R v Dalby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER |
| Judgment Date | 04 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J1204-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1196/B/81 |
| Date | 04 December 1981 |
[1981] EWCA Crim J1204-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Waller
Mr. Justice Jupp
and
Mr. Justice Waterhouse
No. 1196/B/81
MR. D. WEBSTER, Q. C. and MR. J. ASPINALL appeared for the Appellant.
MR. H. SUMMERFIELD appeared for the Crown.
On the 3rd March, 1981, at Winchester Crown Court, the Appellant pleaded guilty to unlawfully supplying a Class A controlled drug to Stefan O'such and not guilty to manslaughter. On the 10th March, he was convicted by a majority verdict of the manslaughter of Stefan O'Such. He now appeals against the conviction of manslaughter by certificate of the trial judge.
The Appellant, aged 25, and Stefan O'Such were both drug addicts and had been friends for some years. On Friday, 2nd May, 1980, after he had been staying with O'Such and his wife in their flat in Bournemouth for about a week, the Appellant lawfully obtained, upon prescription, 32 tablets of Diconal. They were to be taken two every four hours, i.e. 8 per day. During his journey back to the flat, the Appellant swallowed a number of tablets. At 8 p.m. shortly after his return, he supplied O'Such with some tablets: the evidence was unclear as to how many but probably four at that time and four or eight more later. The Appellant and O'Such each injected himself intravenously and they then went out shortly after 9.30 p.m. to a discotheque where they parted company. The evidence was that O'Such met another friend at the discotheque who helped him administer an intravenous injection, of an unspecified substance, shortly before midnight and later a second intravenous injection.
When the Appellant returned to the flat at about 2 a.m. O'Such was already asleep on a settee in the living room and the Appellant went to sleep himself. He was woken by Mrs. O'Such at 8.a.m. and both of them attempted to wake O'Such but without success. Mrs. O'Such asked the Appellant whether an ambulance should be called but he said No. When the Appellant went out at 1.30 p.m., O'Such was still asleep. At 3 p.m., Mrs. O'Such called an ambulance and when the ambulance attendants arrived some five minutes later, they found O'Such was dead.
The prosecution case was that the Appellant was guilty of manslaughter because he had supplied Diconal unlawfully, that it was a dangerous act and caused O'Such's death, or alternatively that the Appellant owed a duty of care to O'Such and was grossly negligent in not calling an ambulance at an earlier stage.
Before this court, the argument proceeded on the former of those two alternatives because it was agreed that if the direction concerning an unlawful act that was dangerous, causing the death of O'Such was in error, then the appeal must succeed.
The learned judge directed the jury that there were five questions which they had to consider: firstly, did Dalby supply the Diconal; secondly, did he intend to supply the Diconal; thirdly, was the supply of Diconal to O'Such an unlawful act? No question arises about those three questions because the answer was clearly Yes in each case. The fourth and fifth questions were dealt with by the judge as follows: "Was the supply of the Diconal a dangerous act, because manslaughter is by a dangerous and unlawful act. By a dangerous act, we mean any act which subjects the victim to the risk of some harm, not necessarily serious harm. The test for whether the act was dangerous or not is an objective one." Then the fifth question was posed: "The fifth and last question you will ask yourself is whether the supply of the Diconal was a substantial cause of the victim's death. It does not have to be the only cause of death, but it has to be a substantial cause of death, by which we mean a cause which is not merely trivial." The judge then went on to discuss with the jury the question of whether or not it could be a substantial cause of death when it was O'Such who administered the Diconal to himself.
The argument before this court has not centred upon the precise words of the learned judge. It was submitted on behalf of the Appellant;(1) That the unlawful act must be one directed at the victim. The supply of drugs in this case was not such a direct act. (2) That the supply of drugs can be harmless or extremely harmful according to the manner in which the victim deals with them. (3) That the drugs in this case were taken voluntarily by the victim in a form - i.e. intravenously - and in a quantity which together made them extremely dangerous and resulted in death. The line of causation was therefore broken between the unlawful act of supplying drugs and the death resulting from intravenous injection of too great a quantity of them.
Clearly there may be circumstances which would justify a finding of criminal negligence resulting in death which would found a case of manslaughter but this part of the argument is not concerned with negligence.
The earlier authorities show that any lawful act resulting in death would justify a verdict of manslaughter but modern authorities have restricted this form of manslaughter to unlawful acts which are dangerous. In R. v. Larkin 9 Cr. App. R. 18, at page 23, Mr. Justice Humphries, giving the judgment of the court, having considered the definition of recklessness as a cause of manslaughter, went on: "Where the act which a person is engaged in performing is unlawful then if at the same time it is a dangerous act, that is an act which is likely to injure another person and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter." In R. v. Church 49 Cr. App. R.206, Mr. Justice Edmund Davies, as he then was, giving the judgment of the court, dealing with an unlawful act, said: "The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of some harm resulting therefrom albeit not serious harm." And Mr. Justice Glyn-Jones, in his direction to the jury at a part of his summing-up that was not criticised, said this: "If by an unlawful act of violence done deliberately -to the person of another, that other is killed, the killing is manslaughter even though the accused never intended either death or grievous bodily harm." Finally, in D.P.P. v. Newbury 62 Cr. App. B.291, at page 296, Lord Salmon, after quoting the passage I have just mentioned from R. v. Larkin, said: "I agree that that is an admirably clear statement of the law which has been applied many times. It makes plain (a) that an accused is guilty of...
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