R v Lam

Supreme Court of Victoria|2005-06-03|Before: Redlich J

Criminal law - Aiders and abettors - No case submission - Circumstantial evidence - Whether evidence that accused charged as aiders and abettors were present when accused charged as principal offenders inflicted injuries - Whether open to jury to exclude all innocent hypotheses as irrational or unreasonable.

Whether evidence that accused were present when principal offenders inflicted injuries which contributed substantially to the deceased's death - United force of all circumstances - Whether competing inference consistent with the innocence could be excluded as not being reasonably open.

Causation - No case submission - Whether supervening act which caused death when aiders and abettor not present - Whether break in chain of causation.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

Whether evidence that aiders and abettors present when accused charged as principal in first degree inflicted injury

1 The accused Long Tran and Hong Bui, who the prosecution allege are principals in the second degree, have submitted that there is no case to answer on the grounds that the evidence does not establish that the acts of aiding and abetting relied upon by the prosecution, if committed, were performed at a time when a charged principal in the first degree was present and inflicting any injury to the deceased James Huynh.

2 The prosecution case against Long Tran and Hong Bui is that they assisted or encouraged the crime of murder by one or more of the principals in the first degree, their co-accused, Cuong Lam, Hung Van and David Nguyen. The submission advanced on behalf of the both accused is that there is no evidence of any act performed by Cuong Lam, Hung Van or David Nguyen at a time when they were present.

3 Although the evidence was examined in some detail during the course of submissions, it is sufficient that I summarise the arguments put on behalf of the prosecution and accused. In doing so, it must be remembered that there is a vast amount of circumstantial evidence which bears upon these issues including the evidence of witnesses who made observations at different times and from different positions concerning the scene of the crime at about 3.15 am in the morning.

4 While it was conceded for the purpose of this argument that it was open to the jury to find that Cuong Lam was at the river, or in the vicinity of the intersection of Alexandra Avenue and Chapel Street, it was said by counsel on behalf of both Long Tran and Hong Bui that there was no evidence which would permit a finding that he did any act in relation to the deceased, James Huynh, let alone an act whilst they were present.

5 In answer, the prosecution pointed to the evidence that he was armed with a sword and wearing gloves; that he had chased the deceased to the murder scene; that he had a motive to harm him; that witnesses had observed the deceased attacked by a number of men with swords; that the jury could conclude from the nature of the injuries sustained by the deceased that swords had been used and that he had been seen jogging across towards the river carrying a sword not far from where the deceased was lying and had been attacked Whether this evidence would be sufficient to permit a jury to conclude that he was one of those who used a sword to inflict injuries which were a cause of death, I need not presently determine. I was not directed to any evidence admissible against Long Tran or Hong Bui that the prosecution relies upon that shows that these accused were present at this time.

6 It was contended on Long Tran and Hong Bui's behalf that there is no evidence that the other named principals in the first degree, Hung Van or David Nguyen, did any material act while Long Tran or Hong Bui were present, either on foot or whilst in their motor cars, in the vicinity of the crime scene. The prosecution case is that Hung Van and David Nguyen arrived at the murder scene in the red Toyota driven by the accused Johnny Nguyen at about the same time as Cuong Lam arrived on foot. It relies upon the times obtained from video footage taken of people and traffic in Chapel Street. The prosecution relies upon the admissions made by Hong Bui that he drove to the scene of the murder and alighted from his car, and it also relies on the admission of Long Tran that he drove his motor car to the crime scene. Both accused were found to have blood spatter of the deceased on their shoes which the prosecution contends is consistent with them being within approximately two metres of the deceased when he was struck with swords causing serious injury.

7 The prosecution relies upon a large body of evidence from witnesses concerning the presence of motor vehicles at the scene which it submits would permit a jury to conclude that Long Tran and Hong Bui's vehicles, together with the RAV4 driven by Mark Ung, were present at the same time as the red Toyota. Mr Dean submitted that the evidence permitted the conclusion that these vehicles were present during the period when occupants of the red Toyota alighted and attacked the deceased inflicting serious injury upon the deceased. It was submitted that the jury may properly conclude on evidence admissible against Long Tran and Hong Bui that the accused Hung Van and David Nguyen were the persons who alighted from the red Toyota. This inference was only faintly challenged by counsel for Long Tran and Hong Bui. What was strenuously contested was the prosecution claim that the evidence supported a rational conclusion that the red car was present at the same time as Long Tran or Hong Bui's car. It was also disputed that the evidence demonstrated that Hung Van or David Nguyen were occupants in, or alighted from, the red Toyota on the first occasion that it was there. It was also contested that there was any evidence that would permit the jury to conclude that either of them struck any blow to the deceased whilst Long Tran or Hong Bui were either on foot or present in their vehicles in the vicinity of the crime scene.

8 The prosecution submits that based upon the observations of various witnesses and the video footage taken in Chapel Street, it will be open to the jury to conclude that the vehicles of the witness Ung, and the accused Hong Bui, Long Tran and Johnny Nguyen all left the scene of the crime within a few seconds of each other and drove north along Chapel Street.

9 All parties took me to various parts of the evidence of numerous witnesses who had given evidence concerning these matters. Some of the witnesses, whilst describing movements of vehicles consistent with the prosecution case, agreed that particular vehicles were not of the colour or the make or the model of a particular accused's vehicle. Some witnesses saw only the red car whilst others saw the RAV4. Other witnesses saw a car of similar, but not the same colour, as one of those cars. Other witnesses saw one or both of Hong Bui or Long Tran's car, but not the red Toyota. There were witnesses who saw only Long Tran's car. It was not practical at this point of the trial for the parties to take me to all of the relevant evidence that bears upon these issues, let alone to develop submissions as to the cumulative effect of that evidence.

10 It was correctly submitted for the accused that the prosecution case rested upon circumstantial evidence to establish the presence of Hong Bui or Long Tran at the material time, there being no witness who identified either of the accused as in the vicinity of the deceased at a time when a blow was struck by a charged principal in the first degree or who identified their motor cars as present at the scene of the murder at a time when the offence was committed by any of the principals in the first degree.

11 It was therefore submitted that the prosecution, consistent with its obligation to exclude every hypothesis consistent with innocence, could not demonstrate that the hypothesis that these accused and their vehicles were not present is not rationally open on the evidence. Put in positive terms, it was submitted that no reasonable jury properly instructed could be satisfied beyond reasonable doubt that they were present assisting or encouraging at a time when a named principal in the first degree inflicted injuries upon the deceased.

12 All parties made submissions as to the proper test that should be applied to determine whether or not the accused had no case to answer.

13 In Case Stated by Director of Public Prosecutions (No. 2 of 1993)[1], King CJ said:

"It follows from the principles as formulated in Bilick in connection with circumstantial cases that it is not the function of the judge in considering a submission of no case to choose between the inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence (see Attorney-General's Reference (No. 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410; Thorp v Abbotto [1992] FCA 112; (1992) 34 FCR 366; (1992) 59 A Crim R 203. He is concerned only with whether a reasonable mind could reach a conclusion of guilt beyond reasonable doubt and therefore exclude any competing hypotheses as not reasonably open on the evidence."[2]

"I would re-state the principles in summary form as follows - If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt, and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all of the evidence for the prosecution were accepted, and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence as not reasonably open on the evidence." [3]

14 In R v Cengiz[4] Ormiston JA had cause to re-visit the question of the appropriate test to be applied on a no-case submission where the prosecution case rested primarily upon circumstantial evidence. His Honour referred to the trial judge's application of the decision in Attorney-General's Reference (No. 1 of 1993) where it was said:

"The question whether the Crown has ultimately excluded every reason hypothesis consistent with innocence is a question of fact for the jury and, therefore, if the Crown has led evidence upon which the accused could be convicted a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude."[5]

Ormiston JA having observed that Attorney-General's Reference (No. 1) had been referred to with apparent approval by the High Court in Doney v R[6] then continued:

"If it can be shown that it is open to the jury to hold that all other hypotheses should be excluded as irrational or unreasonable (and I interpolate, that is other than a hypothesis of guilt) then it is important to allow the jury to apply their collective minds to the issue because, as was said later in Doney at 214:

'........the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters'.

Counsel for the applicant relied principally upon passages in Knight v R [1992] HCA 56; (1992) 175 CLR 495 at 502-3 to support the proposition that the court should direct an acquittal because 'a hypothesis consistent with innocence remains which is not excluded'. However, in my opinion, it is only if the alternative inference or inferences can be described as reasonable or rational that the obligation to acquit arises. There are passages in the judgment of the majority in Knight which taken alone might suggest no qualification of that kind is necessary......., but other passages make it clear that the conventional qualification still applies. Thus, at 503 in the last full paragraph, the majority, in considering whether the verdict in that case was unsafe and unsatisfactory said,

'That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo' (Emphasis added)."[7]

15 During the course of submissions it appeared to me that there was some blurring of the distinction between facts upon which the Crown relied to draw the disputed inferences and the inferences themselves. In relation to the question of those underlying facts, the test to be applied is that formulated by the High Court in Doney's case.[8]

16 The process of drawing inferences from disputed facts rests upon a well recognised process of deduction. In Martin v Osborn[9] Dixon J said :

"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inferences. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation."[10]

17 In Plomp v R[11] Dixon CJ referring to the passage of his Honour's judgment in Martin v Osborn said:

"This means that according to the common course of human affairs the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."[12]

18 Much argument was directed to the differences in the evidence of various witnesses who made observations of the events at the murder scene. In my view, the significance of those differences are questions which the jury should resolve. It is not my function to make an assessment about what view the jury might take of those pieces of evidence which might be said to be in conflict, which are inconsistent with each other, or which are inconsistent with the hypothesis for which the Crown contends. Nor is it my function when it comes to the question of inferences to make any choice between those competing inferences which are reasonably open on the evidence, nor decide whether a hypothesis consistent with innocence is reasonably open on the evidence. It is for me to determine only whether the evidence, if accepted, is capable of satisfying a reasonable jury beyond reasonable doubt of these facts which are in issue on the present application. Nothing I say is intended to convey anything more than that.

19 In my view, the cumulative effect of the circumstantial evidence upon which the prosecution relies provides a basis upon which the jury, properly instructed, could conclude beyond reasonable doubt that the accused Long Tran and Hong Bui were present, either on foot or in their vehicles, in the vicinity of the deceased at a time when one or more of the charged principals in the first degree inflicted injuries upon the deceased. That is to say, I am unable to accept the earnest submissions advanced by counsel on behalf of Long Tran and Hong Bui that it would not be open to the jury to reject the hypothesis that the accused Long Tran and Hong Bui were not present, assisting or encouraging one or more of the principals in the first degree when they performed acts which caused injury to the deceased.

20 It is unnecessary for me to further recite the facts upon which the prosecution relies and which have been advanced in the course of argument in support of this conclusion. Suffice to say that there is a body of evidence which would permit a jury, properly instructed, to reach the conclusion that the accused Hong Bui and Long Tran were present on foot in close proximity to the deceased or in their car in the vicinity of the deceased at a time when Cuong Lam or Hung Van or David Nguyen inflicted injuries upon the deceased.

21 I now turn to the second basis upon which the no-case submission was made.

Presence of aiders and abettors when charged principal offenders inflicted injuries which caused death

22 Counsel for Hong Bui and Long Tran further submit that even if it is concluded that a reasonable jury could be satisfied beyond reasonable doubt that their clients were present and encouraged or assisted an accused charged as a principal in the first degree who was inflicting injuries upon the deceased, there is no case to answer upon the ground that the prosecution cannot establish that Hong Bui or Long Tran aided or abetted any act performed by such a principal in the first degree which was a cause of death. Even if it was open to the jury to conclude that Hong Bui, Long Tran or Hoang Tran as principals in the second degree were present when some injuries were inflicted upon the deceased, it could not be said that such injuries were a cause of death. It was said that the evidence does not demonstrate when particular injuries were inflicted.

23 In R v Pagett[13] it was said:

"In cases of homicide, it is not really necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute. ... Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause of the victim's death, it being enough that his act contributed significantly to that result."[14]

24 In Royall v R[15] Brennan J, referred to this passage from Pagett's and observed:

"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. It need not be the sole, direct or immediate cause of the death."[16]

25 Similarly, in the New South Wales Court of Appeal in R v McAuliffe & McAuliffe[17] Wood J formulated the following propositions in relation to causation for the purposes of instruction to the jury:

"You cannot convict the accused or murder or manslaughter unless you are satisfied that the death of the deceased in this trial was causally related to an act which the accused, whose case you are considering, was responsible. To be a cause of death for the purposes of these offences the act for which the accused is responsible must be a substantial or significant cause of bringing about death, but need not be the sole cause but it must be a substantial or significant cause viewed in a commonsense and practical way."[18]

26 Professor Ranson, the pathologist who examined the deceased, provided the following evidence concerning cause of death. It was his opinion that the deceased had sustained multiple injuries to the body and that very many of those injuries were associated with damage to vascular structures which would cause substantial loss of blood from the body. He said that in this case it appeared to him that there were a multiple series of injuries including the stab wound to the chest which were described as being the cause of death. He considered that those injuries all resulted in a substantial loss of blood to the individual who then died. He expressed the opinion that many of the deeper cutting injuries to the body would have resulted in significant blood loss and said that they were all part of a contributing process to the deceased dying as a result of the trauma leading to blood loss and failure of the heart to provide adequate circulation.

27 Mr Saunders, on behalf of Hong Bui, who developed the principal submissions in relation to this question , contended that there was no evidence that a blow struck in the first attack, when Hong Bui is said to be present, resulted in a wound that led to the exsanguination of the deceased. The evidence showed, he submitted, that the deceased was attacked over a period of time which could not have exceeded 12 minutes (and I interpolate, probably significantly less time than that), but that it could not be determined what blows were struck at what time within that timeframe. He submitted that the prosecution case was that Hong Bui was only present at the time of the first attack. I have treated counsel for Long Tran and Hoang Tran as adopting these submissions.

28 In response , the prosecution submitted that there was a persuasive body of evidence that would enable the jury to be satisfied beyond reasonable doubt that serious injuries were inflicted upon the deceased by one or more of the named principals in the first degree, whilst the secondary participants, Long Tran, Hong Bui and Hoang Tran were present at the scene of the crime. Senior Counsel for the prosecution submitted that when one examines the description of the first attack upon the deceased by eye-witnesses, it can be seen that it was a ferocious and forceful attack upon the deceased by a number of men with knives or swords. He referred to the evidence of eye-witnesses as to the presence of the red Toyota at the time of this attack and the use by one or more of its occupants of a sword or machete. He submitted that the jury could conclude that it was one or more of the principals in the first degree who were using their swords. It was submitted that it was open for the jury to conclude that the accused Hong Bui and Long Tran's vehicles were present at this time.

29 Mr Dean referred in passing to the evidence in support of his earlier submission that the evidence demonstrated that the secondary participants, Long Tran and Hong Bui, were present at the time that a principal in the first degree attacked the deceased. He relied upon that evidence and further submitted that based upon the blood spatter on the shoes of Long Tran and Hong Bui and the evidence of Professor Ranson, it was open to the jury to conclude that the deceased sustained serious injuries which contributed to the deceased's death at the time that Hong Bui and Long Tran were present.

30 In response it was further submitted by Mr Saunders that the prosecution had not established facts from which it could be inferred that incision type wounds, which would have caused significant bleeding of the type which might have contributed to the death of the deceased, were caused whilst either Hong Bui or Long Tran were present. He submitted that the blood spatter on the clothing of both accused, even if it came to be there as a consequence of events in Alexandra Avenue, and I observe that that is a matter which is strongly challenged, was consistent with the deceased being struck with a blunt object on a part of his body that was already bloody as a result of the injury the deceased had received in the assault in Daly Street. This, he submitted, could account for the blood spatter at the crime scene. He submitted that there was no rational basis upon which the jury could conclude that the persons seen striking the deceased with swords were the principals in the first degree or, that the secondary participants, Hong Bui or Long Tran, were present.

31 Counsel for Long Tran adopted these arguments. Counsel for Hoang Tran, in a separate submission contended that the evidence did not permit any conclusion that any injury was inflicted at the time of the first attack when Hoang Tran admitted that he was present and that such an attack did not demonstrate that any serious injury had taken place which could have contributed to the death of the deceased. He submitted that Hoang Tran in his interview had said that he was only present for part of that attack and that there was no evidence to the contrary. The deceased, he argued, was still alive according to the evidence, when Hoang Tran departed the scene. He adopted the submission of Mr Saunders that there was an innocent explanation for the blood spatter. He submitted that if the bloody footprint was of Hoang Tran's shoe, that did not establish that the blood had come from a serious injury then inflicted by a principal in the first degree in his presence.

32 In reply Mr Dean pointed to the statements made by Hoang Tran at various times which he said demonstrated that he was present when a ferocious attack was made on the deceased. Hoang Tran, he submitted, had admitted both his presence within a metre of the deceased, that he had observed Cuong Lam chopping at the deceased with a sword, and had given a graphic account of the serious nature of the attack, including an account in which he said he moved forward towards the deceased as this attack was taking place.

33 As I have already observed, the prosecution's case is essentially one of circumstantial evidence, there being no eye-witnesses called by the prosecution who could identify any of the accused as being present when the deceased was killed. The Crown's cases does depend largely upon the drawing of inferences from circumstantial facts. In such a case it is important to bear in mind that the jury does not look at each circumstance in isolation in order to determine what inferences it might draw. It must consider the weight of the united force of all of the circumstances considered together.[19]

34 The trial judge is not entitled to direct an acquittal where at the close of the prosecution case the judge considers that there is still open a reasonable hypothesis consistent with the innocence of the accused man which the Crown has not excluded.

35 The principle as stated in Attorney-General's Reference (No. 1 of 1983)[20] is to the following effect:

"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer simply because he has formed a view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and Menzies J explained in Plomp's case, in a case based upon circumstantial evidence, 'the necessity to exclude reasonable hypothesis consistent with innocent is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt'."[21]

36 The test on this question is that formulated in Doney and Cengiz's case, that is, whether a reasonable jury could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence.

37 Mr Dean referred to particular aspects of the Crown case in some detail. He took me to the evidence of a number of the eye-witnesses including Lee, Douglas, Walters, Zuker, Moussa, Griffiths, Wappet, Cheng and Tan. He drew attention to the nature of the injuries sustained by the deceased and also to the times at which it might be concluded that various accuseds' motor vehicles were present at the crime scene according to the times shown on various video footage.

38 Again I emphasise that it is important to bear in mind that each of the items of evidence upon which Mr Dean seeks to rely cannot be looked at in isolation from each other. Rather, it is their combined and unified force which is relied upon to give rise to the inference which the Crown would seek to have drawn.

39 The combined force of those facts would, in my view, make it reasonable for the jury to conclude that Long Tran, Hong Bui and Hoang Tran were present at the scene of the killing at a time when serious injuries which contributed substantially to the deceased's death were inflicted by one or more of the principals in the first degree. In my view, the jury would be entitled to reject as unreasonable any alternative inference, namely, that the accused men were not present when serious injuries were caused by one or more of the principals in the first degree. I do not consider that the jury would act unreasonably if they rejected any competing inference consistent with the innocence of the accused men as not being reasonably open to them.

Supervening act - Whether chain of causation broken

40 Alternatively, Mr Saunders, in a well presented submission, asserted that even if it was open to the jury to be satisfied that an injury which contributed to death was inflicted by a charged principal in the first degree whilst the aiders and abettors, Hong Bui, Long Tran and Hoang Tran were present, a later significant supervening act occurred when they were not present which contributed to the death of the deceased and which broke the chain of causation of the earlier acts. He submitted that on this separate ground I should conclude that the secondary participants, Long Tran, Hong Bui and Hoang Tran, had no case to answer. I have treated counsel for Long Tran and Hoang Tran as adopting these submissions. Mr Saunders referred to the stab wound to the deceased's chest which Professor Ranson considered would have resulted in a loss of life within the ensuing minute. Professor Ranson was of the opinion that the deceased was still alive at the time that this injury was sustained and that it resulted in an immediate and substantial loss of blood around the heart and lungs. I assume for the purpose of this argument that there is no evidence that these accused were present at this time though I doubt the validity of this assumption.

41 In support of this submission Mr Saunders referred to Royall v R[22] and in particular to the judgment of McHugh J in which an analysis of the criminal law on causation was undertaken. Mr Saunders also placed particular reliance on the cases of Ryan v R[23], R v Smith[24] and R v Pagett.[25]

42 In R v Smith the court considered the circumstances of the deceased who had received two bayonet wounds, one in the arm and one in the back. Unknown to anybody the bayonet wound to the rear had pierced the lung and caused haemorrhage. There then followed a series of unfortunate occurrences. A colleague of the deceased attempted to carry him to a medical centre for treatment. On the way he tripped and dropped the deceased. He picked him up and travelled a further distance and then dropped him a second time. At the medical centre the medical officer did not appreciate the seriousness of the deceased's condition. He died about an hour after being left at the medical centre. The Court of Appeal was of the view that the treatment which the deceased received at the medical centre was thoroughly bad and might well have affected his chances of recovery. It was found that there was evidence that if he had received immediate and different treatments he may not have died. It was in these circumstances that the Court of Appeal made the following observations:

"Mr Bowen urges that not only was a careful summing-up required but that a correct direction to the court would have been that they must be satisfied that the death of Private Creed was a natural consequence and the sole consequence of the wound sustained by him and flowed directly from it. If there was, says Mr Bowen, any other cause, whether resulting from negligence or not, if, as he contends here, something happened which impeded the chance of the deceased recovering, then the death did not result from the wound. The court is quite unable to accept that contention. 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."[26]

43 In Pagett's case, which was referred to with approval by a number of members of the High Court in Royall's case, the appellant was convicted of murder in circumstances where armed with a shotgun and cartridges he shot at police officers who were attempting to arrest him for various offences. Using his girlfriend as a shield he sought to protect himself from return fire by the police officers. In the course of the gunfire the appellant's girlfriend was killed.

44 The Court of Appeal[27] made these observations about the question of causation:

"Even where it is necessary to direct the jury's mind to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or a necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often be described by lawyers as a novus actus interveniens."[28]

45 Brennan J in Royall after referring with approval to R v Pagett observed that the accused's act need not be the "sole, direct or immediate cause of the death". His Honour continued:

"....when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third party in response to the conduct of the accused there is a question whether the chain of causation has been broken."[29]

46 In the joint judgment of Deane and Dawson JJ causation was described in this way:

"Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death, that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is 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." (Referring to Pagett's case with approval.)[30]

47 Their Honours also referred to the judgment of Burt CJ in Campbell v R[31] where an oft quoted passage is recited:

"It would seem to me to be enough if juries were 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 commonsense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter."[32]

"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 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 a 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 act 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."[33]

48 In the judgment of McHugh J his Honour referred to the decision of Evans & Gardiner (No. 2), Re [34] and a passage from Pagett's case.[35]

His Honour continued:

".....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 party had taken action to avoid the consequences of the act or omission......"[36]

49 His Honour also referred to the passage from R v Smith[37] and to the decision of the English Court of Appeal in Hennigan v R[38] in which Parker LCJ said:

"'Substantial cause' has been said to be a convenient word to use to indicate to the jury that the act and its cause must be something more than de minimus."

50 McHugh J in Royall also referred to the decision of the South Australian Court of Appeal in R v Hallett[39] which had adopted the concept of a substantial operating cause as the applicable principle. McHugh J referred to the following passage from the court's judgment in Hallett:

"The death of the deceased is the material event. The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event." [40]

51 I refer finally to the decision of the Court of Appeal in R v Franklin[41]. Although there are some differences between the factual circumstances in that case and the present, and Mr Saunders submitted that the case should be distinguished on those grounds, it is my view that the principles enunciated by Brooking JA, with which the Chief Justice and Ormiston JA agreed, apply in the present circumstances.

52 His Honour said:

"One of the striking things about this trial is that no alternative Crown case was left to the jury that acts directly performed by the applicant himself substantially contributed to the death. It is clear for the purposes of the law of homicide that there may be more than one cause of death and the criminal liability may attach to an actor even though the act was not the sole or even the 'main' or the 'most substantial' cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a significant or substantial cause of death. In the last 50 years a good deal of authority has accumulated on the subject, culminating, for Australian purposes in the decision of the High Court in Royall v R. The issue of the cause of death is of course one of fact for the jury, and while many, if not most cases, of homicide call for no direction about the principles of law concerning causation there are some which do. The decisions in which those principles are discussed are those in which either the judge's charge on causation or the jury's entitlement to find a causal connection is called in question. Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death as due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. For example, where a wound was inflicted by the accused it may be argued that the 'chain of causation' has been broken by unskilful medical treatment or by the victim's refusal on religious ground of a blood transfusion. On the other hand, the question may be whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window or moving car. The possible factual situations are infinite, and even the categories to which they may be sought to be assigned are numerous. One such category is that of infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case where there is no complicating factor which can 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. The present was such a case: the victim was subjected to a prolonged attack (extending on and off over some hours by the applicant, and a prolonged attack also extending over some hours) by other men. It was not and could not have been suggested, that there was some 'intervening' or 'supervening' or 'superseding' act or event which broke the chain of causation. Problems of the kind considered, for example, in Royall did not arise. It was enough for the jury to consider whether the applicant's acts were shown to have substantially contributed to the death, even though the acts of the other assailants may also have been a substantial and even a more substantial cause. The issue of causation was to be resolved without any occasion to consider whether some intervening agency absolved the applicant. It was enough to consider what causal connection there was in fact, and so to ask whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy's death. This approach is supported by Royall and Osland and by authorities dealing specifically with death following the independent and substantially contemporaneous infliction of injuries by two or more persons. The approach in the United States appears to be the same. Had the present jury been asked to consider the simple question of whether in light of the medical and the relevant lay evidence the injuries inflicted by the applicant had substantially contributed to the boy's death, it would have undoubtedly been open to them to answer it in the affirmative." [42]

53 On 3 May 2002 the High Court dismissed an application for leave to appeal in Franklin concluding that there was no miscarriage of justice. One of the grounds of appeal concerned the issue of causation.

54 It cannot be disputed in the present circumstances that serious injuries were sustained by the deceased as a consequence of one or more attacks and that those injuries were inflicted at substantially the same time. The final injury, if it be part of a separate attack which took place when the secondary participants Hong Bui, Long Tran and Hoang Tran were not present, cannot be viewed as an intervening or superseding act which broke the chain of causation. Even if the acts of one or more of the principals in the first degree after Hong Bui, Long Tran and Hoang Tran departed the scene may also have been a substantial and even a more substantial cause of death, it would be enough if the acts of a principal in the first degree whilst they were present, were shown to be a substantial cause of death.

55 It is a matter for the jury to determine whether an act of a charged principal in the first degree which contributed substantially to the death of the deceased was aided and abetted by them as a secondary participant.

[1] [1993] SASC 4152; (1993) 70 A Crim R 323.

[2] Ibid at 326-327.

[3] Ibid at 327.

[4] [1998] 3 VR 720.

[5] Ibid at 721.

[6] [1990] HCA 51; (1990) 171 CLR 207 at 213.

[7] See Footnote 3 at 721-722.

[8] See Footnote 6.

[9] [1936] HCA 23; (1936) 55 CLR 367.

[10] Ibid at 375.

[11] [1963] HCA 44; (1963) 110 CLR 234.

[12] Ibid at 243.

[13] [1983] EWCA Crim 1; (1983) 76 Cr App R 279.

[14] Ibid at 288.

[15] [1991] HCA 27; (1991) 172 CLR 378.

[16] Ibid at 398.

[17] (1993) 70 A Crim R 303.

[18] Ibid at 307. See also R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201.

[19] See R v Chamberlain [1984] HCA 7; (1984) 153 CLR 521.

[20] [1983] VicRp 101; [1983] 2 VR 410.

[21] Ibid at 415.

[22] See Footnote 15.

[23] [1967] HCA 2; (1967) 121 CLR 205.

[24] (1959) 2 QB 35.

[25] See Footnote 13.

[26] See Footnote 24 at 42-43.

[27] See Footnote 13 R v Pagett.

[28] Footnote 13 at 288.

[29] See Footnote 15 at 398.

[30] See Footnote 15 at 411.

[31] [1981] WAR 286.

[32] Ibid at 290. Cited in Royall Footnote 15 at 411-412.

[33] See Footnote 15 at 412.

[34] [1976] VicRp 53; [1976] VR 523.

[35] See Footnote 13.

[36] See Footnote 15 at 441.

[37] See Footnote 24.

[38] (1971) 55 Cr App R 262.

[39] [1969] SASR 141.

[40] Ibid at 149.

[41] [2001] VSCA 79; (2001) 3 VR 9.

[42] Ibid at 28.

At a glance

Court

Decision date

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Judgment (45 paragraphs)

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Cases Cited (9)