[2024] SADC 58

Prosecution: R Counsel: MS E MCGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: SHANE MCKENZIE WANGANEEN Counsel: MS J DAVEY - Solicitor: CAMPBELL LAW Hearing Date/s: 17/05/2024 File No/s: DCCRM-24-005873 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v WANGANEEN [2024] SADC 58 Reasons for Ruling of his Honour Judge Durrant 21 May 2024 COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS Defendant charged with manslaughter and criminal neglect- prosecution application to transfer case to Supreme Court- defendant opposed- factors relevant to determination- whether case of substantial gravity- whether case of substantial difficulty- case involving death of child in care of father of considerable importance- application to transfer granted. Held: Application to transfer to the Supreme Court granted. District Court Act 1991 (SA) ss 9, 24; Criminal Procedure Act 1921 (SA) s 118; Criminal Law Consolidation Act 1935 (SA) ss 13, 14; Justices Act 1921 (SA) s 112; Local and District Criminal Courts Act 1926 (SA) s 335, referred to. R v Harris and Daly (No.1) (1975) 12 SASR 264; R v Johnson and Ors (1978) 19 SASR 157, considered. -- 1 of 8 -- -- 2 of 8 -- R v WANGANEEN [2024] SADC 58 Introduction 1 The defendant Shane McKenzie Wanganeen has been charged with manslaughter and in the alternative, criminal neglect.1 2 Those offences are alleged to have been committed between 7 February 2022, and 11 February 2022, at Craigmore. 3 By letter dated 17 April 2024, the Director of Public Prosecutions asked this Court to refer this case to the Supreme Court.2 4 When the defendant appeared for arraignment on 10 May 2024, he indicated his opposition to any referral or transfer.3 5 Having heard argument, my reasons for granting the Director’s application for transfer to the Supreme Court follow. Relevant Legislation 6 Under s.24(2) of the District Court Act 1991 (SA), this Court, or a Judge or a Master of this Court, may order criminal proceedings in the District Court be transferred to the Supreme Court. 7 Also, the Criminal Procedure Act 1921 (SA), provides in s 118 that: …. (3) Where the District Court is of the opinion that a defendant committed for trial or sentence in the District Court should be tried or sentenced in the Supreme Court, the Court may order that the case be referred to the Supreme Court. … (5) In deciding whether to exercise its powers under this section, the Supreme Court or the District Court will have regard to— (a) the gravity of the case; and (b) the difficulty of any questions of law or fact; and (c) the views (insofar as they have been expressed) of the prosecutor and defendant; and 1 Information (FDN 14); Criminal Law Consolidation Act 1935 (SA), s 13, s 14. 2 Criminal Procedure Act 1921 (SA), s 118(3). 3 At that time, the Director made an oral application for transfer of this case, and I listed that application for argument on 17 May 2024; Subsequently, the Director filed an Interlocutory Application on 16 May 2024 (FDN 17); Joint Criminal Rules 2022, r 45.2. -- 3 of 8 -- [2024] SADC 58 2 (d) any other relevant factors. Relevant Cases 8 Counsel drew my attention to two relevant authorities which had considered legislation in similar terms to s 118 (5).4 9 In R v Harris and Daly, Sangster J opined that, if required to remit a charge to the District Criminal Court, the following would be relevant:5 • the gravity of the offences by reference to the circumstances of the particular case and the kind of offence;6 • the complexity or otherwise of the evidence to be tendered;7 • the difficulty, or uncertainty of the law involved or likely to be involved;8 • the respective requests of defence and prosecution;9 and • the circumstances of the case generally.10 10 His Honour further opined: ‘it must not be overlooked that the [District Criminal Courts] are presided over by Judges of substantial legal qualifications’; any complexity, difficulty or uncertainty relied on ‘should be substantial in order to justify a trial before the Supreme Court’; he would ‘be most reluctant except in a case clearly requiring attention by [the Supreme Court], to keep in [the Supreme Court] a case which might properly be remitted to a District Criminal Court’; and ‘consent alone to a trial in [the Supreme Court], or even express opposition to its remission…should not be allowed to override any weightier considerations’.11 11 In R v Johnson and Ors King J (as he then was) also considered the circumstances in which the Supreme Court should remit a case to a District Criminal Court.12 His Honour held the Supreme Court ought to have regard to, but was not limited to, consideration of the matters identified by Sangster J.13 4 R v Harris and Daly (No. 1) (1975) 12 SASR 264; R v Johnson and Ors (1978) 19 SASR 157; Justices Act 1921 (SA), s 112 (4) ‘(c)…the Justice shall determine whether in his discretion, the defendant shall be put on trial in the Supreme Court or in a District Criminal Court, and, in exercising that discretion, shall have regard to– (i) the gravity of the offence or offences; (ii) the complexity or otherwise of the evidence tendered;( iii) the difficulty or uncertainty involved or likely to be involved; (iv) the respective requests (if any) of the defendant and informant; and (v) the circumstances of the case generally. 5 Ibid at [268] – [269]. 6 See Justices Act 1921- 1975 (SA), s 112 (4)(c)(i). 7 Ibid, s 112 (4)(c)(ii). 8 Ibid, s 112 (4)(c)(iii). 9 Ibid, s 112 (4)(c)(iv). 10 Ibid, s 112 (4)(c)(v). 11 R v Harris and Daly (No. 1) supra at [268] – [269]. 12 R v Johnson and Ors, supra, per King J at [157] – [160]; Local and District Criminal Courts Act 1926 – 1974 (SA), s 335. 13 R v Johnson and Ors, supra at [158]. -- 4 of 8 -- [2024] SADC 58 3 12 Additionally, King J held that, to justify trial before the Supreme Court of an offence within the jurisdiction of the District Criminal Court, the ‘gravity’ of the alleged offending should also be ‘substantial’.14 The Prosecution Case 13 The defendant in this case is charged with manslaughter, and in the alternative, criminal negligence, in relation to the death of his 7-year-old biological son due to double pneumonia with sepsis. 14 The prosecution alleges the defendant’s failure to seek appropriate medical assistance following deterioration in his son’s condition substantially contributed to his death.15 The prosecution will also allege the defendant prioritised a series of non-urgent tasks over taking action to prevent his son’s illness becoming fatal. 15 The Prosecution Case Summary sets out the facts intended to be proved to satisfy each element of the charged offences as follows.16 16 The first observations of the deceased being unwell were made on about 4 February 2022.17 17 On 7 February 2023, the deceased was examined by a doctor and underwent an abdominal radiograph.18 18 On 8 February 2023, the same doctor advised the defendant any worsening of his son’s condition meant he should be taken to hospital.19 19 On 9 February 2023, the mother of the deceased told the defendant to call an ambulance.20 20 On 10 February 2023, at about 8am, the defendant told a relative he intended to take his son to hospital. From then until 10.37am, the defendant attended to several non- urgent tasks.21 21 On 10 February 2023, at about 11.30am, the deceased presented at the Lyell McEwin Hospital.22 At 6.11pm that day, he died.23 14 Ibid [160]. 15 Prosecution Case Statement filed 17 April 2024 (FDN 12) at [3]. 16 Ibid. 17 Ibid 18 Ibid at [11]. 19 Ibid at [14]. 20 Ibid at [16]. 21 Ibid at [18]. 22 Ibid at [25]. 23 Ibid at [31]. -- 5 of 8 -- [2024] SADC 58 4 Submissions of the parties The gravity of the case 22 The Director submitted, assessed as a whole, s 118 (3) is concerned with offending of this type, involving a maximum penalty of life imprisonment. 23 On that basis, it was submitted, this alleged offending is sufficiently grave, in combination with other relevant maters, to weigh in favour of transfer. 24 The defendant accepted this is a grave matter but submitted penalty is only one factor going to whether this case is substantially grave. 25 Also relevant, the defendant submitted, is that the facts and expert evidence are of a type and nature regularly dealt with by this Court and this Court regularly hears charges of manslaughter and trials involving the death of persons.24 The difficulty of any questions of law or fact 26 The Director submitted the evidence in relation to causation will be of such substantial complexity, as to also weigh in favour of transfer. 27 I was told several witnesses would be called to establish the symptoms displayed by the deceased and his presentation to the time of his death. Evidence would also be led, I was told, from experts in pathology, emergency medicine, forensic paediatrics, and paediatric intensive care.25 28 The defendant submitted this is essentially a criminal neglect case and this court regularly hears evidence concerned with causation, involving the same or greater degree of complexity. Particularly, the defendant referred to other cases in this Court concerned with criminal neglect and death by dangerous driving. The views of the prosecutor and defendant 29 As already noted, the Director seeks a transfer, and the defendant is opposed. Any other relevant factors 30 The Director drew my attention to the fact this prosecution arose from a police task force established to investigate the death of three children in this State. In respect of the two other deceased children, I was told one prosecution was commenced in this Court and transferred by the Supreme Court to that court, and the other prosecution was commenced in the Supreme Court. While those two cases and this are not substantially similar (or as counsel put it- ‘on all fours’), the Director submitted consistency of forum is desirable. 24 District Court Act 1991 (SA), s 9. 25 Several lengthy experts reports have been obtained and disclosed already. -- 6 of 8 -- [2024] SADC 58 5 Consideration 31 The determination of this application requires the identification of applicable relevant factors as set out in s 118(5) and the exercise of the discretion reposed in this court, by weighing and balancing such relevant matters. 32 Principally, the Director relies upon the gravity of this case and the complexity or difficulty of the expert evidence concerned with causation.26 33 The gravity and difficulty relied upon must be ‘substantial’; that is, they must be of considerable importance.27 34 This is grave offending; the maximum penalty for both manslaughter and criminal neglect where the victim dies is life imprisonment. This is also offending of the type contemplated by Parliament for potential referral or transfer. 35 The submission this is a case of a type and nature regularly dealt with by the District Court, goes no further than state the jurisdiction of this Court and its accepted capability.28 As the Director acknowledged, the District Court is presided over by Judges of substantial legal qualifications and experience, and it does conduct cases involving death.29 36 In this case however, involving the death of a 7- year-old boy in his father’s care, the Director has made application for transfer to the State’s highest court. 37 I consider this to be a case of considerable importance to the community and a case of substantial gravity. That weighs heavily in favour of transfer. 38 Turning next to whether this is a case of substantial difficulty, the second element of negligent manslaughter requires the Director to prove beyond reasonable doubt the accused’s negligence must have been a substantial or significant cause of the deceased’s death. 39 In deciding whether an act or acts alleged by the prosecution caused a particular outcome, the jury will need to consider the chronology and facts detailed earlier, and the expert evidence to be led at trial. 40 The facts going to what the deceased and defendant were doing are not substantially difficult. The jury will hear about symptoms displayed by the deceased, interactions with others and the deceased’s presentation up to his death. 41 The proposed expert witnesses may use terms and expressions and refer to medical conditions and treatments unfamiliar to lay- persons. That, of itself though, does not make the case complex or difficult. 26 R v Harris and Daly (No. 1) supra at [268]; R v Johnson and Ors supra, per King J at [157] – [160]. 27 Ibid. 28 District Court Act 1991 (SA), s 9. 29 Ibid s 9(1). -- 7 of 8 -- [2024] SADC 58 6 42 The task for the jury in respect of causation is well- established. They will consider the facts proved and expert evidence they accept and whether acts of the defendant were a substantial or significant cause of his son’s death. 43 The expert evidence will be in three parts: (1) the cause of death; (2) what treatment the deceased would have received if presented at hospital earlier; and (3) the likelihood of whether that treatment would have prevented his death. 44 I do not therefore consider that the expert evidence to be led will be of substantial difficulty, such as to weigh in favour of transfer. 45 There is also little difference between when the Supreme Court or the District Court could hear a trial in this case. Given that, any preference arising from any delay or convenience between those courts, is entirely neutral. 46 There may, in appropriate cases, be desirability to a consistent approach to forum with other cases. Here, I was told two other cases, each involving the death of a child, are being heard in the Supreme Court. Other than arising from the same investigation, I was not told of any other connection or similarity. I have given little weight therefore to the existence of those other cases above. 47 I consider then that the only factor which holds any real weight one way or the other in respect of this application, is the substantial gravity of these charges. 48 This case involves alleged criminal negligence by the father of a 7-year-old boy, such that his son’s death resulted. It is alleged offending of substantial gravity, which is appropriate, respectfully, to be prosecuted in this State’s highest court. 49 I exercise my discretion to grant the application for transfer to the Supreme Court. There will be an order in those terms. -- 8 of 8 --