The defence case
87The appellant neither called nor gave evidence.
88In relation to unlawful and dangerous act manslaughter, the submissions made by counsel to the jury on the appellant's behalf were, first, to argue that the Crown had not proved beyond reasonable doubt that either Burns or the appellant supplied the deceased with methadone. Secondly he argued that, even if Burns supplied the drug, it did not follow that the appellant had done so. Thirdly he argued that, even if the jury found that the appellant was guilty of supply, she did not appreciate the risk of that supply to the well being of the deceased because she did not know of his condition at the time of the supply. Fourthly he submitted to the jury that they would not be satisfied beyond reasonable doubt that the act of supply caused the death of the deceased, either because it was the deceased's voluntary act of ingestion of the drug that caused his death or because it was not methadone that killed him.
89In relation to gross criminal negligence manslaughter, he argued principally that the appellant owed no duty of care to the deceased because she was unaware that there was anything seriously wrong with him. He relied chiefly upon the evidence of Ms Malouf in this regard and suggested that Burns might have owed a duty after he left the house with the deceased.
Ground 1: His Honour erred in refusing to remove the charge of manslaughter by gross criminal negligence from the consideration of the jury.
Ground 2: His Honour erred in directing the jury that there was a duty of care owed by a supplier of drugs towards the drug recipient.
90It is convenient to consider these grounds together.
91The appellant's fundamental submission was that she was not under a legally recognised duty (as opposed to any moral obligation) to seek medical aid for the deceased. This submission was said to be supported by the decision of the High Court in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L No 14 Pty Ltd v Scott [2009] HCA 47; [2009] 239 CLR 390 at [47]-[55]. The relevant principle was said to be:
"There is no legally recognised duty of care owed by a person who supplies a drug (legal or otherwise) to ensure that the person is safeguarded from the effects of the drug."
92In addition it was submitted that the Crown must show that if the appellant owed a duty of care that she, by her failure to discharge that duty, was "grossly negligent." The appellant framed a question by reference to the decision in R v Taktak (1988) 14 NSWLR 226 at 236;(1988) 34 A Crim R 334 at 353 in the following terms:
"(was) ... the jury entitled to conclude ... that the appellant here voluntarily assumed the care of the deceased 'and so secluded the helpless person as to prevent others from rendering aid'."
93With respect to factual issues relevant to a duty of care the appellant emphasised that when the deceased was offered medical assistance he refused it. It was submitted that at that point there was no evidence that he was incoherent or unconscious and furthermore there was evidence that he was able to walk without assistance. It was further submitted that the evidence did not allow the jury to find that in forcing him to leave her residence the appellant showed the high degree of negligence necessary to sustain a conviction for manslaughter.
94Questions relating to the existence of a duty of care which, if breached, will give rise to criminal liability have been discussed both in previous decisions and by the academic writers. As it happens there are both decisions and writings relating to the circumstances of a person who illegally supplies drugs to another who dies as a result of taking the drugs.
95The common law has resisted imposing a universal obligation on one person to take care for another. Accordingly, a person is generally not criminally liable for a failure to prevent harm occurring to another. (There is a useful discussion of the issue by Yeldham J in Taktak at 236). However, depending upon the circumstances and in particular the relationship between the parties, the general rule may give way.
96Gross negligence manslaughter depends upon the offender owing the deceased a duty of care: Kelly v R (1923) 32 CLR 509 at 515; Taktak at 357; R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209 at 211-12). The duty must be recognised by common law or statute. Not every moral duty amounts to a legal duty ( R v Instan [1893] 1 QB 450 at 453 Coleridge CJ).
97Some common law duties of care which may give rise to criminal liability are clearly "established". An offender who is responsible for rendering a victim unconscious owes a duty to assist the victim ( R v Lawford & Van de Wiel (1993) 69 A Crim R 115 at 121). An offender who voluntarily assumes responsibility for a victim who is physically or mentally incapable of caring for him or herself owes a duty of care which may be an occasion for criminal liability ( Taktak at 358; Hall at 211-12). A parent or guardian owes a duty to a young child in his or her care to provide the "necessaries of life" ( R v Bubb & Hook (1850) 4 Cox CC 455 at 460 Williams J; R v Duffy (1880) 6 VLR (L) 430 at 432 Stawell CJ; R v Russell [1933] VLR 59 at 75 Mann J, at 80 McArthur J; R v Clarke & Wilton [1959] VR 645 at 649). "Necessaries" include medical attention ( Duffy at 432; R v Gibbins & Proctor (1918) 13 Cr App R 134 at 139 Darling J; R v Stone & Dobinson [1977] 2 All ER 341 at 346; Taktak ). There is some authority for the proposition that religious objection to, or the unreasonable refusal of, surgical procedures will not provide a defence ( R v Downes (1875) 1 QBD 25 at 28-30; R v Senior [1899] 1 QB 283 at 291), however those cases concerned statutory rather than common law duties. The concept of "necessaries" also includes protecting a child from physical harm ( Russell at 75 Mann J, at 80 McArthur J; Clarke & Wilton at 649).
98A duty of care which may be an occasion for criminal liability can be inferred from a combination of circumstances or from the nature of the offender's relationship with the deceased. In Stone & Dobinson , the offender Stone was the deceased's sister. The deceased, who suffered from anorexia, had accepted the offenders' invitation to live with them. The offenders were aware of her condition prior to her death and had made some attempt to provide assistance. A duty of care was found to exist. In Instan , a niece was found to be subject to a duty to assist her ailing aunt at whose expense she was living. In Gibbins & Proctor , a father and his partner were found to have neglected the deceased, a child. The partner owed a duty of care to the child at the point at which she moved into the father's home. In R v Cowan [1955] VLR 18 it was held the offender was under a duty to take all reasonable steps within his power to assist his de facto wife, who had sustained severe burns and was helpless. In Taktak , although the offender and victim were strangers, a combination of factors, including the victim's helplessness and the offender's action of secluding her from assistance, created a duty of care.
99There is a debate as to whether the duty of care in gross negligence manslaughter is to be equated with the duty giving rise to a liability in tort. According to Herring and Palser, "The Duty of Care in Gross Negligence Manslaughter" [2007] Criminal Law Review 24 at 25, support for an affirmative answer to this question can be found in the decisions of Lord Mackay in R v Adomako [1995] 1 AC 171 at 187 and Lord Justice Kay in R v Wacker [2003] QB 1207 at [37].
100Herring and Palser argue that the nature of criminal proceedings necessitates a different approach to the question of duty of care than is appropriate in civil proceedings (at 37):
"[C]riminal proceedings are brought by the state and not by the victim. Hence the culpability of the victim is not relevant to the guilt of the defendant. A defendant charged with burglary will have no defence that the victim was foolish in leaving her house unlocked and was therefore partly responsible for the crime. This is the point behind the Wacker decision. Although the victims were committing a crime and had even consented to the dangerous activity this was irrelevant to the guilt of the accused. Criminal proceedings are not about balancing the responsibility between the defendant and the victim, but in determining whether the activity engaged in by the defendant is sufficiently harmful and blameworthy in the eyes of the state to justify a criminal conviction."
101Kay LJ in Wacker (a decision of the English Court of Appeal) expressed a similar view (at [33]):
"Why is there, therefore, this distinction between the approach of the civil law and the criminal law? The answer is that the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state's duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. The criminal law should not be disapplied just because the civil law is disapplied. It has its own public policy aim which may require a different approach to the involvement of the law."
102We do not believe that it is necessary to attempt to explore this issue in the present case.
103To constitute manslaughter by criminal negligence, the breach of duty must be "gross". The test has been variously expressed, for example: "conduct deserving punishment" ( R v Bateman (1925) 19 Cr App R 8 at 12 Hewart LCJ), "recklessness" ( Andrews v DPP [1937] AC 576 at 583; [1937] 2 All ER 552 at 556 Atkin LJ), "gross" or "culpable negligence" ( R v Gunter (1921) 21 SR (NSW) 282 at 286 Cullen CJ; R v Wood (1957) 57 SR (NSW) 638 at 639; Taktak at 351 and 353), "wicked negligence" ( R v Nicholls (1875) 13 Cox CC 75 at 76 Brett J), and "a very high degree of negligence" ( Andrews at 556 Lord Atkin; R v Bonnyman (1942) Sol Jo 274; 28 Cr App R 131 at 135). In Andrews Lord Atkin remarked (at 556):
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case."
104In Lawford Duggan J at 120:
"At common law liability for a failure to act is exceptional and in the case of homicide the limited authority that there is restricts liability to situations where there is a duty to perform a particular act: Phillips (1997) 45 ALJR 467 at 477. In Taktak's case it was held that the accused assumed a duty to take care of the deceased girl by removing her while she was helpless from a situation in which others might have rendered assistance to her. Examples of situations in which similar duties might be said to arise are also to be found in the Criminal Law Revision Committee 14 th Report (UK), par 252, where it is said:
'(i) a parent is under a duty to his young children (under common law and also by the Children and Young Persons Act 1933 as mentioned above);
(ii) one who voluntarily undertakes the care of a helpless and infirm person owes a duty to that person ( Nicholls (1874) 13 Cox 75);
...
(iv) there may be a duty under a contract of employment where omission to perform the duty is likely to endanger the lives of others whether or not they are parties to the contract ( Pittwood (1902) 19 TLR 37);
(v) where there is a right and the ability to control the actions of others, there may be a duty to exercise that right in order to prevent the commission of a crime. This may result in liability as a secondary party if the other is guilty of an offence, as in Rubie v Faulkner [1940] 1 KB 571, where the supervisor of a learner driver failed to supervise the driver and was convicted of aiding and abetting the driver to drive without due care and attention;
(vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger;
(vii) where the defendant holds a public office which requires him to care for others he has a duty to do so, as for example in Curtis (1885) 15 Cox 746, where the relieving officer for a local authority was held liable for manslaughter by an omission for neglecting to provide medical assistance to a destitute person and Dytham [1979] 3 All ER 641, where a uniformed police officer stood within 30 yards of a club from which a man was being ejected and made no move to intervene whilst the man was noisily kicked to death in the gutter."
105The question raised in the present case is whether the supplier of a prohibited drug owes a duty of care to a person to whom they supply the drug and who, in their presence "takes" the drug. The Crown submitted that that duty arose from the fact that by supplying the drug the appellant created the danger to the deceased. It was submitted, adopting the approach taken by Barr J when directing a jury in R v Taber & Styman (2002) NSWSC 1239 at [14] that any person who deliberately puts another in danger has a legal duty to take steps to remove that danger.
106In R v Evans (Gemma) [2010] 1 All ER 13; [2009] 1 WLR 1999 a 24 year old woman supplied her 16 year old half-sister heroin who self injected. The appellant put her sister to bed and she died. The English Court of Appeal (at [31]) accepted that a person owes a duty of care having "created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening."
107The court in a judgment handed down by Lord Judge CJ reviewed a series of English cases, not all drug cases, where a duty to act had been identified. Adomako involved an anaethetist and his patient who died. The duty was readily identifiable. In R v Khan (Rungzabe) [1998] Crim LR 830 a young woman who was supplied with heroin, became ill and died. The appellants who were drug dealers left her, returning the next day, by which time she had died. Although convicted the appellant succeeded in an appeal due to an unrelated problem with the summing-up. However, the Court of Appeal in Evans accepted that liability for criminal negligence was open in those circumstances.
108R v Sinclair, Johnson and Smith (1998) 148 NLJ 1353 concerned a close friend of the deceased. They lived together. Sinclair provided his friend with a dose of methadone and assisted the deceased to obtain a second dose. He knew that the deceased was not an addict. Although he stayed with him as he became unconscious he did not call for assistance. A duty of care was found to arise.
109R v Willoughby [2008] 1 WLR 1880 was a case of arson resulting in death and the conviction of the appellant for manslaughter. The appellant had set about destroying the premises for his own benefit and enlisted the deceased to assist him in spreading petrol. Criminal liability was held to arise.
110In Wacker the appellant drove a lorry in which 58 illegal immigrants were secreted. They died and although they were involved in an illegal enterprise with the appellant, it was held the appellant had assumed a duty to care for them which he had breached and accordingly was convicted of gross negligence manslaughter.
111Lord Judge at [31] said of these decisions (emphasis added):
"These authorities are consistent with our analysis. None involved what could sensibly be described as manslaughter by mere omission and in each it was an essential requirement of any potential basis for conviction that the defendant should have failed to act when he was under a duty to do so. The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise ."
112We see no reason to take a different approach to the issue than has been taken by the English authorities. Although the appellant submitted otherwise, we do not believe that the decision in C.A.L No 14 requires a different conclusion. That case was concerned with the relationship between the proprietor and licensee of a hotel who served alcohol to a customer. The High Court (at [52]) decided that there was no duty at common law to monitor and minimise the service of alcohol to customers or to protect customers from the consequences of the alcohol they chose to consume. The reasons for this conclusion were summarised by Gummow, Heydon and Crennan JJ at [52]-[55] (footnotes omitted):
There is in general no duty. The conclusion in this Court that the Full Court majority decision must be reversed as a practical matter overcomes these problems. However, even though the arguments in this Court proceeded in a much narrower way, being closely tied to the specific facts of this case, it is desirable to avoid repetition in future of what happened in this case by explicitly stating the fundamental reason why the Full Court majority decision on duty of care is wrong. The reason is that outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. That conclusion is correct because the opposite view would create enormous difficulties, apart from those discussed above, relating to customer autonomy and coherence with legal norms. The difficulties can be summarised as follows.
Expressions like "intoxication", "inebriation" and "drunkenness" are difficult both to define and to apply. The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive. It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent. With some there is the risk of confusing excitement, liveliness and high spirits with inebriation. With others, silence conceals an almost complete incapacity to speak or move. The point at which a drinker is at risk of injury from drinking can be reached in many individuals before those signs are evident. Persons serving drinks, even if they undertake the difficult process of counting the drinks served, have no means of knowing how much the drinker ingested before arrival. Constant surveillance of drinkers is impractical. Asking how much a drinker has drunk, how much of any particular bottle or round of drinks the purchaser intends to drink personally and how much will be consumed by friends of the purchaser who may be much more or much less intoxicated than the purchaser would be seen as impertinent. Equally, to ask how the drinker feels, and what the drinker's mental and physical capacity is, would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy. In addition, while the relatively accurate calculation of blood alcohol levels is possible by the use of breathalysers, the compulsory administration of that type of testing by police officers on the roads was bitterly opposed when legislation introduced it, and it is unthinkable that the common law of negligence could compel or sanction the use of methods so alien to community mores in hotels and restaurants.
Then there are issues connected with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider. It is not against the law to drink, and to some degree it is thought in most societies - certainly our society - that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial. As Holmes J, writing amidst the evils of the Prohibition era, said: "Wine has been thought good for man from the time of the Apostles until recent years." Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who "may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety", and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encouraged an interfering paternalism on the part of those who run the hotels and restaurants.
A duty to take reasonable care to ensure that persons whose capacity to care for themselves is impaired are safeguarded also encounters the problems of customer autonomy and legal coherence discussed above. A further problem of legal coherence arises where legislation compels a publican to eject a drunken customer but the tort of negligence requires the person's safety to be safeguarded by not permitting the person to drive or to walk along busy roads, and hence requires the person to be detained by some means. Even if the customer wants to leave, the publican is caught between the dilemma of committing the torts of false imprisonment or battery and committing the tort of negligence.
113Their Honours identified a number of specific matters in the facts of that case which indicated that a duty of care did not arise. The Crown summarised these findings in the following terms:
"(a) Mr Scott was not 'vulnerable' as indicated by his being an experienced drinker who was likely to be conscious of his own capacity, particularly to travel the short route home [33];
(b) If the publican tried to threaten or use force to prevent Mr Scott obtaining the keys to his motorcycle (which had been put in a petty cash tin with other customers keys) he would very possibly have been committing an assault [39]. To have prevented Mr Scott from leaving would have exposed the publican to false imprisonment and battery [55];
(c) The putative duty would clash with the publican's duty as a sub-bailee to hand over the keys and the motorcycle (which was in the storeroom) [40];
(d) As a private citizen, unlike a police officer, the publican (sic) no power to forbid Mr Scott from driving under the influence of alcohol or otherwise control his freedom [41]."
114The present case differs significantly. The provision of methadone to the deceased was a breach of the law. The drug was known to the appellant to be dangerous and it was plainly open to the jury to conclude that the deceased was vulnerable, both because of his naivety as a user of methadone and his physical condition at the time. It is true that there was evidence that after his distressed condition had become apparent to the appellant and Burns the deceased refused medical assistance. However, it was open to the jury to conclude that the appellant was aware of the deceased's compromised state and, even though he declined assistance, to determine that she had a duty, notwithstanding any protestation from the deceased to seek medical attention for him. The evidence was capable of the conclusion that the deceased needed assistance to stand or walk yet the appellant required that he be put outside without further care for his welfare. The calling of an ambulance could not have comprised any principle of law otherwise arising from the relationship between the appellant and the deceased.
115The trial judge told the jury:
"If a person voluntarily invites or permits potential recipients to attend his or her home for the purpose of a prohibited drug supply transaction, where the drugs are to be consumed on the premises and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself towards the drug recipient without being grossly or criminally neglectful.
Now, you will notice that I have put that paragraph in bold. I do so because I am setting out there what may amount to or constitute a legal duty - but you are the judges of the facts, it is for you to consider whether, on the facts as you find them to be established in this case, the accused did, in the terms I have outlined, voluntarily take upon herself such a duty towards David Hay.
Let me explain that briefly. For example, if you think that it was actually the husband independently of Natalie who invited David Hay to the premises and her husband who may have given him drugs but she did not find out about it until later, then it may well be that the facts do not fit the duty or the possible duty which I have outlined there in black. Or if you take the view that, whatever happened, he was up walking about, his life was not endangered and again the facts do not fit that formula.
On the other hand, as I say, my task is to tell you where a duty may arise, if you find those facts - and I repeat it is for you to consider whether on the facts if you find them to be established in this case, the accused did, in the terms I have outlined, voluntarily take upon herself such a duty towards David Hay."
116The appellant submitted that the first paragraph of the direction misstates the law. She submitted that it is for the trial judge to determine whether as a matter of law there is evidence upon which a jury could be satisfied beyond reasonable doubt that a duty of care arises. It is then for the jury to determine whether the Crown case proved beyond reasonable doubt that in the circumstances of a particular case there was such a duty.
117As we understand the latter submission and in so far as it deals with the issue it is correct. It is always a matter for the judge to determine whether there is evidence that supports an essential element of the charge. However, it may be that the appellant was seeking to agitate a debate which occurred in Evans . In that case Lord Judge CJ addressed the question of whether the existence of a duty of care was a question of law for the judge or a question of fact for the jury. It had been suggested in Willoughby that both the existence of a duty and issues related to breach of that duty were matters for the jury. The controversy was discussed by Herron and Palser in "The Duty of Care in Gross Negligence Manslaughter" [2007] Criminal Law Reports 24.
118In his judgment in Evans Lord Judge resolved the controversy determining that the existence of a duty of care is a matter of law for the judge. The judge must give instructions to the jury as to the elements of the duty. The jury must determine whether the facts to make out those elements exist in the particular case. The discussion is found from [37] in Evans. We respectfully agree with the analysis and the conclusion.
119Consideration of the trial judge's direction indicates that his Honour was mindful of the approach in Evans . This may be because he accepted the guidance provided by the Criminal Trial Courts Bench Book. In our opinion the directions suggested in the Bench Book correctly reflect the law.
120We would dismiss grounds 1 and 2 of the appeal.