Bushell v The King

[2025] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Bushell v R [2025] NSWCCA 23

Hearing dates:

26 February 2025

Date of orders:

26 February 2025

Decision date:

07 March 2025

Before:

Davies J at [1]
Lonergan J at [77]
Yehia J at [78]

Decision:

1. The Court grants leave to the appellant to add Ground 4 of the Grounds of Appeal in accordance with the document filed 25 February 2025.

2. Grant leave to appeal.

3. Uphold the appeal.

4. Quash the conviction of the appellant in the Supreme Court.

5. Quash the aggregate sentence imposed by the Supreme Court on 17 November 2023.

6. Order a new trial on a count of manslaughter.

7. Stand the matter into the Supreme Court arraignment list on 7 March 2025.

8. Stand over counts 1, 2 and 3 on the sentence indictment to the arraignment list on 7 March 2025 along with the retrial of the manslaughter.

Catchwords:

CRIME – appeals – appeal against conviction – where the applicant and co-accused were charged with murder – where the Crown case was that the deceased died because one or other or both of the applicant and co-accused injected the deceased with drugs – where jury initially directed that if deceased self-injected the applicant was not liable – where trial judge permitted Crown to broaden its case after jury sent out to deliberate – whether trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing – where jury redirected inconsistently with IL v The Queen - where there can be no liability for the applicant for manslaughter in accordance with IL – conviction and sentence quashed – new trial ordered

Legislation Cited:

Crimes Act 1900 (NSW) s 18

Crimes (Appeal and Review) Act 2001 (NSW) s 107

Drug Misuse and Trafficking Act 1985 (NSW) ss 12, 13, 14, 19

Cases Cited:

Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35

IL v The Queen (2017) 262 CLR 268; [2017] HCA 27

Moussa v R [2017] NSWCCA 237

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75

R v IL [2016] NSWCCA 51

R v IL (No 2) [2014] NSWSC 1710

R v Bushell (No 18) [2023] NSWSC 1454

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Daniel Bushell (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Quilter & C Feiner (Applicant)
B Hatfield SC & C Brain (Respondent)

Solicitors:
Jamieson Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/127752 & 2018/229735

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

17 November 2023

Before:

Rothman J

File Number(s):

2017/127752 & 2018/229735

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant and John Tozer were charged with the murder of Ricky Ciano and tried jointly. The jury was discharged in the case of Mr Tozer while the applicant’s trial continued. The jury returned a verdict of not guilty to murder but guilty to manslaughter on the basis of unlawful and dangerous act. The trial judge then sentenced the applicant for manslaughter as well as three drug offence to which the applicant had pleaded guilty. The applicant was sentenced to an aggregate sentence of 18 years’ imprisonment commencing on 28 April 2017 and expiring on 27 April 2035 with a non-parole period of 12 years expiring on 27 April 2029.

On 11 February 2017 the applicant and Mr Tozer met with the deceased for the purpose of manufacturing drugs together at premises in Harris Street, Oberon. While at those premises the deceased was injected with a fatal dose of heroin and cocaine mixed in one syringe. It was the Crown case that either the applicant or Mr Tozer injected the deceased whereas it was the defence case that the deceased had injected himself.

After the jury had retired to consider its verdict, two jury notes were handed up to the trial judge. After receiving both written and oral submissions, the trial judge gave directions to the jury in order to address the questions raised in the jury notes. The applicant submitted that the effect of these directions was that the Crown broadened its case to allege that the applicant could be found guilty even if the jury found that the deceased had self-injected if the applicant had aided and abetted that self-injection.

The applicant sought leave to appeal against his conviction for manslaughter on four grounds:

Ground 1:   The trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing.

Ground 2 (in the alternative):   The trial judge’s directions were inadequate in explaining to the jury the requirements for proving manslaughter on the footing that it found the deceased’s act was the immediate cause of death.

Ground 3 (in the alternative):   The trial was procedurally unfair to the applicant because a new pathway of liability for manslaughter, based on the deceased’s self-injection of drugs, was raised for the jury’s consideration for the first time during the period of deliberations.

Ground 4 (in the alternative):   A miscarriage of justice occurred because evidence relevant to the credibility of an important Crown witness, Witness C, was not disclosed until after the trial.

At the appeal hearing, it was conceded by the Crown that ground 1 had been made out in the present case on the basis that the ultimate effect of what was left to the jury may be characterised as a pathway of derivative liability for the deceased's own act which led to his death, contrary to IL v The Queen (2017) 262 CLR 268; [2017] HCA 27. The Crown also conceded that ground 4 was made out but it was not necessary for the Court to consider the remaining grounds.

The Court (per Davies J, Lonergan J and Yehia J agreeing) held, upholding the appeal and ordering a retrial on a count of manslaughter:

As to Ground 1:

1. If the applicant’s liability was based on aiding and abetting, the applicant could only be a principal in the second degree and his liability would be derivative. It was held in IL that the offence of manslaughter is not committed when a person accidentally kills themselves. Nor is manslaughter committed by attributing to another person an act which causes a self-killing. In that way, there could be no liability for the applicant for manslaughter. Any act of aiding and abetting would have only constituted an offence under s 19 of the Drug Misuse and Trafficking Act 1985 (NSW): [71]-[72] (Davies J); [77] (Lonergan J), [78] (Yehia J).

   IL v The Queen (2017) 262 CLR 268; [2017] HCA 27, Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited.

2. The further basis put to the jury after the receipt of the jury notes was a fundamental change in the running of the case. Both the Crown and the trial judge had made it clear at various points that there were only two possibilities and if the deceased self-injected the applicant must be found not guilty. The redirection allowed the jury to find the applicant guilty even if the deceased had self-injected: [73]-[74] (Davies J), [77] (Lonergan J), [78] (Yehia J).

JUDGMENT

1. DAVIES J:   Daniel Bushell, the applicant, and John Tozer were charged that in February 2017 at Oberon in the State of New South Wales they murdered Ricky Ciano. They were tried jointly in the Supreme Court before Rothman J and a jury.

2. On 23 August 2023, the 19^th day of the trial, the jury was discharged in the case of Mr Tozer only due to late disclosure of evidence by the police. The applicant’s trial continued before the same jury.

3. On 5 September 2023 the jury returned a verdict of not guilty to murder but guilty to manslaughter. Manslaughter was left to the jury on the basis of unlawful and dangerous act in circumstances which will be discussed presently.

4. On 17 November 2023 Rothman J sentenced the applicant for the manslaughter of Mr Ciano as well as for three drug offences to which the applicant had pleaded guilty as follows:

Count 1:   Supply large commercial quantity of methylamphetamine (1.928 kilograms);

Count 2: Manufacture a large commercial quantity of methylamphetamine (1.4442 kilograms); and

Count 3:   Supply a large commercial quantity of MDMA (2.80522 kilograms).

5. In relation to count 2 an offence of possessing a precursor intended to use in manufacture (1.004 kilograms of ephedrine) was taken into account on a Form 1.

6. His Honour imposed an aggregate sentence of 18 years’ imprisonment commencing on 28 April 2017 and expiring on 27 April 2035 with a non-parole period of 12 years expiring on 27 April 2029. The indicative sentence for manslaughter was imprisonment for 9 years.

7. The applicant now seeks leave to appeal against his conviction for manslaughter on the four grounds as follows:

Ground 1:   The trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing.

Ground 2 (in the alternative):   The trial judge’s directions were inadequate in explaining to the jury the requirements for proving manslaughter on the footing that it found the deceased’s act was the immediate cause of death.

Ground 3 (in the alternative):   The trial was procedurally unfair to the applicant because a new pathway of liability for manslaughter, based on the deceased’s self-injection of drugs, was raised for the jury’s consideration for the first time during the period of deliberations.

Ground 4 (in the alternative):   A miscarriage of justice occurred because evidence relevant to the credibility of an important Crown witness, Witness C, was not disclosed until after the trial.

8. Ground 4 was added with leave at the hearing of the appeal.

9. At the conclusion of the hearing of the appeal on 26 February 2025 the Court made the following orders:

1. The Court grants leave to the appellant to add Ground 4 of the Grounds of Appeal in accordance with the document filed 25 February 2025.

2. Grant leave to appeal.

3. Uphold the appeal.

4. Quash the conviction of the appellant in the Supreme Court.

5. Quash the aggregate sentence imposed by the Supreme Court on 17 November 2023.

6. Order a new trial on a count of manslaughter.

7. Stand the matter into the Supreme Court arraignment list on 7 March 2025.

8. Stand over counts 1, 2 and 3 on the sentence indictment to the arraignment list on 7 March 2025 along with the retrial of the manslaughter.

10. The following are my reasons for joining in those orders.

The offending

11. The applicant and Mr Tozer are half-brothers. The deceased was a former member of the Rebels Motorcycle Club and knew Mr Tozer through that Club. On Saturday, 11 February 2017 the applicant and Mr Tozer met with the deceased for the purpose of manufacturing drugs together at premises in Harris Street, Oberon. While they were present at those premises the deceased was injected with a fatal dose of heroin and cocaine mixed in one syringe. It was the Crown case that either the applicant or Mr Tozer injected the deceased whereas it was the defence case that the deceased had injected himself with the drugs.

12. The forensic pathologist, Dr Brian Beer, conducted the autopsy on the deceased. He said the cause of death was a mixed drug overdose, and that the toxicology report showed heroin use, cocaine use and a background of Alprazolam and Oxycodone, with Naloxone and Ibuprofen also present. He said the main drugs causing death were heroin and cocaine. He identified a single injection site in the arm and he considered that death occurred very quickly after the drugs were injected.

13. Following the deceased’s death, the applicant and Mr Tozer drove from Oberon to Mr Tozer’s home in Ropes Crossing. On the following day, 12 February 2017, Mr Tozer contacted Witness A who attended at Mr Tozer’s home. Mr Tozer, the applicant and Witness A then walked to a nearby park and, according to Witness A, Mr Tozer said that what had happened was that the three of them were drinking alcohol and were celebrating the fact that the deceased was due to have a son. The deceased had taken some “Oxies” which didn’t seem to be working. The applicant had a shot of what Witness A understood to be heroin. The deceased, having seen the effect of that shot on the applicant, indicated he wanted to do the same. The deceased then had a shot which led to the overdose. Mr Tozer attempted without success to revive the deceased by pushing on his chest. When that did not work, they shut down the drug manufacturing operation and left the property.

14. Mr Tozer told Witness A and the applicant to go to Oberon and move the deceased’s body. Witness A and the applicant then drove the applicant’s car and another vehicle to Oberon. After arriving in Oberon they put the deceased’s body into his own car. They then left the car with the deceased’s body in the back seat some 15km east of Oberon. A syringe and a container containing some tablets were located in the rear footwell near the body. It was part of the Crown case that the applicant and Witness A had positioned the body and the items in such a way as to make the death look like a suicide.

15. The applicant’s fingerprints were located on the exterior of the front passenger side door window of the car. The deceased’s DNA was recovered from the needle of the syringe and the applicant’s DNA could not be excluded as a minor contributor to DNA found on the interior surface of the plunger and barrel of the syringe. The applicant’s DNA was located on stains on a mattress in the Oberon premises, as well as the deceased’s DNA.

16. A member of the public discovered the deceased’s body and the car some two days later and informed the police.

Admissions

17. On 26 July 2018 the applicant and Mr Tozer were arrested.

18. The Crown relied upon admissions made by the applicant from three broad sources. First, there were audio recorded conversations that the applicant had in gaol with several people including Peter “Chop” Schaeffer, Mr Tozer and others. The Crown also relied on unrecorded conversations with two prisoners known as Witnesses B and C.

19. Witness B was born in Iran and moved to Australia at the age of 24. At the time of the trial he was 36. He had been sentenced for supplying prohibited drugs and in January 2020 he began sharing a cell with the applicant at the Metropolitan Remand and Reception Centre (“MRRC”). He had a conversation with the applicant on the first or second day that they began sharing a cell.

20. Witness B alleged that the applicant said the following:

a.   He was charged with murder and the deceased was Ricky Ciano.

b.   He said that he was charged with disposing the body and he did that.

c.   They gave him a dirty shot. They wrapped him up. They put him in a car and they drove him away.

d.   The dirty shot was explained by the applicant as containing cocaine, Xanex (sic) and “one more thing” that Witness B could not remember.

21. Witness B made written notes in Farsi about his conversation with the applicant because he intended to tell the police. Those notes were translated into English and became an exhibit in the proceedings.

22. Witness C was a prisoner who had known the applicant since 2016. Around 20 December 2019 he was moved to the same pod as the applicant at the MRRC. In the month that followed, Witness C said that he had had about four conversations with the applicant about his murder charge. Witness C alleged that the applicant said the following:

a.   The applicant and his brother gave Mr Ciano a cocktail of drugs, which they injected into Mr Ciano's arm.

b.   The applicant did not know what the cocktail of drugs was.

c.   Before injecting that cocktail of drugs, they gave him "G”. The applicant also told Witness C that he (the applicant) told "Chop" that "they gave [Mr Ciano] G and he G'd out."

d.   The applicant said that after they gave Mr Ciano the cocktail of drugs, but before Mr Ciano died, Mr Ciano started "frothing at the mouth" and the applicant wiped the froth. The applicant said his brother then "took over" because the applicant started "freaking out”.

e.   The applicant said: "he knew it was going to happen, like, they had to drug him and it had to be enough to kill him." Witness C asked the applicant why they couldn't "just rip him" instead of killing him. The applicant responded, "you know, who he is" and further stated that if they "just ripped him" he would come after them and their family.

f.   The applicant said they did it because they needed to get money "to pay for a cook they burnt." The applicant said it was his brother's idea and that the applicant wished it had never happened.

g.   The applicant said he had received five litres of oil from Mr Ciano for the purpose of cooking amphetamines and that, after Mr Ciano died, they turned it into "just over four kilos of ice." The applicant said "that he should have made good money after they cooked it because it was all theirs now, they didn't have to pay anything for it...he said that he had to repay a cook that he burnt earlier on."

h.   He said, "they searched the car like they were looking in the car for money or drugs" and that they found money and a phone.

i.   He said that he and his brother loaded Ricky Ciano's body into the car "to move it so they could get rid of it". The applicant drove the car and his brother followed him. They then dropped the car off and "wiped" the car down.

j.   The applicant said he was "just going to say if it came down to it that they were all partying and they all went on a nod" or that they panicked. The applicant said that "they were going to say that [Ricky Ciano] was a new user." He said that "it would be hard to prove who done it."

k.   The applicant was "a little bit worried" because there were transcripts in the brief involving his conversations with "Chop" and that be felt that he could not trust "Chop."

l.   The applicant was also "a bit worried because he was in a Rebels gaol and everyone knew that [Ricky Ciano] didn't inject drugs so they assumed that it was either [the applicant] or his brother who injected him." The applicant also said "it was pretty ballsy of him being in a Rebels gaol after he killed one."

The impugned directions

23. The applicant does not complain of the directions given by the trial judge before the jury was sent out to consider its verdict. The complaint relates to directions given following receipt of two jury notes. The substance of the complaint identified in the first three grounds of appeal is that the Crown effectively broadened the case that it had identified and run from the outset of the trial up to and including the trial judge’s summing up to the jury. The applicant submitted that the Crown case had always been that the deceased died because one or other or both of the applicant and Mr Tozer had injected the deceased with the drugs. The applicant submitted that as a result of the two jury notes the Crown broadened its case to allege that the applicant could be found guilty even if it was the case that the deceased had injected himself with the drugs if the applicant had aided and abetted that self-injection.

24. In her opening address the Crown said this:

It is the Crown case that one or the other of the accused injected Mr Ciano with that lethal overdose while the other accused actively assisted or encouraged him to do so. The Crown does not set out to prove in this trial, nor is it required to prove, which of the two accused used the syringe to actually administer the lethal injection. But the Crown must prove that one of the accused did that act and that both of them had an intention to kill Mr Ciano, or that one had that intention and the other was aware of this and actively encouraged or assisted that act.

In legal terms, the Crown alleges one or the other accused acted as the principal and the other was an accessory.

…

The real issue in the trial is who injected Ricky Ciano with the lethal mixture of drugs?

The Crown case is that the deceased did not administer to himself the injection, the so-called "speed ball" with a high dose of heroin and cocaine in it.

…

At the end of the trial I expect to invite you to reject that there is a reasonable possibility the deceased died by overdose brought about by his own hands, whether through accidental overdose or by suicide.

Finally, I need to mention that at the end of the trial the Crown may leave for your consideration that manslaughter is available as an alternative verdict if you are not satisfied there was an intention to kill Ricky Ciano, but are satisfied the accused injected him with the lethal mixture of drugs. That will be explained further at the end of the trial, but at this point, ladies and gentlemen, I would like to thank you for your attention.

25. Senior counsel for the applicant said in his opening address:

Members of the jury, the Crown has correctly identified the central issue in the case, and that is whether either Mr Bushell or Mr Tozer injected Mr Ciano with drugs. The defence case is they didn't.

26. In her closing address, the Crown prosecutor said this:

The Crown relies on eight topics or circumstances that would lead you to reject the suggestion that Ricky Ciano injected himself with drugs or allowed someone else to inject him.

…

The Crown is not required to prove which of the two men, Daniel Bushell or John Tozer, used the syringe. But the Crown has to prove that one did that act or perhaps both together, but at least one did that act and the other was aware it was done and present and that it was done with the intention to kill the deceased and that the other encouraged or assisted that act. Now encouraged or assisted his Honour will direct you what that means. Generally it means some act to show approval, a gesture, a nod or some words spoken to communicate approval.

If you are not satisfied, on the evidence, that it was the accused who injected the deceased with the syringe that does not matter so long as you are satisfied that both were present with one or both of them injecting the deceased and the other aiding and abetting or encouraging.

In the Crown's submission the evidence does not clearly reveal which of the two men did the physical act of injecting the deceased. So you do not have to make any conclusion about who did the injection, whether it was both of them together or only one of them and if so which one.

Some of you may have a view on the evidence who did the injection. You don't have to be unanimous about that as long as you are unanimous that one of them did it with the intention to kill and the other took the role, I have explained, in which is subject of course to his Honour's directions to you about the law in this regard, which goes to the elements of the offence.

As a secondary issue if you [are] satisfied that one of the two mean (sic) did the injection, but you are not satisfied that he had an intention to kill the deceased it would be open to you to return a verdict of manslaughter. Even though that charge is not on the indictment his Honour will give you directions of law about the availability of manslaughter, called manslaughter by an unlawful and dangerous act.

There will be no question that the act of administering to another person the drugs in this case is an unlawful act and a dangerous one. To find manslaughter you would need to find that there was a deliberate act of either the accused or John Tozer to give the deceased an injection of drugs.

27. In his summing-up, the trial judge said this:

[126]   Now, all that term means as "principal in the second degree" is that the Crown does not need to prove that it was that person, that is the person who is on trial in this case, Mr Bushell, who actually injected the substance, assuming, for present purposes, that you were to find that one of Mr Bushell or Mr Tozer actually injected the substance. So that is in effect what the Crown has done, the Crown has said, look, to us, or to it, it does not matter which one of the two injected the substance into the vein, all we have to prove is that it was injected by one of them and the other one was aiding, abetting or encouraging in the performance of that, or the infliction of that injury.

[127]   Now, that is how the Crown puts the case, and that is why in some senses some of the issues need to be finessed in terms of how you would normally deal with a murder case, but that is essentially how the Crown puts its case, and what you are asked to decide ultimately, the simple question of fact, which you may feel determines this case, is whether the Crown has proved that one or other of Mr Tozer or Mr Bushell injected Mr Ciano with the cocktail of drugs and the other one was aiding and abetting, whichever one it was, and if you decide it that way then that has certain consequences, and you would then have to decide what the intention was of whoever it was who was being charged, and I deal with that also in Part C of the written directions.

28. In discussing the elements of murder, his Honour said this:

[129]   Now, the first of them is that it was a deliberate act of the accused or John Tozer that caused the death of the deceased, Ricky Ciano. The second is essentially what I have just explained to you, that is if it were John Tozer and not the accused who injected the lethal dose of drugs into the deceased or you are unable to determine which one of the two persons inflicted the injury the accused was present at the time aiding or abetting or encouraging the commission of the offence, and I deal with that later as is noted, and then, thirdly, the act, if it were done, causing death was done with an intention to kill the deceased.

[130]   Now, the expert evidence, and I have dealt with how you deal with expert witnesses, but the expert evidence is there. You will know from the material that you have received that there were a number of drugs in the deceased's system. You also know because of the breakdown of those drugs and the time it takes to break down those drugs that death occurred rapidly or very rapidly after the injection of the cocktail of cocaine and heroin. Now, if that cocktail was provided by one of Mr Tozer or Mr Bushell with the other one there assisting, urging, encouraging, aiding and abetting, it is a composite term, then that act has caused the death and that act would be deliberate.

29. Thereafter, his Honour dealt with manslaughter and said:

[145]   … but it only arises if you find or conclude that the act of injecting the cocktail of drugs was done by one or other of Mr Tozer or Mr Bushell and it was done with the other one, that is in this case Mr Bushell, either performing the act of injecting the drugs or aiding, abetting or counselling. If you do not come to that view you do not get to murder or manslaughter, and there would be a not guilty verdict in relation to each of them.

…

[147]   Every assault is unlawful. Injecting a person with a drug without their consent is unlawful. If this injection was done in the manner alleged by the Crown it was, and I don't think Mr Pontello, even, controverts it, it would have been an unlawful act, and it is a dangerous act if you come to the conclusion that a reasonable person in the position of a person who is charged would have realised that they were exposing the victim to a risk of serious injury.

…

[149]   Further, the act has to be an unlawful and dangerous one, and as is described at the foot of page 3 of this document, if it is a deliberate application of force it is unlawful if it is without consent, and the act is dangerous if a reasonable person in the position of the accused or Mr Tozer would have realised that by the act the deceased was being exposed to an appreciable risk of serious injury, and that is all that is required.

…

[152]   Lastly, Part C of the written directions deals with aiding, abetting or encouraging. Now, as I said at the outset, it is permissible in a case such as this, where the Crown alleges that two people were involved in the criminal act and cannot identify which of the two people actually inflicted the injury, that is injected the substances, to prosecute each of them on the basis of them being a principal in the second degree, that is, that they were there at least aiding, abetting or encouraging the act.

…

[157]   … In the end, and I think you would appreciate this by virtue of the sound submissions that were made by both senior counsel for the Crown and for the accused Mr Bushell that really this case turns on who injected the deceased. If it were proved beyond reasonable doubt that it was either Mr Bushell or Mr Tozer and the other one was assisting or encouraging in that process, whether it was done with an intention to kill, if all of those things are done then the verdict is guilty of murder. If one of those is not proved beyond reasonable doubt the verdict must be not guilty of murder. If it is not guilty of murder then you turn, if the matter that was not proved beyond reasonable doubt if the element that was not proved beyond reasonable doubt is the intention to kill then you turn your attention to manslaughter and work out whether it is an unlawful and dangerous act as objectively assessed. I have tried to explain that. …

…

[171]   … I have already said that the fundamental issue in this case is two-fold, one, was the injection done by the deceased himself or by one of Mr Tozer or Mr Bushell; and if it were done by one of Mr Bushell or Mr Tozer was the other one standing by ready to assist in the way I have already described? That is the first aspect. The second aspect which differentiates the issue and you get to it only if you get past that first aspect is, was it done with an intention to kill and, if not, was it an unlawful and dangerous objectively assessed?

…

[235]   In the end the simple question that underpins the whole of this case is was the injection self-administered or was it administered by others otherwise with the consent the deceased. If you get past that, if you take the view that it was self-administered that is the end of the matter and you would have to find not guilty of murder and not guilty of manslaughter. If you take the view that the Crown has proved beyond reasonable doubt that it was administered by one or other of Mr Tozer or Mr Bushell then you have to work out whether such a lethal injection was administered with an intent to kill and if not then manslaughter is a consideration.

…

[237]   I come back to the general. In the end the task you have is to determine whether the Crown has satisfied you beyond reasonable doubt that the criminal charge preferred or laid against the accused has been proved. If it has been proved in a factual sense, that is that they administered the drug then both murder and manslaughter are available. If they also prove an intent to kill then that would be murder and if not then, subject to the view you might take that it was not unlawful or dangerous, that would manslaughter. They are the three issues that arise, possibly only one issue that might arise, in your mind. That is determined by determining, once you have worked out what evidence you accept, is there a reasonable hypothesis available on the evidence, that is the evidence you accept, that this overdose was self-administered? Ultimately that is probably the most important issue that you have to decide.

[238]   As I said ultimately you have to be satisfied beyond reasonable doubt that the deceased's death was caused by something for which the accused can be made responsible in the manner I already addressed as a principal in the second degree, by whatever name you call it, but what you cannot do, as I said to you earlier, you cannot if six of you say it was self-administered and six of you say, no it was administered and it was done to kill, you cannot come back and say, 'why don't we just comprise and say it is manslaughter'. You cannot do that. That is unfair on the accused and unfair on the system of justice which we operate in and it is unfair and inconsistent with the oath you have taken. You have got to determine the murder issue and then if you find not guilty in relation to murder then you have got to determine the manslaughter issue.

[239]   Of course, if you are all unanimous on the question of self-administration, that is if you were unanimously of the view that the Crown has not proved beyond reasonable doubt that one or other of Mr Tozer or Mr Bushell administered the cocktail of drugs then the verdict would have to be not guilty for murder and not guilty for manslaughter.

The jury questions

30. The jury retired at 11:15am on Thursday 31 August 2023 to consider its verdict. Having deliberated for half a day on Friday, 1 September 2023 and the morning of Monday, 4 September 2023, the jury sent a note with five questions as follows:

1.   Can you please clarify B2(c)(i) from the written directions [which said, "An act is unlawful if it involves a deliberate application of force to another person without that person's consent"]?

2.   Can you be perceived to give consent if you aren't sound of mind or considered "under the influence?"

3.   Would not being aware of the fatal contents of the shot but, being a willing participant in the act, constitute non-consent?

4.   Could we get some clarity around the law surrounding "whether a reasonable person in the accused's position would have realised that risk of (really) serious injury existed?" I.e. How much are we putting ourselves in the accused's shoes so to speak.

5.   Considering section C, part 4, 2nd sentence, line 5: states the accused does not need to realise that the act is unlawful, then does the accused also need to realise whether consent was present? as defined in B2 (c)(i) - Unlawful and Dangerous act?"

31. Debate ensued between the trial judge and counsel in relation to those questions. Amongst other things, the Crown said that she had some difficulty with the words “without that person’s consent” in the written directions (Q 1), and the proposition that the deceased could consent to an unlawful and dangerous act and the broader proposition whether someone could consent to an assault.

32. His Honour gave the parties until the following morning to consider what answers should be given to the questions. Each counsel provided brief written submissions to the trial judge the following morning. In the written submissions of the Crown, there was raised for the first time what was said to be another type of unlawful act relevant to the case apart from “an act is unlawful if it involves a deliberate application of force to another person without that person’s consent”. The Crown submitted that it was also unlawful for a person to administer a prohibited drug to another person under s 13 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). Further, under s 19 it was unlawful for a person to aid and abet another person to administer a prohibited drug to himself or to another person. The Crown submitted that it was a criminal offence even if the person who was injected consented to that act. In that way consent by the deceased was irrelevant.

33. Senior counsel for the applicant submitted that the Crown ought not to be permitted to rely upon a different type of unlawfulness at such a late stage in the proceedings where the Crown had accepted, at least inferentially, that the type of unlawfulness upon which it was relying was the application of force without a person’s consent. In answer to a question from the trial judge, senior counsel for the applicant said that if the Crown had relied upon an unlawful act by reason of the provisions of the DMTA it would not have changed the defence case or the way he presented the defence case, but he submitted that the Crown should be held to the way it had run its case.

34. The trial judge then delivered a brief extempore judgment (R v Bushell (No 18) [2023] NSWSC 1454) which concluded in this way:

[23] In this case, as earlier stated, the Drug Misuse and Trafficking Act creates criminal offences relating to the administration of an illicit drug. This death is a direct consequence of the administration of the illicit drugs. It is not in the same position as mere supply from which death ultimately eventuates.

[24]   Therefore, to the extent that the accused has been proved beyond a reasonable doubt to have participated, either by the administration, or by aiding and abetting in the administration, of the illicit drug, that is an act which is unlawful, and whether it is dangerous is a matter for the Jury. Consent of the deceased, if there were consent, is irrelevant to the unlawfulness.

[25]   I so determine and will answer the questions in accordance with that ruling.

35. At the conclusion of the judgment the trial judge asked counsel if anyone wished to add anything to what he said, and both counsel said that they did not.

36. Shortly thereafter, a second note from the jury was received asking these questions:

Is there a difference in 'aiding, abetting and encouraging' in the case of murder vs manslaughter. I.e. can someone 'aid, abet or encourage' an accidental overdose?

What happens if we cannot become unanimous?

In written directions C-4 could you explain in simpler terms? I feel like I'm back in literary theory trying to debunk a text by Foucault.

(emphasis in original)

37. After a brief discussion between the trial judge and counsel, the jury returned to Court and his Honour first gave directions in relation to the first of the jury notes in relation to the issue of consent, his Honour said:

[288]   Now, can I then deal with the issue of consent. In the written directions, in part B, the element is that which is contained in C, that is, that the act was an unlawful and dangerous one. That is the element.

[289]   Thereafter what I have done, and I think misleadingly in this case, is give you an example. I have said an assault is an unlawful act if done without consent. In this case it is a criminal offence to inject someone with an illicit drug. These are illicit drugs. Leaving aside someone who has a prescription for a drug and it is administered by someone who is authorised to do so, it is unlawful to administer an illicit drug to someone. So the injection of an illicit substance in someone is an unlawful act. You do not need to worry about an assault or consent in that sense.

[290]   Further, it is a criminal offence to inject yourself with an illicit drug. There are a whole range of drug offences, but these are specific offences dealing with the administration of drugs. It is also an offence to inject yourself with an illicit drug. That, of course, would not without more involve the accused unless the accused was aiding and abetting, which brings me to the next note. The unlawfulness is not only determined by whether it is an assault without consent, it is also determined by the fact that there was, as the Crown said in its closing, the administration of an illicit drug to the deceased. If it were done by either the accused or his brother, Mr Tozer, and the accused was aiding and abetting then that is an unlawful act. It is a matter for you whether it is dangerous. I have explained to you that that is again an objective test that is done on the basis of what someone would believe is dangerous.

(emphasis added)

38. In relation to the second jury note his Honour said:

[296]   I do want to say something about accidental, which you used that term in JNB. All that is required is a deliberate act. That is the injection has to have been done deliberately either by the deceased or by one or other of the accused or his brother, Mr Tozer. I will explain to you the difference between deliberate and intentional. The deliberate act is something that is voluntary. That is that you have done it deliberately. That is if you walk past somebody and accidentally stab them with a needle that would not be a deliberate act. But otherwise injecting somebody, finding a vein and injecting them, is a deliberate act ordinarily in that sense.

[297]   Beyond that, in the case of manslaughter, all that is required - and I keep saying all that is required - but what is required is that the act be unlawful, on which I have already addressed you, and that you consider a reasonable person in that state of knowledge would consider it dangerous. They are the two issues. They are done objectively. The person who administers the drug or who aids and abets does not need to know it is unlawful and does not need to know it is dangerous. It is reasonable. Whether it is unlawful or not as a matter of law and whether it is, assuming you find it was not self-injected without assistance, if it was self-injected without assistance then the accused gets off and is found not guilty. Not gets off, I am being too loose with my words, but is found not guilty. By that I mean, obviously the Crown has to prove beyond reasonable doubt, that there was some kind of assistance or injection that was actually done by Mr Tozer or the accused.

[298]   Leaving side that scenario, that is the scenario of self-injection without any assistance by the provision of a drug or anything else, all that is necessary is knowledge of the deliberate act and the assistance in that direct deliberate act. Let me say this. If the assistance were confined merely to the supply of the drug, so for example if you were a drug supplier and you give it to somebody, and they inject themselves and died of an overdose that is not assistance in the manslaughter because the supplier of the drug is not enough. It has to be supply of the drug and knowledge of the quantity of the drug that is to be administered and the like. You do not have to know the exact quantity, but you have to know the kind of quality or the quantity that is involved. I think that answers everything except for one question.

39. At the conclusion of those further directions, the trial judge first asked senior counsel for the applicant if there was anything his Honour needed to correct or add to the directions, and senior counsel said that there was not. The Crown sought a clarification of the issue of assisting by a person who was not doing the injecting. The jury returned to Court, and his Honour said this:

HIS HONOUR: Thank you. I think I covered this, but there is a question as to whether I have misspoken in relation to something or misled you a little.

In particular in relation to consent. Given the criminal offence is associated with the administering of a drug consent becomes irrelevant and if I did not say it in those words that certainly is what I intended to give you. That is issue number 1.

Issue number 2 is I said to you that it is not enough to assist to supply the drug and that is plainly correct. I said to you about the quantity of the drug. I am not talking about the quantity of the drug supplied. You have to be assisting in the injection process. That is somehow or other aiding or encouraging the injection process. Not simply supplying the drug and knowing how much you supplied. It would have to be more than that. If I gave you the impression otherwise I apologise, but that is in effect what is necessary. All right. Thank you very much. That is all I wanted to tell you.

(emphasis added)

Grounds of appeal

Applicant’s submissions

40. The applicant submitted that the effect of the trial judge’s redirections was relevant to grounds 1 to 3.

41. The applicant submitted that only one act, being the injection of drugs, was identified as the act causing death. The evidence at trial contemplated three hypotheses, that the act causing death was committed by the applicant, Mr Tozer, or the deceased. The applicant submitted that when the jury first retired to consider its verdicts, it was clear that only the first two hypotheses could result in a guilty verdict for manslaughter and the third hypothesis could not result in a guilty verdict for manslaughter.

42. The applicant submitted that the redirections gave rise to a new pathway to guilt founded on the deceased's self-injection of drugs. The applicant submitted that the jury would have understood that it could convict the applicant of manslaughter if it found beyond reasonable doubt:

(a)   That it was the deliberate act of the deceased (i.e. the self-injection of drugs) that was a substantial cause of the deceased's death;

(b)   The applicant was present at the time, aiding and abetting or encouraging the commission of the self-injection;

(c)   That the act being the self-injection was unlawful; and

(d)   That the act was dangerous.

43. The applicant submitted that those four elements which suggested a pathway to guilt for manslaughter via accessorial liability, were problematic because:

i.   accessorial liability is derivative;

ii.   an accessory cannot be liable for an offence unless the principal actor commits the offence;

iii.   here, the principal actor was the deceased;

iv.   the deceased cannot be guilty of his own manslaughter, in reliance on IL v The Queen (2017) 262 CLR 268; [2017] HCA 27;

v.   therefore, an accessory to that manslaughter cannot be guilty of that crime; and

vi.   it was therefore wrong to leave this pathway to guilt to the jury.

44. The applicant submitted that even if his liability via this pathway were to be characterised as primary rather than derivative because it was thought that he was acting in concert with the deceased as part of a joint criminal enterprise to inject drugs, the result would not change because the majority holding in IL would still preclude a conviction for manslaughter.

45. Where satisfaction of the purported elements of manslaughter did not actually amount to the crime of manslaughter, the judge’s redirection was a misdirection that amounts to an error of law. Accordingly, the conviction should be quashed and a new trial should be ordered.

The Crown’s submissions

46. The Crown acknowledged that the Court may consider that ground 1 has been made out in the particular circumstances of the present case, and grant a retrial on the basis that the ultimate effect of what was left to the jury may be characterised as a pathway of derivative liability for the deceased's own act which led to his death, contrary to ILv The Queen at [25]. The Crown said that the concession was made in circumstances where it accepts that the directions were ambiguous in some respect, particularly with respect to whose "act" constituted the unlawful and dangerous act if the deceased had injected himself with drugs, what the nature of the "assistance" might be and whether it would be sufficient for the applicant to aid and abet an act of assistance by Mr Tozer rather than directly assisting himself.

47. The Crown, nevertheless, properly put forward potential counter arguments to that outcome for the appeal, for the consideration by the Court. Those arguments were as follows.

48. First, on one view of the directions, the trial judge did not leave any scenario that could be characterised as a "self-killing" to the jury. There was no dispute in the trial that if the deceased had administered the drugs to himself (and overdosed) without any assistance from or involvement of the applicant or Mr Tozer, the applicant could not be convicted, and the jury were directed in those terms. Similarly, there was no dispute that if either the applicant or Mr Tozer injected the deceased without his involvement, agreement or consent, that would be an unlawful and dangerous act and the applicant could be convicted of manslaughter.

49. The Crown submitted that while the trial judge's responses to the jury notes did not detract from those propositions, the effect of the impugned directions was to leave to the jury a scenario which lay somewhere between those two extremes. That scenario was one of assisted administration as distinct from wholly self-administration.

50. The Crown submitted, secondly, that the decision of the High Court in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (which pre-dated IL but which is not referred to in IL) left open the question, as a matter of law, of whether a person who assists a person to administer prohibited drugs can be liable for involuntary manslaughter. A person is liable for involuntary manslaughter on the basis of an unlawful and dangerous act where they have engaged in an unlawful act causing death which is objectively dangerous, in the sense that a reasonable person would realise that the act exposes another to an appreciable risk of serious injury.

51. The Crown submitted that the High Court in Burns left open the possibility that a person “assisting” someone to inject a drug may be engaging in an unlawful and dangerous act. The facts of that case, which involved the supply of methadone to a person who later ingested it and died, was not the occasion for resolution of the issue of the responsibility for manslaughter by assisting with the administration of a prohibited drug because the unlawful and dangerous act left to the jury was ultimately not the act of assisting a person with injecting drugs.

52. The Crown submitted that, arguably, assisting another person to ingest a lethal dose of prohibited drugs is capable of amounting to an unlawful and dangerous act regardless of whether the person consents to the act or not. If that is right, the Crown submitted, the trial judge was correct to direct the jury that administering drugs to another person is an unlawful act, as is the act of assisting a person to administer unlawful drugs to themselves. So much is clear from ss 12-14 and 19 of the DMTA.

53. Whether or not the act of assistance is a dangerous one and a substantial cause of death will depend on the particular facts. In the present case a conclusion that the act of assistance was dangerous was available having regard to the nature, combination and quantity of substances involved. There was no dispute as to the causal link between the act of injecting the drugs and the deceased’s death. If the act of the applicant was assisting with that injection, it was open to the jury to conclude that this was a substantial cause of death, regardless of whether the deceased's own actions were also contributory.

54. Finally, the Crown submitted that the facts of IL were quite different from the present case, and on one view the reasoning in IL was confined to a case where a person is alleged to be liable for another person's death based solely on participation in a joint criminal enterprise rather than where, as here, there was an identifiable unlawful act on the part of one of the co-accused. In IL, there was no evidence that the applicant played any role in the act that resulted in the deceased's death. By comparison, the scenario left to the jury in response to the first jury note was one in which the applicant assisted with an injection, that is, it did not involve a misadventure by the deceased solely at his own hands.

55. The Crown submitted that on one view, the unlawful act for the purposes of the alternative charge of manslaughter may not be characterised as the deceased's own act, but was the unlawful act of either the applicant or Mr Tozer assisting a person to administer prohibited drugs. If that is how his Honour's directions are construed, and this Court considers the circumstances of this case distinguishable from IL on that basis or because the Crown case was not left on the basis of a joint criminal enterprise, the Crown submitted that the pathway to liability was available as a matter of law.

Consideration

56. In Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35, Natalie Burns was convicted of the manslaughter of David Hay contrary to s 18 of the Crimes Act 1900 (NSW). Ms Burns and her husband were registered participants in a methadone program. She sold some of her own methadone to Mr Hay which he ingested. The evidence did not establish whether he injected himself or was assisted by Ms Burns, her husband or another visitor.

57. The trial judge directed the jury that if Ms Burns supplied methadone to the deceased and if that supply was dangerous and if it caused the death of the deceased she could be convicted of manslaughter. That direction was held to be in error. While it was not in dispute that the supply of methadone to the deceased was unlawful the Crown case did not involve a contention that the supply of the methadone was a dangerous act in the sense necessary to support a conviction for manslaughter. The Crown’s case was that Ms Burns and her husband had injected the deceased with methadone and, in the alternative, that they had assisted the deceased to inject himself with the drug. The Crown alleged that their conduct in doing either of those things was an unlawful and dangerous act which caused the death of the deceased and support a verdict of guilty of manslaughter.

58. The Crown accepted on a hearing of the appeal to the High Court that the supply of methadone alone could not substantiate the commission of an unlawful and dangerous act.

59. The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [89]:

Acceptance of the Crown's concession required that the appeal be allowed. The Crown submitted that the appropriate consequential order was for a new trial at which it should be permitted to present a case on manslaughter by unlawful and dangerous act based on the appellant's alleged complicity in injecting the deceased with methadone. This appeal is not the occasion to consider the responsibility for manslaughter, of a person who assists an adult at the adult's request with the administration of a prohibited drug. Nor is it necessary to consider whether the Crown should be permitted to run a new case relying on a different unlawful act. This is because the evidence at the trial was not capable of establishing the appellant's complicity in injecting, or assisting to inject, the deceased with the drug. The Court of Criminal Appeal's conclusion to the contrary was based upon a misunderstanding of a concession made by the appellant.

60. In IL v The Queen the deceased was severely injured by a fire that broke out in residential premises owned by IL. She died ten days later. IL had been using the premises for the purpose of refining raw methylamphetamine. The deceased’s death was caused by the lighting of a gas ring burner in an inadequately ventilated bathroom. The Crown relied on felony-murder because the act was done during the commission of an offence punishable by imprisonment for life, namely, the manufacture of a large commercial quantity of a prohibited drug, with which IL was also charged. However, the Crown was unable to prove at trial whether IL or the deceased ignited the gas ring burner that caused the fire. Due to its inability to prove that IL physically did the act causing the death, the Crown argued that IL was nonetheless criminally liable for the act causing death as a participant in a joint criminal enterprise.

61. At trial, Hamill J directed the jury to return verdicts of not guilty on the charges of murder and manslaughter: R v IL (No 2) [2014] NSWSC 1710.

62. The Crown appealed pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against the directed verdict of acquittal. This Court quashed the verdict of acquittal and ordered that there be a new trial on the charges of murder and manslaughter: R v IL [2016] NSWCCA 51. The High Court granted special leave to appeal against the quashing of the verdict of acquittal.

63. In upholding the appeal, the joint judgment of Kiefel CJ, Keane and Edelman JJ said:

[4] The Crown's case in respect of those three requirements was that: (1) the act of the accused was the lighting of the ring burner which caused the death of the appellant's co-participant; (2) that act was done during the commission by the appellant, or the co-participant, of the crime of manufacture or production of a large commercial quantity of a prohibited drug contrary to s 24 of the Drug Misuse and Trafficking Act 1985 (NSW); and (3) that crime is punishable by imprisonment for life (s 33(3)(a)).

[5] There was no dispute that requirements (2) and (3) were satisfied. However, the Crown could not prove whether it was the appellant or the deceased who lit the ring burner. So the Crown submitted at trial that even if it were the deceased who lit the ring burner, his act could be attributed to the appellant with the result that his act could be the "act of the accused" for the purposes of murder or manslaughter under s 18 of the Crimes Act. The Crown relied upon rules of attribution commonly known as "joint enterprise liability".

[6] The most elementary difficulty with the Crown case is the assumption upon which it was based, that s 18 applied in a case of self-killing. Properly construed, s 18 is not engaged in a circumstance in which a deceased accomplice killed himself or herself. It was, therefore, not engaged in this case. Questions of attribution need not arise.

…

[24] Consistently with its origins in the common law, the text and context of s 18 also confirm that the concern of the section was not with the killing of oneself. First, when it was enacted s 18 was immediately followed by the penalty in s 19, which provided that the person who commits murder "shall be liable to suffer death". That plainly indicated that the "murder" the section was concerned with was the killing of another person. Secondly, the instance of murder involving "intent to kill or inflict grievous bodily harm upon some person" (emphasis added) contemplated that "some person" was some person other than the person causing the death. Indeed, on a literal reading of s 18(1) the "person" whose death is caused is differentiated from the "accused" and the "accomplice". The language in which s 18(1) is cast does not contemplate that the accomplice of the accused might be the person whose death was caused by the accused or the accomplice. Thirdly, s 18(2)(b) is an express acknowledgement that the punishment or forfeiture in relation to killing, other than by misfortune, is concerned with the killing, by murder or manslaughter, of "another".

[25] The short point is that the murder "taken to have been committed" and "[e]very other punishable homicide" taken to be manslaughter to which s 18 refers require the killing by one person of another. Section 18 is not concerned with the circumstance of a person who kills himself or herself intentionally. Nor is it concerned with a person who kills himself or herself accidentally. It follows that the offence of murder is not committed where a person kills himself or herself in an attempt to commit, or during or immediately after the commission of, a relevant crime. Nor is the offence of manslaughter committed when a person kills himself or herself in some other way. Section 18 did not create such new offences. Nor could the section be engaged, and such offences created, by attributing to another person an act which caused a self-killing.

64. As noted earlier, no reference was made in the judgments of the High Court in IL to the passing remarks in Burns at [89]. That is not surprising since the facts in IL did not concern a person who assisted an adult at their request with the administration of a prohibited drug. Nevertheless, the omission highlights the rather different factual and legal situation in IL from death by drug ingestion where the accused is involved.

65. IL was considered by this Court in Moussa v R [2017] NSWCCA 237. That case also involved a joint criminal enterprise, where it was intended to burn down a house, and where the deceased who actually set fire to the house was accidentally killed in the process.

66. In his judgment Fagan J usefully analysed the differences between the two joint judgments and the two separate, individual judgments in IL. His Honour said at [63]:

[63]   At [40] their Honours accepted that Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75:

was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime.

Gageler and Gordon JJ in separate judgments concurred in this understanding of the principles settled by Osland v The Queen.

67. His Honour then noted that Bell and Nettle JJ expressed a minority view on the subject of attribution of acts between participants in a joint criminal enterprise where their Honours said at [82]:

It is the act of the agent [the deceased], as was committed by the agent, and not such an act as if it had been committed by the principal [the accused], that is to be assessed to determine whether the act comprised the actus reus of an offence.

68. Justice Fagan then said:

[66] Whilst differing over the principle of attribution, Bell and Nettle JJ supported Kiefel CJ, Keane and Edelman JJ with respect to the ultimate holding in the appeal, on the basis that when the act which caused death was assessed for its criminality “as was committed by the agent” (the deceased himself) and “not as if it had been committed by the principal” (the accused), there was no murder or manslaughter because s 18 of the Crimes Act does not create an offence of self-killing. At [88] their Honours characterised the case before the court as one:

… where an act of the deceased causing his own death was not unlawful and was thus incapable of constituting the actus reus of the offence of murder with which the appellant was charged.

[67] The common ground between the joint judgment of Kiefel CJ, Keane and Edelman JJ on the one hand and that of Bell and Nettle JJ on the other, is limited to acceptance that a person killing himself does not commit murder or manslaughter contrary s 18 of the Crimes Act. The respective reasons are disparate, where the causative act was committed in the course of a joint criminal enterprise of the deceased and the accused, as to why the act is not attributed to the accused in such a way as to constitute an unlawful homicide by the accused. One view is that s 18 is simply not engaged by a self killing, to whomever the act causing death may be attributed. The other is that the act causing death is assessed for its criminality as an act of the person who commits it, not as an act attributed to a co-offender in a joint criminal enterprise.

69. In her judgment, N Adams J said at [69]:

I agree with Ward JA and Fagan J that grounds 1 and 2(a) must be upheld in light of the decision in IL v The Queen [2017] HCA 27. As Fagan J has noted, although Bell and Nettle JJ expressed a minority view on the question of attribution between participants in a joint criminal enterprise, their Honours were in agreement with Kiefel CJ, Keane and Edelman JJ to the extent that their Honours all accepted that self-killing does not come within the terms of s 18 of the Crimes Act 1900 (NSW). Based on that aspect of the decision in IL v The Queen, I am satisfied that the Crown’s concession should be accepted, the appeal should be allowed and the appellant’s conviction for manslaughter quashed.

70. In the present case, the liability of the applicant was not said to derive as a result of a joint criminal enterprise but only, on the case put forward up to the time the jury was first sent out to consider its verdict, on the basis that either the applicant or Mr Tozer had injected the deceased with the drugs, or on the redirections after receipt of the jury notes, on the basis that the applicant had assisted the deceased, or possibly Mr Tozer who was assisting the deceased, to inject the drugs.

71. If the liability was based on aiding and abetting, the applicant could only be a principal in the second degree, and his liability would be derivative and not primary. In Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 McHugh J said at [71]:

Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.

72. In such circumstances, there can be no liability in the applicant for manslaughter in accordance with what was said by Kiefel CJ, Keane and Edelman JJ in IL at [25]. Any act of aiding and abetting may only constitute an offence under s 19 of the DMTA.

73. The trial judge in the present case was not directed to what was said in IL and was not provided with the assistance by what was said in that case. The further basis put to the jury after receipt of the jury notes was a fundamental change in the way the case had been run. Both the Crown and the trial judge had made clear that there were, in substance, only two possibilities. If either or both or the applicant and Mr Tozer administered the injection the applicant was guilty of either murder or manslaughter. If the deceased self-injected the applicant must be found not guilty. The trial judge said to the jury at [235] of his summing-up:

If you take the view that it was self-administered that is the end of the matter and you would have to find not guilty of murder and not guilty of manslaughter,

and again at [239]:

... if you were unanimously of the view that the Crown has not proved beyond reasonable doubt that one or other of Mr Tozer or Mr Bushell administered the cocktail of drugs then the verdict would have to be not guilty for murder and not guilty for manslaughter.

74. The redirection permitted the jury to find the applicant guilty even if the deceased self-injected if the applicant aided and abetted because, by that stage, the Crown was relying on the provisions of the DMTA as constituting an unlawful act. Senior counsel for the applicant argued strongly against that widening of the case but his Honour ruled in the judgment referred to at [34] above that the case could be put that way.

75. Whether consent of the deceased was relevant if there was not self-injection was left in a somewhat confusing state, as the italicised passages at [37] and [39] above make clear in the redirections.

76. The Crown’s concession with regard to this ground was properly made, especially where the trial judge was not assisted by a reference to IL. In those circumstances it was necessary to make the orders quashing the conviction and ordering a retrial. It is not, therefore, necessary to consider the remaining grounds. I note, however, that the Crown conceded that ground 4 was also made out. Upholding that ground also required the conviction to be quashed and a new trial ordered.

77. LONERGAN J:   I joined in the orders made by this Court on 26 February 2025 for the reasons given by Davies J.

78. YEHIA J:   I have had the benefit of reading the draft judgment of Davies J and agree with his Honour’s reasons. They accord with my own reasons for joining in the orders made on 26 February 2025.

**********

Amendments

07 March 2025 - Typographical error in Head Note

Decision last updated: 07 March 2025