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Court of Criminal Appeal 6 November 2020

Dowling v R

[2020] NSWCCA 290

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION ALONE CRIME APPEALS APPEAL AGAINST CONVICTION

Citation: Dowling v R [2020] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 6 November 2020
Judge(s): Basten JA at [1]; Price J at [97]; Wright J at [98]

Background

On the night of 12 to 13 March 2012, the appellant, a woman (referred to here as the appellant), ingested oxycodone with two companions at a private address in Young, NSW. One companion, a man, suffered an acute adverse reaction: he became somnolent and vomited. He was carried out of the house and placed in the front passenger seat of the appellant's utility vehicle, while those present discussed taking him to hospital.

Instead of going to hospital, the appellant drove home on the other side of town, left the man in the vehicle, and went to bed. In the early hours of the morning, the appellant's mother returned from a night shift and discovered the man on the ground beside the vehicle. He was dead. The cause of death was acute multi-drug toxicity from oxycodone and benzodiazepine consumption.

The Director of Public Prosecutions charged the appellant with unlawful killing under s 18(1)(b) of the Crimes Act 1900 (NSW). The prosecution case was that, by driving the man away in her vehicle, the appellant voluntarily assumed a duty of care to him, which she then breached by failing to seek medical attention. She was convicted of manslaughter by criminal negligence following a judge-alone trial in the District Court at Wagga Wagga. She was sentenced to seven years' imprisonment with a four year and nine month non-parole period.

  • Whether the conviction was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the prosecution established beyond reasonable doubt that the deceased was alive at the time the appellant drove him away (the time-of-death question)
  • Whether the appellant voluntarily assumed a duty of care to the deceased, given her own state of intoxication at the relevant time
  • Whether "meriting criminal punishment" constitutes a separate element of manslaughter by criminal negligence, beyond the requirement of a high risk of death or grievous bodily harm

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the conviction was not unreasonable and was supported by the evidence. Basten JA, with whom Price J and Wright J agreed, confirmed that the sole ground of appeal was that the conviction was unreasonable or unsupported by the evidence. No challenge was made to the trial judge's directions or legal framework.

The central factual question was the timing of the deceased's death. The appellant argued that if the deceased died shortly after injecting oxycodone, he may already have been dead when placed in the vehicle, meaning no omission by the appellant caused or accelerated his death. The Court found this hypothesis was not reasonably open on the evidence as a whole. Evidence from multiple witnesses, including accounts of the deceased's condition when placed in the vehicle and the appellant's own conduct in checking his pulse and "vitals" after driving away, provided an adequate foundation for the trial judge to be satisfied beyond reasonable doubt that the deceased was alive when the appellant drove him home.

On the legal framework, the Court clarified that the phrase "meriting criminal punishment," drawn from the Victorian decision in Nydam v The Queen and cited by the appellant as a separate criterion, does not constitute a freestanding element of the offence. The relevant criterion is whether the accused's conduct involved a high risk that death or grievous bodily harm would follow. The duty of care, confirmed by reference to Burns v The Queen, arises where a person voluntarily assumes care of a helpless individual and so sequesters that person as to prevent others from rendering aid.

The Court also noted the trial judge's reasons were detailed and careful, with specific intermediate findings on the reliability and credibility of key witnesses. The Court acknowledged the limitations on appellate review of credibility findings made after a full trial hearing. Price J, providing a concurring judgment, independently concluded it was open to the trial judge to be satisfied beyond reasonable doubt, applying the approach confirmed in Filippou v The Queen and Bell v R.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A person may voluntarily assume a legal duty of care to a helpless individual and thereby become subject to criminal liability for an omission to act, provided they have so secluded that person as to prevent others from rendering aid (confirming Burns v The Queen and R v Taktak).

  • "Meriting criminal punishment" is not a separate element of manslaughter by criminal negligence; the relevant criterion under the Nydam formulation is whether the conduct involved a high risk of death or grievous bodily harm.

  • Where time of death is disputed, the prosecution must prove beyond reasonable doubt that the deceased was alive at the point the accused's alleged omission began to operate. Circumstantial and eyewitness evidence, assessed alongside expert medical opinion, may together be sufficient to discharge that burden.

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that appellate courts review unreasonableness of conviction against the evidence as a whole, giving appropriate weight to the trial judge's intermediate findings on reliability and credibility of witnesses.

  • Sufficient evidence existed, including the appellant's own accounts of checking the deceased's pulse after driving away, to exclude as unreasonable the possibility that the deceased had already died before the appellant's alleged omission could have caused or accelerated his death.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Burns v The Queen (2012) 246 CLR 344; [2012] HCA 35
- R v Taktak (1988) 14 NSWLR 226
- Nydam v The Queen [1977] VR 430
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Bell v R [2017] NSWCCA 207
- Jones v United States of America 308 F 2d 307 (DC Cir, 1962)