R v Iby

Case [2005] NSWCCA 178 9 May 2005

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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)

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 Iby

Details

AGLC: R v Iby [2005] NSWCCA 178
Case: [2005] NSWCCA 178
Decision Date: 9 May 2005

CaseChat Overview and Summary

The court heard an appeal by the prosecution in the case of R v Iby, where the accused was convicted of manslaughter of a baby born prematurely and without signs of life. The dispute involved whether the baby, who was breathing with the assistance of a ventilator, was considered 'born alive' under the born alive rule. This rule is crucial as it determines whether the prosecution can charge the accused with manslaughter for acts causing the death of a foetus or infant. The appeal raised significant legal questions about the interpretation of the term 'born alive' and whether the existence of a heartbeat alone was sufficient to constitute life under the law.

The central legal issues the court had to resolve were the precise meaning of the phrase 'born alive' and the criteria necessary to establish that a baby is alive at birth. The court needed to determine if the baby's condition, breathing with the assistance of a ventilator and displaying a heartbeat, met the legal definition of being 'born alive'. Additionally, the court examined whether the statutory definition of 'death' in s33 of the Human Tissue Act provided any insight into the definition of life for the purposes of the born alive rule. The court's interpretation of these criteria would set a precedent for future cases involving the born alive rule and the prosecution of manslaughter charges in relation to premature or stillborn infants.

The court concluded that the baby, although breathing with the assistance of a ventilator and displaying a heartbeat, was not 'born alive' for the purposes of the born alive rule. The court emphasised that the term 'born alive' required more than just the presence of a heartbeat; it necessitated evidence of independent life, such as brain function or other signs of life. The court held that the statutory definition of 'death' in the Human Tissue Act, which requires the irreversible cessation of all brain function, was not directly applicable to the definition of life for the born alive rule but provided context for the court's understanding of life. Consequently, the baby's condition did not meet the legal threshold for being 'born alive', and the conviction for manslaughter was quashed. The court's decision clarified the legal criteria for determining whether a baby is 'born alive' and provided guidance for future cases involving similar circumstances.

Orders