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Supreme Court 5 September 2023

R v Bushell (No 18)

[2023] NSWSC 1454

Assault & violenceHomicideDrugs
CRIME MANSLAUGHTER ASSAULT NOT NECESSARY TO DECIDE FINALLY WHETHER DANGEROUS IS A MATTER FOR JURY

Citation: R v Bushell (No 18) [2023] NSWSC 1454
Court: Supreme Court of New South Wales
Date: 5 September 2023
Judge: Rothman J

Background

The accused stood trial for murder and manslaughter arising from the administration of an intravenous "hot shot," a mixture of cocaine and heroin in a quantity alleged to have been fatal. The Crown's primary case was murder, alleging prior sedation and a non-consensual injection by the accused or his brother (originally a co-accused). Manslaughter was left to the jury as an alternative.

During deliberations, the jury sent a note raising questions about the written directions the court had given on manslaughter by unlawful and dangerous act. Those directions had used assault, and specifically the absence of the deceased's consent, as an example of an unlawful act. The jury sought clarification on whether consent could be given by a person under the influence or lacking full knowledge of what was being injected, and whether the accused needed to know that consent was absent.

The questions arose because the court's written directions had used consent-based assault as the illustrative example of unlawfulness, which created ambiguity the jury was trying to resolve.

  • Whether the deceased's consent (or lack of it) was relevant to the unlawfulness of the act for the purposes of manslaughter by unlawful and dangerous act.
  • Whether the administration of illicit drugs under the Drug Misuse and Trafficking Act 1985 (NSW) constituted an unlawful act independently of any question of assault or consent.
  • Whether consent is a defence to an assault that causes death where the assault is objectively dangerous (left open but discussed).
  • Whether the question of dangerousness was one for the jury to determine.

Decision

Rothman J identified that the confusion stemmed from the court's own written directions, which had used assault, and the role of the victim's consent in negating an assault, as an example of unlawfulness. The difficulty was that the relevant unlawful act in this case was not simply a physical assault. The administration of the drugs was independently unlawful under the Drug Misuse and Trafficking Act 1985 (NSW).

Section 13 of that Act makes it a criminal offence to administer a prohibited drug to another person. Section 14 criminalises permitting another to do so. Section 12 makes self-administration an offence. Section 19 extends criminal liability to those who aid, abet, counsel, procure, solicit, or incite any of those offences. His Honour noted that unlawfulness for manslaughter purposes requires a breach of the criminal law, not merely a regulatory prohibition, and that the Drug Misuse and Trafficking Act clearly created criminal offences in this respect.

Because the administration of the illicit drug was independently unlawful by operation of the criminal law, consent of the deceased was simply irrelevant to the unlawfulness. The death was a direct consequence of that administration, not a more remote consequence such as death ultimately resulting from a supply transaction. His Honour left the question of whether the act was "dangerous" for the jury to determine.

Rothman J also addressed, without finally deciding, the broader question of whether consent can be a defence to an assault causing death. His Honour expressed the provisional view that, consistent with public policy reasoning underpinning the rule that consent is no defence to assault occasioning actual bodily harm or causing grievous bodily harm, consent should equally not defeat a manslaughter charge where a reasonable person would recognise the assault as dangerous. His Honour noted this question remains open at High Court level and did not need to be resolved in this case.

Orders Made

• The court will answer the questions in accordance with the ruling that consent of the deceased is irrelevant to the unlawfulness of administering illicit drugs, and whether the act is dangerous is a matter for the jury.

Key Takeaways

  • Where an act causing death is independently unlawful under the Drug Misuse and Trafficking Act 1985 (NSW), specifically by reason of criminal offences of administering or permitting administration of a prohibited drug, the consent of the deceased is irrelevant to the element of unlawfulness in manslaughter by unlawful and dangerous act.

  • A breach of the criminal law is required to satisfy the "unlawful act" element of manslaughter: a mere regulatory breach will not suffice. The criminal offences in ss 12, 13, 14, and 19 of the Drug Misuse and Trafficking Act 1985 (NSW) satisfied that threshold on the facts before the court.

  • Whether an act is "dangerous" for the purposes of manslaughter by unlawful and dangerous act remains a question of fact for the jury to resolve.

  • Rothman J indicated, without making a final determination, that public policy considerations would likely preclude consent from operating as a defence to an assault causing death where a reasonable person would have recognised the act as dangerous. The High Court has not yet finally resolved this question.

  • Courts giving written jury directions by way of illustrative examples risk creating uncertainty where those examples do not fully capture all bases for unlawfulness available on the facts of the particular case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 12, 13, 14, 19

Cases:
No specific cases were cited by name in the text provided.