R v Mr

[2000] FCA 1127

FEDERAL COURT OF AUSTRALIA

R v MR [2000] FCA 1127

CRIMINAL LAW – appeal – reference under s 30A of Federal Court of Australia Act 1976 – whether question raised for determination arose “at or in connection with” trial – question not decided by trial judge – appeal incompetent

Supreme Court Act 1933 (ACT), s 68B
Federal Court of Australia Act 1976 (Cth), s 30A

Director of Public Prosecutions v G (1999) 85 FCR 566 applied
Director of Public Prosecutions Reference (No 2 of 1996) (Vic) [1998] 3 VR 241 applied
Caledonian Collieries Pty Ltd v Spiers (1957) 97 CLR 202 referred
Nydam v R [1977] VR 430 referred
R v Taktak (1988) 14 NSWLR 226 referred

R v MR
A 5 of 2000

MILES, SACKVILLE & KENNY JJ
CANBERRA
11 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 5 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	THE QUEEN APPLICANTAppellant
AND:	MR Respondent
JUDGES:	MILES, SACKVILLE & KENNY JJ
DATE OF ORDER:	11 AUGUST 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

The reference appeal be dismissed as incompetent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 5 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	THE QUEEN Appellant
AND:	MR Respondent

JUDGES:	MILES, SACKVILLE & KENNY JJ
DATE:	11 AUGUST 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1. Guiseppe Joe Cinque died on 26 October 1997.  Earlier that day, he had been drugged with Rohypnol by his de facto wife (“S”).  She had subsequently given him one or more dosages of heroin with the intention of causing his death.  His death was in fact caused by the administration of the drugs by her.  S was indicted for murder.  She was subsequently found not guilty of murder but guilty of manslaughter by reason of her diminished responsibility. 

2. The respondent (“the accused”), who was a friend of S, was also charged with offences in connection with Mr Cinque’s death. Upon her arraignment in the Supreme Court of the Australian Capital Territory, the accused pleaded not guilty to the murder, or, in the alternative, manslaughter, of Mr Cinque at Canberra on or about 26 October 1997. She also pleaded not guilty to additional charges of attempted murder or, in the alternative, the intentional and unlawful attempted administration of a stupefying drug (namely, heroin) likely to endanger human life. Pursuant to s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by judge alone. At the close of the Crown case, the learned trial judge found the accused not guilty of the offences charged. The Court is concerned with a question said to arise in connection with the charge of manslaughter.

3. This is a reference appeal pursuant to s 30A of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, the Director of Public Prosecutions (ACT) (“the Director”) elected to pursue only one of the two questions initially raised by his application. This question is in the following terms:

   Having regard to the facts found by the learned trial judge, did the accused owe a duty of care to the deceased the breach of which in the circumstances of this case could render the accused liable to be convicted of manslaughter? 

4. The “facts found by the learned trial judge” were, so the Director submitted, the following facts.

   (1)On 26 October 1997, S drugged the victim, her de facto husband, with Rohypnol and subsequently administered one or more doses of heroin with the intention of causing his death.  The death of the victim was caused by the administration of those drugs. 

   (2)At some time prior to 21 October 1997, the accused, who had a close friendship with S, began to realise that S might have had some genuine intention of killing the victim and then committing suicide.

   (3)By 21 October 1997, something had been said or done which led the accused to believe that S had attempted to kill the victim during or following a party on the previous evening, 20 October.  By 23 October 1997, the accused feared that there might be a further attempt on the life of the victim by S.  On 22 October 1997, the accused obtained Rohypnol tablets from a pharmacy for S and the packet was subsequently found in the accused’s bedroom.

   (4)For months prior to 26 October 1997, the accused had done things which might be seen as having encouraged S in her suicidal ideation and/or having lent practical support to any attempt she might have made to take her own life.

   (5)For months prior to 26 October 1997, the accused was aware that S believed that she (S) had developed a grave illness as a result of taking Ipecac syrup and that S blamed the victim for what had befallen her. 

   (6)The accused knew that S had at least some heroin, and by 23 October 1997, she knew that S had made some attempt to drug the victim and then inject him with heroin after a party the previous Monday night, 20 October.  The accused also knew that S intended making a further attempt following a party planned for the following Friday evening (24 October).  At least by that stage, the accused must have been aware, not only that S was speaking of killing the victim, but that he was in real danger. 

   (7)The death of the victim occurred between one and three hours prior to the arrival of the ambulance at 12.18 pm on 26 October 1997. 

   (8)The accused saw the victim at some time between 8.00 am and 9.20 am on the morning of 26 October 1997 and the accused subsequently described him as being either pale or blue but stable.

   (9)At about 9.38 am on 26 October 1997, the accused provided S with the sum of $250 to buy further heroin.

   (10)The accused and S were both students at the Australian National University and had been friends for some time prior to the victim’s death.

5. Was the question that the Director invites the Court to consider a “question of law arising at or in connection with the trial”? The respondent’s counsel submitted that it was not. The issue is one of some importance since it is only a question of this kind that this Court must determine under s 30A. Subsections 30A(1) to (4) provide:

   (1)Where:

   (a)    a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory; and

   (b)    the person has been acquitted in respect of the whole or any part of the indictment;

   an appropriate authority may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court, on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial. 

   (2)The Full Court shall hear and determine the question.

   (3)A determination made by the Court under this section does not invalidate or affect any verdict or decision given at the trial.

   (4)Any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory is entitled to be heard in the proceedings to determine the question.

   As the Full Court said in Director of Public Prosecutions v G (1999) 85 FCR 566 at 578:

   The purpose of provisions of this type is to enable appellate courts to correct errors of law made at the trial of accused persons, without affecting in any way any acquittal in respect of which the reference is made:  see Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305. They enable the Crown to obtain the opinion of an appellate court on a point of law which arises in a case in which an accused person is acquitted. They were intended to enable the Attorney-General originally, and now the Director of Public Prosecutions, ‘to seek clarification of a point of law which arose in the relevant trial, and which has led to confusion in the past or is likely to lead to confusion in the future …’: Director of Public Prosecutions Reference (No 1 of 1994) (Vic) [1984] VR 727 at 729.

6. Section 30A of the Federal Court of Australia Act 1976 is not intended to oblige an appellate court to answer a question that is not a question of law or, though a question of law, is hypothetical in the sense that the question was not decided by the trial judge.  A question of law that was not decided by the trial judge at the trial is not a question of law “arising at or in connection with the trial”:  DPP v G 85 FCR at 580. In Director of Public Prosecutions Reference (No 2 of 1996) (Vic) [1998] 3 VR 241 at 250-251, Brooking JA, with whom Winneke P and Tadgell JA agreed, stated:

   In my opinion, in order that a point of law may be said to have been decided by the trial judge, and so to have arisen in the case, it is not necessary that the point should have been in contest between the Crown and the accused:  it is enough that the judge has determined the point.  Various positions are possible.  The Crown and counsel for the defence may invite the judge to give different answers to a question of law.  On the other hand, the Crown may, where some point of law has been raised, either by the Crown itself or by the judge, invite the judge to determine the point in a certain way and the accused, being unrepresented, or even being represented, may put no submission at all.  Or, on the raising of a question of law by counsel for the defence, who submits that it should be answered in a certain way, the Crown Prosecutor may say that the question is a doubtful one and suggest that a ruling be deferred until the Crown has had an opportunity of considering the point and of defining its position and presenting argument.  The judge, thinking that a prompt determination is desirable and having formed a clear view that the point taken is a bad one, may think it appropriate to give his ruling at once.  To take another example, the Crown may expressly concede that the view put forward by the defence on a point of law is the correct one, or may so conduct itself as tacitly to concede the point.  In Director of Public Prosecutions Reference (No. 1 of 1992) [1992] 2 VR 405 at 415 Marks J left open the question whether a concession made by the Crown Prosecutor at the trial would lead the court to decline to correct an error of law under s 450A [of the Crimes Act 1958 (Vic)].  …

   In my opinion, a point of law has arisen in the case within the meaning of s 450A if it has been decided by the judge, and it is unnecessary that the point should have been in contest between the Crown and the defence at the trial.  Nor is the making of an express or implied concession by the Crown at the trial inconsistent with the judge’s having decided it.  The existence of a dispute between the parties at the trial with regard to a point of law is not essential to that point’s being decided by the judge (and so arising).  On the other hand, the question whether a position was taken up by the Crown and the defence at the trial with regard to the point may well bear on whether that point was actually decided by the judge.

   This passage was accepted by the Court in DPP v G as applicable to s 30A of the Federal Court of Australia Act 1976, notwithstanding its slightly different language: 85 FCR at 580.

7. Adopting this approach, did the trial judge in this case actually decide the question identified by the Director and referred to the Court?  In order to answer this question, it is necessary to look more closely at the case actually before his Honour.

8. On the hearing of the reference appeal in this Court, the Director conceded that the trial judge had fairly summarised the Crown case on involuntary manslaughter at paras 129 to 130 of his Honour’s reasons for judgment.  At paras 129 to 130, the trial judge said that:

   129.The Crown submitted that the accused was not merely an innocent bystander who could not in law be held liable for failing to intervene to prevent the death of Mr Cinque.  It submitted that a duty of care arose from the following circumstances:

   (a)the very close friendship between the accused and [S];

   (b)the accused was aware of [S’s] suicidal tendency and she assisted her to that conclusion;

   (c)the accused was aware that [S] had a number of motives for the deceased’s death;

   (d)the accused was aware of [S’s] murderous intent in relation to the deceased;

   (e)the accused was aware of [S’s] capacity, in the sense of possession of the necessary wherewithal, to carry out the murder;

   (f)by the evening of 25 October 1997 the accused was aware that [S] was at least mentally unbalanced;

   (g)the accused has sought to reassure any persons who might be inclined to intercede on behalf of Joe Cinque that he was not in peril;

   (h)the accused in the morning of 26 October 1997 knew of both a previous and current attempts by [S] to kill the deceased; and

   (i)the accused saw the deceased in a distressed state in the morning of 27 [sic] October 1997 when she knew or ought to have known that he was in peril of his life.

   130.As I have mentioned, the Crown case is one of manslaughter by failing to summon an ambulance to provide medical treatment or assistance for Mr Cinque whilst he lay unconscious in the house at Downer and/or otherwise failing to intervene in order to protect him.

   (The reference in para 129(i) to 27 October 1997 should be to 26 October 1997.) 

9. After summarising the Crown’s case on involuntary manslaughter in this way, the trial judge set out what he considered to be the relevant principles of law, commencing with the law regarding duty of care.  His Honour stated (and it was not disputed by the Director) that Crown counsel made four submissions concerning the existence of such a duty.  His Honour stated (and again it is not disputed) that those submissions were:  (1) that an act or omission may be of such a wicked nature as to itself disclose the duty of care breached; (2) that a person who seeks to intervene in order to protect the interests of another person assumes a duty of care; (3) that a person acquires a duty of care by causing another person to be placed in danger; and (4) even if a person unconsciously placed another in danger by his or her conduct, that person necessarily had a duty to remove the other from danger when he or she became aware or ought to have become aware of the danger.  His Honour rejected each submission upon the basis that it was unsupported by the authorities to which he had been referred.  It is plain enough, contrary to the Director’s submission in this Court, that his Honour made no findings of fact in deciding that “the Crown has not established the existence of any duty of care sufficient to found a conviction for manslaughter”.  Instead, his Honour decided the question of duty upon the basis that the facts relied upon by the Crown, in particular those set out in para 129, were assumed to be true.

10. That this is so is shown by the trial judge’s analysis of the fourth way in which Crown counsel submitted that the accused came under a duty to call an ambulance for Mr Cinque (or otherwise to take action to remove him from immediate danger) on 26 October 1997.  His Honour endorsed “as a matter of general morality” the principle for which the Crown contended, namely that an accused who places another person in danger, albeit unconsciously, is under a duty to remove that person from the danger when she becomes aware or ought to have become aware of it.  As recorded in para 129(i), the Crown’s submission was based on the assumption that the accused knew or ought to have known on the morning of 26 October 1997 that Mr Cinque was in peril of his life.  But it is quite clear that the trial judge did not accept the fact, alleged by the Crown and critical to its manslaughter case, that “the accused saw the deceased in a distressed state in the morning of 26 October 1997 when she knew or ought to have known that he was in peril of his life”:  see para 129(i).  On the contrary, dealing with the Crown’s submission that it was the accused’s omission (to summon an ambulance or otherwise intervene to protect the deceased) that was the proximate cause of the victim’s death, his Honour said:

    The evidence suggests that the accused saw him sometime between 8.00 am and 9.20 am and that she had described him as being either pale or blue but stable.  There is no evidence that he was then in urgent need of medical treatment.  The Crown submitted that even if he had not then been exhibiting any signs of respiratory distress or other symptoms demanding urgent medical intervention there was evidence that [S] had later told the accused that she could not get him breathing.  However that occurred between about 9.20 and 9.38 am and it is conceded that [S] may have been given a further injection of heroin after this time.  Indeed, the Crown case involves the proposition that heroin obtained from Mr Tobin between 10.00 and 11.00 am that day may have been used for that purpose.  Death is said to have occurred between one and three hours prior to the arrival of the ambulance at 12.18 pm.  Accordingly, Mr Cinque may have died as early as 9.18 am or as late as 11.18 am.  Death from a heroin overdose may occur very quickly.  Hence one cannot infer from his subsequent death that he must have been in a state of extremis when seen by the accused earlier that morning.

    The evidence does not enable me to determine with any accuracy the amount of heroin with which Mr Cinque had been injected prior to the arrival of the accused, his physical condition following that injection or [S’s] likely reaction to the arrival of an ambulance.  By the time the accused was informed that [S] could not get him breathing he may have already been dead.  If not, he may have died before any ambulance summoned by the accused could have arrived. … Furthermore, it is, I think, quite possible that Mr Cinque died as a result of a further injection of some of the heroin provided by Mr Tobin later that morning.  If so, then it was that rather than any antecedent failure by the accused to call an ambulance that was the proximate cause of his death.

    Precisely what occurred that morning is regrettably a matter of speculation.  The case against the accused in relation to this element of the offence is again dependent upon circumstantial evidence and as I have sought to demonstrate other hypothesis consistent with her innocence are available.

11. As his Honour made clear at para 130 of his reasons, the Crown case was that the accused was in breach of a duty of care owed to the victim by reason of her failure to summon an ambulance or to protect the deceased in some other way.  That was the case which his Honour was called upon to decide at trial.  On the hearing of the reference appeal, the Crown described the relevant duty as a duty to take reasonable care to protect the life of the victim, the performance of which involved an ambulance being called by the accused for the victim on the morning of 26 October 1997.  This formulation of the Crown case serves only to confirm that the question that the Director now raises is not a question that was actually decided by the trial judge.  That is, the trial judge did not entertain the question whether, on the findings of fact actually made by him, the accused owed a duty of care to the deceased, the breach of which could have made her liable to a conviction for manslaughter.  This may perhaps be explained by the trial judge’s finding that there was no evidence before him that the victim was “in urgent need of medical treatment” at the time the accused saw him on the morning of the deceased’s death.  In that circumstance, the trial judge could scarcely have held that, at the time the accused saw the deceased, a reasonable person in her position would have taken steps to summon an ambulance or otherwise protect him.  On his Honour’s findings, there was simply no evidence that Mr Cinque was in imminent danger. 

1. Furthermore, the trial judge did not decide whether, on the findings of fact that the Director now alleges his Honour made, the accused owed a duty of care to the deceased, the breach of which could have exposed her to conviction for manslaughter.  For example, the Director refers, on this appeal, to the fact that the accused provided $250 to S on the morning of 26 October for the purchase of heroin.  This fact did not apparently form part of the Crown’s case of manslaughter put to his Honour, there being no reference to it in para 129 of his Honour’s reasons.  The Crown may have chosen not to rely upon that fact because, as his Honour held at para 105:

   There was also evidence that at or about 9.38 am on 26 October 1997 the accused provided [S] with the sum of $250 to buy further heroin.  At face value, that is obviously a potentially incriminating fact.  However, Mr Flexmore gave evidence of hearing the accused tell [S] to leave her alone when she contacted her, there is evidence that [S] told her that she wanted the heroin to use herself and that the accused gave her the money simply because she was so frustrated that she wished to be rid of her.

   By seeking to introduce on this reference appeal the accused’s giving $250 to S, the Crown seeks to make out a case that was not before the trial judge and that his Honour did not decide.  For these reasons, we accept the respondent’s submission that the question of law submitted for the Court’s determination did not arise at or in connection with the trial.  The Court must decline to answer the question.

2. The respondent submitted that there was a further difficulty with the question identified by the Director as requiring the Court’s determination.  It was said that the question is not a pure question of law, because it invites the Court to decide not merely whether it would have been open to the trier of fact to find that there was a duty of care, but whether the accused should have called an ambulance or taken some other steps to protect Mr Cinque’s life.  The latter was said to be a question of fact:  cf Caledonian Collieries Pty Ltd v Spiers (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ. In view of the conclusion we have reached, it is not necessary to consider this alternative submission.

3. The Director submitted that if the Court concluded that the question of law did not arise at or in connection with the trial, nonetheless it was open to the Court to comment upon the principles relating to the duty of care sufficient to found a conviction for involuntary manslaughter.  We are not, however, persuaded that this would be an appropriate course.  The duty of care question cannot be determined without regard to the relevant circumstances.  In this case, the trial judge rejected the Crown’s case with respect to the duty question without finding the facts upon which such a duty was alleged to arise.   He decided that, in any event, there was no breach of the kind alleged by the Crown.  The Court cannot in this circumstance offer guidance of the kind the Director seeks.  In any event, it was the Director’s submission that the law is accurately and clearly stated in Nydam v R [1977] VR 430 at 439-445 and in R v Taktak (1988) 14 NSWLR 226 at 236-246, 250-251. Where, as in this case, the relevant facts have not been found by the trial judge, we do not think that it would be useful for this Court to make any comment concerning the duty of care question in connection with a charge of involuntary manslaughter.

4. Since the question raised by the Director for the determination of the Court is not a “question of law arising at or in connection with the trial”, it follows that the reference appeal is incompetent and, and for this reason, should be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             11 August 2000

Counsel for the Applicant:	Mr T Golding
Solicitor for the Applicant:	Director of Public Prosecutions
Counsel for the Respondent:	Mr J Willis
Solicitor for the Respondent:	pappas, j – attorneys
Date of Hearing:	8 August 2000
Date of Judgment:	11 August 2000