HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJNATALIE 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 2012S46/2012
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
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.
The trial judge directed the jury that if Mrs Burns supplied methadone to the deceased and if…
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CaseChat Overview and Summary
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
Decision
Reasons for decision
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].