R v Tak Tak 14 Nswlr 226-pdf PDF

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R v Tak Tak 14 Nswlr 226-pdf case study crim law...

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Court of Criminal Appeal: Yeldham, Carruthers and Loveday JJ 14 July, 25 August 1988 Criminal Law — Offences — Manslaughter by neglect — Omission to provide medical assistance — Stranger assuming care of helpless person — Test for duty of care — Standard of care required — One drug addict assisting unconscious drug addict. Held: (1) On a charge of manslaughter by criminal negligence by omission to provide medical treatment the Crown must prove beyond reasonable doubt that the circumstances were such that the accused was under a duty of care to the deceased which duty, as a result either of his gross negligence or recklessness, he failed to perform with the consequences that death was caused or accelerated. (239G, 250B) (2) The question whether the accused owed a duty of care in law to a helpless stranger depends upon whether the accused had voluntarily assumed the care of the stranger in such a way as to seclude him or her so as to prevent others from rendering or obtaining aid. (245D-246G, 250G) R v Stone & Dobinson [1977] QB 354; Jones v United States of America 308 F 2d 307 (1962) and R v Nicholls (1874) 13 Cox CC 75, applied. (3) If the legal duty of care is found the standard of care required is such that a failure to obtain medical treatment must amount to such a high degree of negligence or recklessness as to be called wicked. (247A-F) R v Nicholls (1874) 13 Cox CC 75 at 76 and R v Stone & Dobinson [1977] QB 354, applied. (4) The duty of care arose where a person himself suffering from the effects of drug addiction failed to provide or seek medical attention for a person who had taken an overdose of heroin and whose unconscious body he had taken into his exclusive care, but his failure to obtain medical treatment had not been proved to amount to criminal negligence.

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Note: A Digest — CRIMINAL LAW [95], [93.5] CASES CITED The following cases are cited in the judgments: Andrews v Director of Public Prosecutions [1937] AC 576. Chamberlain v The Queen [No 2] (1984) 153 CLR 521.

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Jones v United States of America 308 F 2d 307 (1962). Kelly v The King (1923) 32 CLR 509. Lamperd, Re (1983) 63 FLR 470; 46 ALR 371; 8 A Crim R 417. Morris v The Queen (1987) 163 CLR 454. Nydam v The Queen [1977] VR 430. People v Beardsley 113 NW 1128 (1907). R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8. R v Bonnyman (1942) 86 Sol Jo 274; 28 Cr App R 131. R v Clarke [1959] VR 645. † [EDITORIAL NOTE: An application for leave to appeal to the High Court has been filed.]

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R v Conde (1867) 10 Cox CC 547. R v Cowan [1955] VLR 18. R v Gibbins (1918) 13 Cr App R 134. R v Holzer [1968] VR 481. R v Instan [1893] 1 QB 450. R v Joukhadar (Court of Criminal Appeal, 13 June 1975, unreported). R v Kelly [1923] VLR 704; reversed (1923) 32 CLR 509. R v Lowe (1850) 4 Cox CC 449; 3 Car & Kir 123; 175 ER 489. R v Lowe [1973] QB 702. R v Marriott (1838) 8 Car & P 425; 173 ER 559. R v Nicholls (1874) 13 Cox CC 75. R v Pocock (1851) 5 Cox CC 172; 17 QB 34; 117 ER 1194. R v Russell [1933] VLR 59. R v Senior [1899] 1 QB 283. R v Shepherd (1862) Le & Ca 147; 169 ER 1340. R v Sheppard [1981] AC 394. R v Smith (Charlotte) (1865) 10 Cox CC 82; Le & Ca 607; 169 ER 1533. R v Stone & Dobinson [1977] QB 354. R v Taylor (1983) 9 A Crim R 358. R v Watson (1959) 43 Cr App R 111. R v Wills [1983] 2 VR 201. R v Zouheir Rabih (Court of Criminal Appeal, 8 May 1987, unreported).

APPEAL This was an appeal against conviction and sentence on charges of felonious killing based on manslaughter by neglect. M A McL MacGregor QC and G J L Scragg , for the appellant. G R James QC, for the respondent. Cur adv vult

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25 August 1988 YELDHAM J. The appellant was indicted before Enderby J and a jury upon a charge which alleged that on 20 March 1984 at Randwick he did feloniously slay Linda Anne Marie Kirby. He was convicted and later was sentenced to penal servitude for thirteen years with a non-parole period of five years, both to date from 7 May 1987. Against his conviction and sentence he appeals. The case is both unusual and difficult. The Crown case was that the appellant was guilty of manslaughter by an omission to act in circumstances where he was under a legally recognised duty to act, with the consequence that death resulted. The evidence relied upon to implicate the appellant, apart from medical evidence to which it will be necessary to refer, depended almost entirely upon a record of interview, which was not the subject of challenge, with Detective Sergeant Wegg on 20 March 1984, and a further conversation between the appellant and Wegg on 30 January 1985, on which day the appellant was arrested and charged. The appellant was described in evidence as being a drug addict and the deceased, who was a prostitute and was aged fifteen, was a user of heroin. In his record of interview the appellant said that he met Miss Kirby and her friend Emily Barton (also a prostitute) at Darlinghurst on the evening of 19 March 1984. At his invitation the two girls went with him to the premises of

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one Zouhier Rabih, a friend of the appellant, at Randwick, these being a ‘dog shop’ and residence. The former, as the appellant admitted in his subsequent interview with the police officer, was known to him as a dealer in heroin. In that later interview also he said that he took the two girls with him from Darlinghurst to Randwick from where they would be taken elsewhere for the purposes of prostitution. In his unsworn statement to the jury at the trial the appellant said that Rabih “asked me to get some prostitutes for a party he was going to by a bloke called Maurice Caplan, he was a very big heroin dealer and in return Maurice Caplan used to give Rabih heroin and Rabih said he would give me some heroin”. In his record of interview the appellant said that he arrived with the two girls at Rabih's premises at about 9 pm; that the deceased at that time “was OK for a normal street girl, she had been using some sort of drug. But tablets or heroin I don't know”; that the other girl said “They had a job at half past and they wanted to go back into town”; whilst they were waiting for a taxi “I told them if they wanted any help for them to ring me and I gave one of them a business card for the ‘dog shop’ and the other one a piece of newspaper which I wrote the telephone number on”. The reference to the “dog shop” was to the business premises of Rabih. The appellant said further that after the two girls had left he stayed at the shop and Rabih left, that he lay on the bed, turned on the television, and must have fallen asleep. Other relevant questions and answers in the record of interview were as follows: “Q16. What happened next? A. I got a phone call about half past three from a man who spoke in English but was a foreigner he wouldn't give me his name. He said: ‘Come and take your girl, the black already left at half past twelve to go to work. The other girl is still in bed, come and pick her up.’ I said: ‘Where are you?’ He said: ‘The tall building in Liverpool Street, the girl will be out the front.’ Q18. What did you do then? A. I caught a cab to go to the city, I got dressed and an Australian driver dropped me in Liverpool Street just passed Liverpool Street, I walked down a little way, only a few metres and I saw the girl in the foyer, sitting on the floor, with her back against the wall. Q19. Did you speak to her? A. I tried to speak to her but she couldn't speak she was only moaning. Q21. What did you do then? A. Went back to the corner of George Street and got a cab and asked the driver to take me back to that building. I asked the driver to help me to put her in the cab but he told me he had a bad back, so I picked her up and put her in the back seat. She was very heavy. I got in the front. I told the driver to take back to the shop in Randwick. Q22. Did anything happen with the girl in the cab while you were going to Randwick? A. I tried to wake her up, slapped her face a couple of times but she was just moaning. Q23. What happened when you got back to the ‘dog shop’ at Randwick? A. I paid the driver $5.25 and I asked him to help me take her inside but he got out of the cab and threw her shoes inside and I got her out of the cab and carried her inside and put her on the bed where she was this morning.

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Q24. What happened then? A. I threw a jacket over her and a blanket, she smelt a lot, of vomit. Q25. When you put her on the bed how was she lying? A. She was lying on her back. I turned her on her side and she started to be sick on the towel. Q26. What did you do then? A. I spent a few hours trying to wake her up. But nothing happened she wouldn't wake up. Q27. How did you try to wake her up? A. I slapped her face a couple of times, washed her face with cold water, pumped her chest, gave her mouth to mouth but she wouldn't wake up. Q28. What did you think was wrong with her? A. Too much tablets, barbiturates. Q29. Did you seek any medical attention for her after she wouldn't wake up? A. Not till after Zouhier came to the shop, after ten o'clock. Q30. Did she take any drugs or anything else at any time while you were with her? A. No, she was unconscious. Q31. Do you recall what time it was when you arrived back at the ‘dog shop’ with the girl? A. It was close to four o'clock. Q32. Did you go to sleep after you got back to the shop? A. No, I was worried about her. Q33. Can you tell me why you didn't seek any medical attention for her? A. Because I thought that when she got over the dose she had she would be alright. Q34. What time did the owner of the shop Mr Rabih contact you this morning? A. About half past nine, he rang the shop, I spoke to him but I didn't tell him about the girl. Q35. What happened then? A. Rabih came to the shop just after ten and when he saw the girl he tried to wake her up but he couldn't so he went straight to the doctors. Q36. What happened next? A. Rabih came back to the shop, but when the doctor didn't come soon I went back to the doctor, twice, and the second time he came back with me. Q37. What happened when the doctor arrived? A. The doctor checked the girl and said she has gone and he gave me the number of the ambulance and I rang them and told them to come straight away. Q40. Had you ever seen this girl before when you met her yesterday? A. No.” The reference in answer 16 to “a foreigner” was obviously to Rabih. Evidence, which was far from satisfactory, was given by Dr William Brighton, formerly employed by the Division of Forensic Medicine, who first saw the body of the deceased at the city morgue on the afternoon of 20 March 1984. He gave a considerable amount of evidence, both in chief and in cross-examination, as to the likely time of death. It is that evidence which is not satisfactory. He said that at about 2.15 pm he first examined the body externally, and he commenced an internal examination by way of postmortem about 3.30 pm. He initially formed the opinion that death had occurred about five to six hours prior to 2.15 pm, that is, between about 9.15 or 8.15 am, but at the conclusion of the post-mortem he noted on the relevant form that death had occurred about eight hours prior to 3.30 pm, that is,

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about 7.30 am. Asked the cause of death he said that “It was due to narcotic overdose acute narcoticism” and from his examination of the body he did not “find any other possible causes of death than narcotic overdose”. He was cross-examined at length as to the factors which enabled him to express a view as to the likely time of death. When pressed he said that the range within which death could have taken place was between 7.30 am and 11.30 am, and then he gave the following evidence: “Q. When you gave that evidence before the magistrate I want to suggest to you that what you told the magistrate, that the time that you had selected as 7.30 am was as it were in the middle of the range you had determined? A. Yes. Q. That is what you told the magistrate? A. Yes. Q. Do you adhere to that evidence today? A. Yes, I would have to. Q. If 7.30 am is in the middle of the range — A. Yes. Q. how far back would you go before the range commences? A. Be in the order of two to three hours, I would think. HIS HONOUR: Q. What two to three hours? A. Prior. Q. Before 7.30? A. Yes. MR SCRAGG: Q. So by that the range could have started somewhere between 4.30 to 5.30 am? A. Yes. Q. So you are saying death could have occurred at any time after — between the period 4.30 to 5.30 am? A. Yes. HIS HONOUR: Q. Doctor, what is the explanation for the difference in what you said to the magistrate and here, just for my benefit? A. Yes. Well, in reviewing the actual report that I had prepared and which I am using here, I have actually given a consideration on that reading that the range was of the order that I had spoken of earlier prior to crossexamination. I do not doubt that I gave that evidence earlier. MR SCRAGG: Q. Do you recall that in the evidence that I just read to you that you gave before the magistrate — A. Yes. Q. you gave evidence, and I will just if I might just paraphrase it for you, without purporting to quote directly — you said to the magistrate, and I am paraphrasing: ‘Normally if the body has been moved there is very little point in going through the particular routines of examining for rigor mortis and body temperature. I did not attend the scene.’ You told the magistrate that? A. Yes. Q. Do you recall telling the magistrate that? (Shown document.) Do you see about .4 there the question starting: ‘And are you sure that the time’, do you see that, about .4? A. Yes, I do. Q. If you just read that question and answer to yourself? A. Yes, I have read the question. Q. When you told the magistrate that as the body had been moved there was very little point in going through the routine procedures for rigor mortis and body temperature, were you indicating to the magistrate that you had some doubt as to your opinion as to the time of death? A. Well, it does imply that, yes. Q. Well, is that the position today, Doctor, that you have doubt as to your estimate as to the time of death? A. Well, I will put it this way: there is always doubt about an estimate as to the time of death.”

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And further: “Q. At the time that you made your post mortem you were not aware of the variables that existed at the time of death and following death as to, say environmental factors and the clothing of the body, is that right? A. That is so. Q. No one came to you and told you what temperature the room was in which the body was found, is that right? A. That is so. Q. No one came to you and told you what temperature the room was in which the body was found, is that right? A. That is so. Q. No one told you whether the girl had been clothed or unclothed after death, is that right? A. I can't remember the actual conversation that took place at the time, I am afraid, so I can't be sure of that. Q. If the girl had been clothed after death, that would take the earliest point of time at which death may have occurred even further back, would you agree with that? A. Not necessarily. Q. Well, if I could put it to you this way: if there were certain variables that indicated that the body was in such an environment as to keep it, say, warmer than might otherwise be the case — A. Yes. Q. Could that not then take the point of death or the time of death at the earliest further back? A. Well, you have to look at more than one variable when you have a discussion of this kind. Rigor mortis is a chemical response in the body after death and the warmer the environment the faster is the onset of rigor mortis, so while you may lose temperature more slowly, that the temperature scale or loss of heat is reduced in respect of the time after death, one would expect a correspondingly increased amount of rigor mortis. Q. Perhaps if I can come to rigor mortis later? A. Yes. Q. And just ask you at this point in time bearing that proviso that you have placed on it? A. Yes. Q. But if the air was warm, if the body was clothed, if one was to accept those two assumptions for the moment? A. Yes. Q. Could that not have the effect of making the earliest time at which death occurred earlier than the 4.30 to 5.30 am range? A. Yes, taken on its own, yes.” Dr Brighton agreed that rough handling would reduce the amount of rigor mortis present and that pressure to the chest (for example, as the result of external cardiac massage) could have the same effect. In fact, unknown to him, some massage had been performed on the chest of the deceased for about three to five minutes at an earlier stage. Dr Brighton gave further evidence in cross-examination as follows: “Q. Would you agree with me that ideally in this case for you to make valid use of the rigor mortis present it would have been highly desirable for you to have attended the scene at where the body was found before it was moved? A. Yes. Q. Would you agree with me that trying to estimate time of death on the basis of rigor mortis is the most unreliable way of doing it? A. Taking it on its own, yes. It would not be . Q. The most reliable way, I suggest to you, is the body temperature? A. Well, I have always felt that the three things that one normally examines for are taken together in any estimate.

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Q. When you did your examination you said that you found lividity A present over the back? A. Yes. Q. Would you agree with me also that moving the body has, can have the effect of causing the lividity to fade? A. It can, yes, up to a certain time. Q. Because, as you said in evidence, lividity is brought about by the gravitational force on the blood settling to some point in the body, is that right? A. Yes. B Q. In this particular case would you not agree that because the body had been moved from where it had been found to where you were . A. Yes. Q. that movement would have had the effect of reducing the amount of lividity present when you observed it? A. It could have.” There was also called in the Crown case a Dr d'Souza who, at the relevant time, practised at Randwick and who was a Fellow of the Royal College of C Surgeons of England and Glasgow. He said that at about 10.15 am on 30 March 1984 Rabih, whom he knew, and who conducted a business in the vicinity of the doctor's consulting rooms, came to his surgery and asked him to come and see a person in Rabih's premises who was said to be ill and was vomiting. Dr d'Souza indicated that after attending to two more patients he would come to the shop, but about five minutes later the appellant arrived and asked him to go immediately to the premises “because I think she is D serious”. Upon arrival he saw Miss Kirby lying upon a divan. Upon examination of her he found a brownish discharge from her nose and mouth, probably the result of vomit. No heart sounds were detected, her pupils were dilated and she was not breathing. Her hand was cold and discoloured, as was her face, and this was obvious and was a consequence of shortage of oxygen. He concluded that she was dead. He said to the appellant: “When did you last see this person alive?” and the appellant said: “Oh, just before I called you E and she was making groaning noises.” Dr d'Souza perfo...