R v Wilhelm [2010] NSWSC 334

Reported Decision : 200 A Crim R 413 77 NSWLR 1

New South Wales Supreme Court

CITATION : R v Wilhelm [2010] NSWSC 334

HEARING DATE(S) : 19/04/2010

JUDGMENT DATE : 19 April 2010

JUDGMENT OF : Howie J at 1

DECISION : The application is allowed and the accused is permitted to withdraw the plea to the second count on the indictment.

CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Application to withdraw plea - Offences - Cause personto take poison - meaning of "cause to be taken" - whether offence made out on agreed facts

LEGISLATION CITED : Crimes Act 1900 - s 39

CATEGORY : Procedural and other rulings

O'Sullivan v Truth Sportsman Limited (1957) 96 CLR 220 CASES CITED : Shave v Rosner [1954] 2 All ER 280 Attorney General of Hong Kong v Tse Hung-lit [1986] 3 All ER 173

PARTIES : Regina v Mark Robin Wilhelm

FILE NUMBER(S) : SC 2008/16581

COUNSEL : T Thorpe - Crown G Thomas - Accused

SOLICITORS : S O'Connor - Crown Murphy's Lawyers Inc - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

MONDAY 19 APRIL 2010

2008/16581 REGINA v Mark Robin WILHELM

JUDGMENT – On application to withdraw plea, see p 7 of transcript

NON-PUBLICATION ORDER 1 HIS HONOUR: The accused Mark Robin Wilhelm was indicted before me today on an indictment containing three counts. 2 The first count alleges, in effect, that he unlawfully killed Ms Brimble on board a cruise ship, the Pacific Sky, on 24 September 2002. That of course is an offence of manslaughter. It carries a maximum penalty of imprisonment for twenty-five years. 3 The second count is an alternative to the first count. It alleges an offence under s 39 of the Crimes Act. That section is entitled "Using poison et cetera to endanger the life or inflict grievous bodily harm". The section has a very long history and is derived from the English Offences Against the Persons Act from Victorian times. The charge alleged that on the same day, that is 24 September 2002, on board the Pacific Sky the accused, recklessly as to injuring Ms Dianne Brimble, did cause to be taken by Ms Brimble a noxious substance which is known as GHB and the thing caused to be taken inflicted upon Dianne Brimble grievous bodily harm. The accused pleaded guilty to that count. The offence carries a maximum penalty of imprisonment for 10 years. 4 The third count on the indictment alleges that on the same day, that is 24 September 2002, the accused supplied a prohibited drug, being GHB, to Ms Brimble. The accused inconsistently with the plea to the second count pleaded not guilty to this offence. 5 The Crown indicated that it was prepared to accept the plea to the second count in discharge of the indictment. However that plea cannot discharge the accused from the third count as it was a separate charge. 6 The matter has a lengthy and unfortunate history. The accused stood trial before me and a jury last year on an indictment alleging two charges; the first being the offence of manslaughter and the second being an offence of supply. He pleaded "not guilty" to each of those counts on the indictment. 7 The Crown initially alleged that the accused was guilty of manslaughter on two bases; the first being an unlawful and dangerous act manslaughter based upon his supply of the GHB to Ms Brimble and therefore substantially causing her death and the second base being gross criminal negligence. The second count was the same as the third count on this indictment, being an offence of supply of GHB to Ms Brimble. 8 Before addresses to the jury I indicated my view to the Crown Prosecutor that it was impossible for the Crown to make out the offence of manslaughter based upon gross criminal negligence, it being an allegation of the accused's failure to assist Ms Brimble, with a result that that failure caused her death. In my view the evidence did not give rise to any of the elements of gross criminal negligence manslaughter, including that there was no duty of care between the accused and Ms Brimble. The Crown ultimately withdrew that basis of manslaughter from the jury because the Crown acknowledged that it could not prove that Ms Brimble was alive at the time at which the Crown was alleging that the accused had failed to assist her. 9 The matter, therefore, went to the jury, despite a large number of photographs which were indecent and which were highly prejudicial to the accused but which the Crown relied upon to prove the charge of manslaughter based on gross criminal negligence. Notwithstanding my view that the accused's fair trial had been placed in jeopardy by the failed basis of manslaughter on gross criminal negligence, the accused elected to continue with the trial. 10 The jury were ultimately unable to bring in a verdict on the first count of manslaughter. They did have a verdict on the second count but, having been told by the Crown that it intended at that stage, or at least could not tell me that it was not intended, to re-try the accused on the charge of manslaughter, I refused to accept a verdict from the jury on the charge of supply. The jury were discharged. Eventually the Crown decided that it would continue the prosecution of Mr Wilhelm on the charge of manslaughter. The matter was listed for trial today. 11 At a mention of the matter about a week before today I was informed that there was likely to be a plea and that, therefore, the trial might not proceed. In order that the accused not be prejudiced by such negotiations, that matter was not made public. 12 This morning this indictment was presented before me. I immediately raised with the Crown and with the accused's representative my concerns about the second count. That count alleges that the accused caused Ms Brimble to take a noxious substance, being GHB. I pointed out to the Crown that there were a number of cases which tended to suggest, at least to me, that what was required for the Crown to prove was that the accused stood in a position of authority or control over Ms Brimble so that he could, in effect, overbore her will and therefore cause her to take the drug. I had a good idea of what the evidence was, having been the trial judge, and I had difficulty in seeing, on the evidence that was at the trial of the accused, how it could be said that he had any authority or position of control over Ms Brimble whereby he could, in effect, cause her to take the drug. 13 The Crown submitted that it was not necessary for the Crown to prove those facts but it was merely sufficient to prove that the accused gave Ms Brimble the drug and encouraged her to take it. I indicated to the Crown that there was a number of authorities that seemed to me to be against that proposition. 14 One of those authorities is Castle v Olen (1985) 3 NSWLR 26, a judgment of Yeldham J, which is concerned with an offence of causing another person to supply a dangerous drug. Yeldham J at 30 quoted a passage from the judgment of the High Court in O'Sullivan v Truth Sportsman Limited (1957) 96 CLR 220 at 228 which is as follows: