R v CLD

THE COURT: This is an appeal by the Director of Public Prosecutions under s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against a directed verdict of acquittal of the respondent on a count of manslaughter. That direction was given by Maiden DCJ at the conclusion of the Crown case. The right of appeal under that subsection is limited to grounds that involve “a question of law alone”.

Section 111(1)(b) of that Act prohibits the publication of any matter having the effect of identifying an acquitted person who is the subject of an appeal under s 107(2) unless the publication is authorised by an order of this Court or of the Court before which the acquitted person is being re-tried. No application was made to authorise any such publication in this case. That being the position, this judgment does not name the respondent, the deceased and two other persons to whom it is necessary to make reference.

On 21 August 2014 the respondent was arraigned on one count of being knowingly concerned with the manufacture of a commercial quantity of a prohibited drug (pseudoephedrine) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and one count of manslaughter punishable under s 24 of the Crimes Act 1900 (NSW). He pleaded guilty to the first count and not guilty to the second. A jury was empanelled and a trial began. Evidence was taken from a number of witnesses (including expert witnesses). At the conclusion of the Crown case, senior counsel for the respondent successfully applied for a directed verdict of acquittal. The judge told the jury that he had concluded that “the evidence could not establish the essential elements or ingredients of the offence”. The foreman returned a verdict in accordance with the direction. His Honour then gave reasons for his decision. Those reasons are considered in more detail below.

The “punishable homicide” (s 18(2) of the Crimes Act) charged was manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury. The elements of that category of involuntary manslaughter are supplied by the common law. They are (i) that the accused intentionally committed an act that caused death; (ii) that the act was an unlawful (that is, criminal) one; (iii) that the act was dangerous, (that is, it carried with it an appreciable risk of serious injury to another or others); and (iv) that it was one that a reasonable person in the position of the accused would have realised carried such a risk: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [75] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Lane v R [2013] NSWCCA 317 at [57] per Bathurst CJ, Simpson and Adamson JJ.

The Crown case was that the respondent and the deceased (who we will refer to as M) were parties to a joint criminal enterprise to manufacture pseudoephedrine in a small, poorly ventilated shed on a property which was occupied by the respondent. That manufacture involved the extraction of pseudoephedrine from pharmaceutical preparations. The method of extraction used was to grind the preparations into a powder which was then added to a strong caustic solution and solvent. The solvent used was toluene, a highly flammable chemical that releases vapours into the air producing a mixture which at certain concentrations is explosive in the presence of an ignition source. The liquid mixture was allowed to stand. The solvent containing the pseudoephedrine separated and was drawn off. It was then evaporated, leaving solid pseudoephedrine suitable for the synthesis of methylamphetamine.

On the evening of 13 October 2010 the respondent and M were in the shed. An explosion occurred at about midnight, followed by a significant fire. The respondent and M were badly burned. Both were conveyed to Liverpool Hospital. M was then transferred to Concord Hospital where he later died as a result of his injuries.

Addressing the elements of the manslaughter charge, the Crown case was that on the night in question the respondent was engaged in an unlawful and dangerous act, namely the manufacture of pseudoephedrine involving the evaporation of toluene in a small unventilated shed containing multiple potential ignition sources. The act of evaporating toluene was an unlawful (criminal) act when it was done for the purpose of manufacturing pseudoephedrine. When undertaken in an inadequately ventilated space that act carried with it an appreciable risk of serious injury which was foreseeable by a reasonable person in the position of the respondent. The undertaking of that activity caused M’s death when vaporised toluene exploded.

It was not part of the Crown case that the actual source of ignition was, or necessarily resulted from, an act undertaken as part of the manufacture of pseudoephedrine. The Crown maintained that it was not necessary for it to identify the precise source of ignition in order to establish beyond reasonable doubt that the undertaking of that activity caused M’s death.

The essential reasons for the judge’s decision to direct a verdict of acquittal were that it was “critical” to the Crown case that it establish how ignition occurred and that the Crown had failed to do so; and that the Crown had failed to “negate” possible alternatives to “the case theory of the Crown”. The Crown challenges the correctness of that determination.

Before returning to the trial judge’s reasons and the arguments on appeal, it is necessary to refer briefly to the evidence in the Crown case as to the source of ignition and to the arguments made in support of and against the application for a directed verdict.

The evidence of two of the Crown’s witnesses, Mr Hugel, a forensic chemist, and Mr Compton, a fire investigator, was that the explosion occurred as a result of the build-up of toluene vapours in the shed when they were ignited by an unknown event. Mr Hugel agreed that the possible ignition sources included a cigarette, an ignited blowtorch, a naked flame or a spark produced by an electrical device (tcpt 27/08/14, p 313). Mr Compton’s evidence (taken from paragraphs 19 and 21 of his written report (Ex CC)) was:

There are three further aspects of the evidence to which reference should be made to assist an understanding of the arguments made in support of the direction for acquittal and the trial judge’s reasons for concluding that such a direction should be given.

There was evidence that M was a cigarette smoker and that the respondent did not permit smoking in the shed. There was also evidence in the records of Concord Hospital, albeit at least second-hand hearsay and unattributed as to its source, concerning the circumstances in which M was injured. Those records included the following (Ex PP):

Finally, the evidence of the respondent’s girlfriend, who was living with him at the time of the explosion, was that for a continuous period, commencing a month or so before the accident, another man, D, had visited and spent time in the shed on at least three or four occasions in each of the weeks in that period. Her evidence also was that the respondent went to and remained in the shed for extensive periods whilst D was there. Almost immediately after the explosion, D’s car was seen leaving the shed at speed by the respondent’s girlfriend and other witnesses who lived in the area.

The arguments put in support of the application are outlined in the following extracts from defence counsel’s written submissions to the trial judge:

The Crown responded that it was not necessary that it identify the source of ignition to make out each of the elements of the offence charged. The unlawful and dangerous act that caused M’s death was that of extracting pseudoephedrine by the heating and evaporation of toluene in a poorly ventilated shed exposed to multiple potential ignition sources. It was not necessary that the Crown establish the precise source of ignition to establish that the act so described was dangerous and that it caused M’s death.

Having referred to the evidence of Mr Hugel as to the manufacturing process, and the evidence of Mr Compton as to the cause of the explosion and fire, the trial judge continued (Judgment 04/09/14, p 4):

The trial judge then referred to the Concord Hospital note which suggested as a possible cause of ignition that someone, presumably M, had “lit [a] cigarette while carrying methyl”. He also described another of the “matters that perhaps are of concern” as being that somehow D was involved in the operation taking place in the shed before he left the scene “in an urgent way” after the explosion and fire.

Having observed that this evidence gave rise to questions, in the case of the former as to how the ignition occurred and, in the case of the latter as to D’s possible involvement in that event, the trial judge concluded (Judgment 04/09/14, p 7):

The Crown relies on two grounds of appeal. They are:

It is not submitted on behalf of the respondent that either of these grounds is not directed to a question of law alone.

The first challenges the trial judge’s determination as to what the Crown was required to prove in order to make out each of the elements of its case of manslaughter by an unlawful and dangerous act. In R v PL [2009] NSWCCA 256; 199 A Crim R 199, this Court (Spigelman CJ, McClellan CJ at CL and RA Hulme J agreeing) held that a ground of appeal which challenges a determination of the trial judge as to the legal elements of the Crown case is one which involves “a question of law alone”: at [27], [52].

The second ground is directed to the trial judge’s conclusion extracted in [19] above. On one view that conclusion proceeds from the trial judge’s determination of the legal requirements of the Crown case. On another it proceeds on the basis that a verdict of acquittal must be directed unless the Crown has excluded all of the possibilities that arise on the evidence which are consistent with the accused’s innocence. Relevantly here, the possibilities referred to appear to include that an intentional or negligent act of the deceased or of a third person may have caused the explosion and fire. This ground addresses this alternative view. The Crown contends that in requiring that it exclude other possible sources of ignition the trial judge applied the wrong legal test for determining whether the evidence required that there be a directed verdict of acquittal. It submits the trial judge should have considered whether the evidence taken at its highest was capable of supporting a verdict of guilty. If it was capable of doing so, the matter should have been left to the jury. As this ground challenges the correctness of the legal test applied by the trial judge, it also involves a question of law alone.

The respondent’s written argument (extracted above) and the trial judge’s reasons identify three bases on which it was contended that the Crown had to prove the source of ignition to make out the elements of the offence.

First, it was submitted that in order to characterise the relevant act of the respondent as “dangerous” it was necessary to inquire whether a reasonable person in his position would have appreciated that there was a risk of serious injury resulting from the actual source of ignition of the explosion and fire. See pars 16, 17 and 18 of the respondent’s written submissions extracted in [15] above.

Secondly, it was argued that in order to make out its case on causation the Crown had to prove that the act or event of ignition was a part or consequence of the activity of manufacturing pseudoephedrine. See pars 5, 11 and 14 of the written submissions extracted in [15] above.

Finally, it was said that the Crown’s evidence did not exclude the possibility that the source of ignition was or involved an act or event which would break the chain of causation and relieve the respondent of criminal responsibility for M’s death. It was suggested that such an event might include one that was not reasonably foreseeable to a person in the position of the respondent or one that involved a deliberate (in the sense of intending the outcome) or negligent act by a third party (such as igniting a gas torch) or M (such as lighting a cigarette). See pars 5, 6, 8, 10 and 15 extracted in [15] above.

The trial judge appears to have been satisfied that there was evidence capable of justifying findings that the “very nature of this production process in this situation was obviously dangerous” and that the danger was “evident” (Judgment 04/09/14, p 4). His Honour’s reference to the passage at [9] in the judgment of French CJ in Burns v The Queen, which was directed to that assessment, was incomplete. That passage continued with an observation, citing Burt CJ (Jones and Smith JJ agreeing), in Campbell v The Queen [1981] WAR 286 at 290, that the judgment of causation in such cases is:

His Honour then recorded the Crown submission that it was the act of manufacture (in particular “the use of the substances Toluene, perhaps Acetone, giving rise to vapours that could detonate or explode at a low temperature”) that was the act that was dangerous and that “it did not matter where the spark, flame or fire came from that caused the fire/explosion”. Having done so, and without explaining why, he concluded that there was “a requirement upon the prosecuting authority to identify with certainty the links in the chain particularly in a circumstantial case such as this one, that give rise to the ignition of the vapour” (Judgment 04/09/14, p 5).

His Honour then referred to the evidence suggesting the possibility of conduct that might be said to have broken the causal connection between the act of manufacture and M’s death. That discussion preceded his final conclusions that how the ignition occurred was “critical to the prosecution case” and that “if there were other possible alternatives to the case theory of the Crown, then those matters should have been negated” (Judgment 04/09/14, p 7).

Although his Honour gave reasons for his decision to direct a verdict of acquittal in accordance with his fundamental duty to do so (as to which see the discussion of French CJ and Kiefel J in Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54] – [58]) he did not explain why it was “critical” for the Crown to prove how the ignition was caused. Nor does that explanation emerge elsewhere in his Honour’s reasons. That being the position, it is necessary to address whether any of the arguments made by the respondent at the trial and in this Court provides a sound basis for the conclusion that it was critical to the Crown case that it prove how the ignition occurred.

In this Court the principal basis upon which the respondent sought to uphold the trial judge was that the Crown case was deficient because it was “necessary to show the act of ignition to be able to assess foreseeability in the context of dangerousness” (tcpt 11/03/15, p 39). We take this to be a formulation of the first of the three arguments outlined above at [24] – [27].

Addressing that argument, the requirement that the respondent’s act be “dangerous” called for an objective assessment of whether the act of manufacture carried an appreciable risk of serious injury: Burns v The Queen at [9] per French CJ and [75] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. That involved a prospective evaluation of the likelihood that in the circumstances in which the extraction activity was being undertaken there could be a build-up of flammable toluene vapours that could be exposed to an ignition source resulting in an explosion and fire.

The flaw in the respondent’s argument is that it focussed too narrowly on the source of ignition, as distinct from the fact of ignition however caused. The assessment of an appreciable risk of serious injury was not confined to the ex-ante probability, that is the probability before the event, of the actual source of ignition emerging and causing such an explosion and fire. All of the possible sources of ignition that might have made that activity “dangerous” had to be considered. It was then necessary to address whether a reasonable person in the position of the respondent would have realised that those sources existed and meant, because of the flammable air mixture and the probability of ignition, that the extraction activity (involving the evaporation of toluene in an inadequately ventilated space) carried with it an appreciable risk of serious injury. It was not necessary that the precise cause of ignition be foreseeable, it was sufficient that ignition, whatever the precipitating cause, be foreseeable.

We conclude that, for the Crown to establish that the undertaking of the extraction activity in the shed was dangerous, carrying with it an appreciable risk of injury to others, it was not necessary that it identify the source of ignition that in fact caused the explosion and fire resulting in M’s death.

As to the respondent’s second argument, it was the Crown case that the act of extracting pseudoephedrine by evaporation of toluene in an inadequately ventilated space was the act that caused M’s death. It was not the Crown case that the act that caused M’s death was or included the ignition of the explosive air mixture inside the shed, or that that ignition was an inevitable consequence of that act . That being so, it was not necessary for the Crown to establish that the source of ignition was a part of, or an inevitable consequence of, the extraction process in order to make out its case on causation.

In support of his argument that the Crown must prove the source or act of ignition, the respondent referred to the reasoning of Hamill J in R v Lin (No 2) [2014] NSWSC 1710. That case also concerned a fire in premises allegedly used to manufacture methylamphetamine and the charges against the accused included a count of involuntary manslaughter. However, the Crown case differed from the Crown case here in a critical respect. In R v Lin (No. 2) the unlawful and dangerous act relied upon as having caused the death of another person involved with the accused in that manufacture was or included the lighting of a ring burner that ignited flammable vapours, causing the fire which resulted in death. His Honour directed a verdict of acquittal in relation to the manslaughter charge on the basis that there was no evidence capable of establishing that the accused either lit the ring burner or was criminally responsible for that act because it was committed in furtherance of a joint criminal enterprise: [76], [97], [99]. The Crown case here did not rely upon the act of ignition as the relevant unlawful and dangerous act of the respondent or for which he was criminally responsible.

The respondent’s third argument addresses the issue of causation. To establish that the act of evaporating toluene to extract the pseudoephedrine caused M’s death, that act must be shown to have contributed significantly or substantially to his death. For that to be established, it is not necessary that the act of manufacture be the sole, direct or immediate cause of death. The question of causation which arises for the purpose of attributing legal responsibility is ultimately one of fact and for the jury to decide by applying common sense to the underlying facts as found. If such a jury would not hold the accused’s act or omission to be a cause for that purpose, it is not to the point that it was a causa sine qua non (or a necessary precondition) of the relevant event or occurrence: see Royall v The Queen at 387 – 389 per Mason CJ; 398 per Brennan J; 411 – 412 per Deane and Dawson JJ; 423 per Toohey and Gaudron JJ; and 441 – 442 per McHugh J; McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 118 – 119 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; and Osland v The Queen [1998] HCA 75; 197 CLR 316 at [15] per Gaudron and Gummow JJ.

Here the explosive air mixture resulting from the undertaking of the extraction process was a necessary condition for the occurrence of the explosion and fire in the sense that “but for” this air mixture neither would have occurred as they did. It was not, however, the direct or immediate cause of those events which could not have happened without an operative source of ignition. If that operative source was a spark from an electrical appliance or device inside the shed and ignition occurred without any human intervention beyond the ordinary use or operation of that device, it is unlikely that the issue of causation would be controversial. No specific question could arise for the jury as to whether there had occurred, between the respondent’s “but for” act of manufacture and the explosion, an act or omission which broke the chain of causation so as to relieve the respondent of any criminal responsibility for the resulting fire and death. In such a case the application of the common sense test of causation would suggest that ignition from such a source would have been foreseen as a consequence of the respondent’s activity so as to leave him causally responsible for the explosion that resulted in M’s death and notwithstanding that consequence was not a necessary or inevitable one.

However, if the source of the ignition was or involved an act of M or a third person a question might arise as to whether the chain of causation had been broken, depending on whether the act or omission was deliberate, in the sense that it was committed with the intention of causing the explosion, or reckless not caring whether that was the outcome, or merely inadvertent or negligent. In such circumstances more specific directions would provide guidance to the jury in their task of determining whether the accused’s “but for” act or omission was the substantial cause of M’s death. The relevant principles are discussed in Royall v The Queen and, in particular, in the judgment of McHugh J at 441 – 451. It will be appropriate in such a case for the judge to direct the jury in accordance with those principles as they apply to any possibilities that arise on the evidence: see the discussion in R v Pagett (1983) 76 Cr App R 279 at 288 – 290.

The Crown sought to prove causation by establishing that there were several possible sources of ignition, any one of which could have operated. (The existence of those sources of ignition was also relevant to the Crown’s case that the act of extracting pseudoephedrine using toluene was a dangerous one). It was then for the jury to be satisfied beyond reasonable doubt that one or other of those possibilities was the source of ignition and that the respondent was causally responsible for M’s death irrespective of which of those possible sources operated.

In Royall v The Queen three alternative possibilities as to how the victim fell to her death were left to the jury and there was a need for the jury to be directed on specific issues of causation and intent which arose with respect to those different possibilities. If in this case the evidence identified as possibilities sources of ignition that involved the intervention of M or of a third person, it would be for the jury to determine, after being directed as to the relevant principles, whether in the face of that evidence they could be satisfied beyond reasonable doubt that the source of ignition was one of the possibilities contended for by the Crown. If the jury could not be satisfied in that respect, they would then have to consider whether the respondent was causally responsible for M’s death if any one or more of those further possibilities were accepted as the source of ignition. If so, the jury would then have to consider whether they were satisfied beyond reasonable doubt that the operative source of ignition was either one of the possibilities contended for by the Crown or one of the further possibilities raised by the evidence that did not break the chain of causation.

These matters were questions for the jury, properly directed, to consider. They did not make it necessary, as a matter of law, that the Crown prove the source of ignition as an element of its case on causation. It follows that this first ground of appeal is made out.

In R v LK [2010] HCA 17; 241 CLR 177 at [26], French CJ observed that the directed verdict of acquittal is a mechanism for taking a case away from the jury because, as a matter of law, a conviction is not open on the evidence. In other words, as the Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) explained in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214 – 215:

This Court (Bathurst CJ, Simpson and Adamson JJ agreeing) noted in R v PL [2012] NSWCCA 31 at [32], that these authorities and May v O’Sullivan [1955] HCA 38; 92 CLR 654 at 658 make clear that “the sufficiency of evidence to warrant a conviction is to be resolved without regard to evidence which favours the accused as, for example, by qualifying, contradicting or explaining the evidence in support of a conviction.” The Chief Justice added, citing R v J M R (1991) 57 A Crim R 39 at 44, that where a case depends in the main on circumstantial evidence, “a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated”.

In R v R (1989) 18 NSWLR 74 at 81 Gleeson CJ (Maxwell and Wood JJ agreeing) cited the following statement of Young CJ and Anderson and Gobbo JJ in Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 415 – 416 as correctly stating the appropriate test in relation to a Crown case based on circumstantial evidence:

Here instead of ignoring the alternative hypotheses as to the possible sources of ignition suggested by the respondent, the trial judge actively considered those hypotheses (and did so without addressing whether they were consistent with the respondent’s innocence because they broke the chain of causation) and concluded that the Crown must fail because they had not been negated. In doing so his Honour took the approach expressly disapproved by this Court in R v R, R v J M R and R v PL. Taking the Crown case at its highest there was evidence as to there being several possible sources of ignition and it was open to the jury to conclude on the basis of that evidence that one or other of those possibilities was the source of ignition and that the respondent was causally responsible for M’s death irrespective of which of those possibilities operated. Those questions and the question of whether a reasonable doubt existed as to the respondent’s innocence should have been left to the jury. This ground of appeal also has been made out.

Section 107(5) of the Crimes (Appeal and Review) Act provides that on an appeal under s 107(2) the Court “may affirm or quash the acquittal appealed against”. Section 107(6) provides that if the acquittal is quashed the Court may order a new trial in such manner as it thinks fit.

The respondent did not contend that if the grounds of appeal are made out, a new trial should not be ordered.

The charge brought is a serious one and there is no apparent reason why the Court should decline to order a re-trial. In particular this is not a case where this Court could be satisfied that any conviction would be overturned as unreasonable or on any other basis which would not result in a new trial in the event of a successful conviction appeal: see R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [88] – [93] per Spigelman CJ.

The Court makes the following orders: