Burns v The Queen

[2012] HCATrans 100

[2012] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 2012

B e t w e e n -

NATALIE BURNS

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 MAY 2012, AT 10.19 AM

(Continued from 2/5/12)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Your Honours, in relation to this matter it is my submission that clearly throughout the whole case this was a matter that went well beyond mere supply, as far as the Crown case was put.  The cases were diametrically opposed, of course, in that the defence case was a plea of not guilty in relation to supply and a challenge to whether supply took place, whether ingestion occurred within the house, whether drugs had been taken once he had left the premises and returned to the backyard.

It was certainly never the case that this was a supply by merely handing over a vial of methadone for it to be injected at some other place in some other way.  It was always a case of supply by means of injection within the house using the syringe and butterfly clip that was to be provided.  It was clear that the needle was provided because in the listening devices at appeal book 446 the appellant talks about the deceased receiving “the best outfit” and there was evidence within the case that “outfit” was a reference to the syringe and needle used to inject.

Your Honours, on this case, certainly in relation to injection by the appellant, then questions of an informed and voluntary decision by the deceased did not arise because it was the direct act of the appellant.

FRENCH CJ:   Except that the judge’s written direction to the jury put the unlawful and dangerous act – this is at 606 – as supply.

MR BABB:   I do, your Honour, yes.

FRENCH CJ:   What does it matter what the Crown case was?  This was what the judge told the jury.

MR BABB:   It was in the context of supply.  Your Honour can encompass supply by injection and supply in the course of assisting in the injection, and it was clear that the Crown case was beyond mere supply; it was supplied by injection or alternatively supply in the course of assisting to inject.

HAYNE J:   How is it then that at page 556 we see the Crown Prosecutor referring at lines 23 and 25 to the possibility of the deceased swallowing the methadone?  Again at 29?  I mean, you are trying to put the case into a straightjacket that it did not wear at trial, are you not, Mr Babb?

MR BABB:   No, your Honour.  It was clearly put that way at trial by the Crown Prosecutor.

FRENCH CJ:   Not in opening.

MR BABB:   Not in opening, your Honour, and your Honour asked me ‑ ‑ ‑

FRENCH CJ:   Not at the no case.

MR BABB:   Yes, your Honour, at the no case.  Your Honour asked that question yesterday, and the page reference is at 518 of the no case argument, your Honour, which was pre the judgment and pre submissions by the Crown, and it is at line 30.

BELL J:   And a little further on is the Crown’s contention that it is a possibility that the appellant was involved in assisting to inject the deceased.

MR BABB:   That is it, your Honour.  It is the page reference your Honour took me to yesterday.

BELL J:   Yes.

MR BABB:   It was clear there, your Honours, that the case was injected or assisted to inject in terms of unlawful and dangerous act, and that was confirmed by the Crown Prosecutor and he made his submissions to the jury on that basis, and it was repeated by his Honour in his summing‑up to the jury.

Your Honours, can I move on to the question of “rational, voluntary and informed” and this question arises in looking at the question of assisted to inject, because there is the real question of whether the act causing death can be that of the appellant.  My learned friend yesterday submitted that the way that the test was put by his Honour created a three‑stage test and somehow it was a test that was a high test because the Crown would succeed if either of the three things, rational, voluntary or informed, were knocked out. 

Now, my submission in relation to that, your Honours, is that in relation to criminal responsibility, voluntariness is always a requirement.  It was bound to be a requirement.  It is in the very narrow sense, your Honours; voluntary in the sense of not being made under duress, mistake, coercion.  In the second edition of Hart & Honoré, Causation in the Law, at page 41, about the middle of the page under “Voluntary action” your Honours:

In common speech, and in much legal usage, a human action is said not to be voluntary or not fully voluntary if some one or more of a quite varied range of circumstances are present:  if it is done ‘unintentionally’ (i.e. by mistake or by accident); or ‘involuntarily’ (i.e. where normal muscular control is absent); unconsciously’, or under various types of pressure exerted by other human beings (coercion or duress) –

So that is the narrow sense in which “voluntary” was used there and is always required in relation to criminal responsibility.  In my learned friend’s oral outline, your Honours, he submitted that the test that should have been put to the jury is that one at number (1) of paragraph 17:

that the cause of death was the deceased’s own action in taking the methadone, such action being voluntary (in the sense of not acting under mistake, intimidation, duress –

I accept that “voluntary” is limited to those features, but the test suggested there at paragraph 17 then would be limited to:

that the cause of death was the deceased’s own action in taking –

the methadone.  That is far too low.  It needs to be the concept of it being an informed decision and that has no relationship to it being informed.

HAYNE J:   Informed of what?

MR BABB:   Informed of the facts, and that would include, your Honour, knowledge of what something is and the effects of something, and that was exactly what his Honour directed the jury in this case, that you needed to know what methadone was and the effects of methadone.

KIEFEL J:   Does it not go a bit further than that?  It would be knowledge of the effects of methadone interacting with the other drug.

MR BABB:   No, your Honour, the Court of Criminal Appeal introduced that in the passage that my learned friend took you to yesterday, but that was never something that was in the direction from his Honour.  If I take your Honours to the causation direction; it is at page 610 of the appeal book.  You will see there, your Honours, at about line 30 and following, the focus was on methadone and its effects and his Honour set out that:

If you think it cannot be excluded that –

he –

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.

BELL J:   An adult who turns up to premises at which methadone is being supplied illegally and who purchases some methadone is ‑ on this analysis it is necessary to show that that person had some understanding of the effects, and what do you rely on for that proposition, Mr Crown?

MR BABB:   Your Honour, there needs to be some appreciation of the facts and how they work.  Your Honour, his Honour Justice Hayne went to Glanville Williams’ extract yesterday of what would be required, and if I could take your Honours to that?  That is a useful way of fleshing it out.

BELL J:   Yes.

MR BABB:   This was in the article Finis for Novus Actus? Glanville Williams, Cambridge Law Journal 48(3), and at page 415, your Honour.  This was the proposed redraft to the code, and his Honour Justice Hayne said that perhaps that was the same way as ‑ ‑ ‑

BELL J:   With knowledge of the facts.

MR BABB:   Knowledge of the facts, but then if one goes down to the example cited by Glanville Williams, and it is instructive, I submit, in that:

An instance would be where the intended victim of a poisoning plot finds the poison, and, realising what it is, commits suicide with it.

So, you have to find the poison, realise what it is, that is, it is a poison, but it is not enough to think that it is a poison that can harm you in some way, it needs to be a poison with which you can commit suicide; you need to know the effect of it in that it would kill you.

BELL J:   I think the point that Professor Williams is making here is if a person sets out to kill another by poisoning them with cyanide and to that end leaves the cyanide in that person’s bedroom, that person decides to take the cyanide in order to kill himself, then notwithstanding the evil intention of the individual who left the cyanide in the bedroom, it is the independent voluntary autonomous act of the deceased that caused his death.  That seems to me a rather different point to some suggestion that an adult who turns up to premises in order to buy methadone needs to be fixed with knowledge of the chemical effects of methadone on his body before being responsible for his conduct in buying and consuming it.

MR BABB:   Well, your Honour, Hart & Honoré look at being informed at 142.

BELL J:   I do not know that we have 142 in the extract.

MR BABB:   I apologise.  If I could read it to your Honours and I can make copies available.  This is under the heading, “Voluntary Human Conduct”.  Hart & Honoré say:

Again, the degree of appreciation of circumstances needed before an act can be counted as informed offers some scope for judicial discretion.  When someone deliberately sets fire to a substance but without fully appreciating the extent of its inflammability it is a matter of degree whether his appreciation makes his act so voluntary as to negative causal connection.

My submission is that, again, it is the connection between appreciation, not just of the facts, the taking methadone, but also of the effects of the taking of the methadone.

FRENCH CJ:   Well, there is a distinction on the evidence, is there not, between the effects of methadone taken orally and the effects of methadone taken by injection?

MR BABB:   Yes, your Honour.

FRENCH CJ:   Is he meant to be aware of the particular heightened effects of methadone by injection and access of the substance to the brain and its respiratory centres?

MR BABB:   Yes, your Honour.

FRENCH CJ:   He should know all that?

MR BABB:   He should.

FRENCH CJ:   Before he is said to have made a voluntary decision?

MR BABB:   Yes.  My submission in relation to the use of the word “rational” is that it does not impose an additional requirement there beyond informed, that it is not an additional hurdle to be got over.  If you look at the directions that were given, “rational” is related not just to the decision but a rational adult man and what was really being said there, in my submission, was rational as opposed to irrational and it being an informed decision, it was not an error to include that word in there.

HAYNE J:   But given the content you are seeking to give to informed, it seems to me to amount to the proposition that the user’s decision to ingest is irrelevant to the criminal responsibility of the supplier, that is, the supplier is responsible for the consequence of death regardless of the user’s intervening decision.  Now, that may be right, it may be wrong, but it seems to me that that is the proposition that you are advancing because we are talking about methadone here, methadone skimmed off a prescription supply, known strength, known everything.  It is not often the case in most drug transactions who knows what is in it, what strength it is, what has been added to it, and somebody has to be informed, in the sense in which you are using the term.  I do not know how they can be informed, absent analysis and pharmacological advice.

MR BABB:   They need to be informed, in my submission, the fact of what the drug is and have an understanding of its effects, not ‑ ‑ ‑

HAYNE J:   What do you do then with the purchaser of the ecstasy tablet who is sold what the vendor thinks is an ecstasy tablet, in fact it is made of other more deleterious substances?  It seems to me ultimately you have got to grapple with the proposition that the user’s decision is irrelevant.

MR BABB:   Yes.  May I attempt to grapple with that, your Honour.  It is an approach that was considered by the Court of Criminal Appeal.  They looked at the decision in MacAngus and Kane [2009] HCJAC 8 and it was considered by Justice Howie and the Court of Criminal Appeal and, in looking at that decision, your Honours, at paragraph [42], their Honours there set out the test that they say should be applied.  This is at the end of the paragraph:

What appears to be required is a judgment (essentially one of fact) as to whether, in the whole circumstances, including the inter‑personal relations of the victim and the accused and the latter’s conduct, that conduct can be said to be an immediate and direct cause of death.

In my submission, that is an appropriate test to be applied in relation to causation, that the voluntary act of an informed adult will not in all circumstances intervene to mean that their act is the exclusive cause of death.

HAYNE J:   Well, is that to be read as saying when it says that causation is a question of fact, that a historical “but for” connection is sufficient, is always sufficient, may be sufficient?

MR BABB:   No, never sufficient, your Honour, in and of itself.  There needs to be a ‑ ‑ ‑

HAYNE J:   What is the criterion that is engaged?

MR BABB:   There needs to be a substantial cause of the death having a look at the circumstances.  Looking at this particular case as the example, it is unlikely that supply – well, supply will never in and of itself be a substantial cause of death, but when you are actively involved in the process and the administration, then it can be sufficient to be a substantial cause of death, the Crown submits.

FRENCH CJ:   Incidentally, were the jury told at any point that supply of itself would not be a sufficient unlawful and dangerous act?

MR BABB:   They were, your Honour.

FRENCH CJ:   Where was that?  By the judge?

MR BABB:   Sorry, yes.  In the written direction – sorry, I withdraw that.  The jury were told that even if they convicted of supply, that that would not be sufficient to go on and then convict of manslaughter.  They needed additional considerations beyond the supply.

FRENCH CJ:   What were those considerations; the characterisation of it as an unlawful and dangerous act, or the causal connection?

MR BABB:   It was not fleshed out, your Honour.  They were only told ‑ ‑ ‑

FRENCH CJ:   What I am asking is, did the trial judge at any point exclude from, as it were, the calculus of conviction, supply alone?

MR BABB:   No, your Honour, except as I have already submitted to your Honours that it was clear on the way that the case had been put.  Your Honours, in the decision of MacAngus, their Honours further at paragraph [48] outlined that:

We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach.  The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other’s act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon ingestion of the drug.  But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation.

This is an approach, your Honour – the principle has been expressed in terms that the more predictable the human behaviour is, whether voluntary or not, the less likely it is to negative causal connection, and the academic articles and references to that are in our written submissions at paragraphs 6.24 to 6.25.

BELL J:   Where does that submission take you?  It is likely, is it not, that people who procure illegal drugs do so to ingest them.

MR BABB:   No, not always, your Honour.  Generally, or often, you are going to need that knowledge that they are going to ingest them that comes in this case from the interrelationship between the purchase and the consumption of the drugs on the premises.  One of the problems with supply is that you can never know, unless you are present and it is wrapped up in the ingestion, as to whether the person is going to on‑supply them or use them themselves.

FRENCH CJ:   Now, just going back to the judge’s written directions at 610, do you say that his Honour was putting, and you put it, that the decision was really a binary one, that subject to, of course, application of the onus of proof that a necessary condition for establishing causation was that the deceased had not made a rational, voluntary and informed decision to take the methadone?

MR BABB:   That is correct.  His Honour did put it in the orthodox way there.

FRENCH CJ:   You say it either that or the alternative, that is, precisely because he did not know.

MR BABB:   Yes.  His Honour clearly said at line 48 that any contribution was negated by a voluntary and informed decision to take the drug.

FRENCH CJ:   So, this is not a sliding scale decision, an evaluative decision, that the jury makes on a basis of assessment of a variety of factors?  It is X or Y.

MR BABB:   No.  His Honour put it in the orthodox way, your Honour.  It was the Court of Criminal Appeal at 150 to 152 that had really considered Kennedy and said that in their view the answer would not necessarily be never and a similar sort of – it is an important issue, your Honour, because a similar situation arose in Justins where the Court of Criminal Appeal and Chief Justice Spigelman also did not adopt the Kennedy proposition where you have “a fully‑informed and responsible adult”; the answer is “never”.  Your Honours have Justins before you.  I should take you to the relevant passage.  It is at paragraph 64, following, and it is at paragraph 68 that his Honour the Chief Justice determines, again like the Court of Criminal Appeal did here, that although not necessary to determine it in that case, he does not adopt that the answer is necessarily “never”.

BELL J:   The facts in Justins were very different and raise issues that are not raised by this appeal.

MR BABB:   No, that is correct, your Honour.  As your Honour knows, the facts there were about someone who had advanced dementia and the capacity issues were more starkly apparent.  Your Honours, in the Kennedy decision, the House of Lords consider and do not overrule Empress Car at paragraph 15 and they note that Empress Car was correct, at the end of paragraph 15:

It is worth underlining that the relevant question was the cause of the pollution, not the cause of the third party’s act.

I raise this because questions of causation and causation in relation to a voluntary and informed act are very much determined by the question posed.  If you frame the question in terms of this case as, did the appellant cause Mr Hay to act, if he was fully informed and it was a voluntary and fully informed act, then the answer under the orthodox approach is almost inevitably no.  If you phrase the question slightly differently and characterise it in terms of whether the cause of death is ingestion of the drug and was the supply and assistance in administration substantially the cause of the ingestion, focusing on the result, then it is not a case where the doctrine of voluntary human intervention necessarily would prohibit finding the relevant causation made out.

Now, it is in these borderline cases where there is real assistance that the questions arise, in my submission, and where the inflexibility of the exclusivity principle in relation to any other act being substantially causative, is too harsh.  The example in Kennedy (No 2) where they consider the case of Rogers at paragraph 20 is a very good example of something approaching this case, where it seems that really there needs to be that possibility of there being an additional cause beyond the voluntary action.  In the circumstances of that case the person applied the tourniquet at the time that the injection took place and was crucially involved in the administration of the substance.

Now, we know that in the United Kingdom they have an additional difficulty and they do not have the offence of self‑administer and that may have impacted, whereas in New South Wales there is the offence of self‑administer, but there it does not seem that the doctrine of voluntary human intervention, in its absolute form and exclusivity of the cause, as in this case, it is submitted, works in a proper way.  Your Honours should be minded, in my submission, to consider a test that allows consideration of other causative factors.

Your Honours, can I address your Honours in relation to duty of care and the criminal negligence manslaughter charges.  It is my submission that your Honours would find that, regarding criminal negligence manslaughter, it is part of the common law of Australia that there is a danger creation duty of care and that the formulation of that duty should be in terms of the formulation as set out at paragraph 31 in the case of the R v Evans, [2009] 1 WLR 1999. It is the very bottom of the page:

when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.

BELL J:   It is one thing to acknowledge that there are circumstances in which the creation of a danger has been recognised as giving rise to a duty in terms of criminal negligence, the mine manager who negligently fails to leave sufficient oxygen getting into the mine because a door was closed or something of that character is one thing, but here the circumstances or state of affairs that you rely upon is that an illegal drug seller has illegally sold drugs to an adult who has come to purchase them.  What else is there?

MR BABB:   That the administration of that drug was and did take place in the premises where the supplier remained throughout the time that the administration took place and that that administration was a slow process, and then that after the administration of the drug in the premises that the supplier remained, the supplier had direct knowledge that the recipient had overdosed and their life was threatened.  So the crucial requirements, your Honour, of the danger creation category go beyond the creation of the danger and the duty is not incurred or created until you have knowledge of the fact that the life has become threatened.  So you have knowledge of the facts of it, so facts with which you ought to have known that the person’s life was threatened.  That is essential, and that narrows the categories substantially in relation to danger creation because – and it is common sense.  You need to know that you have created the danger in order for the duty to be incurred.

FRENCH CJ:   Would your argument on the gross criminal negligence limb be the same irrespective of whether the supply was followed by injection or assisting to inject on the part of the appellant?  In other words, if the evidence were simply that the appellant had given the drug to the deceased and the deceased had then injected himself and all the sequelae followed?

MR BABB:   Yes, your Honour, it would, and in fact that was the factual scenario in Evans.  In Evans there was no assistance to inject or injection by the sister.  My learned friend, of course, points to one difference.  There were agreed facts in Evans and the agreed facts were very similar to this case in that firstly you had to have supplied the drug, so that was supply simpliciter, then the sister remained with the recipient of the drug and became aware that she had overdosed and that she was in danger.  The one additional thing that my learned friend points to is the agreement that the sister considered she was responsible for her sister.

Now, my submission in relation to that is that that was not in the circumstances of that case a significant consideration, particularly because in Evans at paragraph 36 the court recorded that the judge’s directions were that “a duty to act did not arise from a voluntary assumption of risk” in that particular case. So, it was not a case where it was an assumption of care case, it was focussing on duty creation. It was focussing on supply which created or contributed to the creation of the danger and it is a different threshold here to causing, your Honours – it only needs to be a contributing factor it is submitted your Honours should find – but you also need to have knowledge of the facts that the person’s life has become threatened by the danger you have created.

FRENCH CJ:   So if you give a drug – an illegal drug to somebody who ingests it and in your presence displays an adverse and possibly life‑threatening reaction to it, it can constitute gross criminal negligence if you fail to seek medical assistance for that person?  That is what it reduces to, does it not?

MR BABB:   It does, but not possibly life‑threatening, it needs to be life‑threatening.  It does reduce to that.  In my submission, the acceptance of responsibility, that additional factor in evidence, is not a distinguishing feature, it simply cannot be that whether the duty is created hinges upon some subjective belief on the part of the person who has created the danger.  That would mean that the more callous you are and the more unwilling to accept any responsibility the more likely you are to escape any liability.

BELL J:   Nonetheless, the facts in evidence are rather different, are they not?  It was 16‑year‑old child and we were looking at the liability of her older adult sister and mother.

MR BABB:   Now, the mother duty of care was accepted as in the relationship.

BELL J:   There were different considerations, absolutely.

MR BABB:   For the sister the jury were directed that it was not an assumption of care case.  So, in my submission, it is a different factual situation but not a factual situation that was put the jury as significant.

FRENCH CJ:   The reduced proposition that I just put to you, that is, illegal supply, self‑administration, adverse response, failure to call medical assistance amounting to gross criminal negligence, does that really reflect, if you like, the underlying proposition of the trial judge’s directions at 607?  I am sorry, it is putting out your allegation that ‑ ‑ ‑

MR BABB:   Yes.  Your Honour, it does when you go to the oral directions.  My learned is quite right.  Generally the written directions were not supplemented in oral directions, but this is one instance where they were.  So if your Honours go to page 629 at line 32, that same formulation is put by his Honour.  Then his Honour says:

Now, you will notice that I have put that paragraph in bold.  I do so because I am setting out there what may amount to or constitute a legal duty – but you are the judges of the facts –

as to whether those facts are made out.  Then if your Honours go over the page to page 630:

Let me explain that briefly.

His Honour goes on to explain that –

if you think that it was actually the husband independently of Natalie who invited [him] . . . Or if you take the view that, whatever happened, he was up walking about, his life was not endangered and again the facts do not fit that formula.

So his Honour was making it very clear there that any ambiguity in the bolded section in relation to duty as to whether there had to be actual endangerment of the life made it clear that there needed to be endangerment of life and the directions also required that:

a reasonable person in the position of the accused would have realised that (in the circumstances as you find them proven to be) failing to call for medical aid entailed a high risk that death or really serious bodily injury would follow from the neglect.

That is in the written directions at page 608.

FRENCH CJ:   The general principle being put to the jury is that which appears on 629 at line 32, is it not, “If a person voluntarily invites”?

MR BABB:   That is correct, yes.

FRENCH CJ:   Then the content given to “without being grossly or criminally neglectful” is by reference to a failure to call medical assistance?

MR BABB:   It is a reference to two things, your Honour.  It is the failure to call for medical assistance and expelling him from the flat while he was in a grossly vulnerable condition.  That is at page 607.  Now, that is significant, the expulsion from the flat, because at the time of expelling him from the flat he was in the process of getting some assistance from Mr Burns and Ms Malouf.  They had roused him from his unconscious state and were walking him – they were under each arm and attempting to walk him around the room, and they were proposing to call an ambulance and call for medical assistance.

BELL J:   And he declined that offer, and then he left the premises, in company with Mr Burns, who said he would keep an eye on him, or something of that sort.

MR BABB:   Yes, but in the circumstances of his gross vulnerability and the state he was in, any declining of that offer could not have been thought by someone like Mrs Burns, with 21 years of experience as a methadone user, to have amounted to any real indication, it is submitted.

BELL J:   Does the law impose a duty, sounding in criminal liability, for manslaughter on a restaurateur who fails to seek medical attention for someone who becomes ill on the premises, having eaten food in the premises?

MR BABB:   In my submission, it would do in the event that there is a direct relationship between the danger creation and the restaurateur is aware that it is a life‑threatening situation.

BELL J:   The danger creation is serving a porterhouse steak.  Now, it may be unattractive for the restaurateur not to take prompt action to seek medical attention, but the question I am asking you is on your submission that might attract criminal liability for manslaughter, in the event that the customer chokes to death?

MR BABB:   So this is a situation of choking to death, as a result of ingesting a steak?

BELL J:   Yes.

MR BABB:   The duty, in my submission, is a duty to take all reasonable steps.  Now, that was the duty, as outlined in Evans and the Heimlich manoeuvre, or do anything that is reasonably necessary to attempt to save the person’s life would be yes, a duty that was required.  Of course, in relation to criminal negligence, in that sort of situation your timeframe for acting is incredibly short, and whether it amounts to gross criminal negligence is going to be doubtful because what you can do, what reasonable steps you can take are quite limited.

KIEFEL J:   When you speak of reasonable steps you are really starting to speak in the context of – or in terms which are appropriate to civil liability, and even there you would have to consider whether or not the rescue cases require the sort of action that you are taking about.  I mean, a civil standard, if that is not a required response, I am not sure how you get to apply that to a criminal standard.  I do not know what you are positing squares with a criminal standard of liability, if it does not even appear to meet the standards required at civil law.

MR BABB:   Your Honour, it does the meet the standards required at civil – or where you create a danger at civil law, you are under a duty to act to ‑ ‑ ‑

KIEFEL J:   A duty to act reasonably.

MR BABB:   Yes.

GUMMOW J:   You fix on paragraph 31 in Evans, do you not?

MR BABB:   Yes, I do.

GUMMOW J:   Which talks about “created or contributed to the creation of a state of affairs”, which would not be the ordinary civil rescue case.

MR BABB:   No.  This is not the situation of the boy in the puddle.  You have got to have been involved in the creation or contributed to the creation of the state of affairs.

KIEFEL J:   Well, another example, to take up Justice Bell’s inquiry of you about the restaurateur, the restaurateur produces a meal with peanuts sprinkled on top, which is quite a common allergy producing anaphylactic reactions if eaten, and a person who knows that they are allergic sees the peanuts and eats.  The restaurateur, who is too busy and does not get around to calling the ambulance immediately, would be criminally liable?

MR BABB:   If it was gross negligence.

KIEFEL J:   We are only talking about calling an ambulance, but you have very little time.

MR BABB:   Then it may not be gross negligence in those circumstances.  That is quite a different case, but it might be and, in my submission, there would be nothing unreasonable in imposing a duty where, if you have created a danger there, you have got ‑ ‑ ‑

KIEFEL J:   All they have done is put nuts on the top of the meal.  The person has made a conscious decision and you have someone liable for manslaughter.  Where is the proportionality in that?

MR BABB:   That may not meet the test of ‑ ‑ ‑

GUMMOW J:   Well, the question would be whether the restaurateur knew or would reasonably have known that it was life threatening to put the peanuts on, I suppose.

MR BABB:   No.

KIEFEL J:   It might come down to questions of warning.

GUMMOW J:   We get into thin skull‑type cases, do we not?  Most people do not have any trouble with peanuts, but there are some who do.

MR BABB:   No, but I do not think that it is knowledge at the time of the provision.  The duty is not created until you have got knowledge that the situation has become life-threatening and where you have that knowledge and you have contributed to the creation of the danger, then a duty arises.

BELL J:   When you speak of contribution to the danger, you identify the fact that the accused is in the business of retailing illegal drugs and the deceased is in the business of purchasing and consuming those illegal drugs, that is sufficient to create the duty.  This is in a context where the criminal law lets you walk by the drowning child.  I am just trying to understand the principled basis for the imposition of the duty in the first case, but not the second.

MR BABB:   In the first case you have been involved in the creation of the duty by supplying the ‑ ‑ ‑

BELL J:   To a willing adult who buys?

MR BABB:   Yes, your Honour, but in the second ‑ ‑ ‑

BELL J:   Can we come back to the principal basis for walking by the drowning child?  True enough, you have not created the danger.

MR BABB:   That is the significant basis there, and that is a very significant distinction.  The law has always considered that to be a moral duty, whereas in my submission, on the basis of R v Miller and R v Evans, this is a legal duty where you have created the danger and you know that the situation has become life‑threatening.

CRENNAN J:   In as much as you are relying on the failure to call the ambulance and the ejection from the flat, dealing with the latter point, are you suggesting that the act of leaving the flat was not a voluntary act?

MR BABB:   That is correct, your Honour.  In all the circumstances, it was not a voluntary act.  He was completely affected by the methadone at the time, unconscious prior to being raised, and in my submission, would have needed to be assisted from leaving the flat.  Now, Ms Malouf in her evidence said that he left the flat under his own steam, but Ms Malouf is recorded on listening device with the appellant and Mr Burns on 3 March 2007 – three weeks after the death – visiting their unit. The listening device captures them putting their heads together and the appellant and her husband are coaching Ms Malouf as to what she should say to the police, and parts of that were clearly false and ‑ ‑ ‑

HEYDON J:   What page are we on?

MR BABB:   I will take your Honours to it.  So, if I could start at appeal book 436 – these are the listening device transcripts ‑ and there is a box marked 5 there, your Honour Justice Heydon:

FM     “Now are you supposed to have been asleep in bed when I arrived or?”

NB     “Well, no, it doesn’t matter, no I was here . . . I was here, we were both here, you came over . . . and you were here I was here OK.  I was here, you came over, you were here . . . you were here then he come over –

We know that was not the case, that Ms Malouf came after.  That continues on at appeal book 438, box 4.

HEYDON J:   When it says:

NB     “Dave, ‘Oh no no no no no ambulance, police no no‑one’ ‑ ‑ ‑

MR BABB:   That is the appellant, your Honour.

HEYDON J:   Is that the appellant suggesting that this is to be attributed to Dave, even though he did not actually say it?

MR BABB:   That is my submission, yes.

HEYDON J:   These are either circumstantial evidence or admissions by conduct or admission by lies.  What does one get from the admissions?  What inferences does one draw from these admissions, because the appellant did not give sworn evidence or did not give any evidence?  What are we using the lies to damage?  So we have a prosecution case and it has some good things for the prosecution and no doubt some good things for the accused, how does this damage the accused’s case as reflected in the prosecution evidence?

MR BABB:   Would your Honour let me check in the directions and come back to your Honour on that question?

HEYDON J:   Yes, certainly.

MR BABB:   What I am using it for at the current time is simply the question of whether the – answering your Honour’s question as to whether it was truly an autonomous act in leaving the flat and my submission is that these listening devices show that it was not and that the jury would not have paid attention in all the circumstances to the evidence of Felicity Malouf to that regard, and that is common sense because if, as the appellant says, he was not in any fit state to stay, it follows that he was not in any fit state to leave, the prosecution says.  Later, at 439, Natalie Burns, the appellant:

NB     “Walked him out that is it.”

. . . 

NB     “Don’t, don’t ya, ya messin’ it up again.  We have to keep it . . . ”

BB      “That’s the storey . . . 

That is the appellant’s husband there:

NB     “Then don’t mess it up.  No messing up . . . ”

Then it is over the page at about line 35:

NB     “It’s not a hard thing is it?”

BB      “Just tell the truth, that you were here first, that’s all . . . ”

Which we know is not the truth:

BB      “ . . . when he come drunk and Natalie told me fuck him off.”

NB     . . . That’s the whole storey in a nut shell and leave it don’t mess it up . . . ”

So in that regard that evidence and over the page on 441:

NB     . . . keep things simple, please, I really do gotta keep it simple.”

. . . 

NB     “Because otherwise I don’t want to go to court with my husband doing time.”

Your Honours, that evidence indicates that he did not leave voluntarily and autonomously.

KIEFEL J:   In relation to what Justice Heydon asked of you about the use you were making of what you say are falsehoods, Ms Malouf gave evidence, did she not?

MR BABB:   She did.

KIEFEL J:   She, in the Court of Appeal’s judgment at appeal book 730, paragraph 78 ‑ ‑ ‑

MR BABB:   Sorry, your Honour, could you just repeat that page number?

KIEFEL J:   Paragraph 78 in the Court of Appeal appeal book page 730.  They summarise her evidence as him saying, “No, no, I’m right” when they have offered to call him an ambulance.

MR BABB:   Yes, that is correct, your Honour.

KIEFEL J:   So, were there directions given in relation to what they make of that evidence by reference to the recordings?

MR BABB:   I will just have to find it, your Honour.  I am sorry, I will come back to that.

KIEFEL J:   And at paragraph 80 in the Court of Appeal, Ms Malouf said:

the deceased walked out under his own steam, he was not carried or helped in any way.

MR BABB:   Yes.  I am sorry, your Honour, I am just going to have to find that.

FRENCH CJ:   What was the factual history most favourable to the Crown case, as put to the jury, about his departure and behaviour before he left?

MR BABB:   That he came over – excuse me, your Honour, I am sorry.  Partly, it is found in the statement of Natalie Burns at page 398 of the appeal book that he, “came over, he was out of it, or drunk or something.”  The Crown case was that he ingested methadone so he was already affected by drugs.  We not only have that from the statement of the appellant but also from some listening device admissions by the appellant at page 424 of the appeal book.

FRENCH CJ:   Can you just try to encapsulate the factual history and take us to the sources if you need to but I just wanted to get – what was the Crown case, at its highest?

MR BABB:   The Crown case at its highest was that he came over substantially affected by drugs.  He ingested methadone and became unconscious and did not respond to Ms Malouf when she arrived at all, even when he was introduced to her.  So, he was unconscious until the husband of the appellant and Ms Malouf discussed calling an ambulance, getting him to his feet and walking him around the lounge room, and at some stage around that time the appellant came in and said that – to get him out of there, he can’t be here in that state.  The Crown case is that you would draw an inference from the fact that he was unconscious, had to be supported when he was being walked around the room under each arm by Ms Malouf and the appellant’s husband, that he was not able to leave under his own steam but that he was taken out into the backyard and put into the shed by the appellant’s husband, Burns.

Now, your Honour, the jury were particularly told that if he was up walking about and has walked out under his own steam, then his life was not threatened and the duty of care formula and the breach of duty did not apply.  That was at page 630, line 17.  I had taken your Honours to this earlier this morning. 

BELL J:   The legal duty for which you contend arises solely by reason of the supply of the drug, I take it, in that you would not assert such a duty had the deceased turned up with the methadone that he had obtained from some other source, consumed it in front of the appellant and fallen into the state of apparent helplessness, is that so?

MR BABB:   That is correct, your Honour.  There would not have been contribution to the danger there by the appellant.  Similarly, if you do not have knowledge that someone has gotten into a life threatening situation, so the supplier on the street where the person takes the drug and leaves, then there is no duty of care arising there.  You do not know that the situation has become life threatening and the duty does not apply.  It is a duty that only crystallises with the knowledge that the situation has become life threatening, which is why, in the situation of Evans and this case, you had to have remained with the recipient. 

Your Honours, could I come back to Justice Heydon’s question about how the jury were to use that material that I took your Honours to.  That is set out in the written directions at 613, line 30 and following.

HEYDON J:   The judge’s direction is rather general.  In the submissions of the prosecution, was there an attempt to get more specific inferences to say, look, that is a lie, that is a lie.  That is a conspiracy to fabricate evidence.  From that you can infer that X is the case.

MR BABB:   Yes, your Honour, there was and I will find that, your Honour, and take you to it.

HEYDON J:   Or perhaps to put it another way, that high case you put in answer to the Chief Justice’s questions, does that high case depend upon using these admissions, or does it ‑ ‑ ‑

MR BABB:   Yes, it does, your Honour.  You need to ‑ ‑ ‑

HEYDON J:   Ms Malouf was the subject of a section 38 order, I think.

MR BABB:   She was subject to a section 38 order but ‑ ‑ ‑

HEYDON J:   And how did she go?

MR BABB:   There was a section 38 order made, but it was not particularly put to her that she had lied in saying that he had left under his own steam.  So leave was sought under section 38 but not going to this particular point.  It was something where a submission was made by the Crown but the proposition that she had lied had not been put to Ms Malouf.

HAYNE J:   How does that work?

MR BABB:   It should not, your Honour.  It should have been put.

KIEFEL J:   Well, that might explain why, at appeal book page 543 at about line 40, in the address to the jury the Crown describes her evidence but does not seem to qualify it.  It seems to be accepting it and I cannot find a qualification of her evidence.

MR BABB:   There is a qualification.

KIEFEL J:   Is there?  I have not found it yet.

MR BABB:   Yes, there is, your Honour.  It was specifically put that they should reject Ms Malouf on ‑ ‑ ‑

KIEFEL J:   On that point?

MR BABB:   I believe so, your Honour.  I have just got to find it, I am sorry.

KIEFEL J:   There certainly seems to be some focus upon whether she should – about what is to be made of her evidence about when she arrived, and so what she may or may not have seen about him taking drugs and how he appeared, but I just could not pick up ‑ ‑ ‑

MR BABB:   I think it is at the bottom of 548 and following, your Honours.  Yes, it is 548 through to 552 where the submission was put:

Ladies and gentlemen that is the evidence to support the submission that the account given by the accused to police in her statement is not truthful –

Then at 551 line 40:

Malouf just was not keeping up with the web of lies and deception that she had found herself in.

HEYDON J:   So it seems to be used not so much to attack Ms Malouf’s evidence but to attack the accused’s account on 3 March, was it, at the police station?

MR BABB:   Yes, that was largely the case.  I will have to check it closely, your Honour, to see if there is any ‑ ‑ ‑

HEYDON J:   I suppose in a sense these were not admissions, as it were, by Ms Malouf because she was not a party.

MR BABB:   No, exactly.  I will try and look through that carefully and see what further I can assist your Honours with in relation to that.  But in that regard, your Honours, my learned friend’s submission that there is a lack of coherence with the principles of autonomy – I do not disagree with the submission that there is a principle of autonomy and that had he been an autonomous being at the time, rejecting medical help and voluntary leaving, that that principle may act against the application of the duty in this case, but it simply was not the case, in my submission, that he was autonomous and that the principle would apply in the state that he found himself in at the time he was ejected from the premises.

BELL J:   Does not autonomy feed into it in this way?  He is an adult who turns up to purchase methadone.  He is affected to some degree by other drugs that he is taking.  When one looks at paragraph 31 of Evans and the notion of creating a state of affairs that presents dangers, he chooses to attend on a vendor of methadone to purchase and consume methadone.  So one cannot see the vendor as alone creating the state of affairs.  One might think a significant part of the creation of the state of affairs of endangerment is the choice of the adult methadone user to go and buy some.

MR BABB:   Yes.

BELL J:   So that the notion or the creation of a legal duty to take steps to prevent a person in apparent distress in a life‑threatening situation from dying, which would not apply had he obtained the methadone from another source, seems perhaps a fragile basis.  The basis for it is that the appellant was in the business of selling methadone.

MR BABB:   Well, my submission is the basis of it is that the appellant had contributed to the creation of the danger, but the duty does not crystallise until the life‑threatening situation had occurred and to that extent, we are really focusing on beyond the significance of his voluntary decision to purchase methadone and focusing on the fact that there had been involvement in the danger creating situation and when that situation arises, you cannot just expel someone.  You cannot just walk away or pass someone – you cannot pass the child in the puddle in those circumstances.  If it is your excavator that has dug the hole and you have filled it with water on the school route and it is on your property, it might be a different situation to walking past a child in a puddle where you have not created the danger.

Your Honours, in my submission, this category of a duty of care is closely analogous to the seclusion cases and Taktak in particular.  The duty in those cases arises because the person removes the victim from the possibility of assistance by others – sorry, (1988) 14 NSWLR.  That is, in my submission, that it creates a danger that no one would come along and aid the person who may have received aid had they been left, in that case in the Liverpool Street apartment in the city.

HEYDON J:   It is your submission that to eject from the premises someone who is not really capable either of deciding to leave or of leaving under their own steam is to seclude them in the sense that they go to some toilet and there is no good Samaritan type passer‑by who might notice them and do what the accused did not do?

MR BABB:   Your Honour, that has certainly occurred to me.  The difficulty in this case is the concession by the Crown that the duty did not extend beyond the time of the exclusion out the door, and I think this case was argued on that basis.  Bearing that in mind, that is exactly what happened in this particular case; the person was in a situation where they were together with Ms Malouf and Mr Burns, both of whom were trying to assist him in a practical way by stopping him from falling into unconsciousness and walking him around, something that one of the methadone addict witnesses had indicated is a way of assisting, and were discussing getting an ambulance, and yet the appellant at that time came in and said, get him out of here, but there is a limitation on the way the Crown case was put in this case, your Honour.  So really part of the significant breach was the putting him out the door as well as previous to that failing to call for medical attention.

HEYDON J:   What is the evidence as to what the accused knew once he was put out the door?  I mean, did he fall in the corridor?

MR BABB:   There is not evidence, your Honour, except that she knew that he was in not state to be put out the door, on my submission, in terms of the evidence of the state he was in at the time of being put out.  So in going to Taktak, your Honours, and just taking your Honours to the specific references to the importance of the seclusion at 245 at E on that page there is discussion there of:

Although, if not taken by the appellant to Rabih’s house, the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died.  Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her.  This chance was denied to her by the appellant when he took her away.  This is a factor which, in some of the cases (eg, Jones v United States of America) is regarded as significant.

In my submission, that is closely analogous to this situation of danger creation.  It is not exactly on point, but it is not a huge jump, I submit.  Similarly, Justice Carruthers at 250, point C, focused on the fact:

That duty flowed from his taking her unconscious body into his exclusive custody and control and thereby removing her from the potentiality of appropriate aid from others.

Your Honour Justice Heydon, in terms of what was submitted about the listening devices, one reference is at appeal book 552, line 50 where the Crown Prosecutor said:

You’ve got the evidence of Malouf.  I ask you to examine her evidence with great care to determine whether you accept what she has told is the truth.

So it is clear that it was called into question to that extent.  Unless I can assist your Honours further.

HAYNE J:   Just one matter, Mr Babb.

MR BABB:   Yes, Justice Hayne?

HAYNE J:   I notice that Mr Game has not yet told us exactly what relief he seeks.  It is put in the alternative.  He says conviction quashed and either a new trial or acquittal.  What do you say if the appeal were to be allowed should be the relief that should go?  In particular, can I direct your attention to this.  Is this a case where directing a new trial would permit the prosecution to have a second reformulated go at its case and if that is so, should that be permitted?  That is the sort of concern.

MR BABB:   Certainly, your Honour.  Your Honour, my submission is that your Honours, if you were to allow the appeal, should direct a retrial.  I do not think that, unless your Honour can point to me – I do not think that the case would necessarily be reformulated.  I do not think it could be.

HAYNE J:   At least a possible reading of the directions of the trial judge is that this case went to the jury on the footing that the unlawful and dangerous act was the act of supply, not an act of injecting, and if you go back for retrial, presumably it is at least open to the prosecution at retrial to run a case that there was injection and that that is the unlawful and dangerous act.  Now, you may say that does not matter a row of beans, but what is the position?

MR BABB:   Your Honour, my position is that that was the Crown case as it was put to the jury and that it would not be a reformulation of the Crown case in the way that is normally considered when deciding whether or not to not send a matter back under that basis.  Here the Crown, at 518, pre‑addresses and in his oral address formulated the case on that basis, that the case in relation to unlawful and dangerous act was that they either

injected him or assisted him to inject and that if you did not find that proved, that you would necessarily move on to criminal negligence. 

BELL J:   That formulation of the case came after the application for a directed verdict, the flaw in the way the Crown case had been opened having been exposed by defence counsel.

MR BABB:   I accept that, your Honour, it certainly came after ‑ ‑ ‑

BELL J:   Then why is the position not as it was in, say, Anderson’s Case where the goalposts were moved during the course of the trial and the Court of Criminal Appeal in that instance said in those circumstances it would not be appropriate to give the Crown another opportunity to formulate a case?

MR BABB:   This case is different, your Honour, in that, in my submission, this was a case where the defence was submitting that no supply took place.  There had been no handing over of the drug, no ingestion of the drug in there.  If there was a pointing out that the unlawful and dangerous act may have limitations, if it is supply simpliciter, that was merely a question of law in terms of how it was phrased.  The Crown case did not change in any way.  The Crown case from beginning to end was that the supply was not supply simpliciter.  The supply was by injection or assisting to inject.  So in that regard, your Honour, in my submission, it was not a changing of the goalposts in that impermissible way.

FRENCH CJ:   Yes, thank you, Mr Babb.

MR BABB:   Thank you very much, your Honours.

FRENCH CJ:   Yes, Mr Game.

MR GAME:   Could I begin by picking up some points from today?  Ms Malouf’s evidence, and that summary from the Court of Criminal Appeal’s judgment, we submit, is a reasonable summary and it does not support the idea of unconsciousness.  What is important here is that the Crown relied on Ms Malouf’s evidence, and the judge in the written directions – in the warning, it is said that “neither counsel” said “that she was a liar”.  That is at page 615, line 20.

HEYDON J:   What about page 552, line 50?

MR GAME:   That is on a specific subject.  That is not the subject that I think we were talking about, your Honour.  The Crown relied on Ms Malouf in respect of the present subject.  Can I just also mention that the direction that nobody was saying that she was a liar was repeated in the oral directions at 552?

HEYDON J:   Page 552, did you say?  Those are not oral directions, they are the Crown Prosecutor’s speech, are they not?

MR GAME:   Yes, but if you go back to 544, he is actually relying on ‑ ‑ ‑

HEYDON J:   What number?

MR GAME:   Page 647 is the direction from the judge that neither party is saying that she is a liar, and that is also at 615.

HEYDON J:   Yes, and what points on those pages?

MR GAME:   Page 615 at line 20, and then at 647 ‑ ‑ ‑

HEYDON J:   I see, 24?

MR GAME:   Line 24, yes, your Honour, and the Crown had an induced statement from Ms Malouf which they relied on, and then they pressed the details of it after a section 38 application was successful.  As I said, they appear to have relied on what she said about this at that passage I think that your Honour Justice Kiefel went to at 543 to 544, particularly lines 10 to 25. 

Now, if I could come back to what was said by the Crown about endangerment.  Nothing assists the Crown in what was said by the trial judge orally on the subject.  If you go to page 628, line 40, it is put as a voluntary assumption of the duty of care case, not as an endangerment case by her.  It just uses words like “appears to be in danger” or “in danger”.  If you contrast with paragraph 31 of Evans, it is quite different.  At 629, after the passage that Crown went to at the bottom of 629, there is:

in the terms I have outlined, voluntarily take upon herself such a duty –

Then at 630 it is repeated again at line 29; so three times.  So you cannot turn this case from a voluntary assumption of care case into an endangerment case.  Again, the issues would be quite different and you would have to actually formulate it in terms of an Evans Case.  You would have the issue about the prior ingestion, the ingestion itself, how did she know what his threshold was?  You would have CAL kind of issues of how was she to know what his situation was, the kind of publican situation.  It would be a different kind of a case.

This is put as a voluntary assumption of care case and should be so dealt with.  Now, I said yesterday that if properly examined Evans is really at paragraph – there is no need to go back to it – 35 and 36, properly examined the Court of Appeal’s decision in Evans is bringing together both the voluntary assumption and the provision by the elder sister, so it is quite a different situation.  If you contrasted that case with this case – if you contrasted the directions in paragraph 31 of that case with the directions given in this case, you are looking at a very different picture.

Your Honours may not need to get into it, but one of the articles that we have provided by Glenys Williams involves a very detailed consideration and criticism of Evans and it is quite a useful and interesting article.

GUMMOW J:   What is that article?

MR GAME:   Glenys Williams.

HAYNE J:   [2009] Crim L.R. 631?

MR GAME:   Yes, that is the one.  It is sitting here in this morass of papers that I cannot find, but that is a useful article, as is the Ormerod article.

GUMMOW J:   It might be useful, but what does it say?

MR GAME:   It criticises the decision as impermissibly bringing in the Miller kind of consideration into the assumption of a duty of care situation, and you find that at pages 637 and following, your Honour.  So that is that.  Just in terms of Empress Car, we have dealt with that in paragraph 18 of our reply and Empress Car was specifically not applied to the situation in Kennedy by the House of Lords and Rogers was overruled in Kennedy.  So that is the only comment I make about that.  In respect of MacAngus, something I neglected to mention yesterday is that in their unlawful and dangerous act manslaughter, the offence has to be directed against the person and we see that – again there is no need to go to the decision – at paragraph 38 of the judgment.  So there are differences, both the recklessness ‑ ‑ ‑

HAYNE J:   Sorry, what is the point you are making?

MR GAME:   The offence of unlawful and dangerous act is differently construed in Scotland.  It requires an offence against – the unlawful act has to be an offence against the person.  So it may not be a major point, but that with the recklessness, creates a different context for the unlawful act.  Now, if I could come back to the unfolding of events about, shall I say, the changed Crown case, what happened was, as your Honour the Chief Justice put, the Crown did put in the no‑case submission that the joint criminal enterprise was to supply under section 25.  That is at 481.  The next day – and this is a passage we have been to already, 517 and 518 – there is that further exchange. 

Then the Crown addresses – and it is worth noting that 536 in his address, a passage that you have not been taken to although we have referred to it, is that again the joint criminal enterprise, at line 48, is still the joint criminal enterprise of supplying the deceased with methadone.  So again, whatever else the Crown said, the Crown is still hanging on to the joint criminal enterprise of supply and then knew the dangers of giving anyone else some methadone, and if you find out the deceased got the methadone on board.  So again, the Crown is actually putting it in different ways. 

At 538 what appears at lines 20 to 25 is far from, shall I say, an articulation of joint criminal enterprise to inject.  It is all sorts of possibilities, “either of them or both of them”, that is not a direction.  When you go to the very end of this case when the Crown’s submission is being summarised it is summarised as the Crown’s submission – this is 676:

joint criminal enterprise with her husband in selling the drugs.

So, the Crown has kind of made a half‑hearted attempt to pull in the subsequent injection.  Now, in terms of the idea that this was always the Crown case, when the defence counsel got up and complained about this he handed to the judge the particulars; and that is at 557.  So not only did the Crown open on the case, not only did the judge direct on the case, but that is how the Crown particularised the case in respect of the joint criminal enterprise, at 557 lines 20 to 30.

BELL J:   Do we have that request for particulars in the ‑ ‑ ‑

MR GAME:   No, your Honour, you do not.  He reads it on to the transcript, but clearly it had particular importance in terms of the tendency material.  In terms of the request for particulars, presumably his interest in it was partly, at least, in respect of this issue about tendency evidence – though he reads on to the transcript the particulars.  Then when it comes to the directions ‑ ‑ ‑

HEYDON J:   Where is that?

MR GAME:   At 557, lines 20 to 30.

HAYNE J:   And particulars of what?

MR GAME:   Of the joint criminal enterprise.

HAYNE J:   In what aspect of the indictment?

MR GAME:   Your Honour, what he is saying is that the joint criminal enterprise that the Crown relies upon is a joint criminal enterprise to supply, ie, the joint criminal enterprise is never articulated in terms of a joint criminal enterprise to inject.  I can see and I would accept that there is some room for some question, but nobody is questioning here.  The Crown is not saying, “No, that is not how I particularised my case.  No, I didn’t.  No, that’s not what I meant to say.”

GUMMOW J:   How does all this fit into the grounds of appeal?  Was it agitated on the leave application?

MR GAME:   Well, your Honour, actually, the way it came in was through – we were refused leave to argue unsafe.

GUMMOW J:   That is right.

MR GAME:   That was a ground.  That picked up what happened in respect of both grounds.  In the Court of Criminal Appeal there was a ground, ground 4, that dealt with whether or not there was ‑ ‑ ‑

GUMMOW J:   No, the notice of appeal in this Court.

MR GAME:   In the current notice of appeal the only way it came in is through the causation issue but if one looks at the grounds of appeal at 766, it came in ‑ ‑ ‑

GUMMOW J:   Ground 2.3, is it?

MR GAME:   Yes, your Honour, it came in through 2.3 and I did not wish to make – what has happened is that the Crown’s argument about – the concession that the Crown has made is a concession that now goes antecedent to causation, but, your Honours, I had not meant to seek to amend – to add a specific ground addressing it, but in the ‑ ‑ ‑

FRENCH CJ:   The position you are taking, as I understand it, putting aside the shifting of the Crown case to which you refer, is that the trial judge misdirected the jury as to – by a direction on the question on supply as the unlawful and dangerous act – as to the unlawful and dangerous act which it was sufficient to find would have caused death for the purposes of criminal liability.

MR GAME:   Yes, but what has happened – it arose as a written response to our submissions on ground 3, but the concession that is made, and it became clear yesterday, that the concession is actually a concession about an antecedent element, which is that there is no unlawful and dangerous act in the supply.

FRENCH CJ:   Well, based on the concession, you say and you would say anyway, that the direction of the trial judge was a misdirection because it set the threshold too low.  The Crown says, in context, everybody knew what the judge was talking about.

MR GAME:   That is right, yes.  Your Honour, I think in the circumstances, I had better apply to amend and add a ground of appeal that picks up the antecedent error.  I have a draft of a document which we drafted this morning which would articulate an antecedent ground, and may I hand that to your Honours.

FRENCH CJ:   Has Mr Babb seen this?

MR GAME:   No, he has not, your Honour.

FRENCH CJ:   Well, perhaps we can ask Mr Babb first whether he accepts that the point is adequately covered by your ground of appeal 3.

MR GAME:   On the second page is what we have drafted to deal with it.

MR BABB:   Excuse me for one moment, your Honour.

HEYDON J:   Where in the appeal book is the application?

MR GAME:   I am sorry, your Honour, I did not hear.

HEYDON J:   You said your draft ground speaks of an application.

MR GAME:   There was an application made.  In the no‑case submission there was an application made.

HEYDON J:   In the course of that.  What page is that?

MR GAME:   The application starts on page 470 and it crystallises at 517 I understand.

GUMMOW J:   Whereabouts?  Where does this crystallise at?

MR GAME:   Page 517.

GUMMOW J:   Page 517.

BELL J:   But one sees it at 470 at line 27:

even if the Crown does establish beyond reasonable doubt that the accused supplied the methadone that the supply of methadone cannot be said as a matter of law to have caused the death of David Hay.

MR GAME:   Yes, but I have to accept this.  The way that it has been argued at all previous stages is in terms of causation, but what has happened in this Court is that the concession has become antecedent to causation because the Crown is conceding that – and we argued it in our submissions in‑chief.  Then there was a reply which effectively said the Crown case was different.  So that is how we have – we argued this or part of this in the unsafe, that we were refused leave – when I say we argued part of this, we said you could not prove the unlawful and dangerous act as particularised.  So I do apologise for the way it has fallen out, but it has actually fallen out in – there is some logic to the way this has actually unfolded.

CRENNAN J:   Well, ground 5 is very like ground 4 below in the Court of Appeal.

MR GAME:   Yes, that is right.  It is the same as for the ‑ ‑ ‑

CRENNAN J:   Which was the setting in which the causation points were made.

MR GAME:   It becomes the same as the ground 4 in the court below, yes, your Honour.  So I do seek that leave to add that ground.

FRENCH CJ:   Well, let us hear from Mr Babb.

MR BABB:   I do not oppose the ground being amended, but could I have an opportunity just to briefly make submissions about the way it was approached in the Court of Criminal Appeal after my learned friend has finished?

FRENCH CJ:   Yes, very well, thank you.

MR GAME:   If the Court pleases, if we may have leave to file that amended notice with that ground.

FRENCH CJ:   Yes, you have leave.

MR GAME:   If the Court pleases.  Could I just, without going to the particular passages, give your Honours some references partly in response to a question yesterday from Justice Bell about how the actual causation question was worked out in other cases of manslaughter by gross omission.  In Taktak in Justice Yeldham’s judgment at pages 247G to 248B and in Justice Carruther’s judgment at 251.  In Phillips, which we have not taken your Honours to but it is on our list of authorities, a High Court case, this Court’s case in 45 ALJR 467 Justice Windeyer did consider the question of causation at 478.

HAYNE J:   You are dropping your voice, Mr Game, I cannot hear you.

MR GAME:   Sorry, your Honour.  It is just to give your Honours – Justice Windeyer did consider the question of causation in Phillips 45 ALJR 467 and it is at 478.

GUMMOW J:   What did he say?

MR GAME:   It is just at that passage towards the bottom of the page on the first column.  This is a case where – it is a bit like Hallett this case and, of course, it is before recent jurisprudence about causation but:

Even if that could be said, it could not be said that it was this that caused the homicide.

Which was leaving her –

The girl died by drowning, not because she lacked medical aid.

KIEFEL J:   Does this go to your point about direct and immediate cause?

MR GAME:   It just goes to this point which is, is that really a test or is that just a formulation that has been used without consideration of the consequences of it.  We saw this morning that in MacAngus that particular formulation was used.

Now, just a point about rational and informed, and this really has been exposed in argument, but in a situation where you have a person who has already ingested drugs who wishes to buy methadone, if you place the test as high as it is put by the Crown about understanding consequences of actions and making rational decisions, then the process in causation is never going to be broken.  You are going to actually have to ignore the situation of the recipient.  That is how high it actually becomes, and that is a far cry from what really is the question about making a deliberate decision to take the thing, knowing what that thing is.

Now, just a point very briefly about – and this is just in response also to a question from your Honour Justice Bell about Narcan and Olanzapine ‑ if I could just give your Honours some references?  Dr Duflou gave some evidence about this at 292 and 293 about the drugs.  The evidence of the pharmacologist is at 336.  At 342 what you need for Olanzapine is set out –

you need mechanical ventilation, so it is a different kind of a process.  Subject to those matters, those are our submissions in reply.

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Could you give me one moment please, your Honour?

MR GAME:   I am sorry, I forgot to deal with orders.  What we say is this.  I do apologise.  In respect of orders, this case, we say, is distinguishable from Taufahema for the reasons that what really is in issue here is changing the Crown case on unlawful and dangerous acts and changing the case on manslaughter by gross criminal negligence.  So, with those two proposed – in effect changes in mind, this would be a case for acquittal and not retrial.

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Your Honours, my point in relation to the new ground 5 is simply this; it cannot have been an error that the Court of Criminal Appeal fell into in declining to consider that application because the way they considered the case is set out at paragraph 7 and 8 of the judgment.  At paragraph 7 they set out the Crown case.  At the bottom of paragraph 7, this is appeal book 712, your Honours:

the Crown case was that he had been supplied with the drug intravenously while in the premises and in the presence of Burns, or both him and the appellant.

Further down at paragraph 8:

Burns caused the death of the deceased by an unlawful and dangerous act; that act being the supply of the methadone by injection to the deceased.

So that they very much approached the case as it was put by the Crown, not on the basis that it was supply simpliciter, but it was supply in the broader sense in relation to unlawful and dangerous act of supply by injection or assisting in the injection.

BELL J:   But that is the subject of the challenge in this Court.

MR BABB:   Yes, your Honour.  Further, at paragraph 157 they note that the case could not have been taken from the jury in relation to supply because the supply that was being considered by the jury was not supply simpliciter, but supply by injection or assisting in the injection.  So it was on that basis that they considered the question.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Babb.  The Court will reserve its decision.  The Court is adjourned until 10 o’clock tomorrow morning.

AT 12.18 PM THE MATTER WAS ADJOURNED