Baker v R

Court of Criminal Appeal (NSW)|2023-07-28|Before: Beech-Jones CJ, Harrison J, Wright J, Sweeney J

Background

As at the time of his death in October 2012, Mr Young was 58 years of age. In the 18 months prior to his death, he was diagnosed with a number of serious medical conditions and spent much of that time hospitalised. The applicant was his former partner and the mother of his son. [4] The trial judge found the applicant had assumed the care of Mr Young from at least March 2011 when she applied to Centrelink for carer's payments on his behalf. [5] When he was not in hospital, Mr Young lived with the applicant and their young son "in a small flat built into the corner of a large shed on a semi-rural property" at Mulgrave. [6]

Mr Young's admission to hospital on 5 October 2012

On 5 October 2012, Ms Stuart attended Mr Young at his home. [25] Ms Stuart observed Mr Young lying in bed. His head and beard had been shaved and he was "staring up at the roof and moving his head back and forth with his mouth open, opening his mouth, making sounds". [26] His "eyes looked sunken, his cheeks were drawn in" and he "looked very thin and emaciated". [27] Ms Stuart noticed "a strong pungent odour of faeces and rotting flesh". [28] At Ms Stuart's request, the applicant lifted Mr Young's blanket. Ms Stuart noticed the odour became stronger. She observed Mr Young to be "extremely thin" with "skin... hanging from his bones" and "dark lesions over his legs and body". [29]
Ms Stuart told the applicant to take him to hospital and ensured an ambulance was called. [30]
Ms Laurence saw Mr Young when he arrived at Hawkesbury Hospital, having last seen him in July 2012. [31] The trial judge noted that Ms Laurence found him "emaciated, cachectic, [with] no subcutaneous tissue at all" [32] and noticed "[h]e was very, very hungry" and thirsty. [33] Ms Laurence said Mr Young was covered in faeces and she could smell his wounds. [34] She observed that his mouth was very dry, his tongue had "fissures or cracks" (being a sign of severe dehydration), his breath smelled and his skin was dry. [35] The trial judge noted Ms Laurence had said "there was a big difference in [Mr Young's] emaciated condition" from May 2012. [36]
Ms Artz also saw Mr Young in hospital about four days after his admission and made similar observations. [37] She considered he had lost "maybe up to half his body weight" [38] and that she had never seen such bruising and wounds, nor anyone as gaunt or cachectic. [39]

6 October 2012 to 8 October 2012

On 6 October 2012, Maryanne McCready, a nursing unit manager with 23 years' experience at Hawkesbury Hospital including in oncology, cared for Mr Young. [40] She noticed he was "dirty, covered in dried faeces and had an offensive smell" as well as being infested with lice and their eggs. [41] According to the trial judge, Ms McCready said she had never seen anyone in his condition and he looked dead. [42] He was dehydrated, his lips were completely dry, his eyes were sunken and his skin was like "tissue paper" and dry. [43]
Ms McCready said Mr Young was in the advanced stages of starvation. [44] She considered that he was much more underweight than she would have expected and that the degree of malnutrition, dehydration, wounds and infestation were unusual (even for someone with cancer). [45]
Ms McCready described Mr Young's wounds as "necrotic, sloughy, pussy and infected". [46] He had a severe wound on his right hip with an infected cavity, redness, pus and necrotic tissue. [47] The cavity extended just about to the femur bone (which could be seen) and was deep enough to see muscle. [48] Mr Young had another cavity on the outside of his right foot with necrotic tissue down to the bone. [49] He also had necrotic tissue on the outside of his right heel which also went down to the bone and a pressure wound with a cavity on the inside of his right heel. [50] He also redness above his right heel, indicating pressure and infection. [51] Antibiotics were administered to treat the infected wounds. [52]
Ms McCready took photos of Mr Young on 6 October 2012 which were tendered before her Honour and provided to this Court. [53] They are extremely confronting.
The police attended Mr Young on 7 October 2012. Ms McCready recalled that, on that day, Mr Young "had picked up a little" from a blood transfusion, bath and hydration. [54] She described his appetite as "extremely good". [55]
Ms Laurence made a progress note on 8 October 2012 recording that Mr Young looked "much brighter" and "rehydrated". [56] Dr Alan Oloffs, a palliative care specialist, visited Mr Young on 8 October 2012. [57] He made a note recording, inter alia, starvation, dehydration, scabies, lice, pressure sores and improvement with rehydration and antibiotics. [58]
Sharon Ong, a dietician, recorded Mr Young's weight as 35.8kg on 8 October 2012. [59] A healthy range for Mr Young was between 57.8−72.3kg. Ms Ong estimated Mr Young's body mass index ("BMI") at 12.4 whereas a healthy BMI range for him at the time was between 20−25. [60] In June 2012, another dietician, Caroline Cahill, recorded Mr Young's weight as 62kg and estimated his BMI at 18 whereas a healthy BMI range for him at the time was between 18.5−25. [61]

9 October 2012 to 16 October 2012

On 9 October 2012, Ms Cahill recorded that Mr Young was drowsy, moaning and had reduced oral intake. [62]
On the morning of 10 October 2012, Ms Cahill recorded that Mr Young had taken apple and orange juice "well" and had an improved appetite. [63] A speech pathologist who observed him at lunchtime that same day noted he was "alert" and "fed by [a] nurse". [64]
However, on 11 October 2012, Ms Cahill noted Mr Young was "less responsive". [65] Nursing notes taken that afternoon recorded that he had "not eaten or drunk since breakfast and… was too drowsy to eat dinner and struggled to suck his supplement drink". [66]
On 12 October 2012, Dr Oloffs noted there had been an "obvious deterioration" in Mr Young since 8 October 2012. [67] Ms Cahill observed a reduced level of consciousness and that he did not want to eat breakfast. [68] Similar observations were made by nursing staff later in the day. [69]
Nursing notes recorded that on 13 and 14 October 2012, Mr Young remained drowsy and was unable to suck on a straw or eat. [70]
On 15 October 2012, Mr Young was observed to be unresponsive. [71] By around 4.00am on 16 October 2012, he was not breathing. Soon after, Mr Young was confirmed to be deceased. [72]

The Autopsy Reports

At the trial, oral evidence concerning, inter alia, the cause(s) of Mr Young's death was adduced from a forensic pathologist, Dr Jennifer Pokorny, an oncologist and haematologist, Professor Richard Fox, and a palliative care specialist, Professor Richard Chye. At this point, I note the effect of a neuropathology report prepared by Dr Michael Rodriguez dated 25 October 2013 and Dr Pokorny's autopsy report. Dr Pokorny performed an autopsy on Mr Young on 17 October 2012 (although her report bears the date 23 May 2017). [73]
Dr Rodriguez did not give oral evidence at the trial. In his report, he diagnosed Mr Young as having cerebrovascular disease with a number of features including: (a) "occlusive superior sagittal and left horizontal sinus thrombosis" (in effect a clot of a large vein that runs along the brain and drains blood from the brain); (b) "organising multifocal left middle cerebral artery territory infarction" (in effect a stroke whereby blood has stopped flowing into the brain via the middle cerebral artery and caused part of the brain to die); and (c) "organizing microinfarcts and glial scars [of the] left front cortex". [74]
In relation to (b) and (c), Dr Rodriguez opined that the "areas of infarction in the left middle cerebral artery territory [were] several months old and histological features [were] consistent with the history provided of a stroke approximately 8 months prior to death resulting in right sided weakness" (i.e the two strokes in February and April 2012 noted at [17] and [19] above). [75] He concluded that the infarcts were most likely due to "thromboemboli", which are essentially "broken off pieces" of a blood clot. [76]
In relation to the thrombosis referred to in (a), Dr Rodriguez concluded that it was evidence of a more recent "third stroke": "The more recent areas of infarction are up to several days old and are secondary to the multiple occlusive cerebral thrombi. There is evidence of anterior propagation of the thrombus in the superior sagittal sinus. Although determining the age of thrombi based on their histological appearance is imprecise, the most recent (most anterior) thrombus in the superior sagittal sinus and in most of the cerebral veins sampled may be up to a week old. The thrombus in the mid-superior sagittal sinus and the right parietal bridging vein may be up to several weeks old. Parts of the nonocclusive thrombus in the posterior superior sagittal sinus, the lateral recess of the sinus more anteriorly, and in the left horizontal sinus may be several months old. Common risk factors for venous sinus and cortical vein thrombosis in this man include malignancy, sepsis and dehydration." [77]
Dr Pokorny's autopsy report summarised Dr Rodriguez's report as showing "multiple areas of embolic infarction, including a large infarction (stroke) in the region of the left middle cerebral artery [which was] likely responsible for the right sided weakness the deceased developed in February [2012]". [78] Her report also noted that Mr Young's body was "severely cachectic" with multiple ulcers (pressure sores) over "bony prominences", several of which penetrated to the underlying bone and some of which appeared blackened and necrotic. [79] Dr Pokorny also identified a "large fungating tumour in the rectum, with nodules of metastatic tumour in the liver and lungs". [80]
Dr Pokorny's autopsy report described the "direct cause" of Mr Young's death as "metastatic carcinoma of the rectum" and the "other significant conditions contributing to the death but not relating to the disease or condition causing it" as cerebrovascular disease, multiple lower limb ulcers with areas of gangrene and cachexia. [81]

Trial Judge's Findings on Duty, Breach and Causation

The trial judge cited the following passage from Archbold, Pleading, Evidence and Practice in Criminal Cases (44th ed, 1992, Sweet & Maxwell) ("Archbold") at [19-110] as descriptive of the test to be applied for a charge of manslaughter by neglect: "If a grown up person chooses to undertake the charge of a human helpless from infirmity, he is bound to execute that charge without gross neglect, and if he lets the person whose charge he has undertaken die by gross neglect he is guilty of manslaughter. If a person has the custody of another who is helpless and leaves that other with insufficient food or medical attention and so causes his death he is criminally responsible."
No complaint was made about the use of this passage as the test to apply. A passage to similar effect from an earlier edition of Archbold was cited with approval in R v Taktak (1988) 14 NSWLR 226 at 237 per Yeldham J (with whom Carruthers and Loveday JJ agreed).
Having found that the applicant voluntarily assumed the care of Mr Young, the trial judge found that, prior to Mr Young's admission to hospital in October 2012, "he had not been properly washed or showered for some weeks". [82] Her Honour also found that "Mr Young's cachexia as observed in October 2012 was due to the failure by the [applicant] to provide him with adequate food and also hydration". [83] Her Honour was further satisfied that the cause of Mr Young's pressure wounds, including on his right hip, right heel, outer right foot and right upper back, was that "he had not been turned regularly, any dressings used were not effective or appropriate for the different aspects of the wound, be they pussy or necrotic". [84] Her Honour found that the "wounds required medical attention before they reached the state they were in and that medical attention had not been provided to Mr Young". [85] Her Honour further found that severe malnutrition contributed to the development of his pressure wounds. [86] In addition, her Honour was satisfied beyond reasonable doubt that the "severe pressure wounds [observed] on Mr Young's right hip and foot in October [2012] were caused by the failure of the accused to provide him with nutrition". [87] Her Honour found that he became more vulnerable to such wounds and his capacity to heal them was reduced by reason of the applicant "failing to turn and reposition him, shower him regularly, clean his wounds, dress him appropriately and obtain necessary medical care for the wounds at an earlier time". [88]
After reviewing the evidence of Dr Pokorny, Professor Fox and Professor Chye, her Honour found as follows in relation to causation: [89] "There is a high degree of concurrence between the experts although differences of emphasis. All agree there was an interplay between all of Mr Young's health conditions in causing his death. All say that his cachexia and severe ulcers over his right hip and his right foot significantly contributed to his death by accelerating his death. Although they came to those conclusions by different pathways in the relationship between Mr Young's cachexia or malnutrition, his severe ulcers, their effect on his ability to withstand the effects of infection from his wounds, his cancer and the stroke he suffered, they all had the same opinion. Based on their opinions there is no reasonable possibility that Mr Young died [as] a result of the stroke he suffered in October [2012] without any contribution to his death of his cachexia and ulcerated pressure wounds. I am satisfied beyond reasonable doubt that Mr Young's cachexia and ulcerated pressure wounds on his right hip and foot were significant causes of his death."
Ultimately, her Honour found: [90] "I am satisfied beyond reasonable doubt that the accused's omission in not providing Mr Young with sufficient food and hygiene, pressure wound care and medical attention which caused his death fell so short of the standard of care which a reasonable person would have exercised in the circumstances of his illness and incapacity and involve such a high risk that Mr Young's death would follow from her omissions in caring for him, that they involve a high degree of criminal negligence and merit criminal punishment."
As noted, the findings about the existence and breach of a duty owed by the applicant to Mr Young are not disputed on this application. Further, her Honour's findings that the applicant's failures caused Mr Young's cachexia and pressure wounds are also not disputed. Instead, the real issue on this application concerns the causal contribution, if any, of those conditions to his death.

Causation: Principles

The issue of whether an act of an accused caused the death of a deceased is to be determined as a matter of common sense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 ("Royall") at 387 per Mason CJ, at 411−412 per Deane and Dawson JJ, at 423 per Toohey and Gaudron JJ and at 441−442 per McHugh J. To establish causation, the tribunal of fact must be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause of death (Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11 at [24] citing Royall; "Swan"), although there may be two or more independent acts or events that cause the death (Royall at 398 per Brennan J, at 411 per Deane and Dawson JJ and at 423 per Toohey and Gaudron JJ). In Swan at [27], the High Court referred with approval to a direction given to the jury that, to establish causation, it was not necessary to establish the acts of the accused were "the only cause of death, the most important cause of death or even the only important cause of death". Otherwise, in some cases, an accused will be held legally responsible for a death even if their act(s) were not, considered alone, necessary for the victim's death but was "one of the conditions which were jointly necessary to produce the event" (Swan at [25], citing Royall at 441 per McHugh J).
Of particular relevance to this appeal is that causation can be established where the act (or relevant omission) of the accused accelerates death. In R v Evans (No 2) [1976] VR 523 at 527-528, the Full Court of the Supreme Court of Victoria observed: "Death is, of course, inevitable. Homicide is really the acceleration of the event. Accordingly if a victim receives from one assailant an injury which would or might ultimately result in death, but before the event occurred he received from another assailant a further injury which accelerated his death, the second assailant would be regarded as having caused the death for the purposes of the law of homicide… But in every case it is a question for the jury to determine whether the event relied upon by the Crown was a cause of death."
This passage was cited with approval by the Full Court of the Supreme Court of Western Australia in Krakouer v Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 at [32] per Steytler P with whom Wheeler and McLure JJA agreed. His Honour cited two academic writers as follows (at [33]): "[Professor Eric] Colvin [91] … suggests that the issue in homicide cases is 'whether the death would have occurred as soon as it did "but for" the conduct of some person' and that it 'makes no difference that the conduct merely hastened a death which would have later occurred in any event'. Similarly, [Kenneth] Arenson [92] … suggests that an act or omission is a causing fact of the harm whenever it can be said that, but for the act or omission, 'the harm would not have occurred when and as it did'." (emphasis in original)
His Honour cited a number of decisions from the United States of America that supported this analysis and also noted that it was reflected in s 273 of the Criminal Code (WA) (at [34]) before concluding (at [39]): "In the end, it seems to me that, on the present state of authority, it is enough to satisfy the requirement of causation for the purpose of attributing criminal responsibility if the act of the accused makes a significant contribution to the death of the victim, whether by accelerating the victim's death or otherwise, and that it is for the jury to decide whether or not the connection is sufficiently substantial." (emphasis added)
Implicit in these passages is that, in a case where the accused's acts or omissions are said to have accelerated death, a finding that causation has been established is not precluded by the fact that the deceased would have died in any event from a pre-existing wound or disease.
In her written submissions, the applicant contended that, while it was at least the "professional view" of each of Dr Pokorny, Professor Fox and Professor Chye that Mr Young's cachexia and pressure wounds contributed to his death, "their evidence did not exclude the reasonable possibility that the death occurred independently of those conditions". [93] The submission identified a "path to that reasonable possibility" said to be found in the evidence of Professor Fox and Professor Chye. [94] That reasonable possibility is that Mr Young's death was caused by the recent cerebral infarction identified by Dr Rodriguez (i.e the third stroke: see [45]) which, in turn, was caused by Mr Young's cancer and not contributed to by his cachexia or pressure wounds.

Dr Pokorny's Evidence

In both her evidence‑in‑chief and cross‑examination, Dr Pokorny stated there was "a lot of interplay" between the direct cause of death (i.e. metastatic carcinoma of the rectum) and other significant conditions contributing to death (i.e. cerebrovascular disease, multiple lower limb ulcers with areas of gangrene and cachexia) nominated in her autopsy report. [95] In cross-examination, she described what was meant by a "significant condition": "In order to go onto the death certificate, [the disease] has to have a significant role… it has to have at least some - to some degree have hastened death." [96] (emphasis added)
Dr Pokorny recognised the difficulties in "forc[ing] the death into these fixed categories" and that it was "impossible" to calculate exact percentages of how each condition contributed to Mr Young's death. [97] In evidence‑in‑chief, she agreed that the three significant conditions played "a role in terms of hastening or accelerating the death". [98]
Dr Pokorny was taken to Dr Rodriguez's report. [99] She noted that several infarctions, or death of brain tissues, had led to a stroke on both sides of the brain but was "[m]ore extreme or widespread on the left side". [100] She said that Mr Young's thrombosis had persisted for some time ("potentially several months old") [101] and led to a stroke [102] that was "probably a few days old". [103]
Dr Pokorny was also taken to Professor Chye's report which attributed the direct cause of death to the cerebral infarcts. She commented on Professor Chye's opinion as follows: [104] "I think it's not unreasonable for his [i.e. Professor Chye] opinion to be that the acute infarcts may have been the direct cause. I think he's misattributed the cause of those acute infarcts because they weren't due to the emboli from the carotid artery bifurcation from thrombus. They were from the venous thrombosis. But excluding that part, the cause of death is multifactorial, and it's, to an extent, subjective which part you put more emphasis on. So, it is not unreasonable to… consider the stroke to be more direct than the cancer." (emphasis added)
Even if one accepts Professor Chye's conclusion that the direct cause of death was the acute infarcts, Dr Pokorny's reference to the cause of death being "multifactorial" includes Mr Young's cachexia as one of the contributing factors to that cause. In cross-examination, Dr Pokorny was asked as follows: [105] "Q. But it's because of thrombus is leading up to that point in the thrombus, the sinus thrombus is in development for some time, but it's essentially reached a point where it causes that stroke? A. Yes. So he has had a terminal stroke due to a thrombus that has been there for a prolonged period but has been getting bigger and bigger. That thrombus developed due to almost certainly his cachexia, his previous strokes, dehydration and his cancer." (emphasis added)
The cross‑examiner returned to the topic of whether the strokes were severe enough to cause Mr Young's death independently of his cachexia and pressure wounds as follows: [106] "Q. Now, if we look at the timing identified by Dr Rodrigue[z] and the marked deterioration, that would allow for an observation that it is likely that the most recent stroke resulted in the main alteration of his clinical course during the last admission. Would that be an available finding? A. I think… it is likely that that stroke contributed to that terminal decline in function. The problem that you've got is it isn't an independent stroke that has occurred by itself. It is at least in part likely to be a complication of the cancer as well as the other issues like the cachexia, potentially dehydration, potentially sepsis, et cetera. So, even though the stroke may have been a mechanism causing the terminal decline, it is not in itself an independent cause. Q. The potential contributions to the stroke, there is also no way of being able to be certain as to how these different areas contributed to the development of the thrombosis, correct? A. Yes, you can't attribute percentages to any of them, but this is a fairly unusual type of stroke. It's certainly a lot less common than the previous strokes that Mr Young had had as a result of thromboemboli and atherosclerotic disease. So, because of that, because it is this more unusual type, it is much more in keeping with it being a result of these - the interplay of these other conditions. ... Q. Now, in your written response to the coroner, you refer to the fact that there is no way to quantify what proportion of his terminal deterioration may have been due to the recent infarct and what was due to his conditions pre-existing. A. Yes. Q. But by the same token, if such proportions are not ascertainable, there is also no way to rule out that the most recent stroke, particularly if it was in combination with cancer and vascular disease, may have been severe enough to lead to the fatal deterioration even if he did not have the pre-existing conditions of cachexia and wounds. A. I think it is difficult to say, and it would - its starting to go out of my area of expertise here. So, you may have to speak to a clinician with more experience in strokes but, certainly, the clinical decisions in terms of whether active management or treatment of this stroke was appropriate was strongly influence[d] by the presence of the other conditions. So the survivability of the stroke, to a large extent, was dependant on the conditions being present." (emphasis added)
The applicant's submissions did not contend that Dr Pokorny's evidence provided support for the supposed "pathway" to a reasonable possibility of an independent cause of death. The submissions noted her evidence that Mr Young's third stroke was "in part likely to be a complication of the cancer as well as the other issues like the cachexia, potentially dehydration, potentially sepsis" but also contended there was no evidence that Mr Young has sepsis nor that he had been dehydrated after his admission to hospital (Dr Pokorny could not confirm whether Mr Young was dehydrated at the time of her autopsy). [107] The submissions also noted that Dr Pokorny was not questioned further about the contribution of Mr Young's cachexia to the third stroke and had expressed concern about the limits of her expertise in opining on whether the stroke was severe enough on its own to lead to death. [108]
The uncertainty about whether Mr Young was affected by sepsis or dehydration at the time of the third stroke was acknowledged by that part of Dr Pokorny's evidence that referred to "potentially dehydration" and "potentially sepsis" (see [65]). However, throughout so much of her evidence that addressed the possibility that the most direct cause of death was the third stroke, Dr Pokorny was unshaken that Mr Young's cachexia was a contributing factor to the cause of that stroke ("almost certainly": see [64]).
Otherwise, I note that the final question posed in the above extract at [65] assumed that the direct cause of death was Mr Young's most recent stroke and that his cachexia and pressure wounds were not contributing factors to the stroke's occurrence. Further, the question was limited to the possibility that, absent Mr Young's wounds and cachexia, the stroke may have been fatal per se. The question did not address the possibility of Mr Young's cachexia and pressure wounds hastening his death from the third stroke (assuming it was so fatal). Given Dr Pokorny's overall opinion was that Mr Young's cachexia and wounds did hasten his death, I do not accept that her deferral to the opinion of a "clinician with more experience in strokes" advances the applicant's case.
Most importantly, any consideration of whether there is a reasonable possibility a cancer‑induced stoke caused Mr Young's death without any significant contribution to its occurrence or timing from his cachexia or wounds amounts must be undertaken in a context where Dr Pokorny repeatedly emphasised the multi-factorial nature of the cause of Mr Young's death, including its timing (see [63]), and also cast doubt on the utility of attempting to differentiate between the direct and contributing causes ("it's not that great on an individual basis to really accurately express, you know, a disease process this complex in one individual"). [109] Overall, Dr Pokorny's evidence was very much inconsistent with the applicant's contention that there was a reasonable possibility that Mr Young's cachexia and pressure wounds were not significant contributors to his death.

Professor Fox's Evidence

Over the course of his evidence, Professor Fox progressively attributed greater weight to Mr Young's cachexia (and pressure wounds) as contributing causes to death. To ascertain the true import of his evidence, it is necessary to describe that progression.
In his evidence‑in‑chief, Professor Fox said that cachexia (which arose from a combination of malnutrition, cancer and inflammation from the ulcers) as well as the ulcers themselves were significant contributing causes of death in that they "accelerat[ed] the process of death". [110] Professor Fox identified "a linkage" between the apparent stroke Mr Young suffered in the days before his death (i.e the third stroke noted at [45]) and his cancer, cachexia and pressure sores [111] (although in cross-examination he added that it was difficult to apportion degrees of contribution to each condition). [112]
Professor Fox was cross‑examined about a previous report he had provided for a coronial inquest which opined that Mr Young's cachexia may have been a minor contributor to the hastening of his death: "Q: [T]here can be no certain way that we could determine how much these other conditions hastened his death; is that right? A: Yes, I must say, though, going through the course of today in a lot more detail, I am becoming much more impressed with the level of cachexia that he suffered as well as the various bed sores… … Q. Now, having accepted that they've impressed on you today, would your opinion, though, that these would have been minor contrib[utors]… which could have hastened his death which, itself, was inevitable given his metastic cancer, does that opinion still stand? A. I'm swinging much more after today to the effects of the cachexia and malnutrition." [113] (emphasis added)
Later in his cross-examination, Professor Fox was asked about the effect of the third stroke. In her written submissions, the applicant placed particular reliance on the following exchange: [114] "Q. In relation to the overall clinical picture, if we combine Dr Rodrigue[z]'[s] report and we combine it with the marked change on 11 October 2012, it seems like a reasonable explanation - and I'm not saying it's definitive - but a reasonable explanation that there was a relationship between the infarction and his noted decline from the [11th]? A. Yes. Q. As a general proposition, an infarct or stroke can be fatal in any circumstances? A. Yes. Q. There is no mechanism by which we can empirically measure the severity of a stroke? A. Well, there are. It's called - to do with CAT scans and MRI scans but I don't think they were done under these circumstances. Q. No, so without that information we can't, for example, empirically say how severe this stroke was? A. No. Q. Sometimes the severity of the stroke is assessed by functional decline? A. Yes. Q. Certainly, in relation to his presentation from 11 October 2012, the progress notes could be described as mapping out a functional decline? A. Well, he had a functional decline in all areas basically. Q. That leads to this as a possibility Professor - and again, I emphasise that it's a possibility I'm asking about - that this man, particularly given his history of strokes, that the more recent infarction that was identified by Dr Rodrigue[z] could have been a very severe event? A. Yes. Q. And strokes have the capacity to be fatal with or without the presence of comorbidities? A. Yes. Q. Therefore, it would remain possible that in terms of this recent stroke experienced by Mr Young, it may have been fatal regardless of the presence of the comorbidities of which we're all aware. A. It's possible." (emphasis added)
I address the use sought to be made of this evidence by the applicant below (at [79]). At this point, this evidence must be considered with the balance of Professor Fox's cross‑examination and re-examination. The cross‑examiner referred Professor Fox to Mr Young's "multiple and complex health conditions", which was accepted by Professor Fox, but he also added that many of them were "related consequences of his cachexia". [115] Professor Fox was then asked as follows: [116] "Q. [W]hat is you[r] view as to the most likely factors in relation to the cause of death? A. I'd say his cachexia. Q. Yes, but you accept the possibility that, for example, the cancer itself may have, as your original opinion referred to, been the cause of death? A. Well, I've said, I think the other day, on Monday, I've moved away from that because I got into this in a lot more detail. His liver metastases were not extensive enough, his rectal cancer specifically by itself I don't think was the cause of death, but you put the lot together as cachexia, then that is the cause of death. Now, that's not exactly understood at the cellular level. There are many organ failures that take place which is partly that of the serum albumin level dropping, but there are many other biochemical factors. Platelets, which are due to help with blood clotting et cetera, become activated under these circumstances and that's one of the reasons why he may have developed the cerebral thrombosis. Because that cerebral thrombosis was in a venous sinus and it's probably not related to his arterial disease. I may not have made that clear enough, but it's well recognised as a comorbidity associated with cachexia. Q. It's [also] well recognised as a comorbidity associated with cancer, is that right? A. Yes. Q. Again, there's no empirical way we can determine whether that thrombosis essentially developed as a response to the cancer or alternatively, his cachexia? A. No." (emphasis added)
In re-examination, Professor Fox was asked as follows: [117] "Q. Just finally, you were asked the question, 'Would severe malnutrition have hastened Mr Young's death?', you said, 'He was going to die anyhow but given that level of malnutrition, that would have hastened his death'; end of quote? A. Yes. Q. You tell me - or I'll just ask you, is there a material difference between those opinions and what you've expressed here in Court? A. I don't think so." (emphasis added)
Professor Fox re-iterated that Dr Rodriguez's findings concerning Mr Young's thrombosis and stroke did not alter his opinion that cachexia was a significant contributing factor to Mr Young's death ("that sort of thing is recognised in malignant cachexia because you get alterations of coagulation factors and activation of platelets"). [118]
The pathway to a reasonable possibility that the applicant seeks to construct from Professor Fox's evidence consisted of seven steps taken from propositions said to have been accepted in his evidence, namely: [119] 1. there is a recognised relationship between cancer and the occurrence of strokes; 2. cancer is sometimes associated with hypercoagulable blood, which can be a factor in in relation to a stroke associated with the cancer process; 3. cerebral thrombosis (in a venous sinus) is a well-recognised comorbidity associated with cancer; 4. there is no empirical way to determine whether Mr Young's cerebral thrombosis (causing the stroke in the days before death) developed as a response to his cancer or cachexia; 5. a reasonable explanation for Mr Young's decline from 11 October 2012 is that there was a relationship between his decline and the third stroke; 6. it is possible the stroke could have been a very severe event; and 7. it is possible the third stroke may have been fatal regardless of the presence of the comorbidities.
Skilfully constructed as this pathway is, it does not reach its intended destination of establishing a reasonable possibility. Each of the propositions reflect answers given by Professor Fox but they cannot be divorced from their context, especially the emphatic strengthening of his opinion throughout the course of his evidence about the causal connection between Mr Young's cachexia and his death. Thus, with the fourth step, Professor Fox (repeatedly) accepted that there was no "empirical way" to determine whether Mr Young's cerebral thrombosis developed as a response to his cancer or cachexia. However, it is clear from the balance of his evidence that his professional opinion was that Mr Young's cachexia had so contributed to his thrombosis.
Similarly, Professor Fox's acceptance of a "possibility" that the third stroke may have been fatal "regardless of the presence of the comorbidities" (emphasised above at [73]) was given in response to the proposition that remained "a possibility" (emphasis added). The balance of his evidence reveals that he discounted it as being a realistic possibility. Further, in relation to the sixth and seventh steps, a question posed in terms of whether Mr Young's stroke may have been fatal "regardless of the presence of the comorbidities" is not directed to the possibility that his death from the stroke may have been hastened by the comorbidities. Yet, as noted, Professor Fox's opinion was that Mr Young's cachexia had "accelerat[ed] the process of death". [120]
Overall, the effect of Professor Fox's evidence was that the proposition that Mr Young died from the third recent stroke with no relevant contribution from his cachexia, including by hastening his death, was no more than a bare possibility.

Professor Chye's Evidence

Unlike Dr Pokorny or Professor Fox, Professor Chye stated that the direct cause of death was the stroke Mr Young apparently suffered in the days before his death (i.e. the third stroke). [121] He identified a number of significant other conditions that contributed to Mr Young's death, namely, severe malnutrition; multiple lower limb ulcers with areas of gangrene; metastic carcinoma of the rectum of the liver and lung; invasion of the bladder wall; carcinoma of the left kidney; peripheral vascular disease; and chronic obstructive pulmonary disease. [122] Professor Chye also opined that malnutrition contributed to the development of Mr Young's ulcers [123] and that his level of malnourishment was not brought about by cancer but rather from not being fed. [124]
In terms of the role played by the "significant contributing conditions", Professor Chye considered that severe malnutrition was the "more significant cause" and "chronic obstructive pulmonary disease" was the "least significant cause", [125] although he could not specify in percentages how much each condition contributed to Mr Young's death. [126]
Towards the end of his evidence‑in‑chief, Professor Chye was asked as follows: [127] "Q. Are you able to say, and tell me if it's outside of your area of expertise, whether the cachexia and the pressure sores contributed to the infarcts? A. I would be very surprised if the pressure areas contributed to the infarcts. Q. Do you see them as a parallel or separate processes? A. I think, yes, they are - yes, separate ongoing parallel problems in Mr Young." (emphasis added)
Although the first answer given by Professor Chye only refers to the pressure sores, I consider that a fair reading of these answers is that he accepted that Mr Young's cerebral infarcts, on the one hand, and pressure sores and cachexia, on the other hand, were "separate ongoing parallel problems".
The cross‑examination of Professor Chye by counsel for the applicant emphasised this aspect of his professional opinion i.e. that the third stroke was not caused by Mr Young's cachexia. Professor Chye attributed the third stroke to three possible "states": cerebrovascular disease; carotid artery arthrosclerosis; and a hypercoagulable state associated with metastatic endo carcinomas. [128] Professor Chye said that the third of those states was "recognised in patients with a very small amount of cancer" (and it is not fully understood why it happens). [129] He agreed it was not possible to attribute the stroke to only one of these states nor proportion between them. [130] He agreed that these states "could occur entirely independently of issues associated with the cachexia and ulcers". [131]
The Crown's written submissions noted that, in explaining the factors that contributed to the third stroke, Professor Chye repeatedly referred to a blockage in the carotid artery whereas the stroke had occurred in the sagittal veins. [132] Dr Pokorny pointed out that the occurrence of the blockage in the sagittal veins removed carotid artery arthrosclerosis as one of the possible causes of the third stroke. [133] Professor Fox's opinion that the third stroke was "on the venous side" also meant it could not be a "manifestation of pre-existing vascular disease". [134] Otherwise, the Crown's submissions also noted the difference between Professor Fox and Dr Pokorny's opinions about the contribution of the cachexia to the third stroke and that of Professor Chye. [135] Dr Pokorny considered that the third stroke did not occur "independently" in that it was likely a combination of Mr Young's cancer and other conditions (i.e. cachexia and "potentially" dehydration and sepsis). [136] Professor Fox considered that the third stroke was a manifestation of Mr Young's "underlying illness" (i.e. his cancer) [137] but noted that strokes were "well recognised as a comorbidity associated with cachexia". [138]
At the hearing of the appeal, Senior Counsel for the applicant, Ms Avenell SC, submitted that any error on Professor Chye's part in locating the third stroke in the arterial system was immaterial. [139] Thus, immediately after referring to a stroke in the carotid artery, Professor Chye was asked as follows: [140] "Q. That state related with the cancer, the hypocoagulable state, that could also, for example, be the foundational cause of the thrombosis within the sagittal veins. A. Yes, it could. Q Okay. In your report, you note that it's not meaningful to ascribe proportion of these possibilities as to the cause of acute and chronic cerebral infarction. A. Yes, correct. Q. And just as a concrete illustration of that, for example, it's not possible to discern from the information that we have whether the final thrombosis or potentially - emboli, but I'll just focus on thrombosis, leading to the recent infarction may have, for example, been entirely the result of the hypocoagulable state associated with the metastatic adenocarcinoma. A. No, I don't think it can put all the proportionality or blame to one property or one risk."
The first of these questions refocuses Professor Chye on the sagittal veins. He accepted that the "hypocoagulable state" associated with cancer could be "the foundational cause" of the thrombosis in those veins. However, his response to the next two questions confirmed that it was not possible to conclude that the third stroke was entirely the result of the "hypercoagulable state" associated with cancer. The difficulty with this answer is that the other two possible contributors to the third stroke identified by Professor Chye, namely cerebrovascular disease and carotid artery arthrosclerosis, [141] were only referrable to the venous system and not the arterial system.
The Crown also argued that Professor Chye's opinion on the cause of the third stroke deserved less weight than Professor Fox's given Professor Chye was a specialist in palliative care whereas Professor Fox was a specialist oncologist and haematologist. [142] This point has some force, at least at the point when one is considering the possible contribution of Mr Young's cancer and cachexia to the third stroke, as Professor Fox can be taken as the most experienced of the three specialists on the effect of cancer. However, this cannot be taken too far as this Court was not taken to any cross‑examination of either specialist which explored the limits of each other's expertise as well as the degree of professional deference between them and their respective specialties on particular topics.
The next and most critical step in the causation analysis of Professor Chye's evidence concerned the relationship between the third stroke and Mr Young's death. As noted, even though Professor Chye considered that the third stroke was the direct cause of Mr Young's death and that his cachexia (and pressure sores) were "separate ongoing parallel problems" to the cerebral infarcts, he nevertheless considered that severe malnutrition was a "significant cause" contributing to death. [143]
This aspect of his opinion was taken up in the cross-examination of Professor Chye as follows: [144] "Q. Obviously, given his previous strokes in February and April [2012], that most recent infarction was on top of - and I think earlier today you used the word 'overlaying' - some previous damage caused by those events? A. Yes. The word clinically that we use is 'extension'. So, he had a stroke - first stroke in February [2012]. Then he had an extension of the same stroke in April [2012]. And I guess this third stroke that he had in October [2012] extended the infarction caused by the first two. Q. A stroke, in terms of its medical consequences, has the capacity to be fatal in any circumstances? A. It can, yes. Q. Given that a stroke has the capacity to be fatal, it would remain an open possibility that the most recent infarction could have been fatal to Mr Young regardless of the existence of other comorbidities, in particular, the cachexia and the wounds? A. Yes." (emphasis added)
The answer to the third question in this sequence is very much the foundation for the applicant's case that the evidence on causation left open a reasonable possibility consistent with innocence. [145] However, one difficulty with this passage is that when read with the evidence noted above and below, Professor Chye's opinion on the fatal effect of the third stroke appears to be premised on it being an "extension" of the first two strokes. As explained, that is not correct (see [89]).
Over objection, the trial judge allowed the Crown Prosecutor to cross-examine Professor Chye. Professor Chye maintained his opinion that Mr Young's cachexia and multiple lower limb ulcers were significant contributing causes to his death. [146] He observed that those conditions made it "much more difficult" for Mr Young to survive the third stroke. He explained his approach to causation as follows: [147] "Q. Is it fair to say, then, that his significant decline, in terms of the cachexia and the pressure sores that were present in him at the time, made recovery from a stroke effectively impossible, or highly unlikely? A. I think it would make recovery from the stroke highly unlikely. Q. And that's the way in which you came to the conclusion that therefore, those two conditions are significant contributing factors to the death? A. Yes." (emphasis added)
Shortly after this, Professor Chye was asked as follows: [148] "Q. Therefore, in those circumstances, to isolate the stroke, with the limitations that we have in terms of the data, and say it alone could have killed him, is little more than a speculative view? A. Yes, I think that - given that he's had two strokes that calendar year, from memory, having this third stroke, even if a person were robust, could have, by itself, led to a patient's death. Independent of any other condition happening at the time, because we were - because he died very quickly after developing the third stroke that he had and I think that meant that given his other conditions, given his other conditions I think trying to survive that [third] stroke would have been much, much harder, or much less likely rather than harder, much less likely to occur. Q. Just allow me a moment to reflect on that answer I think I may well be done. You said and I think you used a more general term, you said given he had [a] previous stroke, a third stroke in a patient can cause death, something to that effect? A. Yes. So, aside from Mr Young, if a person has had two strokes in the past and then develop this particular stroke that Mr Young had, not knowing obviously how severe the stroke would be, because he passed away after that stroke. Yes, someone who developed a third stroke in that sort of time frame, there's a high chance that that person even though they were robust, could have died as well." (emphasis added)
The applicant's reliance on Professor Chye's evidence to support the pathway to a reasonable possibility that the applicant's neglect of Mr Young was not a significant contributing cause to his death relies on Professor Chye's opinion that the direct cause of death was the third stroke; his description that Mr Young's cachexia and ulcers were separate or parallel "processes" to the causation of that stroke; his acceptance that it was an "open possibility" that the third stroke could have been fatal to Mr Young independent of his cachexia and wounds; and Professor Chye's statement there was a "high chance" someone in robust health who developed a third stroke could have died as well. [149]
It follows from the above that I have some misgivings about the reliability of so much of Professor Chye's opinion that might be taken as excluding any significant contribution of Mr Young's cachexia and pressure wounds to his third stroke. Professor Chye's repeated references to the stroke's occurrence in the arterial system was not just a slip, but a significant flaw in his evidence in that he nominated three possible or likely contributors to its cause, two of which related to the arterial system, even though the stroke occurred in the venous system.
Leaving that aside, the reasoning process towards the asserted reasonable possibility does not grapple with Professor Chye's assessment that Mr Young's cachexia and pressures sores made recovery from the third stroke "highly unlikely" nor does it address how his evidence sits with Professor Fox's emphatic evidence that those conditions hastened or accelerated Mr Young's death from the third stroke (even if they did not contribute to its occurrence). Professor Chye does not appear to have been asked a direct question to that effect, namely, even if the third stroke was fatal, did Mr Young's cachexia and pressure sores hasten his death? As noted, this was very much the effect of Professor Fox's evidence (see [75]). In the context of someone so gravely ill as Mr Young, I would be inclined to treat Professor Chye's opinion that Mr Young's recovery from the third stroke was "highly unlikely" because of his cachexia and pressure wounds as implicitly accepting that it was also highly likely that the latter conditions hastened his death. At the very least, nothing in Professor Chye's evidence is inconsistent with that proposition, which was strongly attested to by Professor Fox and Dr Pokorny.
Having observed experts give evidence, I consider that there is at least some scope for attributing an advantage to a tribunal of fact in assessing which evidence amongst competing experts is the most persuasive. Moreover, a tribunal of fact has an advantage over this Court in assessing whether a concession by a witness, including an expert witness, that something was "possible" corresponds with a reasonable or only a bare possibility. However, nothing in the trial judge's reasons suggests that either form of advantage was deployed. Nevertheless, on the approach I suggested in Reyne (see above at [12]), it would follow that, to the extent there was a difference between Dr Pokorny and (especially) Professor Fox's evidence on the one hand and Professor Chye's evidence on the other hand, it was open to the tribunal of fact to prefer the former, especially so far as it concerned the contribution of Mr Young's cachexia and pressure wounds to the occurrence of his third stroke.
In any event, the test in M v The Queen requires a consideration of the whole of the evidence (at 493 per Mason CJ, Deane, Dawson and Toohey JJ). This admonition requires the exercise of caution before accepting a submission that seeks to tiptoe through a pathway of certain answers towards a conclusion that, at the end of the trial, there remained a reasonable possibility that causation was not proven beyond reasonable doubt. When Professor Chye's evidence is considered with that of Dr Pokorny and especially Professor Fox, I consider that the conclusion that Mr Young's cachexia and pressures sores made a significant contribution to the hastening of his death to be overwhelming. Causation was proven beyond reasonable doubt.
Having reviewed the record of the trial, I am satisfied there is not "a significant possibility that an innocent person has been convicted" of manslaughter (M v The Queen at 494 per Mason CJ, Deane, Dawson and Toohey JJ).

Conclusion on Conviction Appeal

For the sake of completeness, I note the Crown submitted that, had the sole ground of the conviction appeal been made out, then the Court should set aside the conviction for manslaughter with a verdict of guilty on the alternative count on the indictment which, as noted, charged an offence under s 44(1) of the Crimes Act. Section 44(1) provides: "44 Failure of persons to provide necessities of life (1) A person - (a) who is under a legal duty to provide another person with the necessities of life, and (b) who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life, is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person."
Senior Counsel for the applicant did not resist this course. Had it been necessary to decide, I would have upheld the Crown's submission. Leaving aside causation of death, this is a case where, based on the finding of the jury, it appears to the Court that the jury must have been satisfied of facts, including causation of danger of death, which would prove the applicant's guilt of an offence under s 44(1) (Criminal Appeal Act, s 7(2); Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43). As for the element of causing a "danger" of death, the following part of Professor Fox's evidence is consistent with that of Dr Pokorny and Professor Chye: [150] "Q. If you'll forgive me for asking what may be an obvious question, but at any rate - putting aside causes of death and casting our minds back to Mr Young's presentation on 5 October 2012, did the cachexia and the pressure sores present a danger of death to Mr Young at that point in time? A. Based on what we talked about before and what we looked at, I would say yes. He may well have been like the unfortunate inmates at the concentration camps who went on to die after release."
I would grant leave to appeal but dismiss the conviction appeal.

Sentence Appeal

As noted, the sole ground of the application for leave to appeal against sentence is that the sentence imposed was manifestly excessive.

The Sentencing Judgment

Her Honour's sentencing judgment identified a number of features of the applicant's offence that bore upon its objective seriousness. Her Honour noted Mr Young's vulnerability from his health conditions and their sequalae, namely his immobility, limited capacity to communicate and inability to care for himself, which made him "highly dependent" on the applicant. [151] The applicant chose to assume responsibility for the care of Mr Young (as opposed to being in a position where such a duty was imposed). [152] Mr Young was the subject of "protracted neglect" over several weeks prior to 5 October 2012 in "four domains", namely, hygiene, provision of sufficient food, caring for his wounds and obtaining medical assistance. [153] Her Honour found that the provision of care in those four domains was not difficult and the applicant had resources available to assist her. [154] Her Honour found that, although Mr Young preferred to be cared for in his home, he did not refuse treatment and care in hospitals. [155] Her Honour also found that Mr Young's neglect occurred in the presence of his son (then aged 9 years old) "who would have seen his father deteriorate to the pitiful condition [that] was observed … in October" 2012. [156] Overall, her Honour found that the applicant's offence was of "high seriousness". [157] There was no challenge to this assessment.
In addition, the following six matters in the sentencing judgment should be noted.
First, her Honour addressed the applicant's personal circumstances. At the time of the offence, the applicant was 34 years old. [158] She was 44 years old at the time of sentencing. [159] She had a criminal record that commenced in 1999 when she was 21 years old and included drug possession, driving and dishonesty offences, many of which were related to her drug history. Her Honour considered that her criminal record was of "little moment". [160]
Second, her Honour found that the applicant had a close and loving relationship with her son who was 18 years old at the time of sentencing. [161] Her Honour accepted that her son would "suffer emotional and practical consequences if his mother [was] imprisoned". [162]
Third, the applicant's mother died in January 2010. [163] Her mother had been severely assaulted by her partner in 2005 and remained in a coma until her death. [164] Her Honour found that the applicant's heroin addiction "contributed to and likely developed more quickly and seriously" as a consequence of her mother's assault and death which, in turn, impaired her ability to care for Mr Young. [165] Her Honour also found that the applicant's drug use also affected her ability to admit that she needed help caring for Mr Young, partly because of the involvement of FACS in caring for her son. [166] Ultimately, her Honour found the applicant's moral culpability was reduced a "little". [167]
Fourth, her Honour noted a psychologist's assessment that the applicant had a "high risk of criminal offending" but only in relation to dishonesty offences and her related drug use. [168] Her Honour found the applicant was "unlikely to reoffend in the same way", although she would have to address her addiction to prevent the low risk of such reoffending materialising. [169] Her Honour did not accept that the applicant was remorseful. [170]
Fifth, her Honour addressed the effect of delay in the prosecution of the applicant. [171] Mr Young died in 2012. A coronial inquest commenced in 2017 and an ex officio indictment was not filed until August 2019. [172] The trial commenced in April 2021. Her Honour accepted that the applicant had experienced stress from the investigative, coronial and trial processes "and the delay in their occurring". [173]
Sixth, her Honour made a finding of special circumstances on account of the applicant's rehabilitation needs and her son's youth. [174] The non-parole period imposed by her Honour was 60% of the total sentence.

Sentence not Manifestly Excessive

Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] per Gaudron, Gummow and Hayne JJ). Instead, it is only warranted "where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (ibid).
The applicant's submissions contended that, notwithstanding her Honour's assessment of the objective seriousness of the offence, the sentence was manifestly excessive. [175] The submissions noted three matters which together warranted such a conclusion, namely, the effect of the death of the applicant's mother on the applicant, including by accelerating her heroin addiction, the stress occasioned by the delay in the proceedings and the fact that the applicant was unlikely to reoffend in the same way as she had taken steps towards rehabilitation (by taking buprenorphine). [176]
The applicant relied on R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 ("George") in which this Court upheld a complaint that a sentence of 7 years imprisonment with a non-parole period of 4 years for manslaughter was manifestly excessive and resentenced the offender to 3 years and 6 months imprisonment with a non-parole period of 2 years. [177] The offender in George was found guilty of criminal negligence in failing to look after his 86-year-old mother (at [1]). At the time of her death, she had not seen a medical practitioner for 18 months and not been provided with her prescribed medication (at [15]). She weighed 39 kilograms, was severely dehydrated and was covered in open pressure wounds (at [10]). For the five to seven days prior to her death, she was semi-conscious and non-responsive (ibid). The offender had indications of Asperger's syndrome, was socially isolated and had been dominated by his mother (at [32] and [42]). The Court found that the offender's "capacity to respond to his responsibilities was clearly impaired by an unusual personality disorder arising from his history of social dysfunction, as evidenced by the utterly bizarre circumstances in which he, and the immediate family, lived" (at [43]). The Court also found that his risk of reoffending was "minimal" and personal deterrence was of "little relevance" (at [44]).
In its submissions, the Crown referred to BW v The Queen [2011] NSWCCA 176; (2011) 218 A Crim R 10 ("BW") in which this Court dismissed an appeal against a sentence for manslaughter of 16 years imprisonment with a non-parole period of 12 years. The offender in BW was responsible for the care of his 7-year-old daughter, who died of starvation and neglect (at [5]). The Court was satisfied the evidence had established that anyone would have realised, at least in the days leading to her death, that unless the deceased received nourishment and/or medical attention, she would certainly die (at [21]). The failure to seek assistance was found by the sentencing judge to be due to the offender's "incompetence, self-interest, disinterest, negligence, or a combination of all" (at [22]). His abuse of prescription medications was found not to have denied him the ability to perceive the deceased's deteriorating condition or do something about it (at [22]).
Given the protean nature of manslaughter offences (R v Blackledge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), there are obvious limits to relying on comparative cases to establish that a sentence for manslaughter is manifestly excessive or inadequate (Magro v R [2020] NSWCCA 25 at [69] per Gleeson JA with whom R A Hulme and Button JJ agreed). Even if one attempts to categorise the forms of manslaughter, such as by reference to manslaughters by neglect, "[t]he myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter" (R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 at [227] per Bathurst CJ, Johnson and R A Hulme JJ).
I do not regard either George or BW to be of much assistance to resolving the present application. The applicant's criminality was worse than the offender in George in that she voluntarily assumed the care of Mr Young and, save for the effects of her heroin addition, was mentally and physically able to provide the necessary care. The offender in George appears to have the duty of looking after his mother thrust upon him by a combination of circumstances, including his own mental impairment, which also severely affected his capacity to discharge that duty. The indifferent cruelty that appears to have been displayed by the offender in BW to his daughter has no counterpart in this case. Neither George, BW nor the present sentence should be seen as establishing some form of range for manslaughter by neglect.
The maximum sentence for manslaughter is 25 years imprisonment. Even giving full weight to the matters relied on by the applicant in support of her application, I do not consider that a sentence of 5 years imprisonment for the applicant's offence (which was found to be of "high seriousness") can be characterised as manifestly excessive.
I would grant leave to appeal against sentence but dismiss the appeal.

Proposed Orders

I propose the following orders: 1. Extend the time in which the applicant may seek leave to appeal against her conviction and sentence up to and including 15 July 2023; 2. Grant the applicant leave to appeal against conviction; 3. Dismiss the appeal against conviction; 4. Grant the applicant leave to appeal against sentence; and 5. Dismiss the appeal against sentence.
HARRISON J: I have had the significant advantage of reading in draft the thorough and comprehensive reasons for judgment of the Chief Judge. I agree with his Honour's conclusions and with the orders he has proposed.
For the purposes of this appeal I have reviewed all of the medical evidence in detail. The opinions of Professor Fox, Dr Pokorny and Professor Chye are clear and were the subject of critical forensic examination. It is fair to say that there are aspects of this evidence, to which Ms Avenell of senior counsel for Ms Baker took this Court in commendable detail, that standing alone raise the possibility that Mr Young's third stroke was the sole cause of his death, and that his cachexia and pressure sores, for the development of which it is accepted Ms Baker was relevantly responsible, were not significant contributors. However, as the Chief Judge has demonstrated, Dr Pokorny's evidence, for example, was overall very much inconsistent with Ms Baker's contention that there was a reasonable possibility that Mr Young's cachexia and pressure wounds were not significant contributors to his death. The fact that there existed any possibility that this was so must be distinguished from the existence of a reasonable possibility before the Crown will have failed to exclude some hypothesis consistent with innocence. In my opinion, Dr Pokorny's analysis is correct. The Chief Judge's analysis at [64], and generally, is in my view compelling.
I agree that the sentence imposed by her Honour has not been shown to be manifestly excessive.
WRIGHT J: I agree with the orders proposed by the Chief Judge at Common Law.
His Honour's reasons in relation to the conviction appeal reflect my reasoning and the conclusions I reached on my independent assessment of the evidence so that it is not necessary for me to make any additional comments in that regard.
I agree with the Chief Judge's reasons in respect of the sentence appeal.

Endnotes

AB 1477.
As defined by Dr Pokorny; AB 2815.
Tr 28/07/2023 1.23.
Sentencing Judgment at 1; AB 124.
Verdict Judgment at 3.10; AB 16.
Sentencing Judgment at 2.1; AB 125.1.
Sentencing Judgment at 1−2; AB 124−125.
Verdict Judgment at 5; AB 18.
Verdict Judgment at 5; AB 18.
Verdict Judgment at 5; AB 18.
Verdict Judgment at 5; AB 18.
Verdict Judgment at 5; AB 18.
Verdict Judgment, at 5-6; AB 18−19.
Verdict Judgment at 6; AB 19.
Verdict Judgment at 6; AB 19.
Verdict Judgment at 13; AB 26.
Verdict Judgment at 17; AB 30.
Verdict Judgment at 58; AB 71.
Tr 1289.13; AB 2791.
Verdict Judgment at 6-7; AB 19−20.
Verdict Judgment at 27; AB 40.
Verdict Judgment at 27; AB 40.
Verdict Judgment at 27; AB 40.
Verdict Judgment at 29; AB 42.
Verdict Judgment at 30; AB 43.
Verdict Judgment at 30.2; AB 43.
Verdict Judgment at 30; AB 43.
Verdict Judgment at 30; AB 43.
Verdict Judgment at 30; AB 43.
Verdict Judgment at 31; AB 44.
Verdict Judgment at 34; AB 47.
Verdict Judgment at 34−35; AB 47−48.
Verdict Judgment at 34; AB 47.
Verdict Judgment at 34; AB 47.
Verdict Judgment at 34-35; AB 47−48.
Verdict Judgment at 35; AB 48.
Verdict Judgment at 35; AB 48.
Verdict Judgment at 35.8; AB 48.
Verdict Judgment at 36; AB 49.
Verdict Judgment at 38; AB 51.
Verdict Judgment at 39; AB 52.1.
Verdict Judgment at 39; AB 52.
Verdict Judgment at 39−40; AB 52−53.
Verdict Judgment at 43; referring to Exhibit A at AB 677.
Verdict Judgment at 39; AB 52.
Verdict Judgment at 39; AB 52.
Verdict Judgment at 40 and 42; AB 53 and 55.
Verdict Judgment at 42; AB 55.
Verdict Judgment at 40; Exhibit A at AB 682C.
Verdict Judgment at 42.5; AB 55.
Verdict Judgment at 42−43; AB 55−56.
Verdict Judgment at 43; AB 56.
Verdict Judgment at 41; AB 54; referring to Exhibit A at AB 669.
Verdict Judgment at 43; AB 56.
Verdict Judgment at 43; AB 56.
Verdict Judgment at 35; AB 48.
Verdict Judgment at 46; AB 59.
Verdict Judgment at 46; AB 59.
Verdict Judgment at 48; AB 61.
Verdict Judgment at 48; AB 61.
Verdict Judgment at 55 and 58; AB 68 and 71.
Verdict Judgment at 51; AB 64.
Verdict Judgment at 51-52; AB 64−65.
Verdict Judgment at 52; AB 65.
Verdict Judgment at 52; AB 65.
Verdict Judgment at 52−53; AB 66.
Verdict Judgment at 47; AB 60.
Verdict Judgment at 53; AB 66.
Verdict Judgment at 53.3; AB 66.
Verdict Judgment at 53; Exhibit A at AB 535-536 and 796−797.
Exhibit A at AB 536−537.
Verdict Judgment at 53; Exhibit A at AB 538−539.
Exhibit A at 787; AB 943.
Exhibit P at 8; AB 1219.
Exhibit P at 8; AB 1219.
Tr 1319.44; AB 2821.
Exhibit P at 8; AB 1219.
Exhibit A at 779; AB 935.
Exhibit A at 779; AB 935.
Exhibit A at 779; AB 935.
Exhibit A at 779; AB 935.
Verdict Judgment at 97 and 99.9; AB 110 and 112.
Verdict Judgment at 101; AB 114.9.
Verdict Judgment at 102; AB 115.
Verdict Judgment at 102; AB 115.9.
Verdict Judgment at 103.7; AB 116.
Verdict Judgment at 104.1; AB 117.
Verdict Judgment at 104; AB 117.
Verdict Judgment at 109.2; AB 122.
Verdict Judgment at 109−110; AB 122−123.
Eric Colvin, "Causation in Criminal Law" (1989) 1 Bond Law Review 253, 254.
Kenneth Arenson, "Causation in the Criminal Law: A Search for Doctrinal Consistency" (1996) 20 Criminal Law Journal 189, 189−190.
Applicant's written submissions at [59].
Applicant's written submissions at [60]−[61].
Tr 1313; AB 2815.15. See also Tr 1367; AB 2869.35.
Tr 1350-1351; AB 2852.45-2853.5.
Tr 1313; AB 2815.45. See also Tr 1352; AB 2854.5-10.
Tr 1314; AB 2816.5-10. See also Tr 1356.8; AB 2848.9.
Tr 1317; AB 2819.
Tr 1320; AB 2822.10.
Tr 1320; AB 2822.40 according to Dr Rodriguez.
An "association" between cancer and the stroke was agreed on: Tr 1367; AB 2869.45.
Tr 1320; AB 2822.45.
Tr 1344-1345; AB 2846.40-2848.5.
Tr 1349.15; AB 2851.
Tr 1367−1368; AB 2869−2870.
Applicant's written submissions at [32]−[33] and [38]; Tr 1349.34; AB 2851.
Applicant's written submissions at [62]−[65].
Tr 1346.4; AB 2848.1.
Tr 1411; AB 2913. See also Tr 24/05/21 p 1413; AB 2915.30-45.
Tr 1420; AB 2922.5 in evidence-in-chief. Tr 24/05/21 p 1421; AB 2923.20 in cross-examination.
Tr 1528.
Tr 1430; AB 2932.10-30.
Tr 1524−1525; AB 3026−3027; Applicant's written submissions at [44].
Tr 1528.30; AB 3030.20.
Tr 1531−1532; AB 3033−3034.
Tr 1542; AB 3044.
Tr 1542; AB 3044.
Applicant's written submissions at [60].
Tr 1411; AB 2913. See also Tr 1413; AB 2915.30-45.
Tr 1598−1599; AB 3100.40−3101.23.
Tr 1599; AB 3101.12.
Tr 1605; AB 3107.17.
Tr 1599−1600; AB 3101.45−3102.16.
Tr 1607; AB 3109.13.
Tr 1611; AB 3113.29.
Tr 1615; AB 3117.
Tr 1665.41-1666.30; AB 3167−3168.
Tr 1667.35-43; AB 3169.
Tr 1666.37-1667.7; AB 3168−3169.
Tr 1668; AB 3170.41.
Tr 1666; AB 3168.25-30; Crown written submissions at [121].
Tr 1344; AB 2846.40.
Tr 1542; AB 3044.39.
Crown written submissions at [120].
Tr 1367; AB 2869.25.
Tr 1542.32-39; AB 3044.
Tr 1529; AB 3031.42.
Tr 28/07/2023 35−37.
Tr 1666; AB 3168.
Tr 1665; AB 3167.31.
Crown written submissions at [120].
Tr 1607; AB 3109.13.
Tr 1669; AB 3171.
Tr 1670.31; AB 3172.31.
Tr 1744.49; AB 3246.50.
Tr 1746; AB 3248.
Tr 1747.28; AB 3249.
Appellant's written submissions at [61].
Tr 1421; AB 2923.
Sentencing Judgment at 16; AB 139.2.
Sentencing Judgment at 16; AB 139.3.
Sentencing Judgment at 17; AB 140.
Sentencing Judgment at 17−18; AB 140−141.
Sentencing Judgment at 17; AB 140.
Sentencing Judgment at 17; AB 140.8.
Sentencing Judgment at 17; AB 140.8.
Sentencing Judgment at 19; AB 142.
Sentencing Judgment at 19; AB 142.
Sentencing Judgment at 19; AB 142.6.
Sentencing Judgment at 19; AB 142.
Sentencing Judgment at 19; AB 142.5.
Sentencing Judgment at 18; AB 141.
Sentencing Judgment at 18; AB 141.
Sentencing Judgment at 18; AB 141.8.
Sentencing Judgment at 18−19; AB 141−142.
Sentencing Judgment at 19; AB 142.3.
Sentencing Judgment at 19; AB 142.
Sentencing Judgment at 19; AB 142.8.
Sentencing Judgment at 20; AB 143.3.
Sentencing Judgment at 20; AB 143.
Sentencing Judgment at 20; AB 143.
Sentencing Judgment at 21; AB 144.4.
Sentencing Judgment at 21; AB 144.10.
Applicant's written submissions at [14].
Applicant's written submissions at [15].
Applicant's written submissions at [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 18 October 2023

(Criminal Procedure Act 1986(NSW)

CLR 663; [2020] HCA 11 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Libby Jade Baker (Applicant) Rex (Respondent) Representation: Counsel: Ms M Avenell SC (Applicant) Ms A Bonnor (Respondent)

Conviction Appeal

For the purposes of an appeal against conviction, a finding of guilt made by a judge sitting without a jury is treated as though it were a jury's finding, including for the purpose of determining a ground of appeal contending that the verdict was unreasonable (Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8] per Gageler, Keane, Gordon, Steward and Gleeson JJ; "Dansie"). The approach to that ground was enunciated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 in that "the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (at 493 per Mason CJ, Deane, Dawson and Toohey JJ). This is a question "of fact which the court must decide by making its own independent assessment of the evidence" (Dansie at [8], citing M v The Queen at 492).
The High Court in M v The Queen acknowledged the significance of the role of a jury as "the body entrusted with the primary responsibility of determining guilt or innocence" and the advantage a jury derives from "the benefit of having seen and heard the witnesses" (at 493). However, the High Court added that "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on an unreasonable verdict ground]" (at 493−494). This aspect of M v The Queen is also applicable to a judge alone trial.
The significance of the reasons produced by a trial judge sitting without a jury to a contention that a conviction is unreasonable and cannot be supported on the evidence was described in Dansie as follows (at [16]−[17] per Gageler, Keane, Gordon, Steward and Gleeson JJ): "Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial." (emphasis added)
Two aspects of this passage from Dansie should be noted.

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (4)

Cases Cited (21)

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