R v Wilhelm

[2010] NSWSC 334

Reported Decision: 200 A Crim R 413
77 NSWLR 1

New South Wales

Supreme Court

CITATION:	R v Wilhelm [2010] NSWSC 334
HEARING DATE(S):	19/04/2010
JUDGMENT DATE :	19 April 2010
JUDGMENT OF:	Howie J at 1
DECISION:	The application is allowed and the accused is permitted to withdraw the plea to the second count on the indictment.
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Application to withdraw plea - Offences - Cause personto take poison - meaning of "cause to be taken" - whether offence made out on agreed facts
LEGISLATION CITED:	Crimes Act 1900 - s 39
CATEGORY:	Procedural and other rulings
CASES CITED:	O'Sullivan v Truth Sportsman Limited (1957) 96 CLR 220 Shave v Rosner [1954] 2 All ER 280 Attorney General of Hong Kong v Tse Hung-lit [1986] 3 All ER 173
PARTIES:	Regina v Mark Robin Wilhelm
FILE NUMBER(S):	SC 2008/16581
COUNSEL:	T Thorpe - Crown G Thomas - Accused
SOLICITORS:	S O'Connor - Crown Murphy's Lawyers Inc - Accused

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

HOWIE J

MONDAY 19 APRIL 2010

2008/16581 REGINA v Mark Robin WILHELM

JUDGMENT – On application to withdraw plea, see p 7 of transcript

NON-PUBLICATION ORDER

1 HIS HONOUR: The accused Mark Robin Wilhelm was indicted before me today on an indictment containing three counts.

2 The first count alleges, in effect, that he unlawfully killed Ms Brimble on board a cruise ship, the Pacific Sky, on 24 September 2002. That of course is an offence of manslaughter. It carries a maximum penalty of imprisonment for twenty-five years.

3 The second count is an alternative to the first count. It alleges an offence under s 39 of the Crimes Act. That section is entitled "Using poison et cetera to endanger the life or inflict grievous bodily harm". The section has a very long history and is derived from the English Offences Against the Persons Act from Victorian times. The charge alleged that on the same day, that is 24 September 2002, on board the Pacific Sky the accused, recklessly as to injuring Ms Dianne Brimble, did cause to be taken by Ms Brimble a noxious substance which is known as GHB and the thing caused to be taken inflicted upon Dianne Brimble grievous bodily harm. The accused pleaded guilty to that count. The offence carries a maximum penalty of imprisonment for 10 years.

4 The third count on the indictment alleges that on the same day, that is 24 September 2002, the accused supplied a prohibited drug, being GHB, to Ms Brimble. The accused inconsistently with the plea to the second count pleaded not guilty to this offence.

5 The Crown indicated that it was prepared to accept the plea to the second count in discharge of the indictment. However that plea cannot discharge the accused from the third count as it was a separate charge.

6 The matter has a lengthy and unfortunate history. The accused stood trial before me and a jury last year on an indictment alleging two charges; the first being the offence of manslaughter and the second being an offence of supply. He pleaded "not guilty" to each of those counts on the indictment.

7 The Crown initially alleged that the accused was guilty of manslaughter on two bases; the first being an unlawful and dangerous act manslaughter based upon his supply of the GHB to Ms Brimble and therefore substantially causing her death and the second base being gross criminal negligence. The second count was the same as the third count on this indictment, being an offence of supply of GHB to Ms Brimble.

8 Before addresses to the jury I indicated my view to the Crown Prosecutor that it was impossible for the Crown to make out the offence of manslaughter based upon gross criminal negligence, it being an allegation of the accused's failure to assist Ms Brimble, with a result that that failure caused her death. In my view the evidence did not give rise to any of the elements of gross criminal negligence manslaughter, including that there was no duty of care between the accused and Ms Brimble. The Crown ultimately withdrew that basis of manslaughter from the jury because the Crown acknowledged that it could not prove that Ms Brimble was alive at the time at which the Crown was alleging that the accused had failed to assist her.

9 The matter, therefore, went to the jury, despite a large number of photographs which were indecent and which were highly prejudicial to the accused but which the Crown relied upon to prove the charge of manslaughter based on gross criminal negligence. Notwithstanding my view that the accused's fair trial had been placed in jeopardy by the failed basis of manslaughter on gross criminal negligence, the accused elected to continue with the trial.

10 The jury were ultimately unable to bring in a verdict on the first count of manslaughter. They did have a verdict on the second count but, having been told by the Crown that it intended at that stage, or at least could not tell me that it was not intended, to re-try the accused on the charge of manslaughter, I refused to accept a verdict from the jury on the charge of supply. The jury were discharged. Eventually the Crown decided that it would continue the prosecution of Mr Wilhelm on the charge of manslaughter. The matter was listed for trial today.

11 At a mention of the matter about a week before today I was informed that there was likely to be a plea and that, therefore, the trial might not proceed. In order that the accused not be prejudiced by such negotiations, that matter was not made public.

12 This morning this indictment was presented before me. I immediately raised with the Crown and with the accused's representative my concerns about the second count. That count alleges that the accused caused Ms Brimble to take a noxious substance, being GHB. I pointed out to the Crown that there were a number of cases which tended to suggest, at least to me, that what was required for the Crown to prove was that the accused stood in a position of authority or control over Ms Brimble so that he could, in effect, overbore her will and therefore cause her to take the drug. I had a good idea of what the evidence was, having been the trial judge, and I had difficulty in seeing, on the evidence that was at the trial of the accused, how it could be said that he had any authority or position of control over Ms Brimble whereby he could, in effect, cause her to take the drug.

13 The Crown submitted that it was not necessary for the Crown to prove those facts but it was merely sufficient to prove that the accused gave Ms Brimble the drug and encouraged her to take it. I indicated to the Crown that there was a number of authorities that seemed to me to be against that proposition.

14 One of those authorities is Castle v Olen (1985) 3 NSWLR 26, a judgment of Yeldham J, which is concerned with an offence of causing another person to supply a dangerous drug. Yeldham J at 30 quoted a passage from the judgment of the High Court in O'Sullivan v Truth Sportsman Limited (1957) 96 CLR 220 at 228 which is as follows:

“… This appears to mean that when it is made an offence by or under statute for one man to ‘cause’ the doing of a prohibited act by another the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act. Nor is it enough that in producing the antecedent event or condition the first man was actuated by the desire that the second should be led to do the prohibited act. The provision should be understood as opening up a less indefinite inquiry into the sequence of anterior events to which the forbidden result may be ascribed. It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.”

15 His Honour then went on:

In Lovelace v Director of Public Prosecutions [1954] 1 WLR 1468; [1954] 3 All ER 481, Lord Goddard CJ, with whom the other two members of Queen's Bench Division comprising the court agreed, said (at 1471; 483) that: “… the fact is that if a man is charged with causing or permitting something, it follows that that must result by reason of some act of his which is equivalent to causing, such as a command or direction to do the act.” In Clark v Hunter 1956 SLT 188, Lord Russell (at 191) said that “the word ‘causes’ appears to me to involve the person possessing some degree of control or authority to order or direct the use by another, and the giving of such an order or direction”.

16 Yeldham J quashed a conviction in the Local Court on the basis that the plaintiff had no such authority or control over the person to whom it was alleged he had caused to supply drugs to him.

17 There are other decisions that have come to the same conclusion: see Shave v Rosner [1954] 2 All ER 280; Attorney General of Hong Kong v Tse Hung-lit [1986] 3 All ER 173. They require that the person be in a position of authority or control over the person who is being caused to commit an act. Of course the interpretation of the words of a statutory provision will be determined on the subject matter of the provision and I have found no decision dealing with causing drugs to be taken. However the cases confirm the view that I would have formed at any rate from the judgment of Yeldham J that the words "cause another person to take" in s 39(1)A require that the accused be in a position of authority or power over the person who takes the drug.

18 The offence is concerned with a person who administers to another, that is a person who directly gives the other person a drug, or causes another person to take the drug; that is a person who uses his authority over the other person to require that person to consume the drug.

19 There is no suggestion here that the accused administered the drug to Ms Brimble. It is quite the opposite. The facts indicate that Ms Brimble took the drug willingly, having had a dose poured for her by the accused. The question is, therefore, whether on the facts being relied upon by the Crown to support the charge, the accused caused Ms Brimble to take the drug.

20 The following paragraphs appear in the Agreed Statement of Facts:

“13. Whilst in the cabin Mrs Brimble asked the Accused what he was doing. The Accused told Mrs Brimble that he was having some Fantasy. Mrs Brimble asked what it was and the Accused said it was like ecstasy but that it made you ten times hornier. Evidence of this exchange was given by Mr Kuchel.

14. The Accused consumed a dose of the drug by pouring it into the lid of a water bottle and poured a dose for Mrs Brimble which she consumed. Mrs Brimble's dose was also poured into a lid of a water bottle.

15. In making available the dose of GHB to Mrs Brimble and saying words that encouraged Mrs Brimble to consume the drug, the Accused caused Mrs Brimble to take the drug and was reckless as to injury that might be occasioned to Mrs Brimble given that:

a Mrs Brimble had consumed alcohol;

b Mrs Brimble had not consumed GHB before and

c the general effects of GHB.”

21 It should be noted that there was no evidence in the trial that the accused had any awareness of the general effects of GHB apart from those that he had experienced as a result of his own ingestion of the drug.

22 Those three paragraphs do not, in my view, support an allegation that the accused caused Ms Brimble to take the drug. He may have influenced her by answering questions that she asked him about the nature of the drug. He may have encouraged her by the reference to the fact that it would make her ten times hornier in the context that they were about to indulge in sexual intercourse. But the offence is not one of encouraging or inciting or influencing a person to take a poison, it is one of causing a person to take a poison.

23 The Crown sought to overcome this problem by indicating that it was enough that the accused influenced Ms Brimble to take the drug and made reference to one of the cases that I had earlier raised with him that referred to a person being in the position of influence over another. But there is a difference, in my view, between a person being in a position of influence over one person and a person influencing another person. They are two very different concepts. The accused was not in a position of influence over Ms Brimble.

24 In my view, the use of the words "causes another person to take" is to cover that situation where a person in authority over another, for example an adult over a child, orders, commands, or directs the child to take the drug and, therefore, brings about the consequences that the section covers. It must be an act of the accused that caused Ms Brimble to take the drug. In my view, there is no such act shown in the Agreed Statement of Facts and, as I understand it, there will be no further evidence to support the charge other than the Agreed Statement of Facts.

25 In my view, in accordance with Castle v Olen and other authorities, the offence is not made out simply because the accused may have offered the drug, with encouragement or influence, to Ms Brimble. It was her act in taking the drug and the accused did not cause her to take it. All the accused did was to answer her question so that she could make up her own mind whether she would consume the drug or not. Those answers might have had an effect upon her decision but it was her decision.

26 This has been an issue that no doubt concerned the jury on the last occasion. It is clear from the questions that the jury asked that they were satisfied that the accused had supplied her with GHB, they were satisfied that GHB was a dangerous drug but they were concerned as to whether or not the accused's act of supply substantially contributed to Ms Brimble's death. It is clear that at least more than one member of the jury had a doubt about that issue, and that is not hard to understand. Ms Brimble was a forty-four year old woman. There is no suggestion she was in the cabin other than of her own willingness to be there, to engage in consensual intercourse with the accused and that she took the opportunity, when it was presented to her, to take the drug. There is no doubt that some members of the jury were concerned whether the accused was responsible for the death of Ms Brimble in that factual situation, particularly, as he had told Ms Brimble all he knew about the drug.

27 That is a problem that, in my view, infects this current charge. It is a problem that the Crown may or may not have in respect of the charge of manslaughter but in my view the agreed facts do not support the offence under s 39 of the Crimes Act. More than that, although the facts state that the accused was reckless as to injury to Ms Brimble and although he is quite entitled to make that acknowledgment and to indicate that at the time that he provided Ms Brimble with the drug, he foresaw the possibility that Ms Brimble might be injured, when I asked counsel appearing for the accused what that injury was, counsel could not indicate what the injury was that the accused foresaw at that time. It is not difficult to see why counsel has this problem because Mr Wilhelm was himself taking the drug. It is highly unlikely that he would have foreseen harm to Ms Brimble from a drug that he himself was prepared to take on that night and had taken on previous occasions without any ill-effects.

28 However, that is not the reason why I will allow the accused to withdraw his plea. If he had not made this application, I would have rejected the plea in any event. The facts do not make out the offence under s 39 and therefore I cannot permit the accused to plead guilty to an offence he has not committed.

29 The application is allowed and the accused is permitted to withdraw the plea to the second count on the indictment.

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