R v Wright; R v Lowe

District Court of NSW|2009-09-23|Before: Deane J, Mason CJ, Dawson JJ

CITATION: R v Wright; R v Lowe [2009] NSWDC 251

CATCHWORDS: Stay application - establishing causation as an element of manslaughter

Arulthilakan v R [2003] HCA 74 Campbell v The Queen [1981] WAR 286 Jago v District Court of NSW (1989) 168 CLR 23 McAuliffe v R [1995] HCA 621 CASES CITED: R v Lam [2005] VSC 296 R v Styman; R v Taber [2004] NSWCCA 245 R v Roberts (1971) 56 Cr App R 95 R v WRC [2003] NSW CCA 394 Royall v The Queen (1990) 172 CLR 378

Regina PARTIES: Ashley Glenn WRIGHT Jonathan Burton LOWE

COUNSEL: C Everson for the Crown G Wendlew for the Accused (Lowe)

SOLICITORS: J Conomos for the Accused (Wright)

1 The Crown alleges that Jonathan Lowe and Ashley Wright are guilty of the manslaughter of the deceased because they committed the unlawful and dangerous acts of creating TATP, an extremely volatile explosive substance, and assembling an improvised explosive device (IED) that contained the substance. The deceased died when the TATP exploded.

2 The accused seek a stay of proceedings, arguing that it would be an abuse of process to prosecute proceedngs in which the Crown cannot prove that the acts of the accused "caused" the death of the deceased.

3 No narrow view of an abuse of process is appropriate: R v WRC [2003] NSW CCA 394 at [54]. A stay will be justified where any trial "will necessarily be an unfair one": Jago v District Court of NSW (1989) 168 CLR 23 per Deane J at 60. The notion of fairness (or unfairness) "defies analytical definition": Jago per Deane J at 57.

4 Accused persons do not usually seek to stay proceedings on the basis that the Crown case is fundamentally deficient. In this case, the Crown accepted that, if satisfied that "causation" could not be proved, the Court could grant a stay. In my view, a stay is not the appropriate response to a fundamentally deficient Crown case. The extent of any deficiency cannot be known until the conclusion of the Crown case, when any fundamental deficiency can be addressed by a directed verdict. An apparently deficient Crown case cannot give rise to the sort of "necessary unfairness" that calls for a stay.

5 Nevertheless, I will address the argument advanced on the stay application.

6 The deceased was a research scientist who had worked in the fields of plant science and animal health. His hobby was antique firearms. The accused Jonathan Lowe is a son of the deceased. He lived in a separate flat attached to his parents' residence. Jonathan Lowe and Ashley Wright were friends.

7 On the Crown case, Jonathan Lowe and Ashley Wright used commonly available ingredients to manufacture TATP, a primary explosive substance that is sensitive to impact, friction, electrostatic shock and heat. A minor application of force, friction or heat may cause TATP to explode violently. The accused assembled an IED by placing the TATP inside a bottle and attaching a detonator. The IED was kept in Jonathan Lowe's flat. In an electronically recorded interview, Jonathan Lowe informed police that, on the day before the explosion, the deceased located the IED and commented that TATP was extremely volatile. The deceased offered to "get rid of it". Jonathan Lowe told police that the deceased "told me he'd taken care of it".

8 On 18 May 2008, the deceased cleaned up rubbish around the house and placed it into a skip bin. On 19 May, the deceased announced that he intended to mow the lawn. Neither accused was present. A few minutes after the mower started, there was an explosion in the vicinity of the skip bin. In the explosion, the deceased lost part of his right thumb and finger. He received deep shrapnel wounds to the chest from which he later died.

9 The accused argue that there is no causative link between their acts and the deceased's death because the deceased had assumed possession of and responsibility for the TATP, which he knew to be a dangerous explosive substance.

10 As causation is an element of the offence, it is essentially a question of fact for the jury. It is to be determined by applying common sense to the facts as the jury finds the facts to be, appreciating the criminal context in which the inquiry occurs: Campbell v The Queen [1981] WAR 286 at 290, Royall v The Queen (1990) 172 CLR 378 per Mason CJ at 387, Deane and Dawson JJ at 413.

11 An act "causes" a death if it is a substantial or significant cause of the death: Royall per Deane and Dawson JJ at 411, Toohey and Gaudron JJ at 423. It need not be the sole, direct or immediate cause of the death: Royall per Brennan J. at 398. The causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused: Royall per Deane and Dawson JJ at 412. Causation cannot be separated from questions of moral culpability: Royall per McHugh J at 450. In Arulthilakan v R [2003] HCA 74 Kirby J stated that the inquiry into causation addresses whether the prosecution has established a link that is "sufficiently cogent to justify attributing causal responsibility, ie legal responsibility, to (the accused) " at [58].

12 It is often said that, when directing a jury on causation, reference to the reasonable foreseeability of death or grievous bodily harm is likely to be confusing and should, if possible, be avoided: Royall per Mason CJ at 390, Deane and Dawson JJ at 412, McAuliffe v R [1995] HCA 621 at [23].

13 Where the direct cause of a death is not the accused's act but the act of the victim or a third person, it is necessary to consider whether the chain of causation between the act of the accused and the death of the deceased has been broken by intervening events. Except in "self-preservation cases", the issue rarely arises. The legal representatives have been unable to find a case that is factually similar to the present case.

14 In R v Roberts (1971) 56 Cr App R 95, the victim had asserted that, when the accused commenced to sexually assault her in a moving vehicle, she sought to escape by jumping from the vehicle. When she landed, she sustained actual bodily harm. The accused was charged with assault occasioning actual bodily harm. At 102, Stephenson LJ formulated the causation test by referring to reasonable foresight as follows: "Was (the victim's reaction that directly caused her injury ) 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 a consequence of what he was saying or doing?" (emphasis added).

15 Roberts was discussed in Royall and was not expressly disapproved. In Royall, the accused had been charged with the murder of a woman who died as a result of falling from the window of her sixth floor unit after the accused assaulted her. It was unclear whether the accused had pushed her out the window, whether she fell from the window in the course of avoiding the attack, or whether she jumped from the window in order to escape. In relation to the third possibility, members of the High Court bench differed on whether and to what extent it was appropriate to incorporate the concept of reasonable foreseeability into the test of causation. At 389, Mason CJ referred to Roberts and formulated the following test: "where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct." (emphasis added).

At 399, Brennan J referred with approval to Roberts and observed that: "Foresight or reasonable foreseeability marks the limits of the consequences of conduct for which an accused may be held criminally responsible ... The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability , of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct." (emphasis added).

At 425, Toohey and Gaudron JJ counselled against reference to foreseeability. They said that a jury may be told that the chain of causation was broken if the victim's reaction to the accused's act "was quite disproportionate to the act or was unreasonable". McHugh J took a different approach. He distinguished between the "natural consequence" and "reasonable foresight" tests. Inter alia because he considered that the expression "natural consequence " was ambiguous, McHugh J favoured a "reasonable foresight" test that took into account any unreasonable conduct by the victim, while recognizing that victims often act unreasonably in the face of danger and that unreasonable conduct by a victim should not necessarily constitute a novus actus interveniens.

16 R v Lam [2005] VSC 296 was a self-preservation case with a difference. The accused had attacked the victims and chased them to a bus stop. The evidence suggested that other persons, who may not have been complicit with the accused, may have been responsible for chasing the victims well beyond the bus stop to a river. To escape pursuit, the victims jumped into the river, where they drowned. Redlich J reviewed Royall and other self-preservation cases. He concluded that, if the jury accepted that the victims may have been chased from the bus stop by persons who were not associated with the accused then, having regard to the lack of temporal and physical proximity between the accused's acts and the deaths, the accused could not be held legally responsible for the deaths.

17 R v Styman; R v Taber [2004] NSWCCA 245 was not a self-preservation case. The appellants had been convicted of murder on the basis that, after a co-offender attacked, bound and gagged a robbery victim, the appellants failed to rescue her. One of the appellants had called 000 to report a break and enter at the victim's premises, but the call was not acted upon. Had the call been acted upon, the victim would have survived. The Court of Criminal Appeal determined that the trial judge had erred in failing to leave to the jury the question of whether, in those circumstances, inaction by the appellants had "significantly contributed" to the victim's death, but found that the error did not lead to a miscarriage of justice. Styman may be distinguishable on the basis that it involved a continuing omission. Significantly, it reaffirms that the issue of causation - "significant contribution" - is a matter for the jury.

18 I derive the following principles from Royall and the other cases to which I have referred. (1) Causation is essentially a question of fact for jurors to decide by applying their common sense. (2) An act or omission "causes" a death if it is a substantial or significant cause of the death. It need not be the sole, direct or immediate cause, but the causal contribution must be sufficiently cogent to justify the serious finding that the accused is morally culpable for the death. (3) When directing juries about causation, judges should be wary of introducing the concept of reasonable foreseeability. (4) The reasonableness or proportionality of the victim's conduct leading to his or her death may be taken into account when considering causation.

19 Where death is the end result of a string of events commencing with the accused's act or omission, the law is not settled as to whether, when or how a jury may be directed to consider whether the death was a reasonably foreseeable consequence of the act or omission. In the context of a homicide, any direction on reasonable foreseeability would need to give a relatively narrow meaning to that concept, perhaps a meaning akin to "a natural consequence" (but not as narrow as "the natural consequence"). It may be appropriate to incorporate a consideration of the reasonableness or proportionality of any contributing act of the victim into any consideration of reasonable foreseeability.

20 It is a question of fact for the jury whether it accepts as a possibility that the deceased assumed possession of the IED and TATP, knowing that he was accepting responsibility for a dangerous explosive substance. If the jury does accept that possibility, then the reasonableness of the deceased's conduct in relation to the IED and TATP is relevant to causation, but may not necessarily be determinative. Even if the jury finds that the deceased may possibly have assumed possession of and responsibility for the IED, a finding that the acts of the accused significantly contributed to his death may remain open. The jury will need to make factual findings about the nature of the accuseds' acts, the circumstances directly surrounding the death of the deceased, the temporal and physical proximity of the accuseds' acts to the deceased's death, and other relevant circumstances for the purpose of deciding whether the causal contribution of the accuseds' acts to the deceased's death is sufficiently cogent to justify a finding of causation.

21 I am not satisfied that the Crown is unable to prove causation.

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