New South Wales Supreme Court CITATION : R v Davies & Partridge [2005] NSWSC 324 02/03/05 - 04/03/05 08/03/05 -11/03/05 HEARING DATE(S) : 14/03/05 16/03/05 - 18/03/05 21/03/05 - 23/03/05 JUDGMENT DATE : 15 April 2005 Common Law Division JURISDICTION : Criminal List JUDGMENT OF : Kirby J DECISION : Both accused found not guilty of manslaughter. CATCHWORDS : Criminal Practice & Procedure - Judge sitting alone - charge of manslaughter - warnings concerning unreliability - delay in prosecution - criminal negligence - duty of care - whether duty to supervise children - or other adults who interact with children. Crimes Act 1900 LEGISLATION CITED : Evidence Act 1995 Criminal Procedure Act 1986 Longman v The Queen (1989) 168 CLR 79 R v Lavender [2004] NSWCCA 120 CASES CITED : Nydam v R [1977] VR 430 Hahn v Conley (1971) 126 CLR 276 Posthuma v Campbell (1984) 37 SASR 321 Regina Holly Davies PARTIES : Michael Partridge FILE NUMBER(S) : SC 2004/44; 2004/21 R Herps (Crown) Ms B Rigg (Davies) COUNSEL : P Winch (Partridge) Ms A Byrne - DPP (Crown) Nyman Gibson Stewart (Davies) SOLICITORS : Ms B Duchen (Partridge) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST DAVID KIRBY J Friday 15 April 2005 2004/44 REGINA v Holly DAVIES 2004/21 REGINA v Michael PARTRIDGE JUDGMENT ON VERDICT 1 KIRBY: Holly Davies and Michael Partridge are charged with the manslaughter of their child, Brent Partridge. Brent Partridge died on 14 November 1995. He was 18 months old. Ms Davies and Mr Partridge have each pleaded not guilty to that charge. With the consent of the Crown, each has elected to be tried by a Judge sitting without a jury. 2 The matter has, for convenience, proceeded as a joint trial. Although there is overlap, the evidence against Ms Davies is different from that against Mr Partridge. Each case must be considered separately. The broad picture. 3 In defining the issues, it may be an advantage to provide the broad picture. On the evening of 14 November 1995, a matter of hours after their son had died, Ms Davies and Mr Partridge were interviewed by the police. Both were interviewed again in March 1996, that is four months after Brent's death. They were interviewed for a third time several years later, the matter having languished for a time at the Coroner's Court. A comparison between the answers provided by Ms Davies in successive interviews reveals significant discrepancies on matters of detail. The same is true of the interviews given by Michael Partridge. His recollection of aspects of 14 November 1995 had all but vanished by the third interview. The discrepancies in recollection cannot be explained by wilful distortion on the part of the person being interviewed. For the most part, there was no particular advantage arising from the different answers that were given. The changes, rather, were the product of the substantial lapse of time and the fact that Ms Davies and Mr Partridge were each addicted to drugs, which had apparently affected their memories. 4 As a generality, therefore, the account each gave on the night of the tragedy is more reliable. Both spoke to the police at the home unit. Their responses were consistent with the accounts they later individually gave to the police, as recorded interviews that evening. I will use these accounts in providing what I have termed the broad picture. 5 Holly Davies was born on 5 May 1975 at Tamworth. At the time of these events she was 20 years old. Michael Partridge was born on 28 April 1964. In November 1995 he was therefore 31 years old. Both had been addicted to heroin. Both had been admitted to the methadone programme, designed to assist them in overcoming their addiction to that drug. Under the supervision of a doctor, each received a daily dose of methadone from the Bayside Clinic at Kogarah. The methadone was given orally under supervision, or provided as a takeaway dose. A takeaway dose was permitted where the patient had been on the programme for some time and was thought to be stable. They were given in small brown bottles with a childproof cap. 6 Holly Davies and Michael Partridge had known each other for some time. They had been living together at the Nulbaka Caravan Park at the time of Brent's birth in 1994. They later moved to another caravan at the rear of Mr Partridge's parents' home in Cessnock. In 1995 they moved to a unit at 14 Queen Victoria Street, Kogarah. Due to differences between them, however, Mr Partridge only spent a couple of nights each week at the unit. 7 Ms Davies had a friend, Ms Glennis Hollywell. Ms Hollywell was also on the methadone programme and attended the Kogarah clinic. From time to time she looked after Brent, who would stay at her home. In early November 1995, Ms Davies broke her wrist. Ms Hollywell assisted by looking after Brent for at least a week shortly before his death. He was returned on Sunday 12 November 1995. 8 By the time of Brent's return, Holly Davies had invited two people she knew from the clinic, Deanna and Peter Young, to live at the unit. The Youngs were also on the methadone programme. They occupied the second bedroom. Deanna Young and Holly Davies earned additional money as prostitutes or sex workers, working late at night on Canterbury Road, attempting to attract passing motorists. 9 On Monday 13 November 1995, Mrs Deanna Young went with her husband, Peter Young, to the Canterbury Road. Holly Davies either accompanied them or joined them shortly afterwards. She began work at 11.30 pm. 10 Ms Davies returned home at approximately 5.00 am. Brent had been left in the care of Michael Partridge. The two were asleep on the lounge in the lounge room. Ms Davies said that she changed, putting on warm clothes before leaving for the clinic. The clinic was approximately one and a half kilometres away. She walked from the unit, passing Peter and Deanna Young, who were then on their way back from the clinic. 11 The records of the clinic show that Mr Peter Young was given 14 mls of methadone at 6.30 am, which was an oral dose taken at the clinic itself. There is no record of Deanna Young having been given methadone, although she believed that she was (T368). The records of the clinic were demonstrably unreliable in respect of a number of matters, which I will shortly describe. It seems likely that Mrs Deanna Young received a dose of methadone at the clinic at about the same time as her husband, that is, 6.30 am. 12 According to the clinic records, Holly Davies received her dose of 32 mls at 6.54 am. She then returned to the flat. Given that she walked back, she probably returned some time after 7.15 am. By that time Brent was awake. At some time thereafter, Ms Davies sat on the single lounge chair in the lounge room, alongside the door. Brent climbed onto her lap and went to sleep, as did Ms Davies. The circumstances in which that occurred is a matter of some importance and will be closely examined later in this judgment. 13 Peter Young was required to attend the Burwood Local Court at 10.00 am that morning. At some time, probably soon after 9.00 am, he walked with his wife to Kogarah Station to catch a train to Burwood. It is not certain whether his wife then returned to the flat. She believed that she did not. She said that she wandered around the shopping centre, doing nothing in particular. 14 Mrs Young was strongly challenged in respect of that recollection. She was pregnant. She had been out all night working. She had an appointment that day at the clinic to see Dr Rickard. Why, it was asked, would she not rest at home until the time of her appointment? 15 It is unnecessary to resolve that issue. Michael Partridge left the flat some time after 12.00 noon to receive his dose of methadone from the clinic. The clinic records confirm his attendance at 12.45 pm. He said that he came straight home from the clinic. Assuming that to be correct, he probably arrived home at about 1.15 pm. He came back with Deanna Young, which rather suggests that her appointment at the clinic was at more or less the same time (12.45 pm). It is not entirely clear whether Mr Partridge had a key to the flat, or had to bang on the door to wake Holly Davies. The latter seems likely. Ms Davies said that, once asleep that morning, she slept straight through until Michael Partridge returned. When he knocked at the door she got up from the lounge, wrapping Brent, who was still in her lap, in the blanket that had been covering them. She placed Brent on the adjacent double lounge, covering him with the blanket. 16 Michael Partridge had a similar recollection. He believed he had woken Holly. She lifted Brent and laid him down on the lounge, covering him with a blanket (Exhibit J: Q128-129). 17 The issue of whether Michael did or did not have a key, is important only because Deanna Young gave evidence that she came through the door and saw Holly with Brent still in her lap. That recollection cannot be right if, as seems likely, Holly got up from the armchair to answer the door, placing Brent on the adjacent lounge. 18 Peter Young said in evidence that he returned to the unit with his wife and Michael Partridge. He met them by chance on the ramp near the Kogarah Railway Station as he came back from court. He acknowledged that that had not always been his recollection. When interviewed by the police, and when giving evidence before the Coroner, Mr Young said that he arrived separately. Indeed, his wife opened the door for him (T195). Deanna Young gave evidence that she arrived home with Michael Partridge before her husband. He arrived at the unit soon after. 19 Some time after Peter Young's return, Michael Partridge walked from the bedroom to the lounge room to check on Brent and transfer him to the cot, which was in the main bedroom. He noticed immediately that something was wrong. Brent felt heavier than usual. His lips were blue, even purple. He could not find a pulse, nor a heartbeat. He yelled out to Holly, who was in the bedroom. She summoned the ambulance, using the public phone in the shop upstairs. She rang 000. The ambulance received the call at 3.09 pm. Two officers arrived at the unit at 3.12 pm. At the time of their arrival, Peter Young and others were attempting to revive the baby, using mouth to mouth resuscitation. It was obvious to the ambulance officers that the baby was dead and had been for some hours. Rigor mortis was evident. They asked those present to wait outside the bedroom whilst they examined the baby. Shortly after they told Holly Davies and Michael Partridge that their son was dead. The arrival of the police. 20 A number of police attended the unit, arriving soon after the ambulance officers. The senior officer was Det Snr Const Toni Mathewson. She, with Snr Const Parsons, interviewed each of the accused later that evening. Det Mathewson was not called as a witness. She has, through illness, since retired from the Police Service. 21 A statement of Det Snr Const Mathewson was tendered in evidence (Exhibit U). She described the unit as "in a state of disarray". That is an understatement, at least as a description of the main bedroom occupied by Ms Davies and Mr Partridge. Det Snr Sgt Horn, a Crime Scene Investigator, arrived at the unit at 5.30 pm. He took a number of photographs, including photographs of the main bedroom. The main bedroom was utterly chaotic. There were no sheets on the bed. Clothing and other debris was piled on the bed itself. There were tangled articles of clothing and other items strewn across the floor. A baby's bottle was adjacent to the cot. Clothing was hanging over the side of the cot. 22 The kitchen was no better. Det Koutsoufis described the kitchen in these terms: (T31) "Q. What is your recollection of the general state of tidiness of the kitchen? A. It was a shambles. Q. Are you able to say, for example, whether the sink itself had any dishes in it or not? A. Yes, I recall there were items like dishes and cutlery in the sink; maybe even old food." 23 Det Koutsoufis gave evidence that, being aware that Brent was apparently healthy and had unexpectedly died, the police were alert to the possibility that he may have ingested something which was poisonous. They therefore closely examined things that may have been fed to him. They took possession of three baby bottles as well as other items. 24 The police, while still in the unit, obtained accounts from Holly Davies, Michael Partridge and Peter Young as to what had happened that day. A note was made of their responses. Their responses were later incorporated into statements prepared by these officers. Broadly, the accounts each gave were consistent. At that point there was nothing which suggested wrongdoing. Both accused were plainly grief stricken. Holly Davies was described as "highly distressed". She described herself as "freaking out". Mr Partridge sat on the bed, cradling Brent, crying, and sweating profusely. Snr Sgt Horn made a preliminary examination of Brent. He appeared to be a healthy baby. He was well dressed. There were no obvious injuries, a finding later confirmed by the autopsy carried out the next day. After an examination of the premises lasting about an hour, Det Horn formed the view that there were no suspicious circumstances. He conveyed that view to those police still present. It was thought likely that it was a cot death. 25 Dr Lawrence, who performed the autopsy on 15 November 1995, sent a number of samples from the body away for analysis. They included a blood sample and the contents of the child's stomach. The report of the laboratory in February 1996 revealed that the blood of Brent Partridge contained 0.5 mg/l of methadone and the contents of the stomach, 22 mg/kg of methadone, suggesting that the drug had been taken orally. Having received these results, Dr Lawrence reported to the Coroner on 15 February 1996 that the cause of death was methadone intoxication (Exhibit M). 26 Clearly those findings, and that report, put a different complexion upon the death of Brent Partridge and the question of whether there had been wrongdoing. There were only two ways in which an 18 month old child could have ingested methadone. Either he had been deliberately given the drug, or had accidentally swallowed methadone which must have been accessible to him. If he had been deliberately given methadone, the person or persons responsible may be guilty of manslaughter by an unlawful and dangerous act. If methadone had been left lying around, such that it was accessible to an 18 month old child, who may swallow it, then the person or persons responsible may be guilty of manslaughter on the basis of criminal negligence. 27 The police therefore recognised that there was a need to examine the matter again. However, the original investigation suffered from a number of shortcomings. Perhaps because the death did not appear to be suspicious, the examination of the crime scene was somewhat superficial. The crime scene officer did not enter the bathroom of the unit, nor search the second bedroom, which was occupied by the Youngs. He did not believe they were relevant. Although the remaining rooms were photographed, a painstaking examination of the bedroom and the kitchen were not made. There is no evidence that items in the bedroom were lifted to uncover anything that may lie below. Since most of the bedroom was covered with clothing and debris, evidence may have been overlooked. Although the bin in the kitchen was photographed, including with the lid open, there is no evidence that the contents were examined, nor the contents of the sink. 28 Shortcomings in the investigation may have implications in respect of inferences that may be drawn. An investigation that provides a solid bedrock of facts may enable the Crown to exclude more readily possible explanations inconsistent with guilt. Where the facts are simply not known, because they were not investigated, it may be difficult to exclude explanations which are consistent with innocence. 29 Here, there are issues which cannot be satisfactorily resolved because of the rudimentary nature of the investigation. Let me give two illustrations. One obvious way in which Brent may have been deliberately given methadone was by means of methadone being added to his milk as a sedative. The police recognised that. They seized and ultimately arranged to have tested three milk bottles, including one from the bedroom (presumably the bottle in photograph 14). Were other bottles left behind? Ms Davies said that she had many more than three bottles. Mrs Norma Partridge, the mother of Michael Partridge, gave evidence that she went to the flat on the evening that Brent died. She saw the kitchen was in a mess. Wishing to give practical help, she washed up. She said she washed a dozen bottles and put them away, so that the couple would not be reminded of their baby. Neither the evidence of the police, nor the photographs, suggest a dozen bottles. On the other hand, the police statements do not suggest a thorough search of the unit, including cupboards. I am simply not able to say, on the evidence, whether there were additional bottles amongst the debris and dishes in the sink, or perhaps hidden from view in some cupboard. 30 Let me give a second illustration. A number of police said that they saw syringes and takeaway methadone bottles in various places throughout the unit. On the other hand, Det Horn, the crime scene examiner, did not see any syringes or methadone bottles. Mr Owen Partridge, the father of Michael Partridge, saw no syringes, adding, "I'm very positive about that" (T74). The issue may be of some importance, since there is the suggestion, which will be examined below, that both Holly Davies and Michael Partridge, as well as Deanna and Peter Young, were injecting methadone on the morning of 14 November 1995, such that any one of the four may have left methadone accessible to Brent. There is the further suggestion, which will also be examined, that Holly Davies said that she thought she may have lost a barrel, referring to the plastic cylinder which forms part of a syringe in which the methadone is placed. 31 Once the police received the report from the Division of Analytical Laboratories, they made arrangements to interview both of the accused for a second time. Det Mathewson was unavailable by reason of ill-health. The matter was passed to Det Sgt Thompson. Det Thompson and Det Roberts interviewed Michael Partridge on 26 March 1996 (Exhibit K) and Holly Davies on 27 March 1996 (Exhibit G). The accused were told of the analysis undertaken of the contents of Brent's stomach, following autopsy, revealing the presence of methadone which was likely to have been ingested orally. Both denied giving Brent methadone or having knowledge of their partner having done so. Each was asked again to describe the events of that day, as the police explored possible ways in which Brent may have accidentally swallowed methadone. 32 A brief was prepared for the Coroner. On 29 March 1996, the first Inquest was held. It appears the papers relating to that Inquest are no longer available. They were not tendered. Det Kerfoot gave evidence that it was his understanding that the Inquest was not finalised (T320). It was adjourned to allow further investigation. However, the police computer system (known as COPS) was marked as "complete" on 25 November 1996. That entry was verified on 3 July 1997. 33 Plainly that was a mistake. The mistake was not discovered until 2001, when an audit was undertaken by the Glebe Coroner's Court. The Coroner's Court then alerted the Kogarah Police. By then, Det Sgt Thomson was unavailable. He had left the force through illness. Det Roberts had also resigned from the force. Det Neil, from the Kogarah Police, met with the Coroner, Ms Jan Stevenson, on 1 March 2001. It was recognised that further investigation had to be undertaken. 34 The matter was ultimately referred to Det Insp Mayger and Det Kerfoot. A copy of the original police brief was obtained. Matters were identified which required investigation. Experts were asked to comment upon various aspects of the evidence. Witnesses were interviewed, or reinterviewed. In the light of that material, the police decided to interview each of the accused for a third time. Michael Partridge was interviewed on 14 December 2001 (Exhibit L) and Holly Davies on 9 September 2002 (Exhibit H). The consequences of delay. 35 The end result is a prosecution almost a decade after the alleged crime on 14 November 1995. Plainly that is not satisfactory. Inevitably, delay of that magnitude gives rise to unfairness. Evidence that may originally have been available, had the prosecution proceeded in a timely way, has been lost. There are a number of illustrations. First, the 000 call made by Holly Davies was recorded. The recording is erased and the tape reused unless there is a request by the police to preserve it. Here there was no such request. Yet the terms of the call may have been instructive, had the recording been available. 36 Secondly, certain police claimed to remember matters (such as the presence of syringes and methadone bottles in the unit) which they did not include in their statements. When cross examined they said they probably made a note of their observations in their police notebooks. However, many of the police notebooks had been destroyed after six years. 37 Thirdly, the Bayside Clinic, which provided methadone to both accused and to the Youngs, kept certain records. Whilst the drug registers are available (Exhibits E(1) and E(2)), the computer printouts in respect of each patient did not form part of the original police brief and were no longer available. As will emerge below, certain entries in the drug registers were plainly erroneous. They made it difficult to calculate the methadone provided by the clinic to each accused and to the Youngs on 14 November 1995, the day that Brent died. It is therefore difficult to know with any certainty what drugs were available to Ms Davies and Mr Partridge on the day that their son died. 38 Finally, an important prosecution witness in the case against Holly Davies, her brother, Michael Ford, has since died. The Crown seeks to rely upon his evidence at the second Inquest on 5 February 2003. Objection is taken to this evidence on behalf of Ms Davies. I will consider its admissibility later in this judgment. If it is admissible there is, nonetheless, some unfairness in dealing with such evidence as a paper exhibit, rather than having Mr Ford cross examined in the usual way. 39 Quite apart from these difficulties, almost every witness (including police witnesses) complained of the difficulty in remembering events, and the sequence of events, after almost a decade. Cross examination in such circumstances is inevitably more difficult and less effective (Longman v The Queen (1989) 168 CLR 79 at 91). Further, the exhibits collected by the police, when they searched the unit on 14 November 1995, have since been lost. No particular hardship to either accused was suggested, since the test results in respect of such exhibits are available. 40 The Crown suggested, and I accept, that the consequences of delay are ameliorated to a degree by the availability of contemporaneous interviews with the accused and with many but not all of the main witnesses. The time of death. 41 I will later describe the way in which the Crown puts its case against each accused. In respect of Ms Davies, it relies upon certain admissions said to have been made by her which, if accepted, suggest that she deliberately gave her baby methadone, presumably to sedate him. No such suggestion is made against Mr Partridge. However, against both Ms Davies and Mr Partridge, it is said that even if Brent accidentally swallowed methadone, he did so in circumstances where there was criminal negligence on the part of both parents, such that each should be convicted of manslaughter. 42 It therefore becomes necessary to examine more closely the evidence relating to the actions or inaction of Ms Davies and Mr Partridge at the time that Brent may have swallowed the methadone (whether given deliberately or accidentally). Working out the time of ingestion depends upon a determination of the likely time of death. I therefore turn to that issue. 43 There is, in fact, great uncertainty as to the time of death. It is common for a forensic pathologist to attend the scene of an unusual or unexplained death. The pathologist is then in a position to make an examination and assessment of the deceased. Here Dr Lawrence, who performed the autopsy, was apparently not asked to attend the scene. The rectal temperature of the deceased was therefore not taken. The rectal temperature is the most accurate way of assessing the time of death. In the absence of that information, one is forced to rely upon the observations of ambulance officers and others. Their observations may provide the basis for an opinion by a forensic pathologist as to the time of death. The accuracy of that opinion will inevitably depend, in part, upon the experience of the persons making the observations. Here, Dr Lawrence was not prepared to offer an opinion as to the likely time of death. 44 Where, as here, there was no rectal temperature, an estimate of the time of death will depend upon, first, the external body temperature, secondly, the presence and degree of rigor mortis, and thirdly, upon the phenomenon known as lividity. Rigor mortis is the stiffening of the muscles which is progressive over time and ultimately passes with time. Lividity is the settling of blood within the body as the result of gravity. It has a characteristic appearance. When the heart stops, the blood ceases to circulate and sinks to whatever happens to be the lowest part of the body at that time. 45 An ambulance officer, Mr Lyndon Hayward and a colleague, answered the 000 call at 3.12 pm. Mr Hayward examined the baby as it lay on the bed. In the course of the examination he handled the child, although he did not remove his clothing. The baby was obviously dead and had been for some hours. There was evidence of lividity on the abdomen and the interior feet. Rigor mortis was apparent in the legs and arms. The location and degree of rigor mortis is an important clue as to the time of death. Rigor mortis begins in the smaller muscles of the body around the face and in the fingers of each hand. As time passes, it spreads to the larger muscles of the forearms, upper arms and legs. Here, as mentioned, the stiffening had progressed to the legs and arms. 46 Although the ambulance officer did not refer to the body temperature of the baby, a number of witnesses described Brent as "stone cold". Ambulance officer Hayward, who had four and a half years service, offered the opinion that the baby had died "approximately one or two hours prior to our arrival" (T21). According to that estimate, Brent Partridge had died between 1.00 and 2.00 pm. 47 Dr Alan Cala is a forensic pathologist practising in Adelaide. He is a Fellow of the Royal College of Pathologists. He was retained by the Crown to offer an opinion as to the time of death. He was provided with information which included the autopsy report of Dr Lawrence and the photographs taken by Snr Sgt Horn at 5.30 pm on the day that Brent had died. Dr Cala believed that several photographs showed the presence of rigor mortis. The child's right knee was flexed. His right foot was partially elevated off the bed. His hands were above the level of his body. Upon the basis of that information and the observations of others who were present, Dr Cala said this: (T140) "... I would give the time of death, as an approximation, between 9.00 am and 1.00 pm on that day." 48 When cross examined, Dr Cala said that he thought the estimate provided by the ambulance officer was "a little short". He refined his opinion as to the likely time of death as being between 11.30 am and 12.30 pm, although he did not believe, on the information he had, that his estimate could be that specific. It was for that reason that he extended the time a little on either side. The likely time of ingestion. 49 Once the time of death is determined, it is then possible to estimate the time at which the drug was ingested. Methadone is a synthetic opioid analgesic. It operates as a central nervous system depressant. A person who ingests methadone can be expected, after a time, to become drowsy and ultimately to go to sleep. If the amount ingested is what is termed "a toxic level", the brain becomes less effective in sending messages to the lungs to keep breathing. Ultimately, there is complete shutdown. The person ceases to breathe and rapidly dies. 50 Dr William Allender is a forensic pharmacologist. He was provided with material by the Crown to enable him to express a view on the likely time of ingestion. He had access to the autopsy results, to which reference has already been made, which, for convenience, I repeat: · First, the blood sample taken from Brent Partridge contained 0.5 mgs per litre of methadone. · Secondly, the liver contained 0.71 mgs per kg of methadone. · Thirdly, the stomach contents of 27 grams were found to contain 22 mgs per kg of methadone, which is approximately a standard teaspoonful of the drug. 51 That concentration of methadone was within the toxic range for a child of Brent's age. A child may be assumed to be a naive user, that is, someone not used to the drug and therefore without tolerance to the drug. According to Dr Lawrence, the amount of methadone found in the stomach suggested that it had been ingested orally. Were it injected, there would only be a trace of the drug in the stomach (T21). The fact that the drug was found in the gall bladder and the liver, suggested that the physical process affecting the brain and ultimately the lungs had been going on for some time before Brent Partridge died. 52 However, the effects of methadone when ingested are not immediate, even in a child. The drug, once ingested, takes some time to reach its peak in terms of toxicity. Death follows some time after that. Dr Allender offered the following opinion as to the interval between ingestion and death: (T310) First, he would have expected that there would be a delay of about an hour before symptoms such as drowsiness appeared. Secondly, the peak in toxicity would follow a few hours after that, perhaps four or five hours. Thirdly, at that point the system would begin to shut down and death would follow. 53 Dr Allender could not say how long that may take. The presence of methadone in the liver and bile may suggest that it could have taken hours. 54 In summary, Dr Allender, with some hesitancy, thought that the interval between ingestion of the methadone and death would be five hours or thereabouts. His hesitancy arose from the fact that the victim was an 18 month old baby, whereas the literature dealing with the effects of methadone once ingested is concerned with adults. 55 Combining the opinion of Dr Allender with that of Dr Cala, if the time of death is taken to be 11.30 am to 12.30 pm and ingestion is approximately five hours before that, then ingestion must have occurred between approximately 6.30 am and 7.30 am on 14 November 1995. 56 That conclusion must be heavily qualified. It is the product of two issues (namely, the time of death and the time of ingestion) which themselves are uncertain. That uncertainty may ultimately be relevant when considering whether, against either accused, the Crown has proven its case beyond reasonable doubt. The Crown suggested and I accept that, taking account of that uncertainty, the realistic time span for the ingestion of the methadone was between 6.30 and 8.30 am. The relevance of herpes simplex. 57 Before moving to the way in which the Crown puts its case, I should deal with one other aspect of the medical evidence. It was apparent on autopsy that Brent Partridge had an upper respiratory tract infection as well as cold sores and gum and mouth inflammation. Dr Lawrence, on autopsy, took samples which were then cultured. The sores on the face and lips were identified as Herpes Simplex Type 1, a viral infection. 58 Dr Alison Kesson, a paediatric physician specialising in micro-biology, was shown the photographs taken of Brent Partridge on autopsy and other material. She expressed the view that he was suffering from a primary infection, that is, he had recently been infected for the first time. The first infection is likely to be extremely painful. It is likely to give rise to more symptoms than subsequent outbreaks. Dr Kesson would have expected that a child of 18 months, with a primary herpetic infection and gum and mouth inflammation, would be irritable and may suffer from disturbed sleep. There is, in such a child, a risk of dehydration. He would probably not want to eat, although milk would be far less irritating than anything acidic such as fruit juice. A baby so infected could be expected to be "clingy", requiring a lot of cuddling and holding. The symptoms, once they appear, could be expected to last for seven to ten days. The baby would be likely to be miserable for at least several days. Three alternatives on the Crown case. 59 Moving from the medical evidence to the way in which the Crown puts its case, the Crown identified three alternatives. It suggested they were credible explanations for the way in which Brent Partridge ingested a teaspoon of methadone on the morning of 14 November 1995. The alternatives were as follows: · The first alternative was directed against Holly Davies. It was suggested that, within an hour of Ms Davies returning from the Bayside Clinic, she fed Brent a teaspoonful of methadone as a means of sedating him. Were that alternative accepted, or even were it recognised as a reasonable possibility, Michael Partridge would be entitled to be acquitted. · The second alternative relied upon certain admissions said to have been made by Holly Davies. It was alleged that she admitted, after Brent's death, that she "lost a barrel". A barrel is a syringe of methadone. On the Crown case, it can be inferred that Brent found the barrel and sucked the contents from it. Although it was Holly Davies who was said to have lost the barrel, both accused, according to the Crown, had created the situation in which such a mishap could occur. As parents they were criminally negligent. · The third alternative is a variation on the second. Again it is directed against both Ms Davies and Mr Partridge. The methadone provided in takeaway bottles by the clinic is a syrup. It is mixed with water. If it is not mixed, it causes a burning sensation when injected or ingested. The methadone is often mixed with water in a cup or some other container. Here the Crown alleges that a cup was used and that a residue of methadone was left in the cup, which Brent drank. According to the Crown, both parents had been criminally negligent. 60 It is convenient to consider the Crown case against Holly Davies first. I will examine each alternative, beginning with the suggestion that Ms Davies deliberately gave Brent methadone in order to sedate him. I will then deal with the case against Michael Partridge. Holly Davies: The first alternative. 61 The Crown case in respect of the first alternative substantially depends upon the evidence of two witnesses who claimed to have heard Holly Davies admit that she deliberately gave methadone to Brent. The first was Kathryn Adams and the second, Michael Ford, the brother of Holly Davies. As mentioned, Michael Ford is dead. The Crown seeks to tender a deposition of the evidence before the Coroner on 5 February 2003. Objection is taken to the evidence. I will deal with the evidence, including the objection, shortly. 62 Before I do so, however, it may be useful to describe more completely what happened at the flat in the interval which can now be seen as critical, that is, between 6.30 and 8.30 am, when it is likely that Brent ingested the methadone. The evidence relating to that period furnishes the context within which each of the alternatives must be considered. 63 It will be remembered that Holly Davies arrived home from the Canterbury Road at about 5.00 am. Brent and Michael were asleep on the lounge. She changed into warm clothes and went to the Bayside Clinic. The records of the clinic show that she was given 32 mls of methadone at 6.54 am. She was also given a 32 ml takeaway dose in a bottle with a childproof lid. 64 Ms Davies said, in her account to the police, that as she walked to the clinic she passed Deanna and Peter Young, who were on their way back from the clinic. The records of the clinic show that Peter Young received a 14 ml dose of methadone at 6.30 am. They do not record that Deanna Young also received a dose. Nor do they record that she received two takeaway doses, although the register showed that two had been prepared for her that day. According to Ms Grigg, who now works at the clinic, the records suggested that the takeaway doses had been returned to stock. 65 Mrs Young, on the other hand, said that she had received an oral dose that morning and the takeaway doses as well. The methadone programme required that she receive a dose of methadone each day. The records show that she did not receive methadone on the two days following 14 November. Counsel for Ms Davies, in these circumstances, suggested that the records for 14 November were wrong. I agree. Since Mrs Young was at the clinic on two occasions on 14 November, in the morning at 6.30 and at midday, it seems unlikely that she was not given the drugs which she required and which had been prepared for her. 66 Therefore, Holly Davies and Deanna Young each took back to the unit a number of takeaway bottles. Holly Davies consistently said that the rent paid by the Youngs was paid in methadone. Although that allegation was denied by Mrs Young, I think it likely that it was true. There was apparently a market in methadone, as in other drugs. Ms Davies explained that sometimes she and Michael Partridge would buy methadone cheaply, setting it aside for a "rainy day" (Exhibit G: Q346). She was on a single mother's pension. She had additional income from her work on the Canterbury Road, so that there was money available to buy, amongst other things, methadone. 67 Ms Davies probably arrived back at the unit at about 7.15 am. Brent was awake. He usually woke up at about 6.30 am. He was in the habit of having a morning sleep at about 10.00 am. 68 Once in the unit, Holly Davies and Michael Partridge shared a 32 ml takeaway bottle of methadone. In her second interview, Ms Davies said this: (Exhibit G) "Q122 What happened when you came in? A I, Michael and I shared one of my takeaways. Q123 Was that normal practice? A Yes. .... Q124 How did you share it? A Oh, well, there's 160 mils each. We would have 80 mils each intravenously." 69 Ms Davies added that the syringes were disposed of in yellow bins provided by the needle exchange, which were kept in the spare room on top of the wardrobe (Q126). She described the process of mixing the methadone before it is injected, in these terms: (Exhibit G) "Q85 Now, what was the, what was the process of mixing up your methadone to prepare it for drinking or for taking? A To drink it, just tip it into a cup or otherwise if it was used intravenously, just, just tipped straight into a, a syringe." 70 Attached to the barrel of the syringe was a device known as a "butterfly". It consisted of a length of tubing with a needle at the end. Incidentally, Michael Partridge, in his third interview, gave a similar account of having injected methadone that morning. Deanna Young, in her evidence, stated that she saw Holly Davies and Michael Partridge injecting methadone that morning after they returned from the clinic. The methadone was injected in the lounge room. Brent, meanwhile, had a cupboard in the lounge room with his toys . According to Ms Davies, he played with his toys whilst she and Michael injected the methadone. 71 There is a suggestion, which I will later return to, that at the same time as Holly Davies and Michael Partridge were injecting methadone in the lounge room, Deanna Young and Peter Young were likewise injecting themselves in the lounge room. I will deal with that suggestion when examining the third alternative put forward by the Crown. 72 After Brent's death, Holly Davies spoke to Det Mathewson at the unit. She described her interaction with Brent that morning in these terms, as set out in Det Mathewson's statement: (Exhibit U) "8. When she returned Brent was awake and she played with him for a while and Michael gave him a bottle. He then crawled up onto her lap and she placed a blanket over them both and they fell asleep. Holly was sitting upright in a single chair and Brent was laying with his head near her knees." 73 Ms Davies told Det Mathewson that she woke up at 1.00 pm. The medical evidence suggests that Brent was, by that time, already dead. It is not suggested that Ms Davies had any appreciation of that fact. The account she gave later that evening, in the recorded interview, was consistent with the description she had provided to Det Mathewson at the unit (Exhibit F: Q118). Ms Davies added that normally she gave Brent a cup of juice and his Weetbix for breakfast. 74 The second interview was conducted on 27 March 1996, once it was known that Brent had died of methadone intoxication. Holly Davies denied having given Brent methadone. She described what happened after she got back from the clinic at 7.00 or 7.30 am in these terms: (Exhibit G) "Q136 O.K. What happened after that? A. Brent, I just played with Brent for a while and he seemed fine, and sometime later Michael made him a bottle and I sat on the lounge with him and gave it to him and we both fell asleep. Q137 O.K. What sort of bottle, what was in the bottle? A. Milk." 75 Ms Davies said that she had not been aware of ulceration in Brent's mouth. He did not cry (Q152). Incidentally, Ms Davies, in her first interview on 14 November 1995, provided the following description of Brent that morning before he went to sleep: (Exhibit F) "Q140 ... You didn't hear Brent making any unusual noise or anything like that? A No, he was fine. He was just like usual, you know. Like, he got - he wasn't, like - he didn't seem dopey, you know, or uncoordinated or anything like that. He'd just done the normal thing, you know, came and sat with me, you know, and he's - in the morning he's really affectionate, you know. And - and we sat there for a while and then the next thing --- Q141 You fell asleep. A --- we just fell asleep." 76 Ms Toni Single gave evidence relevant in this context. She is a Senior Clinical Psychologist presently working with the Ombudsman's team reviewing child deaths. She has 29 years experience in child and family mental health. She is an expert on child behaviour. Her evidence has some importance in the context of the second alternative, the supposed lost barrel. 77 However, Ms Single gave evidence which was also relevant to the first alternative. Articles written in various psychological journals have suggested that there is a risk, in a small number of cases, that, where parents are drug addicts, they may use methadone to sedate or quieten their baby (T127). In her work reviewing child deaths, Ms Single has come across a number of such cases, although admittedly not many. 78 Here, the evidence suggested that Brent had a reasonable night's sleep the night before he died. He went to bed reasonably early and slept more or less straight through. In those circumstances, Ms Single said that you would have expected Brent, as an 18 month old baby, to be awake for a number of hours before going to sleep again (T126). The circumstantial case. 79 The Crown, in effect, relies upon a circumstantial case as providing the context within which the admissions alleged to have been made by Holly Davies should be assessed. 80 Holly Davies had been working all night as a prostitute or sex worker. She was tired. Brent, having woken at 6.30 am, usually remained awake until about 10.00 am, a pattern conforming to the expectations of the expert, Ms Single. Brent, as revealed at autopsy and shown by autopsy photos (Exhibit A), was suffering from a primary herpes simplex infection, as well as gum and mouth inflammation. Such a condition is extremely painful. You would expect a child suffering from that condition to be clingy and demanding. Ms Davies, indeed, described Brent in her first interview as going through "a clingy stage" (Q72). Both parents were addicted to drugs. They were on the methadone programme and therefore fell within a class of persons at risk, in a small number of cases, of using methadone to sedate their child. The description of that morning, provided by Ms Davies, suggested that within a relatively short time of waking up, Brent again fell asleep. He then remained asleep until he died. That is consistent with having swallowed methadone that morning. The fact that he swallowed methadone does not, of course, establish how that came about. 81 I should advert to a further matter, which is relevant in this context. Methadone has an unpleasant taste. One witness likened it to kerosene. The obvious way to disguise or overcome that taste would be to include the methadone in the baby's bottle. Here Ms Davies has consistently described a sequence which included Brent having a bottle before he went to sleep. The police, upon arrival at the unit, seized three bottles and a number of other items. Whilst it is possible that there were other bottles at the unit, the description the police provided of the location of the bottles taken, suggested that they were in areas inhabited by Brent and his parents that morning. The police also seized a cup which contained a brown residue. All were tested, yet there was no trace of methadone or any other drug. The evidence of Kathryn Adams. 82 Let me now turn to the evidence of Kathryn Adams, the first of the witnesses relied upon by the Crown. Ms Adams formerly had a relationship with David Ford, Holly Davies' brother. David Ford is the father of Kathryn Adams' daughter. It was in the context of David Ford that she met Holly Davies. 83 Ms Adams was called by the Crown. She related the circumstances in which she was first interviewed by Det Kerfoot. She said he asked whether she knew if the parents of Brent had given him methadone. She said that she did not. She added that the only information she had was second hand. 84 Ms Adams was then cross examined by counsel for Mr Partridge. She described a visit she made with Holly Davies to Brent's grave. She did not specify a year but one gathered that it was some years well after Brent's death. She said that both she and Holly were in an emotional state. The following was put to her: (T240) "Q. Holly also said, didn't she, words like this: 'I don't know if I left my done on the ground or done and bottle on the ground or if Brent got it and it was Michael's fault.'? A. I don't know whether she pushed the blame onto Michael, but she did say she didn't know if it was Michael's or she didn't know whose it was. There was other people that were staying at the flat. It wasn't just Holly that was using the methadone." 85 Ms Davies added that she was not sure whether it was her methadone or someone else's. 86 Ms Adams was familiar with the taste of methadone. It was her description that it tasted like kerosene. She could not accept that a baby would drink it. She therefore pressed Holly Davies for an explanation. According to the statement she made to the police in 2002, Holly gave the following account: (T240) "... Michael had gone out for the day and it was Michael's son's birthday', and when that happened she, Holly, was angry and upset. She wanted to have a rest. 'The baby wouldn't rest and that's why I gave him some done to get him to sleep.'" 87 Ms Adams acknowledged that she used these words in her statement to the police. Indeed, she gave that evidence to the Coroner. But the evidence was wrong. She said she got mixed up in her evidence (T247). The account which she gave to the police was, in fact, the second hand information she had referred to. It was information given to her by a blond woman (whose name she could not remember) at the Cessnock Court. Although in her statement she attributed those words to Holly Davies, the words were not spoken by Ms Davies. 88 Ms Kathryn Adams added, when cross examined by counsel for Mr Partridge, that what she meant to say was that Holly, at the graveside, said that she had given Brent a small amount of methadone just to calm him down (T241). He was teething and in pain. 89 Ms Adams was then cross examined by counsel for Ms Davies. She acknowledged that she had not previously suggested that Holly Davies had given Brent methadone for teething pain. She had not said that to the police, nor to the Coroner. Indeed, as set out above, her account to the police and to the Coroner was entirely different, although in terms which she now acknowledged were wrong. In these circumstances counsel put the following question: (T250) "Q. I suggest to you that what you have said today about the teething problems and that being the reason why Holly indicated she had provided the methadone, that that's not correct either? A. Well, I think it's correct but you could be right." 90 A statement was tendered from Snr Const O'Sullivan (Exhibit V). The statement recorded Ms Adams' words when she first spoke to the police about Holly Davies. At that time she was complaining about David Ford and his conduct towards their daughter. In that context she said to Const O'Sullivan these words: (Exhibit V) "8. ... 'They are all drug fucked, they kill their kids with drugs.' I said, 'What did you mean by that, they kill there kids with drugs?' She said, 'Holly, she put methadone in her babies bottle to stop him from crying and killed him.' I said, 'Who's Holly?' She said, 'She's from up your way and there is a coroners investigation into the death, all the Prices know about it.' I said, 'Holly who?' She said, 'Holly Davies. David lost his baby a couple of months ago probably because of drugs too.' 9. I said, 'Who told you she put methadone into the babies bottle?' She said, 'She did, I was just talking to her and she told me. I don't know what the big deal is. She's told heaps of people.'" 91 Const O'Sullivan made the statement incorporating these words immediately after the conversation. He passed the information to Det Kerfoot who then interviewed Ms Adams. 92 That account is completely at odds with the evidence ultimately given by Ms Adams in this Court, as set out above. It is yet another version. 93 Ms Adams is a witness who must be approached with some caution. Her evidence may be unreliable. Not only is she relating confessional evidence some years after the confession is said to have been made (s165(1)(a) Evidence Act) but, on her own evidence, she has an association with drugs, which may have affected her memory (s165(1)(c)). Ms Adams said that at one time she had been addicted to marihuana. She takes certain prescribed drugs, including a strong morphine based drug for pain. At one point, during her evidence, she said her memory was "hopeless" (T252). 94 I cannot accept, even at the level of probability, that Ms Davies said the words attributed to her by Ms Adams. I can accept Ms Davies speculated at the graveside on various possibilities, including that she or someone else "left their methadone ... on the ground". The conversation between Ms Adams and Ms Davies took place many years after Brent's death. I think by that stage Ms Adams was closer to the mark when, in her evidence, she volunteered the following comment: (T254) "I think Holly doesn't even know what happened." 95 That observation, incidentally, is inconsistent with the admission attributed to Holly Davies by Ms Adams. The admission presupposes that Ms Davies did know what happened. The evidence of Michael Ford. 96 Let me then turn to the evidence of Michael Ford, the brother of Holly Davies. Mr Ford made a statement to the police on 4 February 2003, more than seven years after Brent's death. The statement was served on the solicitor for Ms Davies the following morning, shortly before Mr Ford gave evidence before the Coroner. He was then cross examined by the solicitor for Ms Davies. 97 Mr Ford died on 20 June 2004. The Crown, in these circumstances, relies upon s285 of the Criminal Procedure Act 1986 which, subject to a discretion, allows the depositions of evidence from a witness who has since died to be tendered in evidence. Objection is taken to the tender. It is acknowledged by counsel for Ms Davies that the formal requirements for admission under s285 have been met. It was submitted, nonetheless, that, as a matter of discretion, the evidence should be rejected, both under s285 and under the more specific provisions of s90 of the Evidence Act 1995. The latter provision gives the Court a discretion not to admit evidence of an admission where, having regard to the circumstance in which the admission was made, it would be unfair to the accused to use that evidence. 98 Before addressing the issue of admissibility, I should examine what Mr Ford has said to the police at various times since Brent's death. The accounts he gave the police include hearsay. Nonetheless, it is instructive to examine what was said. Michael Ford first spoke to Det Toni Mathewson on 6 May 1996, that is, six months after Brent's death. Det Mathewson recorded their conversation in her statement in these terms: (Exhibit U) "27 ... He told me that he had spoken to Holly lately and had also helped set her up in a flat. During their conversations he said Holly told him that her and Michael Partridge would often inject their methadone takeaways via an intravenous/butterfly injection. She also said that sometimes she would fall asleep immediately afterwards and was concerned that maybe Brent had picked one of these devices up and consumed the methadone this way." 99 It will be remembered that Det Mathewson became ill. She passed the matter to Det Thompson. Det Thompson, in his statement of 4 September 1996, referred to further a discussion with Michael Ford. In context, it appears that the discussion took place some time after 28 June 1996. Det Thompson said this: (Exhibit D on the Voir Dire) "35 I have interviewed the deceased's uncle, Michael Ford. He told me that Holly Davies had admitted to her sister and brother David and Sonia Ford that she had put methadone in Brent's feeding bottle on the day of his death. He would not supply a statement in relation to this information." 100 The investigation having revived in 2001, Michael Ford was again interviewed. He signed a statement dated 4 February 2002, to which reference has been made (Exhibit C on the Voir Dire). The statement left obscure his motivation in providing evidence against his sister. It spoke of a rift in the family, although his enmity appeared to be directed towards his brother, David Ford, rather than Holly Davies. He purported to describe conversations with Holly Davies within weeks of Brent's death. She was, at that time, living in Dee Why at the same block of flats. He stated that she provided a "few versions of what happened to Brent". He said this: (Exhibit C on Voir Dire) "9. ... One of those versions was that she believed that Brenty could have sucked the methadone out of a butterfly clip, which has a long piece of hose and could contain an amount of methadone. I dismissed that idea and became suspicious of her because of my knowledge of drug taking that its just impossible that an 18 months old baby would be able to do that, not to discount that he would prick his finger with the needle while doing that." 101 Mr Ford was a heroin addict for many years. He was later admitted to the methadone programme. He had a lengthy criminal record in respect of drug related crime. It ran for 43 pages (Exhibit B on the Voir Dire). He had spent a good deal of time in gaol, having been convicted of serious offences. Although the Crown suggested, relying upon his chronology, that by 1995 Mr Ford was not taking heroin, his criminal record would suggest otherwise. I am not confident of Mr Ford's recall of dates concerning his addiction. 102 Returning to Mr Ford's statement, he then referred to a further conversation with Holly Davies "a few weeks later". She was, at the time of the conversation, "drug affected". She had injected methadone and heroin. She had also taken rohypnol pills. In his deposition before the Coroner, Mr Ford elaborated in these terms: (T13) "Q. Sir would you agree that at the time that Holly was talking to you did she sound genuine? A. She was very, very intoxicated and drug-affected, as I've said, but she was very confused and what she did say to me that night I took as how it was said to me but the next day she did not remember telling me that. It wasn't in her mind that happened and even to this day it is still not in her mind that that happened." 103 Counsel for Ms Davies submitted that the drug affected condition of Holly Davies would, in terms of s90, make it unfair to use evidence of this conversation against her. Elsewhere in his deposition, Mr Ford made an observation similar to that made by Kathryn Adams: (T13) "Q. And what was that conversation about? A. Well she was very upset with her son dying. I mean she, you know, she had three different accounts of what happened and it may well be the case she doesn't even know fully what happened . I'm just here today to try and help her get some closure to her baby's dying." (emphasis added) 104 The conversation related by Mr Ford occurred at midnight. According to his account, it included the following: (Exhibit C on the Voir Dire) "19. She said, 'The little bit of methadone I gave him, I didn't think it would hurt him, just ease the pain that he was in.' 20. Obviously from that I thought she had given him that before. I said, 'Have you given Brenty methadone before?' 21. She said, 'No. I have been out working all night on Canterbury Road and arrived home about 6 or 6.30 am in the morning. I had my shot of methadone and heroin, and the next thing I knew was that I woke up at 1pm and Brent was still in my arms, but he was dead.'" 105 Mr Ford said that the next day he endeavoured to have Holly repeat, in front of his girlfriend, Sandra Foreman, what she had said the previous evening. Mr Ford's statement was in these terms: (Exhibit C on the Voir Dire) "30. ... Holly became aggressive verbally and stated, 'I didn't say anything of the sort, you're making that up.' I said, 'Holly, you did say that last night, I came back to my unit and told Sandra, what you said, why would I make that up?' Holly said, 'I don't know.' She walked out of the kitchen, down the drive and back to her unit." 106 Sandra Foreman gave evidence that she remembered Holly Davies coming to live at Dee Why after Brent died. She recalled an occasion where Holly spoke about Brent. Ms Foreman described that conversation as follows: (T353) "Q. Can you now repeat for us what it was that Holly Davies told Michael and you that had happened? A. To the best of my knowledge she said she had been out working all night, came home and got the baby and gave him a bottle and woke up later and the baby was dead." 107 According to Ms Foreman, the only thing that Michael Ford said was "that it would all work itself out in the end". By inference, no scene of the sort described by Mr Ford occurred in the presence of Ms Foreman. She added that Mr Ford never mentioned to her privately that Holly Davies had said anything to him about Brent and the cause of his death (T353). 108 The revelations made by Mr Ford in his statement to the police of 4 February 2003 were new. At the Inquest the following day, Mr Ford answered questions from the Coroner as follows: (T16) "CORONER: Q. So it's fair to say in 1996 you spoke about aspects of what Holly had told you but not the bit you've told us about today, is that right? A. That's right. Q. You spoke about some things, like falling asleep? A. Yes. Q. But not the bit you've told us today? A. No." 109 When cross examined, he provided the following response: (T33) "A. Okay, let's just cut to the chase, what you're trying to get at is why didn't I tell the police what Holly had told me that night and the reason why is because she had denied and not remembered that she had said it, so I don't know if she made that up or was in Dixieland or talking to the wall." 110 Plainly, any evidence of Mr Ford must be approached with some caution. He purports to recount a confession by repeating a conversation more than seven years after it occurred (s165(1)(a)). It can be inferred that he was, at the time, himself affected by drugs (cf s165(1)(c)). 111 However, apart from these matters, even were his evidence admissible, which I am prepared to assume, I have no confidence in the account that he has provided. He has spoken to three police officers, including the officers who took the statement in February 2002. The versions he has given on each occasion have been very different. The most recent version is far removed in time from the event which he claims to recall. I cannot accept as reliable the account he has provided. Assuming his evidence were admitted, and taken in the context of the circumstantial case, I could not be satisfied beyond reasonable doubt that Holly Davies deliberately administered methadone to her baby, Brent Partridge. 112 I therefore reject the Crown's first alternative. Holly Davies: The second alternative. 113 The second and third alternatives are based upon the crime of manslaughter by criminal negligence. The context, in the second alternative, are the admissions said to have been made by Holly Davies that she lost a barrel of methadone. The third alternative presupposes that the methadone swallowed by Brent on 14 November came from a cup which had been left lying around, and accessible to him. In respect of both alternatives, the Crown case is directed against Holly Davies and Michael Partridge. At the moment I am considering the evidence against Holly Davies. 114 Before going to the evidence, I should say something about the elements of manslaughter by criminal negligence. Until the recent decision by the Court of Criminal Appeal in R v Lavender [2004] NSWCCA 120, the elements could be identified with some confidence. That decision, which is presently on appeal to the High Court, identified the need, hitherto unrecognised, for the Crown to prove that the act or omission of the accused was "malicious" within the meaning of s5 of the Crimes Act 1900. Leaving Lavender to one side, for the moment, the elements of manslaughter by criminal negligence require the Crown to establish a number of things. First, it must prove that the accused, as the parents of Brent, owed him a duty of care. Secondly, it must prove that there was, on the part of one or other or both parents, a breach of that duty. Thirdly, the Crown must prove that the breach of duty caused or accelerated the death of their child, Brent. Fourthly, the Crown must satisfy the requirements succinctly stated in Nydam v R [1977] VR 430 at 446, namely: "In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment." 115 So far as the duty of care owed by parents to their children is concerned, there is a useful analysis provided by Professor Stanley Yeo in an article, "Am I my Child's Keeper? Parental Liability in Negligence" (1998) 12 AJFL 150. The article includes a commentary upon the High Court authority of Hahn v Conley (1971) 126 CLR 276, as well as more recent South Australian decisions. 116 In Hahn v Conley, a three year old child was injured by a negligent driver. The injury occurred when the child was crossing a country road outside her grandparents' house. The child was being looked after by her grandparents for the weekend. She left the house unnoticed and called out to her grandfather, who was talking to a neighbour by the side of the road. The grandfather answered, "I am over here". The child then crossed the road and was struck by a car driven by the defendant driver. An action for damages was commenced on behalf of the child. The defendant driver claimed contribution from the grandfather, asserting that he had supervision and control of the child and had failed to prevent her from wandering onto the road. 117 The trial Judge determined that both the driver and the grandfather were negligent. By majority (Barwick CJ, McTiernan and Windeyer JJ; Menzies and Walsh JJ dissenting), the Court held that the grandfather was not negligent. Professor Yeo argues that those in dissent did not differ from the majority in respect of the principles relating to the duty of care. The Court held (most clearly in the judgment of Barwick CJ) that a parent or person standing in loco parentis to the injured child does not owe a legal duty of care to take positive acts to protect the child. 118 As explained by Professor Yeo, two significant propositions emerge from the judgment of Barwick CJ, namely: (at p3) "The first is that Barwick CJ drew a distinction between omissions and commissions or acts. It is only in relation to omissions that a parent does not owe a legal duty of care to her or his child. In relation to acts by parents which posed a danger to their children, parents like anyone else, are under a legal duty to take care to protect children under their care from being harmed by the danger. The second proposition is that the non-recognition of a duty of care in respect of omissions is restricted to parents or persons standing in loco parentis to the injured child. Custodians of children who cannot be properly described as standing in loco parentis to the child owe a duty to take positive steps to protect children under their care from harm." 119 Professor Yeo argues that, what may at first appear to be a surprising conclusion, is based on good sense and sound reasons of public policy. He pointed to the difficulty in determining a recognised standard of care of parental supervision and the unduly onerous burden on parents to supervise their children every moment of the time when they are under their care. In almost every case, an accident could have been prevented by more intensive supervision. Underlining the dilemma, Jacobs J in Posthuma v Campbell (1984) 37 SASR 321, said this: (at 329) "To assert that the duty is absolute and unqualified, and that only the breach of that duty, as distinct from the existence of the duty, is to be determined by what is reasonable in the circumstances, represents to my mind a wholly unacceptable intrusion of the law of negligence into family and domestic relationships. It would impose a fetter on parental judgment and discretion, presumably by reference to some imaginary norm." 120 His Honour added: (at 329) "Some parents might choose to be highly protective, others might accept that their children will get hurt, or hurt themselves, as a necessary part of the child's development. Parents may well have a different perception of their duty as between individual children in the same family." 121 Professor Yeo suggested, and with some plausibility, that Barwick CJ's two propositions in Hahn v Conley (supra) effect an attractive compromise in not recognising a parental duty of care for "omissions" while imposing a parental duty in respect of "commissions" (at p5). 122 Of course such a distinction means the Court must characterise the parents' conduct as either an act or omission. If parents were to leave a loaded gun accessible to a child and some time later the child were to find the gun and injure himself or someone else, does the injury to that person come about through the act of the parents in leaving the gun lying around, or by an omission to supervise the child? 123 The distinction is perhaps more important in the context of the Crown's third alternative. In respect of that alternative, one of the primary factual issues, as I would see it, is whether there is a reasonable possibility that, on the morning of 14 November 1995, Peter and Deanna Young also injected methadone whilst in the lounge room, at more or less the same time as Holly Davies and Michael Partridge injected methadone. I will review the evidence in respect to that possibility shortly. If, on the evidence, that is a reasonable possibility, then the residue in the cup used to mix the methadone, may be that of the Youngs' rather than that of either accused. If that were so, then Holly Davies and/or Michael Partridge could only be responsible, as parents, if their duty of care extended not only to the supervision of their child, but to the supervision of the Youngs. The failure, if there was one, was an omission, not an act. On the authority of Hahn v Conley (supra), it would appear that there would be no duty owed by the parents to safeguard their child against the actions of others who may be negligent. I might add, as will emerge below, there was no basis for concluding that the two couples, although in the same room, were acting jointly, as opposed to individually, as couples. 124 Let me return to the second alternative and the way in which the Crown puts its case. The Crown points to the joint actions of both parents in sharing methadone that morning, which they each injected. Injecting the drug directly into the blood stream produces an immediate effect, whereas there is a delayed effect if the drug is taken orally. Once taken, after an interval, the drug induces sleep where the person is obviously incapable of supervising the child. Each takeaway bottle with 32 mls will create a number of syringe barrels. It was therefore foreseeable, according to the Crown, that a person injecting may fall asleep before all barrels had been used. If that were to occur, unless care were taken, an unused barrel may become accessible to an unsupervised child. I am prepared to assume, on those facts, that the preparation of the barrels is an act, such that there is a duty of care on both parents towards the child. Harm is foreseeable unless care is taken. 125 I should, in this context, refer to the evidence of Ms Single, the expert psychologist. I have earlier described her qualifications and background. Ms Single examined the possible ways in which a child may ingest the contents of a syringe if it were left lying around. She conducted a number of experiments with an 18 month old baby before reaching her conclusions. Her evidence can be distilled into a number of propositions. · First, the breach of duty alleged involved a 20 ml syringe barrel full of methadone and water, without any attachment. A child could not ingest methadone if the butterfly and needle were still attached to the syringe. · Secondly, a child of 18 months provided with a syringe barrel, filled with liquid such as Ribena, did not have the ability to hold the barrel in his mouth and push the plunger. That is a complex action. It requires greater organisation and sophistication of motor skills than an 18 month old child possesses. In the experiment conducted by Ms Single the child was incapable of performing that task, even where it was repeatedly shown to him. · Thirdly, a child of that age nonetheless is quite capable of sucking the contents of a syringe through the hole in the end. The child in Ms Single's experiment did so, thereby removing half the contents of Ribena. He then lost interest. Ms Single thought the child could have obtained the rest, had he been motivated to do so. 126 Here the Crown asserts that the method which was used, when injecting methadone, involved mixing the contents of the takeaway bottle with water, creating at least four barrels of the mixture. Two were for Ms Davies and two for Mr Partridge. The Crown case presupposes a barrel with foul tasting methadone. To account for the methadone in Brent's stomach, one must also presuppose that Brent sucked out the whole of the contents. That would require some effort. Given the taste of methadone, that may suggest this alternative is rather less probable than the third alternative. The third alternative, it will be remembered, assumes a residue in a mixing cup, picked up by Brent and accidentally swallowed. If the third alternative furnishes a more probable explanation than the second, it may be difficult to be satisfied beyond reasonable doubt as to the second alternative, whatever view one reached concerning the admissions allegedly made by Holly Davies. 127 However, I will not confront that issue until I have examined the evidence concerning the lost barrel. The evidence came from two witnesses, Ms Alex McFarlane and Mrs Deanna Young. I will deal with each in turn. The evidence of Ms Alex McFarlane. 128 Ms Alex McFarlane is a mature woman who was once a drug addict. She was addicted to heroin. She accumulated a significant criminal record whilst so addicted. She was later admitted to the methadone programme. One gathers that she has since managed to wean herself off methadone. It is not entirely clear what the position was in 1995. One gathers that she was, at that time, still taking methadone and attending the Bayside Clinic. She had attended that clinic for a number of years. Through that clinic she met Holly Davies and others involved in this trial. She lived a short distance from the flat of Holly Davies in Queen Victoria Street. She had known Brent since birth. 129 Ms McFarlane gave evidence that, on 14 November 1995, her daughter came home from school. She told her that Brent had died. She had heard the news in the shop above the unit in which Holly Davies lived. She told her mother that it was cot death. Her mother rushed to the flat which was only three and a half minutes away. The police and the ambulance officers were at the premises. Holly was seated in the single armchair just inside the door. 130 Ms McFarlane said, in her evidence in chief, that she knelt in front of Holly. She placed her hand on her knee. She asked her what had happened to Brent. According to her testimony, Holly Davies responded with these words: (T261) "A. ... she said she came home from work that morning, she was tired, Brent had climbed up onto her lap to give her a cuddle and she fell asleep over the top of him while he was - and must have got between her and the armchair." Q. She'd fallen asleep? A. While he was in her lap." 131 Ms McFarlane, at that point, made no reference to a lost barrel of methadone. She was then cross examined by counsel for Mr Partridge. A series of leading questions were put to her, as follows: (T265) "Q. And that she sat in the chair and Brent climbed to cuddle her and she fell asleep over him with him in her lap? A. Yes. She did say he got wedged between her and the arm chair, the arm chair, yes. Q. She also said to you that she had a syringe of methadone that was empty and she couldn't explain where it had gone, didn't she? A. That's correct, yes." 132 Counsel then asked the following: (T266) "Q. Did she say anything to you about what might have happened to the contents of that syringe or that barrel? A. I honestly can't remember whether she said that Brent accidentally drank it or it got spilt. I honestly can't remember." 133 Ms McFarlane was then reminded of the evidence that she had given before the Coroner on 4 February 2003. The transcript recorded the cross examination by counsel for Mr Partridge in these words: (T266) "Q. You told the Coroner, didn't you, in answer to this question, page 3 of 4 February at line 26: 'Q. Did she indicate to you what she thought may have happened to that syringe? A. She thought Brent may have swallowed it.' A. Yes, I do remember that. Q. And you remember Holly saying that? A. Yes, I do. Q. You were asked the next question, 'Q. When was this conversation said to you?' A. About 25 past 3 in the afternoon.' A. Correct." 134 Ms McFarlane affirmed that this was said on 14 November 1995 whilst she knelt in front of Holly Davies with her hand on her knee (T266). 135 Ms McFarlane was then cross examined by Ms Rigg of counsel for Ms Davies. She was taken back to the statement she made to the police on 6 January 1997, a few months after Brent's death. She acknowledged that, before making that statement, there had been a great deal of discussion and speculation at the clinic about the way in which Brent had died. She told the police of Holly Davies' fears, expressed on the afternoon of 14 November 1995, that she had pinned Brent down in the armchair, such that he may have suffocated. Nothing was said about a lost barrel. 136 Ms McFarlane therefore acknowledged, when cross examined, that Holly Davies had not said anything on that afternoon about having lost a barrel of methadone. She agreed that her evidence before the Coroner, in which she made that suggestion, was wrong. Likewise, her evidence in these proceedings, repeating the same suggestion, was wrong. She insisted, nonetheless, that it was said. In these circumstances the Crown asked, in re-examination, when it was said. Ms McFarlane responded with these words: (T272) "A. A bit later on after I'd made my statement when I was talking to Holly about it. Q. Can you recollect for us where it was that you were speaking to Holly about it? A. It could have been on the way to the methadone clinic, on the way from the methadone clinic, in Kogarah, at my place, at her place. It could have been a number of places that she told me." 137 These are major discrepancies in this witness' evidence. They cannot be dismissed simply as errors of timing or geography. I might add that they are not the only inconsistencies in her recollection. I believe, however, that I have said enough to demonstrate that the recollection of Ms McFarlane cannot be relied upon. I do not accept that Holly Davies made the admissions ascribed to her by Ms McFarlane. 138 I should make a further observation. It is an observation relevant to the evidence of Ms McFarlane and also that of Mrs Deanna Young, which I will deal with shortly. The police who attended the unit on the afternoon of 14 November 1995 were aware that Holly Davies had been sleeping with her baby in the single armchair near the door. Some attention was therefore paid to that chair and that area. The chair was photographed from a number of angles (Exhibit B). The area was searched for anything which may be relevant. Nothing was found. Specifically no barrel, with or without methadone, or the remnants of methadone, was found. 139 The search of the rest of the premises was, as I have said, rudimentary. The Crown must live with that limitation. Some police, although not Snr Sgt Horn who was the crime scene examiner, said that they saw syringes in the premises. They could not, however, remember where they saw them. No-one on the day took possession of a syringe barrel lying somewhere within the unit accessible to a child, whether empty or full, used or unused. The evidence of Mrs Deanna Young. 140 Mrs Deanna Young was the last witness called. She was cross examined at some length. Her evidence, for a number of reasons, must be approached with caution. First, she gave evidence of admissions made by Holly Davies. She claimed, and I will set out her evidence shortly, that Ms Davies admitted having killed her baby. She had lost a barrel of methadone. That evidence falls within a class of evidence that may be unreliable (s165(1)(a) Evidence Act). 141 Secondly, Mrs Young disclosed a number of health issues that may make her evidence unreliable (s165(1)(c)). She was, at the time of these events and is now, addicted to drugs. She is on the methadone programme. In 1995, whilst on that programme, she continued to take heroin (Exhibits D(1) and D(2)). Mrs Young, at that time, also took a number of prescribed drugs. They included valium, mogadon and rohypnol (T511). At the time of the Inquest in 2003, she was taking alprazolam, oxycontin and clonazepam as well as valium. She recognised that a number of these drugs had affected her memory. Indeed, when first interviewed by the police in December 1996, Mrs Young said this: (T503) "My memory's really bad because of pill use, so I have got a bad memory." 142 In her evidence before me, having been reminded of what she had said in the Coroner's Court, Mrs Young said this: (T403/4) "A. If that's what it says. Like I said, years lapse and so does my memory. And, I mean, when my first interview, my first interview, I mean that had only been a year from, from what actually happened, not even a year I don't think, and I, that was the most vivid thing to me. Like I said, I'm on a lot of medications. I've got a list of them here if you'd like to see it. And a lot of it is to do with what has happened to me." 143 Elsewhere, Mrs Young said she had no recollection of what she had said before the Coroner (T404); that when she gave her evidence she was confused (T419). 144 It was certainly apparent from her evidence in this Court that Mrs Young's memory was poor. Her evidence included many contradictory statements. Let me give one illustration. Holly Davies, when interviewed by the police, said that there was a sharps bin in the unit which was used for discarded syringes and needles. It was provided by the needle exchange. She said that it was in the second bedroom, occupied by the Youngs. Mrs Young, in her evidence in chief, said this: (T383) "Q. Are you familiar with the expression a sharps bin? A. Oh, yeah. I do know what you're talking about. Q. Tell me what you understand by the expression? A. That's what you put needles in. Q. Yes? A. Dispose of them in clinics. Q. Was there one in the flat? A. Not that I know of it." 145 When cross examined a short time later, Mrs Young gave the following evidence: (T396) "Q. You were asked about a sharps bin, meaning one of those yellow bins? A. Yes. Q. They are a yellow plastic bin in which needles and that sort of items go, correct? A. Yes. Q. You have been asked about a sharps bin before too? A. Yes I do know they had one in their bedroom. Q. Was it your bedroom or their's? A. Their bedroom on top of the wardrobe." 146 The issue is relatively unimportant, except that it had some relevance to whether syringes were left lying around the house. Holly Davies said that she and Michael Partridge disposed of syringes in the sharps bin. Mrs Deanna Young claimed, in her evidence in chief, that she had cleaned up syringes within the unit (T417). She was then reminded of her evidence before the Coroner, which was as follows: (T417) "Q. ... you cleaned up the syringes from the floor is that correct? A. No, I didn't touch the syringes." 147 Also before the Coroner, Mrs Young said these words: (T418) "Q. Do you remember ever putting any of the syringes in a bin or anywhere else? A. No, I don't remember." 148 When this evidence was drawn to Mrs Young's attention, she responded with these words: (T418) "A. Yeah, but I don't know why I would have said that." 149 A third reason for caution in respect of Mrs Young's evidence is that she was not interviewed by the police on the day of Brent's death. There is therefore no contemporaneous account of her recollection, unlike Holly Davies, Michael Partridge and her husband, Peter Young. Mrs Young said that she tried to speak to the police at the unit, but they were not interested (T380). The only account there is of what she thought on the day is the view she expressed to an ambulance officer, which Mrs Young described in the following evidence: (T380) "A. We told them what we tried to do. How we tried to revive him. Q. Yes? A. And I thought he looked like he'd been, he'd suffocated." Q. Yes? A. That was what I thought." 150 I will, later in these reasons, return to Mrs Young's opinion that Brent had suffocated. 151 Fourthly, caution is necessary because of the possibility of contamination and reconstruction. Patients at the Bayside Clinic attended each day, or every other day if they were permitted takeaways. Most, including Holly Davies and Michael Partridge, were unemployed. They had time on their hands. They obviously used to talk. The death of Brent excited gossip and speculation. Indeed, Ms Davies went to the police on 22 November 1996, complaining of rumours at the clinic that she had suffocated Brent (Exhibit U: para 20). 152 It will be remembered that the test results for the blood sample taken from Brent became available in February 1996 and revealed that Brent had died from methadone intoxication. They also became known to patients at the clinic, including Mrs Young (T494). The first recorded interview of Mrs Young by the police was on 22 December 1996, that is, more than a year after Brent's death, and eight months after the test results. There is the risk that Mrs Young's memory has been contaminated by discussions with others at the clinic. 153 Mrs Young was cross examined concerning that possibility. A patient at the clinic, Ms Glennis Hollywell, was also a witness for the Crown. She was the friend of Ms Davies who looked after Brent and returned him to Ms Davies' care on the Sunday before he died. Referring to Brent's death, the following was put to Mrs Young: (T420) "Q. ... you have spent numerous occasions discussing this topic with Glennis Hollywell since Brent's death, haven't you? A. I do not know where Glennis Hollywell lives. I have not seen Glennis Hollywell since - actually I didn't even see her after Brent died, I didn't see her until the Coroner's Inquest." 154 Shortly after that answer, Mrs Young corrected what she had said. She remembered that she "bumped into Glennis Hollywell once". She said this: (T420) "A. ... I bumped into Glennis and overheard talking, and something was said to me about 'have you heard the latest rumour da de, da de, da de da', and that's the last time I ever saw her. So, I don't know where she lives, I don't know where, I wouldn't have a clue." 155 However, in the December 1996 interview of Mrs Young, the answer she provided made it clear (Q300) that she saw Glennis Hollywell two days before she was interviewed and discussed the circumstances surrounding Brent's death (T424). 156 It is instructive, in this context, to examine the evidence of Peter Young. Peter Young was also interviewed by the police after the test results had become known. In March 2002, he made a further statement providing an account similar to that given by his wife in December 1996, including the reference to the lost barrel. He said this: (T182) "... actually while the ambulance was in the bedroom still working on Brent, Holly came out and was saying to Michael that she had lost a barrel of metho. She said, 'I have misplaced a barrel of methadone. Where is it, where is it?' It was quite frantic, couldn't find it, yeah." 157 Whilst Mr Young acknowledged that he had said that to the police, he added these words, adverting to the possibility of contamination: (T182/3) "A. I cannot say that is what happened, whether that is what happened or whether it is something that was put into my mind later." 158 Fifthly, Mrs Young did not disguise her hostility to Ms Davies. It came to her notice soon after Brent's death that Holly Davies had told the police that she, Mrs Young, had paid for her accommodation at the unit with methadone. On the night of Brent's death, the police raised the issue with her husband. Her husband had to report to the Kogarah police, as required by his bail conditions. Mrs Young said this: (T380) "A. Yeah, Kogarah Police, Kogarah Police told us we had an hour to, we had an hour to get out or they were going to charge me with supplying methadone and load Peter up with whatever they could." 159 Later that evening, Mr Partridge and Ms Davies threw them out of the flat. Mrs Young said that she ultimately decided to speak to the police on 22 December 1996 (and again on 29 January 2002) for two reasons, first, that Holly Davies had made allegations against her to the police that she had paid her rent in methadone and, secondly, her conscience (T496). Holly had "murdered her child" although it was not intentional (T498). 160 Finally, an assessment of Mrs Young's evidence must take account of a number of matters relevant to her credibility, where she was forced to make concessions concerning the accuracy of her evidence when confronted by contradictory statements she had made either to the police or to the Coroner. There are, unquestionably, a number of such matters. Without going to each in detail, they do bear upon the reliability of Mrs Young's testimony. 161 I now turn to that testimony and specifically the evidence concerning the missing barrel. The missing barrel. 162 Mrs Young, in chief, said she returned to the flat with Michael Partridge whilst Holly Davies was still in the armchair beside the front door, nursing Brent. Michael banged on the door, waking her up. Holly Davies asked Michael Partridge to pick up Brent and take him to their bedroom (T374). The request was made while she was still in the lounge room. Mrs Young then said this: (T374) "A. I remember them - some of it is vague, some I can remember clearly, I do remember both of them having an injection and that was in front of me, Peter still wasn't home at that stage. Q. What is this about an injection? A. Methadone." 163 Holly Davies and Michael Partridge had withdrawn to the bedroom. Ms Davis then ran from the bedroom. Mrs Young said this: (T375) "A. Well they have an injection, okay, Holly was in the room, after that - came running out, Peter had just got home, actually Peter had got home, gone up to the phone. She come running out, screaming 'There is something wrong with my baby. I think I killed my baby. I have lost a barrel.' I tried to calm her down and I said, 'I am sure everything is all right. You will find it today' - anyway, I run up. I got Peter. Peter ran into the room. Brent was laying on the bed. He was stone cold. He had rigor mortis. He was bleeding from the corner of the mouth. ..." 164 Mrs Young was then cross examined by counsel for Mr Partridge. The following was put: (T393) "Q. No I am suggesting that you, what you saw happened but you didn't actually see either Holly or Michael inject on that afternoon. That is right isn't it? A. I saw Holly with a barrel in her hand - her arm when she was still screaming out something is wrong with the baby." 165 The cross examination continued: (T393) "Q. And I suggest to you that you didn't see Michael having a shot that day - that afternoon, after you both came back from the clinic? A. No. No, but I vividly remember Holly." 166 Counsel for Ms Davies then took Mrs Young through versions she had given, whether to the police or to the Coroner, which were at odds with her account to this Court. She had, as mentioned, said to the ambulance officer that the baby looked as though it had suffocated. Yet, she acknowledged that Holly Davies had made the statement about losing the barrel before the ambulance arrived. At the Coroner's Court she had said her "immediate thought was that the missing barrel was the cause of the child's death" (T494). That being so, the following was put: (T495) "HIS HONOUR: Q. What's being put to you is, how did you continue to entertain the belief that the baby had suffocated if she had already said that? A. The suffocation was my first thought when I walked in and after that was said, after when she said she missed a barrel, and I was aware that I had seen Brent play with barrels, empty barrels, I thought maybe he had swallowed methadone. Q. So what you are saying, that once she had made the statement about the barrel, then that got rid of any notion in your mind of the baby having suffocated? A. I still - I wasn't one hundred percent sure." 167 The suggestion of suffocation was, of course, made at a time when it was not known that Brent had died of methadone intoxication. The suggestion of a lost barrel only emerged after the test results became known in February 1996. 168 Mrs Young has given a number of accounts of the events of 14 November 1996. It is important to examine each account. Consistency is an important aspect of reliability. In examining each account, two issues are important. The first is the circumstances in which Brent's death came to the notice of Mrs Young. The second is the context within which Holly Davies said that she lost the barrel of methadone. 169 On both aspects, the account given by Mrs Young to the police on 22 December 1996, is rather different than the account now given. In December 1996 Mrs Young said this: (T485) "And after that, they were having the injection. Half an hour later Peter comes home, OK. Still they haven't realised their son's dead. He hasn't made a sound. He's slept the whole time, hasn't made a sound. Peter's upstairs, my husband, making a phone call. So he'd, Peter had been home they still didn't realise he was dead or anything was wrong and then Holly comes running upstairs. 'There's something wrong with Brent, there's something wrong with Brent.' So we, we run downstairs and he was stone cold." 170 Her account continued: "Well, trying to get his heart going and Peter was giving him blows and I proceeded, she was in a, too much of a panic and she screamed out, she said, 'I can't find the other barrel, the other full barrel. I can't, I think I killed my baby.'" 171 So the essential features of her account in December 1996 are, first, that she was upstairs with her husband whilst he was making a phone call when she first heard of Brent's difficulties; secondly, that half an hour after Holly and Michael retired to the bedroom to inject methadone, she raised the alarm; and thirdly, the words concerning the lost barrel were said in the bedroom whilst Peter was trying to revive Brent before the ambulance arrived. 172 The account given to this Court, in contrast, in rather more dramatic. Holly Davies rushed from the bedroom to the lounge room whilst still holding an injection in the palm of her hand, with the needle still inserted, screaming: "I think I killed my baby. I have lost a barrel." They then went upstairs to Peter Young who was making a phone call. 173 Mrs Young acknowledged that the account that she now gave was different from the account she gave the police in December 1996 and to the Coroner (T486). 174 The differences are important. I well appreciate that almost ten years have passed since these events. Nonetheless, this was a dramatic and tragic day. I would have expected, if someone were speaking from recollection, that there would be rather less variation in the description provided than emerged from the evidence of Mrs Young. 175 I cannot accept the account given by Mrs Young of admissions said to have been made by Holly Davies that she killed her baby and lost a barrel. I can accept the possibility that, at some point in time, Holly Davies, when searching for the cause of Brent's death, and in an effort to understand her own responsibility, may have spoken to someone of the possibility of having lost a barrel. Such a statement, were it made, would not be an admission. Rather, it would be speculation arising from the torment of grief and the need to understand one's role in the tragedy. I do not accept that such statements, if they were made, were made on the night of 14 November 1995 in the circumstances described by Mrs Young. 176 I therefore reject the Crown's second alternative. Holly Davies: The third alternative. 177 The third alternative asserts criminal negligence arising from a teaspoon of methadone being left as residue in a cup used to mix methadone, that cup being left accessible to Brent. The police, when interviewing Michael Partridge, explored that possibility. That interview is not, of course, evidence against Ms Davies. However, in the third interview with Ms Davies on 9 September 2002, the police read the series of questions and answers in the Partridge interview, inviting Ms Davies to respond. It is instructive to look at that response. 178 The police recounted to Ms Davies how Michael Partridge had said that he had always believed that some methadone had been left in a cup somewhere where Brent could drink it (Exhibit H: p39). Ms Davies was told that Michael Partridge described how she got home at 7.30 am, or thereabouts. According to his interview, she brought a takeaway which they then shared. He described the way in which the methadone was prepared, using a glass or a cup, adding water. 179 Pausing there, the description of this process provided by Michael Partridge is rather different to that provided by Holly Davies in her previous interview. Ms Davies had said, on 27 March 1996 (Exhibit G), that the methadone (and presumably the water) was tipped directly into the syringe when the intention was to inject it (Exhibit G: Q85). That answer, I believe, should be understood as a reference to her practice when injecting alone. Here, the methadone had to be mixed in certain proportions with water. The mixture was to generate not one, but at least four barrels. It would be much more convenient and less wasteful to do that using a cup, rather than endeavouring to pour the mixture into each syringe. 180 Returning to the interview with Holly Davies in September 2002, having summarised the answers provided by Michael Partridge, the police then put the following questions to Ms Davies: (Exhibit H: Q272) "Q272 Your former, your former partner, Michael Partridge, after 7 years, nearly, of Brent's death, is now telling the police that he believes there was methadone left in a cup, OK? A. Mmm. Q273 Would you like to say anything about that? A. I, you know, I've also speculated on that, but I, I really, I don't, you know, I don't know but it was not, not, it, no, I, I don't believe that it could've been. Q274 Why do you say that? A. Because, well, I just, well, just the way we mixt it up and had it, have it, I don't believe that we could've, you know, sucked some out of the cup and, if there was some left, just forgotten. I just don't believe that it could've been forgotten, especially when all the rest of it was cleaned up, needles, swabs, tissues with blood, whatever. I just don't believe that a cup could've been missed with methadone, and I mean, once we both suck it up, there's there's none left, you know? there's none." 181 That answer, incidentally, appears to accept that a cup may have been used, as suggested by Michael Partridge. It should be noted that the Crown, in its submissions, puts its case somewhat more broadly than simply relying upon a cup. In written submissions it described the third alternative in these terms: "Methadone residue left in a cup or otherwise available in the flat." 182 The Crown, in support of the third alternative, pointed to certain stubborn facts. Brent died of methadone intoxication. The amount of methadone in his stomach meant that he swallowed it. If it was not given to him deliberately, then plainly it was somewhere accessible to him. 183 However, without knowing where he got it from and how he came to swallow it, it is difficult to be satisfied beyond reasonable doubt that somehow or other there was criminal negligence on the part of his parents. Obviously one would suspect negligence. However, without some basis for an inference as to precisely how Brent came to swallow the methadone, there appear to me to be too many unanswered questions. To borrow a phrase from tort law, the facts do not speak for themselves. 184 In part, the difficulty is the product of the rudimentary investigation undertaken by the police when they first arrived at the flat. If Brent swallowed residue from a mixing cup, would you not expect a cup within the flat with traces of methadone? A cup, indeed, was taken by the police from the scene and tested. No trace of methadone was found. Perhaps some other cup had been placed in the sink with the rest of the washing up which had not been done for days. However, aside from the photographs which provided a general view of dishes in the sink and on the bench, there is no evidence that the dishes were examined, or a cup found. 185 As mentioned, the search of the flat did not involve lifting each item and sifting through the debris. It is difficult in these circumstances to draw any inference based upon evidence, as opposed to assumption, that methadone was "otherwise available in the flat". What if the methadone was in the room occupied by the Youngs? The crime scene examiner did not enter that room. There was no evidence that other police searched it. Holly Davies said the door was always kept shut. One can accept that it was usually kept shut, but it would be most unusual for a door to always be kept shut. Is there a reasonable possibility that the door may have been open and that Brent had access to it? Mrs Young said that she always kept her takeaway bottle in her bag, which was kept well above ground level, that is, not accessible to a child. The takeaway bottles themselves were fitted with a childproof cap. However, is there a reasonable possibility that there was an open takeaway bottle within Mrs Young's room? 186 It may be said that many of these questions are too speculative to raise a reasonable possibility that the Crown could be expected to eliminate. However, there was one possibility that did appear to arise on the evidence. It was apparent from the habits and practices of Holly Davies and Michael Partridge that, in 1995 they were heavy drug users, as were the Youngs. Holly Davies and Michael Partridge and the Youngs had been admitted to the methadone programme to enable them to overcome their addiction to heroin. They were under the supervision of a doctor. A dose had been prescribed for them in each case. The dose was to be taken orally, even when a takeaway bottle was provided. It was not to be taken intravenously. Yet, having had the prescribed dose at the clinic on the morning of 14 November 1995, Ms Davies returned to the unit and had further methadone, additional to her prescribed dose. Worse, the methadone was injected, so that the habits of drug use continued. 187 The Youngs, I believe, for the reasons given, both received an oral dose at the clinic on the morning of 14 November 1995. They then came back to the unit. According to Det Mathewson, Peter Young that afternoon gave her the following account of what he and his wife then did: (Exhibit U) "I spoke with Peter Young who confirmed the evenings events on Canterbury Road. He told me that he and his wife Deanna had passed Holly on the way back from getting their methadone and when they arrived home they lay down on the sofa lounge and went to sleep. Peter told me that they woke a couple of hours later. ..." 188 Peter Young, that morning, was required to go to the Burwood Court. 189 Holly Davies, in her second interview in March 1996, said this: (Exhibit G) "Q173 OK. Now, is there any reason why you continually slept on that, or you slept on that chair? A. No, just that, I rarely sat there. It was just that with, Michael was lying on this lounge and, and Peter and Deanna were on the other, so I just sat in that one." 190 Ms Davies added, later in the same interview, the following responses referring to Deanna and Peter Young: "Q387 And the times that they had their methadone did you ever see them consume the methadone? A. I, yeah, I did see them use it intravenously on occasions. Q379 And where was that? A. In the flat. But mainly they just kept to themselves and stayed in the bedroom and that, that was it." 191 Deanna and Peter Young were at the flat for only a few days before Brent died. Is it possible that both couples, each sharing takeaway bottles, injected methadone in the lounge room that morning, having previously mixed it in a cup? If that occurred, there is the possibility that the cup with the residue was that of the Youngs, not that used by Ms Davies and Mr Partridge. The issue was put to Mrs Young when she gave evidence. She said that it was not possible. She did not inject methadone, although she did inject heroin (T499/500). She said that her husband, Peter, did not inject methadone "until years later" (T500). However, that statement is difficult to reconcile with the fact that Peter Young went into custody soon after these events and separated from his wife shortly after his release from gaol in 1996. In other words, they were not together "years later", so that one suspects that he may have been injecting methadone in November 1995. On the other hand, both Peter Young and Deanna Young had been up all night, on the Canterbury Road. When they lay on the couch that morning, they may simply have been resting, without injecting. 192 If I were called upon to make a finding, as a matter of probability, as to what happened that morning, I would not find that Peter Young and Deanna Young had injected methadone. It, nonetheless, seems to me a reasonable possibility that they did so. If that be right, then it is also possible that the residue in a cup, if there was a cup, belonged to the Youngs. The issue which was raised earlier then arises: Can it be said that Holly Davies (and Michael Partridge) were in breach of their duty of care to Brent in failing to supervise his interaction with the Youngs, or his exposure to hazards which the Youngs may have created? I doubt that the duty extends that far. 193 I am left in the situation that, on many issues, the proof offered by the Crown for the third alternative does not satisfy me beyond reasonable doubt as to the guilt of Holly Davies. I reach that conclusion without needing to consider the additional difficulties arising for the Crown from the recent decision of R v Lavender (supra para 114). Verdict: Holly Davies. 194 I therefore find Holly Davies not guilty of the manslaughter of Brent Partridge. Michael Partridge. 195 I then turn to the case against Michael Partridge. It can be dealt with quite shortly. The Crown relied upon the second and third alternatives in its case against Michael Partridge, that is his culpability as a parent arising from the lost barrel, or the accessibility of a mixing cup containing methadone. Based upon those alternatives, it was said that Mr Partridge was guilty of the crime of manslaughter by criminal negligence. Although Mr Partridge, in his three interviews, described at great length his knowledge of the circumstances in which Brent died, the Crown case against him went no higher than his acknowledgment of a belief that Brent had died by swallowing the residue of methadone in a mixing cup. 196 On any view, the Crown case against Mr Partridge was much weaker than against Ms Davies. There was no suggestion that he had deliberately given Brent methadone. Unlike Holly Davies, there was no evidence that he had made admissions to persons other than the police which might implicate him in the death of his son. 197 In respect of the second alternative, it is fundamental to the Crown case that there should be evidence admissible against Michael Partridge that the methadone swallowed by Brent came from a missing barrel. The Crown has not, however, established such a case beyond reasonable doubt. 198 So far as the third alternative is concerned, the analysis provided in the context of Holly Davies has application to Mr Partridge. There are simply too many unanswered questions giving rise to reasonable possibilities consistent with innocence, which the Crown has not eliminated. I am therefore not satisfied beyond reasonable doubt that the Crown has proved Mr Partridge guilty of manslaughter by criminal negligence. Verdict: Michael Partridge. 199 I therefore find Michael Partridge not guilty of the manslaughter of Brent Partridge. ********** 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.