Citation: R v Tracey Lee Dowling [2018] NSWDC 367
Court: District Court of New South Wales
Date: 6 December 2018
Judge: His Honour Judge Lerve
Background
The accused was tried by judge alone on a single count of manslaughter arising from events in Young, New South Wales on 12 and 13 March 2012. The deceased, the accused, and a third person were all users of prescription opioids and had spent the relevant evening obtaining and injecting oxycodone (sold under the brand name OxyContin) and other drugs, including Xanax, at the home of an acquaintance.
After the deceased began showing an adverse reaction to the drugs, the accused drove him from that location in her red Nissan utility to her home at 40 Burrangong Hall Road, Young. The deceased was later found dead in the vehicle by the accused's mother, who had returned home from a night shift.
The cause of death was not disputed: the deceased died of multi-drug toxicity. What was contested was whether the deceased was still alive when the accused drove away, whether the accused assumed a duty of care over him, and whether her failure to obtain medical assistance caused or accelerated his death.
Legal Issues
- Whether the deceased was still alive when the accused drove him away from the acquaintance's home.
- Whether the accused voluntarily assumed a duty of care over the deceased by driving him away and taking him to her home.
- Whether the accused's omission to seek medical assistance for the deceased caused or accelerated his death.
- Whether that omission amounted to gross criminal negligence warranting criminal punishment, applying the test from Nydam as adopted in Burns v The Queen.
Decision
Judge Lerve was satisfied beyond reasonable doubt that the deceased was still alive when the accused drove him away from the acquaintance's home. The evidence established that the deceased showed signs of life at that point, and the court rejected the defence contention that the Crown could not exclude the possibility that he had already died before the accused departed.
On the question of duty of care, the court found that the accused voluntarily assumed care of the deceased when she drove him away. Critically, by taking him to her own home, she secluded him from others who, on the evidence, were intending to seek hospital treatment for him. That act of seclusion prevented other persons from rendering assistance, reinforcing the existence of a duty.
The court found that the deceased's condition was such that the need for urgent medical attention would have been blatantly obvious to any reasonable person. The accused made no effort to contact emergency services, medical assistance, or anyone else. The court was satisfied beyond reasonable doubt that this omission significantly or substantially caused or accelerated the deceased's death.
Applying the standard from Nydam as endorsed in Burns v The Queen, the court concluded that the accused's omission involved such a great falling short of the standard of care a reasonable person would have exercised, and carried such a high risk of death or grievous bodily harm, that it constituted gross criminal negligence warranting criminal punishment. A verdict of guilty was entered.
Orders Made
- The accused was found guilty of the manslaughter of Luke Doyle, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
Key Takeaways
- The District Court confirmed that a person can assume a duty of care through voluntary conduct, including by driving an incapacitated person away from a location where others were prepared to assist them, thereby secluding that person and preventing third-party intervention.
- A conviction for manslaughter by criminal negligence requires the prosecution to prove beyond reasonable doubt that the accused's omission caused or accelerated the death, not merely that it was a possible contributing factor.
- Gross criminal negligence, as formulated in Nydam and affirmed by the High Court in Burns v The Queen, requires both a great departure from the standard of a reasonable person and a high risk that death or grievous bodily harm would follow. Both elements were satisfied on the facts here.
- Where an accused drives an incapacitated and helpless person to a private location and then fails to summon any assistance whatsoever, that combination of conduct can ground both a duty of care and the requisite level of negligence for a manslaughter finding.
- Sufficient evidence existed to find the deceased was alive at the time of departure, notwithstanding the absence of direct evidence, because the court drew the only rational inference available from the established facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), s 144
Cases
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- Edwards v The Queen (1993) 178 CLR 193
- Mule v The Queen [2004] HCA 49
- R v Taktak (1988) 14 NSWLR 226
- R v Parker (No. 2) [2018] NSWSC 1122