Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Burns v R [2011] NSWCCA 56
• Hearing dates: 3 November 2010
• Decision date: 01 April 2011
• Before: McClellan CJ at CL at [1]; Schmidt J at [167]; Howie AJ at [1]

Decision

Appeal against conviction is dismissed

• Catchwords: CRIMINAL - conviction appeal - manslaughter by gross criminal negligence - manslaughter by unlawful and dangerous act - duty of care owed by supplier of drugs towards drug recipient - directions to jury - unreasonable verdict - appeal dismissed.
• Legislation Cited: Offences against the Person Act 1861 (UK)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 240; Andrews v DPP [1937] AC 576; [1937] 2 All ER 552; Arulthilakan v R; Mkoka v R (2003) HCA 74; (2003) 203 ALR 259; Bennett v Minister for Community Welfare (1992) 176 CLR 408; C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L No 14 Pty Ltd v Scott [2009] HCA 47; [2009] 239 CLR 390; Campbell v The Queen (1980) 2 A Crim R 157; Justins v R [2010] NSWCCA 242; Kelly v R (1923) 32 CLR 509 at 515; Kennedy (No 1) (1999) Crim LR 65; March v Stramare (E & MH Pty Ltd) (1991) 171 CLR 506; Michael Kane v H M Advocate; Kevin McAngus v H M Advocate [2009] HCJAC 8, 2009 SLT 137; R v Adomako [1995] 1 AC 171; R v Bateman (1925) 19 Cr App R 8; R v Bonnyman (1942) Sol Jo 274; 28 Cr App R 131 at 135; R v Bubb & Hook (1850) 4 Cox CC 455; R v Clarke & Wilton [1959] VR 645 at 649; R v Cowan [1955] VLR 18; R v Dias (2001) EWCA Crim 2896; R v Downes (1875) 1 QBD 25; R v Duffy (1880) 6 VLR (L); R v Evans (Gemma) [2010] 1 All ER 13; [2009] 1 WLR 1999; R v Gibbins & Proctor (1918) 13 Cr App R 134; R v Gunter (1921) 21 SR (NSW) 282; R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209; R v Instan [1893] 1 QB 450; R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269; R v Khan (Rungzabe) [1998] Crim LR 830; R v Lawford & Van de Wiel (1993) 69 A Crim R 115 at 121; R v Moffatt (2000) NSWCCA 174; (2000) 112 A Crim R 201; R v Nicholls (1875) 13 Cox CC 75; R v Pagett (1983) 76 Cr App R 279; R v Russell [1933] VLR 59; R v Senior [1899] 1 QB 283; R v Sinclair, Johnson and Smith (1998) 148 NLJ 1353; R v Smith [1959] 2 QB 35; R v Stone & Dobinson [1977] 2 All ER 341; R v Styman; R v Taber [2004] NSWCCA 245; R v Taber & Styman (2002) NSWSC 1239; R v Taktak (1988) 14 NSWLR 226;(1988) 34 A Crim R 334 at 353; R v Wacker [2003] QB 1207; R v Willoughby [2008] 1 WLR 1880; R v Wood (1957) 57 SR (NSW) 638; Royall v The Queen (1991) 172 CLR 378; Wilson v The Queen (1991-92) 174 CLR 313
• Texts Cited: Herring and Palser, "The Duty of Care in Gross Negligence Manslaughter" [2007] Criminal Law Review 24
• Category: Principal judgment
• Parties: Natalia Burns (Appellant); The Crown
• Representation: Counsel: C Davenport SC (Appellant); D Arnott SC (Crown); Solicitors: Andrew Harris & Associates (Appellant); Director of Public Prosecutions (Crown)
• File Number(s): 2008/10533

Decision under appeal

• Date of Decision: 2009-10-23 00:00:00
• Before: Woods DCJ
• File Number(s): 2008/10533

Judgment

1 McCLELLAN CJ at CL and HOWIE AJ : On 20 July 2009 the appellant was arraigned before a jury in the District court on an indictment that contained five counts. The first count alleged that on or about 9 February 2007 at Belmore the appellant unlawfully killed David Hay ("the deceased"). This is the offence of manslaughter. The second count alleged that at the same time and place she supplied a prohibited drug, being methadone to the deceased. The third to fifth counts each alleged that the appellant supplied methadone to other persons on 9 February 2007 (the third count) and on 2 March 2007 (the fourth and fifth counts).

2 The appellant pleaded not guilty to the first two counts on the indictment but guilty to the other counts. A jury was empanelled to try the first two counts.

3 On 14 August 2009 the jury returned verdicts of guilty in respect of the first two counts. The appellant was sentenced in respect of all the offences on the indictment to an overall term of imprisonment of 5 years 8 months with a non-parole period of 4 years 6 months. The non-parole period expires on 13 January 2014.

4 The appellant appeals against her conviction on the first count. The following grounds were initially relied upon:

1. His Honour erred in refusing to remove the charge of manslaughter by gross criminal negligence from the consideration of the jury.

2. His Honour erred in directing the jury that there was a duty of care owed by a supplier of drugs towards the drug recipient.

3. The verdict of guilty of manslaughter is unreasonable and against the weight of the evidence.

Following the hearing of the appeal and while judgment was reserved, the appellant sought to add a further ground of appeal being:

4. His Honour erred in refusing to remove the charge of manslaughter by unlawful and dangerous act from consideration of the jury.

5 The appellant's husband (Burns) was tried separately on an indictment alleging the same charges. He was convicted of manslaughter but found not guilty of the offence of supplying the deceased with methadone. Burns died in custody a short time after being sentenced.

The Crown case

6 The allegation against the appellant was that she and Burns were involved in the unlawful supply, by way of sale, of methadone from their premises to acquaintances. They were both receiving methadone as persons who were registered in a programme to address their drug addictions through the use of methadone. As part of that programme, they received doses of methadone that they could take away from the centre supplying the drug. They were permitted to do this on an understanding that the drug was to be used only by the person to whom it had been prescribed and, then, only by oral ingestion. They were warned specifically of the danger of taking the drug intravenously.

7 The Crown alleged that from their pooled resource of methadone, the appellant and Burns would sell the drug to persons who came to their premises for that purpose. The drug was either supplied in a bottle to be taken away by the purchaser, or the purchaser would administer it intravenously in the premises using a syringe supplied by the appellant and Burns. In the case of the deceased, the Crown case was that he had been supplied with the drug intravenously while in the premises and in the presence of Burns, or both him and the appellant.

8 The charge of manslaughter was based upon one, or both, of two allegations. The first was that the appellant and Burns caused the death of the deceased by an unlawful and dangerous act; that act being the supply of the methadone by injection to the deceased. The Crown case was that a butterfly syringe was necessary to inject the methadone. This is a sophisticated implement which, because of the difficulty in using, the Crown submitted would lead the jury to conclude that either the appellant or Burns injected the deceased but that he did not inject himself. The second basis for manslaughter was gross criminal negligence. In particular it was alleged that the appellant and Burns owed the deceased a duty of care which the appellant and Burns breached by failing to provide reasonable assistance to the deceased when he became ill as a result of the effect of the methadone upon him and that breach resulted in the death of the deceased.

9 Senior Counsel for the appellant conceded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was involved in a joint criminal enterprise with Burns to supply methadone to the deceased. In our opinion the evidence to prove that fact was overwhelming. The appellant does not challenge her conviction on the second count relating to the supply of the drug to the deceased.

10 The Crown case included forensic and pharmacological evidence, the results of investigations made by the police at the scene and witnesses to relevant events. It also included admissions made by the appellant either directly, in a statement made by her to police, or indirectly, as a result of conversations to which the appellant was a party and that the police had lawfully recorded. The latter admissions were of particular significance.

The deceased's body is found

11 Following a Triple-0 called made by Burns on 10 February at 12.38pm, in the presence of the appellant, police went to a block of units in Belmore at about 2pm. In the rear yard of the units was a small block containing two laundries and a toilet. Entry to the yard was through a gate leading from a street behind the unit block or through the unit block itself. The body of a male could be seen lying on the floor with his head against the toilet bowl and his feet near the door. The body was lying on a green canvass bag.

12 Later that afternoon a forensic pathologist attended the scene and examined the body. In the canvass bag under the body were found documents relating to David Hay. There were also two bags of lollies and a receipt for their purchase the day before. The relevance of this evidence will be explained later. There was also a wallet on the body containing about $150 and documents identifying the deceased. No drug paraphernalia was found in the immediate vicinity of the deceased or in the street behind the unit block.

13 One of the investigating police officers spoke to Burns in the presence of the appellant and asked him to accompany him to the police station. The appellant appeared to become highly distressed and agitated.

14 The next day, during a post mortem of the deceased, a needle puncture mark was observed in the deceased's vein in the left elbow. Dr Duflou believed that this injury had been sustained in the period of 8 hours to 12 hours prior to death. He concluded that the direct cause of death was methadone and olanzapine toxicity.

Search of the deceased's room

15 On 10 February police contacted the deceased's mother. They then went to a room at the Bexley North Hotel where the deceased had been residing. On the top of a dresser was an empty packet of Zyprexa, an olanzapine medication that had been prescribed by Dr Roberts. According to the packet it had contained 60 tablets each of 10 milligrams of the drug. The prescribed dosage was two tablets per night. There was also a bong.

Overheard conversations

16 Under the authority of a warrant police began intercepting conversations occurring within the premises in which the appellant and Burns lived.

2 March 2007- 17.10-18.30

17 On 2 March there was a conversation between the appellant and Burns in which the appellant suggested that she could "go for a walk and drop it off at the needle exchange". There was discussion about when the "needle exchange" closes. The appellant then said, "Overdose.....its not like a stabbing or shooting" and then "its an overdose...at least that's some good news...I gotta get rid of those things Brian....search the place...........what if they search this place". There was further discussion about when "the place" closes and the appellant said, ".......Six, I'm gonna have to get up there and just drop it off........ Well everything, throw it all. Put it in that yellow bin and just throw it."

18 Later in the conversation, after the appellant speaks to a person named Cherie (the transcript records her name as Sheree but we understand this was a mistake) on a mobile phone, she says to Burns, "We haven't got any to sell, we've got three days to go". Burns says he will have a look and asks "how much...?". The appellant says, "I don't know how much do they want? Because we, because this is out of our lot you got to understand, we're sacrificing as we always do". Burns says, "How much is, how much you want? It's out of our lot". The appellant comments, "It's out of our lot. We always help our friends out you know, we do".

2 March 2007 18.30-19.55

19 The appellant and Burns were discussing a female acquaintance, Cherie Donnelly. Burns said, "She sounded a bit stoned. And she smoked it and ....... five hundred dollars worth, I reckon ten dollars worth". The appellant observed that this person would get a cab here. Burns stated that she would not because she did not have the money. The appellant said, "If she's out of it, that's it she can't have any. No one, not after the other day. Nope, not even her. You drink it, actually no, take it with you. Nope, no Brian, no one. I don't care no". Burns commented, "You weren't like that yesterday". The appellant stated, "No if she's out of it, oh but this is from pills other pills. Exactly our point. That's exactly what happened. Mixing two things. Nope".

20 There was then a discussion about a liquid having leaked into papers. The appellant told Burns that he could "only give her about 40 ml or something. Otherwise we're going to be hanging out baby, I mean it and I am hanging out". The appellant asked Burns to give her a clean syringe. There was then discussion between them about measuring amounts and about prices. Later the appellant said, ".....We had two bottles we wanted to sell you'se, so me and Brian used it.......She aint havin' it here and I've stuck to that, there is no more Brian, I mean it. Especially if you're mixin'..... I don't care who it is, you take it home now. Do what everyone else does. Go home".

21 Cherie Donnelly arrived at the premises and Burn's said, "You wanted a 20 ml" and she agrees. There was then conversation about "forensics" being back again and the police having "taken everyone away" from the flats to be questioned. Ms Donnelly said, "The man's dead. He killed himself". The appellant responded, "Oh they found out that he overdosed". Later there was further talk about police and the following conversation occurred:

"Cherie: "What are they gonna do? Arrest ya's for what? Killing a man that killed himself?"

The appellant: "He OD'd".

Cherie: "He was unhappy. And how dare he kill himself in your fuckin space".

Burns: "Yes".

The appellant: "That's what shits me too, I can't handle it."

Cherie: "It's alright to be angry about that. Why didn't he go into his own place and die?"

The appellant: "Just go to the back lane, I don't care where but get out, just. Why involve us"

Cherie: "And Natalie just' 'cus you wanted him out of the house. It's not your fault...."

Cherie: ", ... Alright. Don't put ... 'Cos I know that you blame yourself a little bit about that."

The appellant: "Ken oath I do ..."

Cherie: "You didn't kill him, you didn't ... he didn't tell ya's the truth."

The appellant: "He told us nothing."

Burns: "Yep, yep, yep."

The appellant: "He got up an' Felicity [Malouf] was here, an then ... He went 'no I'm all right. I'm all right I'm ok".

Cherie: "Felicity felt bad about this as well. I said to Felicity "how the hell would you know what was in his guts...."

Cherie: "... stop it. You don't know what he's had, he could've come here with a gutful of pills. You know what I mean?"

The appellant: "Oh he did, he was out of it when he come here, I think".

3 March 2007

22 In the morning of 3 March the appellant rang Felicity Malouf and informed her that the police were going to pick her and Ms Malouf up for an interview. They decided to meet for coffee. Burns informed Ms Malouf that the police had found out that the deceased had overdosed. He counselled her to tell the truth.

23 Later that day between 2.43pm and 3.56pm there was a conversation recorded between Burns, the appellant and Ms Malouf about the visit of the deceased. During the discussion Burns suggested that the deceased went out the back gate and then "snuck back" with a big black bag. Burns indicated that he had lied in order to protect everyone. The appellant said, "Dave [the deceased], 'Oh no no no no no ambulance, police no no-one'. Got up, OK, walked out, that's it, that's all we know". Burns said, "Walked him out, you just know that he walked out, I walked out with him". Ms Malouf does not appear to understand what they are talking about. Burns and the appellant then proceeded to indicate to her what she was to tell the police. In effect she was to say that she arrived at the unit first and later the deceased arrived drunk. He said he did not want an ambulance and the appellant told him to leave. Burns walked the deceased outside and Ms Malouf stayed another half an hour.

24 Later in the conversation the appellant said, "...........all I know is we've done nothing wrong... the other guy was too out of it, I told him to fuck off, he fucked off. Next day he is lying in our fucking, out the back dead........".

25 That evening there was a conversation between the appellant (NB) and Burns (BB) as follows:

NB: "I told you not to do him no more, you had to do it again, and the next day you went 'I promise, I promise, I promise' and then Felicity again".

BB: "I said to you Natalie its all right, I will look after him, I'll watch him".

NB: "That's not the point is, the point is have him somewhere else".

BB: "Kick him out".

NB: "You told him to go into the fucking whatsy. You couldn't kick him out. You had to tell him where to go....idiot".

The appellant makes a statement

26 On 3 March 2007 police took the appellant and Ms Malouf to a police station for the purpose of their both making statements as to the facts surrounding the death of the deceased. The appellant told the police that the deceased was a friend of her husband although she was acquainted with him. She did not know whether he drank alcohol or used drugs apart from cannabis.

27 She gave an account of the night consistent with that which she had discussed with Burns and Ms Malouf and that was contained in one of the recorded conversations on 3 March set out above. In effect she stated that Ms Malouf was already at the premises when the deceased arrived. He was "out of it or drunk or something. I don't know what it was, he was either drunk or out of it". Ms Malouf suggested that they should call an ambulance but the deceased "stood up and said 'No, I'm alright, I'm alright'". She stated that she "couldn't take it, it was just too much" and she told Burns, "Please just fuck him off. I can't handle it". Burns told the deceased he had better go and "It's not right you coming over like this". The deceased said, "Don't worry about me I'll be right". He got up and walked out a bit after this. Burns walked out of the house with him down to the back gate.

28 She said this:

"I would describe [the deceased] as being drunk, out of it or both when he was at our house. He kept nodding off, his eyes would close. [The deceased] was sitting in the corner on either the chair or small ottoman, he looked like he was going to fall off it. I was trying to talk to my friend who had a bad day and I had just buried my father and it was all too much."

Recorded conversation of 6 March

29 A further conversation between the appellant and Burns was recorded on 6 March. Part of the transcript reads:

"NB: This is murder you fucking arsehole!

BB: It isn't he just overdosed. Its only fucking murder, if someone kicking fucking someone out ...

BB: ...while they're in that situation. At least I wanted to, we wanted to call the ambulance ... Let him out in that fucking situation - position.

NB: We're talking life, life people, we are talking about people.

BB: Yes Natalie...

NB: People, not machines.

BB: ...and I'm going to look after him, I'm going to look after him.

NB: This is all about people.

BB: You piss him, piss him off.

NB: Cause he got the best outfit. No more! But the second day he come back...

BB: (unintelligible)

NB: ...and you got to look after him, you did it again didn't ya..."

Police investigations continue

30 A number of search warrants were issued including one upon a methadone clinic at which Burns and the appellant were patients.

31 On 7 March 2007 a search was conducted at the appellant's premises. One of the items seized by police was an unopened needle pack containing five syringes. The police also found a syringe with a pink substance in it and various glass bottles containing liquid. Two syringes accompanied by long tubes that could be attached to the syringes were found. The tubes are known as "butterfly clips". Burn's mobile phone was also seized.

32 On 21 March 2007 a statement was taken from the deceased's mother. She said the deceased had suffered serious injuries in a motor vehicle accident in April 2005 that left him in pain. On 9 February 2007 the deceased called her and she reminded him that he had an appointment that afternoon with a doctor. After lunch the deceased rang her again and said that he would see her that evening at Little Athletics. The deceased would on occasions attend Little Athletics to watch his nephew. If he did, he would bring a bag of lollies. He did not attend and she had not been able to make contact with him since. We have already referred to the fact that the canvass bag found near the body contained two bags of lollies purchased on 9 February 2007.

33 The police examined the phone records for both the deceased and Burns. These showed that calls were made from the deceased's mobile phone to Burns' mobile phone at 12.45pm and 4.36pm on 9 February 2007. Unanswered calls were made from Burns' mobile phone to the deceased's phone on 10 February 2007 at 12.35.30pm and 12.35.33pm. The Triple-0 call was made from Burns' mobile at 12.38pm on 10 February 2007.

34 Police were never able to locate the deceased's mobile phone. It was the Crown case that it had been taken by Burns from the deceased's body in an attempt to hide the contact made by the deceased with Burns on 9 February 2007.

35 On 27 March 2008 Ms Malouf was charged with conceal a serious indictable offence and hinder police.

36 On 28 March 2008 the appellant and Burns were arrested and charged.

37 At some date before the trial, the police took an induced statement from Ms Malouf. As a consequence the charges against her were terminated and she was called as a witness in the Crown case.

The deceased's medical practitioners

Dr Roberts

38 Dr Roberts is a psychiatrist. He had been treating the deceased from 1 December 2006 until the time of his death. When he first examined the deceased, he was showing signs of paranoia about his brother and had thoughts of self-harm. The doctor prescribed Zyprexa. The deceased had responded well to treatment and his psychosis had been very substantially remitted. Dr Roberts was not aware that the deceased had ever attempted self-harm. The deceased had disclosed to him that he had used cannabis but no other drug except that which he was taking for pain relief.

39 The deceased visited Dr Roberts in the afternoon before he went to the appellant's residence. Dr Roberts did not believe at that time that the deceased was at risk of self-harm and thought that his purchase of the bags of lollies indicated future planning. The deceased left the rooms before 5pm and possibly as early as 4.30pm.

40 The doctor explained that olanzapine could cause drowsiness although he had never noticed the deceased in this condition before. He accepted that the deceased's condition could have been caused by other drugs including endone and methadone.

Dr Mai

41 Dr Mai was the deceased's treating general practitioner. He had prescribed him endone. This drug has a number of side effects including drowsiness. He prescribed this drug on 5 February 2007 and it came in a packet of 20 tablets of 5 milligrams each. The deceased had disclosed to him that he used cannabis. Dr Mai was not aware of him using methadone.

The methadone programmes

United Gardens Methadone Clinic

42 Deborah Rayner was the receptionist at the United Gardens Methadone Clinic at Summer Hill. The Clinic provided doses of methadone to people with opiate dependency. They were oral daily doses prescribed by the patient's own doctor. One of her duties was to explain the rules of the clinic to each and every patient.

43 Ms Rayner gave evidence that the methadone was in a syrup form and was a yellow/brown colour. Another form of methadone was biodone and it was dark pink. Both methadone and biodone were to be taken orally and had an unpleasant after-taste.

44 Both Burns and the appellant were clients of the United Gardens. The appellant commenced treatment on 18 February 2004 and Burns on 19 March 2004 and both had transferred from another clinic. Eventually they transferred from United Gardens Clinic to Clinic 36. The last dose they received from United Gardens was on 2 June 2005.

45 Both were prescribed doses of methadone commonly described as "takeaways". It was Ms Rayner's task to explain the conditions applying to takeaways to the patients taking the drug away from the clinic. The conditions included that the doses were to be taken only by the person whose name was on the label of the bottle and for whom it had been prescribed. There were further conditions: the client was not to share his or her methadone with any other person; it was not to be injected nor used in conjunction with prescription medication or sleeping medication; and the dose had to be stored safely.

46 The dangers of injecting methadone and mixing methadone with other drugs were explained to patients by both nursing staff and the medical practitioner prescribing the drug.

47 Ms Rayner gave evidence that on 19 February 2004 she handed the appellant a form setting out the rules of the clinic and the appellant signed that form. Patients were never supplied with syringes under the methadone maintenance programme as it involved oral doses of the drug.

Clinic 36

48 Ming Zhang gave evidence. He was a registered pharmacist and the manager of Clinic 36, a registered methadone clinic. He provided clients of the clinic with biodine, a synthetic methadone. It was a pink liquid and was a solution, not a syrup.

49 In 2007 the clinic offered a takeaway program that allowed a client to take some of the doses home so that the client did not have to go to the clinic on a daily basis. There was a maximum of 4 to 5 takeaways per week.

50 He closely supervised clients who took their doses at the clinic to prevent "diversion". This was a term used to describe the practice of a client not ingesting the methadone but keeping it in the mouth to sell later. He tried to prevent the diversion of methadone because it was a very dangerous drug taken in combination with other drugs. It could easily cause serious harm or even death to a person who was narcotically nave.

51 He said that the appellant was a patient of the clinic in February 2007. The records showed that at 10.41am on 9 February 2007 the appellant received a dose of 130 milligrams of methadone and also received two takeaways of 130 milligrams each. On that date Burns also had a dose at the clinic and received two takeaways of 130 milligrams each.

52 There was a statement read to the jury from Dr Lombard. She was a general practitioner and was authorised to prescribe methadone. She worked at Clinic 36 where the appellant had been her patient since June 2005. On 7 June 2005 she submitted an application for the prescription of methadone to the appellant. It was her practice when making the application to explain the effects and side effects of methadone to the client. She also warned of the risk of overdose if the methadone was used at the same time as other drugs.

53 On 19 December 2006 Dr Lombard saw the appellant who was seeking takeaways because she was going away with her in-laws. On that occasion she reinforced the safe use of methadone including that it was for her use alone. The methadone was to be kept in a locked box.

Forensic evidence

Dr Duflou

54 Dr Duflou was a forensic pathologist who conducted the post mortem on the deceased. He attributed the cause of death as being methadone and olanzapine toxicity, both of which drugs were detected at high levels. He said that neither of the drugs individually was necessarily fatal. It was his view that a combination of the two drugs had at the very least an additive effect and possibly a multiplication type of effect on each other.

55 A neuropathological examination was conducted on the brain of the deceased. The neuropathologist noted two major changes. The first was that there were features of recent brain damage probably as a result of insufficient oxygen. Those changes suggested that the insufficient oxygen occurred at least 30 minutes and probably more than two hours prior to death. He also noted microglial activation. This meant that a number of cells within the brain were more active than they should have been. He said that this type of change could be seen in cases of prior head injury with significant brain damage. It was consistent with the history provided of a head injury in a motor vehicle collision some considerable time previously.

56 The doctor said he examined the lungs and there was fluid in the airway. The lungs were heavy and they appeared congested. When he looked under the microscope there was early pneumonia. It had been present for a number of hours prior to death, possibly longer than hours. Dr Duflou concluded that there was pneumonia and there were two possibilities as to its production. The first was that it had been there prior to anything happening. The second possibility was that, as a result of a deceased's inability to breathe, which was brought on especially by methadone, there was a build up of secretions in the lungs, possibly with inhalation of vomit, and this caused the pneumonia.

57 A number of samples were taken from the body of the deceased and sent for analysis. The results revealed that there had been recent cannabis use. The levels in the blood indicated that the deceased had consumed some cannabis probably a number of hours prior to death, and he may have been a regular user of cannabis. There was certainly at least some use of cannabis in the hours prior to his death.

58 The doctor's evidence was that the primary problem with methadone at overdose levels is that it interfered with breathing, decreased the ability to breathe adequately and, in some cases, could cause respiratory arrest. If the drug was administered intravenously, the levels required to cause this result were highly variable. The general effect of opiates that caused death was either a sudden respiratory depression or a slow respiratory depression.

59 Olanzapine was at high levels but not by itself at lethal levels. That drug had a number of adverse effects, including dizziness, low blood pressure, sleepiness, agitation and very high blood glucose levels. In the doctor's opinion the combination of the two drugs probably caused unconsciousness, one at least caused respiratory depression as well and that, possibly in association with the formation of pneumonia, possibly due to inhalation, the deceased died of respiratory depression. In relation to the levels of olanzapine in the deceased's body, the toxicology report showed that it was 0.5 milligrams per litre, which was about 20 times what would be expected. The level of olanzapine that could kill somebody averaged at about 1 milligram per litre.

60 Methadone found in the samples of the deceased was 0.2 milligrams per litre. This level on its own was not extremely high and was not necessarily fatal.

61 In Dr Duflou's opinion it was the combination of these two drugs, especially in view of the reasonable possibility that the methadone was administered intravenously, that would have caused the respiratory depression and death. If the deceased was not tolerant to the effect of opiates in general, and methadone specifically, this would tend to suggest that a lower dose would be required to cause death relative to a habitual user.

62 Another drug named clonazepam was detected in the toxicology but the doctor was of the opinion that it did not contribute significantly or at all to the death of the deceased. No endone was found in the toxicology examination.

63 Dr Duflou was unable to say when the olanzapine was consumed in relation to the consumption of methadone. He viewed as a "remote possibility" that the olanzapine alone caused the death of the deceased.

John Farrar

64 Mr Farrar is a pharmacologist. An analysis of a preserved blood sample of the deceased at post mortem revealed the presence of 7-amino clonazepam, delta-9-tetrahydrocannabinol, delta-9-THC acid, fluoxetine, methadone and olanzapine. The 7-amino clonazepam is an anti-convulsive drug and its concentration in the blood sample was very low. Delta-9-tetrahydrocannabinol and delta-9-THC acid are ingredients of cannabis. There were very low levels of these substances in the sample. Fluoxetine is a drug used for the treatment of depression. The concentration of that drug was within the therapeutic range. There is no known adverse interaction between fluoxetine and the other drugs identified in the concentrations found.

65 He said that symptoms of methadone toxicity included respiratory depression, hypotension and coma. In regard to respiratory depression, methadone in high doses reduces the body's ability to automatically breathe and this was generally how opiates caused death in people who used them. The drug could also cause hypotension, that is low blood pressure, and this could also be fatal.

66 In his opinion there is an enormous inter-individual variability in the responses of persons using methadone and it had to be individually and progressively adapted to each patient under medical supervision. Methadone is stored in the body and progressive accumulation could occur with daily usage.

67 When methadone is taken orally, it has a peak blood concentration that occurs generally within 1-5 hours of administration. Some of it is broken down before it reaches the blood stream. It is stored in the liver and released over a period of time into the body. The intravenous ingestion of methadone produces a much higher blood concentration especially at the time of injection. After intravenous injection there are very high levels of methadone in the brain and the brain is where respiratory depression and blood pressure are regulated. Therefore, these effects are increased very much by injecting methadone rather than taking it orally. Mr Farrar said that methadone is designed for oral consumption not injection.

68 A blood sample taken from the deceased showed a concentration of methadone of 0.2 milligrams per litre. In Mr Farrar's opinion based on the assumption that the deceased injected the methadone, the concentration of methadone in the blood at the time of injection would have been much higher than was determined post mortem. Mr Farrar could not give an opinion as to the peak concentration of methadone, as methadone reacts differently in different people.

69 Mr Farrar gave evidence that the concentration of olanzapine in the deceased's post mortem blood sample, 0.5 milligrams per litre, was much higher than the therapeutic concentration expected from the prescription for that drug. The symptoms of olanzapine toxicity include tachycardia, being a fast heart rate, agitation, cardiac arrhythmia, being an irregular heartbeat, and cardiopulmonary arrest, which in broad terms means a heart attack. It also causes reduced levels of consciousness producing sedation through to coma.

70 Mr Farrar said that it was necessary to be very careful in assessing how much olanzapine would have been in the blood before death. When a person dies, the liver shuts down and no longer performs its function. So a drug that had been concentrated in the liver would be slowly leached out of the liver into the body fluids including the blood. After death it was possible that the concentration of olanzapine in the blood sample could have increased but Mr Farrar was unable to say by how much.

71 The presence of 7-amino clonazepam, the cannaboids and the fluoxetine in the blood sample were not relevant to the cause of death. In his opinion the cause of death was "very likely to be" the combined effect of respiratory depression caused by methadone and olanzapine in the quantities stated in the certificate of analysis, together with the prospect of intravenous administration of methadone. It was not possible to determine whether methadone or olanzapine alone could have caused his death. He said, "It's unlikely that olanzapine on its own could have, but that can't be ruled out in my opinion."

72 Mr Farrar gave evidence that the effects of methadone were reversible by the use of a drug called Naloxone drug or Narcan which was carried by NSW Ambulance Services. He said that, if a person overdosed on methadone or heroin, the effects could be immediately reversed if the person were injected with that drug.

73 There was endone found in the deceased's blood. Mr Farrar did not believe that there was enough of the drug to have caused the deceased to be "on the nod" at the time he was visiting Dr Roberts.

Purchasers of drugs from the appellant

Felicity Malouf

74 Ms Malouf had been on the methadone programme since 1996. She had taken methadone the day she gave evidence. She understood that the word "fit" referred to a syringe.

75 On 9 February 2007 she rang the appellant's home at about 2pm to arrange to obtain some methadone. She had developed an addiction to intravenously injecting the drug. This was notwithstanding that she had been told that she was to take the prescribed dose of methadone orally.

76 This was not the first time she had been to the appellant's home for the purpose of buying methadone. She had been purchasing it from the appellant and Burns regularly, perhaps once or twice a week for a few months. The methadone she received on 9 February 2007 was a pink colour and this was not the type of methadone that she was prescribed.

77 She knocked at the door and Burns let her in. She said that she was introduced to a person named David Hay who was sitting on a chair in the lounge room. He did not acknowledge her and she described him as being "out of it" because he did not respond. She thought he might have been drunk but was not close enough to smell alcohol on him. Burns was concerned about the deceased and at one stage asked him what he had taken. Ms Malouf changed her view about what had affected him when Burns said he thought he should call an ambulance and that the deceased had wanted or had taken some methadone. She was not sure of his exact words. The deceased said nothing at all to her.

78 After she sat down, she talked to Burns for a while. After a few minutes he said, "I think I should call an ambulance for him". She saw the deceased sitting with his head down and his chin on his chest. She suggested that they try to get him up and walk him around a bit. Burns said, "we are going to get you up mate". They were on either side of him, his arms around their shoulders and they walked him around in a circle four or five times. The appellant was in the bedroom getting dressed when this was happening. After they walked him around, they sat him back in the seat and Burns said to him, "Mate we're going to call an ambulance" or "I'm going to call an ambulance". The deceased replied, "No, no I'm right" or something to that effect. The appellant then came into the room.

79 The appellant said that "she didn't want him there like in that state and that he should go home or he should leave the unit". Burns said, "Come on mate it's time to go". There was a discussion about what the deceased should do: whether he should sit outside or go on his way. Burns said that he would put him outside and keep an eye on him. Ms Malouf thought that would be a good idea.

80 The deceased got up by himself and Burns handed him his bags that were on the floor next to the coffee table. He had a canvass bag over his shoulder. A couple of minutes later Burns came back to the apartment. Ms Malouf said that the deceased walked out under his own steam, he was not carried or helped in any way. She was not overly concerned about him.

81 Ms Malouf picked up her methadone from the coffee table. She paid $70 in cash for 22mls and took it away with her. She did not always take the methadone away and occasionally she would ingest it at the unit. At the unit she did not see any needles or swabs lying around or any drug paraphernalia. She saw nothing to indicate that the deceased had just taken methadone by way of injection. She left about five minutes after the deceased and did not see him again. She did not look toward the toilet block.

82 She gave evidence that she was never aware of any person requiring medical assistance after taking methadone. It was not unusual, in her experience, for a person to become sleepy or "on the nod" after using methadone.

83 The supply to Ms Malouf of methadone on 9 February 2007 was the third count on the indictment to which the appellant pleaded guilty.

Cherie Donnelly

84 Ms Donnelly was on a methadone programme but occasionally in 2007 she would obtain methadone from Burns and the appellant. She accepted that she bought the drug from them on 2 March 2007 as she had heard some telephone conversations that were recorded by the police to that effect. She paid $50 but did not recall how much she received. She was given a syringe and injected the methadone into her arm in their lounge room. She put the used syringe into a bin in their apartment. This was the only occasion when she had injected methadone in their home.

85 She agreed that apart from 2 March 2007, the methadone supplied to her was by way of a bottle and she would consume it at home.

86 The appellant's possession of methadone for sale on 2 March 2007 gave rise to count 4 on the indictment. The supply of methadone to Ms Donnelly on that date gave rise to count 5. The appellant pleaded guilty to each of these counts.

The defence case

87 The appellant neither called nor gave evidence.

88 In relation to unlawful and dangerous act manslaughter, the submissions made by counsel to the jury on the appellant's behalf were, first, to argue that the Crown had not proved beyond reasonable doubt that either Burns or the appellant supplied the deceased with methadone. Secondly he argued that, even if Burns supplied the drug, it did not follow that the appellant had done so. Thirdly he argued that, even if the jury found that the appellant was guilty of supply, she did not appreciate the risk of that supply to the well being of the deceased because she did not know of his condition at the time of the supply. Fourthly he submitted to the jury that they would not be satisfied beyond reasonable doubt that the act of supply caused the death of the deceased, either because it was the deceased's voluntary act of ingestion of the drug that caused his death or because it was not methadone that killed him.

89 In relation to gross criminal negligence manslaughter, he argued principally that the appellant owed no duty of care to the deceased because she was unaware that there was anything seriously wrong with him. He relied chiefly upon the evidence of Ms Malouf in this regard and suggested that Burns might have owed a duty after he left the house with the deceased.

Ground 1: His Honour erred in refusing to remove the charge of manslaughter by gross criminal negligence from the consideration of the jury.

Ground 2: His Honour erred in directing the jury that there was a duty of care owed by a supplier of drugs towards the drug recipient.

90 It is convenient to consider these grounds together.

91 The appellant's fundamental submission was that she was not under a legally recognised duty (as opposed to any moral obligation) to seek medical aid for the deceased. This submission was said to be supported by the decision of the High Court in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L No 14 Pty Ltd v Scott [2009] HCA 47; [2009] 239 CLR 390 at [47]-[55]. The relevant principle was said to be:

"There is no legally recognised duty of care owed by a person who supplies a drug (legal or otherwise) to ensure that the person is safeguarded from the effects of the drug."

92 In addition it was submitted that the Crown must show that if the appellant owed a duty of care that she, by her failure to discharge that duty, was "grossly negligent." The appellant framed a question by reference to the decision in R v Taktak (1988) 14 NSWLR 226 at 236;(1988) 34 A Crim R 334 at 353 in the following terms:

"(was) ... the jury entitled to conclude ... that the appellant here voluntarily assumed the care of the deceased 'and so secluded the helpless person as to prevent others from rendering aid'."

93 With respect to factual issues relevant to a duty of care the appellant emphasised that when the deceased was offered medical assistance he refused it. It was submitted that at that point there was no evidence that he was incoherent or unconscious and furthermore there was evidence that he was able to walk without assistance. It was further submitted that the evidence did not allow the jury to find that in forcing him to leave her residence the appellant showed the high degree of negligence necessary to sustain a conviction for manslaughter.

94 Questions relating to the existence of a duty of care which, if breached, will give rise to criminal liability have been discussed both in previous decisions and by the academic writers. As it happens there are both decisions and writings relating to the circumstances of a person who illegally supplies drugs to another who dies as a result of taking the drugs.

95 The common law has resisted imposing a universal obligation on one person to take care for another. Accordingly, a person is generally not criminally liable for a failure to prevent harm occurring to another. (There is a useful discussion of the issue by Yeldham J in Taktak at 236). However, depending upon the circumstances and in particular the relationship between the parties, the general rule may give way.

96 Gross negligence manslaughter depends upon the offender owing the deceased a duty of care: Kelly v R (1923) 32 CLR 509 at 515; Taktak at 357; R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209 at 211-12). The duty must be recognised by common law or statute. Not every moral duty amounts to a legal duty ( R v Instan [1893] 1 QB 450 at 453 Coleridge CJ).

97 Some common law duties of care which may give rise to criminal liability are clearly "established". An offender who is responsible for rendering a victim unconscious owes a duty to assist the victim ( R v Lawford & Van de Wiel (1993) 69 A Crim R 115 at 121). An offender who voluntarily assumes responsibility for a victim who is physically or mentally incapable of caring for him or herself owes a duty of care which may be an occasion for criminal liability ( Taktak at 358; Hall at 211-12). A parent or guardian owes a duty to a young child in his or her care to provide the "necessaries of life" ( R v Bubb & Hook (1850) 4 Cox CC 455 at 460 Williams J; R v Duffy (1880) 6 VLR (L) 430 at 432 Stawell CJ; R v Russell [1933] VLR 59 at 75 Mann J, at 80 McArthur J; R v Clarke & Wilton [1959] VR 645 at 649). "Necessaries" include medical attention ( Duffy at 432; R v Gibbins & Proctor (1918) 13 Cr App R 134 at 139 Darling J; R v Stone & Dobinson [1977] 2 All ER 341 at 346; Taktak ). There is some authority for the proposition that religious objection to, or the unreasonable refusal of, surgical procedures will not provide a defence ( R v Downes (1875) 1 QBD 25 at 28-30; R v Senior [1899] 1 QB 283 at 291), however those cases concerned statutory rather than common law duties. The concept of "necessaries" also includes protecting a child from physical harm ( Russell at 75 Mann J, at 80 McArthur J; Clarke & Wilton at 649).

98 A duty of care which may be an occasion for criminal liability can be inferred from a combination of circumstances or from the nature of the offender's relationship with the deceased. In Stone & Dobinson , the offender Stone was the deceased's sister. The deceased, who suffered from anorexia, had accepted the offenders' invitation to live with them. The offenders were aware of her condition prior to her death and had made some attempt to provide assistance. A duty of care was found to exist. In Instan , a niece was found to be subject to a duty to assist her ailing aunt at whose expense she was living. In Gibbins & Proctor , a father and his partner were found to have neglected the deceased, a child. The partner owed a duty of care to the child at the point at which she moved into the father's home. In R v Cowan [1955] VLR 18 it was held the offender was under a duty to take all reasonable steps within his power to assist his de facto wife, who had sustained severe burns and was helpless. In Taktak , although the offender and victim were strangers, a combination of factors, including the victim's helplessness and the offender's action of secluding her from assistance, created a duty of care.

99 There is a debate as to whether the duty of care in gross negligence manslaughter is to be equated with the duty giving rise to a liability in tort. According to Herring and Palser, "The Duty of Care in Gross Negligence Manslaughter" [2007] Criminal Law Review 24 at 25, support for an affirmative answer to this question can be found in the decisions of Lord Mackay in R v Adomako [1995] 1 AC 171 at 187 and Lord Justice Kay in R v Wacker [2003] QB 1207 at [37].

100 Herring and Palser argue that the nature of criminal proceedings necessitates a different approach to the question of duty of care than is appropriate in civil proceedings (at 37):

"[C]riminal proceedings are brought by the state and not by the victim. Hence the culpability of the victim is not relevant to the guilt of the defendant. A defendant charged with burglary will have no defence that the victim was foolish in leaving her house unlocked and was therefore partly responsible for the crime. This is the point behind the Wacker decision. Although the victims were committing a crime and had even consented to the dangerous activity this was irrelevant to the guilt of the accused. Criminal proceedings are not about balancing the responsibility between the defendant and the victim, but in determining whether the activity engaged in by the defendant is sufficiently harmful and blameworthy in the eyes of the state to justify a criminal conviction."

101 Kay LJ in Wacker (a decision of the English Court of Appeal) expressed a similar view (at [33]):

"Why is there, therefore, this distinction between the approach of the civil law and the criminal law? The answer is that the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state's duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. The criminal law should not be disapplied just because the civil law is disapplied. It has its own public policy aim which may require a different approach to the involvement of the law."

102 We do not believe that it is necessary to attempt to explore this issue in the present case.

103 To constitute manslaughter by criminal negligence, the breach of duty must be "gross". The test has been variously expressed, for example: "conduct deserving punishment" ( R v Bateman (1925) 19 Cr App R 8 at 12 Hewart LCJ), "recklessness" ( Andrews v DPP [1937] AC 576 at 583; [1937] 2 All ER 552 at 556 Atkin LJ), "gross" or "culpable negligence" ( R v Gunter (1921) 21 SR (NSW) 282 at 286 Cullen CJ; R v Wood (1957) 57 SR (NSW) 638 at 639; Taktak at 351 and 353), "wicked negligence" ( R v Nicholls (1875) 13 Cox CC 75 at 76 Brett J), and "a very high degree of negligence" ( Andrews at 556 Lord Atkin; R v Bonnyman (1942) Sol Jo 274; 28 Cr App R 131 at 135). In Andrews Lord Atkin remarked (at 556):

"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case."

104 In Lawford Duggan J at 120:

"At common law liability for a failure to act is exceptional and in the case of homicide the limited authority that there is restricts liability to situations where there is a duty to perform a particular act: Phillips (1997) 45 ALJR 467 at 477. In Taktak's case it was held that the accused assumed a duty to take care of the deceased girl by removing her while she was helpless from a situation in which others might have rendered assistance to her. Examples of situations in which similar duties might be said to arise are also to be found in the Criminal Law Revision Committee 14 th Report (UK), par 252, where it is said:

'(i) a parent is under a duty to his young children (under common law and also by the Children and Young Persons Act 1933 as mentioned above);

(ii) one who voluntarily undertakes the care of a helpless and infirm person owes a duty to that person ( Nicholls (1874) 13 Cox 75);

...

(iv) there may be a duty under a contract of employment where omission to perform the duty is likely to endanger the lives of others whether or not they are parties to the contract ( Pittwood (1902) 19 TLR 37);

(v) where there is a right and the ability to control the actions of others, there may be a duty to exercise that right in order to prevent the commission of a crime. This may result in liability as a secondary party if the other is guilty of an offence, as in Rubie v Faulkner [1940] 1 KB 571, where the supervisor of a learner driver failed to supervise the driver and was convicted of aiding and abetting the driver to drive without due care and attention;

(vi) where the defendant has himself put a person in danger by a wrongful act, he is probably under a duty not to leave that person in danger;

(vii) where the defendant holds a public office which requires him to care for others he has a duty to do so, as for example in Curtis (1885) 15 Cox 746, where the relieving officer for a local authority was held liable for manslaughter by an omission for neglecting to provide medical assistance to a destitute person and Dytham [1979] 3 All ER 641, where a uniformed police officer stood within 30 yards of a club from which a man was being ejected and made no move to intervene whilst the man was noisily kicked to death in the gutter."

105 The question raised in the present case is whether the supplier of a prohibited drug owes a duty of care to a person to whom they supply the drug and who, in their presence "takes" the drug. The Crown submitted that that duty arose from the fact that by supplying the drug the appellant created the danger to the deceased. It was submitted, adopting the approach taken by Barr J when directing a jury in R v Taber & Styman (2002) NSWSC 1239 at [14] that any person who deliberately puts another in danger has a legal duty to take steps to remove that danger.

106 In R v Evans (Gemma) [2010] 1 All ER 13; [2009] 1 WLR 1999 a 24 year old woman supplied her 16 year old half-sister heroin who self injected. The appellant put her sister to bed and she died. The English Court of Appeal (at [31]) accepted that a person owes a duty of care having "created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening."

107 The court in a judgment handed down by Lord Judge CJ reviewed a series of English cases, not all drug cases, where a duty to act had been identified. Adomako involved an anaethetist and his patient who died. The duty was readily identifiable. In R v Khan (Rungzabe) [1998] Crim LR 830 a young woman who was supplied with heroin, became ill and died. The appellants who were drug dealers left her, returning the next day, by which time she had died. Although convicted the appellant succeeded in an appeal due to an unrelated problem with the summing-up. However, the Court of Appeal in Evans accepted that liability for criminal negligence was open in those circumstances.

108 R v Sinclair, Johnson and Smith (1998) 148 NLJ 1353 concerned a close friend of the deceased. They lived together. Sinclair provided his friend with a dose of methadone and assisted the deceased to obtain a second dose. He knew that the deceased was not an addict. Although he stayed with him as he became unconscious he did not call for assistance. A duty of care was found to arise.

109 R v Willoughby [2008] 1 WLR 1880 was a case of arson resulting in death and the conviction of the appellant for manslaughter. The appellant had set about destroying the premises for his own benefit and enlisted the deceased to assist him in spreading petrol. Criminal liability was held to arise.

110 In Wacker the appellant drove a lorry in which 58 illegal immigrants were secreted. They died and although they were involved in an illegal enterprise with the appellant, it was held the appellant had assumed a duty to care for them which he had breached and accordingly was convicted of gross negligence manslaughter.

111 Lord Judge at [31] said of these decisions (emphasis added):

"These authorities are consistent with our analysis. None involved what could sensibly be described as manslaughter by mere omission and in each it was an essential requirement of any potential basis for conviction that the defendant should have failed to act when he was under a duty to do so. The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise ."

112 We see no reason to take a different approach to the issue than has been taken by the English authorities. Although the appellant submitted otherwise, we do not believe that the decision in C.A.L No 14 requires a different conclusion. That case was concerned with the relationship between the proprietor and licensee of a hotel who served alcohol to a customer. The High Court (at [52]) decided that there was no duty at common law to monitor and minimise the service of alcohol to customers or to protect customers from the consequences of the alcohol they chose to consume. The reasons for this conclusion were summarised by Gummow, Heydon and Crennan JJ at [52]-[55] (footnotes omitted):

There is in general no duty. The conclusion in this Court that the Full Court majority decision must be reversed as a practical matter overcomes these problems. However, even though the arguments in this Court proceeded in a much narrower way, being closely tied to the specific facts of this case, it is desirable to avoid repetition in future of what happened in this case by explicitly stating the fundamental reason why the Full Court majority decision on duty of care is wrong. The reason is that outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. That conclusion is correct because the opposite view would create enormous difficulties, apart from those discussed above, relating to customer autonomy and coherence with legal norms. The difficulties can be summarised as follows.

Expressions like "intoxication", "inebriation" and "drunkenness" are difficult both to define and to apply. The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive. It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent. With some there is the risk of confusing excitement, liveliness and high spirits with inebriation. With others, silence conceals an almost complete incapacity to speak or move. The point at which a drinker is at risk of injury from drinking can be reached in many individuals before those signs are evident. Persons serving drinks, even if they undertake the difficult process of counting the drinks served, have no means of knowing how much the drinker ingested before arrival. Constant surveillance of drinkers is impractical. Asking how much a drinker has drunk, how much of any particular bottle or round of drinks the purchaser intends to drink personally and how much will be consumed by friends of the purchaser who may be much more or much less intoxicated than the purchaser would be seen as impertinent. Equally, to ask how the drinker feels, and what the drinker's mental and physical capacity is, would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy. In addition, while the relatively accurate calculation of blood alcohol levels is possible by the use of breathalysers, the compulsory administration of that type of testing by police officers on the roads was bitterly opposed when legislation introduced it, and it is unthinkable that the common law of negligence could compel or sanction the use of methods so alien to community mores in hotels and restaurants.

Then there are issues connected with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider. It is not against the law to drink, and to some degree it is thought in most societies - certainly our society - that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial. As Holmes J, writing amidst the evils of the Prohibition era, said: "Wine has been thought good for man from the time of the Apostles until recent years." Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who "may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety", and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encouraged an interfering paternalism on the part of those who run the hotels and restaurants.

A duty to take reasonable care to ensure that persons whose capacity to care for themselves is impaired are safeguarded also encounters the problems of customer autonomy and legal coherence discussed above. A further problem of legal coherence arises where legislation compels a publican to eject a drunken customer but the tort of negligence requires the person's safety to be safeguarded by not permitting the person to drive or to walk along busy roads, and hence requires the person to be detained by some means. Even if the customer wants to leave, the publican is caught between the dilemma of committing the torts of false imprisonment or battery and committing the tort of negligence.

113 Their Honours identified a number of specific matters in the facts of that case which indicated that a duty of care did not arise. The Crown summarised these findings in the following terms:

"(a) Mr Scott was not 'vulnerable' as indicated by his being an experienced drinker who was likely to be conscious of his own capacity, particularly to travel the short route home [33];

(b) If the publican tried to threaten or use force to prevent Mr Scott obtaining the keys to his motorcycle (which had been put in a petty cash tin with other customers keys) he would very possibly have been committing an assault [39]. To have prevented Mr Scott from leaving would have exposed the publican to false imprisonment and battery [55];

(c) The putative duty would clash with the publican's duty as a sub-bailee to hand over the keys and the motorcycle (which was in the storeroom) [40];

(d) As a private citizen, unlike a police officer, the publican (sic) no power to forbid Mr Scott from driving under the influence of alcohol or otherwise control his freedom [41]."

114 The present case differs significantly. The provision of methadone to the deceased was a breach of the law. The drug was known to the appellant to be dangerous and it was plainly open to the jury to conclude that the deceased was vulnerable, both because of his naivety as a user of methadone and his physical condition at the time. It is true that there was evidence that after his distressed condition had become apparent to the appellant and Burns the deceased refused medical assistance. However, it was open to the jury to conclude that the appellant was aware of the deceased's compromised state and, even though he declined assistance, to determine that she had a duty, notwithstanding any protestation from the deceased to seek medical attention for him. The evidence was capable of the conclusion that the deceased needed assistance to stand or walk yet the appellant required that he be put outside without further care for his welfare. The calling of an ambulance could not have comprised any principle of law otherwise arising from the relationship between the appellant and the deceased.

115 The trial judge told the jury:

"If a person voluntarily invites or permits potential recipients to attend his or her home for the purpose of a prohibited drug supply transaction, where the drugs are to be consumed on the premises and where such a recipient may be or become seriously affected by drugs to the point where his or her life may be endangered, the drug supplier has a duty to conduct himself towards the drug recipient without being grossly or criminally neglectful.

Now, you will notice that I have put that paragraph in bold. I do so because I am setting out there what may amount to or constitute a legal duty - but you are the judges of the facts, it is for you to consider whether, on the facts as you find them to be established in this case, the accused did, in the terms I have outlined, voluntarily take upon herself such a duty towards David Hay.

Let me explain that briefly. For example, if you think that it was actually the husband independently of Natalie who invited David Hay to the premises and her husband who may have given him drugs but she did not find out about it until later, then it may well be that the facts do not fit the duty or the possible duty which I have outlined there in black. Or if you take the view that, whatever happened, he was up walking about, his life was not endangered and again the facts do not fit that formula.

On the other hand, as I say, my task is to tell you where a duty may arise, if you find those facts - and I repeat it is for you to consider whether on the facts if you find them to be established in this case, the accused did, in the terms I have outlined, voluntarily take upon herself such a duty towards David Hay."

116 The appellant submitted that the first paragraph of the direction misstates the law. She submitted that it is for the trial judge to determine whether as a matter of law there is evidence upon which a jury could be satisfied beyond reasonable doubt that a duty of care arises. It is then for the jury to determine whether the Crown case proved beyond reasonable doubt that in the circumstances of a particular case there was such a duty.

117 As we understand the latter submission and in so far as it deals with the issue it is correct. It is always a matter for the judge to determine whether there is evidence that supports an essential element of the charge. However, it may be that the appellant was seeking to agitate a debate which occurred in Evans . In that case Lord Judge CJ addressed the question of whether the existence of a duty of care was a question of law for the judge or a question of fact for the jury. It had been suggested in Willoughby that both the existence of a duty and issues related to breach of that duty were matters for the jury. The controversy was discussed by Herron and Palser in "The Duty of Care in Gross Negligence Manslaughter" [2007] Criminal Law Reports 24.

118 In his judgment in Evans Lord Judge resolved the controversy determining that the existence of a duty of care is a matter of law for the judge. The judge must give instructions to the jury as to the elements of the duty. The jury must determine whether the facts to make out those elements exist in the particular case. The discussion is found from [37] in Evans. We respectfully agree with the analysis and the conclusion.

119 Consideration of the trial judge's direction indicates that his Honour was mindful of the approach in Evans . This may be because he accepted the guidance provided by the Criminal Trial Courts Bench Book. In our opinion the directions suggested in the Bench Book correctly reflect the law.

120 We would dismiss grounds 1 and 2 of the appeal.

Ground 3: Was the verdict unreasonable?

121 We understand this ground to concern gross criminal negligence manslaughter upon the assumption that this was the manner by which the jury reasoned to a conviction. Of course they may have confined their deliberations to unlawful and dangerous act manslaughter which is considered under ground 4 of the appeal.

122 The appellant submitted that although it could be accepted that there was evidence on which the jury could have been satisfied that the deceased was supplied with methadone and injected himself within the unit there was not the evidence necessary to found a conviction for manslaughter because:

• There was no evidence that the appellant was aware of other drugs taken by the deceased or the possible effects of mixing those drugs.
• The evidence is consistent with the appellant seeing the deceased for only a short period of time.
• The appellant was herself a user of methadone and had no medical knowledge.
• It is likely that, in the appellant's experience, being "on the nod" could be managed by having a sleep.
• There was no evidence as to when Mr Hay died - that is how long after he left the unit, or what other drugs he may have consumed after leaving the unit.
• The Crown had not negated the reasonable possibility that it was the olanzapine alone that killed Mr Hay.

123 The Crown provided a comprehensive and persuasive response to the points raised by the appellant. In our opinion it should be accepted. The Crown emphasised that the appellant even in her written statement to the police admitted that the deceased was "out of it or drunk or something. I don't know what it was, he was either drunk or too out of it." The appellant did not refer to the deceased being drunk on the listening device tapes but simply that he was "out of it". When Ms Malouf was asked whether she smelt any alcohol on the deceased, she answered "I wasn't that close to him". The Crown pointed out that this response was less than accurate. There came a time when she was close to the deceased with one of his arms was placed over her shoulder. Furthermore, there is no dispute that serious consideration was given to an ambulance being called which would not have been likely had anyone seriously contemplated that the deceased was just drunk from alcohol. The evidence indicated that the three persons present with the deceased were all very familiar with the serious dangers involved in the illegal consumption of methadone and dangers of mixing it with other drugs.

124 With respect to the appellant's submission that she only saw the deceased for a short period of time it was submitted that this did not exclude her being aware of the danger. It was submitted that it was clearly open to the jury to conclude the deceased had been injected with methadone in the unit. Importantly by the time Ms Malouf arrived at the unit the deceased was obviously present and having regard to her evidence, at best, in a semi-conscious state.

125 The Crown submitted in response to the appellant's submission that it was likely being "on the nod" could be managed by having a sleep that this was a matter for the jury. The Crown accepted that the test of "dangerousness" is different in the case of manslaughter by unlawful and dangerous act and manslaughter by criminal negligence. As was pointed out by the majority in Wilson v The Queen (1991-92) 174 CLR 313 at 333 an appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is "a high risk that death or grievous bodily harm would follow."

126 The Crown emphasised that the evidence indicated that Ms Malouf was concerned enough, as was Mr Burns, to seriously discuss calling an ambulance. Moreover, Ms Malouf gave evidence that if she had known that the deceased was not on the methadone program she would have been asking more detailed questions and probably would have called an ambulance.

127 The appellant submitted that the deceased could have consumed other drugs after leaving the unit. However as the Crown submitted it was open to the jury to reason that the needle puncture to the deceased's arm resulted from injecting methadone. The evidence established that it could only have been methadone or olanzapine that was injected. Olanzapine was excluded for a number of reasons including the fact that it comes in tablet form; methadone can be injected; the deceased's presentation to Dr Roberts was consistent with overdosing with too many tablets of olanzapine; the deceased visited the appellant's unit where the evidence established methadone was supplied to others and injected. Additionally the jury could reason that the evidence established that he had been at best in a semi-conscious state at the unit, there was no evidence he took methadone from the unit with him, there was no signs of drug paraphernalia in the surrounding area of the toilet where the deceased was found dead and the perfectly rational conclusion was, as Dr Duflou stated, he would have suffered from a slow respiratory depression and that death occurred probably in the 8 to 12 hours following the injection of methadone.

128 The appellant submitted that the Crown had not negated as a reasonable possibility that olanzapine alone had killed the deceased. However, this submission appears to be entirely reliant upon a small portion of the evidence of Mr Farrar about which Mr Farrar himself warned against placing too much emphasis. Mr Farrar gave evidence that the level of olanzapine in the deceased's bloodstream was between 15 and 50 times the therapeutic level; but he said "one has to be careful" interpreting this statistic. He explained, this reading "to me probably means he had too much of olanzapine, but it doesn't indicate necessarily that he had a fatal dose of olanzapine. But that can't be ruled out, as I said". However, he went on to explain that the fatal cases to which he was referring sometimes involved "people taking other drugs at the same time" and other cases involved them having a medical predisposition such as a cardiac heart condition. He further qualified the reliability of the actual reading of the amount of olanzapine in the deceased's system by explaining that the olanzapine concentration might have increased after death for the reasons we explained earlier. His view was always that in the present case death resulting from olanzapine alone was unlikely.

129 We are entirely satisfied that the evidence supported a finding of manslaughter by criminal negligence. Having regard to the evidence of the deceased's condition, which we are satisfied deteriorated after he had received methadone, it was negligent in the extreme for the appellant to require him to be taken from her apartment and abandoned. An ambulance should have been called. If it had the evidence is persuasive that the deceased would most likely have survived.

130 We reject this ground of appeal.

Ground 4: His Honour erred in refusing to remove the charge of manslaughter by unlawful and dangerous act from consideration of the jury

131 As we have already noted, the appellant conceded that it was open for the jury to find that the appellant was party to a joint enterprise with Burns to supply methadone to the deceased. We have also noted our view that the evidence of that fact was overwhelming. The attack upon the conviction so far as this head of manslaughter is concerned, seems to be upon two bases: whether it was open to the jury to find beyond reasonable doubt that a reasonable person in the position of the appellant would have foreseen that the supply of methadone to the deceased was relevantly dangerous and whether it was open to the jury to find beyond reasonable doubt that the ingestion of methadone was a cause of the death of the deceased. The latter of these arguments was raised squarely with the jury by defence counsel, the former was raised somewhat obliquely.

132 Defence counsel made a submission to the trial judge at the conclusion of the Crown case that the charge of manslaughter should be withdrawn from the jury on both bases upon which the Crown relied. In respect of unlawful and dangerous act manslaughter, the basis of that submission was that the Crown could not prove beyond reasonable doubt that the appellant's act of supply of the methadone to the deceased caused his death. The additional ground of appeal is based upon the same argument.

133 The question for the jury was whether, in light of all the evidence, there was any act of the appellant that substantially contributed to the death of the deceased. The submission made by defence counsel and in the additional ground of appeal arose in the context of the decision in R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269.

134 In Kennedy (No 2) the House of Lords dealt with the following certified question from the Court of Appeal at [2]:

"When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?"

The answer to that question was at [25]:

"In the case of a fully-informed and responsible adult, never."

135 During the course of the hearing in this Court, the parties were asked to prepare further written submissions principally on the issue of the availability of gross criminal negligence manslaughter. They were also asked to address the issue of whether Kennedy was good law in this State. The focus of that request was the answer given by the House of Lords to the certified question.

136 The appellant's counsel responded with a relatively brief written submission. It was submitted that in order to convict the appellant of manslaughter by unlawful and dangerous act the Crown had to establish that it was the act of the appellant that caused the deceased to die. It was submitted that there was no evidence which could have satisfied the jury that the appellant administered the methadone to the deceased or assisted him in taking it. We shall consider the evidence on this issue below.

137 It was further submitted that there was no evidence upon which the jury could find that the deceased did not take the methadone as a result of a fully informed decision, made by a responsible adult. For this submission the appellant relied on the following facts:

• The deceased had a needle puncture mark consistent with previous injections on the same site in the previous days or weeks;
• The level of methadone in the deceased's blood was well below the level of an overdose;
• Mr Hay was clearly able to get himself from Dr Roberts' surgery to the home of the appellant;
• Felicity Malouf's description of Mr Hay's condition was after he had taken the methadone.

138 Kennedy has previously been considered in this Court in Justins v R [2010] NSWCCA 242.

139 Justins was concerned with a conviction for manslaughter arising from an allegation that the appellant acted with gross criminal negligence in providing a glass containing poison to her husband in accordance with his purported desire to commit suicide. The case was not left to the jury on the basis of unlawful and dangerous act manslaughter. The appeal was allowed but not on any issue of causation. A ground alleging that the trial judge failed to direct the jury adequately on the issue of causation was rejected by a majority of the Court.

140 During the course of his judgment the Chief Justice stated:

"64 It is clear that in order to establish manslaughter by criminal negligence the prosecution must show that the act which caused the death was the act of the accused. (See Nydam v R [1977] VR 430 at 445, which contains the standard direction as frequently approved. See Wilson v The Queen (1992) 174 CLR 313 at 333; The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67 especially at [17], [60] and [72]).

65 In this respect, the central issue, as I mentioned at [50] above, is whether the act of the appellant, in making the Nembutal available, caused the death of the deceased or whether, in pouring and consuming the Nembutal, the deceased brought about his own death through his own act. As the House of Lords said in Regina v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269 at [15], in a case dealing with manslaughter by unlawful and dangerous act:

'... causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.'

66 In that case, the House of Lords was asked to consider whether manslaughter was available where the appellant had prepared a dose of heroin and given the readied syringe to another, who had then injected himself with the heroin and died as a result. The question certified by the Court of Appeal for the opinion of the House of Lords was (at [2]):

'When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?'

67 The answer that the House of Lords gave to this question at [25] was:

'In the case of a fully-informed and responsible adult, never.'

68 Although this answer was given in the context of a charge of manslaughter by an unlawful and dangerous act, the same approach applies to manslaughter by criminal negligence in circumstances such as arise in the present case. It is not necessary for present purposes to say that the answer is similarly "never". However, in this case, his Honour's directions on the need for an informed and independent decision were equivalent to what the House of Lords described in Kennedy as "a fully-informed and responsible adult". The issue posed for the consideration of the jury was whether Mr Wylie was capable of making "an informed and independent decision", such as to render the act of consuming the Nembutal his act, or whether, by reason of his degenerative illness, he lacked the mental capacity to perform the act which caused his death and that as a consequence the act causing death was not his but that of the appellant."

141 The other members of the Court were Simpson J and Johnson J. Justice Simpson would have allowed a ground of appeal concerned with the directions on cause of death but not for any reason founded upon Kennedy (No 2) . Her Honour does not refer to the decision or adopt what the Chief Justice had written. Justice Johnson adopted the reasoning of the Chief Justice in relation to the causation ground.

142 Justins did not approve the decision or reasoning of the House of Lords in Kennedy (No 2) in relation to any issue that arose in the trial of the appellant. As we have noted, Justins was a case of gross criminal negligence. The only portion of Kennedy (No 2) that was approved was the passage quoted in the judgment of the Chief Justice at [65]. We respectfully agree with that passage of the judgment.

143 Otherwise the only relevance of Kennedy (No 2) to the decision in Justins was that it supported the trial judge's direction to the jury that a determination of whose act caused death would depend upon what the jury found as to the deceased's capacity to decide to drink the glass of poison and bring about his death. Rather than approve of the answer to the certified question, the Chief Justice simply noted that it was not necessary to determine whether that answer applied to the case before the Court.

144 Causation has often caused problems for the law: March v Stramare (E & MH Pty Ltd) (1991) 171 CLR 506; Bennett v Minister for Community Welfare (1992) 176 CLR 408; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 240; R v Smith [1959] 2 QB 35; Campbell v The Queen (1980) 2 A Crim R 157; R v Pagett (1983) 76 Cr App R 279; Royall v The Queen (1991) 172 CLR 378; Arulthilakan v The Queen; Mkoka v R (2003) HCA 74; (2003) 203 ALR 259; R v Moffatt (2000) NSWCCA 174 ; (2000) 112 A Crim R 201; R v Styman ; R v Taber [2004] NSWCCA 245. Issues of causation in Australian criminal law are informed substantially by the discussion in the High Court in Royall . However, the High Court did not speak entirely with one voice and as Wood CJ at CL said in Moffatt (at [70]).

"The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J, said that the accused's act or omission 'must contribute significantly to the death of the victim (at 398). Deane and Dawson JJ said that it would be sufficient if the accused's conduct "is a substantial or significant cause of death ' (at 411). The 'causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused.' (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon 'whether the act of the accused substantially contributed to the death' (at 423). McHugh J said that the wrongful act must be "An operating cause and a substantial cause" (at 444)."

145 So it was in the Kennedy decisions. In Kennedy (No 1) (1999) Crim LR 65 the Court of Appeal held that by preparing the syringe the supplier of the drug to the victim who voluntarily injected himself was guilty of manslaughter.

146 The decision in Kennedy (No 1) proved controversial and was departed from, although not expressly overruled in R v Dias (2001) EWCA Crim 2896. The controversy surrounding Kennedy did not subside and ultimately the Criminal Cases Review Commission referred Kennedy (No 1) back to the courts. The House of Lords decided that the victim's independent act broke the chain of causation. The answer which Lord Bingham gave to the question, in a unanimous judgment, was upon the assumption that the victim was a "fully informed and responsible adult."

147 Kennedy (No 2) has subsequently been questioned in the Scottish High Court in Michael Kane v H M Advocate; Kevin McAngus v H M Advocate [2009] HCJAC 8, 2009 SLT 137. The court reviewed authorities from the United States of America, South Africa and England at [46]. The Lord Justice General said at [48]:

"We see no reason why the criminal law in Scotland should not, consistently with earlier authority in this jurisdiction, adopt a similar practical, but nonetheless principled, approach. The adult status and the deliberate conduct of a person to whom a controlled drug is recklessly supplied by another will be important, in some cases crucial, factors in determining whether that other's act was or was not, for the purposes of criminal responsibility, a cause of any death which follows upon ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug will not necessarily break the chain of causation."

148 With respect to the decision in Kennedy (No 2) it is as we have emphasised important to appreciate that it was expressed in relation to a person who freely and voluntarily administers the drug to him or herself. In the words of Lord Bingham "a fully informed and responsible adult." In McAngus the Lord Justice General at [44] emphasised that there may be difficulties in identifying whether a drug user who dies is "fully informed in the relevant sense." The issue being one of causation the vulnerability of the drug user may be relevant to determining whether the actions of the supplier relevantly contributed to the death of the user so that it can be said those actions caused the death. Particularly when Scottish law provides that the foundation for "culpable homicide" is recklessness it was suggested that the law may more readily attribute criminal responsibility to the reckless offender. The court drew attention to the approaches to the problem in various jurisdictions at [46] which differ from the approach taken by Lord Bingham.

149 In the result the Scottish Court after emphasising that reckless conduct was the foundation for the offence accepted a "practical, but nonetheless principled, approach" to the problem. Whether the unlawful act of another caused the user's death requires consideration of all the circumstances including the "adult status and deliberate conduct of the user."

150 If it were necessary to resolve the question in this case, and we do not believe that it is, we would be free to determine whether the courts in this State should follow Kennedy (No 2) in holding that manslaughter can never be made out in the circumstance where the supply of the drug is to a person who is a "fully informed and responsible adult." Whether the act of one person caused the death of another is a question of fact for the jury. It may depending on the circumstances of the case be a question capable of only one answer and for that reason in the circumstances considered by the House of Lords the correct answer may be never.

151 As some of the authorities and academic writings make plain much intellectual effort has been expanded in developing "theories" of causation. Some are discussed in Kennedy (No 2) . Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act.

152 If we were required to decide the question we would not adopt the conclusive proposition stated by Lord Bingham in Kennedy (No 2). It may be that in many or even most cases the voluntary act of an informed user removes the supplier from any criminal liability. But the factual question must be determined in each case.

153 In the present case the trial judge was clearly mindful of the decision in Kennedy when he directed the jury.

154 His Honour said when summing up:

"I want to make some further important points regarding cause. I emphasise that regardless of what the accused may or may not have done, she cannot be guilty of having caused the death of David Hay, if as a matter of reality or commonsense, the casue (sic) is some event other than her own act or omission. For example if David Hay walked out the back door and was struck dead by a bolt of lightening, neither commonsense nor the law would say that Natalie Burns had caused David Hay's death.

More to the point in this case, if you think it a reasonable possibility that David Hay went out the back, after he had been inside the Burns' flat and met someone else who gave him drugs, or that he then took more drugs, which he had had in his possession, then returned independently to the backyard and to the toilet, you could not be satisfied beyond reasonable doubt that the accused caused his death. What I am saying there is that there would be some intervention, some act or circumstance which in effect cancelled any wrong-doing there might have been by the accused.

And another possibility arising here is that, you might take the view that in reality and as a matter of commonsense, the true cause of David Hay's death was the simple fact that he made a rational, voluntary and informed decision to take the methadone. Now this is a matter for you to evaluate using your knowledge of the world and applying your commonsense to the fact (sic) as you find them to be. In this respect you might consider, amongst other matters you think relevant, the evidence as to David Hay's condition when he arrived at the Burns' place, evidence from the post-mortem as to the condition of his brain. You recall Dr Duflou said there had been, in the post-mortem examination of the body, some brain damage which appeared to be related to the earlier car accident he had had.

You might consider what he may, or may not have known about methadone and its effects. You may think that David Hay was a rational adult man who knew what he was doing so far as drugs were concerned, understood what methadone was and did and voluntarily took it. If you think it cannot be excluded that this is so, then his own action might be viewed by you as the real cause of his death.

On the other hand you might think that he died precisely because he did not know about methadone and its effects, that he had already suffered some degree of brain damage from an earlier car accident, that by the time he took methadone he was already affected by Lansobene he had ingested and so he can not be regarded as a person acting as a rational adult making an informed voluntary choice about taking methadone on 9 February 2007. These are considerations for you to evaluate.

These are all matters for you. I emphasise that the accused cannot be found guilty of manslaughter, unless the act, or omission should be not of - the act or omission of Natalie Burns substantially contributed to the death, and that such contribution was not negated, or cancelled out, by any of the considerations I have just explained. [As spoken]

Now, members of the jury, the question of when something causes something else, you will appreciate, is something which is capable of giving rise to a lot of academic intellectual argument - there are a lot of philosophical treatises on the meaning of the word 'cause', but the law says that you are twelve citizens of our community with a lot of wisdom about the world and able to make a commonsense decision, and in relation to this question of 'cause' that is what you are called upon to do. You look at the evidence, you bear in mind the legal principles that I have directed you on, and you ask yourself whether the accused caused the death in the sense that her act, or omission, substantially contributed to it."

155 In our opinion his Honour's directions in relation to causation were appropriate. His Honour made plain that the evidence of the condition of the deceased at the time he was supplied with the methadone left open a real question as to whether the deceased was a fully informed and responsible adult at the time. The evidence of Dr Roberts was that when he saw the deceased he was drowsy and affected by something. The listening device material suggests that the appellant was aware that the deceased was already affected by drugs. The deceased was not a registered methadone user and when injected, given the Olanzapine already in the deceased's system it proved to be a lethal cocktail. The deceased would not have anticipated that outcome.

156 The appellant submitted that the charge of unlawful and dangerous act manslaughter should have been taken from the jury because it could never be sustained. In our opinion this submission must fail because, if for no other reason, there was evidence from which the jury could conclude that the deceased did not make a rational, voluntary and informed decision to take the methadone. There being evidence which could satisfy the jury that the deceased was not capable of such a decision his Honour rightly left the matter with the jury.

157 There is a further matter of significance. An issue was ventilated at the trial as to whether the deceased injected himself or whether this was the act of the appellant or her husband. It was the Crown case that either the appellant or Burns injected the deceased with methadone. The post mortem examination revealed a needle puncture to the crook of the deceased's left elbow. Dr Duflou was of the opinion that the puncture occurred 8 to 12 hours prior to the deceased's death. The evidence made plain that injecting methadone requires considerable skill. The deceased was not an experienced methadone user. The evidence was that because methadone "must be watered down" a "butterfly needle" (and one was found at the premises) is required due to the size of the injection required.

158 The trial judge discussed the difficulties of injecting methadone with the jury at some length. At one point when speaking of the evidence of the appellant his Honour said:

"She did give evidence, though, about a butterfly needle. Now there is in evidence a photograph of a butterfly needle which is exhibit number AH. Now you might recall members of the jury that this object which was shown to the witness, this physical object - it was not actually tendered in evidence because the crown thought it was too sharp, but in any event there is a photograph of it there, and the way the crown argues is that you may well infer from the circumstances that David Hay, who was found to have methadone in his body when he was dead, had been given it by the Burns', probably via a butterfly needle for the reasons explained by Felicity Malouf and Cherie Donnelly."

159 Later his Honour said:

"And the crown says that if the Burns', acting jointly, injected it into him or assisted him to inject it, providing him with the butterfly needle and so on, then manslaughter by unlawfully dangerous act is proven. You have regard to what Miss Donnelly says, a real expert on the subject. She explained how methadone is injected by watering it down and using the butterfly needle, there was a lot of methadone to inject, it needed a large needle and we know that there were such needles in the apartment and police found one there. There is a photograph of it in evidence and the crown says both the accused and her husband were in it "up to their necks". The crown says in the listening device materials Natalie says, "He got the best outfit, no more." The crown says to you that she must have seen it in order to say that."

160 In our opinion the evidence made it entirely unlikely that the victim injected the methadone. It was open to the jury to conclude to the relevant standard, as we would ourselves, that the appellant or Burns administered the injection. The appellant accepted that they were acting in concert. The act of injection was unlawful and in the circumstances plainly dangerous and tragically led to the deceased's death.

161 There is one further matter. In Kennedy (No 2) the Crown accepted the relevant offence, a breach of s 23 of the Offences against the Person Act 1861 (UK) could only be proved if it could show that the offender administered the drug to the deceased. It was accepted that the offence could not be committed if the deceased made a voluntary and informed decision to take the drug. The discussion of causation by Lord Bingham was in order to explain why that concession was rightly made.

162 In the present case it was accepted that the unlawful act for the purposes of the charged offence was the supply of methadone to the deceased without a medical prescription. There was no issue at the trial and it was not submitted to this Court that a breach of this section could not be an occasion for unlawful and dangerous act manslaughter. The debate in this Court was confined to the issue of causation.

Conclusion

163 In summary the appeal must be dismissed.

164 It was open to the jury to conclude that the deceased arrived at the appellant's premises in a compromised state, was an inexperienced user of methadone and received, administered by the appellant or Burns, a lethal dose by injection. His condition further deteriorated and he died in circumstances where a call to an ambulance would have almost certainly saved his life.

165 Either by an unlawful and dangerous act causing death or by gross criminal negligence the appellant was convicted of manslaughter. We have no doubt that that conviction was appropriate. There has been no miscarriage of justice.

Orders

166 The appeal against conviction is dismissed.

167 SCHMIDT J: I agree with McClellan CJ and CL and Howie AJ.

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Decision last updated: 04 April 2011