R v Stott & Van Embden[2001] QCA 313

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: The appellants Jonathan Stott and Francis van Embden were tried for murder in the Supreme Court, but found guilty of the manslaughter of Jason Bettridge, whose body was found in the Brisbane River below a bridge near Fernvale at about 10 am on Wednesday, 3 February 1999. The watch he was wearing had stopped at 10.20, and the evidence suggested it would have done so after being immersed in water for about three to 12 minutes.

2. Jason Bettridge, who was 27 years old, had been living with his mother at Clermont, but on the afternoon of Monday 1 February 1999 he flew to Brisbane in preparation for an appearance at the Mental Health Tribunal on the following morning. He had originally planned to stay at a hotel near the Supreme Court in Brisbane; but, on the way from the airport, he instructed the taxi driver to take him instead to 1 Meredith Lane, Ipswich, where he arrived at some time between 9.00 and 10.00 pm.

3. Living at the flat at that address in Ipswich were the appellants Stott and van Embden, whom Bettridge had known from some time in the past when van Embden lived in Clermont. On the night of Monday 1 February, there was a group of people at the flat, some of whom were using drugs including "pot" and "speed". In addition to the two appellants, another man named Daniel Voss and a woman named Katherine Towner were present. She gave evidence at the trial of having heard Bettridge say he wanted to "score" some heroin, and of his complaining that the heroin he had already consumed was not having any effect on him and he wanted some more. She left the flat at about 12.30 am, having earlier rebuffed some attempts on the part of Bettridge to persuade her to come to bed with him.

4. The appellants were questioned separately by police on Wednesday 4 February 1999. Stott at first said he had arrived home at Meredith Lane at about dusk on the evening of Monday 1 February. Voss and van Embden were there, but Stott had gone to bed shortly afterwards and slept through the night. He knew nothing of Bettridge or what had happened to him. He was, however, interviewed again on 4 March after Ms Towner had given a statement to police. On this occasion he said he had not gone to sleep on arriving home on Monday night, but had been out of the flat some of the time before going to bed at about 12.30 or 1.30 am. When he woke next morning, Bettridge was not there. At his request, he was interviewed once more on 13 April, on which occasion he said that, when he woke on Tuesday morning, Bettridge was dead on the floor. They left his body in one of the rooms until evening, when they loaded it into the back of van Embden's car and drove to the bridge near Fernvale, where they dumped the body in the river at about 10 o'clock.

5. The appellant van Embden was first interviewed by police on Wednesday 4 February 1999. He said that Bettridge had arrived at Meredith Lane at between 9.00 and 10.00 pm. Bettridge had wanted to "score" and was trying to get some "speed", but van Embden had said No. He told police that four syringes, which were later found in the flat, were not his, and that he had never been to Fernvale. No one had supplied drugs to Bettridge. He had not seen him again after that night, and it was a "bit of a shock" to be told that Bettridge had been found in the river. When interviewed again on 5 March, he denied the truth of some of the contents of Stott's statement that were put to him, and on others he made no comment.  However, on 6 March, he approached the police again. He was in a distressed condition, saying that "the truth would kill Del" (who was the deceased's mother), who had been "just like a mother to him" (van Embden). "How can I tell her what happened?", he asked. "It was not just me. I couldn’t stop it". When asked how Bettridge had died, van Embden said "He overdosed, I swear … on heroin, the night he got in from Brisbane … We didn't find him until Wednesday". He added that the body was in the house all day. Asked how the body got to Fernvale, he said that Danny Voss, Stott and he had taken the body out there at 6 am on Wednesday morning. Danny had got rid of the deceased's bag and gear.

6. It was not in issue at the trial that they had disposed of the body in that way. They pleaded guilty to a charge under s 236 of the Criminal Code of an offence of having at Fernvale improperly offered an indignity to a deceased human body.  There was evidence that traces of Bettridge's blood had been found in the area of the rear door frame and boot of van Embden's car, and also on the rail of the bridge below which the body was later found. With respect to manslaughter, the post mortem examination showed that Bettridge had died of a heroin overdose, and on each of his arms there was a recent puncture mark. The Crown case was that the appellants were guilty of manslaughter in that they had caused the death of Bettridge either by (a) injecting him with the heroin that killed him; or, alternatively, (b) supplying him with heroin with which he injected himself. Under s 7(1) of the Code, the charge of manslaughter against both extended to the possibility that one of the appellants had done either (a) or (b), and the other had assisted him in doing so. Ground 5 in the notice of appeal is that the jury verdicts are unsafe and unsatisfactory.

7. The appellants did not give evidence at the trial, and the case for the Crown rested mainly on the proposition that, in their interviews with police, the appellants had lied about what had happened. Each of them had plainly done so in their first interviews, and, it was submitted, each was still doing so in their later and even in their final interviews. There were internal inconsistencies in what they had each said, as well as between their respective versions of what had happened. Specifically it was put to the jury that they were lying when they said that Bettridge was found dead on the morning of Tuesday 2 February. This was said to be a lie because there was independent evidence that the deceased was seen alive on the evening of Tuesday 2 February, and so could not, as they claimed, have died in the early morning of that day, or on the preceding Monday night. The independent evidence was that of Ms Rawlins. She was working at a food bar at the service station at Fernvale on the evening of Tuesday 2 February, when two men came in. She had seen one of them come into the premises on a previous occasion. From a photograph, she later identified the other as Bettridge, who, on the evening in question, ordered some food, which he paid for with a $20 note taken from his wallet, which appeared to her to have more than a "normal" amount of money in it. She also saw another man with a darker complexion, which in that respect tallied with Stott's appearance, out at the car. Stott admitted that he and van Embden visited the service station that night The vehicle later drove off in the direction of the bridge at which the body was found next day. Ms Rawlins finished work at the food bar at about 8 pm on that day.

8. There were some deficiencies in the evidence of Ms Rawlins which tended to detract from her identification of Bettridge, but it gained some confirmation from the print-out taken from the cash till for Tuesday 2 February. In addition, there was evidence from Dr Ashby, who formed the opinion from her examination of the body that Bettridge had died during the night of Tuesday through to early Wednesday morning, but probably before midnight on Tuesday. Dr Ashford, another forensic pathologist, who was called to give evidence by Stott, said he would "prefer" Monday evening or early Tuesday morning as the time of death; but he later said that he thought it "highly unlikely" that death had occurred on Tuesday evening. Dr Duflou who gave his evidence by telephone link from Sydney, said he too preferred Tuesday morning rather than Tuesday evening as the time of death. Both had seen slides of body tissue and other material, but not the body itself at the time of the post mortem examination. Both said they would defer to the opposite conclusion if the evidence of Ms Rawlins of having seen Bettridge on Tuesday evening was correct.

9. From all of this, the prosecution invited the jury to infer that the appellants were lying when they said that Bettridge had died on Monday night or early Tuesday morning rather than on Tuesday evening, and, further, that their lies betrayed a consciousness of guilt on their part. The defence response to this was that the appellants might have panicked and disposed of the body as they did without summoning medical assistance, or informing anyone of Bettridge's death, for the reason that they were afraid their flat would be searched and evidence of heroin or its use would be discovered there. Against this, it might be said that it would presumably have been much easier to have removed the evidence of heroin and of its use than to have disposed of Bettridge's body in the way they did. At the same time, if Bettridge was not already dead on Tuesday morning, it is perhaps surprising that he made no effort to attend the Mental Health Tribunal hearing on Tuesday morning, which was the purpose of his journey to Brisbane.

10. The prosecution evidence, if accepted, invited the conclusion that the journey out to Fernvale, which is some distance from Ipswich, was not undertaken to dispose of the body; and presumably also that the lethal injection of heroin took place after, rather than before, the visit to the service station or food bar at Fernvale. The hypothesis advanced by the Crown at trial therefore depended largely on whether or not the jury accepted, as they evidently did, the evidence given by Ms Rawlins, and whether they were justified in regarding her evidence as reliable. The learned trial judge gave appropriate directions in summing up about the frailties of identification evidence and the risks of its being mistaken. Having read the evidence myself and noted its deficiencies, I have come, for what it is worth, to the conclusion, from her testimony in the record, that it was open to the jury to regard the evidence of Ms Rawlins as not only honest but reliable.

11. It follows in my opinion that it was also open to the jury to conclude that the appellants were lying when they told the police that Bettridge had died on Monday night or early Tuesday morning, and that they had disposed of the body then, rather than after he died on Tuesday night. Once this point is reached, it was, I consider, also legitimate for the jury to conclude beyond reasonable doubt that the appellants had disposed of the body when and how they did, not because they were afraid of being charged with possession of heroin if their flat was searched, but because they were conscious of having supplied the heroin to Bettridge that caused his death. It was a fairly compelling inference that Bettridge had obtained the heroin that killed him from one or both of the appellants either at the flat or on the journey to Fernvale and beyond. No other source of drugs is apparent from the evidence at trial. Coming as he did from Clermont, it is unlikely that Bettridge could have obtained the heroin from someone else in Ipswich, to which he was a stranger, on Monday night or Tuesday morning without assistance from the appellants in introducing him to a source.

12. If the appellants supplied the lethal dose of heroin to Bettridge, with or without a syringe for injecting it, they might perhaps have been charged under s 311(c) of the Code with aiding a person to kill himself. Section 311 is, however, concerned with Aiding suicide and, consistently with the sense in which "aiding" in s 7(1)(c) has recently been interpreted in R v Sherrington & Kuchler [2001] QCA 105, it seems to me that it is, in that sense, an essential ingredient of the offence created by s 311(c) that the accused should have been aware of the existence of an intention on the part of Bettridge to take his own life. As to that, there was evidence at the trial that Bettridge had, on at least two occasions in the past, cut his own wrists. He had later consulted Dr Joan Lawrence, a leading psychiatrist, who found him to be suffering from a depressive condition manifested in "mood swings" that were related to bouts of drug use. She prescribed anti‑depressant medication, after which his condition improved.

13. The appellants were not charged with an offence under s 311(c); but the hypothesis that Bettridge had intended to take his own life was one that was canvassed at the trial and referred to in summing up. The evidence, however, was that, despite his impending appearance in the Mental Health Tribunal, Bettridge was in a cheerful mood both before, during and after his flight to Brisbane. The evidence of Ms Towner supports that impression. The jury were entitled to reject the possibility that Bettridge deliberately took his own life. That left for their consideration the further two possibilities that (a) the appellants had injected Bettridge with heroin, not intending him to die; and (b) that they had supplied him with heroin knowing that he would inject himself with it, but again not intending him to die. It was on the basis of those hypotheses that the appellants were found guilty of manslaughter.

14. In summing up on this issue, his Honour instructed the jury that, under s 291 of the Criminal Code, a person who kills another in circumstances not constituting murder may be guilty of manslaughter if the killing was not authorised, justified or excused by law. It may be parenthetically observed that, since the abolition of capital punishment in Queensland in 1921, there can now be no lawful authority for killing a person; and, of course, a person cannot lawfully authorise or consent to his own death: Code s 284. Justification in the form of self defence or otherwise was not an issue at the trial. That left for consideration only the matter of excuse under s 23(1)(c) of the Code and "criminal negligence" under s 289.

15. His Honour instructed the jury that there were two possible avenues to, or bases for, a verdict of manslaughter against the appellants. The first, he said, was:

"If you come to the conclusion that the deceased was injected with heroin in a large quantity by an accused or somebody who aided him, aided the accused, that is, if the killer injected, himself injected, the deceased with the heroin, you could come to the conclusion that the killer was guilty of criminal negligence."

He proceeded to explain this as follows:

"Under our law, a duty is placed on every person who has in his charge or under his control a dangerous thing. Our law says that it is the duty of every person who has in his charge or under his control anything of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of another person may be in danger, to use reasonable care and take reasonable precautions to avoid such danger. Now, a syringe full of a strong dose of heroin can be a dangerous thing of the kind I have mentioned. It follows that it becomes the legal duty of anyone who has such thing in his charge or under his control, to use reasonable care and to take reasonable precautions to avoid endangering the life, safety or health of the person whom he is injecting."

The summing up referred to the test in R v Bateman (1925) 19 Cr App R 8, applied in R v Scarth [1945]  St R Qd 38, which was approved by the High Court in Callaghan v The Queen (1952) 87 CLR 115, on an appeal from Western Australia, and again in Evgeniou v The Queen (1964) 37 ALJR 508, on an appeal from New Guinea. Like his Honour in the present case, the High Court was there considering provisions similar or analogous to s 289 of the Queensland Criminal Code, which provides:

Duty of persons in charge of dangerous things

"289It is the duty of every person who has in the person's charge or under the person's control anything, whether living or inanimate, and whether moving or stationery, of such a nature that, in the absence of care or precaution in its use or management the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."

16. The application of s 289 depends on there being, within the meaning of that section, what is conveniently described as "a dangerous thing", as to which a person having the charge or control of it is required to "use reasonable care" to avoid danger to the life, safety or health of another. If he fails to do so, s 289 provides that he is "held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty". It is to my mind probable that, like its neighbouring provisions in ss 282 to 290 forming Chapter 27 of the Code, s 289 was originally designed to cater for questions of causation arising out of "pure" omission or failure to act. Issues of responsibility in law for the consequences of not acting tended to absorb the attention of lawyers and jurists in the late 19^th century when the Criminal Code was drafted. However, in Callaghan v The Queen, the High Court considered that s 289, or a West Australian equivalent, also prescribed a standard or criterion of care to be observed, which was interpreted to mean that, under s 289, criminal responsibility attached only if there was "criminal" or "gross negligence" in the sense propounded in R v Bateman (1925) 19 Cr App R 8. The result arrived at there may be compared with that reached in Akerele v The King [1943] AC 255, and in Dabholkar v The King [1948] AC 221, which, however, arose out of slightly differing provisions or versions of the Queensland Criminal Code adopted in Nigeria and Tanganyika.

17. The trial judge's direction here was that the jury could in law consider that a hypodermic syringe containing a strong dose of heroin was a dangerous thing within the meaning of s 289. If the appellants or one of them with the assistance of the other had caused Bettridge's death by using the syringe to inject heroin into his bloodstream, they could be found guilty of manslaughter pursuant to s 289 of the Code. As regards that question, his Honour summed up on criminal negligence in accordance with the decision in Callaghan v The Queen. No challenge was made on appeal to the correctness of the summing up in that respect, which was the first possible avenue to, or basis for, a conviction for manslaughter that was put to the jury.  The complaint here concerns the terms in which his Honour summed up on the second basis for a verdict of manslaughter.

18. On that question, his Honour instructed the jury as follows:

"What about the case where the injection was not done in that way but Jason Bettridge was supplied with a strong mixture of heroin and he himself injected it into his bloodstream, following the supply by one or other of the accused or somebody they were aiding or counselling or procuring to supply the drug to Jason Bettridge? In that case, there would have been a supply of the strong dose of heroin but the person who supplied the heroin would not be criminally responsible for what happened if what happened was an accident.  Under our law, a person is not criminally responsible for an event which occurs by accident.  The event, in this case, would be the death of Jason Bettridge."

Having said that, the learned judge went on to direct the jury that:

"The onus lies on the Crown to disprove that explanation for what happened - if that happened. If the Crown fails to exclude that explanation beyond a reasonable doubt, you would be required to find the accused not guilty. An event occurs by accident if it is a consequence of a willed act of the accused which was not in fact intended or foreseen by the accused, and is not something that would - and is something which would not reasonably have been foreseen by an ordinary person.

So, in this case the Crown would be obliged to establish that the person who supplied the heroin foresaw the deceased's death as a possible outcome of his action, or that an ordinary person, in the position of the person who supplied the heroin, would reasonably have foreseen his death as a possible outcome."

19. On appeal, the appellants abandoned grounds 1 to 4 in the notice of appeal but were given leave to add a further ground as follows:

"The learned trial judge erred in leaving the Crown case of manslaughter for consideration by the jury, on a basis other than criminal negligence."

In support of that additional ground, reference was made to R v Hodgetts & Jackson [1990] 1 Qd R 456, 463-464, where Thomas J said that "in the context of the present charge an accused could not be found criminally negligent unless at least some serious harm was reasonably foreseeable by him". According to Ambrose J in the same case (at 480):

"… the gravamen of the charge against the appellants was criminal negligence: the jury ought to have been directed to consider among other things the knowledge and state of mind of both appellants and in particular whether they foresaw or ought to have foreseen that what they were doing would put Kennedy at risk of serious injury or death. I agree with Thomas J that a direction on law to conform with what was said in Callaghan v The Queen (1952) 87 CLR 115, at 124, which approved R v Scarth [1945] St R Qd 38, at 45-50, ought to have been given."

In R v Hodgetts & Jackson [1990] 1 Qd R 456, the appellants were convicted of manslaughter in circumstances in which they placed a can containing Coca Cola near a rubbish bin frequented by a vagrant named Kennedy expecting him to drink it. As a prank, they had partly filled the can with meat preservative (which contained sodium bisulphite), which they had some reason to think would produce little more than an unpleasant taste accompanied by a burning sensation in the mouth. In fact, Kennedy, who was in an advanced state of coronary disease and also suffered from emphysema, died as a result of drinking the mixture. On appeal the convictions for manslaughter were quashed. Thomas and Ambrose JJ held that the case called for a direction in accordance with Callaghan v The Queen with respect to criminal negligence, and that the failure of the trial judge to give such a direction was fatal to the ensuing convictions of manslaughter.

20. The matter was approached on appeal as one falling within the scope of s 289 (see [1990] 1 Qd R 456, 462‑463 (Thomas J); 480 (Ambrose J)). For that purpose, the can of toxic mixture was regarded as a dangerous thing within the meaning of s 289 of which the appellants had charge or control. The appellants placed it where Kennedy could find it; but they could have removed it at any time, and in that sense they had control of it. If the decision goes further than that, and is to be taken to imply that s 289 extends to all, or almost all, cases of manslaughter (see [1990] 1 Qd R 456, 490), then it appears to have suffered a measure of disapproval in R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333. It was not directly concerned with s 289, but more broadly with questions of criminal responsibility under s 23 of the Code. The Court of Appeal, consisting of Macrossan CJ, Pincus JA and Lee J, undertook an analysis of the decisions in Kaporonovski v The Queen (1973) 133 CLR 209 and R v van den Bemd (1994) 179 CLR 137, affg [1995] 1 Qd R 401. Section 23(1)(b), as it now is, provides that a person is not criminally responsible for: "an event that occurs by accident". Consistently with the foregoing two decisions of the High Court, the Court of Appeal in R v Taiters held ([1997] 1 Qd R 333, 335) that the word "event" in s 23(1)(b) refers to the consequences of a physical act or action considered apart from the act itself. In the context of the present case, it was, as the trial judge instructed the jury here, the death of Bettridge that was the event. In directing a jury whether such an "event" occurred by "accident", the Court in R v Taiters held it to be a proper direction that the jury be told:

"The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have seen it as a possible outcome."

21. The effect, stated briefly, is that, when reliance is or may be placed on s 23(1)(b) to excuse an accused person from criminal responsibility for a death caused by his act, the accused is relieved or excused from criminal responsibility for the killing if that death was an "accident" in the sense that it was not a reasonably foreseeable outcome of the act which caused it. In the extract from the summing up set out above, his Honour directed the jury in the form specifically sanctioned by this Court in R v Taiters.

22. There can therefore be no error in the summing up unless the case was one in which, on what has been described here as the second basis for a manslaughter conviction, the provisions of s 289 applied. Section 289 is brought into operation because the introductory words of s 23(1) of the Code are expressed to be "subject to the express provisions of the Code relating to negligent acts and omissions …". Section 289 is one of the express provisions of the Code "relating to negligent acts and omissions". To the extent that they apply, s 23(1)(b) affords no excuse or exemption from criminal responsibility for an event that occurs by accident. See Callaghan v The Queen (1952) 85 CLR 115, 119; and R v van den Bemd [1995] 1 Qd R 401, 403. In the present case, it was, however, the provisions of s 23(1)(b), and not of s 289, that applied to the second basis for a manslaughter conviction on which his Honour was summing up to the jury when he gave the direction now impugned. It predicated that the appellants had given the syringe filled with heroin to Bettridge, rather than that they had themselves injected the heroin. Once the syringe was delivered to him for his use, they no longer had the charge or control of it, and the issue of criminal responsibility for the ensuing death of Bettridge was governed not by s 289 but by s 23(1)(b) of the Code. From this it follows that his Honour was correct in directing the jury as he did. Equally, it would not have been correct in law for him to have directed them on criminal negligence in a case to which s 23(1)(b) and not s 289 applied.

23. I am bound to say that it is not at all satisfactory that criminal responsibility should be left to depend on such fine distinctions. It has the consequence that, if death is caused by the use of "a dangerous thing", the prosecution must satisfy the higher standard of proof of criminal negligence required under s 289; whereas if it is caused by using hands, feet or other body parts, or some weaponless method of causing death, the prosecution need  only satisfy the objective standard of reasonable foresight of the possibility of death. When one finds in R v Dabelstein [1966] Qd R 411, 430-431, that a pencil has been regarded as capable of being considered a dangerous thing under s 289, the distinction is reduced to the level of absurdity. It is rarely the thing itself, but what is, or is not, done with it that makes it dangerous: cf Timbu Kolian v The Queen (1968) 119 CLR 47, 57. The distinction in this respect between s 23(1)(a) and s 289, can, however, be traced to the decision in Callaghan v The Queen (1952) 87 CLR 115, and from there back to the English Criminal Code Bill of 1879, from which the provision corresponding to s 289 was adopted: see Callaghan v The Queen (1952) 87 CLR 115, 122-124, and R v Scarth [1945] St R Qd 38, 56. That Bill did not  embody Chapter 5: Criminal Responsibility, or anything resembling s 23(1)(b) of the Queensland Criminal Code, which was the work of Sir Samuel Griffith. One possible explanation for the distinction that now prevails is that the introductory qualification in s 23(1) ("subject to the express provisions of this Code relating to negligent acts and omissions …") might have been better confined simply to s 23(1)(a), where it would have performed its true function of excluding pleas of involuntariness in the case of a negligent omission to act. It is, as the present case illustrates, plainly undesirable that there should be differing criteria of criminal responsibility for negligent conduct according to whether the case is or is not capable of being brought within the literal wording of s 289 of the Code. Because, however, on the evidence in the present case it was not possible to say whether the first, or the second, basis for manslaughter was in fact the correct hypothesis, the jury had to be instructed that, in reaching their verdicts, they must be satisfied that the requisite criterion was satisfied in each instance.

24. The authorities on these provisions of the Code are too clear to enable a different interpretation to be applied in the present case. The summing up conformed precisely with that authority, and the appeals against convictions must be dismissed.

25. MUIR J: I agree with the reasons of McPherson JA, which I have had the advantage of reading. I agree with the order proposed by him.

26. ATKINSON J:  I have had the advantage of reading the reasons for judgment of McPherson JA.  His Honour has set out fully the relevant facts and circumstances and the issues for consideration.  I agree with him that the appeal should be dismissed.

27. His Honour has explained the difficulty that arises because of the unintended consequence for the attribution of criminal responsibility that if death is caused by the use of “a dangerous thing”, the prosecution must satisfy the higher standard of proof of criminal negligence under s 289; whereas if it is caused by some weaponless method of causing death, the prosecution need only satisfy the objective standard of reasonable foresight of the possibility of death.^[1]

28. This consequence depends, however, on the two methods of attributing criminal responsibility being mutually exclusive. There is authority, however, that the same set of facts can give rise to both types of direction being given to the jury.^[2]  It is appropriate in some circumstances to give to the jury a direction that they may find an accused guilty of manslaughter by reason of criminal negligence in the control of a dangerous thing under s 289; or because the act was willed or voluntary and the death did not occur by accident, that is, it was a foreseen or foreseeable result of that act in the sense in which this defence is explained in Kaporonovski v The Queen^[3] and R v Taiters; ex parte Attorney-General.^[4]  These are alternative routes to conviction for manslaughter.^[5]

29. This is because, as Thomas JA held in R v Morgan,^[6] there are two quite different areas of the criminal law which can lead a jury to convict of manslaughter:

“There are two separate streams of law which may lead to a conviction of manslaughter under the Criminal Code.  One is under Chapter 28 (homicide – suicide – concealment of birth); the other is under Chapter 27 (duties relating to the preservation of human life).  The distinction extends to a different approach on the issue of causation [Evgeniou v The Queen (1964) 37 ALJR 508; R v Hodgetts & Jackson [1990] 1 Qd R 456 at 459 – 461].  The difficulty of identifying manslaughter by reason of criminal negligence within the provisions of the Code has been noted in previous cases [R v Hodgetts & Jackson [1990] 1 Qd R 456 at 460 – 461], but the position now seems reasonably well settled.  S289, which deals with the duty of persons in charge of dangerous things, provides its own statement on causation.  It firstly imposes a duty upon persons who have any dangerous thing in their control to take reasonable precautions to avoid danger, and then provides that the person having control of such a thing “is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty”.  This presents a wider base of activity upon which a conviction may be caused than the act or omission that cases death in homicides under Chapter 28.”

30. The prosecution case, so far as is relevant to this appeal, was that an accused, with the aid of the other accused, either injected Mr Betteridge with heroin or supplied him with the heroin with which he injected himself.  He died of an overdose of that heroin.  I agree with what McPherson JA has said with regard to the trial judge’s direction as to criminal responsibility under s 289 of the Criminal Code if the jury were satisfied that the deceased was injected with heroin by an accused or by someone who aided him.  No complaint was made about that direction.

31. The learned trial judge then summed up to the jury with regard to the criminal responsibility of the accused on the alternative fact scenario – ie. if one of them, with the aid of the other, supplied Mr Betteridge with the heroin which killed him.  His Honour directed that in those circumstances “there would have been a supply of a strong dose of heroin but the person who supplied the heroin would not be criminally responsible for what happened if what happened was an accident.”  His Honour then gave an unimpeachable direction on the defence of accident under the Criminal Code.  In my view such a direction was properly given.

32. At common law, mere supply would not itself be sufficient to constitute the actus reus of the offence of manslaughter^[7] because it is not an act which itself causes direct harm.  Section 293 of the Criminal Code, however, provides the following definition of “killing”:

“… any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.”

So, under the Code, a person is taken to have killed another if he or she causes the other’s death, whether directly or indirectly.

33. The appellants argued on appeal that the learned trial judge erred in leaving the Crown case of manslaughter for consideration by the jury on a basis other than criminal negligence.

34. The crime of manslaughter may, however, as I have said, be proved by the prosecution in more than one way. As the High Court held in Griffiths v R:^[8]

“The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to murder … or by criminal negligence.”

35. Accordingly it was open to the Crown to prove in this case that the appellants killed the deceased by a voluntary act – ie. by supplying a strong dose of heroin in circumstances in which the death, while not intended, was not an accident. Thus it was appropriate for the learned trial judge to instruct the jury as he did. In addition, it would have been open to the prosecution to prove that the appellants killed the deceased by criminal negligence. If the jury is satisfied of the latter ground of liability, the defence of accident is not open as it is in the former.^[9]

36. In my view, the evidence given at this trial was also consistent with criminal negligence. In such a case the prosecution would be obliged to prove that:

1. the strong dose of heroin in the possession of the accused was a dangerous thing;

2. the heroin was in his charge or under his control;

3. the absence of care or precaution in the use or management of the heroin might endanger the life, health or safety of another;

4. the accused failed to use reasonable care and take reasonable precautions to avoid such danger.  The recklessness must involve grave moral guilt.^[10]

I agree, therefore, with the defence submission that it was an error not to leave with the jury that the accused might be found guilty of manslaughter by criminal negligence; but I do not agree that this direction should have been given in place of the direction that was given.

37. A direction by the trial judge on liability because of criminal negligence would not have exonerated^[11] the accused but would rather have added another ground for liability for manslaughter, as it is a direction that could have been given by the trial judge in addition to, rather than in substitution for, the direction quite properly given.  Such a direction would have assisted in avoiding the unintended consequence for criminal responsibility referred to by McPherson JA but would not have assisted the accused to avoid conviction for manslaughter.

38. In the circumstances, the appeal against conviction should be dismissed.