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High Court of New Zealand Decisions |
Last Updated: 2 November 2010
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-085-006067
THE QUEEN
v
MATTHEW VA'AI TEMA
Hearing: 30 April 2010
Counsel: D La Hood and A Ewing for Crown
B Crowley and V C Nisbet for Accused
Judgment: 5 May 2010
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 5th day of May 2010.
RESERVED JUDGMENT OF GENDALL J
[1] The accused faces an indictment containing three counts alleging manslaughter by alternative unlawful acts. The defence has applied pursuant to s 347 of the Crimes Act 1961 for his discharge (or alternatively, the non-arraignment
on the indictment). The indictment as originally filed alleged that the crime was
R V TEMA HC WN CRI-2009-085-006067 5 May 2010
committed on “12 December 2008”. Yet it is common ground that the deceased died on 31 January 2009 and the other date was inserted by mistake.
[2] As a preliminary matter the Crown has applied to amend each count of the indictment to contain the correct date of death, namely 31 January 2009. Leave to amend the indictment is granted pursuant to s 345D of the Crimes Act 1961, on the basis that this is necessary and conducive to meet the ends of justice.
The indictment
[3] As amended the first count in the indictment alleges that on 31 January 2009 at Wellington the accused:
did kill Paula Hardie by an unlawful act, namely the unlawful act of administering a Class B controlled drug, namely Gamma-Hydroxybutyrate (commonly known as GHB), to Paula Hardie, and thereby did commit manslaughter.
[4] The second count alleges, in the alternative, that the unlawful act was
“supplying a Class B controlled drug”, namely GHB to Paula Hardie.
[5] The third count alleges, in the alternative, that the unlawful act was “being a party to the consumption of a Class B controlled drug”, namely GHB by Paula Hardie.
The facts as disclosed in the depositions or statements of evidence to be given at trial
[6] On the afternoon of 31 January 2009 Paula Hardie, then aged 32, was found at the home of the accused, comatose. She was unresponsive to attempts by ambulance officers to revive her and she died that day. The accused was present. He had spent the night with Ms Hardie at his home, and noticed her asleep but alive at about 11.00am that morning. But at about 1.55pm he found her to be comatose and unresponsive. He started CPR and telephoned for the ambulance.
[7] Evidence from a pathologist is to the effect that the cause of death was due to
Gamma-Hydroxybutyrate (GHB) toxicity, there being no natural disease or trauma
to account for death nor did histological examination of tissue samples from the deceased reveal cause of death. However, the level of GHB determined by the ESR Laboratory‟s Toxicology Department was sufficient to account for death. That evidence in part is to the effect that GHB levels found in the blood and vitreous humor were consistent with a GHB related death.
[8] There would have been no evidence upon which the accused could have been charged but for a comprehensive statement he made to the police two weeks later, on
13 February 2009. He said he had developed a relationship with the deceased who had been trying to divorce her husband and although she took drugs she was not a heavy drug user. He said that the deceased‟s favourite drug was “acid” and she frequently smoked cannabis and would “do rinse if she was feeling down”. By “rinse” he said he meant Fantasy or GHB. He said that he and the deceased “did drugs” together on three occasions.
[9] He said that on 30 January 2008 (erroneously recorded as such, but in fact
30 January 2009) at about 2.00pm-3.00pm, the deceased called at his home unannounced, because of conflict in her relationship with her husband. Later that day he spoke with her and some time between 3.00am and 4.00am on Saturday
31 January 2009 she came to the flat. She smelt strongly of alcohol and appeared intoxicated. She was upset and angry and the accused said he got her to calm down.
[10] Thereafter, his statement records:
When she had calmed down I offered her some rinse.
The rinse had been brought to my house previously by Paula and she had left
it there. I don‟t know where she had got it from.
She said yes when I offered it. I went and got it from my bedroom, it was inside a small mouthwash container.
I placed a small syringe into the mouthwash bottle and asked her how much she wanted to which she replied 2mls.
I took exactly 2ml into the syringe and poured some L & P into a cup about a third full before putting the rinse into the cup and mixing it. I then gave a glass to Paula.
Paula drank it in about one or two sips.
I then repeated the same process for myself.
....
About 45 minutes later she asked me for some more rinse. She said she
couldn‟t feel anything from the first lot she had.
I then repeated the same process as the first time giving her exactly 2ml and mixing it with L & P. Paula drank it all.
I didn‟t have any myself this time.
We just continued laxing out on the couch listening to music. We did not have any alcohol; I did not have any in my house. About 45 minutes later Paula again asked for some rinse.
I said to her “are you sure?” as I could feel the effects of the 2ml I had
earlier.
She was adamant that she couldn‟t. I asked if she had some prior to her
coming to my place which she didn‟t answer to.
I then repeated the process again making sure I gave her exactly 2ml. This time I also gave myself 2ml with L & P.
We then chilled out some more before having sex.
Later on Paula asked me for another 2ml of rinse to which I replied no.
She kicked up a fuss but I continued saying no she couldn‟t.
I don‟t think she was taking me seriously so after her persistence I gave her another 2ml repeating the same process. I had initially told her to do it herself as I was angry that she was having more but I ended up doing it as I didn‟t want her doing it.
....
The next thing I remember was waking up to the sound of a knock on the door.
This was about 11.00am. I got up and Paula was asleep on the couch. ....
I then went back to the couch and tried to wake Paula up by shaking her.
She opened her eyes and looked up at me but didn‟t reply.
She was definitely breathing and I could see that she was.
I picked her up off the couch and took her to my son‟s room and placed her
on his bed.
I placed her on her side and she curled up into the foetal position.
I then left the room closing the door before answering the front door and letting them in. ....
....
When [my son] left I just continued lying on the couch. At about 1.55pm I received a phone call from Kieran. He asked me to wake Paula up as she had an appointment later that day teaching some girls how to pole dance.
I then got up and went into the room to check her. She was still lying on her side.
Firstly I pulled back the blanket and I noticed that there was discolouration on the backs of her legs.
I had never seen this type of discolouration before.
I then grabbed her arm and shook it to which there was no response. Her arm felt cold as did the back of her legs.
I then felt the front of her legs which still felt warm. I turned her on her back.
I saw that her hair was over her face and when I pulled her hair back her face had been in the pillow.
I pulled her face back and noticed it had the same discolouration as her legs. I freaked out when I saw this. I was scared.
I looked to her chest but it was not rising. I then put my ear to her mouth but could hear nothing.
I opened an eyelid but it appeared to be staring into nothing and it closed after I let go.
I then started CPR on her. I did this for about 10 minutes before calling ambulance on my cellhphone.
The ambulance told me to pull her onto the ground which I did. I then continued to give her CPR until ambulance arrived between 2-5 minutes later at which point they took over and they asked me to leave the room.
I just sat in the lounge and I heard them say there was nothing more they could do some time later.
Police then arrived soon after.
Legal basis advanced by the Crown for the charge of manslaughter
[11] As I have said the Crown alleges the unlawful acts that involved the accused were, alternatively, administering GHB to the deceased, or supplying the drug to her, or aiding and abetting the consumption of the drug by her, which unlawful acts caused her death, so as to comprise manslaughter.
Defence position
[12] Mr Crowley, on behalf of the accused, has agreed that the three elements which must be proved were:
(1) that the accused committed an unlawful act; (2) that such unlawful act was a crime; and
(3) that the unlawful act was a significant cause of the death of the deceased.
[13] I mean no disservice to the very full argument advanced by Mr Crowley if I say it is founded on the premise that the cause of death was the action of the deceased in consuming the overdose of GHB, which she voluntarily chose to perform and they broke any chain of causation between the accused‟s actions (whether they be supplying or administering or aiding in consumption) and the resulting death. Put simply, he did not “kill” her so as to be guilty of manslaughter.
[14] Underpinning these submissions is Mr Crowley‟s reliance upon the House of Lords decision in R v Kennedy (No. 2).[1] Although he acknowledges it is not binding upon the Courts in New Zealand, it is particularly persuasive, clear, well reasoned and helpful. In that case the House of Lords had to consider a question:
When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of 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 Court answered that “in the case of a fully informed and responsible adult,
never.”
[15] Mr Crowley submits that the present case is analogous with the facts in R v Kennedy (No. 2) where the appellant prepared a dose of heroin, which was in his possession for the deceased and gave him a syringe ready for injection, which led to death. Their Lordships said that the free, willing and informed intervention of the second person, namely the deceased, removed the causative relevance of the act of the supply by the first person, and that the actions of the deceased in consuming the heroin were not unlawful.
[16] Mr Crowley submitted that to administer a drug is to cause it to have an effect on the human body, and in the present case it was the deceased herself who self-administered the GHB supplied to her by the accused. He said that this was not a case where an accused assisted a deceased in injecting a person by locating a vein, applying the needle to the vein, or to act in a way which may have resulted in joint administration of the drug. Even though the accused prepared the four doses of GHB, and supplied them to the deceased, it was she who chose to administer them, being her act and any properly directed jury could not convict on Count 1 where the unlawful act is said to be administering the drug. He also argued that, as a matter of fact and logic, the supply of a drug was not an administration of it.
[17] As to Count 2, Mr Crowley submitted that for the purpose of this application the accused admitted that he supplied GHB to the deceased, and that it was an unlawful act. But the issue he said was whether that unlawful act was a significant cause of death. He argued that the supply could not be said to cause, or be a cause of, death because of the intervening voluntary act of the deceased‟s consumption of the drug. Otherwise, he argued, every case of supply of a dangerous drug to a user, which is later consumed and results in death, would involve the crime of manslaughter, which was clearly not the case.
[18] Likewise, counsel submitted that in line with the dicta in R v Kennedy (No. 2) the supply of the drug would itself have caused no harm unless the deceased had subsequently used it in a form that was dangerous. Counsel contends that the fact of
supply on four occasions rather than one occasion could make no difference in this case and no properly directed jury could convict on Count 2. He said that the House of Lords decision in Kennedy (No. 2) was not based upon the fact that it was not an offence in the United Kingdom to consume a drug, but rather, on the fact that it was self-administration which caused death, not the supply.
[19] As to Count 3, Mr Crowley advances the opinions expressed in an article by Professor Dawkins “Involuntary Manslaughter”[2] and particularly in relation to secondary party liability and causation.[3] There, the author accepted that secondary liability under the Misuse of Drugs Act in New Zealand could be established as an unlawful act but thought that a manslaughter charge could not be properly laid because of the “contrived nature of the charge”. The author says:[4]
Since the charge is manslaughter “by” an unlawful act, it must also be proved that the unlawful act caused death. In short, D must cause the actus reus of the unlawful act that in turn causes death. In law, however, a secondary party does not cause the actus reus of the offence constituting the unlawful act. Neither does a secondary party cause any further consequence resulting from the unlawful act. Indeed, the very reason for the doctrine of secondary liability is that the principal party causes the actus reus, and principles of secondary responsibility are needed to attach blame to those who are involved in some other way.
[20] The author contends that potential culpability for the major charge such as manslaughter ought not arise when culpability for the actus reus of the minor charge is never even alleged. Further, the author‟s opinion is that the deceased must have been killed “by” the unlawful act of the accused and that it was not the accused who did the act, but rather the deceased (that is consuming the drug), and he therefore does not cause death. The author says the act is causally “overwhelmed by the self- administration” by the deceased, and reduced to the background of events so no act of culpable homicide was committed, the death of the deceased being caused by her
own actions and not those of any other.
[21] The defence position is that a properly directed jury could not in law, or on the evidence, reasonably convict because the accused did not “kill”, (cause the death) of the deceased by any unlawful act.
Discussion
[22] Before turning to consider each count separately, and whether or not these can form the basis for criminal liability, I think it necessary to discuss the background English cases, culminating in R v Kennedy (No. 2).[5]
Kennedy (No. 2)
[23] The facts were that the deceased requested heroin from the appellant. The appellant prepared the heroin, and handed the deceased the syringe ready for injection. The deceased injected himself and returned the empty syringe to the appellant, who then left the room. The deceased appeared to stop breathing, and was taken to hospital where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.
[24] The appellant was tried and convicted on an un-particularised count of manslaughter and of supplying the class A drug heroin. He was granted leave to appeal against the conviction for manslaughter, which appeal was dismissed. Prompted by doubts as to the soundness of the Court of Appeal‟s grounds for dismissing the appellant‟s appeal (raised in subsequent cases), the Criminal Cases Review Commission exercised its power to refer the appellant‟s manslaughter conviction back to the Court of Appeal. The Court of Appeal dismissed that second appeal. This formed the basis of the appeal to the House of Lords.
[25] The first appeal, R v Kennedy (No. 1)[6] was dismissed on the basis that even if supplying heroin was insufficient to found a conviction for manslaughter (following the observation in R v Dalby[7] that the supply of drugs would itself have caused no
harm unless the deceased had subsequently used the drugs in a form and quantity
which was dangerous), the appellant‟s conduct was “not limited to supply but would also be unlawful insofar as he assisted or encouraged Bosque to inject himself with the mixture of heroin and water”.
[26] The Court in R v Kennedy (No. 1) referred in support to R v Cato,[8] where the defendant injected the victim with morphine. By virtue of s 23 of the Offences Against the Person Act 1861 (the OAPA) (“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty”), the defendant was held to have committed an unlawful act for the purpose of a charge of manslaughter.
[27] R v Kennedy (No. 1) was followed R v Dias;[9] R v Richards;[10] R v Rogers[11] and R v Finlay.[12] These subsequent decisions led to some uncertainty about the position.
[28] In R v Dias, the appellant prepared a heroin mixture, gave the syringe to the deceased who self-injected and later died from the effects. The appellant was convicted of manslaughter, not on the basis that he supplied the heroin to the deceased, but rather on the basis that he assisted and deliberately encouraged the deceased to take the heroin.
[29] In the Court of Appeal the Crown argued that the appellant “assisted and encouraged” an unlawful act, by reference to Kennedy (No 1). But the Court of Appeal held that there was no offence under statute or at common law of injecting oneself with a prohibited drug. While the deceased unlawfully possessed heroin, the causative act was the injection of the heroin rather than the possession of it, the injection not being a crime. R v Cato was distinguished because there the appellant
administered the heroin, in contravention of s 23 of the OAPA, and s 23 was not
before the jury in R v Dias. Lastly, the Court said that there is no offence of self- manslaughter, and accordingly, the appellant was not party to any unlawful act to found a conviction for manslaughter.
[30] R v Richards affirmed the approach in R v Dias.
[31] In R v Rogers the appellant applied to, and held a tourniquet on, the arm of the deceased, who self-injected heroin and died of its effects. The Court disagreed with Kennedy (No. 1) insofar as the reasoning was based upon self-injection being an unlawful act. Yet it upheld the conviction for manslaughter, on the basis that:
a person who actively participates in the injection process commits the actus reus and can have no answer to an offence under section 23 [of the OAPA] or a charge of manslaughter if death results. Once the appellant is categorised as such a participant [by applying and holding the tourniquet], it being common ground that death resulted from the injection, no question arises in relation to causation.
Kennedy (No. 2) was to later say that decision was wrongly decided.
[32] In R v Finlay the Court of Appeal restated its disagreement with Kennedy (No. 1). Nevertheless, it upheld a conviction for manslaughter for actions of the appellant in preparing a syringe of heroin and giving it to the deceased for immediate self-injection. It held that those actions were capable of falling within s 23 of the OAPA (by “causing” the drug to be taken). The Court said that it was for the jury to determine whether or not the appellant caused the injection of the drug, and that self- administration did not necessarily break the chain of causation. Kennedy (No. 2) was to later reject that approach, when their Lordships said that “the decision conflicted
with the rules in personal autonomy and informed voluntary choice ...”.[13]
[33] Those cases led to the reconsideration of Kennedy‟s conviction following the
Criminal Care Review Commission‟s referral of the case back to the Court of
Appeal. That Court held that:
A person who caused their own death, by
self-administration of a controlled drug, did not commit a relevant crime.
It followed that a person who merely encouraged them to do so was not an
accessory to an unlawful act or to manslaughter, as there
is no principal to
whom he is the
accessory.
On the other hand, where the defendant and the victim had
acted in concert in either administering or causing to be administered
the controlled drug (for the purposes of s 23 of the OAPA), then the
defendant will have committed an offence under
s 23. That offence was an
unlawful act and could be the basis for a manslaughter charge. If the defendant
participates in an offence
involving the administration of the
drug, there can be no difficulties in relation to causation.
[34] The Court of Appeal in Kennedy (No. 2) was satisfied that it was open to the jury to convict the appellant of manslaughter, on the basis that the appellant and the deceased were both engaged in the one activity of administering the heroin.
[35] On appeal the House of Lords stated the question to be answered in Kennedy
(No. 2) was:[14]
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?
[36] The House of Lords said the answer to that question is: “never”.
[37] The relevant offence, under s 23 of the OAPA was “administering a noxious thing (heroin) to any other person”. The Crown had accepted (“rightly” said their Lordships) that if liability could not be established under that offence, it could not be established under the offence of “causing” a noxious thing to be administered (i.e. by an innocent third party) to another, or causing noxious thing to be taken (i.e. by putting it in food without the other‟s knowledge), and that a charge of manslaughter
could not succeed. The judgment records that the parties agreed that the “charge of
unlawful act of manslaughter cannot be founded on the act of supplying the heroin
alone.”[15]
[38] Their Lordships said that it was a general “fundamental and non-
controversial” principle of criminal law that:[16]
The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.
[39] They said that R v Finlay was wrongly decided and emphasised that:[17]
causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises. That was the point which Lord Hoffman, with the express concurrence of three other members of the House, was at pains to make in Environment Agency v Empress Car Co Ltd [1999] 2 AC 22. The House was not in that decision purporting to lay down general rules governing causation in criminal law. It was construing, with reference to the facts of the case before it, a statutory provision imposing strict criminal liability on those who cause pollution of controlled waters. ... It is worth underlining that the relevant question was the cause of the pollution, not the cause of the third party‟s act.
The committee would not wish to throw any doubt on the correctness of Empress Car. But the reasoning in that case cannot be applied to the wholly different context of causing a noxious thing to be administered to or taken by another person contrary to section 23 of the 1861 Act.
[40] In Empress Car Lord Hoffman at [29]-[34] famously discussed concepts of causation, which I need not repeat. Nevertheless, considering whether an accused “kills” another – i.e. causes the death by an unlawful act – it can be distracting to ask what caused the death, because it may have more than one answer. So, the cause of death will be the drug overdose. It will also be the consumption of excessive quantities of the drug by the deceased. The question, in determining criminal liability for manslaughter, is whether the accused caused the death by his actions and whether, in construing the relevant legislation, an intervening act of the deceased (the voluntary consumption of the drug) meant that the conduct of the accused was not a cause at all for the purposes of criminal responsibility, but only part of the
surrounding circumstances.
[41] Manslaughter is the legal consequence of the unlawful act (that causes death). It may be the crime and in that sense unlawful act but it is not the “unlawful act” itself, which resulted in the death.
[42] Their Lordships adopted the view of Professor Glanville Williams that “the doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation.”[18] Professor Williams argues:[19]
Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals (or, as I prefer to call them, perpetrators) and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories, conceptually speaking, into the background. Accessorial liability is, in the traditional theory, „derivative‟ from that of the perpetrator.
[43] Their Lordships concluded that:[20]
This is a matter of some significance since, contrary to the view of the Court of Appeal when dismissing the appellant‟s first appeal, the deceased committed no offence when injecting himself with the fatal dose of heroin.
adopting the view of the Court of Appeal in Dias and Rogers, and that:[21]
If the conduct of the deceased was not criminal he was not a principal offender, and it of course follows that the appellant cannot be liable as a secondary party. It also follows that there is no meaningful legal sense in which the appellant can be said to have been a principal jointly with the deceased, or to have been acting in concert. The finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him.
[44] Clearly the position regarding “unlawful” act in New Zealand, is different.
Consumption of a controlled substance is a criminal offence. The person who consumes commits an offence. They do so irrespective of whether they live or die.
They could be a principal offender from which it follows that a supplier/helper could be liable as a secondary party to the consumption. Or the deceased and the helper could be liable as joint principals, acting in concert. Mr Crowley, for the accused submitted that it was irrelevant whether or not self-consumption was a crime because the only issue was causation and the cause of death could only be the voluntary consumption, which would always break any causative chain. I return to discuss this later at [54]-[61] and [64]-[68].
[45] Their Lordships then considered whether it could be said that Kennedy “administered” the injection to the deceased. The prosecution relied on the steps taken by Kennedy to facilitate the injection. But the Court concluded, as a matter of statutory interpretation that:[22]
section 23 draws a very clear contrast between a noxious thing administered to another person and a noxious thing taken by another person. It cannot ordinarily be both. In this case the heroin is described as “freely and voluntarily self-administered” by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.
[46] The Court went on to say:[23]
There is, clearly, a difficult borderline between contributory acts which may properly be regarded as administering a noxious thing and acts which may not. But the crucial question is not whether the defendant facilitated or contributed to administration of the noxious thing but whether he went further and administered it. What matters, in a case such as R v Rogers and the present, is whether the injection itself was the result of a voluntary and informed decision by the person injecting himself. In R v Rogers, as in the present case, it was. That case was, therefore, wrongly decided.
[47] Whether joint administration, where parties may act together, may be a basis for liability their Lordships said:[24]
It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. But nothing of the kind was the case here. As in R v Dalby and R v Dias the appellant supplied the drug to the deceased, who then had a choice, knowing the facts, whether to inject himself or not. The heroin was, as the certified
question correctly recognises, self-administered, not jointly administered. The appellant did not administer the drug.
This indictment
Count 1 – Administering
[48] The Crown says that this was an unlawful act which caused death. Section 6(1)(c) of the Misuse of Drugs Act 1975 makes it an offence to administer or offer to administer a Class B drug to any other person. The Crown argues that “administer” includes “dispense (a drug or remedy)” with “dispense” meaning distributing to a number of people, or supply, or releasing a product, or supplying medicine according to a doctor‟s prescription. The focus of s 6 is to deter the conduct of persons who make the drug available to another. It is to be distinguished from consumption of a drug, which is a criminal offence separately under s 7.
[49] A drug or medicine must be taken into the body before it could be regarded
as having been “administered”.[25]
[50] In the context of the Misuse of Drugs Act, in my view to “administer” involves an act of one person viz-a-viz another, into whose body the drug is introduced. Self-administration is “consumption”, being an offence under s 7(1)(a). The Crown argues that a narrow definition of “administering”, as adopted in the United Kingdom, is inappropriate in the context of the New Zealand legislation. It says that the word “administer” should be given a broader meaning, namely giving access to a drug or issuing it to an individual, for their consumption. Mr La Hood submits that if administration is effectively performed jointly, then a charge of administration, is appropriate to be contrasted with acts which are more removed which should only constitute assistance.
[51] Obviously, in determining the meaning of “to administer” regard must be had to the relevant statutory provisions. “Administer” is used in the context of s 6 in
conjunction with “supply” or “offer to supply” or “administer”
to a person under the age of 18 years.
It must be “administered” to a person, to enable the drug to enter the person‟s system. The legislature envisaged a separate crime of consumption or use of a controlled drug. There may be factual situations where a drug is directly introduced into a person‟s body (by injection, or holding a cup of liquid to the person‟s mouth), but if the act of consuming or using the drug is self-inflicted, it is the user who “administers” for the purpose of the Act.
[52] The conclusion of the House of Lords in Kennedy (No.2) was that where person A hands the drug and/or drug paraphernalia to person B who makes the voluntary decision to self-administer, then person A could not be said to have “administered” the drug. It is persuasive authority that to be liable for administering a controlled drug “the crucial question is not whether the defendant facilitated or contributed to the administration of the noxious thing, but whether he went further
and administered it.”[26]
[53] The evidence here is that on several occasions the accused handed a glass with the GHB mixture in it to the deceased, to be contrasted with, say, holding the glass to her lips. I do not think that can be described as “administering” for the purpose intended in the Act, and the unlawful act, being the offence of “administering”, cannot be the unlawful act upon which the charge of manslaughter is based. It is not necessarily a case of “the chain of causation” being broken, but rather that the nature of the unlawful act that the Crown must rely upon is not one of “administering”. It may be supplying, or some other unlawful act, but I do not think it is correct for the Crown to advance the count of manslaughter, on the basis that “administering” was the unlawful act.
Supplying
[54] Supply of drugs itself does not cause death. Rather, it is the use or consumption of them in a form and quantity which is dangerous which causes death. The evidence in this case, at least from the accused‟s statement to the police, is that
the GHB belonged to the deceased, but was left with him and in his bedroom or possession. Some debate has existed to whether a person who had possession of a drug and delivers it to its owner “supplies” the drug. There is authority for the proposition that the return of drugs to the owner by a custodian amounts to “supply”.[27] Although there are contrary views expressed in R v Atkins[28] and R v
Adams[29] I took a different view when the Adams case proceeded to trial. There is no
direct New Zealand appellate authority on the point, but for the purpose of this application Mr Crowley accepts that supply by the accused occurred in this case.
[55] The Crown says that it is obvious that the consumption of GHB on four occasions over the night, prepared and supplied by the accused with the intention that the deceased consume them, caused her death. It says “cause” of death was drug overdose, and amongst the general causes of that overdose were the acts of supply by the accused.
[56] As discussed, in Kennedy (No. 2), their Lordships said:[30]
There is now, as already noted, no doubt but that the appellant committed an unlawful (and criminal) act by supplying the heroin to the deceased. But the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death ... . So, as the parties agree, the charge of unlawful act of manslaughter cannot be founded on the act of supplying the heroin alone.
[57] Criminal liability could not arise based on any unlawful act under s 23 of the OAPA, and the voluntary act of the drug user in consuming the drug meant that there was no liability, as the parties had agreed that a manslaughter charge could not be based on supply. But Kennedy (No. 2) is not authority that the supply of a drug to be taken by another can never constitute manslaughter if death results and it will all depend upon the factual circumstances of an individual case and the context in which the question of causation arises. The parties may be acting in concert; or there may be a different unlawful act (nevertheless arising out of the supply) which provides a
foundation for a charge of manslaughter. For example, whilst it is not the supply of
the drug that causes death, or perhaps on one view of it, even the consumption, it is commonly the case – and was the case here – that it was the consumption of an excessive quantity of the drug that led to death and the acts of the appellant involved supply or providing that quantity of the drug in consumable form over a relatively short period. So the issue is whether the supply of the amount of the drug taken on four occasions was (a) unlawful and (b) sufficiently a consequent cause of death to found the charge of manslaughter.
[58] In Dias the Court left open a possibility that the supply of drugs could be guilty of manslaughter, even where direct injection was not involved. In R v Dias the Court said:[31]
Causation raises questions of fact and degree. The recipient does not have to inject a drug which he is encouraged and insisted to take. He has a choice. It may be that in some circumstances the causative chain will still remain. That is a matter for the jury to decide. The Crown‟s current approach and argued on this appeal hearing, namely that the supply of heroin is unlawful and can be a dangerous act causing death, is sound. The most obvious case is where the supply takes the form of one person injecting the other who then dies. The position is more difficult where the victim injects himself, but there may possibly be situations where the chain of causation could be established.
[59] The Court of Appeal in Dias went on to say that the trial Judge must identify the unlawful act on the part of the accused that is relied upon and then direct the jury to ask whether they are sure that that act was at least a substantive cause of the victim‟s death, as well as being dangerous and that did not happen in that case leading to the quashing of the conviction.
[60] Based upon the evidence presently available the accused supplied the deceased on four separate occasions on a single evening of 2mls of GHB, knowing her to be already intoxicated and that she would consume it. On one of those occasions he joined in acts of consumption by consuming GHB himself. The Crown‟s contention is that the voluntary use by the deceased of the drug, and in the quantities that were taken in which it is said led to her death, did not break any chain of causation necessary for manslaughter. It is a matter for the jury and the trial Judge would have to carefully direct the jury on this question.
[61] I am not at this stage prepared to direct that no indictment containing Count 2 be filed (or there be a discharge under s 347), but in my view pursuit by the Crown of Counts 2 and 3 in the alternative may cause significant difficulties and problems for the jury and I will later suggest what I see as a better approach (in [78]) and invite the Crown to consider adopting this.
Being a party to the consumption of GHB
[62] One of the major difficulties arising in Kennedy (No. 2) is that there could not be found any unlawful act or offence which caused the death of the victim, because self-administration was not an offence. The appellant could only be liable as a principal for administering heroin, or for causing heroin to be administered or taken. I have referred to Mr Crowley‟s contention that it makes no difference that in New Zealand consumption is an offence, because he says voluntary use breaks any legally imposed causative link. Implicit in Kennedy (No. 2) is that the victim/deceased acted independently of the supplier of the drug and a free deliberate and informed intervention of a second person, who exploits the situation created by the first, but is not acting in concert, is normally held to relieve the first actor of
criminal responsibility,[32] and this is referred to as a fundamental and not
controversial principle by their Lordships in Kennedy (No. 2).[33]
[63] But unlike Kennedy (No. 2), the accused in this case is potentially liable as a party to an offence of consuming a controlled drug under s 7(1)(a) of the Misuse of Drugs Act. The deceased in this case committed that offence whether or not she died. So, too, the evidence at present points to the accused being a party to that offence. He fell into that category of offender whether or not the victim died. In my view it would be open to a jury to convict the accused of manslaughter based upon this unlawful act, that is being a party to the consumption of drugs which were consumed with his assistance and knowledge, at an excessive level, and which led to death. The deceased was not acting alone or independently, when she consumed the drug on the evidence or statement of the accused. She wished to consume GHB on
several occasions and it seems needed the assistance and help of the accused to do so. I do not see this as coming within what Professor Glanville Williams described in “Finis for Novus Actus?”[34]
[The victim‟s] volitional act is regarded (within the doctrine of responsibility) as setting a new “chain of causation” going, irrespective of what has happened before.
[64] The unlawful act which caused the death was the act of the victim consuming excessive quantities of the drug with the direct aid and assistance of the accused, and the evidence is sufficient to show that he was a party to that unlawful act. In terms of s 66(1) he was “guilty” of that offence. Although Mr Crowley relies upon an article of Professor Kevin Dawkins,[35] in which the view is expressed that “there are sound reasons for doubting the propriety of a manslaughter charge based on [a defendant‟s] secondary participation and [the victim‟s] unlawful act” because, he argues, that such a charge “overlook[s] the vital distinction between a principal and secondary party liability”,[36] I do not see how that distinction, if it exists, is relevant in this case.
[65] Professor Dawkins says “in law and in fact, [the defendant‟s] secondary participation does not cause [the victim‟s] death.”[37] I do not agree with that as it will all depend on the factual situation. If a person is guilty of the very offence/unlawful act which causes another‟s death (“kills”) – even if that other is a principal – the unlawful act still is a cause of death although not the sole cause. That would be the case if two persons together – whether or not as principal and party – perform an unlawful act which kills another third party. It will be no different if two perform an
unlawful act which kills one of them provided, naturally, the action of the survivor remains causative of the death of the other.
[66] I do not think it follows that simply because a person is a party to the offending by a victim, and the latter causes the death, a manslaughter charge is not appropriate. The author appears to argue on the basis that in order to “cause” the
victim‟s death a defendant must “cause” the victim‟s act of self-injection or consumption:[38]
if in the eyes of the law the defendant does not cause the victim‟s unlawful act, he cannot cause the victim‟s death that results from that act.
but I do not accept the strictness of this proposition. The requirement for conviction of manslaughter is simply that “„the defendant‟s unlawful act‟ be a significant cause of the death of the deceased”.[39]
[67] I repeat that it is not that the victim‟s consumption, without more, causes death. It was the consumption of large quantities of the drug on four occasions. The ingestion of it, with the supply, participation and active assistance of the accused was what caused death. This simply highlights that there can be several or many causes of an outcome. Here, on the evidence as it stands the primary causes of death was the excessive consumption of GHB. It is a question of fact what other causes, were nevertheless still operative.
[68] The causative consequences of an unlawful act may still impose liability on the unlawful actors, whether principal or otherwise. Naturally, care must be taken when looking at causation, or the lack of it and whilst the Court of Appeal in Dias warns that “assistance and encouragement are not to be automatically equated with causation”,[40] it nevertheless recognises that causation raises questions of fact and degree, and in some circumstances a causative chain will remain and that is a matter for the jury to decide. Dias faced the same problem as in Kennedy (No. 2) namely, that the appellant could only have been guilty of manslaughter as a secondary party
and not as a principal but there being no offence of self-manslaughter the question arose who was the principal guilty of manslaughter. No-one could be principal or party to consumption, it not being an offence.
[69] In the present case the accused is charged with manslaughter as a principal, and his liability arises through his performing an unlawful act which the Crown says
was one of the causes in the death of the victim. The position is aptly described by the Court of Appeal in R v Dias:[41]
The position is more difficult where the victim injects himself, but there may possibly be situations where the chain of causation could be established. It is, however, important that that issue be left to the jury to determine, as happened at the trial in Kennedy.
The trial judge in a case such as this, after identifying the unlawful act on the part of the defendant relied upon, must direct the jury to ask whether they are sure that that act was at least a substantive cause of the victim‟s death, as well as being dangerous.
[70] An example of a case where an accused was found guilty of manslaughter through being a party to the unlawful act (reckless and drunken driving) of the deceased can be seen in R v Cramp,[42] a decision of the New South Wales Criminal
Court of Appeal. There the Court said:[43]
... it was asserted that because of the way it put its case the Crown was not entitled as a matter of law to rely on the unlawful and dangerous act of the appellant. The argument was put in this way. Insofar as the appellant acted unlawfully it was because he was an accessory to the unlawful act of the deceased. It was therefore as an accessory that the appellant was convicted. The principal offence was manslaughter. However, since it was not an offence under the law of New South Wales for the deceased to kill herself – Crimes Act s 31A – no one had committed the principal offence. There could therefore be no accessorial liability.
It may be accepted that there can be no conviction of an accessory unless it is proved that the principal offence has been committed. Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409; R v Anthony [1965] All ER 440; Giorgianni v The Queen [1985] HCA 29; (1984-1985) 156 CLR 473; R v Demirian [1989] VicRp 10; [1989] VR 97.
However, I think that the appellant‟s submissions misconceive the nature of the Crown case. The Crown asserted that the appellant brought about the death of the deceased by any or all of his acts of permitting, assisting and encouraging the deceased to drive the car negligently, furiously or recklessly, too fast or under the influence of alcohol. As well as being dangerous, those acts were unlawful because they made him liable as an accessory to the offences he thereby permitted, assisted and encouraged the deceased to commit.
Although in order to prove unlawful the acts of the appellant upon which it relied the Crown wished to prove that they constituted accessorial offences, that was the only way in which the Crown relied upon his accessorial liability. The Crown never asserted that the appellant was responsible as an
accessory to manslaughter. He was charged and convicted as a principal. Neither was it asserted that the deceased was guilty of the crime of manslaughter. The only offences alleged against her were the driving offences to which I have referred and they were proved, as I have said, in order to prove that the acts of the appellant in permitting, assisting and encouraging their commission were unlawful.
[71] R v Singh demonstrates a situation where a party to an unlawful act can still be said to have “caused the death that resulted from the particular unlawful act”.[44]
There it was alleged that Singh committed arson on his home, which caused the death of his wife from grievous burns. The possibility was raised on appeal that the deceased‟s wife was involved in the arson, whether as a principal or party. Following a question by the jury, the trial Judge directed that:[45]
... a person is guilty of the offence if he or she is a party to it, in other words, if he or she incites, counsels or procures any person to commit an offence or aids or abets any person to commit that offence. So if you were to find that there was more than one person involved in the arson, both those persons are technically guilty of the arson. Either of them can be guilty of a culpable homicide if the arson causes death.
The trial Judge clearly gave the jury the possibility of finding the appellant guilty of arson as a party.
[72] Mr Crowley on behalf of the accused refers to a passage in Kennedy (No. 2)
where their Lordships said that for the purposes of s 23:[46]
It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. But nothing of the kind was the case here.
....
The appellant supplied the drug to the deceased, who then had a choice, knowing the facts, whether to inject himself or not. The heroin was, as a certified question correctly recognised self-administered, not jointly administered.
He relies on this passage as denying that Mr Tema and the deceased were acting in concert in this case. But that passage was based upon the question which recognised
the heroin was self – not jointly – administered.
[73] The House of Lords in Kennedy (No. 2) appears to reflect the conscious policy decision that drug suppliers should not be responsible for death resulting from the independent voluntary consumption of the drug by a free and informed adult. In my view the decision in Kennedy (No. 2) is properly distinguishable. This is on the basis that liability of the accused is for the consequences of the unlawful act committed by the deceased and also by him in aiding the consumption over that evening. The deceased and he acted “in concert” – namely providing and consuming excessively high and dangerous quantities of GHB – which led to death, and it would be open to the jury to conclude that the novus actus principle does not apply.
[74] There is sufficient evidence on the facts of this case to enable a jury to properly convict of manslaughter based upon the death of the victim caused by excessive consumption of GHB, unlawfully by the deceased, in which the accused also acted unlawfully in aiding, abetting, helping and assisting such excessive consumption. Provided the jury are directed to identify the unlawful act relied upon and to ask whether they are sure that act was at least a substantive cause of the victim‟s death as far as being dangerous, it would be open to them to find that count of manslaughter established.
[75] Count 3 may be pursued.
Addendum
[76] I wish to add, however, that I am not at all sure that the Crown needs to, or for that matter ought to, rely upon different unlawful acts through the alternative. As I have said Count 1 is not able to be sustained and that should be dismissed.
[77] I foresee possible difficulties in a trial proceeding on the alternative basis of Counts 2 and 3. The reality is that it was the preparation and supply of GHB on several occasions by the accused, which led to the excessive consumption resulting in her death. I do not see how it is possible to separate out unlawful acts of supply with an unlawful act of being a party to the consumption. The actions in both were essentially the same. If a jury are asked to consider those counts separately and in the alternative, as traditionally they must, I can envisage confusion and difficulty.
Simply by way of example, if they acquit on Count 2 but convict on Count 3, on the basis of the accused being a party to mixing, supplying and consuming the GHB, there is a very real possibility that the verdicts would be inconsistent. Whilst it might be argued in theory, that the jury did not find causation in respect of Count 2 (because the supply did not cause the death) but causation in respect of Count 3 because the mixing and supply of excessive amounts over the evening was an operative cause, such a fine distinction, even if theoretically possible, would not overcome the problem.
[78] I invite the Crown to consider simplifying the indictment by simply containing one count, in the manner in which Count 3 is currently drafted, but with two particulars provided in that count, to illustrate to the jury what the Crown alleges were the acts which comprised the accused being “a party to the consumption of the Class B controlled drug ... ”.
[79] As I understand the position the indictment, although filed, has not been presented, and the accused has not been arraigned or asked to plead. As matters now stand the indictment as filed is amended insofar as the dates are concerned. There will be a discharge in respect of present Count 1. Counts 2 and 3 may remain, although as I hope I have signalled, the prospect may arise before trial of Count 2 also being subject to a discharge.
[80] The accused is remanded, and his bail to continue until a callover Monday
31 May 2010 in this Court at 9.30am. By then the Crown should have the indictment, in its final form for presentation so the accused can enter a plea.
Solicitors:
Crown Solicitor, Wellington
B Crowley, Wellington for Accused
J W Gendall J
[1] R v Kennedy
(No.2) [2007] UKHL
38.
[2]
“Involuntary Manslaughter” [2003] NZ Law Review
569.
[3]
Ibid, at
582.
[4] Ibid,
at 579.
[5] R
v Kennedy (No. 2) [2007] UKHL
38.
[6]
R v Kennedy (No. 1) [1998] EWCA Crim
2545.
[7] R
v Dalby [1982] 1 WLR 425, 429
(CA).
[8] R v
Cato [1975] EWCA Crim
5.
[9]
R v Dias [2001] EWCA Crim
2986.
[10]
R v Richards [2002] EWCA Crim
3175.
[11]
R v Rogers [2003] EWCA Crim
945.
[12]
R v Finlay [2003] EWCA Crim 3868.
[13] R v Kennedy (No. 2) at [16].
[14] At
[12].
[15] At
[7].
[16]
At [14] citing Hart and Honoré Causation in the Law (1985,
2nd ed)
326.
[17] At
[15]-[16].
[18]
At
[17].
[19]
Glanville Williams “Finis for Novus Actus” (1989) 48 CLJ 391,
398.
[20]
At
[18].
[21]
Ibid.
[22] At
[19.
[23] At
[20].
[24] At [24]
[25] Professor Glanville Williams Criminal Law (1983, 2nd ed) at 211.
[26] At
[20]
[27] R
v Byrne [1991] 2 NZLR 599 (HC), R v Maginnis [1997] UKHL
4.
[28]
R v Atkins {1981] 2 NZLR
663.
[29]
R v Adams (2004) 21 CRNZ
204.
[30]
R v Kennedy (No. 2) [2007] UKHL 38 at [7]-[8].
[31] R v Dias [2001] EWCA Crim 2986 at [23].
[32] R v Latif [1996] 1 WLR 104, 115. See also Hart and Honoré Causation in the Law
(1985, 2nd ed) at 326
[33] At [14].
[34] “Finis
for Novus Actus?” (1989) 48(3) CLJ 391 at 392.
[35] [2003] NZ Law
Review 569.
[36] At 578-579.
[39] R v Kennedy (No. 2) [2007] UKHL 38 at [7] citing R v Cato [1976] 1 WLR 110, 116-117.
[40] At [25].
[41] At
[25]-[26].
[42]
R v Cramp [1999] NSWCCA
324.
[43] At
[96]-[99].
[44]
R v Singh CA317/99, 7 December
1999.
[45]
R v Singh CA317/99, 7 December 1999 at
[11].
[46]
R v Kennedy (No. 2) [2997] UKHL 38 at [18].
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