R v Barrett (No 3)

In this matter, the accused, Barrett, was charged with two counts of manslaughter. The first count related to the death of Tully, the child of Ms Sarah Kerr and Mr Matthew Kavanagh, who died shortly after birth due to hypoxia caused by placental abruption. The second count involved the death of Ryan, the child of Ms H and her partner, who died from cardiac arrest due to total occlusion of the umbilical cord. The court was required to determine whether the accused was acting as a midwife, whether her conduct during the antenatal period and labour caused the deaths, and whether her conduct amounted to criminal negligence. The court concluded that the accused was indeed acting as a midwife, and thus owed a duty of care to both babies. However, the court found that the prosecution had failed to prove that the accused's conduct caused the deaths or that she was criminally negligent. Consequently, the accused was found not guilty on both counts.

The court held that, while the accused's conduct fell short of that expected of a reasonably competent midwife, it did not reach the level of gross or culpable negligence required for a manslaughter conviction by criminal negligence. The court accepted that the accused had described herself as a birth advocate, which the mothers and their partners had relied upon. The court found that the accused's actions during the labours were deliberate, and while there were signs of potential problems, it could not be established that earlier transfer to hospital would have saved the babies' lives. Therefore, the court held that the accused was not criminally negligent and found her not guilty on both counts of manslaughter.

The court's decision was based on the lack of evidence to prove causation and criminal negligence beyond reasonable doubt. The court acknowledged that the accused's conduct was less than competent, but it did not merit criminal sanction. The court did not find the out-of-court statements made by the accused to be reliable due to their self-serving nature and lack of formal context. The court's ruling highlights the high threshold required for a manslaughter conviction by criminal negligence and the importance of proving both causation and the requisite level of negligence.