R v Tracey Lee Dowling

[2018] NSWDC 367

District Court

New South Wales

Medium Neutral Citation:	R v Tracey Lee DOWLING [2018] NSWDC 367
Hearing dates:	17 October – 13 November 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Criminal
Before:	His Honour Judge Lerve
Decision:	Verdict of guilty to the charge that she did unlawfully kill Luke Doyle, contrary to s18(1)(b) of the Crimes Act, 1900.
Catchwords:	CRIMINAL LAW – manslaughter – criminal negligence - trial by judge alone – multi-drug toxicity – whether deceased was still alive when driven away by accused – whether accused assumed duty of care – whether failing to get medical attention for deceased caused or accelerated his death
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Evidence Act,1995
Cases Cited:	Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 Edwards v The Queen (1993) 178 CLR 193 Mule v The Queen [2004] HCA 49 R v Taktak (1988) 14 NSWLR 226 R v Parker (No. 2) [2018] NSWSC 1122.
Category:	Principal judgment
Parties:	Director of Public Prosecutions Tracey Lee Dowling
Representation:	Counsel: Mr P Kerr for the Director Mr P Lowe for the Accused   Solicitors: Ms Dawson for the Crown Ms McGowan for the Accused
File Number(s):	2016/311099
Publication restriction:	No

Contents

Judgment

General Directions

Inferences

CCTV

Onus and burden of proof

Accused remains silent

Delay in bringing the accused to trial

Expert Witnesses

Essential Elements or Ingredients of Manslaughter by Criminal Negligence

The death of the late Mr Luke Doyle

Luke Doyle begins using oxycodone

The few days before the death of Luke Doyle

Stealing alcohol to swap for oxycodone

Events at Craig App’s House

Luke Doyle shows adverse reaction

Luke Doyle taken to the accused’s red Nissan Utility

The alleged sexual assault of the accused by Matthew Hennock

Accused drives away from Apps’ home

Matthew Hennock at the BP Service Station

Heather Dowling finds Luke Doyle dead

Did the accused attempt to ring triple-0

Conversation between the accused and Jayarna BRITT

Crown’s submissions as to lies as consciousness of guilt

Expert Evidence – Pathologists and Toxicologists

Other matters

Legal Issues

Verdict

Judgment

1. The trial commenced on Monday 15 October 2018. During the course of that morning Mr P Lowe, counsel for the offender, indicated that he sought the trial be held by judge alone. The Crown Prosecutor indicated that the Crown consented to that course. The election was duly filed in open court and became exhibit A in the trial. That election signed by the accused acknowledges that before making the election she sought and obtained advice from a legal practitioner. The trial then proceeded over the next four and one half weeks, initially with a number of pre-trial applications, and the evidence commenced on 17 October 2018.

2. The accused was arraigned and pleaded that she was not guilty to the one count on the indictment, namely:

That (she) on 13 March 2012 at Young in the State of New South Wales did unlawfully kill Luke Doyle, contrary to s 18(1)(b) of the Crimes Act, 1900.

3. In short form the alleged offence is manslaughter. The Crown relies on manslaughter by criminal negligence. The cause of death of the late Mr Doyle, namely multi-drug toxicity is not in dispute. However, the circumstances and events surrounding his death are very much in dispute.

4. I will give a very brief overview of the facts at this point in these reasons. The deceased, the accused and Matthew Hennock were in Young on 12 March, 2012. They were all users of prescription medications, in particular OxyContin, which is a brand name of oxycodone, which they would “mull up” (i.e. dissolve the tablet in water in a spoon) and then intravenously inject the drug. They were seeking to acquire OxyContin on 12 March 2012. Some Xanax tablets were procured from a Mr Corey Power, who himself has since died. There is a dispute about the number of tablets procured and dispute about who took how many of those tablets. In any event the accused, the deceased and Hennock went to the home of Mr Craig Apps. It was agreed that he would approach a neighbour Mr Antonio Carruso who would swap some alcohol previously stolen by the accused, deceased and Hennock for OxyContin. The deceased, the accused and Hennock all took some OxyContin at Apps’ home. The deceased began to “nod off”. He was placed in a utility. There is a dispute about the precise events. The accused drove the deceased from Apps’ home to her home at 40 Burrangong Hall Road, Young. Again, there is a dispute about the precise events. The case for the accused, noting it is not for the accused to prove anything, is that the Crown cannot prove beyond reasonable doubt that the deceased was not dead before the accused left Apps’ home. The deceased was found at the utility by Ms Heather Dowling, the mother of accused, after she arrived home after completing a night shift at an aged care facility in Young.

5. The case for the Crown is essentially that the deceased was still alive when the accused drove him away from Apps’ home, that he was still alive when the accused arrived at her home, that the accused assumed a duty of care over the late Mr Doyle by driving him away from Apps’ home where on the Crown case others present were going to take him to the local hospital. Further, the accused was very much aware of the precarious state in which the late Mr Doyle was when she arrived at her home, that she omitted to get medical attention and thereby caused or accelerated his death. The accused denies criminal liability in respect of the death of Luke Doyle.

General Directions

6. It is for me as the tribunal of fact to assess the various witnesses and decide whether they are telling the truth. I have had the opportunity of seeing the witnesses and have had ample opportunity to observe the manner in which they gave evidence. It is entirely for the tribunal of fact to determine what evidence is accepted and what evidence is rejected.

7. My ultimate decision as to what evidence I accept and what evidence I reject may be based on all manner of things, including what the witness has had to say; the manner in which the witness said it; and the general impression which he or she made upon me when giving evidence.

8. In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness’ evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’ evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. This being a Judge Alone trial, it will be necessary for me to give reasons as to why I accept or reject the whole or part of the evidence of any one particular witness.

9. As the tribunal of fact I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge in s 144 of the Evidence Act, 1995.

10. I have heard addresses from counsel for the Crown and counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. In no sense are those submissions evidence in the case.

Inferences

11. This is a matter where I am asked to draw inferences. I remind myself and direct myself in terms of what juries are normally directed on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proven facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

12. I remind myself of the illustration routinely given to juries from the Trials Bench Book of the telephone call to a friend. In a criminal trial, as the tribunal of fact, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference.

13. In the context of a criminal trial, where proof is required beyond reasonable doubt, as the tribunal of fact I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

CCTV

14. A number of expert witnesses were called in this matter. They gave their evidence from various remote (from the court and indeed Wagga Wagga) locations by audio visual link. There is nothing unusual or exceptional about that in this day and age and so far as trials in rural and regional areas are concerned is quickly becoming the norm rather than the exception. I must give the evidence no greater or lesser weight.

Onus and burden of proof

15. I go to what is undoubtedly the most important direction of any criminal trial; that is the direction relating to the onus and burden of proof. Before I could return a verdict of guilty in respect of the count on the Indictment that is before me the Crown would need to prove the guilt of the accused and prove that guilt to the criminal standard of beyond reasonable doubt. The words “beyond reasonable doubt” are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges on the meaning of the expression “beyond reasonable doubt” is neither necessary nor desirable. However, as part of the direction on the onus and burden of proof I direct myself that suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt.

16. If, at the end of my deliberations, having taken into consideration the evidence for the Crown and evidence led in the accused’s case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and counsel for the accused in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

17. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if her guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find her “not guilty”.

Accused remains silent

18. The accused did not give evidence. An accused is entitled to give or call evidence in respect of any aspect of the Crown’s case, however, an accused is equally entitled to put the Crown to proof and require the Crown to prove his or her guilt beyond reasonable doubt. As the tribunal of fact I must draw no inference adverse to the accused because she did not give evidence. The onus and burden of proof is on the Crown from beginning to end to the criminal standard of beyond reasonable doubt. There may be good reasons why an accused would not give evidence and as the tribunal of fact I must not speculate on what they may be. The absence of evidence from the accused cannot be used as a make-weight in determining whether the Crown has proved its case beyond reasonable doubt nor can it be used to plug or fill gaps I perceive in the evidence. At the risk of repetition, no inference adverse to the accused must be drawn because she did not give evidence and the onus and burden of proof is on the Crown from beginning to end.

19. In this matter however, the accused did not remain silent in the course of the investigation into the death of the late Luke Doyle. She participated in two lengthy records of interview, one shortly after Luke Doyle died and another following her arrest on 18 October 2016. There are competing submissions as to what I should draw from those interviews, which I will deal with in the course of these reasons. However, as the tribunal of fact I am entitled to regard the contents of those records of interview as a possible version of the facts and further, as the tribunal of fact I am entitled to give those versions such weight as I see fit. It is not the case that a tribunal of fact must accept a version put forward or advanced by an accused person before they entertain a reasonable doubt about the guilt of the accused. That version put forward by an accused may nevertheless give rise to a reasonable doubt about the guilt of the accused without being positively or affirmatively accepted. Nor is it a case of determining which version is preferred. The onus and burden is on the Crown from beginning to end to prove the guilt of the accused beyond reasonable doubt.

20. However, conformably with the decision of Mule v The Queen [2004] HCA 49, I am entitled to give the contents of the records of interview less weight because they are not on oath or affirmation.

21. Two expert witnesses, namely Professor Du Flou and Dr Michael Robinson, Pharmacologist and Toxicologist and one lay witness, Kevin Dowling, the brother of the accused, were called in the case for the accused.

Delay in bringing the accused to trial

22. The death of the late Mr Luke Doyle occurred on 13 March 2012. There was a lengthy investigation and a Coronial Inquest at which the accused was nominated as a person of interest. The Inquest was terminated and the papers referred to the Director of Public Prosecutions. The inquest was before the arrest of the accused. The Director of Public Prosecutions determined that a charge of Manslaughter should be brought against the accused. The accused was arrested on 18 October 2016. She was committed for trial on 4 July 2017. The electronic records show that she was committed for trial to the Supreme Court of New South Wales. The Supreme Court remitted the matter to the District Court on 4 August 2017. The matter was listed for trial at the Wagga Wagga District Court on 9 April 2018, which date was vacated because of the “super call over”. The matter was then fixed for trial on 15 October 2018. It will be very clear from this very brief chronology that there has been a substantial delay between the death of Luke Doyle bringing the matter to trial. I note however that the delay between committal and trial, while not desirable, is not - in the context of present delays - particularly significant.

23. It is important that I appreciate fully the effects of delay on the ability of the accused to raise matters in her defence by testing prosecution evidence or bringing forward evidence in her own case, and to raise issues concerning the reliability of the evidence in the Crown case which may raise a reasonable doubt about her guilt.

24. The delay means that there has been a forensic disadvantage. Evidence of the witnesses in the Crown case, who are called to relate events some six years ago, may not be fully tested as it otherwise might have been. It is expected that people would have difficulty recalling the details of things that happened many years ago, even though they gave statements to police close in time to the death of the deceased. Had the charge been brought to light and the prosecution commenced much sooner, it would be expected that the memory of witnesses for details of events would have been clearer. This may have enabled the evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. It is difficult for counsel for the accused to test the reliability of a witness’s evidence in cross-examination where a witness may have poor memory of events relevant to a fact in issue surrounding the events or the conduct alleged.

25. As a result of the forensic disadvantage I must give the prosecution case careful scrutiny. In scrutinising the evidence I must bear in mind the matters to which I have just referred. This does not mean that I must acquit the accused. I am entitled to return a verdict of guilty if I am satisfied that the evidence relating to the count is reliable.

26. I am the judge of the facts. It is for me to make assessments of the reliability of the evidence. Ultimately, it is open to me to return whatever verdict I find is appropriate on the evidence having borne in mind the directions of law I have referred to here.

Expert Witnesses

27. A number of expert medical witnesses have been called to give evidence in the trial. Dr Istvan Szentmariay (pronounced Santamaria), a senior Pathologist, and Mr John Farrar, a Pharmacologist, gave evidence for the Crown. Professor Johan Du Flou, a very experienced and senior Pathologist, and Dr Michael Robertson, Pharmacologist and Toxicologist, gave evidence on behalf of the accused. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts - that is, what they saw or heard - and are not permitted to express their opinions.

28. Appropriately, no issue is taken with the expertise of any of the expert witnesses, noting that all of them are particularly well qualified and extremely well experienced in their respective fields of expertise.

29. The weight of any expert opinion is dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. The weight of the expert opinion is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given.

30. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge. I note that in this matter there was broad agreement between the experts but there were some differences of opinion on some aspects, in particular the issue of the production of and release from the body of foam or froth found adjacent to the deceased’s head. I will deal with these issues in the course of dealing with the facts and the evidence.

31. In the present case, in relation to particular issues there is conflict in the evidence between the expert witnesses. It is not a matter of simply choosing between their evidence as a matter of simple preference. In resolving the conflict between the evidence of the expert witnesses I must always keep in mind that it is for the Crown to prove its case beyond reasonable doubt. It is for me to decide whose evidence and whose opinion I accept in whole or in part, or whose evidence I reject altogether. I should keep in mind that in reaching a verdict I must consider all the evidence. In resolving any conflict in the expert evidence, I am entitled to consider that particular evidence in the context of all of the evidence before me.

Essential Elements or Ingredients of Manslaughter by Criminal Negligence

32. I remind myself that the Crown does not have to prove every single fact led in the case against the accused beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge.

33. Manslaughter is the unlawful killing of another human being. Although it is an offence of homicide, it is a less serious offence than murder because the Crown does not allege that the accused acted with the intention of killing the deceased. It is not the Crown case that the accused intended any harm at all to be inflicted upon the deceased let alone that he should die.

32. The Crown alleges that the killing of the deceased was caused by an omission of the accused that was so seriously negligent on the part of the accused and created such a high risk of serious injury or death to another person that it amounted to a criminal offence.

33. In order to prove manslaughter on this basis the Crown must prove a number of elements beyond reasonable doubt. Unless I find each of these elements proved to that standard the accused must be acquitted.

34. The Crown must prove each of the following elements beyond reasonable doubt:

1. The death of the deceased; and

2. The accused owed a legal duty of care to the deceased; and

3. The accused was negligent in that by the accused’s omissions the accused was in breach of the duty of care which the accused owed to the deceased.

4. The omission by the accused significantly or substantially caused or accelerated the death of the deceased.

5. The omission by the accused amounted to gross criminal negligence and merited criminal punishment for the offence of manslaughter because

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

2. involved such a high risk that death or really serious bodily harm would follow as a result of the omission.

37. In the matter presently under consideration the issues in dispute are whether the Crown can prove beyond reasonable doubt that the accused by her actions caused the death of the deceased Mr Doyle and further, whether the Crown can prove beyond reasonable doubt that the accused assumed a duty of care in respect of the late Mr Doyle. There is also a very real issue as to whether Luke Doyle died before or after the accused drove him from the home of Craig Apps at 40 Taylor Road, Young.

The death of the late Mr Luke Doyle

38. The circumstances leading to the death of Luke Doyle are very much in dispute, but there is no dispute as to the fact that he died on 13 March 2012. Ms Lesley Heather (Heather) Dowling arrived home at about 7.30 am and found Luke Doyle’s body on the ground adjacent to a red Nissan utility. Heather Dowling is an Assistant in Nursing and has been nursing for 32 years (p 705 line 20). She realised that he was not alive and called triple-0 (p 709).

39. At Tab 4 of Exhibit F is the Life Extinct Form that indicates that life was declared extinct on 13 March 2012.

40. Dr Szentmariay in his post mortem report (tab 22, exhibit F) opines that the cause of death was acute multidrug toxicity. Professor Du Flou (p 830) under cross-examination by the Crown Prosecutor said that he believed that that was a “very likely cause of death”. There is no other possible cause of death advanced by any of the experts. Given the whole of the evidence I am able to find beyond reasonable doubt that Luke Doyle died on 13 March 2012 and the cause of death was acute multidrug toxicity.

41. During the post mortem examination blood samples were taken. Alcohol was not detected. Other results of the toxicology of blood were:

Alprazolam	0.02mg/l
Diazepam	0.02mg/l
Naproxen	less than 1 mg/l
Nordiazepam	less than 0.0005 mg/l
Oxycodone	0.4 mg/l
Buprenorphine	Not Detected
Norbuprenorphine	Not Detected
Morphine (free)	0.005 mg/l
Morphone-3-glucuronide	0.03 mg/l

42. In urine the following was found:

Buprenorphine (total)	0.01 mg/l
Norbuprenorphine (total)	0.02 mg/l

43. At p 674 line 39 et seq Mr Farrar (pharmacologist) explained the difference between morphine free and morphine-3-glucuronide. The free morphine is active. Some of morphine consumed by Mr Doyle had been metabolised, in fact most, to morphine-3-glucuronide which is not active and does not have any pharmacological effect at all. The Crown in his closing address put that the results relating to morphine were as a result of oxycodone taken by the deceased the day before his death. That would certainly be consistent and I accept the Crown’s submission on that issue.

44. Alprazolam is the active drug in Xanax. Mr Farrar gave evidence (p 681) that both oxycodone and alprazolam cause sedative effects and if those two types of drugs are taken together the sedative effect will add to the other. Further that there was evidence that benzodiazepines such as alprazolam enhance the respiratory depressant effects of opioids such as oxycodone. He went on to say that the post mortem blood alprazolam concentration was not particularly high and it was still within the therapeutic range. Further, that there would not have been a profound effect caused by the addition of the two and given that Mr Doyle had consumed a substantial quantity of oxycodone any alprazolam consumed on top of that would have a significant effect.

45. At p 677 Mr Farrar opined that the concentration of oxycodone present within the deceased’s blood sample was within the toxic range. At p 679, commencing line 36 he said:

“The…post mortem concentration of oxycodone is high enough in my opinion, irrespective of tolerance developed to the drug, to have caused death. Particularly bearing in mind that Mr Doyle consumed other drugs at the same time such as alprazolam. These tend to – the sedative – sedative effects of these drugs tend to – some at least , add together, if not more and so the concentration of oxycodone is sufficient to have caused death. As I say, irrespective of tolerance developed.”

46. This is consistent with evidence that Mr Farrar gave a little later (p 682) that Mr Doyle died as a result of injecting oxycodone and the concurrent consumption of alprazolam would have added to the sedation caused by oxycodone.

47. There were a number of questions put to Mr Farrar about tolerance to the drug oxycodone. At p 678 he explained that tolerance is developed by consuming the drug on a regular basis and that tolerance is reversible if the person stops taking the drug regularly. It is plain enough from exhibit 10 (PBS history of Doyle) that he had been regularly filling prescriptions for oxycodone in the few months before his death. The irresistible inference is that he was taking the drug on a regular basis. This inference is strengthened given that empty packets were found in the room he occupied at the residence of his father and grandmother. In those circumstances the evidence relating to tolerance is redundant.

48. Dr Michael Robertson, the Pharmacologist and Toxicologist called on behalf of the accused, gave a report which is exhibit 8. He said (p 774) that he was broadly in agreement with the evidence that Mr Farrar gave. Dr Robertson gave evidence (p 776) that in certain circumstances death from using oxycodone can be instantaneous. He went on to say that there would be a lag of a number of minutes but once it (the drug) gets to the central nervous system in a high enough concentration it will depress the respiratory centres.

49. The evidence from Dr Robertson continued (p 777) that the cause of death is predominantly respiratory depression. Cardiac arrest clearly is the final event, but respiratory depression or the reduction in breathing rate, an increase in carbon dioxide, loss of oxygen and then subsequent cardiac arrest is the general process that would take place. Further, the speed of those events is dictated by the amount of drug present in combination with the method of administration. The experts agree that when a drug is taken intravenously peak concentration are achieved very quickly if not almost instantaneously.

50. The evidence as to the speed of the effect of the ingestion of the drug intravenously is relevant to the issue of precisely where it was that Luke Doyle died. The case for the Crown is that death occurred at the home of the accused at 40 Burrangong Hall Road whereas the case for the accused (again noting the accused does not have to prove anything) is that the deceased died at the home of Craig Apps at 40 Taylor Road, or at least that is a reasonable possibility. Further, the case for the accused is that the Crown cannot prove beyond reasonable doubt that Luke Doyle died at her home.

51. I will return to the evidence of the experts in relation to other issues later within these reasons. The cause of death appears to be the least controversial issue. Before determining whether the Crown has proved beyond reasonable doubt the other essential elements of the crime of manslaughter it will be necessary to review the evidence, in particular what led Luke Doyle to be using oxycodone and what occurred on 11, 12 and 13 March 2012.

Luke Doyle begins using oxycodone

52. By way of brief background the deceased Luke Doyle was the child of the relationship between Mr Peter Doyle and Ms Alison Bailey. They separated when Luke was about 12 months. Ms Bailey moved with Luke to the central coast of New South Wales and Mr Doyle remained in Cootamundra. Luke Doyle would regularly visit his father and other members of his extended family in Cootamundra. When Luke Doyle was 15 he returned to live in Cootamundra with his father and paternal grandmother.

53. After returning to Cootamundra Luke Doyle suffered an injury to his shoulder playing football for which he was prescribed OxyContin. OxyContin is the brand name of the drug containing oxycodone. When he was about 17 or 18 he commenced a relationship with Jade Berkrey. In August 2011 Luke Doyle was involved in an altercation with a co-worker at the abattoir at Cootamundra, which resulted in him receiving treatment at the Wagga Wagga Base Hospital. It also resulted in his losing his job. Further as a result of that altercation, Luke Doyle was charged with an offence or offences, presumably assault or the like, and was required to attend court in Cootamundra on 19 March 2012.

54. Jade Berkrey said the relationship between her and Luke Doyle commenced in about 2009. She had three children at the time that the relationship commenced. At the time the relationship commenced she used illicit drugs namely ecstasy and cannabis and prescription drugs such as OxyContin, Valium, Xanax, morphine, Endone and “any sort of down” (p 132). She would inject the OxyContin after “mulling it up”. About a year into the relationship with Jade Berkrey, Luke Doyle began using prescription drugs. Luke Doyle was being prescribed OxyContin for his shoulder injury. Luke Doyle also began taking that drug intravenously. They regularly used OxyContin. Occasionally the OxyContin was sourced from other people.

55. Jade Berkrey maintained that in the course of their relationship Luke Doyle never injected himself but she did it for him. While that might have been the case during that relationship, it is tolerably plain from other evidence that in early 2012 Luke Doyle was injecting himself.

56. Luke Doyle occasionally used Xanax when in the relationship with Jade Berkrey. Jade Berkrey gave evidence (see pp 135 - 136) that it was taken orally and that she tried not to give it to Luke Doyle because of the effect it had on him. She also said that if Luke Doyle combined his drugs he would get quite vacant, fall asleep, and sometimes “freak out” and not know where he was.

57. Jade Berkrey also gave evidence that while she was in the relationship with Luke Doyle she knew Matthew Hennock, who was a regular visitor to the house and used drugs with her and Luke Doyle. The drugs included OxyContin and Xanax. The accused would also visit the house and use drugs with them. Hennock and the accused called at the house together and separately. Jade Berkrey also said (p 138) that the accused gave her drugs from time to time. This was not challenged in cross-examination.

58. While Luke Doyle and Jade Berkrey were in a relationship, Berkrey and Hennock committed the offence of Aggravated Break Enter and Commit Serious Indictable Offence in that they broke into the shop of Braybrook’s Pharmacy in Cootamundra and stole a quantity of prescription medication. Berkrey gave evidence (see generally p 140-142) that it was her idea, that she broke into the safe, that she gave a record of interview admitting her involvement to police and in that interview she told police that Matthew Hennock assisted her. She maintained that Luke Doyle did not have anything to do with the break-in. She was dealt with by way of a sentence of two years that was suspended upon her entering into a bond to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act, 1999. She received a discount for assistance. Hennock pleaded guilty and was sentenced to a term of full time custody of 2 years 6 months with a non-parole period of 1 year 8 months.

59. Jade Berkrey also gave evidence (p 144) that there was an occasion when the accused was present when Luke Doyle had taken Xanax in combination with other drugs and he showed symptoms of “being on the nod”, which apparently is a colloquial expression meaning a somnolent state.

60. The relationship between Luke Doyle and Jade Berkrey ceased after Jade Berkrey went to full time residential rehabilitation. She was not permitted a great deal of contact with others outside the facility and what contact she was permitted was usually spent with her children. Luke Doyle moved back to the central coast to live with his mother.

61. Luke Doyle was required to attend the Local Court at Cootamundra on 19 March 2012 but he was mistaken about the date and he came back to Cootamundra a week early.

62. Luke Collins was another associate of the deceased, Matthew Hennock and the accused. He also gave an account (see generally p 155 and continuing) of visiting Luke Doyle and Jade Berkrey and using drugs. Further, he gave evidence that he observed Luke Doyle injecting himself with drugs on a number of occasions. He met the accused through Matthew Hennock. He became friendly with the accused and at one point was living at her home in Young. He gave an account (p 161) of the accused “spiking” his drink. This was very much disputed.

The few days before the death of Luke Doyle

63. Luke Collins, Matthew Hennock, Luke Doyle and the accused spent time in each other’s company on 10 and 11 March 2012. Luke Collins was staying temporarily at the Goldrush Motel in Young. The recollections of the witnesses are hazy, which is to be expected given the time between the events and the trial, but it seems that the deceased, Luke Collins and Matthew Hennock were at the home of the accused on 10 March 2012. Some alcohol and cannabis was consumed. There was something of a disagreement or argument between Matthew Hennock and Luke Doyle concerning what Luke Doyle had told the police about the involvement of Hennock in the burglary at Braybrook’s Pharmacy at Cootamundra.

64. During the week end of 10 and 11 March 2012 the group (Collins, Doyle, Hennock and the accused) went fishing at the Bethungra Dam. Collins gives and account of the accused calling at a number of places in an attempt to obtain (score) drugs. They returned to Young via Stockinbingal and Luke Doyle stayed the night in Luke Collins’ motel room.

65. At p 285 and continuing Matthew Hennock gives an account of himself, the accused and Luke Doyle sharing a 60 mg MS Contin tablet at a toilet block at a park. Each of them had separate needles and took the drug intravenously. Just before that he said that the accused and Luke Doyle came from Young and picked him up at Cootamundra and they returned to Young. Matthew Hennock was not sure what day it was that they shared the one tablet at a park (see p 289). However, in the account there is no suggestion that Luke Collins was with them. In those circumstances it is likely that this occurred on Sunday 11 March 2012, or as sometimes referred to in Hennock’s evidence as day 2. As the Crown submitted in his closing address this consumption of MS Contin would have accounted for the morphine reading in the post mortem blood sample of the deceased.

66. It is plain enough that at some time over that week end Matthew Hennock, Luke Doyle and others including Luke Collins were at the home of the accused drinking. There is a dispute as to the precise events. There was some type of exchange and altercation between Matthew Hennock and Luke Doyle, the genesis of which was Luke Doyle telling the police of the involvement of Matthew Hennock in the break, enter and steal offence at Braybrook’s Pharmacy in Cootamundra.

67. Matthew Hennock maintains (see p 279) that the exchange was only verbal and that they both “bridged up”. Either the accused or Luke Collins or both stepped in and told them to stop. Matthew Hennock said at p 281 that he had a good relationship with Luke Doyle after the altercation and that they were good friends. He also said that he was never really angry with Luke; that Luke was never a criminal and it was Luke who was the first one to tell of the statement.

68. Luke Collins gives an account of a far more physical and violent exchange. He said (p 165-166) that Matthew Hennock called Luke Doyle a dog, that Matthew said that Luke was just as involved as he was, that the two of them faced up to fight and that he told police that he thought Luke was going to kill Hennock, as he jumped up and said, “I’ll smash you right now”.

69. As I understand the cross-examination and the case for the accused, this conflict between Hennock and Luke Doyle is potentially some type of motive for Hennock to “spike” Doyle’s drink on the night of 12 March 2012.

70. I accept that there was some type of exchange between Hennock and Luke Doyle over the issue of what Luke Doyle had said to the police. However, it seems that any animosity was short lived as the two of them with the accused went around Young trying to source drugs. Further, Matthew Hennock and Luke Doyle were part of the agreement to steal alcohol that would be later swapped for drugs.

71. On day 3, which would have been Monday 12 March 2012, Hennock came back from Cootamundra. He gives an account (p 290) of the accused, where the accused was giving directions to Luke Doyle as to where he should drive “looking for pills to get on”. “Get On” is a colloquial expression meaning to acquire drugs. They came across a Mr Corey Power, who is since deceased. They went to a block of flats where Corey Power lived. The accused obtained some Xanax tablets at Corey Power’s flat but Matthew Hennock denied seeing the accused actually receiving the pills (p 294).

72. After leaving the unit each of them, i.e. Luke Doyle, Matthew Hennock and the accused each took two of the 2 mg Xanax tablets – see Hennock’s account at p 295 and continuing. Hennock also said (p 295), “Well after that we were all off – off on the Xanies, you know, so it was a bit hazy after that”. The number of tablets received by the accused is something that is in dispute. However, ultimately the precise number of tablets received by the accused from Corey Power is of little consequence. The undisputed fact is that the accused received a quantity of 2 mg Xanax tablets from Corey Power. The accused, Matthew Hennock and Luke Doyle all had some of those Xanax tablets.

73. As I have already said, Corey Power is since deceased. He was electronically interviewed by police on 15 March 2012 and the contents of that interview were received into evidence. Essentially that interview is hearsay evidence and I note that the accused’s legal representatives have not had an opportunity to cross-examine on any of the contents of that record of interview. Further, pursuant to s 165(1)(a) of the Evidence Act, 1995 I warn myself that as the contents of that interview are hearsay the contents may be unreliable. Further, I will need to be aware of that possibility in my assessment of the evidence.

74. Corey Power gave an account of the accused inquiring of him - when she, Luke Doyle and Matthew Hennock initially spoke to him - asking for money for the OxyContin she had given him “a couple of weeks earlier” (Q/A 175). He went on to explain at Q/A 230/231 that she had “shouted him” a couple of OxyContin because of issues he had with discs in his back.

75. Corey Power filled a prescription for 2 mg Xanax and contacted the accused to let her know that he had the Xanax – see for example Q/A 243. The accused, Hennock and Luke Doyle arrived at his flat at about 3pm – (Q/A 339‑341). He told her he could not get the script until 4pm – (Q/A 351). The accused, Matthew Hennock and Luke Doyle returned to Power’s flat sometimes later, about 5.30 to 6pm (Q/A 371), although it seems that Luke Doyle remained in the ute (Q/A 415). In answer to Q 412 Corey Power said that the accused wanted 20 Xanax tablets but he gave her 10. There are 50 tablets in the prescription (Q/A 421).

63. As submitted by the learned Crown Prosecutor, until the post mortem toxicology results were known it seems that all concerned were of the view that the death of Luke Doyle was related to an overdose of Xanax rather than oxycodone.

64. Corey Power also in his record of interview also gave an account of the accused inquiring of him as to whether he could get OxyContin – see for example Q/A 203. Further, she offered to assist him by providing a document to assist him obtaining that drug – see Q/A 233; 418-420.

65. Corey Power left the Young area and went to Goulburn soon after the interview. However, this should be seen in the context of him having work in Goulburn. The trip to Goulburn was neither sudden nor unexpected and explains a perfectly legitimate reason for him to leave the Young area soon in time after the death of Luke Doyle.

Stealing alcohol to swap for oxycodone

79. There is no dispute that there was a plan hatched between the accused, Luke Doyle and Matthew Hennock to steal alcohol which they would swap for oxycodone tablets. At tab 14 of Exhibit F are a number of still photographs taken from CCTV security footage from the Bottle Shop of Woolworths at Young. The footage was played in the course of the trial. The footage taken for the few minutes before 8pm on 12 March 2012 clearly shows the accused, Luke Doyle and Matthew Hennock stealing the alcohol.

80. Matthew Hennock gives evidence of the plan at pp 296-7 of the trial transcript. He said they each took one bottle of alcohol but he could not remember what alcohol was actually taken. One bottle was Absinthe, otherwise known as “Green Fairy”, and another bottle was some type of bourbon whiskey.

81. In answer to questions 558 to 577 in her first interview taken on 13 March 2012 (i.e. the day Luke Doyle died) the accused gives an account of Matthew Hennock having a “brainwave” and then the three of them (i.e. herself, Matthew Hennock and Luke Doyle) getting the alcohol from Woolworths. However, the accused maintains - noting in particular the answer to question 576 - that the alcohol was purchased as opposed to being stolen.

82. The accused gives an account in answer to questions 213 to 235 in her second record of interview (ERISP) of 18 October 2016 (i.e. shortly after her arrest) of the three of them each stealing a bottle of alcohol. In this regard I note in particular the answer to questions 232 to 235 inclusive.

83. The interview of 13 March 2012 is at tab 5 of exhibit F and the record of interview of 18 October 2016 is at tab 6 of exhibit F.

84. There was no issue taken in the trial that the accused, Luke Doyle and Matthew Hennock each stole alcohol with the intention or at least the hope that that alcohol would be swapped for oxycodone.

Events at Craig App’s House

85. The learned Crown Prosecutor made a very valid submission in his closing address at [34] that precisely what happened at the home of Craig Apps at 40 Taylor Road in Young on the night of 12 March 2012 remains largely unknown. What is plain, however, is that the accused, Luke Doyle and Matthew Hennock went to Apps’ home hoping to be able to source oxycodone tablets either directly or indirectly from Craig Apps.

86. Matthew Hennock (p 298) said that they got to Apps’ house in the later afternoon or night; he did not remember whether it was dark or not, that he had not previously met Apps, they parked in the driveway and then went inside. He did not think that Apps knew that they were coming (p 298). The following appears at p 298 line 10 to p 300 line 40:

Q. I'm sorry. I think I've asked you this, but do you remember what time of the day it was?

A. I don't know what time of day of - late - late afternoon, early night, I think.

HIS HONOUR

Q. Do you remember whether it was dark or not?

A. No. I don't.

Q. You don't remember.

A. I don't remember. No.

CROWN PROSECUTOR

Q. Had you ever met Craig Apps in person before you went to his house?

A. No.

Q. But you knew of him.

A. Knew of him. Yeah.

Q. When you got to his house, what happened?

A. (No verbal reply)

Q. Drove up the driveway?

A. Yeah. We parked in the driveway.

Q. Did you go inside?

A. Yeah.

Q. Who went inside?

A. All of us.

Q. Who else lives in that house apart from Craig Apps?

A. He has a little boy there. His son.

Q. Do you know how old his son was?

A. He's two or three, I suppose.

Q. Do you know where his son was?

A. He's - he was asleep when - yeah.

Q. He was asleep.

A. Yeah.

Q. In a bedroom in the house?

A. Yeah.

Q. To your knowledge, did Craig Apps know you were coming?

A. I don't think he did.

Q. What happened when you go to his house and went inside?

A. Well, we've gone inside there and I don’t' really remember. I think someone's gone to swap the bottles. I - I don't think that - I don't remember having Oxys but I don't think they come from there. I think they come from somewhere else. Someone's gone to sway the bottles.

Q. Did you say "I don't think I had an Oxy"?

A. I don't remember having them. Yeah.

Q. Do you remember any conversation that took place between anybody about swapping the bottles of alcohol for OxyContin tablets?

A. I just remember that's what we were doing. That's what the plan was. That's what we were doing.

Q. Was it your understanding that that's why you went to Craig Apps' house?

A. Yeah.

Q. Do you remember anybody leaving the house while you were they?

A. No. It's all hazy after that because - cause of the Xanax. The - yeah.

Q. After you'd taken the two Xanax, do you think, while you were parked at Cory Power's place, did you take any more?

A. Not that I remember. There was more though. Had a little bag of them, so we could of.

Q. You may have taken more but you don't remember.

A. Don’t' remember. No.

Q. Did you see Luke Doyle take any more than the two that he took in the car?

A. No. I don't remember any of us having any more.

Q. Do you remember Luke Doyle asking for more Xanax tablets.

A. I think - I think both of us might of asked for more.

Q. And who were you asking?

A. Tracy.

Q. Why were you asking Tracy?

A. She's the one that owned them.

Q. She's the one that owned them.

A. Yeah.

Q. So is this correct. You don't remember anyone leaving from Craig App's house while you were there.

A. Yeah. I don't remember.

Q. You don't remember taking any OxyContin yourself.

A. No.

Q. Did you see Tracy Doyle inject any OxyContin?

A. I remember something about - at the - in the kitchen. I don't really remember it. I don't remember having any though.

Q. What do you remember?

A. I remember her mulling up in the kitchen.

Q. Who?

A. I don't really - just people that were there. They'll - like Tracy and Luke mashing them.

Q. Apart from you, Craig Apps, Luke Doyle, Tracy Dowling and Craig Apps' son, was there anybody else there?

A. No.

Q. So you remember somebody or something that happened in the kitchen with mulling up.

A. Yeah.

Q. Do you know what drug was being mulled up?

A. It would've been Oxys.

Q. It would've been Oxy.

A. Yeah.

Q. Why do you say that?

A. Well, Xannies, you just swallow and that's - with the team I always just swap the bottles for the Oxys.

Q. What's the next thing you remember at Craig Apps's house?

A. I don't really remember anything till I walked out in the lounge room.

87. Craig Apps gave evidence (commencing p 406) that his drug of choice was his medication, namely OxyContin, that he had his own most of the time. He had an arrangement with Antonio Carruso who lived four houses up that he would occasionally get OxyContin from Carruso, who so far as Apps knew was prescribed that drug. Mostly Mr Carruso wanted cash for the tablets. Apps met Matthew Hennock for the first time on 12 March 2012.

88. On the issue of obtaining OxyContin, Apps said in evidence commencing p 407 line 15 to line 39:

Q. That's all right. Do you remember how they got to your house? How they arrived?

A. Yeah. Driving a - a yellow vehicle, like a truck - Ute.

Q. Do you remember who was driving?

A. No. Because they pulled up by - by themselves and the door knocked.

Q. So someone knocked on your door?

A. Yeah. Tracy.

Q. You opened it.

A. Yeah.

Q. And who did you see first?

A. Tracy.

Q. What happened?

A. Well, she asked me, could I get her a - get her any of the OxyContin from Caruso.

Q. Right.

A. Tony.

Q. That was Tracy that asked you that.

A. Yeah.

89. Craig Apps gave an account of meeting the accused, Luke Doyle and Matthew Hennock around the streets of Young earlier in the day and the accused asking for OxyContin – see p 408-410. Luke Doyle was driving the vehicle, i.e. the accused’s red Nissan utility, and Matthew Hennock was in the passenger’s seat with the inference being that the accused was in the middle. The account given by Apps of this part of the events was the accused inquiring of Apps whether there were any “oxy’s” around and Apps telling the accused that he had not seen the man for a few days. “The man” is clearly a reference to Carruso.

90. At p 407 lines 31 to 45 the following appears in the evidence in chief of Craig Apps:

Q. What happened?

A. Well, she asked me, could I get her a - get her any of the OxyContin from Caruso.

Q. Right.

A. Tony.

Q. That was Tracy that asked you that.

A. Yeah.

Q. What did you say?

A. I said, "Why don't you go and ask the man?"

Q. Did they come inside your house?

A. Yeah.

91. The accused was aware that Craig Apps could source oxycodone tablets from a neighbour.

92. Continuing Apps’ account of the events of the night of 12 March 2012 when the accused, Matthew Hennock and Luke Doyle attended his home, at p 411 line 18 to p 412 line 36:

Q. They came into your house?

A. Yeah.

Q. I think you said there was a knock on the door, you opened the door. Tracy Dowling said words to the effect, "Can you get any oxy of the fella up the street?" Something like that?

A. Yeah.

Q. You said, "I don't know, I'll have to go and ask him." What happened after that?

A. Well, he - I went up and seen him, asked Tracy to keep an eye on my boy. I come up and seen him. And - and the - and the answer was, yeah, he would swap for the alcohol.

Q. When was the alcohol first mentioned?

A. When - when - as soon as they got there basically.

Q. Who by?

A. Tracy.

Q. Do you remember what she said about alcohol?

A. Well, "Do - do you think you - do you think the man - the old mate would - um - do a swap for the alcohol?"

Q. You went up and saw - is this Mr Caruso you're talking about?

A. Yeah, yep.

Q. You went up and saw him?

A. Yep.

Q. Asked him if he'd swap any oxy for‑‑

A. Yeah.

Q. ‑‑alcohol and he said yes?

A. Yep.

Q. What did you do after that?

A. Went back and told them. I said, "Yeah, he's keen."

Q. Do you remember how long you were gone?

A. Not long at all.

Q. You went back and you told all three of them‑‑

A. Yeah.

Q. ‑‑he's keen?

A. Yeah.

Q. What happened then?

A. Well, they went for a drive and come back ten minutes later with three bottles.

Q. Three bottles of what?

A. Well, I really can't remember on what that was. I know one was Jack Daniels I think. There was another bottle of blue, a blue colour. That's all I can remember. I don't know what it was, what it was called.

Q. How many bottles?

A. Three.

Q. Did each of those bottles contain alcohol?

A. Yeah.

Q. Did either one of the three, Tracy Dowling, Luke Doyle or Matthew Hennock say where they'd got them from?

A. No.

Q. They came back to your house with those three bottles of alcohol.

A. Yep.

93. Craig Apps then gives evidence (p 412-3) that after he came back from Carruso’s place he saw the accused and Matthew Hennock “shooting up” (injecting drugs intravenously) in the bathroom. He remonstrated with them over this because his young son was in the house and told them to get out. He also said that he did not know what they were shooting up and that Luke Doyle was at the table.

94. The evidence of Mr Apps became a little confusing and the Crown Prosecutor attempted to clarify events with him. The following appears at p 414 line 1 to line 42:

Q. You said to Tracy Dowling, Luke Doyle and Matthew Hennock, yes, he'll trade for alcohol. They went away, gone about ten minutes. Came back with three bottles of alcohol.

A. That's right.

Q. When did you take that alcohol to Mr Caruso?

A. Sorry?

Q. When did you take that alcohol to Mr Caruso?

A. As soon as they got back.

Q. What happened when you got to Mr Caruso's house?

A. Done the swap and I was out of there. They had my boy down there, you know. Like, I didn't know these two other fellas, I only knew Tracy, so I just wanted to be quick.

Q. Do you remember how many bottles of alcohol you took to Mr Caruso's place?

A. Three, three.

Q. How much OxyContin did he give you?

A. Three.

Q. Three tablets?

A. Yeah.

Q. Do you know what dosage they were?

A. 80 milligrams.

Q. What did you do with those three tablets?

A. Give them to Tracy.

Q. So you went back to your place‑‑

A. Yeah.

Q. ‑‑and gave them to Tracy.

A. Yeah.

Q. What did she do with them?

A. Probably put it in - in her pocket. Because I - I was getting up her, pretty much. Kicking - I was kicking them out. "Time to time go," you know, "Get your mate and go."

95. Antonio Carruso also gave evidence. He was a particularly unimpressive witness. It was perfectly plain to me that he was in the habit of supplying oxycodone tablets prescribed to him to others for either goods or cash. I made a note at the time that he gave evidence that Mr Carruso gave every impression of doing his level best to exculpate himself and distance himself from the supply of oxycodone tablets, particularly the tablets that were procured by Apps and obviously taken intravenously by Luke Doyle on the night of 12 March 2012. This impression has not dissipated with time.

96. Mr Carruso gave an account of Apps coming to his home multiple times. It is difficult to summarise and accordingly I will extract the evidence from the transcript commencing page 529 line 29 to p 530 line 6:

Q. The night before Mr Apps told you that a young man had died, did Mr Apps come to your house?

A. Yes.

Q. Do you remember the first time he came to your house that night?

A. Between 6, 7 o'clock.

Q. And do you remember what he wanted when he came to your house that first time?

A. He wanted to sell me some alcohol.

Q. What did he want to exchange for the alcohol?

A. He wanted to swap alcohol for OxyContins and I said no.

Q. And what did Mr Apps do? Did he stay at your house or did he go somewhere else?

A. No, he left. He'd gone.

Q. Did he come back again?

A. He come back, yeah, trying to sell me--

Q. How much longer, how long after?

A. Less than half an hour, he come back trying to sell some fishing lines, fishing rods and more alcohol and a watch, some cameras and I said no.

Q. What did he want for those items? Did he want money or did he want something else?

A. He wanted money and I said I hadn't got money. He didn't want anything else. He was to sell it for money.

97. Later (p 535 line 12) I asked how many times was it that Apps came to his home. The answer was, “A few times. Four, five, six times---”. He then went on to say that was between 6pm and 10pm.

98. Carruso then gave an account (see p 533) of Craig Apps coming to his home again the next morning and giving him two 80 mg OxyContin tablets. It was during this visit that Carruso found out that Luke Doyle had died. The following appears p 533 lines 29 – 41:

Q. Do you remember what you asked him?

A. I said, "Who died? How did - how did the person die?" He said they all took some drugs there.

Q. Did he tell you what sort of drugs?

A. The cocktail mix of alcohol and drugs and marijuana.

Q. Apart from marijuana, did he mention any other drugs?

A. Not that I can remember but he made it clear that the two OxyContins that I gave him, they were for him and for him only.

Q. That's what Mr Apps told you.

A. Yes, before I even given them to him.

99. The following appears at p 538 lines 21 – 26 in cross-examination of Antonio Carruso by Mr Lowe for the accused:

Q. Can I just query this, then. Why didn't you tell him, "If you can pay me back tomorrow morning, obviously you have the OxyContin?" Did you ask that?

A. I had four. I gave him two. He said he wanted to lend them. So I lent him two and he brought them back the next morning to me, and that's when he told me the next morning if I could look after his son, that he had to go to Young Police Station to make a statement that someone passed away.

100. It was this exchange in particular that led to my earlier observations, from which I most certainly do not resile, that Antonio Carruso was doing his best to distance himself from the supply of the oxycodone tablets. Carruso maintained this account in cross-examination – see p 539 lines 16–41. These answers fortify my observations of Mr Carruso.

101. Another aspect of the evidence that also fortifies me in the observations of Antonio Carruso appears at p 536 lines 1–21:

Q. I'll ask you how many times, and I'll take you through your witness statement, but had Craig Apps been to your house before, seeking OxyContin from you?

HIS HONOUR: Do you mean by that had he come to the house wanting OxyContin before that night?

LOWE: Yes, before that night.

WITNESS: No.

LOWE

Q. So this was the first time ever?

A. He come and asked for them and I kept saying, "No," never done any of that, but that night he did came and he was badgering me and I was a bit drunk, then I got more drunk when he come back.

Q. So you say Craig Apps came for the first time and he wanted you to give him some OxyContin, you told him that you only had four tablets, that's right?

A. That's correct, a hundred per cent.

102. It is clear enough from the evidence already reviewed that this was most certainly not the first time that Carruso had supplied oxycodone tablets to Craig Apps.

103. At p 538-539 Antonio Carruso denied being offered a chain saw for sale. It is the case for the accused that Matthew Hennock, after leaving the home of Craig Apps, went to the home of the accused and stole various items including a camera, fishing tackle and a chain saw and this property was offered by Apps to Carruso.

104. The following appears in the cross-examination of Matthew Hennock at pp 356 line 33 to p 357 line 49:

Q. And that means that you and Luke Doyle are driving around in the ute, okay? You accept that?

A. Yep. Well, what I would think would happen, we probably went there and didn’t have‑‑

Q. Well, I don’t, I object.

A. Yep, all right, yep.

Q. I object about think.

A. Yep.

Q. You drove back or Luke Doyle drove back to the Dowling family home. Do you have any recall?

A. No, not of that, no.

Q. If you would have a look at exhibit 2, which is the photo, the colour photo, can you see anything that's in the back of the ute? Can you make out anything?

A. Oh, there's just something blue. Something black by the look of it. It’s all blurred.

Q. And what do you say was in the back of the ute?

A. I have no idea. I don’t know.

Q. There's a chainsaw. Do you accept that?

A. No. Can't see a chainsaw.

Q. If you have gone back and stolen a chainsaw, a digital camera and a fishing rod‑‑

A. Mm.

Q. ‑‑your answer, I assume, would be that you can't remember?

A. None of that. That doesn’t look like any of them things.

HIS HONOUR: What does that - I don’t understand that question, Mr Lowe, I'm sorry.

LOWE: Okay. I withdraw that question, your Honour, and it can be struck from the record.

Q. I'm putting to you that a chainsaw, a petrol chainsaw, based chainsaw‑‑

A. Uh‑huh.

Q. ‑‑was stolen from the Dowling family property that night.

A. Yep.

Q. I'm putting to you that a digital camera was stolen from the Dowling family property that night.

A. Yep.

Q. And I'm putting to you a fishing rod was stolen from the Dowling family property that night.

A. Yep.

HIS HONOUR

Q. You've answered "Yep" to each of those three questions. Now, is that response simply to indicate you understand the question, or are you agreeing that those things were stolen?

A. No, I - I understand the question.

LOWE

Q. And I'm putting to you that you were involved in the theft of those particular items from the Dowling family property.

A. Yeah, I don't believe that happened.

105. The witness was quite correct so far as his observation of exhibit 2 is concerned. Exhibit 2 is a series of four colour photographs, which are stills taken from the CCTV footage at the Young District Hospital. As the tribunal of fact I am firmly of the opinion that the photographs are indeed blurred. Clearly enough there are objects in the back tray of the utility. However I am quite unable to discern what those objects may or may not be. In particular I am not able to say that they include a chainsaw or a fishing rod.

105. It is uncontroversial that Matthew Hennock and Luke Doyle were at the Young District Hospital at or shortly after 10.30pm on 12 March 2012. The CCTV footage was shown in the course of the trial and there are a number of stills taken from that footage at tab 15 of exhibit F. I am satisfied that Matthew Hennock and Luke Doyle went to the hospital to obtain “Fitpacks”, which I understand are packages of syringes and other paraphernalia for use with intravenous drug use. They are supplied, it seems, as an issue relating to public health.

106. The fact that there was inquest into the death of Luke Doyle has already been mentioned as was the fact that the accused was nominated as a person of interest. None of the papers from the inquest were tendered in the trial although reference was made to the inquest on several occasions. It is clear that the accused, being a person of interest, was served the brief of evidence shortly before the inquest began.

107. The following appears at p 360 line 45 to p 361 line 24:

Q. Now, you'd accept this effect of Xanax on you: "You wake up and you've got, fucking, your next door neighbour's chainsaw in your fucking lounge room type thing. That is what Xanax is like." Is that something that you can recall saying to the coronial inquest?

A. Well, I wouldn't have been talking about chainsaws. She reckons..(not transcribable)..because I don't believe that ever happened. But that's what Xanax do. You, you wake up and you - things you don't remember.

Q. It's curious that you chose to say a neighbour's chainsaw. You agree that that was your evidence.

A. I would say it's probably just a coincidence.

Q. Are you aware of what Craig Apps took up to the fellow he was sourcing OxyContin from?

A. No.

Q. So it would be a complete surprise to you to say that‑‑

CROWN PROSECUTOR: I object to the questions, on the basis that the witness has no memory of anybody leaving the house; there's been no evidence about anybody going anywhere to get any drugs. He's now being asked to give answers based on something he knows nothing about.

HIS HONOUR: I think that's right, Mr Lowe.

LOWE: Yes.

Q. Can you recall whether Craig Apps was given by you or Luke Doyle a camera and some fishing line stuff?

A. Yeah, I don't remember that. I don't think it happened.

109. Craig Apps was also asked about the property allegedly stolen from the accused’s home, in particular see p 424 line 5 to 37

Q. Was that the first time that you'd ever met Matthew Hennock in person?

A. (No verbal reply)

Q. Did Matthew Hennock give you anything that night?

A. No.

Q. Did he offer you a chainsaw?

A. No.

Q. Did he offer you a fishing rod or some fishing gear?

A. No, I already had my own.

Q. Did he offer you a digital camera?

A. Not that I can remember.

Q. Did he give you any of those things and suggest to you that you should go and see Antonio Caruso and swap them for OxyContin?

A. I can't remember that.

Q. Don’t remember that? Okay. Could that have happened?

A. It could've happened but I don’t think it did.

Q. You don’t think it did?

A. Not into having stolen stuff.

Q. How many times did you go to Mr Caruso's house?

A. I think I went - yeah - twice.

Q. First time to ask him if he'd swap?

A. Yeah.

Q. Second time to do the swap.

A. Yeah.

110. The accused at and around question 385 in the ERISP of 18 October 2016 gives an account of observing the chainsaw being taken out of the utility at Apps’ home.

111. There is very considerable force in the Crown Prosecutor’s submission (closing submissions at [175]) that the proposition (to use a more neutral word than lie as used by the Crown) about the theft of the property were based on what was in the brief of evidence for the inquest or what was said at the inquest. The Crown Prosecutor then refers to question 93 of the ERISP taken on 18 October 2016, i.e. shortly after her arrest for the Manslaughter of Luke Doyle. The latter part of the answer to question 93 is:

“…You know, the boys obviously went out there after Mum left to go to work, and have stolen the camera and the chainsaw and the fishing rod and swapped all that, and then went to the hospital and got more black boxes”

112. “Black boxes” is a reference to “Fit packs”. These are apparently boxes containing clean syringes that are made available at the hospital.

113. Returning to the record of interview, the accused is asked at q 95 of the ROI of 18 October 2016, “Oh no, just about the stolen stuff, about the stolen chainsaw and all---”. The answer is:

“Matthew admitted it, at the coroner’s inquest. In court. He said, ‘Um you wake up and you’ve taken your best friend’s chainsaw, camera and fishing rod…’”

114. On the issue of chainsaws, fishing rods and the like the following appears in the evidence of Craig Apps at p 481 line 35 to p 482 line 12:

Q. So it would be wrong to say that you had approached Mr Caruso with stolen property as a swap for OxyContin.

A. Yeah, no.

Q. Never happened?

A. No. I have swapped him for - for stuff, but not stolen stuff.

Q. Did you take him a camera that evening?

A. Yeah. A camera and two fishing rods.

Q. You took a camera and two fishing rods up to him on the 13th?

A. Not that day? No, this is prior - long - long time.

Q. I'm putting to you that you did take a camera and some fishing stuff up there.

A. Yeah, I did, but not on that day. It was prior, like, a few weeks, yeah. But earlier. Heaps of weeks ago - earlier.

Q. Did you get those particular items from Matthew Hennock?

A. No. I bought them me self in Canberra.

Q. So it would be completely wrong to say that you ever approached Tony Caruso trying to sell stolen property.

A. Just - just that camera and the rods.

Q. Now, you were asked today whether you took a chainsaw from the back of the Ute.

A. Yeah, yeah. No. I didn't do that. I'm not a petty thief.

115. Mr Lowe successfully sought to cross-examine Matthew Hennock on his criminal history. He has matters of dishonesty recorded against him, including the break, enter and steal. I have taken that cross-examination and those matters on his record into account in coming to the conclusions that I have about the acceptance of Hennock’s evidence.

116. The extract from Matthew Hennock’s evidence at the inquest read to him at p 360 commencing line 45 includes nothing about a camera or fishing rod. Matthew Hennock maintained that he did not remember anything about those goods on the night of 12 March 2012. Apps maintained that any exchange with Carruso where a camera was exchanged for drugs was several weeks before. Carruso does not support that such goods were there and finally there is the point of what Matthew Hennock said at the inquest. There is the footage of the accused, Hennock and Doyle stealing the alcohol. There are the admissions in the ERISP of 18 October 2016 concerning the theft of the alcohol. As the tribunal of fact I am satisfied to the criminal standard that the oxycodone tablets supplied by Carruso were in exchange for the alcohol. I am also satisfied that Apps obtained three 80 mg oxycodone tablets from Antonio Carruso, although the precise number of tablets obtained is of ultimately no real consequence; Carruso was the source of those tablets.

117. It is clear enough from the post mortem toxicology results that Luke Doyle used oxycodone. Matthew Hennock was cross-examined (see for example p 358) that he could have sourced the oxycodone from somewhere other than Apps. However, given the totality of the evidence, I am satisfied that the oxycodone that Luke Doyle took was some of that which Apps obtained from Carruso. Given the expert evidence referred to and summarised earlier in these reasons under the heading “The death of Late Luke Doyle” I am also satisfied that Luke Doyle took the oxycodone intravenously.

118. The following appears in the evidence in chief of Matthew Hennock at p 300 lines 7 to 43 inclusive:

Q. You don't remember taking any OxyContin yourself.

A. No.

Q. Did you see Tracy Doyle inject any OxyContin?

A. I remember something about - at the - in the kitchen. I don't really remember it. I don't remember having any though.

Q. What do you remember?

A. I remember her mulling up in the kitchen.

Q. Who?

A. I don't really - just people that were there. They'll - like Tracy and Luke mashing them.

Q. Apart from you, Craig Apps, Luke Doyle, Tracy Dowling and Craig Apps' son, was there anybody else there?

A. No.

Q. So you remember somebody or something that happened in the kitchen with mulling up.

A. Yeah.

Q. Do you know what drug was being mulled up?

A. It would've been Oxys.

Q. It would've been Oxy.

A. Yeah.

Q. Why do you say that?

A. Well, Xannies, you just swallow and that's - with the team I always just swap the bottles for the Oxys.

Q. What's the next thing you remember at Craig Apps's house?

A. I don't really remember anything till I walked out in the lounge room.

Q. Where had you come from?

A. I think I was in the kitchen.

119. Matthew Hennock also made a statement on 13 March 2012, i.e. the day that Luke Doyle died. In the course of re-examination at p 397 commencing line 39 he read an extract from that statement, namely:

“I remember the plan of why we, why we attended. This says why we were but why we attended Craig Apps’ house was to swap the bottles of alcohol for OxyContin pills. I don’t remember how or who swapped the bottles for pills but we ended up having three OxyContin pills, one each, one each for myself, Tracey and Luke. I remember we were in the kitchen and we each had a shot of the OxyContin pill. What I mean by this is we, each miled (sic, but read mulled) up a complete oxy tablet and injected it. I believe the oxy tablets were 80s which this means each tablet was 80 milligrams in strength”.

120. As the learned Crown Prosecutor correctly submitted ([43] of his closing submissions) Matthew Hennock was not challenged on that part of his evidence.

121. I have often observed it is always more difficult to give reasons as to why the evidence of a particular witness should be accepted rather than rejected. I had ample opportunity to observe Matthew Hennock in the witness box over several days. He remained calm despite sustained cross-examination. He never attempted to prevaricate or “fudge” with his evidence. He admitted he was or at least had been a junkie. In this regard I note in particular the answers at p 364 line 15 and continuing. He did not seek to diminish his role in the break and enter offence at Braybrook’s Pharmacy. At the end of the evidence of Matthew Hennock I was left very much with the impression that he had done his best to tell the truth of what he recalled of the events surrounding the death of Luke Doyle. He answered on occasions that he could not remember. Given the affectation by substances and the period of time those responses were understandable.

122. There is also material from the records of interview of the accused. In answer to question 599 of the first ERISP the accused said that she had an eighty (80mg) and passed out. She also maintained that her handbag had been ransacked. In answer to question 790 she says that Apps came back with one oxy. In answer to question 874 she says that Hennock had the one oxy tablet, but at question 902 says that she had the tablet at the kitchen table. At question 976 she was asked, “OK. And you recall that you injected it?” The accused replied that she could not remember. In answer to question 296 in the ERISP of 18 October 2016 the accused agreed to the suggestion that she injected the 80 mg tablet.

Luke Doyle shows adverse reaction

123. It seems uncontroversial that Luke Doyle became very somnolent at Apps’ home. He also vomited. Clearly he had an adverse reaction to something he had ingested. Given the toxicology reports the adverse reaction was to the substances that he had ingested.

124. After giving the evidence (p 300) of the “oxys” being mulled up, Matthew Hennock was asked (line 39) what was the next thing he remembered at Craig Apps’ house. He answered, “I don’t really remember anything till I walked out in the lounge room”. The evidence continued at p 301 commencing line 1 (to line 40)

Q. So, do you have any memory of how long you'd been in the kitchen?

A. No. I'd sort of snapped out of everything when I walked in the lounge room.

Q. When you walked into the lounge room, what did you see?

A. That's when I went out there to see Luke and I'd seen Luke on the lounge.

Q. I'm sorry. Say that again?

A. Luke was on the lounge. That's when I went out. Yeah.

Q. Which end of the lounge? Closest to the kitchen or the other end or does it face the kitchen?

A. Closest to the kitchen is - on the end of it.

Q. Is that where Tracy was?

A. I think she was still in the kitchen.

Q. Is that where Craig Apps was?

A. In the kitchen. That's what I think‑‑

Q. Is there a kitchen table in the kitchen?

A. Yeah. There's a kitchen table. Yeah.

Q. Were you sitting around the kitchen table?

A. I think so.

Q. Were you drinking alcohol?

A. I don't think so. I don’t - don't think so.

Q. Were you drinking coffee?

A. I don't think - I don't know.

Q. You don't remember.

A. Don't remember.

Q. Tell us what you saw of Luke Doyle when you walked into the lounge room.

A. He was hunched over on the side of the lounge.

Q. Which direction was he leaning?

A. He was left leaning.

125. He then said that he did not remember what Luke Doyle was wearing. Matthew Hennock then gave an account of attempting to wake Luke Doyle as follows (p 301 line 48 to p 302 line 43):

Q. What did you do when you saw him like that?

A. When I walked over and I started saying - trying to wake him up and I started slapping him, saying his name and - and I just started slapping him harder and got - and yelling louder. And that's when I‑‑

Q. So you were yelling out, "Luke, Luke".

A. Yeah.

Q. And you were slapping him. Where?

A. The face.

Q. With your hand?

A. Yeah.

Q. How many times? Do you remember?

A. Lots.

Q. Lots?

A. Yeah.

Q. Hard?

A. Yeah. Got harder, yeah. Yeah.

Q. What were you trying to do?

A. Wake him up. I started spinning out.

Q. You started spinning out?

A. Yeah.

Q. Did he wake up?

A. He just sort of mumble - groaned at me. That's - sort of - didn't do much.

Q. How would you describe Luke's condition.

A. I just thought I would - I’m going to get him in the car to take him to hospital.

Q. Are you familiar with the term "on the nod"?

A. Yeah.

Q. Is that what Luke was or something else?

A. A bit more than that. Yeah.

Q. A bit more than that.

A. Yeah.

Q. So he was mumbling.

A. Yeah.

126. Clearly enough so far as Matthew Hennock was concerned Luke Doyle was to use the accepted colloquial expression, “in a bad way”. The effect of this evidence was maintained in cross-examination. The following appears at p 365 lines 23 to 42:

Q. It's because your memory is playing tricks with you. You're finding it difficult to recall the events that night.

A. When I'd walked out and seen Luke, I remember shit a bit clearer.

Q. Isn't it the case that everything was a blur whilst you were in the kitchen?

A. Pretty much. Yeah.

Q. It's at that stage, when you walk out into the lounge room that you see Luke on the lounge. That's right.

A. Yeah.

Q. And you said, "I think he was still alive." Is that right?

A. Yeah, I - I know he's still alive.

Q. Do you recall that you spoke to Tracy Dowling? She told you that she reckon that she was on the nod in the fucking kitchen and woke up. Do you recall that?

A. When was this?

Q. You say that you never had a conversation to that effect.

A. I don't know.

127. Later at p 368 lines 3 to 20:

Q. You don't remember anything, because it's all a big blur. Is that right?

A. Pretty much. Lot of it's a blur, yeah.

Q. Do you recall saying to the police in your first interview, at question 441, "A. There's shit I remember and I don't really remember."?

A. If that's what I said.

Q. And you, yourself, have never seen anybody overdosing before.

A. Don't think so, no.

Q. When you saw Luke, first off you thought he was on the nod, didn't you?

A. When I first walked in there.

Q. Yes.

A. Until I went over to him, yeah.

Q. You didn't see him vomiting.

A. No.

128. At p 412-413 Craig Apps gives an account of returning from Carruso’s residence and giving over the oxycodone tablets, coming back to his home where he found Matthew Hennock and the accused “shooting up” in the bathroom and telling them to get out. In respect of Craig Apps’ observations of Luke Doyle the following appears at p 415 – 416 of the transcript

Q. I think you said Luke Doyle was "in a state", words to that effect.

A. Yeah.

Q. When did you first see him in any kind of position that caused you some concern?

A. When I heard him hit the ground.

Q. And where was that?

A. In my kitchen - kitchen, where you have your dinner.

Q. The dining room.

A. Yeah, dining room. Like, my kitchen and dining room are adjoined.

129. Then, going to p 416 lines 27 to 41 inclusive:

Q. So you heard, you said, Luke hit the ground.

A. That's right.

Q. Did you see him hit the ground?

A. No, I just heard.

Q. Where, to your understanding, had he been immediately before you saw him hit the ground?

A. I can't remember.

Q. But he - was he in the kitchen?

A. Yeah, yeah.

Q. Had you ever seen him in the chair or in the lounge in the lounge room?

A. No.

130. Under cross-examination at p 469 line 2, Craig Apps said that he heard Luke Doyle fall from the chair, which is what made him go out to the kitchen. At p 441 Craig Apps gave an account of hearing Luke Doyle hit the floor when he (Apps) came out of the bathroom. He said he saw Luke Doyle’s body half under the cow hide rug and there was Luke Doyle’s vomit on that rug.

131. I have already made the point that given the post mortem toxicology results there is an irresistible inference that Luke Doyle had some of the oxycodone at the home of Craig Apps. However, Craig Apps maintains that Luke Doyle did not have any of the drugs at his home on the night of 12 March 2012 – see p 466 lines 32 – 43. In light of all the other evidence this simply cannot be so.

132. Luke Doyle vomited in the kitchen/dining area of Apps’ home. At p 433 he gives an account of moving a cowhide mat, which is clearly shown in the photographs at tab 3 of exhibit F. The mat itself is photograph 28 and the position where it had been at the time that Luke Doyle was there is shown in photographs 29, 30 and 31. He moved that mat outside because he wanted to clean it as Luke Doyle had vomited on that mat. Initially Craig Apps said that an object on the floor was a piece of meat, but on closer inspection it is a towel or rag that has been used to clean up the floor. Further evidence of Luke Doyle being on the floor and vomiting is to be found at p 441. There was a suggestion that Luke Doyle may have vomited up one or more of the Xanax tablets he had ingested - see for example the cross-examination of Craig Apps at p 472. There is nothing in the evidence that would entitle me to find that anything other than that was a possibility.

133. I made the point early in these reasons that as the tribunal of fact I can accept part of witness says and reject part of what a witness says. Mr Apps very much falls into this category. He too was cross-examined on his criminal history. He became evasive in places where his own self-interest was concerned, in particular as to why he did not call an ambulance. It seems that he did not want to call an ambulance because there may well have been an issue with the custody of his son and the possible intervention of the Department of Family and Community Serves. However, so far as his evidence of obtaining the oxycodone tablets from Antonio Caruso and what he observed in his home concerning the late Luke Doyle I have no trouble in accepting. There was a very discernible difference in his demeanour when it came to matters involving his self-interest. Otherwise he gave every impression of doing his best to tell the truth of what he could remember of that night, noting that it was over six years ago.

134. Although - for reasons already given - I find that three tablets were obtained by Craig Apps, ultimately it is of little consequence how many tablets were obtained. Clearly enough Luke Doyle used oxycodone at Apps’ house and very clearly there was an adverse reaction. Given the expert medical evidence this adverse reaction was because of the drugs that he had ingested.

Q. Now, if all of those abrasions, the six areas of abrasion showed a similar linear aspect, that is, all the grazes are going in the same direction, would you expect that they all occurred at or about the same time when the body was being moved?

A. Or every time when a body was moved it moved to the same direction.

Q. Yes.

A. But I get your point that there - there can be a suggestion they were all inflicted but I would rather say the body moved in the same direction at that time, that's correct.

Q. You say there were no recent injuries present on the lower extremities.

A. That is correct.

230. What are described as brush burns are consistent with Luke Doyle being dragged along the ground. The shorts he was wearing appear to have elastic all the way around the waist band. Those shorts could well have become displaced in the same process of Luke Doyle being dragged along the ground.

231. The doctor was cross-examined on the issue of the froth at p 669 lines 20 to 45:

Q. At least, on the photograph I have, there appears to be a white substance around the lips. Can you see that, or not?

A. That - I see something but I'm not sure what does it represent, that's correct. Yeah, I see something there.

Q. You couldn't say whether it was froth or not?

A. No, it doesn't look froth. Like, it doesn't look froth. To me, yeah, you're right, your Honour, I see a little white substance on the lower lip in the middle, somewhere, but I cannot tell - it - it doesn't look froth to me because I can't compare to the froth next to it, right? But it - it's a too small amount of something so it's obviously difficult to identify.

Q. And that froth can only be produced when someone is alive, is that correct?

A. That is - that is correct, your Honour, because the way it gets formed, yeah. That - the air has to mix with the fluid from the lung.

Q. So does it follow that the deceased was alive and produced that froth in that position?

A. Not necessarily, your Honour, because the - the issue was the scenario that is it possible that during movement, that part of the froth came out and settled down this way? And - and I answered the question in a way that it doesn't make a huge difference, forensically, whether if the - the froth is present in the mouth, in the airways, or just right next to the mouth. Because, what - what it shows, that it was formed and there was a terminal phase when - when the deceased had breathing difficulties and during this phase, the - you know, the air mixed with the fluid.

232. Professor Du Flou was the Pathologist called by the accused. On this issue of the froth the following appears in the Professor’s evidence in chief at p 818 line 8 to line 20

Q. The second portion on the same issue, transcript 652, is found at line 23 and this piece of evidence was given to Mr Crown:

"So when you're asking me what relationship of the frothing material with the person being alive or dead, I can tell you that the person has to be alive, that froth will not form after death."

Again, do you see that that's what's typed or what's recorded in the transcript you're reading?

A. Yes.

Q. Do you agree with what is said by Dr Szentmariay expressed there?

A. In short, no, I do not. There - yes‑‑

233. Then at p 818 lines 37 to 46

Q. The question I asked, "And that froth can only be produced when someone is alive. Is that correct?" That's line 32, please. The answer given by Dr Szentmariay was this, "That is - that is correct, your Honour, because the way it gets formed, yeah, that the air has to mix with the fluid from the lung". Do you agree that that's recorded in the transcript that you've read?

A. Yes, correct.

Q. Do you agree with what the evidence is given by Dr Szentmariay?

A. With a significant reservation; certainly the production of froth during life but its appearance is typical after death.

234. Professor Du Flou was then asked a series of questions on drownings as it seems the white froth that is seen next to the deceased also commonly occurs in drownings. A number of extracts of professional journals became exhibits. Anyone reviewing this decision and exhibits should be aware that some of the photographs within the literature although in black and white are still very graphic.

235. After being taken to the literature, the following appears in Professor Du Flou’s evidence at p 821 line 18 to 23

Q. What do you draw from this paper in terms of the development of froth? Does it have to be only in terms of when a person is alive?

A. No, not at all. Well, development of froth itself occurs in the air spaces while the person is alive - I accept that fully. But its appearances are typically after death, not before death.

236. I also note the evidence of Professor Du Flou at p 822 lines 13 to 18:

Q. So the scenario I put to Dr Santamaria about either picking up Luke Doyle, you know, by putting your arms under his armpits and grabbing onto him, would that be a mechanism by which foam could appear, through his mouth and no89pse?

A. Yes, absolutely, if it had started developing in the lungs already, absolutely, yes.

237. On this same issue of the froth or foam, noting both terms are used interchangeably in the evidence, Professor Du Flou under cross-examination said at p 826 lines 32 to line 48:

Q. You would be satisfied that the foam on the face and on the ground came from Mr Doyle?

A. Yes, I would. I will make that as an assumption, but I think it's in the circumstances probably a valid assumption.

Q. You say, as I understand your evidence, Professor, that the foam that we've been referring to is produced before death, but expirated or aspirated after death?

A. In the case of a drug overdose and, for that matter, drowning, they are certainly produced before death within the lungs, and the material can become apparent while the person is still alive, or after the person has died.

Q. But just before death, because it requires a person to be breathing. It requires the movement of--

A. Well, whatever mechanism, either before or after death. It must involve movement of the froth from within the airspaces in the lungs, into the oral cavity, and from there, expelled into the exterior.

238. And further at p 827 lines 32 to 42:

Q. I'm going to say to you, Professor, that it appears to be dirt, and would you accept from me that it appears to be dirt from another location, not to a location where Mr Doyle was found and where he appears in those photographs.

A. Well, I'll accept that.

Q. What I really want to ask you is that having regard to the position of Mr Doyle's head in particular, the presence of froth, and bloodstained froth, on his face and down the side of his face, the left side, and a pool of that froth on the ground, is there a very high probability that that froth was expelled from his mouth or nose, or both, in that position?

A. It looks like it.

239. I understood that initially Professor Du Flou’s position was that he did not agree with the evidence of Dr Szentmariay that the foam or froth can only form when a person is alive. However, Professor Du Flou was asked at p 818 line 44, “Do you agree with the what the evidence is given by Dr Szentmariay?” The answer was, “With a significant reservation; certainly the production of the froth during life but its appearance is typical after death”. Clearly enough both Dr Szentmariay and Professor Du Flou are highly qualified and extremely experienced forensic pathologists. Ultimately it seems to me, as the tribunal of fact that both experts agree that the foam or froth can only be produced while the person is alive, albeit at a terminal stage.

240. The expert evidence does not cause me to doubt the conclusion that I have already expressed, namely that I am satisfied beyond reasonable doubt that Luke Doyle was alive when he reached 40 Burrangong Hall Road with the accused. In fact I agree with the Crown that the presence of that froth is consistent with Luke Doyle being alive while in the position as shown in the photographs in exhibit X.

241. Xanax featured significantly in this trial. Indeed, it seems as I have already noted that until the toxicology results were known it was assumed the death of Luke Doyle was as a result of an overdose of Xanax rather than oxycodone. There is no dispute that Corey Power supplied the accused with a quantity of Xanax tablets as I have previously set out within these reasons. Likewise there is no dispute that Matthew Hennock and Luke Doyle together with the accused consumed some of those Xanax tablets. The quantity consumed by Luke Doyle is very much in dispute. There is also a suggestion by the accused in her letters on the USB stick delivered to police that Matthew Hennock crushed up a number of Xanax tablets and “spiked” Luke Doyle’s drink. Craig Apps apparently told police that in the vomit that he saw on the cowhide rug were portions of undigested tablets but he could not remember this when he gave evidence – see p 441 line 45. There is a description by the accused of Matthew Hennock crushing up Xanax tablets and threatening Luke Doyle. The mechanism described of crushing under paper with his hand does not make sense.

242. Under cross-examination Mr Farrar said at p 681 line 5 to 13:

Q. If Mr Doyle orally consumed one Xanax tablet, 2 milligram, at about 7.00 or 8pm and then took some further Xanax tablets throughout the evening, resulting in a combined total in the area of four or five, what would say about that?

A. No, I - it's not consistent with his post‑mortem blood concentration of alprazolam and the other factor is that he was vomiting occasionally, at least. Any oral consumption of any substance may well have been brought up in that vomitus so may not have actually entered his bloodstream for that reason as well.

243. In any event, given that I have found that Luke Doyle was alive at the time he got to the home of the accused it is of little consequence how much Xanax he had consumed. The alprazolam in Luke Doyle’s blood as revealed by the toxicology results is consistent with one tablet having been ingested by the deceased.

244. Jade Berkrey gave evidence that Luke Doyle never injected himself when they were in a relationship. I am not prepared to find that Luke Doyle was not injecting himself at the time of his death and for some time before that. Exhibit 7 shows that Luke Doyle was regularly being prescribed oxycodone in the months before his death. The irresistible inference is that he was using that substance, noting that empty packets were found in the room he was occupying at his father and grandmother’s residence in Cootamundra.

245. Dr Szentmariay found a healing puncture wound on Luke Doyle’s left hand, the likely cause of which was the intravenous administration of drugs – see generally pp 656-7. This wound gave the appearance of being very recent, or “maybe like a day before” – p 656 line 42. Noting the cause of death it is likely that this was where the oxycodone was injected by Luke Doyle at Craig Apps’ house.

Other matters

246. There could be no dispute that Luke Doyle, Matthew Hennock, Luke Collins and Corey Power as well as the accused were all involved in the obtaining of and use of prescription medication and the improper use or abuse of those drugs. The use of those drugs is the background to this case. As the Crown correctly submits, this case is not about the improper supply of prescription medication, it is about the conduct of the accused and what she did or did not do.

247. The following appears at Q/A 899-902 in the accused’s second record of interview:

Q:   OK. So, I’ll, I’ll break that one up for you again. So, tell me, um, tell me, in what you mean by threats by Matthew

A:   He said if I tell anyone he would kill me

Q:   Yep, and was that back at the time of this incident?

A:   Yep.

Q:   OK. So nothing before this interview commenced

(NO AUDIBLE REPLY)

Q:   So, like he didn’t speak to you anytime---

A:   Yeah, on the truck, on the, he got arrested, um, around the time that I got arrested. Um, he got two years or something in relation to the chemist. He was on the truck at that same as well.

248. Exhibit A1 is the custodial movement records relating to the accused and Matthew Hennock. Although not particularly easy to negotiate, those documents show when compared to each other that they were never moved between correctional centres on the same date. Given the gender difference it is difficult in the extreme to perceive that they would have had contact at the centre even if they were at the same centre. In any event, the accused maintains that the threat was made on the truck.

249. There is correspondence between the accused and Hennock while they were in custody. For more abundant caution I should and I do direct myself that I must not draw any inference adverse to the accused because she was in custody. The fact remains that they did correspond. Exhibit 5 is a letter written by Hennock to the accused.

250. There is certainly no evidence of animosity on the part of Matthew Hennock towards the accused and in fact quite the contrary. He is asking her to assist in contacting a female inmate and laments the passing of Luke Doyle in that (as it appears in the letter), “…everythin would be different if we never had them fucked up evil Xanax that night we would accuctully fully understand wat happen that night and Doyle would still be here he would be here I woundn’t spent everyday tryn think wat happen he would be here…” At the conclusion of the letter there is what appears to be a post script that reads (again as written), “Just read this, letter fuckn sounds all depressed an shit lol, write straight back an get sum honey write me xx”. Clearly enough, the two of them were on good terms at the time this letter was written and that letter is very much at odds with the suggestion of animosity between them at that time.

251. Matthew Hennock, Craig Apps and Trent Lovegrove all give evidence that it was the intention of getting Luke Doyle into the red utility and get him to hospital. There were substantial challenges to the evidence of Matthew Hennock and Craig Apps but there was no challenge that it was their intention to get Luke Doyle to hospital.

252. It is also very clear from the combined effect of the evidence of Luke Collins, Matthew Hennock, Craig Apps and the material from the record of interview of the late Corey Power that it was this accused who was the one who was leading the search for oxycodone on the days before 12 March 2012 and on that day. As the Crown submitted it was on her turf and she was pursuing her contacts. Matthew Hennock and Luke Doyle were followers. The accused was well aware that Apps was able to obtain oxycodone.   

Legal Issues

253. Counsel have both very kindly provided me with the written outline of their respective closing submissions. I have carefully read and considered those written outlines of the closing addresses, which to the credit of both counsel were engaging and thorough.

254. The Crown submitted that self-induced intoxication is not a relevant consideration in this matter. Manslaughter is not a crime of specific intent and therefore s 428B of the Crimes Act has no application. I have no note or memory of counsel for the accused making any submission on the issue of self-induced intoxication, but in any event I agree with the Crown that it is not a relevant consideration as the alleged crime under consideration is not one of specific intent.

255. Section 428D of the Crimes Act relevantly provides:

Intoxication in relation to other offences

In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct:

(a) if the intoxication was self-induced cannot be taken into account, or

(b) if the intoxication was not self-induced may be taken into account.

256. The issue was not raised by counsel for the accused but for more abundant caution there is nothing within the evidence that would entitle me to find that the accused’s intoxication on the night of 12 March 2012 was anything other than self-induced.

257. The relevant authorities in respect of Manslaughter by criminal negligence are R v Taktak (1988) 14 NSWLR 226, Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 and the more recent decision of R v Parker (No. 2) [2018] NSWSC 1122.

258. Adamson J in R v Parker (No. 2) said at [56]:

“In Burns, the High Court considered decisions from other jurisdictions which concerned manslaughter by criminal negligence. Their Honours approved the taxonomy set out by Yeldham J in Taktak. French CJ said, at [22], that criminal liability may arise for breach of a duty of care owed to another in the following circumstances (which were not exhaustive): a statutory duty; a duty that arises from a certain status relationship or from contract; a duty that arises from the voluntary assumption of care of another; or from the seclusion of a helpless person so as to prevent others from rendering assistance. In the present case it was accepted that the only possible basis for a duty of care was the last-mentioned.”

259. Yeldham J (Carruthers & Loveday JJ agreeing, both with additional comments) said in quoting Gillies, Criminal Law (1985) at 32 in Taktak at p 238:

“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 voluntary assumes responsibility for the care of an adult who is physically or mentally incapable of looking after themselves.”

260. His Honour went on to say at pp 239-40:

“The present case is in no way concerned with constructive manslaughter, such as it may presently exist following the decision in Andrews. It is concerned with an allegation of manslaughter by neglect, a type of involuntary manslaughter, in which the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty of care for the deceased, which duty, as a result of either of his gross negligence or perhaps his recklessness, he failed to perform with the consequence that death was caused or accelerated.   

261. In Burns v The Queen French CJ gave a separate judgment with separate reasons but agreed with the reasons and the decision of the joint judgment of Gummow, Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ. At [19]-[22] the Chief Justice said:

“Involuntary manslaughter by criminal negligence at common law is made out if the prosecution shows that [50]:

"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."

[the footnote is a reference to Nydam v DPP [1977] VR 50.]

“[20] A person has no civil or criminal liability at common law for negligent conduct unless that conduct involves a breach of a duty of care owed to another. The existence and breach of such a duty is a necessary condition of a finding of criminal negligence. Lord Atkin in Andrews v Director of Public Prosecutions equated negligence with "the omission of a duty to take care." In R v Adomako, Lord Mackay of Clashfern LC observed that "the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died." The question that follows is whether the breach of duty caused the death of the deceased and if so, whether the breach of duty could be characterised as gross negligence and therefore as a crime. The question of whether a given set of facts gives rise to a duty of care is a question for the judge. The question whether the facts exist is a question for the jury.

[21] The issues of duty of care and criminally negligent breach of duty arise most acutely in cases of involuntary manslaughter by omission. It was the breach of a duty to the deceased by criminally negligent omission that formed the basis of the Crown case against Mrs Burns for manslaughter by criminal negligence.

[22] A frequently cited taxonomy of the duties of care that may support a charge of involuntary manslaughter was set out by Yeldham J in R v Taktak. According to that taxonomy, which should not be regarded as exhaustive, criminal liability may arise for breach of a duty of care owed to another where:

. A statute imposes the duty.

. The duty arises from a certain status relationship.

. The duty arises from a contract.

. The duty arises from the voluntary assumption of the care of another, so secluding a helpless person as to prevent others from rendering aid.

It is the last category of duty that was relied upon by the Crown in this case. In that category, as Yeldham J put it:

"the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty to care for the deceased, which duty, as a result either of his gross negligence or perhaps of his recklessness, he failed to perform, with the consequence that death was caused or accelerated."

262. The plurality in Burns said at [97]:

“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.”

263. Essentially the case for the accused is that Luke Doyle was dead at the time that he left Craig Apps’ house and in those circumstances there is no question of any legal liability arising. I did not understand there to be any dispute as to the applicable legal principles; the matter is essentially to be resolved as a factual dispute.

264. Towards the conclusion of the final addresses being taken I inquired of counsel as whether either of them required or perceived the need for a circumstantial evidence direction. Ultimately neither counsel sought such a direction. I agree with that stance. This matter is to be resolved as a factual dispute on the direct evidence.

265. Before going to my conclusions in this matter I make the observation that a number of people who gave evidence in this case should engage in some serious introspection. Jade Berkrey clearly encouraged Luke Doyle to abuse the prescription medication. Craig Apps and Antonio Carruso were clearly involved in supplying medication that had been prescribed to them. Craig Apps did not want an ambulance called on the night of 12 March 2012 because of issues relating to self-interest. None of this reflects well on those persons.

266. The Crown maintains that in the matter presently under consideration a duty of care towards Luke Doyle arose in the accused by the voluntary assumption of the care of another and from the seclusion of a helpless person so as to prevent others from rendering assistance.

267. I am satisfied on the evidence, particularly that of Matthew Hennock and Craig Apps that the accused would have been well aware that Luke Doyle had intravenously injected oxycodone and had taken an unknown quantity, but at least some, Xanax tablets. It is also clear from the evidence that she was a regular drug user and she was well aware of the effects of oxycodone. The unchallenged evidence of Matthew Hennock, Craig Apps and Trent Lovegrove is that Luke Doyle was being placed in the accused’s red Nissan utility to be taken to where assistance could be obtained, namely the local hospital. On the evidence of Trent Lovegrove alone, but also noting the evidence on this aspect of Matthew Hennock and Craig Apps it would have been blatantly obvious to anyone that saw him that Luke Doyle was in dire need of urgent medical attention.

268. The accused drove her vehicle with Luke Doyle in the passenger’s seat from 40 Taylor Road, Young. There is nothing in the evidence from which I can infer or deduce other than that the accused drove Luke Doyle to her residence at 40 Burrangong Hall Road at Young. For reasons given when dealing with whether the accused made a triple-0 call, I am satisfied to the criminal standard that her phone was operational but she made no effect to use that phone to obtain any assistance. Nor did she do anything to obtain assistance, such as go to a neighbour. The evidence of Trent Lovegrove of there being a delay between Luke Doyle being placed in the utility and it being driven away is of ultimately no consequence given that I have found beyond reasonable doubt that Luke Doyle was alive at the time that the accused arrived at her home with him in the utility.

269. The descriptions of the appearance of Luke Doyle at the time he was put into the utility at Craig Apps’ home do not differ greatly between the various witnesses. He was obviously helpless and either unconscious or so close to be unconscious it was of no consequence.

270. By taking Luke Doyle from 40 Taylor Road to her home at 40 Burrangong Hall Road the accused secluded Luke Doyle from others who were intending to assist him by getting him to hospital. By taking him to her home she effectively prevented any other person from assisting Luke Doyle. She failed to notify anyone or tell anyone about Luke Doyle and as I have already concluded she made no effort to contact medical or other assistance, or for that matter anyone.

271. The death of the deceased is not disputed. The cause of death is not a matter I consider to be in contention given the evidence of Dr Szentmariay and Professor Du Flou. As already stated Luke Doyle died of multi-drug toxicity.

272. It should be tolerably plain from what I have already said that I am satisfied that the accused owed a duty of care to Luke Doyle by reason of the fact of her voluntarily assuming care of him at the time she drove him away from Apps’ home and further by taking him to her home, thereby secluding him at a point where he was helpless and thereby preventing others from rendering assistance.

273. The accused omitted to do anything by way of seeking or obtaining medical or other assistance for Luke Doyle who was helpless and who as I have said was in such a position that it would have been blatantly obvious to anyone that he was in urgent need of medical assistance. I am satisfied therefore beyond reasonable doubt that she was grossly negligent.

274. I am satisfied to the criminal standard in the circumstances that that omission significantly or substantially caused or accelerated the death of Luke Doyle. Leaving a helpless person in the driveway as the accused left Luke Doyle in all of the circumstances noting the need for urgent medical attention would have significantly or substantially caused or accelerated the death.

275. I am also satisfied to the criminal standard that the omission of the accused amounted to gross criminal negligence and merited criminal punishment because to use the expression from Nydam as adopted by the Chief Justice in Burns at [19] “involved such a great falling short of the standard of care which a reasonable man (read person) would have exercised and which involved such a high risk that death or grievous bodily harm would follow”.

Verdict

276. Tracey Dowling in respect of the charge:

That you on 13 March 2012 at Young in the State of New South Wales did unlawfully kill Luke Doyle, contrary to s18(1)(b) of the Crimes Act, 1900.

I find you guilty.

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