The Facts
Misusers of prescription medications acquire Xanax and OxyContin tablets
The deceased, the accused and another man were all misusers of prescription medications, in particular, OxyContin. This is a brand name of oxycodone, an opioid drug prescribed by doctors for pain relief and misused by some for recreational purposes. They would “mull up” the tablets (ie dissolve them in water in a spoon) and then inject the drug intravenously.
On one particular day, the group of three had procured some Xanax, a short-acting benzodiazepine which is prescribed by doctors to relieve anxiety and which is also misused by some for the purpose of intoxication.
While there was disagreement about the number of Xanax tablets procured and who took how many of those tablets, the court determined that all three members of the group had some of the tablets.
After this, the three went to the home of another man and swapped some alcohol, which they’d previously stolen, for OxyContin. The deceased, the accused and the other man all took some OxyContin.
Deceased loses consciousness and is driven to home of accused
The deceased began to “nod off”, ie lose consciousness, and was placed in the back of a utility vehicle belonging to the accused.
There is disagreement between witnesses as to the precise sequence of events, but the court accepted that the accused drove the deceased from the first house to her home.
The deceased was found dead on the ground next to the ute by the mother of the accused, after she arrived home from work at 7.30 in the morning.
Did the accused assume duty of care of the deceased? And did her actions cause his death?
There were two important questions in dispute in this case.
The first is whether the prosecution could prove beyond reasonable doubt that the accused by her actions caused the death of the deceased. The second is whether the prosecution could prove beyond reasonable doubt that the accused assumed a duty of care for the deceased.
There was also a very real question as to whether the deceased died before or after the accused drove him from the house where they had taken the OxyContin.
Expert commentary on the court's decision
Essential elements or ingredients of manslaughter by criminal negligence
The accused was charged with the offence that she unlawfully killed a person contrary to section 18(1)(b) of the Crimes Act 1900, which states that every other punishable homicide outside of murder shall be taken to be manslaughter.
The prosecution alleges that the killing of the deceased was caused by an omission of the accused that was so seriously negligent on her part and created such a high risk of serious injury or death to another person, that it amounted to a criminal offence.
In order to prove manslaughter on this basis, the prosecution had prove each of the following elements beyond reasonable doubt.
Court finds accused guilty of manslaughter
In the case R v Tracey Lee Dowling [2018] NSWDC 367, the court considered the following key points in finding the accused, Tracey Lee Dowling, guilty of the manslaughter of Luke Doyle, the deceased.
The death of the deceased was not disputed and the cause of death was found to be multi-drug toxicity.
Accused found to have owed a duty of care to the deceased
By taking Mr Doyle to her home in Young, NSW, Ms Dowling secluded the deceased from others who were intending to assist him by getting him to the local hospital. By taking him to her home, she effectively prevented any other person from assisting him.
The judge was satisfied that Ms Dowling owed a duty of care to Mr Doyle because she voluntarily assumed care of him at the time she drove him away from the house where he had overdosed and further by taking him to her home, thereby secluding him at a point when he was helpless and it would have been blatantly obvious to anyone that he was in urgent need of medical assistance.
Failure to get medical attention found to be grossly negligent
It was considered relevant that Ms Dowling failed to notify anyone or tell anyone about Mr Doyle overdosing. The judge concluded that Ms Dowling made no effort to contact medical or other assistance, or for that matter anyone.
The court found beyond reasonable doubt that Ms Dowling was grossly negligent. The court was satisfied to the criminal standard that by leaving Mr Doyle helpless in the driveway of her home and failing to get medical attention, Ms Dowling significantly or substantially caused or accelerated his death.
The judge rejected the argument by the defence that it was entirely possible Mr Doyle had died before leaving the house where the drugs were consumed, finding on the basis of evidence provided by pathologists and toxicologists that Mr Doyle was alive when he arrived at the house of Ms Dowling.
Actions of accused found deserving of criminal punishment
The court was satisfied to the criminal standard that Ms Dowling’s omission amounted to gross criminal negligence and merited criminal punishment, because this omission “involved such a great falling short of the standard of care which a reasonable man (read ‘person’) would have exercised and which involved such a high risk that death or grievous bodily harm would follow”.
While the judge found that Ms Dowling was responsible for the death of Mr Doyle, he also took a dim view of other participants in this sad event, including those who encouraged him to abuse prescription medication and those who procured it for him.
In this context, the court noted that an ambulance was not called to the first house because its occupant was concerned about the presence in the house of his young son, the consequent custody implications and the possibility of the intervention of the Department of Family and Community Services.
Ms Dowling was sentenced to seven years in jail for manslaughter, with a non-parole period of five years.