R v Sam

[2009] NSWSC 803

CITATION:	R v Thomas Sam; R v Manju Sam (No. 17) [2009] NSWSC 803
HEARING DATE(S):	4 May 2009 to 5 June 2009
JUDGMENT DATE :	13 August 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	See paragraphs [5], [31].
CATCHWORDS:	CRIMINAL LAW - trial - manslaughter by criminal negligence - directions to jury concerning reasonable person test
CATEGORY:	Procedural and other rulings
CASES CITED:	R v Taktak (1988) 14 NSWLR 226 R v Wilkinson (Wood J, 31 March 1998, unreported) R v Hall (1999) 108 A Crim R 209 R v O’Brien [2003] NSWCCA 121 The Queen v Lavender [2005] 222 CLR 67 R v Edwards [2008] SASC 303 Stingel v The Queen [1990] 171 CLR 312 R v Seminara (2002) 128 A Crim R 567 R v Zoef [2005] NSWCCA 268 R v Forbes (2005) 160 A Crim R 1
PARTIES:	Regina (Crown) Thomas Sam (Offender) Manju Sam (Offender)
FILE NUMBER(S):	SC 2008/19298; 2008/12927
COUNSEL:	Mr M Tedeschi QC; Ms G O'Rourke (Crown) Ms C Davenport SC (Offender/Thomas Sam) Mr T Molomby SC (Offender/Manju Sam)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Karp O'Neill (Offender/Thomas Sam) Legal Aid NSW (Offender/Manju Sam)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

13 August 2009

2008/19298 Regina v Thomas Sam
2008/12927 Regina v Manju Sam

JUDGMENT (No. 17) (On directions to be given concerning reasonable person test at trial for manslaughter by gross criminal negligence)

1 JOHNSON J: On 4 May 2009, the trial of the Accused, Thomas Sam and Manju Sam, commenced before a jury, with each Accused charged with the manslaughter in May 2002 of Gloria Mary Thomas, the nine-month old daughter of the Accused.

2 During the course of the trial, submissions were made by counsel concerning appropriate directions to be given to the jury with respect to the reasonable person test for the crime of manslaughter by gross criminal negligence, and the application of that test to the circumstances of this trial.

3 General submissions were made on 12 May 2009 (T382-394), after which I determined that the best way forward was for draft written directions to be prepared which would then provide the framework for further, more focused, submissions from counsel by reference to written lists of matters which counsel wished to contend should be attributed to the reasonable person. Draft directions (MFI49) were provided to counsel on 26 May 2009, and the Court received a number of documents from counsel identifying matters which were to be contended as being attributable to the reasonable person in the position of each Accused (MFI50-MFI52, MFI55 and MFI56). Thereafter, counsel made further submissions on 27 May 2009 on these topics (T835-836; T850-876).

4 On 29 May 2009, I distributed further draft directions (MFI58) in relation to which I heard further submissions (T896-915). Thereafter, later that day, counsel were furnished with revised draft directions which I proposed to utilise in the summing up (MFI59). Those written directions were, in fact, provided to the jury as part of the summing up (SU14-15) subject to one alteration made, at the request of counsel, during the summing up (SU52).

5 Before the commencement of closing addresses on 1 June 2009, I explained the basis for my ruling concerning the content of written directions in MFI59, so that counsel would be apprised of these matters prior to addresses (T916-918). I indicated that I would give more detailed reasons for the ruling at a later time (T916). This judgment contains those reasons.

Written Directions to Jury

6 Annexed to this judgment are the written directions provided to the jury during the summing up. Annexure “A” is the written direction concerning the “reasonable parent” case concerning Thomas Sam. Annexure “B” is the written direction concerning the “reasonable homeopath” case concerning Thomas Sam. Annexure “C” is the written direction concerning the “reasonable parent” case concerning Manju Sam.

7 It was necessary to fashion directions in this case to reflect the fact that the Crown alleged manslaughter by omission to obtain appropriate medical care for Gloria: R v Taktak (1988) 14 NSWLR 226 at 211-212; R v Wilkinson (Wood J, 31 March 1998, unreported, pages 9-16); R v Hall (1999) 108 A Crim R 209 at 211-212 [13]; R v O’Brien [2003] NSWCCA 121 at [27].

8 There was no issue in this trial that each Accused owed a duty of care in relation to the well being of Gloria as the father and mother respectively of an infant child. There was an issue as to whether any duty of care was owed by Thomas Sam to Gloria as part of the “reasonable homeopath” case, which related to him only.

The Reasonable Person Test for Involuntary Manslaughter

9 A trial for manslaughter by gross criminal negligence involves application of an objective test, based on the standard of a reasonable hypothetical person: The Queen v Lavender [2005] 222 CLR 67 at 87-88; R v Edwards [2008] SASC 303 at [414]-[415].

10 Several passages in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in The Queen v Lavender shed light upon the nature of the reasonable person test. It is helpful to set these out in some detail to assist an understanding of the relevant principles, and their application to the present case.

11 Part of the directions of the trial judge to the District Court jury in The Queen v Lavender was extracted, without criticism, in the joint judgment at 73-74 [14] (emphasis added):

“Now members of the jury, they are matters for you to determine. A determination of this question of negligence and the degree of negligence is an objective test. You have to decide whether - you have to compare the conduct of the accused as you find it to have been with the conduct of a reasonable person who possesses the same personal attributes as the accused, that is to say a person of the same age, having the same experience and knowledge as the accused [in] the circumstances in which he found himself, and having the ordinary fortitude and strength of mind which a reasonable person would have, and determine on that basis whether the Crown has made out its case. In other words, it is an objective test. The Crown does not have to prove that the accused appreciated that he was being negligent or that he was being negligent to such a high degree. It is your task to determine whether having decided on the conduct of the accused, whether his actions amounted to negligence based upon, as I say, what you think a reasonable person in the position of the accused would have done .

The Crown says that when you look at it on that basis, you would be satisfied beyond reasonable doubt that a reasonable person in the position of the accused, that is to say, of his age and experience and with the knowledge that he had of the circumstances at the time and being a person of normal fortitude and strength of mind would never have done what he did. A reasonable person in that situation would have realised that there was a very high risk of death or serious injury by proceeding into the bush in circumstances, the Crown says, where he knew that he could not see properly, his vision was obscured by the vegetation and by the loader itself to some extent, where he knew that there were young boys, the Crown says, behaviour was always going to be unpredictable [sic] , and the Crown says that when you compare the actions of the accused with what you might expect a reasonable person in his position to have done, you would be satisfied beyond reasonable doubt that those actions were negligent, they were deliberate and that they caused the death of Michael Milne and that they were so negligent, that is to say they fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow, that they merit criminal punishment.

If you are so satisfied members of the jury, then your verdict in respect of that count will be guilty, and you need not proceed any further. If you are not so satisfied as to all of those elements, then your verdict in relation to that count will be not guilty and you would go on to consider count 2.

Can I just reiterate members of the jury, it is immaterial in this case both in relation to count 1 and count 2 what the accused believed to be the case at the time. The test is an objective one, that is to say you must try to put yourself in a position of a reasonable person in the position of the accused, same age, knowing what he knows and a person of ordinary fortitude and strength of mind, and ask yourselves would that person have done what the accused did . Was it reasonable for him to have done that? If not, were his actions negligent, were they deliberate, and I do not mean deliberate in the sense of intending to hurt Michael Milne, no one has suggested that, but deliberate in the sense that he had control over his vehicle. Were the actions the cause of Michael Milne’s death and were the actions so far short of the standard of care which a reasonable person would have exercised, and did they involve such a high risk of death or really serious bodily injury that [it] would follow that they merit criminal punishment?”

12 At 74 [15], Gleeson CJ, McHugh, Gummow and Hayne JJ said (emphasis added):

“For the purposes of one of the subsidiary issues, it is to be noted that, although the trial judge described the test as ‘objective’ he told the jury, repeatedly, to have regard to the circumstances in which the respondent found himself and ‘the knowledge that he had of the circumstances at the time’. The jury were told to put themselves in the position of the respondent ‘knowing what he knows’ . Indeed, some aspects of what the respondent knew were relied upon by the prosecution, but the jury were invited to consider everything he knew. The reference to the immateriality of ‘what the accused believed to be the case at the time’, in the context in which that was said, was plainly a reference to, and a reiteration of, the earlier statement that ‘ [t] he Crown does not have to prove that the accused appreciated that he was being negligent’ . That the statement was so understood by those at the trial is evident from the fact that no objection was taken by trial counsel to that aspect of the directions.”

13 Their Honours stated in the joint judgment at 87-88 [59]-[62] (emphasis added):

“[59] The second reason is that the principle on which counsel based his argument, which applies in other contexts, is a principle relating to honest and reasonable mistake of fact. The principle was recently discussed in this court in Ostrowski v Palmer [(2004) 218 CLR 493] . As the decision in that case illustrates, the principle concerns mistakes of fact. The belief concerning which counsel sought a direction was a (supposed) ‘belief that it was safe to proceed’. Such a state of mind involves an opinion. It might be based upon certain factual inferences or hypotheses (the respondent did not give evidence, so the jury were not told by him exactly what facts or circumstances were operating in his mind), but it necessarily involves an element of judgment. Indeed, it involves a conclusion by the respondent that his conduct was reasonable. The direction sought would be inconsistent with what has been described as the objectivity of the test for involuntary manslaughter. The respondent’s opinion that it was safe to act as he did was not a relevant matter. If there had been some particular fact or circumstance which the respondent knew, or thought he knew and which contributed to that opinion, and the jury had been informed of that, and counsel had asked for a direction about it, then it may have been appropriate to invite the jury to take that into account .

[60] Counsel for the respondent in this court attempted to persuade the court that Nydam v R [(1977) VR 481] should not be followed, and that manslaughter by criminal negligence requires a subjective appreciation by the offender that the conduct engaged in is unsafe. This would bring this form of involuntary manslaughter into disconformity with the other form of involuntary manslaughter dealt with in Wilson v R [(1992) 174 CLR 313] . Furthermore, it is erroneous in principle. This branch of the criminal law reflects the value placed by the law upon human life. Giles JA was right to say, in the present case, that ‘appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and … the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger’ .

[61] The second issue concerns a point not taken at trial. The fact that it was not taken is significant, because it involves giving the trial judge’s directions a strained interpretation, an interpretation inconsistent with what he had previously said, an interpretation that was clearly unintended, and an interpretation that did not occur to trial counsel at the time.

[62] The relevant directions are set out earlier in these reasons. As has been noted, the trial judge repeatedly told the jury to take account of the facts and circumstances known to the respondent when he was driving the front end loader near the boys. The judge also told the jury that it was not necessary for the prosecution to prove that the respondent appreciated that he was acting negligently . In the course of saying those things (both of which were orthodox) he ‘reiterate [d] ’ that it was immaterial what the accused believed to be the case at the time. That is now said to be an error. In the next sentence the judge again directed the jury to take account of what was within the knowledge of the accused. Plainly, the reiteration was not intended, as is now submitted, to contradict what was said earlier, and what was said again in the very next sentence. In the context of what went before and after, the judge was reiterating that the respondent’s view, at the time, as to whether his conduct was negligent, was immaterial. The jury were told to make their own judgment of the reasonableness of the respondent’s conduct, taking account of what he knew at the time. They were told that his opinion, at the time that his conduct was safe, and therefore reasonable, was irrelevant. Those propositions are not contradictory. The reiteration of the second did not involve a withdrawal of the first, especially when the first proposition was repeated in the next sentence .”

14 What is required then, is a comparison between the conduct of the accused person and the conduct of a reasonable person who possesses the same attributes of the accused (such as age, special knowledge and skills) in the circumstances in which he or she found himself, having regard to the ordinary firmness of character and strength of mind which a reasonable person has: The Queen v Lavender at 72-74; R v Edwards at [416]. The accused person’s own knowledge of the circumstances is relevant when considering the circumstances in which the reasonable person is placed: The Queen v Lavender at 88; R v Edwards at [417]. The need for objectivity with regard to the reasonable hypothetical person is in conformity with the other form of involuntary manslaughter, namely manslaughter by unlawful and dangerous act and, in this way, both forms of involuntary manslaughter reflect the value placed by the law upon human life: The Queen v Lavender at 87; R v Edwards at [418].

Directions Concerning the Reasonable Person Test in this Case

15 The Crown submitted that assistance could be found in the law of provocation in fashioning directions about the reasonable person test for involuntary manslaughter. Reference was made to cases, including Stingel v The Queen [1990] 171 CLR 312. Ms Davenport SC, for Thomas Sam, resisted such a comparison, pointing to the different concepts and principles involved.

16 In my view, care must be taken before applying, directly or by analogy, authorities emerging from a different area, governed by statute, to the common law concerning manslaughter by gross criminal negligence. In Stingel v The Queen, the Court observed, at 328, that the function of the “ordinary person” in provocation should not be confused with the role of the “reasonable man” in the law of negligence. See also R v Seminara (2002) 128 A Crim R 567 at 570-572.

17 The appropriate source to assist identification of applicable principles for involuntary manslaughter is the line of authority which includes cases such as The Queen v Lavender and R v Edwards. It is apparent that the directions for criminal negligence manslaughter, contained at paragraph [5-1005] of the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales, are drawn from The Queen v Lavender and the trial summing up in that case (see [11]-[13] above). The Bench Book is intended to provide practical guidance by way of model directions. Such directions are not immune from appellate review: R v Zoef [2005] NSWCCA 268 at [93]; R v Forbes (2005) 160 A Crim R 1 at 14-15 [72]-[76]. The Bench Book directions provided practical assistance in this case, and were used by counsel and the Court as a framework for part of the written directions provided to the jury. I was satisfied that the written directions accorded with the law as I understood it.

18 Submissions were made by counsel inviting the inclusion, or exclusion, of certain matters, as attributes of each Accused, which might be vested in the reasonable person who was to stand in the shoes of that Accused. Having regard to the background of each Accused, and their upbringing in India before migration to Australia in 1995 (in the case of Thomas Sam) and 1998 (in the case of Manju Sam), submissions touched upon, amongst other things, the relevance of certain beliefs and attitudes in India.

19 It was necessary that I keep steadfastly in mind the objective test which forms part of the elements of the crime of manslaughter by criminal negligence. The identification of features of each Accused, which were to be attributed to the reasonable person in each case, must not have the effect of turning the required objective test into a subjective test.

20 I took the view that the attributes of each Accused, which could be taken into account for the purposes of the reasonable person test, ought be objective matters which the evidence demonstrated attached to each Accused. Neither Accused gave evidence at the trial, but lengthy electronically recorded interviews were tendered in the Crown case, which were the principal sources of the objective matters which were attributed to the reasonable person in each case.

21 In due course, I gave written directions which elaborated upon the reasonable person test, in terms of paragraphs 3-5 of Annexures “A”, “B” and “C”. By way of example, paragraphs 3-5 of Annexure “A” stated:

“ 3. The Crown does not have to establish that the accused had any intention to injure Gloria. The offence of manslaughter can be established, even if no injury was intended by the accused, and even if the accused had not himself realised that he was exposing Gloria to the risk of injury which would have been foreseen by a reasonable person in the accused’s position. The test is whether a reasonable person in the position of the accused would have realised the risk existed.

4. For present purposes, a person acts in breach of a duty of care when he omits to do something, which a reasonable person in his position would do in the circumstances.
5. The test is an objective test, but the reasonable person is taken to possess certain attributes of the accused. The reasonable person with whose conduct you must compare the conduct of the accused, Thomas Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which he found himself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.”

22 This general direction distinguished between attributes of the Accused of an objective type, which could be factored into the hypothetical reasonable person, and attributes of a purely subjective type, such as personal beliefs, views or attitudes of the Accused, which must be excluded from consideration.

23 Paragraph 6 of each written direction set out certain attributes of the relevant Accused, which the jury was invited to take into account for the purpose of applying the reasonable person test.

24 By way of example, the matters which the jury could take into account to place the reasonable person in the shoes of the Accused, Thomas Sam, included his knowledge and experience of the practice of homeopathy and medicine in India and Australia (as disclosed in the evidence) and his education, training and practice of homeopathy and his teaching of homeopathy in New South Wales (paragraph 6, Annexure “A”). These were objective matters touching upon his training and experience which the jury could take into account as attributes to be found in the reasonable person.

25 There was, in the end, little dispute concerning the attributes of Thomas Sam which Ms Davenport SC sought to be vested in the reasonable person. See paragraph 6 of the written directions in Annexures “A” and “B” to this judgment.

26 Mr Molomby SC, for Manju Sam, submitted that a number of features of his client ought be attributed to the reasonable person for the purpose of her case (MFI56). As I explained on 1 June 2009 (T916-918), a number of these features were incorporated, in one way or another, in the list contained in paragraph 6 of Annexure “C”. I will refer here only to matters that require some elaboration.

27 One feature pressed by Mr Molomby SC was that she had “no other experience of children”. I declined to insert this feature in the list of attributes. In my view, it did not accurately reflect the content of answers in Mrs Sam’s record of interview and involved a somewhat bald overstatement of what was revealed in the evidence. In any event, paragraph 6(b) attributed to the reasonable person the fact that this was the person’s first child.

28 A further feature pressed by Mr Molomby SC was that Mrs Sam had “no medical training”. In circumstances where Mr Molomby SC sought to include this negative attribute, namely Mrs Sam’s lack of medical training, it seemed to me that the appropriate step was to insert a positive statement of her education, training and employment, which would permit the jury to attribute to the reasonable parent in her shoes the actual education and employment which she undertook. This excluded any medical training or homeopathic training, with her only experience of homeopathy being as a patient. The jury were reminded of this during the summing up (SU44-45).

29 A further feature was that the person had “none of [her] own family in Australia”. I did not consider this to be a relevant objective attribute to be vested in the reasonable person. In any event, it was the case that Mrs Sam’s sister-in-law, Annie Johnson, lived in the house with Mr and Mrs Sam from the time of Gloria’s birth in July 2001 until 20 December 2001, and that Mrs Sam and Gloria were in India between 23 February and 27 April 2002.

30 Another feature was that there was “an Indian tradition of the mother living with her own mother for the first few months of the child’s life”. In my view, this feature was not an objective attribute, but lay on the subjective side which could not be attributed to the reasonable person. In any event, the evidentiary foundation for this tradition was not anything said by Mrs Sam, but evidence of Annie Johnson. Further, the feature would have no real practical application in the circumstances of this case in any event, given that Annie Johnson and her family lived with Mr and Mrs Sam during the first five months of Gloria’s life between July and December 2001, and provided practical day-to-day assistance to each Accused in that respect.

Conclusion

31 These reasons serve to explain further the approach which I took to the written directions concerning the reasonable person test contained in MFI59 which were provided to the jury as part of my summing up on 2 June 2009.

- 11 -

“A”

Regina v Thomas Sam

Manslaughter by gross criminal negligence

The Reasonable Parent Case

With respect to the accused, Thomas Sam:

1. The Crown must prove beyond reasonable doubt all of the following six elements:

(a) that Gloria Mary Thomas died, and

(b) that the accused owed a duty of care in relation to the well being of Gloria because he was the father of an infant child; and

(c) that the accused omitted to obtain appropriate medical care for Gloria in the period 27 April 2002 to 5 May 2002; and

(d) that this omission caused (that is, was a substantial cause of) or accelerated the death of Gloria; and

(e) that this omission was negligent in that it breached the duty of care which the accused owed to Gloria;

(f) that such an omission amounted to gross criminal negligence and merited criminal punishment because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) it involved such a high risk that death or really serious bodily harm would follow; and

(iii) the degree of negligence involved in that conduct is so serious that it should be treated as criminal conduct.

2. There is no dispute concerning the elements in paragraphs 1(a) and (b) and you will readily find those matters to be proved beyond reasonable doubt.

3. The Crown does not have to establish that the accused had any intention to injure Gloria. The offence of manslaughter can be established, even if no injury was intended by the accused, and even if the accused had not himself realised that he was exposing Gloria to the risk of injury which would have been foreseen by a reasonable person in the accused's position. The test is whether a reasonable person in the position of the accused would have realised the risk existed.

4. For present purposes, a person acts in breach of a duty of care when he omits to do something, which a reasonable person in his position would do in the circumstances.
5. The test is an objective test, but the reasonable person is taken to possess certain attributes of the accused. The reasonable person with whose conduct you must compare the conduct of the accused, Thomas Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which he found himself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.
6. In this case, the following attributes of the accused may be taken into account for the purpose of applying the reasonable person (parent) test:

(a) the person was born on 21 December 1966, and was 34 years old when the child was born on 18 July 2001;

(b) the child was the person's first child;

(c) the person has the knowledge and experience of the practice of homeopathy and medicine, in India and Australia, as disclosed by the evidence as being possessed by the accused, including:

(i) the person being a trained homeopath with a bachelor's degree in homeopathic medicine and surgery from the Mangalore University in India, a bachelor of science degree from the University of Kerala in India and a masters degree in public health from the University of Western Sydney;
(ii) the person having practised as a homeopath in India prior to 1995, and practised homeopathy in New South Wales from 1995 to 2002 and taught homeopathy in New South Wales from 1997 until 2002;
(d) the person knew of information (as disclosed in the evidence) which had been given between 18 July 2001 and 5 May 2002 concerning the care, diagnosis and treatment of the child from the following persons:
(i) Nurses Franklin, Robinson, Lee and Harnett at the Earlwood Early Childhood Centre;
(ii) Vipin Goyal (general practitioner, Sydney);
(iii) Vinay Katyal (homeopath, Sydney);
(iv) Brian Symons (paediatrician, Sydney);
(v) Alexander Mohan (Joseph) (paediatrician, India);
(vi) Vipin Thomas (dermatologist, India),
(vii) Ramanlal Patel (homeopath, India);
(viii) K Oommen George (homeopath, India);
(ix) Punnoose Sam (homeopath, India).
(e) the person was aware, by direct observation or information otherwise received, of the appearance, condition and behaviour of Gloria between 18 July 2001 and 5 May 2002 to the same extent that the accused was aware of these matters as disclosed by the evidence.

“B”

Regina v Thomas Sam

Manslaughter bv gross criminal negligence
The Reasonable Homeopath Case

With respect to the accused, Thomas Sam:

1. The Crown must prove beyond reasonable doubt all of the following six elements:

(a) that Gloria Mary Thomas died, and

(b) that the accused owed a duty of care in relation to the well being of Gloria because there existed, as between the accused and Gloria, the relationship of treating homeopath and patient in the period 27 April 2002 to 5 May 2002; and

(c) that the accused, as a homeopath, treated Gloria, as a patient, in the period 27 April 2002 to 5 May 2002 and omitted to obtain appropriate medical care for her in that period; and

(d) that this omission of the accused caused (that is, was a substantial cause of) or accelerated the death of Gloria; and

(e) that this omission was negligent in that it breached the duty of care which the accused owed to Gloria as a treating homeopath; and

(f) that such an omission amounted to gross criminal negligence and merited criminal punishment because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) it involved such a high risk that death or really serious bodily harm would follow; and

(iii) the degree of negligence involved in that conduct is so serious that it should be treated as criminal conduct.

2. The Crown does not have to establish that the accused had any intention to injure Gloria. The offence of manslaughter can be established, even if no injury was intended by the accused, and even if the accused had not himself realised that he was exposing Gloria to the risk of injury which would have been foreseen by a reasonable person in the accused's position. The test is whether a reasonable person in the position of the accused would have realised the risk existed.

3. The Crown says that the accused, Thomas Sam, owed a duty of care to Gloria arising from a homeopath-patient relationship which the Crown alleges existed between the accused, as a treating homeopath, and Gloria, as a patient, in the period 27 April 2002 to 5 May 2002. The accused disputes that a homeopath-patient relationship existed between Gloria and himself in the period 27 April 2002 to 5 May 2002 or at all. The Crown must prove beyond reasonable doubt that such a homeopath-patient relationship existed in that period (see paragraph 1(b) above).

4. For present purposes, a person acts in breach of a duty of care when he omits to do something, which a reasonable homeopath in his position would do in the circumstances. The standard of care required of the accused is that of a reasonable homeopath in the position of the accused in 2002, who was exercising a fair and reasonable standard of care and competence in his treatment of a patient.

5. The test is an objective test, but the reasonable person is taken to possess certain attributes of the accused. The reasonable person with whose conduct you must compare the conduct of the accused, Thomas Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which he found himself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.

6. In this case, the following attributes of the accused may be taken into account for the purpose of applying the reasonable person (homeopath) test:

(a) the child was the homeopath's own nine-month old child at the time of the alleged treatment;

(b) the homeopath has the knowledge and experience of the practice of homeopathy and medicine, in India or Australia, as disclosed by the evidence as being possessed by the accused, including:

(i) the person being a trained homeopath with a bachelor's degree in homeopathic medicine and surgery from the Mangalore University in India, a bachelor of science degree from the University of Kerala in India and a masters degree in public health from the University of Western Sydney;

(ii) the person having practised as a homeopath in India prior to 1995, and practised homeopathy in New South Wales from 1995 to 2002 and taught homeopathy in New South Wales from 1997 until 2002;

(c) the homeopath knew of information (as disclosed in the evidence) which had been given between 18 July 2001 and 5 May 2002 concerning the care, diagnosis and treatment of the child from the following persons:

(i) Nurses Franklin, Robinson, Lee and Harnett at the Earlwood Early Childhood Centre;

(ii) Vipin Goyal (general practitioner, Sydney);
(iii) Vinay Katyal (homeopath, Sydney);
(iv) Brian Symons (paediatrician, Sydney);
(v) Alexander Mohan (Joseph) (paediatrician, India);
(vi) Vipin Thomas (dermatologist, India);
(vii) Ramanlal Patel (homeopath, India);
(viii) K Oommen George (homeopath, India);
(ix) Punnoose Sam (homeopath, India).

(e) the homeopath was aware, by direct observation or information otherwise received, of the appearance, condition and behaviour of the child between 18 July 2001 and 5 May 2002 to the same extent that the accused was aware of these matters as disclosed by the evidence.

“C”

Regina v Manju Sam

Manslaughter bv gross criminal negligence

With respect to the accused, Maniu Sam :

1. The Crown must prove beyond reasonable doubt all of the following six elements:

(a) that Gloria Mary Thomas died, and

(b) that the accused owed a duty of care in relation to the well being of Gloria because she was mother of an infant child; and

(c) that the accused omitted to obtain appropriate medical care for Gloria in the period 27 April 2002 to 5 May 2002; and

(d) that this omission caused (that is, was a substantial cause of) or accelerated the death of Gloria; and

(e) that this omission was negligent in that it breached the duty of care which the accused owed to Gloria;

(f) that such an omission amounted to gross criminal negligence and merited criminal punishment because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) it involved such a high risk that death or really serious bodily harm would follow; and

(iii) the degree of negligence involved in that conduct is so serious that it should be treated as criminal conduct.

2. There is no dispute concerning the elements in paragraphs 1(a) and (b) and you will readily find those matters to be proved beyond reasonable doubt.

3. The Crown does not have to establish that the accused had any intention to injure Gloria. The offence of manslaughter can be established, even if no injury was intended by the accused, and even if the accused had not herself realised that she was exposing Gloria to the risk of injury which would have been foreseen by a reasonable person in the accused's position. The test is whether a reasonable person in the position of the accused would have realised the risk existed.

4. For present purposes, a person acts in breach of a duty of care when she omits to do something, which a reasonable person in her position would do in the circumstances.

5. The test is an objective test, but the reasonable person is taken to possess certain attributes of the accused. The reasonable person with whose conduct you must compare the conduct of the accused, Manju Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which she found herself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.

6. In this case, the following attributes of the accused may be taken into account for the purpose of applying the reasonable person (parent) test:

(a) the person was born on 28 May 1972 and was 29 years old when Gloria was born on 18 July 2001;

(b) Gloria was the person's first child;

(c) the person had eczema as a child and as an adult, and the person had conjunctivitis several times, as disclosed in the evidence;

(d) the person had awareness of the widespread practice of homeopathy in India, as disclosed by the evidence as being possessed by the accused, and had received homeopathic treatment (as disclosed by the evidence);

(e) the person had the education and employment experience, as disclosed by the evidence, as being that of the accused, including:

(i) a bachelor's degree in physics from the University of Kerala in India and a postgraduate diploma in computer applications from the Institute of Science and Technology in Kerala, India;
(ii) the person having come to Australia in July 1998 and, some months later, commenced employment as an administrative assistant with HCF in Sydney, where she continued to work until 2001;
(f) the person knew of information (as disclosed in the evidence) which
had been given between 18 July 2001 and 5 May 2002 concerning the
care, diagnosis and treatment of Gloria from the following persons:
(i) Nurses Franklin, Robinson, Lee and Harnett at the Earlwood Early Childhood Centre;
(ii) Vipin Goyal (general practitioner, Sydney);
(iii) Vinay Katyal (homeopath, Sydney);
(iv) Brian Symons (paediatrician, Sydney);
(v) Alexander Mohan (Joseph) (paediatrician, India);
(vi) Vipin Thomas (dermatologist, India);
(vii) Ramanlal Patel (homeopath, India);
(viii) K Oommen George (homeopath, India);
(ix) Punnoose Sam (homeopath, India).

(g) the person was aware, by direct observation, of the appearance, condition and behaviour of Gloria between 18 July 2001 and 5 May 2002 to the same extent that the accused was aware of these matters as disclosed by the evidence.

**********