GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The appellant and her husband supplied methadone to a man named David Hay. David Hay died as the result of the combined effect of the methadone and a prescription drug. The appellant and her husband were each charged with his manslaughter. They were tried separately before the New South Wales District Court (Woods DCJ QC). At the appellant's trial, the prosecution case was left to the jury on either of two bases. The first basis was that the supply of the methadone was an unlawful and dangerous act which caused the death of the deceased. The second basis was that the appellant's failure to seek medical attention for the deceased was a grossly negligent cause of his death. The appellant was convicted of the manslaughter of the deceased.
The appellant appealed against her conviction to the New South Wales Court of Criminal Appeal (McClellan CJ at CL, Schmidt J and Howie AJ). The principal focus of the appeal in that Court was whether the appellant was subject to a legal duty to take steps to preserve the life of the deceased. After the hearing of the appeal, the appellant was granted leave to add a further ground challenging the trial judge's refusal to take the case in unlawful and dangerous act manslaughter from the jury. Little attention appears to have been given to the identification of the unlawful act in the parties' submissions addressing this ground. The Court of Criminal Appeal initially characterised the unlawful act as "the supply of the methadone by injection to the deceased". In stating its conclusion, the Court said that it was accepted that the unlawful act was "the supply of methadone to the deceased without a medical prescription". It recorded that there had been no issue at the trial or on the appeal that the unlawful supply of a drug "could not be an occasion for unlawful and dangerous act manslaughter". In the event, the Court was satisfied that the appellant was complicit in injecting the deceased with the methadone and that "the act of injection was unlawful", "plainly dangerous" and caused the death of the deceased.
The Court of Criminal Appeal also considered that the case of negligent manslaughter had been rightly left to the jury. It held that the supplier of a prohibited drug owes a duty of care to a person to whom they supply the drug when the drug is taken in the supplier's presence. The appellant's appeal against her conviction was dismissed.
The appellant was granted special leave to appeal by order of Gummow, Hayne and Heydon JJ on 10 February 2012 on grounds which challenged the existence of the duty, the directions on duty and breach in the case in negligent manslaughter, and causation on either case.
On 20 June 2012, this Court made orders allowing the appeal, setting aside the order of the Court of Criminal Appeal made on 1 April 2011 and in lieu thereof allowing the appeal to that Court, quashing the appellant's conviction for the manslaughter of David Hay and ordering the entry of a verdict of acquittal. These are our reasons for joining in the making of those orders.
On the hearing of the appeal in this Court, the Crown conceded that the supply of methadone to the deceased without more was not an unlawful act that was capable of supporting the appellant's conviction for manslaughter by unlawful and dangerous act. The appellant was granted leave to add a further ground contending that manslaughter by unlawful and dangerous act should not have been left to the jury.
Notwithstanding the Crown's concession, it sought to maintain the jury's verdict. It was submitted that the Crown case at trial had been conducted throughout on the basis that the appellant, or her husband with whom she was acting in concert, had injected or assisted to inject the deceased with the drug. Reliance was placed on the Court of Criminal Appeal's finding that such a case had been established beyond reasonable doubt. As will appear, the Crown case at trial shifted in closing submissions from being a case that the appellant was complicit in supplying the drug to the deceased to a case that she was complicit in administering the drug to him. Regardless of the way the Crown case was put in final address, the directions left manslaughter by unlawful and dangerous act on the basis that the act was the supply of methadone to the deceased. Moreover, the underlying joint criminal enterprise was at all times confined to "supply[ing] the prohibited drug, methadone, to David Hay" (emphasis added).
For the reasons to be given, the Crown's belated concession in this Court, that the supply of methadone is not capable of supporting the appellant's conviction for manslaughter by unlawful and dangerous act, must be accepted. Since the basis on which the verdict was returned is not known, it follows that the appeal must be allowed. Consideration of the consequential order required attention to the parties' arguments respecting the capacity of the evidence at trial to establish the appellant's liability for manslaughter, either on a case that her unlawful act was the administration of the drug to the deceased or because she was under a legal duty to seek medical assistance for him. In order to understand those arguments, it is necessary to describe the evidence given at the trial in some detail.
The evidence at trial
The appellant and her husband, Brian Burns, were registered participants in a methadone programme conducted by a Sydney clinic. Each was approved to receive doses of the drug to take away. They were in the business of selling some of their methadone to friends and acquaintances from their home, a unit in Belmore.
On Friday, 9 February 2007, the appellant and Brian Burns attended the clinic and each received a dose of methadone. Each was also given two 130 mg doses of methadone to take away.
The deceased was on friendly terms with Brian Burns. He made telephone contact with Brian Burns around midday on 9 February 2007. Later that afternoon, the deceased attended his psychiatrist, Dr Roberts. The deceased left Dr Roberts' rooms between 4.30 and 5.00pm. He was noticeably drowsy. He told Dr Roberts that he had taken Endone.
Sometime after 5.00pm on the same day, the deceased attended the Burns' unit to purchase methadone. A woman named Felicity Malouf also attended the Burns' unit that evening to purchase methadone. When she arrived, the deceased was in the lounge room with Brian Burns. The appellant was in another room. Ms Malouf observed that the deceased was "out of it". Brian Burns told her that the deceased had "wanted" or "had taken" some methadone. Ms Malouf did not see syringes or other equipment associated with the injection of drugs in the living room. She and Brian Burns roused the deceased and walked him around the living room several times. Brian Burns said "we're going to call an ambulance" but the deceased said "No, no I'm right". The appellant came into the lounge room and said in an angry tone, "he can't be here like that". Brian Burns told the deceased, "come on mate, it's time to go". He said that he would put the deceased outside and keep an eye on him. The deceased got up and left the unit without assistance. Brian Burns accompanied him out. The appellant and the deceased had been together in the lounge room with Brian Burns and Ms Malouf for around three to four minutes before the deceased left the unit.
Ms Malouf and the appellant remained in the unit. Ms Malouf was not overly concerned about the deceased's condition. She did not consider that it was unusual for a person to be sleepy after taking methadone. She had not thought that it was necessary to call an ambulance.
The deceased's body was discovered in the toilet block at the rear of the Burns' block of units a little after 12.30pm the following day. The deceased must have walked or been assisted down a number of stairs, crossed a yard and walked up some further stairs to get to the toilet block. No equipment associated with drug taking was found in the vicinity of the body.
Several weeks after the discovery of the body, the police installed a listening device in the Burns' unit. Discussions between the appellant and her husband included reference to the deceased's overdose and to him having been "out of it". The appellant spoke of the need to "get rid of those things". She also said that the deceased "had the best outfit, no more". In context, this was a reference to drug injecting equipment.
The appellant made a statement to the police on 3 March 2007 in connection with the death of the deceased. She gave the following account of events in that statement. The deceased attended their unit on the evening of 9 February 2007 and he was either drunk or "out of it". Ms Malouf was inside the unit when the deceased arrived and she suggested that they should call an ambulance. The deceased refused the offer. The appellant told her husband to tell the deceased to leave, the deceased said "Don't worry about me, I'll be right" and got up and walked out of the unit with her husband.
The police searched the Burns' unit on 7 March 2007 and found syringes and tubes, known as "butterfly clips", which can be used to inject methadone.
Dr Duflou conducted the post-mortem examination. He attributed the cause of death to methadone and olanzapine toxicity. High levels of both drugs were detected in samples taken from the deceased's body. Olanzapine, the active ingredient in the drug marketed as Zyprexa, was detected at about 20 times the expected level for that drug. Methadone was present at 0.2 mg per litre, a level that was not extremely high. Neither drug individually was present in an amount that was necessarily fatal. The deceased was suffering from early pneumonia. This condition may have been developing in any event or may have been the result of breathing difficulties brought on particularly by the consumption of the methadone.
Dr Duflou considered that the combination of the two drugs had caused respiratory depression and death. He considered it a "remote possibility" that the olanzapine alone had caused death. Mr Farrar, a pharmacologist, said that it was not possible to determine whether methadone or olanzapine alone could have caused death. He considered that it was "unlikely" that olanzapine alone could have caused death, although he was not able to rule out that possibility.
In a conversation between the appellant, Brian Burns and Ms Malouf, which was recorded during the investigation, the appellant and Brian Burns counselled Ms Malouf to give a false account to the police that she had been present at the apartment when the deceased arrived. Ms Malouf gave the police an account along these lines which matched that given by the appellant in her statement. Ms Malouf was charged with concealing a serious indictable offence and with hindering police. She later agreed to cooperate with the authorities and the charges against her were terminated. She gave evidence in the Crown case at the appellant's trial.
The appellant was charged in the indictment with four counts of the supply of methadone as well as with the manslaughter of the deceased. Count two was particularised as the supply of methadone to the deceased on 9 February 2007. Count three was particularised as the supply of methadone to Ms Malouf on that day. Counts four and five charged supplies of methadone on 2 March 2007. The appellant pleaded not guilty to the supply of the drug to the deceased but guilty to counts three, four and five. Evidence of these supplies was received at the trial, apparently without objection, as evidence of the appellant's tendency to supply methadone and to permit the recipients of the supply to consume the drug at her premises.
The appellant did not give evidence or call evidence at the trial.
Manslaughter by unlawful and dangerous act - the conduct of the trial
As earlier noted, the Crown case on manslaughter by unlawful and dangerous act was opened on the basis that the appellant was a party to a joint criminal enterprise with her husband to supply methadone to the deceased and that the supply of the drug was the unlawful act upon which her criminal liability depended. A difficulty with this case, acknowledged by the Crown in this Court, is evident from the way the Crown Prosecutor dealt with the requirement of dangerousness in opening. He told the jury that the appellant was aware that the deceased would take the drug "either by injection or orally" and "that was a dangerous thing to do". Dangerousness, it will be noted, was not a quality of supplying the drug but of taking the drug.
At the close of the Crown case, defence counsel applied for a verdict by direction. He submitted, with respect to unlawful and dangerous act manslaughter, that the supply of the drug was not the cause of the deceased's death. The Crown Prosecutor maintained that it was the prosecution case that the appellant and her husband had "suffered" the deceased to either drink or inject the methadone and that the supply of the drug was a dangerous act because it was within the knowledge of the appellant that it was a dangerous drug. As the argument developed, the Crown Prosecutor also submitted that "the dangerous and unlawful act, apart from having obvious qualities in it included that [the deceased] was either assisted in injecting or was injected". The trial judge queried the foundation for the latter submission, to which the Crown Prosecutor responded:
"There wasn't any evidence that he was actually injected rather than injected himself but the Crown relies on the several circumstances which point to that being a possibility".
Defence counsel complained that the shift to a case that the appellant was complicit in administering the drug was a departure from the Crown case as particularised and conducted. The possible significance to the appellant's liability of the distinction between the supply and the administration of a prohibited drug was not explored. The trial judge ruled that it was open to the Prosecutor to invite the jury to infer that the appellant was complicit in injecting or assisting to inject the drug. However, his Honour directed the jury that the prosecution alleged a joint criminal enterprise between the appellant and her husband to supply the methadone to the deceased, and that liability for manslaughter by unlawful and dangerous act was based upon the intentional supply of methadone to the deceased.
Turning to causation, his Honour directed that the supply of the methadone must have made a substantial contribution to the death of the deceased and that it would not have done so if the "true cause of David Hay's death was the simple fact that he made a rational, voluntary and informed decision to take the methadone" (emphasis in the original written direction). In determining whether the deceased's act was rational, voluntary and informed, the jury was invited to:
"[C]onsider - amongst other matters you think relevant - the evidence as to David Hay's condition when he arrived at the Burns' flat, evidence from the post-mortem as to the condition of his brain, what he may or may not have known about methadone and its effects, and what he may or may not have known about the injection of drugs. You may think that David Hay was a rational adult man, who knew what he was doing so far as drugs were concerned, understood what methadone was and did, and voluntarily took it. … On the other hand, you might think that he died precisely because he did not know about methadone and its effects, that he already suffered some degree of brain damage from an earlier car accident, that by the time he took methadone he was already affected by olanzapine he had ingested, and so cannot be regarded as a person acting as a rational adult making an informed choice about taking methadone" (emphasis in the original written direction).
Manslaughter by unlawful and dangerous act - the supply of the methadone
In New South Wales, the elements of the offence of manslaughter are supplied by the common law. Manslaughter by unlawful and dangerous act requires that the unlawful act causing death be an objectively dangerous act. A dangerous act is one that a reasonable person would realise exposes another to an appreciable risk of serious injury. The quality of dangerousness inheres in the unlawful act. The unlawful act must be the cause of death.
To supply drugs to another may be an unlawful act but it is not in itself a dangerous act. Any danger lies in ingesting what is supplied.
There has not been any extended consideration in Australia of the application of the law of manslaughter to the illicit supplier of a drug that, when taken by the person to whom the drug is supplied, causes that person's death. But these issues have been explored by the English and Scots courts and it is useful to consider how these courts have dealt with them.
The Crown's concession in this case, that the supply of methadone to the deceased was not a dangerous act, accords with English authority that the supply of a controlled drug cannot support a conviction for unlawful and dangerous act manslaughter since the act of supply, without more, could not harm the deceased in any physical way. The correctness of this conclusion was affirmed by the House of Lords in R v Kennedy (No 2).
The Court of Criminal Appeal confined its analysis to causation and did not address the anterior question of whether the act of supply of the prohibited drug was relevantly "dangerous". It was disinclined to follow the English approach, that manslaughter by unlawful and dangerous act cannot be established where the supply of the drug is to a person who is a "fully informed and responsible adult". The Court preferred the approach adopted in Scotland in drug homicide cases.
There was no issue in Kennedy (No 2) that liability for unlawful and dangerous act manslaughter could not depend on the act of supply alone. Kennedy (No 2) resolved a controversy concerning the liability of the person who provides assistance to the deceased in injecting the prohibited drug. In question was whether Kennedy's acts of preparing a dose of heroin and giving the syringe to the deceased at the deceased's request amounted to "administering" the drug contrary to the statute. Kennedy's initial appeal against his conviction was dismissed by the Court of Appeal (Criminal Division) in a decision that proved to be controversial and which was later distinguished. Subsequently, the Criminal Cases Review Commission referred Kennedy's conviction back to the Court of Appeal. The Court of Appeal again affirmed the conviction, holding on this occasion that Kennedy had been jointly engaged in administering the drug. It certified the following question for the opinion of the House of Lords:
"When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?"
The House of Lords answered the certified question: "In the case of a fully-informed and responsible adult, never." Their Lordships' analysis of causation proceeded upon acceptance that the law treats informed adults of sound mind as "autonomous beings able to make their own decisions how they will act". They referred with approval to Glanville Williams' statement of the principle:
"I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before."
And to that of Hart and Honoré:
"The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."
In Scotland, the supply of a controlled drug has been found to be a legal cause of the death of an adult who voluntarily consumed the drug. This decision follows Khaliq v HM Advocate, in which the supply of solvents to children was held to be capable of being the cause of injury to children who inhaled the vapours from them. In MacAngus v HM Advocate, a bench of five was constituted to review this line of authority in the light of the decision in Kennedy (No 2). In issue were preliminary challenges to counts charging culpable homicide against two accused. In one case, the unlawful act was the supply of a controlled drug to the deceased and, in the other, the act was the injection of the drug at the deceased's request. In giving the judgment of the High Court of Justiciary, Lord Justice General Hamilton said this:
"We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach. The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other's act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon the ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation."
The references to recklessness in the formulation of the principle are significant. Recklessness, the foundation of culpable homicide in Scots law in cases of this kind, was not "wholly irrelevant" to the causal determination. The law, it was said, could more readily treat the reckless accused as responsible for consequences in the form of the actions of others "to whom he directs such recklessness".
Recklessness does not inform unlawful and dangerous act manslaughter in Australia. The Court of Criminal Appeal did not embrace the reasoning of the High Court of Justiciary in this respect. However, it agreed with the conclusion that the voluntary act of an informed and responsible adult taking a prohibited drug might not prevent the anterior act of supply of the drug from being in law the cause of the drug taker's death. This is because:
"Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act."
This is in line with Professor Feinberg's theory of causation, which suggests that "the more expectable human behavior is, whether voluntary or not, the less likely it is to 'negative causal connection'". It is a theory commended by one commentator as better reflecting the moral dimension of a death occasioned by the supply of an unlawful drug. The alternative view is that expressions of moral judgment should not intrude into the causal inquiry.
The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach.
The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker's voluntary and informed decision.
The Crown's concession that the unlawful supply of methadone was not an act capable of founding liability for manslaughter should be accepted. The supply of the methadone was not an act that carried an appreciable risk of serious injury. That risk arose when the drug was consumed. The cause of the death of the deceased in law was the consumption of the methadone and not the anterior act of supply of the drug.
Acceptance of the Crown's concession required that the appeal be allowed. The Crown submitted that the appropriate consequential order was for a new trial at which it should be permitted to present a case on manslaughter by unlawful and dangerous act based on the appellant's alleged complicity in injecting the deceased with methadone. This appeal is not the occasion to consider the responsibility for manslaughter, of a person who assists an adult at the adult's request with the administration of a prohibited drug. Nor is it necessary to consider whether the Crown should be permitted to run a new case relying on a different unlawful act. This is because the evidence at the trial was not capable of establishing the appellant's complicity in injecting, or assisting to inject, the deceased with the drug. The Court of Criminal Appeal's conclusion to the contrary was based upon a misunderstanding of a concession made by the appellant.
The Court of Criminal Appeal relied on the following evidence as having established the appellant's complicity in injecting the deceased with the methadone. Dr Duflou considered that a puncture mark on the deceased's left elbow had been made eight to 12 hours prior to death. This circumstance pointed to the methadone as having been taken by injection. The deceased was not an experienced methadone user. Injecting methadone requires considerable skill. The appellant's remark that the deceased "got the best outfit, no more" suggested that she had seen the syringe that had been used. The Court went on to say:
"In our opinion the evidence made it entirely unlikely that the victim injected the methadone. It was open to the jury to conclude to the relevant standard, as we would ourselves, that the appellant or Burns administered the injection. The appellant accepted that they were acting in concert. The act of injection was unlawful and in the circumstances plainly dangerous and tragically led to the deceased's death." (emphasis added)
The Court of Criminal Appeal had earlier, correctly, recorded the appellant's concession that it had been open to the jury to find that she was a party to a joint enterprise with Brian Burns to supply methadone to the deceased. However, contrary to the tenor of the Court's statement extracted above, the appellant's concession was not that she was complicit in administering the drug.
There was no direct evidence of how the deceased consumed the methadone. The recent puncture mark provided a basis for inferring that the drug had been injected. However, the evidence supporting the conclusion that the deceased did not inject himself with the drug is less satisfactory. The suggestion that the deceased was not an experienced methadone user was based on the history that he supplied to Dr Roberts and his general practitioner and the fact that he was not a registered methadone user. All that is known of the deceased as an historian is that he gave a false account to Dr Roberts of the drugs that he had taken on 9 February 2007. He did not disclose that he had taken an excessive quantity of Zyprexa, which Dr Roberts had prescribed. Instead, he attributed his drowsy state to having taken Endone. Yet no Endone was detected in the blood and tissue samples that were analysed post-mortem. A second, older, puncture mark on the crook of the deceased's left elbow, might suggest that he was not an inexperienced injecting drug user. It was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone. Moreover, when Ms Malouf arrived, the deceased was in the living room with Brian Burns. The appellant was in another part of the unit. Brian Burns' statement to the effect that the deceased had taken methadone supported an inference that he was present when that occurred. There was no basis for the further inference that the appellant was acting in concert with Brian Burns with respect to any assistance he may have given to the deceased to take the drug.
The prosecution sought and obtained leave to cross-examine Ms Malouf on aspects of her account. Notably, there was no challenge to her evidence that the appellant had not been present in the living room of the premises when she arrived.
The appellant's involvement with Brian Burns in inciting Ms Malouf to tell lies to the police in the course of the investigation was capable of supporting the inference that the appellant was complicit in the supply of methadone to the deceased. It was not capable of supporting the further inference that the appellant had injected, or assisted Brian Burns to inject, the deceased with the drug.
For these reasons there was no order for a new trial upon an allegation of manslaughter by unlawful and dangerous act.
The next consideration was whether there should be an order for a new trial confined to the case of manslaughter by gross negligence.
Manslaughter by gross negligence
Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool.
The appellant had no relationship with the deceased beyond that of acquaintance. He called at her home to purchase prohibited drugs. He took the drugs in her home and suffered an adverse reaction to them in her presence. He left her home at her request while in a compromised state. He died within hours as the result of the combined effect of the drug supplied by the appellant and drugs that he had earlier taken. In question is the source of the legal duty which obliged the appellant to obtain medical assistance for the deceased and how her failure to do so can be said to have been a cause of his death.
The trial judge gave these directions as to the existence and scope of any duty:
"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 toward the drug recipient without being grossly or criminally neglectful."
In the event that the jury were satisfied that the appellant had "voluntarily take[n] upon herself such a duty", her failure to call an ambulance or obtain other medical assistance for the deceased and her conduct in expelling him from the unit when he was in a "grossly vulnerable condition" were the matters identified as capable of amounting to a criminally negligent breach of duty.
The appellant was not in a relationship with the deceased which the law recognises as imposing an obligation to act to preserve life. She had not voluntarily assumed the care of the deceased nor had she secluded him such as to deny him the opportunity that others would assist him. Different considerations may have applied in the trial of Brian Burns. At the appellant's trial, the Crown accepted that she had not been subject to any obligation to seek medical attention for the deceased after he left the unit in company with Brian Burns.
Although the trial judge directed the jury to consider whether the appellant had voluntarily assumed a duty of care to the deceased, this was not the foundation for the duty which the Court of Criminal Appeal identified. It considered that the appellant had come under a duty of the kind found by the English Court of Appeal in R v Evans (Gemma). Gemma Evans supplied her 16 year old half-sister, Carly, with heroin. After Carly exhibited signs of opiate overdose, Gemma failed to seek medical assistance for her. The English Court considered that Gemma had been under "a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly". The duty did not arise because of the sibling relationship, but because Gemma had "created or contributed to the creation of a state of affairs" which she knew, or ought reasonably to have known, had become life threatening. This is a duty of a kind identified by the House of Lords in R v Miller.
In Miller, the accused was found to be criminally responsible for his failure to take reasonable steps to prevent a house fire. Miller was squatting in the house. He fell asleep holding a lighted cigarette and woke to find the mattress on fire. He got up and moved to the adjacent room and went back to sleep. The house was damaged by the fire which had been ignited by the lighted cigarette. Following Miller's conviction for arson, the question certified for the House of Lords was whether the accidental starting of a fire could be the actus reus of arson in circumstances in which the accused had subsequently failed to take steps to extinguish it, either intending to cause damage to property or being reckless as to that consequence. Miller's conviction was upheld. In giving the judgment of the House of Lords, Lord Diplock said:
"I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created …
I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk."
Sir John Smith has suggested that Miller is an example of a general principle, which he stated in these terms:
"[W]henever the defendant's act, though without his knowledge, imperils the person, liberty or property of another, or any other interest protected by the criminal law, and the defendant becomes aware of the events creating the peril, he has a duty to take reasonable steps to prevent the peril from resulting in the harm in question."
Whether this is a statement of the common law of Australia is not an issue presented by this appeal. Miller's criminal responsibility, analysed in terms of a duty to take steps to extinguish the fire, arose because it was his act that imperiled the property. By contrast, here, as earlier explained, the imperilment of the deceased was the result of his act in taking the methadone.
Lord Diplock commented in Miller on the difficulty of defining those who are to be made subject to criminal liability for being bad Samaritans. Why is the appellant liable for the manslaughter of the deceased when Ms Malouf is not? It cannot be because the law imposes a general duty on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers. The supply of prohibited drugs is visited by severe criminal punishment in recognition of the harm associated with their use. The notion that at the same time the law might seek to regulate the relationship between supplier and user, by imposing a duty on the former to take reasonable care for latter, is incongruous. What measures would reasonable care require? Should suppliers of prohibited drugs be required to supply clean needles and accurate information about safe levels of use? The duty that the Court of Criminal Appeal found the appellant to be under was not a general duty of this kind. It accepted the submission that a duty is imposed on the supplier of a prohibited drug in circumstances in which the drug is taken in the supplier's presence. The rationale for that duty is not that the supplier has contributed to the endangerment of the user. Contribution to this state of affairs occurs at the point of supply, when, ordinarily, the supplier will have no control over whether and in what quantities the drug will be consumed. The duty that the Court of Criminal Appeal identified arose because, as it happened, the appellant was present when the deceased suffered the adverse reaction to the drug she had supplied. It is difficult to resist the conclusion that the duty is being imposed in these circumstances because it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user.
However, courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act. The relationship of supplier of prohibited drugs and recipient does not lend itself to the imposition of such a duty. Apart from considerations of incongruity, there is absent the element of control which is found in those relationships in which the law imposes a duty on a person to act to preserve life.
It is open to the legislature to criminalise the failure of the supplier of a prohibited drug to take reasonable steps to provide medical assistance to the drug user. This might be done by making the failure to act itself an offence or by imposing a statutory duty on the supplier with attendant liability for manslaughter in the case of gross breach. Difficult policy choices may be involved in the decision to enact an offence of either kind. The desirability of making drug suppliers responsible for the deaths of drug users is one objective to which reference has been made earlier in these reasons. Another objective may be to minimise the incidence of fatal drug overdoses. Exposing the supplier to the risk of conviction for manslaughter (or other serious offence) when the user dies of an overdose at the supplier's premises, while advancing the former objective, may not necessarily promote the latter. The development of the law along the lines urged by the Crown is a matter for the legislature and not the courts.
This conclusion made it unnecessary to address the parties' submissions respecting causation on the case in criminal negligence. It is sufficient to note that the circumstance that the deceased was capable of leaving and did leave the unit after evincing his disinclination for medical assistance presents a formidable obstacle to proof that the appellant's failure to call an ambulance was a cause of his death.