Causation
[2-300] Introduction
Causation can arise in two distinct but related issues:
- (a)
-
Did the act of the accused cause the harm the subject of the charge?
- (b)
-
Was there an act of the accused that caused the harm?
See the discussion in R v Katarzynski [2005] NSWCCA 72 at [17].
In (a) there is no dispute as to the act of the accused but the issue is whether it caused the harm occasioned to the victim. In (b) the issue is whether there was any act of the accused that caused the harm occasioned to the victim. In relation to this aspect of causation see Voluntary act of the accused at [4-350]ff.
[2-305] Causation generally
Causation is a question of fact. There can be more than one cause of the injury suffered by the victim. It is wrong to direct the jury that they should search for the principal cause of death: R v Andrew [2000] NSWCCA 310 at [60].
As to causation generally see: Royall v The Queen as summarised in Cittadini v R [2009] NSWCCA 302 at [81]–[83]; Burns v The Queen (2012) 246 CLR 334 at [86]–[87]; Reynolds v R [2015] NSWCCA 29 at [41]–[43]; Criminal Practice and Procedure NSW at [6-900]; Criminal Law (NSW) at [CLP.380]ff.
In a murder trial, proof of the element that the act of the accused caused death requires the jury to be satisfied beyond reasonable doubt that the act of the accused was a “substantial or significant cause of death” or a “sufficiently substantial” cause: Swan v The Queen (2020) 269 CLR 663 at [24].
In many cases of murder, however, particularly where a single act such as a shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the victim’s death should have been caused by the accused: Royall v The Queen at 412 per Deane and Dawson JJ.
Where appropriate the jury should be directed to consider whether there is any act of the victim that broke the chain of causation between the act of the accused and the injury inflicted upon the victim: McAuliffe v The Queen (1995) 183 CLR 108. In Burns v The Queen it was said at [86]: “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.”
As to cases where the act of the deceased in fleeing the accused resulted in death, see Royall, above, McAuliffe, above, Adid v R (2010) VR 593, R v RIK [2004] NSWCCA 282. In such cases the question is whether the act of the deceased broke the chain of causation by responding to the threat posed by the accused in an unreasonable or irrational manner. Where there are a number of causes of death as a result of more than one life-threatening injury including that allegedly inflicted by the accused or where there have been a number of persons who have inflicted injuries upon the victim the terminology more appropriately used is whether an act of the accused was an “operating and substantial” cause of death: see R v Lam (2008) 185 A Crim R 453. The suggested direction has been framed accordingly.
It is not necessary to establish the accused’s acts were “the only cause of death, the most important cause of death or even the only important cause of death”: Swan v The Queen (2020) 269 CLR 663 at [27]. Causation can be established where the accused’s act or omission accelerates death, even where the deceased would have died in any event from a pre-existing disease or condition: Baker v R [2023] NSWCCA 262 at [55], [58]; R v Evans (No 2) [1976] VR 523 at 527–528; Krakouer v Western Australia (2006) 161 A Crim R 347 at [32]–[33], [39].
[2-310] Suggested direction — causation generally
There is an issue as to whether the accused’s [acts/omissions] caused the [nature of harm] suffered by [the victim]. This is a question of fact for you to decide. The Crown must prove beyond reasonable doubt that the accused caused this harm to [the victim].
The Crown says the accused caused this injury because [indicate Crown allegations]. The accused says you would not be satisfied beyond reasonable doubt of this because [summarise defence arguments].
In deciding whether the Crown has proved this fact, you will apply your common sense to all the facts surrounding the infliction of [the harm] to [the victim]. But you should appreciate that you are deciding whether to attribute legal responsibility to an accused person for the harm suffered by another person in what is a criminal prosecution. This is not an issue of philosophical or scientific proof. You are deciding a more practical issue, that is, whether an accused person has committed a crime involving the causing of the harm alleged to another person.
The Crown will have proved this fact if you are satisfied beyond reasonable doubt that an [act/omission] of the accused substantially or significantly contributed to [the harm] allegedly suffered by [the victim]. It is not sufficient if the [act/omission] was merely coincidental with the suffering of [the harm] by [the victim] or was insignificantly connected with it. Whether the [act/omission] of the accused relied upon by the Crown substantially or significantly contributed to [the harm] suffered by [the victim] is a matter of fact for you to decide on a common sense basis.
[If appropriate — where evidence of more than one cause of harm
There can be more than one cause for [the harm] suffered by [the victim] arising from the facts before you. You may find [the harm] to [the victim] was a result of [list possible causes]. You do not have to determine what, if any, was the major or direct cause of that harm. It is sufficient that you find beyond reasonable doubt that an [act/omission] of the accused remained an operating and substantial cause of [the harm] allegedly suffered by [the victim] despite the other injuries they suffered. You make this decision applying your common sense but appreciating that you are concerned with the determination of the criminal responsibility of an accused person for that harm.]
[If appropriate — where it is alleged the victim had a prior existing physical injury
The accused relies on evidence that at the time of the accused’s alleged [act/omission] [the victim] suffered from a physical condition of which the accused was then unaware … [identify the evidence relied upon by the accused and any evidence on this issue relied upon by the Crown].
Even if you find [the victim] suffered from such a physical condition and that the accused was not aware of it at the time of the alleged [act/omission], it would still be open to you to find that the Crown has established beyond reasonable doubt that the [act/omission] of the accused caused [the harm] allegedly inflicted upon [the victim] provided the accused’s [act/omission] substantially or significantly contributed to that [harm]. The law is that, if a person [does an act/omits to do an act] such as is alleged here, then they must take or accept the victim as they were at the time of the [act/omission]. That is to say an accused person cannot seek to excuse themself from responsibility for the harm inflicted upon another person only because the harm was due to some physical condition or weaknesses from which the victim suffered at the time and of which the accused person was unaware.]
[If appropriate – where it is alleged the accused accelerated the victim’s death
The accused relies on evidence that at the time of the accused’s alleged [act/omission] [the victim] suffered from a pre-existing [condition/disease] that made death inevitable [identify the evidence presented about the condition/disease].
Even if you find [the victim] suffered from a pre-existing fatal [condition/disease] from which they would have died in any event, it would still be open to you to find the Crown has established beyond reasonable doubt the [act/omission] of the accused caused [the victim’s] death provided you are satisfied the [act/omission] accelerated [the victim’s] death, and that it was a substantial and significant cause.]