Holly Davies: The third alternative.
177 The third alternative asserts criminal negligence arising from a teaspoon of methadone being left as residue in a cup used to mix methadone, that cup being left accessible to Brent. The police, when interviewing Michael Partridge, explored that possibility. That interview is not, of course, evidence against Ms Davies. However, in the third interview with Ms Davies on 9 September 2002, the police read the series of questions and answers in the Partridge interview, inviting Ms Davies to respond. It is instructive to look at that response.
178 The police recounted to Ms Davies how Michael Partridge had said that he had always believed that some methadone had been left in a cup somewhere where Brent could drink it (Exhibit H: p39). Ms Davies was told that Michael Partridge described how she got home at 7.30 am, or thereabouts. According to his interview, she brought a takeaway which they then shared. He described the way in which the methadone was prepared, using a glass or a cup, adding water.
179 Pausing there, the description of this process provided by Michael Partridge is rather different to that provided by Holly Davies in her previous interview. Ms Davies had said, on 27 March 1996 (Exhibit G), that the methadone (and presumably the water) was tipped directly into the syringe when the intention was to inject it (Exhibit G: Q85). That answer, I believe, should be understood as a reference to her practice when injecting alone. Here, the methadone had to be mixed in certain proportions with water. The mixture was to generate not one, but at least four barrels. It would be much more convenient and less wasteful to do that using a cup, rather than endeavouring to pour the mixture into each syringe.
180 Returning to the interview with Holly Davies in September 2002, having summarised the answers provided by Michael Partridge, the police then put the following questions to Ms Davies: (Exhibit H: Q272)
"Q272 Your former, your former partner, Michael Partridge, after 7 years, nearly, of Brent's death, is now telling the police that he believes there was methadone left in a cup, OK?
A. Mmm.
Q273 Would you like to say anything about that?
A. I, you know, I've also speculated on that, but I, I really, I don't, you know, I don't know but it was not, not, it, no, I, I don't believe that it could've been.
Q274 Why do you say that?
A. Because, well, I just, well, just the way we mixt it up and had it, have it, I don't believe that we could've, you know, sucked some out of the cup and, if there was some left, just forgotten. I just don't believe that it could've been forgotten, especially when all the rest of it was cleaned up, needles, swabs, tissues with blood, whatever. I just don't believe that a cup could've been missed with methadone, and I mean, once we both suck it up, there's there's none left, you know? there's none."
181 That answer, incidentally, appears to accept that a cup may have been used, as suggested by Michael Partridge. It should be noted that the Crown, in its submissions, puts its case somewhat more broadly than simply relying upon a cup. In written submissions it described the third alternative in these terms:
"Methadone residue left in a cup or otherwise available in the flat."
182 The Crown, in support of the third alternative, pointed to certain stubborn facts. Brent died of methadone intoxication. The amount of methadone in his stomach meant that he swallowed it. If it was not given to him deliberately, then plainly it was somewhere accessible to him.
183 However, without knowing where he got it from and how he came to swallow it, it is difficult to be satisfied beyond reasonable doubt that somehow or other there was criminal negligence on the part of his parents. Obviously one would suspect negligence. However, without some basis for an inference as to precisely how Brent came to swallow the methadone, there appear to me to be too many unanswered questions. To borrow a phrase from tort law, the facts do not speak for themselves.
184 In part, the difficulty is the product of the rudimentary investigation undertaken by the police when they first arrived at the flat. If Brent swallowed residue from a mixing cup, would you not expect a cup within the flat with traces of methadone? A cup, indeed, was taken by the police from the scene and tested. No trace of methadone was found. Perhaps some other cup had been placed in the sink with the rest of the washing up which had not been done for days. However, aside from the photographs which provided a general view of dishes in the sink and on the bench, there is no evidence that the dishes were examined, or a cup found.
185 As mentioned, the search of the flat did not involve lifting each item and sifting through the debris. It is difficult in these circumstances to draw any inference based upon evidence, as opposed to assumption, that methadone was "otherwise available in the flat". What if the methadone was in the room occupied by the Youngs? The crime scene examiner did not enter that room. There was no evidence that other police searched it. Holly Davies said the door was always kept shut. One can accept that it was usually kept shut, but it would be most unusual for a door to always be kept shut. Is there a reasonable possibility that the door may have been open and that Brent had access to it? Mrs Young said that she always kept her takeaway bottle in her bag, which was kept well above ground level, that is, not accessible to a child. The takeaway bottles themselves were fitted with a childproof cap. However, is there a reasonable possibility that there was an open takeaway bottle within Mrs Young's room?
186 It may be said that many of these questions are too speculative to raise a reasonable possibility that the Crown could be expected to eliminate. However, there was one possibility that did appear to arise on the evidence. It was apparent from the habits and practices of Holly Davies and Michael Partridge that, in 1995 they were heavy drug users, as were the Youngs. Holly Davies and Michael Partridge and the Youngs had been admitted to the methadone programme to enable them to overcome their addiction to heroin. They were under the supervision of a doctor. A dose had been prescribed for them in each case. The dose was to be taken orally, even when a takeaway bottle was provided. It was not to be taken intravenously. Yet, having had the prescribed dose at the clinic on the morning of 14 November 1995, Ms Davies returned to the unit and had further methadone, additional to her prescribed dose. Worse, the methadone was injected, so that the habits of drug use continued.
187 The Youngs, I believe, for the reasons given, both received an oral dose at the clinic on the morning of 14 November 1995. They then came back to the unit. According to Det Mathewson, Peter Young that afternoon gave her the following account of what he and his wife then did: (Exhibit U)
"I spoke with Peter Young who confirmed the evenings events on Canterbury Road. He told me that he and his wife Deanna had passed Holly on the way back from getting their methadone and when they arrived home they lay down on the sofa lounge and went to sleep. Peter told me that they woke a couple of hours later. ..."
188 Peter Young, that morning, was required to go to the Burwood Court.
189 Holly Davies, in her second interview in March 1996, said this: (Exhibit G)
"Q173 OK. Now, is there any reason why you continually slept on that, or you slept on that chair?
A. No, just that, I rarely sat there. It was just that with, Michael was lying on this lounge and, and Peter and Deanna were on the other, so I just sat in that one."
190 Ms Davies added, later in the same interview, the following responses referring to Deanna and Peter Young:
"Q387 And the times that they had their methadone did you ever see them consume the methadone?
A. I, yeah, I did see them use it intravenously on occasions.
Q379 And where was that?
A. In the flat. But mainly they just kept to themselves and stayed in the bedroom and that, that was it."
191 Deanna and Peter Young were at the flat for only a few days before Brent died. Is it possible that both couples, each sharing takeaway bottles, injected methadone in the lounge room that morning, having previously mixed it in a cup? If that occurred, there is the possibility that the cup with the residue was that of the Youngs, not that used by Ms Davies and Mr Partridge. The issue was put to Mrs Young when she gave evidence. She said that it was not possible. She did not inject methadone, although she did inject heroin (T499/500). She said that her husband, Peter, did not inject methadone "until years later" (T500). However, that statement is difficult to reconcile with the fact that Peter Young went into custody soon after these events and separated from his wife shortly after his release from gaol in 1996. In other words, they were not together "years later", so that one suspects that he may have been injecting methadone in November 1995. On the other hand, both Peter Young and Deanna Young had been up all night, on the Canterbury Road. When they lay on the couch that morning, they may simply have been resting, without injecting.
192 If I were called upon to make a finding, as a matter of probability, as to what happened that morning, I would not find that Peter Young and Deanna Young had injected methadone. It, nonetheless, seems to me a reasonable possibility that they did so. If that be right, then it is also possible that the residue in a cup, if there was a cup, belonged to the Youngs. The issue which was raised earlier then arises: Can it be said that Holly Davies (and Michael Partridge) were in breach of their duty of care to Brent in failing to supervise his interaction with the Youngs, or his exposure to hazards which the Youngs may have created? I doubt that the duty extends that far.
193 I am left in the situation that, on many issues, the proof offered by the Crown for the third alternative does not satisfy me beyond reasonable doubt as to the guilt of Holly Davies. I reach that conclusion without needing to consider the additional difficulties arising for the Crown from the recent decision of R v Lavender (supra para 114).