R v David John IBY [2005] NSWCCA 178

R v David John IBY [2005] NSWCCA 178

The common law born alive rule is satisfied by any sign of independent life, such as a heartbeat or breathing (with or without mechanical assistance), and does not require evidence of brain function or unassisted breathing. The statutory definition of death in s33 of the Human Tissue Act does not alter or prescribe the threshold for the existence of life under the born alive rule. Accordingly, the trial judge correctly found that the infant in this case was born alive, and the conviction stands.

Jurisdiction
Australia
Judgment Date
09 May 2005
Procedural Posture
Criminal Appeal / Appeal From Conviction (district Court, Judge Alone)
Outcome
Appeal dismissed
Legal Topics
['manslaughter' 'born Alive Rule' 'definition of Life and Death' 'application of Statutory and Common Law Definitions' 'criminal Responsibility for Death of Newborn']
['criminal Law'] ['manslaughter' 'born Alive Rule' 'definition of Life and Death' 'application of Statutory and Common Law Definitions' 'criminal Responsibility for Death of Newborn']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From Conviction (district Court, Judge Alone)

Legal Issues

  1. 1 ["What constitutes 'born alive' for the purposes of the common law born alive rule in homicide offences?" 'Is breathing with mechanical assistance or a detectable heartbeat sufficient to establish that a newborn was born alive?' 'Is evidence of brain function necessary to establish that a newborn was born alive?' "Is the statutory definition of death in s33 of the Human Tissue Act 1983 (NSW) relevant to or determinative of the common law test for being 'born alive'?"]

Ratio Decidendi

The common law born alive rule is satisfied by any sign of independent life, such as a heartbeat or breathing (with or without mechanical assistance), and does not require evidence of brain function or unassisted breathing. The statutory definition of death in s33 of the Human Tissue Act does not alter or prescribe the threshold for the existence of life under the born alive rule. Accordingly, the trial judge correctly found that the infant in this case was born alive, and the conviction stands.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']