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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: Court of Criminal Appeal
Date: 6 November 2020
Judge(s): Basten JA (principal judgment); Price J (agreeing); Wright J (agreeing)

Background

In the early hours of 13 March 2012, a young man was placed in the passenger seat of the applicant's utility after he collapsed at a friend's home in Young, NSW, following the intravenous injection of oxycodone. Those present intended that he be taken to hospital. Instead, the applicant drove him to her own home, left him in the vehicle, and went to bed. He was found dead beside the vehicle when the applicant's mother returned from a night shift at approximately 7:30 am.

The applicant was charged with manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW). Following a judge-alone trial in the District Court at Wagga Wagga, Judge Lerve convicted her of manslaughter by criminal negligence and sentenced her to seven years' imprisonment with a four-year and nine-month non-parole period.

The applicant sought leave to appeal to the Court of Criminal Appeal on a single ground: that the conviction was unreasonable and unsupported by the evidence within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the prosecution established beyond reasonable doubt that the deceased was alive when the applicant drove him away from Mr Apps' house, making her omission causally relevant to his death.
  • Whether the applicant voluntarily assumed a duty of care to the deceased, given her alleged state of intoxication at the time he was placed in her vehicle.
  • Whether the applicant's conduct in taking the deceased home and leaving him without medical attention amounted to gross criminal negligence sufficient to support a manslaughter conviction.
  • Whether the conviction was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW).

Decision

Ground 1 (Whether the conviction was unreasonable): Was the deceased alive when driven away?

The court identified the critical factual question as whether the prosecution had proved beyond reasonable doubt that the deceased was alive when the applicant drove him away from Mr Apps' house (at [6]). The court found compelling evidence that he was. Vomit stains were found in numerous locations inside the vehicle, on the passenger door, floor, above the glove box, between the seats, and on the roof. No satisfactory explanation existed for this distribution if the deceased had already been dead when placed in the vehicle (at [28]). The prosecution pathologist, Dr Szentmariay, also gave evidence that froth or foam could only form while a person was alive, as it requires air movement mixing with fluid (at [26]).

The applicant's own contemporaneous statements provided further support. In the hours after the death, she told police that she had checked the deceased's pulse and breathing upon arriving home, and found both present (at [75]). Her denials, captured on the recording of her mother's triple-0 call, that the deceased was dead, confirmed she believed he was alive at that point (at [75]-[76]). The court found that the possibility she had driven home and gone to bed with a deceased person in her vehicle without realising it was so remote as not to raise a reasonable doubt (at [82]).

Ground 1 (continued): Reliability of witness evidence

The evidence of Matthew Hennock, who had helped carry the deceased to the vehicle, was that the deceased was slurring his words and alive when placed in the applicant's utility. Although Hennock's evidence had some credibility issues, it was strongly corroborated by objective evidence: telephone records, CCTV footage, and witness accounts consistent with his frantic efforts to locate the deceased and get him to hospital (at [83]). The applicant's allegations that Hennock had spiked the deceased's drink with Xanax to kill him were rejected as patently false and inconsistent with the pharmacological evidence (at [77]-[79]). The court upheld the trial judge's finding, beyond reasonable doubt, that the deceased was alive when he left Mr Apps' house and when he arrived at the applicant's home (at [90]).

Ground 1 (continued): Voluntary assumption of duty of care and gross negligence

The court found that the applicant knew the deceased had been placed in her vehicle in a virtually comatose state after consuming both oxycodone and Xanax, and that he was placed there for the purpose of being taken to hospital (at [93]). By driving him to her home and leaving him without any attention, let alone medical attention, she voluntarily assumed a duty of care to him while he was helpless and removed him from any prospect of others providing assistance (at [93]). Medical evidence indicated a reasonable prospect of revival had he reached hospital. The court held that her conduct was grossly negligent and significantly hastened his death, satisfying the elements of manslaughter by criminal negligence (at [93]). The court was satisfied the applicant well understood the condition the deceased was in and why he had been placed in her vehicle (at [94]).

Orders Made

  • Leave to appeal granted from the applicant's conviction in the District Court for unlawfully killing the deceased contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
  • Appeal dismissed.

Key Takeaways

  • A person who drives away an incapacitated individual in circumstances where others have communicated an intention to obtain medical help can be found to have voluntarily assumed a duty of care to that person, even without an explicit agreement, provided the person assumed was helpless at the relevant time (at [93]).

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that circumstantial evidence, including the location and distribution of vomit inside a vehicle, can be sufficient to establish beyond reasonable doubt that a person was alive at a particular point in time, even absent a precise medical time of death (at [28], [90]).

  • The gross negligence required for manslaughter by criminal negligence was established where the applicant removed the deceased from the prospect of medical assistance, left him unattended, and medical evidence indicated he had a reasonable prospect of survival had treatment been obtained (at [93]).

  • Contemporaneous out-of-court statements by an accused who did not give evidence at trial can carry significant probative weight, and an appellate court noted it was almost as well-placed as the trial judge to assess the reliability of such recorded material (at [74]).

  • Sufficiency of evidence on appeal: where a trial judge's intermediate findings of fact are not challenged, and there is substantial corroboration of witness evidence through objective sources such as telephone records and CCTV, an appellate court will not readily conclude the conviction was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) (at [83], [99]).

Legislation and Cases Referenced

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

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