R v Natalie BURNS

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Northern Territory Criminal Code Act 1983

The Queen v Kennedy, House of Lords (2007) UK HL 38 Royall v R (1991) 172 CLR 378 MacAngus & Kane v H.M. Advocate [2009] HCJAC 8 People v Beardsley, (1907) 113, North West, 1128 Jones v United States (1962) 308, 2d F.L.R. CASES CITED: R v Rao [1999] ACTSC 132 R v Lawford (1993) 69 A Crim R 115 R v Phillips (1971) 45 ALJR 467 R v Evans (Gemma) [2009] EWCA Crim 650 R v Styman and Taber [2004] NSWCCA 245 Donoghue and Stevenson [1932] A.C. 52 R v Taktak (1988) 34 A Crim R 334

TEXTS CITED: Stephen, J.F., A History Of The Criminal Law of England, (3 volumes) Macmillan, 1883.

PARTIES: The Crown Natalie Burns

COUNSEL: Mr P Calvert - Crown Mr M Crawford-Fish - accused

SOLICITORS: NSW DPP Andrew Harris and Associates

1 HIS HONOUR: In an earlier trial the husband, Brian Burns, has been found guilty of manslaughter by gross criminal negligence. The wife, Natalie Burns, is now on trial. The prosecution case is that the deceased was found dead in a backyard shed at the premises where the husband and wife resided. The Crown alleges that the deceased arrived at their flat for a drug deal - specifically to obtain methadone - and that criminal responsibility for the death attaches to the wife as well as to the husband.

2 At the close of the case, Mr Crawford-Fish for the defence submits that there is no case to answer on the manslaughter charge. Firstly, on "unlawful and dangerous act", he submits that the drug was, on the Crown case, handed over to an adult person apparently in possession of his faculties, who could choose to throw the drug into the garbage bin, or to consume it as he saw fit. He made a decision about it in the same way that people make decisions about the consumption of all sorts of things in their daily lives.

3 He relies upon the decision in The Queen v Kennedy, House of Lords (2007) UK HL 38. In that case the House of Lords dealt with a question phrased in the following terms: "When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug which is then freely and voluntarily self-administered by the person to whom it was supplied and the administration of the drug then causes his death?"

4 In paragraph 25 of the judgment of their Lordships answered the certified question thus: "In the case of a fully informed and responsible adult, never."

5 This is a point which was not in issue in Royall v R (1991) 172 CLR 378, which is the leading Australian authority on causation in the criminal law generally.

6 The logic of the House of Lords in Kennedy's case is that the handing over or the supply of a drug to a particular person concludes a certain activity; whether it is then taken up by somebody else and ingested or injected or somehow otherwise used, the causative force of the supply is negated or cancelled out. If the person dies, the supply cannot be said to be the "cause" of the death. In a subsequent decision in the highest court of Scotland, the case of MacAngus & Kane v H.M. Advocate [2009] HCJAC 8, a broadly different position was taken from that adopted in Kennedy. The MacAngus judgment involved an extensive examination of the authorities and academic commentary. Their Honours concluded (paragraph 48) that "…a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation."

7 R v Evans (Gemma) [2009] EWCA Crim 650 is a recent decision of the English Court of Appeal tending to support the reasoning of the Scottish court in MacAngus v H.M. Advocate rather than of the House of Lords in The Queen v Kennedy.

8 This issue is not without difficulty. It has been approached differently in different jurisdictions. One of the complications is that it is apparently still the law in Britain (or it was so in 2007) that the self-injection of a prohibited drug is not of itself a criminal offence. By contrast in New South Wales, under s 12 of the Drug (Misuse and Trafficking) Act 1985, it is an offence to self-administer a prohibited drug

9 There is some logic at least in the Kennedy doctrine and the argument presented by Mr Crawford-Fish. For the present purposes, I do not see that argument as a basis for me to direct a verdict for his client on this point, but it may be the basis for an argument on the facts that there has been a break in the chain of causation. Whether the jury should take the view that the deceased, David Hay, was at the relevant time a responsible adult acting voluntarily and advisedly as to the risks of the drug, will no doubt be a matter of argument between counsel in their submissions to the jury; but I am prepared to put to the jury the proposition that a break in the chain of causation on this ground could occur as a matter of fact. As was pointed out in MacAngus at paragraphs 33 and 34, juries may well be reluctant to conclude, on the facts, that a particular drug abuser who dies did indeed "freely and voluntarily" self-administer, and was "informed" as to the risks involved. As I say, this may be a matter of fact for the jury. The role of the jury in such matters is emphasised by the New South Wales Court of Criminal Appeal in R v Styman and Taber [2004] NSWCCA 245.

10 I decline the application for a directed verdict for the charge of manslaughter pressed under the head of "unlawfully dangerous act".

11 As for liability in manslaughter via the doctrine of criminally negligent omission rather than as an unlawfully dangerous act, there is again considerable doubt and difficulty with the authorities.

12 It is clear that a person may be found guilty of manslaughter in New South Wales by an omission. The definition of "murder" in New South Wales and the definition of "manslaughter" in the Crimes Act make it apparent that a culpable homicide may be committed by an act or by an omission.

13 The lesson in the parable of the good Samaritan (Luke, 10, 25-37) is not automatically reflected in the law. In Donoghue and Stevenson [1932] A.C. 52, bold spirits declared the good Samaritan principle to be alive and well in the law of torts, but judges laying down the criminal law in relation to manslaughter have not been so willing to place legal liability upon those who turn their heads away and walk past on the other side of the street.

14 In American jurisprudence reflecting the common law tradition, there is a contrast between what is called in many cases the "American bystander" rule - a robust formulation of the principle that no person is obliged to go out of his way to assist others - and the Good Samaritan principle. A number of states, principally Vermont, have legislated versions of the Good Samaritan principle, both in the civil law and in the criminal law.

15 In Australia, the legislature of the Northern Territory (in s 155 of the Criminal Code Act of that jurisdiction) has enacted a criminal law which establishes a broad Good Samaritan principle: "Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years. "

16 It is not the function of criminal trial judges to be "bold spirits" and to create new areas of criminal liability. I am fully conscious of the need for restraint in this area. Let me refer to some of the relevant authorities. The leading case in New South Wales on this subject is R v Taktak, a decision of Yeldham, Carruthers and Loveday JJ., a strong criminal court. It is reported at (1988) 34 A Crim R 334. That court undertook a fairly exhaustive analysis of the relevant laws. The court cited J F Stephen's A History of the Criminal Law of England 1883 to the effect that, "By the law of this country killing by omission is in no case criminal unless the thing omitted is one which it is a legal duty to do".

17 Stephen then set out various duties which common law cases had established. A significant aspect of what Stephen said was that: "No rule exists in such cases. It is a matter of degree determined by the view the jury happens to take in each particular case".

18 That deals with the level of the neglect, but equally, although the cases from Stephen onwards talk about duties, the heads of manslaughter by omission are nowhere absolutely defined. At p 345 of Taktak, Yeldham J says: "The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in the parent of a young and dependent child".

19 He continues, "Legally recognised duties of care can also arise in other situations."

20 Indeed this must be so. When Stephen wrote his great history of the criminal law, the motor vehicle had not yet been invented and Conan Doyle was able to imagine Sherlock Holmes smoking opium with complete legality.

21 The court in Taktak placed some reliance on the American case of People v Beardsley, (1907) 113, North West, 1128. That was a case where a husband, while his wife was absent, had taken up with an old girlfriend and ensconced her in one of the rooms of the premises he occupied. She took drugs, she died, and he did not call assistance for her, not wanting to call attention to the circumstances. He was convicted of manslaughter, but cleared on appeal. The Michigan appellate court said, "The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife".

22 That case has been addressed in a multitude of other American cases, as well as in the Australian jurisprudence.

23 In a more recent American decision, Jones v United States (1962) 308, 2d F.L.R. at 307, Beardsley was cited. The court in Jones said, "There are at least four situations where the failure to act may constitute the breach of a legal duty".

24 The fourth of those categories was the one relied upon in Taktak: "Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid".

25 The care that has to be taken in this area of the law is reflected in a detailed and careful decision of Crispin J of the Supreme Court of the Australian Capital Territory in 1998: Regina v Rao, unreported judgment BC9908174.

26 There the learned judge directed a verdict of not guilty in a drug death case. Notwithstanding that direction and the care which his Honour took to relate the facts to the authorities, including Taktak's case, his Honour said this at para 143: "If the Crown could establish beyond reasonable doubt that the accused caused Mr Cinque to lapse into unconsciousness and that he was consequently placed in real danger then I would have little hesitation in finding that she had a duty of care."

27 His Honour preceded that obiter dictum by this observation, referring to some earlier Australian decisions: "I do not understand their Honours to have intended to lay down any general principle that a person who does any act which has the effect of creating any danger for another person, ipso facto acquires a duty to intervene to protect that person."

28 R v Lawford, (1993) 69 A Crim R 115, was a decision of a strong South Australian appellate court. The leading judgment was given by his Honour Duggan J.

29 Both Crispin J in R v Rao and Duggan J in R v Lawford referred to the decision of the High Court in Phillips (1971) 45 ALJR 467, a case involving death related to the incoming tide drowning a young woman. Crispin noted this decision as follows: "Their Honours held that if the accused had been responsible for the deceased having been rendered unconscious and placed in a dangerous situation as a consequence, then he had a duty to take positive action to render assistance."

30 This reasoning finds an echo in helpful obiter dicta in the recent English Court of Appeal decision in R v Evans (Gemma) [2009] EWCA Crim 650. There, although that judgment is not binding here or precisely in point, the court said that "Without her involvement in the supply of heroin, the jury was directed that there was no duty on the appellant to act even after she became aware of the serious adverse effect of the drug-taking on Carly. If on the other hand she was so involved, that fact, taken with the other undisputed facts would, and on our analysis of the relevant principles did give rise to a duty on the appellant to act. In law the judge's directions about the ingredients of gross negligence manslaughter, as applied to this case, were correct."

31 Notwithstanding the restraint which courts exercise in this area of the law, I am satisfied that while it is necessary for me to avoid engaging in judicial legislation by asserting a general principle analogous to section 155 of the Northern Territory Criminal Code Act, nonetheless on the facts in the present case I am satisfied that I can and should state the law of New South Wales to be as follows: "If a person voluntarily invites or permits potential recipients to attend his or her home for the purpose of a prohibited drug supply transaction where the drugs are to be consumed on the premises, and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself toward the drug recipient without being grossly or criminally neglectful."

32 It seems to me that such a limited proposition is correct even though the circumstances I avert to do not include the element of seclusion referred to in Taktak's case, and which was present in the case as presented against the husband, Brian Burns.

33 I decline to direct a verdict of not guilty of manslaughter on the ground of alleged grossly negligent criminal omission.

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