaving of it there, the respondent submits that any such inference of consent would be irrelevant.

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.

17 There was no suggestion that the use of a gag had been discussed with the deceased by Ms Doolan or the applicant. For this reason the respondent contends that there was no basis to say that the deceased had consented to the placing of the gag on him. However, even if he had done so, the respondent contends that not only is there no evidence that the deceased consented to it not being removed when he commenced to suffer symptoms, but that he could not have done so. Once the gag had been placed around his mouth he lost his ability to dissent or to abandon any consent that he had given.

18 In my view, the jury were entitled to conclude from the evidence before them that the deceased had consented to engage in sexual activity by which he would be dressed in women's clothing and restrained by the ankles and wrists. There was, however, no evidence implied or otherwise before them, that the deceased had consented to having a gag tied around his mouth. Certainly there was no evidence that he had consented to not having it removed when he suffered distress.

19 In any event, any consent by the deceased to the application of the gag cannot be regarded as being consent to the risk of the infliction upon him of actual bodily harm by reason thereof. The issue of consent in the context of sado-masochistic sexual activity has received some attention in recent times.

20 The majority opinion in R v Brown[1] established the principle that consent is irrelevant to a charge of assault occasioning actual bodily harm in circumstances whereby the bodily harm is caused in the course of sado-masochistic sexual activity. A subsequent decision of the Court of Appeal in R v Emmett[2] applied the principle arising from Brown's case in the following circumstances. One of the counts of assault occasioning actual bodily harm in the case of Emmett involved the applicant covering the complainant's head with a plastic bag and tying it at the neck with a ligature. Subsequently the applicant became aware that the complainant was in distress, unable to speak or to make intelligible noises. He removed the bag from her head rapidly. During the following day the complainant attended her doctor because of increasingly blood-shot eyes which had been caused by the restriction of oxygen to her brain. The doctor observed some petechial bruising around her neck which was caused by the restriction of blood flow to her neck. As the Court observed, it was plain that had those restrictions been permitted to continue, brain damage and ultimately death might have been the result. The Court held that in such circumstances consent was no defence.

21 In R v McIntosh[3] the accused pleaded guilty to manslaughter. The sexual partner of the accused had died after the accused deliberately pulled on a rope which, with the apparent consent of the deceased, had been placed around his neck. This was done on the basis that near asphyxia was thought by the accused to heighten sexual pleasure. Vincent J (as he then was) in the course of sentencing remarks set out in brief form his understanding of the law as it was at that time. He said[4]:**

First, it is not, of itself and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism.

Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk that even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful.

Third, apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself.

In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognised.

With respect, that appears to me to be an accurate statement of the current law as it applies in Australia, the United Kingdom and Canada.[5]

**22 Applying those principles to the present case, it cannot be said that the general activity in which the applicant and the deceased were engaged was unlawful for the purposes of the application of the unlawful and dangerous act formulation of the crime of manslaughter. Nevertheless, even though it might be accepted that the deceased had consented to bondage activity, the application of a gag to his mouth, whether or not he had consented, involved exposure to the risk of serious physical injury to him, just as did the placing of a plastic bag over the head of the complainant in the case of Emmett. There was a foreseeable risk of serious injury. Furthermore, the circumstances in which that foreseeable risk of serious injury arose included circumstances whereby the deceased was restrained and gagged. There was no possibility of his articulating his lack of consent, or indeed for that matter articulating his distress. Once the gag had been placed on him, he was totally in the hands of the applicant. Once that had occurred in circumstances where a risk of serious injury arose, the issue of consent became irrelevant.

23 The second argument upon which the applicant relies in support of his submission that it was not open to the jury on the evidence before them to convict him of manslaughter is that the prosecution failed to exclude a reasonable hypothesis consistent with innocence. That hypothesis is submitted to be that the death of the deceased was caused by 'accidental vasovagal inhibition process'. In my view this contention is of little substance, concentrating as it does, on the possible mechanism of the death of the deceased rather than upon the actual and substantial cause of his death, being the application of the gag around his mouth.

24 At the trial Professor Ranson gave evidence of having conducted an autopsy on the body of the deceased on 28 June 2003. By then the body was showing signs of decomposition in addition to the damage caused by the applicant having set it on fire. Nevertheless Professor Ranson did not find any underlying pathology that might explain the death of the deceased as being coincidental or otherwise unconnected with the activity in which the deceased was engaged at the time of his death. Professor Ranson was not able to establish unequivocally a pathological cause of death. Counsel for the applicant argues, in his written submissions, that a vasovagal inhibition process was the most likely cause of death. This submission is based upon the evidence of Ms Doolan that the deceased appeared to panic 'a short period of time' after the applicant placed the mouth gag on him and upon her evidence that she observed that he was 'panting and breathing heavily, his eyes fluttering and his chest heaving'. The evidence as to how long after the placing of the gag such observations were made of the deceased is not precise. In her evidence in chief, Ms Doolan stated that the time between the application of the gag and the 'reaction' of the deceased which she described as panic, was 'not long' and 'maybe minutes'. In the course of cross examination it was put to her that it was within 'a very short period of time' after the application of the gag that she observed the deceased to be 'in some form of distress'. She agreed that that was so. However, it was not the evidence of Professor Ranson in the course of cross-examination that a vasovagal inhibition was the most likely cause of death. He was asked a number of questions about gagging and gagging effects:**

QUESTION: What is the process when there is a gagging and how that gagging affects the oxygen levels potentially, the vomiting response, if there is one, and the heart's reaction to it?

QUESTION: Yes, that's why I threw it to you Professor.

ANSWER: Ok, let's think about the issues here. The presence of a gag in this concept can have various effects on the body. It can impede airflow in and out of the nose and mouth and in which case if it does that will lead to a lowering level of oxygen level in the blood. It will lead to a rise in the carbon dioxide and the waste products in the blood and those will eventually have an effect on the heart because if the heart doesn't get enough oxygenated blood, it itself will start to get into problems and will have difficulty in functioning well, and that may well trigger processes such as a change in its rhythm or other problems with the heart muscle itself. So that's, you know, one process by which the - a gag may operate to affect the heart. Clearly that will take some time because the heart's a pretty robust organ at responding to low levels of oxygen, whereas the brain, for example, is much more sensitive and is affected at much lower - a much earlier process. If the gag interferes with that for some reason, the back of the mouth or causes vomit to be trapped in the mouth and inhaled, then foreign material landing on the back of the throat area and in the voice box area, the vocal chords, can also stimulate nerve structures in the neck that actually influence the heart rate, and indeed can slow the heart dramatically and in fact in some cases cause it to stop. This is so called vasovagal inhibition process, and some people are very sensitive to those things so that their heart's affected very early on, and other people are much more resistant to them.

ANSWER: Vasovagal. It's vaso [indistinct] vascular system, vagal being the tenth cranial nerve, the vagus nerve, and that innovates the structures around the voice box. And if things interfere with that area, interfere with the blood vessels also in the neck, that can cause a rapid slowing of the heart. That's why in surgery people are often given the drug Atropine just before surgery to stop any interference with those structures during surgery causing the person's heart to slow down.

QUESTION: Finally, Professor, the obstruction to the airway, the gag such as that would cause, can that obstruction of the airway lead the heart to have to work harder in some way to cope with the reduction of the oxygen supplied to the lungs?

ANSWER: If there's a drop in the level of oxidation of blood, then our body does react to that. It reacts to it by breathing more rapidly and usually trying to increase the circulation. It's simply a physiological reaction to the lack of oxygen, so one usually initially tries to breathe more actively, but also to pump more blood round the body. So it would increase probably these sorts of physical - physiological processes in the heart and lungs.

25 In re-examination Professor Ranson was asked the following questions and gave the following answers:

QUESTION: Can I also just ask you, in relation to the scenario that was put to you about a gag in the mouth, and not being able to breathe, if that was the situation would you expect the person to react immediately in some way, if they were not getting the air?

ANSWER: I think any obstruction to the mouth and nose usually causes a person to be - to react to that. In other words we don't like having our nose and mouth obstructed and just in the ordinary medical anaesthetics this is something that causes some stress. That doesn't mean to say that at that stage the person has got a lack of oxygen. I think the mere physical presence of being unable to breathe is quite stressful.

QUESTION: I understood you to say that the heart could then - and I'm quoting you - "could then get into problems, but it takes time"?

ANSWER: Well yes, I think if - a situation where there is a lack of oxygen in the blood, then certainly eventually the heart is not getting the oxygen it needs to work properly, but that does take time.

QUESTION: It's a situation where if it takes time, in the time that the person is attempting to get air, or attempting to breathe, you would expect to see reaction from them in some way, including perhaps panic?

ANSWER: Well I think that clearly that's a possibility. I mean, certainly someone who has an airway obstructed and is concerned by that and feels threatened by that, is clearly going to react, and that reaction is a psychological reaction in a sense and is certainly likely to be happening at a much earlier phase, I would have thought, than a physiological effect on the heart due to low oxygen levels.

QUESTION: The point I'm making in relation to that is that if you take the gag off when you see this sort of reaction, well (sic) you expect the person to be able to breathe again?

ANSWER: Well I would - assuming that the gag is causing obstruction. Well, yes, unless there's been some secondary phenomenon that's already happened as well, like, you know vomiting beneath the gag. Obviously that would cause some increased problems. But once the obstruction has been relieved, then they're able to breathe again.

QUESTION: Because it would take time, would it, as I understand it, to go from the stage of a gag in the mouth, if it was in the mouth - a gag in the mouth, to the point where your heart stops you're dead?

ANSWER: Yes, it would, unless you've got one of these vasovagal inhibitions. In other words, if something in the gag is stimulating the larynx and the voice box, then you might die suddenly. If that's not the case and you're struggling to breathe in that situation and you relieve the obstruction to breathing, you would imagine the person would come good again. In the time for those problems to occur the initial real problem is actually oxygen getting to the brain. That's almost more important than oxygen getting to the heart. Oxygen to the brain, you know, requires we need to get the circulation back within the matter of a few minutes. With the heart you've got a longer timeframe in order to get things working again.

QUESTION: If an observation is of eyes fluttering, chest heaving up and down, shallow breaths, that sort of activity, because it occurs over a time, whatever it is, is that different to the vaso reflex which is really a very sudden reaction?

ANSWER: Yes, usually it's a very sudden reaction. The heart can slow down a little bit first, so there might be a very slow heart beat before the heart stops, but even that can be quite a stressful event.

QUESTION: But the description that I just gave of - just bear with me just one second, I'll find it just so that I'm not misquoting - it was breathing heavy, chest going up and down, breathing hard and fast, maybe shallow panting, fluttering eyes, just going up and down, can I suggest that that is less consistent with a vaso response than a lack of breath response, if you follow the distinction?

ANSWER: Yes I think that's probably true in the sense that the vasovagal effect is usually a rapid slowing of the heart, leading to a slowing of blood supply to the brain and a fairly rapid loss of consciousness and then the heart stopping, so I think that's probably a reasonable process, although it would be variable from person to person and it is difficult to infer what that description actually means in terms of what is happening to the person.

26 It is apparent from the above passage that Professor Ranson did not give evidence that the most likely mechanical cause of death was a vasovagal inhibition process. It was one of the responses which he discussed as being a possibility, among others, in consequence of the application of the gag around the mouth of the deceased. As stated in R v Hallett[6] , the accused's conduct need not be the sole cause of death but must be a substantial cause of it. The Court stated, 'The question to be asked is whether an act ... consciously performed by the accused is ... so connected with the event that it ... must be regarded as having sufficiently substantial causal effect which subsisted up to the (death of the deceased) without being spent, or without being in the eyes of the law sufficiently interrupted by some other act or event.'[7] That is, even if a vasovagal inhibition process had taken place, it was caused by the application of the gag to the mouth of the deceased. In Campbell v The Queen[8] Burt CJ said[9]:

It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their commonsense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.

**27 This formulation was approved in Royall v The Queen[10]. In my view it was open to the jury to conclude that the application of the gag was a substantial cause of the death of the deceased.

28 The third basis upon which the applicant submits that it was not open to the jury to convict him of manslaughter is that the inference that the applicant was criminally negligent in allowing the gag to remain on the deceased, rather than removing it, was not an inference that could be drawn safely. It is argued that the fact that 'it was already too late' by the time the applicant had observed the deceased to be in distress could not be excluded. As I have observed already, clearly the application of a gag by the applicant to the deceased involved exposure of the deceased to the risk of serious physical injury. It was that dangerous and negligent act which obstructed the airway of the deceased and caused his death. The evidence of Professor Ranson was that the removal of the obstruction to breathing would have permitted oxygen to get to the brain and heart of the deceased unless there had been a vasovagal inhibition caused by the gag stimulating his larynx. Either way, in all the circumstances the application of the gag can be seen to have been the act of the applicant which caused the death of the deceased.

29 The fourth and fifth arguments upon which the applicant relies relate to the inference which might have been drawn from the post defence conduct of the applicant. However, in this regard the trial judge gave careful directions as to the use that might be made of the post offence conduct and no exception to those directions was taken then or is taken now before us. There is no reason to believe that the jury did not follow those directions.

30 The sixth argument is that the motive relied upon by the prosecution in its case against the applicant on the charge of murder was not probative of manslaughter. That is clearly correct. However that motive was relied upon in proof of the element of intention to kill being an element of the charge of murder. The jury having acquitted the applicant on the count of murder, there is no basis to assume that they took that evidence into account impermissibly in relation to the alternative charge of manslaughter. The judge's charge was quite specific in making it clear to the jury that the relevance of that evidence related to the issue of intention to kill. There is no suggestion that the judge, or counsel, suggested to the jury that the evidence of motive was relevant in any way other than that.**

Ground 2 - The learned trial judge erred in ruling that there was a case to answer on both murder and manslaughter, or, alternatively, erred in ruling that there was a case to answer on murder

**31 It will be recalled that the applicant was presented before the jury on a charge of murder. At the trial of the proceeding and at the conclusion of the Crown case, counsel for the applicant submitted that there was no case to answer as to either murder or to manslaughter in the alternative.

32 The prosecution case as to the count of murder was that the jury were entitled to draw inference from the evidence before them that the applicant killed the deceased intentionally. The first contention was based on evidence that on 14 September 2004 and in a covertly recorded telephone conversation between the applicant and Ms Doolan, the applicant described the deceased as being 'a pervert and a paedophile.' This was said to have demonstrated animosity towards the deceased on the part of the applicant. Furthermore, when the body of the deceased was discovered, a piece of paper was found to be situated over his left eye. On the piece of paper and written in capital letters was the word 'kids'. The prosecution argument was that those two pieces of evidence when taken together, provided compelling evidence of motive and thus the jury were entitled to draw the conclusion that the killing of the deceased was intentional.

33 In addition counsel for the applicant submitted before his Honour that there was no case to answer on the alternative charge of manslaughter. In short it was put by counsel that the prosecution could not point to a specific act causing death, nor could it point to a specific cause of death and that the evidence was that the deceased had consented to a bondage session. The trial judge held that there was a case to answer on the alternative count of manslaughter. Clearly he had somewhat more diffidence about the submission made in relation to the count of murder. He said:**

There was greater strength in the submissions ... directed to the issue of the paucity of evidence as to the deceased being shown to have had the requisite intent for murder.

34 After considering the evidence as to that matter he said:

After reflection, and given that the test that I am required by the authorities to apply as to the drawing of inferences that favours the prosecution position on the hearing of a no case submission I (am) satisfied that the matter (is) properly to be left to the jury.

35 Notwithstanding the acquittal by the jury on the count of murder it is submitted on behalf of the applicant that no reasonable jury, properly instructed, could have inferred a murderous act or intent on the part of the applicant and that the trial judge should not have ruled that there was a case to answer. It is submitted that the fact that he did so has given rise to a substantial miscarriage of justice. The argument advanced on behalf of the applicant is that it created a false choice for the jury and that the manslaughter verdict might have been arrived at by some or all of the jury as a compromise between acquittal and murder in circumstances where, it is submitted, the appropriate choice should have been between manslaughter and acquittal. In support of this argument, counsel for the applicant relies upon Mraz v R,[11] Gilbert v The Queen[12] and Gillard v The Queen.[13] However each of those cases was different from the case now before us. Mraz was a case where the accused was convicted of manslaughter in the alternative to a charge of murder. The High Court held that in the particular circumstances of that case manslaughter was not open and should not have been left to the jury. Both the cases of Gilbert and Gillard involved the failure of a trial judge to leave manslaughter to a jury as an alternative verdict to the charge of murder. The principles espoused in those cases are not analogous to the circumstances of the case before us. There was evidence of motive before the jury in this case and there was evidence of animosity on the part of the applicant towards the deceased. In my view his Honour was bound by Doney v The Queen[14] to leave the question of guilt on the charge of murder to the jury, notwithstanding his entirely justified view that there was strength in the submission made before him that there was a paucity of evidence in support of proof of the requisite intention to kill.

Ground 3 - The learned trial judge erred in his directions to the jury concerning manslaughter by unlawful and dangerous act

**36 In support of this ground counsel for the applicant argues that the application of a gag in the context of a consensual bondage session could not amount to an unlawful and dangerous act. For the reasons set out above the issue of consent is irrelevant. Furthermore, and obviously, the application of a mouth gag to a person who is restrained and unable to remove the gag and powerless to articulate any distress he might suffer augurs the foreseeable risk of serious injury. The act of applying the gag under such circumstances is capable of being seen as both unlawful and dangerous.

37 However, in the alternative, it is submitted on behalf of the applicant that if there was an unlawful and dangerous act, it was necessary for the trial judge to tell the jury whether such act was capable of being unlawful and dangerous. It is submitted that the directions given to the jury by the judge did not define the act which was capable of being regarded as an unlawful and dangerous act, and thus it was 'left to the jury to decide whether there was an unlawful and dangerous act'.

38 The trial judge gave clear and succinct directions as to the elements of manslaughter by unlawful and dangerous acts. Dealing with the issue of an unlawful act, he directed the jury that bondage activity between consenting adults is not in itself unlawful. He directed the jury that as a general proposition the law accepts that a person can consent to engaging in activity which is accompanied by a risk of some physical injury. He gave an example of Australian Rules football as being an instance of where such an activity is not unlawful. He then directed the jury that consent would not be recognised in circumstances of bondage activity which involved 'the infliction of significant physical injury '. He then said:**

The evidence is, of course, a matter for you, but you may well think that the evidence points to the deceased man having consented to general bondage activity but not to bondage activity which involved significant physical injury. The general bondage activity would not be regarded as unlawful for the purposes of the application of the relevant element of the crime of manslaughter. If the prosecution has satisfied you as to the accused having performed the acts which caused death, you might think that the deceased man did not consent to the kind of activity which resulted in his death, but it is entirely a matter for you.

39 His Honour then turned to the question of dangerousness as follows:

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.

It also involves a scrutiny of the evidence of Professor Ranson. He spoke at length of the risks to have (sic) which were potentially associated with the use of a gag.

40 The trial judge, did not state specifically that the placing of a gag around the mouth of the deceased in the course of a bondage session in circumstances where the deceased was bound and unable to remove the gag was an act which was capable of being unlawful and dangerous. However, in my view no risk of a miscarriage of justice arises by reason of his failure to do so. As is apparent from the extract of the evidence of Professor Ranson set out above, the principal issue in the trial related to the conduct of the applicant in placing a gag around the mouth of the deceased in circumstances where the deceased was unable to remove the gag or to articulate his distress. It must be assumed that the jury approached their task by the application of reasonable powers of common sense. In my view there is no possibility other than that the jury understood clearly that the unlawful and dangerous act about which the judge directed them was the placing of the gag on the deceased by the applicant in circumstances whereby the deceased was restrained and effectively helpless. It is artificial in the extreme to suggest that the jury may have reasoned impermissibly that the act under consideration was something other than that. It is not without significance that no exception was taken to this part of the charge by experienced counsel then acting for the applicant.

Ground 5 - the learned trial judge erred by warning the jury as to the unreliability of the evidence of the witness Catherine Doolan

**41 In the course of her final address the Crown Prosecutor suggested to the jury that the evidence of Ms Doolan in a number of respects reflected 'an effort to assist' the applicant. She referred to a number of answers given by Ms Doolan which were not responsive to the question asked, but were exculpatory. Counsel for the applicant in the course of his address relied to a considerable extent upon the evidence given by Ms Doolan.

42 In the course of his charge to the jury his Honour said:**

So far as Ms Doolan is concerned, there are some common sense reasons for your being careful in assessing the reliability of the evidence. One of those reasons is that there is a possibility of there being a self-exculpatory aspect to her statement; in other words, shifting of blame away from herself. She was present in that bedroom when you might be satisfied that it is really admitted the deceased appears to have died. She tied the deceased on her own story. She described his distress but she did not go to his aid. She did not call 000. You might think that there is a risk that she might have been inclined to shift blame away from herself and onto the accused. Apart from that there are other things going either way or perhaps the other way. On her own say-so she was at the time sick. She was on her own say-so drug affected, and that appears to have affected her memory and she said it did. There is another factor. You might think that some of her evidence does appear to be at odds with independent evidence, and there is also the factor that you might think that she had a long association with the accused. I just mention those matters, bearing in mind that her reliability as to some matters was questioned by Ms Pullen but was generally assumed, rather than questioned by Mr Stuart. It means only this, that you just carefully scrutinise that evidence.

**43 No exception was taken to this direction. However at an earlier point in the trial, and at the close of the evidence, counsel for the applicant had made a submission that there should be an accomplice warning given by his Honour. The submission made by counsel was brief. He relied upon R v Jenkins[15] in support of his submission. Counsel for the prosecution did not respond to that submission and there was no further discussion of the matter. However, upon the appeal it is argued that the direction should not have been given. It is argued that the direction was 'in effect an accomplice warning without the requirement to look for corroboration.' It is argued that such a direction should be given only for the protection of the accused and that in the circumstances of the case before the jury, the direction had the effect of giving credence to the criticism made by the prosecution in relation to the reliability of the evidence given by Ms Doolan.

44 R v Jenkins involved circumstances whereby a witness who had pleaded guilty to criminal offences in relation to charges of deception brought against the appellant, gave evidence on behalf of the prosecution. The defence did not seek to challenge the evidence of the witness and indeed relied upon it to a considerable extent. No accomplice warning was sought by the defence, and the trial judge did not give one. Upon appeal to the High Court the appellant argued that such a warning should have been given. The High Court held that in circumstances where the primary facts which emerged from the evidence of the witness were largely undisputed, an accomplice warning was not necessary.

45 The instruction given to the jury by the trial judge was not an accomplice warning. The judge did not warn the jury that it was dangerous to convict on the evidence of Ms Doolan unless it was corroborated. That is conceded by counsel for the applicant, but it is submitted that the effect of the direction given was much the same. In particular it is submitted that the direction supported remarks made by the prosecutor in her closing address and that in circumstances where the defence relied upon the evidence of Ms Doolan, the direction should not have been given.

46 In my view the direction given by the judge was balanced and fair. There was a risk that in giving her evidence Ms Doolan had endeavoured to distance herself from any blame. A trial judge is obliged to give a jury adequate directions to assist them in assessing the evidence of a witness. Whilst it is true that the primary function of such direction is to ensure that there is no miscarriage of justice, in all the circumstances of this trial the trial judge was entitled to give the direction that he did. It was no more than a direction given in the interests of a fair trial. In the course of the direction the judge referred specifically to the risk that Ms Doolan 'might have been inclined to shift blame away from herself and onto the accused'. Ms Doolan was the only eye witness to the events which led to the death of the deceased. She was involved intricately in the events which led to his death. These were matters which were properly taken into account by his Honour in giving the direction that he did.

47 I would dismiss the application for leave to appeal the conviction.

[1] [1994] 1 AC 212.

[2] Unreported 18 June 1999 (Rose LJ, Wright and Kay JJ).

[3] [1999] VSC 358.

[5] See R v Welch (1996) 101 CCC (3d) 216.

[6] [1969] SASR 141.

[8] [1981] WAR 286.

[10] [1991] HCA 27; (1991) 172 CLR 378 at 411.

[11] [1955] HCA 59; (1955) 93 CLR 493.

[13] [2003] HCA 64; (2003) 219 CLR 1.

[14] [1990] HCA 51; (1990) 171 CLR 207.

[15] [2004] HCA 57; (2004) 79 ALJR 252.