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Court of Criminal Appeal 1 April 2011

Burns v R

[2011] NSWCCA 56

HomicideDrugs
CRIMINAL CONVICTION APPEAL DIRECTIONS TO JURY UNREASONABLE VERDICT APPEAL DISMISSED.

Citation: Burns v R [2011] NSWCCA 56
Court: Court of Criminal Appeal, NSW
Date: 1 April 2011
Judge(s): McClellan CJ at CL, Howie AJ, Schmidt J

Background

The appellant was a registered participant in a methadone programme and, together with her husband, was alleged to have sold methadone to acquaintances from their home. On 9 February 2007, a man died at or near their premises after receiving methadone intravenously. The appellant and her husband were both convicted of manslaughter in the District Court; the husband died in custody shortly after sentencing.

The Crown put its manslaughter case on two alternative bases. First, that the appellant or her husband directly injected the deceased with a lethal dose of methadone, constituting an unlawful and dangerous act. Second, that they owed the deceased a duty of care and breached it by failing to summon medical assistance when he became seriously ill, causing his death through gross criminal negligence.

The appellant pleaded guilty to supplying methadone to the deceased (count two) and to other supply counts, but contested the manslaughter charge. She appealed her conviction on four grounds, challenging both the duty of care directions given to the jury and the reasonableness of the verdict.

  • Whether the trial judge erred in leaving the charge of manslaughter by gross criminal negligence to the jury, given the duty of care said to be owed by a drug supplier to a drug recipient
  • Whether the trial judge erred in directing the jury that such a duty of care existed
  • Whether the verdict of guilty of manslaughter was unreasonable or against the weight of the evidence
  • Whether the trial judge erred in also leaving the charge of manslaughter by unlawful and dangerous act to the jury (a ground added after the hearing)

Decision

On the question of gross criminal negligence, the Court accepted that a duty of care can arise in circumstances where a person takes it upon themselves to supply a drug to another and that person then requires medical assistance. The trial judge's direction that such a duty existed on the facts was upheld. The Court found that once the appellant and her husband had injected the deceased on their premises and he became gravely ill, a duty arose to seek help, and their failure to do so in time contributed to his death.

On the unlawful and dangerous act ground, the Court closely examined the causation argument. The relevant unlawful act was the supply of methadone without a prescription. The Court was satisfied that the evidence strongly supported a conclusion that it was the appellant or her husband, not the deceased himself, who administered the injection. No drug paraphernalia was found near the deceased's body, and the use of a specialised butterfly syringe made self-injection by an inexperienced user highly unlikely. The Court distinguished the English authority in Kennedy (No 2), noting that case turned on a statutory concession not applicable here.

On the reasonableness of the verdict, the Court found the evidence was overwhelming. Listening device recordings captured the appellant discussing the need to dispose of needles and drug paraphernalia after the death. The deceased arrived at the premises in a compromised state, was an inexperienced methadone user, and received what proved to be a lethal dose. The Court was satisfied that a call to an ambulance would almost certainly have saved his life. The appeal was dismissed on all grounds.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • A duty of care in the context of manslaughter by gross criminal negligence can extend to a person who supplies drugs to another on their premises: the failure to call for medical assistance when that person became seriously ill was capable of founding criminal liability.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where the evidence makes self-injection highly unlikely, it is open to a jury to infer that the accused or a co-offender administered the fatal dose.
  • Causation for the purposes of unlawful and dangerous act manslaughter did not require the Crown to overcome a "voluntary act of the deceased" argument where the deceased did not in fact self-administer the drug.
  • Intercepted conversations in which a defendant discussed disposing of drug paraphernalia after a death were treated by the Court as highly probative evidence supporting both the supply charge and the manslaughter verdict.
  • No error was established in leaving both alternative bases of manslaughter to the jury, provided the evidence supported each independently.

Legislation and Cases Referenced

Legislation:
- Offences against the Person Act 1861 (UK), s 23

Cases:
- R v Adomako [1995] 1 AC 171
- R v Bateman (1925) 19 Cr App R 8
- Andrews v DPP [1937] AC 576
- Kennedy (No 1) (1999) Crim LR 65
- R v Dias [2001] EWCA Crim 2896
- Justins v R [2010] NSWCCA 242
- Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 240
- C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390
- March v Stramare (E & MH Pty Ltd) (1991) 171 CLR 506
- Bennett v Minister for Community Welfare (1992) 176 CLR 408
- Michael Kane v H M Advocate; Kevin McAngus v H M Advocate [2009] HCJAC 8, 2009 SLT 137
- Arulthilakan v R; Mkoka v R (2003) 203 ALR 259
- R v Bonnyman (1942) 28 Cr App R 131
- R v Clarke & Wilton [1959] VR 645
- Campbell v The Queen (1980) 2 A Crim R 157