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David Carter: Ian Dobinson is a senior lecturer in the faculty of law at the University of
Technology Sydney. His area of expertise is the criminal law, working particularly on
a topic where he'll speak about today: Drugs and Drug Use. Ian, let's start by hearing
about the case of Burns.Ê
Ian Dobinson: The case of Burns recent high court decision has significantly made it clear
that those who supply drugs to other who then self-administer those drugs, that is only
going to be in very special and specific circumstances that such drug suppliers will be criminally
liable.Ê
David Carter: This reminds me of another case, of course, which is the case of Suresh Nair,
which some people might know about, which is a young Sydney neurosurgeon who, I believe,
plead guilty to manslaughter in somewhat similar circumstances to that of the Burns'.
Ian Dobinson: Well they were similar in the sense of someone supplying drugs to the victim.
In the case of Nair, who was a doctor, he had a serious *** habit and had got a
large amount of ***. He had arranged for two escorts to come to his house for a party.
In effect, he told one of them that she should just help herself to this very large amount
of *** that he had on the coffee table. She took an incredibly large amount of ***
and she started to convulse and overdose. Nair, who was a doctor, went out to simply
get some Panadol or that sort of medication and when he came back the victim was near
death and died very soon thereafter.Ê
So in that particular case, the reason for his liability, noting that he pleaded guilty,
arguably was on the basis that he was a doctor and that therefore duty of care arose. But
from a procedural perspective Nair was originally charged with *** on the basis of reckless
indifference so he was under pressure, in this particular case, to plead guilty to the
lesser charge of manslaughter.Ê
David Carter: So both of these cases then involve supply of drugs in some kind of different
circumstances. What are the options then? What got one here sort at the negligent manslaughter
and then what were the options for prosecutors in relation to the Burns' case?
Ian Dobinson: In the Burns' case, it appears to be two options for the prosecution. The
first and most straightforward is the accused, or accuse, have actually administered the
drugs to the victim and it's well settled law that if that takes place then the accused
in those circumstances will be liable. The other options is negligent manslaughter; that
in the circumstances, the accused may have taken on a duty of care in relation to the
victim and then likely failed in relation to seeking appropriate and timely medical
attention and this has then led to the death of the victim and on that basis gross negligence
can be determined.Ê
David Carter: In relation to negligence then, as you just said it's about a duty of care.
Clearly engaging in this kind of drug taking, either in the case of Nair or in the case
of the Burns', is a dangerous thing. What about the kind of sense that the victim here
is a fully, kind of informed consenting adult?
Ian Dobinson: This is the issue in terms of the high court in Burns ultimately finding
in favor of Mrs. Burns and acquitting her in relation to her conviction for manslaughter
largely because they determined that the victim in these circumstances had self-administered,
had done so in a fully informed way as a consenting adult and in those circumstances a duty of
care did not arise in the drug supplier. The Burns' decision is clearly telling us now
that such a duty is only going to arise in quite specific circumstances. In this regard
the high court approved of an English decision called Evans where the victim, who was 16
years old at the time, had been supplied drugs by her mother and her auntie.Ê
Her auntie is Evans, in this particular case. They failed, both of them, in relation to
seeking medical assistance for the victim when she overdosed from the use of this ***.
Now the circumstances in relation to the case of Evans in relation to the auntie so as to
give rise to a sort of special relationship was to do with her actually not just supplying
the drugs but also being the victim's auntie and also the circumstances in which both the
auntie and the mother were present at the time that, in effect, the victim was overdosing
and dying from the ***.Ê
David Carter: So then, taking Evans and the high court's decision in Burns, what's your
sense of the direction of manslaughter charges based on drug supply and death?
Ian Dobinson: The new circumstances of negligent manslaughter is that it's only going to arise
in these very special and limited circumstances. Outside of that, liability for a supplier
in relation to the drug supplier has actually administered the drugs to the victim. And
this could arise in circumstances as in [Kato] where the victim in [Kato] was just physically
incapable of injecting himself with the drugs and so the drug supplier injected [Kato].
Where that occurs, liability will arise.Ê
Outside of that, the Evans type situation, the Nair type situation where he was a doctor;
then it's really going to be limited to those sort of special circumstances. The high court,
I think, was quite clear in that they really weren't going to extend the notion of duty
of care beyond the mere supplier. The other, I think, significant case to refer to here
is the Mark Wilhelm and Dianne Brimble case on the P&O cruise and, in these circumstances
again, Justice Howie was very clear early on in that case that Mark Wilhelm owed no
duty of care to Dianne Brimble.
David Carter: Thank you, Ian, for your time.Ê