R v Lam [2005] VSC 296

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

Causation - Victims chased by persons with swords - To escape victims jump into river and drown - Whether conduct of accused caused the deaths - Intervening acts - Whether necessary that accused chased deceased all the way to the river.

Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

"they had reached an agreement or understanding of the type explained to you in relation to James Huynh, pursuant to that agreement or understanding reached between them at the Salt Nightclub, or in its vicinity in Daly Street when they were both present and together, but not necessarily at all times, one or both of them whilst armed with Samurai swords or other such weapons that were available to them confronted and pursued Nam Huynh and Viet Huynh from the intersection of Daly Street and Chapel Street, South Yarra to the intersection of Alexandra Avenue and Chapel Street in South Yarra. You know, of course, as to what took place in relation to James Huynh at that intersection. By this conduct, that is the confrontation and pursuit of Nam Huynh and Viet Huynh with the intention of assaulting them with Samurai swords, or such other weapons as were available to them, and with the intention of inflicting upon Viet Huynh and Nam Huynh really serious injury or death, the two accused induced in Nam Huynh and Viet Huynh a well-founded fear of apprehension of physical harm such as to make it a natural consequence that Nam Huynh and Viet Huynh would seek to escape, and in the course of so doing they each jumped into the Yarra River where they both drowned."

4 In a document dated 12 April 2005 the prosecution filed a submission setting out the precise acts which it was said the two accused had performed and which the jury could view, separately or together, as constituting a substantial cause of the death of Nam Huynh and Viet Huynh.

5 In relation to Hung Van the prosecution said:

(a) confronting the two deceased in Daly Street whilst armed with a Samurai sword;

(b) striking James Huynh in Daly Street with a Samurai sword in the presence of the two deceased;

(c) pursuing the two deceased into Chapel Street whilst armed with a Samurai sword;

(d) pursuing the two deceased along Chapel Street whilst armed with a Samurai sword;

(e) striking James Huynh at the intersection of Chapel Street and Alexandra Avenue with a Samurai sword before the two deceased jumped into the Yarra River;

(f) pursuing the two deceased to the riverbank of the Yarra River whilst armed with a Samurai sword;

(g) standing on the riverbank of the Yarra River whilst armed with a Samurai sword near the position of the two deceased and when they were in the Yarra River and still alive."

6 With the exception of particular (b) the same particulars were relied upon with respect to the accused Cuong Lam.

7 Counsel for the accused submit that the accused could not, in law, have caused the death of the deceased if neither of them chased them beyond the bus stop. They submit that the acts of other persons in chasing the deceased and/or acts of the deceased in jumping into the river broke the chain of causation making the death of the deceased too remote from any act of the accused.

Causation: general principles

8 Causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred.[1] Causation-in-fact is not causation-in-law.[2] An act or omission would not attract criminal liability if an ordinary person, as a matter of commonsense, would not regard it as the cause of the result. As there may be more than one cause of death, in common law jurisdictions the test for causation is whether the act or omission of the accused substantially contributed to the death of the victim.[3] The act must be more than coincidental or insignificant.[4] It must not be too remote in time or place to constitute a legal cause. The choice of the cause of death is not one for the trial judge, but for the jury under proper direction.[5] Whether causal responsibility can be assigned to the accused rests upon notions of moral culpability and fairness. The issue of causation is one into which considerations of policy and value-judgments necessarily intrude.[6]

9 In Royall's case Mason CJ, Deane and Dawson JJ in their joint judgment and Gaudron and Toohey JJ in their separate judgments cited with approval the comments of Chief Justice Burt in Campbell v R[7] that the question of cause for the jury to decide is not a philosophical or a scientific question, but is a question of fact for the jury and is to be determined by applying commonsense and experience but with an appreciation that they are deciding the question of legal responsibility.[8]

10 Since March v Stramare the _"_but for" test has been recognised as having an important role, but it is not the exclusive test of causation.[9]

11 In Chappel v Hart, McHugh J said:

"As a natural consequence of the rejection of the 'but for_'_ test as the sole determinate of causation, the Court has refused to regard the concept of remoteness of damage as the appropriate mechanism for determining the extent to which policy considerations should limit the consequences of causation-in-fact. Consequently, value judgments and policy as well as our "experience of the 'constant conjunction' or 'regular sequence' of pairs of events' in nature", are regarded as central to the common law's conception of causation." [10]

"Underlying the rejection of the 'but for' test as the determinant of legal causation is the instinctive belief that a person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury that befell the plaintiff. At Mason CJ emphasised in March, causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred. So the mere fact that injury would not have occurred but for the defendant's act or omission is often not enough to establish a causal connection for legal purposes"[11].

12 In Arulthilakan v R, Kirby J referred to the test for causation and drew no distinction between civil and criminal trials. His Honour said:

"At most the 'but for' test can only constitute a 'threshold test for determining whether a particular act or omission qualifies as a cause.' It is insufficient to 'make that act or omission a legal cause of the damage.' The problem of the 'but for test' is that on its own it casts the net of causation too widely. It includes acts of a remote and peripheral or purely temporal connection which have no part to play in the determination of the 'legal cause'. There is no reason for the test of causation for the purposes of attaching criminal liability to be different from that adopted by this Court in cases of civil liability. If anything, the reasons that have led to the rejection of the 'but for' test in civil trials have greater applicability in the context of the criminal trial. This is because, as McHugh, J. pointed out in Royall v The Queen the inquiry is one addressed to whether a link has been proved by the prosecution that is 'sufficiently cogent to justify attributing causal responsibility, ie, legal responsibility, to that person'." [12] (Citations omitted).

Novus actus interveniens

13 An accused will not be causally responsible where there is an intervening cause sufficient in law to negate their liability. In March v Stramare, Mason CJ referred to the novus actus interveniens doctrine in the discussion of the "but for" test. His Honour spoke of the doctrine in terms of an intervening act by B which brought about a consequence not readily foreseeable by A. His Honour said:

"The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk. To deny recovery in these situations, because the intervening act is deliberate or voluntary would be to deprive the duty of any content".[13]

14 Where the question of the existence of the required causal connection is complicated by an intervening act or damage, the "but for" test is now recognised as inadequate as a comprehensive positive test.[14]

15 In Bennett v Minister for Community Welfare the plaintiff was a ward of the State under the guardianship of the Director of Community Welfare. In 1973 the plaintiff lost several fingers in a benchsaw accident. The Minister as defendant accepted that Bennett would have been able to recover damages as he had not been properly instructed or supervised in the use of the saw and it had not been properly guarded. But the action was statute barred and it was for the loss of this right of action that the plaintiff sued the defendant. The plaintiff claimed that the Director had breached his duty of care by failing to secure independent legal advice in respect of the injury. The defendant admitted the breach but argued that the real cause of the plaintiff's loss was independent but erroneous legal advice which the plaintiff subsequently received in 1976. Adopting the approach followed in March v Stramare the Court considered that the defendant remained the cause of the plaintiff's loss since there would not have been an occasion for the plaintiff to seek that legal advice if the Director had not breached his duty of care. Such advice was the very risk against which the director had a legal duty to protect the plaintiff. In failing to discharge that duty, the Director was held liable for the plaintiff's loss. McHugh J was to observe:

"The causal connection between a defendant's negligence and the plaintiff's damage is negatived by the subsequent conduct of another person only when that conduct is 'the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant'."[15]

16 In Medlin's case the plaintiff was working as a professor when he was injured in a car accident caused by the defendant's negligent driving. Although the plaintiff resumed academic duties after the accident, he decided to take advantage of the University's early retirement scheme due to suffering chronic pain arising from the car accident. Sleeplessness and associated loss of intellectual energy made the plaintiff feel he was unable to discharge his teaching and research duties satisfactorily. The plaintiff claimed for loss of earning capacity for the remaining four and a half years that he would have worked. The evidence was that the university continued to regard his contribution as being of a sufficiently high standard to continue him in his employment until retirement age. The Court rejected the submission that his decision to retire early amounted to a novus actus interveniens. Dawson, Deane, Toohey and Gaudron JJ regarded the decision as a natural consequence or step in the chain of causation which sufficed to designate the termination of the employment as a product of the injuries suffered as a result of the defendant's negligence. Their Honours said of the "but for" test, in a case where there has been the intervention of some act of the plaintiff or a third party:

"If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between breach ... and ... loss or damage. The ultimate question must, however, always be whether notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant, and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. ... Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre-eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's commonsense test of causation." [16]

Acts of self-preservation cases

17 A brief review of English self-preservation cases also demonstrates that the natural consequence test is linked to the concept of foreseeability. The natural consequence test was applied in R v Beech[17] where the complainant was injured jumping out of a window attempting to escape the accused's threatened attack. The Court of Criminal Appeal upheld the conviction and said that no-one could say:

"that if she jumped through the window it was not the natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of threats of a man who was conducting himself as this man indisputably was."[18]

18 In Rex v Evans[19] the prisoner's wife jumped from a window following beatings and threats. The court said:

"If she was constrained by her husband's threats of further violence and from a well grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall as much as if he had thrown her out of the window himself."

19 In R v Roberts[20] the complainant had jumped from a moving car because she said the appellant had assaulted and threatened her. The appellant was convicted of assault occasioning actual bodily harm. The issue was one of causation. In the course of giving the judgment of the Court, Stephenson LCJ said:

"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act and if of course, the victim does something so 'daft', in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it, but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which would not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury." [21]

20 The foresight principle laid down in Roberts was approved in Reg v Mackie[22]. The Crown case was that the three year old victim was killed when he fell down stairs fleeing in fear of his father's violence. Stephenson LCJ said:

"Where the injuries are fatal, the attempt to escape must be the natural consequence of an unlawful act and that unlawful act 'must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from, albeit not serious harm'."[23]

21 All five judgments in Royall refer with approval to the statements of O'Bryan and McGarvie JJ in R v Demirian[24] that if a person creates a situation intending to kill, and he does kill, it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected.[25]

22 The majority in Royall strongly discouraged trial judges from giving directions to juries which invited them to consider questions of foreseeability in relation to issues of causation[26]. In McAuliffe v R[27] the High Court repeated the earlier observations that in most cases directions on causation should be kept very simple and should avoid references to reasonable foreseeability because of the risk of producing confusion between causation and the mental element of the offence.

23 An act by the victim will not constitute an intervening act unless the act can be seen to have been independent of the accused, or where the victim takes unreasonable action out of proportion to the threat posed by the accused.[28] Where the victim, threatened with violence, seeks to escape, and in the course of doing so suffers fatal injuries, the person who threatened violence may be held to have caused the death. The nature of the threat is relevant to the question of whether the actions of the deceased, in seeking to escape, were proportionate to the gravity of the threat.[29] Where the conduct of the accused has induced a well-founded apprehension of physical harm such that an attempt to escape is a natural or reasonable consequence, any injuries suffered by a victim in the course of escaping are caused by the conduct of the accused.[30] The intervening act of the deceased will not break the chain of causation if it can be described as a natural consequence of the threatening conduct. The causal connection between the violence or threats of violence and the death then remains unbroken.

Conclusion

24 In all of the reported self-preservation cases the victim confronted and threatened by the accused, generally in a confined space and faced with the risk of impending further violence, took immediate life-threatening action in an attempt to escape.

25 In my view, causal responsibility cannot be assigned to the accused if the jury found that neither the conduct of Cuong Lam or Hung Van extended beyond the area in the immediate vicinity of James Huynh's body at the bus stop near the intersection of Alexandra Avenue and Chapel Street. On that view of the facts, notions of moral culpability and fairness[31] and the application of common sense leads to the conclusion that they could not be said to be causally responsible for the death by drowning of Viet and Nam Huynh. If both of the accused's acts ceased at the bus stop, neither of them having given chase, it cannot be said that the deceased's conduct in jumping into the river some hundreds of metres away was the natural consequence of their acts. The accuseds' conduct would not then be causally linked to the actions of the deceased. In those circumstances it would be the conduct of third parties who are not said by the prosecution to be acting in concert with Cuong Lam or Hung Van and the acts of the deceased that caused the death of Viet and Nam Huynh. In those circumstances the conduct of Cuong Lam and Hung Van cannot be an operating cause of the drowning death of the victims. That is to say, if the victims were only chased by others who are not complicit with Cuong Lam and Hung Van, or if they were not chased at all, legal responsibility could not be imposed upon the accused. Such facts, if found by the jury, would not support the necessary causal link between the accuseds' conduct and the victims' deaths. The accuseds' conduct would be too temporally and physically remote to operate as a substantial cause of the subsequent drowning death of the deceased. I shall direct the jury in accordance with this ruling.

[1] Whether criminal responsibility can be assigned to the accused rests upon notions of moral culpability. See Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 per McHugh J at 448 and 450.

[2] Royall v The Queen per Mc Hugh J at 441.

[3] Royall v The Queen at 423 per Toohey and Gaudron, JJ; R v Hallett (1969) SASR 141 at 149; R v McAuliffe (1993) 70 A Crim R 303; Osland v R [1998] HCA 75; (1998) 197 CLR 316; Moffat v R [2000] NSWCCA 174; (2000) 112 A Crim R 201 per Wood CJ at [71].

[4] R v Franklin [2001] VSCA 79; (2001) 3 VR 9 per Brooking JA at [54]-[55].

[5] See Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 218 per Barwick CJ; and R v Arulthilakan [2003] HCA 74; (2003) 203 ALR 259.

[6] March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 552; Bennett v The Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 413_._

[7] [1981] WAR 286 at 290.

[8] See Royall v The Queen per Mason CJ at 387, Deane and Dawson JJ at 411, at 423 per Toohey and Gaudron JJ; March v Stramare at 531 per McHugh J; Bennett v The Minister of Community Welfare at 413; Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6; Chappel v Hart (1998) 195 CLR 232, per Kirby J at 268-269.

[9] Per Mason CJ at 508; Bennett, per Mason CJ, Deane and Toohey JJ at 412-413; Medlin, per Deane, Dawson, Toohey and Gaudron JJ at 6.

[10] At 243.

[11] At 243-244.

[12] At [56].

[13] At 517-518.

[14] See Medlin at 6.

[15] At 429-430.

[16] At 6-7.

[17] (1912) 7 Cr App R 197.

[18] At 200.

[19] Unreported (1812) as discussed in Russell on Crime (12th Edition) at 414.

[20] (1972) 56 Cr App R 95.

[21] Ibid at 102.

[22] (1973) 57 Cr App R 453.

[23] Ibid at 459-460.

[24] [1989] VicRp 10; (1989) VR 97 at 113.

[25] I note that some judgments in Osland v R disapprove of parts of the decision in R v Demirian. See [1998] HCA 75; (1998) 197 CLR 316 at 329 per Gaudron and Gummow JJ, 349-350 per McHugh J and 402 per Callinan J.

[26] Per Mason CJ at 390, Deane and Dawson JJ at 412, and Toohey and Gaudron JJ at 425.

[27] [1995] HCA 37; (1995) 183 CLR 108.

[28] Royall v The Queen at 412 per Deane and Dawson JJ at 425 per Toohey and Gaudron JJ, cf McHugh J at 450-451;. R v Williams [1992] 1 WLR 380 [1992] 2 All ER 183.

[29] R v Williams.

[30] Royall v The Queen at 389 per Mason CJ, at 399 per Brennan J, at 410 and 412-413 per Deane and Dawson JJ.

[31] Royall v The Queen per McHugh J at 440.

At a glance

Court

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Before

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Judgment (28 paragraphs)

Parties

Cases Cited (10)