Burns v The Queen

[2012] HCATrans 99

[2012] HCATrans 099

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 WEDNESDAY, 2 MAY 2012, AT 2.15 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with MS G.A. BASHIR and MR D.P. BARROW.  (instructed by Legal Aid (NSW))

MR L.A. BABB, SC:   I appear with my learned friend, MS J.A. GIRDHAM.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Thank you.  Yes, Mr Game.

MR GAME:   If the Court pleases, we have provided to the Court Officers our outline.  Shall I pause for a moment while your Honours have a look at it?

FRENCH CJ:   That is not a bad idea, Mr Game.  Just give us a few minutes.

MR GAME:   I am probably being presumptuous, it might be an idea of your Honours looked at the respondent’s outline as well because, looking at them both, you might see that the issues have perhaps narrowed somewhat.

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If I could take your Honours to the second appeal book, page 602 and following of the written directions, and these written directions and the correctness of them, we would submit, is really at the heart of the resolution of this appeal.  What I will do is go through these written directions and then advise your Honours as to which part of the written outline they relate to.  If I could take you to page 604, the trial judge – this is 12 August 2009 and these directions had first been handed out on 10 August over the subject of discussion on the 10th, 11th and 12th, and with one limited exception about the voluntary issue in respect of manslaughter by gross criminal negligence the Crown did not demur from these directions.

Now, the joint criminal enterprise is identified at page 604 as a joint criminal enterprise to supply.  When I go through this I will give your Honours some references to the oral summing up but I will not take your Honours to that because what happens, essentially, is they are repeated, so there is some extrapolation but there does not appear to be material changes.  So, what one sees at 604 there on joint criminal enterprise is repeated at 624.

FRENCH CJ:   So far as you are concerned, that aspect was not contentious, is that right?

MR GAME:   That is correct, and even on the Crown – if you even go the way in which the Crown ultimately put his case, which the trial judge summarises at 676, correctly summarises, the Crown identifies the “joint criminal enterprise with her husband in selling the drugs”.  The Crown had opened on joint criminal enterprise to supply the drugs.  The particulars said, supply the drugs.  It was only after the no case submission that the Crown addressed in a different way to the jury.

FRENCH CJ:   Well, that led to a protest which was, effectively, rejected.

MR GAME:   Yes, there was a protest.  Then this is the way on which it actually goes forward in terms of the directions.  Now, the joint criminal enterprise clearly is common law and it makes the accused, or the appellant, liable for the acts of Mr Burns in respect of the supply.  So if we are looking for an act in the unlawful act, the act could simply be a participation in the suppliers in distribution.  That applies to both counts 1 and 2.  If one then looks at page 605 of the appeal book – and forgive me for mentioning these numbers – that is repeated at 628, and there is no need to go to it each time, but that is repeated in the oral submissions. 

As I say, sometimes the judge would pause and speak to them and extrapolate a little but not a great deal.  Now, what the judge is directing there is about supply in respect of – at that moment in respect count 2, but that is picked up in respect of count 1 and that definition of “supply” – that “supply” picks up – takes from section 25 of the Drugs Misuse and Trafficking Act and it picks up the extended definition in section 3.  We have provided the Court with copies of that legislation.  You have to go back into the definition for the extended definition of “supply” in section 3.

You see under the definition of – section 25(1) will take you back to section 3 would take you to the extended definition with the word “supply includes sell and distribute”.  So that when the trial judge says “handing over or giving not necessarily to prove their was a sale or if or when the person consumed it”, that is taking from the definition of the extended definition.  Now, I am going to try to avoid chasing hares down holes, but behind the other provisions are sections 5, 12, 13 and 14 which are the administer and self‑administer provisions and if you wanted to leave a case based on that, you would have to identify that unlawful act.  You would have to bring in joint criminal enterprise to it and you would have to work out if there was – you would have to direct on it and you would have to actually work out if there was an administer and there would be some quite nice questions about whether or not there was a case on that, but that is not how the case was left in this particular case. 

Now, there is a definition of “administer” in section 5 which has an extension, and when I say an extension, it includes the ingestion, injection and inhalation.  “Administer” is to administer to another person, that is in 31, and “self‑administer” is administer to oneself.  There would a nice question as to whether or not you could be a joint criminal enterprise with a deceased to self‑administer to them, that would then be the unlawful and dangerous act causing death and if you define it as the “administer”, then you would have a nice question about whether or not there had been an “administer” in fact.  So you would be taken into a different line of inquiry than these directions actually brought to – upon which the case rested and, as I say, that extended definition even includes if or when the person to whom it was supplied consumed it.

Now, just another point there before leaving that.  The Crown relied on tendency evidence and a tendency notice, and the tendency related to a tendency to supply to others who in some instances consumed on the premises and on some instances did not, but the tendency evidence related to supply, not to some other thing.  So, that really picks that which we say in paragraphs 13 to 15 of the written submissions.

Now, we come to count 1, which is manslaughter put on two bases, unlawful and dangerous act and gross criminal negligence.  The Crown has said that the second was left in the alternative but that is not the way the judge has left it, the judge has left it that it is open for them to consider either.  Insofar as it is of any assistance, the jury asked a question about the characteristics of the accused in the context of the gross criminal negligence and that was the last thing that happened after they had retired to consider their verdict.

Just then at the bottom of page 605, you will see that the directions on supply in count 2 are linked to count 1, so that is how what I have said about extended supply feeds back into unlawful and dangerous act.  Then we go to page 606 and we see the first basis upon which the case is left, which is unlawful and dangerous act.  You will see that the supply is picked up, which I already said, at about line 20:

includes giving or handing the drug over to someone, whether or not by way of sale and whether or not immediately consumed by the person –

As I said, there is picked up joint criminal enterprise in respect of supply.  Now, what actually happens, and it seems to have really been an elision, is that when we get to (c) that it is said that the supply is:

dangerous in that it carried with it a risk of serious injury –

Now, if you just have a look – I will have to come back to it ‑ at 609, you will see in the causation directions at line 32:

and that the drug substantially contributed to David Hay’s death –

Now, the Crown accepts that it cannot succeed on an unlawful and dangerous act of supply in both its outline and its written submissions at 6.31.  There are two reasons for that.  One is that supply in itself is not a dangerous act and in our submissions we have referred to – at paragraph 16 Dalby, Evans and Kennedy in each of which cases it was said that the supply could not be the unlawful and dangerous act.  Could I just mention something else?  It is the Court of Criminal Appeal in this case, and there is no need to go to it, 759, paragraph 162, said that, “it was accepted that the unlawful” and dangerous act was supply.  We have checked the submissions; the Crown submitted that that was the unlawful and dangerous act and in the Court of Criminal Appeal, but it was said by the Court of Criminal Appeal that it was not disputed that that could be the act causing death.

So that what has actually happened is that the drawing out of the respective positions of the parties is one has arrived at the position where, when one pushes to the limit what is involved in the idea of an unlawful act of – a dangerous act of supply, that that cannot be the unlawful and dangerous act upon ‑ ‑ ‑

FRENCH CJ:   Now, one of your complaints was, at least at trial, that Crown opened on supply in the no‑case submission in answer to a question from the judge.....identified supply.

MR GAME:   That is right.

FRENCH CJ:   In closing address they went to, you say, injection.

MR GAME:   Yes.

FRENCH CJ:   And the judge said that was not the fundamental alterations of the case.

MR GAME:   That is right.  But, your Honour, the joint criminal enterprise never changed from supply and the joint criminal enterprise was never fed into the idea of injection or taking.  So that what has happened is that by the kind of – it is understandable how it could occur – by a failure to focus sufficiently severely on what is the act said to be causing death, an elision has occurred between the unlawful and dangerous act being participated – the unlawful act being participated in an agreement to supply and the act of ingestion which then becomes the dangerous act. 

So that is where the actual process seems to have broken down in this case and the judge appears not to have sufficiently appreciated that.  In fact his very judgment about voluntary informed acts, in a sense, does not involve digging deep enough into the problem because you will never get past the causation problem with unlawful and dangerous act in respect of supply and if you have the unlawful act and dangerous act in respect of an administration, an agreement to administer, then you have quite an acute issue in respect of this question of the voluntary choice to administer because at that point you will have to decide who is doing the administering and that would involve quite a precise attention to a legal issue that was not actually brought to a head in this case.

Whether or not it matters, at one stage when the defence counsel was objecting about this, he said, well, the Crown case – the defence counsel said the Crown case is supply and he said to the judge there is no evidence beyond supply and the judge said, yes, that is right.  But my very first point about this case is that the liability of the appellant in this case is, shall I say, sheeted way back here in terms of her participation in, shall I say, the business of supplying drugs to people, and that is how she is made criminally liable and then these things feed into it.  So that is what we say about that which appears at – there is no need to go it – but it is at page 517 is the passage that I was just mentioning, your Honours. 

So what I have just said then picks up what it is in the recent submissions at paragraph 16.  Now, if one then goes to the bottom of page 606, we start the directions on manslaughter by criminal negligence.

HEYDON J:   Can I just interrupt? 

MR GAME:   Sorry, your Honour.

HEYDON J:   You said paragraph 16.  Do you mean of your outline?

MR GAME:   Of the outline.  All I am doing is just telling you which paragraph it is picking up as I go.  Now, if you go to page 606, line 40, the judge then directs the jury on what he described as:

manslaughter where the accused voluntarily assumes a duty of care –

Again I am cutting through a lot of territory by saying this, but the Crown now accepts that this case could not be a voluntary assumption of care case and that there was no voluntary assumption of care case and it re‑characterises the case as what might be described as a creating a danger case which is a different line of territory.  There is some bringing together of them in Evans, and I will come to that in a minute.  The Crown is now saying that this is a creation of danger case.  But the point that is important about this is they say it is a creating of danger case because of the accused’s involvement in injection.

There are two points about that.  One is the directions did not speak in terms of an injection at all in the context of this, but, secondly, the way Crown ultimately put his case on the manslaughter by gross criminal negligence was if he had not proved that either the accused or her husband had assisted in the process of injection, this case would arise.  So the creation of danger case is kind of brought up from nowhere because it is now based on the idea in the Crown’s written submissions at paragraph 13 of the idea of injection, that is to say, in the Crown’s hand up to you today which is “assisted in the injection”.  That formed no part of what was being put in respect of this subject on manslaughter by gross criminal negligence.

So if we then come to page 607 of the written directions – sorry, just to give your Honours another reference, at line 40 on page 606, the Crown’s acceptance that the voluntary assumption of a duty of care is not made out is at paragraph 6.31 of their written submissions, not the hand up.  Now, if we come to page 607, there is the direction starting at line 18 that is the subject of the manslaughter by gross criminal negligence.  Again, for the record, that is repeated in the oral directions at 628.  Now, we see the idea of “voluntarily invites” and then “may be or become seriously affected by drugs”, and then we see:

supplier has a duty to conduct himself towards the drug recipient without being grossly or criminally neglectful.

Then we see the idea:

It is for you to consider whether, on the facts as you find them to be established in this case, the accused did in the terms I have outlined voluntarily take upon herself such a duty ‑ ‑ ‑

HAYNE J:   Are the jury told what bears upon the notion of voluntarily take upon herself such a duty?

MR GAME:   No, I think what this means is that you are kind of deemed to be voluntarily taking on a duty, and if one goes to the voluntarily take on a duty case, they are very special situations, like people looking after their ‑ ‑ ‑

HAYNE J:   Leave that aside.  In this case ‑ ‑ ‑

MR GAME:   No, your Honour, sorry, I did not mean to digress.

HAYNE J:   No, but in this case, is the jury to understand it that either voluntary invitation or permission for the purpose of supply and consumption requires the conclusion duty?

MR GAME:   That is right.  That is what they are saying, that equals a voluntary assumption of duty.  So if you invite them and they take, then you have got a voluntary assumption of duty.

HAYNE J:   I am not sure that it is even telling the jury that, but assuming it to be so.

MR GAME:   So, as I say, the case kind of collapses into some very sort of ‑ ‑ ‑

FRENCH CJ:   Well, it is not a voluntary assumption of a duty.

MR GAME:   That is right.

FRENCH CJ:   It is a voluntary invitation which then attracts a duty as directed.

MR GAME:   That is right.  So it is a deeming – “deeming” may be not the right word, but defence counsel called it a form of strict liability and, in a sense, that is what is happening, is you are kind of making her liable for that without any inquiry of what the circumstances are, and these words “maybe” or “maybe this or maybe that” and then the words “has a duty without being grossly or criminally neglectful”, they tell you nothing about – if you have got the duty, they tell you nothing about the scope of the duty.  So where will you go on – when you start to ask yourself – could I just pause there?

Our overall position, if it necessary to go into it, the inquiry here is well informed by the kind of inquiry that is made at common law in tort, with respect – the kind of inquiry that Vairy or Shirt or that whole line of territory and then going back to Chief Justice Dixon’s judgment in Joyce, that kind of inquiry of looking at the whole of the circumstances.  What you are actually doing here is creating a duty of what is actually an illegal relationship of the supply of drugs from one to another.  We are not saying that in no circumstances can a duty arise, but that would be because of overriding circumstances such as in the cases we have referred to where people do take on looking after someone, where people do seclude someone. 

The other thing about this is that this is entirely a retrospective exercise.  If you have a defined relationship, then you can see how people conduct themselves in the context of the relationship, but this particular direction is kind of a retrospective exercise in inventing a duty that has a kind of free floating character about it.

HAYNE J:   But that may or may not be so.  But what the relationship cases, parent/child, particularly may be pointing towards is that the duty arises in circumstances where there is capacity to control conduct of the person to whom the duty is owed.

MR GAME:   Yes, exactly, and that is where this idea of ‑ ‑ ‑

HAYNE J:   That is not an exhaustive or complete statement.

MR GAME:   Seclusion is not necessarily exclusive, but in this situation it would be because there is no particular relationship absent the selling of the drugs.  So that is precisely the situation, yes.  So that when you go to the extrapolation of this in the directions by the trial judge, we see grossly negligent omission, and then we see in the third dot point, the deceased:

took the drug on the premises, whether or not in the presence of the accused –

and that is really far away from the case that the Crown is now putting on endangerment.  Then we see the last, shall we say the breach, so the breach is failing to call an ambulance or expelling him.  So, the duty would have to include a duty to call an ambulance and the duty not to expel him.  Those things may sound absurd but that is just the logical conclusion of stating the legal proposition ‑ ‑ ‑

HEYDON J:   What is so startling about it?

MR GAME:   Your Honour, because if you have got a duty to voluntarily assume care for someone then how could it be that you have a duty not to – if you – how could you have ‑ ‑ ‑

HEYDON J:   The person seems to be suffering an episode of dangerous illness, in part caused by drugs sold by the married couple who are running – whose house it was, whose home it was.  What is so startling about the proposition that if a person gets into that position as a result of your conduct you ought to call an ambulance or get some help and certainly you ought not to throw him out on the stairs?

MR GAME:   Well, your Honour, you have to ‑ ‑ ‑

HEYDON J:   What is so startling about it?

MR GAME:   Well, you have to find the legal duty – you have to find ‑ ‑ ‑

HEYDON J:   It is a cry for help.  There is a person in distress and you have got the person into that distress.  You are, sort of, defending your client’s conduct as appropriate, are you?

MR GAME:   Not for one second, your Honour, but ‑ ‑ ‑

HEYDON J:   Well, if it is not appropriate, in what respect is it not appropriate?

MR GAME:   Well, the business of supplying drugs of this kind is quite inappropriate.  The question is whether or not she should be guilty of manslaughter.  But the question I am focusing on here is whether or not this accurately defines any duty of care which is known to the law, and I say, we submit, that it is not.  So not only do we submit that it is not, the Crown does not submit that it does either, except by recasting the case to something different.  You will not find a case that is remotely like this case, your Honour, in terms of defining the duty.

HEYDON J:   Everything has to happen for the first time in the common law.

MR GAME:   No, I understand that, your Honour, but the outer extremity of cases is Evans which brings together both a very close personal duty and provision of drugs, which is a long way from this case, but there is no other case that is remotely like this case in terms of duty of care. 

HEYDON J:   Can we just go back one step.  You said that the Crown is changing its case.

MR GAME:   They are changing it.

HEYDON J:   Dot point 3 says, “Hay took the drug on the premises”.

MR GAME:   Yes.

HEYDON J:   Paragraph 16 of the hand‑up, the outline, says that, “Hay received a drug by injection”.  That is taking a drug on the premises.  It is just a more specific part of the genus, is it not?

MR GAME:   No, your Honour, that is a different proposition.  That is a different proposition.

HEYDON J:   “I take a drug”, that is saying an overlapping thing as if I said, “I injected myself with a drug”.  To inject oneself with a drug is to take it, correct?

MR GAME:   Yes.  But, your Honour, this idea of assisting in the injection has a very specific connotation here.  The connotation is the illegal act of assisting an administration of the drug, not merely supply.  The cases were starkly different about this.  On the defence case – should I say, what is happening – we say what is happening here is that the accused, if you chase the thing through, is being made liable for, in effect, the situation in which there is nothing more than a supply of drugs by her husband in a situation in which the deceased is seen to be what is described as “on the nod”, or whatever that means, and an obligation in those circumstances on her to call an ambulance, and we say that states any duty far too low.

FRENCH CJ:   Well, are you eliding here the question of what constitutes – or the acts or omissions that constitute gross criminal negligence and the content of a duty of care?  Can one not read the direction which, and in particular, the last dot point on page 607, as the identification of what are said to be omissions amounting to criminal negligence, and is that not a separate question from the question of the content of the duty?  In other words, this is not the judge saying that the duty is a duty to call an ambulance or not to expel Mr Hay from the flat.  These are the omissions that constitute a breach.  Now, he has made that distinction, perhaps you are not.

MR GAME:   Well, your Honour, I understand the distinction and it is possible that elided it, but this is an awkward thing about manslaughter by gross criminal negligence because it is different from tort where you have this further element.

FRENCH CJ:   In other words, not every breach of a duty will amount to gross criminal negligence.

MR GAME:   No, but, your Honour, an aspect of the duty is going to have to include those obligations, otherwise there cannot be a breach at whatever level.  So that what actually is happening is that you have to state the duty.  If you push the thing to its limit, you have to actually have the duty to do the thing the subject of the breach within the duty before you can have the breach, so that that is not going to only feed in at the step of the grossness of the breach.  In a sense, you will actually have to state the duty at a higher level if you are going to get to manslaughter by gross criminal negligence, and then it will all fit within the one idea.

FRENCH CJ:   Well, let me put it to you this way.  To paraphrase what Justice Heydon, I think, was putting to you, there is nothing, on the face of it, odd or startling about the creation of a duty to take some steps to protect this person’s life or prevent them from getting into a situation which you have brought about which might lead to their death or illness.  The question, really, is one of whether or not the omissions in this case could be said to have constituted gross criminal negligence.

MR GAME:   Yes.

FRENCH CJ:   Now, what do you say about that?

MR GAME:   Well, to find gross criminal negligence, obviously you have to find a duty.  The duty will only arise – the duty could arise in two different situations, but in the first context it will only arise in the context of the accused person doing something that changes the relationship such that the relationship is now one of care.  The other way, or the other circumstance which is quite different, is where a person does something that endangers another person, and that has typically arisen in, for example, murder by gross criminal negligence – sorry, by reckless indifference to human life, and sometimes a fallback of manslaughter by gross criminal negligence in that situation.  That is not how this case was put.  The case was put on the first basis.

There would have been real difficulties if it had been put on the second because if it was put on the second then all you had, as one sees here, is that the deceased actually takes the drugs himself.  So that, again, you would have to deal with that case as it was framed, but that case was not framed for the jury’s deliberation.  So, how could it be – I ask rhetorically, I do not mean to – but how could it be that one then says now that we have duty and breach somehow buried in here in a case in which that idea of breach has not been exposed.  We have said in our written submissions that the kind of directions given in Evans were not given in this case, namely, in doing something that endangers another person, and the kind of directions given in Taktak and approved in the bench book were not given in this case.  So that you have to actually look very closely at these directions and ask oneself, does a duty so framed exist and was it open to leave it in this particular case?

Neither of the parties are suggesting that a duty so framed did exist.  So, as I say, one will have to – I will come shortly to what was said in Taktak, but that is at the heart of what we say about those directions.  If I go back to our outline in this Court, this brings us back to that which we say at paragraphs 2 and following of the outline.  Paragraph 2, we say that the law is the law is – in terms of identifying a duty of care in this very special situation, we say Taktak correctly states the law.  I will take your Honours to that case quite briefly, but there is a lengthy discussion that begins at page 236 which goes back to examining early to mid‑19th century cases.  It starts at 236, but then at 242 we see the beginning of consideration of Beardsley and we see in that long passage from B to E beginning at B, but towards C it says:

It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death . . . Although the literature upon the subject is quite meagre and the cases few, nevertheless the authorities are in harmony –

Now, if you look at the actual kind of cases, they are special situations involving people taking custody and care of other people; essentially, legal relations of protection.  Then we see 243 a discussion of Nicholls, again the voluntary assumption of care cases in special situations and then the conclusion at 245D to E, and the critical conclusion is at E on 245:

entitled to conclude that the appellant here voluntarily assumed the care of the deceased “and so secluded the helpless person as to prevent others from rendering aid.”

That is Taktak applying Beardsley.  Now, if we go to paragraph 4 in our written hand‑up document, we look at the cases of Sinclair and Evans and I had intended to go to those two cases and will do so now.  First, if I could take your Honours to Sinclair and Johnson.  Your Honours should have a new law journal copy which we have provided today.  There is quite a lengthy consideration of the cases, including Taktak and Beardsley. If could take your Honours to page 6, the second column, and one sees at page 6 at the second column the passage:

So far as Johnson is concerned, there is no English authority in which a duty of care has been held to arise, over a period of hours, on the part of a medically unqualified stranger.  Beardsley and Tak Tak are both persuasive authorities pointing away from the existence of any such care, although we do not accept, in the light of Stone and Dobinson, that the concept of seclusion is, in English law, a necessary pre‑requisite –

Then one goes down below, “Sinclair was in a different position”, and it goes to “close friend of the deceased many years”, “lived together”, “paid for and supplied”, “helped him to obtain”, “knew that the deceased was not an addict”, “remained with the deceased throughout the period of his unconsciousness”, “was the only person”.  So although it does not require seclusion, we have, shall I say, the adopting of the position of care and being the sole person with the person in the circumstances, and that is where the duty emerges from.  There is a passage over the page at the top of page 7 that we would submit does have particular relevance here, the particular passage:

even if it is appropriate . . . for the circumstances in which a duty of care exists to expand incrementally, it is undesirable there should be elasticity in that expansion that potential defendants are unaware . . . We say this by reference to the circumstances in which a duty of care should arise in criminal law –

and so forth.  I mentioned this, but Johnson did not know the deceased.  So that case is an examination of a situation in which the duty does apply to one but not to the other.  Perhaps if I could just mention one thing, that if you had a case of a supply and an administration, ie, an injection, you could have an unlawful and dangerous act and then the question one would ask, why does one need manslaughter by gross criminal negligence as a second leg to this exercise?  So one has to, in considering this exercise, consider how the two different bases are both applying.

So then the next case to refer to and the last on this particular subject is Evans [2009] 1 WLR 1999. One sees in the headnote that the appellant was the sister who gave her younger 16 year old sister heroin:

The appellant and her mother believed that they were responsible for the care of [the deceased] –

So they accepted responsibility.  We see again still in the headnote –

if a person created or contributed to the creation of a state of affairs –

So you have both got an acceptance of responsibility and a creation of a situation.  If one then goes to the judgment of Lord Judge, paragraph 12 is the paragraph that deals with the acceptance of the duty.  Then 21 is the paragraph in which the creating the danger cases, shall I say, are brought together with the duty cases, and the case referred to is Miller.  Miller is a case where a man lit a fire starting in a boarding house with a cigarette and then burnt the thing down, so he created the danger.  So the special feature, in effect, of Evans is that the two things have been brought together.

FRENCH CJ:   He just wandered off somewhere else, did he not?

MR GAME:   Sorry?

FRENCH CJ:   He just wandered off somewhere else?

MR GAME:   Yes.  Then the direction ‑ one sees it at the bottom of paragraph 31:

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 –

Now, that could found a duty in a particular circumstance, but that is not the case that was framed and left in this particular case.  Then we see the conclusion at 35 is significant because it says:

Without her involvement in the supply of heroin, the jury was directed that there was no duty on the appellant . . . If on the other hand she was so involved, that fact, taken with the other undisputed facts would, and on our analysis of the relevant principles did, give rise to a duty on the appellant to act.

So, the other undisputed facts are the assumption of responsibility.  Then there is some muted criticism of the trial judge in paragraph 36 about the “voluntary assumption of risk”.  So, that at the heart of this case is the idea that the mother and the elder daughter assumed the care of the sister and the elder daughter had contributed to the sister’s situation by the supply of the drugs.  So, that case, we submit, is as close as one gets to the circumstances of the case at Bar.  So, we support the law in Taktak and we say that this case is distinguishable for very clear reasons.  Beyond that we say that no duty in law can be found that founds the liability that was identified in this case.

HEYDON J:   In Taktak, Mr Justice Yeldham quoted from People v Beardsley, and in People v Beardsley 14 NSWLR 226 at 242, between letters C and D, it says:

One authority has briefly and correctly stated the rule . . . ‘If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman etc –

what about the legal duty between vendor and purchaser?

MR GAME:   Well, this is in the illegal vendor and purchaser and what one would be saying is this, that if you could take the duty at the point of sale and you say, this is an illegal transaction but it is a breach of duty to go through with the transaction if the other person is incapacitated or might be incapacitated or might become incapacitated as a result of taking the drugs.  So, actually you create a duty around the very circumstance that you have made unlawful, and that, your Honour, does not sit incongruously, shall we say ‑ and I have in mind cases such as Miller v Miller and CAL ‑ the two are not sitting coherently with each other.  If you impose a duty at the very point of unlawfulness, and we are not saying that there cannot be an overriding duty in particular circumstances involving a drug supply, but the duty will never be framed in the way in which the judges framed it in this particular case.

HEYDON J:   Let us say it was not an unlawful sale, but that some food was sold to a purchaser and the purchaser had some terrible reaction to it and fell to the floor frothing at the mouth.  Could it not be said that there is a duty there on the vendor to assist?

MR GAME:   Well, there may be, but you are founding the duty in the legal relation involved in the breach of contract.

HEYDON J:   Yes, it is a breach of ‑ ‑ ‑

MR GAME:   So, in the breach of contract you have got a ‑ ‑ ‑

HEYDON J:   Well, it may not even be a breach of contract.  The goods may be of merchantable quality, fit for purpose and so on, using older expressions, it is just that they have been supplied and they have caused possibly a life threatening position.

MR GAME:   Well, say you got to the point of an unexpected allergic reaction, say, to ginger beer or something.  We would say there does not seem to be any case that we have seen that actually addresses such a situation, but we would say that – this might seem like a terribly hard thing to say – that there would not be a legal duty because it did not involve a breach of contract, that the relation was not broken.  That is an uncomfortable submission and not really, we would say, necessary for this particular case, but we would not dispute that you could form a relationship of the kind that creates a legal duty in the context of the relationship of contract.  The limits of that would have to be worked out, but we would not dispute that there could be such a relation that created a duty, or out of which one emerged.

HAYNE J:   The criminal responsibility that is attached, or was attached, in the 19th century to the railway gatekeepers who left the gate open and the carriage goes onto the tracks and somebody is killed, et cetera – that is failure in performance of a contractual duty, but I think in the sale of goods case posited to you, I am not sure that there is any failure in performance of contractual duty posited.  There is the unexpected anaphylactic reaction when somebody ingests something contaminated with nuts.  There is no term of the contract which says, this is warranted nut‑free, and the question then becomes not, is there a duty of care?  The question is, is there criminal responsibility for not reacting?

MR GAME:   We say, no, but I am not exactly sure how I would elaborate my answer to that question, except to say that if the contract has not been broken, then rhetorically from where are you building the relation other than – particularly in the context of a criminal liability – that comes in over the top of the entire situation, and then defines the legal relation in a different way?

HAYNE J:   Well, it is no different from the child drowning in a puddle.

MR GAME:   It is no different.

HAYNE J:   The flagrant breach of moral obligation is plain.

MR GAME:   Yes, it is a terrible thing, but not manslaughter by – that is correct.  Now, that is what we say in paragraphs 1 through to 8.  If we go then to causation, because of the way we have done our submissions, causation in respect of manslaughter by gross criminal negligence is picked up at paragraphs 9 to 12, and in respect of unlawful and dangerous act is picked up at paragraphs 16 to 18, but it can be fairly carefully confined.

If one comes to page 609 of the appeal book.  Now, we are looking at the directions on causation and those directions are reflected in that which the judge says in the summing‑up from pages 633 through to 636, and again there does not seem to be any significant difference between the two.  One sees – and in a sense I have already drawn this point out in the unlawful and dangerous act directions – at line 30:

jointly with her husband) supplied methadone . . . and that the methadone was taken by [the deceased], and that the drug substantially contributed –

So that the point I made before about breaking up the act and event has happened here, so that the exercise has actually fallen apart at the point of causation and you would have to have the agreement to inject and then the injection was – so that you would have to change the directions to kind of make it work.  One sees then in the next paragraph:

As I have said, the supply of the methadone must be proved to have substantially contributed to the death –

So that, in a sense, as we have explained, could not occur.  We then come over the page.  I will come to this issue about “rational, voluntary and informed”, but if we look these directions on causation and gross criminal negligence.  Now, we see the way that the trial judge has put it in terms of, in the sense, that she failed to prevent a death.  If one has an omission, then we are hypothesising about events that did not occur because somebody should have done something that they did not do, so that you are talking about the positive act having a substantial contribution to death. 

Failing to prevent a death is dangerously close, in a sense, to a “but for” test because if she had called an ambulance and if the ambulance had come, and then various things follow from it.  So the idea of substantial contribution in Royall sense is going to have to be broken down to in a situation such as this.  If you look at our submissions at paragraph 11, you will see that in these manslaughter by gross criminal negligence cases the omissions of whether or not they have intended to create another test.  One can see why they have spoken in terms of “immediate and direct cause of death”. 

Perhaps, if I could just expand that.  If one looks at the tort cases involving failure to advise about a risk, so an omission to advise about a risk where the subjective test applies.  I have in mind, Rosenberg v Percival and Chappel v Hart and the like.  You are going to have to posit that the thing would have happened.  You cannot posit that the thing might have happened and this is not a proposition about burden or standard of proof.  You are going actually have to posit that in the operation case the person would not have had the operation or the thing would not have occurred.  So that in this case, because you are dealing in hypothetical situations, the person would have accepted the ambulance or the person would have stayed for the ambulance, would have been saved by the ambulance or would not have left the house if asked to stay.

So that you will be driven to directing causation that forces you to posit the thing in terms of a hypothesised outcome which will, inevitably we would submit, drive you beyond simply speaking in terms of substantial contribution because that is not – and preventing a death because it is not going to make sense unless you draw out the omission that translates into the thing that has to be done.  There are two kinds of omissions.  One is an omission to do a thing like fill out a form.  This is an omission not like an omission to fill out a form.  This is an omission that involves the doing of a positive thing.  So, you have to then take the hypothesised positive thing and then you have to work out causation on that.

So, that actual test that was used in Justins, Taktak and Beardsley, again, it is not clear that it is intended as a separate test but that may be a test which can actually deal with the situation of a hypothesised outcome if you define it in terms of an immediate and direct cause of death. That is the proposition that we are putting at paragraph 11 in the written submissions. Now, if we come then to ‑ ‑ ‑

GUMMOW J:   Long form or short form?

MR GAME:   Sorry, the short one we handed up today, paragraph 11 today.

HEYDON J:   Do you submit, Mr Game, that Judge Woods should have said, you can only convict the accused if her omission was an immediate and direct cause of death?  Do you submit that?

MR GAME:   Yes, your Honour, I do say that.

HEYDON J:   Did Mr Crawford‑Fish take that particular objection?

MR GAME:   No, he did not take ‑ ‑ ‑

HEYDON J:   He took other objections but not that one?

MR GAME:   No, that has to be said.  This is a point that has just emerged in the submissions and it is clear that he did not take point.  I think everything else is adequately addressed and I freely accept that it is something that has emerged from an examination of how causation works in terms of omissions.  Even if you do not use the immediate cause of death, then you are going to have to draw out the hypothesised thing.

BELL J:   How was that done in Taktak?  In Taktak one had the seclusion of the young girl in conditions where – in circumstances where her poor state was known to the accused and she was secluded thereby preventing others giving her the assistance which, on one view, might have occurred.  I mean, all of these are hypotheses about what might happen.  So though in Taktak one gets that quotation from Beardsley, I am just wondering if this point holds good in the way Taktak was itself decided.

MR GAME:   I am not certain, your Honour, but if one looks at Justice Carruthers’ judgment at 250 ‑ and I would say I will look at this overnight, I hope I am still on my feet overnight – but if one looks at Justice Carruthers’ judgment, it was the omission of the appellant to obtain medical treatment which was the proximate cause of the deceased’s death.  I cannot answer the specific question but it does seem that in Justice Yeldham’s examination he is adopting what was said in Beardsley, which is that passage I took you to before.

It is also true that in that quotation we have got from Justins, which is a manslaughter by omission case, that they use this phrase, immediate and direct cause of death; that is a suicide case.  If you look at Justins, paragraphs 106 and 110 will take you back to Taktak and Beardsley.  Whether the point holds good, I have a kind of residual point about this which is even if you use the substantial contribution test, you are going to have to draw it out in a particular way that levels the thing into an event that would have occurred just as when you apply the subjective test in tort with respect to would have had the operation.

As I say, that is not a proposition about standard of proof, that is a proposition about an event happening because you are hypothesising it, so it is not like it might have happened or it is highly likely it would have happened, it is the thing would – that is where you have to arrive at before you can actually make – what I am trying to say is before you can make causation work you have to drive it to that level.

BELL J:   I think there was evidence here that Narcan is almost invariably effective.

MR GAME:   There was a witness.  That is right.

BELL J:   So the argument was the grossly negligent omission was not to call the ambulance.  Had the ambulance been called, the evidence established almost inevitably he would have been roused from the overdose.  Is that a fair way of encapsulating it?

MR GAME:   Yes, your Honour, except that the curiosity about this case is that the Crown accepted and the jury were directed that the duty concluded at the point at which the deceased left the flat, (a), (b), in this question of causation, if it is posed in the way in which I am putting it, you would have to bring into causation the consideration that he may have left not wanting the ambulance – he may not have wanted to stay.  Those things will actually be part of the causation question, once you pose the thing correctly, even if you apply the Royall test to it.  That is what I am trying to draw out there.  The Narcan applies to the methadone.  It does not apply to the olanzapine and those effects are irreversible.  I do not know how important that is, but I might look at it overnight. 

If we come then to page 610, we see the directions about breaking causation.  In a sense, if the primary submission about unlawful and dangerous act being supply works, you do not even get to this.  I mentioned before the prosecutor’s single objection was about applying this to the manslaughter by gross criminal negligence part of the directions.  In order to deal with this proposition, I will need shortly to take your Honours to Kennedy and the Scottish case MacAngus, but if one could just pause at page 610 for the moment and noting that these directions were extrapolated at appeal book 637 in the oral directions. 

If one looks at these directions, they introduce the idea of rational, voluntary and informed.  We cannot find where the words “rational” have come from, but “voluntary” and “informed” – and we say it does not mean the way it is extrapolated here.  It much closer to an idea of capacity, as in Kennedy, capacity to take the drug himself and break the causation of administer.  The direct recent aetiology or source of “voluntary” and “informed” seems to be Ormerod and Hart’s article on causation.  Now, if one looks at this passage on page 610, we see that the idea of the evidence as:

[the deceased’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 have not known about methadone and its effects, and what he may or may not have known about the injection of drugs . . . 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 . . . already affected by olanzapine –

So what is actually being brought into consideration is informed and rational in the sense of, shall we say, fully informed about the actual effects of these drugs and an understanding of what they can do to him and, in a sense, a kind of concealed deficit in knowledge of the deceased means he is not informed for the purposes of these directions.

BELL J:   These directions do not assume that the appellant herself injected or assisted in injecting.

MR GAME:   No.

BELL J:   These directions would apply if the jury considered that the deceased himself took the drug but that he was impaired in his brain functioning.

MR GAME:   That is right.  If the Court accepts some of the arguments further back up the line, it may not be necessary to resolve this question, but this is drawn particularly from Kennedy, but – that is correct, but in truth this question is going to bite when you have got a case about whether there was an ‑ ‑ ‑

GUMMOW J:   What is the question?

MR GAME:   The question whether or not causation is broken by a rational, voluntary and informed decision is going to bite when you have a situation such as in Kennedy where you have a question about whether there was an administration or there was not an administration.

HAYNE J:   But is not the question more fundamental than whether causation is broken by rational, voluntary, informed act of another?  It is a question of whether criminal responsibility ceases when there is the act of another.

MR GAME:   Yes, that is correct.

HAYNE J:   That is Glanville Williams view as expressed in ‑ ‑ ‑

MR GAME:   Finis for Novus Actus?

HAYNE J:   ‑ ‑ ‑ (1989) 48 CLJ 391 and following.

MR GAME:   Yes, your Honour.  Now, what I was trying to do at that point was try to expose how the issue, properly analysed, applied to this particular case.  Now, if one then goes to Kennedy [2008] 1 AC 269 ‑ ‑ ‑

HAYNE J:   What are we going to get out of parsing and analysing this?

FRENCH CJ:   Apart from the proposition that you should never say never.

MR GAME:   You should never say never.  Well, your Honour, I am going to try and do it all the same but it is ‑ ‑ ‑

HAYNE J:   Let me into the secret at some point will you, Mr Game, what we get out of it.

MR GAME:   What is at issue in this case is this.  Was the act of administer, which was identified as the unlawful act, was it broken by a decision by the deceased himself voluntarily to take the drugs?  The conclusion that was drawn was in the case of what is described as an informed adult, the answer is – I know it says never – but the answer is, no ‑ sorry, the answer is, yes, the causation is broken.  I will have to struggle on.  At paragraph 7, we see a passage that I mentioned before, that the unlawful and dangerous act is not going to work for the supply.  Paragraph 9, there is the unlawful act that is identified, which is administer, and the administer is the first one of them which is at paragraph 10, “administers the noxious thing”.  If one looks at paragraph 14, one sees, in a sense, how limited the idea is, and we submit it is much closer to the idea of capacity – it speaks of duress ‑ ‑ ‑

GUMMOW J:   What does “free will” mean?

MR GAME:   Sorry?

GUMMOW J:   What does the first sentence of paragraph 14 mean, other than in a theological sense?  It is quite a serious matter.  It all seems to swing on it.

MR GAME:  Yes.

GUMMOW J:   There are concealed assumptions in there that I do not understand at the moment.

MR GAME:   What will I say?  I do not understand them either.

GUMMOW J:   Well, come back to Justice Hayne’s question.

MR GAME:   I will not admit defeat.  What I would like to say is – it could be worse if I started taking you through the articles and the various things that are said, but I will try and do this as quickly and painlessly as possible.

HAYNE J:   The question we have got to get to is to attempt to distil a principle and my question about what we get by parsing or analysing Kennedy is really directed to having you say what your submission is about the principle.

MR GAME:   What we say the principle is, is that causation is broken by when a person can be said to have made their own decision.  That is to say, you do not delve deeply into them, shall I say, being in a position to weigh the pros and cons; you do not delve deeply into them understanding the consequences of what occurs.  You kind of do a superficial – when I say superficial, you do look superficially at it in the sense of did they know they were taking the drug and did they mean to do so, and at that point they have taken the drug, and at that point causation is broken.

One does get some texture to it by looking at these words, such as duress, necessity, deception, mistake.  So that if the person asked for methadone but got some other completely different drug, then clearly causation would not be broken, but if they got what they asked for and they intended to take it, then that is what one is talking about in terms of an informed decision, and without legal incapacity.

FRENCH CJ:   The way the judge is putting it to the jury in the written direction at 610 says, well, it is enough to break causation if you have a person making a “rational, voluntary and informed decision”.  Then further down he puts another possibility:

On the other hand, you might think that he died precisely because he did not know about methadone . . . suffered some degree of brain damage . . . already affected by olanzapine . . . cannot be regarded as a person acting as a rational adult making an informed choice about taking methadone . . . These are considerations for you to evaluate.

Is he not putting to the jury there that the question of causation is a kind of evaluative judgment for the jury to make and that at one end of the spectrum is the “rational, voluntary and informed decision” which clearly breaks causation; at the other end is somebody who really did not know what he was doing?

MR GAME:   Your Honour, we say that “rational, voluntary and informed” in the way it is elaborated here is putting the thing far too highly, and could I perhaps just draw out something about this which may not be immediately apparent?  Forgetting about onus of proof, if the accused fails on any of those three things, the accused loses, so if it is informed and voluntary but not rational, the accused loses.  So, forgetting about onus of proof, the accused has to satisfy all three:  that it was rational, voluntary and informed.  In a sense, the very directions take away – because it includes concealed things that the deceased cannot know about, because of the way this direction is given, it cannot be informed in that sense, and we say that is not what informed means here, and it is not what Lord Bingham meant in Kennedy (No 2).

HEYDON J:   Can you dictate for me slowly exactly what direction you say should have been given?

MR GAME:   The direction we would have in mind is in paragraph 17 of our document, the first under No (1). 

HEYDON J:   What is the difference between (1) and (2)?  What does (2) add to (1)?

MR GAME:   No (2) is just an aspect of the directions that had to be excluded.  It is not important to this at all.

HEYDON J:   No (1) says the cause of death was the deceased’s – I see, (1) is methadone and the other is olanzapine. 

MR GAME:   Yes.

BELL J:   Having regard to the facts of this case, do you propose that it was necessary to give a direction in the terms of your paragraph (1) within paragraph 17?  Is there any suggestion of duress or legal insanity or other incapacity?

MR GAME:   No, your Honour, but the direction would be voluntary in the sense that he meant to take methadone.

BELL J:   Yes.

HAYNE J:   That is to say, I understand the principle you urged to be that criminal responsibility ceases when the victim acted with knowledge of the immediate facts.

MR GAME:   That is correct.

HAYNE J:   Lest I be accused of plagiarism, that is drawn from the last element of Williams redraft of the Cambridge Law Journal at 415.  Would not want you to think I had had an original thought, Mr Game.

MR GAME:   I have thought that often, your Honour.  The only other paragraph in the judgment that one really needs to go is the paragraphs 19 and 24.  One sees he chose to do so knowing what he was doing, it was his act.  That is really it. 

HEYDON J:   You said something about 19 and 24. 

MR GAME:   Paragraphs 19 and 24.

HEYDON J:   Of?

MR GAME:   Of Kennedy, your Honour.  I am sorry.  I will not ask your Honours to read Justins because it is too convoluted, but in Justins there is a consideration of capacity to do the act of taking a drug that would kill the deceased.  In the trial judge’s directions, a lot of things are brought in, like the ability to make a decision about it and so forth and the court actually considered what lies at the heart of capacity.  So that in a roundabout way this issue or a closely analogous situation was considered in Justins on the question of capacity because if there was capacity to commit suicide, then there could not be manslaughter, there could only be aiding suicide.  So an issue about defining this question and an examination of Kennedy arose in that different situation in Justins.

KIEFEL J:   Is the act on the part of the victim which breaks the chain of causation the quality of it, the exercise of a choice?

MR GAME:   Yes, your Honour.  Now, the only other case I was going to take your Honours to on this – there is quite a lot of literature about this and not many cases, but I am not going to try my luck and take you to the articles, but we have set them out in the submissions.  MacAngus is a case that I should perhaps go to.  It is the Scottish case in which Kennedy is really not accepted, but there are some special characteristics to MacAngus.  If one looks at the indictment on the very first page of the Scots Law Times report, one sees in respect of MacAngus the terms of the indictment having “unlawfully supply a controlled and potentially lethal drug”, and then in the indictment itself it says “in a lethal quantity and for the purposes of ingestion”.  Then in the case of the accused, Kane, it is “you did inject”. 

Then if one looks at page 139, column one, paragraph [3], this whole thing went forward as a kind of demurrer on the basis that the charges were not relevant, so the whole thing was a pre‑trial application.  Then there is a detailed consideration of Scottish law and then we come to paragraph [32] and the discussion commences in respect of Kennedy (No 2).  Paragraph [33], and this becomes important because it says in paragraph [33]:

In the context of crimes which are founded on reckless conduct the Scottish courts have adopted a different approach.

This seems to assume some significance.  One then goes to paragraph [42] and at paragraph 42 one sees that actions of victims “do not necessarily break the chain of causation”.  That is a clear qualification on Kennedy.  Then at paragraph [45], what seems to assume some – incidentally, there is the reference to “immediate and direct cause of the death”, which seems to be used in the Scottish cases, at [42] in the last sentence – but then the court returns to Kennedy at [43].  Then at [45]:

Moreover, while causation is distinct from the mens rea of the accused, the foundation . . . (namely, recklessness) is not, in our view, wholly irrelevant.  The law can with justification more readily treat the reckless, as against the merely unlawful, actor as responsible for the consequences of his actions . . . Reckless conduct, judged in the context of any vulnerability of the victim, may of its nature have a compelling force –

so it will –

break the chain of causation, human conduct or reaction which is the very object –

Then there is a brief discussion of Canadian and – then one sees the conclusion at [50], and in effect the demurrers are dismissed and the case proceeds.  So this is in the context of a different definition of the offence creating provision.  In the unlawful and dangerous act situation, we only have the unlawful and dangerous act, that is to say ‑ ‑ ‑

GUMMOW J:   What is wrong with paragraph [48]?

MR GAME:   What emerges from [48] is that it is not a complete dismissal of Kennedy, but a more nuanced approach to how you direct the jury in terms of the offence making provision.

GUMMOW J:   It seems a little more compelling than talking about free will.

MR GAME:   That is true.

FRENCH CJ:   What does the concept of “reckless conduct” involve?

MR GAME:   “Reckless conduct” involves a level of subjectivity about the outcome that will occur to the victim, which is rejected in Lavender, in the Australian cases, so that is the difference ‑ ‑ ‑

GUMMOW J:   Say that again?

MR GAME:   We do not have recklessness, not because of Lavender, but Lavender confirms that we do not have recklessness in this species of manslaughter.  If I could take a case a long way from this, which is actually an English case called Corr, where a railway employer was held liable in effect for the death of a deceased, where the deceased had committed suicide but the suicide was brought on by the depression caused by the employer’s act – so shall we say the free act of suicide, in effect, is a consequence of the employer’s negligence.  In that context, you have to look back at what is the conduct that drives the result, and if you have simply an unlawful and dangerous act of supply, you do not have that species of inquiry.

In respect of manslaughter by gross criminal negligence, although it is not drawn out in this case, the decision‑making of the deceased insofar as it breaks causation would be mostly decision‑making directed towards him saying no to the ambulance or him leaving the flat or wanting to stay.  Those are the things that it would attach to.

GUMMOW J:   You talk about causation in the law as if it had some permanent, objective and fixed characteristics.  That is not true.

MR GAME:   If I am talking it about it like that, then I am not thinking that and the words that are coming out of my ‑ ‑ ‑

GUMMOW J:   You talk about breaking chains and metaphors and so on.

MR GAME:   That is just a shorthand for – that responsibility ceases to flow in respect of the ‑ ‑ ‑

KIEFEL J:   Well, in that regard, is it correct to assume that the starting point is the supply in the chain of causation, that is to say, that in this sort of context that supply amounts to a cause as distinct from creating the possibility upon which another person’s actions constituting the cause may operate?

MR GAME:   In the unlawful and dangerous act it has to be the supply because that is the act from which you are defining liability.  In manslaughter by gross criminal negligence, one is talking about a different spectrum of conduct.  So it will not be particularly focused on the supply.  It will be focused on the set of circumstances that are said to make up the duty and breach.  From there you will look at the acts of the victim.  As I said, in that particular situation what you will be focusing on is whether the victim actually decided to leave the apartment, actually meant to say no to the ambulance.  Those sorts of things are the things that will define causation in that context.

KIEFEL J:   I am sorry, could you just explain to my why in the case of supply is the unlawful and dangerous act?  Is it the supply itself commences the chain of causation and why it is not the administration by the deceased?

MR GAME:   Because the unlawful act is not the administration.  So you cannot go to the administration to get your cause of death.

KIEFEL J:   But that negates causation operating at all.  That is really what I am saying to you.  I think really what I am putting to you is it not ‑ ‑ ‑

MR GAME:   It does.  The true situation ‑ ‑ ‑

KIEFEL J:   We might be at cross‑purposes.

MR GAME:   No, your Honour.  In this case, I think the parties are accepted that it is not possible that ‑ ‑ ‑

KIEFEL J:   It cannot operate in this sphere.

MR GAME:   It cannot operate, yes.

KIEFEL J:   I am sorry, I misunderstood you.

MR GAME:   That was what I tried to explain at the very beginning today as to why it was that the case had become much more narrow than it had been previously put.

KIEFEL J:   I am with you, yes.

GUMMOW J:   What is wrong with paragraph [47] – the canny gentleman in Edinburgh?  It is right, is it not?  There is a bedevilment of it with subtleties because tort cases which used to go into the jury room now do not.  They get into appellate courts and there are all sorts of subtleties there.  This is, however, in the land of a jury.

MR GAME:   Quite, your Honour, but what we are saying is that the actual question is a much simpler one, which is, was it the victim’s own deliberate act, full stop, understanding in the immediate sense what he was doing.  That is the question.  So the complexities that one sees at 610, which are really unmanageable kind of complexities, should not be the test that goes to the ‑ ‑ ‑

FRENCH CJ:   I just wonder whether it is really all covered by what appears at the bottom of 609, “Ask yourselves this question”, use common sense and so on and here are some examples.

MR GAME:   Your Honour, that, as the heading says “Some Further Important Points”, this is the direction about what it is that breaks, however you describe it, causation. 

FRENCH CJ:   Or one thing that is sufficient to break it.

MR GAME:   Yes.  I have pretty much finished.  Perhaps, just in case I have got something in the morning, but I have really come very close if not to the end of that which I have to say.

HEYDON J:   Mr Game, if we go back to paragraph 17 of your outline where the direction you want is set out, is not the judge’s direction, in some respects, more favourable to the accused than your one?  You speak of voluntary, he spoke of rational, voluntary and informed. 

MR GAME:   No, this is the point I was making before.  It is the same as it worked in Justins where you had a whole series of things involving the making of a decision; the more you pile on, the more difficult it gets for the accused.  So that if the accused fails on any one of those, the accused loses.  So if it is a voluntary and informed decision but not rational, the accused loses.  So it is quite critical to the argument that it is the reverse but it is opaque.  That does not emerge immediately until one actually deposits different propositions.  That is exactly what happened in Justins where there was a whole list of things in terms of the capacity to make a decision.

HEYDON J:   Just pausing, the Crown has to prove causation, not the accused to disprove it?

MR GAME:   No, your Honour – yes, but, your Honour, if the Crown proves any one of those, the Crown wins.  So if, let us say, it was a voluntary, informed decision meant to do but he did not – or let us say it was not a fully informed decision in the way described but it was rational and voluntary, the defence lose.  All three have to be satisfied before the defence can break – I know it is a terrible thing to say – break the causal link.  No, your Honour, quite adamantly, that works against the accused, not in favour because any one of them is sufficient for the Crown.  It distinctly works in the reverse way.  If you took it on a spectrum, then this is at the highest spectrum of ability to make a decision, and if the Crown can get the person anywhere below that high a spectrum, they win.

HEYDON J:   Was Justice Howie asked to say anything about this in the Court of Criminal Appeal?

MR GAME:   About that specific question?

HEYDON J:   Yes, the submission to which you have just returned.

MR GAME:   The idea of a rational decision was – it is discussed at paragraphs 131 and following.

BELL J:   Of which decision?

MR GAME:   Of the decision of the Court of Criminal Appeal.  One goes then to 757 and 758, then the critical paragraph is paragraph 156 at 757.

FRENCH CJ:   Now, this was dealing with the question whether unlawful and dangerous act manslaughter should have been left the jury.  It is under the ground.

MR GAME:   Yes, but it is in this context that we have – when I say we have changed the grounds, the grounds have been drawn out in a slightly different way, but this whole – this is dealt with in our grounds 3 and 4, but if you go to paragraphs 155 and 156 and the last sentence at 155, your Honour Justice Heydon, provides a good example of how, shall I say, high the thing goes.  It turned out the olanzapine and the methadone were a lethal cocktail:

The deceased would not have anticipated that outcome.

So that his ability to anticipate that outcome is kind of decisive in his decision to take the drugs not being undermined, so that that kind of shows why it is pitched too high.  Again, I am not meaning to say anything particular in respect of the Crown’s submissions, but no case seems to have been identified and no submission has been put by the Crown in which the words “rational” are supported by any authority.  It is just Kennedy.  The elaboration that came in Justins was an elaboration that seems to have been drawn from Kennedy as well and it was criticised in – Kennedy makes no mention of “rational”.

CRENNAN J:   It may be intended to equate with knowledge. 

MR GAME:   But, your Honour, if it was what I have put as the kind of superficial he understood what he was doing and went to do it, then that would be a very different kind of direction and it would be, from the defence’s perspective, much more easily satisfied.  So again, if that is all that was meant, it would have a different ‑ ‑ ‑

CRENNAN J:   Knowledge of the facts.

MR GAME:   Again, knowledge of the facts might – what I mean by knowledge of the facts is superficial understanding of what he was doing, namely, purchasing and taking methadone, not an understanding of the things that were discovered on autopsy, which is the thing that Justice Howie is referring to in paragraph 155.  That makes all the difference in terms of what one is analysing here.

BELL J:   One is also looking at the facts of a case where one has a 32 year old adult purchasing methadone, as distinct from a case such as Justins where issues of capacity were truly live at the trial.

MR GAME:   Quite.  We deal with this question about rational at paragraphs 61 to 63 of our submissions in‑chief.  One can actually pinpoint the moment at which rational crept into the discussion, but it did not creep in from a case; it crept in in an exchange with counsel.  Those are our submissions, if the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  Yes, Mr Babb.

MR BABB:   Your Honours, if I can start with what is said to have been a dispute as to how the case was put?  The Crown submits that the case was very squarely put in terms of unlawful and dangerous act, in terms of requiring more than supply.  When one looks at the way the Crown put its case to the jury, and the way the trial judge summed up that case, it was clear that the Crown case in relation to unlawful and dangerous act required that either Mr or Mrs Burns injected the deceased, or they helped in the injection of the deceased.  It starts with the Crown address, your Honours, and that is at 537 ‑ ‑ ‑

BELL J:   This is the Crown’s closing address.

MR BABB:   Crown’s closing address, yes, Justice Bell.

BELL J:   Before we get there, can I just take you to appeal book 518, beginning at line 38 and following, where the Crown prosecutor says:

There wasn’t any evidence that he was actually injected rather than injected himself but the Crown relies on the several circumstances which point to that being a possibility.

MR BABB:   It was a strong circumstantial case, in my submission, your Honour, when one looks at the facts of the case.  The deceased attended the premises “out of it”, and that was the evidence that was found in the statement by the appellant.  That is at page 398 of the second appeal book.  You can see at paragraph 11 the appellant said there:

Dave came over, he was out of it, or drunk or something.  I don’t know what it was, he was either drunk or too out of it.

BELL J:   Probably a lot of people who purchase methadone from small enterprises like this are out of it when they turn up to collect it.  It is suggested that that supports an inference beyond reasonable doubt that they are not capable of injecting themselves if that is the method of ingestion?

MR BABB:   No, your Honour, not by itself.  What really adds to the circumstantial case in terms of requiring the Burnses to inject is the difficulty in the injection of methadone.  Your Honours, that is dealt with in the evidence of Ms Donnelly who was one of the clients, one of the charges of supply in relation to the appellant related to Ms Donnelly.  Ms Donnelly was an experienced user of methadone.  She had been on a methadone program for 11 years and she liked to inject the drug because it gave an instant high and rush.

She explained in her evidence that because of the viscosity of the methadone fluid, you needed to go through a process of watering it down, you needed to put it into a syringe that is about 20 times larger than a heroin syringe and has a large barrel, and for that reason you cannot just put a needle on the end of it.  You need a butterfly clip because a needle straight into it becomes incredibly unstable.  That process then requires it being injected in a way that is like a drip.  So it is a long, slow process of injection as opposed to a fairly instant process of injecting heroin, and it is a difficult process.  The evidence in relation to the deceased was that there no evidence he was on the methadone program.  The appellant, Ms Burns, had never heard him speak about any drugs apart from marijuana and both his treating GP and his treating psychiatrist had taken histories from him as only having used marijuana.

BELL J:   He had an old puncture mark next to the puncture mark that was thought to be the needle that had been used on him on this occasion.

MR BABB:   I believe that is right, your Honour.

BELL J:   I think Ms Malouf gave evidence about the use of a butterfly needle.

MR BABB:   A butterfly needle, yes.

BELL J:   She used it herself.

MR BABB:   She did, your Honour.

BELL J:   One is looking at an inference beyond reasonable doubt on your unlawful and dangerous act case that Mr Burns, or Mr and Mrs Burns together, at least assisted in injecting, there being no evidence on the point beyond the inferences that might be drawn from the evidence about the use of a butterfly needle.

MR BABB:   No, your Honour.  The only other evidence that is significant really just goes to the fact that it was injected, the fact that there was a very recent puncture mark.  The appellant’s concern about if the police searched the premises that they would find butterfly needles is the other material that goes towards the inference.

FRENCH CJ:   Do you accept, Mr Babb, that the – just to make sure that I understand – that the Crown opened on the basis of supply only, and in answer to the – and I am looking at page 16 of the appeal book ‑ and then when asked by the trial judge on the no case submission, what was “the unlawful dangerous act” you are relying upon at 481, the Crown said it was:

the selling of the methadone or the supply of methadone.

MR BABB:   Yes, your Honour, that is the response that was given.  I will just find your Honour where – your Honour knows and I can find the reference overnight as to where the Crown articulated the case and where there was some discussion about ‑ ‑ ‑

FRENCH CJ:   That was after your closing address, was it not?

MR BABB:   No, your Honour.  It was fleshed out in the discussion, prior to the no case to answer judgment by his Honour, which was prior to closing addresses, so it was very much fleshed out and I will ‑ ‑ ‑

FRENCH CJ:   It was after the Crown had closed its evidence?

MR BABB:   After the Crown had closed its evidence, yes, your Honour.

BELL J:   It is right to say, is it, that the Crown now accepts, insofar as it has put its case on unlawful and dangerous act manslaughter, it was necessary that the jury be satisfied of the role of the appellant, either by herself or with her husband, in assisting in injecting?

MR BABB:   Yes, your Honour, and the basis for that is the acceptance that the supply by itself cannot substantiate the dangerous – in this requirement in unlawful and dangerous act, that it requires the further activity of ingesting the drug.

BELL J:   So you face the difficulty that the directions that the jury were given did not make that clear and one is not to know by what process the jury reasoned to their verdict?

MR BABB:   In my submission, your Honour, the directions did make it clear because the Crown outlined its case to the jury in its closing submissions at 537, line 15.  There the Crown made it clear that the case in relation to unlawful and dangerous act relied either on the injection or the helping to inject of the deceased.

BELL J:   But the written directions and, indeed, the summing‑up as a whole did not make that clear.  So the formal directions of law, if one goes to 609, looking at the written directions, speak in terms of the supply.

MR BABB:   Yes, your Honour and in relation to page 606, the reference to unlawful and dangerous act, however, there is the – if one looks at points (a) through (d) the bolded (c):

that a reasonable person in the accused’s position, performing the very act which the accused performed –

that the Crown says is a reference to the acts that the Crown ‑ ‑ ‑

BELL J:   But that is performing the very act which is the supply of the methadone.

MR BABB:   Not in the context of the directions as a whole, I submit, when one looks at what is said at page 676 where his Honour, at lines 25 and following ‑ ‑ ‑

BELL J:   But this is in his Honour’s summary of the submission.

MR BABB:   It is the summary of the submission ‑ ‑ ‑

BELL J:   The directions of law at no point made clear on the unlawful and dangerous act branch of your case that the jury had to be satisfied beyond reasonable doubt of the assistance in injecting.

MR BABB:   No, your Honour.  That was very much on the way that the Crown case was put, but so much of directions are dependent upon the way that the Crown case is put and, in my submission, it was abundantly clear, when one looks at 676, exactly what were the acts that were said to make up the unlawful and dangerous acts, that it went beyond mere supply, your Honour, and included injecting or helping to inject.

FRENCH CJ:   That might be a convenient moment, Mr Babb.

MR BABB:   May it please your Honour.

FRENCH CJ:   The Court will adjourn until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 3 MAY 2012