Deliu v The State of Western Australia
[2016] WASCA 117
•7 JULY 2016
DELIU -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 117
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 117 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:194/2015 | 2 JUNE 2016 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 7/07/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES CHAD DELIU THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against conviction Grievous bodily harm Failure to provide necessaries of life Adequacy of directions Reasonable foreseeability Defence of mistake Turns on own facts |
Legislation: | Criminal Code (WA), s 23A, s 23B, s 24, s 262, s 297(3) |
Case References: | Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Hill v The State of Western Australia [2015] WASCA 17 R v Young [1969] Qd R 417 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DELIU -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 117 CORAM : McLURE P
- BUSS JA
NEWNES JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
File No : IND 1566 of 2014
Catchwords:
Criminal law - Leave to appeal against conviction - Grievous bodily harm - Failure to provide necessaries of life - Adequacy of directions - Reasonable foreseeability - Defence of mistake - Turns on own facts
Legislation:
Criminal Code (WA), s 23A, s 23B, s 24, s 262, s 297(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S Vandongen SC
Solicitors:
Appellant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Hill v The State of Western Australia [2015] WASCA 17
R v Young [1969] Qd R 417
1 McLURE P: The appellant seeks leave to appeal and, if leave is granted, to appeal against his conviction after trial of one count of unlawfully doing grievous bodily harm to his adult daughter, Cher Deliu, contrary to s 297(1) read with s 297(3) of the Criminal Code (WA) (Code).
2 The prosecution case was that the appellant's liability arose from his failure to provide the necessaries of life to his daughter contrary to the duty in s 262 of the Code. Section 262 provides:
It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.
3 The appellant claims in his grounds of appeal that there was a miscarriage of justice when the trial judge failed to direct the jury:
(1) that to establish criminal liability under s 297 and s 262 of the Code the prosecution needed to prove that grievous bodily harm was reasonably foreseeable;
(2) on the defence of mistake under s 24 of the Code and how that defence arose in relation to the facts of the offence.
An outline of the prosecution case
4 The prosecution case focused on events which occurred over a two-day period starting at the appellant's home in Byford on the morning of Saturday 8 March 2014, moving to his brother's home in Bakers Hill (around 95 kms from Byford) later that day and through to the morning of Sunday 9 March 2014.
5 At the relevant time, Cher was aged 18 years and resided with the appellant. The prosecution case was that, by about 4.30 pm on Saturday 8 March 2014 the appellant knew that Cher had taken a potentially fatal dose of insulin and that it was necessary to seek medical treatment for her, which the appellant failed to do.
6 The appellant is diabetic and his condition was treated by insulin administered by an epipen, a device for injecting a controlled amount of insulin. Cher, as the appellant's registered carer, had access to the appellant's insulin and normally administered it to him when injections were required.
7 During the morning of Saturday 8 March 2014 Cher, who is not diabetic, was injected with a significant overdose of the appellant's insulin, using the epipen. At the time, Cher was facing criminal charges which she feared would result in imprisonment. She had attended court on 4 March 2014 and became very upset afterwards at the prospect of imprisonment. It appeared Cher may have self-administered the insulin in a self-harm attempt.
8 On 29 December 2013 Cher had contacted her half-sister Susan Deliu (Susan) in a very distressed state and told her she had taken insulin and it was 'too late'. Susan, the appellant's daughter, rang for an ambulance. She then received a telephone call from the appellant who asked her what Cher had taken. Susan told him that Cher said she had taken insulin and he replied 'okay' and hung up. Around 15 minutes later, the appellant rang Susan back and asked if she had called an ambulance for Cher. When Susan confirmed that she had done so, the appellant then abused Susan saying 'Do you know what you have done? This will give Kelly a motive to take Joshua [the appellant's son] away'. The appellant then told Susan that Cher had not in fact taken insulin but had told Susan that to gauge her reaction. Susan then cancelled the ambulance. The prosecution relied upon this event as demonstrating that the appellant knew that Cher was aware of the potentially dangerous consequence of taking insulin.
9 At the time of the offence the appellant was frightened of losing custody of his son and had said that if that happened, he would take his own life. Prior to the events of 8 and 9 March 2014, the appellant's son had left the appellant's custody and went to live with his mother. On 6 March 2014 the appellant drew up a will leaving almost all of his estate to his son.
10 The appellant had told Jeffrey Brugman (the appellant's stepson) of his intention to commit suicide and that Cher had researched suicide by insulin on the internet. The appellant also told Brugman that Cher had indicated she would commit suicide too but he wanted her to remain alive to care for his son Joshua.
11 A few months before March 2014 the appellant said, in the presence of Cher, that he would not be around much longer. This caused distress to Cher who had said she would not go on living without her father.
12 At about midnight on Friday 7 March 2014 the appellant and Cher stopped at Susan's house in Armadale. They were there for about five minutes. Susan and her mother, Helen Thornton (Helen) spoke briefly to Cher who appeared to be fine and her normal self. Cher did not appear to be affected by alcohol at that point. The appellant asked Susan to check on his Byford home at around 11.00 am the next morning due to ongoing vandalism.
13 The next morning Susan and Helen stopped by the appellant's house. They were in a taxi on the way to the shops. Susan went to check around the house while her mother stayed in the taxi. Susan went to the sliding door and saw the appellant sitting in a chair in the lounge room. He appeared to be asleep. Neither Susan nor her mother went into the house. Susan and Helen went with the appellant in his vehicle to the Byford shops and returned to the appellant's house at around 12.30 pm. Susan went inside and noticed empty beer bottles on the kitchen table. The appellant told Susan that Cher had been drinking and was asleep. The appellant had asked Helen to stay outside, which she did. The appellant also told Helen that Cher was asleep.
14 The appellant asked Susan to help clean up the house which she did. Susan inquired several times about Cher but was told by the appellant not to wake her and that she would be fine. By about 4.00 pm when Cher had still not emerged, Susan asked the appellant whether she should be awake by now. He showed Susan an empty pill bottle and said that Cher had taken some sleeping tablets.
15 At one point Susan saw the appellant making a 'gluggy' drink which he took through to the garage. Susan followed him and saw Cher lying on a thin mattress. The appellant tried to sit her up but she slumped over. He was trying to get her to drink what was in the cup.
16 At around 3.00 pm or 4.00 pm Helen heard Susan saying to Cher 'Come on Cher, it's time to get up. Come on. Wake up'. Some time shortly after this either Susan or the appellant called Helen in to help carry Cher to the appellant's car. Helen walked to the sliding door of the house and saw that Cher was sitting halfway in, halfway out and Susan was trying to lift her up. Together, the appellant, Susan and Helen carried Cher to the appellant's vehicle.
17 At that point, Cher had wet patches to her top and a wet patch on her pants. She had red cheeks, felt warm and was making grunting noises. She was unresponsive to Susan's requests to her to wake up, merely grunting with her eyes rolled back. At around 4.30 pm, both Susan and Helen considered that Cher needed to go to the hospital. The appellant said he was not going to do that because he said he would get arrested or charged and go to gaol.
18 Under cross-examination, Susan rejected the suggestions that Cher appeared normal, that the two of them were drinking together on the Saturday afternoon and that she had not said anything to the appellant about taking Cher to the hospital.
19 Susan gave evidence that her statement in a telephone conversation with the appellant's brother, George Deliu (George), that Cher was normal that (Saturday) afternoon was not the truth as to Cher's state and that the appellant had asked her to say that Cher was normal so that he was not charged or sent to gaol. Both Susan and Helen described Cher as being unable to walk or manoeuvre herself when they were carrying her to the car.
20 The appellant, Cher, Susan and Helen left the house in the appellant's car at around 4.30 pm. Helen described Cher as being very hot and clammy and making little twitching movements and kicks whilst she was lying on Helen's lap. She gave evidence that the appellant was entreated to obtain medical attention for Cher at least 10 times.
21 The appellant dropped Susan off at her home in Armadale as she had children to look after. Susan described getting out of the car at her home and saying to her mother 'make sure she goes to the hospital' and to her father 'are you taking her to the hospital' to which he nodded 'yes'.
22 Helen remained in the car. Her understanding was that they were taking Cher to Armadale Hospital. However the appellant drove past the hospital, saying he was not going to take Cher there as he was worried about getting arrested. Instead, he drove to George's house in Bakers Hill. Cher remained unconscious.
23 By the time they got to Bakers Hill it was dark and the appellant parked the vehicle at the house. Cher remained in the vehicle. At some point Helen asked George and Pauline Scarfe (Pauline), who is George's partner, for ice to try and lower Cher's temperature. The appellant told George that Cher had been drinking, was sleeping it off and to leave her alone and not go to the vehicle. At some stage the appellant asked George for some sugar and later asked him if he had a syringe. The appellant also asked Pauline to make him a drink with 20 spoons of sugar in it. The appellant said Cher needed sugar and asked Helen and Pauline to help lift Cher up to feed her with sugared water. He started trying to spoon the liquid into Cher's mouth but it dribbled back out.
24 The appellant told George at some point that Cher had not only been drinking beer but had also taken some sleeping tablets. Similarly, when Cher's mother, Christine Blatz (Christine), rang the appellant that night he told her that Cher was out with Susan without disclosing that Cher was seriously unwell and was in fact lying unconscious in the back of his vehicle. Christine rang again insisting on speaking to Cher at which time the appellant told her that Cher was out with Pauline and 'other responsible' ladies.
25 Helen heard George ask the appellant whether Cher needed to go to hospital to which the appellant replied 'No she's okay. She can just sleep it off'.
26 At around 9.00 pm the appellant, Helen and George carried Cher into the house. Cher had not regained consciousness at any point. George gave evidence that at this stage he was beginning to get 'properly concerned'. He told the appellant and Helen that they needed to take Cher to hospital.
27 Helen changed Cher into some dry clothing and the appellant tried to give her more sugary drink which she was unable to swallow. This continued throughout the night.
28 A few days earlier Jeffrey had received a text message from the appellant saying he wanted to be with his daughter who had died as a baby and that he would send Jeffrey a sign from heaven. Jeffrey was concerned about the appellant and on Sunday morning he drove to Bakers Hills in an attempt to find the appellant and Cher.
29 Jeffrey got to George's house at about 8.20 am on Sunday 9 March 2014. He spoke with the appellant and asked after Cher. The appellant told him that he thought Cher had taken a heap of insulin and stilnox (sleeping tablets). Jeffrey tried to wake Cher. Her face was sweaty and swollen, her mouth open and her breathing irregular. Jeffrey asked the appellant why no-one had taken Cher to hospital and was told, by the appellant, that 'Cher would fuck her bail conditions'.
30 The appellant attempted to give Cher some Powerade but it simply ran out of her mouth. He then slapped her to the face and pushed her in the chest but she did not respond. Helen took Cher's pulse; it was 22. The appellant said 'She wasn't this bad yesterday' and 'we got 20 teaspoons of sugar into Cher'. Jeffrey attempted to ring for an ambulance but could not get mobile phone reception. He decided to take Cher to the Northam Hospital himself where she was admitted at 8.50 am on Sunday 9 March 2014. Her glucose level was so low it was unrecordable and the diagnosis was hypoglycaemia, consistent with having had an excess of insulin. She was treated with intravenous dextrose and put on a ventilator. Cher was seriously and permanently injured. The defence admitted that Cher had suffered grievous bodily harm.
31 Prior to Jeffrey leaving Bakers Hill with Cher, the appellant asked him to say that when Jeffrey arrived at Bakers Hill no-one was there and he found Cher alone.
32 In the early afternoon of Sunday 9 March 2014 Cher was flown to Sir Charles Gairdner Hospital where her condition was assessed as grave. On Monday 10 March 2014 the appellant said to Helen 'I've killed her, haven't I'. The prosecution relied upon the appellant's statement as an acknowledgement of his failure in his duty to Cher.
33 George and Pauline gave evidence that the appellant had asked them to lie and say that Cher had been walking around and drinking at George's property at Bakers Hill on Saturday afternoon. He also asked George not to tell police that George had asked the appellant to take Cher to hospital if something was wrong with her.
The defence case
34 At trial, the defence relied upon the appellant's version of events contained in his visually recorded interview with police. The appellant did not give evidence nor adduce any evidence in his defence. The appellant's statements in the record of interview were to the following effect. On the night of Friday 7 and early morning of Saturday 8 March 2014 the appellant and Cher consumed a significant quantity of beer. Cher fell asleep about 6.00 am on Saturday morning. From about 11.00 am to 5.00 pm on Saturday the appellant, Susan, Helen and Cher were at the appellant's house. At about 5.00 pm, they dropped Susan off at her home and the rest of them set off for George's. During the day, Cher was drinking with Susan, laughing and dancing and was quite normal throughout the day. No-one at any stage mentioned taking Cher to hospital or getting an ambulance. When they arrived at George's place, Cher was embarrassed and she did not want George to see her in the (drunken) state she was in. She did not handle alcohol very well. Eventually Cher ended up on the floor of George's house where she, the appellant and Helen slept. At 4.30 am, George 'gets up and sees the three of them asleep in the lounge and comments that Cher sounds fine'. At 6.00 am George left for work. The appellant got up at 7.00 am and went to his car to get some Valium. He noticed that some of his insulin was missing. He took a couple of Valium. It was only when Jeffrey arrived and lifted Cher off the floor that Cher's breathing changed. It was at this point that the appellant realised there was a problem with Cher. He said to Jeffrey that Cher had taken insulin. Until that time, nobody (the appellant, Helen, Susan, George or Pauline) knew there was a problem. The appellant also told a doctor at the Northam Hospital that he thought Cher had taken insulin.
Preliminary matters
35 It was accepted by both parties that, by virtue of the State's reliance on the duty in s 262, the prosecution was required to prove criminal negligence as an element of the offence of causing grievous bodily harm. There is Queensland authority to that effect: R v Young [1969] Qd R 417. In that case the court held that the equivalent provision of the Queensland Criminal Code (then s 285) applied to both deliberate and negligent breaches of the duty to provide necessaries. This is the case notwithstanding the absence of any express reference to the notion of negligence, or its equivalent, in contrast to s 265 and s 266 of the Code.
36 In relation to deliberate breaches of the duty in s 262, the defences in s 23A (unwilled acts) and s 23B (accident) of the Code apply. In the case of accident in the context of s 297, where the relevant 'event' is grievous bodily harm, the prosecution must prove that the accused intended to cause grievous bodily harm or foresaw grievous bodily harm as a possible outcome (the subjective standard) or that an ordinary person in the position of the accused would reasonably have foreseen grievous bodily harm as a possible outcome (the objective standard): Hill v The State of Western Australia [2015] WASCA 17.
37 In the event of a negligent breach of s 262, s 23A and s 23B of the Code do not apply. Instead, the prosecution must prove that the failure to perform the duty to provide the necessaries of life was criminally negligent: Young (443).
The trial judge's directions
38 The trial judge directed the jury on the elements of the s 297 offence in terms that the State must prove beyond reasonable doubt first, that Cher suffered grievous bodily harm; second, that the appellant caused the grievous bodily harm to Cher; and third, that the grievous bodily harm suffered by Cher was unlawful.
39 The trial judge then directed the jury that the State's case was that the appellant caused grievous bodily harm to Cher by failing to comply with his duty to provide her with the necessaries of life, in this case, medical assistance (ts 745).
40 Turning to the third element of the offence, the trial judge directed the jury that grievous bodily harm is unlawful unless it is authorised, justified or excused by law. She then directed that the alleged failure to provide the necessaries of life was relevant to both causation and whether the grievous bodily harm was caused unlawfully. The trial judge listed the elements of s 262 as follows:
The first of them is that [the appellant] had charge of Cher. And a person takes charge of another if he voluntarily assumes responsibility for taking care of that person.
Secondly, the prosecution must prove beyond reasonable doubt, that Cher was unable by reason, in this case of sickness, to withdraw herself from such charge. So that is, because of her sickness she was unable to assume responsibility for her own care.
Thirdly, the prosecution must prove beyond reasonable doubt that Cher was unable to provide herself with the necessaries of life … The necessaries of life will depend on the circumstances, but in this case the State is saying it's professional medical attention and treatment. …
Fourthly, the State must prove beyond reasonable doubt that [the appellant] failed to provide Cher with the necessaries. Fifthly, the prosecution must prove beyond reasonable doubt that [the appellant's] failure to provide Cher with the necessaries of life resulted in, that is caused her grievous bodily harm. … it doesn't have to be the sole cause, but the State must prove that the failure to provide the necessaries of life was a significant or substantial cause of her grievous bodily harm.
And sixthly, finally, the prosecution must prove that [the appellant's] failure to comply with his duties to provide Cher with the necessaries of life was a criminally negligent act. That is, the prosecution must satisfy you beyond reasonable doubt, that his omission involved such a departure from the reasonable standard of care for his 18-year-old daughter as to amount to grave moral guilt, deserving of criminal conviction and punishment.
The State doesn't have to prove that [the appellant] appreciated or knew that he was being criminally negligent. But they must prove his omission to obtain medical assistance was conduct that fell so short of the standard of care which a reasonable person would provide, that in all the circumstances of the case including [the appellant's] age, experiences, knowledge and factors known to him the breach was so serious, so grave a breach in falling short of that standard of reasonable care, that it amounts to gross or criminal negligence, justifying a criminal conviction.
So the criminal standard of negligence is more serious than the civil standard of negligence. And you may be familiar with that from civil cases where people do things like trip over a step that hasn't been repaired, or something like that.
In those cases it's simply a situation where someone has failed to exercise reasonable care and that what follows is foreseeable. But in a criminal standard of negligence the breach is so grave that it amounts to gross or criminal negligence justifying a criminal conviction. And this is a matter for you to determine (ts 746 - 747).
41 The trial judge also provided the jury with a jury aide listing all the elements the State was required to prove beyond reasonable doubt to convict the appellant of the offence of causing grievous bodily harm.
42 At no stage did the trial judge direct the jury that grievous bodily harm or more broadly, serious harm, must be a reasonably foreseeable possible outcome of the accused's failure to provide the necessaries of life (medical assistance) to Cher. Further, the trial judge did not direct the jury on the defence of mistake.
Ground 1 - reasonable foreseeability
43 In oral submissions it was contended on behalf of the appellant that the notions of 'breach' of duty and 'criminal negligence' were separate and distinct and that the requirement of reasonable foreseeability applied to both. That reflects a misunderstanding of the legal framework.
44 Section 262 identifies both the duty and the breach. The relevant duty is to provide the necessaries of life. The breach is the omission (failure) to provide the necessaries of life. Where the fault element is a negligent rather than a deliberate failure, the failure (that is the breach) must be criminally negligent. If reasonable foreseeability is a requirement, it can only be in relation to whether, in all the circumstances, the breach can be characterised as criminally negligent.
45 Reasonable foreseeability is a requirement of the civil law tortious action in negligence. In that context, it applies at the duty, breach and causation stages of the tort and is satisfied if the risk of the harm suffered is real, not far-fetched or fanciful: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 [60]. That is the test that applies to the reasonable foreseeability requirement in the defence of accident in s 23B of the Code.
46 Little thought had been given by the appellant's legal advisers to the test of reasonable foreseeability in the context of criminal negligence. As far as I am aware, that issue has not been the subject of judicial consideration. My preliminary view is that, having regard to the wide variety of circumstances in which the duty may potentially arise, it may, but not necessarily must, be a (minimum) requirement. However, it is not necessary to determine the question in this case. What is clear beyond argument is that any requirement of reasonable foreseeability can be established by proving knowledge of, or recklessness with respect to, the risk of the failure to provide the necessaries of life resulting in serious harm to the person in the defendant's charge.
47 The central issue in the appellant's trial as litigated was whether the appellant's adult daughter was, and continued to be, in the appellant's 'charge' from around 4.30 pm on Saturday 8 March 2014. The appellant's defence went to that issue. On the version of events given in the appellant's record of interview, Cher was not in his charge until Jeffrey arrived on Sunday morning, when of course, she was immediately taken to hospital; she was not in his charge until that time because she was an adult who was able to look after her own requirements. In addition, the appellant's knowledge of the fact, cause and extent of Cher's sickness was also directly relevant to the issue of criminal negligence.
48 That twin relevance is reflected in the following directions of the trial judge:
In this case the prosecution say that [the appellant] took charge by[,] at a time of about 4.30 pm on the Saturday[,] knowing that Cher had taken a drug of a type such as insulin that would require her to receive medical assistance. So it isn't the State's case that Cher was affected only by alcohol and perhaps one or two Stilnox tablets. It's the State's case that [the appellant] knew that she'd taken a drug such as insulin, knowing that that meant that she should require medical assistance.
And I repeat in relation to that case the State's case is a circumstantial one. They ask you to consider the evidence you accept, and from that evidence reach the conclusion that the only reasonable or rational inference was that [the appellant] had taken charge of Cher knowing that Cher had taken insulin and would require medical assistance. And the defence has said to you that on the evidence you should accept that's not the only rational or reasonable inference.
Okay. And the second of those matters - those six matters that you're going to have to consider carefully is whether you're satisfied beyond reasonable doubt that even if you find that [the appellant] had taken charge in the way that the State allege[s], whether his failure to comply with duties to provide Cher with medical assistance was a criminally negligent act.
And I repeat that the prosecution must satisfy you beyond reasonable doubt that his omission involved such a departure from the reasonable standard of care for Cher as to amount to grave or serious moral guilt deserving of criminal conviction and punishment (ts 748).
49 It was also part of the State's case that the appellant was aware of the dangers of Cher taking insulin (ts 759). The trial judge made extensive references to the evidence relating to Cher's physical condition from around 4.30 pm on Saturday 8 March 2014 and the appellant's knowledge of (1) her condition; (2) the cause of her condition; and (3) the dangers to Cher.
50 In the context of explaining the defence case, the trial judge said:
[I]t's been put to you by the defence that [the appellant] was not criminally negligent and the State has not proven he knew that Cher had ingested insulin from a time of about 4.30 on the Saturday continuing through to the next morning and that you should not be satisfied beyond reasonable doubt that he failed to provide the necessaries of life (ts 755).
51 The point was made again at ts 756. In the circumstances of this case, the issue of reasonable foreseeability was entirely subsumed by the requirement that the jury had to be satisfied beyond reasonable doubt that the appellant had knowledge of all relevant matters. There is no merit in ground 1. Accordingly, leave to appeal should be refused.
Ground 2- mistake
52 The appellant's counsel at trial (not counsel in the appeal) agreed with the trial judge that mistake should not be left to the jury (ts 726 - 727). Trial counsel was correct.
53 The appellant claims in the appeal that, based on the appellant's record of interview, there was evidence that he held an honest and reasonable but mistaken belief that Cher was not in need of medical attention until Jeffrey arrived and lifted Cher off the floor at George's house.
54 The appellant had the evidentiary burden of raising s 24. The evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the accused could honestly and reasonably but erroneously believe that Cher was not in need of medical assistance until Jeffrey arrived at George's house. The State's case as litigated at trial and as directed by the trial judge excluded any scope for the application of the defence of mistake. In order to convict the appellant, the jury had to be satisfied beyond reasonable doubt that by around 4.30 pm on Saturday 8 March 2014 the appellant knew that Cher had ingested insulin, knew of the risks of ingesting insulin and knew that Cher required medical assistance. There is no merit in ground 2. Accordingly, leave to appeal on that ground should be refused.
Conclusion
55 Leave to appeal should be refused on both grounds. Accordingly, the appeal is taken to have been dismissed.
56 BUSS JA: I agree with McLure P.
57 NEWNES JA: I agree with McLure P.
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