R v Rao [1999] ACTSC 132

Supreme Court of the ACT|1999-12-10|Before: Crispin J

THE QUEEN v MADHAVI RAO [1999] ACTSC 132 (10 December 1999)

CRIMINAL LAW - trial by judge alone - test for determining whether prima facie case - power to return a verdict of not guilty after close of Crown case on basis of insufficiency of evidence - whether power the same as that of a jury - whether evidence must be so weak and tenuous as to be incapable of satisfying a reasonable tribunal of guilt - whether sufficient that there be a reasonable doubt as to guilt.

CRIMINAL LAW - murder - common purpose - circumstances in which withdrawal or exclusion prior to offence will absolve from criminal responsibility - whether requirement to undo or compensate for prior encouragement and assistance - termination of criminal enterprise by principal offender - whether accomplice thereby absolved of criminal responsibility.

CRIMINAL LAW - involuntary manslaughter - circumstances in which law will recognise duty of care - whether complicity in creation of danger sufficient - nature of breach of duty required - whether any such breach a proximate cause of death.

CRIMINAL LAW - offences of attempted murder and administering a stupefying drug likely to endanger human life - whether complicity in offences proven.

Crimes Act 1900, 12(1), s 15, s 27, s, 345, s 347

In Questions of Law Reserved on Acquittal (No 2 of [1993] SASC 4152; 1993) 61 SASR 1

R v Taktak (1988) 14 NSWLR 226

Jones v United States of America 308F 2d 307 (1962)

Gibbins and Proctor (1918) 13 Cr App R 134

R v Lawford & VandeWeil [1993] SASC 4247; (1993) 69 A Crim R 115

1. The accused is not guilty of the offence charged in the first count of the indictment namely that on or about 26 October 1997 at Canberra in the Australian Capital Territory she murdered Giuseppe Joe Cinque.

2. The accused is not guilty of the offence charged in the second count, namely that on or about that date she did unlawfully and feloniously slay Giuseppe Joe Cinque.

3. The accused is not guilty of the offence charged in the third count, namely that between 23 October 1997 and 26 October 1997 at Canberra she attempted to murder Giuseppe Joe Cinque.

4. The accused is not guilty of the offence charged in the fourth count, namely that between those dates she intentionally and unlawfully attempted to administer to Giuseppe Joe Cinque a stupefying drug, to wit heroin, likely to endanger human life.

1. The accused was arraigned on the following charges:

(a) that on or about 26 October 1997 at Canberra in the Australian Capital Territory she murdered Giuseppe Joe Cinque;

(b) in the alternative, that on or about that date she did unlawfully and feloniously slay Giuseppe Joe Cinque;

(d) in the alternative, that between those dates she intentionally and unlawfully attempted to administer to Giuseppe Joe Cinque a stupefying drug, to wit heroin, likely to endanger human life.

2. Upon her arraignment she pleaded not guilty to each charge.

3. Since the accused elected to be tried by judge alone I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

4. Accordingly, it is appropriate to begin with a brief explanation of the nature of each offence charged.

5. The offence of murder is defined by subs 12(1) of the Crimes Act 1900 in its application to the Australian Capital Territory which is in the following terms:

"A person commits murder if he or she causes the death of another person:

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person."

6. The offence charged in the second count in the indictment is one of manslaughter. The relevant portion of s 15 of the Crimes Act is in the following terms:

"(1) Except where a law expressly provides otherwise, an unlawful homicide that is not, by virtue of section 12, murder shall be taken to be manslaughter."

This provision obviously casts little light on the nature of such an offence. However, the law recognises two categories of this offence, namely, voluntary and involuntary manslaughter. Voluntary manslaughter is committed if a person kills another in circumstances that would satisfy all of the elements of murder but under provocation is defined in s 13 of the Crimes Act, or diminished responsibility as defined in s 14. Involuntary manslaughter is committed if a person kills another by an unlawful and dangerous act or by criminal negligence: see Wilson v R [1992] HCA 31; (1992) 174 CLR 313 at 333.

7. The Crimes Act does not create any specifically defined offence of attempted murder and the offence charged in the third count is dependent upon s 347 which provides that a person who attempts to commit an offence under a law of the Territory is guilty of an offence punishable, on conviction, as if the attempted offence had been committed.

8. The offence charged in the fourth count arises under s 27 of the Crimes Act which provides, inter alia, that it is an offence to administer to another person any stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause a person grievous bodily harm. Heroin undoubtedly falls within this description.

9. As in other criminal trials the accused is entitled to the presumption of innocence, the burden of proving each of the elements of each of the offences charged lies upon the Crown and the standard of proof required is proof beyond reasonable doubt.

10. The accused had been arraigned on substantially the same charges as those contained in the first, third and fourth counts on the indictment with a co-accused, Ms Anu Singh on 6 October 1998. However, when that trial had proceeded for four weeks it became apparent that evidence which was potentially important in the case against the accused was not admissible against Ms Rao and might cause unfair prejudice if the trial continued. Accordingly, on 11 November 1998 I was obliged to discharge the jury and direct that Ms Singh and the accused be tried separately.

11. Ms Singh has since been tried and found not guilty of murder by reason of diminished responsibility but guilty of the manslaughter of Mr Cinque.

12. It was agreed between counsel that significant time and expense might be saved if a substantial portion of the evidence which had been adduced at the earlier joint trial were to be admitted in the present trial without recalling the relevant witnesses. For that purpose, the accused, upon the advice of her counsel, consented under s 190 of the Evidence Act 1995 (Cth) to dispense with the requirement in subs 65(1) of that Act which limits the application of the section to circumstances where those who have made previous representations are not available to give evidence about the facts. The bulk of the transcript was then tendered by consent and marked as an exhibit. Since I had been the presiding judge at the earlier trial and had had the opportunity of observing each of the witnesses give evidence it was agreed that the demeanour of the relevant witnesses should also be treated as evidence in the present trial. Further witnesses were then called and other documentary evidence was adduced.

13. At the conclusion of the Crown case Mr Lasry QC submitted that his client was entitled to verdicts of not guilty on each count in the indictment because the evidence was insufficient to raise a prima facie case against her in relation to any of the offences so charged.

14. Such a submission inevitably requires the application of a very stringent test. There is a traditional division of functions between a judge and jury in a criminal trial. The responsibilities of the judge extend to ruling on any issue as to whether the evidence, if accepted by the jury, would be sufficient in law to establish the guilt of the accused in relation to the relevant charge or charges. It is for the jury to determine whether that evidence should be accepted and hence whether the guilt of the accused has been so established. As the High Court of Australia said in Doney [1990] HCA 51; (1990) 50 A Crim R 157 at 162, "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." In Case stated by DPP (No 2 of 1993) 70A Crim R 323 at 326 King CJ observed that it is not the function of the judge in considering an issue of this kind to choose between inferences which are reasonably open to the jury. The judge must decide the matter upon the basis that the jury will draw such inferences reasonably open as are most favourable to the prosecution. In the present case, of course, there is no jury but that fact does not of itself change the nature of the test which must be applied in determining whether there is a prima facie case.

15. In the alternative, Mr Lasry submitted that I should exercise the right that would otherwise repose in a jury to bring in verdicts of not guilty on the basis that the evidence is insufficient to justify a conviction.

16. The right to which this submission referred was discussed by King CJ in Prasad (1979) 2A Crim R 45 at 47:

"It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence that they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings, Archbold Criminal Pleading and Practice 39th ed. (1976) P. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal, which is the judge of both law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding the fact that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts it cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts."

17. His Honour had been primarily concerned with the question of whether a judge could direct an acquittal on the ground that any conviction would be unsafe and unsatisfactory or whether such a step would involve usurping the role of the jury. This was, of course, the issue ultimately resolved by the High Court's decision in Doney. It may be noted, however, that this formulation involves an apparent distinction between the right of a jury to return a verdict of not guilty and the `analogous' right enjoyed by a magistrate or other court charged with the responsibility of determining issues of both law and fact. It seems to acknowledge that a jury has an untrammelled right to return such a verdict but to assert that a judge or magistrate hearing a criminal case without a jury could do so only if the view that "the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it". Unfortunately, the judgment contains no discussion as to the reason for any such distinction. His Honour may have assumed that any right not so qualified would have been inconsistent with then current practice, which like a forensic version of `Pick-a-Box', required defendants to elect whether to argue that the case against them had been insufficient to prove their guilt beyond reasonable doubt or to give evidence in their own defence. The judgment was delivered twenty years ago which was, of course, before the advent of trials by judge alone in the superior courts and his Honour could not have had in mind major trials for offences as serious as murder.

18. Mr Golding who appeared on behalf of the Crown submitted that even in a trial by judge alone a judge should not return a verdict of not guilty at this stage of the proceeding unless satisfied of this requirement. I am unable to agree. In my view, it would be quite inappropriate for a judge to decline to return a verdict of not guilty when the prosecution case had failed to satisfy him or her of the guilt of the accused to the requisite standard merely because of an inability to be satisfied that no reasonable tribunal could have come to a contrary view. To accede to such a proposition would result in the trial continuing at considerable financial cost to both prosecution and defence, a waste of court time, inconvenience to any further witnesses called and, most importantly, further emotional strain not only for the accused and others such as the families of alleged victims. Yet, the whole exercise would be a futility. The only conceivable advantage which it might offer to the prosecution would be the slim chance that an ineptly presented defence might fill in some of the deficiencies in the Crown case. That possibility could provide no justification for proceeding with a trial after the Crown had closed its case and the evidence adduced, even if unanswered, was insufficient to prove the guilt of the accused.

19. In any event, of such a distinction cannot be maintained in the face of the provision of s 68C of the Supreme Court Act empowering a judge who tries criminal proceedings without a jury to "make any finding that could have been made by a jury as to the guilt of the accused person . . .". It may be unnecessary and perhaps undesirable to hear full argument at the close of the prosecution case as to whether it is adequate to establish the guilt of the accused beyond reasonable doubt unless there is some aspect of the evidence which fairly raises that issue. However, in the light of s 68C it cannot be said that a judge's power is constrained in the manner suggested by King CJ in Prasad and that even if satisfied that the Crown has failed to prove the guilt of the accused beyond reasonable doubt he or she is required to preside over the balance of the trial notwithstanding its futility.

20. It should be noted that the Crown does not allege that the accused did any act which directly caused the death of Mr Cinque on 26 October 1997. Nor does it allege that she did any antecedent act which of itself constituted an attempt to kill him or to administer a stupefying drug. The case against the accused in relation to each of the first, third and fourth counts in the indictment is based upon the contention that she is criminally responsible for acts of Ms Singh because she formed a common purpose with her to kill Mr Cinque or because, in the words of s 345 of the Crimes Act, she aided and abetted, counselled, and/or was knowingly concerned in offences she committed and is deemed to have herself committed such offences. The case against her in relation to the second count in the indictment is essentially based upon the contention that she failed to save Mr Cinque from death at the hands of Ms Singh.

21. The Crown alleges that late on Friday, 24 October 1997 or in the early hours of the following morning Ms Singh, aided by the accused, drugged Mr Cinque by means of Rohypnol tablets and injected him with heroin. On this occasion Mr Cinque survived the administration of this drug but the Crown alleges that Ms Singh had nonetheless administered it with the intention of causing his death. The accused is alleged to have assisted and encouraged Ms Singh in this attempt on his life. It is on this basis that the Crown submits she is guilty of the offence of attempted murder which is charged in the third count on the indictment.

22. The fourth count, which is in the alternative to the third, reflects the Crown's contention that even if the evidence is insufficient to prove to the requisite standard that Ms Singh had intended to cause the death of Mr Cinque or that the accused had been a party to such an intention, it is nonetheless sufficient to establish that Ms Singh had intentionally and unlawfully administered heroin to him, that the accused had at least been complicit in that act and that the heroin so administered was a stupefying drug likely to endanger human life.

23. The Crown also alleges that in the early hours of 26 October 1997and perhaps again later that morning Ms Singh, having again drugged Mr Cinque with Rohypnol, injected him with further quantities of heroin with the intention of causing his death. As a result of the administration of these drugs Mr Cinque died. The Crown does not suggest that the accused was present nor even that she was still party to any joint criminal enterprise to kill Mr Cinque. On the contrary, it is conceded that there is evidence to the effect that she had either withdrawn from that enterprise or been effectively excluded from it by Ms Singh. However, the Crown maintains that she is guilty of murder as charged in the first count on the indictment because she had already aided, abetted and encouraged Ms Singh in her plan to kill Mr Cinque and her withdrawal or exclusion from the joint enterprise could not absolve her of criminal responsibility for the crime as she had not taken steps reasonably open to her to neutralise the effect of that aiding, abetting or encouragement.

24. The second count, which is in the alternative to the first, charges the accused with manslaughter. The Crown alleges that she is guilty of involuntary manslaughter because:

(i) having been to the house occupied by Ms Singh and Mr Cinque on the morning of 26 October 1997 and seen him unconscious she knew he was in imminent danger of death;

(ii) she was under a duty of care at that time to the deceased;

(iii) she omitted to obtain medical treatment or assistance for the deceased;

(iv) that omission was the proximate cause of the deceased's death;

(vi) whilst she did not have any intention of causing death, the circumstances were such that it involved a great falling short of the standard of care which a reasonable person would have exercised and involved a high risk that death would follow.

25. Alternatively, the Crown alleges that she was under a duty of care to Mr Cinque, that it was grossly and criminally negligent to fail to warn him of his imminent peril and that such failure was a proximate cause of his death.

The allegation that Ms Singh murdered Mr Cinque

26. The accused and Ms Singh were both students at the Australian National University and had been friends for some time prior to Mr Cinque's death.

27. As time went by Ms Singh apparently became increasingly obsessed about her physical condition. She told people that she was suffering from a wide range of physical illnesses but ultimately seemed to become convinced that she was suffering from some form of neurological illness which caused significant muscle wasting. She apparently believed that the illness was degenerative, irreversible and ultimately terminal. Whilst no medical evidence was called on this issue it seems to have been common ground that she suffered from no such illness and that her beliefs were the product of a psychological condition.

28. Ms Singh formed a relationship with Mr Cinque in 1996 and they began to live together in a semi-detached house at 79 Antill Street, Downer. They appeared to be a happy and affectionate couple. However, it is clear that Ms Singh gradually developed a psychological illness which became increasingly severe. She came to believe that the illness from which she was convinced she was suffering had been caused by an allergic reaction to Ipecac syrup which she had apparently taken at Mr Cinque's suggestion.

29. Ms Singh was plainly an intelligent young woman but she had been prone to behaving in a histrionic manner and to making melodramatic statements. She was described by Mr Bowers-Taylor as "outgoing" and "dramatic". Mr Mancini used the less flattering adjectives of "psycho" and "fixated". He agreed with Mr Lasry's suggestion that to some extent he had regarded his contact with her as "one of life's liabilities". She often spoke of suicide. Indeed Mr Mancini said that she had spoken of killing herself on innumerable occasions from the beginning of 1997 or possibly even earlier and continued to do so almost on a daily basis throughout the year. However a number of Crown witnesses said that they had been sceptical of her claimed illnesses and did not believe that she intended to kill herself. As Ms Cammack pointed out, she had been complaining of severe muscle wasting at a time when there had been no physical sign of such a condition. On the contrary, she had appeared to be perfectly normal and healthy. When Ms Lord was asked about whether Ms Singh had been going through the motions of trying to get a gun she agreed that it had `looked like a show' to her and that she had not been surprised that no gun was ever obtained. Similarly, it had come as no surprise to her that heroin had been purchased ostensibly for the purpose of suicide but then used for another purpose. She agreed that it was "all a bit of a production".

30. Later when she said that she was intending to kill Mr Cinque her statements were treated with similar scepticism. Mr Mancini gave evidence that at some stage during 1997 Ms Singh asked him to get her a gun not only so that she might commit suicide but also so that she could kill Mr Cinque. At a later stage but at least as early as August 1997 she told him that she was going to kill herself and Mr Cinque with heroin. He had not believed her. Indeed, he agreed with the proposition that he had thought it "ludicrous" that she would kill either herself or Mr Cinque.

31. The climate of scepticism engendered by Ms Singh's prior behaviour clearly prevented others from realising that Mr Cinque may have been in real danger.

32. It is impossible to determine whether Ms Singh's earlier threats of suicide reflected any real determination to take her own life. Whilst she spoke about suicide constantly she appeared to have taken no actual steps towards ending her life at least until the latter part of 1997. Similarly, it is impossible to say whether her early statements about killing Mr Cinque reflected any real homicidal intention. Nonetheless, it is clear that her initial flirtation with the idea ultimately hardened into such an intention.

33. The evidence of Ms Cammack revealed the tragic consequences. Ms Singh made a telephone call to her about midday 26 October 1997. She sounded hysterical. She told Ms Cammack that she had just given Mr Cinque a deal of heroin. He was unconscious and she was worried about him. However, she could not ring the paramedics because he had not known that she had given him the drug and if he found out he would be furious. Ms Cammack told her to ring the paramedics so that they could give him Narcan and assured her that would almost certainly revive him. In a manner which Ms Cammack described as an hysterical and manic vein, Ms Singh maintained that she couldn't ring the paramedics. She later said that he was not breathing and that he had been vomiting. Ms Cammack told her that she had no right to take a person's life and that she was selfish. She insisted that she ring the paramedics so that `Narcan' could be administered. Ms Singh told her that she thought he might be dead but she eventually agreed to ring an ambulance. She terminated the call but rang back almost immediately to again say that she couldn't call the paramedics . Ms Cammack shouted, "If you ring the paramedics you'll have an angry boyfriend. If you don't you'll have a murder charge". Ms Singh said "oh yeah, shit you're right and then hung up". It is clear that she subsequently rang the ACT Ambulance Service but when the paramedics arrived Mr Cinque was already dead.

34. Evidence of the conversation with Ms Cammack was adduced in leading form with the express consent of Mr Lasry. I am satisfied on the whole of the evidence that Ms Singh drugged Mr Cinque with Rohypnol and subsequently administered one or more dosages of heroin with the intention of causing his death. I am also satisfied from the evidence of Professor Herdson, the pathologist who carried out the post mortem examination, that death was caused by the administration of those drugs.

35. The Crown's contention that the accused formed a common purpose with Ms Singh to kill Mr Cinque or alternatively aided and abetted her in that endeavour is dependent upon circumstantial evidence. To prove any element of an offence on that basis the Crown must prove beyond reasonable doubt that there is no other reasonable hypothesis consistent with the facts established by the evidence.

36. In the present case the Crown relies upon the sequence of events leading up to Mr Cinque's death and certain statements made by the accused subsequently.

37. In July 1997 a witness who for present purposes shall be referred to as Ms J saw the accused and Ms Singh at the Australian National Library. They asked her to lend them some money for the photocopier and she noticed that the books they had concerned suicide. The accused told her that they had them for a law course. The Crown does not suggest that any common purpose to kill Mr Cinque had then been formed but the incident does reflect Ms Singh's preoccupation with suicide.

38. In July or August Ms Singh contacted another law student, Mr John Bowers-Taylor, and asked him if he could obtain a gun for her. She said that she wanted to commit suicide and explained that she was sick and had permanent neurological damage. He told her that it would be impossible. Sometime later he saw her with the accused in a car at Bunda Street in Civic. He asked Ms Singh why she was there and she told him that they were waiting to speak to someone about a gun. He laughed and told her it would be a good way to get "ripped off".

39. In early August she approached another law student, who for present purposes shall be referred to as Mr T, told him that she wanted to kill herself and asked him if he could get her a gun. She explained "I want to die, I'm sick, I've had enough of this life". He invited her to his house and she arrived shortly thereafter with the accused. Ms Singh then told him that she was very ill and explained the nature of her illness in some detail. She said that she did not see any point in living and that she wanted to kill herself. She had thought about a lot of different methods but decided that the best way was to use a gun. Mr T told her that he had recently been depressed, had considered suicide and had in fact attempted it but had ultimately seen light at the end of the tunnel. He thought that she could also overcome her problems. A few days later she rang him again to ask him if he had been able to find out whether he could obtain a gun for her. He said "no".

40. In or about August the accused introduced Ms Singh to a young woman named Bronwyn Cammack whom they had met in Garema Place. There was some conversation about a man whom Ms Cammack had pointed out and Ms Singh abruptly asked "can you get a gun?". She had a conversation with the man during the course of which money was mentioned but no transaction was concluded. She later told Ms Cammack that she had an allergic reaction to medication called Ipecac which had been given to her by her boyfriend. As a consequence she had contracted a disease which would waste her body away and wanted to use the gun to kill herself.

41. In August or September Ms Singh again contacted Mr T by telephone and asked him how easy it was to overdose on heroin and die. He explained that a person would stop breathing instantly and be dead within a number of minutes. She asked how much heroin would be needed to overdose and die and he told her "approximately $50 to $100 worth for someone that wasn't an addict or more for someone that was an addict". He said that she could buy one deal for $50 or a half gram for $250. She told him that she would like to buy a half gram but that she didn't then have the money.

42. About a week later he met the accused who told him not to worry about Ms Singh and said that she didn't think that she would go through with getting the heroin. However, Ms Singh subsequently rang him to tell him that she had the money and would like to buy a half gram of heroin. She and the accused then came to his house. He was given $250 and left to purchase the heroin. When he returned he used some of it himself then prepared a different syringe and injected some heroin into Ms Singh's arm and then used the same syringe to inject further heroin into the arm of the accused.

43. About a week later Ms Singh contacted him again about buying more heroin and then purchased "two half weights" or one gram of heroin for $500. On this occasion Mr T injected a small amount of the heroin into Ms Singh and the balance of the heroin was placed into two syringes. He asked Ms Singh why she wanted so much heroin and why she wanted it in two syringes. She told him that someone was coming with her. He asked "What! You mean someone wants to commit suicide with you?". She said "yes".

44. At some stage Ms Singh also rang Ms Cammack to ask about the availability and cost of heroin.

45. At a time which may have been in late September Ms Singh contacted Mr Bowers-Taylor and told him that she and the accused were trying to use heroin but could not find their veins. She and the accused then came to his house and he showed Ms Singh how to inject herself with heroin. He said that Ms Singh was "squeamish" about injecting herself but eventually managed to do so. She then told him that she was going to have to inject the accused and asked him to show her how to inject another person. A few days later Mr Bowers-Taylor went to Ms Singh's house intending to buy a small quantity of heroin from her. However she was apparently asleep. She subsequently rang him to ask why he had come over and, when he explained, told him that she would not have been able to sell him any heroin because she needed it all to kill herself.

46. Ms Singh and the accused subsequently made a brief visit to ask him to unblock a syringe apparently containing heroin which Ms Singh had bought from him. He noticed that the second syringe was empty.

47. On 20 October 1997 there was a dinner party at the home shared by Ms Singh and Mr Cinque at 79 Antill Street, Downer.

48. On 21 October Ms Singh spoke to Ms Cammack about obtaining Rohypnol tablets for her. Ms Cammack told her that she could obtain a prescription for her from a general practitioner who had previously prescribed them for her. Ms Singh offered to give her some heroin if she would obtain the tablets.

49. On the same day the accused had a conversation with Mrs Robyn Mantoszko. She said that the accused appeared flustered and started "rambling". She told her that she had been looking over her shoulder for police but when Ms Mantoszko asked her what she meant by that gave no reply. She then said that her friend was suicidal. Ms Mantoszko then asked whether her friend was serious about that and the accused said yes. Later that afternoon there was a further conversation. The accused said that Canberra was a strange place. Her friend had asked her to get twenty people together for a dinner party and she just drove around and knocked on people's doors. She said that it was amazing. By 9.30 they had thirty people there. She went on to say that the party was really strange and that something really serious had happened. She said that it had been bizarre and that she had been looking over her shoulder for police. When asked what had happened she said that it had been really strange. Ms Mantoszko then began to probe for an explanation, asking whether it had had anything to do with sex, with drugs, with some sort of game like Dungeons and Dragons or with the occult. The accused said "No, it's the major crime of the century since 1901". Ms Mantoszko asked whether someone had been raped. The accused said, "No, it's the worst thing in the Crimes Act". Ms Mantoszko said that she then looked at a colleague, Mr Russell Baker, who was also present and said "murder". She said that Russell nodded and repeated the word and she then turned to the accused and asked "do you mean murder". The accused said "murder" in a low soft voice and then turned away. Ms Mantoszko asked her whether animals were involved and, when the accused denied that, asked "was someone murdered?". The accused again said "no", then turned away and said that she didn't want to talk about it any more.

50. It should be noted that Ms Mantoszko did not refer to the use of the word murder during her statement to the police in January 1998. She explained that though the conversation was obviously about murder the use of the word had slipped her mind and she was reminded of it only after being cross-examined at the committal proceedings. Mr Baker could not recall the accused using the word. Nor could he recall her referring to "the major crime of the century" though he did confirm that she had said that "it was the worst thing under the Crimes Act". He said that Ms Mantoszko had asked the accused whether it involved murder but that there had been no reply. Furthermore, whilst Ms Mantoszko said that the accused said that something really serious "had happened", Mr Baker's evidence was that she had said something bad "was to happen".

51. Ms Mantoszko said that after Mr Baker left there was a further conversation in which the accused said "it's got something to do with revenge". Ms Mantoszko subsequently asked her whether someone was hurt but the accused did not answer. She asked whether it could be reversed and the accused said no. Then in some frustration Ms Mantoszko asked, "What's going on?. "If you can't tell us what's going on is there someone else you can talk to?". The accused did not reply. Ms Mantoszko then asked "What about the police?" and the accused is said to have replied "Oh, no, I'll be thrown in gaol."

52. In cross-examination Ms Mantoszko said that she thought that the events about which the accused had been speaking had occurred on Friday 17 October. However that appears to have been a matter of general impression and I accept the Crown's submission that the conversation almost certainly related to the dinner party that had occurred on the previous Monday night.

53. Both Ms Mantoszko and Mr Baker were obviously honest witnesses who did their best to recall the terms of what had been somewhat cryptic and disjointed comments by the accused however there are significant discrepancies in their accounts of the conversations to which they were both parties and I have some reservations about the accuracy of Ms Mantoszko's description of some details such as whether the accused had used the word "murder" or spoken of being thrown in gaol. Nonetheless, I am quite satisfied that she had been flustered and anxious, had referred to something bad happening at the dinner party and had used the phrase "the worst thing in the Crimes Act".

54. On 22 October Ms Singh gave Ms Cammack some heroin and drove her to the doctor's surgery where she obtained the prescription for Rohypnol. She subsequently asked her about the strength of the tablets and how many could be taken either by themselves or with heroin. Ms Cammack told her that she had a tolerance for them but to not take more than two or three even without heroin and that one or two with heroin would be enough to make her unconscious. Ms Singh told Ms Cammack that she wanted the Rohypnol so that she could "knock her boyfriend out" while she committed suicide.

55. At some time apparently on the same day the accused obtained the Rohypnol tablets from a pharmacy, signing the prescription as "Madhavi Rao".

56. On 23 October 1997 Ms Mantoszko had a further conversation with the accused who said "it looks like it's going to happen again". Ms Mantoszko said that she was "pretty sure" she had added the words "this weekend". The accused had appeared anxious. She asked what was going to happen again but the accused did not reply. She then asked, "can you stop it?", but the accused shook her head and said "no". She urged her to tell someone who could.

57. The dinner party duly proceeded on the evening of Friday, 24 October 1997. Ms J was driven to the party by Ms Singh. On the way back to her house Ms Singh stopped the car at Braddon and got out. While she was absent the accused is said to have told Ms J that she had a secret to tell her about later but that she must not tell Ms Singh or anyone else about it. When the vehicle arrived at the house Ms Singh got out and the accused got into the driver's seat in order to pick up another guest. During the course of that trip the accused told Ms J that the dinner party was a "send off" for Ms Singh who was going to kill herself afterwards. She explained that she had a medical condition, a muscle wasting disease that also affected her neurones. She said that it was caused by taking a syrup called Ipecac and that Ms Singh had heard about it from her boyfriend Joe. Her suicide was to be accomplished by the use of heroin. Ms J told her that it was morally and legally wrong to participate and the accused replied "I have taken care of that. I'll be downstairs when that's happening." Ms J told her that Ms Singh could not be serious or she would try other methods like a gun. The accused told her "She's tried that but she couldn't get a gun because she had a bad credit rating".

58. During the course of the evening Mr Mancini asked Ms Singh why she appeared so "bubbly" and vivacious. She told him that she had taken Rohypnol. At some stage which may have been as early as 2.00 am or as late as 3.30 am the other guests departed leaving only the accused, Ms Singh and Mr Cinque.

59. Ms J had arranged to stay overnight at the home of the accused and was woken when she returned from the party at a time which appears to have been between 5.30 and 6.30 am. A conversation then occurred which the Crown submits reveals the accused's complicity in a common purpose with Ms Singh. Ms J said that she had told the accused that she seemed really upset and asked "Do you want to talk about it". The accused replied "It didn't work". Ms J asked "What, you tried it?" and the accused said "Yes". Ms J said she responded, "How could it not work? She's an idiot if she really wanted to kill herself she'd do it. How hard is it to do? She's not a good friend to you, just stay away from her". She said that the accused said "Well, it's OK with her, but Joe's the problem. She wants to take Joe with her". Ms J was apparently somewhat startled at this suggestion and said "What? I didn't think that they were that close". She said that the accused replied "No, it's because she blames him for her condition". Ms J asked "What kind of idiotic irrationalising is that, she's the one that took it".

60. Ms J said that the accused had told her that she had tried heroin with Anu at the house of a friend named John who had said that "You don't fuck around with things like murder and suicide. If you do it, you do it properly." She said that there had been a party on the Monday night where they had heroin in the syringe but it had congealed and couldn't be used. She also told her that the party had been for Mr Cinque to get him drunk. Ms J said that the accused later started to talk about spiritual matters and said "it's amazing it wasn't his time to go, even though he had that many Rohypnol he was still moving. Anu couldn't get the injection into him. Anu wanted to put it into his arm muscle and I told her that it wouldn't work it wouldn't kill him". During the course of the same conversation she asked the accused "Did you know that Joe was supposed to go as well?". She said that the accused replied "Yes, that's why I couldn't look him in the eye when he was talking about the conspiracy book I had lent him".

61. When asked whether Mr Cinque had taken the Rohypnol deliberately the accused said "no, would you take that many Rohypnol deliberately?". She mentioned that he had had ten tablets and that Ms Singh had put them in his coffee. The accused also told Ms J that Mr Cinque used to roll around in his sleep calling Ms Singh a slut. Ms J asked "So are you still going to try and kill Joe or is this all over with?". She said that the accused replied "I'm not going to have anything more to do with it, Anu doesn't want me to". She added that Ms Singh had said "No offence, Madhavi, but I'm going to have to do this alone, it's just not working". She said that the accused also said "I can't believe she used my credit card when he is so much richer than me and he's going anyway".

62. Ms J was obviously disturbed by the terms of this conversation and made a telephone call to the accused at 9.16 am. She told her that she was not comfortable with the situation and was going to either tell Mr Mancini or the police. She said that she told the accused "I think that Len will know how to handle this. I just can't. I don't know what's going on". She said the accused replied "You can't tell the police. What are you doing? It's none of your business. Joe is going to be OK." During the course of the conversation Ms Singh came onto the line and there was a further conversation with her. Ms Singh repeatedly said "Just leave this alone, nothing is going to happen, I won't do anything to him". Ms J told her that if she let her tell Mr Cinque about the matter she would then leave it alone and "you need not worry about your career". She said that Ms Singh screamed "No you'd ruin him, you'd ruin us". She then said "We've been engaged for three years, we're in love. I couldn't do anything to him. After I tried it, I sat there looking at him for two hours when he was asleep and I realised that he had been the one that stuck by me and that I loved him". She added that "You could ruin all this for us". After some further discussion she gave Ms J Mr Mancini's telephone number.

63. Shortly thereafter the accused and Ms Singh arrived at Mr Mancini's house. The accused apparently made three brief calls from that house to Ms J at 10.04, 10.13 and 10.15 am. During the course of those calls she told Ms J that the matter was none of her business, that she should not get involved and that Ms Singh would not do anything to harm Mr Cinque.

64. At 10.18 am there was a further call from Ms Singh to Ms J which occupied more than forty-four minutes. Ms Singh said simply "OK, here's Len, tell him." She then apparently handed the telephone to Mr Mancini. She said that she told him that "I wanted to tell you about what's been happening with Anu. Anu tried to kill herself and Joe last night, she was using heroin and Rohypnol." She said that as she was telling him that Mr Mancini was saying "Yep, yep, OK, yep". Ms Singh came back on the line and asked whether she was satisfied and would leave the issue alone. Ms J said that she felt a bit bewildered because Mr Mancini seemed to have taken it all so casually. She told Ms Singh, "He doesn't believe me, I can't leave this alone until Len believes me". Ms Singh then said "You talk to him again". Mr Mancini came back onto the line and there was some further conversation during the course of which she asked him "Do you believe that Anu has heroin in a syringe and that she tried to kill Joe last night with it and that she couldn't do it because he flinched or something like that?". Mr Mancini replied "Yep, OK". Ms J thought that he still sounded very casual and asked him whether he believed her about the Rohypnol. He said "Yes". Ms Singh then came back onto the telephone and again asked whether she would leave the issue alone. Ms J told her that he still didn't believe her and that she couldn't leave it alone. Ms Singh then suggested "How about I tell him everything that you want me to say and he just - and you just listen? What do you want me to tell him?" Ms J said that she had replied "Well, tell him that you tried to kill Joe, that you have heroin and that you have Rohypnol and that you tried to kill yourself".

65. Ms J then heard Ms Singh say to Mr Mancini "OK, Len, I've been really depressed for the last couple of months but I always . . .". Mr Mancini said "yes", and Ms Singh continued, "I thought about killing myself and I thought about taking other people with me but . . .". At that point Mr Mancini apparently interrupted to ask "What's new?". Ms Singh continued, "I got some heroin and I considered it but I didn't do it, I never do". Ms J thought she heard Mr Mancini say "No, you don't". After this conversation Ms Singh came back onto the telephone and asked "There, are you happy now, are you going to leave it alone now?". Ms J said "no". Ms Singh offered to meet her somewhere the next day to talk about it but Ms J told her that she was not comfortable with doing that either. She said that she would think about it and call her again that night. She also said that she wanted to be satisfied that nothing was going to happen to Mr Cinque. She added "If anything does happen to Joe your friends are now implicated". She said that at that point Ms Singh "kind of screamed" and asked "Slavica, how can you say that I'd do something like that?".

66. Sometime after this conversation Ms J rang back to say that she didn't want anything more to do with the matter and was definitely going to leave it alone and not tell anyone.

67. I have no doubt that Ms J gave her evidence honestly and did her best to recall the terms of these conversations. Indeed, I formed the impression that Ms J was a very decent person who had conscientiously striven to find the path of responsibility in a very difficult situation. She had plainly been uncertain as to whether there was a real risk of Ms Singh committing suicide and/or killing Mr Cinque. If she had told the police serious criminal charges might have been laid against Ms Singh and perhaps the accused, their careers might have been jeopardised and the relationship between Ms Singh and Mr Cinque ruined. Yet Ms Singh was, in Ms J's own words "a drama queen". For all she knew there might have been no real danger to Mr Cinque and any such intervention might have caused needless hurt and disruption to a number of people's lives. On the other hand, if she did nothing then Mr Cinque might have remained in grave danger. I think it was this dilemma which led her to be so insistent about contacting Mr Mancini. She had met him at the dinner party and he had driven her home. She had had the opportunity to make a judgment about his character. He had known Ms Singh for some years. Ms J obviously thought that he would be in a position to make a sensible judgment as to whether her threats should be taken seriously and, if so, to deal with the matter in an appropriate manner. Ms J was obviously a somewhat nervous and diffident person and it would not have been easy for her to have coped with the situation in which she found herself and to have persevered in the face of opposition from Ms Singh and the accused.

68. Nonetheless, I have considerable doubts as to the extent to which her evidence accurately recounts certain aspects of the conversations in question. The first conversation occurred about dawn. Ms J had had very little sleep and had consumed three or four drinks. The accused apparently had been up all night. The conversation between them had occurred some eighteen months prior to her evidence and she conceded candidly that she could not remember word for word everything which the accused said.

69. Ms J was interviewed by the police on 27 October 1997. That was, of course, the day after Mr Cinque's death and only two days after the conversations which she described in her evidence. She said that she was very stressed at that time and had difficulty recalling details. She subsequently kept "playing the situation over in her mind" and remembered further details. On 30 October 1997 she initiated another police interview to provide them with additional information. On 27 November 1997 she was again interviewed and provided a lengthy statement. She gave evidence at the committal proceedings conducted in February 1998 and was cross-examined. After the committal proceedings she remembered further things and contacted Ms Doogan who was then a prosecutor. She made notes of the additional things which had come to mind but subsequently threw them out. Then in September 1998 she had a series of three conferences with the Crown prosecutor, Mr Golding. Yet, despite the searching nature of police interviews, reflection over the ensuing months, giving evidence in chief and in cross-examination at the committal and a further process of reflection prior to contacting Ms Doogan, there were still important parts of her evidence which she said she did not recall until she spoke to Mr Golding some eleven months after the critical conversations.

70. Some aspects of her account also seemed incongruous. For example, she did not accept the suggestion put to her in cross-examination that Mr Cinque had been in danger or even that she had had a suspicion that he might have been in danger. She maintained that she did not know. Indeed it was that very state of uncertainty that led her to act as she did. Nonetheless, she never asked Ms Singh whether she had tried to kill or even hurt Mr Cinque. She said "I had no reason to". She also agreed in cross-examination that Ms Singh had never told her that she had taken heroin and put it in the syringe with the intention of killing Mr Cinque. She did say that Ms Singh later made such an admission to Mr Mancini but when pressed about the matter agreed that she had not "exactly" spoken about trying to kill him. Indeed, she accepted that she did not remember her saying more than "I have been depressed and I have thought about suicide and I have thought about taking others with me". She agreed that when she told Ms Singh that if she harmed Mr Cinque that she would be implicating her friends she had expressed considerable surprise at the suggestion. Ms J was first interviewed by the police only five days after the conversation in question but even at that stage was not certain of whether she had told Mr Mancini of the attempt to inject heroin. She could say only that she believed she had mentioned heroin to him. It also seemed surprising that, having demanded that the accused tell Mr Mancini that she had tried to kill Mr Cinque, Ms J had not then remonstrated with her about her failure to do. She was unable to offer any explanation for this apparent incongruity.

71. Perhaps most importantly, there are also reasons for doubting the accuracy of her account of parts of the conversation upon which the Crown case is heavily dependent.

72. She had not informed the police of her allegation that the accused had told her that "I said to John that if he messed up the amount of heroin in the syringe I would sue him". Nor had she given evidence to that effect at the committal proceedings. She conceded that in recounting this portion of the conversation she had been intending to convey the proposition that the accused had taken a significant interest in the amount of heroin in the syringe. Yet she was unable to recall telling anyone about it prior to giving evidence at the trial in November 1998. She claimed that this statement had been followed by the words "John said you don't fuck around with things like murder and suicide, if you do it, you do it properly". In this context the statement would obviously have had a sinister connotation. Ms J said that she remembered the portions of the conversation that she found striking and it is surprising that she did not recall this statement until giving evidence a year later or, if she did, that she never told either the police or the Office of Director of Public Prosecutions about it.

73. Furthermore, the "John" to whom the accused had allegedly referred was almost certainly Mr Bowers-Taylor. He claimed to have said "If you are going to kill yourself, don't fuck around and make sure you get it right". His evidence contained no suggestion that he had used the word "murder" or that he had any inkling that murder was contemplated. Of course, it is possible that Ms Singh incorrectly recounted the conversation to the accused, that the accused incorrectly recounted it to Ms J, or that in seeking to reconstruct a somewhat imprecise memory of this aspect of the conversation Ms J has subconsciously added the reference to murder. Whatever the explanation, I do not accept that the words attributed to the accused reflect what Mr Bowers-Taylor actually said.

74. It was not until September 1998 after one of the conferences with Mr Golding that Ms J said she remembered the accused telling her that the purpose of the party had been to enable Ms Singh to get Mr Cinque drunk.

75. Ms J's early statements to the police had not included any account of the accused telling her that it wasn't Mr Cinque's time to go, that even though he had had so many Rohypnol he had still been moving, or that Ms Singh had been unable to get the injection into him.

76. When she gave evidence about the conversation at the committal proceedings she said that she had not enquired as to who had put the Rohypnol in the coffee and had not been told. In cross-examination at the trial she said that that evidence had been wrong. She had remembered the relevant part of the conversation subsequently and recorded it on the notes which she had subsequently discarded.

77. She conceded that she had not told anyone about the accused's statement that she had been unable to look the accused in the eye when talking about a conspiracy book until she first told Mr Golding in September 1998.

78. Similarly, it was not until September 1998 that she had remembered asking Ms Rao, "Are you still going to try to kill Joe?"

79. Of course, it would be unrealistic to expect a person who had been in Ms J's position to have been able to provide a completely consistent account of the conversations whenever asked to do so. However, it is disturbing that statements so critical to the case against the accused apparently came to mind so long after the events despite successive police interviews and after she had given evidence on oath about the conversations. Furthermore, the nature of those statements were such that one would have expected her to have readily recalled them especially once she became aware that the accused had been charged. The inconsistency in her earlier evidence also suggests some need for caution.

80. The need for caution is compounded to some extent by a certain inexactitude in Ms J's use of language. For example, at one stage she recounted a conversation in which "they" were going to be using heroin but in cross-examination conceded that she did not recall whether the word "they", "we" or "I" was used to refer to the person or persons in question. It would obviously be dangerous to draw adverse inferences against the accused based upon the use of plural pronouns in statements attributed to her.

81. Mr Lasry also submitted that whilst the overall impression may have been of a person who had been shocked by what she had been told there had been at least one aspect of the conversation which was jarringly incongruous. Ms J apparently said to the accused "How difficult is it? Just hold him down". She sought to explain this somewhat extraordinary suggestion on the basis that she was trying to convince the accused that Ms Singh had not been serious. She explained that if someone had really been serious about doing something they would have tried harder and that it "didn't sound to me like she was serious". Her doubts about whether Ms Singh was serious were also reflected in other portions of the conversation but I have some difficulty in accepting that they wholly explain this suggestion.

82. On the other hand, as the Crown pointed out, there is significant corroboration for substantial parts of Ms J's evidence.

83. Ms Mantoszko's evidence tends to establish that a serious criminal act had occurred at a party on Monday, 20 October 1997 and that the accused anticipated that there might be a repetition of such behaviour during the course of the following weekend.

84. Ms Cammack gave evidence of a further conversation which she had with the accused the day after Mr Cinque died. She said that the accused had initially been hesitant about telling her anything but had ultimately told her that Ms Singh had attempted to kill her boyfriend twice and that she had held a couple of dinner parties, one on the Monday night and one on the Friday night but "hadn't gone ahead with it". She said that during the Monday night dinner party Ms Singh had given him Valium and something else but "he was tossing and turning too much to do it or something" and she had not gone ahead with the plan either then or the following Friday night.

85. There was evidence of an apparently unguarded conversation which the accused had with Ms Taylor, a welfare officer at the Belconnen Remand Centre, on 5 November 1997. Ms Taylor's account of the conversation was truncated and somewhat garbled but she did say that the accused told her that "they ended up having this conversation where it was decided that they didn't believe that Anu was going to do anything anyway".

86. I also admitted into evidence, over the objections of Mr Brady who also appeared for the accused, a record of interview between the accused and Detective Sergeant Ranse on 28 October 1997. During the course of that interview Mr Ranse put to the accused that she had earlier told him that she had been aware "that Anu Singh was going to place a drug in a coffee or drink of Joe Cinque". He asked whether she agreed with that and the accused replied with a sound like `M'mm' which I think indicated her assent. When asked whether she could tell him what she knew about that she replied "I can't because that's not the full story. I think I need to speak to a solicitor at this time." She added that "I didn't conspire in this to do Joe or - and Joe's - Joe's family - and I have tried at every stage to intercede and was, you know . . .".

87. One thing that is abundantly clear from the evidence is that Ms Singh's statements were greeted with considerable skepticism by a number of the Crown witnesses. They plainly did not know when to believe her. There is no reason to suppose that the accused was immune from this difficulty. Consequently, when one seeks to determine what inferences should be drawn from the evidence one constantly encounters the problem of not knowing how seriously the accused may have taken things that Ms Singh had apparently said to her and hence what expectations she may have had.

88. I am satisfied that at some point the accused began to realise that Ms Singh might have had some genuine intention of killing Mr Cinque and then committing suicide. However, it is necessary to bear in mind the possibility if not the likelihood that she remained uncertain as to reality of that threat her perception of the risk that Ms Singh might harm herself or Mr Cinque may have varied from time to time as a result of her changing impressions of Ms Singh's statements. Indeed, Ms Singh's own intentions may have changed from time to time. The accused told Ms Taylor she had a sister with a disability and felt that if anything happened to Ms Singh she would not be able to forgive herself. This factor may have led her to be somewhat more open to the possibility that Ms Singh's complaints might have been genuine and hence to have been more open minded as to whether her threats should have been taken seriously. I think that her suspicions that Ms Singh's stated intentions should be taken seriously gradually intensified but, despite her apparent assent to the proposition that she was "aware" that Ms Singh was intending to place a drug in Mr Cinque's drink, I have some doubt that she was ever certain of what Ms Singh might do.

89. These issues are of considerable importance because the Crown relies upon the involvement of the accused in various incidents as evidence of her involvement in the alleged common purpose and as acts of aiding and abetting Ms Singh in the commission of offences. The inferences which the Crown invite me to draw from those incidents are valid, if at all, only to the extent to which the accused then accepted that Ms Singh really intended to kill Mr Cinque.

90. I accept Ms Cammack's evidence that the accused told her of Ms Singh twice attempting to kill her boyfriend and of the dinner parties on the Monday and Friday night. Those statements constitute significant admissions but they do not of themselves reveal how or when the accused became aware of those facts. Furthermore, they were made at a time when Ms Singh had already been arrested and the accused had reason to believe that anything which she may have told her about those incidents was very probably true. They do not reveal with clarity the state of the accused's knowledge and belief during the week in question. However, having regard to Ms Mantoszko's evidence I am satisfied that by Tuesday, 21 October 1997 something had been said or done which led the accused to believe that Ms Singh had attempted to kill Mr Cinque during or following the party on the previous evening. I am also satisfied that by Thursday, 23 October 1997 she feared that there might be a further attempt. I am not satisfied that the accused had any knowledge of Ms Singh's homicidal intentions and/or any settled opinion that she was likely to act on them prior to that time.

91. Of course, the crucial question is not what the accused knew or believed but whether she became party to a common purpose that Mr Cinque be murdered. Even full knowledge of another person's criminal intention and complete belief in their determination to carry it out is not sufficient to found joint criminal liability. Evidence of foreknowledge may be taken into account along with other evidence in determining that issue but it does not of itself establish complicity.

92. As I have mentioned, the case against the accused is based upon circumstantial evidence. Hence the Crown bears the onus of proving beyond reasonable doubt that there is no reasonable hypothesis consistent with her innocence. In determining whether the evidence is capable of discharging that onus it is relevant to consider any evidence concerning the character of the accused. Evidence of good character is relevant because it strengthens the presumption of innocence. In the present case it may also be relevant because of the light which it may cast upon the relationship between the principal offender, in this case Ms Singh.

93. The accused seems to have been a gentle, happy person who was concerned for the welfare of others. One witness described her as "maternal" and said that she was "very giving". She also said that she was a very open person who on occasion tended to "talk in circles". Another witness said that she had difficulty in saying "no" to people.

94. In contrast, as I have mentioned, Ms Singh was intelligent, outgoing, dramatic person who was inclined to be manipulative and prone to behaving in a histrionic or melodramatic fashion. No less than seven Crown witnesses gave evidence suggesting that the accused was a reluctant participant in the relationship which she had with Ms Singh. It appears that she was to some extent overwhelmed or dominated by her. Ms Singh would ring her repeatedly throughout the day and otherwise demanded substantial periods of her time. The demands eventually reached the point where they were interfering with the accused's university studies. Nonetheless, she persevered with her perhaps in part because of a fear that, like her sister, she might prove to have some genuine disability and perhaps because she was simply unable to refuse the continuing demands of a person with such a dominant personality.

95. There are, I think, several possibilities. It is certainly possible that the accused was eventually caught up in Ms Singh's plan to kill Mr Cinque. However, it is also possible that while told of Ms Singh's plans and becoming increasingly concerned that she might be serious about them she remained uncertain as to whether her histrionic and unpredictable friend would actually implement them and uncertain as to how to respond to such a situation. She may have been reluctant to confront Ms Singh. She may also have been reluctant to contact the authorities when the threat might have been more apparent than real and such intervention might have destroyed Ms Singh's relationship with Mr Cinque, jeopardised her career, exposed her to prosecution and imposed further strain on a young woman who was already in a precarious psychological state. Yet at the same time she may have had a real concern about the risk that if she did nothing Ms Singh might suicide or kill Mr Cinque. The conversation with Ms Mantoszko on Monday, 21 Octob er 1997 seemed to reflect her concern at the situation in which she found herself. It may be noted that the conversation of the following Wednesday in which she said "it looks like it's going to happen again" contained no hint that she had any say in whether the contemplated event would occur and she indicated that she could not stop whatever she feared might happen.

96. For present purposes the issue is not whether the accused did all she could to prevent Ms Singh from carrying out her criminal design nor whether she otherwise behaved responsibly. If, as she suggested in her interview with Detective Sergeant Ranse, she had not conspired with Ms Singh but, on the contrary, sought to "intercede", presumably on Mr Cinque's behalf then the fact that her efforts did not prevent his death cannot make her criminally liable on a common purpose basis or as an aider and abetter. Similarly, if she simply dithered about the situation because she felt unable to confront Ms Singh over the issue or because she did not know what to do then she cannot be convicted as an accessory. Nor could she be convicted of any of these offences if she had intended to assist Ms Singh commit suicide but played no part in any plan to harm Mr Cinque. Indeed, she would bear no criminal liability even if she failed to intervene due to a callous disregard for Mr Cinque's life and safety. The case which the Crown seeks to make out against her is a stark and brutal one. It alleges that she had a common purpose or intention that Mr Cinque be murdered and/or that she aided and abetted Ms Singh both in attempting to murder him and in his actual murder two days later.

97. These are very grave allegations and it is obviously necessary to examine the Crown case with considerable care given the difficulties to which I have referred.

98. As I have mentioned, it is clear that the accused and Ms Singh were friends even if it appears that the accused was a reluctant participant in that friendship. The accused knew Ms Singh had spoken of suicide though it appears that she had spoken of her suicidal intentions to almost anyone who would listen. It is true that the accused had done things which might be seen as having encouraged Ms Singh in her suicidal ideation and/or having lent practical support to any attempt she might have made to take her own life. She apparently went with her when she applied for a gun licence, was present on other occasions when she made enquiries about buying a gun and accompanied her when she bought heroin with the express purpose of killing herself. It should be noted that the present applications were made immediately the Crown closed its case and the accused has not yet had any opportunity of giving evidence in her own defence. There may be innocent explanations for her behaviour. For example, she may have thought that Ms Singh was merely behaving in a melodramatic fashion and had no real intention of killing herself. A number of Crown witnesses certainly had that view. Alternatively, she may have thought that she would have more influence if she humoured her by going along with her on these occasions or that by doing so she would be in a better position to know the nature and extent of any risk. These possibilities are largely matters of conjecture though some limited support for the hypothesis that she may have had some such benevolent intention may be found in her statement to Ms Taylor to the effect that if anything had happened to Ms Singh she would not have been able to forgive herself.

99. I am conscious that the Crown concedes that Ms Singh's intentions extended to both suicide and murder but evidence suggesting that the accused may have encouraged or assisted her in relation to a proposed suicide does not, of itself, provide any basis for an inference that she encouraged or assisted her in relation to any intention to kill Mr Cinque.

100. She was also aware that Ms Singh believed that she had developed a grave illness as a result of taking Ipecac syrup and that she blamed Mr Cinque for what had befallen her. She knew that Ms Singh had at least some heroin and it would seem that by Wednesday, 23 October 1997 knew not only that she had made some attempt to drug him and then inject him with heroin after the party on the previous Monday night but that she intended making a further attempt following the party planned for the following Friday evening.

101. These facts demonstrate that, at least at that stage, the accused must have been aware not only that Ms Singh was speaking of killing Mr Cinque but that he was in real danger. However, those facts do not prove that the accused shared Ms Singh's criminal purpose or that she had aided and abetted her in achieving that purpose. As I have mentioned, she may have been interceding with Ms Singh with a view to persuading her to change her mind or she may have failed to intervene because she could not face Ms Singh or did not know what to do. She may have simply hoped that Ms Singh would have a change of heart or that it would after all prove to have been nothing but another melodramatic plan destined not to come to fruition.

102. There are ample grounds for suspicion but the circumstances are not unequivocally damning.

103. Whilst Ms Singh told Mr Mancini that she wanted a gun in order to kill Mr Cinque as well as herself, as I have mentioned, Mr Mancini did not believe her. Indeed, he regarded the assertion as "ludicrous". There is no evidence that the accused was similarly informed that Ms Singh wanted a gun for that purpose and there is no reason to suppose that she might not have been similarly dismissive of such an assertion if it had been communicated to her. While she undoubtedly participated in transactions with Mr Tobin and Mr Bowers-Taylor involving the purchase of heroin there is no evidence of any conversation during the course of those transactions which should have alerted the accused to the likelihood that the heroin was being purchased with a view to killing Mr Cinque. On the contrary, both Mr Tobin and Mr Bowers-Taylor were told that it was being purchased to enable Ms Singh to kill herself and it seems that both she and the accused then used some of the drug themselves and subsequently experimented with it. Experimentation with heroin is by no means a rare event and it can scarcely be regarded as unequivocal evidence of a common homicidal intention.

104. As mentioned earlier, Ms J gave evidence of the accused telling her that the syringe could not be used because the heroin in it had congealed. Mr Bowers-Taylor recounted an incident of the accused accompanying Ms Singh when she asked him to unblock a syringe. There are, however, several reasons for doubting the reliability of any inference that might otherwise have been drawn from such evidence. First, I am not wholly satisfied of Ms J's evidence of this conversation. Second, whilst Mr Bowers-Taylor's evidence of being asked to unblock a syringe he seemed uncertain as to when that occurred. Consequently, I am unable to be satisfied that heroin congealing in a syringe played any part in thwarting any attempt on Mr Cinque's life, or if it did, that there is any basis for finding that the syringe that Mr Bowers-Taylor unblocked was the same one. Furthermore, even if there had been clear evidence of these matters there would still have been no basis for concluding that the accused had been aware of the purpose for which it may have been employed when she saw Mr Bowers-Taylor with Ms Singh.

105. There was also evidence that at about 9.38 am on 26 October 1997 the accused provided Ms Singh with the sum of $250 to buy further heroin. At face value, that is obviously a potentially incriminating fact. However, Mr Flexmore gave evidence of hearing the accused tell Ms Singh to leave her alone when she contacted her, there is evidence that Ms Singh told her that she wanted the heroin to use herself and that the accused gave her the money simply because she was so frustrated that she wished to be rid of her.

106. There is, however, one matter which is potentially more significant. The evidence clearly establishes that the accused obtained Rohypnol tablets for Ms Singh with a prescription given to her in the name of Ms Cammack. The fact that she did so at a time when she apparently knew that Mr Cinque had previously been drugged and when she may have anticipated that some further attempt might be made on his life during the course of the next weekend provides ground for grave suspicion. That suspicion is compounded by the fact the packet was subsequently found in the accused's bedroom.

107. When one knows that a person has been murdered it is easy to see sinister connotations in hindsight which may not have occurred to people at the time and this evidence must be considered in the context of other evidence in the case. When the police searched Ms Singh's home they found an extraordinary quantity of medication. The evidence does not reveal whether the accused had obtained medication for her on other occasions. It may have been a regular occurrence. There is no evidence that she knew that Rohypnol was a sedative but if she did she may have thought that Ms Singh was an ideal candidate for medication of that kind. Nor is there any evidence that the accused read the prescription before handing it to the pharmacist or that she was aware that it had been in the name of Ms Cammack. People may act thoughtlessly especially when under stress and on any view of the case dealing with Ms Singh at this time would have been stressful. It is also significant that she signed the prescription in her own name. As Mr Lasry pointed out, one might have expected that someone who knew they were obtaining a drug for the purpose of facilitating a murder would use a false name especially if, like the accused, they had some legal knowledge. Nonetheless, even when full allowance is made for these possibilities her involvement in this incident remains a ground for grave suspicion. However, even this incident does not offer conclusive evidence of guilt.

108. The limitations of the Crown case must also be acknowledged. No-one claims to have heard Ms Rao speaking of her participation in a plan to kill Mr Cinque or of any desire that he be killed. There is no evidence that he was present when he was killed and she subsequently made no admission of complicity in his death. Furthermore, there are strong reasons for doubting that she would have formed the criminal purpose alleged.

109. As I have mentioned, the accused was a person of good character. The evidence establishes that she was a gentle and caring person who was concerned for the welfare of others. She obviously spent a lot of time supporting Ms Singh but was a reluctant participant in that friendship. There is no evidence to suggest that she harboured any animosity toward Mr Cinque or that she would have wanted him to suffer any harm. She appeared to have no motive whatever for forming any intention that he be murdered. The evidence suggests that Ms Singh may have been motivated by her apparently delusional beliefs that she was suffering from a severe disabling illness and that Mr Cinque was to blame for it. Indeed, particulars which the Crown have provided include the assertion that Ms Singh was at least mentally unbalanced. However it has not been suggested that the accused was suffering from any psychological illness that might explain a decision to participate in a murder she had no rational reason to commit. On the contrary, she appeared to be a perfectly normal person with a warm and caring nature who found Ms Singh's constant demands onerous but who continued to support her lest she come to some harm. Why then would she have decided to take part in the murder of an innocent man?

110. Her subsequent reactions may also be of some significance. Mr Mancini said that her reaction on learning of Mr Cinque's death was one of shocked disbelief. Such an impression is necessarily subjective but to the extent to which it may be reliable it tends to suggest that the accused had not actually expected Mr Cinque to be killed. Having seen a video tape of her interview with Detective Sergeant Ranse I also formed the impression that she was shocked when told that she would be charged with conspiracy to murder. Whatever moral responsibility she may have felt she had for the events that occurred she did not seem to have expected to be accused of being part of a plan to kill him.

111. The web of suspicious circumstances relied upon by the Crown must be weighed against these countervailing considerations with due regard for the presumption of innocence and the heavy standard of proof required in cases of this nature.

112. Having carefully considered the competing arguments advanced in the extensive submissions by both parties I am satisfied that there is a prima facie case on this element of the charges contained in the first, third and fourth counts on the indictment. Furthermore, I do not think that the Crown case on this issue could fairly be characterised as weak or tenuous. However, for the reasons I have already given I do not regard the relevant test as being limited in the manner suggested by King CJ in Prasad. Whilst the Crown case is not without strength, there are in my view hypotheses consistent with innocence and, notwithstanding the extensive and persuasive submissions made on the Crown's behalf, I am not satisfied beyond reasonable doubt that the accused did share the relevant purpose with Ms Singh or that she consciously aided and abetted her in attempting to secure Mr Cinque's death.

113. Mr Lasry submitted that even if she had initially participated in a joint common purpose with Ms Singh she could not be convicted of murder. Indeed, he contended that there was no prima facie case against her in relation to this charge.

114. Ms J's evidence of a conversation with the accused in the early hours of Saturday, 25 October 1997 provided at least some evidence that she had either withdrawn from or more probably been excluded from the joint criminal enterprise. If that was so the she could not have been a party to any continuing common purpose at the time the act which caused Mr Cinque's death was committed. Hence, she was not guilty of murder. For this purpose of this submission it was unnecessary for him to attempt to persuade me that I should accept Ms J's evidence as to the terms of this conversation. It was sufficient that there was evidence which fairly raised the issue since, once so raised, the Crown bore the onus of proving her continued participation in the joint criminal enterprise.

115. Mr Lasry also submitted that it was clear from the evidence of Ms J and Mr Mancini that the meeting at Mr Mancini's house later that morning had culminated in Ms Singh stating that she had realised that she still loved Mr Cinque, that she no longer had any intention of harming him and that she intended to go home and tell him what had occurred. Mr Lasry submitted that the effect of these statements was that the criminal enterprise had come to an end. Since that issue was also fairly raised on the evidence it was incumbent upon the Crown to prove beyond reasonable doubt not only that Ms Singh had maintained her initial intention to kill Mr Cinque despite her assurances to the contrary but that the accused knew that she had done so and remained a participant in a continuing joint criminal enterprise.

116. In answer to the first of these contentions the Crown submitted that as a matter of law a person is not absolved of criminal responsibility by withdrawing from a joint criminal enterprise prior to the commission of the relevant offence unless he or she takes reasonable steps to undo or counterbalance the effect of the aid and encouragement provided: see, for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342, Manetti (1984) 13 A Crim R 417 at 421-422; Tietie (1988) 34 A Crim R 438 at 445 and 447; Wilton (1993) 64 A Crim R 359 at 363 and 364. He maintained in the present case there was no evidence that the accused had done anything to which might have satisfied that requirement. Hence, the issue was not fairly raised.

117. As Mr Lasry pointed out, a number of the authorities on this aspect of the law were concerned with situations in which there had been a withdrawal from the joint criminal enterprise at the last moment and/or as a result of fear of imminent apprehension by the police. The present case is quite different. The evidence does not establish that when the accused withdrew from any joint criminal enterprise she was aware that a further attempt would be made to murder Mr Cinque at any particular time. In Truong (unreported, BC 9803146, 22 June 1998) the New South Wales Court of Criminal Appeal considered a case where a person had become ill whilst on his way to a robbery and had to be taken home. Their Honours held that the jury should have been directed that the appellant could not be convicted unless the Crown established beyond reasonable doubt that he did not honestly believe that the co-offenders were not going to commit the offence on the day in question or in the next few days. The jury should also have been told that if there was a reasonable possibility that the appellant honestly held that belief, he was required to do no more. Mr Golding pointed out that the terms of Ms Singh's comments which the accused related to Ms J early on Saturday morning clearly indicated that she intended to pursue her plan to kill Mr Cinque and submitted that she should not be absolved from criminal liability merely because her services were no longer required. Whilst I appreciate the force of this argument the proposition for which Mr Golding contended does not appear to be consistent with the approach taken by the Court of Criminal Appeal in Truong.

118. In answer to the second of Mr Lasry's submissions, Mr Golding submitted that the criminal enterprise had continued unabated and that I should regard Ms Singh's protestations to the contrary as mere deceit calculated to allay the fears of Mr Mancini and Ms J so that they would not further intervene or otherwise attempt to thwart its execution. That was clear from the comments which the accused had relayed to Ms J earlier that morning and from the obvious fact that she had acted to kill Mr Cinque within twenty-four hours of the meeting. This was cogently argued but there are other factors which must be considered. Ms J said that Ms Singh had attributed her change of heart to having watched him as he lay asleep and realised that she still loved him. The accused might well have concluded that that occurred after the conversation to which I have referred. Furthermore, Ms Singh had been confronted about her criminal intention. The accused might well have thought that she would not persist now that she was aware that others knew the truth.

119. The evidence establishes that she was extremely distressed during that meeting. Mr Mancini described her as "hysterical". It is I think impossible for anyone who had not been present to be satisfied that her assurances were so unconvincing that the accused could not have believed them. It is clear that Mr Mancini who had known Ms Singh for some years accepted that no further action was required and, despite her concern at how lightly Mr Mancini seemed to have taken the matter, Ms J later indicated that she would not raise the matter with anyone else. The accused herself told Ms Taylor that "they ended up having this conversation where it was decided that they didn't believe that Anu was actually going to do anything anyway." That statement has not been shown to have been false.

120. The Crown also relied upon evidence from Ms Taylor to the effect that the accused told her she had gone over to Ms Singh's home on Saturday evening in response to a telephone call. She told Ms Taylor that she had been going to tell Mr Cinque about Ms Singh's intentions but Ms Singh had made a statement apparently in Mr Cinque's presence that led her to believe that she had already told him. Mr Golding argued that the accused could have intended raising the matter with Mr Cinque only because she believed that Ms Singh still intended to kill him. Whilst that is possible it ignores the possibility that the accused may have accepted her assurance but retained or later formed some fear that she might change her mind. In any event, the evidence of this admission overcomes one impediment to the Crown case only at the expense of creating another. If she believed that Mr Cinque knew of the risk then nothing further could reasonably have been required of her.

121. In my view the suggestion that the accused believed that Ms Singh had told Mr Cinque of her earlier intentions should not be taken too literally. I think it is most unlikely that Ms Singh would have told him that she had attempted to kill him or that the accused would have believed that she had. However, she had previously told M Mancini that she had drugged Mr Cinque so that he would be unconscious while she committed suicide. The accused may have thought that Ms Singh had given Mr Cinque a similar version. Furthermore, any impression that she had done so might well have been by the accused as a fulfilment of the undertaking which Ms Singh had given to Mr Mancini that morning and hence as a ground for confidence that she was not intending to pursue her former homicidal intention. The onus rests upon the Crown to prove that she did not honestly believe that Ms Singh was not intending to kill Mr Cinque at that time or shortly thereafter. In the absence of such proof, then as the NSW of Criminal Appeal said in Truong at 4 "there was no present threat of the offence taking place in the immediate future, to the belief of the (accused), and there was no further obligation on the (accused)".

122. There is also some evidence to suggest that Mr Cinque had thrown out medicines on the Saturday night and had spoken of leaving Ms Singh. Those facts would be consistent with him having been told that he had been drugged by Ms Singh even if she had omitted the embarrassing detail of having attempted to kill him. They may also have contributed to the accused's belief that he had been so informed.

123. Mr Lasry also submitted that evidence of those facts gives rise to a reasonable hypothesis that Ms Singh's decision to kill Mr Cinque may have involved a fresh criminal enterprise prompted by anger and distress at his decision to leave her. He submitted that in those circumstances the accused could not be convicted of complicity in his murder. The decision of the Victorian Court of Criminal Appeal had acknowledged that principle in holding that the Randall sisters could not be convicted of murder if the criminal enterprise to which they had been a party had ended and the deceased had been killed as a result of another decision made after they had left the premises: see Heaney [1992] VicRp 85; (1992) 61 A Crim R 241 at 271-274.

124. Furthermore, the evidence that the reaction of the accused on hearing of Mr Cinque's death was one of shocked disbelief suggests that even if there had been an antecedent joint criminal enterprise she had not believed that Ms Singh still intended to kill him.

125. Any dispute as to the existence of a prima facie case must be resolved by taking the Crown case at its highest. That involves assuming that all of the evidence favourable to the Crown will be accepted and that the evidence favourable to the accused will be rejected. The issue is simply whether there is evidence which, if accepted, is capable of establishing each of the elements of the relevant offences. Indeed, in In Questions of Law Reserved on Acquittal (No 2 of [1993] SASC 4152; 1993) 61 SASR 1 it was held that it was not the function of the judge to choose between inferences reasonably open to the jury. Indeed, their Honours expressed the view that it was not part of his or her function to decide whether any possible hypotheses consistent with innocence were reasonably open on the evidence. King CJ said at 5 that a judge is "concerned only with whether a reasonable mind could reach a conclusion of guilt beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence". In the present case, if one approaches the issue by disregarding all of the evidence upon which Mr Lasry relied then it is plain that, as a matter of law, there is a prima facie case.

126. In a trial by jury such a ruling would prevent any possibility of the judge directing a verdict of not guilty though, as I have mentioned, the jury would be entitled to bring in such a verdict if considered it appropriate. However, in a trial by judge alone the judge also fulfils the role of the jury and it is necessary for me to consider whether, as a matter of fact, the evidence is sufficient to prove the offences charged.

127. In my view the evidence is plainly insufficient. It does not establish beyond reasonable doubt that any initial criminal enterprise to which the accused was allegedly a party would have continued beyond the confrontation at Mr Mancini's house on Saturday morning. It does not establish that the accused did not believe that it had then come to an end. It does not establish that Mr Cinque was killed as a result of that criminal enterprise rather than as a result of a subsequently formed intention based upon Ms Singh's reaction to the threat to leave her. It is incumbent upon the Crown to prove each of these matters beyond reasonable doubt and it has clearly failed to do so.

128. Accordingly, the accused must be acquitted of murder.

129. The Crown submitted that the accused was not merely an innocent bystander who could not in law be held liable for failing to intervene to prevent the death of Mr Cinque. It submitted that a duty of care arose from the following circumstances:

(a) the very close friendship between the accused and Singh;

(b) the accused was aware of Singh's suicidal tendency and she assisted her to that conclusion;

(d) the accused was aware of Singh's murderous intent in relation to the deceased;

(e) the accused was aware of Singh's capacity, in the sense of possession of the necessary wherewithal, to carry out the murder;

(f) by the evening of 25 October 1997 the accused was aware that Singh was at least mentally unbalanced;

(g) the accused has sought to reassure any persons who might be inclined to intercede on behalf of Joe Cinque that he was not in peril;

(h) the accused in the morning of 26 October 1997 knew of both a previous and current attempts by Singh to kill the deceased; and

(i) the accused saw the deceased in a distressed state in the morning of 27 October 1997 when she knew or ought to have known that he was in peril of his life.

130. As I have mentioned, the Crown case is one of manslaughter by failing to summon an ambulance to provide medical treatment or assistance for Mr Cinque whilst he lay unconscious in the house at Downer and/or otherwise failing to intervene in order to protect him. In R v Taktak (1988) 14 NSWLR 226 at 250 Carruthers J held that in such a case it was incumbent upon the Crown to prove the following elements beyond reasonable doubt.

(1) that the accused owed a duty of care in law to the person in question;

(2) that it was the omission of the accused to obtain medical treatment which was the proximate cause of that person's death; and

(3) that such omission by the accused was conscious and voluntary without any intention of causing death 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 would follow that the omission merited criminal punishment.

131. As Yeldham J pointed out during the course of a careful analysis of earlier authorities at 240-245, it is not always easy to determine when a duty of care of the relevant kind exists. In Jones v United States of America 308F 2d 307 (1962) the United States Court of Appeals District of Columbia Circuit dealing with a conviction for involuntary manslaughter of a child based upon an allegation of a failure to obtain proper medical care made the following observations:

"There are at least four situations where the failure to act may constitute the breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, 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."

132. It is clear both from the terms of this passage and from the other authorities to which his Honour referred that a duty of care may conceivably arise in other circumstances.

133. In the present case, Mr Golding submitted that there were a number of alternative grounds upon which a duty of care could be held to have arisen.

134. First, he submitted that an act or omission may be of such a wicked nature as to itself disclose the duty of care breached. I am unable to accept this contention. The decision of the New South Wales Court of Criminal Appeal in Joukhadar (unreported - No 19 of 1975 - undated) which was referred to in support of this submission does not seem to acknowledge that a duty of care may be recognised on such a basis. On the contrary, after observing that there was no criminal responsibility for the harmful consequences of an omission in the absence of a legal duty to act, their Honours proceeded to list a variety of circumstances in which such a duty might arise. In particular, the court said that such a duty may arise as an incident of some special relationship and cited, inter alia, the case of R v Russell [1933] VicLawRp 7; (1933) VLR 59 in which a husband and father had been held to have a duty to take steps to prevent his wife from drowning herself and their children.

135. It is true that their Honours went on to say that "the legal duty exists in our opinion only where the omission is plainly inexcusable and where it amounts to something in the nature of wicked or gross negligence and which for that reason should be treated and punished as a crime, such as where the victim of the omission is helpless". However, I do not understand this passage to mean that a legal duty of care will spring into existence whenever a failure to act would be inexcusable or wicked. Their Honours had, in my view, already disavowed such a proposition. As I understand the passage, their Honours were merely explaining that even if there is a special relationship or some other circumstances in which such a duty might arise, there will be a legal duty to act only where the failure to do so would be inexcusable and amount to something in the nature of wicked or gross negligence which should be treated and punished as a crime. In other words, whilst a person under no legal duty to save a stranger might have a duty to save his own child, the existence of any actual duty to do a particular act will depend upon whether a failure to do so could be characterised as inexcusable or involving wicket or gross negligence. Hence, even in the latter case a person might be absolved from criminal responsibility if attempting to rescue the other person might have involved real risk to his or her own life.

136. The failure of the criminal law to recognise any general duty of care to intervene in order to save the life of a person in grave peril is deeply disturbing. It is true that such a duty of care is recognised in the particular circumstances to which I have referred but the scope of the duty is extremely limited. Of course, there are many circumstances in which society might baulk at imposing such a duty. For example, it is by no means clear that a person should face criminal consequences for failing to throw himself into a raging sea in order to attempt the rescue of someone already in difficulty. However there are many circumstances in which a person could save the life of another without incurring any real risk to his or her own safety and in some cases without even significant inconvenience. Yet on the present state of the authorities it would appear that a person could watch a small child drowning in a shallow wading pool and walk away with legal impunity. However morally reprehensible such behaviour may be it would seem that the law does not presently require anyone to be a good Samaritan.

137. Mr Golding submitted that at least a partial answer to this apparent deficiency in the criminal law might lie in taking a more liberal approach to the question of when a person should be taken to have assumed a duty of care for another. This was the second basis upon which he suggested that the accused had had such a duty. He relied heavily on the decision in Taktak in which a person was held to have assumed a duty of care for a young woman by taking her back to his home apparently to allow her to sleep off the effects of a drug overdose after she had collapsed at a party. As the Court of Criminal Appeal pointed out by taking her into his home he had effectively secluded her from other people who might otherwise have come to her aid. Mr Golding submitted that the principle should be extended to other circumstances in which one person sought to intervene in order to protect the interests of another. He pointed out that the accused had told Detective Sergeant Ranse that she had sought to intercede on Mr Cinque's behalf and submitted that by interceding on the part of a person who was in a position of danger she had assumed a duty of care.

138. Whilst I have every sympathy with the proposition that the criminal law should acknowledge the existence of a duty of care in circumstances wider than those presently recognised the existing authorities do not support such an expansive approach and I think that any reform in that direction should properly be undertaken by the legislature. Indeed, the ACT Law Reform has already been asked to consider issues of this nature and to advise the Government on any desirable reforms.

139. The principle for which the Crown contends would also involve the unpalatable consequence that a good Samaritan whose well intentioned endeavours were not maintained might be convicted of manslaughter whilst those who passed by on the other side of the road would be absolved of criminal responsibility. Furthermore, they would be absolved expressly because they had lacked the decency to make any attempt to save the person.

140. The decision in Taktak was based upon a long standing principle usually invoked in cases of manslaughter by criminal neglect of children, elderly bedridden relatives or other helpless people: see for example Instan (1893) 1 QB 450 and Gibbins and Proctor (1918) 13 Cr App R 134. In such circumstances the law implies a duty to those people not merely because they are helpless but because those who have taken them into their homes or hospitals have effectively secluded them from others. The person who walks by on the other side of the road does not make the plight of an injured person any worse. The next passer-by might have more compassion. However, someone who takes a person into premises to which the general public is denied access prevents others from intervening. It is only in these circumstances that the position of a good Samaritan may be more legally precarious than that of a person who callously passes by.

141. In the present case Mr Cinque lived with Ms Singh. The accused neither took him into her home nor made any attempt to seclude him from others. It is true that she assured Mr Mancini and Ms J that she did not believe that he was in real danger but that did not involve secluding him in the sense in which that term is employed in the authorities. Mr Mancini and Ms J remained free to contact Mr Cinque by telephone or to call on him if they wished. It would involve a most radical change to the law to hold that one person might assume a duty of care towards another merely by reassuring his or her friends that they need not be concerned about some perceived risk to his or her welfare or safety.

142. The third basis upon which Mr Golding submitted that the accused had a duty of care to Mr Cinque was that a person acquired such a duty by causing another person to be placed in danger. He relied upon the decision in R v Lawford & VandeWeil [1993] SASC 4247; (1993) 69 A Crim R 115. That case was concerned with murder rather than manslaughter but the judgment canvasses earlier decisions such as Taktak because the principle that a person can only be convicted of homicide by omission if there had been a duty to act applies equally to murder: see also Phillips (1971) 45 ALJR 467 at 477. 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. In my view this conclusion must be understood in the context of the circumstances then under consideration. Ms Lawford had beaten the deceased senseless with a steel bar and subsequently attempted to strangle him. She had also injured him with a sharp instrument. He had been left lying on the floor and there had been no attempt to obtain medical attention for him. The results of the post mortem examination were equivocal. Death may well have been due to strangulation but there was evidence that he may have been alive when he fell to the floor and had subsequently died from a combination of blood loss, the effects of alcohol and a drug found in his body, coupled with factors of shock or hypothermia. 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.

143. Nonetheless, 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. However, for reasons which have already been discussed, I am not satisfied that she was responsible for him being rendered unconscious. Accordingly, the basis upon which a duty of care was recognised in R v Lawford & VandeWeil does not apply in the present circumstances.

144. Finally, the Crown submitted that even if the accused had unconsciously placed Mr Cinque in danger by her conduct, she had a duty to remove him from that danger when she became aware or ought to have become aware of it. The Crown sought to support this proposition by reference to the English case of R v Miller [1982] UKHL 6; (1983) 1 All ER 978. That was a case of arson rather than manslaughter. The appellant had accidentally started a fire but thereafter did nothing to attempt to put it out. He was charged with a statutory offence of intentionally or recklessly destroying or damaging property. Lord Diplock in his speech on behalf of the House of Lords held that he could be convicted if he subsequently became aware that as a result of his act there was a risk of damage to property and it was then within his power to prevent or minimise such damage. His Lordship cited the example of a person who having dropped a cigarette deliberately refrains from extinguishing the smouldering because he intends that it should cause actual damage to another person's property and said that there was no sensible reason why he should not be guilty of arson merely because he had not formed the necessary criminal intention until after the cigarette had been dropped. There is a need to exercise some care in seeking to transpose principles from one area of the law to another. As a matter of general morality I would wholeheartedly endorse the principle for which the Crown contends but the authorities dealing with offences of manslaughter do not seem to have acknowledged such a principle.

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