Burns v The Queen

Case [2012] HCA 35

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

NATALIE BURNS  APPELLANT

AND

THE QUEEN  RESPONDENT

Burns v The Queen

[2012] HCA 35

Date of Order:  20 June 2012
Date of Publication of Reasons:  14 September 2012

S46/2012

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 1 April 2011, and in lieu thereof order that:

(a)the appeal to that Court be allowed;

(b)the appellant's conviction for the manslaughter of David Hay be quashed; and

(c)a verdict of acquittal be entered.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir and D P Barrow for the appellant (instructed by Legal Aid (NSW))

L A Babb SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burns v The Queen

Criminal law – Manslaughter by unlawful and dangerous act – Appellant party to joint enterprise to supply methadone to deceased – Deceased died from combined effect of methadone and prescription drug – Whether appellant's supply of prohibited drug to deceased unlawful and dangerous act – Whether sufficient evidence to warrant order for new trial on basis that appellant administered or assisted in administering drug to deceased.

Criminal law – Manslaughter by criminal negligence – Appellant party to joint enterprise to supply methadone to deceased – Deceased suffered adverse reaction to drugs in appellant's presence – Appellant failed to obtain medical treatment for deceased – Whether appellant under legal duty to take steps to preserve deceased's life.

Words and phrases – "legal duty", "omission", "supplier of prohibited drug", "unlawful and dangerous act".

FRENCH CJ.

Introduction

  1. David Hay ("the deceased") died after ingesting methadone said to have been supplied to him on 9 February 2007 by the appellant, Natalie Burns, and her husband at the Burns' apartment in Belmore, a suburb of Sydney.  On 20 July 2009, Mrs Burns was charged on indictment with the manslaughter of the deceased.  She was also charged with four counts of supplying a prohibited drug, namely methadone.  She pleaded not guilty to the charge of manslaughter and to one count of supplying methadone.  She pleaded guilty to the three remaining counts.  After trial before a judge and jury, she was found guilty of manslaughter and of supplying methadone.  On 23 October 2009, Mrs Burns was sentenced on all counts to a total term of imprisonment of five years and eight months, with a non-parole period of four years and six months expiring on 13 January 2014.  Her husband was tried separately on the same charges and convicted of manslaughter but died in custody shortly after he was sentenced.

  2. The trial judge directed the jury that if Mrs Burns supplied methadone to the deceased and if…

Continue reading Burns v The Queen

Sign in free to access the full text

Details
AGLC
Burns v The Queen [2012] HCA 35
Case
[2012] HCA 35
Decision Date

CaseChat Overview and Summary

The case of *Burns v The Queen* concerned an appeal to the High Court of Australia by Mrs Burns against her conviction for the manslaughter of David Hay. The prosecution's case was based on two alternative grounds: manslaughter by an unlawful and dangerous act, and manslaughter by criminal negligence. The deceased died from the combined effects of methadone, which the appellant and her husband supplied to him, and prescription drugs he had also taken.

The High Court was required to determine whether the appellant's supply of methadone to the deceased constituted an unlawful and dangerous act for the purposes of manslaughter. It also had to consider whether the appellant owed a legal duty of care to the deceased, and if so, whether her omission to obtain medical treatment for him amounted to criminal negligence causing his death. A further issue was whether there was sufficient evidence to support a new trial on the basis that the appellant administered or assisted in administering the drug to the deceased.

The Court held that the act of supplying a prohibited drug, without more, is not an unlawful and dangerous act capable of supporting a manslaughter conviction, as the danger lies in the ingestion of the drug, not the supply itself. This aligns with English authority, which the High Court affirmed. Regarding criminal negligence, the Court considered the circumstances in which a duty of care might arise, particularly where a defendant has played a causative role in events leading to a risk of injury. The Court found that the evidence did not establish that the appellant had administered or assisted in administering the methadone, nor that she had assumed a duty of care to the deceased that she grossly negligently breached by failing to seek medical assistance.

Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales, quashed the appellant's conviction for manslaughter, and entered a verdict of acquittal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 1 April 2011, and in lieu thereof order that:

(a) the appeal to that Court be allowed;

(b) the appellant's conviction for the manslaughter of David Hay be quashed; and

(c) a verdict of acquittal be entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A duty of care may also arise where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury, such that "a duty to take reasonable steps to avert or lessen the risk may arise."[59] That basis for a duty of care was relied upon by the Court of Criminal Appeal to support their Honours' conclusion that it was open to the jury to find that a duty of care did exist in this case. Against that background of general principle, it is necessary to turn to the evidence at, and conduct of, the trial.[59]Mitchell v Glasgow City Council [2009] AC 874 at 893 [40] per Lord Scott of Foscote. See also R v Miller [1983] 2 AC 161 at 179; R v Evans(Gemma) [2009] 1 WLR 1999 at 2004 [18]; [2010] 1 All ER 13 at 18 [18].The evidence at trial The Court of Criminal Appeal[60] outlined the evidence in the case and conclusions said to be supported by that evidence:[60]Burns v The Queen (2011) 205 A Crim R 240..In February 2007, Mrs Burns and her late husband, who lived in an apartment in Belmore in Sydney, were drug addicts on a methadone treatment program..It was the practice of the prescribing medical practitioner at the treating clinic to explain the effects and side effects of methadone to clients and the risk of an overdose if methadone were used with other drugs[61]. [61](2011) 205 A Crim R 240 at 252 [52] per McClellan CJ at CL and Howie AJ..On 9 February 2007, Mrs Burns received a dose of 130mgs of methadone at the clinic and two takeaway doses of 130mgs each. Mr Burns also received two takeaway doses on that day[62]..The deceased had suffered serious injuries, including some brain damage, as the result of a motor vehicle accident in April 2005[63]. At the time of his death he had been prescribed drugs known as olanzapine[64] and endone[65]. He had ingested olanzapine[66] and cannabis[67] in the hours prior to his death..Methadone is a very dangerous drug in combination with other drugs. It can easily cause serious harm or even death to a person who is narcotically naive[68]..If taken orally methadone is stored in the liver and released over a period of time into the body. Injection of methadone, on the other hand, leads to very high levels of the drug in the brain where respiratory function and blood pressure are regulated[69]..On 9 February 2007 sometime after 5pm, the deceased attended the Burns' apartment in order to obtain methadone. Mr and Mrs Burns supplied him with methadone[70] and either injected him with it using equipment they had at the apartment or assisted him to inject himself[71]. The question whether there was evidence capable of supporting a finding of injection or assisted self-injection was disputed before this Court. Mrs Burns denied having supplied the deceased with methadone and denied having injected him or assisting him to inject himself with it..Shortly after the deceased arrived at the apartment another person, Felicity Malouf, arrived to purchase methadone. She observed the deceased to be unresponsive at the time, and sitting in an armchair[72]..Ms Malouf and Mr Burns got the deceased up from the chair in which he was sitting and walked him in a circle four or five times. Mr Burns told the deceased that they were going to call an ambulance but the deceased responded "No, no I'm right" or something to that effect[73]..Mrs Burns came into the room and said that the deceased could not remain. She spoke angrily to her husband. He told the deceased it was time to go and that he would put him outside and keep an eye on him. The deceased got up without assistance and left. Mr Burns followed him out[74]..On the following day, the deceased's body was discovered in a toilet block at the rear of the apartments[75]. To access the block, the deceased would have walked down a number of stairs and crossed a yard..It was very likely that the cause of death was the result of a combination of methadone and olanzapine. The level of olanzapine detected in the body of the deceased was high but not lethal. Neither the individual dosage of methadone or olanzapine would have been fatal by itself but they could have an additive effect[76]. In combination they could cause unconsciousness and respiratory depression. There was a remote possibility that the olanzapine alone caused the death of the deceased[77].[62](2011) 205 A Crim R 240 at 252 [51] per McClellan CJ at CL and Howie AJ.[63](2011) 205 A Crim R 240 at 250 [32] and 252 [55] per McClellan CJ at CL and Howie AJ.[64](2011) 205 A Crim R 240 at 246-247 [15] per McClellan CJ at CL and Howie AJ.[65](2011) 205 A Crim R 240 at 251 [41] per McClellan CJ at CL and Howie AJ.[66](2011) 205 A Crim R 240 at 253 [59] per McClellan CJ at CL and Howie AJ.[67](2011) 205 A Crim R 240 at 253 [57] per McClellan CJ at CL and Howie AJ.[68](2011) 205 A Crim R 240 at 252 [50] per McClellan CJ at CL and Howie AJ.[69](2011) 205 A Crim R 240 at 254 [67] per McClellan CJ at CL and Howie AJ.[70](2011) 205 A Crim R 240 at 264 [122] per McClellan CJ at CL and Howie AJ.[71](2011) 205 A Crim R 240 at 272-273 [157]-[160] per McClellan CJ at CL and Howie AJ.[72](2011) 205 A Crim R 240 at 255 [77] per McClellan CJ at CL and Howie AJ.[73](2011) 205 A Crim R 240 at 255 [78] per McClellan CJ at CL and Howie AJ.[74](2011) 205 A Crim R 240 at 255-256 [79]-[80] per McClellan CJ at CL and Howie AJ.[75](2011) 205 A Crim R 240 at 246 [11] per McClellan CJ at CL and Howie AJ.[76](2011) 205 A Crim R 240 at 252 [54] and 254-255 [71] per McClellan CJ at CL and Howie AJ.[77](2011) 205 A Crim R 240 at 253 [63] and 255 [71] per McClellan CJ at CL and Howie AJ.

Decision

Reasons for decision

FRENCH CJ GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
On the criminal negligence limb of the Crown case, the trial judge directed the jury that there may be manslaughter where the accused "voluntarily assumes a duty of care towards another person and by a grossly negligent omission, breaches that duty of care, causing death". His Honour elaborated upon that direction by saying:"If a person voluntarily invites or permits potential recipients to attend his or her home for the purpose of a prohibited drug supply transaction where the drugs are to be consumed on the premises, and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself toward the drug recipient without being grossly or criminally neglectful."The decision of the Court of Criminal Appeal The reasons for judgment of the Court of Criminal Appeal were delivered jointly by McClellan CJ at CL and Howie AJ. Schmidt J agreed with them[80].[80](2011) 205 A Crim R 240 at 273 [167]. There were four grounds of appeal in the Court of Criminal Appeal. The first two related to the question whether Mrs Burns had owed a duty of care to the deceased which she had breached in such a way as to constitute criminal negligence. By the third ground Mrs Burns contended that the verdict of guilty of manslaughter was unreasonable and against the weight of the evidence. The fourth ground was that the trial judge had erred in refusing to withdraw the unlawful and dangerous act case from the jury. All grounds were rejected. On the criminal negligence issue, their Honours held that it was open to the jury to conclude that Mrs Burns was aware of the deceased's state and, even though he had declined assistance, it was open to the jury to determine that she had a duty to seek medical attention for him[81]. The Court was satisfied that the evidence supported a finding of manslaughter by criminal negligence[82]. Their Honours said[83]:"Having regard to the evidence of the deceased's condition, which we are satisfied deteriorated after he had received methadone, it was negligent in the extreme for the appellant to require him to be taken from her apartment and abandoned. An ambulance should have been called. If it had the evidence is persuasive that the deceased would most likely have survived."[81](2011) 205 A Crim R 240 at 263 [114] per McClellan CJ at CL and Howie AJ.[82](2011) 205 A Crim R 240 at 264-266 [121]-[130] per McClellan CJ at CL and Howie AJ.[83](2011) 205 A Crim R 240 at 266 [129] per McClellan CJ at CL and Howie AJ. In rejecting the fourth ground, the Court of Criminal Appeal said it did so[84]:"because, if for no other reason, there was evidence from which the jury could conclude that the deceased did not make a rational, voluntary and informed decision to take the methadone. There being evidence which could satisfy the jury that the deceased was not capable of such a decision his Honour rightly left the matter with the jury."[84](2011) 205 A Crim R 240 at 272 [156] per McClellan CJ at CL and Howie AJ.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ

Turning to causation, his Honour directed that the supply of the methadone must have made a substantial contribution to the death of the deceased and that it would not have done so if the "true cause of David Hay's death was the simple fact that he made a rational, voluntary and informed decision to take the methadone" (emphasis in the original written direction). In determining whether the deceased's act was rational, voluntary and informed, the jury was invited to:"[C]onsider – amongst other matters you think relevant – the evidence as to David Hay's condition when he arrived at the Burns' flat, evidence from the post-mortem as to the condition of his brain, what he may or may not have known about methadone and its effects, and what he may or may not have known about the injection of drugs. You may think that David Hay was a rational adult man, who knew what he was doing so far as drugs were concerned, understood what methadone was and did, and voluntarily took it. … On the other hand, you might think that he died precisely because he did not know about methadone and its effects, that he already suffered some degree of brain damage from an earlier car accident, that by the time he took methadone he was already affected by olanzapine he had ingested, and so cannot be regarded as a person acting as a rational adult making an informed choice about taking methadone" (emphasis in the original written direction).Manslaughter by unlawful and dangerous act – the supply of the methadone In New South Wales, the elements of the offence of manslaughter are supplied by the common law[107]. Manslaughter by unlawful and dangerous act requires that the unlawful act causing death be an objectively dangerous act. A dangerous act is one that a reasonable person would realise exposes another to an appreciable risk of serious injury[108]. The quality of dangerousness inheres in the unlawful act. The unlawful act must be the cause of death. [107]R v Lavender (2005) 222 CLR 67 at 76 [21] per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2005] HCA 37. [108]Wilson v The Queen (1992) 174 CLR 313 at 332-333 per Mason CJ, Toohey, Gaudron and McHugh JJ; [1992] HCA 31. To supply drugs to another may be an unlawful act but it is not in itself a dangerous act. Any danger lies in ingesting what is supplied. There has not been any extended consideration in Australia of the application of the law of manslaughter to the illicit supplier of a drug that, when taken by the person to whom the drug is supplied, causes that person's death. But these issues have been explored by the English and Scots courts and it is useful to consider how these courts have dealt with them. The Crown's concession in this case, that the supply of methadone to the deceased was not a dangerous act, accords with English authority that the supply of a controlled drug cannot support a conviction for unlawful and dangerous act manslaughter since the act of supply, without more, could not harm the deceased in any physical way[109]. The correctness of this conclusion was affirmed by the House of Lords in R v Kennedy (No 2)[110]. [109]R v Dalby [1982] 1 WLR 425 at 429; [1982] 1 All ER 916 at 919.[110][2008] AC 269 at 274 [7].