R v McLachlan [2000] VSC 516

Supreme Court of Victoria|2000-11-24|Before: COLDREY, J.

At the conclusion of the Crown case, Mrs Morrish, on behalf of the accused, submitted that there was no case to answer on the charge of murder. This was because the Crown had failed to link the death of Derek Jones to any fatal injury caused by the accused, as distinct from a third party, Tracy Marshall.

I have previously set out the authorities relating to no case submissions in such rulings as R v Smith (unreported 12 February 1993). It is unnecessary to repeat them here.

Given the various concessions, it is not necessary to embark upon any factual analysis.

The authorities on the topic of causation cover a wide variety of fact situations. However, there are a number of statements of general principle. In R v. Pagett (1983) 76 C.A.R. 279, the English Court of Appeal said, at p.288:

"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 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 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."

In Royall v. The Queen [1991] HCA 27; (1990) 172 CLR 378 Brennan, J. remarked at p.398:

"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."... [R v. Pagett is cited.]

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

Similarly, in R v. McAuliffe 70 A.Crim.R. 303, the New South Wales Court of Appeal at p.306 appear to have approved the formulation of the trial judge, Wood, J., who instructed the jury:

"You cannot convict the accused of murder or manslaughter unless you are satisfied that the death of the deceased in this trial was causally related to the act which the accused whose case you are considering [there being two accused in that particular case] 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 common sense and practical way."

It was the defence submission that, on the facts in the present case, the Crown had failed to show that the head injury was a substantial or significant cause of death. This was because it could not exclude the liver injury as the sole cause of death. To assess this submission, it is necessary to examine the evidence.

The relevant evidence was that of Dr Shelley Robertson, the pathologist called by the Crown. Although attention was drawn to evidence she had given in previous trials, this is not germane to the issue before me, but in any event I do not regard it as inconsistent with her current evidence.

Mrs Morrish drew my attention to portions of Dr Robertson's evidence. At p.31 of the transcript in evidence-in-chief she was asked:

Question "And what in your opinion was the cause of death?"

Answer: "The cause of death was multiple injuries with contributory factors of combined alcohol and drug toxicity."

Question: "Because drugs were found in his blood later?"

Question: "You have heard the phrase, I take it, 'substantial and operating cause of death'?" Answer: "Yes."

Question: "What in your opinion was the substantial and operating cause of death here?"

Answer: "The multiple injuries, but in particular the head injury and abdominal injury."

At p.32, again in evidence-in-chief, the following exchange occurred.

Question: "Is it a fallacy to talk of, in terms of the injuries to this man, as there being a single cause of death?"

Answer: "I think it is impossible to separate the single cause of death when you have more than one pathology which is capable by itself of producing death."

Question: "So are you saying the injuries in combination caused the death?"

Answer: "I am saying that they can't be separated out individually as one or other of them specifically causing death. They are both of a severity to be capable of causing death."

In my view, there is nothing in this evidence inconsistent with the doctor's initial opinion that both injuries were a substantial and operating cause of death.

In cross-examination, Dr Robertson agreed that the liver injury was, on its own, capable of being the sole contributor to death (p.35) but this must be seen in the context of her earlier evidence. It is no more than saying that the liver injury was capable of causing death itself.

Question: "The liver, if I could turn to that. As far as the damage to the liver was concerned, that damage could have been caused by as little as one blow; is that right?"

Question: "Given the limitations with which you were working in, you would not be able to say whether the liver injury was the first blow or the last blow, would that be fair to say too?"

Question: "it is also fair to say I take it, given what you told my learned friend Mr Parkinson, that the single injury on its own which could have been caused by one blow of itself could have been the substantial cause of death?"

Answer: "Certainly in the absence of prompt medical attention, yes."

I now go to p.45 where the evidence was as follows:

Question: "And really what it all comes down to is the difficulty of the evidence in this case pinpointing what precisely caused death; would you agree with me there?"

Answer: "I have given the cause of death as multiple injuries. I believe that is as precise as one can be." Question: "And you can't say which specific injuries; correct, except to say head injuries and abdominal injuries, namely liver and head injuries?"

Question: "But again not all the head injuries; correct?"

Again, a fair reading of this passage is that both the head injury and the liver injury contributed to death. This is particularly so having regard to what Dr Robertson said at p.31, to which I have already referred.

The final part of the evidence referred to by Mrs Morrish was p.48, being the re-examination by Mr Parkinson, in which the witness disavowed being able to say that the liver was the sole cause of death in the presence of the head injury.

In my view, Dr Robertson's evidence put at its highest from the defence perspective was that, while the liver injury had the capacity by itself to cause death, the head injury and the liver injury were each a substantial and operating cause of death.

In those circumstances, there is evidence of causation which a jury may take into account in its deliberations and which is capable (along with the other evidence) of supporting a verdict of guilty. Accordingly the submission must be rejected.

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