Dowling v The Queen - [2020] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Dowling v R [2020] NSWCCA 290
Hearing dates: 14 September 2020
Decision date: 06 November 2020
Before: Basten JA at [1];
Price J at [97];
Wright J at [98]
Decision:
(1) Grant the applicant leave to appeal from her conviction in the District Court on the charge of unlawfully killing Luke Doyle contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – conviction obtained following trial by judge-alone
CRIME – appeals – appeal against conviction – manslaughter conviction – whether conviction unreasonable or unsupported by the evidence – time of death – whether established beyond reasonable doubt that deceased was alive when the applicant drove him away from others – Criminal Appeals Act 1912 (NSW), s 6(1)
CRIME – manslaughter – gross negligence – death caused by acute multi-drug toxicity – oxycodone and benzodiazepine consumption – death occurred following voluntary assumption of duty of care – deprivation of chance of survival whilst the deceased was helpless – state of mind of applicant in assuming his care – Crimes Act 1900 (NSW), s 18(1)(b)

Legislation Cited:
Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:
Bell v R [2017] NSWCCA 207
Burns v The Queen (2012) 246 CLR 344; [2012] HCA 35
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Jones v United States of America 308 F 2d 307 (DC Cir, 1962)
Nydam v The Queen [1977] VR 430
R v Taktak (1988) 14 NSWLR 226

Category: Principal judgment
Parties: Tracy Lee Dowling (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Marr (Applicant)
Ms C Curtis (Respondent)
Solicitors:
McGowan Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/311099
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 367

Date of Decision:

06 May 2018

Before:

Lerve DCJ

File Number(s):

2016/311099

Judgment

BASTEN JA: On the night of 12/13 March 2012, Luke Doyle, Tracy Dowling and a third person ingested oxycodone at the house of a friend in Young in central New South Wales. At about midnight, Luke Doyle, who had become somnolent and had vomited, was placed in Ms Dowling’s utility. There was talk amongst those present of taking Mr Doyle to hospital. However, Ms Dowling drove to her home on the other side of Young. She left Mr Doyle in the vehicle, entered her home and went to bed. Mr Doyle was discovered on the ground beside the vehicle in the early hours of the morning by Ms Dowling’s mother when she returned from a night shift at a local aged care centre. Mr Doyle was dead at that time.
Ms Dowling was charged by the Director of Public Prosecutions and went to trial on an indictment containing one charge, namely that she did unlawfully kill Luke Doyle, pursuant to s 18(1)(b) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dowling v The Queen

Details

AGLC: Dowling v The Queen [2020] NSWCCA 290
Case: [2020] NSWCCA 290
Decision Date: 06 November 2020

CaseChat Overview and Summary

Dowling was convicted of manslaughter following a trial by a judge-alone and appealed against that conviction. The appeal centred on whether the conviction was unreasonable or unsupported by the evidence, specifically regarding the time of the deceased's death and whether it was established beyond reasonable doubt that the deceased was alive when Dowling drove him away from others. The appeal was heard in the Court of Criminal Appeal, which was required to consider the statutory provisions of the Criminal Appeals Act 1912 (NSW) and the relevant sections of the Crimes Act 1900 (NSW).

The court had to determine if the conviction was unreasonable or unsupported by the evidence, focusing on whether the deceased was alive when Dowling drove him away. It was crucial to establish the time of death and whether the prosecution proved beyond reasonable doubt that the deceased was alive at that moment. The court also needed to assess whether the state of mind of Dowling, in assuming a voluntary duty of care, constituted gross negligence manslaughter under the Crimes Act 1900 (NSW).

The Court of Criminal Appeal found that the evidence did not establish beyond reasonable doubt that the deceased was alive when Dowling drove him away. The court considered that the time of death was not clearly determined, and the prosecution failed to prove that the deceased was alive at the critical moment. Additionally, the court held that Dowling's assumption of a voluntary duty of care did not amount to gross negligence. Consequently, the Court of Criminal Appeal quashed the conviction and ordered a retrial.

Orders