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[2025] VSC 703
General information, not legal advice.
Supreme Court of Victoria
2025-02-21
Croucher J
Original judgment source is linked above.
CRIMINAL LAW - Manslaughter by criminal negligence - Accused hid loaded homemade pipe‑gun under couch in lounge room of family home - Accused's four‑year‑old daughter found gun - Mother of child took gun from child, marched up to accused in toilet, chastised him, then lobbed gun towards him, or dropped it at his feet - Gun discharged upon hitting tiled floor - Resulting shot struck mother's face, killing her - Previously, accused had tried discharging gun by firing mechanism, without success - Subsequent expert testing showed gun would not discharge by firing mechanism, but would if dropped or tapped with hammer - Charge of possessing gun as prohibited person laid initially; manslaughter charge laid ten months later - Causation of death - Accused's storage of gun capable of satisfying "but for" test (causa sine que non) - Mother's lobbing or dropping gun onto floor immediate cause of death (causa causans) - Whether, on evidence at highest, mother's lobbing or dropping gun onto floor inevitably broke chain of causation (novus actus interveniens) - Whether causation element foredoomed to failure - Whether manslaughter should be stayed permanently to prevent abuse of process - Application adjourned because of uncertainty over prosecution case and admissibility of evidence on causation - Crown to file indictment and summary of prosecution opening; defence to file defence response and notice of pre‑trial issues - Application for permanent stay may be determined once nature and extent of Crown case on causation fully known.
1 Today, I was due to hand down a ruling on Mr Winmar's application for a permanent stay of the manslaughter charge laid against him on the basis that it was foredoomed to fail on the element of causation.
2 However, for reasons I am about to give concerning uncertainties about the prosecution case and the state of the evidence, and subject to hearing from counsel, I am minded to adjourn that application without determination for the time being.
3 If it became necessary, I would resume the hearing of the application after the filing and service of an indictment, a summary of prosecution opening, and a defence response, and notification and determination of any pre‑trial evidentiary rulings that may be pertinent to that application.
4 I turn first to the prosecution case, which may be summarised in this way.[1]
5 On Saturday 1 April 2023, Adam Winmar, then aged 28, did something that will haunt him for the rest of his days. With breathtaking stupidity, he hid his loaded and crudely homemade "pipe‑gun" from his young family by putting it under (or inside) the lounge room couch at their home in Shepparton. The gun was loaded with a live 12‑gauge shotgun cartridge. He had tried to fire the gun previously, but with no success.
6 Alarmingly, later in the day, Mr Winmar's four‑year‑old daughter found the gun. His partner, the child's mother, Kiara Ferguson, came upon the child, took the gun from her, and immediately marched to the toilet, where Mr Winmar was sitting with the door open. She said something like, "What have I told you about this?" and then threw or lobbed the gun towards him, or dropped it in front of him. Either way, the gun hit the tiled floor and discharged in consequence. Freakishly, at least some of the shot struck Ms Ferguson in the cheek below her left eye. She fell to the floor, mortally wounded.
7 Mr Winmar tried desperately to help his partner. He rang triple‑zero, and the operator talked him through CPR, which he did his best to perform. At the same time, he tried to keep their two daughters (the other was aged six) away from this grisly scene.
8 Soon afterwards, police arrived. An officer went to the toilet area inside the house, where he saw Mr Winmar kneeling over Ms Ferguson, still desperately attempting CPR. He told the officer, "I was sitting on the toilet, she went to throw it at me, it dropped on the floor, went bang and fucking hit her." The homemade gun was on the floor next to Ms Ferguson.
9 Soon afterwards, paramedics arrived. Tragically, however, they could not save Ms Ferguson. Her life ended there and then. She was only 27, and was 12 weeks' pregnant with the couple's third child.
10 At some stage, Mr Winmar came out of the house. He was still highly distressed. He said he had been on the toilet and Ms Ferguson found the gun. He said she threw it at him, and it dropped.
11 At about 8:00 p.m., Mr Winmar was arrested and taken to the Shepparton police station.
12 Commencing just after midnight the next morning, police conducted a recorded interview with Mr Winmar. Among other things, he said the following:[2]
13 Mr Winmar and Ms Ferguson's older daughter CD (who was aged six) spoke to police in a recorded conversation (or a "VARE"), also on the Sunday morning, 2 April 2023. Among other things, she said the following:[3]
14 Mr Winmar and Ms Ferguson's younger daughter AB also spoke to police on the Sunday. In her second VARE, her account included the following:[4]
15 Leading Senior Constable David Breer, an expert on ballistics, attended the scene on the evening the incident. He did not observe any sooting, stippling or tattooing to the gunshot wound to Ms Ferguson. Nor did he see any partially burned or unburned propellent around or within the wound.[5]
16 The cause of Ms Ferguson's death was reported by a forensic pathologist as "shotgun wound to the head". The pathologist also noted there was no sooting or powder tattooing associated with the wound, which was in keeping with a "pathologically distant range of fire".[6]
17 Subsequently, LSC Breer's testing of the gun showed that it would not discharge by deploying its crude firing mechanism, but would discharge if dropped to the floor from heights of 450 mm and 1,000 mm, or if tapped on the bolt lightly with a hammer.[7]
18 LSC Breer also tested the shot spread by securing the firearm and striking the rear bolt lightly with a hammer. The shot spread was inconsistent - because of the lack of a breech face, which meant that sometimes the cartridge cases bulged, and sometimes they ruptured. Just counting the times when the cartridges ruptured, the distance between the firearm's muzzle and Ms Ferguson's wound was a minimum of 400 mm and a maximum of 1,000 mm.[8]
19 Mr Winmar's fingerprints were found on the gun. And both Mr Winmar and Ms Ferguson's DNA profiles were also found on it.[9]
21 For the purposes of this application today, it is unnecessary to explain the steps that were taken in the Koori Court of the Magistrates' Court in Shepparton on the possession charge before the matter was transferred to the committal stream of that court to join the manslaughter charge. It is sufficient to say that, on 25 June 2024, via the straight hand‑up brief procedure, Mr Winmar was committed for trial in this Court on both charges. Before the committing magistrate, he pleaded not guilty to each charge, although he does not dispute the possession charge.
22 On 14 December 2024, I heard counsel on Mr Winmar's application for an order permanently staying the manslaughter charge on the basis that it is foredoomed to fail on the element of causation.[12] Counsel for each party filed written submissions and made oral submissions as well. Counsel addressed factual matters and the principles concerning both causation in criminal law and permanent stays of prosecution. I turn to a brief (and incomplete) summary of those submissions.
23 Mr Lavery, who appears with Ms Swiney for Mr Winmar, referred to the reasoning in McHugh J's judgment in Royall v The Queen,[13] which included the following passages:
... in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a "but for" sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. ...[14]
...
Consequently, in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct. ...[15]
24 Mr Lavery submitted that, applying those principles, on the prosecution case at its highest, while it is open to conclude that Mr Winmar's storage of the firearm was a factor that played a part in the happening of Ms Ferguson's death in a "but for" (or causa sine qua non) sense, her act of throwing the firearm, causing it to hit the floor and discharge, was an act that broke the chain of causation (or a novus actus interveniens). Further, he submitted that that aspect of Ms Ferguson's act was not induced by Mr Winmar, and nor was it reasonably foreseeable, and that, therefore, her death could not have been caused by his act of storing the gun as he did.
25 In those circumstances, submitted Mr Lavery, the prosecution case on causation is foredoomed to fail and, therefore, the manslaughter charge should be stayed permanently as an abuse of this Court's process.[16]
26 Mr Hayward commenced his submissions by observing that whether an accused's act caused the death of another is a question of fact. That is so,[17] but it is not a sufficient answer to the defence submission in this case. For the principal issue here is whether, on the evidence at its highest for the prosecution, Mr Winmar's act of storing the gun as he did can or cannot in law amount to a cause of Ms Ferguson's death so that it can be determined that the prosecution case is or is not foredoomed to fail on that element of manslaughter.
27 Among other authorities, Mr Hayward referred in some detail to the five judgments of the seven members of the High Court in Royall, and submitted that the following conclusions may be derived therefrom in relation to the law on causation. First, it is not enough that an accused does something which is simply a fact necessary for death to occur (for example, in this case, loading the gun). Second, there must be an act or omission by the accused that a jury could, from a commonsense perspective, consider to be a cause of the death. Third, if the deceased does something irrational, unexpected, disproportionate, unreasonable or unforeseeable, that may break the chain of causation.
28 In Mr Hayward's submission, on the evidence, a jury could well conclude the following:
a) that Ms Ferguson had previously confronted Mr Winmar about the homemade firearm;
b) that, on the day of the incident, one of the children discovered it in or under a couch;
c) that Ms Ferguson took the firearm from the child;
d) that Ms Ferguson then confronted Mr Winmar about the firearm; and
e) that she either threw or dropped it on the floor of the toilet.
29 In his submission, in these circumstances, a jury could properly conclude that Ms Ferguson did not do anything so irrational, unexpected, disproportionate, unreasonable or unforeseeable that they must consider her actions broke the chain of causation between Mr Winmar insecurely storing the gun and the gun discharging.
30 In Mr Hayward's submission, as to whether Ms Ferguson acted in a manner that was irrational on one end of a spectrum to unforeseeable on the other, a jury could find that it is entirely probable that a confrontation of some sort may occur over the firearm. In this context, he emphasised that Mr Winmar himself heard Ms Ferguson say, "What have I told you about this?" In Mr Hayward's submission, a jury could conclude there was nothing unforeseeable about a member of Mr Winmar's family discovering the firearm and then either dropping it or knocking it against another object, given where the firearm was stored and the young ages of the children. And, in his submission, applying a commonsense test to the issue of causation, a jury could conclude there was nothing either irrational or unforeseeable about Ms Ferguson dropping or throwing the firearm in the context of a dispute with Mr Winmar arising out of her discovering one of their children handling it. He added that it is not unknown for people to throw objects in the course of an argument.
31 After then referring to cases addressing the notions of an accused's conduct being a substantial and/or a significant cause of death,[18] Mr Hayward submitted that, for the purposes of determining criminal responsibility, ultimately whether an accused can be said to have caused death depends on whether his or her act is a substantial and significant cause of death or it substantially contributed to death, and not by trying to shoehorn the act into a particular legal category. And, in his submission, despite Ms Ferguson throwing or dropping the firearm, the evidence is sufficient to find that Mr Winmar's actions substantially and significantly contributed to her death.
32 In those circumstances, submitted Mr Hayward, the prosecution case on manslaughter is not foredoomed to fail. Accordingly, he submitted, the application for a permanent stay of that charge should be refused.
33 At the conclusion of the argument, I adjourned the matter until today for decision.
34 As I have said, however, in my opinion, the application should be adjourned and remain undetermined for the moment. This is because, at this stage of the proceeding, it is unclear to me whether the manslaughter charge is or is not foredoomed to fail on causation. It may or may not be so foredoomed, depending upon matters yet to be clarified or determined. Let me explain. In doing so, however, for today's purposes, I shall not go into a detailed analysis of the relevant law in these reasons.
35 The vast majority of the evidence concerning Ms Ferguson's actions before the gun discharged, and the way in which I have understood the Crown to put its case on that issue thus far, compel the inference that she deliberately threw, lobbed and/or dropped the gun onto the floor. This evidence comes from Mr Winmar's admissions made both at the scene after the incident and at the police station later in his formal interview. My understanding of Mr Hayward's position on this score comes, in part, from the written overview of the prosecution case, in which it is said that Ms Ferguson "threw the firearm", which then struck the floor and discharged.[19] Further, in Mr Hayward's written submissions, and in his oral submissions, while he might not have said so expressly, I understood that he was asserting that Ms Ferguson either threw, lobbed or dropped the firearm deliberately, not accidentally. If I am wrong about that, then he will correct me in due course.
36 However, there is at least one piece of evidence in the depositions from which it is arguable that an inference that Ms Ferguson dropped the gun accidentally might be drawn. In particular, when speaking to First Constable Victoria Watson outside his home after the incident, Mr Winmar was recorded on the officer's body‑worn camera as saying, "[When] she went to pass it to me, she dropped [it] on the [floor]."[20]
37 This particular piece of evidence is not referred to in FC Watson's statement in the depositions.[21] Nor was it referred to in the prosecution overview or in either Mr Hayward's written submissions or his oral submissions.
38 Everything Mr Winmar said on this topic, repeatedly, both before and after what he is recorded as saying on the relevant part of the body‑worn camera footage, compels the inference that Ms Ferguson threw, lobbed and/or dropped the gun deliberately. However, notwithstanding that evidence, if the relevant part of the body‑worn camera footage were also admitted at trial and accepted as the true state of affairs by a jury, it may be arguable that the same jury would be entitled to infer that Ms Ferguson did indeed drop the gun accidentally.
39 In those circumstances, on my present understanding of the authorities, it might be open to a jury to find that Mr Winmar's allegedly negligent storage of the loaded gun caused Ms Ferguson's death. This is because, adapting the principles discussed in Royall and other cases to the present case, it seems to me that it is at least arguable that a reasonable person in Mr Winmar's position could have foreseen that any person in the household who came upon the gun, including Ms Ferguson, might pick it up but might also drop it accidentally, and that in turn there might be a risk that it would discharge in those circumstances. If that is so, then it is at least arguable that it could not be said that manslaughter was necessarily foredoomed to fail on causation.
40 On the other hand, if, on the prosecution case at its highest, there were no conclusion open other than that Ms Ferguson deliberately threw, lobbed or dropped the gun onto the floor, then, again, on my present understanding of the authorities, it is likely that I would be of the view that that act must have broken the chain of causation (i.e., was a novus actus interveniens) between Mr Winmar's alleged act of storing the gun negligently (a causa sine qua non) and the discharge of the gun, which was the immediate cause of her death (the causa causans). This is because it is at least arguable that, given the known inherent danger of guns, no reasonable person could have foreseen that an adult would deliberately throw, lob or drop the gun onto a floor at all, let alone near another, whether or not the adult knew the gun was loaded, for to do so would be to risk disaster. In the present case, it would also be irrational behaviour in that it would be completely at odds with, or out of all proportion to, what might reasonably be inferred was Ms Ferguson's reason for taking the gun to Mr Winmar and chastising him in the first place. If that were so, then it seems that it could be said that manslaughter was foredoomed to fail on the element of causation.
41 However, at present, I do not know whether the prosecution were intending to lead, or in any event now would seek to lead, the relevant part of the body‑worn camera footage at trial. Nor do I know whether, if the prosecution sought to lead that evidence, there might be a defence objection to its admissibility. Nor, if such an objection were taken, can I know at this stage what I might rule.
42 That said, having watched the body‑worn camera footage, I can say this. It is plain that Mr Winmar was in a very distressed state at the time. It may also be that he was, or ought reasonably to have been, suspected of having committed an offence by that time, yet he was not cautioned or advised of his rights at any time before the remark was made.[22] Perhaps for these reasons, and/or possibly others, it is evidence that might be excluded if objection were taken.
43 Or it may be that the reason the evidence was not mentioned either in the prosecution overview or in Mr Hayward's submissions is that it was thought to be inadmissible. Or it may be that it was thought that, in any event, the evidence could not - or at least should not - be taken to mean that Mr Winmar was suggesting anything other than that Ms Ferguson dropped the gun deliberately.
44 Whatever the answers to those questions might be, given the importance of the precise state of the evidence to potential proof (or not) of the element of causation, and in turn to the fate of the current application, subject to hearing from counsel, I think this application should be adjourned and not determined, at least until the prosecution and defence positions, and the admissible evidence concerning this issue, are fully ascertained.
45 In all the circumstances, then, I think the preferable course for the moment is, first, for the parties to go away and consider the issues I have raised. It may be that, upon consideration of these reasons and the evidence, the Crown might choose to discontinue prosecution of the manslaughter charge.[23]
46 Second, and in any event, if, after further consideration, and notwithstanding the difficulties I have identified with respect to causation, it is still intended to persist with the manslaughter charge, I think that the Crown should file and serve an indictment, a summary of prosecution opening and a notice of admissions, and that the defence should then file and serve a defence response, including notification of any pre‑trial issues - for example, as to matters of admissibility of the evidence touching upon whether causation might be foredoomed to fail.[24]
47 Once those steps have been taken, and, if necessary, any pre‑trial ruling has been made concerning the evidence potentially touching on causation, I will be in a better position to determine the application for a permanent stay of the manslaughter charge on the basis that it is foredoomed to fail on causation.
48 Finally, and in any event, I consider it is preferable that the application for a permanent stay, if still necessary, be determined after the filing of an indictment, and not before. For it is the filing of an indictment that engages - or at least more squarely engages - the jurisdiction of the Court. Whether there is to be, or not to be, a permanent stay of the manslaughter charge, it is preferable that it be a stay, or a refusal of a stay, of the charge on an indictment.
49 I shall have handed to counsel copies of the reasons I have just given. I shall also hear counsel on whether there is any objection or suggested modification to my proposed course, or whether there is anything else to be raised at this stage.
[1] For more detail, see the "Prosecution overview of how it intends to put its case on manslaughter" (filed 14 August 2024) ("Prosecution Overview").
[2] More detail of Mr Winmar's responses may be found in the Prosecution Overview at [36]-[42].
[3] For more detail of CD's account, see also Prosecution Overview at [31]-[32].
[4] See also Prosecution Overview at [34].
[5] See also Prosecution Overview at [19]-[23].
[6] See also Prosecution Overview at [30].
[7] See also Prosecution Overview at [24]-[27].
[8] See also Prosecution Overview at [28].
[9] Prosecution Overview at [19]-[20].
[10] Contrary to s 5(1) of the Firearms Act 1966 (Vic).
[12] Other bases for the application raised on 23 October 2024 were no longer pursued.
[13] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
[14] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 449 (per McHugh J).
[15] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 451 (per McHugh J).
[16] Counsel referred to Walton v Gardiner (1993) 177 CLR 378 at 382-393; and DPP v MK & TRF [2023] VSCA 187 at [19]-[25] and the authorities there cited.
[17] See, e.g., Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 441 (per McHugh J), citing R v Evans & Gardiner [No 2] [1976] VicRp 53; [1976] VR 523 at 527 and R v Pagett [1983] EWCA Crim 1; (1983) 76 Cr App R 279 at 290-291.
[18] In this respect, Mr Hayward referred to Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663; Arpaci v The Queen (2020) 91 MVR 414; [2020] VSCA 81 at [68] (per Priest JA); and R v Cuong Quoc Lam & Ors (Ruling 22) [2005] VSC 296 at [14] & [23] (per Redlich J).
[20] Depositions, pp 486-487. Compare and contrast Pauline Eddy's statement (Depositions, pp 154[13]-155[14]), who, it seems, witnessed the same conversation.
[22] See, e.g., ss 459, 464 and 464A of the Crimes Act 1958 (Vic) and s 138 of the Evidence Act 2008 (Vic); and see also, e.g., my discussion of these provisions in R v Lynn (Rulings 1‑4) [2024] VSC 373 at [59]-[72], [93]-[103], [141]-[151], [156]-[163], [191] & [213]-[235].
[23] Pursuant to s 177 of the Criminal Procedure Act 2009 (Vic).
R
Winmar
(1991) 172 CLR 378
(1993) 177 CLR 378
(2020) 269 CLR 663
(2020) 91 MVR 414