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Court of Criminal Appeal 9 May 2005

R v David John IBY

[2005] NSWCCA 178

Also reported as (2005) 154 A Crim R 55
Homicide
CRIMINAL LAW MANSLAUGHTER BORN ALIVE RULE MEANING OF WORDS "BORN ALIVE"

Citation: R v David John IBY [2005] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 9 May 2005
Judges: Spigelman CJ, Grove J, Bell J

Background

The appellant was driving a stolen vehicle at excessive speed in Fairfield, Sydney, when he crossed double white lines and collided head-on with a car driven by a woman who was 38 weeks pregnant. She was taken to Liverpool Hospital, where an emergency caesarean section was performed. A male infant in poor condition was delivered at 11:48am.

The infant was pale and limp but had a heartbeat. He was placed on mechanical ventilation and maintained a heartbeat for approximately two hours. Brain tests conducted about an hour after delivery showed little or no electrical brain activity. The infant was pronounced dead at 1:48pm when no heartbeat could be detected.

The appellant was convicted of manslaughter by Ellis DCJ in the District Court, following a judge-alone trial. On appeal, the appellant argued that the infant had not been "born alive" and therefore could not be the subject of a manslaughter charge.

  • What does "born alive" mean for the purposes of the common law born alive rule?
  • Is evidence of breathing assisted by mechanical ventilation sufficient to establish that a child was born alive?
  • Is a heartbeat alone sufficient evidence that a child was born alive?
  • Is evidence of brain function necessary to establish that a child was born alive?
  • Whether the statutory definition of "death" in s 33 of the Human Tissue Act 1983 (NSW) affects the common law definition of life for the purposes of the born alive rule.

Decision

Spigelman CJ, with Grove J and Bell J agreeing, dismissed the appeal. The Court held that there is no single test of what constitutes "life" for the purposes of the born alive rule. The rule is satisfied by any indicia of independent life, and whether it has been satisfied is a question of fact for the tribunal of fact.

On the specific question of breathing, the Court held that evidence of a child having breathed independently of the mother, including where breathing is assisted by mechanical ventilation, is sufficient evidence of being born alive. The appellant's submission that the absence of unaided breathing was fatal to the Crown's case was rejected. The existence of a heartbeat after delivery was also found to be independently sufficient evidence of being born alive.

The Court rejected the submission that evidence of brain function is necessary to establish that a child was born alive. The born alive rule is itself described as anachronistic and as adopting an artificial rather than strictly scientific concept of when life begins. The absence of detectable brain activity did not preclude a finding that the infant had been born alive.

On the statutory definition issue, the Court held that the definition of death in s 33 of the Human Tissue Act 1983 (NSW) does not alter the common law born alive rule, and the common law should not be adapted to mirror the statutory definition. The Court noted the risks of developing common law by analogy with statute, and observed that courts should resist introducing a "meretricious symmetry" between the two. The definition of death does not, other than as a matter of semantic symmetry, require a corresponding definition of life.

Orders Made

  • Appeal dismissed.
  • Crown appeal against sentence on the dangerous driving charge recorded as abandoned.

Key Takeaways

  • The common law born alive rule does not prescribe a single test for life. Any indicia of independent life will satisfy it, and whether those indicia are present is a question of fact.
  • Breathing assisted by mechanical ventilation is capable of constituting evidence that a child was born alive. The born alive rule does not require wholly unaided respiration.
  • A heartbeat detected after delivery is, on its own, sufficient evidence that a child was born alive. Brain function is not a necessary element of the common law test.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the statutory definition of death in s 33 of the Human Tissue Act 1983 (NSW) does not redefine life for common law purposes, nor does it require the born alive rule to be reformulated consistently with that statute.
  • Courts should resist adapting common law rules by analogy with related legislation, particularly where the legislative regime is not wholly uniform across Australian jurisdictions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Human Tissue Act 1983 (NSW), s 33
- Human Tissue Act 1985 (Tas)
- Human Tissues Acts 1982 (Vic)
- Human Tissues Transplant Act 1979 (NT)
- Transplantation and Anatomy Act 1979 (Qld)
- Transplantation and Anatomy Act 1978 (ACT)
- Death (Definition) Act 1983 (SA)

Key Cases
- R v Hutty [1953] VLR 338
- R v Handley (1875) 13 Cox CC 79
- R v Enoch (1933) 5 Car & P 539; 172 ER 1089
- Rance v Mid Downs Health Authority [1991] 1 QB 587
- C v S [1988] QB 135
- Brock v Kellock (1861) LJ 30 Ch 498
- R v McDonald (unreported, 4 March 1999, Crown Court of Northern Ireland)
- People v Hall, 158 A.D.2d 69 (NY, 1990)
- Lange v Australian Broadcasting Corp (1997) 189 CLR 520
- John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
- Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49