Court of Appeal (WA)|2006-05-23|Before: Steytler P, Wheeler JA, McLure JA, Smith J

Krakouer v The State of Western Australia [2006] WASCA 81 (23 May 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KRAKOUER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 81

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Murder - Appeal against conviction - Causation - Multiple causes of death - Where deceased already fatally injured when wounded by applicant - Principles of factual and legal causation - Whether applicant's act made substantial or significant contribution to death - Sufficient medical evidence for jury to find causation established

Criminal law - Murder - Appeal against conviction - Inadequate directions to jury on causation - Conviction inevitable on evidence - No substantial miscarriage of justice

Criminal Code (WA), s 270, s 272, s 273, s 274, s 275

Application for extension of time to appeal against conviction dismissed

Campbell v The Queen [1981] WAR 286

Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

People v Cox 228 P 2d 163 (Colo 1951)

People v Lewis 57 P 470 (Cal 1899)

R v Dyson [1908] 2 KB 454

R v Evans & Gardiner (No 2) [1976] VicRp 53; [1976] VR 523

R v Garforth (1954) Crim LR 936

R v Martyr [1962] Qd R 398

R v McLachlan [2000] VSC 516

R v Yambiwato [1967] PNGLR 222

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

Smithers v The Queen [1978] 1 SCR 506

State v Francis 149 SE 348 (SC 1929)

State v Luster 182 SE 427 (SC 1935)

State v McDonald 953 P 2d 470 (Wash Ct App 1998)

State v Weston 64 P 2d 536 (Or 1937)

Tackett v State 766 SW 2d 410 (Ark 1989)

US v Long Feather [2002] USCA8 364; 299 F 3d 915 (8th Cir 2002)

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Hillstead v The Queen [2005] WASCA 116

Leary v The Queen [1975] WAR 133

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

McKain v The Queen, unreported; CCA SCt of WA; Library No 950059; 21 February 1995

Mule v The Queen [2004] WASCA 7

1 STEYTLER P: This is an application for an extension of time within which to appeal against the applicant's conviction for murder.

2 The applicant was one of four persons charged with the wilful murder of a man on 8 March 2003. Two of the four were acquitted entirely, but the applicant and a man by the name of Scott Colbung were convicted of murder.

3 The evidence at the trial, while not entirely consistent, was sufficient to establish at least the following. The applicant and the deceased had got into a fight. Neither of them made use of any weapon. During the course of the fight, Colbung decided to get involved. He hit the deceased on the base of his chin with a mallet, so severely as to inflict a mortal wound. The deceased fell to the ground. While he lay there, the applicant ran into nearby bushland, grabbed a marker post, returned to where the deceased was lying and struck him with it on the back of his head. The blow was so powerfully struck as to fracture the deceased's skull. The deceased was taken to hospital, where he died as a consequence of his injuries.

4 The prosecutor presented his case, at the trial, upon the basis that the applicant and Colbung were principal offenders, so far as the murder of the deceased was concerned. He placed no reliance, in the case against either, on s 7(b), (c) or (d) of the Criminal Code (WA) ("Code") (dealing with aiding or procuring the commission of an offence) or s 8 thereof (dealing with offences committed in the prosecution of a common purpose). The jury was similarly directed by the trial Judge, who told them (transcript 1406) that each of the applicant and Colbung was charged upon the basis that he had actually done the act constituting the offence: s 7(a) of the Code. The trial Judge directed the jury in terms of s 7(b) and (c) and s 8 of the Code only as regards the two men who were subsequently acquitted.

5 The critical issues, so far as the appeal is concerned, are whether the element of causation could be proved against the applicant, given that the deceased had already been mortally wounded at the time at which he was struck by the applicant and whether the trial Judge correctly directed the jury as regards this issue.

6 Before turning to the grounds of appeal, it is necessary for me to set out the medical evidence, which was central to the issue of causation, and the relevant directions given by the trial Judge in respect of that issue.

7 The medical evidence concerning the issue of causation was given by Dr Karin Margolius, a forensic pathologist. She said (transcript 952) that there were two major injuries, being that struck at the base of the deceased's chin with the mallet and that which had been struck at the back of his head with the marker post.

8 Dr Margolius said that the blow to the base of the chin pushed the deceased's jaw, causing his teeth to go into the skin, and impelled him over. She said that, as that happened, a "diffuse axonal injury" began to occur in the brain (transcript 965, 966 and 967). She explained that neurons in the brain transmit messages along arms or pathways known as axons and, when the head is struck with sufficient force to swing the brain around, the movement can damage the axons (transcript 963). In this case, there had been diffuse shearing of the axons, itself sufficient to result in death (transcript 969 and 972). She also said that, when the back of the deceased's head hit the ground, it was possible that this brought about a "hinge fracture" which she had found at the base of his skull. That fracture, which involved the left and right middle cranial fossae, went right across the base of the deceased's skull and opened it up "like a hinge" (transcript 959).

9 Dr Margolius also suggested that, if, as she had assumed, the back of the deceased's head hit the ground, this would have caused the brain to spring back, hit the back of the head, and spring forward again, hitting the front of the head inside the cranial cavity and causing what is known as a "contre-coup injury" (transcript 960). She had found a very significant subdural haematoma, involving 100 grams of blood, over the right side of the falx and the subdural space. She said that this was double what was required in order to become life-threatening (transcript 961). She said that the blood pushes the brain down to the foramen magnum, where the spinal cord goes, impacting the respiratory centre and causing death (transcript 961). She said that there would also be cerebral swelling which caused the brain to flatten and then suffer contusional damage.

10 In the course of cross-examination, Dr Margolius accepted that, after he had been struck by the mallet, the deceased might not have fallen "straight backwards" and that, if he had fallen in a different way, this could explain why his diffuse axonal injury was so severe. I should mention that the great majority of the witnesses to the infliction of the blows sustained by the deceased had said that he had fallen on his front. While there was some suggestion that he had fallen on his side, no witness said that he had fallen on his back.

11 As to the second of the major injuries mentioned by Dr Margolius, being that to the back of the deceased's head, she expressed the opinion (which accorded with the overwhelming weight of the eyewitness evidence at the trial), that this was struck while the deceased man was lying on the ground. She said that she would "go for [this] as the last thing" that had happened (transcript 964). She had found, in this respect, a seven centimetre wound over the left parietal region (transcript 949). Underneath it was a depressed fracture of the skull which, she said, was "sufficient for it to break the bony plates and go down onto the brain" (transcript 959 - 960). She said (transcript 960) that no fragments of bone were impelled into the brain, although she also said, as I understand her evidence (transcript 966), that the fracture resulted in "more contusions". Dr Margolius said that the injury, of itself, could have caused death (transcript 967 - 968).

12 Dr Margolius was uncertain when the hinge fracture occurred. She said that it could have been caused when the deceased's head first hit the ground (transcript 966 and 995) or by the blow struck at the back of his head (transcript 966 and 995) although, as I understood her evidence, she regarded the former blow as having been potentially fatal even if it had not caused the hinge fracture. Alternatively, she said (transcript 967), the hinge fracture "could've occurred first and the second ... [blow] made it worse". She accepted, as a possibility, a third scenario that was put to her to the effect that the blow with the mallet, of itself, might have caused the hinge fracture when the deceased man was impelled backwards (transcript 967 and 995). The following exchange then took place (transcript 967 - 968):

"Now, in terms of that sequence of events, how seriously injured would he have been following the blow below the chin that is impelling him backwards?---That's a potentially fatal injury; it's serious.

So that alone could have led to his death?---Yes.

And his hitting the ground ?---Yes.

would have aggravated that?---Well, it's part of - the diffuse axonal injury, the movement could've done it; the hitting to the floor is the same - the same event, but yes, it's potentially fatal.

And lastly, the blow to the back of the head in isolation, could that have caused his death?---Yes.

Taking the assumption for the moment that either the impelling blow to the chin and/or the striking of the head to the ground on its own without treatment would have led to his death, would the blow to the back of the head have had an aggravating effect, a neutral effect, what?---Well, he was already dying. By itself, it would've added to his problems.

But he was already dying at that stage?---He was already dying but ignoring anything else, that is a potentially fatal one, so one by itself, both, they would've - added together, he's going to die.

In your opinion, at what stage would you say that he began to die?---Well, he was unconscious while on the ground so he wasn't - he was not dead even in hospital."

13 Later in her evidence (transcript 969), Dr Margolius was asked about bruising to, and laceration of, the deceased's right ear which, she said, could have been caused by a blow struck by the same weapon as had caused the seven centimetre laceration and underlying fracture. She was asked whether this blow had fractured the skull. She responded (transcript 969):

"It would be the same as I would say with the back one. It's an additional factor in him dying."

The reference to "the back one" is plainly a reference to the blow struck to the back of the deceased's head.

The closing submissions and the trial Judge's directions on the issue of causation

14 In his closing submissions, the then counsel for the applicant did not suggest that it was not the applicant who had struck the deceased with the marker post. Rather, he focused on the issue of whether or not the applicant had struck one or two blows (there had been some divergence in the evidence in this respect) and on that of what had been the applicant's intention when he struck what was said, on his behalf, to have been the only blow struck by him. The then counsel for the applicant submitted (transcript 1385) that the "proper verdict" in respect of the applicant was that he was guilty of manslaughter.

15 The trial Judge told the jury (transcript 1435), in the course of his charge to them, that defence counsel had said that, although the applicant had unlawfully killed the deceased and was therefore guilty of manslaughter, he had not been proved to have had the intention which was necessary for a murder conviction. When he came to explain the issue of causation to the jury, the trial Judge said (transcript 1403 - 1404):

"The law is that a person who causes the death of another person directly or indirectly, by any means whatsoever, is deemed to have killed that other person. There is an issue in this case of what was the particular injury or what were the injuries which caused ... [the deceased's] death and by which of the accused it was by whom they were inflicted.

It is a matter for you to decide whether the evidence generally, and especially that of Dr Margolius, satisfies you there was one cause of death resulting from one particular injury or whether there were multiple causes of death resulting from one injury or a number of different injuries, but the question whether what a particular accused did caused ... [the deceased's] death is one which is to be answered in a commonsense way having regard to all of the evidence of all of the circumstances and in particular, as I say, the evidence of Dr Margolius.

It need not be the direct cause of death, it need not be the sole, that is, the only, cause of death. It will be sufficient if the injury inflicted by a particular accused contributed to the death, that is was one of the causes even if it was not the major cause, nor indeed the immediately operative cause. So you have heard evidence in this case from Dr Margolius that there were several injuries any one of which she said would have caused death or was causing death.

In that situation if you were to find that an accused caused one of those injuries described by her as a death causing injury from which death would have resulted, then that, if you accept it, would be sufficient. It does not have to be the direct cause. It does not have to be the most immediately operative cause and you can see why the law takes it in that commonsense way. So if you have a situation in which a person suffers a number of injuries any one of which would cause death, each of those injuries may be taken in that commonsense way as having caused a person's death."

16 A little later, when he came to deal with the prosecutor's contention that each of the applicant and Colbung had directly participated in the commission of the offence, the trial Judge said (transcript 1407):

"If you were to find that each of them struck ... [the deceased] a blow in the way described and that that blow resulted each in an injury which was causing death, which would itself have killed ... [the deceased], and that each of them when he hit that blow, when he struck it, intended to kill ... [the deceased], each would be guilty of wilful murder."

17 Then, after summarising the prosecutor's submission concerning the intention which, he said, the applicant must have had when striking the blow or blows to the deceased's head, the trial Judge said (transcript 1435 - 1436):

"The medical evidence of Dr Margolius obviously has a bearing on this. It bears on it first of all certainly in relation to whether or not either or both of those blows, depending upon your findings, caused ... [the deceased's] death but, as I say, ... [counsel for the applicant] I think does not really contest that the blow or blows were death-causing blows in that sense, but nonetheless that's a matter for you to determine and you need to have regard to Dr Margolius's evidence in that respect, but if you find, as I indicated earlier, that either or both of those blows caused an injury or injuries from which ... [the deceased] would have died or was dying, then that would be sufficient for you to find that he caused ... [the deceased's] death even though there may have been other injuries caused by someone else which also contributed to or were causing death.

So, as I think ... [counsel for the applicant] puts it to you, the really critical issue in relation to ... [the applicant] is the question of intent and whether you're satisfied beyond reasonable doubt about that."

18 The trial Judge repeated, a little later in his charge (transcript 1439), that the "real question", in relation to the applicant, was that of intent. He went on to say:

"[T]here appears to be no real dispute about whether ... [the applicant] struck ... [the deceased] with the post at least once so the question is whether you're satisfied there were two blows and the further question then is whether you're satisfied there was any specific intent to kill or cause grievous bodily harm."

19 That brings me to the grounds of appeal. There are four of them, a fifth having been abandoned. They read as follows:

"1. The learned trial judge failed to adequately direct the jury on the issue of causation.

2. The verdict was unsafe and unsatisfactory in that, a jury properly instructed could not be satisfied, beyond reasonable doubt, that any act of the accused (Appellant) caused an injury, which caused death.

4. The learned trial judge erred in fact in telling the jury that counsel for the appellant ... 'does not really contest that the blow or blows were death-causing blows' ...

5. Cumulative ground. The grounds set out above individually have occasioned a miscarriage of justice, alternatively, the cumulative or aggregate [sic] of the errors of law, misdirections or failure to direct have caused the trial to miscarry ..."

20 I propose to deal first with ground 2, then, together, with grounds 1 and 4 and, finally, with ground 5.

21 When dealing with causation, a distinction has often been drawn between "factual" and "legal" causation.

22 Factual causation involves an enquiry whether there is in fact a connection between a person's conduct and the event alleged to constitute the offence (see Professor Eric Colvin "Causation in Criminal Law" (1989) 1 Bond LR 253 at 254 and Kenneth Arenson "Causation in the Criminal Law: A Search for Doctrinal Consistency" (1996) 20 Crim LJ 189 at 189 - 190). Usually, that question is simply answered by applying the "but for" test, that is to say, by asking whether the event would have occurred but for the conduct in question. Ordinarily, satisfaction of that test will be essential to a finding of criminal responsibility. However, that is not necessarily the case. In March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 - 517, Mason CJ pointed out (in a civil context) that:

"The 'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause': Winfield and Jolowicz on Tort, 13th ed. (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury ... The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the 'but for' test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis: see Weinrib, 'A Step Forward in Factual Causation', Modern Law Review, vol. 38 (1975) 518, at p. 530."

23 Legal causation raises more difficult questions of criminal responsibility - whether the factual connection between the conduct in question and the event is sufficient to justify the attribution of moral culpability and, hence, legal responsibility. The approach to be adopted in this respect was discussed by the High Court in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. The principal issue of causation in that case arose against a background in which the scenario was posited that the death of the victim had not been caused directly by the conduct of the accused but by an act done by the victim (jumping out of a window) in response to conduct of the accused (threatening behaviour). The judgments accordingly focused on the issue of causation in that context. However, there is some discussion of wider principle that is relevant to the issues in this case.

24 The judgment of Mason CJ essentially dealt only with the issue before the Court. However, he said (at 387) that he agreed with the statement made by Burt CJ in Campbell v The Queen [1981] WAR 286 at 290, that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a 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".

25 In his judgment, Brennan J said (at 398) that the basic proposition relating to causation in homicide is that an accused's conduct must contribute significantly to the death of the victim although it need not be the sole, direct or immediate cause of the death.

26 Deane and Dawson JJ said (at 411) that there may be no single cause of the death of the deceased, but that if the accused's conduct "is a substantial or significant cause of death", that will be sufficient if there is also the requisite intent to sustain a conviction for murder. They said that it was for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused. They went on to approve the passage from the judgment of Burt CJ in Campbell, referred to above.

27 The same passage was also approved of by Toohey and Gaudron JJ at 423. Their Honours went on to say:

"Burt C.J.'s comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Reg. v. Butcher [1986] VicRp 4; [1986] V.R. 43, at pp. 55 - 56; Reg. v. McKinnon [1980] NZCA 22; [1980] 2 N.Z.L.R. 31, at p. 36. In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death."

28 McHugh J considered the issue of causation in greater length. He said (at 441 - 442):

"Causation is a question of fact: Reg. v. Evans & Gardiner [No. 2] [1976] VicRp 53; [1976] V.R. 523, at p. 527; Reg. v. Pagett [1983] EWCA Crim 1; (1983) 76 Cr. App. R. 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] W.A.R. 286, at p. 290; (1980) 2 A. Crim. R., at p. 161.

In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question. But there are two cases where the invocation of commonsense principles of causation often provides little assistance to the jury. The first is the case where an accused's act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is the case where, notwithstanding the accused's act or omission, the event or occurrence could have been prevented if the victim or a third person had taken action to avoid the consequences of the act or omission. In these cases, common law judges have sought to use more specific tests for determining whether 'but for' acts or omissions of the accused were 'causally responsible' for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. Frequently, one test has been used to the exclusion of the others without any express recognition of the existence of the other tests: see Colvin, loc. cit., p. 259.

In Reg. v. Smith [1959] 2 Q.B. 35, where the appellant had been convicted of murder, Lord Parker C.J. said ... at pp. 42 - 43:

'It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.'

In this context, 'substantial cause' has been said to be 'a convenient word to use to indicate to the jury that it must be something more than de minimis': Reg. v. Hennigan [1971] 3 All E.R. 133, at p. 135, per Lord Parker C.J."

29 After an extended discussion of the case law, McHugh J went on to say (at 449):

"The test of reasonable foresight is to be preferred to the 'natural consequence' test and the 'operating cause and ... substantial cause' test. The balance of authority favours the reasonable foresight test over the 'natural consequence' test. Moreover, the word 'natural' is ambiguous. In Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. ('The Wagon Mound [No. 2]') [1966] UKPC 1; [1967] 1 A.C. 617, at p. 634, Lord Reid said, "[t]he word 'natural' is found very often and is peculiarly ambiguous." In Beech, Darling J., in using the term 'natural consequence', seemed to mean that the consequence was one which 'was a very likely thing'. But the expression can also mean a consequence that might be expected to occur. In Roberts (1971) 56 Cr. App. R., at p. 102, Stephenson L.J. approved the test in Beech. Yet his Lordship said that the test was: '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?' Furthermore, despite the enthusiasm which some courts and writers have shown for the 'operating cause and ... substantial cause' test, I do not think that it is a satisfactory formula. The adjective 'operating' adds nothing. Either an accused's act is a cause or it is not a cause. The word 'substantial' means no more than not de minimis. The result of the application of the 'operating cause and ... substantial cause' test in most cases is that the 'but for' test has been applied under another label."

30 It is apparent, from this review of the judgments, that a majority of the judges accepted the proposition that an accused will not be held criminally responsible unless his or her act is a substantial or significant cause of the death: Brennan J at 398; Deane and Dawson JJ at 411; and Toohey and Gaudron JJ at 441 (although there has since been some debate as to whether the word "significant" is interchangeable for "substantial": R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at 213; and S J Odgers & S M H Yeo "Semantics and the Threshold Test for Imputable Causation (2000) 24 Crim LJ 73). There is also authority for the proposition that causation is a question to be determined by a jury by applying common sense to the facts as they find them, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter (Mason CJ at 387; Deane and Dawson JJ at 411 - 412; and Toohey and Gaudron JJ at 423).

31 There was some analysis of what amounts to a substantial or significant cause. Deane and Dawson JJ (at 412) said only that the causal connection must be "sufficiently substantial to enable responsibility for the crime to be attributed to the accused". McHugh J, in each of the extracts from his judgment quoted above, said that the word "substantial" meant "not de minimis" (see also Campbell, above, at 290; R v Cato [1976] 1 WLR 110 at 117; and Smithers v The Queen [1978] 1 SCR 506 at 519 - 520; and cf Moffatt, above, at 213 per Wood CJ at CL) .

32 The issue has sometimes arisen in the context of the acceleration of death. In R v Evans & Gardiner (No 2) [1976] VicRp 53; [1976] VR 523 at 527 - 528 the Victorian Full Court (Young CJ, Gillard and Anderson JJ) accepted that the acceleration of a death would be sufficient to establish causation. They said:

"Death is, of course, inevitable. Homicide is really the acceleration of the event. Accordingly if a victim receives from one assailant an injury which would or might ultimately result in death, but before the event occurred he received from another assailant a further injury which accelerated his death, the second assailant would be regarded as having caused the death for the purposes of the law of homicide ... But in every case it is a question for the jury to determine whether the event relied upon by the Crown was a cause of death."

33 Colvin, above, at 254, suggests that the issue in homicide cases is "whether the death would have occurred as soon as it did 'but for' the conduct of some person" and that it "makes no difference that the conduct merely hastened a death which would have later occurred in any event". Similarly, Arenson, above, at 189, suggests that an act or omission is a causing fact of the harm whenever if can be said that, but for the act or omission, "the harm would not have occurred when and as it did". Their views are supported, not only by Evans & Gardiner, but also by cases in England and the United States of America: see R v Dyson [1908] 2 KB 454 at 457; R v Burdee (1916) 12 Cr App Rep 153 at 155; R v Hennigan (1971) 55 Cr App Rep 262; People v Cox 228 P 2d 163 (Colo 1951); Tackett v State 766 SW 2d 410 (Ark 1989) at 414; and US v Long Feather [2002] USCA8 364; 299 F 3d 915 (8th Cir 2002) at 917. In a number of cases in the United States, a person who inflicted an injury on the deceased after the deceased had already been mortally wounded by another has been said to be guilty of homicide, where the effect of his or her act was to hasten death: State v Weston 64 P 2d 536 (Or 1937); State v Francis 149 SE 348 (SC 1929); and State v McDonald 953 P 2d 470 (Wash Ct App 1998), in which the firing of a shot into the victim's head was held to have caused the death, for the purposes of a murder prosecution, even though the victim would have died from shots previously fired by a co-offender.

34 The issue of acceleration has been addressed, in this State, in s 273 of the Code. That section reads as follows:

"A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person."

35 There is no definition of the words "disease" and "disorder". However, I would have thought that it is questionable whether the existence of a mortal wound of the kind inflicted by Colbung in this case could be described either as a disease or as a disorder. It would certainly not be comprehended within the ordinary meaning of the word "disease". The word "disorder" is defined in the Shorter Oxford English Dictionary as meaning, relevantly, "an ailment, disease. (Usually weaker than DISEASE, and not implying structural change.)". The Macquarie Dictionary defines it, amongst other meanings, as meaning "a derangement of physical or mental health or functions". Even accepting that a mortal wound of the kind here in question gives rise, literally, to a derangement of physical health or functions, I doubt that it would ordinarily be understood as a "disorder" (although cf R v Yambiwato [1967] PNGLR 222 at 227 - 228, per Clarkson J, applying the equivalent provisions of s 296 of the Criminal Code (Qld)).

36 In R v Martyr [1962] Qd R 398 at 415, Phelp J read the word "disorder", in s 296 of the Criminal Code (Qld), as including "constitutional weakness". That section was also referred to in Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62 at 66 - 67, where its meaning and application was left open. Then, in R v Carter [2003] QCA 515; (2003) 141 A Crim R 142, it was given further attention. In that case the appellant had injected the deceased with heroin in circumstances in which she had already ingested other dangerous drugs. In the course of discussing the issue of causation, McPherson JA (with whom Williams JA and White J agreed) said, at 148 [23]:

"The section [s 296] was referred to by her Honour at the trial in discussion with counsel; but in the end she decided not to direct the jury in terms of it because of the lack of decided authority on the meaning of the word 'disorder' in this context. No doubt that was a wise counsel of prudence. In other parts of the world some criminal or penal codes that are based on that of Queensland in effect have substituted the word 'injury' for 'disorder'. See for example s 200(d) of the Solomon Islands Penal Code, which was applied in Viu v The Queen (unreported, Court of Appeal, Qld, No 7 of 1994, 17 June 1994) by a Court of Appeal consisting of PD Connolly P, Kapi and McPherson JJA, to a case in which a man kicked his sister to death when she was already suffering a serious injury from falling out of a tree. The word 'disordered' also appears in s 28(1) of the Code where it is used in reference to the case of a person whose mind is disordered by intoxication or stupefaction caused by drugs or intoxicating liquor or other means. It does not seem to be a long step to say, in the light of Dr Pillans's evidence, that ... [the deceased] was 'labouring under some disorder ... arising from another cause' at the time when the appellant injected her with heroin which, at the very least, hastened her death."

Because the issue had not been before the jury for their consideration, McPherson JA declined to base his decision on the operation of s 296.

37 Whatever may be the appropriate construction of s 273 of the Code (it has not been argued in this case), I would not read that section as excluding ordinary principles of causation, which consequently fall to be considered whether that section or the common law is applicable. Arenson suggests, at 200, in this respect that a minor wound which "merely hastened ... death by a second or perhaps only a fraction of a second" would result in the application of the "substantial factor" test. As he recognises (at 200), this raises the question of where the line is to be drawn. He suggests that the answer, according to "the rather scant authority" (he refers to State v Luster 182 SE 427 (SC 1935) at 430) is that it is for the fact-finder to decide when an act or omission has had a substantial effect in hastening the death of the deceased. In my respectful opinion that must be so, given what has been said by the High Court in Royall. However, it is noteworthy that in Francis, at 364, the Court applied the proposition that, "[i]f any life at all is left in the human body, even the least spark, the extinguishment of it is as much homicide as the killing of the most vital being" and in Burdee, at 154, Darling J said that "[n]o-one has a right to shorten by an hour the life of a human being except where there is lawful authority, as where sentence of death has been passed".

38 The issue of combined causes was discussed in the United States in People v Lewis 57 P 470 (Cal 1899). In that case, the appellant had been convicted of manslaughter. He had shot the deceased in the abdomen. The deceased had then cut his own throat with a knife. The appellant contended that the deceased had committed suicide. The Court held that because the deceased had died from the combined effect of the two wounds, the appellant was guilty of homicide. The case is discussed by Colvin, above, at 255 - 256, where he suggests that, in a case in which the effects of two wounds cannot be isolated, for example where two fatal stab wounds were inflicted, the accepted view is that both actors can be held to have caused the death and can be convicted of a homicide offence. A similar conclusion appears to have been arrived at by Coldrey J in R v McLachlan [2000] VSC 516, a case in which a pathologist had been unable to say which of a head injury and a liver injury had caused death but had given evidence to the effect that each had contributed to the death. In R v Franklin [2001] VSCA 79; (2001) 3 VR 9 at 28 - 29, Brooking JA said that, in a case in which injuries are inflicted by two or more assailants, acting independently and at substantially the same time, and if there is no complicating factor which may be put forward as breaking the chain of causation, it is enough for the jury to enquire whether the attack of the accused made a substantial contribution to the death.

39 In the end, it seems to me that, on the present state of authority, it is enough to satisfy the requirement of causation for the purpose of attributing criminal responsibility if the act of the accused makes a significant contribution to the death of the victim, whether by accelerating the victim's death or otherwise, and that it is for the jury to decide whether or not the connection is sufficiently substantial.

40 In my opinion, there was, in this case, more than enough in the medical evidence to entitle a jury to find that there was a sufficiently substantial connection between the blow struck by the applicant and the death of the deceased. While the jury was obliged to accept, on the evidence of Dr Margolius, that the deceased was already dying when he was struck by the applicant, he was then still alive, and her evidence quite plainly established that this very powerful blow made a significant contribution to his death.

41 I have said that Dr Margolius described the blow as being itself potentially fatal. That was hardly surprising, given that it had been struck with sufficient force to break the bony plates of the skull, making them go down onto the brain and cause contusions. As I read the evidence of Dr Margolius (and as I believe any reasonable jury would have understood it), the injuries so caused, acting on an already severely injured man who was suffering from bleeding inside the skull, must inevitably have contributed, in a not insignificant way, to the death of the deceased. That is what I understand her to have meant when she said, variously, that the blow to the back of the head had "added to ... [the deceased's] problems"; that, when the injuries were "added together", the deceased was "going to die"; and that the blow struck by the applicant was "an additional factor in ... [the deceased] dying". This was undoubtedly sufficient to entitle a reasonable jury to find that the applicant was causally responsible for the death of the deceased. Indeed, I do not see how any reasonable jury could have found otherwise, given the damage inflicted by the blow and the evidence of Dr Margolius to which I have referred. Accordingly, the verdict of the jury was not unsafe or unsatisfactory: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

43 Ground 4, to the effect that the trial Judge erred in telling the jury that counsel for the applicant did "not really contest" that the blow or blows struck by the applicant were "death causing blows", needs to be considered in context. Prior to the making of closing addresses at the trial, there was some debate concerning the question of what alternative verdicts should be left for the jury's consideration. This involved some discussion of the issue of causation. Having ruled on the question of what alternative verdicts should be left with the jury, the trial Judge went on to say (transcript 1188):

"In deference to the submissions which have been made relating to Dr Margolius's evidence and cause of death or possible cause of death in this case, I foreshadow I will be directing the jury to take a common sense approach to the cause of death and if they find there were multiple injuries, each of which alone could have caused death, they could be satisfied each was a cause of death."

While that was not the position for which the then counsel for the applicant had contended, and while it does not accurately reflect the law as I have understood it to be when dealing with ground 2, counsel for the applicant plainly regarded this as a ruling by which he was bound. So much is apparent from the fact that, when he first mentioned the issue of causation to the jury during his closing address, he said the following (transcript 1382):

"His Honour will tell you the elements of the offence and the element of the offence is firstly that ... [the applicant] caused the death ... This is elements for ... wilful murder, murder and manslaughter. I won't talk about causation. His Honour has made certain rulings in the course of the trial about causation. He will tell you about that."

44 It was in this context that counsel for the applicant submitted to the jury that the "proper verdict" was one of manslaughter. The paragraph of transcript (page 1385) in which that submission is recorded reads, in full, as follows:

"I don't walk away from that at all. It was a shocking thing to do, no doubt. If you find he [the applicant] caused death by what he did, you must convict him. I'm not suggesting he walks away at all, you must convict him, but under the circumstances of this case bear in mind you have to be satisfied beyond reasonable doubt. It's not tossing a coin, it's not maybes, it's not probability; it's my submission to you after this long trial. You have been very attentive and thank you for that. It's my submission to you your proper verdict is that ... [the applicant] is guilty of manslaughter. That would be an appropriate verdict. Thank you for your attention."

As will be apparent from that extract, those words concluded the submission made by the then counsel for the applicant to the jury.

45 Counsel for the applicant in the appeal sought to place some emphasis upon the fact that the applicant's then counsel had prefaced his comments by the words, "If you find that he caused death by what he did". However, it seems to me that, when the passage is read as a whole, the applicant's counsel, although saying that a finding of causation was needed for a conviction, made it plain that he considered that the "proper" or "appropriate" verdict in the circumstances of the case was one of manslaughter. That being so, it followed that he did not, in the course of his closing address, "really contest" the issue of causation. However, his decision not to do so seems plainly to have been influenced by what had been said by the trial Judge as regards the directions which he proposed to give the jury in that respect.

46 That brings me to the directions, challenged in ground 1, that were in fact given by the trial Judge.

47 I have said that it emerges from the judgments in Royall that an accused will not be held criminally responsible unless his or her act is a substantial or significant cause of the death and that the issue of causation is to be determined by a jury by applying common sense to the facts as they find them, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter. Deane and Dawson JJ, after approving the extract from Campbell setting out this last proposition, went on to say (at 412):

"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 connexion between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connexion 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."

48 In my opinion, this was a case in which something more was required than a direction of the kind suggested in Campbell. The jury needed to be told, in the peculiar circumstances of this case, that they were required to be satisfied that the blow or blows struck by the applicant had made a significant contribution to the death of the deceased, whether by acceleration of his death or otherwise, and that it was for them, using their common sense, to decide whether the contribution was significant enough to justify the attribution of criminal responsibility. They also needed to be reminded of what had been the medical evidence in that respect.

49 As will be apparent, the trial Judge, having earlier discussed the evidence of Dr Margolius at some length, did tell the jury that there was an issue as regards what was, or were, the injury or injuries that had caused death and that the issue of causation was one for them to determine, having regard to the evidence of Dr Margolius, notwithstanding that counsel for the applicant did not really contest that the applicant's blow or blows had been "death causing". He also told them that it would be sufficient if the injury inflicted by a particular accused contributed to the death, even if it was not the major cause, nor the immediately operative cause. However, he did not explain to the jury that the contribution must be one which they found to be sufficiently substantial. Also, although the trial Judge had told the jury that the issue of causation was one for them to determine, they may have been influenced in their approach to it by the fact that they were told that there was no real contest in respect of it, when that would very probably not have been the case were it not for what had been said by the trial Judge (mistakenly, in my respectful opinion) prior to the making of closing addresses.

50 As will be apparent, the trial Judge went on to say that, if the jury was to find that an accused caused one of the injuries described by Dr Margolius as a "death causing injury from which death would have resulted", that would be sufficient in that, in a situation in which a person suffers a number of injuries any one of which would cause death, each of those injuries might be taken as having caused the death. He also said (transcript 1435 and 1436) that, if the jury found that a blow struck by the applicant "caused an injury or injuries from which ... [the deceased] would have died or was dying, then that would be sufficient for ... [them] to find that he caused ... [the deceased's] death even though there may have been other injuries caused by someone else which also contributed to or were causing death". In my respectful opinion these directions, too, did not adequately explain to the jury what was the issue which, on my understanding of the law, they were required to decide. Their task was not to decide whether the applicant's blow or blows "would" cause, or "would have" caused, death (a question which, as counsel for the applicant pointed out, was not answered by the medical evidence), but whether that blow or those blows had caused an injury or injuries which had in fact made a contribution to the death of the deceased that was significant enough to justify the attribution, to him, of criminal responsibility for that death.

51 That brings me to the question whether the shortcomings that I have identified have resulted in a substantial miscarriage of justice (as to which, see s 30(4) of the Criminal Appeals Act 2004 (WA)). As I have foreshadowed when dealing with ground 2, it seems to me, in the light of Dr Margolius' evidence, that no jury, properly instructed, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, could have arrived at any conclusion other than one to the effect that the blow struck by the applicant to the back of the deceased's head made so substantial a contribution to his death as to demand a finding that the applicant was legally responsible for the death. I will not repeat what I have already said in that regard. It follows that, even if there had been no shortcomings of the kind to which I have referred, the applicant would inevitably have been convicted and, hence, that there was no substantial miscarriage of justice: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365.

52 Ground 5 merely contends that the matters raised in grounds 1, 2 and 4 have resulted in a miscarriage of justice. Given the conclusions at which I have arrived in respect of those grounds, this ground fails.

53 That brings me to the application to extend time. A notice of appeal in this case was lodged some eight months out of time. As counsel for the applicant frankly conceded, no adequate explanation has been offered for the delay. Such explanation as there is appears in a very brief affidavit sworn by the applicant's solicitor. He has said that in late September or early October 2004, some three months after the date of the conviction, he was asked by the applicant's previous solicitor to review the applicant's

case. Then, in mid-October 2004, he received a box containing some 1500 pages of transcript. At some time during mid-November he began to read the transcript which, he discovered, was incomplete. On 24 December 2005 he received the missing parts of the transcript. The notice of appeal was lodged three months later, on 24 March 2005.

54 It is settled that, the longer the delay, the more exceptional the circumstances must be shown to have been before an extension of time will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension should not granted: R v Azaddin (1999) 109 A Crim R 474 at 476 per Kennedy J. In my opinion, no miscarriage can be demonstrated in this case. That being so, and there being no cogent explanation for the delay, I would dismiss the application for an extension of time.

55 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.

56 MCLURE JA: I have had the advantage of reading in draft form the judgment of Steytler P. I agree that the application for an extension of time should be dismissed for the reasons given by Steytler P. However, I propose to make some additional observations on grounds 1 and 2.

57 The facts and grounds of appeal are set out in the judgment of Steytler P and not detailed here. It is sufficient to note that the evidence established that a co-offender, Scott Colbung, hit the deceased on the base of his chin with a mallet and the deceased fell to the ground. While the deceased was lying on the ground, the applicant struck the deceased at least once on the back of the head with a marker post.

58 The applicant does not challenge the correctness of the trial Judge's statement of the legal principles relating to causation. In particular, the applicant does not challenge the correctness of the trial Judge's statement of what would be sufficient to establish causation in this case namely:

" ... [I]f you were to find that an accused caused one of those injuries described by [Dr Margolius] as a death-causing injury from which death would have resulted, then that, if you accept it, would be sufficient ... So if you have a situation in which a person suffers a number of injuries any one of which would cause death, each of those injuries may be taken in that commonsense way as having caused a person's death."

59 The applicant contends in ground 1 that the trial Judge erred in failing to identify the factual issues that the jury had to determine. The applicant says the jury should have been directed to consider and determine (1) the number of blows the applicant struck; (2) the location of the blows; (3) the injuries resulting from the blows; and (4) whether one or more of those injuries were a cause of death, with specific reference to the evidence.

60 The applicant further contends that if the jury had considered these issues they would have seen gaps in the medical evidence, which gaps rendered the verdict unsafe and unsatisfactory. The applicant relies on two alleged gaps. First, Dr Margolius's evidence was that the deceased "could" rather than "would" have died from the blow to the back of the head and second, she did not identify the injuries caused by the blow to the back of the head which could have caused the death of the deceased.

61 The applicant also complains that the trial Judge's direction that the applicant, by his counsel, did "not really contest that the blow or blows were death-causing blows in that sense ..." created an impression that the applicant had in effect conceded the issue of causation and that had the effect of diminishing the prosecution's burden of establishing causation beyond reasonable doubt.

62 The applicant relies on the trial Judge's failure to identify the factual issues (and evidence) to which I have referred, his comment that the applicant did not really contest that the blow was death-causing and the gaps in the expert evidence in support of his second ground of appeal that the verdict was unsafe and unsatisfactory.

63 I start with the only witness who gave expert medical evidence, Dr Karin Margolius, a forensic pathologist.

64 The deceased died from his injuries in hospital. He was determined to be brain dead. His family agreed to the donation of his organs. Dr Margolius first saw the deceased in ICU where his body was on assisted ventilation pending organ removal. Dr Margolius identified the deceased's external injuries. They included a seven centimetre laceration on the back left-hand side of the deceased's head; a laceration to the right ear and bruising behind the right ear and down the right side of the neck; and a laceration to the chin and lower lip. She identified the major external injuries as the lacerations on the back of the head and to the chin. Dr Margolius also identified the internal injuries which included:

1. a depressed fracture of the skull. The depression was such that it broke the bony plates and went down onto the brain;

2. a hinge fracture at the base of the skull (which is in fact at the top of the eye sockets);

3. contusions (bruising) at the front of the brain which were "contre-coup" injuries, being injuries on the opposite side to where force is directly applied;

4. an extensive haemorrhage (involving an area of 8 centimetres by 10 centimetres) over the left temporalis muscle. The haemorrhage was between the scalp and the skull not between the brain and the skull.

5. a subdural haematoma over the right side of the falx and subdural space. This haematoma was between the brain and the skull and involved 100 grams of blood. Fifty grams is life-threatening. The effect of blood accumulation is that it pushes the brain to the bottom of the skull towards where the spinal cord joins the brain. That causes damage to the respiratory centre (that part of the brain responsible for respiration) resulting in death;

6 cerebral swelling, which exacerbates the movement of the brain to the bottom of the skull referred to in (5);

7. tonsillar notching, being indentations on the brain caused by the brain being forced down towards the spinal cord;

8. diffuse axonal injury. This is caused by rapid acceleration and deceleration of the brain as it moves around the skull. It also causes subdural bleeding; and

9. a laceration of the right temporal lobe of the brain.

65 Dr Margolius's evidence was that the diffuse axonal injury was caused by the blow to the chin. She assumed that blow caused the deceased to fall backwards and hit the back of his head on the ground. However, the eye witness evidence was that the deceased fell forwards not backwards. According to Dr Margolius, the deceased could not have recovered from the diffuse axonal injury. She said:

"That's already so severe, because what happens with diffuse axonal injury is they become unconscious quickly, and this is severe so he would have been - it's a traumatically induced unconsciousness and coma that lasts - well, this would be in excess of 24 hours should he have lived, so as he's being impelled over, that diffuse axonal injury is very, very severe by itself."

66 This answer suggests that the deceased would have taken longer to die from this injury alone. That is, the diffuse axonal injury was not the sole cause of death.

67 Dr Margolius also linked the subdural haemorrhage to the blow to the chin and the consequential fall. She said that the hinge fracture could have been caused by either the blow to the chin (and fall) or the blow to the back of the head but she could not say which.

68 Apart from the depressed fracture at the back of the skull, lacerations and contusions, Dr Margolius did not link any other internal injuries to the blow to the back of the head. However, Dr Margolius's evidence was that the hit to the chin (and fall) and the blow to the back of the head could each have caused the deceased's death. The evidence is as follows:

"Now, in terms of that sequence of events, how seriously injured would he have been following the blow below the chin that is impelling him backwards?---That's a potentially fatal injury; its serious.

So that alone could have led to his death?---Yes.

And his hitting the ground?---Yes.

Would have aggravated that?---Well, it's part of - the diffuse axonal injury, the movement could have done it; the hitting to the floor is the same - the same event, but yes, it's potentially fatal.

And lastly, the blow to the back of the head in isolation, could that have caused his death?---Yes.

Taking the assumption for the moment that either the impelling blow to the chin and/or the striking of the head to the ground on its own without treatment would have led to his death, would the blow to the back of the head have had an aggravating effect, a neutral effect, what?---Well, he was already dying. By itself, it would've added to his problems.

But he was already dying at that stage?---He was already dying but ignoring anything else, that is a potentially fatal one, so one by itself, both, they would've - added together, he's going to die."

69 Dr Margolius was also asked what, if any, contribution the laceration to, and bruising behind, the right ear made to the deceased's death. She said:

"Yes. That gave me - that was a real problematical one because I don't know what did it. It certainly could be some flat instrument against the ear with a corner. That in itself could also have produced a fracture to the skull at that point.

Are you able to say whether it did?---It would be the same as I would say with the back one. It's an additional factor in him dying."

70 The tenor of the evidence is clear. Both the blow to the chin (and fall) and the blow to the back of the head could each have caused the deceased's death. Dr Margolius did not give evidence that one or the other (or the injuries associated with one or the other) was the sole cause of the deceased's death. To the contrary, her evidence is that the separate blows caused injuries which together resulted in the death of the deceased.

71 This is consistent with her earlier evidence. After separately identifying the deceased's external and internal injuries she was asked:

"In the light of what you found and explained to us are you able to offer an opinion as to the sequence of events that gave rise to what ultimately caused Mr Clark's death?"

72 She answered that question by commencing with the depressed fracture to the skull caused by the blow to the back of the head. There was no relevant challenge to Dr Margolius's evidence.

73 Before going to the grounds of appeal, I propose to consider the legal principles relating to causation.

74 Under s 270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatsoever, is deemed to have killed that other person. Sections 272 to 275 deal with causation in particular situations: causing death by threats (s 272), acceleration of death (s 273), where death might have been prevented by proper precautions (s 274) and injuries causing death as a result of subsequent treatment (s 275). However, these specific sections do not, in my view, limit the generality of the causation requirement in s 270. The common law principles of causation provide guidance in that regard.

75 Causation involves questions of fact and law. Insofar as it is a question of fact, it must be determined on the evidence. An act or omission will be a factual cause if it is a necessary condition of the damage (in this case, death). This involves the application of the "but for" test: would the deceased's death have occurred "but for" the applicant's conduct. In the criminal law context, it is the death as and when it occurred that is in issue, not some potentiality or even inevitability of death at some other, even marginally later, time.

76 An act or omission does not have to be the sole or even the main cause of death. It is sufficient if it is a cause. Where death results from multiple independent contributing causes, none of which alone would produce that consequence, each contributing cause is a factual cause. Where death results from more than one cause, each of which is sufficient of itself to cause the death, the "but for" test cannot be satisfied. However, if independent multiple sufficient causes operate together to produce the result, each cause is a factual cause of death: R v McLachlan [2000] VSC 516; Glanville Williams, "Causation in Homicide" [1957] Crim LR 429 at 432. It is unnecessary to consider what the position would be in a situation where there are multiple sufficient causes but insufficient evidence to conclude that both causes factually contributed to a person's death (as and when it occurred). It may be that policy considerations require that each sufficient cause is a legal cause of death.

77 An act or omission that is, or is deemed to be, a factual cause of death, is a necessary but not of itself sufficient condition of criminal liability. The act or omission must also satisfy the legal test of causation which is used as a filtering device to narrow the unacceptably wide net cast by the test of factual causation. The legal test of causation is that the act or omission must have substantially or significantly contributed to the relevant event: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. Of course, if the evidence does not establish factual causation then (save in exceptional situations) the legal test cannot be satisfied. If factual causation is established, the legal test answers questions relating to, inter alia, the sufficiency of the contribution made to the relevant event and the effect of intervening acts of the victim or a third party.

78 The decided cases demonstrate that injuries which would not themselves cause death can make a substantial or significant contribution to a person's death as a consequence of their combination with the victim's pre-existing independently caused injuries or condition: R v Dyson [1908] 2 KB 454; R v Garforth (1954) Crim LR 936; R v Cato [1976] 1 WLR 110; and R v Franklin [2001] VSCA 79; (2001) 3 VR 9 at 28 - 30 per Brooking JA. If independent multiple sufficient causes combine together to result in death, it must surely follow that each makes a substantial or significant contribution to that death.

79 The trial Judge informed the jury, in effect, that they were required to be satisfied that the applicant caused a particular injury or injuries which Dr Margolius had identified as death-causing and which injury or injuries would have resulted in the deceased's death. Dr Margolius's evidence did not provide an evidential foundation to answer these specific questions. In particular, Dr Margolius did not expressly identify which of the injuries caused by the blow to the back of the head could have caused death. However, without objection or challenge, she stated her conclusion that the blow caused injuries which could have caused the deceased's death. Further, Dr Margolius did not give evidence that either the blow to the chin or the blow to the back of the head "would have caused" the deceased's death as and when it actually occurred. Her evidence was, in effect, that each blow was capable of having caused that death. Indeed, Dr Margolius did not give evidence of the particular injury (or injuries) from which the deceased actually died, if indeed that was possible.

80 The grounds of appeal are predicated on the correctness of the trial Judge's direction on causation. However, the trial Judge's direction places the causation bar too high. The question for the jury was whether the applicant's acts made a significant or substantial contribution to the accused's death. Dr Margolius's uncontradicted and unchallenged evidence was that the blow to the chin (and fall) could have caused the deceased's death and that the blow to the back of the head could have caused his death and that the injuries caused by both blows together produced that result. That evidence establishes that the separate blows were each sufficient causes which together resulted in the deceased's death. But whether or not either or both were sufficient causes, it is clear from Dr Margolius's evidence that the injuries inflicted by both blows were at least life threatening and together resulted in the deceased's death. It was not necessary for the jury to be satisfied that one or more of the individual injuries from the blow to the back of the head would itself have resulted in the deceased's death. On any view of the evidence, it was clearly open to the jury to conclude that the blow to the back of the head made a significant or substantial contribution to the deceased's death. Indeed, I am unable to see how a reasonable jury could have reached a different conclusion on the evidence. That being the case, there is no miscarriage of justice in the trial Judge telling the jury that the applicant did not really contest that the blow to the back of the head was death-causing.

(2000) 24 Crim LJ 73

(1996) 20 Crim LJ 189

Krakouer v The State of Western Australia [2006] WASCA 81

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Krakouer v The State of Western Australia [2006] WASCA 81 (23 May 2006)

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