R v Bushell (No 18) [2023] NSWSC 1454

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell (No 18) [2023] NSWSC 1454 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23, 28-31 August, 1, 4-5 September 2023 Decision date: 05 September 2023 Jurisdiction: Common Law Before: Rothman J Decision: The Jury will be informed that consent of the deceased in this case is irrelevant to unlawfulness for the purpose of manslaughter by an unlawful and dangerous act. Catchwords: CRIME – manslaughter – involvement in administering illicit drugs which caused death – assault – whether consent is a defence to an assault causing death by dangerous act – not necessary to decide finally – administration of drug unlawful and consent irrelevant – whether dangerous is a matter for jury Legislation Cited: Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss 12, 13, 14 Category: Procedural rulings Parties: Rex (Crown) Daniel Michael Bushell (Accused) Representation: Counsel: G Wright SC (Crown) R Pontello SC (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused) File Number(s): 2018/229735

EX TEMPORE JUDGMENT 1. HIS HONOUR: The Court has been asked a series of questions by the Jury which raise two issues arising from a clarification of the Written Directions. The question raises that which is sought to be explained by way of example, in what has been called Part B(2)(b) of the Written Directions relating to an assault. The question raises the issue of whether the deceased can give consent if not of sound mind or if under the influence. It also raises the issue of whether if the deceased was aware of the fatal contents of the injection, which in this case caused the death, being a mixture of cocaine and heroin of some significant quantity, could he give consent. In other words, the question asked whether not being aware of the fatal contents of the shot, but being a willing participant in the act, constitutes non-consent. It seems to me that is a reference again to the consensual issue of the deceased and not of either of the accused or his brother. 2. The Jury also asks whether a reasonable person in the accused's position would have realised the risk of serious injury and whether that is affected by (it seems to me) the subjective aspects of the accused rather than merely a reasonable person with the knowledge and in the position of the accused. Lastly, it asks whether the accused needed to be aware that there was not consent. The issue arises because of the infelicity of the expressions by the Court in its written directions. 3. Having informed the Jury in Part B(1) of the Written Directions that manslaughter is available as an alternative statutory offence, or a statutory alternative to the offence of murder, if there is an unlawful and dangerous act, the Court referred to the fact that the act is still required to be deliberate. In this case, because of its somewhat unusual features, that act had either to be caused by the accused or by his brother in circumstances where the accused was present at the time, aiding and abetting or encouraging the commission of the offence, namely as a principal in the second degree. 4. The Court then said that the act was an unlawful and dangerous one. That is a relevant element of manslaughter in this trial. The Court then gave by way of an example an act is unlawful if it involves a deliberate application of force to another person without that person's consent. It is that aspect which has caused the issue. There are, in my view, more bases for unlawfulness other than an assault by application of force. That in itself raises a number of issues. 5. The Jury Note, to which reference has been made, seems to arise from the generality of the examples used in the written directions. In the written directions the Court has not unusually, I suppose, referred to an assault being an unlawful act if done without the consent of the victim. There are two aspects that need comment. 6. First, there is the issue of the unlawfulness of the conduct causing injury. Usually, an assault is not so confined. In this case the conduct alleged involves the administration of an intravenous mixture of cocaine and heroin in circumstances where neither the cocaine nor the heroin was prescribed by a medical practitioner or otherwise authorised to be injected. In other words, these were illicit drugs being injected unlawfully. 7. Pursuant to the terms of s 12(1) of the Drug Misuse and Trafficking Act 1985 (NSW) it is unlawful for a person to administer or attempt to administer a prohibited drug to himself or herself. Contraventions of ss 12, 13 or 14 are all criminal offences. In particular, s 13 of the Drug Misuse and Trafficking Act mandates that it is a criminal offence for a person to administer or attempt to administer a prohibited drug to another. In s 14 of the Drug Misuse and Trafficking Act it is a criminal offence for a person to permit another person to administer or attempt to administer a prohibited drug. 8. I should also refer at the same time to s 19 of the Drug Misuse and Trafficking Act. Unlike some statutory provisions of this kind there is no exception for persons aiding and abetting one of the offences and s 19 expressly renders unlawful the aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence under the Division, which then also plainly becomes a criminal offence. The other offences under the Division to which s 19 refers, include ss 12, 13 and 14 to which reference has already been made. 9. In this case, the accused raises the issue that the Crown is, by relying on the provisions of ss 13 and 14 and to a lesser extent s 12 of the Drug Misuse and Trafficking Act, changing its case. That is not my impression. 10. The Crown has always relied upon the administration of a "hot shot" being a mixture of a fatal dose of heroin and cocaine. The primary approach of the Crown was in relation to the charge of murder in which the Crown alleged prior sedation and a non-consensual injection of the "hot shot" by one or other of the accused or his brother, who at the time of the commencement of the proceedings was a co-accused. 11. The Crown did not specify that the injection of the drug was an assault or confine itself to the unlawfulness being an assault. If there were any confinement that was a confinement by the Court, not the Crown, and in closing the Crown expressly referred to the injection of a mixture of cocaine and heroin. 12. In raising that issue I am not unmindful of any prejudice that may have been caused to the accused in the running of his case, but on the submission of Counsel for the accused it seems that the case could not have been run differently even if at the outset the Crown had expressly referred to ss 13 and 14 of the Drug Misuse and Trafficking Act. 13. Nevertheless, there are issues associated with that which has fallen from the Jury and which has been argued before the Court. I am grateful for the written submissions that have been provided by counsel for the accused and the Crown on very short notice. 14. It seems to me that as a trespass against a person, the administration of an injection could ordinarily be the subject of consent, thereby vitiating any "assault". However, on the current authorities by which I am bound, while one can consent to an assault, one cannot consent to an assault occasioning actual bodily harm nor to an act causing grievous bodily harm. 15. In and of itself this creates a tension. The act or conduct, which gives rise to the assault and for which consent would be a defence, does not differ or may not differ between a common assault on the one hand and on the other hand an assault occasioning actual bodily harm or an act causing grievous bodily harm. 16. To take the obvious example which has come before the Court in other proceedings and has received significant publicity in the years immediately past, if a person punched someone and the victim of the punch fell to the ground and hit their head, there are four possibilities. There could be no injury and it would be a common assault. There could be an assault occasioning actual bodily harm where a wound opened up and was the subject of bleeding and injury. There could be an assault occasioning grievous bodily harm where there was brain damage and, of course, there could be death or manslaughter, which is now — in the case of persons who are intoxicated — the subject of specific provision in the Crimes Act 1900 (NSW). 17. Yet the conduct of the perpetrator in that example does not differ. Nor, in the hypothetical just used, does the state of mind or state of knowledge of the perpetrator differ. 18. We are not in the foregoing example speaking of a malicious infliction of grievous bodily harm — or more correctly — causing grievous bodily harm with an intention so to do, which involves an intent. The perpetrator, other than in the circumstances of the malicious offences, has acted neither with an intention to injure of any kind, with recklessness as to injure, nor necessarily with any state of mind which would provide a foreseeability of an injury of a particular kind. 19. Yet the authorities state consent is a defence to a common assault but not to the two more serious assaults. That plainly creates a tension. Nevertheless, the authorities make it clear that the reason that consent is not a defence to the more serious assaults, that is an assault occasioning actual bodily harm, or causing grievous bodily harm, is a matter of public policy. 20. One then turns to the question of manslaughter. If it were occasioned by an act which was an assault there are plainly two views that are open. The first of them is that consent would overcome the assault, which was the unlawful act, and thereby be a defence to manslaughter. The second is, adopting the reasoning associated with assault occasioning actual and/or grievous bodily harm, that an assault that is occasioned, in circumstances where a reasonable person would understand that the assault was a dangerous act, ought not be able to be defeated even on the basis of consent of the victim. 21. If it were necessary to decide that issue, notwithstanding the tensions that then exist between an assault, being a common assault, on the one hand, and the failure of a defence of consent to an assault that gave rise to manslaughter that would be occasioned by such a course, the public policy reasons adumbrated by various authorities (by which I am bound) that prevent consent being a defence to assault occasioning or cause grievous bodily harm, would apply. To allow for a defence of consent to an assault, in circumstances where a reasonable person would see the assault as dangerous, would create an even greater tension between causing grievous bodily harm, on the one hand, or assault on the one hand, and on the other hand manslaughter. Were it necessary to determine that issue, therefore, I would determine that consent is not a defence to an assault that has caused death in circumstances where the assault is objectively dangerous and the charge is manslaughter. 22. I am grateful for the fact that it seems unnecessary for me to determine the matter finally. It is an issue which, at least to some extent, has been left open by the High Court. Unlawfulness for the purposes of manslaughter, that is the unlawful act, must be a breach of the criminal law. It cannot be an act which is merely a regulatory prohibition that is breached. 23. In this case, as earlier stated, the Drug Misuse and Trafficking Act creates criminal offences relating to the administration of an illicit drug. This death is a direct consequence of the administration of the illicit drugs. It is not in the same position as mere supply from which death ultimately eventuates. 24. Therefore, to the extent that the accused has been proved beyond a reasonable doubt to have participated, either by the administration, or by aiding and abetting in the administration, of the illicit drug, that is an act which is unlawful, and whether it is dangerous is a matter for the Jury. Consent of the deceased, if there were consent, is irrelevant to the unlawfulness. 25. I so determine and will answer the questions in accordance with that ruling.