Shalhoub v Director of Public Prosecutions & Anor [2002] NSWSC 874

New South Wales Supreme Court

CITATION : Shalhoub v Director of Public Prosecutions & Anor [2002] NSWSC 874 CURRENT JURISDICTION: Common Law Criminal FILE NUMBER(S) : SC 13910/01 HEARING DATE(S) : 3 & 4 September 2002 JUDGMENT DATE : 27 September 2002

Lorna Rose Shalhoub PARTIES : Director of Public Prosecutions Kevin Ronald Maughan JUDGMENT OF : Sperling J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Maughan LCM JUDICIAL OFFICER :

COUNSEL : Mr P Byrne SC with Ms G Bashir for the Plaintiff Mr G E Smith for the First Defendant SOLICITORS : MacMahon Associates Lawyers for the Plaintiff S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - causing grievous bodily harm by a negligent act or omission - appeal from the Local Court under s104 of the Justices Act 1902 - no question of principle Crimes Act 1900, s54 LEGISLATION CITED : Justices Act 1902, s104, s109 Poisons & Therapeutic Goods Regulation 1994, reg154 DECISION : 1. Appeal allowed; 2. Conviction quashed; 3. Direct the entry of a verdict of acquittal.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Sperling J

Friday, 27 September 2002

13910/01 Shalhoub v Director of Public Prosecutions & Anor

Judgment 1 His Honour: On 26 December 2000, the plaintiff, a registered nurse, Mrs Shalhoub, was on duty at the Sir Thomas Mitchell Nursing Home. She had a large number of residents under her care. 2 I will refer to residents by an initial in each case. 3 At about 7.30 am, the plaintiff and a fellow worker, Ms Tanaka, also a registered nurse, put onto a trolley the medication which residents were to receive that morning. A Mr R was to receive 300 mg of MS Contin in the form of a 200 mg and a 100 mg tablet. A Ms G and others were to receive other medication. 4 The plaintiff went off with the trolley to administer the medications. When she came to Mr R, she found that the MS Contin, which had been put on the trolley for him, was not there. A search was unproductive. The initial dose of MS Contin was written up as discarded. A fresh dose was withdrawn for Mr R and administered to him. 5 Ms G was observed in the course of normal activities at about 3 pm, first by the plaintiff and then by another registered nurse, Ms Steel. Nothing untoward was noticed. The plaintiff left for the day at about 3 pm. 6 At about 4.45 pm, adverse signs were observed in Ms G by the nursing staff. An ambulance were called. She was taken to hospital where she was treated for respiratory depression. 7 The plaintiff was charged by information with two offences. The first was an offence against reg 154 of the Poisons and Therapeutic Goods Regulation 1994, in alleging that the plaintiff had made a false record. That charge related to the record of the initial dose of MS Contin being "discarded". 8 The second was an offence under s 54 of the Crimes Act 1900 which provides as follows: 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.