District Court New South Wales Medium Neutral Citation: R v Morris [2021] NSWDC 209 Hearing dates: 13 April 2021 Date of orders: 13 April 2021 Decision date: 13 April 2021 Jurisdiction: Criminal Before: Hunt DCJ Decision: Application for permanent stay of proceedings is granted Catchwords: CRIMINAL LAW – Judgment – Manslaughter -Application for permanent stay of proceedings – Reversal of plea – Abuse of process – Crown case incapable of establishing criminal negligence – Doomed to fail Cases Cited: Barton v R (1980) 147 CLR 75 Jago v District Court of NSW (1989) 168 CLR 23 Justins v R [2010] NSW CCA 242. R v Edwards [2008] SASC 303 R v Lavender [2005] 222 CLR 67 R v Sam [2009] NSW SC 803. R v Thompson, David and R v Thompson, Phillip [2019] NSW SC 1396 Royall v R [2019] 1 CLR 373 Sitidini v R [2009] NSW CCA 302 Wilson v The Queen (1992) 174 CLR 313. Category: Principal judgment Parties: The Crown Neil Douglas Morris File Number(s): 2017/352939 Judgment 1. I make an order on the application of Mr Morris that any non-publication or suppression restrictions previously made in the proceedings are lifted so that there is no obstacle to publication generally. 2. These are reasons for the determination that I made yesterday to permanently stay the proceedings brought against Neil Douglas Morris in relation to an allegation of manslaughter in relation to the death of his long term partner Janice Latter in July 2017. Although these reasons are being delivered on the day after I considered final written and oral argument about the matter and announced the determination in relation to the stay these reasons should be understood as being extempore in nature, given other hearing commitments. Any inelegance of expression should be forgiven, notwithstanding the significant assistance I have had from both counsel in relation to resolution of the matter. 3. A short procedural history needs to be set out to make sense of the current determination. On 26 September 2018 the accused was arraigned at Tamworth District Court on a single count of manslaughter. On 26 October 2018 he was arraigned and a trial date was fixed. By a notice of motion brought by the applicant, the matter was brought back to Court on 11 February 2019 when he entered a plea of guilty. Sentence proceedings were then conducted by McLennan DCJ over four days between 24 May 2019 and 11 October 2019. Relevantly, those sentence proceedings included oral evidence given by a range of witnesses, importantly Professor Kurrle who gave expert opinion. 4. The matter was fixed for McLennan J to sentence the applicant on 25 November 2019. On that date by a further notice of motion the applicant sought to vacate his plea of guilty. On 13 December 2019 McLennan DCJ granted the application for the applicant to reverse his plea of guilty and, in due course, the matter was listed for a judge alone trial to commence at the Downing Centre District Court on 12 April 2021. In advance of the judge alone trial commencing I determined a notice of motion with an affidavit in support seeking a permanent stay of the proceedings. 5. The nub of that application was that the applicant sought an order that any further proceedings on the indictment be permanently stayed by reason of an abuse of process. The abuse of process identified in the notice of motion was an assertion of an abuse of a prosecutorial discretion to call the applicant for trial given that McLennan J in the course of giving his reason on the plea reversal on 13 December 2019 had held that the prosecution evidence, at its highest, was incapable of establishing a negligent duty of care in the applicant and it was also asserted that decision, by inference, held that the prosecution evidence was incapable of establishing that any such alleged negligent omissions by the applicant had caused the death of Ms Latter. 6. There is a shared position of the parties as to the general principles that relate to permanent stays of criminal proceedings; that the power to permanently stay proceedings will only be granted in an exceptional or extreme case, see Barton v R (1980) 147 CLR 75 at 111, Jago v District Court of NSW (1989) 168 CLR 23 at 34 and authorities that follow those decisions. It is also common ground between the parties that categories or circumstances that can be relied on to justify a stay are neither closed nor capable of exhaustive definition. In short, the applicant contended that the doctrine of res judicata operated to mean that the issue about negligence and sufficiency of evidence as to negligence of the proper standard had been determined by McLennan DCJ and ought not be re-litigated before me or another judge sitting alone in criminal proceedings. Notwithstanding advancing that as a ground for the abuse of process, Mr Wendler, counsel for the applicant, conceded that it could also be proper for the Court to proceed to consider an abuse of process differently formulated; that is if the Court determined that the proceedings were "doomed to fail" that seeking to litigate them in that circumstance could amount to an abuse of process sufficient to justify a permanent stay. Both parties conceded that s 91 of the Evidence Act gave this Court the power to consider not only the outcome of McLennan DCJ's determination on 13 December 2019 but also the reasons for it. That is because the underlying facts on which those reasons were promulgated were not in dispute between the parties. I accept that concession and consider it is on that is properly made. 7. Whilst the Crown conceded that it was proper for this Court to consider the reasons and findings of McLennan DCJ, it did not accept that the doctrine of res judicata operated. The Crown did concede that if a prosecution were assessed as being doomed to fail, that could properly found a finding of abuse of process that might warrant a permanent stay. I am not persuaded that it is necessary for me to determine whether the doctrine of res judicata operates in relation to this matter. It is the case that for reasons of judicial comity, unless there was some very good reason to do so I am likely to adopt, or at least accept, the findings of McLennan DCJ and the reasons for them. Indeed, whilst I have had the benefit of reviewing both his reasons and much of the evidentiary material on which he formed those views, his Honour had a much better opportunity of closely considering the evidence, given the amount of time that was committed to the sentence proceedings and the fact that he heard from the expert witness orally. 8. What is it that the prosecution would need to prove if the proceedings are to be permitted to move forward? The elements are first that the accused owed a legal duty of care to Janice Latter. There is no dispute between the parties that such a legal duty of care operated. The applicant Neil Morris had accepted a legal duty of care because for the past six years he had been in receipt of a carer's pension and, alongside that, had accepted obligations for caring for Ms Latter day in and day out. Indeed the evidence discloses, with perhaps some very limited failings in the last couple of days of her life, that Ms Latter lived with Mr Morris, that he was an assiduous carer who looked after dietary needs of the deceased, the cleanliness of the home and basic medical care. The evidence also discloses that he did so in circumstances in which Ms Latter herself was vehemently opposed to medical oversight, either by way of regular visits to general practitioners or by accepting regular invitations to have assistance of a community nurse. Indeed, when Ms Latter fell in 2016 and the accused called an ambulance that had her admitted to Quirindi Hospital, the evidence suggests that she remonstrated with him significantly about that, notwithstanding that it was clear that she was at that time in need of medical care by way of admission to a hospital. Medical personnel, being a pathology nurse collecting regular INR samples and a community nurse each made observations about the proper level of care that Mr Morris provided Ms Latter over the number of years that they were involved with the household. 9. The second element to be proved is that the accused's negligent omission caused the death of Ms Latter, and I will return to that element in due course. The third element is that the accused's omission or omissions were conscious or voluntary without any intention of causing death but in circumstances which involved such a great falling short of the standard of care that a reasonable person would have exercised. The omission or omissions need to merit criminal punishment. In broad, the prosecution contended for a failure in the applicant to provide Ms Latter with the necessities of life, including but not limited to 1. adequate nutrition 2. adequate hydration 3. adequate personal intimate hygiene and 4. timely access to medical care and advice. 1. The further particulars of the breach were 1. that for a period of at least a week prior to 13 July 2017 that Mr Morris failed to take necessary steps required of him to ensure the conditions resulting in the deterioration of the pressure injuries that were ultimately found on Ms Latter to the point there was a likelihood of infection resulting in death or serious harm, 2. that during the same period that the accused made a conscious decision not to attempt to engage medical assistance or medical advice for the deceased whilst she was in his care and 3. that a combination of those admissions on the part of the accused resulted in the acceleration of the infection in the pressure wound areas to a level that was life threatening and accelerated her death. 1. In terms of the legal principles relating to a negligent omission in breach of a duty of care that the accused owed to the deceased the following is relevant. The test for criminal negligence is objective, jury or fact finder is obliged to compare the acts or omissions of the applicant against the behaviour expected of a hypothetical reasonable person in the situation of the accused - see R v Lavender [2005] 222 CLR 67. The element will only be met if a reasonable person would have realised that the accused's act or omissions created a higher risk of death or really serious injury - again see R v Lavender. Given that the test for negligence is an objective one the prosecution does not need to prove, nor could have in this case, that the accused intended to cause death or really serious injury or indeed that the accused knew that his conduct would cause death or really serious injury. The accused's belief or opinion as to whether he was in breach of the duty of care is not relevant. The reasonable hypothetical person is said to be one in the position of the accused. That does not mean that person shares the accused's beliefs, values or attitudes - see R v Sam [2009] NSW SC 803. The reasonable person should not be considered to have any of the applicant's deficiencies, in reasoning capabilities, if such exists - see R v Edwards [2008] SASC 303. 2. Relevantly the test for criminal negligence requires the fact finder to determine how the reasonable person of ordinary fortitude and strength of mind in the position of the accused would have acted in the circumstances. In making this determination a reasonable person should be considered to be of the same age as the accused and not have any specialised knowledge or experience. It is important in considering a reasonable person in the position of the applicant to have in mind that the applicant here was caring for somebody who had long and vehemently disavowed an interest in medical intervention. It seems that was an attitude of the deceased rather than an attitude of the applicant and so it has relevance. Indeed in a case that was starkly similar in terms of the facts being R v Thompson, David and R v Thompson, Phillip [2019] NSW SC 1396, similar issues arose in a judge alone trial conducted before Justice Fagin. The two accused in that matter were the sons of the deceased and lived in the same house as their mother. The deceased in that case was somebody who, like Ms Latter, seems to have been entirely resistant to medical intervention. 3. It was clearly a relevant consideration in that case over and above whatever care or lack of care was offered by the two accused in that case and at para 111 his Honour said: "The evidence brought before the Court in this prosecution has illustrated the great burden that may be imposed on caring relatives by an elderly person who insists upon dying at home ... at the stage of terminal bodily collapse, dignity and comfort that may not be achieved at home without the aid of detached professional support." Then continuing at para 112 his Honour said: "Mrs Thompson's choice placed upon her sons a responsibility for geriatric nursing that demanded unfairly of them at the end the law's requirement of reasonable care according to the standards of the community is directed at maintaining health and prolonging life. Mrs Thompson set impossible terms for the achievement of those objects in her own case." 1. Those sentiments, on all the evidence here, seem entirely relevant to Ms Latter's attitude. Although there was some evidentiary basis for suggesting that because of infection that may well have commenced in advance of 13 July 2017 Ms Latter was in and out of delirium, the reality, however, is that there is no evidence to suggest that the applicant understood that or that there was such a great change in the way that she expressed herself that he, necessarily, could have reached a view that she was failing to exercise what had been her own strong and independent views about the issue of medical intervention. 2. The next legal issue to be considered is that it is necessary that the applicant's omission amounted to criminal negligence and merited criminal punishment for the offence of manslaughter in that it 1. fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and 2. involved such a high risk of death or really serious bodily harm would result, would follow as the result of the omission or omissions. 1. The requirement is that the applicant's omission must have fallen so far below the standard of care a reasonable person would have exercised and involved such a high risk of death or serious injury that the omission or omissions merit criminal punishment - see Lavender and also Wilson v The Queen (1992) 174 CLR 313. 2. Given the attitude to the stay taken by both parties I have determined on the issue of the element of criminal negligence, rather than further analysing the evidence to adopt what McLennan J had to say on that issue. At pages 20 and 21 of his reasons for judgment on the plea reversal on 13 December 2019 his Honour held in my opinion the evidence taken at its highest is incapable of establishing a negligent breach of duty. Having independently analysed the evidence consistent with the legal principles I have just outlined I form an identical opinion. 3. Returning to the second element that the applicant's omissions caused the accused's death McLennan J did not make an affirmative finding about the quality of the evidence in relation to causation. He expressed himself on that issue in this way: "There is a real question in my view as to whether it [the evidence] is capable of establishing legal causation." His Honour did not need to determine that subsidiary point but cast his language on that issue consistent with what he needed to determine as to whether the plea could properly be reversed. As to the legal principles concerning causation it is not necessary that the accused's omission was the main cause of death, it must be the substantial cause - see Royall v R [2019] 1 CLR 373. Substantial cause will equate that the cause is something more than de minimis (more than minimal or trifling). 4. Given that the prosecution is required to prove that it was the applicant's criminal breach of duty of care that caused, at least to the degree I have outlined, the death it is important that there be precise identification of the act or omission that is alleged to have caused the death of the deceased - see Sitidini v R [2009] NSW CCA 302 and Justins v R [2010] NSW CCA 242. A benefit that I have over and above McLennan DCJ who did not need to advance a decided view on the issue of causation is that Professor Kurrle has provided a supplementary report dated 7 April 2021. In that report the expert clarified and confirmed opinions that she had advanced either in earlier reports or in evidence before McLennan DCJ. Relevantly, in terms of an infection to the pressure sores being the substantial cause of death, the Professor opined "Ms Latter was a very unwell lady with diabetes, heart failure, atrial fibrillation, morbid obesity which would lead to an increased likelihood of her death". It ought to briefly be said in relation to those conditions that the evidence discloses that the applicant, Mr Morris, had taken appropriate steps, until things became very critical in mid July 2017, to have Ms Latter properly accommodated in terms of furnishings to the home. That is, he provided a commode chair which also operated as a walker, a very comfortable recliner rocker and in the later weeks before her death a lifter to assist him to have her lifted and cleansed before being placed back in her chair. 5. Returning to the supplementary report of Dr Kurrle she confirmed it is a reasonable conclusion that "the inaction of Mr Morris in seeking help in the two to three days prior to Ms Latter's admission to hospital may only have had a contribution to her death that would have been slightly more than minimal." 1. Accepting in that the Professor advances an opinion as to what is, if you like, an ultimate issue on the proposed criminal proceedings the opinion is expressed on the basis of a careful review of what is all the relevant documentation. There is no question about Professor Kurrle's level of expertise. I take the view that given the way in which the Professor has confirmed her opinions, variously given, that it is highly unlikely that any proposed prosecution on the evidence available would be able to sustain that Mr Morris' omissions operated as anything less than having contributed to her death in anything that was other than slightly more than minimal. 2. It follows from that finding and from my adoption of the finding of McLennan J about the incapacity of the evidence to sustain criminal negligence that I take the view the proceedings are doomed to fail. That being so, and patently available on a careful analysis of the prosecution material, I take the view it would be an abuse of process consistent with principle for the prosecution to move forward. 3. For that reason I determine to permanently stay the proceedings as I announced yesterday. 4. I want to record my gratitude to both counsel, particularly to Mr Tunks. He, coincidentally, happened to be the Crown Prosecutor in the case of Thompson and he is obviously well familiar with this area of the law and I was entirely assisted not only by his careful submissions as to the legal principles but ultimately his very fair and proper concession at the close of his written submissions which I adopt and extract for completeness. "The evidence establishes a legal duty on the part of the accused and breach of that duty by allowing the deceased to remain seated in urine for three days, on the basis of all evidence, although two days is identifiable. However, on a pragmatic and proper approach the prosecution is problematic taking the evidence at its highest in regard to causation but also establishing that the breach warranted criminal punishment". 1. Those proper concessions are in the best traditions of the bar and prosecutorial discretion to the extent that it resided personally in Mr Tunks and I am grateful for that. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2021