Court of Appeal (WA)|2013-09-04|Before: Martin CJ

HEATON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 207 (4 September 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HEATON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 207

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Manslaughter - Heroin administered by accused - Heroin toxicity - Whether duty to provide medical attention - Whether breach of duty to provide medical attention - Section 262 of Criminal Code - Whether trial judge erred in directions to the jury - Whether s 24 defence should have been left to jury - Whether additional evidence showed a miscarriage of justice

Bell v The Queen [2003] WASCA 216

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115

Campbell v The Queen [1981] WAR 286

Chan v The Queen (1989) 38 A Crim R 337

Clarke v The State of Western Australia [2013] WASCA 67

Colledge v The State of Western Australia [2007] WASCA 211

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Gillespie v The State of Western Australia [2013] WASCA 149

Jones v United States of America [1962] USCADC 387; 308 F 2d 307 (1962)

Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347

Macaree v The State of Western Australia [2011] WASCA 207

McNamara v The State of Western Australia [2013] WASCA 63

Pacino v The Queen (1998) 105 A Crim R 309

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

R v Hile [1999] QCA 17

R v MacDonald & MacDonald [1904] St R Qd 151

R v Young [1969] Qd R 417

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

Wilson v The State of Western Australia [2010] WASCA 82

1 MARTIN CJ: Each of the appeal against conviction and against sentence should be dismissed for the reasons given by Pullin JA with which I agree.

2 PULLIN JA: This is an appeal against conviction and against sentence.

3 On 18 April 2012, the appellant was convicted following trial by jury in the District Court of Western Australia of the manslaughter of Karen Eileen Scorgie (the deceased) on 30 September 2010. He was sentenced on 28 June 2012 by Keen DCJ to 5 years and 6 months' imprisonment.

4 The appellant's case in the appeal against conviction filed on 14 November 2012 contains eight grounds of appeal. On 23 November 2012, Buss JA granted leave to appeal on grounds 1 to 5 and referred the application for leave to appeal on grounds 6 to 8 to the hearing of the appeal.

5 Buss JA also granted leave to appeal on the appellant's sole ground of appeal in the appeal against sentence.

6 On the evening of 29 September 2012, the appellant and the deceased were drinking at the home of Ms Ruth Gepp and Ms Kerry Dunn in Burswood. Later that night, the appellant and the deceased left the house together and went to a residence at Beechboro Road, Morley. The appellant told Ms Gepp that he would bring the deceased home at 7 am the next morning.

7 At the Morley house were two of the appellant's acquaintances, Mr Robert Bramich and Mr Wayne Baldwin Mr Baldwin was making home-baked heroin. During the night, heroin was consumed by some of those present, but there was no evidence that the deceased consumed any. The appellant and the deceased stayed up drinking alcohol.

8 Some time in the morning of 30 September 2010, the deceased said that she would like to take some heroin. She had not used it before. The appellant was seen to inject the deceased with heroin. At the time, there was a discussion between the appellant and Mr Bramich about the strength of the dose being administered to the deceased, with Mr Bramich cautioning the appellant that the dose the appellant administered should not be any stronger than that for a first time user.

9 That morning, Ms Gepp telephoned and spoke to the deceased twice. The first time was at about 7 am and Ms Gepp said that the deceased

sounded intoxicated. Ms Gepp spoke to the deceased again at about 11 am and she seemed 'rested'. Some time after the second phone call, the deceased fell asleep. There was evidence that heroin users often fall asleep after taking a dose of heroin and some witnesses called this going 'on the nod'. Heroin is a narcotic which means it has the quality of inducing sleep. However, the deceased fell so heavily asleep that she could not be woken. An expert, Professor Joyce, gave uncontradicted evidence that an inability to rouse a person who has consumed heroin is a 'serious warning sign' that something was wrong (ts 104). In the afternoon, the appellant removed the deceased from the Morley house and placed her in his car. She was unconscious. This evidence came from a statement of the appellant which he gave to a coronial officer later in the day and which was tendered at trial by consent of both parties. The content of the statement is set out later in these reasons in relation to the proposed ground 8. At this stage, all that is necessary to note is that the statement of the appellant read 'I couldn't wake her up so I carried her out to my car as I didn't want to leave her in that house'. The two other men were asleep in the house when the appellant left.

10 The appellant then drove to a residence in Cloverdale to pick up Ms Tarlee White and her boyfriend, Mr Simon Cattalini. The appellant had promised Ms White that he would drive them to Scarborough in order to purchase amphetamines. Ms Tanya Kickett lived in another unit at the Cloverdale address. She was putting rubbish into a bin when the appellant arrived in his car with the deceased. The appellant saw Ms Kickett, alighted from his car and helped her load rubbish into the bin. Ms Kickett gave evidence that she noticed the deceased in the passenger side seat of the appellant's car. She heard her making gargling sounds. Ms Kickett saw Ms White approach the car, and the appellant told her to get away from the car. However, Ms White got into the car and sat in the back seat on the passenger side. Ms Kickett observed that Ms White was holding the head of the deceased. Ms White immediately said to the appellant that the deceased needed resuscitation on the back seat of the car. The appellant responded to this by telling Ms White that the deceased was 'fine' and to leave her where she was (ts 165). Mr Cattalini sat in the back seat of the car on the driver's side and the appellant then drove towards Scarborough.

11 Ms White said that the deceased was making gargling noises and that her head was tilted back and she didn't 'look right' (ts 164). Ms White held the deceased's head up during the trip to Scarborough. Ms White repeatedly asked the appellant if the deceased was alright and said she needed an ambulance. The appellant said the deceased was fine and that Ms White should leave her alone and should not touch her. When Ms White tried to take the deceased's pulse the appellant said not to touch her. Mr Cattalini gave evidence that he tilted the deceased's head forward and that she seemed to be breathing normally after that and that she had 'good colour' (ts 154). However, he added that 'we' tried to rouse her several times but she did not wake up (ts 157).

12 When the appellant was still at the Cloverdale address, Ms Dunn telephoned the appellant. This was at about 3.30 pm. The appellant told Ms Dunn that he was in the driveway of another friend's house and told her that he was 'coming home' (ts 179). Ms Dunn heard gargling noises in the background and asked the appellant if she could speak to the deceased. The appellant said that she could not and said that the deceased had taken something she was not used to.

13 Another telephone call was made by Ms Gepp at about 4 pm. She asked the appellant to bring the deceased home. The appellant said that the deceased was asleep and that he was on his way to bring her back to Ms Gepp's house.

14 Instead of taking the deceased back to the house of Ms Gepp and Ms Dunn, the appellant made the journey to Scarborough. At the Scarborough Beach front, either Ms White or Mr Cattalini left the car and returned shortly afterwards with amphetamines. Each of Ms White, Mr Cattalini and the appellant injected themselves with amphetamines.

15 The appellant then drove to a service station, and about this time the occupants of the car noticed that the deceased had stopped breathing. The appellant joined Mr Cattalini in rendering first aid to the deceased. An ambulance was also called. The deceased could not be resuscitated and she was pronounced dead at Sir Charles Gairdner Hospital that night at 7.29 pm. She died from acute combined heroin and alcohol intoxication. Death would not have occurred but for the heroin which had been administered.

16 The trial judge summed up to the jury and provided them with a flow chart which indicated that when considering s 262 of the Criminal Code (WA), the jury had to answer a number of questions affirmatively before they could convict. The flow chart also showed that the answer 'no' to any of the questions would result in an acquittal. The flow chart showed that the jury had to decide whether or not the appellant had charge of the deceased. Secondly, if so, was she unable to withdraw herself from that charge? If yes, was she unable to provide herself with the necessaries of life? If yes, did the appellant omit to provide the deceased with the necessaries of life? If yes, was the appellant criminally negligent in omitting to provide the necessaries of life to the deceased? The only parts of the directions which are called into question are contained in the following extract:

Now, the third thing that the State must prove, beyond reasonable doubt, is that [the appellant] unlawfully killed [the deceased]. Unlawfully simply means not authorised, justified, or excused by law. Under our criminal law any person who causes the death of another, directly or indirectly, by any means whatever is deemed to have killed that person. Now, this issue of causation is to be determined by you applying your common sense to the facts as you find them to be. You should of course remember in deciding causation that you are attributing legal responsibility in a criminal manner. Now, members of the jury, our Criminal Code provides for a duty upon certain persons to provide necessaries of life for another person. Somewhat old-fashioned language, but I'll come to it. What I propose to do is to provide you with a copy of section 262 of the Criminal Code which sets up this duty.

...

And you will see that it provides: it is the duty of every person having charge of another, who is unable by reason of age, sickness, mental impairment, detention or any other cause to withdraw himself from such charge and who is unable to provide himself with the necessaries of life whether the charge is undertaken under a contract or is imposed by law or arises by reason of any act, whether lawful or unlawful, of a person who has such charge to provide for that other person the necessaries of life. And he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

So you'll see from the section that a duty is imposed on a person having charge of another person, who is unable by reason of various factors, and relevantly in this case, maybe sickness or any other cause, and who is unable to provide himself with the necessaries of life. And the duty is to provide such necessaries of life for that other person. And such a person in charge of that person is held to have caused any consequences which result to the life or health of that other person by reason of any omission to perform the duty.

Now, members of the jury, if you then go over the page to that flow chart. You will see that the first question for you to decide on this issue, arising under section 262, is whether or not the accused had charge of the deceased. As I say you can find that at the top of the flow chart ... [I]f a person voluntarily chooses to undertake or assumes the charge of another person and secludes that person so as to prevent others from rendering aid to that person he is capable of being in charge of that person. Now, members of the jury, it's a matter of fact and therefore it is a matter for you whether or not the accused was in charge of the deceased. If you find that the accused was in charge of the deceased, before reaching the address at Cloverdale, it is also a matter of fact for you to determine on all the evidence and the facts as you find them to be as to whether that situation continued. That is to say, whether he remained in charge of the deceased, including that he secluded her so as to prevent others from rendering aid, notwithstanding that the others had got into the car at Cloverdale.

Now, in relation to that the State says that the accused had put her in the car at Morley. He was in charge of her. Ms White, Tarlee White, had never met [the deceased] before. It was the accused who chose to take her with them. There was continuing argument towards Scarborough. Tarlee White wanted to go to the hospital to get help and the accused said, 'No, she'll be fine', words to this effect. She said that she tried to feel for the pulse, that the accused told her not to touch her. The defence says in relation to this continuing being in charge, that the evidence reveals - and I will come to the evidence shortly - that the accused didn't stop these two other people in the car paying attention to [the deceased]. And they all acted very quickly once they observed what was wrong. The accused didn't stop them paying attention to her.

The defence went on to say that you might find that when the accused took [the deceased], he did assume her care to the exclusion of others. But when the other two got in the car, they were in a position to monitor and give care. They had phones, they could have said, 'Don't go to Scarborough, go elsewhere.' And so the defence says that that is a matter that you should look at to determine whether he remained in charge. So that is the first part of the flow chart and it deals with whether the accused had charge of [the deceased] and, as I say, it's a matter for you to determine as a matter of fact.

Now, if you find that that charge does not exist, he didn't have charge of her, then as provided on the left-hand side of the chart you would acquit. It wouldn't be necessary for you to go any further. Now, in this case, the other person is the deceased and that other person must not be in a position to withdraw herself from that charge because of sickness or some other cause. Now, rather than keep saying sickness or some other cause, I'm just going to generically refer to that as an infirmity. You'll know what I mean. In the present case the State says that the deceased was, in effect, comatose. It's a matter for you to decide, it doesn't appear to be much in issue in this case, but it is a matter for you to decide as to whether or not, as a matter of fact, she was comatose and whether the deceased was unable by reason of her infirmity to withdraw herself from the charge. You will also see, moving down the right-hand column, that you need to be satisfied as to whether she was unable to provide for herself with the necessaries of life. Again, it's a matter for you to decide and, again, wouldn't appear to be much dispute about that. But if either of those questions are answered in the negative, that would mean that she could withdraw from the charge of the accused and/or provide the necessaries of life to herself and you would acquit. But if the answer to those two questions are in the affirmative, then you move down the right-hand side of the flow chart to the question: did the accused omit to provide the necessaries of life?

Now, as a matter of law, necessaries of life may include medical or access to medical attention or treatment. Accordingly, returning to the flow chart, to convict, the State must satisfy you beyond reasonable doubt: (1) The accused had charge of the deceased; (2) The deceased was unable by reason of some infirmity - I'm using that word - to withdraw herself from the charge. (3) The deceased was unable to provide herself with the necessaries of life, and (4) The accused failed to provide the necessaries of life to her. Now, if the State has failed to satisfy you beyond reasonable doubt on any of those matters then, as you'll see from the left-hand side of the chart, you would acquit.

If you're satisfied beyond reasonable doubt as to all of those matters, you still need to be satisfied before you can convict the accused of unlawfully killing [the deceased] that he was criminally negligent. And you'll see that that takes you to the last question on the right-hand column. I have spoken of the [appellant's] omission to provide the necessaries of life as being part of the section. In the present case, there is no suggestion that the accused intended to cause the result, that is the death. This is a case of alleged omission by criminal negligence. Now, you must be satisfied beyond reasonable doubt that the [appellant's] omission to act exhibited the degree of negligence required by the criminal law.

In this regard, you must ask yourself whether the [appellant's] breach of duty, if you find it to exist, was so serious as to constitute a crime. To justify a criminal conviction the negligence must be a departure from the standard of care of the average person that is gross or grave or display such a degree of recklessness by the standards of a lay person, not an expert, faced with the circumstances that existed and that you find to have been proved, as would justify criminal conviction and punishment. It's more than just negligence as would be required to establish negligence in a civil case. It must be such that you can say that it is blameworthy to a degree which is deserving of punishment. Whether it is of that quality is entirely a matter for you, members of the jury, and your judgment. So that's the offence with which the accused has been charged (ts 269, 270 - 273).

17 The five grounds of appeal for which leave to appeal has been granted mainly allege error in the directions given by the trial judge about s 262 of the Criminal Code.

18 The appellant was charged with manslaughter. That required proof that the appellant killed the deceased. If a person comes under the duty set out in s 262 of the Criminal Code and if a person dies in consequence of that breach of duty, then the person committing the breach is held to have caused that death and therefore killed that person. Such a killing would be unlawful unless authorised, justified or excused by law. One of the elements of a charge of manslaughter is that the killing was unlawful. Where the prosecution alleges, as it did here, manslaughter by breach of the duty to provide the necessaries of life, a breach of the duty imposed by s 262 becomes an element of the offence. That reasoning is based on what was said in Macaree v The State of Western Australia [2011] WASCA 207 [26], which was dealing with the duty imposed by s 266 of the Criminal Code.

It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

20 Ground 1 alleges that the trial judge erred in law in failing to direct the jury:

(i) that, at law, there is no positive duty on a person to act to prevent the death of another and the mere failure to act by a person does not mean that person has caused the death of another unless the law imposes a legal duty upon a person to act;

(ii) to consider whether the deceased's voluntary actions in seeking out and ingesting heroin (albeit with the assistance of the appellant ...) was such that the cause of the deceased's death was the deceased's own free and informed actions and not as a result of any failure on the part of the appellant to act.

21 The appellant made reference to what the High Court said in Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334. That case concerned a charge of manslaughter under a statute, although the statute in that case incorporated criteria derived from the common law. While the statutory provision codified aspects of the criminal law, it did not exclude the common law: [5] and [6].

22 Speaking about the common law, the plurality said:

As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life [97].

23 The appellant seized upon these words and submitted that the trial judge was obliged to tell the jury this. The submission has no merit. The plurality in Burns went on to say immediately after the passage quoted above that 'an obligation may be imposed by statute ...': [97]. Section 262 of the Criminal Code is a section imposing such an obligation. Even at common law '[a] person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty': [97]. If he had wished, the trial judge could have begun his summing up with a discursion about the common law and made a comment like the one made in Burns quoted above. However, there was no error in not doing so. The task of the trial judge was to direct the jury about the Criminal Code provisions and that is what he did.

24 As to part (ii) of this ground, a direction to the effect that the deceased chose to consume heroin with the appellant's assistance has no bearing on the question whether, as a matter of law, the elements of s 262 of the Criminal Code had been made out.

(2) Further, the use in the direction to a lay jury as to causation as set out by Burt CJ in Campbell v R [1981] WAR 286 at 290 using, as it did, legal terminology did not assist the jury to understand the principles to be applied by them in determining whether the appellant had caused [the] death of the deceased such that a miscarriage of justice occurred.

27 Ground 2 alleges error in that part of the direction quoted above, where his Honour said:

Under our criminal law any person who causes a death of another, directly or indirectly, by any means whatever is deemed to have killed that person. Now, this issue of causation is to be determined by you applying your common sense to the facts as you find them to be. You should of course remember in deciding causation that you are attributing legal responsibility in a criminal manner (ts 269).

This direction comes from the decision of Burt CJ in Campbell v R [1981] WAR 286, 290. The principle was approved by the High Court recently ... in Burns v The Queen [2012] HCA 35 [9]. But French CJ went on to say:

Those observations are not intended to suggest the form of direction that should be given to a jury.

It is submitted that the appropriate direction as to causation included a starting point that what an adult of sound mind does acting on a free, deliberate, and informed decision is not, in law, treated as having been caused by another.

29 In Campbell v The Queen [1981] WAR 286 whether or not, in directing a jury about causation, the jury should be told that (in that case) dangerous driving was a 'substantial' cause of death, or 'something more than de minimus'. His Honour expressed no concluded opinion, but added:

It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter (290).

30 All that French CJ said in his judgment in Burns was that Burt CJ was not, in discussing causation, purporting to say exactly what words should be used in directing a jury. Nor did French CJ say that words to the effect of Burt CJ's obiter should never be used.

31 The words used by the trial judge were sufficient to convey what the jury needed to know about causation. The trial judge did not, in addition, need to direct the jury that the deceased had voluntarily sought out and ingested heroin, which is illegal and potentially dangerous. That would have been wrong when giving directions about what caused the death of the deceased. Section 262 of the Criminal Code provides that if the duty arose in the circumstances referred to and there was a breach of the duty, then the appellant 'is held to have caused any consequences which result to the life or health' of the deceased by reason of the omission to perform the duty. That the deceased voluntarily ingested heroin is irrelevant to the question of whether the appellant breached the duty to provide the necessaries of life, thereby causing the death of the deceased.

33 This ground contains a collection of assorted assertions, some repetitive, about alleged deficiencies in the summing up. The first assertion was that the trial judge failed to direct on the meaning of the phrase 'having charge of another'. The appellant does not say why an explanation of the phrase was required. In written submissions, the appellant refers to a passage in Martin CJ's reasons for decision in Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 where the Chief Justice said:

Put another way, it seems to me that in s 262 the reference to a person 'having charge of another' is a reference to a person who, by reason of one or more of the various disabilities identified in the section, lacks the capacity to direct or control their own destiny and is therefore dependent upon the person 'having charge' of them [39].

34 That passage does not assist the appellant in any respect. It merely refers to the need for proof that the accused has 'charge' of a person who, for the reasons mentioned in the section, is unable to withdraw himself or herself from such charge, and who is unable to provide himself or herself with the necessaries of life.

35 The appellant pointed out that the word 'charge' is not defined in the Criminal Code. The word 'charge' in the phrase 'having charge of another' does not have any particular technical meaning that required explanation to the jury in the circumstances of this case. It might in some cases, but not this one.

36 The appellant also asserted that the trial judge erred because he did not direct the jury that a person has charge of someone only if the effect of the action is 'to seclude the person so as to prevent others rendering aid to that person'. This submission is based upon the reasons of Yeldham J in R v Taktak (1988) 14 NSWLR 226 at 245 where his Honour referred to the case of Jones v United States of America [1962] USCADC 387; 308 F 2d 307 (1962). In Jones, reference was made to 'four situations' where the failure to act may constitute the breach of a duty. One was where a statute imposed a duty to care for another; the second was where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

37 Taktak was a case where the deceased was affected by drugs, but the drugs had not been administered by the accused. However, the accused took the drug-affected girl to premises and attempted to revive her. The point in that case was that the victim was removed from a location where others may have helped her to a location where she was denied that chance. This appears from the reasons of Yeldham J:

The question here is whether there was evidence for the jury that the appellant had voluntarily assumed the care of a helpless human being. Certainly the deceased was helpless, as the appellant in his record of interview conceded. The question whether, by taking her to ... premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised ... Although, if not taken by the appellant to [the premises] the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases ... is regarded as significant (246).

[T]here was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might have rendered or obtained aid for her (246).

[T]he duty will also arise where one person has voluntarily assumed the care of another who is helpless, through whatever cause and so secluded such person as to prevent others from rendering aid (250).

40 Section 262 is not a restatement of the common law and does not require a direction about seclusion. However, the seclusion of another, that is assuming the care of a helpless person and removing them from a location where others may have rendered assistance, will be a relevant factor in deciding whether a person has taken charge of another such that a duty under s 262 arises.

41 However, this ground raises a moot point. It is moot because the trial judge did direct the jury that it should consider whether the appellant 'remained in charge of the deceased, including that he secluded her so as to prevent others from rendering aid' (ts 271). To 'seclude' someone is to 'keep apart'. This can be physically apart or by the exercise of control. It was open to the jury to conclude that keeping the deceased in his car and away from medical treatment that others thought necessary was to seclude the deceased.

42 The appellant also contends that the trial judge failed to identify for the jury the facts which, as a matter of law, would mean that 'no duty' arose. The trial judge had no such obligation. His task was to direct about the meaning of s 262 of the Criminal Code, and that task was performed.

43 Finally, the appellant, in this ground, asserts that in the case of a volunteer, the duty to provide the necessaries of life only arises once the volunteer appreciates that the other person's life is in peril. The appellant submitted that the trial judge should have directed that the jury had to decide beyond a reasonable doubt that the 'appellant appreciated that the deceased was exhibiting signs of acute heroin toxicity ("overdosing") [and] not merely exhibiting signs that she was intoxicated with heroin ("on the nod")' before a duty arose.

44 That submission has no merit and is wrong. The duty imposed by s 262 arises when a person takes charge of another who is unable, for the reasons stated in s 262, to withdraw from such charge, and unable to provide himself or herself with the necessaries of life. There was no superadded requirement going to the existence of the duty that the appellant had to 'appreciate' that 'the deceased was exhibiting signs of acute heroin toxicity'.

45 Evidence about whether the appellant appreciated that the deceased was exhibiting signs of overdosing or was merely 'on the nod', relates to whether there was a breach of the duty, not about whether the duty existed: Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115, 119. Ground 3 has no merit. Ground 3 must be dismissed.

(4) The Learned trial judge erred in law in failing to direct the jury as to negligent manslaughter by omission that the State must prove beyond reasonable doubt:

(i) the appellant owed the deceased a duty to provide necessaries under s 262 Criminal Code

(ii) the appellant breached the duty

(iii) the breach of duty caused the deceased'[s] death and

(iv) the breach of duty was gross or criminal[.]

47 This ground has no merit. It asserts that the trial judge did not do what the trial judge in fact did. The trial did direct the jury that the State had to prove beyond reasonable doubt that the appellant owed the deceased a duty to provide necessaries under s 262; that the appellant breached the duty; that the breach of duty caused the deceased's death; and that the breach of duty was gross or criminal.

49 By ground 5, the appellant alleges that the trial judge erred in failing to direct the jury that gross negligence or criminal negligence in the context of a criminal prosecution for manslaughter means 'negligence so great that the jury must determine that [the appellant] had a wicked [evil] mind in the sense that he was reckless and careless [as to] whether [the deceased] died or not'.

50 Ground 5 has no merit. Once again, the appellant submits that the trial judge did not do what the trial judge in fact did. The trial judge gave very clear directions in terms that the breach of duty must be so serious as to constitute a crime. The direction was that negligence must be 'gross or grave or display such a degree of recklessness by the standards of a lay person, not an expert, faced with the circumstances as they existed', and that the degree of negligence must 'justify criminal conviction and punishment' (ts 273). The trial judge went on to direct that the degree of negligence 'is more than just negligence as would be required to establish negligence in a civil case', and that the negligence 'must be 'blameworthy to a degree which is deserving of punishment' (ts 295).

51 The court said in the context of s 266 of the Criminal Code in Macaree that whatever 'epithets or comparisons are used, if they are used at all, the message that must be brought home to the jury is that the task that they are concerned with is whether the appellant's breach of duty was so serious that in their opinion it constituted a crime': [49]. The trial judge's direction conveyed to the jury that criminal negligence had to be established. This ground has no merit.

53 By this proposed ground, the appellant alleges that the trial judge erred in not directing the jury as to s 24 of the Criminal Code, namely that the State must negative that the appellant had an honest and reasonable, but mistaken, belief that the deceased was merely intoxicated with heroin, but not exhibiting signs of acute heroin toxicity until immediately before medical assistance was called for.

54 At the trial, the appellant was represented by an experienced criminal lawyer (who did not appear for the appellant in this appeal). He submitted to the trial judge that s 24 ought not be left to the jury. He explained to the judge that he did not want s 24 left to the jury because counsel did not want the jury to dwell on the question about the reasonableness of the appellant's belief in the state of affairs that existed. Counsel said that 'to ask [the jury] to turn their minds to whether the belief he had about her state was objectively reasonable is arguably to do him a disservice' (ts 210).

55 When it is alleged that a forensic decision of counsel has given rise to a miscarriage of justice, the appellate court does not examine the subjective thought processes of counsel. The correct question is not why the forensic decision was made, but could there be a reasonable explanation for the making of that forensic decision: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [107].

56 However, even if there was a valid forensic reason for the decision to ask the trial judge not to direct on s 24 (and there was in this case), the trial judge is still bound to give directions about all defences which are reasonably open on the evidence. Counsel for the appellant acknowledges that the appellant had an evidentiary burden to discharge before s 24 had to be left to the jury. In considering whether a particular defence should be left to the jury, the judge must ask himself or herself whether there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt if each of the elements of the defence had been negatived: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32] (French CJ, Crennan & Kiefel JJ).

57 The first question then is whether there was any evidence of an honest, but mistaken, belief of the appellant that the deceased did not need medical treatment. The appellant did not give evidence or participate in an audiovisual record of interview with the police so there was no direct evidence of his belief. The appellant submits that the appellant's belief that the deceased was not in need of medical attention may be inferred from evidence that the deceased was seen talking quietly with the appellant after she had taken heroin (ts 124), that the appellant told people that the deceased had been drinking and was asleep (ts 155), that the deceased's breathing was laboured at times while she was in the car, but her breathing returned to normal when her head was adjusted (Mr Cattalini, ts 154), that one of the passengers in the car did not notice anything unusual about the deceased's condition (Mr Cattalini, ts 156 - 157), and that Professor Joyce, a pharmacologist, gave evidence that a lay person may not notice the change in respiration in the case of delayed heroin death (ts 97 - 98).

58 The fact that the appellant talked 'quietly' to the deceased, is not capable of giving rise to the inference that the appellant believed that the deceased did not need medical attention. That happened before the deceased lapsed into unconsciousness. The incomplete reference to the evidence of Mr Cattalini does not assist. His evidence was that while her breathing returned to normal, she could not be roused from her sleep. Finally, Professor Joyce did not say that a person displaying the signs of distress that the deceased showed would not be noticed as suffering from heroin overdose. Taken altogether, these points do not support the inference contended for.

59 There being no evidence of honest belief, it is not necessary to consider whether the alleged belief was also reasonable.

60 There was no evidence which justified leaving a s 24 defence to the jury.

61 This proposed ground has no merit. Leave to appeal on this ground should be refused.

Alternatively, if this Honourable Court determines that the appellant had not established an evidentiary basis for the 'defence' under s 24 Criminal Code to be left to the jury then the decision by the appellant not to give evidence was not a free and informed decision such that a miscarriage of justice has occurred.

63 The appellant elected not to give evidence after taking advice from his experienced trial counsel. The appellant was given leave to adduce additional evidence in this appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), as there was no objection from the respondent. The evidence consisted of an affidavit of the appellant which deposed that he was not warned by his counsel that if he did not give evidence he would have no foundation for a s 24 defence. He deposed that if he had been told this he would have elected to give evidence and would have testified that the first time that he thought the deceased was 'overdosing' was when he was at the service station at Scarborough Beach Road. His affidavit says:

Prior to this I thought she was just 'on the nod'; that is intoxicated with heroin but not in trouble.

I have previously seen people overdose and they were fine when they walked around.

I was unaware that the deceased had never used heroin before.

When I helped her to the car in Beechboro she was not unconscious but walked to the car with my assistance.

64 That affidavit reveals that the accused now decides that he wanted to give evidence contrary to exhibit 4, which was his statement made on the day of the incident that he carried the deceased to the car because she was asleep.

65 Even if that evidence had been given at trial, there was still no evidence sufficient to enliven a s 24 defence. His affidavit simply goes to the honesty of his belief about the condition of the deceased. The other requirement in s 24 is that the belief be reasonable.

66 The evidence at trial, which is not contradicted by the appellant in his statement, is that the deceased could not be woken in the car on the journey to Scarborough, and that even before that journey to Scarborough began, the deceased was displaying signs of distressed and obstructed breathing. At best, the evidence showed that this could only be stopped by holding the deceased's head in a particular position. If the defence was to be open, it would have to be on the basis that there was some evidence of an honest and reasonable belief by the appellant that the deceased did not need medical attention. Not only did the deceased show obvious signs of needing medical attention, but the appellant was told that she needed medical attention and he rejected what he was told. If the appellant had given the evidence in his affidavit at trial, s 24 would still not have been open because there was no evidence to sustain the objective aspect of the defence.

67 This proposed ground has no merit. Leave to appeal on this ground should be refused.

The statement of the appellant made on 30 September 2010 to a police officer ('the statement') was inadmissible both under the provisions of [the] Criminal Investigation Act 2006 ss 118 and 154 [sic s 155]; alternatively, on the basis that [the] statement was not made voluntarily or was obtained unfairly; and the admission of the inadmissible statement was such that a miscarriage of justice has occurred.

69 By this proposed ground, the appellant submits that a document admitted into evidence at the trial, and which became exhibit 4, was inadmissible. The document was the written statement signed by the appellant on 30 September 2010. It became an exhibit by the consent of counsel for both parties. Thus, there was no error of law by the trial judge. If this ground is to succeed, it would be necessary for the appellant to show that a miscarriage of justice occurred.

70 There was no miscarriage of justice for the following reasons.

71 The statement of the appellant was made on the day that the deceased died. The statement was taken by Senior Constable Morgan who was attached to the Coronial Investigation Unit. The deceased had died suddenly and so the coronial team was called in to investigate the cause of death. Senior Constable Morgan went to Sir Charles Gairdner Hospital Emergency Department where the deceased had been taken after being collected by ambulance at Scarborough. Senior Constable Morgan made enquiries of the paramedics, who identified the appellant as one of the persons who had been in the company of the deceased at Scarborough when the ambulance had attended. The appellant, Mr Cattalini and Ms Gepp were taken into a room and informed about the death of the deceased.

72 After they had composed themselves, Senior Constable Morgan explained his role with the Coroner's Office, which was to investigate the death and obtain the truth for the purpose of submitting a report to the State Coroner. He explained to the appellant, Mr Cattalini and Ms Gepp that he was not talking to them because he suspected that they had done anything wrong. However, he did inform them that if they told him that they had physically injected the deceased with a drug that contributed to the death of the deceased, then it would be a matter for a criminal investigation. The appellant was asked if he was prepared to make a statement, even though he was under no obligation to do so. He agreed and the statement was taken from him.

73 The appellant's statement explained that he had taken the deceased to a 'mate's house' at Beechboro, and then continued:

We sat around drinking and smoked a few pipes of cannabis and we both fell asleep around 4 am. I'd say we woke up about 10.30 am and then we had a coffee and something to eat. Then another friend of my mate's rocked up and I'd say that's maybe where [the deceased] got the heroin from. I didn't know she was getting any and I don't think she planned to get any, it just happened. That would probably be around 3 pm. Then she came into the lounge room and sat down and dropped off to sleep in front of me. I couldn't wake her up so I carried her out to my car as I didn't want to leave her in that house. Then I drove to my friend Simon's house, picked him up and drove to the beach as I thought it would be good for [the deceased]. Simon lives in Whatley Crescent but I picked him up from Cloverdale at his girlfriend's house. When we got to the beach we parked up at Scarborough front. We still couldn't rouse [the deceased] so we checked for a pulse and couldn't find one. Me and Simon lifted her onto the ground and tried CPR. I then called an ambulance.

74 The appellant's counsel submitted that this statement contained an admission. When asked to identify the admission, she said it was the admission that the deceased 'dropped off to sleep in front of me. I couldn't wake her up so I carried her out to my car ...'. To admit this was to admit that the deceased showed signs of heroin overdose and the need for medical attention.

75 The appellant's submissions contended that s 118(3) of the Criminal Investigation Act 2006 (WA) applied to make the statement inadmissible. That subsection reads:

On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -

(a) the evidence is an audiovisual recording of the admission; or

(b) in the absence of an audiovisual recording of the admission -

(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or

(ii) the court decides otherwise under s 155.

76 The appellant made no reference to s 118(4), to which the respondent's written submissions referred. That subsection reads:

Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.

77 It is clear from the circumstances set out above that there were no reasonable grounds available to Senior Constable Morgan to suspect that the appellant had committed the offence.

78 Counsel for the appellant acknowledged this and then moved to the alternative submission which was that the statement was not made voluntarily. The appellant submitted that it was obtained under inducement, that is, as a result of a threat or promise of favour or advantage, and that it was inadmissible for that reason. If it were true that the statement was made under threat or inducement, it would not be voluntary and would have been inadmissible: see R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] and Clarke v The State of Western Australia [2013] WASCA 67 [17], [18] and [1].

79 However, there was nothing at all in the circumstances which sustains the submission that the admission about the condition of the deceased was made involuntarily. There was no inducement offered.

80 There is no merit in this ground and therefore leave to appeal on this ground should be refused.

81 The appellant was sentenced to 5 years and 6 months' immediate imprisonment and made eligible for parole.

82 The appellant's single ground of appeal alleges that the sentence was manifestly excessive. The appellant refers to two other cases where drugs were administered by the offender, leading to the death of the person receiving the drugs. The two cases were Bell v The Queen [2003] WASCA 216 and R v Hile [1999] QCA 17.

83 In Bell, as in this case, the appellant injected the deceased with an illegal drug that is not particularised in the judgment. After administering the drug, the deceased went to sleep. The next morning, Bell told one of the other persons at his home that he was taking the deceased home. He took her to his car, by which time she must have been unconscious. The similarity between the two cases then end. Bell disposed of the deceased's body which remained undiscovered for three years. He lied to the police about what had occurred, and insisted that he had left the deceased alive at a bus stop. However, when the body was discovered three years later, he made full admissions and pleaded guilty to manslaughter at the first available opportunity. On appeal, Bell's sentence was fixed at 5 years' imprisonment under the transitional regime.

84 The appellant submits that this case had none of the aggravating features present in Bell. It is not true that there were none of the aggravating features. As in Bell, the appellant lied to those who rendered first aid at Scarborough, and to the police conducting the coronial inquiry. He did not admit criminal responsibility. Although Bell's conduct in disposing of the body was an aggravating feature, he was entitled to a discount for someone who pleads guilty at the first opportunity. Taking into account all of those circumstances, the case of Bell does not support the argument that the appellant's sentence was manifestly excessive.

85 In the case of Hile, there is no significant difference between the two cases. The offender had a long history of substance abuse. As in the present case, the deceased in Hile was not a regular user of heroin. The offender administered heroin to the deceased that he knew to be of very high purity. Shortly after the injection the deceased began to convulse. The offender performed CPR while another person called an ambulance. Like the appellant in this case, the offender lied about what had happened. However, he subsequently made full admissions to the police and pleaded guilty to the offence of manslaughter. In Hile, aid was administered immediately after the deceased began to show signs of overdose. In this case, the appellant ignored the deceased's plight and rejected the suggestions of others that she needed medical assistance. If anything, the appellant's culpability is greater than the conduct of the offender in Hile, who was sentenced to 6 years' imprisonment.

86 There is a great variation that attends the circumstances giving rise to the offence of manslaughter. The sentence imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum available penalty and the personal circumstances of the offender: Colledge v The State of Western Australia [2007] WASCA 211 [18] - [19].

87 The appellant's written submissions assert that a sound sentencing range for a case such as the present is 3 to 4 years. No authorities are cited in support of this proposition. The appellant has not put forward anything which establishes that the sentence was manifestly excessive.

89 MAZZA JA: I agree with Pullin JA and Martin CJ that both these appeals must be dismissed. My reasons are as follows.

90 On 18 April 2012, the appellant was convicted, after trial by jury in the District Court, of the manslaughter of Karen Eileen Scorgie, contrary to s 280 of the Criminal Code. On 28 June 2012, he was sentenced to 5 years 6 months' imprisonment with eligibility for parole.

91 The appellant has appealed against conviction and sentence. There are eight grounds of appeal against conviction. Leave to appeal has been granted in respect of grounds 1 to 5. The question of leave with respect to the remaining grounds was referred to the hearing of the appeal. There is only one ground in respect of the appeal against sentence. Leave to appeal has been granted in respect of that ground.

92 On 29 September 2010, the deceased, who was 27 years old, was visiting her friends Ms Ruth Gepp and Ms Kerry Dunn at their home in Burswood. The appellant, who may well have had some romantic interest in the deceased, also visited the house. Later, the deceased accompanied the appellant to premises in Beechboro Road, Morley, occupied by two friends of the appellant, Mr Bramich and Mr Baldwin. Mr Baldwin was making home-baked heroin.

93 During the morning of 30 September 2010, the deceased indicated that she wanted to take some of the heroin. Although she was a user of methylamphetamine, she had not used heroin before. The appellant was a user of illicit drugs, particularly home-baked heroin. A syringe containing a quantity of home-baked heroin was prepared. It contained less solution than the others had received. Mr Bramich testified that he saw the appellant inject the deceased with the heroin. There was, at the time, a discussion about the strength of the heroin that was being injected and the need to make sure that it was not too strong, having regard to the fact that the deceased was a first-time user.

94 The deceased did not exhibit the signs of overdose straight away. She was seen by Mr Bramich some time later lying on a bed with the appellant, and she was heard to be whispering to him. At some time in the afternoon, the deceased fell asleep. At approximately 3.30 pm, Ms Dunn telephoned the appellant. She testified that she heard someone gargling or gurgling. She said she asked to speak to the deceased, but the appellant told her she could not. He confirmed that this was because she had taken something she was not used to. She asked the appellant to bring the deceased to her home 'straight away'. At about 4.00 pm, Ms Gepp telephoned the appellant to ask about the deceased's whereabouts. The appellant told Ms Gepp that the deceased was asleep and that he was on his way to Ms Gepp's home to drop the deceased off. The appellant was unable to rouse the deceased when he wanted to leave the house. Accordingly, he carried her in an unconscious state to his car.

95 Instead of driving to Ms Gepp and Ms Dunn's home, the appellant drove to an address at Cloverdale to pick up two of his friends, Mr Simon Cattalini and Ms Tarlee White. This address was an approximately five minute drive from Ms Gepp and Ms Dunn's house. A neighbour, Ms Tanya Kickett, was out the front of the premises putting some furniture into a skip. The appellant offered to help her. Ms Kickett saw the deceased in the car. She testified that she heard the deceased make a gargling sound. As Ms White walked towards the car, Ms Kickett heard Ms White say to the appellant 'what's wrong with her?'.

96 Both Mr Cattalini and Ms White got into the car. Mr Cattalini testified that the deceased appeared asleep and her breathing was restricted. According to Mr Cattalini, the appellant told him that the deceased had been drinking heavily the night before and was 'sleeping it off'. The appellant also told Mr Cattalini that the deceased had taken a small amount of heroin earlier in the day. When Mr Cattalini tilted the deceased's head forward, she breathed normally. He said that he asked the appellant if the deceased needed to go to hospital, to which the appellant responded that she was 'fine'. Mr Cattalini said that the appellant drove to Scarborough Beach where Ms White obtained some methylamphetamine. He testified that after the methylamphetamine had been purchased, the deceased 'appeared in good colour and appeared to be fine', but she had not woken (ts 157). Mr Cattalini said that the appellant then drove to a service station and at that point, he and the others in the car noticed that the deceased had stopped breathing. They then drove to a carpark, felt that the deceased had no pulse and started cardiopulmonary resuscitation (CPR). An ambulance was called.

97 Ms White testified that when she entered the car at the Cloverdale house, she did not think that the deceased looked right, and she heard a gargling sound from her. Ms White said that the appellant told her to leave the deceased where she was. Ms White said that as the car was being driven to Scarborough, she held the deceased's head up. She said that the deceased did not look good. Ms White gave evidence that she kept asking the appellant whether the deceased was alright, to which the appellant responded 'She's fine. Leave her alone. Don't touch her'. Ms White testified that she argued with the appellant about calling an ambulance, but the appellant persisted in saying that the deceased was fine. Ms White said that when she tried to take the deceased's pulse, the appellant told her not to touch the deceased (ts 166).

98 Ms White said that at Scarborough, Mr Cattalini obtained the methylamphetamine. She said that they then 'mixed-up' the drug and passed the appellant his share. Ms White testified that she saw a needle being injected into an arm in the front of the car but was unable to say whose arm it was. After injecting herself, she lifted the deceased's eyelids but saw 'nothing there' and said to call an ambulance. The appellant agreed and an ambulance was called. Records tendered at trial show that the ambulance was called at 6.06 pm.

99 Despite the efforts of two bystanders and the emergency services, the deceased was unable to be revived. She was taken to hospital where she was pronounced dead. The cause of the deceased's death was acute combined drug and alcohol toxicity. A blood sample taken from the deceased revealed the presence of morphine and methylamphetamine, and a blood alcohol reading of 0.125%.

100 Professor David Joyce, a professor of medicine and pharmacology, testified on behalf of the State. His evidence was, in substance, unchallenged. Professor Joyce was asked to comment about the blood analysis of the deceased. He testified that the presence of morphine in the sample was consistent with the deceased having received an injection of home-baked heroin. He testified that the relatively high level of alcohol and the methylamphetamine would not, on their own, have caused death. He explained that a person may or may not die quickly after taking heroin. He described the deceased as dying from a delayed heroin overdose. He said that heroin suppresses the desire to breath. In a delayed heroin overdose, either a person stops breathing or their breathing slows down progressively. Eventually, organs such as the heart and brain are damaged, causing death. This process can occur within minutes or hours. A person who has taken a heroin overdose can be treated by mouth to mouth resuscitation or ventilation or the use of the drug Naloxone, which reverses the effect of heroin or morphine almost immediately upon being administered. Professor Joyce said that if treatment is administered while the patient is still breathing, the person will almost always survive, but if treatment is not administered within approximately five minutes or so after the patient stops breathing, the prospects of survival fall very rapidly. Professor Joyce was of the opinion that had the deceased received medical attention while she was still breathing, she would have been expected to survive.

101 In cross-examination, he agreed that people who take heroin or opiates fall asleep and then generally wake up, but said that some do not. In the case of delayed death from heroin ingestion, typically, breathing slows before death, but it may not be something that a lay observer would notice. He said the cessation of breathing can occur unpredictably. Professor Joyce said that noises while breathing could be caused by obstruction to the airway and could relate to the person being in an awkward position. Such noises are not necessarily a sign that a person had overdosed.

102 Professor Joyce testified that if someone has been unrousably unconscious for a period of time, the person is already severely heroin toxic. He said that the signs of overdose were overt, in as much as the person is immobile and unconscious.

103 In re-examination, Professor Joyce said that if a person had overdosed on heroin it would be apparent to a person without medical training that something was badly wrong. He said that not waking up was an indication that there may be something wrong, and that the inability to rouse a person is a serious warning sign in someone who has taken heroin. He said that it would give rise to considerable concern where someone was unconscious and having difficulty breathing.

104 The appellant elected not to testify or adduce evidence in his defence. However, by consent, and as part of the State's case, a statement given by the appellant to a police officer attached to the coronial investigation unit was read to the jury and admitted in evidence (exhibit 4). Relevantly, the statement was in these terms:

At 12.30 am on Thursday, 30 September 2010, I arrived at Ruth's place. Ruth was going to bed and Karen was drinking alcohol, so I asked her if she wanted to come out with me. Then she told Ruth that she was coming out with me. I told Ruth that I'd look after Karen, then we left. Then we drove to a mate's house, at Beechboro. I don't want to name the address for my own safety reasons. We sat around drinking and smoked a few pipes of cannabis and we both fell asleep around 4.00 am. I'd say we woke up about 10.30 am, and then we had a coffee and something to eat. Then another friend of my mate's rocked up and I'd say that's maybe where Karen got the heroin from. I didn't know she was getting any and I don't think she planned to get any, it just happened. That would probably be around 3.00 pm. Then she came into the lounge room and sat down and dropped off to sleep in front of me. I couldn't wake her up so I carried her out to my car, as I didn't want to leave her in that house. Then I drove to my friend Simon's house, picked him up and drove to the beach as I thought it would be good for Karen. Simon lives in Watby (?) Crescent, but I picked him up from Cloverdale, at [his] girlfriend's house. When we got to the beach we parked up at Scarborough front. We still couldn't rouse Karen, so we checked for a pulse and couldn't find out. Me and Simon lifted her onto the ground and tried CPR. I then called an ambulance.

105 Both Mr Baldwin and Mr Bramich were cross-examined by the appellant's trial counsel about a state well known to heroin users described as being 'on the nod'. This expression refers to a heroin user being drowsy or asleep as a result of heroin use. The expression refers to this common effect and is to be contrasted with heroin overdose.

106 The State's case was that the appellant and the deceased had been together on 29 and 30 September 2010. During that time, the deceased had been administered heroin by the appellant. He was aware that this was the first time the deceased had used the drug. At the time the appellant left the address in Morley, the deceased was asleep and could not be roused. The appellant carried her to his car with the professed intention of returning her to her house in Burswood. The State asserted that from this point the appellant was in charge of the deceased and remained so at all material times. While the deceased was in the appellant's charge, she remained unconscious and unable to be roused. After the appellant picked up Mr Cattalini and Ms White from their address in Cloverdale, the deceased remained in an unconscious state and, based particularly on the evidence of Ms Kickett and Ms White, she was heard to be making gargling or gurgling noises. During the journey from Cloverdale to Scarborough Beach, the deceased's head had to be supported and Ms White, it was said, queried with the appellant whether the deceased was alright. They argued about whether an ambulance should be called. The appellant's reaction to Ms White's concerns was that the deceased was 'fine'. The State's case was that it was apparent to the appellant as a layman that she was not fine. It was not until they discovered that the deceased had no pulse that the appellant finally called for medical assistance.

107 The State's case was that it was obvious that the deceased was not merely 'on the nod', but that she had overdosed and was plainly in need of urgent medical attention. As the deceased was incapable of looking after herself and the appellant had voluntarily assumed charge of her, it was his duty to obtain medical treatment, but he omitted to do so. Based on the evidence of Professor Joyce, had the appellant sought medical treatment when the deceased was still breathing, it is highly likely she would have survived. The appellant should have, at the very least, taken the deceased to Ms Gepp and Ms Dunn's house in Burswood. The State's case was that the appellant breached his duty, pursuant to s 262 of the Criminal Code, and, as a result, is held to have caused the deceased's death. The State's case was that the appellant's breach was so serious as to amount to a crime.

108 The defence case was that the appellant liked the deceased and cared for her. The appellant's trial counsel submitted that the appellant did not know that the deceased was overdosing, as opposed to being 'on the nod', until it was too late. Defence counsel submitted that while in hindsight it was obvious that the deceased was, in fact, overdosing, at the time, it was not obvious to the appellant, or to Mr Cattalini and Ms White, until Ms White raised the alarm at Scarborough Beach. Defence counsel gave particular emphasis to Professor Joyce's evidence that it was not easy for a layperson to detect that the breathing of another was irregular or slowing. Further, he drew attention to Professor Joyce's evidence that the deterioration of an overdose victim is unpredictable.

109 The essence of the appellant's case was that he misread the deceased's state of health, but that did not amount to criminal negligence.

110 Defence counsel accepted that the deceased was in the appellant's charge after leaving Mr Baldwin and Mr Bramich's house in Morley. However, once Mr Cattalini and Ms White were in the car, she was no longer in his exclusive charge.

111 It was conceded that if the appellant had charge of the deceased, she was unable to withdraw from that charge and was unable to provide herself with the necessaries of life.

112 The defence case was that the appellant should be acquitted, because the State had not proved beyond reasonable doubt that the appellant was in charge of the deceased. However, even if the State proved that the appellant was in charge of the deceased, any breach of his duty to provide the necessaries of life was not criminal in nature.

113 It was not the defence case that if the appellant breached the duty to provide necessaries of life, the breach did not cause the death.

114 The real issues to be determined at trial and identified by his Honour in his summing up were as follows:

Has the State proved beyond reasonable doubt that the appellant had charge of the victim from the time they left the premises at Morley until the alarm was raised in Scarborough?
If so, has the State established beyond reasonable doubt that the appellant breached the duty imposed upon him by s 262?
If so, did the breach amount to a crime?

Manslaughter in s 262 of the Criminal Code

115 For the purposes of this case, manslaughter is defined in s 280 of the Criminal Code. Manslaughter may also be committed in the circumstances set out in s 248(3), which has no relevance in this case. Section 280 provides that if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter.

116 The circumstances in which the crime of manslaughter may be committed are many and varied. It may occur as the result of an unlawful act, but it may also occur as the result of an omission. Not every omission that causes the death of another is a criminal offence. For example, as morally reprehensible as it would be, an able bodied stranger is not obliged to rescue a drowning person, even if to do so was within his power and would cause him or her no danger or difficulty. The Criminal Code provides that a person will be held criminally responsible for a killing by omission only where that person has a duty to act, or to act in a certain way, but fails to do so. Section 262, s 263, s 265, s 266 and s 267 of the Criminal Code impose a series of specific duties which arise in particular circumstances. Leaving aside for a moment s 262, s 263 imposes duties on a head of a family; s 265 imposes duties on those who administer surgical or medical treatment to another; s 266 imposes duties on those in charge of dangerous things; and s 267 imposes duties on those who undertake to do an act the omission of which may be dangerous to human life or health.

117 The present case is not manslaughter by unlawful act. Although the heroin which ultimately caused the death of the deceased was supplied and injected by the appellant into the deceased, it was done so with her knowledge and consent. There was no issue that the deceased was, at the time, a fully informed and responsible adult. The State did not suggest that this act killed her. Thus, this case is quite different from those cases where it is alleged that the supply or administration of an illicit drug was the act that constituted the crime. These cases, as French CJ observed in Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 [11], can give rise to difficult questions of principle and of the application of principle.

118 Instead, this case concerned the alleged failure by the appellant to provide the deceased with the necessaries of life, namely medical care, in circumstances where it was alleged by the State that s 262 of the Criminal Code imposed a duty upon him to do so. Accordingly, in order to prove the element of unlawfulness in the charge of manslaughter, it was necessary for the State to prove that the appellant owed a duty to the deceased to provide her with the necessaries of life in accordance with s 262, and that he had breached that duty.

119 Section 262 of the Criminal Code is in these terms:

Duty to provide necessaries of life

It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.

120 It is clear from the statutory language that the duty to provide the necessaries of life (of which medical care has been held to be one such necessary) arises only when the alleged offender has charge of another, whether by reason of contract or imposed by law, or by reason of any act, whether lawful or unlawful, and the person whom the alleged offender has charge of is both:

(b) unable to provide for himself or herself the necessaries of life.

121 The section provides that where the alleged offender omits to provide the necessaries of life (and thus breaches the duty) the alleged offender is held to have caused any consequences which result to the life or health of the other person.

123 First, the question of whether a person has charge of another is a question of fact except where the law imposes such a duty: R v MacDonald & MacDonald [1904] St R Qd 151. Second, the duty to provide the necessaries of life may be voluntarily assumed: Burns v The Queen [97]. Third, breach of the duty does not depend upon an intention on the part of the person on whom a duty is cast. Breach occurs by virtue of the omission to perform the duty. Fourth, the words 'any omission to perform that duty' are broad enough to include both willed and negligent omissions: R v Young [1969] Qd R 417. Fifth, where, as in this case, it was alleged that the breach was negligent, an accused cannot be convicted unless the prosecution establishes beyond reasonable doubt that the appellant's conduct was criminally negligent: see by analogy the reasoning of the High Court in Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115. Sixth, where the alleged offender is in breach of his or her duty to provide the necessaries of life, he or she is held to have caused any consequences to life and health that result.

The grounds in the appeal against conviction

124 There are eight grounds of appeal relied upon by the appellant.

125 I will deal with the grounds in numerical order. Pullin JA in his reasons sets out the relevant portions of his Honour's summing up. There is no need for me to repeat what he has written.

126 I observe that the appellant's competent and experienced defence counsel sought no direction or redirection from his Honour in relation to any of the matters raised in the grounds of appeal. Therefore, it cannot be legitimately claimed that his Honour made any error. The only basis upon which any such ground can succeed is that there has been a miscarriage of justice: Gillespie v The State of Western Australia [2013] WASCA 149 [82] - [83]. The fact that no direction or redirection was sought is an indication, though not conclusive, that there was no miscarriage of justice.

(1) The [l]earned trial judge erred in law in failing to direct the jury in relation to causation:

(i) that, at law, there is no positive duty on a person to act to prevent the death of another and the mere failure to act by a person does not mean that person has caused the death of another unless the law imposes a legal duty upon a person to act[;] and

(ii) to consider whether the deceased'[s] voluntary actions in seeking out and ingesting heroin (albeit with the assistance of the appellant as she had difficulty injecting herself) was such that the cause of the deceased['s] death was the deceased's own free and informed actions and not as a result of any failure on the part of the appellant to act.

(2) Further, the use in the direction to a lay jury as to causation as set out ... by Burt CJ in Campbell [v] R (1981) WAR 286, 290 using, as it did, legal terminology did not assist the jury to understand the principles to be applied by them in determining whether the appellant had caused [the] death of the deceased such that a miscarriage of justice occurred.

128 Grounds 1 and 2 complain about his Honour's directions on causation. They can conveniently be dealt with together. Ground 1 complains that his Honour should have, but failed to, instruct the jury about the matters contained in particulars (i) and (ii) of that ground. Ground 2 does not allege any error of law or fact on his Honour's part. It claims that the directions his Honour gave on causation 'did not assist the jury to understand the principles to be applied by them'.

129 The appellant's written submissions on causation analyse cases decided in common law jurisdictions involving the supply of a drug to a person who dies from its ingestion. These cases can give rise to difficult questions of causation, but this is not that case and it is unnecessary to discuss these issues in this case. As I have already observed, the appellant did not at trial argue that the cause of the deceased's death was her voluntary consumption of heroin.

130 The test for causation once a breach of the duty in s 262 of the Criminal Code is established, is set out within the section itself. The alleged offender is deemed to have caused the death or injury that results from the failure to provide the necessaries of life. In the present case, if the breach of the duty was established, there was no issue about causation. This is understandable as the unchallenged evidence was that but for the failure to obtain medical assistance, the deceased would probably have survived. Thus, the failure to do so caused, as a matter of fact, the deceased's death: Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 [21] - [39].

131 It is true that the learned trial judge did not direct the jury in these terms. Rather, he directed the jury using the often used test for causation propounded by Burt CJ in Campbell v The Queen [1981] WAR 286, 290, which provides:

It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.

132 This formulation was approved by French CJ in Burns [9] and by Mason CJ, Deane & Dawson JJ in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387, 411 - 412. Contrary to the appellant's submission, nothing said by French CJ in Burns was to the effect that a direction in terms of Burt CJ's formulation should not be given.

133 No complaint was made by the appellant's trial counsel as to the directions his Honour gave on causation. The direction was certainly not adverse to the appellant, particularly as causation was not an issue in the trial. The direction did not and could not give rise to a miscarriage of justice.

134 His Honour's summing up was not defective by reason of the omissions alleged in particulars (i) and (ii) of ground 1. Section 112 of the Criminal Procedure Act 2004 (WA) requires a judge to 'instruct the jury on the law applicable to the case'. A judge's function is not to provide the jury with a treatise on the law relating to manslaughter by act and omission. This was a case of manslaughter by omission. His Honour correctly directed the jury as to the requirements of s 262 of the Criminal Code. He correctly identified the real issues for the jury to determine and focussed his summing up on those issues. That was all his Honour was required to do. He was not required to give the directions sought in the particulars to ground 1.

(3) The learned sentencing Judge erred in law in failing to direct the jury as to the following aspects of the duty to provide necessaries of life under s 262 [of the] Criminal Code ('s 262') to the deceased ('the duty of care'):

(a) the circumstances as a matter of law in which the duty to provide [the] necessaries of life under s 262 ('the duty of care') might arise

the [l]earned trial judge failed to direct on the meaning of the term 'having charge of another' pursuant to s 262
that a 'charge' only arises in the case of a 'volunteer' if the effect of the actions of the volunteer is to seclude the person so as to prevent others rendering aid to that person
the learned trial judge failed to determine as a matter of law whether a duty of care might exist under s 262 on the evidence
further the [l]earned trial judge failed to identify for the jury the facts which as a matter of law would establish a duty under s 262
further the [l]earned trial judge failed to identify for the jury the facts which as a matter of law would mean that no duty arose under s 262 and
the [l]earned trial judge subsequently failed to instruct the jury that it was a matter for them whether those facts to establish a duty under s 262 had been proved by the State beyond reasonable doubt

(b) [t]he learned trial judge erred in law in failing to direct the jury as to the requirements under which and the time at which the duty under s 262 arises in the case of a person who voluntarily assumes a duty under s 262 ('volunteer'):

(i) that a duty under s 262 only arises in the case of a 'volunteer' if the volunteer secludes the person so as to prevent others rendering aid to that person

(ii) as to the meaning of seclusion being to keep apart or shut off or to place in or withdraw into solitude

(iii) that in the case of a volunteer, the duty to provide necessaries only arises once the appellant appreciated that the deceased's life was in peril; in this case the appellant appreciated that the deceased was exhibiting signs of acute heroin toxicity ('overdosing') not merely exhibiting signs that she was intoxicated with heroin ('on the nod') [sic]

(iv) further, that there must be a causal connection between the seclusion and the death of the deceased. If the jury were not satisfied that the appellant secluded the deceased from the time he left the house in Morley with the deceased until she stopped breathing at Scarborough but found that the appellant had secluded her in the period from Morley to Cloverdale then there was no evidence upon which they could be satisfied that the earlier seclusion had caused the death of the deceased because the evidence of [Professor] Joyce was that the deceased could have been revived at any time before she stopped breathing.

137 The ground contains particulars which are diffuse and repetitive. They allege a series of failures in respect of his Honour's directions as to the duty to provide the necessaries of life pursuant to s 262 of the Criminal Code.

138 Particular (a)(i) alleges that the learned trial judge failed to direct the jury on the meaning of the expression 'having charge of another' in s 262 of the Criminal Code. The expression 'having charge of another' does not have a technical legal meaning. In context, it means to take on the responsibility of caring for someone: see, for example, the definition of charge in the Oxford English Dictionary. The expression did not require any further elucidation or definition. The particular has no merit.

139 Particulars (a)(ii), (b)(i) and (b)(ii) all allege essentially the same thing: namely, that in a case of a person who is alleged to have voluntarily taken charge of another, it is necessary that the State prove that the accused kept the victim in seclusion. The appellant claims that his Honour failed to direct the jury in these terms.

140 These particulars must fail for three reasons. First, his Honour gave the very directions the appellant claims he did not give: see [16] of Pullin JA's reasons. Second, the appellant's conduct in placing the deceased in his car, driving as he did and forbidding Ms White and Mr Cattalini from calling assistance until it was too late, were all acts that could reasonably have been judged as secluding the deceased in that the appellant kept her from accessing medical care until it was too late. Third, and in any event, there is no legal requirement under s 262 of the Criminal Code that in order for a volunteer to have the charge of another, there needs to be a seclusion of that other person by the accused. To have charge of someone does not require that person to be secluded from others. For example, a babysitter who takes a child shopping is plainly still in charge of the child. Seclusion may be a relevant, in some cases a highly relevant, factor but it is not a necessary requirement to having the charge of a person. The appellant referred to statements made in cases where the prosecution case was, as a matter of fact, that the appellant had secluded the victim, as standing for the proposition that seclusion was a requirement in all cases involving volunteers. The appellant cited such cases as R v Taktak (1988) 14 NSWLR 226; R v Evans (Gemma) [2009] 1 WLR 1999 and R v Stone [1977] QB 354; [1977] 2 WLR 169 as authorities supporting this proposition. Each of these cases concerned the physical seclusion of the victim, and the statements made in them must be seen in this light.

141 Particular (a)(iii) alleges that the trial judge failed to decide, as a matter of law, whether on the facts, the duty to provide the necessaries of life arose. This particular has no merit. The appellant's trial counsel did not make an application that the appellant had no case to answer. Having regard to the test laid down by the High Court in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, the State had, on the evidence it adduced, established a prima facie case that the appellant owed the deceased a duty to provide the necessaries of life.

142 This brings me to particulars (a)(iv), (a)(v) and (a)(vi). As I read these particulars, in combination with the appellant's submissions, I understand them to be to the effect that his Honour's directions on whether the appellant had a duty to provide the deceased with the necessaries of life were deficient because:

his Honour failed to instruct the jury that it was their task to decide whether the State had proved beyond reasonable doubt that the appellant owed the duty; and
his Honour failed to put to the jury the respective cases of the appellant and the respondent on the point.

144 His Honour summed up to the jury in some detail the case each party put as to the question of whether the appellant had a duty to provide the deceased with the necessaries of life. His summary was comprehensive and balanced. He instructed the jury that it was for them, as the finders of fact, to decide if the prosecution had proved that the appellant had charge of the deceased, the other aspects of the duty having been unchallenged. In the circumstances of the case, his Honour was not required to do any more.

HEATON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 207 (4 September 2013)

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HEATON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 207 (4 September 2013)

Legislation Cited (5)

Cases Cited (10)