Causation

Mason CJ (would grant special leave and dismiss the appeal)

1. This application for special leave to appeal raises a variety of questions, including important questions concerning the directions with respect to intent to be given by the trial judge to the jury on a trial for murder as defined by s.18 of the Crimes Act 1900 (N.S.W.) ("the Act"). The application for special leave is brought from orders of the New South Wales Court of Criminal Appeal dismissing an appeal by the applicant from a conviction of murder and refusing leave to appeal against the sentence imposed upon him of imprisonment for life with no non-parole period. A short summary of the relevant facts will suffice as the reasons for judgment prepared by Deane and Dawson JJ. set out in detail the circumstances in which the offence is alleged to have taken place.

2. The deceased, Kelly Louise Healey, died in the early hours of 16 November 1986 when she fell from the bathroom window of the sixth floor flat in which she and the applicant had lived for the previous four months. How the deceased came to fall and just what part the applicant played in the events which precipitated the deceased's fall were central to the issues which the jury were called upon to determine at the trial.

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5. The Crown case was that the applicant murdered the deceased in one of three ways:

1. that the applicant pushed or forced the deceased out of the window;
2. that the applicant physically attacked the deceased in the bathroom and that, in retreating from or avoiding that attack, she fell from the window; or
3. that, immediately before her fall from the window, the deceased had a well-founded and reasonable apprehension that, if she remained in the bathroom, she would be subjected to life-threatening violence from the applicant and, in order to escape from the violence, she jumped out the window.

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19. Generally speaking, an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connection between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation. But the governing principle has been expressed in a variety of different ways. The trial judge's direction was based on that approved by the Full Court of the Supreme Court of New South Wales in Reg. v. Grimes and Lee (1894) 15 NSWR 209 (where the deceased jumped to his death from the window of a railway carriage in order to escape from the accused who had assaulted and robbed him). The key element in the chain of causation, as contemplated by the direction, is that an accused's conduct creates in the mind of the victim a well-founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death. According to this view, it is enough that the victim's apprehension of danger is well-founded and reasonable; there is no requirement that the steps taken to escape should be reasonable. However, in England, formulations have been applied from time to time which pay more attention to the mode of escape chosen by the victim which results in death, no doubt with a view to emphasizing the causative link between the accused's conduct and the death of the victim. Thus, it has been held that a reasonable act performed for the purpose of self-preservation in attempting to escape the violence of the accused does not destroy the causative connection with the accused's violence: Reg. v. Pitts (1842) Car and M 284 [1842] EngR 395; (174 ER 509); Pagett [1983] EWCA Crim 1; (1983) 76 CrAppR 279, per Robert Goff LJ. at p 289. In this context, "reasonable" means reasonable in the light of the accused's conduct and the apprehension of danger which it induced in the mind of the victim. A variant on this formulation is to say that the victim's act which results in death is caused by the accused's violence if the act is "the natural consequence" of that violence, something that is very likely to happen: Beech (1912) 7 CrAppR 197, per Darling J. (where the victim was injured after jumping out of a window to escape from a man whom she had reason to fear). The natural consequence test has been explained as a test which poses the question whether the victim's act "was something that could reasonably have been foreseen as the consequence of what (the accused) was saying or doing": Roberts (1971) 56 CrAppR 95, per Stephenson L.J. at p 102. So if an act is so unexpected that no reasonable person could be expected to foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation between the accused's conduct and the ultimate injury: Roberts, at p 102.

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21. It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.

Brennan J (would grant special leave and dismiss the appeal)

2. The external elements of crimes of homicide include the doing of an act or the making of an omission by the offender, the death of the victim and a causal relationship between the two. The question whether the required causal relationship exists is usually a simple question of fact, but this is a more complex case.

3. The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Pagett [1983] EWCA Crim 1; (1983) 76 CrAppR 279, at p 288. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg. v. Pitts (1842) Car and M 284 [1842] EngR 395; (174 ER 509); Reg. v. Grimes and Lee (1894) 15 NSWR 209; Curley [2001] EWCA Crim 2986; (1909) 2 CrAppR 96; (1909) 2 CrAppR 109; Director of Public Prosecutions v. Daley (1980) AC 237, at pp 245-246. In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett, per Robert Goff LJ. at pp 288-289. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible. In Roberts (1971) 56 CrAppR 95, at p 102, Stephenson L.J. said (in a case of an assault occasioning bodily harm):

"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."

3. The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.

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6.Causation of death is concerned solely with the external elements of homicide; it is not a mental element of any crime of culpable homicide: see Archbold: Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), vol.2, par.20-8, p 1927. Nevertheless as causation requires proof that the taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an accused or was reasonably foreseeable, the facts tendered to prove a specific mental element necessary to establish the crime of murder may be relevant in some cases to the existence of facts tending to prove causation. It is difficult to envisage a case where proof that the conduct causing death was engaged in with an intent to inflict grievous bodily harm would not establish that at least the possibility of death was foreseen or was reasonably foreseeable. In a case of reckless indifference to life, the probability of death must be foreseen: Reg. v. Crabbe [1985] HCA 22; (1985) 156 CLR 464.

Deane and Dawson JJ (would grant special leave and dismiss the appeal)

16. Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. In New South Wales, where the common law concept of malice aforethought is replaced by the statutory formula contained in s.18 of the Crimes Act, the requisite intent is a reckless indifference to human life, or an intent to kill or an intent to inflict grievous bodily harm upon some person. But the intent need not embrace the events which actually occur. While the death of the deceased must be caused by the accused, it may occur in a manner not contemplated by the accused, provided that the acts or words of the accused which cause the death are accompanied by the necessary intent. As was observed by McGarvie and O'Bryan JJ. in Reg. v. Demirian [1989] VicRp 10; (1989) VR 97, at p 113: "If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected."

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19. It may not be possible to take the matter usefully much beyond that. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms.

Toohey and Gaudron JJ (would grant special leave and allow the appeal)

21. Conceding the force of these comments, we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is "a question to be determined by them applying their common sense to the facts as they find them": Campbell, ibid. Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken.

McHugh J (would grant special leave and dismiss the appeal)

24. Causation is a question of fact: Reg. v. Evans and Gardiner (No.2) [1976] VicRp 53; (1976) VR 523, at p 527; Pagett [1983] EWCA Crim 1; (1983) 76 CrAppR 279, at pp 290-291. To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett, at p 290. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf. Campbell v. The Queen (1981) WAR 286, at p 290.

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44. However, notwithstanding what was said in Daley and Grimes and Lee, I do not think that either principle or policy requires the conclusion that an accused is not causally responsible for the harm suffered by the victim simply because the accused's act or omission has caused the victim to act unreasonably. One of the basic objects of the criminal law is the preservation of the Queen's peace. If the conduct of the accused in fact induces the victim to do something which "causes" harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture and eventual death, I do not see why the causal chain should be taken as broken: cf. People v. Lewis (1899) 57 Pac. 470. The unreasonable failure of a victim to receive medical attention will not constitute a novus actus interveniens: Blaue. How then can unreasonable conduct on the part of a victim in escaping an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim has refused to take action which would prevent his or her death, while in the second case the victim has taken action which causes his or her death. But in each case, the death occurs only because of conduct on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction in principle between the two cases. It is even more difficult to see why the conduct of the victim should absolve the accused in one case and not the other.

45. The fact that the victim's act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim's act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law.

Brennan CJ, Deane, Dawson, Toohey and Gummow JJ

5. When the three youths arrived at the park they saw two men, who were the deceased and Sullivan, near a lookout at the top of a cliff. The two men were not in each other's company but were not far apart. The three youths set upon them. Sean McAuliffe threatened Sullivan with the hammer and took his coat. Sean McAuliffe then punched and kicked Sullivan. At about the same time David McAuliffe and Davis attacked the deceased, McAuliffe punching and kicking him and Davis beating him with the stick. Davis chased the deceased on to an elevated footpath which led away from the lookout and ran along the top of the cliff some distance away from the edge. He continued to assault the deceased on the footpath. Sean McAuliffe then went over to the deceased and side kicked him in the chest. He said he did this "to finish the fight". It caused the deceased to fall from the footpath into a puddle in the rocks a short distance below. The puddle was some three to five metres from the edge of the cliff. By this time the deceased was covered in blood. Davis then turned to Sullivan and began to assault him, using the stick. He stopped as the McAuliffe brothers left the scene, calling upon Davis to go with them. Davis went towards the footpath but joined the others a minute or two later. He had a lot of blood on him.

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7. The actual death of the deceased would appear to have been directly caused by the injuries sustained by falling from the cliff and drowning. It is likely that the deceased suffered fractures and bruising to the skull, a broken nose, a fractured collar bone and various lacerations to the face before the fall. Some of the injuries were due to the application of force with a blunt instrument, and others were consistent with blows from fists.

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22. The appellants complain that the trial judge failed to direct the jury that if the deceased acted unreasonably and simply walked in the wrong direction for reasons unrelated to the injuries received, other than his proximity to the cliff edge, then the chain of causation would be broken. However, the trial judge on a number of occasions reminded the jury that an act of the deceased himself was capable of providing an intervening cause of death and of breaking the chain of causation which commenced with the assault upon him by the appellants and Davis. He suggested to the jury a number of possible explanations of the manner in which, upon the evidence, the deceased may have met his death, without suggesting that the examples were exhaustive. One such example was:

"that of the deceased being out on that rock area on the sea side of the park having been left there and then having got up at some stage and I suppose turned one direction, turned towards the sea, and walked off rather than walking the other way back to safety. That again is very much a matter of commonsense for you to consider in the circumstances. You would no doubt take into account the extent to which there was any light in the area. You would take into account what effect any physical injury or attack, confusion, and the like had upon him."

In the light of the direction previously given that the jury consider whether any act of the deceased was such as to break the chain of causation, that passage would clearly have directed the jury to the matters which the appellants complain were not brought to their attention.

23. The learned trial judge did not direct the jury with respect to the reasonable foreseeability of any action on the deceased's part but the case was a relatively simple one and did not call for such a direction. The trial judge did however deal with a possible response of the deceased to the acts of the three youths saying:

"As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked."

It was observed in this Court in Royall v. The Queen that in directing a jury on causation of death in fright, escape or self-preservation cases, it is ordinarily undesirable to focus attention upon foreseeability. In that case, a direction of the kind given by the trial judge here was approved. There is, in our view, no substance in the appellants' complaints about the trial judge's directions in relation to causation.

Gaudron J (would dismiss the appeal on the unwilled acts ground but allow it on the onus direction ground)

2. According to the evidence-in-chief of the appellant concerning the events leading to the death of Tony Celap, the deceased became verbally abusive whereupon he, the appellant, took a loaded shotgun from under his bed and approached the deceased with the gun in his right hand. As the deceased started to rise from a chair, the appellant lifted the gun to waist height, the deceased's arm shot out and something hit the appellant on the head. The gun then went off. He said that he took the gun into the room where the deceased was sitting solely with the intention of frightening him so that he would leave the house.

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10. The difficulties associated with identifying the act causing death in a firearms case may be seen in Ryan v The Queen, a fatal shooting case involving a charge of murder under the Crimes Act 1900 (NSW) but which, otherwise, bears strong similarity to the present case. The accused in that case pointed a loaded and cocked rifle at a service station attendant and, while still pointing the rifle with one hand, tried to tie the attendant up with the other. The attendant moved suddenly and the accused's finger pressed the trigger without, on the accused's account, any intention on his part. In that case Taylor and Owen JJ said:

"the wounding and death [of the service station attendant] were caused by a combination of acts ... includ[ing] the loading and cocking of the rifle, the failure to apply the safety catch, the presentation of the rifle ... with the finger ... on the trigger in circumstances in which an attempt at resistance might well have been expected."

Their Honours added that it was "impossible to isolate the act of pressing the trigger ... and argue that it, alone, caused the wounding and death".

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13. There is another aspect to s 23(1)(a) of the Code that should be noted. Although it is accurate to speak in murder cases of the "act" referred to in s 23(1)(a) as the "act causing death", it is for the jury to determine what act or acts were done by the accused and whether they or any of them caused death. Thus, in Ryan, Barwick CJ expressed the view that, on the facts of that case, "the jury could choose the presentation of the gun in the circumstances [in which it was presented] or its subsequent discharge as the act causing death." And on the view that the act causing death was the discharge of the gun, his Honour allowed that there were at least four possibilities, namely:

• voluntary discharge with the intention of harming the deceased;
• voluntary discharge with the intention only of frightening the deceased;
• voluntary discharge in panic with no specific intention either to do harm or to frighten the deceased;
• discharge by the pressing of the trigger in a reflex, convulsive movement.

His Honour expressed the view, in relation to the fourth of those possibilities, that the accused's description of the killing as an "accident" was inconsistent with an admission that the gun was voluntarily discharged.

14. Subject to two matters which will be dealt with shortly, I think the analysis by Barwick CJ in Ryan is legally and logically correct and that that analysis is applicable in this case. The first, as has already been noted, is that Ryan was concerned with a charge of murder under the Crimes Act 1900 (NSW). At the relevant time, s 18(1) of that Act defined murder to include an act causing death that was done with reckless indifference to human life or done in an attempt to commit or during or immediately after the commission of an act obviously dangerous to human life[18]. Thus, the act causing death could be identified by Taylor and Owen JJ as "the presentation of the [loaded and cocked] rifle ... with the finger of the [accused] on the trigger in circumstances in which an attempt at resistance might well have been expected".

15. Unlike s 18(1) of the Crimes Act 1900 (NSW), as it stood at the time of the decision in Ryan, the definition of murder in s 302(1) of the Code contains no provision permitting a person to be convicted of murder simply for an act done with reckless indifference to human life or done in an attempt to commit or during or immediately after the commission of an act obviously dangerous to human life. Thus, if the act causing death in this case were to be identified as simply presenting the loaded shotgun, that might constitute manslaughter by negligent act, but it would not constitute murder.

16. The second matter that should be noted with respect to the analysis undertaken by Barwick CJ in Ryan concerns his Honour's acceptance of the possibility that, in that case, pressure was applied to the trigger by a reflex or automatic motor action. The question whether a reflex or automatic motor action is an involuntary or unwilled act is a question for the jury. And on that issue, there is much to be said for the view expressed by Windeyer J in Ryan that the pressing of a trigger in response to a sudden threat or apprehension of danger is a probable and foreseeable consequence of presenting a loaded gun and a jury might, on that account, find it to be a voluntary act.

Gummow and Hayne JJ (would dismiss the appeal on the unwilled acts ground but allow it on the onus direction ground)

44. It is as well to say, however, that had a direction on the subject been appropriate, it would have been necessary to go further than her Honour did: at least to the extent of further identifying for the jury the "event" which had to be considered, by distinguishing between "act" and "event". As it was, her Honour spoke only of the "event" as being the death of the deceased. Although strictly accurate, that description, in the context in which it was used, was apt to mislead for want of contrast with the meaning of "act". It follows that to tell the jury, first, that a person is not criminally responsible for an act which occurs by accident and then to say that the prosecution must

"establish that the accused intended that the event should occur or saw it as a possible outcome or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome"

left the jury insufficiently instructed about how these propositions of law about accidental events were to be applied to the facts of this case.

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50. The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger "in immediate response to a sudden threat or apprehension of danger". In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that:

"The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think."

But to identify the "act" as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant "act" which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant "act" would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences.

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54. In Ugle there was, on the evidence, a live question about whether the accused had struck the deceased with a knife or whether it was the deceased who had struck the knife which the appellant was holding. In this case, there was no issue of that kind. In this case, unlike Falconer, there was no question of automatism. In this case, unlike Woolmington, the appellant did not suggest that the weapon discharged when he was drawing it to show the victim how he, the appellant, intended to commit suicide. Rather, there was an issue about whether the appellant, presenting a loaded and cocked shotgun at the deceased, intended to kill him or do him grievous bodily harm. If, as the appellant said, he was struck by something thrown by the deceased and, as a result, he started, and in doing so pulled the trigger, his "act" did not occur independently of his will.

55. Thus, in this case, the central issue for the jury in considering the charge of murder was did the appellant intend to fire the weapon or merely present it to frighten the deceased? That is, the question was whether, in acting as he did, the appellant intended to kill or do grievous bodily harm, or had the prosecution not excluded the possibility that, as the appellant said, he had intended only to present the weapon in order to frighten the deceased. That was the subject matter of the issue which the trial judge identified for the jury. If persuaded to the requisite standard of proof that the appellant intended to kill or do grievous bodily harm to the deceased, the jury would have been correct in returning a verdict of guilty of murder. Was the jury properly instructed about the burden of proof?

Kirby J (would allow the appeal on the unwilled acts ground but would dismiss the appeal on the onus direction ground)

88. The appellant did not contest the "acts" anterior to the final (or "death-causing") act that caused his gun to discharge. But what he did posit was the real possibility that the final and ultimately death-causing "act" had occurred independently of his will. That possibility was arguably consistent with the appellant's being struck on the forehead in a way that might have caused the trigger of the gun to have been depressed involuntarily. If that were the conclusion of the jury, on the facts, it would (subject to consideration of criminal negligence) have been open to the jury to decide that the appellant was not criminally responsible for the "act" in question because the ultimately fatal "act" had occurred "independently of the exercise of [the appellant's] will".

89. I agree with Gaudron J that the identification of what was the relevant "act" and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final "act" was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate "act" that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a "reflex" act, it was still a question for the jury whether that act was properly to be viewed as having occurred "independently of the exercise of the [appellant's] will."

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100. The issue was for the jury: The words "by accident" are not terms of art. Whilst decades of case law gathered around the word "accident" in workers' compensation statutes, when appearing in the Code it was obviously intended to be left to juries to understand and to apply as an ordinary expression of the English language. So understood, an "accident" is something that happens unexpectedly, without design or by chance. If the jury were to accept as a real possibility that the appellant secured, pointed and cocked the gun only to frighten and remove the deceased from his home but ultimately discharged it accidentally when he was startled or struck by something thrown at his forehead, all of the antecedent conduct would not make inapplicable a conclusion that the "event", viewed as a whole, was one that had occurred "by accident". It was for the jury, not judges, to say what the "event" was in the circumstances. Upon that matter, therefore, the appellant was entitled to have the verdict of the jury. So much followed from the appellant's express denial that he had deliberately pulled the trigger, the way the case was conducted at the trial and the language of the paragraph.

Callinan J (would allow the appeal on the unwilled acts ground and the onus direction ground)

133. The appellant relies here upon the ground of appeal advanced in the Court of Appeal, and a further ground adopting what was said by McPherson JA in that Court [the onus direction ground].

134. As I have already foreshadowed, in my opinion, the appeal should be allowed on that latter ground for the reasons stated by McPherson JA, and to which it is unnecessary to make any further reference.

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148. There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter's acts in placing himself in such a position as to give the "act" the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the "act" itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident).

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150. Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise.

Spigleman J

1. I agree with Sully J

Sully J

2. In June and July 2002 the appellant, Mr. Katarzynski, stood trial before Howie J and a jury. He was tried upon an indictment charging him with having murdered, on 6 April 2001 at Liverpool, one Benjamin Hillier. The jury found him guilty of that crime; and on 3 October 2002 Howie J sentenced him to imprisonment for 24 years with a non-parole period of 18 years.

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4. The competing cases at trial are summarised helpfully and conveniently, and as follows, in the remarks on sentence:

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The offender’s evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased.

…

5 There are three grounds of appeal against conviction; and a further three grounds founding the application for leave to appeal against sentence.

Conviction Appeal : Ground 1

6 The Ground is:

“The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and excessive self-defence where the identified basis for primary liability was reckless indifference to human life.”

At [17] and [18]

It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls ‘causation’. The second of the two findings deals with the topic that the law calls ‘voluntariness’.

In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things;

[1]         That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim.

[2]         That the identification of any such act was a matter of fact for the jury alone.

[3]         That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial.

[4]         That the evidence left open for the consideration of the jury two obvious practical approaches, mainly:

(a)         to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or

(b)         to identify as the relevant act a sequence of things done by the appellant from the moment at which he pulled a pistol known by him to be loaded out of his pants; to the moment when he fired those three successive shots.

Kirby J

82. I have had the advantage of reading the judgment of Sully J in draft. I agree with the orders proposed, generally for the reasons provided by his Honour. I should, however, comment upon Ground 1.

83. In respect of the elements of murder, and leaving aside self defence and provocation, the facts gave rise to three issues:

• First, what was the cause of death?

• Secondly, whatever the cause, was it the act of the accused? It was not relevantly the act of the accused unless it was deliberate.

• Thirdly, if it was the act of the accused, was it carried out with an intent to kill, or cause grievous bodily harm, or with reckless indifference?

84. On the Crown case, there really was no issue of causation, voluntariness or intention. An eyewitness, the bouncer at the hotel, described the way in which the appellant beckoned the deceased to a spot where he waited in ambush to shoot him. He fired three shots at close range one after another. All caused grievous injury. One was fatal. The eyewitness account was, to some extent, corroborated by other witnesses. The appellant's brother was also called by the Crown. He said that the appellant was "irate" immediately after the incident. The appellant said, referring to the victim: "Fuck him. He shouldn't have fucked (with) me" (T144). On any view it was a strong Crown case.

85. Mr Katarzynski gave evidence. He provided an alternative version. He said that as he returned to the hotel he was confronted by the deceased. He drew from his waist band a revolver, which he knew to be loaded. At the same time he told the deceased to "fuck off". He was holding the weapon at about waist height, pointed across his body towards the ground. Suddenly the deceased lunged at him with his arms outstretched. The appellant said that he moved backwards. At the same time "he flinched causing the gun to discharge". He said to the police, and repeated to the jury, that he did not mean to shoot the weapon and certainly did not intend to injure the deceased.

…

91. Here, Senior Counsel for the accused at the trial neither objected to the terms of the summing up, nor sought elaboration to deal with matters now said to be a problem. Even if, being now removed from the atmosphere of the trial, there were matters that might usefully have been put by way of elaboration or clarification along the lines now submitted, I would apply Rule 4. To my mind, there was no possible miscarriage of justice.

Buchanan JA, Vincent JA and Kellam JA

1. In the early hours of Monday 8 July 2002, a fight broke out among a group of Vietnamese youths at the Salt nightclub in Daly Street, South Yarra, when Hung Van was assaulted by James Huynh, Viet Huynh, Nam Huynh and John Huynh and struck on the head by bottles. Other youths joined in the fight, which was stopped by bouncers.

2. Some of the protagonists had been involved in an earlier altercation. On Thursday, 4 July 2002, Nam and John Huynh participated in a fight with Hung Van and Cuong Lam and others at a nightclub in the Crown casino.

3. As a consequence of the fight in the Salt nightclub, the combatants were ejected. The succeeding events led to each of the applicants being charged with murder. Each of the applicants was charged with the murder of James Huynh (count 1). Cuong Lam and Hung Van were also charged with the murder of Viet and Nam Huynh (counts 2 and 3).

4. Viet and Nam Huynh were brothers. James Huynh was their cousin, and the elder brother of John Huynh. The applicants were linked by friendship.

5. Outside the nightclub Hung Van, Cuong Lam and one Tuan Tran armed themselves with samurai swords and put on white gloves. They encountered the Huynhs in Daly Street. James Huynh, armed with a bottle, approached Hung Van. Hung Van swung his sword wildly and struck James Huynh’s arm or wrist causing it to bleed profusely.

6. Cuong Lam, Hung Van and others chased the Huynhs into Chapel Street and then to the intersection of Chapel Street and Alexandra Avenue, where James Huynh fell to the ground near a bus stop, weakened by loss of blood. While he lay on the ground, James Huynh was subjected to a brutal attack, receiving injuries to his head, face, torso and legs from blows struck with samurai swords wielded, it was alleged, by Cuong Lam, Hung Van and David Nguyen.

7. It was the Crown case that after the attack upon James Huynh, Cuong Lam and Hung Van chased John, Viet and Nam Huynh across Alexandra Avenue to the bank of the Yarra River. John, Viet and Nam Huynh jumped into the river, Viet and Nam Huynh drowned. The place at which they jumped into the river was several hundred metres from the bus stop at which James Huynh was killed.

…

9. As to the deaths of Viet and Nam Huynh, the Crown case was that Cuong Lam and Hung Van chased them to the river bank with the intention of inflicting really serious injury upon them and instilled in them a fear which caused them to jump into the river or alternatively that one of them, acting in concert with the other, chased the deceased to the river bank.

10. The Crown case against Hung Van was that he struck James Huynh with a sword in Daly Street, chased the Huynhs along Chapel Street, and then was driven by Linh Nguyen and David Nguyen to the bus stop in Alexandra Avenue, where, together with Cuong Lam and David Nguyen, he attacked James Huynh. The Crown alleged that he chased John, Nam and Viet Huynh into the Yarra River or acted in concert with Cuong Lam when the latter chased the deceased to the river bank. He then returned to James Huynh and kicked him while he was on the ground.

…

46. The applicants Cuong Lam and Linh Nguyen argued that the learned trial judge was in error in directions given to the jury relating to the issue of causation.

47. By ground 6 of the statement of grounds Cuong Lam contended:

The learned trial judge erred by failing to direct the jury properly on the issue of supervening cause in respect to count 1, in particular by failing to permit the jury to consider that the stab wound inflicted in the deceased’s heart might have constituted a supervening cause of death.

48 By ground 1 Linh Nguyen contended:

The learned judge erred in his directions on causation; and in particular he erred (i) in ruling that it was not open to view the stab wounds to the deceased’s chest as a supervening act which broke the chain of causation and (ii) in withdrawing, or in failing to give directions on, that defence.

49 Similar arguments were raised by Long Tran, Hong Bui and Hoang Tran, but by reason of our conclusion that their applications for leave to appeal should be upheld on other grounds, it is no longer necessary to consider their cases on these grounds.

50. It was open to the jury to conclude that there were three separate attacks on James Huynh, which caused him serious injury. The first of those attacks took place in Daly Street. It was open to the jury to conclude that Hung Van, together with others, was armed with a sword and was involved in an attack on James Huynh in Daly Street which caused serious injury to his arm. An examination of the crime scene revealed that a blood trail was observed to commence in Daly Street at the intersection with Almeida Crescent near the Salt nightclub. The blood trail continued along Daly Street and along the western side of Chapel Street before crossing Chapel Street to its eastern side. The blood trail continued along the entire length of Chapel Street. There was evidence that the blood splash patterns were regular and continual and were deposited by a heavily blood stained person casting or throwing off the blood as the person moved along Chapel Street. The trail crossed Chapel Street and continued to the point where James Huynh’s body was found.

51. There was evidence that there were two separate attacks near the bus stop at the corner of Chapel Street and Alexandra Avenue. The first attack commenced soon after 3.12 am. A number of witnesses described the deceased being attacked by at least two people with bladed weapons and a third person who was kicking him. A number of witnesses then saw the assailants depart in a number of cars. One witness, Mr Bernard Lew, telephoned police at the time of observing the incident. His phone call was recorded at 3.15.16 am. At that time Mr Lew observed the deceased alone on the ground. The only movement observed by him was a slight movement of the deceased’s arms. Subsequently and at 3.17.38 am another witness, Anthony Douglas, rang police. As he did so he saw a small red vehicle coming to a stop outside his apartment. Other witnesses observed two people, whom the jury were entitled to conclude were Hung Van and David Nguyen, getting out of the car. The evidence of a number of witnesses was that one of them struck the deceased with a sword and the other kicked him very hard on several occasions. A witness, Catherine Walters, having observed this, telephoned 000 at 3.20.09 am. Having made the telephone call she observed the two men getting back into the red car, which then departed.

…

64. The evidence is clear that at the time of the death of the deceased all of the major incision injuries suffered by him were both operating and substantial causes of his death. The speculative possibility that in the absence of the injury to his heart intensive treatment and heroic surgery may have avoided death is not to the point. There is no feature of significance which distinguishes this case from the principles set out by Brooking JA in Franklin.

65. The respondent referred us properly to R v Japeljarri and to R v Evans and Gardiner (No 2), which may be argued as casting doubt upon the principles expressed by Brooking JA. The respondent submitted that insofar as statements made in those cases are irreconcilable with the decision in Franklin, the more authoritative approach was that of Brooking JA. It was submitted that the approach of the learned trial judge in applying the principles stated by Brooking JA is supported by the decision of the High Court in Royall. We agree. In our view it is clear that the acts of the principal offender or offenders in the first attack remained an operating and substantial cause of the death of the deceased and, in circumstances where the injuries were inflicted by two or more assailants, acting in concert and at substantially the same time, it was sufficient for the jury to consider whether or not the attack of the accused principals made a substantial contribution to death of the deceased. It was not appropriate for his Honour to leave to the jury the determination of whether there was a supervening act or event which broke the chain of causation.

McClellan CJ at CL

1. On 16 September 2002 the ocean going yacht “Excalibur” lost its keel at sea. The boat capsized and four members of the crew were lost. There is no doubt that the keel failed because it had been cut horizontally through its entire width and then welded together during the course of its manufacture at the premises of Applied Contract Engineering Pty Ltd in Victoria (“Applied Engineering”).

2. The appellant who is the Managing Director of Applied Engineering and Mr Adrian Presland, one of his employees, who had been responsible for much of the work on the keel were charged and tried for four counts of manslaughter by criminal negligence. Mr Presland was acquitted.

3. The appellant was convicted by a majority of the jury. Pursuant to s 55F of the Jury Act 1977 the judge took a “majority verdict”, one juror not joining in the decision to convict.

4. The Crown put its case on two bases. It firstly alleged that the appellant knew that the keel had been cut and had allowed the yacht to be supplied in that condition. In the alternative the Crown alleged that the appellant had failed to implement reasonable measures for the supervision of the process of manufacturing the yacht and to provide adequate quality control at various stages in that process. The Crown case was entirely circumstantial.

5. There were considerable difficulties for the Crown in establishing the appellant’s guilt on either of the alternate bases of its case. No one admitted to having cut the keel or to knowledge that it had been cut. There were also difficulties in establishing the measures which the appellant should have had, but failed to have, in place as part of the manufacturing process in order to discharge the duty of care owed to the owner and prospective sailors of the yacht. Before considering these difficulties I will outline some factual matters relevant to the resolution of the issues in the appeal.

…

The relevant arguments

29 The trial judge directed the jury that before the appellant could be convicted of manslaughter by criminal negligence four elements must be proved:

(a) The appellant had a duty of care to the deceased persons.

(b) The appellant was negligent in that, by his act(s) or omission(s), he was in breach of his duty of care (in that he did something that a reasonable person in his position would not do or he omitted to do something that a reasonable person in his position would have done).

(c) Such a breach fell so far short of the standard of care that a reasonable person in his position would have exercised and involved such a risk of death or serious bodily harm as to constitute, “gross” or “wicked” negligence and be treated as criminal conduct.

(d) The appellant’s act(s) or omission(s) caused the death of the deceased persons.

30. The appellant did not challenge the existence of the first element. The appellant had made an oral contract with Mr Saunders to construct much of the yacht including the keel. The appellant accepted that he had a duty of care in relation to the construction of the yacht, particularly the keel, that extended not only to the owner of the yacht but to anyone who was going to sail on it. However, the remaining three elements were in issue.

31. The Crown did not contend that the appellant himself cut the keel. As I have already indicated, the prosecution case was put on two bases:

(a) The appellant delivered the yacht knowing that the keel had been cut horizontally and then welded back together, or

(b) The appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control and that he failed to implement such a system and that failure caused (or resulted in) the delivery of the yacht with the defective keel.

32. The alternative Crown case relied on alleged omissions by the appellant. The Crown alleged that the appellant was guilty of criminal negligence, even if he was not aware that the keel had been cut and notwithstanding the evidence of his express orders that it should not be cut.

33. The elements of the offence on this alternative basis which were in dispute were:

(a) The appellant was negligent in that he omitted to do something that a reasonable person in his position would have done.

(b) Such a breach fell so far short of the standard of care that a reasonable person in the appellant’s position would have exercised and involved such a risk of death or serious bodily harm as to constitute “gross” or “wicked” negligence and be treated as criminal conduct; and

(c) But for such omissions the yacht would not have been delivered with a defective keel.

34. There are four grounds of appeal:

Ground 1 – The verdict of the majority of the jury was unreasonable.

Ground 2 – The Crown Prosecutor’s final address caused a miscarriage of justice.

Ground 3 – The trial judge erred in respect of the directions to the jury on the “reasonable person” test.

Ground 4 – The trial judge erred in failing to direct the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown puts its case.

…

54. In the course of his remarks on sentence the trial judge, as he was required to do, considered the evidence at the trial. His Honour concluded that the jury could not have convicted the appellant on the basis that he knew that the keel had been cut. In my opinion this conclusion was correct. If the appellant was convicted on this basis the conviction was unreasonable.

Second basis

55 The second basis upon which the Crown put its case was that the appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control. It was submitted that he failed to implement such a system, which failure caused, or resulted in, the delivery of the yacht with a defective keel. It was contended that the appellant was guilty of manslaughter by criminal negligence even if he was not aware that the keel had been cut.

Conclusion with respect to the second basis

79. The ultimate question is whether the evidence bearing upon the supervision of the manufacturing process and the adequacy of the measures for quality control supports a conclusion that the process of construction of the yacht was so deficient that the appellant was guilty of negligence that substantially contributed to the failure of the keel and that his negligence was of such a high order as to amount to criminal negligence.

80. The only available conclusion is that there was no obligation to adopt particular weld procedures (although bevelling was desirable in the appropriate circumstances) or formal methods of quality control. Although more rigorous control of the process and checking of completed work could have been undertaken, in my judgment there was no evidence which could have allowed the jury to determine that the process of constructing the yacht was so lacking in quality control that the appellant breached his duty of care to the criminal standard. To my mind the defects which were apparent in some other parts of the yacht, although suggesting poor workmanship of the items involved would not, without more, justify a finding of criminal negligence in the construction of the yacht or its keel. Although a greater level of supervision of the construction was obviously possible the evidence does not allow of a conclusion that the level of supervision was inadequate so that the appellant breached his duty much less to the criminal standard.

Causation

81. There is one other matter of ultimate significance. Before the appellant could be convicted of manslaughter by criminal negligence the jury had to be satisfied beyond reasonable doubt that the failure to provide reasonable measures for the supervision and quality control of the construction of the yacht caused the failure of the keel and the tragic loss of life. Causation in the law of negligence has proved a difficult issue: Mason CJ in March v Strathmore (E & MH Pty Ltd) (1991) HCA 12; 1991 171 CLR 506. In Royall v R (1991) HCA 27; (1991) 172 CLR 378, the High Court considered issues of causation in the criminal context. Mason CJ accepted with approval the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286 at 290; (1980) 2 A Crim R 157 at 161 that it is:

“enough if juries (are) told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.”

…

84. In the present case, the Crown had to establish to the criminal standard that the alleged omissions by the appellant caused the tragic loss of life by significantly contributing to the failure of the keel. To my mind this presented an insurmountable difficulty for the Crown case.

85. The evidence at trial only allowed a conclusion that the cutting and welding of the keel was a completely unplanned event. It was not part of the specified design of the keel and was a gross variation from that design. The evidence was that the appellant had given instructions that the keel was not to be cut. When it had been cut and welded it was polished so that no one by visual inspection, and it is reasonable to assume that a number of people looked at it, said that they detected the cut. The evidence at the trial allowed only a conclusion that the person who cut and welded the keel decided to keep his actions secret, at least from the appellant. The evidence was that the keel could have been cut and welded back together at a time when no one else, including the appellant, was present in the factory. Once QA and ITP’s are put to one side there can be no suggestion that a system of supervision should have been in place which could have recognised an unauthorised event of the nature of that which appears to have happened.

86. In these circumstances it was not open to the jury to conclude that failure of the keel of the yacht was caused by the negligent failure by the appellant to put in place reasonable measures for the supervision of the process of manufacturing the yacht and provide adequate quality control.

Fullerton J

128. I agree with McClellan CJ at CL.

Schmidty J

129. I agree with McClellan CJ at CL.

French CJ (would allow the appeal and acquit the accused of manslaughter)

1. David Hay ("the deceased") died after ingesting methadone said to have been supplied to him on 9 February 2007 by the appellant, Natalie Burns, and her husband at the Burns' apartment in Belmore, a suburb of Sydney. On 20 July 2009, Mrs Burns was charged on indictment with the manslaughter of the deceased. She was also charged with four counts of supplying a prohibited drug, namely methadone. She pleaded not guilty to the charge of manslaughter and to one count of supplying methadone. She pleaded guilty to the three remaining counts. After trial before a judge and jury, she was found guilty of manslaughter and of supplying methadone. On 23 October 2009, Mrs Burns was sentenced on all counts to a total term of imprisonment of five years and eight months, with a non-parole period of four years and six months expiring on 13 January 2014. Her husband was tried separately on the same charges and convicted of manslaughter but died in custody shortly after he was sentenced.

2. The trial judge directed the jury that if Mrs Burns supplied methadone to the deceased and if that supply was dangerous and if it caused the death of the deceased she could be convicted of manslaughter. That direction was in error. It was not in dispute that the supply of methadone to the deceased was unlawful. However, the Crown case as put to the jury at the end of the trial did not involve a contention that the supply of the methadone was a dangerous act in the sense necessary to support a conviction for manslaughter. The Crown's case was that Mrs Burns and her husband had together injected the deceased with methadone and, in the alternative, that they had assisted the deceased to inject himself with the drug. The Crown alleged that their conduct in doing either of those things was an unlawful and dangerous act which caused the death of the deceased and would support a verdict of guilty of manslaughter.

…

4. The Crown accepted, on the hearing of the appeal to this Court, that the supply of methadone alone could not substantiate the commission of an unlawful and dangerous act. It was necessary to the "unlawful and dangerous act" limb of the Crown case that the jury be satisfied of the role of Mrs Burns either by herself or with her husband in assisting with the injection of the methadone. Counsel for the Crown argued that it was clear throughout the whole trial that the Crown case went well beyond mere supply. Nevertheless the possibility could not be excluded that Mrs Burns was convicted on the basis of the trial judge's misdirection. The appeal was therefore allowed and orders pronounced on 20 June 2012. Having regard to the state of the evidence in relation to the other bases upon which the Crown sought to support a conviction of manslaughter, it is not appropriate to direct a retrial. A verdict of acquittal was entered. My reasons for joining in those orders follow. Before turning to the evidence at trial and the trial judge's direction to the jury in more detail, it is necessary to say something about the law relating to involuntary manslaughter in New South Wales.

…

39. The first four grounds of appeal in this Court, like the first two grounds in the Court of Criminal Appeal, were concerned with whether the evidence disclosed circumstances capable of giving rise to a duty of care owed by Mrs Burns to the deceased, whether a causal connection between her conduct and the death of the deceased could be established on the evidence and whether the judge had misdirected the jury on duty of care and causation. A fifth ground was added by leave at the hearing of the appeal in this Court:

"The Court of Criminal Appeal should have held that the trial judge erred in declining the application to remove unlawful and dangerous act manslaughter based on supply of methadone."

The disposition of this appeal turns primarily on the fifth ground.

40. The trial judge told the jury that they could find Mrs Burns guilty of manslaughter if they were satisfied beyond reasonable doubt that she intentionally supplied methadone to the deceased, that a reasonable person in her position would have appreciated that the supply was dangerous in carrying with it a risk of serious injury to the deceased and that the supply of the methadone caused the death of the deceased in that it substantially contributed to his death.

41. That was not the case which had been put by the Crown. The evidence did not exclude the possibility that the deceased was capable of making and made a free and voluntary decision to ingest the methadone and did so himself. Having regard to the state of the evidence and the concession, correctly made by the Crown, a conviction for manslaughter was not open on the basis that Mrs Burns had supplied methadone to the deceased. It is not possible to exclude the hypothesis that the verdict of guilty of manslaughter was based upon that direction. The appeal being allowed on that basis, the question then arose whether there should be a new trial as submitted by the Crown, or entry of a verdict of acquittal as submitted by counsel for Mrs Burns.

…

47. As explained in the joint reasons and noted above, it was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone and that his decision to do so was voluntary. For present purposes therefore, the existence of a duty of care relevant to criminal negligence must be determined on the hypothesis, which cannot be excluded, that the deceased did so inject himself. That possibility, which cannot be excluded, marks a point of distinction between this case and cases in which the accused has created a danger to other people, for example by starting a fire, and thereafter failing to take any steps to remove the danger or warn those at risk of the danger.

48. If the deceased had ingested the drug himself and had rebuffed a suggestion that an ambulance be called, there could be no basis to support a finding that Mrs Burns owed a duty to him. On that hypothesis, which cannot be excluded, the deceased had created the danger to himself. While Mrs Burns may well have been under a strong moral duty to take positive steps to dissuade him from leaving until medical assistance could be called, there was, in the circumstances, no legal duty, breach of which would support a finding of criminal negligence. For these reasons, and the reasons given in the joint judgment, I agree that there should not be a new trial.

Gummow, Hayne, Crennan, Kiefel and Bell JJ (would allow the appeal and acquit the accused of manslaughter)

53. On 20 June 2012, this Court made orders allowing the appeal, setting aside the order of the Court of Criminal Appeal made on 1 April 2011 and in lieu thereof allowing the appeal to that Court, quashing the appellant's conviction for the manslaughter of David Hay and ordering the entry of a verdict of acquittal. These are our reasons for joining in the making of those orders.

…

56. For the reasons to be given, the Crown's belated concession in this Court, that the supply of methadone is not capable of supporting the appellant's conviction for manslaughter by unlawful and dangerous act, must be accepted. Since the basis on which the verdict was returned is not known, it follows that the appeal must be allowed. Consideration of the consequential order required attention to the parties' arguments respecting the capacity of the evidence at trial to establish the appellant's liability for manslaughter, either on a case that her unlawful act was the administration of the drug to the deceased or because she was under a legal duty to seek medical assistance for him. In order to understand those arguments, it is necessary to describe the evidence given at the trial in some detail.

…

74. Turning to causation, his Honour directed that the supply of the methadone must have made a substantial contribution to the death of the deceased and that it would not have done so if the "true cause of David Hay's death was the simple fact that he made a rational, voluntary and informed decision to take the methadone" (emphasis in the original written direction). In determining whether the deceased's act was rational, voluntary and informed, the jury was invited to:

"[C]onsider – amongst other matters you think relevant – the evidence as to David Hay's condition when he arrived at the Burns' flat, evidence from the post-mortem as to the condition of his brain, what he may or may not have known about methadone and its effects, and what he may or may not have known about the injection of drugs. You may think that David Hay was a rational adult man, who knew what he was doing so far as drugs were concerned, understood what methadone was and did, and voluntarily took it. ... On the other hand, you might think that he died precisely because he did not know about methadone and its effects, that he already suffered some degree of brain damage from an earlier car accident, that by the time he took methadone he was already affected by olanzapine he had ingested, and so cannot be regarded as a person acting as a rational adult making an informed choice about taking methadone" (emphasis in the original written direction).

…

84. Recklessness does not inform unlawful and dangerous act manslaughter in Australia. The Court of Criminal Appeal did not embrace the reasoning of the High Court of Justiciary in this respect. However, it agreed with the conclusion that the voluntary act of an informed and responsible adult taking a prohibited drug might not prevent the anterior act of supply of the drug from being in law the cause of the drug taker's death. This is because:

"Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act."

85. This is in line with Professor Feinberg's theory of causation, which suggests that "the more expectable human behavior is, whether voluntary or not, the less likely it is to 'negative causal connection'". It is a theory commended by one commentator as better reflecting the moral dimension of a death occasioned by the supply of an unlawful drug. The alternative view is that expressions of moral judgment should not intrude into the causal inquiry.

86. The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach.

87. The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker's voluntary and informed decision.

86. The Crown's concession that the unlawful supply of methadone was not an act capable of founding liability for manslaughter should be accepted. The supply of the methadone was not an act that carried an appreciable risk of serious injury. That risk arose when the drug was consumed. The cause of the death of the deceased in law was the consumption of the methadone and not the anterior act of supply of the drug.

Heydon J (would allow the appeal but order a new trial)

116. The concession rests on a fine distinction. If V says to A: "Give me a dose of methadone and injecting equipment; I want to inject myself with it right now", A does so, V injects himself unassisted, and V then dies, on the respondent's concession A is not guilty of manslaughter. But if V says to A: "Give me a dose of methadone and help me inject myself with it", V does so and then dies, A may be guilty of manslaughter. Is that distinction sound? That is a difficult legal question. Resolving it would involve investigation of, among other things, the meaning in this context of expressions like "fully informed", "responsible", "volitional", "free", "deliberate" and "mistake".

117. The concession having been made, neither the appellant nor the respondent was concerned to dispute it. In the absence of a contradictor, it is not satisfactory for courts to endeavour to solve difficult legal problems which need not be resolved in order to protect the accused's interests in the particular case in which they arise.

…

128. An omission to act where the act would have saved the life of another can be manslaughter. But omissions of this kind fall within confined categories. Those categories require particular kinds of relationship between the deceased and the accused. The relationship between the deceased and the appellant was insufficiently close to the accepted categories to justify its recognition as one of them. To extend those categories would be to change the criminal law retrospectively.

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132. There should not be a new trial in relation to the first route towards a manslaughter conviction. The respondent does not seek this. In any event, there is no reason to depart from the respondent's concession. Nor should there be a new trial in relation to the third route because to treat the appellant's failure to summon medical aid for the deceased as a criminal omission would involve a retrospective change in the criminal law. But there is no reason why there should not be a new trial in relation to the second route towards a manslaughter conviction.

133. Is an order for a new trial barred because the prosecution would be running a case of unlawful and dangerous act manslaughter at the new trial which was based on an unlawful and dangerous act that was different from the act on which it relied at the first trial? At the original trial, the prosecution case did at times exhibit confusion between the unlawful and dangerous act of supplying methadone and the unlawful and dangerous act of administering it. But at least by the time of the no case submission, the prosecution was alleging that the appellant had done the latter type of unlawful act. And in the prosecution's final address, it pressed the latter type of unlawful act. A case based on the latter type of unlawful act was open on the evidence called by the prosecution. A new trial run based on the second route to a manslaughter conviction would not be one raising a new case, but a narrower version of the old case.

134. For those reasons I disagree with the orders pronounced on 20 June 2012. There should have been an order for a new trial, limited as described.

Bell, Keane, Nettle, Gordon and Edelman JJ

1. Mr Kormilets was a 78-year-old man living alone in a Department of Housing apartment in Redfern, New South Wales. He was an active man, in apparently good health, with a caring family. In the early hours of 15 April 2013, he was severely assaulted and robbed in his home by the appellant, a 31-year-old man, and the appellant's accomplice. Armed with a machete, the appellant entered through the balcony of Mr Kormilets' apartment, opened the front door for his accomplice, and then savagely attacked Mr Kormilets, intending to cause him grievous bodily harm. Mr Kormilets suffered immediate and severe injuries including to his brain, his face, his kidneys and his chest.

2. Mr Kormilets spent almost four months in hospital before being transferred to a high-level care facility in August 2013. His mental and physical condition was so poor that he was unable to undertake, or even to comprehend, any daily living activities. On 5 December 2013, he was discovered on the floor next to his bed facing downwards and moaning. Later that day he was transferred back to hospital, where x-rays showed that the neck of his left femur was fractured. His fractured femur was not operated on and he died in hospital from the consequences of the fracture on 10 December 2013.

3. The appellant and his accomplice were charged upon indictment for murder, as defined in s 18(1)(a) of the Crimes Act 1900 (NSW). They were tried before a judge (N Adams J) and jury in the Supreme Court of New South Wales. The jury returned verdicts of guilty. Appeals to the Court of Criminal Appeal of the Supreme Court of New South Wales (Bathurst CJ, Hoeben CJ at CL and R A Hulme J) and, by special leave, to this Court were brought only by the appellant.

4. The central issue on appeal to the Court of Criminal Appeal was whether it was open to the jury to convict the appellant based upon one of the Crown's pathways to proving that the appellant caused the death of Mr Kormilets. In particular, the question was whether it was open to the jury to reason that the low quality of life caused by the assault was the reason that when Mr Kormilets presented to hospital with a fractured hip a decision was made not to undertake surgery that would reasonably have been expected to save his life, which, in turn, resulted in death. The Court of Criminal Appeal concluded that there was sufficient evidence for it to be open to the jury to reach a conclusion of causation by that route. On appeal to this Court, by grant of special leave, the appellant challenges that conclusion. The conclusion of the Court of Criminal Appeal was correct. The appeal should be dismissed.

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15. Mr Kormilets died on 10 December 2013. The intern at the Prince of Wales Hospital who completed the death certificate reported on it that the cause of death was aspiration sepsis (to which the clinical notes on 6 December 2013 had also referred) and a fractured neck of the femur. She described other conditions contributing to the death as traumatic brain injury, frailty, atrial fibrillation and recurrent aspiration pneumonia. Professor Cordner, a professor of forensic pathology, said that each of these "debilities", as defence counsel described them, contributed to death to an unknown extent.

16. The evidence from the death certificate about cause of death was contradicted by evidence from Dr Bailey, the specialist forensic pathologist who conducted the post mortem. Dr Bailey said that there was no evidence of aspiration pneumonia or aspiration sepsis in the sections of the lungs that she tested. She explained that the death was caused by respiratory failure. The respiratory failure was the result of fat emboli being released into the blood stream from the high fat content of bone marrow after the fracture of the left femur. Those fat emboli moved to the lungs and compounded Mr Kormilets' pre-existing respiratory failure due to "blunt force injury of the chest". She described as "relatively certain" findings from a microscopic examination of lung tissue of "widespread fat emboli in the lungs".

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21. In an admirably clear and succinct submission, senior counsel for the appellant described the three causation pathways relied upon by the Crown in closing submissions to support a conclusion that the appellant had caused the death of Mr Kormilets. They were as follows:

• The assault by the appellant caused injuries to Mr Kormilets' lungs and respiratory system. After Mr Kormilets fractured his hip, his respiratory failure was caused by the fat emboli that travelled to his lungs compounded with the pre-existing lung injury. This causation pathway relied upon the evidence of Dr Bailey.
• The assault by the appellant caused injuries to Mr Kormilets that reduced his cognitive ability and created a propensity for him to fall. If the fracture to the hip resulted from a fall, and was not pathological, then the jury could conclude that the assault caused the fall and, thus, caused the fracture. The assault was therefore a substantial cause of Mr Kormilets' death when the fat emboli travelled to his lungs as a result of the fracture.
• The assault by the appellant caused injuries to Mr Kormilets that resulted in a low quality of life for him. This low quality of life was the reason that when Mr Kormilets presented to hospital with a fractured hip a decision was made not to undertake surgery. Mr Kormilets died as a result of that decision because the lack of surgery permitted the fat emboli to travel to his lungs.

The first two pathways were not controversial in this Court. The focus was upon the third.

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24. There was no dispute on this appeal that the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause. That formulation, derived from Royall v The Queen, recognises that boundaries must be drawn for legal responsibility; not every act that is necessary for death to occur is sufficient for the imposition of legal responsibility for the death.

25. It was also recognised in Royall v The Queen that there are some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead "one of the conditions which were jointly necessary to produce the event". An exceptional example where an accused might be held legally responsible for the death of another even if the act of the accused was not by itself necessary for the victim's death is where a victim "dies from the combined effects of ... two wounds", either of which would have been sufficient for death but only one of which was inflicted by the accused.

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29. The first ground of appeal raises the same issue as the sole ground of appeal to the Court of Criminal Appeal. That issue is whether a miscarriage of justice occurred because the Crown case on cause of death, as articulated in the prosecutor's closing address, left open the third path of causation reasoning, a path which the appellant submits was not open to the jury on the evidence.

30. The appellant's second ground of appeal in this Court asserts that the Court of Criminal Appeal failed to consider the appellant's sole ground of appeal. In this Court, the appellant relied upon two paragraphs in the reasons of the Court of Criminal Appeal to submit that the Court of Criminal Appeal had addressed the wrong question, namely whether it was open to the jury to find that the surgery "could not" happen. The appellant submitted that the correct question raised by the ground of appeal was whether, on the Crown's third causation pathway, it was open to the jury to find that surgery could have prevented death but was not undertaken due to the appellant's low quality of life as a consequence of his injuries from the assault on 15 April 2013.

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34 The only issue remaining before this Court is whether it was open to the jury to convict the appellant based upon the Crown's third pathway to causation.

Was the Crown's third pathway to causation open to the jury?

35. For the appellant to succeed in establishing that the third causation pathway was not open to the jury, being the "constitutional tribunal for deciding issues of fact", it is necessary that there was no evidence sufficient to support a conclusion of causation by that pathway. The ground of appeal must be dismissed "if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty".

36. The appellant submitted, without dispute, that the third causation pathway required three conclusions to be open to the jury on the evidence: (1) surgery upon Mr Kormilets was available and would reasonably have been expected to be able to save his life; (2) Mr Kormilets or Dmitri made a decision that such available surgery should not be undertaken; and (3) the decision was motivated by Mr Kormilets' low quality of life due to the assault rather than due to other, unrelated considerations. Each of these steps can be considered in turn.

(1) Surgery would reasonably have been expected to save Mr Kormilets' life

37. Neither at trial, nor before the Court of Criminal Appeal, nor before this Court was it suggested that the Crown needed to prove that it was certain or nearly certain that surgery would have been successful in order to satisfy the third causation pathway. The appellant's submission was instead premised upon the Crown being required to prove that surgery would reasonably be expected to have saved Mr Kormilets' life. For two reasons, it was open to the jury to draw this inference from the evidence.

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(2) Mr Kormilets or Dmitri made a decision not to undertake such available surgery

37. The appellant submitted that there was a paucity of evidence from which the jury could have inferred that a decision was made by Mr Kormilets, or by his son, that surgery not be undertaken because of the disabilities Mr Kormilets suffered due to the assault. Although Dmitri was called by the Crown and gave evidence he was not asked about the decision not to operate either in examination in chief or in cross-examination. However, in circumstances in which the jury could have concluded that there was a reasonable expectation that surgery would be successful, there was evidence which, in combination, was sufficient for the jury to have concluded that a decision not to operate was made by either Mr Kormilets or Dmitri.

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(3) The decision was motivated by Mr Kormilets' low quality of life due to the assault

45. The appellant submitted that a decision might have been made due to any or all of the following matters, which were not excluded by the Crown beyond reasonable doubt: (i) a mistaken belief that Mr Kormilets was suffering from aspiration sepsis, the treatment for which, by intubation and ventilation, would be distressing for him; (ii) the prospect of ongoing pathological fractures from the cancer; (iii) the potential for Mr Kormilets not to be sufficiently stabilised for surgery, and the distress that stabilisation might involve; (iv) the effect of his multiple health conditions meaning that there was a poor prospect of him living for any length of time after surgery; or (v) the "not for resuscitation" note being made contrary to the wishes of Mr Kormilets or misunderstood or misrepresented by the doctor at the Prince of Wales Hospital.

46. As explained earlier in these reasons, there was no dispute at trial, on appeal to the Court of Criminal Appeal, or on appeal to this Court that the appellant would be legally responsible for the death of Mr Kormilets if his assault upon Mr Kormilets substantially or significantly contributed to Mr Kormilets' death. It was never suggested that the jury should, or could, have filleted the factors within the decision-making process to attempt to isolate the relative contribution of some or all of the five matters above upon which the appellant relied. Instead, on the undisputed direction given by the trial judge, it was sufficient that the effects of the assault substantially or significantly contributed to the decision which, in turn, on the third causation pathway, prevented the surgery that was reasonably expected to save Mr Kormilets' life.

47. The inference is irresistible that the decision was taken to treat palliatively rather than surgically based substantially or significantly upon the persistent, long-term, and catastrophic effects of the assault. Even putting to one side the persistent physical effects of the assault, the cognitive decline suffered by Mr Kormilets, leading to his inability to communicate properly, to express himself, and to relate to people, was described by his general practitioner as the "most important thing". As Professor Cordner said in examination in chief, Mr Kormilets' "severe cognitive decline" as a result of the assault was operative at the time of his death.

Conclusion

48. The appeal should be dismissed.