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 A fresh dose was withdrawn for Mr R and administered to him. 5 Ms G was observed in the course of normal activities at about 3 pm, first by the plaintiff and then by another registered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. The charge in relation to the second offence was as follows: That Lorna Rose Shaloub [sic] between the 26th day of December 2000 and the 27th day of December 2000, at ILLAWONG, in the State of New South Wales, did by a negligent omission, to wit, being a registered nurse failed in her duty of care in that she incorrectly administered 300mgs of MS CONTIN (S8 Drug) to patient [Ms G] and did then neglect to obtain appropriate counter active treatment for the said [Ms G] thereby causing grievous bodily harm to the said [Ms G] . 9 The plaintiff was tried summarily in the Sutherland Local Court on 26, 27 and 28 November 2001, before Mr Maughan, magistrate. She was convicted of both offences. 10 The plaintiff appealed to the District Court against the conviction for the first offence. The conviction was quashed. She has appealed to this Court against the conviction for the second offence, pursuant to s 104 of the Justices Act 1902 which provides, so far as is material, as follows: 104 When an appeal can be made by a defendant or other person (1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds: (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence. 11 Section 109 of the Justices Act provides as follows: 109 Powers of Supreme Court in determining appeals The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following: (a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it thinks just, (d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal. 12 The charge which is the subject of the present appeal explicitly alleged an omission as distinct from an act. The omission was that, having incorrectly administered the drug MS Contin to Ms G, the plaintiff negligently failed to obtain appropriate counteractive treatment for Ms G, causing her grievous bodily harm. The charge did not allege, in terms, that the incorrect administration of the drug to Ms G was "negligent". The incorrect administration of the drug to Ms G was a prefatory averment. It was not the act or omission allegedly constituting the first element of the offence. The negligent act or omission alleged was the omission to obtain appropriate counteractive treatment for Ms G. 13 The evidence was that the ingestion of even 100 mg of MS Contin by a naïve patient, such as Ms G, was likely to result in complications including respiratory depression, and that the correct treatment for such a person was to administer Naloxone prophylactically, observe and then administer more of that drug as necessary. 14 The crux of the charge was the allegedly negligent omission to obtain the appropriate treatment for Ms G. That can only have been a negligent omission if the plaintiff knew or reasonably suspected that the missing MS Contin had been mistakenly given to Ms G rather than to any other resident or had gone missing in some other way. There was no suggestion in the evidence that, if all that was known or suspected was that one of a large number of naïve individuals had been given at least 100 mg of MS Contin, it would be appropriate to give to them all the antidote. 15 In the context of the evidence, the charge of a negligent omission to obtain appropriate counteractive treatment for Ms G made sense only if the plaintiff knew or had reason to suspect that Ms G in particular had ingested MS Contin. 16 The information did not allege that mental element. It alleged, in that regard, only that the plaintiff had incorrectly administered the drug to Ms G. However, it was implicit in the allegation of a negligent omission to obtain appropriate counteractive treatment for Ms G that, at the time of the omission, the plaintiff knew or suspected that the drug had been mistakenly given to a resident other than Mr R and that the resident who had been given it was Ms G. 17 So the gist of the charge was that, having incorrectly administered MS Contin to Ms G and either knowing or suspecting that that was so, the plaintiff failed to obtain the appropriate counteractive treatment for her, with the result that Ms G suffered grievous bodily harm. 18 In broad terms, there were two grounds of appeal: first, that the learned magistrate erred in failing to hold that the charge was duplicitous; and, secondly, that the learned magistrate erred in law in finding that the offence was made out. 19 I need not deal with the first such ground of appeal in view of my determination in relation to the second ground. However, I would observe, in passing, that I do not think the charge was not duplicitous, construed as I construe it. 20 As to the second ground, it is necessary to examine the findings made by the learned magistrate which in his view made out the offence. 21 The following is the relevant section of his Worship's judgment: The charge under s54 of the Crimes Act is that the defendant did by a negligent omission, to wit being a registered nurse, fail in her duty of care in that she incorrectly administered 300 milligrams of MS Contin, a Schedule 8 drug, to a patient, [Ms G] , and did then neglect to obtain appropriate counteractive treatment for the said [Ms G] occasioning to her grievous bodily harm. There has been, as I said, some cases presented in respect to grievous bodily harm and there has been no issue in respect of that. What the defendant is charged with the tribunal of facts has to decide, in my view, is being criminally negligent and, again, I am mindful of the submissions of law made by Mr Byrne in respect of that term and I accept them in her omission to carry out her duties as a registered nurse. I think it true to say that the case against the defendant in respect to administering that drug to [Ms G] is a circumstantial one. I suppose it is appropriate for the Court to say that when considering whether a fact is established in these sorts of cases, that is, circumstantial cases, the tribunal of fact has to be satisfied that there is no other reasonable hypothesis than the fact alleged on the evidence before it. It then has to turn to the evidence in this case. There can be no doubt, in my view, that the defendant got the drugs out of the locked cabinet. There is no doubt that the drugs she got out she did not give to [Mr R] . It seems clear on the evidence to me that both the defendant and Nurse Taninaka made a search, I suppose is the only word you can describe, for the drugs and they were not found. It is clear that an audit of the drugs and register show that there are no other drugs that are unaccounted for, if one can use that term. It is clear that the Court has found that the defendant made a false entry in the drug register. The Court has to take into account the statement of Nurse Taninaka that has been tendered in which she alleges the defendant said, she, the defendant "must have given it to somebody", and when considering that statement I acknowledge that the tribunal of fact has to take into account that that witness was not cross-examined and that must have an effect on the weight to be given to that document. There is clear evidence of the defendant's statements on the, well say the following day, that is 27 December, to the Director of Nursing and others. There are other facts relating to [Ms G's] symptoms and treatment. In regard to that we have got the evidence of Dr Braude and Dr Moynham. That evidence leaves no doubt, in my mind, that Mrs [Ms G] was given MS Contin. When considering that I am mindful that it has been submitted, and it is the case of course, that Dr Moynham in his evidence said that he would expect to see symptoms, someone having been given that drug when they were, I think he used the term "naive". But what is also clear in respect of that evidence to be considered by the Court is that the symptoms come at various times but nobody on 26 December saw any symptoms at all in [Ms G] until she was seen to be in a very distressed state of depressed breathing, such that she was taken to hospital and almost immediately intubated. So that the symptoms had got to an extreme stage at that point and no one had seen anything leading up to it. When you weigh all of those things as a tribunal of fact, in my view there can be no doubt, or more correctly put, there can be no other reasonable hypothesis than that the defendant gave [Ms G] the MS Contin on the morning of 26 December when that medication was not prescribed for her. Clearly, the defendant then, apart from mentioning to Nurse Taninaka that she should keep a watch on people, did absolutely nothing to notify either a more senior nurse, whether it be a more senior nurse on duty or the Director of Nursing, or a doctor of that situation or those facts and she did nothing which would be appropriate in observing the patients under her care, one of whom included [Ms G] , for signs and symptoms which would allow proper treatment at the earliest time. In my view, she hasn't done that, she has neglected to the criminal standard her duty of care. If that is the case the charge against her under s54 is established. 22 The relevant findings were, accordingly, as follows: (a) On the morning of 26 Dec 2000, the plaintiff incorrectly gave MS Contin to Ms G. (b) Adverse symptoms could come on at an early or at a later time. (c) No symptoms were observed until Ms G was seen in a very distressed state of depressed breathing. [That was at about 4.45 pm.] (d) The symptoms had reached "an extreme stage" at that point. (e) No-one had seen any untoward signs until then. (f) The plaintiff told Ms T to keep a watch on the residents. [The plaintiff left at about 3 pm.] (g) Otherwise, the plaintiff did nothing by way of notifying a more senior nurse or a doctor "of that situation or of those facts", or by way of observing the residents under her care, including Ms G, "for signs and symptoms which would allow proper treatment at the earliest time". (h) In so omitting to act, the plaintiff was negligent. 23 Finding (g) was based on the evidence of Ms McCarthy who was another registered nurse employed at the nursing home: Q. You now know the scenario was that the specific patient couldn't be identified? A. I heard some time quite a long time afterwards that that was the case, but if that was the scenario that particular morning I would have again gone to Linda McGuinness, my director of nursing, immediately to her. We would then have had to go wider of course, we would have had to alert the hospitals and the ambulance, but then immediately with the number of residents that would have been concerned, we would have to immediately observe every single one of them closely because there could have been some adverse effects, there could have been some allergy reactions showing up there, there could have been nausea and further down the line, some several hours later, there could have been respiratory distress and pupils could be pinpoint. 24 His Worship was entitled to accept that evidence and it is apparent from finding (g) above that he did. 25 It is not readily apparent what his Worship meant by "that situation or those facts". 26 Although his Worship described Ms G's symptoms as having reached "an extreme stage" when they were first observed, there was no finding that there would have been observable symptoms at a materially earlier time. The relevant finding was that the first symptoms could have come on at an early or at a later time. 27 What then were "the situation or facts" which the plaintiff allegedly failed to notify to a more senior nurse or doctor? That can only have been that the drug had been given mistakenly or was suspected to have been given mistakenly to one of the residents other than Mr R, without further particularity. Conformably, his Worship found that the negligence was a failure to observe other residents as well as Ms G. 28 In the absence of a finding that more intensive observation of the residents would have detected Ms G's condition at a materially earlier time, there was no basis for a finding that informing a more senior nurse or a doctor would have resulted in treatment being instituted for Ms G at a materially earlier time, thereby avoiding the onset of the respiratory depression which constituted grievous bodily harm. Conformably, the learned magistrate made no such finding. 29 The offence was not made out on the findings made by the learned magistrate. In particular, there was no finding of a causal association between the omission as found and the complications constituting grievous bodily harm, and there was no basis for such a finding in the subsidiary findings made by the learned magistrate concerning the events of the day. 30 Additionally, the case found by the learned magistrate was not the case charged. The case charged was that, knowing or suspecting that she had mistakenly given the drug to Ms G in particular, the plaintiff negligently omitted to obtain the appropriate treatment for her to counteract the drug. The case found was that, not knowing to whom the drug had been mistakenly given, the plaintiff negligently omitted to ensure that all the residents were observed for adverse signs so that counteractive treatment could be given if and when one of them showed signs of complications. 31 The appeal should be allowed. 32 I make the following orders: 1. Appeal allowed; 2. Conviction quashed; 3. Direct the entry of a verdict of acquittal. -o0o- Last Modified: 09/30/2002 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.