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Court of Criminal Appeal 14 September 2011

RILEY v R

[2011] NSWCCA 238

Drugs
CRIMINAL APPEAL UNREASONABLE VERDICTS APPEAL UPHELD

Citation: Riley v R [2011] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 14 September 2011
Judges: McClellan CJ at CL; Hoeben J; Grove AJ

Background

The appellant was charged with seven offences arising from his practice of providing a dangerous combination of two prescription antidepressants, Moclobemide (Aurorix) and Venlafaxine (Effexor), to others. When taken together, the drugs inhibit serotonin reabsorption and can induce a condition known as Serotonin Syndrome, which is potentially fatal. The appellant had been using the combination himself for years to produce a euphoric effect and was well aware of the associated risks.

Two men died following contact with the appellant: Shaun Bateson in May 2004 and Brian Hadfield in July 2004. Separately, three other people fell ill after taking drugs while in a car with the appellant in January 2005. The deaths and illnesses gave rise to charges of manslaughter and the malicious administration of a noxious substance under the Crimes Act 1900 (NSW).

The appellant was found not guilty on four counts and guilty on three: manslaughter of Bateson (count 1), maliciously causing Hadfield to take a noxious substance (count 4), and maliciously causing Wilson to take a noxious substance (count 7). He was sentenced to ten years imprisonment with a non-parole period of seven years, and appealed all three convictions.

  • Whether the element of "cause a person to take a drug" under the relevant Crimes Act provision required that the accused be the proximate cause, or whether voluntary consumption by the victim could break the causal chain
  • Whether there was sufficient evidence to support the tendency evidence relied upon by the Crown
  • Whether the verdicts of guilty on counts 1, 4 and 7 were unreasonable or unsupported by the evidence, particularly in light of the acquittals on related counts
  • Whether a letter admitted under s 137 of the Evidence Act was admitted correctly, having regard to the balance between probative value and unfair prejudice

Decision

McClellan CJ at CL, with Hoeben J and Grove AJ agreeing, upheld the appeal on all three convictions. The Court examined the meaning of "cause to be taken" in the charging provision and considered the House of Lords decision in R v Kennedy (No. 2) [2008] 1 AC 269. Where a victim voluntarily and freely consumed a drug supplied by the accused, that voluntary act could sever the causal link required to establish the offence, depending on the specific factual circumstances of each count.

On the question of tendency evidence, the Court found the evidence was insufficient to constitute a valid tendency under the applicable principles. The Crown had sought to use evidence of the appellant's conduct with other individuals to demonstrate a tendency to administer dangerous drug combinations without proper warning. The Court held the evidence did not meet the threshold required and its admission, or the weight given to it, undermined the safety of the verdicts.

The Court also found the guilty verdicts on counts 1, 4 and 7 to be unreasonable when considered against the acquittals on closely related counts. The inconsistency between the verdicts could not be rationally explained on the evidence as a whole. The Court therefore concluded that no reasonable jury, properly instructed, could have returned the guilty verdicts that were entered.

On the s 137 Evidence Act ground, the Court found that the trial judge's directions to the jury were adequate to address the risk of improper reasoning from a letter admitted into evidence. The probative value of the letter was not outweighed by unfair prejudice, and this ground of appeal was rejected.

Orders Made

  • Appeal upheld
  • Convictions on counts 1, 4 and 7 quashed
  • Verdicts of acquittal entered on counts 1, 4 and 7

Key Takeaways

  • A conviction for maliciously causing a person to take a noxious substance requires careful analysis of the causal chain: where a victim freely and voluntarily consumes a drug, that act may sever the accused's causal responsibility, depending on the facts.
  • Tendency evidence must meet the requisite threshold of relevance and probative value before it can properly be used to support a Crown case; evidence that falls short of that standard may render a verdict unsafe.
  • Inconsistent verdicts across closely related counts can ground a finding of unreasonableness where no rational basis exists on the evidence to distinguish between the counts resolved differently by the jury.
  • The Court of Criminal Appeal confirmed that where facts are undisputed or clearly established, an appellate court stands in as good a position as the trial judge to conduct the balancing exercise under s 137 of the Evidence Act.
  • Adequate jury directions addressing the risk of prejudicial reasoning from a piece of evidence can be sufficient to preserve the fairness of a trial, even where that evidence carries some risk of improper use.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Offences Against the Person Act 1861 (UK)

Cases
- R v Burns [2011] NSWCCA 56
- R v Kennedy (No. 2) [2008] 1 AC 269
- Em v R [2006] NSWCCA 336; Em v The Queen (2007) 232 CLR 67
- R v Ford [2009] NSWCCA 306
- R v PL [2009] NSWCCA 256
- R v SJRC [2007] NSWCCA 142
- R v Wilhelm [2010] NSWSC 334
- R v Moffatt [2000] NSWCCA 174
- R v Nelson [2004] NSWCCA 231
- SKA v The Queen [2011] HCA 13
- M v The Queen (1994) 181 CLR 487
- House v The King (1936) 55 CLR 499
- Warren v Coombes (1979) 142 CLR 531
- Vickers v The Queen [2006] NSWCCA 60
- Smale v The Queen [2007] NSWCCA 328
- O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220
- R v Em [2003] NSWCCA 374