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Nydam v R

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Nydam v R
[1977] VR 430
Roshella Gastardo
i. Material Facts
The accused, Eric George Nydam, was in a deteriorating relationship with one of the victim,
Katherine Joan Stradling due to apparent possessiveness of the accused (p 431).
On the day of the incident, 15 January 1976, the victim ended their relationship which caused the
accused purchase petrol. Nydam poured the petrol in an upward motion causing the petrol to spill
on part of him, Miss Stradling and some of their surrounding. He then lit a cigarette lighter, or
match stick according to the accused, and lit himself up and the victims causing the victims to die
from burns inflicted by the accused’s act.
ii. Procedural History
The case of Eric Nydam was first heard before the Supreme Court of Victoria where the accused
was convicted on charges of murder as he was found to have intended to cause serious bodily harm
or death to the deceased victims. The accused applied for leave of appeal to the full court of the
Supreme Court of Victoria where it was heard by Young CJ, McInerney and Crockett JJ.
iii. Grounds of Appeals/Issues
The learned trial Judge left the verdict of manslaughter by criminal negligence and murder by
recklessness open for the jury to decide. The accused appealed the verdict based upon the fact that
determination of murder by recklessness should not have been left to the jury. The appeal was heard
by the Full Court of the Supreme Court of Victoria.
iv. Analysis of Decision
In a joint decision by Young, C.J., McInerney and Crockett JJ, their Honours stated that an
objective test should be applied to determine whether the doctrine of murder by recklessness was
satisfied or whether the accused should be charged with manslaughter by criminal negligence. In
determining what is an appropriate test to be applied for manslaughter by negligence a dictum of
Smith, J. in in R v Holzer, Menzies, J. And GIbb, J.s’ reasoning in Pemble v R La Fontaine’s case
respectively, amongst other cases, were referenced. The difference between manslaughter by
criminal negligence and murder by recklessness is the accused’s mens rea: did the accused intended
to cause grievous bodily harm or death to the victim?
In the case or murder by recklessness, it was found that it must be shown that the accused acted
recklessly knowing that he is in breach of a duty of care by creating a foreseeable risk of serious
bodily harm or death to others and continued with the reckless act despite this knowledge to
establish that the issue was murder by recklessness. Further, the accused must be acting consciously
and voluntarily at the time of the act with the intent of malice.
In the case of manslaughter by criminal negligence, there must be sufficient evidence to indicate
that the accused was acting voluntarily and consciously without the act intent of causing serious
bodily harm or death but have failed to take reasonable standard of care which a reasonable person
in his position would have exercised.
Gibb, J., suggested the use of an objective test in determining cases of manslaughter by criminal
negligence; his Honour stated that if an accused did not foresee the probability of death or grievous
bodily harm resulting from his acts, he would be charged with manslaughter instead of murder,
similar in this case where the accused claims that he did not intend to cause harm to the victim,
instead was trying to burn himself in hopes of gaining sympathy or pity from the victim.
The trial judge failed to recite facts of the cases during the trial which would have enabled the jury
to determine whether the accused had knowledge about the probability of harm and the
consequences of his actions if performed. The trial judge did talk about the accused’s possible state
of mind which could have affected the ability to foresee death or grievous harm as a consequence of
his act. However, this is an unsatisfactory as it did not assist the jury in performing their dutiful
task. Due to this, the accused was charged with murder with the possibility that the jury did not
clearly and completely understood the difference between murder by recklessness and manslaughter
by criminal negligence which is a critical problem for the Court and similar cases which might arise
(p 438).
The trial judge’s use of the words “recklessness” or “reckless indifference” might have caused
confusion amongst the jury in determining the difference between manslaughter by criminal
negligence and murder by recklessness (p. 435).
v. Decision
The Full Court of the Supreme Court of Victoria found that in order to establish manslaughter by
criminal negligence, the accused must have acted voluntarily without intended to caused bodily
harm or death to others. Therefore, the appeal was allowed based on the fact that the learned trial
judge did not act in accordance of the test developed by higher authorities concerning the
establishment of manslaughter by criminal negligence