R v Peake - [2017] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEAKE
[2017] SASC 10
Judgment of The Honourable Justice Vanstone
8 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - CRIMINAL NEGLIGENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - OTHER ACTS OR OMISSIONS RESULTING IN DEATH
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Trial by judge alone. Accused charged with the manslaughter of her mother. Where accused arrives home to find her mother sitting at back door after a fall. Where accused helps her mother inside. Where mother remains on the floor for seven days, unable to get up. Where accused and her mother the only occupants of the house. Where mother refuses accused’s offers to call ambulance. Where accused does not give her mother food or water.
Defence of mental incompetence raised. Court determines to proceed first with the question of the accused’s mental competence to commit the offence. Psychiatric evidence received. Mental incompetence conceded. Finding recorded. Trial of objective elements. Whether accused owed her mother a duty of care or assumed one.
Held: No duty owed or assumed. The objective elements of manslaughter are not made out. Verdict of acquittal entered.
Criminal Law Consolidation Act 1935 (SA) ss 269C, 269E; District Court Act 1991 (SA) s 24; Juries Act 1927 (SA) s 7, referred to.
R v Taktak (1988) 14 NSWLR 226; Reg v Stone; Reg v Dobinson [1977] QB 354; Wilson v The Queen (1992) 174 CLR 313, considered.

R v PEAKE
[2017] SASC 10
Criminal

VANSTONE J: Michelle Catherine Peake is charged with the manslaughter of her mother. The facts of the matter are singular and tinged with a sense of pathos.
An Information was laid in the District Court. The matter was transferred to this Court pursuant to s 24 of the District Court Act 1991 (SA). Before being arraigned on the Information, the accused elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA) and in accordance with the applicable rules of court. The trial proceeded before me, sitting without a jury.
Background
The particulars of the charge are that the accused, between 9 October 2014 and 18 October 2014 at Fulham Gardens, unlawfully killed Josephine Peake.
Mrs Josephine Peake was 82 years of age at the time of her death. The accused was then 54 years of age. She is the only child of the deceased’s marriage with Mr Robert Peake. The family moved into their home in Fulham Gardens when the accused was a child and lived there from that time, except for a short period when Mr Peake’s work took them to New Zealand. Mr Peake died in May 2013. Mrs Peake and the accused remained in the home thereafter. The accused has never married or formed any romantic attachment. She has no close friends.
The uncontested facts are that, on the morning of 10 October 2014, Mrs Peake fell outside her home and was unable to stand up. The accused was elsewhere at the time, but when she arrived home she found her mother near the back door. She helped her mother crawl inside to the floor of the kitchen.
In the next day or so Mrs Peake moved herself into the bathroom, although she remained floor-bound. Mrs Peake rejected her daughter’s offer to telephone an ambulance. The accused gave her mother no water or food and sought no help for her. The accused said she feared her mother would choke if given food or water. Mrs Peake remained on the floor of the bathroom. Mrs Peake died of dehydration, probably during the early hours of 17 October 2014. The failure of the accused to render assistance to her mother, and in particular to obtain medical help for her over those seven days, gives rise to the charge of manslaughter. The charge may be described as manslaughter by omission.
Before the trial commenced the accused, through her counsel, Mr W P Boucaut SC, foreshadowed a defence of mental incompetence, invoking Part 8A of the Criminal Law Consolidation Act 1935 (SA). References to sections are to that Act. Appropriate reports were obtained and provided.
The trial
At trial, the defence of mental incompetence was formally raised and, in accordance with s 269E, the question of Ms Peake’s mental competence to commit the offence was separated from the remainder of the trial. It was agreed that it was convenient to deal first with that issue.
The following reports were tendered by Mr Boucaut, relevant to the question of mental incompetence:
·Exhibit D1, report of Dr Robyn Young, Clinical Psychologist, with a particular interest in autism, dated 4 September 2016;
·Exhibit D2, report of Dr Robyn Young, Clinical Psychologist, dated 9 March 2016; and
·Exhibit D3, report of Dr Paul Furst, Forensic Psychiatrist, dated 26 April 2016.
The facts underlying the experts’ opinions were, by agreement of counsel, admitted.
Both specialists diagnosed the accused with Autism Spectrum Disorder, a life‑long condition. Dr Furst expressed the view that, at the time of the relevant conduct, the accused was mentally incompetent because she did not know that her conduct was wrong: s 269C (b). Dr Young agreed. (Dr Young further expressed the view that the accused did not know the nature and quality of her conduct, under s 269C (a), but her analysis of that concept leads me to reject that opinion.)
Dr Young explained something of the disorder as follows:
Autism Spectrum Disorder ... is characterised by impairment in reciprocal social interaction and disordered social skill development and restricted repetitive patterns of behaviour together with a characteristic communication profile. There are often significant difficulties with the processing of sensory information. These behaviours and difficulties are evident very early in an individual’s development. The cause of Autism Spectrum Disorder is currently not known and it is thought to be present at, or soon after birth, and duration is considered lifelong.
Dr Young said that the accused’s behaviour demonstrated maladaptive risk assessment and response. The accused had not appreciated the risk of leaving her mother on the bathroom floor and responded inappropriately. Dr Young said:
Core features of the disorder are poor theory of mind (ability to take the perspective of others), and the inability to generalise from one situation to another.
The prosecution and the defence being in agreement as to disposition of this issue, I dispensed with any further investigation into Ms Peake’s mental competence and recorded a finding that she was mentally incompetent to commit the offence.
The trial of the objective facts then took place. Evidence was presented by way of a statement of agreed facts, the tender of exhibits and oral evidence. There was discussion about the status of the three expert reports in terms of their use in the trial of the objective elements. I consider that they contain material which is relevant to the question whether the accused owed or assumed a duty to her mother and I have had regard to them for that purpose. There was no dispute about the facts, most of the evidence as to what took place between 10 and 17 October 2014 emanating from Ms Peake herself. Her account of events emerged through police statements, comprising a statement taken from her when police first attended, and two interviews with her conducted by Brevet-Sergeant Koch, the first of these occurring on the afternoon of 17 October 2014, and the second following her arrest on 27 September 2015. Although the accused’s account of the interaction between herself and her mother over the seven days includes some surprising features, there is no material available to contradict it. However, having watched the recordings of the interviews and noted the consistency in the accounts, even over the long period between the death and the arrest of the accused, I do not doubt the truthfulness of the accused’s statements.
Factual findings
I now set out the relevant facts as I have found them to be.
Josephine Peake was born on 4 March 1932. She was 82 years of age at her death. Upon post-mortem examination her body weighed 49 kilograms and was 159 centimetres in height. In February 2014, her general practitioner conducted a “mini mental assessment” of her. Mrs Peake scored 26 out of 30. This demonstrated that she did not have any significant mental impairment. Mrs Peake had no significant underlying organic diseases. The cause of death was dehydration. There was extensive bruising to Mrs Peake’s left hip, consistent with a recent fall.
The accused was born in 1960. She is now 56 years of age. She is an only child and has always lived with, and been supported by, her parents. She has never claimed Centrelink payments.After her father died in 2013, only the accused and her mother occupied the house. The only assistance they received was from a cleaner who came every few weeks and a man employed to cut the lawns. Neither was organised by the accused. They did not have any visitors; most of their relatives resided elsewhere. When interviewed by police the accused denied ever having acted as a carer for either parent.
The accused completed Year 12 in 1977. She completed a Bachelor of Arts degree at the University of Adelaide in 1981. In the late ’80s she lived with her parents in New Zealand for two years where she worked in a government department doing clerical work.
In 2014 the accused customarily spent two mornings a week doing volunteer work at Radio Adelaide and the University Archive, both on North Terrace. At Radio Adelaide she would put away compact discs and at the University Archive she would transcribe documents. She also had a regular volunteer role in a library in the city. Apart from the period in New Zealand the accused did not earn a living.
In the afternoon of the Friday, the accused returned from attending a concert in the city to find her mother sitting on the back step, unable to get up. Her mother told her, “I’ll be right, I’ll get up in a minute”. The accused tried to lift her mother, but she was too heavy. She assisted her mother by holding the door open while her mother moved herself inside to the kitchen floor. Mrs Peake could not get up. The accused told her mother she was going to call the doctor. Mrs Peake “convinced” her not to, saying “she would be alright”. That night the accused had dinner at the kitchen table next to where her mother was lying. She did not offer her mother any food because “she was lying down so I didn’t think she would be able to swallow”.
On the Saturday morning Mrs Peake was in the same position lying on the floor. The accused said to her: “I should get you an ambulance”, but “she kept saying she would be alright”. The accused did not offer her mother any food or drink and “she didn’t ask for anything”. Later, when the accused returned from an outing, her mother was in the same position. She did not offer her mother dinner as she was “more worried about her choking if she ate lying down”. She continued to suggest calling an ambulance, but her mother kept telling her to “do what I’ve got to do”.
On the Sunday, 12 October, Mrs Peake was still in the same spot on the floor. “She seemed fine”. She had not been to the toilet, eaten or had anything to drink “because she couldn’t get up”. The accused tried to lift her mother three to four times over the weekend, but her mother was too heavy.
On the Monday, the accused found Mrs Peake had moved herself. After the accused returned from fulfilling a commitment, Mrs Peake again told her, “I’ll be all right, I’ll be up in a minute”. Mrs Peake asked for food “a couple of times”, on either Sunday or Monday. The accused did not give her food because of concern that she would choke.
By Tuesday, Mrs Peake had moved herself to the floor of the bathroom. That night, when the accused again suggested she call an ambulance, Mrs Peake “objected.” She “got very upset about that idea” and “it wasn’t worth arguing with her”. The accused was worried that her mother would put on a “performance”, as her grandmother had done some years earlier, or that she would refuse to go in the ambulance.
On either the Wednesday or Thursday, Mrs Peake asked the accused for a cup of tea. The accused did not make one for her because of her concern that, in circumstances where she was unable to get her to sit up, she would choke.
On the Thursday, at about 11.30 pm, the accused went to the bathroom and Mrs Peake said goodnight to her. At that time, Mrs Peake “seemed fine” although she was not able to move very much at all.
On Friday, 17 October 2014, at about 7.30 am, the accused went to the bathroom and did not receive a response when she spoke to her mother. She tried several times to wake her over the course of about an hour, but she did not awaken. At 8.37 am, the accused called an ambulance.
The accused said that throughout this seven day period and at her mother’s insistence she continued to perform voluntary work in the city and to follow her usual schedule. The following interchange took place in her second interview with police on 17 October 2015, at p. 6:
AAt that stage, in fact she was still telling me she’d get up in a minute on the Monday when I came home from my volunteer work
Q     Ok
A     By that stage I know I should have called an ambulance
Q     Yep
A     But she was lying on the floor
Q     Yep
AShe couldn’t, she couldn’t leave, she couldn’t sit up at all, she, I could, I’d get her to a seated position and she’d go down.
Q     Ok
ASo that was how things were eventually she made her way, I’m not too sure how, because on her, at her insistence I, I went ahead with my week.
Q     Yep
AThat was her insistence, it wasn’t anything to do with me, I wouldn’t have done it, but well, A she was my mother and B, that was what she and dad always did, regardless of how they felt, they, if they said they were going somewhere, they went, certainly when they were my age.
QYep
ASo she’d tell me, she told me to go about my assorted things and that’s what I did at her insistence.
QYep
AI stress that.
The legal principles
I shall deal first with the law relating to manslaughter and then consider the objective elements of the charge as referred to in Part 8A of the Act.
Manslaughter is usually defined in terms of a positive act leading to death. However, it can also be committed by omitting to act. In such cases, the prosecution must prove that the defendant owed a duty to the deceased to act in a certain way but omitted to do so, that the omission caused the death and that the omission could be characterised as (usually) criminally negligent, or (rarely) as an unlawful and dangerous act.
The duty may arise from a relationship, or may be imposed by statute, by a contract or through the voluntary assumption of the care of another. In his work Criminal Law (4^th ed) Thomson Reuters, Australia, 1997, Professor Peter Gilles described the duty in this way:
The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for herself or himself.
[Citations omitted.]
In the High Court decision of Burns v The Queen (2012) 246 CLR 334 at [97] the plurality put the situation thus:
Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool.
[Citations omitted.]
In Burns, the prosecution alleged that the relevant duty arose because the accused had given the victim methadone, to which he suffered an adverse reaction. It was agreed that because the victim was drowsy and plainly affected, it fell to Burns to secure assistance for him. Instead, Burns allowed him to leave her residence, and he subsequently died. The plurality said that the relationship was not such as to give rise to a duty. Their Honours said at [107]:
Apart from considerations of incongruity, there is absent the element of control which is found in those relationships in which the law imposes a duty on a person to act to preserve life.
As seen, relationships that are generally recognised as giving rise to such a duty include a parent’s relationship with his or her child and a doctor’s relationship to his or her patient. Presumably, the duty imposed on a parent would cease at some stage of the child’s development. Neither counsels’ nor my researches have uncovered any case dealing with a duty towards a parent imposed upon a child by virtue of the relationship, together with a shared domesticity. Any such duty would be founded in either an agreement, or an assumption of an obligation.
In Reg v Stone; Reg v Dobinson [1977] QB 354 the appellant Stone was a partially deaf and almost blind man of low average intelligence and no appreciable sense of smell. The second appellant Dobinson was his de facto wife. She was said to be ineffectual and inadequate. They lived together with the man’s mentally subnormal son. At some time in 1972, the man’s sister, ‘F’, aged 61, came to live with the appellants and occupied a small front room of the house. She paid an amount towards the rent. F would take to her room for days at a time and would deny herself meals out of fear of putting on weight. F’s condition deteriorated. By July 1975 she was unable or unwilling to leave her bed. The appellants did make attempts to provide aid for F and to call a doctor. On 19 July Dobinson enlisted the help of a neighbour to wash and generally attend to F. The neighbour advised Dobinson to go to social services. On 2 August 1975, F was found dead in her bed. The cause of death was toxaemia spreading from infected pressure areas and prolonged immobilisation.
The Court of Appeal dismissed the appeal against conviction, holding that the jury were entitled to find that the appellants had assumed a duty of care to F. Geoffrey Lane LJ said at 361:
Whether [F] was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, or taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July … All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of duty of care for [F] had been proved.

The cases demonstrate that the circumstances in which a duty will be implied, or will be found to have been undertaken, are very limited.
Once the relevant duty is established, the degree of negligence required in order to establish a breach will be the same as for the more usual case of manslaughter by criminal negligence. In Wilson v The Queen (1992) 174 CLR 313 at 333, the High Court accepted that Nydam v R [1977] VR 430 at 445 correctly set out the test for criminal negligence as follows:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
In written submissions counsel for the prosecution described the elements of manslaughter by criminal negligence as follows:
·    the victim has died;
·    the death of the victim was caused by act/s or omission/s of the defendant;
o   the acts or omissions were voluntary and deliberate, as distinct from accidental.
o   the acts or omissions were a substantial cause (not necessarily the sole cause) of the death.
·    a duty of care was owed by the defendant to the victim;
·    the acts or omissions of the defendant amounted to a breach of that duty of care which was “a great falling short of the standard of care which a reasonable person in the circumstance would have exercised”;
·    a reasonable person in the situation of the defendant would have appreciated that his or her actions would involve a high risk of death or grievous bodily harm or injury;
·    the departure by the defendant from the standard of care required in the circumstances was so great that it should be treated as a crime deserving of criminal sanction.
The prosecution submission went on to address the division into subjective and objective of the elements of the offence required by Part 8A and said:
It would seem, therefore, that the elements of manslaughter by criminal negligence are, therefore, almost entirely objective.
Counsel for the accused made no contrary submission.
In the absence of any argument on that issue and despite the fact that I have some doubt as to the correctness of this position, I propose to proceed on the basis that whether the accused assumed a duty of care towards her mother is an objective element.
The prosecution case
The prosecution does not claim that any duty was owed by the accused to Mrs Peake before Mrs Peake’s fall on Friday, 10 October 2014. Rather, it is put, as a first position, that a duty arose as a result of the accused assisting Mrs Peake into the house soon after returning home on that afternoon. It is submitted that, in doing so, the accused took her mother from a position where she might have been able to call to or attract the attention of a neighbour or passer-by, and into the seclusion of the house. There, she was effectively helpless, and the only medium by which she might secure help was her daughter.
Reference was made to R v Taktak (1988) 14 NSWLR 226. There, it was held that in removing a drug-affected and helpless girl (who was essentially a stranger) from the foyer of an apartment building and taking her to his private rooms where she was effectively secluded, the appellant had voluntarily assumed the care of the girl, so as to render him liable to conviction for manslaughter by criminal negligence, in circumstances where he failed to obtain timely medical assistance for her. Prosecuting counsel acknowledged that, in that case, the victim was moaning and unable to speak when removed by Taktak, whereas Mrs Peake was plainly conscious and directing her daughter as to what should (and should not) be done.
The prosecution puts an alternative position, as follows, to meet the possibility that I should reject its first position. It is argued that, having regard to the close familial relationship, the shared home, the circumstances of relative isolation from the outside world – a corollary of which was that only the accused was aware of Mrs Peake’s condition – and, importantly, the deterioration in Mrs Peake’s state, a duty arose, obliging the accused to provide the necessary care and assistance. The touchstone of the obligation imposed was said to be the control over Mrs Peake, which only the accused was in a position to exert.
Prosecuting counsel argued that, in determining whether the accused assumed a duty, or whether one arose, I should not have regard to the accused’s Autism Spectrum Disorder; that whether a duty arose was a matter of objective fact. I do not accept that submission. Whether a duty was assumed is indeed a matter of fact and the nature of the pre‑existing relationship, particularly where it is a familial one – affected as it is by the personalities and capabilities of each party – must be relevant to its determination. This argument is apt to demonstrate that in terms of an offence where the conduct component is an omission to act superimposed on a duty, the dichotomy created by Part 8A of objective and subjective elements is uneasy, to the point of being unworkable. Furthermore, I am not persuaded that a duty could arise because of a deterioration in Mrs Peake’s condition combined with the close relationship and seclusion in the house. As I see it, the prosecution must prove either that the accused owed her mother a duty throughout, or that she assumed a duty.
Discussion
I make the observation at the outset – even though it is strictly irrelevant – that I can find no indication at all that the accused’s conduct towards her mother was motivated by the least degree of malice. She was simply unaware of the seriousness of her mother’s situation and was ill equipped to process it. With the benefit of hindsight the accused readily conceded to police that she should have taken the initiative and called an ambulance.
I do not accept that a duty of the relevant nature was assumed merely by the accused helping her mother into the house. This was plainly done at the mother’s request. The accused was accustomed to take directions from her mother. The accused held the back door open for her mother, having found she was unable to lift her. It amounted to assisting her mother into the shelter of her own home. It was not comparable to removing her to foreign premises. In any event, at that time, although unable to get up, Mrs Peake was plainly in full possession of her senses and well able to communicate.
After the time when Mrs Peake entered the house, it is difficult to identify a point when a duty could have been assumed. The cases make plain that it is a matter of a person actively assuming or undertaking a duty, as opposed to circumstances operating to impose one. For that reason, I do not consider that the prosecution’s second position is correct.
In terms of the question of control, it is plain that, in the first few days after the Friday of the fall, it was Mrs Peake who was controlling the situation. She refused the offers to call an ambulance, and the offers of food. She moved herself into the bathroom. It seems that, even on the eve of her death, Mrs Peake was able to converse with her daughter normally. She still appeared to be managing the situation. The accused had no idea of the dangerous situation in which her mother was. Nor, it is likely, did Mrs Peake.
It is true that the accused did not provide her mother with a cup of tea when asked, fearing her mother would choke; and she justified not providing food to her mother on the same basis. However, I do not regard these examples of some independent analysis of the situation as demonstrating that the accused had taken responsibility for her mother’s wellbeing. In my view, a daughter who was accustomed to exerting more influence in household affairs and who did not lack the ability to think laterally and independently would have taken control of the situation and overridden a mother’s wish not to obtain outside assistance. But, because of the nature of the long-standing relationship between the accused and her mother and, in part because of the accused’s disorder, the accused did not assert herself in the situation.
I find that at no stage did the accused assume a legally recognised duty to her mother, such as to ground liability for manslaughter.
Treating the question of the existence of a duty as an objective element, the objective elements of manslaughter are not made out.
Conclusion
The accused is acquitted.