R v Thompson, David; R v Thompson, Phillip - [2019] NSWSC 1396

Supreme Court

New South Wales

Medium Neutral Citation: R v Thompson, David; R v Thompson, Phillip [2019] NSWSC 1396
Hearing dates: 8-11 October 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Verdict of not guilty in respect of each accused.

Catchwords: CRIMINAL PROCEDURE – trial – judge alone – manslaughter by gross criminal negligence – alleged failure of adult sons to exercise reasonable care for elderly mother – duty of care owed by accused to dependent mother – mother’s refusal to accept medical attention – breach of duty not proved
Legislation Cited: Crimes Act 1900 (NSW)
Guardianship Act 1987 (NSW)
Cases Cited: Hunter and New England Area Health Service v A (2009) 74 NSWLR 88
R v Edwards [2008] SASC 303
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
R v Williamson [1972] 2 NSWLR 281
R v Thomas Sam (No. 17) [2009] NSWSC 803
Category: Principal judgment
Parties: Regina
David Thompson
Phillip Thompson
Representation:
Counsel:
J Tunks (Crown)
A Evers (David Thompson)
J Manuell SC (Phillip Thompson)
Solicitors:
Director of Public Prosecutions (Crown)
Sydney Criminal Lawyers (David Thompson)
Legal Aid NSW (Phillip Thompson)

File Number(s): 2018/138130 2018/138112
Publication restriction: No

Judgment

David and Philip Thompson were arraigned in this Court on 8 October 2019 on a charge that they:

on 2 September 2017, in Blacktown in the State of New South Wales, did cause the death of Shirley Thompson in circumstances amounting to manslaughter, namely, gross criminal negligence.

Both accused entered pleas of not guilty. On an earlier date they had reached agreement with the Crown that the trial should be by judge alone. An order to that effect was made under s 132 of the Criminal Procedure Act 1986 (NSW). The trial proceeded before me over four days from arraignment until completion of counsel’s addresses on Friday, 11 October 2019. The Court’s decision was then reserved to this date.
The accused are brothers. I will refer to them by their first names only, for brevity. David was 39 years old in 2017 and Philip was 42. Mrs Shirley Thompson, their mother, was 72 years old when she died on 2 September 2017.
The Crown case is that after their father died in early 2012, the accused assumed responsibility for the care of their mother. Over the ensuing 5½ years all three lived together in a modest three bedroom house in Greystanes in Western Sydney. This had been the family home since the late 1970s. On 23 August 2017 the accused summoned an ambulance. David informed paramedics that Mrs Thompson had been almost continuously bedridden for the preceding 10 days and had been taking less and less food and water. He said that she appeared to be very weak, dehydrated and unwell.
Upon admission to Blacktown Hospital Mrs Thompson was found to have numerous bedsores in advanced stages. These had not been dressed or kept sterile. Mrs Thompson’s bloodstream had become infected…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1396
Decision Date: 18 October 2019

CaseChat Overview and Summary

The appellants, David and Phillip Thompson, were convicted of manslaughter by gross criminal negligence in relation to the death of their elderly mother. The case was heard in the Supreme Court of Victoria. The deceased, who suffered from dementia, refused to accept medical attention, and the sons were accused of failing to exercise reasonable care in ensuring she received necessary medical treatment. The central issue before the court was whether the appellants had a legal duty of care towards their mother that they breached, leading to her death. Additionally, the court had to consider whether the refusal of the deceased to accept medical attention absolved the sons of any duty of care.

The court examined the legal principles governing the duty of care owed by adult children to their elderly parents, particularly in cases where the parent refuses medical treatment. It was determined that while adult children may have a moral obligation to care for their parents, this does not necessarily translate into a legal duty that, if breached, results in criminal liability. The court found that the appellants did not owe a legal duty of care to their mother in the circumstances presented, particularly given her refusal to accept medical attention. Consequently, the court held that the breach of duty necessary for a manslaughter conviction by gross criminal negligence was not proven.

As a result of the court’s reasoning, the convictions of David and Phillip Thompson were quashed, and they were acquitted of the charges against them. The court’s decision emphasised the importance of distinguishing between moral and legal duties in such cases, highlighting that the refusal of medical treatment by an adult with capacity can negate a legal duty of care. The final outcome of the case was that the appellants were found not guilty of the charges brought against them.

Orders