Swan v R

Judgment

1. BATHURST CJ: Mr William Rodney Swan (the applicant) and Mr Thompson Kimura were jointly tried before a judge of this Court and a jury on an indictment of one count of murder (with manslaughter as a statutory alternative) and an alternative count of armed robbery in company causing grievous bodily harm. On 20 May 2016, the jury returned a verdict of guilty of murder against each of the accused.
2. The victim was a 78-year-old man, Mr Alexander Kormilets (the deceased), whose unit was the subject of a home invasion early in the morning of 15 April 2013. The deceased was severely beaten in the face and chest by two men and he sustained a number of serious injuries. As a result, the deceased spent over four months in hospital before being released to a "high-level care facility" in August 2013. However, he was transferred back to hospital on 5 December 2013, where he died five days later on 10 December 2013.
3. The applicant does not dispute that the jury were entitled to find that he was one of the two men that perpetrated the assault. However, he contends that a miscarriage of justice occurred in the course of his trial, since "the Crown case on cause of death, as articulated in the Crown Prosecutor's closing address … encouraged a path of reasoning not properly open" to the jury.
4. In considering this issue, it is necessary to have close regard to the way the Crown put its case on the issue of causation at trial, both in its opening and closing addresses, as well as the extensive medical evidence concerning the deterioration in the deceased's health following the assault, the immediate circumstances surrounding his death on 10 December 2013 and the medical evidence which was led relating to the cause of his death during the course of the trial.

The Crown opening address

1. In her opening address, the Crown Prosecutor summarised the causation case in the following fashion: "The other central issue in this case is the causation or the cause of [the deceased's] death. Because as you might recall, he did not die for almost eight months. So you will hear about the cause of his health decline and in order to understand that, you will hear some evidence about his health before he was attacked. His son will tell you certain things, as a lay person would observe about his own father's health and Dr Aristoff who was the GP. [His son] will tell you about his general health and how he, generally speaking, the Crown would submit to you, that he looked after himself. He cooked and cleaned and got around and drove a car and just was perfectly capable of doing things in his life before he was attacked. Ladies and gentlemen, you will hear when [the deceased] was rushed to hospital on the morning he was assaulted, he had to have a tube put down his throat to assist with his breathing, that is called and you may know it perfectly well, it is called intubation. So he was intubated and that remained for a while. On 24 April, he had a tracheotomy of his throat, a hole made in his throat because of the difficulty that he had with breathing due to his injuries. He had suffered a number of chest injuries which they needed to place him, this time, at St Vincents Hospital although he remained there until 28 August 2013. On 4 June 2013 whilst at St Vincents he had to have a [PEG] appliance put into his abdomen for feeding because of the difficulty that he had and he was fed that way until he died on 10 December 2013. He could no longer feed in the normal fashion. And he suffered a number of setbacks in his health, respiratory failure on 5 July, going back into intensive care, stabilised and went back into the nursing home on 28 August, it was a high level care nursing home because [the deceased] had become doubly incontinent. He could not move without assistance and he had deteriorated mentally and he couldn't understand, respond to directions or prompts or he really just was very agitated which was noted a lot and he was very depressed. He had a series of falls and he had a fall which culminated on his removal back to hospital, Prince of Wales Hospital, on 5 December 2013. And at that hospital there, if not before, it was found that he had a fracture of the upper part of the femur. We call it a broken hip. A hip fracture. And his health declined very quickly and he died in Prince of Wales Hospital on his 79th birthday, I think on 10 December or it might be the day after, in 2013. Ladies and gentlemen, Dr Kendall Bailey performed a post mortem examination on [the deceased's] body the day after his death. She found that the cause of death were complications of an acute fractured neck of the left femur in a person with complications with subacute blood forced injury to the chest. Dr Bailey reviewed the medical records from the St Vincents Hospital and she observed certain degree of recovery in many of his injuries. His ribs had healed, for example, she could see that they recently had been fractured. A number of things had taken place in terms of improvement of health but the recovery was complicated by multiple lung infection being the complication of the chest injury and the prolonged intubation and ventilation helping with breathing and due to poor health as a result of the injuries, he had been deemed not for escalation of therapy and palliation if further treatment is required. So you'll hear that at some point, it was decided that if things really deteriorated there would not be much done to save [the deceased]. It was just going to be a case of relieving his pain as required. Dr Bailey observed that on 6 December 2013 that [the deceased] was admitted to Prince of Wales for the fracture and surgical treatment was not advised. The deceased was palliated until his death. So you'll hear that they didn't operate on him or put a pin on his leg or things like that, he just was given treatment for his pain and so on and he passed away."
2. Later on in her opening address, the Crown Prosecutor stated that "the other very important issue here" was what caused the deceased's death. She went on to make the following remarks: "And ultimately, I expect the Crown will submit to you that the cause of death was that there were several causes. The fracture of the leg and as you will hear the fact that emboli travelling from the site of that fracture and gets into [the deceased's] lungs, was the immediate cause of death. But the Crown will submit to you that the operating and substantial cause of death of [the deceased], was his very deteriorated physical state that he suffered as a result of having been beaten and in particular the damage that it had done to his lungs and his respiratory system. So her Honour will ultimately direct you, I expect, that there can be several causes of death. Often there is only one cause of death, but there can be several. And the Crown will be saying that a very substantial and still operating cause of [the deceased's] death was the fact that he suffered on 15 April 2013 which, whilst his ribs may have healed and a couple of things may have healed up, his general system and bodily health just never recovered from it and that is the reason that he died rapidly of a broken leg. I have gone away from the indictment because it is very, very hard to explain in a way on an afternoon that everyone is probably tired. But I will mention one other health aspect in relation to [the deceased] and that is that on the post mortem it was found that he had tumour on his left kidney which did not appear to have metastasised or spread to any organ or to the lymph nodes. But I expect that it will be suggested or submitted on behalf of both accused that there may have been a metastasis or it spread to the bones which made it easier for a fracture to take place even perhaps without a fall and that is what killed [the deceased]. But still the Crown would say to you that in other circumstances, the fracture would not have resulted so quickly in [the deceased's] death regardless of any of that and that a substantial and operating cause of his death was still the beating that he received just a little short of eight months before."

a Evidence of the deterioration in the deceased's condition from the time of the assault until his death

1. The deceased's son, Mr Dimitri Zitserman, gave evidence as to the deterioration in his father's condition. He said that, before the assault, his father had been an "absolutely normal man". He had cared for his wife until she died in 2012. He used to cook and drive a car, and had a normal social life. He did the cleaning, kept a clean house, and was a "neat person". He had no problem understanding or remembering things, was fit and liked to walk in Moore Park. He was able to drive easily from his home to Bondi, Coogee or Maroubra and he looked after his financial affairs himself. He never had a problem going to the toilet and he did not need a walking stick or frame.
2. Mr Zitserman said that, after the assault, he visited his father "almost every day" at St Vincent's Hospital. He said that, for the first month, "they put [the deceased] in a sleep, I don't know for what reason, it's a medical thing", and that, when the deceased woke up, he was just lying in bed most of the time. He said that his father sometimes understood him clearly, but other times seemed not to know him or be listening to him. He said that the deceased did recognise his son, daughter-in-law and granddaughter, but that there were other relatives whom he did not recognise. He said that he and his father spoke together, but that sometimes the deceased "didn't like it" and became angry.
3. Mr Zitserman said that the deceased was breathing normally after "a couple of months" and the tracheotomy tube was removed. Thereafter, he said that the deceased ate normally for about three weeks, but that he then started getting food into his lungs and so "PEG feeding" was commenced. He said that the deceased was incontinent and wearing a nappy, and that he could only move around in a wheelchair. He said that he was told by the hospital staff that the deceased had suffered a series of falls from his hospital bed since he would keep trying to get up all the time. He said that, whenever the deceased fell from his bed, the hospital would telephone him.
4. Mr Zitserman also gave the following evidence: "Q. I see. Did you ever have any discussion with the medical staff about what would happen with your father if he got worse, if his condition of health got worse? A. Yes. They talk to me, some doctors, and they said some possibility he can die. Q. When was that conversation? A. It was in nursing home with, I don't remember the doctor name, just few months before he passed away."
5. On his admission to hospital after the assault, the deceased was attended to by Dr Tamara Preda. A certificate prepared by her was read into evidence. It stated that the patient was suffering from "multiple traumatic injuries", including "subdural and subarachnoid haemorrhage, multiple bilateral rib fractures with haemo-pneumothorax, splenic laceration, right renal laceration, [and] facial fractures". She described the treatment required during his time at the hospital as "admission to the intensive care unit, reversal of anti-coagulation, embolisation of right kidney, right chest drain, intubation, respiratory support (prolonged ventilation dependence), tracheotomy, feeding by NG (nasogastric tube) initially graduating to [PEG] feeds; treatment for hospital acquired pneumonia, cognitive decline secondary to traumatic brain injury; prolonged stay in hospital and rehabilitation with eventual discharge to nursing home". She described the injuries as "severe traumatic life-threatening multi-system injuries". She said that, from the date of admission, the patient's condition improved and that he was discharged to a nursing home on 1 August 2013.
6. A further note from the records of St Vincent's Hospital was read into evidence: "Following the initial period of recovering from his acute injuries, there has been a prolonged period spent awaiting placement in a high level care nursing home. This period was complicated by an additional return to ICU after an episode of aspiration pneumonia four weeks prior to his discharge. He was intubated and ventilated several days and treated with IV antibiotics. He eventually returned to wards. Following discussion with Mr Kormilets' son, Dimitri it has been decided that if another similar episode were to occur that Alex would be (not for resuscitation and not for ICU/intubation). The NFR order has been signed and is official and can be found in the notes."
7. The fact that the deceased was in robust health prior to the assault was confirmed by Dr Alexander Aristoff, a general practitioner of whom the deceased was a regular patient. Dr Aristoff expressed the view that, before the assault, the deceased was a "very fit man" for a 78-year-old and his medical problems were "pretty well managed" by Dr Aristoff and the deceased's treating specialist. Dr Aristoff recalled him being "quite clear in his mind" and "fairly intelligent". He said that he was "physically very well built" for his age and was always driving his wife to a surgery in Bondi Junction. Dr Aristoff said that the deceased was under treatment for polycythaemia, which he characterised as involving "excessive production of red blood cells". However, Dr Aristoff considered that this did not pose any imminent danger to his health.
8. Dr Aristoff gave evidence that he saw the deceased at the Camelot Nursing Home on 15 August 2013. He stated that he was "shocked" to see the deceased's condition because "he appeared to me as a very sick man" and that the psychological changes that had occurred were especially concerning, since he had lost the ability to communicate properly, express himself and relate to people. He stated that the deceased's physical condition was also "very poor" because he had almost completely lost his ability to swallow. He stated that he understood this to be due to the "bilateral brain injuries" the deceased had sustained to the right and left brain hemispheres. He stated that this affected how he took food. A "PEG tube" was installed, which connected the outer abdominal wall to the inside of the stomach, so that the deceased could be fed "special food" and medication through the tube.
9. Dr Aristoff said that the deceased retained "some ability to understand what was actually spoken to him" but had "lost his ability to express himself completely". He noted physical changes, such as the loss of "a lot of weight" and muscle bulk, and that the deceased needed assistance to walk. However, he said that the "most important thing" was his loss of cognitive function and the signs of dementia.
10. Dr Aristoff also said that it came to his attention that the deceased had been transferred to the intensive care unit while he was still at St Vincent's Hospital due to "life threatening complications". He said that this indicated to him the "seriousness of [the deceased's] medical condition at the time".
11. Dr Aristoff accepted that, at the autopsy, it was observed that the deceased had a tumour in his left kidney which was about 6 centimetres large and "probably malignant". He said that the deceased did not exhibit any clinical signs of renal tumour when he was examined for a urological procedure in 2006 or 2007. However, he noted that, once the deceased was admitted to the hospital, he had "lost his ability to relate his symptoms and complaints to us".
12. Ms Deborah McKern, a registered nurse, gave evidence in her capacity as the "executive care manager" at the Camelot Nursing Home where the deceased was a permanent resident from 28 August 2013 to 5 December 2013. She agreed that the nursing home was a "high level facility" which provided care to elderly patients with "a high complexity of clinical conditions" requiring "extensive physical and clinical support in all aspects of daily living".
13. Ms McKern gave evidence concerning the bed which the deceased occupied while he resided at the nursing home. She described the bed as "a low low bed" which could be lowered to only 5 centimetres above the ground. She stated that a patient would always be given such a bed if they did not have good mobility and were "at risk of personal damage by trying to get out of bed unsupervised". She stated that a fall from a bed would be classified as an incident requiring a report and potentially an investigation.
14. Ms McKern explained that "PEG feeding" was required where "someone's ability to swallow food properly has been impaired" and there was "a risk of the food going into their lungs and not into their stomach". She stated that the most common cause of this impaired swallowing was an acquired brain injury that affected the neurological pathways to swallowing.
15. Ms McKern also gave evidence about aged care funding instruments (ACFIs), which she stated comprised "a series of assessments that generate a picture of the care that each individual person needs to receive to maximise their independence and quality of life". The ACFI in respect of the deceased was tendered at the hearing through Ms McKern (Exhibit AC). The ACFI noted that the deceased was given an "A" rating for nutrition, by reason of the "PEG tube", an "A" rating for wandering, since he was not able to walk around the nursing home unassisted, and a "B" rating for depression. His mobility assessment described him as "semi-ambulant" with a "slow" and "shuffled" gait, "stooped" posture and "poor dynamic balance". It stated that he required supervision while seated, and required the assistance of two staff members and a "pelican belt" to stand for more than 30 seconds. He was assessed to require the aid of a "gutter frame" for walking, as well as being physically guided. He required the assistance of two staff members to move between his bed and a chair or wheelchair. Further, his physical behaviour assessment noted the deceased to be "constantly physically agitated".
16. Several further documents were also tendered through Ms McKern (Exhibit AD). A document in Exhibit AD entitled "Note Report" prepared by Ms Krystal Hawkins, a social worker, indicated that, on 28 August 2013, the deceased required the assistance of another person to mobilise and was a "high fall risk". He was described as "upset" by his incontinence. His determination was noted as a strength. It was also noted that his medical diagnosis included an acquired brain injury and facial fractures from an assault.
17. Another document in Exhibit AD entitled "Care Plan" noted that the deceased had had four to six falls within the preceding 12 months. It noted that he would attempt to get up from a bed or chair and walk to another area unaided and lacked understanding for his personal safety. It also noted that he was "unable to physically undertake any daily living activities", or to "mentally comprehend" them.
18. Another document in Exhibit AD entitled "Incident Form Resident" recorded a fall by the deceased at 6:31pm on 30 November 2013 caused by the deceased getting out of a chair unassisted. Exhibit AD also included other notes in the "Note Report" which detailed several other falls, including falls on 24 September 2013, 18 October 2013 and 5 December 2013.
19. The note for 5 December 2013 recorded that the deceased was found on the floor next to his bed "facing downwards and moaning". It recorded that he was assisted by three staff to get back into his bed and that he was reluctant to bear his own weight, which was said to have been something which had become evident since his last fall. It stated that there was no expression of pain. That note had a timestamp of 1:55pm.
20. However, at 4:00pm on the same day, a further note recorded that the deceased "looked u[n]well" and nodded his head in response to being asked about dizziness. A final note at 9:36pm stated "Resident c/o dizziness 1530hrs. This evening at 2030hrs, decline in condition, tremors, chesty, cough. Denied any pain, SOB, head[a]ches … LMO notified of transferring to hospital and Son informed tonight. Son wished for transfer to St Vincents hospital. Reviewed by paramedics and suggested for transfer to POWH ED." It seems that "POWH" referred to Prince of Wales Hospital.
21. A document entitled "Transfer Form" dated 5 December 2013 noted the main reason for the transfer as "Resident condition gradually declining" with the following additional information: "Male 78yo, unwell past four days, started with painful knee. Noted leaning more on his right side, facial drop 1/7 ago. Had rolled out of a Lo Lo bed today 1340hrs, found face down. Resident c/o dizziness 1530hrs. This evening at 2030hrs, decline in condition, tremors, chesty, cough. Denied any pain, SOB, headaches".
22. The deceased remained in Prince of Wales Hospital from 5 December 2013 until the date of his death on 10 December 2013. At the hearing of this appeal, the parties agreed that the order in which the handwritten clinical notes surrounding his admission and subsequent death (Exhibit AG) were to be read was the order in which they were annexed to the Crown's submissions. The first page of the notes contained a statement dated 6 December 2013 which was apparently written by "Cohen - ortho". The applicant transcribed this note in his written submissions as follows: "Thanks for consult. 78 yo [male] pw 2/7 of L hip pain following fall @ NH admitted c. aspiration pneumonia XRAY displaced subcapital NOF # Will require surgical intervention once stabilised medically D/Q Dr (??) (?) close to review. Not for OT this weekend."
23. On pages 2 and 3 of the notes, the following handwritten comments were made. They are undated, but having regard to the dates which appear on the subsequent pages, were presumably made on 6 December 2013: "(5) Decision re palliative v operative - wife's number disconnected → actually deceased - got a hold of son, Dimitry. Feels pt deteriorated significantly since Aug. Agrees c. previous discussions documented by St Vincent's that pt is not for invasive Rx but for a trial of poabs. I updated him on the # NOF, possible IC blood / stroke + rapid AF + possible aspiration sepsis. Furthermore he may very well have an underlying malignancy c. bone metastases (+/- this NOF being a pathological #). Dimitry agreed pt should be for comfort care. Would still like poabs via PEG. Agreed not for IV fluids. Agreed for prn morphine, midaz + hyoscine. Agreed for non-surgical Rx. Plan, - Cease non essential meds - poabs via PEG - Cease IVF - Oral + PAC. - Happy to speak to son when he comes in. In the event of expiration, death cert should read: Part (1) a - Aspiration sepsis (days) b - Fractured neck of femur (days) Part (2) Traumatic brain injury, frailty, atrial fibrillation, recurrent aspiration pneumonia."
24. The death certificate was signed by Dr Elyse Fyfe (Exhibit AF). It recorded that the deceased was declared to be dead on 10 December 2013, with the cause of death being described in Part 1 of the certificate as "(a) Aspiration sepsis (b) fractured neck of femur" with "traumatic brain injury, frailty, atrial fibrillation, recurrent aspiration pneumonia" being listed in Part 2 of the certificate as "significant conditions contributing to the death, but not related to the disease or conditions causing it".

b The autopsy

1. The autopsy was performed by Dr Kendall Bailey, a "staff specialist forensic pathologist". Dr Bailey explained some of the terms used in the reports of Dr Preda and Dr Fyfe to which I have referred at [11] and [30] above. I have summarised the evidence given by Dr Bailey in relation to Dr Preda's report as follows:

• "Subdural and subarachnoid haemorrhage" referred to the presence of haemorrhage on two different layers of tissue surrounding the brain.
• "Multiple bilateral rib fractures" referred to "fractures on both sides of the rib cage".
• "Haemo-pneumothorax" referred to the presence of "blood and air between the lungs and the ribs".
• "Splenic laceration" referred to a "tear in the surface of [the] spleen".
• "Reversal of anti-coagulation" referred to the fact that the deceased had been on blood-thinning medication, and that the effects of the medication needed to be reversed to reduce the amount of bleeding.
• "Embolisation" referred to a procedure where "you introduce something into [a] blood vessel for the flow of blood to carry it to the end", for example, in the case of a tumour or bleeding, an object could float to the tumour and stop the blood supply to that area and help kill it off, or could float to the end of a blood vessel and stop the bleeding.
• A "chest drain" involves "putting a big tube into the chest cavity" to allow the air, blood or other fluid accumulation between the lungs and the chest to drain out of that space, and to allow the lungs to reinflate.
• "Intubation" referred to placing a tube down the windpipe, and "ventilation" referred to the "mechanical forcing of air into the lungs".
• "Feeding by nasogastric tube" referred to feeding by allowing liquid food to pass down a tube fed through the nose down the back of the throat into the stomach.
• "PEG feeding" referred to a method for allowing food to be put straight into the stomach by means of a tube placed through the abdomen wall into the stomach.
• "Hospital acquired pneumonia" was said to be a broad term covering lung infections that people commonly get in hospital where there are a lot of sick people and different bacteria, and which might not be a type of pneumonia usually caught in the community.
• "Cognitive decline" referred to a decline in brain function. Dr Bailey interpreted Dr Preda's report as "co-relating [the deceased's] decline in brain function to occurring after the brain injury". In other words, the cognitive decline was a result of the trauma to the brain.
• "Multisystem injury" was a broad term which referred to "injuries that are occurring in lots of different organ systems".

1. Dr Bailey explained the terms used in the death certificate as follows:

• "Aspiration pneumonia" and "aspiration sepsis" referred to a condition in a person who has difficulty breathing or swallowing where bacteria growing around food remnants or nasal secretions in the mouth are inhaled into the lungs and cause pneumonia, before then spreading to the blood and causing sepsis. Thus, the reference to "aspiration sepsis" on the death certificate indicated that the deceased was suffering from a bacterial infection in the blood caused by recurrent breathing in of secretions in his nose and mouth.
• "Fractured neck of the femur" referred to a fracture of the top of the femur, which is the "large bone of the thigh". Dr Bailey said that this was "a relatively common injury" in elderly people who fall, and required surgical treatment.
• "Atrial fibrillation" referred to an abnormal heartbeat, which could increase the risk of getting thrombus or a blood clot forming in the heart. Dr Bailey said that this was one of the reasons that the deceased was on blood-thinning medication.

1. Dr Bailey performed the autopsy on 11 December 2013 and formed an opinion as to the cause of death of the deceased which differed from that recorded by Dr Fyfe. In the autopsy report, Dr Bailey made the finding that the "clinical cause [of death] appears to be one of respiratory failure, secondary to blunt force injury of the chest due to prolonged ventilation and ongoing respiratory infections. Fat emboli to the lungs arising from the bon[e] injury, hip fracture, will compound pre-existing respiratory failure".
2. Dr Bailey did not find anything to support aspiration pneumonia or aspiration sepsis during the autopsy, but rather, described findings of congestion and oedema in the lungs, which suggested to her the presence of infection. She also described "relatively certain" findings of "widespread fat emboli in the lungs" from a microscopic examination of lung tissue. She explained that "fat emboli" in blood vessels were "fat droplets that get pushed along by the blood flow".
3. Dr Bailey suggested that the presence of fat emboli was caused by the exposure of bone marrow to the blood vessels as a result of the fractured neck of the femur of the deceased. She explained that bones contain marrow with "very high fat content", and that, when bones break or fracture, the "marrow cavity" in the bone opens to the surrounding blood vessels and allows "little bits of fat to go into the blood stream and float around in the blood stream and come to rest in the lungs". She said that, where there are many fat emboli in the smaller blood vessels in the "thin walls of the air sacs" of the lungs, they "get stuck" and "you can't oxygenate your blood anymore". In cross-examination, she agreed that, if fat emboli in the lungs were numerous enough on their own, then they could bring about "respiratory problems and death". She also agreed that the fat emboli were "certainly numerous" in the case of the deceased.
4. Dr Bailey also said that she found evidence of "healed rib fractures" and of "healing bleeds" in the "subdural and subarachnoid" areas of the deceased's brain. She found no evidence of injury to the kidney or spleen.
5. Dr Bailey also found a 6 centimetre tumour at the "lower pole of the left kidney" with no evidence of metastasis or the spread of cancer. She said that it was "quite large", but that there were no other tumours on other organs or surrounding tissue and no enlargement of the lymph nodes next to the kidney, which suggested that there had been no spread. While Dr Bailey was initially not sure whether the tumour was cancerous at the time of the autopsy, it was not in dispute by the time of the trial that it was.
6. In cross-examination, Dr Bailey agreed that, as at 5 and 6 December 2013, the deceased was a "very unwell person" with cancer of the left kidney, high blood pressure, polycythaemia, atrial fibrillation and severe coronary atherosclerosis. She stated that, at the time she performed the autopsy, she was not aware of the fracture being a "pathological fracture", which was a fracture resulting from "low trauma" and weakness in the bone caused by the spread of cancer from elsewhere in the body, as opposed to a "traumatic fracture", which was a fracture resulting only from external trauma. Dr Bailey said that she would have sampled the bone to test for a pathological fracture if she had been aware of any indication of it, and that she could not confirm or deny the prospect that the fracture was in fact "pathological". She had also accepted in her evidence in chief that osteoporosis could increase the risk of fractures and that the deceased's reduced movement would have likely caused "some degree" of osteoporosis.

(i) Dr Geoffrey Watson

1. Dr Watson was a specialist histopathologist. He said that he had been provided by Dr Bailey with "macroscopic photographs" and "histological glass slides" of the tumour on the deceased's kidney that she had identified during the autopsy. He described the tumour as a "mucinous tubular and spindle cell carcinoma", which he explained was an "indolent" or "lower grade" type of tumour, unless it "dedifferentiates" into a different grade.
2. Dr Watson gave evidence that the tumour in question had shown "an area where it has undergone dedifferentiation to a higher grade tumour", explaining that "higher grade" meant "aggressive". He said that the tumour had the potential to metastasise, but that it could not be seen whether it had from the observations which had been made, acknowledging that nothing was seen by Dr Bailey in the vein, adjacent lymph nodes, or lung.
3. Dr Watson stated that most renal tumours spread by "invasion of the renal vein", and that the general order of frequency for metastasis was "lung, bone, brain, liver" from highest to lowest. He stated that the absence of the finding of evidence of carcinoma in the renal vein did not mean that metastasis in the left femur could be "fully excluded", although it made it "less likely". He said that the absence of a finding by Dr Bailey of metastasis in the lung did not mean that it had not happened but that it was "less likely".

(ii) Professor Richard Fox

1. Professor Fox was an oncologist who gave evidence of assessing the deceased's case based on his medical history, x-rays taken while he was still alive, and the autopsy. He stated that he had been advised that there was a question about metastases which may have contributed to the cause of the fractured neck of the left femur in the deceased. In this respect, he noted that he had considered the findings of Dr Bailey including her identification of the tumour, her identification of fat emboli in the lungs, and her opinion regarding the cause of death.
2. Professor Fox also said that he had viewed the x-ray of the deceased's fractured left femur taken before his death. He said that metastasis in the bone was often visible in x-rays as "an area of bone thinning or a discrete hole" and that he could not see any sign of these in the x-ray of the deceased's fractured left femur. In cross-examination, he agreed that he could not exclude the possibility that there was metastasis in the bone and that the fracture was a "pathological" one caused by metastasis, although he said that the absence of any reference in the radiological report to evidence of metastasis on the x-ray of the deceased made this "unlikely".
3. Professor Fox gave evidence that, if he had a patient of the deceased's age found to have a carcinoma of this type who sustained a fracture of the neck of the femur, then he would refer the patient to an orthopaedic surgeon for pinning. He agreed that "an otherwise healthy person with a fractured neck of femur would have surgical treatment and recover". Ultimately, he said that it was not his view that the deceased had died from the tumour on his kidney and its sequelae.

(iii) Professor Stephen Cordner

1. Professor Cordner was a forensic pathologist called in the case of the applicant's co-accused. He confirmed that the death certificate was wrong in stating that the cause of death was aspiration sepsis, and gave similar evidence to Dr Bailey about embolism mimicking the symptoms of aspiration sepsis. He also said that people could die from fat embolism on its own or in combination with other illnesses.
2. Professor Cordner explained that bones "ordinarily don't break by themselves", but that, if a bone is diseased because of cancer which has spread from another part of the body, then it may "fracture by itself or fracture with much less force than required to ordinarily cause a fracture". He said that this was known as a "pathological fracture". He accepted that the x-ray of the deceased's fractured femur reduced the possibility of a pathological fracture to some extent, but did not exclude the possibility of metastasis in the bone and a resulting pathological fracture. In cross-examination, he described metastasis in the bone as "unlikely", although it was still a "reasonable possibility", not in the sense that "everything is possible", but a "possibility that I can easily conceive of and I think should be taken into account".
3. In cross-examination, Professor Cordner stated that the usual sequence of the metastasis of a kidney tumour was to "preferentially spread to lung and also bone". He also referred to metastasis in the bone occurring through the lymph node and the prospect of not seeing metastasis in the lung despite metastasis in the bone. He said that the absence of evidence of a "large heavy fall" raised the possibility of a pathological fracture, and that the presence of visible "osseous deposits" indicated the possibility of metastasis in those areas.
4. In his evidence in chief, Professor Cordner described each of the deceased's disabilities as playing some part in his death "to an unknown extent", although it was the "respiratory problems" caused by the fracture which precipitated death. In cross-examination, he agreed that the bone fracture was the "last thing in [the deceased's] life that wasn't dealt with and [the deceased] died because it wasn't pinned or the hip wasn't replaced". He also agreed that "not to pin or surgically treat a fractured femur" in a 78-year-old man would "probably be fatal" and that such a person's capacity to survive the fractured femur and the consequential fat emboli in the lungs at that age would depend on how "substantial" the concentration of fat emboli in the lungs was. He stated that it "seems to have been substantial in this case". He also did not agree with the proposition that, for someone with the severe level of coronary atherosclerosis suffered by the deceased, the ordinary procedure would be to operate on them for a fractured femur.

The Crown closing address

1. The closing address for the Crown first addressed causation by describing the Crown case as one where an "extremely serious robbery" and "extremely serious assault" was the cause of death. In that context, the following remarks were made: "It's almost too simple to say, but obviously - even if [the deceased] had a cancer of the kidney, even if it had started to cause him fractures, the fractures are still going to be set by doctors until something else kills him or until that kidney cancer goes all through his body if such a thing is possible. I'll be taking you to Dr Fox's evidence, an oncologist, and he says no he didn't think for a moment that kidney cancer was the cause of [the deceased's] death, even with the [sequelae] of the broken leg. Of course it wasn't. Because of the injuries that he had suffered, a decision had been taken months earlier that if anything, his quality of life was so poor from this very day, from 15 April 2013, that there was to be no more major interventions because certain things were never going to improve."
2. The Crown also made the following remarks regarding the condition of the deceased prior to his death: "He was agitated, he couldn't communicate, you get the impression, and that made him a fall risk but this is all because of what happened to him on 15 April 2013, you might think, ladies and gentlemen; well, not perhaps all because, but substantially because of that, substantially because of that, not because of some obscure tumour, some very unusual tumour that was found upon post mortem, which has given us a lot of medical training and knowledge in this trial, extraordinarily."
3. The applicant accepted that the Crown closing address "acknowledged that the issue of whether the assault accompanying the robbery was a substantial and operating cause of death was an issue in the trial". However, the applicant complained about the emphasis given by the Crown to the evidence, principally given by Mr Zitserman, regarding the abilities of the deceased prior to the robbery compared with his state afterwards and to his loss of enjoyment and quality of life. The applicant submitted that the closing address identified this evidence as bearing on the cause of death.
4. The applicant noted that there was also a detailed reference in the closing address to Dr Aristoff's evidence regarding the decline in the condition of the deceased which he observed on 15 August 2013, and in particular, his concern regarding the deceased's psychological and cognitive decline and loss of ability to swallow. The applicant also referred to what was said in the closing address in relation to the evidence of Dr Bailey. The relevant part of the address was in the following terms: "… Dr Bailey was the forensic pathologist who did the post mortem and she described about the lungs and so forth. Her view was that it was the fat emboli from the bone marrow from the fracture and so forth and that's all very true, you might think, ladies and gentlemen, the fractured neck of the femur, but as she said it's a relatively common injury from people that fall, especially elderly people, and requires surgical treatment … but in this case, ladies and gentlemen, it had been decided that there wouldn't be such intervention because, not because of the tumour on the kidney, but because of his terrible state in every other way. His cognitive decline, the fact that he was incontinent of urine and faeces and he had all of these, he had the PEG tubing and he was just in a very debilitated, completely debilitated state mentally and physically after what had happened to him on 15 April. I won't go through all of that evidence, because you've heard it, but we did hear about the brain injuries and the injuries particularly attributable to this assault so that even in December at the time of the post mortem there were still, there was evidence of the brain bleeding and bruising and contusions that had been inflicted back in April even if there was some apparent healing, but healing as we've heard doesn't mean that people's cognitive function returns, it's a physical repair as a physical healing rather than to healing to the cognitive function, you might think. We heard about the fractures, the multiple fractures to ribs and the problems that caused with breathing, and you heard about the respiratory failure that [the deceased] suffered on at least one occasion, perhaps more, to necessitate his return to ICU when he was still at St Vincent's Hospital. Dr Bailey suggested at post-mortem, having seen, when the idea of a possible pathological fracture was raised she said 'I have since suggested that on the radiology that was taken … that can be reviewed … metastasis or the weak spot' and of course as we know that then took place and the radiologist who looked at the fracture in Prince of Wales Hospital said he could see no metastasis and so the Crown says to you that it's very unlikely, extremely unlikely, but in any event even if you were to find that you think that everyone missed, the radiologist missed the metastasis and the bones were weak, even if you find that the Crown submits to you, well, taking out the assault in April if this was just, if that was a man with kidney carcinoma that had metastasised then they'd still set the leg and he'd be sent home to recover from that and to go about his business for the years that he had left, but because of what happened to him on 15 April really he had no quality of life and that's why there was just no, there was the decision taken, there would be no surgery, there would be palliative care, care to relieve his pain and allow the fat emboli or aspiration sepsis or whatever they thought was going on in his lungs to take him out, if one may say so with the greatest respect to the gentleman."
5. In his written submissions, the applicant also referred to the following remarks made by the Crown after summarising the evidence of Dr Watson, Professor Fox and Professor Cordner: "… but again I say to you he might have died because he got a broken leg, that might be the immediate cause, but the reason it wasn't treated as it would have been even if he was riddled with cancer, you might think, is because of what happened to him on 15 April."
6. No objection was taken to either of these portions of the closing address at trial, where the issue of causation was primarily addressed in closing by senior counsel for the applicant's co-accused. At the hearing of this appeal, the Crown made particular reference to the following portion of the closing address of senior counsel for the co-accused at trial: "Another issue I should go to probably straight at the outset is you might recall the Crown going to this issue of the repinning, if I could put it, of the fracture, and not clear what the Crown was suggesting here, but you might recall Dr Bailey said words to the effect, and I think it came out in the evidence of Professor Fox to some extent, and she said this, 'if not for the initial injuries and associated complications a fracture of the femur if appropriately treated and repinned is considered as a [survivable] injury in an otherwise healthy person of similar age'. Well, there's no, we don't take issue with the that. The problem with that is that [the deceased] wasn't an otherwise healthy person, and perhaps I should go to the evidence in relation to that and that's Dr Bailey's evidence. … this is the situation, the doctor is being referred to the quotation I've just read out to you and these questions are put to her, this is me asking Dr Bailey a question: 'Q. Please listen to the question. As at the time that they were considering repairing possibly the fractured hip, that is 5 or 6 December 2013 we know or you know? A. Yes Q. We all know now that he had cancer of the left kidney? A. Yes Q. Right. We know he had high blood pressure? A. Yes Q. We know he had polycythemia? A. Yes Q. Which is a serious blood disorder? A. You would have to speak to a haematologist about the seriousness of it. Q. He had [atrial] fibrillation? A. Yes Q. That is an irregular heartbeat? A. Yes Q. And at postmortem, some five or six days after he was being considered for a hip replacement, it was found he had severe coronary [atherosclerosis]? A. Yes Q. So severe that he had 75 per cent stenosis of the left anterior descending coronary artery? A. Yes he had focally severe atherosclerosis coronary artery disease.' And it goes on, so on this issue of repairing the hip and Dr Bailey saying, well, people of that age, healthy people of that age would, if the operation was carried out would normally recover reasonably well, but the problem with [the deceased] was that he wasn't a healthy person. Not only did he have the ongoing problems as a result of the assault, he also had these other problems, so again, that quotation that I read out to you really isn't applicable to this situation. It wasn't a situation where he was a healthy man, so we really don't know what considerations went into the doctors' not repinning him, if I could put it that way. … Now, the live issue here is, no one disputes, the learned Crown doesn't dispute it, my learned friend's raised it, is whether the left hip was cancerous which caused the fracture."

The trial judge's summing-up

1. In his written submissions, the applicant accepted that the trial judge correctly directed the jury on the legal test of causation. The applicant noted that the trial judge "described the variations in the expert evidence, and suggested that the principal matter in dispute was the significance of the renal cancer and whether it could have caused the fracture". However, there are a number of matters in the trial judge's summing-up which are relevant to the issues on the appeal.
2. The trial judge directed the jury that the question of whether the acts of the applicant and his co-accused caused the death of the deceased was a question for them to decide, and that the Crown bore the onus of establishing this beyond reasonable doubt. She explained that the acts of the applicant and his co-accused must have "substantially" or "significantly contributed to" the death of the deceased and that the jury should approach the question bearing in mind that they were "considering criminal responsibility for homicide, the most serious offence known in the law", taking into account the evidence of the deceased's injuries, the evidence of the deceased's condition before and after the assault and the evidence of the experts. She pointed out that, in determining the question, it was necessary for them to bear in mind that the deceased had more than one medical condition at the time of death.
3. Before summarising the medical evidence, the trial judge stated that the principal matter in dispute was "whether or not it is possible that the cause of the fracture that precipitated [the deceased's] death was a metastasis of a renal cell carcinoma, that is, whether the fracture could be a pathological fracture caused by a metastatic kidney cancer". In that context, she described the medical evidence as being relevant to the issue of the cause of death, and in particular, whether the fracture could be a "pathological" fracture rather than a "traumatic" fracture.
4. The trial judge explained to the jury that they did not have to accept the evidence of each expert, but that they were entitled to bring their own common sense to bear on the issue. However, she emphasised that they must keep in mind that the onus remained on the Crown to prove beyond reasonable doubt that the acts of the applicant and his co-accused caused the death of the deceased.
5. After recounting the medical evidence, the trial judge summarised the Crown case on this issue. In particular, she noted that the Crown referred to the statement by Professor Cordner that the cause of death was "complications of a fractured neck of femur in a man with carcinoma of the kidney and debilities following an assault". She noted that there was evidence that "debility" was "a general word to cover a range of disabilities and infirmities consequent upon head injuries". In that context, she told the jury that the Crown had suggested that Professor Cordner "would put that as part of the cause of death".
6. The trial judge also summarised the closing address of senior counsel for the applicant's co-accused on the question of causation. She noted that he had stated that it was a "reasonable possibility" that the fracture was a pathological fracture caused by the metastasis of the kidney cancer, so that the Crown had not proved beyond reasonable doubt that the fracture was not a pathological fracture.
7. The trial judge noted that senior counsel for the applicant's co-accused emphasised that the deceased did not die of aspiration sepsis. She told the jury that it was "not in issue that the direct cause of [the deceased's] death was the respiratory distress caused by fat emboli travelling to small vessels in the lungs which was in turn caused by fracture of the neck of the femur".
8. The trial judge also told the jury that senior counsel for the applicant's co-accused had "no issue with the evidence to the effect that a fractured neck of femur is a survivable injury in a healthy person of [the deceased's] age, but he submitted [the deceased] was not otherwise a healthy person" and that, given the possibility of a pathological fracture not being excluded, it was not possible to conclude beyond reasonable doubt that the ongoing injuries from the assault were an "operating and substantial" cause of death.

a The applicant

1. Senior counsel for the applicant submitted that the Crown in effect misrepresented the case by effectively stating that the decision not to operate on the deceased's fracture was "instrumental" to the death of the deceased and that the decision was made because of the deceased's "disabilities of incontinence, cognitive decline, a requirement for nourishment by percutaneous epigastric tube and inability to walk unassisted". She submitted that the implicit assumption that underpinned these propositions was that "had surgery been undertaken [the deceased] would have survived or alternatively that he would have lived but for those ongoing disabilities that the Crown was relying upon which had no doubt been caused by the April 2013 assault".
2. Senior counsel for the applicant submitted that the deceased did not die as a result of those disabilities referred to by the Crown. She submitted that there was no direct evidence as to the reason for the decision not to operate. She submitted that Dr Bailey's evidence was that she did not know why this decision was taken and that Mr Zitserman was not asked anything about it.
3. Senior counsel for the applicant submitted that the Crown relied in its opening address on a "legitimate, although difficult" case. She said that the case as opened was based on evidence ultimately given by Dr Bailey that the cause of death was "respiratory failure secondary to blunt force injury of the chest due to prolonged ventilation and ongoing respiratory infections". She also noted that Dr Bailey said that fat emboli to the lungs arising from the fracture would "compound pre-existing respiratory failure", as I have extracted at [33] above.
4. Senior counsel for the applicant submitted that the only evidence available on the decision not to operate was the notes which were contained in Exhibit AG, which I have referred to at [28]-[29] above. She submitted that Mr Zitserman was not asked to explain what he had meant when he was recorded in one of the notes as saying that his father's condition had "deteriorated significantly". By contrast, she submitted that there was "evidence of improvement" from the injuries suffered as a result of the assault but that "there was left unexplained by the evidence a very large number of serious health consequences", which on their face had "nothing to do at all with the assault". She submitted that the evidence established that the deceased has polycythaemia before the assault, although it was well-managed, and that there was no suggestion in the evidence that the coronary atherosclerosis or the kidney tumour had been "caused in any way by the assault". She submitted that Exhibit AG showed that these health problems were taken into account in the decision not to operate.
5. Senior counsel for the applicant also submitted that there was "no evidence that the disabilities that were relied upon and pressed by the Crown … were never going to improve". She submitted that there was only evidence of improvement from the "particular problems" arising from the assault. She also submitted that there was "no evidence indicating that [the deceased] would likely have survived [an operation] … so long as not burdened with the disabilities from the assault".
6. So far as the question of the deceased's falls were concerned, senior counsel for the applicant referred to the "Note Report" from the nursing home contained in Exhibit AD relating to the events of 5 December 2013, which stated that the deceased was "found on the floor next to his bed" with "nil injuries present" and "no expression of pain", although he was noted to be "reluctant to weight bear which is evident since last fall". She also noted that, from the evidence given by Professor Fox about the triage notes on the deceased's admission to Prince of Wales Hospital, where the fracture was discovered, it appeared that the deceased was admitted after "a few days of fever, short of breath, suffering from post-traumatic brain injury six months ago, could respond to yes and no questions, had a tachycardia" (which was described as "a fast heart rate"). It should be noted that the notes as summarised by Professor Fox also stated that the deceased was "assessed for mobility and was scored as a high falls risk", requiring "assistance by one person getting him to bed and by two people getting him from a bed to a chair".
7. After referring to the triage notes, senior counsel for the applicant submitted that, although the Crown took issue with the question of whether the fracture was "pathological", it was not suggested "in any way by the Crown to be linked with any particular incident, that was then said in any way to sheet home causation back to the April assault".
8. Senior counsel for the applicant submitted that the obligation on the Crown in its opening address was "not merely to outline the facts, but is also to indicate in conceptual terms the nature of the Crown case for the assistance of the judge, the parties and the jury". She submitted that the changes which were made to the Crown case during the trial had the effect of "obscuring a difficulty" in it. She submitted that the Crown's decision to "no longer pursue the evidence" that death resulted from "vulnerable lungs from the assault and from prolonged ventilation manifested itself in the changed Crown theory which had the effect of obscuring the difficulty in the Crown case".
9. However, senior counsel for the applicant stated that she had not raised a ground of appeal which complained of a miscarriage of justice because of the Crown changing its case. Rather, she indicated that the revised Crown case was not based on the evidence. She submitted that there was no evidence to establish that "the combination of proved ongoing consequences from an assault, in combination with other unrelated health conditions, could give rise to a finding by doctors that surgery would not be sustained". She stated that her complaint was not about procedural prejudice resulting from the change in the Crown case, but that the revised case was not based on the evidence.
10. Senior counsel for the applicant also submitted that putting the case in this fashion meant that a case was presented based on evidence "which gave rise to a very high level of emotion and sympathy". She accepted that it would not have been unfair had there been a proper basis for such a case, but where there was not, it simply added to the "real risk of a miscarriage of justice in this particular case".

b The Crown

1. The Crown submitted that the issue of the decision not to operate on the fracture was first raised by the Crown at the trial in its opening address in the context of the evidence expected to be led from Dr Bailey, which the Crown Prosecutor referred to as including a review of medical evidence which showed that, while there was some improvement in the deceased's health, there was also a reference to ongoing poor health as a result of the injury and a decision being made in relation to palliative care if further treatment was required. I have extracted the relevant portion of the opening address at [5] above.
2. The Crown then referred to the evidence which was relevant to the issues raised in its opening address. The Crown first referred to the evidence of Mr Zitserman concerning the deterioration in the condition of the deceased following the assault. I have summarised this evidence at [7]-[10] above. The Crown drew particular attention to the evidence to which I have referred at [10] above.
3. The Crown then referred to the evidence of Dr Bailey that her interpretation of the notes contained in Exhibit AG was that the deceased was "deemed not fit" for surgical intervention, to which I have referred at [39] above, and to the other evidence to which I have referred at [40] above. She noted that, in the first question set out in the latter paragraph, the scenario put to Dr Bailey expressly referred to a kidney tumour, and that there was an objection to the second question concerning the decision not to operate on the deceased's fracture.
4. The Crown noted that, in response to the objection, the Crown Prosecutor had pointed out that all of the notes from the hospital contained in Exhibit AG had already been brought into evidence. The Crown then pointed out that the issue being discussed was whether Dr Bailey could be asked whether she could see from the hospital records why there was no surgical intervention. During the course of this discussion, the Crown Prosecutor had indicated that the evidence intended to be led from Dr Bailey was that the decision was made "not to surgically to intervene in this because there had already been a decision made that there would be no surgery if anything arose that required it because of [the deceased's] frailty and lack of functioning".
5. The Crown then referred to the note from the records of St Vincent's Hospital which I have set out at [12] above, which referred to a decision having been made that, if another episode of aspiration pneumonia occurred, then the deceased be "not for resuscitation" and that a certificate to that effect had been signed. The Crown submitted that this note showed that the decision to not surgically intervene was made prior to the transfer of the deceased to the nursing home and prior to his later transfer to Prince of Wales Hospital, without any issue with respect to the fracture and without any reference to the other medical issues which were later identified.
6. The Crown submitted that, in those circumstances, it was open to infer from the Prince of Wales Hospital notes contained in Exhibit AG that the decision of Mr Zitserman at this point was made as a consequence of the injuries which the deceased had sustained and the decline in his quality of life. The Crown referred to what was described as the "key entry" in the notes from Prince of Wales Hospital contained in Exhibit AG, being the recording of the "decision to proceed not surgically but by way of comfort care". The Crown pointed out that the entry on the first page of the notes recorded a consultation with an "ortho" and referred to the deceased being admitted for "aspiration pneumonia", and that paragraph 5 of the note referred to "possible aspiration sepsis", being a similar condition to that referred to in the St Vincent's Hospital notes.
7. The Crown submitted that this evidence gave rise to the issue of whether the inference was available that Mr Zitserman's decision not to proceed by way of surgical intervention was "based on the quality of life that was actually being endured by [the deceased] at that time, as well as the serious injuries that [the deceased] had sustained from the assault but continued to exist". The Crown submitted that this was the basis on which the Crown Prosecutor addressed the jury in closing.
8. The Crown accepted that one of the ways in which the Crown case was put in the closing address was based on the decision not to have the surgery, but did not accept that this was the only basis. The Crown submitted that the statement by the Crown Prosecutor to which I have referred at [54] above addressed the fact that the deceased was at risk of falls as a consequence of the injuries. The Crown stated that this was supported by the documents from the nursing home contained in Exhibit AD to which I have referred at [22]-[27] above, and the evidence of Ms McKern which I have set out at [18]-[21] above. In those circumstances, the Crown submitted that the case was left to the jury on the basis that the fracture was not "pathological" and did relate to the earlier injury, and that the jury were entitled to conclude that the injury was not actually a pathological fracture.
9. In summary, the Crown submitted that the principal manner in which its case was put was whether the kidney tumour had "anything to do" with the fracture and that there was enough evidence to find beyond reasonable doubt that it did not. The Crown submitted that its alternative case was that, whatever was the cause of the fracture, there was still a direct relationship between the effects of the initial attack and the death of the deceased.

Consideration

1. There are a number of matters that should be noted at the outset. First, as I indicated at [75] above, the applicant does not complain of injustice because of the way the Crown changed its case or that there was procedural prejudice. Although senior counsel for the applicant criticised the "emotional" fashion in which the jury was addressed, it was not relied upon as a ground of appeal. This is not a case where it was contended that material which was irrelevant and prejudicial to an accused was wrongly left before the jury: cf Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 (Patel). Rather, the submission was that there was no evidence to support the way the Crown case, at least in one fashion, was put to the jury.
2. Second, as I have indicated, neither counsel for the applicant nor counsel for his co-accused made any complaint at the trial about the directions given by the trial judge, nor did they complain about any portion of the Crown closing address. Although I am of the view that, if the case was in fact put to the jury in a way in which there was no evidence to support it, substantial injustice would have been occasioned to the applicant such that r 4 of the Criminal Appeal Rules (NSW) would not apply, there is some significance in the fact that the alleged evidentiary lacunae in the Crown case was not apparent to either the trial judge nor counsel for either the applicant or his co-accused.
3. Third, the Crown submitted that the Crown case, as put to the jury, was that the fracture was not "pathological" and related to the injuries sustained as a result of the assault. That seems to be correct from the extract from the Crown closing address which I have set out at [56] above, the address of senior counsel for the co-accused to which I have referred at [58] above, and those portions of the summing-up of the trial judge referred to at [61] above. The Crown also submitted that the alternative Crown case put to the jury was that there was a direct relationship between the injuries sustained in the assault and the death, irrespective of the cause of the fracture. Once again, there seems to be little doubt that the Crown put its case in that fashion: see the passages from the Crown closing address which I have set out at [54]-[56] above.
4. The applicant did not seem to contend that the first way that the Crown put its case was not open on the evidence. However, it was submitted that what was described as the "alternate Crown case" was not. If this is so, and the jury were asked to reason in a manner in respect of which there was no evidence, then the ground of appeal would be made out. To consider this issue, it is necessary to consider both ways in which the Crown put its case.
5. The jury was directed by the trial judge that they needed to be satisfied beyond reasonable doubt that the assault was a "substantial or significant cause of death". That was the formulation preferred by Deane and Dawson JJ in Royall v The Queen (1991) 172 CLR 378 at 411; [1991] HCA 27 (Royall). That formulation has generally been accepted: see Moffatt v The Queen [2000] NSWCCA 174 at [70]-[71]; Reynolds v The Queen [2015] NSWCCA 29 at [41]; Patel at [75]; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [15] (Osland).
6. It seems to me that it was open to the jury to convict in the manner in which the Crown case was first put, namely, that the fracture resulted from a fall which occurred as a result of the injuries and disabilities he suffered from the assault. The evidence which I have summarised at [7]-[27] above shows the significant deterioration in the condition of the deceased when compared to his condition prior thereto, the deceased's lack of cognitive ability, and importantly, his propensity to fall. Leaving aside for the moment the question of whether the fracture was "pathological", it was open to the jury to be satisfied beyond reasonable doubt that the fall which caused the fracture resulted from, or was at least substantially contributed to by, the injuries and disabilities resulting from the assault. Further, as the trial judge pointed out in her summing-up, which I have noted at [65] above, it was "not in issue that the direct cause of [the deceased's] death was the respiratory distress caused by fat emboli travelling to small vessels in the lungs, which was in turn caused by the fracture of the neck of the femur".
7. Further, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the fracture was not a pathological fracture. Dr Bailey stated that, while she had found the kidney tumour during the autopsy, she found no evidence of metastasis, or the "spread", of the tumour, although she said that she could not confirm or deny the possibility the fracture was "pathological", as I have noted at [38] above. Dr Watson and Professor Fox were of the view that, although metastasis to the left femur could not be fully excluded, the absence of evidence that it had occurred made it "less likely", while Professor Cordner stated that metastasis in the bone was "unlikely" but a "reasonable possibility", not in the sense that "everything is possible", but a possibility that he could "easily conceive of" and which "should be taken into account". However, he did explain that bones do not usually fracture by themselves, although if they are diseased because of cancer, a bone may "fracture by itself or fracture with much less force than required to ordinarily cause a fracture", as I have noted at [50] above.
8. Based on that evidence, it seems to me that the jury was entitled to conclude that the fracture resulted from a fall which was a consequence of the injuries and disabilities suffered as a result of the assault, particularly having regard to the absence of evidence of metastasis in the bone. There was no evidence to suggest that the bone fractured by itself, and even if there was a possibility that the tumour had metastasised to the bone, the fact that the bone may be fractured more readily did not mean that the fracture was not caused by a fall. What was critical was that the jury needed to be satisfied that, because of his injuries and disabilities, the deceased could not be surgically treated. The notes from Prince of Wales Hospital contained in Exhibit AG, particularly with reference to the discussion about surgical intervention previously recorded by St Vincent's Hospital, confirmed that this was the case. The jury was entitled to conclude that, but for the earlier injuries, he could have been treated.
9. This seems to follow from the evidence of Dr Bailey to which I have referred at [40] above, and the evidence of Professor Fox that, if he had a patient of the age of the deceased with a diagnosis of carcinoma, he would refer the patient to surgery. While Professor Cordner did not go so far, he described the deceased's disabilities as contributing "to an unknown extent" in his death and he stated that the failure to pin or surgically treat a fracture in a 78-year-old man would "probably be fatal", depending upon the concentration of fat emboli in the lungs, which he said seemed to have been "substantial in this case", as I have set out at [52] above.
10. In those circumstances, if the jury was satisfied that the fracture resulted from a fall, rather than simply being a pathological fracture having nothing to do with a fall, then they were entitled to conclude that the assault was a "substantial or significant cause of death".
11. The alternative way that the Crown case was put was that, even if the fracture was "pathological", occurring as a result of the kidney tumour, then the jury could still be satisfied beyond reasonable doubt that the assault was a "substantial or significant cause of death". That gives rise to the question of whether such a pathological fracture was an "intervening event" which broke the chain of causation even if it could be found that the death would not have occurred "but for" the assault: see the discussion by McHugh J in Royall at 448-449; see also Osland at [145]-[147].
12. The fact that an intervening event could be seen as a cause of the death does not necessarily mean that the original act (in this case, the assault) did not remain a "substantial or significant cause". The position was explained by the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. In that case, a university professor was injured in a motor vehicle accident. He resumed his university duties, but later retired four and a half years before retirement age because the pain and sleepiness and associated loss of "intellectual energy" made him unable to discharge his duties to his satisfaction, as opposed to the satisfaction of his employer. It was held, notwithstanding that decision, that he was entitled to damages for loss of earning capacity. The majority made the following remarks at 6-7: "For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connexion 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 the breach of duty and the particular 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 commonsense 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. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case."
13. Although these remarks were made in the context of a claim for damages for negligence, as McHugh J pointed out in Royall at 448, the "broad principles of causation applicable in civil cases should be equally applicable in criminal cases", although the object of the inquiry in criminal cases is to determine moral culpability and a different standard of proof applies.
14. Applying these principles, even if the jury was not able to exclude the possibility of a pathological fracture, they were still entitled to conclude that the assault and the injuries and disabilities sustained by the deceased as a result were a "substantial or significant cause of death" of the deceased. For reasons that I have given, the jury were entitled to be satisfied that the cause of death resulted from the inability to surgically treat the fracture, and that that inability had nothing to do with the existence of the tumour or, for that matter, the cause of the fracture. However, they were entitled to be satisfied that a significant reason for the inability to surgically treat the fracture was the consequence of the injuries suffered from the assault.
15. This conclusion is supported by the evidence of the deterioration in the deceased's condition, the evidence that, after the aspiration pneumonia which the deceased suffered while at St Vincent's Hospital, it was determined that if a similar incident occurred he would be "Not for Resuscitation", the evidence of his condition at the nursing home, and the ultimate decision not to operate at Prince of Wales Hospital, which referred back to the earlier decision made at St Vincent's Hospital. I have summarised the evidence above and will not repeat it. Taking all of it into account, in my opinion, the jury were entitled to be satisfied beyond reasonable doubt that, irrespective of the cause of the fracture, the injuries suffered as a result of the assault remained a "substantial or significant cause" of the death of the deceased.
16. Thus, there was evidence on which the jury could have convicted on either of the two approaches put forward by the Crown at the hearing. In these circumstances, the jury was not asked by the Crown to embark on a process of reasoning unsupported by the evidence.

Conclusion

1. Therefore, leave to appeal should be granted, but the appeal should be dismissed.
2. HOEBEN CJ AT CL: I agree with the Chief Justice and the orders which he proposes.
3. R A HULME J: I agree with Bathurst CJ.

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