Dowling v R

1. [1]

   BASTEN JA: On the night of 12/13 March 2012, Luke Doyle, Tracy Dowling and a third person ingested oxycodone at the house of a friend in Young in central New South Wales. At about midnight, Luke Doyle, who had become somnolent and had vomited, was placed in Ms Dowling’s utility. There was talk amongst those present of taking Mr Doyle to hospital. However, Ms Dowling drove to her home on the other side of Young. She left Mr Doyle in the vehicle, entered her home and went to bed. Mr Doyle was discovered on the ground beside the vehicle in the early hours of the morning by Ms Dowling’s mother when she returned from a night shift at a local aged care centre. Mr Doyle was dead at that time.

2. [2]

   Ms Dowling was charged by the Director of Public Prosecutions and went to trial on an indictment containing one charge, namely that she did unlawfully kill Luke Doyle, pursuant to s 18(1)(b) of the Crimes Act 1900 (NSW). The prosecution case was that, in driving Mr Doyle away in her vehicle, she assumed a duty of care to him, which required that she obtain medical attention for him, which she did not do. She was, on the prosecution case, guilty of manslaughter by criminal negligence.

3. [3]

   The elements of the offence were relevantly identified in the joint reasons in Burns v The Queen [1] in the following terms:

4. [4]

   The applicant’s written submissions appeared to formulate an additional criterion, namely “that the omission of the appellant amounted to gross criminal negligence and merited criminal punishment.” [4] This language was derived from the Victorian decision, Nydam v The Queen, quoted by French CJ in Burns v The Queen,: [5]

5. [5]

   However, it is wrong to extract the final phrase, “that the doing of the act merited criminal punishment”, as if it constituted a separate criterion. It clearly did not: the criterion was the “high risk that death or grievous bodily harm would follow”. Accordingly, the question must be whether the applicant’s conduct on the night in question involved such a risk.

6. [6]

   The critical issue in the case was whether the prosecution had established beyond reasonable doubt that Mr Doyle was alive when driven off by Ms Dowling.

7. [7]

   The trial proceeded before Judge Lerve in the District Court at Wagga Wagga, without a jury. The hearing commenced with a number of pre-trial applications on 17 October 2018 and concluded on 13 November 2018. The judge delivered judgment on 6 December 2018, finding Ms Dowling guilty of manslaughter by criminal negligence.

8. [8]

   Lerve DCJ convicted and sentenced Ms Dowling on 6 May 2019 to a period of imprisonment for 7 years, with a 4 year and 9 months non-parole period. The sentence commenced on that date, with the consequence that the non-parole period will expire on 5 February 2024. The balance of term was a period of 2 years 3 months.

9. [9]

   The notice of appeal was limited to a single ground, namely that the conviction was unreasonable and unsupported by the evidence, being the ground identified in the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).

10. [10]

    There was no dispute as to the elements of the offence, nor was it submitted that the judge failed to address relevant questions or misdirected himself as to the facts or law. The sole question was whether it was open to him to be satisfied beyond reasonable doubt, on the evidence at trial, as to the circumstances and timing of Mr Doyle’s death. As the applicant’s written submissions contended: [6]

11. [11]

    That is the critical issue which this Court is required to address on the evidence.

12. [12]

    There was a second issue, namely the state of mind of the applicant when she drove home with Mr Doyle. It was common ground that the prosecution had to establish a duty on the basis that the applicant voluntarily assumed an obligation to care for Mr Doyle, who was at the relevant time helpless. [7] The applicant submitted that Mr Doyle was placed in her vehicle without her involvement and at a point where her state of intoxication prevented her voluntarily assuming a duty to care for him. [8]

Evidence as to time of death

1. [13]

   The evidence as to when Mr Doyle died potentially fell into three categories, namely (i) objective evidence, in the sense of professional medical opinion; (ii) eyewitness accounts of his state during the course of the critical hour or so around midnight, and (iii) inferences which might be drawn from the surrounding circumstances of the drug taking and related events. However, these categories were not entirely distinct: for example, the surrounding circumstances were likely to weigh significantly in assessing the evidence of eyewitnesses who were with Mr Doyle at the relevant time. Nevertheless, to the extent that the objective evidence is available, it is convenient to deal with that first. Much of the evidence of the lay witnesses turned on findings as to reliability and credibility. The judge’s assessment of these factors is less readily open to review by an appeal court which did not have the benefit of sitting through the trial, listening to the evidence and observing the witnesses give their evidence.

2. [14]

   Before turning to the evidence, it should be observed that the Court has the benefit of detailed and careful reasons by the trial judge, identifying intermediate findings of fact, assessing the reliability of key witnesses, and providing careful explanations as to why particular findings were made.

(a) objective evidence

1. [15]

   Two events on the evening of Monday, 12 March 2012 were recorded on CCTV footage. First, Luke Doyle, Matthew Hennock and the applicant went to Woolworths BWS in Young and stole bottles of alcohol, which they intended to exchange for drugs. The theft occurred between 7:57pm-8:05pm. Secondly, Mr Hennock and Mr Doyle went to Young District Hospital to obtain a fitpack containing clean needles, an event which occurred at 10:33pm. The OxyContin tablets, if they had been obtained by that time, had clearly not been ingested.

2. [16]

   It is necessary to provide a brief outline of what occurred thereafter, before returning to objectively established facts.

3. [17]

   After 10:45pm, the applicant, Mr Hennock and Mr Doyle were at the home of Craig Apps in Taylor Street, Young. Mr Apps traded the alcohol or other goods for three 80mg OxyContin tablets. The applicant, Hennock and Doyle injected oxycodone. Both Mr Apps and Mr Hennock were alerted to an adverse reaction of Mr Doyle. Mr Hennock’s evidence was that he, with assistance from Mr Apps, carried Mr Doyle out of Mr Apps’ house, down some steps, out to the applicant’s utility, and placed him in the front passenger seat. He said he was assisted in the street by a third person, later identified as Trent Lovegrove. At that stage Mr Hennock said the applicant was outside near the utility and would have known that they intended to take Mr Doyle to hospital. Mr Hennock said he ran inside the house to obtain his bumbag and Mr Doyle’s jumper. When he came out again the utility was gone.

4. [18]

   Mr Hennock then went to the home of an acquaintance, Julian Hodge, and several unsuccessful attempts were made to contact the applicant and Mr Doyle on their mobiles. Telephone records indicated that about eight calls were made between 00:59 and 2:02am. It may be inferred that Mr Hennock arrived at Mr Hodge’s home at about 12:50am.

5. [19]

   The next sighting of Mr Hennock captured on CCTV footage showed him at a BP service station between 2:53 and 3:24am. Trent Lovegrove was there at the same time. He told Mr Lovegrove that he went there to buy a sandwich for Mr Doyle for when he woke up. From the BP service station, Mr Hennock went to the Young District Hospital, being captured outside the hospital on CCTV footage at 3:53am.

6. [20]

   The significance of these events was threefold. First, the OxyContin must have been consumed by Mr Doyle at a time after about 10:45pm and before 12:45am. Because it was necessary for Mr Hennock and Mr Doyle to get from the hospital to Mr Apps’ house, obtain, crush and take the OxyContin, it is not likely that the consumption occurred until after 11:00pm. There must also have been a period between Mr Doyle taking the OxyContin and being placed in the utility, and a further period before Mr Hennock arrived at Mr Hodge’s house where the telephone calls were made. However, the applicant must have left Mr Apps’ house sometime between about 11:30pm and 12:45am. The applicant told police in a record of interview undertaken in 2016 that she left Mr Apps’ house at around 6am: as the prosecutor submitted, that could not have been correct. Mr Lovegrove gave evidence that the utility did not drive away until an hour after Mr Doyle was placed in it. This evidence did not accord with that of Mr Hennock or Mr Apps and is unlikely to be correct.

7. [21]

   Mr Hodge rang Mr Apps shortly after Hennock arrived, to be told the applicant had left “about 20 minutes ago”. Mr Hodge’s statement had the various events taking place an hour early than the telephone records indicated; it should be accepted that his recollection of the timing was one hour out. Mr Coyle, who was living with Mr Hodge and had provided a statement to police on 29 March 2012, gave evidence that Mr Hennock arrived at about 1:00am. [9] He described him as “frantic”. Mr Hodge also rang the hospital to confirm Mr Doyle had not arrived. Mr Hodge’s evidence of numerous telephone calls was consistent with a distraught Matthew Hennock trying to find his friend in trouble.

8. [22]

   Secondly, although aspects of Mr Hennock’s evidence were clearly unreliable, his evidence that he intended that Mr Doyle be taken to the hospital, which was largely unchallenged, was confirmed by the timing of the telephone calls, the visit to the BP service station and the attendance at the hospital. Mr Hennock’s evidence was that, after placing Luke Doyle in the vehicle, he said: [10]

9. [23]

   He was cross-examined to suggest that he was mistaken in that he remembered the applicant “standing in front of the ute” when they were putting Mr Doyle into the vehicle. He was firm in his conviction that he had placed Mr Doyle in the vehicle, gone into the house for two minutes and returning with his bumbag and a jumper, and had found that the applicant had already driven off. It was not put to him that Mr Doyle was left unattended in the utility for an hour.

10. [24]

    The next established time related to the discovery of Mr Doyle’s body beside the vehicle by the applicant’s mother. She arrived home at around 7:30am on 13 March. She gave her occupation as “assistant in nursing”; she was not a registered nurse. There was no challenge to the evidence that she had checked Mr Doyle’s pulse in his neck and hand but realised before doing so that he was dead. [11] She immediately went back to her car, got her phone and rang triple-0. Whilst she was on the phone, she went inside to find her daughter and said she was “in bed, sound asleep.” [12] The conversation when her daughter woke was recorded including her statements to her daughter that Luke Doyle was dead. Ms Dowling recounted the conversation in the following terms: [13]

(b) medical evidence

1. [25]

   An autopsy was carried out on the deceased by Dr Szentmariay. His evidence supported the uncontroversial finding that Mr Doyle died from “acute multidrug toxicity”. [14] That evidence was supported by the evidence of a forensic pharmacologist, Dr Farrar, who identified the quantity of oxycodone in the blood as four times the maximum therapeutic dose. Dr Szentmariay said that benzodiazepines and opiates “are capable of respiratory depression”. [15] The relevant benzodiazepine in the present case was alprazolam, sold under the brand name Xanax. Dr Farrar noted there was evidence of Xanax in the deceased’s blood, although not at a level consistent with having consumed and absorbed three or more Xanax tablets. Nevertheless, both Dr Szentmariay and Dr Farrar agreed that it would have a significant effect taken in combination with the oxycodone, in depressing the respiratory system.

2. [26]

   Dr Szentmariay also gave evidence of the significance of froth which had been observed near Mr Doyle’s head, when he was found on the ground. Dr Szentmariay was firm in his conclusion that foam or froth could only form whilst the person was alive because it required the movement of air, mixing with fluid. [16] He was cross-examined as to the possibility that froth had formed in his mouth sometime prior to him falling to the ground and had been exuded after death. He accepted that was a possibility, though with what appears to be some hesitation. [17]

3. [27]

   A consulting forensic pathologist, Dr Duflou, was called in the defence case. He was asked as to the development of froth and whether it occurs only when a person is alive, answering: [18]

4. [28]

   That evidence was relied upon in this Court in support of the proposition that Mr Doyle had died prior to being placed in the cabin of the vehicle. However, the evidence of froth was on the ground beside the deceased’s head. Further, there were vomit stains inside the vehicle, on the passenger door, on the passenger floor, above the glove box, between the passenger seats and on the roof. Although Mr Doyle had vomited at the house in which the drugs were taken, no explanation was proffered as to how there came to be vomit so widely spread in the vehicle, if he was in fact deceased at the time he was placed in the vehicle. It must be inferred that he was alive when placed in the vehicle.

5. [29]

   Dr Szentmariay observed that a side effect of taking oxycodone is that the skin may become “cold and clammy”. [19] One of the lay witnesses, Trent Lovegrove, who had assisted in placing Mr Doyle in the vehicle, described him as feeling cold. The judge accepted Mr Lovegrove’s description, but, adopting the pathologist’s evidence, found it was consistent with the fact that Mr Doyle had undoubtedly taken oxycodone prior to being placed in the vehicle. There was also evidence that, taken intravenously, oxycodone would have an effect within minutes of ingestion.

(c) evidence of lay witnesses

1. [30]

   The primary evidence as to Luke Doyle’s state when he was placed in the utility was given by Mr Hennock. He described walking into the lounge room of Mr Apps’ home and seeing Mr Doyle “hunched over the side of the lounge.” [20] He tried to wake him up, including slapping him and yelling his name. The following exchange took place: [21]

2. [31]

   The “local” (there was no evidence of more than one person) was Trent Lovegrove. [22] Mr Hennock said that Mr Doyle was placed in the passenger seat and then “he slouched over.” [23] The examination continued: [24]

3. [32]

   Mr Hennock gave further evidence as to his understanding of Mr Doyle’s state when he was taking him to the car: [25]

4. [33]

   Mr Hennock gave evidence that he had “like crusty around his lips” in the lounge room, but he didn’t remember whether he had vomited. He was asked if he remembered seeing or smelling any vomit in the car and said, “I don’t think he spewed in the car.” [26]

5. [34]

   Mr Hennock was quite confused as to what happened thereafter. He wandered the streets for some time, looking for Mr Doyle. His activities, recorded in part, on CCTV and telephone records, were consistent with his concern as to where Mr Doyle was and his belief he was alive, but should have been taken to hospital. First, Mr Hennock said that he walked to the home of Julian Hodge, a trip of no more than a few minutes. Mr Hodge’s evidence was that Mr Hennock arrived at about 11:50pm. Mr Hodge died in May 2018, but his statement of 5 April 2012 was admitted in evidence. He said that he had called Craig Apps to find out how long it had been since the applicant took Luke to the hospital. The telephone records indicate that Mr Hodge called the applicant three times between 1:00am and 1:06am on 13 March. It is likely that he did so immediately after Mr Hennock arrived, suggesting, as noted above, and as confirmed by Mr Coyle, that he was an hour early in his timeline and that Mr Hennock arrived at 12:50am, rather than 11:50pm. Mr Hodge called the applicant three more times between 1:13 and 1:30am. He also called Mr Doyle at 1:31am. He gave evidence that he called Mr Apps to be told that the applicant had left “about 20 minutes ago”, and that he called Young Hospital, which was confirmed by a statement from a nurse at the hospital, but the timing of these calls is not apparent from the summary of the telephone records.

6. [35]

   Between 2:50am and 3:14am, Mr Hennock was at the BP service station. He left the service station and walked to Young Hospital, where he arrived at 3:53am.

7. [36]

   Mr Apps also gave evidence of the events in his house. He said that Mr Doyle was sitting in a chair at a table in the kitchen when he fell on to a cow hide rug and vomited. He denied that Mr Doyle had been on the lounge in the lounge room, which was next to the kitchen, [27] although he said the rug was between the two rooms.

8. [37]

   Mr Apps’ description of Mr Doyle being taken outside to the vehicle involved both him and Mr Hennock. He said that “some young fellow was walking past and give us a hand.” [28] He denied that Mr Doyle was dragged along the ground. He was asked where the applicant was when they were putting Mr Doyle in the ute and said: [29]

9. [38]

   Mr Lovegrove was the person who assisted in the street. He had been staying “across the road” from Mr Apps’ house. [30] He gave evidence that Mr Hennock had approached him and asked him to help him “because his mate had dropped.” [31] He understood the term “dropped” to mean, “not in a good way”, “not dead but not far off it, needs to go to hospital straightaway.” [32] He said that Mr Hennock opened the door of the car and he grabbed Mr Doyle around the waist to put him in the car “because they told me they were taking him to the hospital.” [33] He said that as they tried to lift him Mr Hennock had lost his grip and the man had hit the ground. [34] He also said that the man had “some white gunk on his shoulder, on his arm” and “his body felt like an icepack”. [35] The following exchange continued:

10. [39]

    Mr Lovegrove also left his house and went to the BP service station at about 3:00am, and saw Mr Hennock there. He said that Mr Hennock “wanted a lift to the hospital and he was also trying to get his mate a sandwich.”

11. [40]

    Later, in cross-examination, he agreed that he had not checked Mr Doyle’s pulse when he noticed how cold he was. He also said that Mr Doyle did not vomit and he did not see or smell any vomit from within the ute. [36]

12. [41]

    There were a number of discrepancies between Mr Lovegrove’s account and that of Mr Apps and Mr Hennock. One, perhaps of little significance, was his description of Mr Hennock coming across the street to ask him to assist. Neither Mr Hennock nor Mr Apps gave evidence consistent with that description. Secondly, Mr Lovegrove suggested that Mr Hennock had dropped the upper part of Mr Doyle’s body when he was trying to manoeuvre him into the ute. The possibility that Mr Doyle had hit his head on the ground at that point was not consistent with the evidence of Dr Szentmariay. Thirdly, as noted above, his belief that Mr Doyle may have been dead turned entirely upon his observation that his body was cold, which, as already noted, was consistent with the consumption of oxycodone. On the other hand, the fact that he recalled neither seeing or smelling vomit on Mr Doyle or in the ute suggests that Mr Doyle vomited whilst in the utility, either on the way to the applicant’s home, or after they arrived, as the applicant said in an early statement to police.

Voluntary assumption of duty

1. [42]

   It is convenient to deal with the statements made by the applicant in relation to these events in considering her knowledge of the state in which she found Mr Doyle when in her vehicle. Aspects of that evidence are, of course, relevant to his actual state, as well as her belief that he was alive.

2. [43]

   The applicant did not give evidence, but there were a number of statements which were tendered by the prosecution. The first matter relied upon was her response to her mother when woken the following morning while her mother was making a triple-0 call. Half speaking to her daughter and half to the person on the call, Heather Dowling said:

3. [44]

   The judge’s finding in respect of this evidence was as follows:

4. [45]

   The recording in evidence leaves no doubt that, although her responses are not audible, the applicant was denying her mother’s statements that Luke Doyle was dead.

5. [46]

   The police arrived at the applicant’s home at 7:30am. The ambulance arrived at 7:54am. The handwritten record of the conversation between the police officer and the applicant contained brief notes and then some further questions and answers. The notes identified that the applicant had left Craig Apps’ place in Taylor Road, Young; not sure what time; with Luke Doyle and continued:

6. [47]

   The next statement occurred on the evening of the same day, namely commencing at 4:37pm on Tuesday, 13 March 2012. Her account was lengthy, claiming that she left Mr Apps’ house at 6:15 in the morning. After stating that she passed out at Mr Apps’ house and woke up to find her handbag upside down, she continued: [37]

7. [48]

   The detective then questioned her about whether he was floppy when she was pulling him out of the car and she said: [38]

8. [49]

   The officer then asked “which side of the ute did he spew on?” The applicant answered:

9. [50]

   The account was repeated with extra details at Q1157 – Q1201.

10. [51]

    On 14 March 2012, the day after Mr Doyle’s death, his first cousin, Jayarna Britt, got in touch with the applicant via Facebook. After an exchange of messages, the applicant sent a telephone number which Ms Britt rang. She told the applicant, “[w]e just wanted to know what happened to him [Luke].” [39] The conversation continued:

11. [52]

    There was no challenge to this account in cross-examination.

12. [53]

    In May 2013, just over a year after the incident, the applicant delivered a USB stick to Young Police Station. It contained a letter attaching a statement. The typed statement purported to be a record of a conversation between the applicant and Matthew Hennock, in the course of which Mr Hennock said he had murdered Luke Doyle, because Mr Doyle had spoken to the police in relation to criminal activity, naming Mr Hennock as an offender.

13. [54]

    The document, recording statements purportedly made by Mr Hennock admitting to the applicant that he had killed the deceased, was supplied to police on 13 May 2013. Ten days later the applicant was in gaol, and remained in gaol until 21 December 2013. During that period, she sent affectionate letters to Matthew Hennock who was also in prison. There was a letter in evidence from Hennock to the applicant.

14. [55]

    The tone of the letters suggests they are between good friends. Matthew Hennock’s letter states in part:

15. [56]

    At the trial the applicant’s allegations in her May 2013 document were put to Mr Hennock in cross-examination and obtained crisp denials of the kind, [40]

16. [57]

    Returning to the applicant’s accounts, on 14 October 2014 the applicant was rung by Detectives Butcher and Morton, having receiving information that the applicant had further information to give them with respect to the death of Luke Doyle. The substance of the allegation was that Hennock had put three crushed up Xanax in Mr Doyle’s drink, describing him as “a dog.” He had then assaulted the applicant in the bathroom. She tried to ring triple-0 but her phone “went flat.” She said that she took two Xanax herself; the conversation continued:

17. [58]

    Apart from the admission that she had driven home (the first time she had told the police that fact), the claims that Mr Hennock had killed Mr Doyle by placing three Xanax in a drink (there was no reference to OxyContin) and that Hennock had assaulted her, reflected information contained in the May 2013 document.

18. [59]

    On 12 November 2014 Detective Morton contacted the applicant again and asked if she were willing to give a further statement with respect to Luke’s death. She declined, saying that she had told them all she knew. [41]

19. [60]

    In March 2015 there was an inquest into Mr Doyle’s death. Prior to the inquest the applicant had been served with a brief of the evidence. She was arrested on 18 October 2016 and participated in a further recorded interview. She repeated her account that Mr Hennock had sexually assaulted her and that she had seen him place crushed up Xanax tablets into Mr Doyle’s drink.

20. [61]

    Part of her account included her leaving Mr Apps’ house after the assault and running to a nearby acquaintance, Anthony Bennett. She stated that she had told him of Mr Hennock’s attempt to kill Mr Doyle and his sexual assault on her. She said Mr Bennett promised that he would ring the police when his brother came home with a mobile phone. The applicant then said that she returned to Mr Apps’ house. She said that she took a sip of Mr Doyle’s drink: [42]

21. [62]

    Mr Bennett was called, and denied each element of the allegation relating to his role. He said that she did not come to his house, did not tell him that Matthew Hennock or anybody else was trying to overdose Luke Doyle with the intention of killing him, or that she had been assaulted by Matthew Hennock; he had a mobile phone in March 2012, but his brother did not. The brief cross-examination suggested that it was possible that he could not recall the applicant’s visit. He denied that, saying that if any such statements had been made to him he would have called an ambulance and the police.

22. [63]

    The October 2016 interview rambled, with long repetitive statements by the applicant. Some clearly responded to statements of other witnesses who had been called at the inquest. The interview commenced at about 6:00pm and was completed at about 9:00pm.

23. [64]

    In the final pages, the officer put to her various statements made in her previous recorded interview. With respect to her description of taking Mr Doyle back to her place and dragging him out of the car she simply said: [43]

24. [65]

    The account of going into the house, checking on him and asking him if he was coming inside was read to her. The questioner then said:

25. [66]

    The question is followed by a long rambling response which seeks to include events which occurred earlier in the evening. At the end the detective asked the following question:

26. [67]

    When it was put to her again that the statement as to her actions were “a very different response to what you gave us today” (Q831) she responded:

27. [68]

    There were further denials and explanations, but none rose to the level of plausibility.

(d) other witnesses

1. [69]

   The sentiment in relation to the deceased expressed in Mr Hennock’s letter from prison set out above was one of deep regret. It was consistent with his conduct on the evening, including the phone calls from Mr Hodges’ house; Mr Coyle’s description of him as “frantic”; the visit to Young Hospital and later evidence given by friends. Luke Collins, a friend of Luke Doyle, gave evidence that he had a call on the morning of Tuesday 13 March from the applicant on her mother’s phone: he recounted the conversation as follows: [44]

2. [70]

   Later that day Mr Collins had a conversation with Matthew Hennock, recounted in evidence as follows: [45]

3. [71]

   In a statement dated 19 March 2012 Shannon Smith, a friend of Hennock, set out a conversation he had had with Mr Hennock on or shortly after the day of Luke Doyle’s death. He set out in some detail the conversation, containing Mr Hennock’s account, consistently with the evidence Mr Hennock had given, the substantive parts being as follows: [46]

4. [72]

   There was no significant cross-examination of Mr Smith.

Assessment of evidence

1. [73]

   Matters of credibility and reliability are central to the resolution of this matter. There can be little doubt that persons in need of benzodiazepines and opioid drugs are often desperate and may become practiced at dishonesty and deception. Even when a person gives evidence in court and is cross-examined, an assessment of whether and when the person is lying or confabulating may be extremely difficult. Nevertheless, it is a fundamental structural principle of our judicial system that the judge hearing oral evidence is in a better position to assess such matters than an appeal court reviewing the evidence on the papers.

2. [74]

   In the present case, where the applicant did not give evidence, but there were numerous records of statements she had made out of court, some recounted in testimony of friends to whom she spoke, not challenged in cross-examination, others being recorded by police officers, where the accuracy of the record was not in question, this Court should be in almost as good a position as the trial judge to assess the reliability of that material. On the other hand, her out of court statements cannot be viewed in isolation from the rest of the evidence; accordingly, weight must be given to the assessment of the trial judge who was able to consider the material in the context of the evidence of other witnesses and the context of the trial generally.

3. [75]

   Taken at face value, the applicant’s largely contemporaneous statements demonstrated not merely that she believed Mr Doyle was alive when she arrived home, but that she checked his breathing and pulse, both of which were present at that time.

4. [76]

   However, even the contemporaneous statements by the applicant cannot be taken entirely at face value. Thus, she told police that Mr Doyle was the driver; given his comatose state at the time he was placed in the vehicle, it is clear that he cannot have driven anywhere that evening. The applicant later told police that she had lied because she was a disqualified driver. The explanation was probably true; nevertheless, it is most improbable that she would have made such a statement had she believed that Mr Doyle was dead. Indeed, the account that he drove her home was inherently implausible. If he had just driven home, it is difficult to understand why she would have needed to drag him out of the vehicle and wake him up, and why she would have checked to see that he was still breathing and checked his pulse. One element of fabrication may cast doubt on other parts of the account, but there may be other reasons to think that the other parts were truthful. That she genuinely believed he was alive at that point is confirmed by the triple-0 call in which her mother is heard talking to her and trying to convince her that Mr Doyle was indeed dead and not merely “inebriated”. That aspect of the evidence was confirmed by the applicant in her statement to police on the evening of 13 March 2012. [47]

5. [77]

   There are two pieces of evidence which might contradict the applicant’s belief as to Mr Doyle’s state when she took him home on the evening of 13 March 2012. The first was the allegation, delivered to police on 13 May 2013, and reiterated in her recorded interview of 18 October 2016 that Mr Hennock had been responsible for Mr Doyle’s death. The statements were not consistent. In the earlier statement, she said that Mr Hennock had confessed to her that he had killed Mr Doyle and that he had dragged him into the bedroom. In the interview of 18 October 2016, she said that she witnessed Mr Hennock spiking Mr Doyle’s drink by crushing up three Xanax and saying “I’m putting these in Luke’s drink.” [48] The latter account, however, was patently false on a number of bases.

6. [78]

   First, the pharmacological evidence was inconsistent with Mr Doyle having consumed three Xanax that evening. It was possible that he had done so, but had vomited part of the drug; however, Mr Hennock’s alleged intention to kill him was then unsuccessful; importantly, it provided no basis for thinking that Mr Doyle was deceased by the time he was placed in the applicant’s vehicle.

7. [79]

   Secondly, she alleged going to Mr Bennett’s house that evening to arrange for him to call the police. That was categorically denied by Mr Bennett whose evidence in that respect was hardly challenged.

8. [80]

   Thirdly, if there were an inference that Mr Doyle was deceased when he was placed in the applicant’s vehicle, it was necessary to explain the uncontradicted fact that vomit was found in numerous places on the passenger side of the vehicle. That could only have been possible if Mr Doyle had been left in the vehicle for a significant period before being driven by the applicant to her home. In fact, Mr Lovegrove gave evidence that, after helping place Mr Doyle in the vehicle, he went home and that the vehicle drove away an hour later. However, as has been noted, there were sound reasons for rejecting that evidence. The alternative explanation for the presence of the vomit in the utility was that given by the applicant herself, namely that he was vomiting whilst they were both in the vehicle.

9. [81]

   Fourthly, when, in the course of the interview on 18 October 2016, the detective read to the applicant her account of the events given in her earlier recorded interview, her explanations for the inconsistencies were inadequate and unconvincing. The only possible explanation for her earlier statements was that Mr Doyle was dead, but she did not know he was dead. That explanation would not have accounted for her repeated statements that she had checked his pulse and that he was breathing when she arrived at her home; but it was possible that those statements were lies. However, on the assumption that she had driven home, and was unable to get out of the vehicle on the driver’s side, she could not have got out of the vehicle without either clambering over the bulk of Mr Doyle, or by trying to manoeuvre him in front of her out of the vehicle. On any view, the vomit in the vehicle was consistent with him having vomited after they left Mr Apps’ house, consistently with her original accounts.

10. [82]

    Whatever the applicant’s state of inebriation or drug-induced lethargy on the evening when she was driving home, she was nevertheless able to drive home, a distance of some 6 kilometres, get out of the vehicle, go into the house, place her phone on the recharger, get something to eat or drink and go to bed. The possibility that she did all those things with the body of a deceased man in the car without realising that he was deceased is, in my view, so remote a possibility as to not give rise to a reasonable doubt. In short, and as she clearly believed at the time, the finding of the trial judge that, beyond reasonable doubt, Mr Doyle was alive when they left Mr Apps’ house and when they arrived at her home, was correct.

11. [83]

    That material need not, however, be viewed in isolation. The evidence of Mr Hennock, who sought to move Mr Doyle from the house into the applicant’s utility, was powerful evidence that Mr Doyle was alive when placed in the utility. No doubt his evidence was also subject to the problems of credibility and unreliability as a young man subject to a form of opioid addiction. However, his account of what he did in the early hours of 13 March 2012 obtained significant support from the objective evidence of the telephone calls, the CCTV footage and the statements of those he visited and spoke to by telephone. Mr Hennock gave evidence and was cross-examined at some length. The transcript of his cross-examination reveals little basis for doubting his evidence, unless his denials were in some way implausible. Whether his oral testimony should, despite the supporting evidence, be rejected was very much a question for the trial judge.

12. [84]

    It was put to him that he wished to kill Mr Doyle and, to that end, had spiked his drink with Xanax. That cross-examination was based on the applicant’s account, which, for reasons explained above, was quite implausible. Mr Hennock’s denials were unsurprising and plausible.

13. [85]

    The trial judge made the following findings:

14. [86]

    The judge accepted that there was a conflict between the evidence of Mr Apps and Mr Hennock as to where the applicant was at the time Mr Doyle was placed in the vehicle. He took careful account of evidence that there may have been antipathy between Mr Hennock and the applicant. In particular, he had regard to a suggestion that Hennock and Doyle had taken the applicant’s utility to her home in the course of the day and had stolen a chainsaw, fishing rods and a digital camera, which Mr Apps was said to have used to swap for OxyContin pills. The judge ultimately rejected the submission that there was such antipathy; in the course of considering Matthew Hennock’s evidence he stated:

15. [87]

    More directly relevant was the evidence as to the ingestion of oxycodone on the evening of 12 March. That was dealt with in the following terms:

16. [88]

    Both Mr Hennock and Mr Apps were involved in moving Mr Doyle to the utility. Their accounts were not entirely consistent; each recalled that he took the major role in moving Mr Doyle. Each however explained that it was seeing Mr Doyle either on the ground or slumped over in the lounge (Mr Apps and Mr Hennock respectively) which led them to realise he was in a bad way. Mr Hennock said that “I don’t really remember anything till I walked out in the lounge room” and “I’d sort of snapped out of everything when I walked in the lounge room.” [49] Mr Apps did not see Mr Doyle “hit the ground”, but he said that he heard it. Matthew Hennock’s evidence was that the applicant was with them when they said that Mr Doyle needed to be taken to the hospital. Mr Apps gave evidence to similar effect, although he placed the applicant in the house at the time that was said, whereas Mr Hennock placed her near the car. Because both Mr Apps and Mr Hennock formed the view when Mr Doyle was in the house that he should go to hospital and placed him in the car for that purpose, it is plausible that such statements were made both in the house and outside, as they recounted, and that the applicant was present on both occasions. As the judge noted:

17. [89]

    It is apparent from the evidence of Mr Apps, Mr Hennock and the applicant (in her earlier accounts of events) that each believed Mr Doyle was alive when he was placed in the utility. Mr Apps said that he had a pulse; Mr Hennock said that he was slurring his words; the applicant said he had a pulse and was breathing when they arrived at her home.

18. [90]

    As already noted, there were reasons to believe the applicant’s early accounts; there was objective evidence, namely that Mr Doyle had vomited in the utility, which supported the conclusion that he was alive when they left the house, although probably unconscious, and was alive a few minutes later when they had covered the 6 kilometres to the applicant’s home. I entertain no doubt that the judge was correct to find beyond reasonable doubt that:

19. [91]

    Thus both the first and second factual issues were established beyond reasonable doubt: he was alive and she believed he was alive.

20. [92]

    Finally, it is appropriate to refer to the elements of the offence identified by the applicant in written submissions as not established beyond reasonable doubt, namely that: [50]

21. [93]

    Once it was established beyond reasonable doubt that the applicant knew that Mr Doyle had been placed in her vehicle in a virtually comatose state in circumstances where he had, to her knowledge, taken both Xanax and OxyContin, and that the two friends who were also present, Mr Apps and Mr Hennock, put him in the vehicle so that he could be taken to hospital, it follows that her deliberate act of taking him to her home and leaving him without any attention let alone medical attention, was grossly negligent and significantly hastened his death. (There was medical evidence that if taken to hospital, there was a reasonable prospect of reviving him. [51] ) It necessarily followed that she owed the deceased a duty of care because she voluntarily assumed his care whilst he was helpless, and by removing him from the possibility of others providing help, “secluded” him.

22. [94]

    For the reasons set out above, I believe the judge was correct to be satisfied beyond reasonable doubt that the applicant well understood the condition Mr Doyle was in when placed in the front passenger seat of her vehicle and why he was placed there.

23. [95]

    It follows that, although it is appropriate to grant leave to appeal, to consider the judge’s assessment of the evidence, the appeal must be dismissed.

Orders

1. [96]

   In my view the Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal from her conviction in the District Court on the charge of unlawfully killing Luke Doyle contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).

   2. (2)

      Dismiss the appeal.

2. [97]

   PRICE J: For the reasons comprehensively provided by Basten JA and upon my own analysis of the evidence, I have concluded that the judge correctly found that the applicant was guilty of the unlawful killing of Luke Doyle pursuant to s 18(1)(b) of the Crimes Act and ought not have entertained a reasonable doubt as to proof of her guilt. I agree that leave to appeal be granted, but the appeal be dismissed.

3. [98]

   WRIGHT J: I have had the advantage of reading Basten JA’s judgment in draft and respectfully agree with his Honour’s analysis and reasons as well as the orders proposed.

4. [99]

   I have also formed my own independent view that it was open to the trial judge to be satisfied beyond reasonable doubt as to the guilt of the applicant and that this was not a case in which the trial judge must have entertained a doubt about her guilt. In reaching these conclusions, I have had regard to the evidence as a whole and to the intermediate findings of the trial judge about which no complaint was made in this appeal: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [83] (Gageler J); Bell v R [2017] NSWCCA 207 at [19] - [27] (Bathurst CJ, McCallum and N Adams JJ).

5. [100]

   I only wish to make an additional comment on the applicant’s contention that it could not, on the medical evidence, be excluded as a reasonable possibility that the deceased died shortly after taking the oxycodone. This was said to be based on the evidence of Prof Duflou, a consulting forensic pathologist. It was then submitted that, if this was when the deceased died, he would have been dead at or shortly after the time when he was put into the utility and there would have been no omission by the applicant that significantly or substantially caused or accelerated his death.

6. [101]

   The evidence relied upon included what Prof Duflou wrote in his 27 August 2018 report (Ex 10) at par 32:

7. [102]

   In addition, the applicant’s submissions referred to Prof Duflou’s evidence during examination in chief. This evidence included, at Tcpt, 7 November 2018, p 812 (29-39):

8. [103]

   At par 31 of Ex 10, however, the professor acknowledged that “if there was indeed a pulse this would be an absolute indication the deceased was alive at that time”.

9. [104]

   The evidence as a whole and in particular the evidence concerning the state of the deceased when he was taken to the utility and the applicant’s taking his pulse and checking his “vitals”, including, without attempting to be exhaustive, the evidence of:

   1. (1)

      Mr Hennock;

   2. (2)

      Mr Apps;

   3. (3)

      Mr Lovegrove;

   4. (4)

      Ms Heather Dowling (including her 000 call after finding the deceased);

   5. (5)

      Ms Britt; and

   6. (6)

      the applicant in her statement to Constable Dreverman and her answers to questions during the electronically recorded interviews,