While articles proliferate in the media following Sydney teenager Georgina Bartter’s death at Sydney music festival Harbourlife last Saturday after supposedly consuming one and a half ecstasy pills, possibly referred to as “purple speakers”, many commentators are focusing their attention on the drug supplier.
If he or she is found, what exactly are they up for? Supply or something more? Perhaps manslaughter?
Sydney Criminal Defence Lawyers delves into the archives and unearths an article on the topic written by one of its criminal defence lawyers, Jonathan Wilcox, commenting on this very issue in light of a 2012 Court decision. Included is a discussion of the Dianne Brimble case, in which our Principal acted in the inquest proceedings.
Image credit: Sydney Morning Herald
‘Banged Up: Burns v The Queen and drug suppliers’ liability for overdose death’
On 9 February 2007, David Hay went to the apartment of Natalia Burns and her husband in Belmore to buy methadone. Some time after ingesting the drug, he left the apartment, and was found dead the next morning in a nearby toilet block.
Burns was charged with manslaughter and four counts of supplying methadone. She pleaded not guilty to manslaughter and to one count of methadone supply, and was found guilty of these charges in 2009.
Burns appealed against her conviction in the NSW Court of Criminal Appeal (CCA) in 2011. The appeal was dismissed. She appealed successfully to the High Court in 2012.
The High Court decided that Burns could not have been found guilty of manslaughter, either by unlawful and dangerous act, or by criminal negligence. The act of supplying the deceased with drugs was not in itself dangerous, and the circumstances in which the deceased ingested the drugs did not create a duty of care.
This decision is similar to the Dianne Brimble case, which was similarly convoluted in its legal process. These decisions expose the weaknesses which have developed in the centuries-old vehicle for prosecuting unlawful but unintentional killing – involuntary manslaughter. This paper examines these and like decisions, concluding that statutory reform is the best solution for today’s criminal law.
Burns v The Queen  HCA 35
The relevant facts are these: the deceased went to Burns’ apartment with the intention of purchasing methadone. Mr and Mrs Burns were in the business of illegally selling methadone to drug users. The deceased was a friend of Mr Burns. The deceased had earlier taken olanzapine, which, in combination with methadone, is very dangerous. After injecting the methadone, the deceased became drowsy. Around this time, another methadone purchaser, Felicity Malouf, came to the apartment and witnessed the deceased. Mr Burns asked the deceased if he was all right, to which he responded in the affirmative. Mr Burns and Malouf assisted the deceased to walk around the room. Still drowsy, the deceased was asked if he wanted an ambulance. He replied that he did not. Mrs Burns appeared and instructed her husband to remove the deceased from the apartment. After being seen to the door, the deceased walked off.
The Crown’s case at trial was that either:
- Mr and Mrs Burns together injected the deceased with methadone; or
- they had assisted the deceased to inject himself with the drug; or
- Mrs Burns failed to take steps to call for assistance when the deceased was showing signs of an adverse reaction to the methadone following his ingestion of it.
Under grounds (a) and (b), Burns would be guilty of manslaughter by unlawful and dangerous act. Under ground (c), Burns would be guilty of manslaughter by criminal negligence.
The trial judge directed the jury that the mere supply of methadone to the deceased was an unlawful and dangerous act. This was a misdirection. The Crown conceded in the High Court that such an act could not support a conviction for manslaughter. Because the possibility that the deceased injected himself could not be excluded, Burns could not be convicted of unlawful and dangerous act manslaughter based on mere supply.
The supply of methadone was not dangerous because it did not cause the deceased’s death. This was the view of the House of Lords in R v Kennedy (No 2). Adopting this and the theory of causation adopted in Royall v The Queen, it was observed in the joint judgment that the voluntary and informed act of an adult – absent intimidation, mistake or other vitiating factors – negatives causal connection. Hence, the fact that the deceased was already affected by narcotics and he did not know what his reaction to methadone would be does not mean that his choice was not voluntary and informed: a foolish decision to take drugs is still a voluntary and informed decision.
French CJ clarified what a ‘dangerous’ act means in the context of involuntary manslaughter: it is an act which exposes another to a risk of serious injury. The test is objective. The mere supply of methadone, therefore, was not a dangerous act.
The High Court then considered the law of manslaughter by criminal negligence. The basis of the offence is explained in Nydam v The Queen:
‘the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.’
A non-exhaustive list of the duties of care recognised by the criminal law is provided by R v Taktak. One is the duty arising from the voluntary assumption of the care of another, ‘so secluding a helpless person as to prevent others from rendering aid’. This kind of duty was relied upon in Burns. Criminal liability is made out if the accused omitted to perform the duty in circumstances of gross negligence or recklessness which caused or accelerated the death of the deceased. French CJ found that Burns had not so secluded the deceased as to prevent others from rendering him assistance, so she had not voluntarily assumed the care of the deceased and did not owe him a duty of care.
In the CCA, the Crown alternatively relied upon the circumstance where the defendant plays a causative part in the sequence of events which gives rise to the risk of injury, such that a duty ‘to take reasonable steps to avert or lessen the risk may arise.’ French CJ found the possibility that the deceased injected himself could not be excluded, hence the deceased caused the danger to himself, so this kind of duty of care did not arise. The case was distinguished from cases where the accused starts a fire and fails to take steps to put it out or warn others.
The High Court explained its reasoning in the joint judgment by making the point that if Burns was found to be criminally negligent, why wasn’t Malouf as well? Moreover, if a duty does exist between drug user and drug supplier, what does it encompass – the provision of clean needles for instance? It would be incongruous with the criminal law that punishes drug supply to so hold. The CCA found a duty of care existed because Burns was present when the deceased injected: the High Court in the joint judgment explained this finding by speculating that the CCA might have allowed the encroachment of moral judgement into its legal determination.
Finally, the High Court found that even if a duty did exist, Burns’ omission to call an ambulance was not a criminal breach, because the deceased was asked whether he wanted an ambulance to be called for him, and he refused the offer.
In the light of the High Court’s clarification of the law of negligent manslaughter in Burns, can convictions for earlier cases of negligent manslaughter be sustained?
R v Nair  NSWDC 124
In 2011, Dr Suresh Nair was convicted of the 2009 death of sex worker Suellen Domingues-Zaupa. He pleaded guilty to manslaughter by gross criminal negligence. Nair, a neurosurgeon, hosted the deceased and another sex worker, Carmen Cardona, in his Elizabeth Bay apartment in a drug-fuelled sex session. The deceased overdosed on cocaine Nair supplied and Nair failed to provide appropriate medical assistance or to call an ambulance. Because he pleaded guilty, the elements of Nair’s manslaughter conviction were not exposed at trial. If they were, it would have revealed the impermissible conflation of negligent manslaughter concepts which this paper argues exists in the light of Burns.
There are several ways in which the criminal law imposes a duty of care upon individuals. One is by way of the relationship between two people. The relationship of drug supplier and drug user is not one of these. As the High Court stated in Burns, the relationship does not give rise to a duty on the supplier to avert the risk of injury or death to the user. Hence Nair’s supply of cocaine to the deceased did not, of itself, impose a duty of care upon Nair, notwithstanding the weight the CCA attached to a drug supplier’s presence when a user overdoses in their company.
Did Nair owe the deceased a duty of care because he so secluded her so as to prevent others from rendering her medical assistance? Seclusion constitutes a voluntary assumption of care, establishing a duty of care. The source of criminal responsibility for a voluntary assumption of care, it is argued, derives from the positive interfering act of the accused. The accused has broken the causal chain so as to remove the opportunity for assistance that would otherwise have been available to the victim. The subsequent omission attracts legal significance because it was preceded by the initial interference. It is argued that because Nair did no positive act of seclusion, he is not responsible for failing to act when the deceased overdosed. That is, because at the point of overdose the deceased was already in Nair’s apartment, he did no positive act of interference affixing him with a consequential duty to provide assistance.
Surely then those acts of inviting the deceased to his apartment and supplying her with cocaine created a corresponding duty on Nair to avert the consequences that might follow: where a defendant plays a causative part in the sequence of events which gives rise to the risk of injury, such that ‘a duty to take reasonable steps to avert or lessen the risk may arise’, the defendant will be liable for subsequent criminal omissions.  An example is where a person lights a fire and does not warn others on the same property of the danger he or she has created. The High Court explicitly rejected the invocation of this type of duty where the victim voluntarily ingested drugs themselves. The deceased in Nair’s case voluntarily consumed the cocaine that killed her. Supplying and encouraging someone to take drugs are not causing that person to take drugs. Such a conclusion was confirmed in the House of Lords and approved in the High Court. The argument is that by the voluntary and informed act of taking drugs, the victim has created the risk to themselves.
The conflation in Nair’s case, therefore, comprises the concept of actively assuming the care of a person in need and not discharging this duty in circumstances of gross criminal neglect (where but for that initial assumption of care assistance might otherwise have been provided), and the concept of setting into train a sequence of events which carries a risk of injury and failing to avert the consequences of that risk. The criminal omission is derivative of a positive constitutive act which creates consequential positive obligations, the culpable refusal to discharge which causes or accelerates the death of the victim.
Thus because Nair’s supply of cocaine does not render him responsible for the consequences of the deceased’s ingestion of it, and he did not cause her to ingest it, he is not criminally responsible for failing to assist her when she overdosed.
There is no doubt that Dr Nair was morally responsible for the death of Suellen Domingues-Zaupa. What about her colleague, Carmen Cardona? It would seem a stretch to place moral responsibility for Domingues-Zaupa’s death on her. Nair, by contrast, invited the pair over; he supplied the drugs; he was a doctor; it was his apartment. None of these elements, which clearly constitute a moral responsibility for Domingues-Zaupa’s death, converts Nair’s responsibility into legal responsibility. A saving grace may be provided by Yeldham J’s observation in Taktak that the list of duties of care he provided is not exhaustive.
R v Wilhelm  NSWSC 378
The case of the death of Dianne Brimble reinforces the importance of an identifiable foundation for manslaughter in overdose death cases.
Mark Wilhelm and Dianne Brimble were aboard the cruise ship Pacific Sky in 2002. Wilhelm and Brimble had consumed a quantity of alcohol and went to Wilhelm’s cabin to have sex. Wilhelm consumed a quantity of the drug GHB. Brimble asked Wilhelm about the drug and he poured a similar dose for her. After consuming the drug, Brimble died of an overdose, which was particularly aggravated by the combination of alcohol and GHB in her system.
Wilhelm was originally charged with the manslaughter of Brimble. In his 2009 trial, the Crown relied on manslaughter by criminal negligence, with manslaughter by unlawful and dangerous act in the alternative, much like in the Burns trial. The Crown dropped the negligent manslaughter charge on 12 October 2009, because it could not prove a duty of care or causation. When the matter eventually came to be retried, however, manslaughter was dropped altogether, and Wilhelm was prosecuted for supply only. The judge in that case, Howie J, opined that because Wilhelm did not ‘cause’ the deceased to take the drug, he did not cause her death and did not owe her a duty of care. Thus there was not enough evidence on the facts to put a charge of manslaughter before the jury.
R v Cao (Unreported, Campbelltown District Court, Ford ADCJ, 21-22 October 1999)
On 18 June 1996, Quoc Cao provided a clean needle to Matthew Sutton in exchange for a lift home. Sutton used the needle to inject himself at Cao’s home and died from an overdose. Cao was convicted of manslaughter by unlawful and dangerous act in the Campbelltown District Court on 22 October 1999.
The unlawful act was aiding and abetting the deceased’s self-administration of heroin (itself an offence under s 12(1) Drug Misuse and Trafficking Act 1985). The dangerous act was supposedly providing the syringe. This decision has been criticised, as there is nothing inherently dangerous in supplying a syringe to another – it is the use of the syringe to administer a toxic drug in a large quantity which is dangerous. In the light of Burns, this decision would not stand today: the mere supply of the syringe is not an act which exposes another to a risk of serious injury. It is arguable that the provision of a clean syringe is an altogether safe act in light of public health concerns. That is, the deceased would have avoided the risk of a deadly infection such as HIV or hepatitis C if he were provided a clean syringe, rather than using a used and potentially dirty syringe. This conclusion underlines the absurdity of an argument of manslaughter by unlawful and dangerous act founded upon the mere provision of drug-using equipment, or for that matter, the mere provision of a drug.
The case of Daniel Gray
What of the case where the defendant actually administers the victim with the lethal drug? Daniel Gray was sentenced on 7 June 2013 for the manslaughter of his best friend Greg Wood. The pair had agreed to try heroin after a wild bucks’ night and attempted to inject each other in their hotel room. Wood failed to inject Gray, but Gray’s attempt in injecting his friend was successful, and fatal. Gray pleaded guilty to manslaughter. The species of manslaughter relied on would have been manslaughter by unlawful and dangerous act.
The facts are somewhat similar to the English case R v Cato, in which two men injected one another with drugs over the course of a night. That case was considered in Kennedy and Burns. One man died, the other fell ill but survived. That man was found guilty of manslaughter by unlawful and dangerous act. The deceased’s consent to being injected was irrelevant – one cannot consent to be killed. Similarly, the fact that the accused did not mean to harm the deceased did not mean his act was not ‘malicious’ under s 23 Offences Against the Person Act 1861 (UK) (the Act used to locate the ‘unlawful’ drug administration element of the manslaughter charge): the act is malicious so long as the accused intentionally administered the accused with a noxious substance, or was reckless as to the foreseeable harm that would result from his or her act.
This case is in contrast to the ACT case R v Lagan, in which John Lagan administered heroin to Priscilla Earl. Earl overdosed, and went into a coma, suffering severe hypoxic encephalopathy (brain damage). Lagan was charged under s 27(3)(b) Crimes Act 1900 (ACT) with intentionally and unlawfully administering to another person a stupefying or overpowering drug likely to endanger human life or cause grievous bodily harm. The judge in that case took into account that the accused’s intention to relieve the victim’s emotional suffering, not cause harm or pain, in finding the defence had no case to answer against the prosecution charge. Perhaps this case was decided differently because death did not result; at any rate, the judge’s reasons as to the relevance of intention are unpersuasive.
It can therefore be said with relative certainty that manslaughter by unlawful and dangerous act can be clearly made out where one person administers another person with a drug and causes their death as a result. Gray’s conviction is therefore uncontroversial, even though he meant no harm to the deceased. Such considerations are more appropriately dealt with in sentencing (Gray received a three-year good behaviour bond instead of a term of imprisonment).
It is clear from Burns and the above cases that holding a drug supplier responsible for the deaths of those to whom they supply drugs but do not administer them may be morally instinctive but legally difficult. The scarcity of manslaughter cases against drug suppliers in NSW is probably explained by this difficulty. It is hence proposed that a specific statutory offence should be enacted to deal with these situations.
Elliott and de Than conceive a statutory offence that holds responsible those who knowingly and unlawfully supply a person a prohibited drug which causes that person’s death. Accessorial liability and complicity are expressly included as grounds of liability. Causation is outlined as an act or omission making a more than negligible contribution to death. There is no causation where an intervening event occurs which is the ‘immediate and sufficient’ cause of death, which was both unforeseen by the defendant and not reasonably foreseeable in the circumstances. A statutory defence would be available where an attempt to seek medical assistance is made within a reasonable time.
Elliott and de Than justify this extension of liability by comparing their offence with culpable driving: in both cases, it is the defendant’s deliberate change of their normative position – by supplying drugs or driving dangerously – which affixes them with responsibility for the consequences of their deviance.
This offence, like dangerous driving offences, defines causation in specific circumstances so as to include the element of foreseeability. It is commendable to do so, because there is a plurality of academic opinion on the topic of causation which was discussed in Kennedy and Burns.  It follows that causation is a complicated concept which should not be constrained by rigid terms: thus, an expanded statutory definition of causation accommodating notions of morality in specific circumstances is warranted.
The convoluted path of the application of the common law principles of manslaughter to situations where a drug supplier provides drugs to a user who subsequently overdoses and dies, often as a result of a toxic mixture of drugs already in their system, demonstrates the limitations of applying narrow common law conceptions of causation and responsibility to complex and morally reprehensible situations. Burns is just one example: the response of the House of Lords in clarifying this area of law in Kennedy is commendable in its clarity, but has drawn criticism for its sweeping and narrow construction of legal responsibility. If this area of law is to achieve consistency and reflect community expectations of legal responsibility, statutory reform is the best way forward.
A. Journal Articles / Internet Resources
Paul Bibby, Man spared jail sentence in role over best mate’s drug overdose death (8 June 2013) Sydney Morning Herald <http://www.smh.com.au/nsw/man-spared-jail-sentence-over-role-in-best-mates-drug-overdose-death-20130607-2nvk2.html>
Ian Dobinson, ‘Drug Supply, Self Administration and Manslaughter: An Australian Perspective’ (2011) 4 Journal of the Australasian Law Teachers Association 1, 41
Julian Schimmel, ‘Heroin, Homicide and Public Health’ (2002) 14 Current Issues in Criminal Justice 135
Catherine Elliott and Claire de Than, ‘Prosecuting the Drug Dealer When a Drug User Dies: R v Kennedy (No 2)’ (2006) 69 The Modern Law Review 6, 986-95
Russell Heaton, ‘Dealers in Death’ (2003) Criminal Law Review 497.
Burns v The Queen  NSWCCA 56
Burns v The Queen  HCA 35
Mitchell v Glasgow City Council  AC 874
Nydam v The Queen  VR 430
R v Cao (Unreported, Campbelltown District Court, Ford ADCJ, 21-22 October 1999)
R v Cato  1 WLR 110
R v Cunningham  2 QB 396.
R v Lagan  ACTSC 131.
R v Kennedy [No 2]  AC 269
R v Miller  2 AC 161
R v Nair  NSWDC 124
R v Taktak (1988) 14 NSWLR 226
R v Wilhelm  NSWSC 334
R v Wilhelm  NSWSC 378
Royall v The Queen (1991) 172 CLR 378
Crimes Act 1900 (NSW)
Crimes Act 1900 (ACT)
Drug Misuse and Trafficking Act 1985 (NSW)
Offences Against the Person Act 1861 (UK)Burns v The Queen  HCA 35 .  Ibid.  Burns v The Queen  NSWCCA 56.  Burns v The Queen  HCA 35.  Ibid .  Ibid .  Ibid.  Ibid .  Ibid .  Ibid .  Ibid .  Ibid .  Ibid .   AC 269.  (1990) 172 CLR 378.  Burns v The Queen  HCA 35 .  Ibid .  Ibid .  Ibid.  Ibid .   VR 430, 445, quoted in Burns v The Queen  HCA 35 .  (1988) 14 NSWLR 226.  Burns v The Queen  HCA 35 .  Ibid.  Burns v The Queen  HCA 35 , citing R v Taktak (1988) 14 NSWLR 226, 240.  Burns v The Queen  HCA 35 .  Burns v The Queen  HCA 35 , quoting Mitchell v Glasgow City Council  AC 874, 893.  Burns v The Queen  HCA 35 .  Burns v The Queen  HCA 35 , citing R v Miller  2 AC 161.  Burns v The Queen  HCA 35 .  Ibid .  Ibid .  Ibid .  R v Nair  NSWDC 124.  Ibid .  Burns v The Queen  HCA 35 .  Ibid .  R v Taktak (1988) 14 NSWLR 226.  Mitchell v Glasgow City Council  AC 874, 893.  Mitchell v Glasgow City Council  AC 874, 893, citing Goldman v Hargrave  1 AC 645; R v Miller  2 AC 161.  Burns v The Queen  HCA 35 .  R v Nair  NSWDC 124 .  Burns v The Queen  HCA 35 , quoting R v Kennedy [No 2]  AC 269, 25.  Burns v The Queen  HCA 35, citing R v Taktak (1988) 14 NSWLR 226.  R v Wilhelm  NSWSC 334.  R v Wilhelm  NSWSC 378.  Ian Dobinson, ‘Drug Supply, Self Administration and Manslaughter: An Australian Perspective’ (2011) 4 Journal of the Australasian Law Teachers Association 1, 40.  Ibid 40.  R v Wilhelm  NSWSC 334 .  Ibid .  R v Cao (Unreported, Campbelltown District Court, Ford ADCJ, 21-22 October 1999).  Drug Misuse and Trafficking Act 1985 s 19(1).  Julian Schimmel, ‘Heroin, Homicide and Public Health’ (2002) 14 Current Issues in Criminal Justice 135; Ian Dobinson, ‘Drug Supply, Self Administration and Manslaughter: An Australian Perspective’ (2011) 4 Journal of the Australasian Law Teachers Association 1, 41.  Burns v The Queen  HCA 35 .  Julian Schimmel, ‘Heroin, Homicide and Public Health’ (2002) 14 Current Issues in Criminal Justice 135, 148.  Paul Bibby, Man spared jail sentence in role over best mate’s drug overdose death (8 June 2013) Sydney Morning Herald <http://www.smh.com.au/nsw/man-spared-jail-sentence-over-role-in-best-mates-drug-overdose-death-20130607-2nvk2.html>.   1 WLR 110.  R v Kennedy [No 2]  AC 269, 278; Burns v The Queen  HCA 35 .  R v Cato  1 WLR 110.  Ibid 121.  R v Cato  1 WLR 110, 120, quoting R v Cunningham  2 QB 396, 399.   ACTSC 131.  R v Lagan  ACTSC 131 .  R v Lagan , quoted in Ian Dobinson, ‘Drug Supply, Self Administration and Manslaughter: An Australian Perspective’ (2011) 4 Journal of the Australasian Law Teachers Association 1, 45-6.  Ian Dobinson, ‘Drug Supply, Self Administration and Manslaughter: An Australian Perspective’ (2011) 4 Journal of the Australasian Law Teachers Association 1, 45, quoting Russell Heaton, ‘Dealers in Death’ (2003) Criminal Law Review 497.  Paul Bibby, Man spared jail sentence in role over best mate’s drug overdose death (8 June 2013) Sydney Morning Herald <http://www.smh.com.au/nsw/man-spared-jail-sentence-over-role-in-best-mates-drug-overdose-death-20130607-2nvk2.html>.  Catherine Elliott and Claire de Than, ‘Prosecuting the Drug Dealer When a Drug User Dies: R v Kennedy (No 2)’ (2006) 69 Modern Law Review 6, 986, 993.  Ibid.  Ibid.  Ibid.  Ibid.  Ibid 993-4.  R v Kennedy [No 2]  AC 269; Burns  HCA 35-.
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