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Court of Criminal Appeal 7 March 2025

Bushell v R

[2025] NSWCCA 23

HomicideDrugs
CRIME APPEALS APPEAL AGAINST CONVICTION WHERE THE APPLICANT AND CO ACCUSED WERE CHARGED WITH MURDER INJECTED THE APPLICANT WAS NOT LIABLE

Citation: Bushell v R [2025] NSWCCA 23
Court: Court of Criminal Appeal, NSW
Date: 7 March 2025
Judge(s): Davies J (primary reasons), Lonergan J and Yehia J (both agreeing)

Background

The applicant and his half-brother were jointly charged with the murder of the deceased, who died from a fatal injection of heroin and cocaine at premises in Oberon in February 2017. The Crown case was that one or both of the accused had administered the injection. The defence position was that the deceased had injected himself. During the trial, the co-accused's jury was discharged due to late police disclosure of evidence, and the applicant's trial continued before the same jury.

The jury acquitted the applicant of murder but convicted him of manslaughter on the basis of an unlawful and dangerous act. The trial judge subsequently sentenced the applicant to an aggregate term of 18 years' imprisonment (with a 12-year non-parole period) covering both the manslaughter conviction and three drug offences to which the applicant had pleaded guilty. The indicative sentence for manslaughter alone was 9 years.

The problem arose after the jury retired to deliberate. Two jury notes prompted the trial judge to redirect the jury, and those redirections permitted the jury to find the applicant guilty of manslaughter even if the deceased had self-injected, on the basis that the applicant may have aided and abetted that self-injection. This represented a significant departure from the way the Crown had run its case throughout the trial.

  • Whether the trial judge erred in permitting the jury to find the applicant guilty of manslaughter in circumstances where the deceased may have self-injected (Ground 1).
  • Whether the trial judge's directions were inadequate in explaining the elements of manslaughter on the footing that the deceased's own act was the immediate cause of death (Ground 2, argued in the alternative).
  • Whether the trial was procedurally unfair because a new pathway to liability was introduced for the first time during jury deliberations (Ground 3, argued in the alternative).
  • Whether a miscarriage of justice occurred because evidence relevant to the credibility of a key Crown witness was not disclosed until after the trial concluded (Ground 4, argued in the alternative).

Decision

The Crown conceded at the appeal hearing that Ground 1 was made out. The concession rested on the High Court's decision in IL v The Queen (2017) 262 CLR 268, which established that manslaughter is not committed when a person accidentally kills themselves, and that liability cannot be attributed to another person for a self-killing. Because any liability of the applicant in the "self-injection" scenario would necessarily have been derivative, flowing from the act of the deceased himself, there could be no manslaughter conviction on that basis. The Court accepted this concession as properly made.

Davies J noted that the redirections represented a fundamental change in the conduct of the case. Both the Crown and the trial judge had clearly told the jury on multiple occasions during the trial proper that if the deceased had self-injected, the applicant must be found not guilty. The post-deliberation redirections reversed that position, permitting the jury to find guilt even on a self-injection scenario if the applicant had aided and abetted that act. This widening of the case occurred after the jury had already retired and over the strong objection of senior counsel for the applicant.

The Court also noted that the trial judge was not referred to IL when ruling on the redirections, which was a contributing factor in the error. The Crown further conceded Ground 4 (the non-disclosure ground), which independently required the conviction to be quashed. Given those concessions on Grounds 1 and 4, the Court found it unnecessary to resolve Grounds 2 and 3.

Orders Made

  • Leave granted to add Ground 4 of the Grounds of Appeal.
  • Leave to appeal granted.
  • Appeal upheld.
  • Conviction quashed.
  • Aggregate sentence (imposed 17 November 2023) quashed.
  • New trial ordered on a count of manslaughter.
  • Matter stood into the Supreme Court arraignment list on 7 March 2025.
  • Drug offence counts (1, 2 and 3 on the sentence indictment) stood over to the arraignment list on 7 March 2025, together with the manslaughter retrial.

Key Takeaways

  • Under the principle established in IL v The Queen (2017) 262 CLR 268, manslaughter cannot be committed where the deceased's own act is the immediate cause of death, and liability cannot attach to another person derivatim from a self-killing.
  • Where liability is alleged on the basis of aiding and abetting, that liability is derivative: if the principal act (the self-injection) does not constitute manslaughter, there is no offence to which aiding and abetting can attach. Any assistance given in such circumstances may amount to an offence under the Drug Misuse and Trafficking Act 1985 (NSW), but not manslaughter.
  • Directing a jury after deliberations have commenced on a new theory of liability that is fundamentally inconsistent with the case as run throughout trial constitutes a significant irregularity. The Court of Criminal Appeal found this change particularly problematic where the trial judge had expressly told the jury the opposite at summing-up.
  • A conviction obtained in circumstances where relevant evidence going to a key Crown witness's credibility was not disclosed until after the trial will be vulnerable to being quashed on miscarriage of justice grounds.
  • Failure to draw a trial judge's attention to directly applicable High Court authority (here, IL) can contribute to a misdirection of a kind that renders a conviction unsafe.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 18
- Crimes (Appeal and Review) Act 2001 (NSW) s 107
- Drug Misuse and Trafficking Act 1985 (NSW) ss 12, 13, 14, 19

Cases
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- Moussa v R [2017] NSWCCA 237
- R v IL [2016] NSWCCA 51
- R v IL (No 2) [2014] NSWSC 1710
- R v Bushell (No 18) [2023] NSWSC 1454