R v Iby

[2005] NSWCCA 178

Reported Decision: 154 A Crim R 55
63 NSWLR 278

New South Wales

Court of Criminal Appeal

CITATION:	R v David John IBY [2005] NSWCCA 178
HEARING DATE(S):	9 March 2005
JUDGMENT DATE:	9 May 2005
JUDGMENT OF:	Spigelman CJ at 1; Grove J at 80; Bell J at 81
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - MANSLAUGHTER - born alive rule - meaning of words "born alive" - whether baby breathing with assistance of ventilator is 'alive' - whether the existence of a heartbeat is sufficient for baby to be born alive - whether evidence of brain function is necessary for baby to be born alive - whether statutory definition of 'death' in s33 of the Human Tissue Act is relevant to definition of life for purposes of born alive rule.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Death (Definition) Act 1983 (SA) Human Tissue Act 1983 (NSW) s33 Human Tissue Act 1985 (Tas) Human Tissues Act 1982 (Vic) Human Tissues Transplant Act 1979 (NT) Transplantation and Anatomy Act 1979 (Qld) Transplantation and Anatomy Act 1978 (ACT)
CASES CITED:	Ansett Australia v Dale (2001) 22 NSWCCR 527; [2001] NSWCA 314 Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237 Brock v Kellock (1861) LJ 30 Ch 498; 3 Giff. 58 C v S (1988) QB 135 Commonwealth v Cass 467 NE 2d 1324 (Mass, 1984) Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Hughes v State, 868 P2d 730 (1994) John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Keeler v Supreme Court of Amador County, 2 Cal.3d 629 (1970) Lange v Australian Broadcasting Corp (1997) 189 CLR 520; [1997] HCA 25 People v Chavez, 77 Cal.App.2d 62 (1947) People v Greer, 402 NE.2d 203 (Ill, 1980) People v Guthrie, 273 N.W.2d 775 (Mich, 1980) People v Hall, 158 A.D.2d 69 (NY, 1990) R v Boulton (1833) 5 Car & P 537; 172 ER 1088 R v Brain (1834) 6 Car & P 349; 172 ER 1272 R v Enoch (1933) 5 Car & P 539; 172 ER 1089 R v F (1996) 40 NSWLR 245 R v Handley (1875) 13 Cox CC 79 R v Hutty [1953] VLR 338 R v McDonald (unreported, 4 March 1999, Crown Court of Northern Ireland) R v Poulton (1832) 5 CAR & P 329; 172 ER 997 R v Pritchard (1901) 17 TLR 310 R v Sims (1601) Goulds 174; 75 ER 1075 R v Trilloe (1842) Car & M 650; 174 ER 674 R v West (1848) 2 Cox CC 500; 2 Car & Kir 784; 175 ER 329 R v Wright (1841) 9 Car & P 754; 173 ER 1039 Rance v Mid Downs Health Authority (1991) 1 QB 587 Singelton v State, So.2d 375 (Ala, 1948) State v Horne, 319 S.E.2d 703 (SC, 1984) Wisconsin v Cornelius, 448 N.W.2d 434 (Wis, 1989)
PARTIES:	David John Iby (aka Somons) (Applicant) Crown (Respondent)
FILE NUMBER(S):	CCA 2004/1775
COUNSEL:	Mr R Hulme SC (Applicant) Mr R Cogswell SC (Crown)
SOLICITORS:	S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0312
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ

2004/1775

SPIGELMAN CJ
GROVE J
BELL J

Monday 9 May 2005

REGINA v David John IBY

Facts

The Appellant was erratically driving a stolen car at excessive speed when he collided head on with a car driven by a woman who was 38 weeks pregnant. She was taken to hospital, an emergency caesarean was performed and a male infant in poor condition was delivered. The infant was pale and limp, but had a heartbeat. The infant maintained a heartbeat and continued to breathe, with the assistance of mechanical ventilation, for approximately two hours after delivery. Approximately an hour after delivery brain tests showed that there was little or no electrical activity in the baby’s brain. Approximately two hours after the baby was delivered it was pronounced dead when a heartbeat could not be detected. The Appellant submitted that the baby was not born alive, and therefore was not capable of being the subject of a manslaughter charge.

Held

A.

There is no single test of what constitutes ‘life’ for the purposes of the born alive rule. [39], [55], [78], [79]

a) The rule is satisfied by any indicia of independent life. [45], [55], [57], [78], [79]
b) Whether the rule has been satisfied is a question of fact for the tribunal of fact. [39], [78], [79]


R v Sims (1601) Goulds 174, 75 ER 1075; R v Boulton 5 Car & P, 172 ER 997; R v Hutty [1953] VLR 338; Brock v Kellock (1861) LJ 30 Ch 498 considered .

B.

Evidence of a child having breathed independently of the mother, including where the child’s breathing is assisted by mechanical respiration, is evidence that a child was born alive. [45], [46], [49], [61], [78], [79]

R v Handley (1874) 13 Cox C C 79; Rance v Mid Downs Health Authority (1991) 1 QB 587; C v S (1988) QB 135; R v McDonald (unreported, 4 March 1999, Crown Court of Northern Ireland); People v Hall 158 A.D.2d 69 considered.

C.

Evidence of a child’s heart beating after delivery is sufficient evidence that a child was born alive. [59], [61], [78], [79]

R v Enoch (1933) 5 Car & P 539, 172 ER 1089 ; R v Wright (1841) Car & P 754; R v Pritchard (1901) TLR 310 considered; Brock v Kellock (1861) LJ 30 Ch 498 applied.

D.

The definition of death in s 33 of the Human Tissues Act 1983 does not change the definition of life for the purposes of the common law born alive rule, nor should the born alive rule be adapted so as to be consistent with the statutory definition of death. [71], [77], [78], [79]

Lange v Australian Broadcasting Corp (1997) 189 CLR 520; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 applied. Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 considered.

2004/1775

SPIGELMAN CJ
GROVE J
BELL J

Monday 9 May 2005

REGINA v David John IBY

Judgment

1 SPIGELMAN CJ: On 4 April 2002 the Appellant was driving a stolen vehicle in Fairfield, Sydney, at excessive speed and in an erratic manner. After colliding with a car travelling in the same direction the Appellant’s vehicle crossed the double white lines and collided head-on with a car driven by Mrs My Nghi Vongratsavai, who was 38 weeks pregnant. Following her arrival at Liverpool Hospital, an emergency caesarean was performed on Mrs Vongratsavai and a male infant in poor condition was delivered, subsequently named Mathew Joseph Vongratsavai. The delivery occurred at 11.48am. Mathew was pronounced dead exactly two hours later at 13.48pm.

2 The Appellant was charged with a number of offences including, manslaughter and an alternative count of driving in a manner dangerous causing death, both in the aggravated and non-aggravated form. He pleaded not guilty to these charges. He elected for a trial by judge alone, pursuant to s132 of the Criminal Procedure Act 1986. Ellis DCJ found the Appellant guilty of manslaughter.

3 Where an offence involving killing or death of a newly born child arises as an element of a criminal offence, there is a long-established common law rule that the element cannot be established unless the baby was “born alive”. The issue that arises in this case is what is meant by the words “born alive”?

4 It was the Crown case, both at first instance and in this Court, that Mathew was fully issued forth from his mother and lived independently of her for two hours before he died, albeit supported by mechanical respiration. The baby was, it was submitted, a person within the law.

5 The Appellant’s case was that the baby was not born alive and did not live independently. The primary basis of the submission was the lack of, or paucity of, evidence that the baby breathed independently. The Appellant submitted that the presence of a heartbeat, which did exist, was not enough for the baby to have been born alive for purposes of the common law rule. Alternatively, in this Court, the Appellant relied on the absence of or paucity of evidence of the baby’s brain function. Accordingly, it was submitted, the Appellant did not cause the death of another person.

6 I will set out below the objective medical evidence of what was detected or observed with respect to the baby during the two hours after the caesarean section. I will also set out the medical opinion evidence given at the trial.

7 The issues on appeal are stated by the Appellant to be: whether Ellis DCJ correctly directed himself upon the matter of whether the deceased was ever “alive”; whether the possibility that the deceased was already dead upon delivery could be excluded and the sufficiency of evidence relating to this matter.

8 The Appellant was convicted both of manslaughter of Mathew and of the offence of aggravated dangerous driving causing grievous bodily harm to the mother. If the appeal on manslaughter were to be allowed, the Crown seeks to appeal from the alleged inadequacy of the sentence on the dangerous driving charge. It has indicated that it would abandon that appeal if the manslaughter appeal were rejected. It is, as will appear, unnecessary to deal with the Crown appeal, which the Court will record as having been abandoned.

The Decision of the Trial Judge

9 The crucial factual finding of Ellis DCJ, on the basis of the medical evidence, was as follows:

“I find that Mathew did breathe, albeit with the assistance of a respirator, and that his lungs functioned in that they oxygenated his blood. I find that Mathew had a heartbeat for almost two hours after delivery.”

10 On the basis of this finding the issue in the case is a legal one: i.e. for purposes of the “born alive” rule is it necessary that an infant must live independently in a sense other than that which his Honour held to be sufficient?

11 His Honour determined the issue of law adversely to the Appellant.

12 He said:

“[51] … a newborn baby is born alive or lives when it is fully extruded from its mother and is living by virtue of the functioning of its own organs with or without medical stimulus or assistance.
[52] The Court further finds that a newborn is living by virtue of the functioning of its own organs when it breathes with or without assistance or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscle whether or not the umbilical cord has been cut or the placenta is attached and regardless of whether such function has been achieved by medical assistance or stimulus.”

13 His Honour’s finding on the facts, set out above, was that there was both heartbeat and respiration, albeit that the respiration was assisted. On his Honour’s legal analysis, either of these matters would lead to the conclusion that the baby was born alive.

14 His Honour concluded that Mathew Vongratsavai lived independently of his mother for a period of approximately two hours. He died from injuries suffered in utero, arising from the partial abruption of the placenta suffered by his mother.

15 The objective medical evidence before his Honour indicated the following:

· Immediately after Mathew’s birth a heartbeat was audible by stethoscope at an estimated heart rate of 60.

· Manual cardiac massage commenced at less than one minute after birth and continued until 10 minutes. A heart rate was detected at one minute, but no heart rate was detected at five minutes or seven minutes.

· 10 minutes after birth, and again at 12 and 20 minutes, a heart rate of 100 was detected. Later a heartbeat of 112 was detected.

· Blood pressure was low but recordable, indicating blood circulation.

· Immediately after birth the baby was intubated and artificial respiration commenced.

· 12 minutes after birth the baby was transferred to a humidity crib and to a machine ventilator.

· There was no pause between manual and machine ventilation and the baby never breathed unassisted.

· Approximately an hour after birth an electroencephalogram (EEG) was used to measure electrical activity in the baby’s brain. An isoelectric or flat trace was indicated.

16 The trial judge had a conflict of medical evidence before him between Dr Jacqueline Stack, a neonatologist and paediatrician, who took over care of Mathew immediately after delivery and Professor John Hilton, an Associate Professor of Pathology at the University of Sydney, who gave evidence for the accused.

17 His Honour summarised the medical evidence:

“Dr Stack held strongly to the view that Mathew lived after delivery and until shortly before she pronounced life extinct at 1.48pm. In her view it is not necessary for all organs to be functioning in order for a child to be alive. She gave examples of children born with congenital malformation, including missing organs and in some cases even a missing cortex. Anencephalic babies (those born without a cortex) have, in her personal experience, survived for up to five days without a functioning cortex. In her medical opinion these babies are born alive and live for a short period.
Dr Stack opined that life existed whenever there was a heart rate and circulation. It was in her opinion that unassisted breathing was not a pre-requisite to the existence of life.
…
Associate Professor Hilton gave evidence that the medical profession is divided on the issue of what is necessary to establish that life exists in a foetus/new born. He indicated that there was one school of thought that required a child to physiologically fend for itself without artificial support such as a respirator. That there was no evidence of spontaneous breathing led the Professor to opine that that cast doubt in his mind that Mathew was born in a living state.
I suggested to Associate Professor Hilton that if spontaneous breathing was required before a new born could be regarded as alive then no new born who had been placed on a ventilator, as part of good medical management, would be alive until the ventilator was turned off and they breathed unassisted. His response was ‘That is a view. And it is a view which I’ve expressed. I’m not necessarily saying that I very firmly adhere to this view but it is a legitimate view that is worthy of consideration’.”

18 The thrust of Professor Hilton’s evidence was that the existence of a heartbeat was not a sufficient test of whether a person was alive. He proposed a test of “independent existence” which he explained as “the child being able to … physiologically fend for itself without artificial support such as being on a respirator”. In the context of this case the test required “independently functioning breathing”, which was not established. The presence of a heartbeat was insufficient.

19 His Honour concluded:

“I accept and adopt the opinion Dr Stack that Mathew Vongratsavai lived independently of his mother for a period of approximately two hours.”

Submissions on Appeal

20 The primary thrust of the Appellant’s written submissions was to repeat the submissions made to Ellis DCJ to the effect that beating of the heart was insufficient and that unassisted breathing was also required to be present. The Appellant challenged his Honour’s test, which accepted that any sign of life was sufficient and submitted that his Honour misdirected himself or, alternatively, that the verdict is unreasonable and cannot be supported. I will deal with these submissions below under the heading “The Born Alive Rule”.

21 In oral submissions, the Appellant placed primary emphasis on the proposition that a person cannot, in the eyes of the law, be both “alive” and “dead” at the same time and relied on the statutory definition of death in s33 of the Human Tissue Act 1983, which provides:

“33 For the purposes of the law of New South Wales, a person has died when there has occurred:
(a) irreversible cessation of all function of the person’s brain; or
(b) irreversible cessation of circulation of blood in the person’s body.”

22 In this Court, but not before the trial judge, the Appellant relied on the absence of adequate evidence of brain activity. As noted above the EEG taken an hour after birth indicated a flat line. However, the EEG did not measure subcortical structures underneath the cortex or in the brain stem. Dr Stack expressed the opinion, albeit in a tentative manner, that the presence of a heartbeat and of blood circulation indicated that some part of the brain stem was functioning. There was also evidence that 22 percent of children survived after an EEG that indicated a flat line.

23 Although there was some evidence of brain function after birth, it was not of so definitive a character as to overcome the possibility that a miscarriage of justice has occurred. If brain activity had to be established, which I do not believe to be the case, the outcome of this appeal could have been different.

24 The Appellant submits that the definition of death in the Human Tissue Act should be adapted to the born alive rule with the result that evidence of brain functioning is an essential part of the Crown case. I will deal with these submissions below under the heading “The Proposed Brain Death Rule”.

The Born Alive Rule

25 The “born alive” rule can relevantly be traced back to the 17th century. (See Regina v Sims (1601) Goulds 174, 75 ER 1075; Sir Edward Coke, 3 Institutes, (1797) at 50; Blackstone’s Commentaries, (13th ed) (1809) at 197-198; Forsythe, “Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms”, (1987) 21 Valparaiso Uni L Rev; Halsbury’s Laws of England (4th ed) Vol II (1) par 427; Smith and Hogan, Criminal Law (7th ed) (1992) at 328-330. There is a small but significant body of case law, related texts and articles which I will discuss below.

26 The born alive rule was applied in a number of distinct areas of the common law, including, relevantly, the law of homicide, where it had considerable practical significance in distinguishing the misdemeanour of procuring an abortion from the felony of homicide. (See, e.g. Stephen A History of the Criminal Law of England Macmillan, London, (1883) Vol III p2.)

27 The rule consists of two distinct components. First, that the foetus must have completely left its mother’s body (although the umbilical cord did not have to be cut, see R v Trilloe (1842) Car & M 650, 175 ER 674). Secondly, the child must be alive at or after birth, in that sense, had occurred. The case law does not always clearly distinguish between the two elements. This appeal is concerned with the second limb of the rule.

28 In Australia, the rule was stated by Barry J in his Honour’s charge to the jury in R v Hutty [1953] VLR 338 at 339 (to which Ellis DCJ referred):

“Murder can only be committed on a person who is in being, and legally a person is not in being, until he or she is fully born in a living state. A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord: that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or manslaughter or infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.”

29 The rule remains the law in Australia and has been applied in this Court. (See R v F (1996) 40 NSWLR 245 esp at 247-248 per Grove J.)

30 There is a body of commentary on the born alive rule upon which I have drawn to identify the relevant case law and to understand the development, scope and purpose of the rule. (In addition to the references set out above, I have had regard to Taylor, Medical Jurisprudence (7th ed) John Churchill, London 1861; Atkinson, “Life, Birth and Live Birth” (1904) 20 LQR 159; Davies, “Child Killing in English Law” (1937) 1 Mod L Rev 203; Barry, “The Child en Ventre sa Mère” (1941) 14 ALJ 351; Winfield, “The Unborn Child” (1942-1944) 8 Cambridge LJ 76; Glanville Williams, The Sanctity of Life and the Criminal Law Forbes, London 1958 pp 19-23; Louise Westerfield, “The Born Alive Doctrine: a Legal Anachronism” (1976) 2 Southern Uni L Rev 149.)

31 The law presumed that all children were born dead and the fact of live birth had to be established by evidence. (See Taylor (1861) at 411; Atkinson (1904) at 134; Forsythe (1987) at 590.) Usually such proof was not difficult, but problems arose when a child died soon after birth and there was no, or little, direct evidence of what had happened at or immediately after birth.

32 The born alive rule is based on two anachronistic, indeed antiquated, factors. First, the primitive state of medical knowledge at the time that it was adopted. Second, the related fact that birth was a process fraught with risk until comparatively recently and, accordingly, there was a high probability that a stillbirth had natural causes.

33 At the time the rule was adopted, there were considerable difficulties in establishing that the foetus was alive at the time of the allegedly criminal act, and that the child would have lived but for the act. (See Commonwealth v Cass, 467 N.E 2d 1324 (Mass, 1984) at 1328; Taylor supra at 411; Winfield supra at 78 referring to a 1348 case and to Staunford’s Plees del Coron published in 1557; Forsythe supra at 575-576 and fn 58.)

34 The rudimentary state of medical knowledge is reflected in observations made in 1904 (Atkinson (1904) at 142), in the most thorough review of the authorities until that time:

“To establish the existence of a legal personality ‘occular demonstration’ of a physiological token of vitality, however curtailed must be exhibited, after a child is born into the world … Should the child soon die, someone (often it is not a medical man) must be present and observe both the birth and a subsequent clear vital act, otherwise there can be no reliable evidence of live birth, for an expert can here certify few opinions .” [Emphasis added.]

35 And at 149:

“ … indirect proof of live birth precedent to speedy death is of a nature practically impossible to medical science …” [Emphasis added.]

36 The position is now totally transformed. Information about the vitality of the foetus is now readily available.

37 The second basis for the born alive rule was the prevalence of stillbirths. It is for this reason that the common law developed a presumption that a baby was born dead and evidence was required to prove live birth.

38 Statistics on this matter are not available until well after the born alive rule was adopted. However, the anecdotal evidence is overwhelming and is supported by such quantitative information as is available. Authoritative 19th century texts in medical jurisprudence reported studies that indicated stillbirths comprised some 4-5 percent of all births. (J Chitty, A Practical Treatise on Medical Jurisprudence Vol 1 (1834) p412; Taylor supra at 480-481.)

39 Until this century, statistics did not distinguish stillbirths from infant mortality. In England these figures were first separated in the late 1920’s. At that time about 4 percent of all births were stillbirths. This began to decline in the 1940’s so that in recent decades stillbirths have been only 0.5 percent of total births. (See xsdataset.asp?More=Y&vlnk=7981&All=Y&B2.x=84&B2.y=10. )

40 The case law does not suggest that there is a common law definition of what constitutes ‘life’ for the purposes of the born alive rule. The issue is one of fact for the tribunal of fact, relevantly, in the case of serious crime, the jury. Medical evidence has usually been of central significance. Such evidence has often included evidence of direct observation, as well as inferences drawn from post mortem examination.

41 The evidentiary basis of the born alive rule was indicated as early as 1537 when a court pronounced “crying is but a proof of life”. (See Atkinson supra at 154.) In the earliest modern authority (R v Sims supra at 1076, in which Sir Edward Coke appeared as Attorney General) the court said:

“… for if it be dead born it is no murder for non constat (it does not necessarily follow) whether the child were living at the time of the batterie or not; or if the batterie was the cause of the death, but when it is born living, and the wounds appeare in his body, and then he dye, the batteror shall be arraigned of murder, for now it may be proved whether these wounds were the cause of the death or not , and for that if it be found, he shall be condemned.” [Emphasis added, translation inserted.]

42 Similarly, in R v Boulton (1833) 5 Car & P 537, 172 ER 1088, the judge directed the jury at 998:

“Whether the child was born alive or not depends mainly on the evidence of the medical men.”

43 The analysis of the evidentiary basis of the rule by Forsythe (1987) supra is compelling. (See esp at 564-565, 575-577, 590, 586, 589, 590, 605-507. See also Atkinson supra at 134, 146-150.)

44 As in other cases, the medical evidence in R v Hutty supra at 339 and 342, to the effect that the child lived after being fully extruded, was left to the jury as an issue of fact without a direction of law as to what constituted life.

45 The evidentiary basis of the born alive rule must be kept in mind in order to understand the case law. In each reported case there is a particular constellation of evidence which was relied upon to establish whether or not the particular child was alive at or after birth. The observations made by judges, including directions to the jury, in each case must be understood in the context of the particular evidence in the case. For that reason, the observations and directions are not necessarily reconcilable.

46 As an issue of fact, live birth can be proven by many different overt acts including crying, breathing, heartbeat, etc. The case law does not support the Appellant’s contention that unassisted breathing must exist before a baby can be said to have been born alive.

47 Evidence of breathing independently of the mother will be evidence that a child was born alive. (See R v Handley (1875) 13 Cox CC 79 where there was evidence of “the inflated condition of the lungs”. See also Rance v Mid Downs Health Authority (1991) 1 QB 587 at 621, construing the words “born alive” in a specific statutory context.)

48 In R v Handley, Brett J in a direction to the jury identified a test of “born alive” in terms of “whether it existed as a live child, breathing and living by reason of breathing through its own lungs alone, without deriving any of its living or power of living by reason of its connection with the mother”. However, in that case the medical evidence was directed only to the question of breathing: “the medical opinion came to this, that the child was full born, was born alive, and from the inflated condition of the lungs had lived for an hour or more” (at 80).

49 When Brooke J applied the test in Rance at 621, he drew on the observations of Sir John Donaldson MR in C v S (1988) QB 135 where his Lordship said at 151, with respect to the statutory formulation “capable of being born alive”:

“ … the foetus … would be incapable of ever breathing either naturally or with the aid of a ventilator. It is not a case of a foetus requiring a stimulus or assistance. It cannot and will never be able to breathe.”

In the case before this Court, breathing did occur with assistance.

50 I agree with the observations of Girvan J who, referring to Handley and Rance, said in R v McDonald (unreported, 4 March 1999, Crown Court of Northern Ireland, appeal on other grounds dismissed):

“For my own part I read both Brett J and Brooke J references to breathing through the lungs alone as pointing to a distinction between the case of a foetus still connected to its mother (who breathes for the child) and the case of a baby whose breathing, whether assisted or not, is through its lungs, being the anatomical mechanism through which oxygen passes into the body. Support for this view can be found in the judgment of Sir John Donaldson MR in C v S [1987] 1 All ER 1230 at 1242 where he pointed out in that case that the foetus would be incapable ever of breathing either naturally or with the aid of a ventilator. Many premature babies survive into normal life after a period of assisted breathing and it would nonsensical to suggest that while breathing in this assisted form the child is not alive. Accordingly I reject the arguments that to prove that if a child is capable of being born alive it must be proved that it is able to breath unassisted through its lungs.”

51 Similarly, the Supreme Court of New York rejected a submission that a baby who had collapsed lungs and had immediately been placed on a respirator was not born alive. The Court said in People v Hall 158 A.D.2d 69, 557 N.Y.S.2d 879 (1990):

“Defendant, additionally, appears to advance the novel proposition that someone who requires the assistance of modern medical technology to survive, even temporarily, is not really alive. However, it is unclear whether this theory is to be applied only to the newborn or to all people irrespective of age. Perhaps defendant is suggesting that only those persons who have first been the beneficiaries of good health can be considered alive if they subsequently develop medical problems necessitating technological intervention but that sick babies are not fully alive until they recover or their condition improves both significantly and permanently (Atallia did get better before she developed Hyaline Membrane Disease). In short, defendant seems to claim that although Atallia may not have been completely dead at birth, she was not sufficiently alive to be deemed a ‘person’ under Penal Law 125.00 et seq. This position in untenable. Illness is not equivalent to the absence of life, and the fact that Atallia was very sick at birth scarcely means that she was not alive. Notwithstanding defendant’s concerted attempt to depict her as the victim of a feticide, resulting in a miscarriage or stillbirth, she was, by any reasonable measure, born alive.” [Footnotes omitted.]

52 Post-mortem evidence that a dead child must have breathed is not accepted as determinative. Sometimes the evidence was that a child may have breathed before it was fully born. (See, e.g. R v Poulton (1832) 5 Car & P 329, 172 ER 997; R v Enoch (1933) 5 Car & P 539, 172 ER 1089; Atkinson supra at 140-141; Davies supra at 207.) In other cases the evidence was that children may not breathe for a time after being born alive. (See R v Brain (1834) 6 Car & P 349, 172 ER 1272; Taylor (1861) supra 420-424.) Glanville Williams accepted that proof of breathing was not essential (Williams (1958) supra at pp 21-22).

53 In New South Wales s20 of the Crimes Act 1900 provides that a child is taken to have been born alive if “it has breathed and has been wholly born into the world”. This is a specific provision confined in its application to a trial for murder of the child. There is no warrant for applying this modification of the common law to other crimes.

54 The born alive rule has never encompassed a requirement of viability in the sense of the physiological ability of a newly born child to survive as a functioning being. The case usually cited as authority for this proposition is R v West (1848) 2 Car & P 784, 2 Cox CC 500, 175 ER 329, where the trial judge directed the jury that it could convict of murder where an attempt at abortion had led to a premature birth and the baby died because it was too weak to survive. (See Taylor supra at 413-414, Atkinson supra at 135; Barry supra at 356; Forsythe supra at 569-570.

55 A number of older cases turned on the proposition that a child must have an “independent circulation”. (See, e.g. R v Enoch supra; Atkinson supra 143-144.) This may have been a test referable to first limb of the born alive rule, i.e. whether the child had completely left its mother’s body. See e.g. “before it was fully born, so as to have an independent circulation” (R v Wright (1841) 9 Car & P 754, 173 ER 1039; Davies supra at 208) and independent circulation was described as “the test of separate existence” (R v Pritchard (1901) 17 TLR 310 at 311.) The case law referring to independent circulation also reflected the deficiency of contemporary medical knowledge. The evidence on which it was based derived from the incorrect assumption, no doubt reflected in the medical evidence in each such case, that the mother’s blood flowed through the foetus. (See Atkinson supra at 144-145; Davies supra at 207; Williams (1958) supra at p 20; Forsyth supra at 597-599, esp fn 165, 602-603.) However, insofar as the circulation test was a test of life, these cases suggest that circulation of the blood was sufficient. (See Winfield supra at 79.)

56 Authority is clearly in favour of a conclusion that the common law “born alive” rule is satisfied by any indicia of independent life. There is no single test of what constitutes ‘life’. The position is well stated by one author:

“A child is live–born in the legal sense, when, after entire birth, it exhibits a clear sign of independent vitality; in practice, at least the evanescently persistent activity of the heart.”

(Atkinson supra at 135. Note also the references in Atkinson at 142, quoted in par [33] above, to “a physiological token of vitality, however curtailed” and “a subsequent clear vital act” and see also at 152, 155.)

57 This test of functioning of the heart is also accepted by Glanville Williams Textbook of the Criminal Law (2nd ed) Stevens & Sons London, (1983) at 240 and, in Australia, by Barry supra at 36.

58 The clearest authoritative statement that the born alive rule can be satisfied by any indication of life is the judgment of Vice Chancellor Stuart in a civil case, Brock v Kellock (1861) LJ 30 Ch 498 (also reported in (1861) 3 Giff. 58). His Lordship referred to the evidence of the doctor who attended at the birth. He had felt the birth cord pulsating but could not give evidence that the child had taken a breath. His Lordship rejected the contrary medical evidence that asserted, as a matter of opinion, that in the absence of evidence of breathing after the baby had exited the mother’s body it could not be said that the child was born alive. His Lordship accepted the evidence of the doctor present at the birth and said at 504:

“… In order to prove the existence of animal life, I think that proof of the performance of one clear vital function is enough. I think it is enough to prove pulsation in order to prove the existence of life …”

59 An appeal was dismissed by Knight Bruce and Turner LJJ, who also accepted the evidence of the doctor who attended the birth as conclusive on the issue (supra LJ Ch at 504-505).

60 This is clear authority for the proposition that the beating of the heart is sufficient evidence to establish ‘life’ for the purposes of the born alive rule. It was immediately recognised as authority for that proposition (Taylor supra at 588-590, 929-930). It is also clear authority for the proposition that evidence of respiration is not necessary to establish life after birth.

61 An authoritative contemporary text said that Brock v Kellock affirmed an earlier decision of 1806, i.e. Fisher v Palmer, which I have not been able to locate. In that case, medical evidence that there was a tremulous motion of the lips of the child after birth was accepted as sufficient evidence of life. (See the analysis in Taylor supra at 588-590, 929-930. See also T. R. Beck & J. B. Beck, Elements of Medical Jurisprudence (11th ed) (1860) at 410-411.)

62 This review of the authorities indicates that his Honour was correct to hold that the evidence of heartbeat was sufficient to satisfy the common law born alive rule. His Honour was also correct to reject the Appellant’s submission that a person cannot be born alive unless the person had manifested an ability to breathe without assistance.

63 The born alive rule is, as I have indicated above, a product of primitive medical knowledge and technology and of the high rate of infant mortality characteristic of a long past era. There is a strong case for abandoning the born alive rule completely, as has occurred by statute in many states of the United States and by judicial decision in Massachusetts, South Carolina and Oklahoma. (Commonwealth v Cass 467 N.E.2d 1324 (Mass, 1984); State v Horne 319 S.E.2d 703 (S.C. 1984); Hughes v State 868 P.2d 730 (1994). See Forsythe supra at p683, 605ff.) It has also been modified in some states by removing the requirement of complete separation from the mother’s body. (People v Chavez 77 Cal.App.2d 62 (1947); Singleton v State So.2d 375 (Ala, 1948).) The rule has also been widely criticised in other states, although regarded by some courts as too well entrenched to overrule. (Keeler v Supreme Court of Amador County 2 Cal.3d 629 (1970); People v Guthrie 273 N.W.2d 775 (Mich, 1980); People v Greer 402 NE.2d 203 (Ill, 1980).)

64 The context in which the rule arises for present consideration is a context in which the Appellant wishes to avoid criminal responsibility for manslaughter of a baby which was injured as a late term foetus, indeed was fully developed in perfect condition and within a week or two of actual birth. In the current state of medical technology and with the extremely low rate of stillbirths in the Australian community, the born alive rule, if it is to survive at all, should continue to be applied, as Ellis DCJ did, so that any sign of life after birth is sufficient. This happens to be consistent with the authorities.

65 It is also the approach which conforms best with contemporary conditions. It is now virtually certain that a newborn baby which shows any sign of life would have lived but for the conduct, said to constitute manslaughter or dangerous driving, inflicted on the baby late in the mother’s pregnancy. The viability of a foetus can now be both established and ensured in a manner which was beyond the realms of contemplation when the born alive rule was adopted. That rule should now be applied consistently with contemporary conditions by affirming that any sign of life after delivery is sufficient.

66 I should note that in reaching this conclusion I have not drawn on the definition of life adopted by the World Health Organisation (“WHO”) upon which the Crown relied: That definition is:

“Live birth is the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such separation, breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; each product of such a birth is considered live born.”

67 The definition appears in different places, but can be traced back to a report in 1950 of the WHO Subcommittee on the Definition of Stillbirth and Abortion of the Expert Committee on Health Statistics. The definition is based on the need to have internationally comparable statistics. This is not a context capable of giving any assistance for the explication of the common law.

The Proposed Brain Death Rule

68 The Appellant’s submissions appear to rely on two alternative arguments with respect to the implications of s33 of the Human Tissues Act 1983, set out above. First, it was suggested that the Act operated of its own force to change the common law by reason of the fact that it introduced a definition of death “for the purposes of the law of New South Wales”. The second argument appears to be that the common law should be adapted, so that the definition of life coincides with the new statutory definition of death.

69 In Ansett Australia v Dale (2001) NSWCA 314 at [31] the Court of Appeal described the introductory words of s33 as meaning that the definition of death was one “of general application”.

70 The thrust of the Appellant’s submissions was that it would be anomalous if a person could be classified as “dead” for virtually all purposes of the law of New South Wales, but also be classified as “alive” for some of those purposes, specifically with respect to the application of the common law born alive rule to criminal offences. I cannot myself identify any relevant anomaly, other than perhaps a semantic one, which should not be determinative.

71 It is important in this, as in so many contexts, to bear in mind Fullagar J’s warning in Attorney General (NSW) v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237 at 285 to resist “ … the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”. Although a similar argument has succeeded in the United States (see State of Wisconsin v Cornelius 152 WIS.2d 272 (1989)), I would not adopt it here.

72 The scope and purpose of the Human Tissue Act, to which I will further refer below, providing as it does a definition of death of general application, does not indicate any legislative intention to alter the concept of “life” for purposes of the law, specifically the born alive rule. There is no purpose of the legislative scheme that would be served by extending its application in this manner, on the basis of a semantic analogy of the character relied upon by the Appellant.

73 The Act finds it origins in the consideration of brain death by the Australian Law Reform Commission in its report on Human Tissue Transplants (Report No 7 A.G.P.S. Canberra 1977). The purpose of the rule proposed by the Commission, and eventually adopted, is indicated in the following observation:

“[118] … In practice the determination of death involves a judgment that the patient’s progress to a state of nonliving or non-existence is sufficiently far advanced to be diagnosed with certainty as irreversible .” [Emphasis added.]

74 The report went on to note that irreversible cessation of all brain function is referred to as brain death. It recommended a definition of death which included reference to brain death. The definition is applicable to the case of a person who had been alive, where the issue is to determine the time of death. The born alive rule is concerned with the identification of life at a time after the baby has been completely separated from his or her mother’s body. This is not the reciprocal of “death”, as now defined, because it adopts an artificial and non-scientific standard of when life begins i.e. after delivery.

75 As indicated above, the second way in which the proposition appeared to be put by the Appellant was that the common law should be adapted so that the born alive rule is consistent with the definition of death. There is only a single common law of Australia (see Lange v Australian Broadcasting Corp (1997) 189 CLR 520; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503).

76 The Human Tissue Act is part of a scheme which is in large measure a national scheme. The Australian Law Reform Commission recommendation of a definition has now been adopted in all States and Territories, other than Western Australia. (See s45 Transplantation and Anatomy Act 1978 (ACT); s27A Human Tissue Act 1985 (Tas); s23 Human Tissues Transplant Act 1979 (NT); s2 Death (Definition) Act 1983 (SA); s41 Human Tissues Act 1982 (Vic); s45 Transplantation and Anatomy Act 1979 (Qld).) There is one difference: the definition in Queensland is only “for the purposes of this Act”. Other States adopt the New South Wales formula of “for the purposes of the law of …” the relevant jurisdiction.

77 There are considerable difficulties in developing the common law by analogy with statute. See the discussion in Esso Australia Resources Australia Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 esp at [23], [64], [91] and [144]. Here there is a much closer approximation to a national uniform regime than that considered by the High Court in Esso. Only Western Australia wholly fails to adopt the definition and only Queensland limits its application to the particular purposes of the Transplantation and Anatomy Act 1979 (Qld). Nevertheless, there is no uniformity.

78 More significant, however, for present purposes is the above analysis with respect to the application of the statutory definition of death to the common law born alive rule. The Courts should also resist the temptation to introduce a meretricious symmetry between the common law and statute law. The definition of death does not, other than in the context of semantic symmetry, require a corresponding definition of life. This is particularly so for the purposes of a common law rule which, as I have indicated above, is itself anachronistic and which adopts an artificial and non-scientific concept of when life begins. Other than in semantic terms, this test for the born alive rule is not the reciprocal of death as now defined by statute.

Conclusion

79 In my opinion the appeal should be dismissed.

80 GROVE J: I agree with Spigelman CJ.

81 BELL J: I agree with Spigelman CJ.

**********