By Ugur Nedim and Brooke Watson
Our client is a 40 year old man from Greystanes in greater Western Sydney.
He lived with his older brother and elderly mother until her death in September 2017.
On 23 August 2017, our client and his brother called an ambulance for their mother, explaining that she had become bedridden and that her food and water intake had decreased.
Following admission to hospital, our client’s mother was found to have a number of bed sores which had become infected. That infection subsequently led to sepsis and our client’s mother passed away 10 days after being conveyed to hospital.
Following the death of their mother, our client and his brother were charged with her manslaughter. The Crown alleged that they had been criminally negligent by failing to properly care for her, and that their failure to provide care caused her death. Both our client and his brother pleaded not guilty.
We successfully reached agreement with the Crown to have the trial heard by judge alone.
The Crown case was that as a result of assuming responsibility for the care of their mother, the brothers were required to exercise reasonable care for her health and nourishment.
It was alleged that in the month before the mother’s admission to hospital, the brothers negligently breached that duty by failing to provide proper care and hygiene for their mother’s bed sores, by neglecting to obtain medical treatment and not providing adequate nutrition and hydration.
It was further alleged that these omissions caused the 72-year old mother’s death because the infection, that ultimately proved fatal, entered her bloodstream through the bed sores.
Our client and his brother did not deny owing a duty of care to their mother. They did, however, deny any negligence in that care and disputed that the infection resulted from any breach on their part.
During to course of the case, our defence team obtained materials which suggested that the mother had full cognitive capacity, and that she had repeatedly refused medical care in the years leading up to her death.
Given the nature and extent of the material obtained, and our successful cross-examination of the Crown’s medical experts – who conceded in court that there were refusals to receive medical care – our defence team made the forensic decision not to call our client to the witness stand.
Rather, our strong position at the end of the Crown case led to our decision to call only one defence witness, an elderly gentleman who had known the lady for several years through their interactions at the local church. The man’s evidence strongly corroborated our instructions and the medical evidence regarding the mother’s history of refusing medical treatment.
The presiding judge found that the Crown had failed to establish that the mother suffered from dementia or lacked mental capacity prior to her admission to hospital. His Honour further found there was no evidence of long-term nutritional deficiency, which was again consistent with our client’s account that he provided his mother with all her meals.
The judge additional found there was no evidence that our client “knew at any time prior to [his mother] being hospitalised how medically significant it was” and that the Crown failed to establish the brothers “exhibited less than reasonable care in failing to procure medical assistance…”
His Honour agreed that the mother was “a conscious patient with full legal capacity.”
He therefore rejected the Crown’s case, and found that a reasonable person in our client’s position should not be taken to possess the medical knowledge and expertise required to care for a person suffering from bed sores.
Our client was found not guilty for those reasons.
The offence of manslaughter in New South Wales
The offence of manslaughter is outlined in section 18 of the Crimes Act 1900 (NSW).
It is different from murder in that there is no intention to kill or cause grievous bodily harm.
Rather, it is where a person unintentionally causes the death of another.
There are generally four situations which give rise to manslaughter:
- Where you owed the deceased person a ‘duty of care’ and a reasonable person would have realised that your actions were negligent and could result in death or serious injury; or
- Where someone is killed as a result of your unlawful and dangerous actions, which you knew or should have known could result in serious injury; or
- Because you act excessively or unreasonably in defending yourself, another person or your property, and your actions cause the death of another person; ot
- Where you were legally supposed to perform some action and you failed to do so (manslaughter by omission)
Penalty for manslaughter
Section 24 of the Crimes Act 1900 prescribes a maximum penalty of 25 years imprisonment for the offence of manslaughter..
The offence is ‘strictly indictable’, which means it can only be finalised in a higher court, such as the District or Supreme Court.
The case of the brothers accused of manslaughter over the death of their mother were tried by a judge-alone in the Supreme Court of NSW.
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