The Queen v Ray & Anor

2 The deceased man, Christopher Meade, was 29 years old and in apparent good health. He dealt in drugs and stolen goods. He had worked as an air conditioning mechanic until shortly before his death. At about 8:00PM on 28 June 2012 the two accused men attended at Mr Meade's home at 9 Kiora Avenue, Doreen. Not long after their attendance at that address the accused men subdued and bound Mr Meade by the wrists and ankles. The prosecution alleges that both accused went to Mr Meade's house to assault him and retrieve stolen goods said to be present there. At some time before 8:30PM both accused men left the house. Mr Meade was observed at about 8:40pm not to have a pulse or to be breathing. An ambulance was called however efforts to revive Mr Meade failed.

• Left periorbital haematoma (black eye) with adjacent lacerations to the eyelid.

• Abrasion to the inside aspect of the right lower leg.

• Bruising to the left and right parietal region of the skull.

• Internal bruising to the cornu adjacent to the larynx.

All of the above injuries were said by Dr Burke (the pathologist) to be consistent with some form of blunt force trauma. The injuries to the left cheek, chest and right lower leg (toe included) were consistent with being sustained by dragging across a carpeted surface.

4 Additionally, Dr Burke noted furrow type injuries to the areas that had been bound by duct tape (ankles) or cable ties (wrists).

5 There were no fractures to any part of the deceased's body. In particular there were no facial or skull fractures. There was no suggestion of intracranial haemorrhage nor any suggestion of neck injury (leaving aside the bruising to the left and right cornu).

6 Methylamphetamine, amphetamine and diazepam were detected in the deceased's toxicology. The recorded level of methylamphetamine, 1.1mg/litre, is consistent with a recent and significant administration of methylamphetamine. The amphetamine detected was probably the metabolite of the methylamphetamine or partly so. The diazepam levels were consistent with a therapeutic administration of valium.

7 Whilst not a traumatically occasioned injury, I should observe that the deceased man suffered from an undiagnosed 80-90% stenosis of the proximal left anterior descending coronary artery. His heart was mildly enlarged.

8 I shall return to Dr Burke's opinion on the cause of death.

9 In order to understand the defence submissions it is necessary briefly to set out the structure of the prosecution case. The prosecution alleged that both accused men are guilty of manslaughter by criminal negligence. I quote from the prosecution opening at pages 109-110 of the transcript.

The prosecution contend that those actions, that is the effort required to restrain Mr Meade and the associated physical manifestations of stress. His adrenaline would have been up and the stress he would have been experiencing, and you might think that as a matter of common sense, that those physical manifestations of stress caused the death of Mr Meade. That is that they contributed significantly to that result and/or they were a substantial and operative cause of his death.

Now it's further submitted that the actions of the accused were wrongful acts in that they placed Mr Meade in danger by tying him up in that way. Particularly after they left him alone, particularly after they left him restrained and in a position where he was unable to fend or care for himself or to seek any assistance.

As a result the prosecution submit that the accused each owed Mr Meade, the deceased, a duty to take reasonable steps to render assistance to him and redress that danger that they'd placed him in.

It's further submitted that the manner in which Mr Meade was found, that is lying on the floor beside the bed in the spare room with a pillow supporting his head and a doona covering his lower body, that that would provide a basis to infer that while the accused were present, while the accused were in Mr Meade's home, Mr Meade began to exhibit signs of significant distress, that he began to exhibit signs of serious distress, and that's why that left him in that state with his head on the pillow with a doona covering him.

By leaving him in that state of distress while he was restrained and laying on the floor and failing to take any reasonable steps to render assistance, the prosecution say that the conduct of both accused, Mr Ray and Mr Vella, fell so far below the standard of care that a reasonable person would have exercised. And involved such a high risk of death or really serious injury that they merit criminal punishment.

Now that comes back to the elements of the offence of manslaughter, which His Honour has told you about...

Now finally in relation to that second charge of manslaughter, it's submitted that by leaving Mr Meade alone, restrained and unable to care for himself in circumstances where they had removed any means by which he could have contacted another person or emergency services or someone for help, that that conduct by leaving him in that situation involved again such a high risk of death or really serious injury that it merits criminal punishment. So that's how the prosecution put the case in relation to manslaughter.

10 It can be understood from this passage that the prosecution contend that both men owed Mr Meade a duty of care arising from the actions necessary to restrain Mr Meade and the actual restraint itself. The prosecution further contend that the duty thus created was to take reasonable steps to render Mr Meade assistance and to redress the danger that they had created.[1] The prosecution then argue that in abandoning the deceased man whilst he was still restrained and whilst he was demonstrating signs of distress, the accused men breached the duty they owed to the deceased man. This breach, the prosecution submit, was a substantial and operating cause of death. It ought be observed that early in the passage I have quoted the prosecution alleged that "the effort required to restrain Mr Meade and the associated manifestations of stress [...] caused the death of Mr Meade." Whilst the evidence may, in my view, justify such a conclusion it is not how the prosecution puts its case. The efforts to restrain and the actual restraint of Mr Meade created the duty according to its case. The breach is the failure to redress the danger those actions created. It is that breach that must be demonstrated to be causative of death.

11 Mr Johns, for Mr Vella, makes the primary defence submissions. Mr Dane QC for Mr Ray essentially adopted Mr John's submissions. In very short compass the defence argued:

It is impossible to say from the evidence whether the deceased man became distressed whilst the accused men were still present in the Kiora Avenue house. It is therefore impossible to identify the nature of a duty owed by the two accused men to the deceased. A duty arising from a wrongful act that places another in danger either requires that an accused appreciate the danger the victim is placed in, or that he ought to have appreciated that danger.

The danger that is created must carry with it an appreciable risk of death, or really serious injury if not redressed. The defence submitted that there was no evidence that the accused men either did appreciate danger of this magnitude, or that they ought to have done so.

In the event that a duty is established there is no evidence of a criminally negligent breach of that duty. The subduing and restraining of the deceased man cannot constitute a breach of the duty owed as those are facts relied upon to create the duty. If the breach is constituted by the failure to redress a danger created by the accused then the breach is not so wicked or grave so as to constitute criminal negligence. To be so the breach must carry with it, objectively viewed, such a high risk of death or really serious injury that it merits criminal punishment.

There is no evidence that the failure to redress the danger, if that be the breach, is a substantial and operating cause of death. Alternatively, if the duty created is to provide 'the necessities of life' including medical care there is no evidence that the failure to provide medical care caused the death.

12 Mr Grant submitted that the evidence supported the conclusion that both accused attended at the deceased man's home with the intention of confronting and assaulting him.

13 Mr Grant submitted that there is evidence from which a duty could be established. The existence of a broken vase just inside the front door together with blood drops just inside the door would allow the conclusion that the deceased was confronted at that location. The evidence of restraint and the effective imprisonment of Mr Meade were wrongful acts that placed the deceased man in danger. It was submitted that this duty arose immediately the accused imprisoned the deceased through restraint and continued throughout the period of the restraint.

14 Mr Grant submitted that in restraining and assaulting the deceased the accused either knew or ought to have known that they had placed the deceased at risk of serious injury.

15 He then submitted that an inference could be drawn that the deceased was in "significant physical distress" from the fact that he was found later partially covered by a doona and with pillows placed under his head. Mr Grant then argued that the jury could find that both accused knew then that the deceased was in a life threatening condition.

16 Alternatively on this issue of duty Mr Grant argued that even if the accused exhibited no sign of distress the situation he was left in would become increasingly dangerous as time passed and so, in this factual setting, the accused men were also under a duty to redress the danger they created.

17 Mr Grant submitted that reasonable assistance would include:

c) Driving the deceased to a medical practitioner or hospital;

18 It was submitted that the jury would be entitled to conclude both accused men breached the duty they owed the deceased by:

b) Failing to provide CPR in the event of cardiac arrest;

c) Failing to procure medical assistance either through a friend or doctor;

d) Failing to call emergency services directly or through a friend.

19 It was then submitted that the jury would be entitled to conclude that three factors played a role in Mr Meade's death:

a) The pre-existing stenosis of his coronary artery;

b) His ingestion of illicit drugs including methylamphetamine and perhaps amphetamine;

c) The impact of stress and heightened arousal caused by the false imprisonment and assault.

20 Mr Grant argued the jury "would be entitled to consider all of the relevant evidence and infer that the failure to take reasonable steps to redress the danger they had created contributed to the heightened arousal caused by the assault and ongoing false imprisonment of the deceased, and was an operative and substantial cause of his death." The deceased was alive for some period of time after the restraints were applied and had the restraints been removed, CPR been performed and paramedics been called, the risk of arrhythmia developing into death would have been reduced. Alternatively, Mr Grant submitted that the failure to remove the restraints positively increased the risk of death.

21 The principles that I must apply when considering a no case submission are these:

(a) Taking the evidence at its highest for the prosecution could the jury lawfully find the accused guilty of manslaughter by criminal negligence? The question is not whether the jury should or might draw the inferences necessary to sustain a conviction but whether it could;[2]

(b) Even if the prosecution case is tenuous or weak it should be left to the jury. Thus, this type of submission is directed at the sufficiency of evidence rather than at its quality;[3]

(c) A judge should not take a case from a jury simply on the basis that he considers that at the close of the prosecution case the prosecution has failed to exclude an hypothesis consistent with innocence;[4]

(d) In a circumstantial case a judge may only take the case from the jury if on the evidence there remains open a reasonable inference consistent with innocence which could not rationally be excluded by the jury.[5]

22 I consider the jury could conclude the following from the evidence:

• Upon gaining entry one or other of the accused assaulted the deceased causing a vase to break in the vicinity of the front door and blood to be deposited in that vicinity.

• One or other or both of the accused then struck the deceased several times in the head and body region. The blows were sufficiently forceful to bruise but not fracture any bones.

• Mr Meade's arms were tightly secured behind his back by cable ties. His legs were tightly secured at the ankles by duct tape. Both accused participated in this activity.

• He was dragged for a distance whilst bound over a carpeted surface. Injuries consistent with carpet drag marks were observed on the deceased's check, chest and lower leg.

• Mr Meade was either placed on or near a bed in the spare bedroom. He was lying next to the bed before the accused men left the house. Pillows were placed under his head and a doona was placed partially upon him.

• Before the accused men left the house the deceased man commenced to show signs of significant distress. In my view the jury could conclude this from the following facts:

a) The deceased suffered from a serious undiagnosed coronary stenosis.

b) The deceased had ingested a considerable quantity of methylamphetamine probably sometime earlier that day.[6]

c) The assault and restraint of the deceased would necessarily have caused the deceased stress and exertion.

d) The accused men were still at the premises at approximately 8:05pm.[7] They had left no later than approximately 8:30pm.

e) The deceased was observed not to have a pulse nor to be breathing at 8:40pm.[8]

f) The deceased died of a heart attack caused by cardiac arrhythmia.

g) The accused men placed pillows under the deceased's head and partially covered him with a doona before they left the premises.

23 It is clear enough from facts (a) to (f) above that at some stage before his death the deceased was in urgent need of medical care. I consider fact (g) could enable the jury to conclude that the deceased had reached that stage before the accused men left and that this fact had become apparent to them. Otherwise why carry him or drag him to the bedroom? Why cover him and place pillows under his head?

24 In the course of oral submissions Mr Johns conceded that it would be open to the jury to conclude that the deceased had exhibited at least some form of distress in the accused's presence.[9] The availability of this finding however, he submitted, would not be sufficient. To give rise to the duty of care the deceased's distress needed to be of a level that caused the accused to appreciate, or ought to have caused them to appreciate, that the deceased was at risk of death or really serious injury. I agree. I do not, however, agree that there is an insufficiency of evidence to sustain this finding. In my view the finding is open from facts (a)-(g). The jury might also reason that the accused, having demonstrated a lack of concern for the deceased's personal wellbeing when they assaulted and restrained him, would not have gone to those lengths to care for or comfort the deceased unless the level of his distress was considerable. I accept that the evidence does not compel this conclusion but I believe it is open on the evidence.

25 Should the jury reach this conclusion then the accused men would have owed the deceased man a duty of care to take reasonable steps to assist him and to redress the danger that a reasonable person in the accused's position would have appreciated.[10]

26 Mr Johns and Mr Dane submitted that before a duty can arise as a consequence of an accused's wrongful acts that accused ought be aware of the particular danger the victim is placed in. The accused either must actually be aware or ought be aware that the danger he has created carries with it the appreciable risk of death or really serious injury if not redressed.[11] It is unnecessary that an accused in these circumstances be aware of the actual nature of the medical emergency he has created. It is sufficient that he be aware, or ought be aware, that he had created a medical emergency that carried with it an appreciable risk of death or serious injury. For the reasons I have set out in paragraphs [22]-[24] I consider that the jury could conclude there was a state of medical emergency before the accused men left the company of the deceased, and that at the least they ought to have been aware of that emergency.

27 I consider that reasonable steps to redress the danger would have include:

b) Arranging urgent medical attention through emergency services or by taking Mr Meade to a local medical centre or hospital;

c) If appropriate performing resuscitation techniques including CPR.

28 It is undisputed that both accused left the house without releasing Mr Meade's restraints or seeking medical attention in any form. In discussion Mr Grant abandoned his argument that the jury could find that the deceased was further assaulted by striking after the duty arose. There is no evidence from which a jury could conclude this, although it would be open to the jury to conclude that Mr Meade was dragged face down across a carpeted area during this period.

29 As I have indicated, in his written submissions Mr Johns submitted that if the jury found breaches of the type identified they were not sufficiently 'wicked' enough as to constitute criminal negligence. He submitted that there was not evidence from which a jury could conclude that the breach involved such a high risk of death or really serious injury that it merits criminal punishment.[12] In argument he pressed this faintly, acknowledging that the 'appreciable risk of really serious injury or death' necessary for the creation of a duty is a short step from the high risk that I have identified a moment ago and necessary to establish that the breach constitutes criminal negligence.

30 In my view there is evidence from which a jury could conclude that the accused men breached the duty they owed Mr Meade by leaving the house and failing to remove his restraints, by failing to arrange for urgent medical attention and by failing to participate in resuscitation efforts under the instruction of the 000 operator. The duty created by the accused's wrongful conduct did not cease when they left the house. It persisted until Mr Meade's death.

31 The prosecution assume a burden of proving that the accused's breach or breaches of duty caused death. In the language of Doney the prosecution must demonstrate that the evidence taken at its highest for the prosecution could properly allow the jury to conclude that the failure by the accused men to release the restraints or offer timely medical assistance caused Mr Meade's death.

32 For the breaches of duty to cause death there must be evidence upon which the jury could conclude that one or more of them "contributed significantly to the death" or was "a substantial and operating cause of death."[13] A result can be 'caused' by an act or omission. The act or omission that constitutes the breach must be one that an ordinary person would hold, as a matter of common sense, to be a cause of the result.[14] The act that constitutes the breach does not need to be the sole cause of the death. It is sufficient for it to be a substantial and operating cause of that result.

33 It follows that the evidence taken at its highest for the prosecution must be capable of demonstrating that the failure by the accused men to,

c) provide resuscitation techniques where appropriate;

34 It is necessary to summarise briefly the relevant evidence.

35 I have reviewed Dr Burke's findings at autopsy in paragraph 3 of these reasons. It will be recalled that the deceased suffered from various bruises, lacerations and abrasions. All were sustained pre-mortem. Dr Burke's initial cause of death was described as 'unascertained in a man with coronary artery disease and evidence of an assault.' He amended that evidence to add "evidence of methamphetamine toxicity."[15] He thought the assault probably precipitated the cardiac event. It was a likely contributor to death.[16] He said it was "reasonable to suggest that the excitement and agitation caused during the incident could well have precipitated a sudden cardiac arrhythmia."[17] Dr Burke stated he was less comfortable with restraints alone precipitating sudden cardiac arrhythmia. The level of methylamphetamine in the deceased's system was a likely significant contributor to the cardiac arrhythmia.[18] He could not say how close the time of death was to the assault and application of restraints. He was of the view that there were a number of competing factors to the death but that he was unable to weigh responsibility between them.[19] The contributors to the cardiac arrhythmia were underlying heart disease, methylamphetamine consumption and the assault. The combination of the heart condition and the drug consumption may have provided a full explanation for the death. A coincidental arrhythmic heart attack could not be excluded.[20] Prompt medical attention may revive someone who has suffered sudden cardiac arrhythmia and cardiac arrest or it may not.[21] If the restraints were removed before the commencement of the arrhythmia then that could reduce the risk of arrhythmia developing into death.[22] If CPR were performed after cardiac arrest the risk of arrhythmia leading to death could be reduced.[23] If paramedics were called in with defibrillators the risk of arrhythmia leading to death could be reduced.[24] Cardiac arrhythmia can cause death instantly or over time.[25] CPR is not always effective.[26]

36 Mr McNulty was the attending paramedic. He said 000 operators were trained in giving instructions to callers on how to administer CPR and to continue to do that until emergency services arrive.[27] There is absolutely no guarantee of success with CPR, adrenaline and defibrillators.

37 Dr Gerastamoulos is the Chief Toxicologist at VIFMH. He described the collection and examination of the deceased's blood samples. Methylamphetamine is a stimulant which promotes excitation.[28] It can have adverse effects on heart function, including tachycardia and arrhythmia.[29] The addition of methylamphetamines to endogenous substances such as adrenaline increases the effect of those substances on the heart.[30] The relatively high methylamphetamine reading in this case indicates a recent ingestion of the drug.[31] The peak effect of that drug is between half an hour to between four and six hours.[32] In stressful situations where methylamphetamine has been ingested that drug will not inhibit the body's endogenous response to those stressors but the stimulant released may last longer in the system as the body's capacity to eliminate adrenaline, dopamine and serotonin is reduced.[33] Where the underlying effects of methamphetamine are present a stressful experience will have an additive effect and add to the likelihood of a cardiac event.[34] The deceased could have consumed methylamphetamine 20-30 minutes before death.[35] Methylamphetamines can cause death in persons who have pre-existing heart disease.[36]

38 It must be borne steadily in mind that the prosecution must demonstrate that a breach of duty caused the death. In a case of manslaughter by criminal negligence proof that an accused's conduct caused the death is not proof of causation unless that conduct constituted a breach of the relevant duty of care. In this case this is a distinction that assumes some importance.

39 Most of the hostile conduct was carried out on the deceased man before the duty arose. The assaults and restraint of Mr Meade created the duty owed to him by the accused. Mr Grant, in sensible and well-reasoned submissions, accepted that dragging aside there was no evidence of any assault on the deceased after the duty arose. To the extent the evidence tends to show that the conduct of the accused men, in assaulting and placing the restraints on the deceased man, caused his death that evidence is not evidence that the breach caused Mr Meade's death.

40 As I said in paragraph [31] of these reasons taken at its highest the evidence must be capable of demonstrating that one of the accused's failure to remove the restraints, seek urgent medical treatment or provide resuscitation techniques where appropriate was a substantial and operating cause of death.

41 In my view the evidence is not capable of establishing the necessary causal link. I consider that the evidence taken at its highest establishes no more than that releasing the ties, seeking urgent medical treatment and/or performing resuscitative techniques would have improved Mr Meade's chances of survival. No expert witness said that Mr Meade would have survived had one or other or all of these measures been undertaken. I should add that I also consider that as a matter of common sense an ordinary person could not conclude that these omissions caused death.

42 I have set out various legal principles relating to causation which are distilled from, inter alia, Royall's case. In that case the High Court disapproved of sine qua non reasoning as providing the test for causation in criminal cases, but described it as a useful tool in determining whether, logically, a causal link existed between an accused's act or omission and the relevant injury or damage.[37] While it is not the ultimate test for causation in a criminal case the 'but for' test is a useful screen in the assessment of the cogency of a causal link. In this case the application of the 'but for' test results in this question:

Had the accused released the restraints immediately, called for medical assistance and performed resuscitation when appropriate would Mr Meade have survived?

On the evidence taken at its highest for the prosecution in my view the answer is that he might have; he might not have.

I consider that if a jury were to go beyond that and conclude positively that one or more or all of the breaches did cause death that would be an exercise in speculation.

43 Accordingly, I accept the submissions from both accused that there is no case to answer on the charge of manslaughter. I propose to discharge the jury from delivering a verdict on that charge and direct that a verdict of not-guilty be entered on the record.[38]

[1] R v Reid [2010] VSCA 234; R v Lawford [1993] SASC 4247; [1993] 69 A Crim R 115; R v Taber [2002] NSWSC 1239; (2002) 56 NSWLR 443; R v Phillips [1971] TASStRp 9; (1971) 45 ALJR 467.

[2] May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654.

[3] R v Doney [1990] HCA 51; (1990) 171 CLR 207.

[4] Attorney General's Reference (No.1) of 1983 [1983] VicRp 101; [1983] 2 VR 410.

[5] R v Cengiz [1998] 3 VR 720.

[6] 1.1mg per litre of methylamphetamine was detected in the deceased's blood.

[7] Evidence of Joshua Tregenza, Transcript at 743-745; Evidence of Tracey Tregenza, Transcript at 476-477.

[8] Evidence of Paul Mullenger, Transcript at 461 - 462.

[10] Reid v R [2010] VSCA 234 at [45].

[11] Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 at 345 (French CJ).

[12] Lavender v The Queen (2005) 222 CLR at 73-74.

[13] Royall v R [1991] HCA 27; (1991) 172 CLR 378; R v Rudebech (1999) VSCA 155; R v Stein [2007] VSCA 300.

[14] Royall v R [1991] HCA 27; (1991) 172 CLR 378.

[18] Transcript at 659, 660, 664 and 675.

[38] Criminal Procedure Act 2009 (Vic), s 241.