Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RILEY v R [2011] NSWCCA 238 Hearing dates: 31 May 2011 Decision date: 14 September 2011 Before: McClellan CJ at CL at [1] Hoeben J at [165] Grove AJ at [166] Decision: 1. Appeal upheld. 2. Quash the conviction in relation to counts 1, 4 and 7 and order that verdicts of acquittal be entered with respect to those counts. Catchwords: CRIMINAL APPEAL - provision of drugs to a person who dies or falls ill - meaning of cause a person to take a drug - insufficient evidence to constitute tendency - unreasonable verdicts - appeal upheld - convictions quashed and acquittals ordered. Legislation Cited: Offences Against the Person Act 1861 Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act Cases Cited: Em v R [2006] NSWCCA 336 Em v The Queen (2007) 232 CLR 67 House v The King (1936) 55 CLR 499 M v The Queen (1994) 181 CLR 487 O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220 R v Burns [2011] NSWCCA 56. R v Em [2003] NSWCCA 374 R v Ford [2009] NSWCCA 306 R v Kennedy (No. 2) [2008] 1 AC 269 R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 R v Nelson [2004] NSWCCA 231 R v PL [2009] NSWCCA 256 R v SJRC [2007] NSWCCA 142 R v Wilhelm [2010] NSWSC 334; 200 A Crim R 413 SKA v The Queen [2011] HCA 13 Smale v The Queen [2007] NSWCCA 328 Vickers v The Queen [2006] NSWCCA 60 Warren v Coombes (1979) 142 CLR 531 Texts Cited: 3rd ed. of Halsbury's Laws of England Category: Principal judgment Parties: Daniel Charles Riley (appellant) The Crown Representation: T Molomby SC/Tony Evers (appellant) D Arnott SC (Crown) M A Douglass (appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2008/1881 Decision under appeal Date of Decision: 2009-12-17 00:00:00 Before: Blackmore DCJ File Number(s): 2008/11/1246 Judgment 1McCLELLAN CJ at CL : The Court made orders in this appeal on 14 September 2011 and indicated that it would publish its reasons on a later occasion. These are my reasons for joining in the orders of the Court. 2This appeal raises issues with respect to the provision by one person of dangerous drugs to another person who dies. Some of the issues in the present appeal were considered by this Court in R v Burns [2011] NSWCCA 56. However, the factual circumstances of the present case are different. 3The appellant suffered from chronic depression for which he took Moclobemide (Aurorix) and Venlaxafine (Effexor). On occasions he took the drugs in combination. Taking these drugs in combination may induce a "high" in the taker but is also accepted to be dangerous and can be fatal. 4In circumstances which I relate below, the appellant associated with Shaun Bateson and Brian Hadfield. Shaun Bateson died in May 2004 and Brian Hadfield in July of that year. The evidence proved conclusively that a combination of Moclobemide and Venlaxafine caused Bateson's death but this conclusion was not available in relation to Hadfield's death. Other persons John Willans, Amanda Ryan and Michael Wilson also took drugs while they were in a car with the appellant in January 2005. They all fell sick to differing degrees but did not die. 5The appellant faced seven charges: Charge 1 For that he on 4 May 2004 at Miranda in the State of New South Wales did feloniously slay Sean Bateson. Charge 2 Further that he on or about 1 May 2004 at Miranda in the State of New South Wales did maliciously cause to be taken by Sean Bateson a poison or other destructive or noxious thing so as to endanger the life of Sean Bateson. Charge 3 Further that he on 15 July 2004 at Surry Hills in the State of New South Wales did feloniously slay Brian Hadfield. Charge 4 In the alternative he on or about 15 July 2004 at Surry Hills in the State of New south Wales did maliciously cause to be taken by Brian Hadfield a poison or other destructive or noxious thing so as to endanger the life of Brian Hadfield. Charge 5 Further that he between 11 January 2005 and 16 January 2005 at Nowra and elsewhere in the State of New South Wales did maliciously cause to be taken by John Willans a poison or other destructive or noxious thing so as to endanger the life of John Willans. Charge 6 Further that he between 11 January 2005 and 16 January 2005 at Nowra and elsewhere in the State of New South Wales did maliciously cause to be taken by Amanda Ryan a poison or other destructive or noxious thing so as to endanger the life of Amanda Ryan. Charge 7 Further that he between 11 January 2005 and 16 January 2005 at Nowra and elsewhere in the State of New South Wales did maliciously cause to be taken by Michael Wilson a poison or other destructive or noxious thing so as to endanger the life of Michael Wilson. 6The appellant pleaded not guilty to all of the charges. He was found guilty of charges 1, 4 and 7 and not guilty of charges 2, 3, 5 and 6. He was sentenced to an overall term of imprisonment of 10 years with a non-parole period of 7 years. He appeals his conviction. Some Factual Matters 7The evidence established beyond doubt that taking Effexor and Aurorix in combination was potentially fatal. The evidence also established that the appellant knew this to be the case at the time the offences were alleged to have been committed. The expert evidence established that even the consumption of one tablet of each of these drugs in combination could be dangerous. They operate to alter the concentration of serotonin in the body by inhibiting the reabsorption of serotonin into the nerve cells in a phenomenon known as Serotonin Syndrome. 8It was the Crown case that from at least the year 2000 the appellant had been experimenting with Effexor and Aurorix in combination to give him a "high". Because of the dangers doctors would not prescribe these two drugs together but the appellant obtained them from different doctors and had his prescriptions filled at different pharmacies. He did this regularly for a number of years. 9Evidence was given by Dr Scott-Orr, a psychiatrist at Port Macquarie Base Hospital, that in mid June 2001 the appellant offered the doctor "a partnership in his 'concoction' of Effexor and Aurorix which he'd invented about a year ago." The appellant told the doctor that it "was as good as cocaine and legal" and they could "change the hydrochloride to less affect to (the) cardio muscular system in varying his concoction." 10Ms Jodie Bailey gave evidence that she had met the appellant in 1997 and became his girlfriend in a relationship which lasted until about 2004. She was studying psychology as well as a course involving drugs and alcohol. She gave evidence that the appellant had used her medical text books, the internet and the "MIMS" manual to obtain information about the drugs. She indicated that the appellant had also obtained a medical research video about the two drugs and a paper relating to Serotonin Syndrome. Ms Bailey gave evidence that the appellant had "told me that the two drugs, Effexor and Aurorix had contraindications. He told me that they can produce a high together. He had also told me that they can potentially be a fatal combination 'producing' an excess of serotonin in the system." The appellant told Ms Bailey that he could take a lot of pills because he had built up a tolerance. 11Ms Nicole Mullane first met the appellant in Port Macquarie Base Hospital in mid April 2000. After she had been discharged the appellant visited her arriving with a bag containing about 30 tablets. Ms Mullane recognised one of the tablets as Aurorix but she did not recognise the other one. 12Ms Mullane gave evidence that the appellant offered her a combination of the drugs saying "these combined will make you feel like you're floating on a cloud." Although she asked the appellant what the other drug was she said that he would not tell her. She said that the appellant did not warn her of any dangers. Ms Mullane said she took the tablets and they then settled down to watch television. 13Ms Mullane was adversely affected by the pills. Within an hour she felt "quite shaky" saying "like I needed to vomit." She said that "her bowels wouldn't work, nothing would work so I didn't feel well at all." She said "not long after that I collapsed and started to have a fit on the floor and my eyes started rolling back." She said that the appellant remained in her apartment while this was happening. 14Ultimately ambulance officers were called. Ms Mullane remembers waking up in hospital after she came out of a coma. She was hospitalised from 29 July to 4 August 2000 and for a time was maintained on life support. She gave evidence that she was "quite ill for a long time", "couldn't walk", "had to use a wheelchair", "quite weak" and "a bit confused about everything." 15The medical evidence confirmed that Ms Mullane had consumed both Moclobemide and Venlafaxine. Her blood also contained amphetamine which she had apparently taken on the day before the appellant gave her the pills. Her diagnosis confirmed that she was suffering from Serotonin Syndrome. 16There was evidence from Ms Bailey that the appellant had admitted to her that he had given the pills to Ms Mullane. Ms Mullane was vulnerable as she had been prescribed a variety of anti-depressants since the age of 14 years and was an intravenous user of amphetamines. 17In previous years the evidence indicated that the appellant had been hospitalised for abusing the two drugs. Hospital records include a reference on 20 June 2001 to "Daniel was 'holding court' with fellow residents looking up in MIMS various narcotics and other drugs." A further entry on 1 April 2004 reads "patient well educated on anti-depressants however patient readily admits to misusing anti-depressants." 18The appellant was admitted to hospital from 31 August 2004 to 21 September 2004 after taking the combination of drugs. The hospital record entry on the day of his admission reads "... shopped today for Effexor XR Aurorix and has taken unknown quantities of both (claims one of each). Refusing to divulge many details. Claims a few of his friends have died as a result of this drug combination." 19The records indicate that the appellant was admitted with Serotonin Syndrome having taken an accidental dose while trying to obtain a high from taking excess anti-depressants. The record indicates that the appellant may have been taking "a couple of each (pill) per day." 20There are further entries which indicate that the appellant had deliberately taken the pills in combination and was aware that he had previously been admitted to hospital for Serotonin Syndrome which had been self induced. The death of Shaun Bateson on 4 May 2004 - count 1 21The charge of manslaughter in respect of the death of Shaun Bateson was based upon one or both of two allegations. The Crown first alleged that the appellant caused the death of Shaun Bateson by an unlawful and dangerous act which was particularised as maliciously causing the deceased to take the combination of Effexor and Aurorix so as to endanger his life. This act also constituted the alternative charge. The Crown did not put the case on the basis that the unlawful and dangerous act was the supply of the two drugs to the deceased without a medical prescription. 22The main element in dispute was causation. The trial judge's directions in relation to the meaning of the words "cause the deceased to take" the combination of drugs have caused difficulty and is the subject of the fifth ground of appeal. 23The second basis upon which the charge was advanced with respect to the death of Mr Bateson was manslaughter by gross criminal negligence. The Crown alleged that the appellant owed the deceased a duty of care which he breached by providing the two drugs to Mr Bateson to be taken in combination, when he knew of the dangers of so doing. 24The circumstances concerning Mr Bateson's death commence with the knowledge that Mr Bateson, Mr Steven Pobi and the appellant were three of five people living at a half way house run by the Reverend George Capsis in Miranda. Mr Bateson's room was next to the appellant's room. 25On Saturday 1 May 2004 the appellant was seen at about lunch time with Mr Bateson at Miranda Shopping Centre. He met Mr Derwent who was a friend of Mr Bateson. Mr Bateson introduced the appellant. They had a conversation. 26The appellant said "we haven't been to bed yet" with Mr Bateson adding "yeah, we've been up all night partying." Mr Derwent gave evidence that Mr Bateson appeared very agitated; he "couldn't stand still, left foot, right, foot just he wasn't calm." He said that Mr Bateson's eyes were blood shot and "it appeared to me that he was on something", "he was as high as a kite on something." 27The evidence indicates that after Mr Derwent saw the appellant and Mr Bateson they must have separated. Later that afternoon at 4.30 pm the appellant was apprehended in the Miranda Shopping Centre for shoplifting. He was alone at that time. When he was arrested he was found to be in possession of a pamphlet discussing depression and 16 tablets. He told the police that the tablets were Effexor. The appellant was released from Miranda Police Station at 8.10 pm. It would have taken him 10 to 15 minutes to walk back to where he was residing in Miranda. 28Mr Steven Pobi gave evidence that on that Saturday he went to work but returned to the premises at about 6 pm. He said that he walked past Mr Bateson's room and saw him lying on his bed in a somewhat unusual position and snoring. 29When the appellant arrived home from the police station he observed Mr Bateson to be very ill. He knocked on Mr Pobi's door, told him that Mr Bateson was not breathing properly and asked him to come quickly. Mr Pobi found the deceased lying on his bed unconscious and gasping for breath. Mr Pobi rang for an ambulance. When they arrived the ambulance officers asked "what did he take?" The appellant replied that Mr Bateson must have come into his room and taken the Effexor and Aurorix. The appellant produced an empty box of Aurorix and two sealed boxes of Effexor as well as two empty wrappers one labelled Effexor and the other Aurorix from his room. 30It was the Crown case that the appellant's version was false and was an attempt by the appellant to distance himself from the drugs that caused the deceased's death. 31Mr Bateson died on 4 May 2004. He was found to have both Venlaxafine and Moclobemide in his system at levels which exceed the therapeutic level. It was determined that he died from Serotonin Syndrome. 32At the trial there was no dispute that the drug which had caused Mr Bateson's death had come from the appellant's stock. The question for the jury was whether they could be satisfied that the appellant had given Mr Bateson the drugs which caused his death or whether the deceased had helped himself to the drugs at a time when he was not affected by any drug which may have been given to him by the appellant. 33There was evidence of a conversation between the appellant and Mr Pobi at Sutherland Hospital after Mr Bateson had been admitted. Mr Pobi allegedly asked the appellant what had happened and the appellant replied "oh we just went out for some drinks and he, Sean (sic) took some, you know, this Effexor and Acuix (sic) - clearly a reference to Aurorix - took that mix of drugs." 34Ms Bailey gave evidence that the appellant told her that he had given Mr Bateson some tablets "to make him feel better." She said that the appellant said to her "I gave them to him but he was feeling pretty down he was pretty depressed, I thought it would help him." The appellant made this remark after he had apparently denied giving the deceased any tablets and suggested that the deceased must have come into his room and taken them himself. 35Mr Pobi also gave evidence that about two days before 1 May 2004 the deceased had told him in confidence that the appellant had "found something on the internet that if you mixed two drugs together you can get really stoned and off your head." Mr Pobi said that the deceased had told him that the appellant was "suggesting for Sean (Shaun) to get into it." He said that Shaun was "very uncomfortable" about doing it. Shaun had told him that in the past he had been shot in the head with a cross bow which had given him some mental problems. It was apparent to Mr Pobi that Shaun did have mental problems. He had observed him to burn glue in a circle, burn his own arm and speak of UFOs having landed. 36The appellant also told another person, Ms Roberts that he had given a friend some of his pills and that his friend had died. Sometime later in a hand written note which became Exhibit W in the proceedings (also known as the "Dear Dr George letter") written to a doctor, and to which I refer in greater detail below, the appellant admitted that the deceased had asked for some of his medication and he had given it to him. Poisoning of Brian Hadfield on 15 July 2004 - count 4 37The jury returned a verdict of not guilty in respect of the charge of manslaughter of Mr Hadfield. However, they found the appellant guilty of the alternative count of maliciously causing him to take a poison so as to endanger his life. The element in dispute, as in the case of Mr Bateson, was causation. Unlike the situation with Mr Bateson there was no agreement as to the cause of Mr Hadfield's death. 38After Mr Bateson died the appellant moved from the half way house into a large private hotel called the Edward Eagar Lodge in Surry Hills. The Lodge had about 6 or 7 levels. Mr Hadfield lived there and he and the appellant became friends. 39Mr Kim Withers was living at the lodge. He gave evidence that at about 8 - 8.30 pm on 14 July, the evening prior to Mr Hadfield's death, Mr Hadfield and the appellant came into his room asking for marijuana. He said that he refused to provide them with any marijuana because Mr Hadfield "didn't look very good." He said Mr Hadfield looked "unsteady and ... really bad." He said the appellant "seemed out of it, but ... still alright." 40About 1 hours later the appellant came to Mr Withers and again asked for marijuana. Mr Withers was concerned about Mr Hadfield's condition and asked the appellant what he had taken. The appellant replied with a smile that he had given him something but "didn't say what. I can't remember what it was." 41After Mr Hadfield died Mr Withers again asked the appellant what he had given him. The appellant responded that he "shouldn't have taken that many" or "I told him not to take that many." 42Mr Withers also gave evidence that some hours prior to Mr Hadfield and the appellant coming into his room he had seen Mr Hadfield standing in his bedroom with the door open. He observed Mr Hadfield taking pills while he had a beer in his hand and observed him to consume a variety of drinks that night. 43Mr Milo Nedelson lived on Mr Hadfield's floor at the Lodge. He said that at about 7 pm on 14 July Mr Hadfield invited him into his room for a drink. Mr Hadfield was in a jovial mood. He observed a box of Effexor on his bed. Mr Hadfield told Mr Nedelson that he had taken it to try and get a "high." Mr Nedelson said that he warned him that Effexor was an anti-depressant and he should not take it whilst he was drinking. Mr Nedelson was familiar with Effexor and its potential hazards. 44On the morning of 15 July Mr Nedelson saw Mr Hadfield in his room. He "was violently shaking and trying to hang onto himself." He said that Mr Hadfield told him "he'd taken half a packet (of Effexor) the night before" and had "drunk the half a bottle of gin." 45Ms Frances Roberts gave evidence that she spoke to the appellant after Mr Hadfield had died. She said that she opened the conversation by asserting that the appellant was the one who had given Mr Hadfield the pills. The appellant asked her how she knew and she reminded him of the conversation they had had a week or so earlier. The earlier conversation had occurred during a casual meeting at Taylor Square. The appellant allegedly said to her that he had given some of his pills to a friend "they went out one night and came home after taking pills and his mate dropped dead." She understood the appellant to be saying that "another mate had died in a similar kind of situation." The appellant told Ms Roberts "not to say anything and not to go writing a statement" and that she "f...ing wouldn't want to." 46The police searched the deceased room and found a small box containing 2 capsules of Effexor. Although forensic pathologists gave evidence which indicated that Serotonin Syndrome was the likely cause of death they indicated that they could not be certain about this. Screening for common drugs proved negative although amitriptyline and metabolites of cannabis were found in the deceased's system. Dr Botterill who performed the autopsy considered it "very unlikely" they contributed to toxicity or death. The doctor identified Moclobemide and Venlafaxine, both at levels higher than the therapeutic range. 47Dr Botterill concluded that the direct cause of death was "undetermined". He indicated that when Moclobemide and Venlafaxine are taken together there is a significant increase in the chance of a reaction occurring in the body that can result in death even if the level of those drugs found in the body are not in the toxic or necessarily fatal range. However, Serotonin Syndrome could not be positively diagnosed after death and although Mr Hadfield had signs of the syndrome before his death no doctor had examined him in this period. 48Dr Duflou, a forensic pathologist, agreed with Dr Botterill. He considered that it was a "reasonable possibility" that Mr Hadfield died of Serotonin Syndrome but there was "no firm evidence" that he did. He confirmed that it was difficult to express a conclusive opinion when the deceased had not been medically examined prior to his death. The situation was different with Mr Bateson who had been admitted to hospital some days before he died. The "Dear Dr George Letter" (Exhibit W) 49The appellant was arrested and charged on 8 February 2007. Police searched his caravan and found a photocopy of a handwritten 22-page document in the form of a letter. It was addressed to "Dear Dr George" and dated 24 October 2006. It contained a number of corrections and additions which suggest that it may have been a draft rather than a final version. 50Broadly speaking, the document was a narrative of the appellant's problems, centred very much on chronic depression throughout his life. Towards the end of the document there was a section containing references to Sean (Shaun) and Brian. No doubt these were Mr Bateson and Mr Hadfield. The prosecution wanted parts of this letter tendered as admissions. After argument, those parts were admitted. The defence wished other parts of the document also to be tendered, so that in the end most of the document was tendered as Exhibit W. 51The complete section of the letter in relation to Shaun and Brian is: "After leaving the psych ward I was discharged under George Capsis (what I had thought was care and understanding) oversight to stay at his share house. I was paying around $120 per wk for a drab room. I had to walk to buy food etc. I was told I was expected to go out and look for work. I had no car, licence, family, friends, son, girlfriend, and why would anyone want to be with me I had nothing and was fighting for air to breathe for (end of page 16/beginning of page 17) the agony of weight of sadness upon my chest. I was enveloped in a suicidal depression. I didn't eat or leave my room for days just sobbed into my pillow so no one would hear me. I heard George come to the house and talk to one of the older guys about me and said among other things "this is not a doss house, if he doesn't pull his socks up, he'll be asked to leave". I feel so sad for that person and all who know the place of despair I was in. It makes me weep and I want to go back and help them (me) and comfort then in that place of utter despair and blackness. I was terrified of being homeless and alone. When it was quiet I crawled through the clutter in the garage and began inhaling petrol from a mower. I had no pride left, I sat there crying and sniffing so as to in any way to numb away the sadness. I had my last useless antidepressants, poured petrol on a cloth and sort of crying and stumbling toward the doctors or the bottle shop first. I got the only other medication that had any effect left together to lift the despair. I had been trying yet again not to take them because they had so ---after often distorted all mind, reason and judgement and personality causing me such embarrassment, suffering and death. *this is all too much of an absolute understatement. *my recollection is poor so please forgive my corrections at doubting my ... I had such self hate at being so pathetic. I took some of the meds. We went out (Sean and I) but it wasn't me it was the manic person whose mind had been list lost again. Sean kept asking me what I was on, he told me all the drugs he used to take. When I told him, he said he had been on antidepressants (*sorry for all the scrawl and mess. I can barely write this) and was depressed about his eyesight. What is so horrifying is that in the past I had had no memory of having given him any of the medication but I have a vague memory. He asked me for a couple and I (end of page 17/ beginning of page 18) gave them to him. We stayed out all night and the next day I marched off in a dream to "steal" some new clothes fuelled by some delusion. I would have confidence in them to meet a girl and thus suddenly everything would start to finally come together this time. All I had to do was look the part. I do not understate - this was the dementia going around in my head. I got caught because I was apparently in the change room for over an hour or something. I had no concept of anything. Then when I was caught I suddenly woke up to what had happened but I could never tell anyone because it was all too insane so I went through the motions. After the Police released me I went back to the house. I found Sean and called the ambulance. *please forgive me not writing about how I felt and feel about this at seeing him like that and what happened. I cannot yet get my mind around what has happened. I know I'll be asked about it at the inquest but I cannot process it. It leaves you with such a sick awful feeling such as I cannot ever define. And to have it happen again is a horror of a burden and vexation that twists me up inside. It's hard enough to talk about what has happened to me but I think I find it so hard to talk about Sean and Brian simply because I would never ever want to hurt anyone and I cannot get around that was not me but a personality outside normal reason and sense when around them and other people who wh e r e were more influenced by that persons excited, reality burred mind which they envied as fun while seeing and knowing nothing of the true, misery, nightmare prisoner existence that was me also. Sean had an incredible story and could have helped so many young people. He encouraged me. If I make it it will be to always keep what has happened as a force to help others. This is not the 'expected sentiments speech' it is a (end of page 18 / beginning of page 19) poor attempt to find a way to try and find traction to go forward via the only means left - to fight for truth for the lives of others. After Georges house I think I was at Nowra at my mums and being so sick ended up being then in derelict houses. I had all sorts of agonising pain in my back, body, head. Nightmares, sleeplessness, blackouts, insanity, police, hospitals, psych wards - *really over the last half page I have just hit burnout, emotions. May be I can now write point forms. I went to live with a helper in Menai. I was too much strain on them. He took me to the lodge in Darlinghurst. I came under deep depression for which the option epilum was useless and worsened. I couldn't leave my room for days. Black and terrified. At what point into being there I came under severe depression I don't know. I think I was on other antidepressants again, being terrified of effexor and aurorix which by those years nothing else lifted the depression but they gave me blackouts, fainting, seizures, sweats, shocks and stabs in the brain, nightmares, mental insanity, mental retardation. When manic or insane I think outwardly I appeared fine most of the time but I was in my own world/mind. Whatever I was on or had resolved gave way to blackness and I began drinking again. Bryan was or we were best friends there. In the end I was again putting hope in the medications (I never wanted to take against out of horror at Seans death) to lift me out of the depression that came down with a vengeance when whatever I was on ceased to have effect and I grew worse and worse. As I see it, the warped relationship one has to the lethaly addictive mind slave medications is like a pharmacological version of Stockholm syndrome. All your life has become - all you know, see, hear and feel is a distorted reality from that (end of page 19 / beginning of page 20) which has taken you captive and you are totally under the power and control of. You are its prisoner, and though it has stolen you, and killed you, and is destroying you, - yet you are still utterly dependent on it, and so you need it, and therefore value, if not twistedly love it. It is so abominably sick and perverse. Brian was a beautiful person. We would do little things like getting a homeless person something to eat and drink. That similar heart was why we became best friends. Then the crushing despair came down again I hid away. Crying in bed for days. Later told people I'd gone away. Later when manic (poisoned again) I was probably mindlessly espousing the wonders of the very medications that had utterly killed me and laid my life waste and which things terrified me and I hated. But having brought me out of utter suicidal darkness into delusional psychosis again, I was probably singing their praises. I dont blame Brian for envying another persons happiness. I just wish I could go back to before I had ever taken prozac. Because Brian did not see a happy person he saw a manic fool whose demeanour came from a mind affected by poisons. The very antidepressant poisons that also cause him suicidal despair in spite of taking those other misnomers, 'mood stabilisers' and 'antipsychotics'. I can only think and write at all (all be it still very poorly) because of the proper and true diagnosis (conclusively proven by blood tests) and medical treatment I've finally been receiving after 36 years and that with vital full time carer/support and in education of these toxic drugs I've finally been able after an absolute nightmare 2yr life and death struggle to wean off and break free of them. I can see similarities between the two tragedies in that both Sean and Brian had previously been on and were talking of antidepressants (end of page 20 / beginning of page 21) when they witnessed my total change in mood which probably they misconstrued as being a 'positive antidepressant effect'. I must have seemed like a convincing ad for these things and in some strange capacity may have thought I was helping them by telling them to go see their doctor, and when asked - giving them, a sample of mine. When I found Sean I had been convinced it was a day or two later or something and I asked him if he's taken more and how many but he couldn't even speak. It was like everything was going on outside of you, being in a dream. It has been that way really to some degree since first ever being prescribed these things. But I can only now clearly discern that, being off them all. I am and will forever be hauntingly burdened. I had left Brians room at his insistence at needing to get sleep for work. I only left him because I felt sure he was Ok, being conversant and normal. Others had said they had seen him ok as well, so it can't have been imagined. I mean it must have been so. I don't know what happened after that. I don't know what of my medication he may have taken earlier on in the night when I'd gone downstairs and left my bag there because I can never clearly remember or think. He'd just grin that grin of his. I never knew he was taking some other medications besides. How could I have had anything positive or praiseworthy to say to Sean and Brian or anybody else about these things? They hadn't taken away my depression they'd cast me into suicidal despair, then into insanity. Then I'd been given more drug poisons, and still more. On Lithium or Epilim I had been overcome with a metallic tasting nausea and begun vomitting, shaking and sweating profusely. I had an horrific nightmare hallucination I was vomitting up my insides and was screaming in terror trying to stuff them back in my mouth. Made to appear like a returning dog." The Other Charges 52Approximately six months after the death of Mr Hadfield the appellant, Mr Michael Wilson, Mr John Willans and Ms Amanda Ryan went on a binge of drug taking over a number of days. They consumed Moclobemide and Venlafaxine. 53Mr John Willans met the appellant at a psychiatric clinic to which he was admitted for depression towards the later part of 2004. They became friends. Mr Willans also met Ms Ryan at the clinic and she became his girlfriend. She suffered from a bipolar mood disorder. The appellant was released from the clinic at a different time from the other persons. Mr Wilson was also a patient of the clinic. 54The appellant was charged with three counts contrary to s 39 of the Crimes Act 1900 (NSW) that the appellant maliciously caused a person to take a poison or noxious thing so as to endanger his or her life. The jury acquitted the appellant of the charges in relation to Mr John Willans and Ms Amanda Ryan but convicted him of the charge involving Mr Michael Wilson. 55Mr Wilson gave evidence that the appellant offered him the two drugs to be taken in combination. He said the appellant referred to the drugs as "lollies." He told Mr Wilson that he would get "high" and that if he consumed them with beer he would "get a better high". Mr Wilson gave evidence that he was not warned about the dangers of taking the drugs in combination. He said that for a few days after taking the drugs and alcohol he was sick although he did not seek medical attention. 56The specific incident, which is the subject of the charges, took place between 11 and 16 January 2005. Mr Willians drove with Ms Ryan to Nowra. At that time he was prescribed Effexor tablets morning and night. They picked up the appellant from a house in Nowra and drove to another house in East Nowra where Michael Wilson lived. The appellant asked them if they wanted some pills indicating they would "have a trip effect" and give them a high. 57According to Mr Willans the appellant gave him one tablet each of Aurorix and Effexor. He gave Ms Ryan half a tablet of each, although her evidence was that she was given one of each. Ms Ryan said that she knew one tablet to be Effexor but did not know the identity of the other tablet. Mr Wilson was also given tablets. 58According to Mr Willans the appellant told them the pills were dangerous and they should not take too many and that because he knew the right amount to take he would hold onto the box. Mr Willans last memory "except for little snippets of hazy memories" was getting into a car. He understood that they travelled to a pub or club in Sydney. He was effectively "missing" for 4 days being ultimately pulled over in his car by the police and later waking up in the Prince of Wales Hospital. 59By the time of the trial of the appellant, Ms Ryan was dead. Accordingly, the evidence she gave at the Local Court was read to the jury. She said that they had travelled to Sydney and on the way back to Nowra they were pulled over by the police. Mr Willans was driving. The police told them to wait by the car and sober up which they did after which they drove to Mr Wilson's place at East Nowra and there they took more of the appellant's pills. 60Not far from Mr Willans' house at Falls Creek they were again pulled over by the police. Ms Ryan was shaking and ill and was taken to Shoalhaven Hospital and then to Shellharbour Hospital. 61Mr Willans was also taken by the police to Shoalhaven Hospital. He was treated by Dr Meischke. The doctor gave evidence that Mr Willans had told him he had taken a lot of Venlafazine pills "maybe 100". The doctor made a provisional diagnosis of Serotonin Syndrome and gave Mr Willans medication to which he responded and thereafter became less confused. 62Dr Meischke also treated Ms Ryan although she was uncooperative. She told him that she had taken "heaps of Venlafaxine." 63One of the issues at the trial was whether Mr Willans and Ms Ryan had entered a suicide pact. There was evidence that Mr Willans had admitted to having anti-depressants and intending suicide with his girlfriend. However, there was also a record from the Prince of Wales Hospital where he denied attempting suicide and indicated that his intention was to get a "high" and that his overdose was accidental. 64Dr Meischke also questioned Ms Ryan about her motive. She said that she wanted to die and a record was made of "attempted suicide". However, there are also hospital records in which she denies making a suicide pact with her partner. 65There was also evidence that during the course of the group's journey on that day and night the appellant and Ms Ryan went into a doctor's surgery and obtained scripts for more pills which they filled at a chemist. The doctor gave evidence of having seen two new patients within ten minutes of each other on the morning of 14 January 2005. The doctor first saw the appellant and gave him a prescription for Aurorix and Epilim after being told he was out of medication. Ten minutes later the doctor saw Ms Ryan and prescribed Effexor as she claimed she was out of the drug which was necessary to treat her bipolar disorder. 66Mr Wilson gave evidence that after Mr Willans, Ms Ryan and the appellant arrived at his house they drank a considerable quantity of beer. The appellant offered him "lollies" and said that he could get a high from them. The appellant asked how many Mr Wilson wanted and he said "four of each." Mr Wilson consumed the pills. He said that the appellant did not warn him about any dangers but told him that "drinking them with beer you get a better high out of it." The appellant apparently also took some tablets. 67Mr Wilson said that the effect of the tablets was not immediate. He said that some hours later they took more pills ultimately consuming 7 of each pill. It was when they ran out of pills that they arranged to replenish their stock from a pharmacy. Grounds of Appeal 68The appellant relies on the following grounds of appeal: Ground 1 The verdict of the jury on charge 1 (felonious slaying of Shaun Bateson) was unreasonable and not supported by the evidence. Ground 2 The verdict of the jury on charge 4 (having maliciously caused Brian Hadfield to take a poison) was unreasonable and not supported by the evidence. Ground 3 The verdict of the jury on charge 7 (having maliciously caused Michael Wilson to take a poison) was unreasonable and not supported by the evidence. Ground 4 The trial judge erred in law in admitting particular tendency and coincidence evidence. Ground 5 The trial judge erred in law in his direction to the jury on what constituted causing a person to take a drug. Ground 6 The trial judge erred in law in his direction to the jury on manslaughter by criminal negligence. Ground 7 The trial judge erred in law in admitting into evidence Exhibit W. 69Section 6(1) Criminal Appeal Act 1912 (NSW) states that the Court of Criminal Appeal "should allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". 70The appropriate test was discussed by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at [493], where it was stated that a court of criminal appeal must ask itself whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, bearing in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses. 71The appeal court must undertake its own independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in all the circumstances to allow the verdict of guilty to stand; M at [492] - [493]. 72More recently in SKA v The Queen [2011] HCA 13 French CJ, Gummow and Kiefel JJ said at [13]-[14]: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M , Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1) The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." Ground 1: The verdict of the jury on charge 1 (felonious slaying of Shaun Bateson) was unreasonable and not supported by the evidence. 73The trial judge instructed the jury as to the elements of the offence of "felonious slaying" in writing. It reads as follows: 1.Shaun Bateson died on 4 May 2004; 2.Unlawful and dangerous act: a) maliciously b) cause to take c) a substance that was a poison (or other destructive or noxious thing) d) endangering life; or 3.Manslaughter by criminal negligence a) duty of care is owed b) conduct breached duty of care c) act merited criminal punishment d) act caused death 74As I have already indicated the major dispute in this appeal concerns the element of causation in relation to both unlawful and dangerous act and gross criminal negligence manslaughter. 75The appellant accepted that Mr Bateson died from the combination of Aurorix and Effexor tablets. He also admitted that he gave Mr Bateson some of these tablets before lunchtime when they were seen together at the shopping centre. However, the appellant submitted that the Crown could not prove beyond reasonable doubt that the appellant supplied Mr Bateson with the "fatal dose of tablets" that actually caused his death. It was submitted that it was more likely that Mr Bateson took the fatal dose of tablets that caused his death after he was seen at the shopping centre from the stock of tablets in the appellant's room and when the appellant was not present. 76The Crown's response was to emphasise that Dr Kennedy said that Serotonin Syndrome "normally" starts developing 2 to 4 hours after the tablets are consumed but there are variations amongst individuals. He said "there's individual variations, yet most people you'd expect it to come on within about 6 hours, but that can vary." It was submitted that the sighting of Mr Bateson when he was snoring and very ill was within this "time frame." Dr Kennedy said that the effects of serotonin build up can increase over time. The Crown emphasised that when Mr Derwent observed Mr Bateson at the shopping centre he observed him to be "high" and "very agitated." 77The "Dear Dr George letter" is relevant to this issue. In the letter the appellant described the condition of himself and Mr Bateson when they parted company that day. He wrote, "He asked me for a couple and I gave them to him", "we stayed out all night and the next day I marched off in a dream to steal some new clothes fuelled by some delusion." It was submitted that the letter could be understood as expressing the appellant's belief that the combination of drugs he had given Mr Bateson was responsible for his death. 78The Crown submitted that it did not have to establish a precise act causing death in order to establish manslaughter: R v PL [2009] NSWCCA 256 at [46]. It was submitted that it was a misapplication of principle to seek out the principal or "fatal dose" of tablets and all that needed to be proved was the supply of the combination of drugs to Mr Bateson "substantially contributed to his death"; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [66], [71]. 79The Crown submission was founded upon the evidence of Dr Kennedy who indicated that Venlaxfaxine increased the level of serotonin between the nerves and is accordingly prescribed to avoid depression. Moclobemide stops the serotonin from being broken down and released from the nerves. The doctor said "it's like a double effect ... of serotonin build up." Serotonin Syndrome is an excess of serotonin. Accordingly the Crown submitted that it was open to the jury to conclude that the combination of these drugs which had been given to Mr Bateson by the appellant prior to them being seen at the shopping mall had substantially contributed to the build up of serotonin in his system and ultimately his death irrespective of whether or not Mr Bateson had helped himself to more tablets. 80The appellant emphasised that the evidence did not provide any detail of the circumstances in which the appellant gave the tablets to Mr Bateson. Additionally, there was no evidence relating the circumstances in which Mr Bateson actually took the tablets. Importantly, the appellant emphasised that there was the opportunity for Mr Bateson to have accessed the appellant's room during the afternoon to obtain tablets which was not excluded by the Crown. 81The appellant also emphasised that having regard to Dr Kennedy's evidence it was unlikely that Mr Bateson took the fatal dose of tablets during the course of the night of 30 April 2004 when he was out partying. Although it was possible that the severe effects of consuming the tablets may have emerged after a longer time Dr Kennedy's evidence was that they would usually become apparent within 2 to 4 hours of the taking of the drugs. 82The appellant emphasised that Mr Bateson was seen by Mr Derwent just after midday on 1 May 2004. The evidence indicates that at that time Mr Bateson showed no sign of irrationality or confusion consistent with a diagnosis of Serotonin Syndrome and had no difficulty walking. The appellant submitted that accordingly it was more likely that Mr Bateson took the tablets which caused his death at a time after his meeting with Mr Derwent and at a time when he was not in the company of the appellant. Although the appellant was not apprehended for shoplifting until around 4.30pm on 1 May 2004, there was no evidence that the appellant was with Mr Bateson after 12.30pm or that any drugs were given to Mr Bateson in the shopping centre after the meeting with Mr Derwent. 83I accept the appellant's submission. Although it is possible that the tablets which the appellant gave to Mr Bateson earlier in the day may have caused his death it is not possible to conclude beyond reasonable doubt that this was the case. There can be no doubt that the appellant and Mr Bateson were separated for some hours during the afternoon during which time Mr Bateson could have, if he had chosen to do so, accessed the appellant's room where the tablets were kept. Given the fact that Mr Bateson was in search of a "high" it would be entirely possible that he sought out further tablets without reference to the appellant and that it was that overdose that triggered Serotonin Syndrome. 84I accept the Crown's submission that it was not required to identify a fatal dose given by the appellant to his victim but can prove the offence by proving that the combination of drugs given to Mr Bateson by the appellant substantially contributed to his death. However, given the timing of the events on the afternoon of 1 May 2004 and the expert evidence as to the time frame for the onset of the symptoms of Serotonin Syndrome, to my mind there is insufficient evidence to make the finding beyond reasonable doubt that the drugs known to be supplied by the appellant before they were at the shopping centre substantially contributed to Mr Bateson's death. 85The evidence does not enable a conclusion that it was the appellant who gave Mr Bateson the tablets which contributed to or caused his death. 86I would uphold this ground of appeal. Ground 2: the verdict of the jury on charge 4 (having maliciously caused Brian Hadfield to take a poison) was unreasonable and not supported by the evidence. 87The appellant was acquitted of the manslaughter of Mr Hadfield but was convicted of the alternative count of having maliciously caused him to take a poison or other noxious thing, the taking of which endangered life. It is likely, as the appellant submitted, that the verdict of acquittal on the manslaughter charge was the result of the fact that the medical evidence did not establish beyond reasonable doubt that Mr Hadfield had died of Serotonin Syndrome. 88The fundamental complaint of the appellant again relates to the element of causation. The appellant accepts that there was evidence capable of proving that the appellant gave the two drugs to Mr Hadfield. However, the appellant submitted that although there was evidence capable of proving the appellant had given drugs to Mr Hadfield there was also evidence that Mr Hadfield was consuming tablets in his room at a time when the appellant was not present. 89One of the residents Mr Milos Nedelson gave evidence that he had seen a box of Effexor in Mr Hadfield's room about a week before 14 July. Mr Nedelson warned Mr Hadfield not to take it while he was drinking. Mr Hadfield told Mr Nedelson that he had been taking the drug to get high. Mr Hadfield told him that he had obtained the Effexor from Daniel, clearly a reference to the appellant. 90At about 7 pm on 14 July Mr Nedelson saw Mr Hadfield in his room. He was walking past and Mr Hadfield invited him in for a drink. Mr Hadfield had some bottles of beer and a large bottle of gin or vodka. Mr Nedelson again saw a box of Effexor in the room. He gave evidence that Mr Hadfield was "off his head and incoherent." 91At about 8 am the next morning Mr Nedelson again saw Mr Hadfield in his room. He saw the packet of Effexor and Mr Hadfield told him he had taken half a packet during the night and had also been out at a hotel drinking for a couple of hours. Mr Nedelson went out for a time and soon after returning at 10 am found Mr Hadfield unconscious or perhaps already dead on the floor. There was other evidence of Mr Hadfield drinking on the afternoon and evening of 14 July as well as consuming tablets. By 8.30 pm the evidence indicated that Mr Hadfield was swaying on his feet and Mr Withers thought he was drunk. 92The appellant's submission identified the fact that although the appellant supplied Mr Hadfield with the drugs the evidence does not indicate that Mr Hadfield took them when the appellant was present and the evidence did not exclude the possibility that Mr Hadfield took the combination of tablets "voluntarily." More significantly it was submitted that there was no evidence that the appellant did not tell Mr Hadfield that in combination and together with alcohol the tablets were dangerous or that Mr Hadfield already knew that to be the case. 93The Crown's response was that the submissions involved a misapplication of principle. The evidence indicates that the appellant believed that the combination of drugs he had given to Mr Hadfield caused his death. The Crown emphasised that the appellant told Ms Roberts "they went out one night and came home after taking the pills and his mate dropped dead." 94The Crown submitted that there was evidence to support its submission that Mr Hadfield did not know that the two drugs were dangerous or that the appellant did not tell him this. The Crown pointed to the following evidence: a. Evidence of a tendency not to inform or fully inform those persons who took those drugs in combination the dangers of which he was aware; b. The appellant's reference in the "Dear Dr George letter" to talking of anti-depressants Brian Hadfield had been on, his witnessing the appellant's change in mood and "positive anti-depressant effect" and this being a "convincing ad"; c. There was no suggestion Mr Hadfield intended any self harm. 95The Crown emphasised that Mr Hadfield was vulnerable and it was submitted that the appellant was in a position of influence over him and "commanded Mr Hadfield's compliance" to take the tablets with the expectation of forthcoming positive mood change. 96Assessment of the evidence in relation to the death of Mr Hadfield for the purpose of this ground of appeal requires consideration of the meaning of "cause to take". This issue is the subject of a separate ground of appeal under ground 5. 97However, it is sufficient for me to indicate that having regard to my conclusion in respect of ground 5 of the appeal, I am not persuaded that the Crown has proved, to the relevant standard, that the appellant was in a position of influence over Mr Hadfield. The evidence also indicates several instances where Mr Hadfield, having received warnings from other residents about consuming both drugs and alcohol, continued to do so in the absence of the appellant. The consequence is that the evidence is insufficient to find that the appellant caused Mr Hadfield to take the relevant drugs. Ground 3: the verdict of the jury on charge 7 (having maliciously caused Michael Wilson to take a poison) was unreasonable and not supported by the evidence. 98The offence relating to Mr Michael Wilson was an alleged contravention of s 39 of the Act. Mr Wilson gave evidence that the appellant did not warn him of any dangers in taking the drugs. In fact he said that he was told that taking them with beer would give a "better high." 99The Crown emphasised that there was evidence from Mr John Willans that the appellant took control of the box of tablets when dealing them out. It was submitted that as a consequence this was evidence of a "position of influence over the others, directing if and when tablets could be consumed." Mr Wilson stated that on the occasions that he received tablets, he did so from the appellant. He always received a combination of the two. 100The Crown accepted that the trial judge misdirected the jury in relation to the concept of "cause to take" which I discuss under ground 5 below. However, it was submitted that had the proper direction been given the jury would still have concluded that the appellant was guilty of the offence. 101The appellant's submission involves a detailed consideration of the relevant evidence. The sequence of events commenced with Mr Willans and Ms Ryan driving to Nowra to meet the appellant in January 2005. They then drove to a house where Mr Willans was living. At the house, Mr Willans said in his evidence that each person took tablets of Aurorix and Effexor, given to them by the appellant. Mr Willans thought the appellant gave Mr Ryan half a tablet of each, but one of each to himself. He said that the appellant spoke of the effects, saying "that it'd make you feel good. He also said it would be dangerous." 102After this, the four got into Mr Willans' car. He was driving. He did not recall taking any more tablets. His memory of what followed was "little snippets of hazy memories." 103Mr Willans had no memory of having drunk alcohol over this period. In previous evidence, which he said was true, he had been asked whether the appellant had said "if you were going to take any, take no more than one each", to which he had replied "Yes, that's why he had handed them out." He also agreed that the appellant had said he was going to take control of the box because he was worried about anyone taking more than one, and that the appellant had warned several times that you shouldn't take more than one of each. In his statement made in November 2006, he had said "I remember Daniel telling us it's dangerous if you take too many. I know the right amount to take so I will hold on to the boxes." 104Ms Ryan gave evidence of events that took place at Mr Wilson's place. She said that she and Willans were "quite cranky" because they had had a fight with Mr Willans' mother, and then the appellant said that he had some pills, and asked them if they wanted some. He said "that they have a trip effect and give us a high." She said that she and Mr Willans talked about it, and told the appellant they would like some. 105She said that she took two tablets. One was Effexor, which she had taken before, but she could not remember the name of the other. Mr Willans and Mr Wilson also took them, but she could not say how many. They made her feel "a bit more full of life." 106They stayed at the house until 9 or 10 pm then drove to Warilla looking for a bottle shop. Not finding anything, they drove to Sydney, arriving about 4 am. They waited for a bottle shop to open, and at 6 am bought a case of 24 beers. They all drank them. They then returned to Jamberoo, where police stopped them, searched the car, and told them to wait by the car a few hours until they had sobered up. They then drove to Mr Wilson's place at East Nowra, where they all took more tablets. She had two of each. They remained at the house all day. She, Mr Willans and the appellant finally left in the car. They ran out of petrol, got stuck in dirt, and had to be towed out by the fire brigade. Later they were again pulled over by police. She could not get out of the car, and was vomiting. Ultimately she was taken to hospital. She did not remember taking pills other than on the two occasions at the house, as outlined above. 107Ms Ryan had no recollection of going to a doctor to get a prescription during the trip, nor of going to a chemist to get pills. 108According to Mr Wilson, when Mr Willans, Mr Ryan and the appellant arrived at his house, Mr Willans had a few beers with him, which they drank. They then went and bought another carton of twenty four, which they also drank. The appellant had some pills, and asked if they wanted some to get a high. Mr Wilson said there were two different types of anti depressants. One he knew was Aurorix because he read the pamphlet that came with it, but he did not know what the other was called. 109Mr Wilson said that he said "I'll have some" and took another four of each. Mr Wilson said "we took them regularly throughout the night", and "we all took some at the same time." He said they drove to Port Kembla for more beer, but the place was closing. He said he had more tablets, probably three, on the way to Port Kembla. They decided to go to Kings Cross, where Mr Willans and the appellant bought a carton of long neck beer. They drove to the waterside and sat in the car drinking. He said he took tablets frequently throughout the trip to Sydney, and got them from the appellant. 110On the way back, they stopped at Sutherland where Ms Ryan and the appellant went to a doctor's surgery to obtain more pills, because they had run out. Mr Wilson and Mr Willans went to a hotel to wait, and Mr Wilson had a drink. Ms Ryan and the appellant came out of the doctor's surgery with scripts, and went to a nearby chemist, where they got more of the tablets they had been taking. 111They travelled back through Jamberoo, and while stopped on a track near a paddock, a police car arrived. Mr Willans was breath tested. They all had black rings around their eyes, which Ms Ryan had painted with texta. "The police told us to go down to a local creek just over a bit of a hill, go for a bit of a swim and try and straighten out before we all headed home." They eventually returned later that day to Mr Wilson's house. He got out of the car and the others drove off. 112He was feeling lethargic and lacking in energy. This continued for two to three days. He did not seek medical treatment. 113It is relevant to an analysis of this ground that the appellant was acquitted in relation to the charges involving Mr Willans and Ms Ryan and convicted only in relation to the charge of Mr Wilson. This may be explained by the suggestion that both Mr Willans and Ms Ryan had suicidal tendencies. Their hospital records confirm the situation. As indicated previously there was also evidence that the appellant had warned Mr Willans that the combination of pills "would be dangerous". 114The appellant submitted that the evidence points only to a voluntary taking of the tablets, without persuasion by the appellant, and with the appellant having given a warning at least along the lines attested to by Mr Willans. It was submitted that all four persons were together throughout the episode and that the warnings heard by Mr Willans must have been given in the hearing of the others. The tone of their evidence is that they were either knowingly or recklessly indulging in the use of drugs. 115As I have already indicated the resolution of this ground of appeal is dependent upon the correct understanding of "cause to take" which I discuss under ground 5. To my mind the appellant is correct in his analysis of the evidence. It could not be concluded that the appellant was relevantly in a position of influence over the others and directed them to take the tablets. No doubt he influenced them and made the tablets available but I am not satisfied beyond reasonable doubt that applying the relevant test he caused Mr Wilson to take them. 116I would uphold this ground of appeal. Ground 4: The trial judge erred in law in admitting particular tendency and coincidence evidence and allowing the Crown to address on the basis of such a tendency 117The trial judge was required to rule in relation to the admission of six separate categories of tendency evidence. The appellant challenges his Honour's ruling in respect of only one alleged tendency being: "A tendency not to inform or fully inform those persons who take the drugs in combination of the dangers of which he was aware of taking the drugs in their combination." 118The Crown relied on five categories of evidence to support this tendency: 29 July 2000 hospitalisation of Ms Mullane - asked if he gave her any warning of dangers she said "none whatsoever." Mid January 2005 - John Willans - he said: "The main things I remember from the conversations were they'll make you feel better, but it also was dangerous, but I have to say I didn't ask too many more questions. The whole sort of time in my life that it happened, I wasn't too well myself." Later asked about any conversation before taking the medication or any time later in the evening, he answered: "I remember him saying they were dangerous and you shouldn't take too many of them. And then I don't remember anything after taking the first two..." Mid January 2005 - Amanda Ryan - she could only remember being told by the appellant that the pills "have a trip effect and give us a high." Mid January 2005 - Michael Wilson - he was asked whether he recalled anything said by the appellant about danger or warnings or the effect the combination of pills had had on other people he knew, and answered "no". A particular reference in the "Dear Dr George letter." 119The appellant submitted that there was no evidence that the appellant knew that the drugs in combination were dangerous before the incident involving Ms Mullane. The incident involving Ms Mullane occurred in July 2000. Although the appellant submitted that before that incident there was no evidence that the appellant had knowledge of the possible effect of the drugs in combination Ms Bailey did give evidence that the appellant was researching the effects of the combination of the anti-depressants before Ms Mullane's difficulties. Ms Bailey said that the appellant's research and interest in the issue "continued for years but he started prior to the Taree (Ms Mullane) incident." There was of course other evidence which indicated that the appellant must have known that the drugs in combination were dangerous. Pharmacists were required by law to warn purchasers of the potential dangers and warnings are found on their packets. 120With respect to the second basis advanced by the Crown of the failure to warn, it could not in my opinion found the relevant conclusion. Mr Willans' evidence, insofar as it is reliable, includes a recollection of a discussion about the danger associated with the drugs and included the statement "I remember him saying they were dangerous and you shouldn't take too many of them." 121The third and fourth bases are affected by the fact that the evidence indicated that the appellant and Mr Willans, Ms Ryan and Mr Wilson were involved in a joint escapade. There is little doubt that the recollections of the relevant events are not entirely clear and given Mr Willans' recollection that he was told the drugs were dangerous the evidence of Ms Ryan and Mr Wilson would be an unsatisfactory foundation for the relevant inference. 122With respect to the "Dear Dr George letter" the Crown directed attention to the following passage in the letter: "Both Sean and Brian ... were talking of antidepressants when they witnessed my total change in mood which probably they misconstrued as being a 'a positive antidepressant effect'. I must have seemed like a convincing ad for these things and ... may have thought I was helping them by telling them go to see their doctor, and when asked - giving them a sample of mine." 123It was submitted that rather than containing a warning the appellant was singing the praises of his concoction. 124I do not accept the Crown submission. At best the statement is equivocal. Although the appellant was undoubtedly giving positive indications with respect to the use of the drugs it provides no evidence that he had a tendency to promote their use without giving a warning. 125The consequence of this analysis is that in my opinion there was insufficient evidence to support the alleged tendency. However, as it happens the trial judge did not refer to this matter when summing up to the jury. This of course was to the appellant's advantage and accordingly although this ground is well founded I do not believe it occasioned a miscarriage of justice. Ground 5: the trial judge erred in law in his direction to the jury on what constituted causing a person to take a drug. 126In written directions in relation to counts 4 and 7, being offences contrary to section 39, the trial judge set out the elements of the offence being that the appellant: 1. maliciously; 2. caused the named person to take a substance; 3. the substance was a poison (or other destructive or noxious thing); 4. the taking of which endangered life. 127The written directions provided instruction in relation to the second element - "cause to take." This direction was also relevant to the directions with respect to unlawful and dangerous act of felonious slaying in count 1. 128It is unnecessary to set out the whole of his Honour's directions concerning "cause to take". However, the written directions included the following: "Meaning of 'Cause to Take' What is meant by causing the named person to take a substance? Before this element is made out beyond reasonable doubt, it is necessary that you be satisfied that the accused induced the named person to take the poison or noxious thing. To be induced the named person must be persuaded, in the sense that his or her decision to take the substance was substantially influenced, by what was said or done by the accused in relation to taking of the substance. Merely encouraging the named person to act in this way is insufficient. The named person must actually be induced to act in this way." [Emphasis not in original] 129There were two issues raised by the appellant. The first concerned the use of the expression "substantially influenced." The appellant submitted, relying upon the decision of the High Court in O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220, that the instruction to the jury, that the person must be "substantially influenced", was a misdirection. In O'Sullivan the publishers of a weekly newspaper had sent bundles of their newspaper in the course of their business from Melbourne to newsagents in Adelaide. The High Court held that the publisher did not thereby "cause to be offered for sale", within the meaning of a South Australian statute (the Police Offences Act) an offending newspaper which was sent. It was the view of the High Court that, since the newsagents offered the papers for sale of their own free will, the defendant did not "cause" their actions. Dixon CJ, Wilson, Webb and Fullager JJ cited (at 228) a passage from the 3 rd ed. of Halsbury's Laws of England: "Before a man can be convicted of causing he must be in a position of dominance and control so as to be able to decide whether the act should be done or not (authority cited), and it must be established that he gave some order, command, direction or authority to the person doing the act (further citation of authority)." 130Although this passage was cited with apparent approval the conclusion expressed in the joint judgment shortly thereafter (at 228) did not include the necessity for there to be "some order, command, direction" to the person doing the act. Rather the joint judgment referred to the act being the "consequence of his exerting some capacity... to control or influence" the other. The conclusion reached was that when it is made an offence to "cause" the doing of a prohibited act: "It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue." [Emphasis added] 131Kitto J agreed with the majority but published a separate judgment. His Honour said that for a person to cause another's act the person needs to express it as his will that the act shall be done by the latter who makes a decision to submit to the former's will. His Honour highlighted two matters. Firstly, the expression of the will need not be couched in the language of command. Secondly, although an expression of will can be "readily seen" where the person occupies a position of dominance and control, a position of dominance and control is not an indispensable condition. Kitto J said (at 231): "A man may surely cause a letter to be posted by asking someone whom he meets in the street to be kind enough to post it. If the person he asks is one over whom he has some kind of authority, or to whom he is in a position to do some later favour, that may account for the latter's compliance. But there may be no such situation - the two may be strangers to one another, for example - and the explanation of the compliance with the request may be found simply in the obliging nature of the person to whom it is made." 132This decision was recently considered by Howie J in the context of causing a person to take a poison contrary to s 39 of the Act; R v Wilhelm [2010] NSWSC 334; 200 A Crim R 413 (19 April 2010). The directions in the present trial were given in August 2009 - prior to this decision. In Wilhelm the accused offered a dose of a drug to Mrs Brimble which he said was like ecstasy but made you ten times hornier. The ingestion of the substance led to her death. Howie J held the offence was not made out if proof went no further than demonstrating that the accused gave Ms Brimble the drug and influenced or encouraged her to take it rather than the taking of the drug being a result of the influence of the provider of the drug over the other person. His Honour said: "... But the offence is not one of encouraging or inciting or influencing a person to take a poison, it is one of causing a person to take a poison. ... But there is a difference, in my view, between a person being in a position of influence over one person and a person influencing another person. They are two very different concepts... In my view the use of the words "cause another person to take" is to cover that situation where a person in authority over another, for example an adult over a child, orders, commands, or directs the child to take the drug and, therefore, brings about the consequences that the section covers..." 133In the present case the Crown concedes the trial judge's instruction to the jury that the person must be "substantially influenced" was a misdirection of law. The Crown accepted Howie J's analysis that there is a difference between influencing (or in this case 'substantially influencing') and being in a position of influence over another. 134The second issue concerned the trial judge's direction that the recipient must make a "fully informed and voluntary" decision. The written directions included the following: "So the question here is, is it reasonably possible that the named person made a fully informed involuntary ( sic "and voluntary") decision to take the poison or noxious thing? Whether that decision was based on their own knowledge and experience of potential dangers associated with taking prescription drugs or based on something that they were told by the accused in the form of a warning about the prescription drugs then you could not be satisfied that the element of the accused causing the named person to take the drugs as been made out. That is you would find that the Crown has not proved this element to you." (Emphasis added) 135The concept of a "fully informed and voluntary decision" and its relevance to the concept of causation was discussed in R v Kennedy (No. 2) [2008] 1 AC 269 in respect of s23 Offences Against the Person Act 1861 , materially similar to s39 Crimes Act 1900 (NSW). The House of Lords in Kennedy (No. 2) at [14] and [18] said that a "voluntary and informed decision" by a deceased to take drugs was fatal to any contention that the appellant caused the drug to be taken by the deceased. 136More specifically, Lord Bingham stated at [25] that an act performed by a "fully-informed and responsible adult" will always break the chain of causation between the drug supplier and deceased where the deceased freely and voluntarily self-administered the drug and the drug killed him. 137The appellant submitted that because, in the present case, no explanation was given by the trial judge of the word "fully", the jury would have understood that to avoid liability the warning required to be given by the appellant needed to be very extensive. The appellant submitted that no assistance was given to the jury about the content of the warning and whether it must include all relevant pharmacological information about the side effects, the communication of warnings given by suppliers or some lesser level of information. 138It is clear from the trial judge's direction that his Honour was mindful of the decision in Kennedy (No. 2) . However, Kennedy (No. 2) does not offer any insight into the intended meaning of "fully" in this context. Given that the word must be understood in the context of the potential criminal liability of a supplier of a dangerous drug it could not mean the level of knowledge of a person who has all the knowledge that might be available about the drug. To my mind, the fully informed person will be a person who has been given the knowledge which the person who supplies the drug has about the properties and prospective dangers of consuming the drug. This may in some cases be minimal and probably inadequate. In other cases where the supplier has a greater knowledge it may be quite extensive. But I do not believe the criminal law should impose liability by requiring the supplier to pass on knowledge which may be available elsewhere in the community but which he or she does not have. 139At trial, the appellant made an application for acquittal in respect of counts 3 and 4 (the two charges relating to Brian Hadfield) on the basis that the forensic evidence did not prove a specific cause of death of Mr Hadfield. The application was not made in the terms advanced under this ground of appeal Accordingly leave under rule 4 is required. I would grant that leave. 140To my mind, the trial judge erred in his written directions on "cause to take" in two respects. The term "fully informed" was not adequately explained to the jury. Furthermore, as the Crown accepted, the instruction to the jury that a person must be "substantially influenced" was not correct. These errors occasioned a miscarriage of justice. 141I would uphold this ground of appeal. Ground 6: The trial judge erred in his direction to the jury on manslaughter by criminal negligence. 142The trial judge gave directions in relation to manslaughter by criminal negligence which included directions with respect to causation which incorporated the difficulties discussed in ground 5. 143The Crown also conceded in oral argument that the jury were not given a sufficient direction in relation to the content of the duty of care. The direction given by the trial judge was in the following terms: "I direct you therefore as a matter of law that the duty of care which you are called upon to apply here is: a person who has specific knowledge as to the dangers of the use of the two prescription drugs when taken in combination assumes a duty of care to those to whom he can foresee a risk of injury, if he provides the drugs to them believing that they will take them in combination. The person acts in breach of that duty when he or she does something which a reasonable person in his or her position would not do in the circumstances". 144Although not explored in the argument the concession made by the Crown was appropriate. However, without the matter having been discussed it would be unwise to embark upon a discussion of the matters which should have been included. 145Accordingly this ground of appeal must succeed. Ground 7: The trial judge erred in admitting into evidence Exhibit W 146When deciding to admit portions of the "Dear Dr George" letter, extracted in part above, His Honour said that a detailed judgment would be provided in due course. That does not seem to have happened. 147The appellant emphasised that the document contained several references to the appellant's state of mind: "my mind and memory are hopelessly inadequate at present to carry out this task. This history is so inadequate to convey the truth of how bad things have been." (page 8) I am tormented as though in a nightmare of burden that the hands of time can never go back and lift when in writing this remember the past, especially that which and must write this history concerning. (page 10) my recollection is poor (page 17) I can never clearly remember or think" (page 21) 148Furthermore, it was submitted that the account of the events involving Mr Bateson and Mr Hadfield appears to have been written in October 2006, that is, 2 years and 5 months after the Bateson incident, and 2 years and 3 months after the Hadfield incident. On the matter in issue in relation to Mr Bateson, the letter says: "What is so horrifying is that in the past I had had no memory of having given him any of the medication but I have a vague memory. He asked me for a couple and I gave them to him." 149The letter was said to reveal a troubled individual with a rambling and incoherent recollection of many events. 150In relation to Mr Hadfield, the letter says: "Later when manic (poisoned again) I was probably mindlessly espousing the wonders of the very medications that had utterly killed me and laid my life waste and which things terrified me and I hated. But having brought me out of utter suicidal darkness into delusional psychosis again, I was probably singing their praises. I must have seemed like a convincing ad for these things and in some strange capacity may have thought I was helping them by telling them to go see their doctor, and when asked - giving then a sample of mine." 151It was submitted by the appellant that the evidence should have been excluded either pursuant to s. 90 of the Evidence Act , as being unfair to the appellant or pursuant to s. 137 of the Act because its minimal probative value was outweighed by the danger of unfair prejudice. 152In response the Crown emphasised that the appellant does not challenge the fact that Exhibit W contains relevant admissions. The Crown identified that some of these admissions include (but are not limited to) the fact that: Shaun Bateson "told me all the drugs he used to take" "He [Bateson] asked me for a couple and I gave them to him" "When I was caught I suddenly woke up to what had happened but I could never tell anyone". "Being terrified of effexor and aurorix which by those years nothing else lifted the depression but they gave me blackouts, fainting, seizures, sweats, shocks and stabs in the brain, nightmares, mental instability, mental retardation". "I must have seemed like a convincing ad for these things". 153The Crown submitted that Exhibit W was open to competing inferences. Rather than indicating that the appellant had a poor memory and was reconstructing events relating to Hadfield, it was submitted that another reasonable interpretation was that the letter contained snippets of unguarded admissions in narrative form. Accordingly, it was submitted that the interpretation of and inferences to be drawn from Exhibit W were an appropriate question for the jury; R v SJRC [2007] NSWCCA 142. 154The Crown submitted that the arguments put before this Court about the unfairness of the admission of Exhibit W were made in the Court below and it was within his Honour's discretion to admit the evidence ( Em v R [2006] NSWCCA 336). 155It has been authoritatively determined that the "reliability of evidence (is) a factor affecting the fairness of [the admission's] use"; Em v The Queen (2007) 232 CLR 67 at [72]. Furthermore, there are suggestions in R v Nelson [2004] NSWCCA 231 at [54-55] that where the characteristics of the person making the admission may affect the reliability of that admission (for instance, intoxication), exclusion under section 90 may not be justified if "the jury [would be] well able to assess and evaluate [such matters] in weighing the evidence". 156In R v Em [2003] NSWCCA 374 at [110] Howie J indicated "that an assessment of probative value has little significance in the exercise of the discretion". 157To my mind, the letter clearly indicates the appellant's confused state of mind and although not contemporaneous does not necessarily involve a reconstruction of events. Relevantly, the trial judge cautioned the jury against accepting the evidence as truth and reminded the jury that the appellant was affected by drugs and psychiatric illness at the times the events were happening. 158To my mind the admission of Exhibit W did not result in unfairness to the defendant. Any prejudice caused by the unreliability of the letter would have been readily apparent to the jury members and in any event was relevantly addressed by the directions given by the trial judge. 159With respect to the discretion in s 137 of the Evidence Act the Crown submitted that the fact that the appellant made reference in the letter to his poor memory does not, of itself, show that any probative value was outweighed by the danger of unfair prejudice. 160The Crown also submitted that the directions that were given to the jury properly addressed any prejudicial effect of Exhibit W. This included a warning that the evidence may be unreliable, specific reference to the fact that the letter was not contemporaneous and that the appellant may have been affected by his drug use or psychiatric illness. 161Neither the appellant nor the Crown made submissions as to how this Court should review the decision of the trial judge. In Vickers v The Queen [2006] NSWCCA 60 at [76], Simpson J stated that an "evaluation" under s137 "may only be reviewed on the principles stated in House v The King (1936) 55 CLR 499". This principle was restated by Howie J in Smale v The Queen [2007] NSWCCA 328 at [32] where his Honour said that an appeal court "will not hold that the discretionary judgment that the application of the section involves has been wrongly determined in favour of the Crown unless it was not reasonably open for the trial judge to admit the evidence". However, this Court has previously stated that where the facts have been established or are undisputed, "an appellate court is in as good a position as the trial judge to make that particular decision and thus to conclude that the trial judge was in error" ( R v Ford [2009] NSWCCA 306 citing Warren v Coombes (1979) 142 CLR 531 at 551). 162In the present case I am of the view that the trial judge did not have an advantage over this Court. This Court may consider for itself the "correct" result of the balancing exercise. 163I have indicated that no reasons were provided by his Honour. However, in my view the probative value of the letter is not outweighed by any unfair prejudice and its admission was not unfair to the appellant. To my mind, given the directions by his Honour there was no real possibility that the evidence would have been used by the jury to adopt an illegitimate form of reasoning or that the jury would have given the evidence unfair weight. 164I would reject this ground of appeal. Orders Accordingly, for those reasons I joined in the making of the following orders: 1. Appeal upheld. 2. Quash the conviction in relation to counts 1, 4 and 7 and order that verdicts of acquittal be entered with respect to those counts. 165HOEBEN J: I agree with the reasons of McClellan CJ at CL. 166GROVE AJ: I agree with the reasons of McClellan CJ at CL and hence for joining in the orders made on 14 September 2011 in this appeal. ********** 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. Decision last updated: 09 November 2011