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Supreme Court 15 April 2005

R v Davies & Partridge

[2005] NSWSC 324

Homicide
CRIMINAL PRACTICE & PROCEDURE JUDGE SITTING ALONE CHARGE OF MANSLAUGHTER WARNINGS CONCERNING UNRELIABILITY DELAY IN PROSECUTION CRIMINAL NEGLIGENCE

Citation: R v Davies & Partridge [2005] NSWSC 324
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 15 April 2005
Judge(s): Kirby J

Background

The two accused were the parents of Brent Partridge, an 18-month-old child who died on 14 November 1995. Both parents were heroin-dependent and enrolled in a methadone maintenance programme at a clinic in Kogarah. The death occurred at their unit, where two other methadone programme participants, a couple known as the Youngs, were also residing at the time.

The Crown alleged that Brent died after ingesting methadone and that each parent bore criminal responsibility for his death. The prosecution proceeded on several alternative bases, including the suggestion that one of the accused had deliberately administered methadone to the child, that methadone had been left accessible in a "mixing barrel," and that a mixing cup containing methadone residue had been within the child's reach.

The case came to trial nearly a decade after the child's death. Both accused elected to be tried by a judge sitting alone, without a jury, and the matter proceeded as a joint trial. Because the evidence differed as between the two accused, Kirby J assessed each case separately.

  • Whether the death of Brent Partridge was caused by the criminal negligence of his mother, Holly Davies, and/or his father, Michael Partridge
  • Whether each accused owed a duty of care to Brent as a parent, and the scope of that duty
  • Whether any such duty extended to supervising the child's interaction with third parties (specifically the Youngs) or guarding against hazards those third parties may have created
  • Whether the Crown had proven, beyond reasonable doubt, the elements of manslaughter by criminal negligence against each accused
  • What weight to give to evidence affected by significant delay and the memory impairment of witnesses, including the accused themselves

Decision

Kirby J acquitted both accused. The principal reason for acquittal in each case was that the Crown had not eliminated reasonable possibilities consistent with innocence, and so had not established guilt beyond reasonable doubt.

In relation to Holly Davies, the Crown advanced three alternative theories of liability. The first was that she had deliberately administered a fatal dose of methadone to Brent. The second was that she had carelessly lost a barrel of methadone that Brent accessed. The third was that she had been criminally negligent in failing to prevent Brent's access to methadone, whether from her own supply, the Youngs' supply, or some other source. Kirby J was not satisfied beyond reasonable doubt on any of those alternatives. The judgment noted particular difficulty with the third alternative, including doubts about whether a parent's duty of care extended to supervising a child's interaction with other adults in the household or guarding against hazards those adults might create.

In relation to Michael Partridge, the Crown relied only on the second and third alternatives. The Crown case against him was characterised as considerably weaker than that against Davies. There was no evidence that he had deliberately administered methadone to Brent, and there were no admissions to third parties of the kind made by Davies. Kirby J found too many unanswered questions, each pointing to reasonable possibilities consistent with innocence, for the Crown's case to be made out.

The judgment also gave detailed attention to the reliability problems created by the long delay between the death in 1995 and the trial in 2005, and by the drug use histories of the key witnesses. Kirby J noted that discrepancies across the multiple police interviews were attributable to the passage of time and the impact of past heroin use on memory, rather than deliberate dishonesty. For that reason, the accounts given closer in time to the events were treated as more reliable.

Orders Made

  • Holly Davies found not guilty of the manslaughter of Brent Partridge
  • Michael Partridge found not guilty of the manslaughter of Brent Partridge

Key Takeaways

  • Manslaughter by criminal negligence requires the Crown to prove each element beyond reasonable doubt, including that the accused's conduct caused the death and that the conduct amounted to a gross departure from the standard of a reasonable person in the circumstances.
  • The Supreme Court found that significant delay between the events and trial, combined with evidence of drug-related memory impairment, required close attention to which accounts were given closest in time to the relevant events, as those accounts carried greater reliability.
  • A parent's duty of care to their child is well established in law, but Kirby J expressed doubt about whether that duty extended to supervising a child's interaction with other adults in the household, or protecting the child against hazards those other adults may have created.
  • Where the Crown advances alternative bases for a manslaughter charge, each alternative must independently satisfy the standard of proof beyond reasonable doubt; the existence of multiple unresolved possibilities does not, of itself, establish guilt on any one of them.
  • In a judge-alone trial, the court must direct itself as to the reliability warnings applicable to evidence of this kind, including the Longman warning concerning the dangers of delayed prosecution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Longman v The Queen (1989) 168 CLR 79
- R v Lavender [2004] NSWCCA 120
- Nydam v R [1977] VR 430
- Hahn v Conley (1971) 126 CLR 276
- Posthuma v Campbell (1984) 37 SASR 321