Special Bulletin 29 — September 2012
Burns v The Queen [2012] HCA 35
Death from drug supply — voluntary act of the deceased — criminal negligence
The importance of this decision is a consideration by the High Court of criminal liability for the death of a person who had been supplied with a prohibited drug (methadone) by the supplier (the appellant). Issues arose as to whether the ingestion of the drug was a voluntary act of the deceased and whether the appellant was negligent in her conduct following the supply. The appellant had been convicted of manslaughter. The issues considered by the High Court were whether there was evidence upon which the appellant could be found to have committed an unlawful and dangerous act by supplying the deceased with methadone and/or whether she owed a duty of care to the deceased as a result of supplying him with the drug.
The appellant and her husband, Mr Burns, had been in the business of supplying methadone to persons who came to their home for the purpose of receiving the drug. Some persons took the drug away and others ingested it on the premises, sometimes assisted by the appellant or Mr Burns. There was no issue that the appellant and Mr Burns were in a joint enterprise in supplying the drug.
The deceased attended the premises and was supplied with methadone which he ingested on those premises. There was some question as to the method by which he ingested the drug: whether he injected it himself or whether he was injected with the aid of the appellant and/or Mr Burns. As the case developed, especially in the High Court, this became a crucial issue. The Crown in the High Court conceded that the mere supply of a drug to another, although unlawful, could not be dangerous. However, notwithstanding an enlargement of its case by the Crown during the trial, the judge directed the jury that the supply of methadone could be dangerous without particularising the manner of the supply. This direction was held to be erroneous: [55].
Before the deceased arrived at the appellant’s premises, he had consumed a prescription drug and cannabis. He was seen by a psychiatrist and at that time appeared drowsy. There was evidence that when he arrived at the premises of the appellant he appeared to be affected by some substance.
After the deceased had ingested the methadone, he was seen sitting in a chair in an unresponsive state. Mr Burns and another person, who had attended the home to obtain methadone, walked the deceased around the apartment four or five times. Mr Burns said they would call an ambulance but the deceased indicated he did not need one. The appellant said that the deceased could not remain on the premises. Mr Burns told him he would have to leave. The deceased left the premises accompanied by Mr Burns.
The following day the deceased’s body was found in the toilet block in the yard of the appellant’s premises. It was likely that he died from a combination of the methadone and the prescribed drug that he had taken earlier.
[It should be noted that Mr Burns had been convicted of manslaughter separately from the appellant but had died in custody without any appeal against his conviction.]
The major judgment is that of Gummow, Hayne, Crennan, Kiefel and Bell JJ upon which the following analysis is based.
Unlawful and dangerous act manslaughter
(a) Dangerous act
The Court held that the manner in which the Crown case had been left to the jury was erroneous because it had been placed on the footing that the supply of prohibited drugs could be found by the jury to be a dangerous act. As has been indicated, the Crown conceded before the High Court that the supply of prohibited drugs was not of itself dangerous. This concession was based upon an acceptance of the decision of the House of Lords in R v Kennedy (No 2) [2008] AC 269 where it was held that the supply of an illicit drug, without more, was harmless.
Although the Crown had in its final address at the trial extended its case to an allegation that the appellant was complicit in the injection of the deceased with the methadone, that allegation had not been adopted by the judge in his directions to the jury: [73], [89]. Although this error meant that the conviction could not stand, the Court (Heydon J dissenting) held that the evidence at the trial did not warrant the appellant being subject to a re-trial because there was insufficient evidence to exclude the possibility that the deceased had injected the drug himself.
(b) Causation
In its review of the unlawful and dangerous act allegation, the Court considered the issue of whether the act of supplying a drug to the deceased could be said to have caused the death of the deceased, even though the deceased had injected the drug himself. The Court referred to the decision in Kennedy (No 2) where the following question was posed:
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 House of Lords answered:
In the case of a fully-informed and responsible adult, never.
The High Court followed this decision as representing the law of Australia: [88]. They held that it was consistent with the analysis of causation in Royall v The Queen (1991) 172 CLR 378 which was based upon “an acceptance that the voluntary and informed act of an adult negatives causal connection”. So that “[a]bsent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another”: [86].
It was held that the deceased’s act in injecting himself with methadone was the act of a “fully-informed and responsible adult” notwithstanding that his decision to do so may have been affected by drugs he had taken and that he was unaware of the dangerous effect of mixing methadone with another drug. It was held at [87] that:
A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker’s voluntary and informed decision.
The Court made it clear that their reasons were not concerned with the liability for manslaughter of a person who assists an adult at the adult’s request in the administration of a prohibited drug: [89]. In this case the act causing the death was the injecting of the drug and not its supply.
Negligent manslaughter
The Crown relied upon the act of the accused in effect turning the deceased out of the premises without seeking assistance for him when he was clearly suffering an adverse reaction to the drug.
The Court noted that as a general proposition the law does not impose an obligation on an individual to preserve human life: [97]. Such an obligation may be imposed because of the relationship between individuals or because of certain factual situations, such as where one individual has created a danger to another. However, the appellant had no relationship with the deceased beyond supplying him with the methadone: [98]. Nor had she voluntarily assumed his care: [108]. The Court held that consideration of any legal duty of care being imposed upon the appellant had to be based upon the fact that the act imperilling the safety and welfare of the deceased arose from his own act and not from the act of the appellant.
The Court posed the question of why there should be a duty imposed upon the appellant but not on the other customer present at the premises at the time. They stated at [106]:
… It cannot be because the law imposes a general duty on suppliers of prohibited drugs to take reasonable steps to preserve the life of their customers. The supply of prohibited drugs is visited by severe criminal punishment in recognition of the harm associated with their use. The notion that at the same time the law might seek to regulate the relationship between supplier and user, by imposing a duty on the former to take reasonable care for [the] latter, is incongruous. What measures would reasonable care require? Should suppliers of prohibited drugs be required to supply clean needles and accurate information about safe levels of use? The duty that the Court of Criminal Appeal found the appellant to be under was not a general duty of this kind. It accepted the submission that a duty is imposed on the supplier of a prohibited drug in circumstances in which the drug is taken in the supplier’s presence. The rationale for that duty is not that the supplier has contributed to the endangerment of the user. Contribution to this state of affairs occurs at the point of supply, when, ordinarily, the supplier will have no control over whether and in what quantities the drug will be consumed. The duty that the Court of Criminal Appeal identified arose because, as it happened, the appellant was present when the deceased suffered the adverse reaction to the drug she had supplied. It is difficult to resist the conclusion that the duty is being imposed in these circumstances because it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user.
The Court held that the relationship between drug supplier and recipient was not one where a duty of care arose. It was a matter for the legislature to address and not the courts if policy is to dictate that such a duty exists: [108].