R v Pace & Conduit

2 In Doney v R,[1] the High Court confirmed the decision of Attorney-General's Reference (No. 1 of 1983),[2] which included a rejection of the view that a trial judge could stop the trial if in his or her opinion a verdict of guilty would be unsafe and unsatisfactory. The High Court, in discussing the law, quoted with some level of approval from R v Galbraith:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are general speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion the defendant is guilty, then the judge should allow the matter to be tried by the jury.[3]

3 The High Court identified "some difficulty" in reconciling (2)(a) with (2)(b) and then commented:

But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bare in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful. That means that not only is proposition (2)(b) in Galbraith correct but, so far as it refers to "inconsistent" evidence, proposition (2)(a) cannot be accepted.[4]

4 The High Court then went on to resolve the issue by stating the test as follows:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[5]

5 The test has been considered on numerous occasions by trial judges since Doney was decided by the High Court. Often it is the case that the test arises for consideration in cases where the prosecution case against an accused is circumstantial. As the High Court noted in Doney, "[c]ircumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded".[6]

6 In this case the allegation against both accused is that they are guilty of manslaughter by criminal negligence. The negligence is effectively by omission rather than by any positive act. There is nothing circumstantial about this case.

7 The Crown filed a Summary of Prosecution Opening pursuant to the Crimes (Criminal Trials) Act 1999 in which the Crown case against both accused was put on two bases. In summary those bases can be described as each having breached their duty of care, firstly in the period leading to the ingestion of the toxic substance by a failure to properly supervise, "and/or", once alerted to the ingestion of a toxic substance, a failure to obtain immediate medical attention. In concluding her opening address to the jury, the learned Crown prosecutor said the following:

The basis of the Crown case is one of gross negligence. There was a duty of care, a breach of that duty. The breach of that duty was the cause of death, and then the breach has to satisfy a certain standard. So the breach involved such a great falling short of the standard of care which a reasonable person would have exercised and involved such a high risk that death or really serious bodily harm would result that their conduct, his, hers, or both, merits criminal punishment.

What we say about Ken Conduit is that he voluntarily and deliberately absented himself from the immediate presence of those five men, from the immediate presence of particularly Kevin Chuter, for a protracted period of time whilst charged with the responsibility for the care of Kevin Chuter and/or ... once Ken Conduit was alerted to the deceased, Kevin Chuter, having ingested a substance he failed to obtain medical advice and/or treatment immediately.

So far as Joanne Pace is concerned, what we say about her is this, that she, without reasonable excuse, this wasn't an emergency, was on her own for a protracted period of time whilst charged with the responsibility for the care of Kevin Chuter, and/or once she was alerted to Kevin Chuter having ingested a substance she failed to obtain medical advice and/or treatment immediately.[7]

8 By way of response, counsel for the accused Pace said to the jury at the conclusion of his opening address:

Ms Pace's position in response is to say that she was not negligent, let alone grossly negligent, let alone criminally negligent. To be specific her conduct in caring for Kevin Chuter in the way that she did was reasonable and was understandable in the circumstances that she was in and it was certainly not conduct that fell so far short of the standard of care required and held such a high risk that death or really serious injury would result, that it is deserving of criminal punishment.[8]

9 Similarly, in his opening address on behalf of the accused Conduit, Mr Bourke of counsel said:

... and it's pretty live in this case, as to whether you think there's any criminal negligence in this case, and if it's criminal, that enables you to say that for your vote, any you've all got to vote the same, as his Honour says, that you would stamp these two people as killers. That's the word. Have a look at the presentment. They're charged that they killed somebody. There's not many people in this world who can kill people, I don't care whether it's murder or manslaughter, or what it is. But there's not many people, and you might well think at the end of the day when you've heard this evidence, all these people did when the gravity of the situation was brought home to them, they did everything possible and human in their capacity to deal with it.[9]

10 Thus the clear issue from the outset of the case was whether or not there was criminal negligence in either or both of two situations. In the course of the evidence the issue of whether any such criminal negligence can be proved to be the substantial and operating cause of death has also arisen.

11 An appropriate starting point for a consideration of manslaughter by criminal negligence is R v Nydam. There, the Court concluded that the test was an objective test and that

it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.[10]

12 It had been earlier determined by the House of Lords, in Andrews v DPP,[11] that to establish manslaughter by a negligent act or omission it must be established that the negligent act or omission is so gross as to go beyond a mere matter of compensation between the wrong-doer and the victim. Andrews was confirmed by R v Adomako,[12] meaning that in England proof of the offence of manslaughter requires a death resulting from the negligent breach of a duty of care owed by the defendant to the deceased and that in the negligent breach of that duty, the victim was exposed by the defendant to risk of death in circumstances so reprehensible as to amount to gross negligence.

13 More recently in Victoria, Winneke P referred to the crime of manslaughter by negligence as "one which requires an objective comparison to be made between the conduct of the accused and the conduct to be expected of the reasonable person."[13]

14 Still more recently, the nature of this offence was considered by the High Court in R v Lavender,[14] where the Court dispatched the notion that in New South Wales malice was an essential element of the offence. The Court noted that the common law of manslaughter as expressed in Nydam had been approved in Wilson v R, where the Court noted by reference to Nydam that "[f]or manslaughter by criminal negligence, the test is 'a high risk that death or grievous bodily harm would follow'".[15]

15 The evidence in this case indicates that the two accused were employees of the Department of Human Services and had been for some considerable time. Both were employed as direct care workers at a community residential unit at 34 Verona Drive, Taylors Lakes, where the deceased and four other men lived. Their duty was to provide daily assistance to the five disabled residents. The evidence indicates that at the premises there were a number of training manuals in order for employees to understand matters of policy in relation to direct care work and that they were required to familiarise themselves with those manuals. Both the accused had Level 2 First Aid Certificates which involved training in relation to poisons. As at May 2005 the evidence suggests that both the accused were competent in Level 2 First Aid. The evidence indicates some level of procedure in dealing with unknown poisons including a reference to calling the Poisons Information Centre.

16 The evidence also dealt with the way in which clients should be supported in activities and outings and the evidence seemed to indicate that although there was no standard policy in relation to the matter, the usual practise was that if five clients were on an outing there would be two carers.

17 There could be little doubt that Kevin Chuter was a heavily dependent client. He had been in the care of the Department of Human Services for 60 or so years of his total life of 67 years. He had no ability to speak and most of the daily activities of life needed to be done for him. His level of communication was by the making of some gestures and becoming agitated. It is unlikely that Mr Chuter could read and he was described in the evidence as a man who was routine orientated. In particular he was described as someone who had an obsession with flowing water and would stare at water running out of a tap. Importantly, the evidence suggests that he was someone who would gulp liquids down when he would drink and that he had something that might be described as an addiction or at least a high level of enthusiasm for the consumption of coffee.

18 At the centre of this case are the events of 8 May 2005. On that day the two accused, as the two carers, took all five clients of the residential unit, including Mr Chuter, to a football match at West Melton. The football match was being played between two women's teams, and the team from Sunbury was being coached by the accused Conduit. He was endeavouring to combine this past time with his duties as a carer.

19 The evidence suggests that the five men were taken by bus to the reserve where the game was to be played and were placed somewhere in the vicinity of what has been described as the coach's box which was occupied by, among others, the accused Conduit during the game. At some point during the game, probably during the first half, the deceased indicated a need to go to the toilet. The accused Conduit was occupied with coaching one of the teams, that being a circumstance relied upon by the Crown, and so Mr Chuter was taken to at least the vicinity of the changing room by the accused Pace, but she did not enter the toilet or the changing room with him. During this time the accused Pace was taking charge of the five men and not without some difficulty.

20 The evidence indicates that a mixture made by the team trainer, Andrena Dickens, containing methyl salicylate as part of a liniment mixture was left in the football changing rooms by her. The bottle in which it was contained was not marked in any way. It was a Mount Franklin water bottle containing a "white" liquid.[16] The changing room was open and the toilet was in a corner nearest the entry door. The evidence suggests that Pace had not been to this park before and could not find the public toilet. She was directed to the changing room when she made enquiries.

21 Either before or after he went to the toilet, the deceased located the Mount Franklin water bottle which had been left by the trainer, Ms Dickens, and which contained liniment mixture. Her evidence was that she believed the bottle was half full when she left it on the bench in the changing rooms to go out and attend to her duties at the start of the game. Clearly enough, the deceased drank some portion of the liniment. The quantity consumed by the deceased ultimately was the medical cause of his death. The consumption of the liniment by Mr Chuter occurred at some time prior to 1:00 pm.

22 A contentious aspect of the evidence concerns the way in which the consumption of the substance was revealed first to Pace and then to Conduit. Ms Dickens gave evidence that during the course of the game Pace was trying to get Conduit's attention and when asked what was wrong Pace said she thought that one of the fellows that she had with her had drunk the rubbing liniment.[17] Ms Dickens said she offered to go and check in the club rooms to see if he had consumed the liniment. When she went into the changing room the bottle was lying on the change table empty so she came back out to see if the liniment was on him. She said she could smell it on him and he had an oily substance around his chin and a strong smell of liniment. She said in evidence, "I think I said to her [Pace] that I thought the liniment was poison and I thought it might have been corrosive, but I wasn't sure if it was corrosive or not, whether you'd then need to induce vomiting, or whether you'd give him water or something to cool him down." She said she was told by Pace, "The fellows have cast iron guts and they'd eat or drink anything".[18] Ms Dickens then told Pace that water might have a cooling or diluting effect and she also said in evidence-in-chief that she thought the mixture would be more upsetting because it had such a high concentration of vegetable oil in it. She said that day there was a lot of vegetable oil mixed with the liniment.

23 Ms Dickens said she would then go and get some water and went to the canteen and bought a bottle of water which she then gave to Pace. That completed her involvement. She said that during the rest of the game she looked around and asked if the man was okay. She also said that when the man who had consumed the liniment was being put into the back of the van she said to Pace that he would probably be sick or have diarrhoea. She said Pace commented that it was not her worry because it was Mother's Day and she was leaving early and Conduit would have to worry about it.

24 Later, as Conduit was leaving, Ms Dickens said she walked over and said to him that he should watch the fellow in the back of the van because he had drunk liniment. She said that he did not react to what she said.

25 Ms Dickens agreed that she had made up the liniment in her garage. She agreed that she did not notice that the liniment was poison although it became clear that there was some indication of the toxicity of the liniment on the original bottle from which she made the mixture. She said directly that she did not think the liniment was poisonous.

26 Dickens also agreed that she had Level 2 First Aid qualifications. She agreed that part of that training involves contacting Poisons Information where someone ingests something that might be poison but that at no stage did she tell Pace that she should either take Mr Chuter to a doctor, contact Poisons Information or treat the situation as a medical emergency.

27 The result of Ms Dickens' evidence was that she had made the mixture which had been consumed by the deceased. At the time she made the mixture and as at 8 May 2005 she did not know that the mixture was poisonous. There was nothing on the bottle containing the mixture which had been consumed by Mr Chuter and identified by Ms Dickens which would tell anyone that the substance was toxic. She did maintain in the course of her evidence which a jury might choose to accept that she said she thought that it was poisonous but that was not all she said. She also said that the result of consumption might be diarrhoea and vomiting and that he should be watched. Having recommended that he be watched, no recommendation was given by her, as the person who made the liniment mixture, that he should be taken to a hospital or that the situation should be treated as a medical emergency.

28 After consuming the substance, and after a discussion between the accused Pace and Ms Dickens, Mr Chuter, his fellow residents and Pace all remained at McPherson Park in Melton until the game was concluded at about 2:20 pm. Conduit was involved throughout as the coach. When the game was completed, the five residents, Pace and Conduit all left the park in the bus on which they had arrived. They then travelled from McPherson Park back to Verona Drive in Taylors Lakes via a shopping centre. On reaching the residence after doing that Mr Chuter became ill, suffering from vomiting and diarrhoea, and ultimately began to suffer from seizures as the substance affected his central nervous system. An ambulance was called at about 4:10 pm and he was taken to the hospital at Sunshine at about 4:52 pm where he was treated but subsequently died. At the suggestion of the ambulance officer a call was made to Poisons Information from the Verona Drive residence at about 4:19 pm.

29 There are two aspects to the Crown case so far as the factual circumstances are concerned. The first is concerned with what the Crown alleges was a lack of supervision by the two accused of the deceased in the period leading up to his consumption of the liniment. The second is, in effect, an allegation of a failure to obtain prompt medical treatment for him after it was known that the substance had been consumed.

30 The failure to supervise Kevin Chuter was constituted by the fact that Conduit was coaching the football team and Pace was left to care for all of the residents. It was in those circumstances that Mr Chuter went to the toilet and whilst in there consumed the liquid containing methyl salicylate. He having done so and that fact coming to the attention of Pace and later Conduit, there was, the Crown says, a combined failure to obtain prompt medical treatment for Mr Chuter.

31 The Crown submits that the consumption of methyl salicylate was the medical cause of death and that the consumption occurred in circumstances where there was a negligent failure to supervise him and that was followed by a negligent failure to obtain proper medical treatment. The negligence, they submit, was criminal in its quality in both cases.

The Submissions of the Parties and Two Factual Components of the Crown Case

32 Mr O'Connell on behalf of the accused Pace noted at the start of his submissions that the Crown case against his client is based on two heads of negligence - failure to adequately supervise Mr Chuter and, once the substance had been ingested, a failure to obtain prompt medical attention. A question arises as to how these two parts of the case should be treated. Mr O'Connell submits that they must be examined separately in the unusual circumstances of this case, whereas Ms Forrester submits that the two parts "... cannot be separately required to have caused the death of Kevin Chuter before they can be relied upon to establish causation."

33 There are several circumstances where conduct is criminalised as grossly negligent. An example is the offence of culpable driving. In many such cases, there are a combination of circumstances operating in parallel which underpin such prosecutions. Usually they will include the consumption of alcohol or drugs; high speed; and erratic and risky driving. A jury might consider all of those facts in combination. However, in this case the two parts of the Crown case are, in my opinion, to be considered separately and I regard an attempt to combine them as not only difficult as a matter of logic but dangerous in that the true sequence of events and their significance might be clouded. The allegations of failure to supervise and the failure to obtain medical treatment do not occur in parallel. They occur sequentially and, as Mr O'Connell submits, they are causative of different events.

34 Although Mr O'Connell did not deal with them in this order, the first step in the analysis should concern the alleged failure to supervise Mr Chuter resulting in his consumption of the methyl salicylate. That is a failure which the Crown says is negligent to a criminal or gross level and is a failure of both accused which began with Conduit becoming involved in the football game and which culminated in Mr Chuter's consumption of the liniment mixture.

35 On behalf of Pace, Mr O'Connell submits that the alleged failure to adequately supervise Mr Chuter could not be found beyond reasonable doubt to be grossly or criminally negligent. That question concerns whether the conduct in failing to supervise Mr Chuter involved such a grave falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that death or really serious bodily injury would follow that the doing of the act merits criminal punishment. In his submissions, Mr O'Connell said:

... what's submitted is that during the time leading up to the ingestion, the failure to adequately supervise cannot be characterised as being grossly negligent, and is not capable of being characterised as grossly negligent for two reasons. One is that it couldn't, in the light of previous experience, constitute such a significant departure from the applicable standard of care that it merits criminal punishment. In other words it's put it's not capable of getting that high. Secondly, and perhaps more importantly, the manner of supervision is not capable of sustaining the allegation that such manner of supervision held a high risk of death or really serious injury. It's just not capable of doing that, with respect.[19]

36 This occasion was not the first time these men, including Mr Chuter, were taken on outings beyond the confines of the Taylors Lakes residence. There is evidence before the jury about other outings in which they were involved. Such outings were encouraged as part of their care,[20] and were regarded as important with such events sometimes occurring once per week on the weekend. When there were outings, the practice was that there would be two carers,[21] although there were no hard and fast rules and these were matters of judgment.[22] The supervisor of the two accused agreed in evidence that in such outings there were risks, but they were weighed against the benefits of the outings.[23] Additionally, it would seem clear on the evidence that Mr Chuter and his fellow residents had been taken to the football in which the accused Conduit was involved on several occasions apart from the day when this incident occurred.[24]

37 There was therefore a previous experience which had not revealed dangers so far as the residents were concerned. A question arises as to whether there was anything which occurred on 8 May 2005 which was such a significant departure from the standard and which carried with it a high risk of death or really serious bodily injury. In my view there is no evidence that on this occasion there was a heightened risk differentiating 8 May 2005 from other occasions.

38 In addition, in examining the standard of supervision by Pace and Conduit, other evidence in the form of the "Client Profile" for the deceased indicates, on the question of his supervision, that he was independent in relation to dressing and undressing though requiring assistance with shoes laces and, in relation to toileting he was "independent" although it was noted he did wet himself occasionally.

39 Ms Forrester, on behalf of the Crown, submitted that the two accused knew that Mr Chuter had no protective mechanism and that he would eat anything and "gulp" his drinks. They also knew that he had an inability to communicate and to indicate when he was sick. There could, she submitted, have been anything in the room into which Mr Chuter entered and she argues that sending him into that room "blind" is what enabled him to consume the substance in the bottle. The Crown does submit that the failure to supervise must of itself be grossly negligent. Ms Forrester submitted:[25]

One must look at the extent of the duty that they had to them in order to determine how gross the negligence is, in our submission; these people were engaged to care full-time for these people because they needed full-time care for very particular reasons, and that then flows on to the fact that the failure to supervise in these circumstances is such a gross omission that what then occurred is something for which they should suffer criminal punishment.

40 On the basis of the evidence as it stands, as to the allegation of a failure to supervise in the period leading up to the consumption by Mr Chuter of the liniment, I am unable to identify any evidence the jury could rely upon to conclude that that conduct was criminally negligent - i.e. that there was such a significant departure from the applicable standard of care that it merits criminal punishment. Further, whatever might be the case in the application of the civil law of negligence, I agree that the manner of supervision is not capable of sustaining the allegation that its quality held a high risk of death or really serious injury.

41 In my opinion, the Crown case proceeds on a thesis that if the accused Conduit had not been coaching the football team but had rather been with the accused Pace, the consumption of the liquid by Mr Chuter would not have occurred. This is effectively a "but for" approach and raises the further issue of whether, even if the failure to supervise could be regarded as negligent to the required degree, it could be said to have been the cause of death. As Redlich J (as he then was) noted in R v Cuong Quoc Lam,[26] the test of causation is whether the omission, as it is in this case, substantially contributed to the death of the victim. Reliance is placed on the observations of Kirby J in Arulthilakan v R,[27] and I also refer to the observations of McHugh J in Royall v R,[28] where his Honour said:

If [Royall's] conduct ... induced the deceased to jump out of the window so as to avoid further attack, it might be thought that "but for" the attack the deceased would not have lost her life and that the applicant, therefore, had caused her death. But this Court has recently rejected the proposition that in the law of negligence the test of causation at common law is the "but for" test: March v Stramare (E & MH) Pty Ltd. In criminal cases, the common law has also refused to apply the "but for" test as the sole test of causation. Nevertheless, the "but for" test is a useful tool in criminal law for determining whether a causal link existed between an accused's act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility, to that person.

42 In my opinion, the link between the alleged omission and the death of Mr Chuter, on the evidence as it presently stands, would not be sufficiently cogent to attribute causal responsibility.

2. The Failure to Obtain Medical Treatment and the Issue of Causation

43 Mr O'Connell's submissions also dealt with the alleged failure to obtain medical treatment. As to that allegation he submits that, even if a jury concluded that such a failure was grossly negligent, and he does not submit that such a conclusion could not be reached, the jury have no evidence on which to reach a conclusion that the failure to obtain prompt medical attention was the cause of death.

44 Whether the manner in which Mr O'Connell has segmented his submissions is appropriate, in my opinion if the conclusion is reached that the jury could not be satisfied beyond reasonable doubt that the failure to supervise was criminally negligent for the reasons I have already identified, substantial problems are created for the balance of the Crown case. Although Ms Forrester submits to the contrary, in my opinion these steps in the Crown case must be examined separately. If the failure to supervise in the period leading to ingestion was not criminally negligent, it cannot be converted into that status by anything that happens subsequently. What occurs subsequently is an allegation of a different nature and a jury would need to consider the evidence supporting that allegation carefully and separately. Indeed, that was the manner in which the Crown case was opened to them.

45 It means that the medical cause of death was the consumption of the methyl salicylate liquid in circumstances that were not criminally negligent and leaves an issue as to whether any failure to obtain medical assistance was itself criminally negligent and, if it was, whether it was the substantial and operating cause of death.

46 Mr O'Connell's submission on this topic is largely based on the evidence given yesterday by the Crown's expert witness, Dr John Fergus Kerr. Dr Kerr is, among other things, the consultant medical toxicologist at Austin Health and Director of Emergency Medicine. On this direct issue of causation, at the conclusion of his evidence in chief he said:[29]

If this man had received treatment within an hour of having ingested the substance, what would you say about his prospects of survival?---At our hospital, I would be disappointed if he didn't survive.

If he had been received within an hour, could you say whether the provision of activated charcoal would likely have assisted him?---It is likely. I don't know - it's very hard to quantify but he would still have had salicylate in his stomach and so the charcoal would have bound to that and prevented a further absorption.

What would you say about the medical implications of waiting three hours, post ingested, in terms of this man's prospects for survival?---Three hours is a long time, I suppose, after any serious ingestion to wait and I think the evidence as given to me suggests that it was long enough, obviously, for the levels to rise to a dangerous level, a dangerous area.

47 Dr Kerr went on in cross examination to agree that Mr Chuter had consumed a large amount of methyl salicylate and that it was a severe poisoning.[30] He agreed that immediate attention was required. He agreed it was a high ingestion of a highly toxic substance and in its liquid concentrated form, it was rapidly absorbed by Mr Chuter's system.[31] He was then asked:[32]

And that death commonly occurs in cases of high level ingestion, notwithstanding the institution of prompt medical treatment?---Yes.

The moment that someone accidentally drinks a relatively large amount of methyl salicylate, an amount that ultimately might cause seizures, we're really dealing with a medical emergency, aren't we?---Yes.

48 As to the prospects of survival, he was asked:[33]

Notwithstanding the institution of prompt treatment, there would, nonetheless remain a reasonable possibility that the person would die notwithstanding that prompt treatment. You agree with that, don't you doctor?---There's a possibility - a distinct possibility. I wouldn't like to qualify that. I think there's just a possibility that's one of the potential outcomes, is that a patient survives. To the other end of the spectrum, the patient dies. That's the same with any interaction with a doctor.

Given the difficulties and the uncertainties that we've referred to, we're not speaking of a speculative or fanciful possibility. We're talking about a real possibility that this man might have died, even if he'd got the appropriate treatment?---Yes, there's that possibility. It's a possibility.

I mean the case reports and studies that you've used for the purposes of formulating your opinion show that fatal outcomes occur despite relatively prompt treatment being instituted in that case or in those cases?---Especially with methyl salicylate, I think the case reports do show survival but they also show death and it remains a possible outcome.

So recovery is one of the range of potential outcomes, perhaps the most likely. You'd agree with that?---Correct.

But even if recovery is the more likely, death remains nonetheless a real possibility?---Yes.

49 Mr O'Connell submits that in those circumstances, the omission to get medical treatment did not supervene the material event, being the ingestion of the substance so as to become the substantial and operating cause of death.

50 Mr O'Connell referred to a list of cases,[34] all of which support his proposition, he submits, that unless the Crown could establish beyond reasonable doubt that the failure to obtain prompt medical attention for Mr Chuter was the substantial cause of Mr Chuter's death, then the case should not be left to the jury pursuant to the criteria I referred to at the commencement of this ruling.

51 The Crown prosecutor referred me to the judgment of the English Court of Appeal in R v Misra & Anor.[35] The appellants were doctors who had been convicted by a jury of the manslaughter of a patient. The allegation of criminal negligence centred around the alleged failure to make an adequate diagnosis of the patient's illness. Relevantly for this case, there had been a submission of no case to answer at the conclusion of the Crown case which asserted that the Crown had failed on the issue of causation. That submission was based on the evidence suggesting that the deceased might have died from toxic shock syndrome or from developing the consequences of the condition before negligence could be established against either appellant. The Court of Appeal concluded that the submission of no case was "untenable". The causation issue was, they concluded, entirely for the jury and that success of the submission would have been a usurpation of the jury's function. The Court did not, however, analyse the causation issue any further in the context of authority or refer to the test that would have applied to such a submission. I note that R v Galbraith, considered by the High Court in Doney, was a judgment of the Court of Appeal but the Court in Misra did not discuss the test applicable to a submission of no case to answer.

52 In my opinion, the authorities by which I am bound make it clear that whilst all elements of a given offence are matters for a jury to determine, that can only be in circumstances where the evidence is capable of supporting a verdict of guilty. If there is a "defect" such that a verdict of guilty cannot be sustained, then a verdict of not guilty must be directed.

53 In my opinion, if the initial failure to supervise Mr Chuter is incapable of being treated as criminally or grossly negligent then the ingestion of the methyl salicylate does not occur as a result of criminal conduct on the part of the two accused. The consumption of the methyl salicylate mixture is the medical cause of death. The only remaining question is whether the substantial and operating cause of death is the failure to seek prompt medical treatment, putting aside the question of whether that failure was criminally negligent. As the learned Crown Prosecutor points the test is not whether it was the sole, direct or immediate cause of death but whether it was the substantial and significant cause of death.

54 Given the evidence of Dr Kerr that there was a reasonable risk of death even if prompt and appropriate medical treatment had been obtained, in my view it would not be open to the jury to conclude beyond reasonable doubt that any criminally negligent failure to seek medical treatment (if they so concluded) was the substantial cause of death.

55 After anxious consideration, in my opinion I should uphold the application on behalf of the accused and direct the jury to bring in verdicts of not guilty.

[1] [1990] HCA 51; (1990) 171 CLR 207.

[2] [1983] VicRp 101; [1983] 2 VR 410.

[3] Doney [1990] HCA 51; (1990) 171 CLR 207, 213, quoting R v Galbraith [1981] 1 WLR 1039, 1042 (emphasis in original).

[4] Doney [1990] HCA 51; (1990) 171 CLR 207, 214.

[6] Ibid 211. See also a brief but helpful review by Forrest J in R v Barnes [2008] VSC 66, and his Honour's references to R v Cengiz (1998) 3 VR 720 at 721 (per Ormiston JA), and 735 (per Harper AJA).

[10] [1977] VicRp 50; [1977] VR 430, 445.

[11] [1973] AC 576.

[12] [1994] UKHL 6; [1995] 1 AC 171.

[13] See R v Richards & Gregory [1998] 2 VR 1, 9.

[14] [2005] HCA 37; (2005) 222 CLR 67.

[15] [1992] HCA 31; (1992) 174 CLR 313, 333.

[16] Transcript at 936 (Senior Constable Woolfe).

[26] [2005] VSC 296.

[27] [2003] HCA 74; (2003) 203 ALR 259.

[28] [1991] HCA 27; (1991) 172 CLR 378.

[34] R v Everuss (Unreported, 17 June 1987, Supreme Court of Victoria, Hampel J); R v Smith (1993) 117 A Crim R 298 (per Coldrey J); R v Pretty (Unreported, 22 February 1997, Supreme Court of Victoria, Coldrey J); R v Colomer (Unreported, 17 August 1990, Supreme Court of Victoria, Smith J); R v Jones & Waghorn (1991) 55 A Crim R 159; R v Evans & Gardiner [1976] VicRp 53; [1976] VR 523.

[35] [2004] EWCA 2375.