Burns v The Queen

[2012] HCATrans 32

[2012] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S339 of 2011

B e t w e e n -

NATALIE BURNS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2012, AT 11.13 AM

Copyright in the High Court of Australia

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

MR L.A. BABB, SC:    May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Game.

MR GAME:   If the Court pleases, there is an extension of time sought and I do not think it is opposed.

GUMMOW J:   Is that opposed?

MR BABB:   It is not opposed.

GUMMOW J:   Thank you.  You can have that extension.

MR GAME:   If the Court pleases, in our submission, there are two questions of general importance that arise in this case.  The first concerns the nature of duty and breach in a case involving an allegation of manslaughter by gross criminal negligence based on an omission and the second concerns the issue of causation. 

A convenient point to start is in a judgment which his Honour Judge Woods gave at the close of the case.  The relevant part of it - if you go to the application book at page 9 you will see that really developed from Beardsley and Jones in Taktak, a duty of care in a case involving an allegation of breach by omission was found in a case where a person has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering ‑ ‑ ‑

GUMMOW J:   What is the legal criterion we are applying here?

MR GAME:   The legal criterion?

GUMMOW J:   Yes.  These submissions roam around the law of negligence and civil cases but what is the proposition of criminal law here?

MR GAME:   The proposition – that is a difficulty with the area ‑ ‑ ‑

GUMMOW J:   I know.

MR GAME:   This is really about – it is quite difficult – it is silly for me to say that, but it is really about how you bring the tort into the crime, whether you, in fact, the idea in the tort is the same idea as you bring over to the identifying the duty in criminal law.  The Court of Criminal Appeal eschewed that very exercise.  What we actually say is that you have to bring to consideration of this question the very kind of considerations that were brought in cases such as Miller v Miller where one is kind of identifying how the crime is brought into the tort which is the considerations – the incongruity of the relationship between the tort law and the criminal law are kind of directly confronted in this situation. 

All I can say is, the law has trodden very, very cautiously in this area and what one has in this case, if one examines it carefully, is a pronouncement of a new duty and a new duty that actually moves away from this idea of voluntary assumption of care and seclusion to an idea that is actually extracted from cases involving violent assaults where people have left other people for dead actually after they have – and where there has been a question about whether there was an intention to do grievous bodily harm and manslaughter has been left as an alternative verdict.  What is actually – you ask me a question and I am not ‑ ‑ ‑

GUMMOW J:   Just a moment.  This is an application from New South Wales.

MR GAME:   That is right.  It is common law.  It is where in section 18 of the Crimes Act - it is all common law and we are talking about involuntary manslaughter and we are talking about manslaughter by gross criminal negligence based on an omission said to be a failure to call an ambulance and, it would seem, ejecting the deceased from the unit.  So identifying the duty in that case brings into play these issues, both of what might be described as the voluntary involvement in the criminal activity by the deceased and the act.

We have in mind cases such as the decision of this Court in CAL in that context and the incongruity of imposing a duty where you have joint criminal activity.  We have in mind how Miller v Miller might apply in this situation.  Incidentally, Miller v Miller was handed down six days after the Court of Criminal Appeal in this case.  But the Court of Criminal Appeal in this case specifically and explicitly eschewed grasping this issue as to whether or not the duty is the same as the duty we talk about in tort law.

If one just goes a little bit further – just turns over one page in the judgment of Judge Woods, one sees that at page 10, he has referred to a case called Lawford and there another case called Taber.  That line of territory - cases involving quite serious assaults resulting in seclusion where manslaughter on this basis of gross criminal negligence has been a fallback to a murder case involving the deliberate infliction of grievous bodily harm. 

Then, Evans is a case involving – if I could just mention one thing.  If you go back to page 9, the fourth category in Taktak, it is instructive to see what the other three were and I will not take you to the case but the other three were where the statute imposes a duty where the status is such as there is a relationship where there is a duty and the third is where there is a contractual duty.  One can see that we are in a very different line of territory in this case. 

Then one sees the duty framed at the bottom of the page.  Actually, when one comes to the directions, there is more to be seen but the duty is stated at the bottom of the page on page 10.  Judge Woods, who is himself an academic in an earlier life, says that he “should state the law of New South Wales to be” - it is not as though that principle is one that is actually to be found in existing case law.  It is hedged with qualifications, may be “seriously affected” and “may be endangered”.  That in itself is - it may not be fatal but that is kind of incongruous with the gross breach that one is looking for in manslaughter by gross criminal negligence. 

So it is a contentious idea and I am not saying that the arguments to be put on either side are easy, but it is undoubtedly an important question.  His Honour was satisfied on page 11 there that it was not necessary to include the “element of seclusion”.  I will just show your Honours briefly the written – I want to save some time to say something about causation but I will just show your Honours briefly ‑ ‑ ‑

HAYNE J:   A possible point of view may be that causation is the point at which you begin in a homicide case.  Did these acts or omissions cause the death of V?

MR GAME:   Yes, your Honour.  Perhaps I should have started the other way around but could I just finish this and then come – because there is a causation issue in here as well because if you look at page 63 and then 68 – at the bottom of 63 you will see that whatever involvement ended when the deceased left “under his own steam”.  That was accepted by the Crown and then on page 66 he says:

No, no, I don’t want the ambulance . . . and Brian walked him out –

So that you actually have a causation question bound up in this identification of the duty cases.

HAYNE J:   What you identify as the causation question is itself inviting attention to what we mean by whether these acts or omissions caused the death of V.

MR GAME:   Absolutely.

HAYNE J:   Is it a substantial cause?  Is it a cause, what?  A substantial cause, possibly.

MR GAME:   Yes, the causation question that I am coming to is this idea of an informed decision – a voluntary informed decision somehow being how you define causation.  Could I just take your Honours to the written directions briefly on this subject and you will see at 95 in the written directions the duty stated and there it is at line 20.  Then you see that - and I do not mean to be excessively critical about this, but there is a kind of elision there between “voluntary invites” and voluntary take on such a duty because there is no voluntary taking on of such a duty except in a kind of notionally or abstracted sense.  It is actually – and then one sees actually the breach is said to be at the bottom of the page:

failed to call an ambulance . . . and expelled him –

So the voluntary taking upon the duty could be breached by the expelling of the person from the flat and then one sees how the causation feeds into it on the following page at 96.  The calling for medical aid:

entailed a high risk that death or really serious bodily injury would follow from the neglect -

and then the same idea on page 97 in the sense that she failed to prevent a death.  That, we say, is a really important question about – that raises a fundamental question about the nature of manslaughter by gross criminal negligence, how it is breached and how causation works in those circumstances.  To that we add this, that is this causation question if – one can see it straight away by turning to page 98.  This 98 is in the written directions as well:

a rational, voluntary and informed decision to take the methadone.

The direction there becomes, further down the page, that:

by the time he took methadone he was already affected by olanzapine he had ingested, and so cannot be regarded as a person acting as a rational adult making an informed choice -

Then we have a double negative – or sort of a triple negative at the bottom of the page. 

I emphasise that the accused cannot be found guilty of manslaughter unless the act or omission of Natalie Burns substantially contributed to the death, and that such contribution was not negated by any of the considerations.

So that a circumstance here is – and we say that actually the only question is did he make a voluntary decision in respect of breach of causation? If I could – we say that what Glanville Williams says about the subject which is set out in case No 5 in our bundle called Dias [2002]2 Cr App R 5, at the middle of the page:

“What a person does if he has reached adult years, is of sound mind and is not acting under mistake, intimidation or other similar pressure, is his own responsibility and is not regarded as having been caused by other people –

We say that is entirely conventional.  What has happened here is that an English case of Kennedy, which has been doubted and queried in other cases, says that in a case involving unlawful and dangerous act, can the supply of the drugs be the cause of death.  The answer was given, no, in the case of an informed adult.  This has been turned into, in this case, a test of causation.  There is not time to go through it but it is said that a case of Justins somehow supports the view taken by the Court of Criminal Appeal.  Justins was complicated because it was a suicide case.  The nub of Justins was that ‑ ‑ ‑

GUMMOW J:   Was Kennedy a decision of the House of Lords?

MR GAME:   Kennedy (No 2), yes, it is a decision of the House of Lords.

GUMMOW J:   (2008) 1 AC?

MR GAME:   (No 2) is, yes, your Honour.  But it has been doubted in in the leading Scottish case, the name of which escapes me, but Kennedy is a case that raises real difficulties.

HEYDON J:   Kane v Her Majesty’s Advocate.

MR GAME:   Yes, your Honour.  If you look just briefly in respect of this subject at the bottom of the application book pages 30 to 31, this question of causation, it is put:

by the time he took methadone he was already affected by Lansobene he had ingested and so he can not be regarded as a person acting as a rational adult making an informed voluntary choice -

So what you are bringing into this process is that if the Crown can show that there is some defect in his understanding of the whole situation in

which he was in, then that means that causation is established, and that itself, we would submit, is antithetical to, again, fundamental ideas of causation in both criminal law and in tort law.  I do not have any answers particularly, but we do say this case raises two quite important questions and this Court has not considered those questions.

GUMMOW J:   …..seeking a new trial, would you?

MR GAME:   It is about the directions given, yes, your Honour.  There is an argument about unsafe, but essentially it comes down to the nature of the directions given.  If the Court pleases.

MR BABB:   Your Honours, this case and the duty that arises is one that does exist in the common law, as my learned friend has pointed out in a New South Wales case of Styman & Taber where there was an assault in leaving the person there.  You have put the person in danger and the common law recognises then a duty to assist that person and remove them from the danger that they have been put in. 

That has been applied in relation to the supply of heroin in the case of Ward that is also referred to at page 10 by his Honour Judge Wood in page 10 of the application book.  Your Honours, this is a case that very much turns on its facts.  In this case, the Court of Criminal Appeal correctly found, it is submitted, that the question is raised as to whether a supplier of a prohibited drug owes a duty of care to a person to whom they supply the drug and who takes the drug in their presence.

It is in the house of the applicant, it is at a time when the person who takes the drugs is visibly affected by another substance and therefore vulnerable and also, in the circumstances of this case, a person who takes the drug who is narcotically naïve, and again, that is something that was within the knowledge of the applicant at the time that she supplied the drug. 

Now, it is significant that in this case there was no dispute on appeal that the drug was supplied by the applicant and, in all those circumstances, the duty of care fits clearly within that category that is recognised in the law of creating a dangerous situation and not taking steps to remove a person from the situation that you have created.

HAYNE J:   But as I understood the earlier proposition you advanced, it was that the supply of the narcotic to an apparently or evidently drug‑affected person was itself the negligence, the gross criminal negligence.

MR BABB:   No.

HAYNE J:   No?

MR BABB:   No, your Honour, the omission was ‑ ‑ ‑

HAYNE J:   That is not how it was run at trial was it?  It was not run at trial that the supply was the gross criminal negligence.  It was the after‑affects?

MR BABB:   It was the after‑affects and the failure to seek medical attention in the circumstances where you were present during and facilitated the supply, present in your own house during the partaking of the drugs.  In the written directions it was framed as present or not, but there was clear evidence of presence before the jury and I can take your Honours to the written directions on negligence.  The breach was the failure to call for medical assistance.  So there, this question of voluntariness of the taking of the substance does not arise in the same way, your Honour, if the breach was simply the provision of the drugs.  There one can see that the question would arise and be an important one, but not in this case. 

In relation to unlawful and dangerous act, your Honours, the unlawful act was the provision or the supply and injection of the drug and his Honour directed the jury in that way at page 68 of the application book.  You can see at line 26, and that Crown says that:

if the Burns, acting jointly, injected it into him or assisted him to inject it; providing him with the butterfly needle and so on, then manslaughter by unlawfully dangerous act is proven.

Again, there where you have circumstances of injecting the drug or physically assisting someone to inject the drug, then you do not have that causation issue in relation to act causing death.  That was the basis upon which the case was argued in the Court of Criminal Appeal.  If could take your Honours to page 126 of the application book, at paragraph 8 of the decision there, that in relation to the unlawful and dangerous act the ‑ ‑ ‑

HEYDON J:   What point does the applicant take in relation to “unlawful and dangerous act”?  Merely a lack of evidence point, is that it?

MR BABB:   And the causation point.  He tries to extend the causation point, your Honour, to both.  Ground 3 is that there was not a basis for finding causation in relation to either ground.

HAYNE J:   But do we know from the verdict whether the jury acted on the first or second basis?  We do not?

MR BABB:   No, we do not, your Honour.  His Honour Judge Woods in sentencing expressed the view that he found both bases made out but we do not know what view the jury took.  His Honour in sentencing said it did not matter greatly in the sentencing, they were equally culpable.

HAYNE J:   Whether they injected or he injected.

MR BABB:   Yes.  Then at page 172 in the application book, your Honours, the Court of Criminal Appeal sets out the basis and the evidence upon which they were satisfied that the victim did not inject himself with methadone, that is the narcotic naiveté combined with the very difficult process.  It is a process of injecting 20 millilitres of a liquid in instead of one millilitre which is what we would normally see in the smaller syringe that is often discarded.  This requires a special butterfly clip arrangement in order to stabilise and let so much fluid be injected in.  That required the physical assistance, together with a listening device, a lawfully intercepted listening device, where the applicant said he got “the best outfit, no more” - which was a reference – there was expert evidence from a police officer to say that “outfit” was a reference to the syringe used to inject the material.

Your Honours, the decision in CAL really does not bear upon this case, it is submitted.  Most significantly, the provision of methadone was an unlawful act.  It is a criminal offence in New South Wales not only to supply methadone but it is also an offence to administer or to allow someone else “to administer” – that is section 14 of the Drug Misuse and Trafficking Act.

The questions that were raised in CAL as to collision with the interests of drinkers in their personal privacy and individual autonomy of members of society do not arise in relation to this sort of activity.  There is no personal privacy in relation to the administration of proscribed unlawful substances.  There is no individual autonomy of members of society to partake in illicit drugs in this way that there is in relation to alcohol if you are over the age of 18.

Similarly, the naiveté of the user in this case is in stark contrast to the experienced drinker in CAL and also there is no legal incoherence, there is no clash of respective torts in this case because the evidence was that the deceased was unconscious or semi‑unconscious, unable to talk, with his chin on his chest at the time that he was picked up and walked around the room to try and keep him conscious.  There would have been no need to physically detain him, in any tortious sense, in order to keep him at the premises and assist him in the way that others were in the process of doing at the time that the applicant expelled him from the house.

They were walking him around the room to try and maintain consciousness and discussing the calling of an ambulance at the time that the complainant came in and said, “He’s got to go.  He can’t stay here like that.”  Your Honours, unless I can assist you further, they are my submissions.

GUMMOW J:   Thank you, Mr Babb. 

MR GAME:   Just on the question of unlawful and dangerous act and supply, if your Honours look at page 173 of the application book, paragraph 162, the unlawful and dangerous act:

was the supply of methadone to the deceased without a medical prescription.

That passage is just a passage about a submission put by the Crown and the same is seen at pages 94:

“Supply”, for this purpose, includes giving or handing the drug over –

Page 97 is the same.  On 94 you see the direction given on what the supply was.  So it is not the injection, it is the – that was just a submission.  If you go back to page 20 you see the same - at the top of pages 21 and 28.  There is no doubt at all that the supply was the actual provision not the injection and that passage was just a passage about a submission put by the prosecutor.  

Now, in respect of the idea of putting the deceased in a situation of danger if I could take your Honours to the judgment of the Court of Criminal Appeal in the application book at page 152, paragraph 105, this is not how the case was actually put.  The case was put as an omission to call an ambulance and ejecting him from the flat but at paragraph 105 we get from those murder/manslaughter cases of Lawford and Taber that by supplying the drug the appellant created the danger.

Those are cases involving innocent victims of violent assaults and the analogy is not good and it is not the way the case was put.  One is driven back to Taktak and one is driven back to Beardsley and Jones to see what is the actual nature of the duty in this situation and the alleged breach.  You will not get the life out of those violent assault cases that is said to be given to it by the Crown and it is a very, very slender thread on which to build the duty.

GUMMOW J:   Now on the question of causation, you criticise paragraph 155 of the Court of Criminal Appeal.

MR GAME:   Paragraph 155?

GUMMOW J:   Paragraph 155 on page 171.

MR GAME:   Page 171, yes, we do, your Honour.  We say that the idea of a fully informed decision is antithetical to ideas of causation, that if it is a voluntary decision made to ingest it, then we submit that is the end of it.  The idea of a fully informed decision brings into play a whole series of considerations.  Did the deceased understand how the other drug worked, and it worked in an unexpected way about which there was, shall I say, qualified evidence given by Dr Duflou and the pharmacologist, whose name I cannot recall, but that is where that evidence comes from.  They worked in a combination in a particular way that the deceased could not possibly have known about all of those factors.  If you bring in the idea of fully informed, then you have really driven a conclusion that causation is made out.

HEYDON J:   What about responsible?

MR GAME:   Sorry?

HEYDON J:   Fully informed and responsible?

MR GAME:   Yes.  The direction was actually a little bit different.  The direction was rational, voluntary and informed.  It may be that the Court of Criminal Appeal is actually going further than the direction.  The directions on that are at the top of page 170 ‑ ‑ ‑

HEYDON J:   The Court of Criminal Appeal was following the House of Lords formulation.

MR GAME:   Yes, understood ‑ ‑ ‑

GUMMOW J:   Lord Bingham, I think.

MR GAME:   But we challenge Kennedy (No 2).  We say that that is not ‑ ‑ ‑

HEYDON J:   It is very favourable to accused people.

MR GAME:   No, it is not, it is the reverse, your Honour – sorry, it is very favourable in respect of - but we challenge it in respect of it being utilised as an idea of causation, that causation is, shall I say, it is used in a different way in this case because it is used because the deceased is said not to be fully informed.  By talking this thing up in terms of the person’s level of being informed, you have made it much easier to establish causation. 

That is how it worked in Justins as well – it got talked up in terms of the capacity of the deceased to make a decision to commit suicide, and that is what the Court of Criminal Appeal has swept aside.  They said you do not have to go through all of this business about whether he has made an informed decision.  If he wished to commit suicide and took the drug, then funnily enough, it ends up working, in Justins and in this case, with a reverse strength for the prosecution, and that is why the Court of Criminal Appeal in Justins upheld the appeal. 

The point made by the Court of Criminal Appeal here about Justins is misplaced in a sense, because they struck at the point in which the issue turned on the inability for it to be manslaughter if it was suicide, but the same issue precisely arose again on the question of causation.

GUMMOW J:   Now, just looking at your draft notice on page 181 ‑ ‑ ‑

MR GAME:   Yes, your Honour.  If your Honours are going to grant special leave ‑ ‑ ‑

GUMMOW J:   I am not saying anything to you.  I am just inviting you to look at 2.4, because you have not addressed on it.

MR GAME:   That is true, but the point was argued in the Court of Criminal Appeal that on the material you could not be satisfied.  It is true, I have not put any submissions about it, and I have focused entirely on the directions.  But could I just say this?  If the Court was minded to grant leave, I would like to make a slight amendment to those grounds.  Could I tell you what it is?

GUMMOW J:   Yes.

MR GAME:   Between 2.2 and 2.3, I would like to say, “The Court of Criminal Appeal should have held that the directions on causation were erroneous”.

GUMMOW J:   Yes.

MR GAME:   So that just makes it squarely addressed as the second question.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 11.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.54 AM:

GUMMOW J:   There will be a grant of leave in this matter and it will be listed as a one and a half day case.  Looking at the draft notice of appeal 2.1 should stand, 2.2 should stand, there should be an addition to be 2.3:  “The Court of Criminal Appeal should have held that the directions of the trial judge as to causation were erroneous”.  Then the existing 2.3 will become 2.4, and the existing 2.4 will be removed.

MR GAME:   If the Court pleases.

GUMMOW J:   If counsel will speak to the Registrars on the way out, you will receive some very specific directions as to the preparation of the matter for hearing, which have to be observed. 

We will adjourn to reconstitute.

AT 11.55 AM THE MATTER WAS CONCLUDED