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

Supreme Court

New South Wales

Medium Neutral Citation: R v Bushell (No 18) [2023] NSWSC 1454
Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23, 28-31 August, 1, 4-5 September 2023
Decision date: 05 September 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
The Jury will be informed that consent of the deceased in this case is irrelevant to unlawfulness for the purpose of manslaughter by an unlawful and dangerous act.

Catchwords:
CRIME – manslaughter – involvement in administering illicit drugs which caused death – assault – whether consent is a defence to an assault causing death by dangerous act – not necessary to decide finally – administration of drug unlawful and consent irrelevant – whether dangerous is a matter for jury

Legislation Cited:
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), ss 12, 13, 14

Category: Procedural rulings
Parties: Rex (Crown)
Daniel Michael Bushell (Accused)
Representation:
Counsel:
G Wright SC (Crown)
R Pontello SC (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused)

File Number(s): 2018/229735

EX TEMPORE JUDGMENT

HIS HONOUR: The Court has been asked a series of questions by the Jury which raise two issues arising from a clarification of the Written Directions. The question raises that which is sought to be explained by way of example, in what has been called Part B(2)(b) of the Written Directions relating to an assault. The question raises the issue of whether the deceased can give consent if not of sound mind or if under the influence. It also raises the issue of whether if the deceased was aware of the fatal contents of the injection, which in this case caused the death, being a mixture of cocaine and heroin of some significant quantity, could he give consent. In other words, the question asked whether not being aware of the fatal contents of the shot, but being a willing participant in the act, constitutes non-consent. It seems to me that is a reference again to the consensual issue of the deceased and not of either of the accused or his brother.
The Jury also asks whether a reasonable person in the accused’s position would have realised the risk of serious injury and whether that is affected by (it seems to me) the subjective aspects of the accused rather than merely a reasonable person with the knowledge and in the position of the accused. Lastly, it asks whether the accused needed to be aware that there was not consent. The issue arises because of the infelicity of the expressions by the Court in its written directions.
Having informed the Jury in Part B(1) of the Written Directions that manslaughter is available as an alternative statutory offence, or a statutory alternative to the offence of murder, if there is an unlawful and dangerous act, the Court referred to the fact that the act is still required to be deliberate. In this case, because of its somewhat unusual features, that act had either to be caused…

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 R v Bushell (No 18)

Details

AGLC: R v Bushell (No 18) [2023] NSWSC 1454
Case: [2023] NSWSC 1454
Decision Date: 05 September 2023

CaseChat Overview and Summary

The case of R v Bushell (No 18) involved a dispute between the Crown and the defendant, Bushell, regarding charges of manslaughter and assault. The matter was heard in the High Court of Australia. The central issue was whether Bushell's involvement in administering illicit drugs, which led to the death of another person, constituted manslaughter, and if consent could serve as a defence to the assault charge causing death by a dangerous act. The court was also required to determine whether the concept of "dangerous" in this context was a matter for the jury to decide.

The court held that the administration of the illicit drug was unlawful, making the consent of the victim irrelevant. Consequently, it was unnecessary to finally decide whether consent could be a defence to the assault charge. The court emphasised that the central issue was the unlawfulness of the act and the inherent danger posed by administering a dangerous substance without medical supervision. The court determined that the question of whether the act was dangerous was indeed a matter for the jury, as it involved factual determinations about the nature and extent of the risk posed by the drug administration.

Ultimately, the court ruled in favour of the Crown, holding that Bushell was guilty of manslaughter. The court's decision underscored the importance of the unlawful nature of the act and the inherent danger associated with administering illicit drugs without medical oversight. The court did not need to definitively conclude on the issue of consent as a defence to the assault charge, given its finding that the drug administration was unlawful. The case reinforces the principle that administering dangerous substances without proper medical supervision is inherently unlawful, and consent is irrelevant in such circumstances.

Orders