YARRAN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 159 (17 October 2019)

1. His Honour ordered that the sentence for count 4 commence upon Mr Yarran having served two years of the sentence for count 1 and that the sentence for count 7 commence upon Mr Yarran having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 11 years' imprisonment. The total effective sentence was backdated to 4 August 2016. A parole eligibility order was made.
2. Mr Boag was sentenced as follows:

1. His Honour ordered that the sentence for count 4 commence upon Mr Boag having served 18 months of the sentence for count 1 and that the sentence for count 7 commence upon Mr Boag having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 9 August 2016. A parole eligibility order was made.
2. Mr Smith was sentenced as follows:

1. His Honour ordered that the sentence for count 4 commence upon Mr Smith having served 18 months of the sentence for count 1 and that the sentence for count 7 commence upon Mr Smith having served one year of the sentence for count 4. The other sentences were ordered to be served concurrently. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 4 August 2016. A parole eligibility order was made.
2. Each of Mr Yarran, Mr Boag and Mr Smith has appealed against his conviction on count 7 (that is, the offence of manslaughter).
3. Each of Mr Boag and Mr Smith has also appealed against sentence.
4. In my opinion, the trial judge misdirected the jury on the defence of accident under s 23B of the Code in relation to the charge of manslaughter. I would therefore allow each of Mr Yarran's, Mr Boag's and Mr Smith's appeal against his conviction for manslaughter. The judgments of conviction for manslaughter should be set aside and a new trial on that count should be ordered. As I will explain, it is unnecessary to deal with the appeals against sentence. My reasons for those conclusions are as follows.

Appeals against conviction: the State's case at trial on count 7

1. The State's case at trial in respect of count 7 is summarised in Mazza and Beech JJA's reasons. I will not repeat the summary except to the extent necessary to explain my reasons.
2. Section 272 of the Code provides, relevantly, that a person 'who, by threats or intimidation of any kind ... causes another person to do an act ... which results in the death of that other person, is deemed to have killed him'.
3. The State's case was that Mr Yarran, Mr Boag and Mr Smith were joint principals, within s 7(a) of the Code, in that each of them did an act or a series of acts that threatened or intimidated Ms Fairhead.
4. The State alleged that Mr Yarran, Mr Boag and Mr Smith, by threats or intimidation, caused Ms Fairhead to do an act (namely, open the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and exit the vehicle), which resulted in her death.
5. On the evening of 2 August 2016, Mr Yarran, Mr Boag and Mr Smith were at a house in Ridgewood. They were living or staying at the house. SH, a female friend of hers and Georgia McEwan were visiting the house.
6. During the evening Mr Yarran asked SH, the female friend of hers and Ms McEwan whether they knew of anyone they 'could roll for gear', meaning rob for methylamphetamine. SH said she knew someone who she could bring to the house. Mr Boag and Mr Smith were present when the plan to rob someone for methylamphetamine was formulated and put into effect.
7. SH contacted Mr Watson by text message and by telephone. She asked him to come to the Ridgewood house. She also asked him whether he had any methylamphetamine. SH gave Mr Watson the impression that she had a sexual interest in him. She told Mr Watson that she and one other friend were the only people at the house.
8. When Mr Watson received the communications from SH he was with Mr Wilton and Ms Fairhead. They were in Ms Fairhead's motor vehicle, a Toyota Prado 4-wheel drive. Ms Fairhead agreed to drive Mr Watson to the Ridgewood house.
9. At about 1.50 am on 3 August 2016, Mr Watson, Mr Wilton and Ms Fairhead arrived at the Ridgewood house in Ms Fairhead's motor vehicle. SH and her female friend were waiting outside the house to meet them. SH invited Mr Watson, Mr Wilton and Ms Fairhead to enter the house. Before and after they entered the house, Mr Watson, Mr Wilton and Ms Fairhead were threatened or intimidated by Mr Yarran, Mr Boag and Mr Smith.
10. The alleged threats or intimidation included verbal threats, physical intimidation, depriving Mr Watson, Mr Wilton and Ms Fairhead of their liberty, and physical violence against Mr Watson and Mr Wilton in Ms Fairhead's presence during a protracted incident.
11. In particular, the threats and intimidation included:

(a) Mr Yarran, Mr Boag and Mr Smith confronting Ms Fairhead and the others, while armed, outside the house;

(b) Mr Yarran, Mr Boag and Mr Smith confining Ms Fairhead and the others in the house and then separating them;

(c) Mr Yarran, in Ms Fairhead's presence, becoming angry and slamming a machete into a coffee table in the lounge room;

(d) Mr Yarran, in Ms Fairhead's presence, hitting Mr Watson on the forehead with the machete, drawing blood;

(e) Mr Yarran, Mr Boag and Mr Smith stealing from Mr Watson, Mr Wilton and Ms Fairhead;

(f) Mr Yarran ordering Ms McEwan, in a threatening way while holding the machete, to strip-search Ms Fairhead;

(g) Mr Yarran, Mr Boag and Mr Smith forcing Ms Fairhead and the others into Ms Fairhead's motor vehicle while armed;

(h) Mr Yarran threatening to kill Ms Fairhead and the others by burning the vehicle with them in it;

(i) Mr Yarran, Mr Boag and Mr Smith being armed with the machete, baseball bats and Mr Watson's knife over the course of the incident;

(j) Mr Yarran, in Ms Fairhead's presence, demanding drugs; and

1. Mr Yarran, Mr Boag and Mr Smith threatened to strike Mr Watson, Mr Wilton and Ms Fairhead with the machete and the baseball bats if they did not get into Ms Fairhead's motor vehicle. Mr Wilton was jabbed with the end of a baseball bat. Mr Watson, Mr Wilton and Ms Fairhead were being held against their will. Mr Yarran got into the driver's seat of the vehicle. Ms Fairhead was in the front passenger seat. Mr Watson was in the rear compartment, Mr Wilton was in the middle of the back passenger seat with Mr Boag and Mr Smith on either side of him. Mr Yarran, Mr Boag and Mr Smith took the machete and the baseball bats with them when they got into the vehicle.
2. Mr Yarran drove Ms Fairhead's motor vehicle erratically. He threatened to drive the vehicle into the bush and to burn it with Mr Watson, Mr Wilton and Ms Fairhead inside. Ms Fairhead then said words to the effect of 'sorry, I can't do this' or 'I can't handle this'. She reached for the machete, which was between the driver's seat and the centre console. Mr Yarran attempted either to grab Ms Fairhead or the machete. The vehicle swerved. Ms Fairhead opened the door adjacent to her and fell from the vehicle.
3. When Ms Fairhead fell from the vehicle she struck the road and suffered traumatic head injuries. She appears to have lost consciousness immediately and to have been bleeding significantly. Although she did not die immediately, Ms Fairhead did not survive. The cause of her death was the traumatic head injuries which she suffered upon striking the road after falling from the vehicle.

Appeals against conviction: Mr Yarran's, Mr Boag's and Mr Smith's cases at trial on count 7

1. Mr Yarran's, Mr Boag's and Mr Smith's cases at trial on count 7 are summarised in Mazza and Beech JJA's reasons. I will not repeat the summary except to the extent necessary to explain my reasons.
2. Mr Yarran, Mr Boag and Mr Smith contended at trial in relation to count 7 that early in the morning on 3 August 2016, Mr Yarran, Mr Boag, Mr Smith, Mr Watson, Mr Wilton and Ms Fairhead left the Ridgewood house in Ms Fairhead's motor vehicle to collect drugs. Mr Watson, Mr Wilton and Ms Fairhead acted willingly. None of them was compelled to do anything.
3. Mr Yarran contended that Ms Fairhead's decision to leave the motor vehicle was inexplicable. Her action was undertaken voluntarily while under the influence of methylamphetamine and in response to recent domestic violence from her partner. Nothing said or done by Mr Yarran caused Ms Fairhead to decide to leave the vehicle. Defence counsel submitted that it was not reasonably foreseeable by Mr Yarran or anyone that Ms Fairhead would decide to leave the vehicle. Her death was not a reasonably foreseeable consequence of anything said or done by Mr Yarran.
4. Mr Boag contended that Ms Fairhead's decision to leave the motor vehicle was not a reasonable response to anything said or done by him. Defence counsel submitted that Ms Fairhead's decision to leave the vehicle was not reasonably foreseeable. Further, Ms Fairhead's action in leaving the vehicle was not a reasonable response to any threats or intimidation previously engaged in by Mr Boag.
5. Mr Smith contended that during the journey in the motor vehicle Ms Fairhead jumped or fell out of the vehicle to her death. She may or may not have intended to die. In any event, nothing said or done by Mr Smith had anything to do with her death. Ms Fairhead's action in jumping or falling out of the vehicle was attributable to a combination of unfortunate life circumstances that had nothing to do with Mr Smith or anyone else who was present at the Ridgewood house on the night in question.
6. Mr Yarran gave evidence at the trial. Mr Boag and Mr Smith did not give evidence.

Appeals against conviction: relevant provisions of Chapter XXVIII of the Code

1. Chapter XXVIII of the Code is headed 'Homicide: Suicide: Concealment of birth'. It comprises s 268 to s 291.
2. The relevant provisions of ch XXVIII, for the purposes of these appeals against conviction, are s 268, s 270, s 272, s 277 and s 280(1). Those provisions read:
   1. Killing a person is unlawful

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

A person who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.

Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

(1) If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter and is liable to imprisonment for life.

Alternative offence: s. 281, 284, 290, 291 or 294 or Road Traffic Act 1974 s. 59.

Appeals against conviction: relevant provision of Chapter V of the Code

1. Chapter V of the Code is headed 'Criminal responsibility'. It comprises s 22 to s 36. The relevant provision of ch V, for the purposes of these appeals against conviction, is s 23B. It provides:

Accident

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an event which occurs by accident.

(3) If death or grievous bodily harm -

(a) is directly caused to a victim by another person's act that involves a deliberate use of force; but

(b) would not have occurred but for an abnormality, defect or weakness in the victim,

the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

(a) even if the other person did not intend or foresee the death or grievous bodily harm; and

(b) even if the death or grievous bodily harm was not reasonably foreseeable.

Appeals against conviction: the trial judge's written handout to the jury on count 7

1. The trial judge gave a written handout to the jury in relation to, relevantly, count 7.
2. The jury handout explained the elements of the offence charged in count 7 (that is, the offence of manslaughter) as follows:

Unlawful Killing (Count 7)

The elements of unlawful killing (manslaughter) are;

1. That the accused (identity);
2. Killed another person, that is caused that person's death, directly or indirectly, by any means whatever; and
3. That the killing was unlawful, that is it was not authorised, justified or excused by law.
4. The jury handout explained causing death by threats or intimidation under s 272 of the Code as follows:

Causing Death by Threats or Intimidation

The law provides that a person who, by threats or intimidation of any kind, causes another person to do an act which results in the death of that other person, is deemed to have killed him or her.

The relevant questions for you are;

1. Did the accused make threats or perform acts of intimidation as alleged by the State?
2. Did any such threats or intimidation cause Ms Fairhead to open the car door?
3. Did that act of opening the car door result in Ms Fairhead's death?

As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act. It is sufficient if you are satisfied beyond reasonable doubt that they were, as a matter of objective fact, a cause, provided that it was a cause that contributed substantially or significantly to the doing of the act. In deciding causation you should apply your common sense to the facts as you find them to be.

1. The jury handout explained the defence of accident under s 23B of the Code as follows:

Accident

The law provides that a person is not criminally responsible for an event which occurs by accident. An event occurs by accident if it was a consequence which was not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. Where the issue of accident is raised by the defence, as it has been here, it is for the prosecution to disprove it beyond reasonable doubt. It can do that either by proving that the accused did intend or foresee the event or by proving that the event would reasonably have been foreseen by an ordinary person.

Appeals against conviction: the trial judge's directions to the jury in his summing up in relation to count 7

1. The trial judge's directions to the jury in his summing up in relation to count 7 were consistent with the explanations in the jury handout as to the elements of the offence of manslaughter, causing death by threats or intimidation under s 272 of the Code and the defence of accident under s 23B of the Code.
2. As to causing death by threats or intimidation under s 272 of the Code, his Honour directed the jury in his summing up as follows:

To kill a person means to cause the death of that person directly or indirectly by any means whatever.

Now, the law provides that a person who by threats or intimidation of any kind causes another person to do an act that results in the death of that other person is deemed to have killed him or her. If you turn to the third of the handouts that I've given you, you'll see that that's headed Causing Death by Threats or Intimidation. So that first paragraph reflects what I've just told you:

The law provides that a person who by threats or intimidation of any kind causes another person to do an act which results in the death of that other person is deemed to have killed him or her.

The law here provides for cases where a person is driven to do a dangerous act due to fear, a desire to escape or a hope of self‑preservation by the conduct of another person. That's what the prosecution alleges here, namely that the accused together made threats to and intimidated Ms Fairhead and that those threats and intimidation caused her to do an act which resulted in her death. Now, it's not to the point to say that it was Ms Fairhead's act that caused her death. The question is what caused her to act as she did and in particular was her act caused by the accused.

The act which Ms Fairhead is alleged to have done is open the door of a moving car in circumstances where she was not wearing a seatbelt. Now, there's some evidence that she may have pushed herself out of the car. Mr Wilton gave some evidence about that, but the prosecution say[s] it doesn't matter because whether she fell or jumped, it is clear that she deliberately opened the car door. Now, there seems to be no dispute that she did that. The issue is did the accused cause her to do it by threats or intimidation.

So, the relevant questions for you are, and this is reflected in the handout, one, did the accused make threats or perform acts of intimidation as alleged by the State. Two, did any such threats or intimidation cause Ms Fairhead to open the car door and three, did that act of opening the car door result in Ms Fairhead's death. Now, the alleged threats and intimidation are constituted by, it's alleged, the use of weapons and threats in the house, the demands for drugs, the order that Ms Fairhead be strip-searched if you find that that occurred.

The demand that she get into the car with the others and there is allegedly an express threat and Mr Wilton gave evidence of this, to take the car out to the bush and burn it with them in it. So the first thing you have to decide is whether those things occurred and in respect of each accused, whether he participated in doing those things. As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act.

It is sufficient if you are satisfied beyond reasonable doubt that [they] were, as a matter of objective fact, a cause provided that it was a cause that contributed substantially or significantly to the doing of the act. And that's reflected in the last paragraph on that handout that I gave you. In deciding that question of causation, you should apply your common sense to the facts as you find them to be.

Now, you've heard some evidence about Ms Fairhead's domestic circumstances at around the time that this occurred, and a report - in fact two reports that she made to the police, including one that she made to the police about her partner the day before she died. There is disputed evidence as to whether she was on the phone to her partner whilst she was in the car and you have some phone records, although it's suggested to you that there may be other ways to contact a person other than using the telephone network.

There is evidence that before leaving the car she said words to the effect, 'Sorry, I can't do this.' You are entitled to take that evidence into account, but don't be diverted from the principal question which is whether threats or intimidation by the accused were a significant or substantial cause of her actions. If they were, then it does not matter that she may have had other reasons in her life to be sad or upset.

As to whether Ms Fairhead's act of opening the door resulted in her death, the question for you is whether her death was, as a matter of objective fact, a consequence of that act. Now, it's a matter for you but you may well think that opening the door of a moving car when not wearing a seatbelt is an inherently dangerous thing to do. There is a risk of falling out and suffering injuries, you might well think.

We know that that is in fact what happened. You heard from Dr McCreath as to the traumatic head injuries that were the immediate medical cause of death. It's a matter for you but you may well have little difficulty concluding that Ms Fairhead's death was a result of her opening the car door, falling from the car, hitting the road and suffering head injuries (ts 1236 - 1239).

1. As to the defence of accident under s 23B of the Code, the trial judge directed the jury in his summing up as follows:

Now, there is another passage which is on the first handout that I gave you on criminal responsibility. If I could ask you to turn back to that, and on the second page of that you'll see there's a heading Accident. Now, if you're satisfied that the accused, or any of them, did cause Ms Fairhead to open the car door, there is another issue you must resolve and that's whether her death was foreseeable[.]

The law provides that a person is not criminally responsible for an event which occurs by accident. You've heard counsel mention this. Accident has a very particular meaning in the criminal law. An event occurs by accident if it was a consequence which was not intended or foreseen by the accused and would not have reasonably been foreseen by an ordinary person.

So there are two elements to accident, one subjective and one objective. An event will not be an accident unless two requirements are met. First, the event must not be intended or foreseen by the accused. That's the subjective element. And secondly, the events [sic] must be one which would not reasonably have been foreseen by an ordinary person. That's the objective element.

Where the issue of accident is raised by the defence, as it has been here, it's for the prosecution to disprove it beyond reasonable doubt. It can do that either by proving that the accused did intend or foresee the event, or by proving that the event [would] reasonably have been foreseen by an ordinary person.

In this case the prosecution accepts that the accused did not intend that Ms Fairhead would die and did not foresee it, so you can put that to one side. Rather, what the prosecution say[s] is that her death was objectively reasonably foreseeable by an ordinary person in these circumstances.

So the question for you is are you satisfied beyond reasonable doubt that an ordinary person in the circumstances of the accused would reasonably have foreseen that the death of Ms Fairhead was a possible outcome. A possible outcome is one that is realistically possible, excluding possibilities that are no more than remote or speculative. An ordinary person would of course be sober. That is, not affected by alcohol or drugs.

Your determination of this issue requires you to evaluate all of the relevant circumstances, including any actions or threats that had preceded getting into the car, the manner of driving, whether there were weapons in the car, how an ordinary person in the position of the accused would have perceived Ms Fairhead's emotional condition, and how an ordinary person in the position of the accused would have perceived that their actions had affected or may affect Ms Fairhead.

If you're satisfied that Ms Fairhead's death was reasonably foreseeable, then accident is excluded. In this event, and assuming that the elements of the offence are otherwise proven, the accused in question would be guilty of count 7. If you are not satisfied that the death was reasonably foreseeable or any of the elements of the offence are not proven, then the accused in question would be not guilty of count 7 (ts 1239 - 1240).

1. Ultimately, Mr Yarran and Mr Smith relied upon three grounds in their appeals against conviction. The grounds are identical. Ultimately, Mr Boag relied upon six grounds in his appeal against conviction. All of the applications for leave to appeal against conviction were referred to the hearing of the appeals.
2. The grounds of appeal are set out in Mazza and Beech JJA's reasons. It is sufficient, for the purposes of my reasons, to reproduce Mr Yarran's and Mr Smith's grounds 1 and 2 and Mr Boag's grounds 4 and 7.
3. Mr Yarran's and Mr Smith's grounds 1 and 2 read:
   1. There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to direct the jury that if the deceased unintentionally fell from the vehicle at the time of her fall then that falling would have been a novus actus interveniens that would break the chain of causation in relation to Section 272 of the Criminal Code.
   2. There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to adequately direct the jury as to matters the State needed to establish to prove guilt;

2.1. His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's jumping from the car at the point in time she did was not an act that was either irrational nor unreasonable or disproportionate to any threats or intimidation operating at the time;

2.2 His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's fear or apprehension was well-founded or reasonable in all the circumstances;

2.3 His Honour failed to direct the jury adequately/or at all that the State needed to establish that the alleged act of escape or self‑preservation must be the natural consequences [sic] of the appellant's behaviour.

1. Mr Boag's grounds 4 and 7 read:
   1. The learned judge erred in misdirecting the jury (at T 1240) as to the requirement of reasonable foreseeability in relation to the defence of accident (s 23B of the Criminal Code), by identifying the issue as foreseeability of death occurring, instead of foreseeability of the deceased opening the door of the moving vehicle and exiting the vehicle, giving rise to a miscarriage of justice.

(a) in failing to direct the jury to the effect that the chain of causation between the accused's alleged threats or intimidation and the deceased's act would be broken and the deeming provision in s 272 would not be engaged, if the deceased's act was unreasonable or disproportionate; and

(b) in deciding (at T 1039, 1040) that this issue was sufficiently dealt with by telling the jury that legal causation required the relevant threats or intimidation to be a substantial or significant cause,

1. The issues raised by Mr Yarran's and Mr Smith's grounds 1 and 2 and Mr Boag's grounds 4 and 7 in relation to the proper construction of s 272 and s 23B are linked. It is therefore convenient to deal with those grounds together.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the trial judge's approach

1. At trial the prosecutor raised with the trial judge, before his Honour commenced his summing up, the State's contention that 'whether Ms Fairhead's reaction was in any way reasonable is not part of s 272 [of the Code]' (ts 1037). That issue was then discussed between his Honour, the prosecutor and defence counsel.
2. Ultimately, his Honour informed the prosecutor and defence counsel that he was inclined to think that any suggestion that Ms Fairhead's action '[broke] the chain of causation' would be 'sufficiently dealt with by telling the jury that ... legal causation requires [that any threats and intimidation] be a substantial or significant cause' of her action (ts 1039). His Honour added that 'if the jury is satisfied [that any threats and intimidation were] a substantial and significant cause [of Ms Fairhead's action], then that would seem to negative any possibility that [her action] was an overreaction' (ts 1040).

Appeals against conviction: Mr Boag's ground 4: the trial judge's approach

1. The trial judge directed the jury on the defence of accident under s 23B of the Code by stating that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's death. His Honour did not direct the jury that the relevant 'event' or a relevant 'event', for the purposes of s 23B, was Ms Fairhead's act in opening the door of the moving vehicle and exiting the vehicle.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the appellants' submissions

(a) The novus actus interveniens principle is inherent in the concept of causation.

(b) The principle is applicable to s 272 of the Code.

(c) Ms Fairhead's action in opening the door of the moving motor vehicle and exiting the vehicle was, at least arguably, an overreaction, or an unreasonable or disproportionate response, to any threats and intimidation from Mr Yarran, Mr Boag and Mr Smith.

(d) It was open to the jury to consider that Ms Fairhead's actions were, in all the circumstances, an overreaction, or an unreasonable or disproportionate response, to any threats and intimidation.

(e) The trial judge erred in deciding that the issue of whether Ms Fairhead's actions were an overreaction, or an unreasonable or disproportionate response, could be dealt with sufficiently by directing the jury that legal causation required that any relevant threats and intimidation be a substantial or significant cause of Ms Fairhead's action.

1. Similarly, counsel for Mr Yarran and Mr Smith submitted that his Honour erred in failing to direct the jury that the jury had to be satisfied beyond reasonable doubt that Ms Fairhead's action in 'jumping from [the vehicle] at the point in time she did' was not an unreasonable or disproportionate response to any threats and intimidation operating at the time. It was also submitted that his Honour erred in failing to direct the jury that the State had to establish that 'the alleged act of escape or self-preservation [was] the natural consequence of' any operative threats and intimidation at the time.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's ground 7: the State's submissions

1. Counsel for the State argued that the concept of novus actus interveniens does not apply to s 272. The trial judge had directed the jury to consider whether the threats and intimidation induced by the appellants was 'a cause that contributed substantially or significantly to the doing of the act'. It did not have to be 'the sole, direct or immediate cause' (ts 1238). In considering whether causation was satisfied, the members of the jury were to apply their common sense to the facts as they found them. Counsel argued that there was no basis to impugn these directions. Section 272 is to be construed by reference to the relevant provisions of the Code as a whole. Section 272 is a deeming provision, in that if the terms of s 272 are satisfied, the accused will be deemed to have killed the victim. In determining the issue of causation under s 272, the ordinary principles of causation apply. Nothing in s 272 suggests that the 'act' of the victim must be reasonable or proportionate. The terms of s 272 make clear that the response of the victim is not a novus actus interveniens if it is caused by the threats or intimidation of the accused. Rather, in circumstances where the actions of the victim are unreasonable or disproportionate to the threats or intimidation of the accused, the question of criminal responsibility is determined by reference to s 23B (appeal ts 74) and was captured by his Honour's directions regarding the defence of accident. In any case, Ms Fairhead's act of opening the door of the moving car was not unreasonable or disproportionate in the circumstances.

Appeals against conviction: Mr Boag's ground 4: Mr Boag's submissions

1. Counsel for Mr Boag submitted that the trial judge erred in law in the directions his Honour gave on the defence of accident under s 23B of the Code by stating that the relevant 'event' was Ms Fairhead's death.
2. It was submitted that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's act in opening the door of the moving vehicle and exiting the vehicle.

Appeals against conviction: Mr Boag's ground 4: the State's submissions

1. Counsel for the State argued that the relevant 'event', for the purposes of s 23B, was Ms Fairhead's death. Counsel cited TB v The State of Western Australia[1] in support of the State's argument that, in circumstances where s 23B operates to excuse an accused from criminal responsibility for some consequential event that attracts criminal liability, the relevant 'event', for the purposes of s 23B, must be the event that incurs criminal liability, which, in this case, was Ms Fairhead's death. The 'event' is the 'end result'. There are no 'intermediate events' (appeal ts 83). Therefore, there was no basis upon which to impugn the trial judge's directions to the jury in respect of the defence of accident.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the common law of causation and accident, prior to the enactment of the Code, in relation to homicide involving fright, escape or self-preservation by the victim

1. In Stephen, A Digest of the Criminal Law (1894, 5th ed), 'homicide' was defined in Article 239 as 'the killing of a human being by a human being'.
2. In Article 240, 'killing' was defined as follows:

Killing is causing the death of a person by an act or omission but for which the person killed would not have died when he did, and which is directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the death of any person is a question of degree dependent upon the circumstances of each particular case.

The author stated that Article 240 was subject to the provisions of Articles 241 and 242.

1. Article 241 stated the common law of causation in relation to homicide when the accused's act was 'the remote cause of death or one of several causes'. Article 241 provided, relevantly:

A person is deemed to have committed homicide, although his act is not the immediate or not the sole cause of death in the following cases -

...

(c) If by actual violence or threats of violence he causes a person to do some act which causes his own death, such act being a mode of avoiding such violence or threats, which under the circumstances would appear natural to the person injured (footnote omitted).

1. The author gave the following illustration of the proposition in par (c) of Article 241: A violently beats and kicks B, his wife, on the edge of a pond. She, to avoid his violence, throws herself into the pond and is drowned. A has killed B.
2. The author cited R v Evans[2] in support of the proposition in par (c) of Article 241. In Evans, the indictment charged 'first that the prisoner killed his wife by beating, secondly by throwing her out of the window, and thirdly and fourthly, that he beat her and threatened to throw her out of the window and to murder her; and that by such threats she was so terrified that through fear of his putting his threats into execution she threw herself out of the window, and of the beating and the bruises received by the fall died'. The court (Heath, Gibbs and Bayley JJ) were of the opinion 'that if [the wife's] death was occasioned partly by the blows and partly by the fall, yet if she was constrained by her husband's threats of further violence, and from a well-grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself'.
3. In R v Grimes,[3] the Full Court of the Supreme Court of New South Wales (Windeyer, Innes and Foster JJ) approved Evans in the course of dismissing appeals against conviction for murder. The appellants and the victim were travelling in the same compartment in a railway carriage. The appellants robbed and brutally assaulted the victim. The victim, fearing that his life would be in danger if he remained in the carriage, jumped from the train and was killed. At the trial, the Chief Justice of New South Wales directed the jury:

If, then, you are satisfied that [the victim] left the window immediately after the robbery and wounding took place, and if you are satisfied that, though [the victim] was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man's death as if they had taken him in their hands and thrown him out of the window (213).

The Full Court held that the direction was correct.

1. Article 244 in Stephen, A Digest of the Criminal Law, stated that manslaughter was 'unlawful homicide without malice aforethought' and that murder was 'unlawful homicide with malice aforethought'. Article 244 explained the meaning of malice aforethought.
2. Article 231 stated that it was not a crime 'to cause death or bodily harm accidentally by an act which is not unlawful, unless such act is accompanied by an omission, amounting to culpable negligence, as defined in Article 232, to perform a legal duty'. Article 231 then stated:

An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it.

1. At common law, the defence of accident on a count of murder may arise in two different senses. First, 'accident' may arise in the context where it is necessary for the jury to consider whether the fatal act was an unwilled occurrence and not voluntary. Secondly, 'accident' may arise in the context where it is necessary for the jury to consider whether the death was an unintended consequence of a willed act. Where the notion of 'accident' is used at common law to mean an unintended consequence of a willed act, the defence should be dealt with under the element of murderous intention.[4]

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in Sir Samuel Griffith's draft Criminal Code

1. The Criminal Code Act 1902 (WA) (the 1902 Act) established a Code of Criminal Law. Section 2 of the 1902 Act provided that on and from 1 May 1902, the provisions contained in the Code of Criminal Law set forth in the First Schedule to the 1902 Act shall be the law of Western Australia 'with respect to the several matters therein dealt with'. The Code of Criminal Law adopted substantially Sir Samuel Griffith's draft Criminal Code, which had been enacted in Queensland by the Criminal Code Act 1899 (Qld).
2. By s 2 of the Criminal Code Act Compilation Act 1913 (WA) (the 1913 Compilation Act), the 1902 Act as amended was repealed, and the compiled Act set forth in Appendix B to the 1913 Compilation Act was enacted under the title of the Criminal Code Act 1913 (WA).
3. Sir Samuel Griffith sent his draft Criminal Code (the draft Griffith Code) to the Attorney‑General of Queensland with a letter dated 29 October 1897.
4. In the letter Sir Samuel Griffith noted:

(a) The pages of the draft were arranged in two columns, the proposed provisions of the Code being printed in the right-hand column, and the sources from which they were derived, or other analogous provisions, being stated or referred to in the left-hand column.

(b) Where the source was statute law, the corresponding provisions of the statute were reprinted from Sir Samuel's Digest of the Statutory Criminal Law of Queensland of 1896.

(c) In other cases, the sources or analogous provisions were indicated by a reference to the section of the draft Bill introduced into the House of Commons in 1880 (the 1880 Bill), which was based on a Draft Code of Criminal Law of 1879 (the 1879 Draft Code) prepared by Lord Blackburn, Justice Barry (of Ireland), Justice Lush and Sir James Fitzjames Stephen, or other authority to which Sir Samuel had had recourse, with such notes as appeared to be desirable to elucidate any particular provision.

(d) When the proposed provision was 'undoubted Common Law', Sir Samuel had not thought it necessary to do more than say so.

1. Chapter XXVIII of the draft Griffith Code was headed 'Homicide: Suicide: Concealment of birth'. It comprised s 298 to s 322. Sir Samuel Griffith stated in a footnote to the heading that he believed the provisions of ch XXVIII, except when otherwise stated, expressed the common law.
2. Section 268 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 298 of the draft Griffith Code. Sir Samuel Griffith's note to s 298 in the left‑hand column stated, 'Common Law'. Section 268 of the Code has not been amended since its enactment.
3. Section 270 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was relevantly identical to the first paragraph of s 300 of the draft Griffith Code. The balance of s 300 is not relevant for present purposes. Sir Samuel Griffith's note to s 300 stated, in effect, that the proposed provision reflected s 162 of the 1880 Bill. The note did not refer to the common law. Section 270 of the Code was amended in 1991, but the amendment is not relevant for present purposes.
4. Section 272 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 302 of the draft Griffith Code. Sir Samuel Griffith's note to s 302 stated, in effect, that the proposed provision reflected s 163 of the 1880 Bill. The note did not refer to the common law. Section 272 of the Code has not been amended since its enactment.
5. Section 277 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to s 308 of the draft Griffith Code. Sir Samuel Griffith did not make a note to s 308. Section 277 of the Code was amended in 1972, 1974, 1986 and 2008, but the amendments are not relevant for present purposes.
6. Section 280 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was relevantly identical to s 311 of the draft Griffith Code. Sir Samuel Griffith's note to s 311 stated, in effect, that the proposed provision reflected s 173 of the 1880 Bill. The note did not refer to the common law. Section 280 was amended in 2008, 2011 and 2015, but the amendments are not relevant for present purposes.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: criminal responsibility and accident as embodied in the draft Griffith Code

1. Chapter V of the draft Griffith Code was headed 'Criminal responsibility'. It comprised s 24 to s 38.
2. The first paragraph of s 23 of the Code, as enacted by the 1902 Act and the 1913 Compilation Act, was identical to the first paragraph of s 25 of the draft Griffith Code. The balance of s 25 is not relevant for present purposes.
3. Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Code read:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

1. By s 4 of the Criminal Law Amendment (Homicide) Act, s 23 was repealed and replaced by new sections 23, 23A and 23B. Section 4 commenced on 1 August 2008.
2. It is unnecessary to refer to the new s 23.
3. At the material time, s 23A of the Code provided:

Unwilled acts and omissions

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.

1. At the material time, s 23B of the Code was in the terms I have set out at [42] above.
2. Section 23A reproduces, in substance, the first part of the first paragraph of the former s 23 of the Code in relation to unwilled acts and omissions. The case law on the first part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23A.
3. Section 23B(1) and s 23B(2) reproduce, in substance, the second part of the first paragraph of the former s 23 of the Code in relation to accident. The case law on the second part of the first paragraph of the former s 23 is relevant to the interpretation and application of the current s 23B(1) and s 23B(2).
4. At all material times before 4 April 2011 (when the Criminal Code and Other Legislation Amendment Act 2011 (Qld) came into operation), the provisions of s 23(1) of the Criminal Code (Qld) (the Queensland Code) with respect to:

(a) unwilled acts and omissions were relevantly identical to the provisions of the first part of the first paragraph of the former s 23 of the Code and the current s 23A of the Code with respect to unwilled acts and omissions; and

(b) accident were relevantly identical to the provisions of the second part of the first paragraph of the former s 23 of the Code and the current s 23B(1) and s 23B(2) of the Code with respect to accident.

1. At all material times, s 13(1) of the Criminal Code (Tas) (the Tasmanian Code) has been analogous to the former s 23 of the Code. By s 13(1), '[n]o person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance'.
2. In Vallance v The Queen,[5] the High Court construed and applied s 13(1) of the Tasmanian Code.
3. Dixon CJ observed that the phrase 'nor ... for an event which occurs by chance' is 'somewhat difficult' and 'it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s 13 can be worked out judicially' (61). His Honour noted that Sir James Fitzjames Stephen did not draw s 13 of the Tasmanian Code and that such a provision was not included in the 1879 Draft Code (61 - 62).
4. In Stevens v The Queen,[6] Gleeson CJ and Heydon J said, in the context of s 23 of the Queensland Code, that the word 'accident' is 'of notoriously imprecise connotation' and that many deaths in circumstances that constitute manslaughter 'could properly be described as accidental' [16]. Their Honours suggested that the comments they had made might account for Dixon CJ's description of the phrase 'nor ... for an event which occurs by chance' in s 13(1) of the Tasmanian Code as 'somewhat difficult' [16].
5. In Vallance, Kitto J was of the view that, in a provision relating to a consequence of an act done voluntarily and intentionally, and denying criminal responsibility for that consequence if it has occurred 'by chance', the expression 'by chance' is 'an expression which, Janus-like, faces both inwards and outwards, describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing' (65).
6. In Kaporonovski v The Queen,[7] Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences, on the one hand, and the 'accidental outcome of his willed acts', on the other, for the purposes of s 23 of the Queensland Code (226 - 227). Although the two parts of s 23 dealt with related matters, they were quite distinct (226).
7. Gibbs J said the first part of s 23, namely that a person is not criminally responsible for an act which occurs independently of the exercise of his or her will, requires that the act for which a person is criminally responsible shall be his or her own act, and an act which results from the exercise of his or her will (226 - 227). That is, the first rule, insofar as it applies to acts of the accused himself or herself, requires that those acts should be of his or her own volition (227). The accused should have willed that the acts themselves should happen (227).
8. His Honour noted that the first part of s 23 is not concerned with the consequences of an act which the accused has willed (227). It is the second part of s 23, namely that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his or her willed acts (227).
9. Gibbs J held that the word 'act' in the first part of s 23 (that is, the part of s 23 which deals with unwilled acts) is not intended to embrace the consequences as well as the action that produced them (231). So, the 'act' to which the first part refers is some physical action or movement, apart from its consequences (231).
10. His Honour held that an event occurs by accident, within the second part of s 23, 'if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person' (231).
11. In R v Falconer,[8] Mason CJ, Brennan and McHugh JJ made these observations about the distinction between 'act' and 'event' in s 23 of the Code:

The first limb of s. 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen: see Vallance v The Queen ((1961) [1961] HCA 42; 108 CLR 56); Mamote‑Kulang v The Queen ((1964) [1964] HCA 21; 111 CLR 62). In wilful murder, the offender must have a specific intention to cause the death of the deceased or of some other person (the Code, s. 278) at the time when he does the act which causes the death; death is not the 'act' but the intended consequence. It follows that, under the Code as under the common law, it is the death‑causing act which must be willed, not the death itself: see Timbu Kolian v The Queen ((1968) [1968] HCA 66; 119 CLR 47). The 'act' in s. 23 has been differently described in judgments delivered in this Court: see Vallance; Timbu Kolian; Kaporonovski v The Queen ((1973) [1973] HCA 35; 133 CLR 209). In our opinion, the true meaning of 'act' in s. 23 is that which Kitto J in Vallance ((1961) 108 CLR at p 64) attributed to 'act' in s. 13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility. That meaning accords with the judgment of Menzies J in Vallance ((1961) 108 CLR at pp 71 - 72) and was adopted by Gibbs and Stephen JJ in Kaporonovski ((1973) 133 CLR at pp 231, 241), respectively. That view distinguishes between 'act' and 'event' in s. 23, so that it is immaterial to the operation of the first limb of the section that the actor's mental state does not encompass the consequences of what he is doing (38).

1. In R v Van Den Bemd,[9] the respondent was convicted of manslaughter. During a fight in a bar the respondent struck the deceased on the left side of the neck. Death was caused by haemorrhage. The deceased may have had some predisposition to a haemorrhage because of a natural infirmity or because he had consumed alcohol. The Court of Appeal of Queensland (Davies and McPherson JJA & de Jersey J) allowed the respondent's appeal against conviction on the ground that the trial judge had misdirected the jury upon the meaning of s 23 of the Queensland Code. The Court of Appeal said:[10]

The test of criminal responsibility under s 23 is not whether the death is an 'immediate and direct' consequence of a willed act of the accused, but whether death was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it. In the present context that means that the relevant question was whether the jury were satisfied beyond reasonable doubt that [the deceased's] death was not such an unlikely consequence of the punches delivered by the accused that it could not have been foreseen by an ordinary person in the position of the accused.

1. A majority of the High Court dismissed the Crown's application for special leave to appeal. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:

The outcome of the case depends upon the application and interpretation of the words 'an event which occurs by accident' in the context of s. 23 of The Criminal Code (Q.). That question is essentially one of statutory construction, the answer to which does not depend upon an important point of principle. As Dixon C.J. observed in Vallance v The Queen ((1961) [1961] HCA 42; 108 CLR 56, at p 61; see also Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, at p 220, per Walsh J. ('each case presents a different problem')), with reference to s. 13 of The Criminal Code (Tas.) (a provision comparable to s 23):

'[I]t is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s. 13 can be worked out judicially.'

The words of the section are inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland. The interpretation given to the section by that Court is one which favours the individual and reflects accepted notions of culpability and responsibility for criminal conduct. Moreover, it is an interpretation which derives support from comments made in some judgments of this Court, particularly Gibbs J. (with whom Stephen J. agreed) in Kaporonovski v The Queen ((1973) [1973] HCA 35; 133 CLR 209) (139).

1. In R v Taiters; Ex parte Attorney-General,[11] the Court of Appeal of Queensland (Macrossan CJ, Pincus JA & Lee J) made these observations about the references to 'act' and 'event' in s 23 of the Queensland Code:

It should now be taken that in the construction of s 23 the reference to 'act' is to 'some physical action apart from its consequences' and the reference to 'event' in the context of occurring by accident is a reference to 'the consequences of the act'. Even if, as has been said, there can on occasion be some difficulty, in an exceptional case, in distinguishing the border line between act and event so viewed, this theoretical distinction is clear. Taking an example from Kaporonovski itself, the thrusting of the glass by the accused was the act and the injury to the victim's eye which constituted the grievous bodily harm was the event. A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, s 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event (335).

1. In Stanik v The Queen,[12] Anderson J said:

It appears now to be settled that the reference to 'event' in s 23 is a reference to the consequential event, that is, the event consequential upon the 'act or omission': R v Taiters [1996] QCA 232; (1996) 87 A Crim R 507 at 509. An event occurs by accident within the meaning of s 23 if it was a consequence which was not, in fact, intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 per Gibbs J at 231. An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element [83]. (emphasis added)

See also Hussaini v The State of Western Australia.[13]

1. In Ugle v The Queen,[14] the appellant was convicted after trial of murder. The trial judge directed the jury on the law of self-defence, but did not separately put to the jury whether there might have been an unwilled act by the appellant within s 23 of the Code. The High Court allowed the appellant's appeal, set aside the conviction and ordered a new trial on the basis that the trial judge's summing up had not given effect to the possibility of an unwilled act within s 23. Gummow and Hayne JJ (Gaudron J relevantly agreeing) noted that s 23 deals with two subjects, namely unwilled acts and events occurring by accident [25]. Their Honours said that the evidence adduced at the appellant's trial did not raise an issue about an event that occurred by accident, but there was an issue about whether there may have been an unwilled act. Gummow and Hayne JJ then made these observations about the distinction between 'acts' and 'events' in s 23:

The distinction which is made in s 23 between 'acts' and 'events' is not without difficulty. In the joint reasons of three Justices in R v Falconer ((1990) [1990] HCA 49; 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ) it was said of s 23 of the Criminal Code that:

[t]he first limb of s 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen.

At least a majority of the members of the Court held in Falconer that the 'act' of which s 23 speaks is, in a context like the present, the 'death‑causing act ... not the death itself' (R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 38, per Mason CJ, Brennan and McHugh JJ; at 81, per Gaudron J. See also Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56; Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62; Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47; Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209). It is not necessary to consider whether that formulation of the meaning to be given to 'act' in s 23 leaves some unanswered questions. For present purposes, it is enough to notice that a distinction is to be drawn between the 'act', with which the first or unwilled act limb of s 23 deals, and the 'event', with which the second or accident limb deals [26].

1. In Taiters, Macrossan CJ, Pincus JA and Lee J examined the degrees of likelihood comprehended by the objective and subjective elements of the defence of accident:

If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.

The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), i.e. when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood will be regarded as those discussed in connection with the objective test (338).

1. It is now well established by the case law that where an accused has been charged with murder or manslaughter and a willed act of the accused caused the victim's death and the State case relies on s 270 of the Code, then the death will be the relevant 'event' for the purposes of s 23B. In those circumstances, if the accused satisfies the evidential onus in relation to the defence of accident under s 23B, the State can disprove accident, within s 23B, if it proves beyond reasonable doubt either that, subjectively, the accused intended or foresaw the victim's death as a possible outcome or consequence of the accused's act or omission or that, objectively, the victim's death would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the accused's act or omission (excluding, in each case, possibilities that are no more than remote and speculative).
2. As Gleeson CJ and Heydon J observed in Stevens, '[i]t is not difficult to think of cases in which "death" results from a willed act which produces an unintended and unforeseeable consequence' [16].

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the law of causation, in relation to homicide involving fright, escape or self-preservation by the victim, embodied in the Crimes Act 1900 (NSW)

1. When the offences the subject of Royall v The Queen[15] and McAuliffe v The Queen[16] were committed, s 18 of the Crimes Act 1900 (NSW) defined murder and manslaughter as follows:

(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.

(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence. (emphasis added)

1. The Crimes Act has not, at any material time, included a provision comparable to s 272, the former s 23 or the current s 23B of the Code.
2. In Royall and McAuliffe, the High Court construed the provision in s 18(1)(a) of the Crimes Act that murder 'shall be taken to have been committed where the act of the accused ... causing the death charged, was done ... with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person' (emphasis added). In particular, the High Court examined the law of causation, in the context of homicide involving fright, escape or self-preservation by the victim, embodied in s 18(1)(a).
3. In Royall, the appellant was convicted after trial of murder contrary to s 18(1)(a) of the Crimes Act. The victim fell to her death from a window on the sixth floor of a block of flats. How she came to fall from or through the window was uncertain. It was necessary for the prosecution to identify an act of the accused which caused the victim to fall. The trial judge left three alternative possibilities to the jury. One possibility was that the victim had jumped from the window in response to the accused's aggressive conduct. A majority of the High Court held that the trial judge's directions on causation and intent in relation to that possibility were adequate. McHugh J disagreed, but held that no miscarriage of justice had occurred. The High Court addressed the question of causation at common law in the context of a victim who dies as a result of his or her own act in the course of attempting to escape from the accused; in particular, whether the victim's reaction was an over-reaction and hence a coincidence which was sufficient to break the chain of causation.
4. Mason CJ was of the opinion that:

(a) generally speaking, 'an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connection between the violence or threats of violence and the death'; and

(b) the deceased's intervening act does not break the chain of causation (388).

1. His Honour noted that the governing principle at common law had been expressed in various different ways. After reviewing the different formulations, his Honour said that, in the context of causation, the principle was best formulated as follows:

[W]here 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. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.

In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I see no point in linking that issue to the accused's state of mind. On the other hand, in some situations, the accused's state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation (389 - 390). (emphasis added)

1. Brennan J commented that the basic proposition relating to causation in homicide is that the accused's conduct need not be the 'sole, direct or immediate cause of the [victim's] death', but must 'contribute significantly' to the death (398). However, when a victim's death is not caused directly by the accused's conduct, but by something done by the victim or by a third person in response to the accused's conduct, a question arises as to whether the chain of causation has been broken (398). His Honour said it is well established that 'the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self‑preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced)' (398). His Honour elaborated:

In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett ((1983) 76 Cr App R, at pp. 288-289), per Robert Goff LJ. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible (398 ‑ 399).

1. Brennan J held that '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 ... 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' (399) (original emphasis).
2. His Honour said that the tests at common law for determining whether the accused is criminally responsible for the victim's death, when a victim's death is not caused directly by the accused's conduct but by something done by the victim in response to the accused's conduct, are those which would be applied under the Western Australian, Queensland and Tasmanian Codes to determine whether the final fatal step taken by the victim was an event that has occurred 'by accident' or 'by chance':

The question whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step is resolved at common law by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred 'by accident' or 'by chance'. The first stage of the test is whether the victim's taking of the step is a novus actus interveniens breaking the chain of causation; the second stage of the test is whether, at the time when the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final fatal step, the taking of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Vallance v The Queen ((1961) [1961] HCA 42; 108 CLR 56, at pp 61, 65, 82); Kaporonovski v The Queen ((1973) [1973] HCA 35; 133 CLR 209, at pp 231 - 232); Stuart v The Queen ((1974) [1974] HCA 54; 134 CLR 426, at p 438).

These propositions are subject to a qualification in cases where the accused intends his conduct to cause the death of his victim. In such cases, foresight is subsumed in the intent and, as the ultimate result of the accused's conduct - the death of the person who took that step - is intended, it is immaterial that the victim's attempt at self-preservation is objectively unreasonable (or disproportionate) having regard to the nature of the accused's conduct and the fear it is likely to induce (399 - 400).

1. As I have mentioned, the term 'by accident' is used in the former s 23 and the current s 23B of the Code and in the former s 23(1) of the Queensland Code and the term 'by chance' is used in s 13(1) of the Tasmanian Code.
2. Deane and Dawson JJ expressed the following views about the breaking of the chain of causation at common law where the victim over-reacts to the accused's threatening acts or words:

If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is 'unreasonable' it negatives causal connexion: Roberts ((1971) 56 Cr App R, at p 102); Hart and Honoré, Causation in the Law, 2nd ed (1985), p 332. On occasions foreseeability may play some part in a jury's inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg v Hallett ([1969] SASR 141, at p 149), that '[f]oresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation', but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self‑preservation must be the natural consequence of the accused's behaviour. It is for the jury to decide those questions: see Grimes and Lee ((1894) 15 NSWR (L), at p 223). Although it would not necessarily be wrong to do so, there is generally no need to elaborate the requirement of causation which is implicit in these directions, other than to make clear that the prosecution must establish that the accused caused the act of escape or self-preservation upon which the prosecution relies (412 - 413). (emphasis added)

1. Toohey and Gaudron JJ said that the proper approach to causation at common law, in the context of a victim who dies as a result of his or her own act in the course of attempting to escape from the accused, is as follows:

The question whether an act of the applicant caused the death was one to be answered as a question of objective fact. It did not depend upon the applicant's appreciation of the consequences of any act of his. The Full Court of the Supreme Court of South Australia observed in Reg v Hallett ([1969] SASR 141, at p 149):

'Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation.'

Of this observation, Howard's Criminal Law, 5th ed (1990), p 35, n 48 comments:

'It may well be argued that attempting to divorce causal responsibility from foreseeability of risk is spurious. Everyday attributions of causal responsibility are immediately affected by foreseeability and estimates of risk; probability is a guide to life ... The position expressed in Hallett is also difficult to reconcile with the fright or self-preservation cases where the long‑standing rule is that D is not causally responsible where V's death is attributable to an unreasonable reaction on the part of V or some third party.'

Conceding the force of these comments, we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is 'a question to be determined by them applying their common sense to the facts as they find them': Campbell ([1981] WAR at p 290; (1980) 2 A Crim R, at p 161). Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken (424 - 425). (emphasis added)

If [Royall's] conduct ... induced the deceased to jump out of the window so as to avoid further attack, it might be thought that 'but for' the attack the deceased would not have lost her life and that the applicant, therefore, had caused her death. But this Court has recently rejected the proposition that in the law of negligence the test of causation at common law is the 'but for' test: March v Stramare (E & MH) Pty Ltd ((1991) [1991] HCA 12; 171 CLR 506). In criminal cases, the common law has also refused to apply the 'but for' test as the sole test of causation. Nevertheless, the 'but for' test is a useful tool in criminal law for determining whether a causal link existed between an accused's act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility, to that person (440). (first emphasis added; second emphasis in original)

1. His Honour made the following statement of principle on causation at common law in criminal cases which, notwithstanding his Honour's different view on the correctness of the trial judge's directions, appears to be consistent with the approach of the other members of the High Court:

Causation is a question of fact: Reg v Evans & Gardiner [No. 2] ([1976] VR 523, at p 527); Reg v Pagett ((1983) [1983] EWCA Crim 1; 76 Cr App R 279, at pp 290 - 291). To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett ((1983) 76 Cr App R, at p 290). But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf Campbell v The Queen ([1981] WAR 286, at p 290; (1980) 2 A Crim R, at p 161) (441).

1. McHugh J noted that, in most criminal cases, the issue of causation is not difficult:

In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question (441).

1. However, his Honour said that difficult issues of causation may arise where an accused's act or omission would not have brought about the relevant event or occurrence without the intervention of a subsequent act of the victim or a third party. In cases of that kind, courts 'have sought to use more specific tests for determining whether "but for" acts or omissions of the accused were "causally responsible" for the event or occurrence' (441). His Honour held that, in a case such as Royall, 'an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct' (451). His Honour added that, in determining whether a reasonable person could have foreseen the harm which the victim suffered, 'any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case' (451). See also Osland v The Queen.[17]
2. In McAuliffe, the two appellants were convicted after trial of murder contrary to s 18(1)(a) of the Crimes Act. The appellants and another youth decided to go to a park to assault someone. At the park, two of the offenders attacked a man who was standing near the top of a high cliff. They kicked him and beat him with a stick. The other offender then kicked the victim in the chest. This caused the victim to fall into a puddle amid rocks about 3 m - 5 m from the edge of the cliff. The offenders departed. The next day the victim's body was found in the sea at the bottom of the cliff. At the trial of the appellants for murder, the judge directed the jury that the prosecution had to establish, beyond reasonable doubt, a common intention on the part of the offenders to bash someone, that an act on the part of one of them which caused death was done with the intention of inflicting grievous bodily harm on the victim, and that the appellants either shared the common intention of inflicting grievous bodily harm or contemplated that the infliction of grievous bodily harm by one or other of the offenders was a possible incident in the common criminal enterprise.
3. The appellants complained, on appeal to the High Court, that the trial judge had failed to direct the jury that if the victim had acted unreasonably and had simply walked in the wrong direction for reasons unrelated to the injuries he received, other than his proximity to the cliff edge, then the chain of causation would be broken. The High Court rejected that complaint. Brennan CJ, Deane, Dawson, Toohey and Gummow JJ observed that the trial judge, on a number of occasions, reminded the jury that an act of the victim was capable of providing an intervening cause of death and of breaking the chain of causation which commenced with the assault upon the victim by the appellants and the other youth. The trial judge suggested to the jury several possible explanations of the manner in which, upon the evidence, the victim may have met his death, without indicating that the suggested possibilities were exhaustive (118).
4. Brennan CJ, Deane, Dawson, Toohey and Gummow JJ noted that the trial judge did not direct the jury with respect to the reasonable foreseeability of any action on the victim's part. However, their Honours said the case was 'a relatively simple one' and such a direction was not required (119). The trial judge did, however, deal with a possible response of the victim to the actions of the offenders, saying:

As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked (119). (emphasis added)

1. Brennan CJ, Deane, Dawson, Toohey and Gummow JJ referred to Royall, and said:

It was observed in this Court in Royall v The Queen ((1991) [1991] HCA 27; 172 CLR 378 at 390, 412 - 413, 425) that in directing a jury on causation of death in fright, escape or self-preservation cases, it is ordinarily undesirable to focus attention upon foreseeability. In that case, a direction of the kind given by the trial judge here was approved. There is, in our view, no substance in the appellants' complaints about the trial judge's directions in relation to causation (119). (emphasis added)

1. The references by their Honours in McAuliffe to the High Court's judgment in Royall were to the reasons of Mason CJ (390), Deane and Dawson JJ (412 - 413) and Toohey and Gaudron JJ (425).

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: the proper approach to the construction of the Code

1. The proper approach to the construction of the Code was enunciated by Dixon and Evatt JJ in Brennan v The King:[18]

[The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.

See also Kaporonovski (236); Stuart v The Queen.[19]

(a) 'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground'; but

(b) 'it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance' (437).

See also Vallance (74 - 75); Boughey v The Queen.[20]

1. The focus of statutory construction is on the text, context and purpose of the provision.
2. In SZTAL v Minister for Immigration & Border Protection,[21] Kiefel CJ, Nettle and Gordon JJ said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [71]; [1998] HCA 28; 72 ALJR 841; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; [2009] HCA 41; 83 ALJR 1152). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; 71 ALJR 312). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7: their merits

1. By s 268 of the Code, '[i]t is unlawful to kill any person unless such killing is authorised or justified or excused by law'.
2. Section 270 of the Code provides that any person who 'causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person'.
3. By s 277 of the Code, any person who 'unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter'.
4. Although s 270 defines when a person is deemed, as a matter of law, to have killed another person, s 270 is, in substance, a provision with respect to causation. See Martin v The Queen (No 2).[22]
5. Section 271, s 272, s 273, s 274 and s 275 of the Code are concerned with causation in particular circumstances. Section 271 relates to death from an act or omission at childbirth; s 272 to causing death by threats or intimidation; s 273 to acceleration of death; s 274 to death from bodily injury which might have been avoided or prevented by proper precautions or care; and s 275 to the death of a person as a result of surgical or medical treatment administered reasonably properly and in good faith after the person has suffered grievous bodily harm.
6. Section 271, s 272, s 273, s 274 and s 275 do not limit the generality of the causation requirement in s 270. See Martin (No 2) (139); Krakouer v The State of Western Australia.[23] I refer, in particular, to the expression 'directly or indirectly' in s 270 (emphasis added). See also TB.[24]
7. In Martin (No 2), it was said that each of s 271, s 272, s 273, s 274 and s 275 states a rule as to causation that applies in a 'commonly encountered difficult [case]', within the general field of operation of s 270. The rule is stated 'expressly and clearly for the particular case ... for the avoidance of doubt' (139).
8. In Campbell v The Queen,[25] the appellant was charged on indictment with unlawfully killing the deceased, who was an occupant of a car which collided with a car driven by the appellant. The jury acquitted the appellant of unlawful killing, but convicted him of causing the death of the deceased by driving a motor vehicle in a manner (including speed) that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 59(1) of the Road Traffic Act 1974 (WA). The appellant appealed on the ground that the trial judge had failed properly to direct the jury as to causation. The appeal was allowed. Burt CJ (Jones & Smith JJ agreeing) said in relation to the submission that the trial judge should have directed the jury that the appellant's conduct must be found to have been a substantial cause of the deceased's death:

Whether in this context it be permissible or helpful to introduce the word 'substantial' in a direction to the jury upon causation is a question upon which I would prefer at present to express no opinion. It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter (290).

1. In Royall, that statement of Burt CJ in Campbell was approved by Mason CJ (387), Deane and Dawson JJ (411 - 412) and Toohey and Gaudron JJ (423, 425).
2. As noted in Colvin E, Causation in Criminal Law (1989) 1 Bond Law Review 253, 259, two general tests have been applied in dealing with causation in the criminal law. One is the 'substantial cause' test and the other is the 'reasonable foreseeability' test. The 'substantial cause' test is retrospective in that it involves evaluating whether, by reference to all the facts and circumstances which have occurred, the accused's conduct had a substantial role in bringing about the result. The 'reasonable foreseeability' test is prospective in that it involves evaluating whether the result was a reasonably foreseeable consequence of the accused's conduct.
3. Section 270 does not specify the nature or strength of the causal connection between the act or omission of the accused, on the one hand, and the death, on the other. The reference in s 270 to 'directly or indirectly' suggests that a person may cause the death of another even though there is a degree of remoteness between the person's act or omission and the death.[26]
4. By s 270, properly construed, factual causation in a criminal trial, where the accused is alleged to have killed the deceased, requires the alleged conduct of the accused to have in fact caused the deceased's death. The relevant conduct of the accused does not have to be the sole, direct or immediate cause of the deceased's death. It is sufficient, for the purposes of factual causation, if the relevant conduct was, in fact, a cause. The tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them. See Krakouer [76] (McLure JA); TB [124].
5. However, even if the State's case in relation to factual causation is made out, it remains necessary for the State to establish legal causation. In other words, factual causation is a necessary, but not of itself a sufficient, condition of criminal liability. See Krakouer [77] (McLure JA); TB [125].
6. By s 270, properly construed, legal causation in a criminal trial, where the accused is alleged to have killed the deceased, is concerned with the attribution of criminal responsibility; in particular, with whether the factual connection between the alleged conduct of the accused and the deceased's death is sufficient to justify moral culpability and, therefore, criminal responsibility. It is established in relation to s 270 that legal causation requires that the alleged conduct of the accused must have substantially or significantly contributed to the deceased's death. It is for the tribunal of fact to decide whether or not the contribution of the relevant conduct of the accused was substantial or significant. See Krakouer [23], [30] ‑ [31], [39] (Steytler P; Wheeler JA agreeing), [77] (McLure JA); TB [126].
7. In TB, I construed s 272 in the context of appeals against conviction for manslaughter. It is convenient to reproduce at [152] ‑ [160] below my reasoning and conclusions (with which Mazza JA and Chaney J agreed) on the issues of construction which arose in that case.
8. The critical concepts in s 272 are, relevantly, those embodied in the words 'causes' and 'results'.
9. Where:

(a) an accused is tried on a count of unlawful killing;

(c) the case is a fright, escape or self-preservation case,

the State must prove beyond reasonable doubt, relevantly, the following.

1. First, the accused made threats or performed acts of intimidation as alleged by the State.
2. Secondly, the alleged threats or intimidation 'caused' the victim to do an act or make an omission.
3. Thirdly, the alleged act done or omission made by the victim 'resulted' in his or her death.
4. If the State proves those matters then the accused is deemed by s 272 to have killed the victim.
5. Section 272 is to be distinguished from s 270 of the Code in that:

(a) in s 270, the word 'causes' relates to the connection between the alleged means employed by the accused, on the one hand, and the death of the victim, on the other;

(b) in s 272, the word 'causes' relates to the connection between the alleged threats or intimidation of the accused, on the one hand, and the alleged act done or omission made by the victim, on the other;

(c) in s 272, the word 'causes' does not relate to the connection between the alleged threats or intimidation of the accused, on the one hand, and the death of the victim, on the other; and

(d) in s 272, unlike s 270, the moral culpability of the accused arises expressly from the statutory text, namely the express reference in s 272 to the accused's 'threats or intimidation'.

1. As to whether the accused's alleged threats or intimidation 'caused' the victim to do an act or make an omission, within s 272:

(a) the State must identify the alleged act done or omission made by the victim which was 'caused' by the alleged threats or intimidation of the accused;

(b) the tribunal of fact must determine whether, as a matter of objective fact, the accused's alleged threats or intimidation 'caused' the victim to do the alleged act or make the alleged omission;

(c) as to factual causation, the accused's alleged threats or intimidation do not have to be the sole, direct or immediate cause of the victim's alleged act or omission; it is sufficient, for the purposes of factual causation, if the tribunal of fact is satisfied beyond reasonable doubt that the alleged threats or intimidation were, as a matter of objective fact, a cause; and the tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them; and

(d) as to legal causation, the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the accused's alleged threats or intimidation contributed substantially or significantly to the doing of the victim's alleged act or the making of the victim's alleged omission.

1. As to whether the victim's alleged act or omission 'resulted' in his or her death, within s 272:

(a) the word 'results', in the context of the phrase 'do an act or make an omission which results in the death of that person', connotes that the victim's death was a consequence of the victim's alleged act or omission; and

(b) the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the victim's alleged act or omission 'resulted' in his or her death (that is, the death was, as a matter of objective fact, a consequence of the alleged act or omission).

1. It has not been authoritatively determined whether the concept of novus actus interveniens has any role or scope for operation where an accused is tried on a count of unlawful killing, the case is a fright, escape or self‑preservation case and the State relies upon the deeming provision in s 272.
2. The appellant in TB was tried before a judge alone in the Children's Court. The trial judge made all required findings of fact and published written reasons for judgment.
3. In TB, it was unnecessary to decide:

(a) in the context of s 272, whether an accused's alleged threats or intimidation will have 'caused' the victim to do an act or make an omission, within s 272, if the victim's alleged act or omission was unreasonable or disproportionate (having regard to all of the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced), even though the accused's alleged threats or intimidation substantially or significantly contributed to the victim doing the alleged act or making the alleged omission; or

(b) in the context of s 23B, whether an accused is not criminally responsible for the victim's alleged act or omission in response to the accused's alleged threats or intimidation if the victim's alleged act or omission was unreasonable or disproportionate (having regard to all of the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced) because, in those circumstances, the victim's alleged act or omission will have been 'an event which [occurred] by accident', within s 23B.

1. It was unnecessary in TB to resolve those points because, in any event, this court was satisfied beyond reasonable doubt, on the findings of fact made by the trial judge (which were either unchallenged or not challenged successfully in the appeal), that the act done by the victim in TB in response to the appellants' threats and intimidation was not unreasonable or disproportionate [169], [184].
2. It is necessary, however, in the present case to decide those points.
3. In my opinion, the reasoning and conclusions of the High Court in Royall in relation to s 18(1)(a) of the Crimes Act do not resolve the points which arise, in the present case, in relation to s 272 and s 23B. First, as I have mentioned, the Crimes Act has not, at any material time, included a provision comparable to s 272, the former s 23 or the current s 23B of the Code. Secondly, the word 'causing', within the phrase 'where the act of the accused ... causing the death charged', in s 18(1)(a) of the Crimes Act related to the connection between the alleged act of the accused, on the one hand, and the death of the victim, on the other. By contrast, in s 272, as I have mentioned, the word 'causes' relates to the connection between the alleged threats or intimidation of the accused, on the one hand, and the alleged act done or omission made by the victim, on the other. The word 'causes' in s 272 does not relate to the connection between the alleged threats or intimidation of the accused, on the one hand, and the death of the victim, on the other. Thirdly, the points which arise, in the present case, in relation to s 272 and s 23B must be resolved upon a proper construction of s 272 and s 23B in the context of the Code as a whole including, in particular, in the context of the interaction between s 272 and s 23B.
4. In Royall, Mason CJ (390), Deane and Dawson JJ (412) and Toohey and Gaudron JJ (425) accepted that at common law the concept of reasonable foreseeability underpins at least some of the rules of causation in the criminal law. However, their Honours rejected the concept of reasonable foreseeability as a test, in the context of s 18(1)(a) of the Crimes Act, of whether the victim's response to the accused's alleged threats or intimidation (that is, the victim's taking of the final fatal step) broke the chain of causation between the accused's alleged threats or intimidation, on the one hand, and the victim's death, on the other. Their Honours adopted, instead, a test based upon whether the victim's response was reasonable or proportionate having regard to the nature of the accused's alleged conduct and the fear it was likely to have induced. Their Honours did not refer to s 23 of the Code or s 23(1) of the Queensland Code (as in force at the time) or to s 13(1) of the Tasmanian Code.
5. In Royall, Brennan J (398 - 400) formulated the test, in the context of s 18(1)(a) of the Crimes Act, of whether the victim's response to the accused's alleged threats or intimidation (that is, the victim's taking of the final fatal step) broke the chain of causation between the accused's alleged threats or intimidation, on the one hand, and the victim's death, on the other, 'by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred "by accident" or "by chance"' (399). As is apparent from [118] and [120] above, his Honour said, in essence, that:

(a) The first stage of the test is whether the victim's taking of the final fatal step is a novus actus interveniens breaking the chain of causation; that is, whether, having regard to the nature of the accused's conduct and the fear it was likely to have induced, the victim's attempt at self‑preservation was reasonable or proportionate.

(b) The second stage of the test is whether, at the time the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final fatal step, the taking of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by an ordinary person.

1. A number of observations may be made about Brennan J's formulation of the test in Royall. First, his Honour formulated the test as an answer to '[t]he question whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step' (399) (emphasis added). Secondly, his Honour referred to the victim's 'final fatal step', and not to the victim's 'death', in stating that the tests under s 18(1)(a) of the Crimes Act were those that would be applied under the several Criminal Codes to determine whether such a final fatal step was 'an event' which had occurred 'by accident' (within s 23 of the Code or s 23(1) of the Queensland Code as in force at the time) or 'by chance' (within s 13(1) of the Tasmanian Code). Thirdly, the first stage of the test formulated by his Honour involves an evaluation of the reasonableness or proportionality of the victim's response in taking the final fatal step, having regard to the nature of the accused's conduct and the fear it was likely to have induced. Fourthly, the second stage of the test formulated by his Honour involves a determination as to whether the taking of the final fatal step by the victim was, subjectively, actually foreseen by the accused and, also, an assessment as to whether, in all the circumstances, the taking of the final fatal step by the victim was, objectively, reasonably foreseeable by an ordinary person. Fifthly, the first and second stages of the test formulated by his Honour were those to be applied in the context of s 18(1)(a) of the Crimes Act. Sixthly, although his Honour did not expressly refer to s 272 of the Code (or the equivalent provision in s 295 of the Queensland Code), it is apparent that his Honour considered that any issue as to whether an accused was criminally responsible under s 272 of the Code (or s 295 of the Queensland Code) for the victim's 'final fatal step', where the final fatal step was alleged to be unreasonable or disproportionate, was to be resolved under s 23 of the Code (or s 23(1) of the Queensland Code as in force at the time) by determining whether the final fatal step was 'an event' which had occurred 'by accident'.
2. This court has held, in effect, that the 'substantial cause' test of causation applies under s 270 and s 272. In particular, as I have mentioned, this court has held that legal causation under s 270 and s 272 requires that the alleged conduct of the accused must have substantially or significantly contributed to the victim's death, in the case of s 270, and that the alleged conduct of the accused must have substantially or significantly contributed to the victim's act or omission, in the case of s 272. See Krakouer [23], [30] - [31], [39], [77]; TB [162].
3. Accordingly, an accused who:

(a) by any means whatever, substantially or significantly contributes to the victim's death, within s 270; or

(b) by threats or intimidation of any kind, substantially or significantly contributes to the victim doing an act or making an omission which results in the victim's death, within s 272,

1. If an accused is deemed by s 272 to have killed the victim, the accused's killing of the victim will be unlawful (under s 268) and the accused will be criminally responsible for the killing and liable to be convicted, according to the circumstances of the case, of murder (under s 279) or manslaughter (under s 280), unless the accused discharges the evidential onus in relation to an 'authorisation' or a 'justification' or an 'excuse' by law (under s 268) and the State fails to negative the 'authorisation' or 'justification' or 'excuse' beyond reasonable doubt.
2. The reference to 'by law' in s 268, in the context of the phrase 'authorised or justified or excused by law', is to an authorisation or justification or excuse found in the Code or some later statute. The reference to 'by law' does not include an authorisation or justification or excuse at common law. See s 2 and s 4 of the Criminal Code Act 1913 (WA) which, in effect, make the Code the exclusive source of the law of Western Australia in all indictable offences with only the exceptions which s 4 specifies. See also Timbu Kolian v The Queen;[27] R v Patel.[28]
3. An 'excuse' within s 268 includes, relevantly, circumstances in which, by virtue of the Code, a person is not criminally responsible for having killed another person, including for a deemed killing within s 272.
4. In my opinion, if an accused is deemed to have killed the victim because the accused's threats or intimidation substantially or significantly contributed to the victim doing an act or making an omission which resulted in the victim's death, within s 272, the victim's response will not be a novus actus interveniens. Relevantly, the causal connection established upon satisfaction of the 'substantial cause' test will not be broken, and the deeming provision in s 272 will not fail to be engaged, if the victim's act or omission was an unreasonable or disproportionate response to the accused's threats or intimidation.
5. On a proper construction of the provisions of the Code with respect to homicide and the provisions of the Code with respect to criminal responsibility, there is a distinction between the concept of and test for causation under s 272 and the concept of and test for the defence of accident under s 23B. Section 272 is concerned with deemed causation in relation to a person's death. Section 23B is concerned with criminal responsibility; relevantly, with criminal responsibility for a death which the accused is deemed, by s 272, to have caused.
6. The concept of the defence of accident under s 23B is broader in scope than the concept of causation under s 272. For example, in a particular case, the defence of accident under s 23B may apply even though the 'substantial cause' test of causation under s 272 is satisfied. In other words, an accused whose threats or intimidation substantially or significantly contributed to the victim doing an act or making an omission which resulted in the victim's death, within s 272, may nevertheless be excused by s 23B from criminal responsibility for the death.
7. In my opinion, if the accused's threats or intimidation substantially or significantly contributed to the victim doing an act or making an omission which resulted in the victim's death, within s 272, whether the accused is criminally responsible for the death where the victim's response to the threats or intimidation was unreasonable or disproportionate is to be determined by reference to the provisions of ch V of the Code; in particular, by reference to s 23B.
8. Section 23B(2) states that a person is not criminally responsible 'for an event which occurs by accident'. Section 23B(2) does not expressly or impliedly confine the number of 'events' which, in a particular case, may potentially occur by accident. The number of 'events' and the nature of each 'event' which, in a particular case, may potentially occur 'by accident' depends upon the factual elements of the charged offence for which the accused is alleged to be criminally responsible and the facts and circumstances of the case.
9. Section 270 contains one potential 'event' for the purposes of the defence of accident under s 23B, namely the death of the victim. See [110] above.
10. By contrast, s 272 contains two potential 'events' for the purposes of the defence of accident under s 23B. The first 'event' is the victim's alleged act or omission in response to the accused's alleged threats or intimidation. The second 'event' is the victim's death which results from his or her alleged act or omission.
11. The victim's alleged act or omission in response to the accused's alleged threats or intimidation, within s 272, will be an 'event' which occurs 'by accident', within s 23B, if:

(a) the victim's alleged act or omission in response to the accused's alleged threats or intimidation was unreasonable or disproportionate, having regard to all the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced; and

(b) subjectively, the accused did not intend or foresee the victim's alleged act or omission as a possible outcome or consequence of the accused's alleged threats or intimidation and, objectively, the victim's alleged act or omission would not reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the accused's threats or intimidation (excluding, in each case, possibilities that are no more than remote and speculative).

1. If, in a particular case, the tests I have enunciated are satisfied, the victim's alleged act or omission in response to the accused's alleged threats or intimidation will be an event that was both unexpected by the accused and not reasonably to be expected by an ordinary person, so that, as Kitto J observed in Vallance, the event was 'at once a surprise to [the accused] and in itself a surprising thing' (65).
2. If the accused satisfies the evidential onus in relation to the application of the defence of accident under s 23B to the first 'event' within s 272 (namely, the victim's alleged act or omission in response to the accused's alleged threats or intimidation), the State can disprove accident if it proves beyond reasonable doubt that:

(a) the victim's alleged act or omission in response to the accused's alleged threats or intimidation was not unreasonable or disproportionate, having regard to all of the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced; or

(b) subjectively, the accused intended or foresaw the victim's alleged act or omission as a possible outcome or consequence of the accused's alleged threats or intimidation or that, objectively, the victim's alleged act or omission would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the accused's threats or intimidation (excluding, in each case, possibilities that are no more than remote and speculative).

1. If the State fails to negate accident, the victim's alleged act or omission in response to the accused's alleged threats or intimidation will be 'an event which occurs by accident', within s 23B(2). The accused will not be criminally responsible for the death which he or she is deemed by s 272 to have caused.
2. My analysis of the application of the defence of accident under s 23B to the first 'event' within s 272 (namely, the victim's alleged act or omission in response to the accused's alleged threats or intimidation) is supported by the observations of Brennan J in Royall (398 ‑ 400); in particular, by his Honour's statement that 'whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step is resolved at common law by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred "by accident" or "by chance"' (399) (emphasis added).
3. The victim's death which results from his or her alleged act or omission, within s 272, will be an 'event' which occurs 'by accident', within s 23B, if, subjectively, the accused did not intend or foresee the victim's death as a possible outcome or consequence of the victim's alleged act or omission and, objectively, the victim's death would not reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the victim's alleged act or omission (excluding, in each case, possibilities that are no more than remote and speculative).
4. If, in a particular case, the tests I have enunciated are satisfied, the victim's death which results from his or her alleged act or omission will be an event that was both unexpected by the accused and not reasonably to be expected by an ordinary person, so that, as Kitto J observed in Vallance, the event was 'at once a surprise to [the accused] and in itself a surprising thing' (65).
5. If the accused satisfies the evidential onus in relation to the application of the defence of accident under s 23B to the second 'event' within s 272 (namely, the victim's death which results from his or her alleged act or omission), the State can disprove accident if it proves beyond reasonable doubt that, subjectively, the accused intended or foresaw the victim's death as a possible outcome or consequence of the victim's alleged act or omission or that, objectively, the victim's death would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the victim's act or omission (excluding, in each case, possibilities that are no more than remote or speculative). If the State fails to negate accident, the victim's death which results from his or her alleged act or omission will be 'an event which occurs by accident', within s 23B(2). The accused will not be criminally responsible for the death which he or she is deemed by s 272 to have caused.
6. I acknowledge that the opinions I have expressed in relation to the operation of s 23B, in the context of s 272, differ from the analysis in TB. However, in TB, the State and the appellants ran their cases at trial and in the appeals on the basis that:

(a) the only relevant 'event', for the purposes of the defence of accident, was the victim's death; and

(b) the critical question was whether the State had negated accident by proving, beyond reasonable doubt, that, objectively, the victim's death would reasonably have been foreseen by an ordinary sober person (of the age of each of the juvenile appellants and with his knowledge of the relevant facts and circumstances) as a possible outcome or consequence of the threats and intimidation (excluding possibilities that were no more than remote and speculative) [278] ‑ [283].

1. Also, as I have mentioned, it was unnecessary in TB to decide, in the context of s 23B, whether an accused is not criminally responsible for the victim's alleged act or omission in response to the accused's alleged threats or intimidation if the victim's alleged act or omission was unreasonable or disproportionate, having regard to all of the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced.
2. In the present case, the trial judge considered that any suggestion that Ms Fairhead's action '[broke] the chain of causation' would be 'sufficiently dealt with by telling the jury that ... legal causation requires [that any threats and intimidation] be a substantial or significant cause' of her action (ts 1039). His Honour was of the view that 'if the jury is satisfied [that any threats and intimidation were] a substantial and significant cause [of Ms Fairhead's action], then that would seem to negative any possibility that [her action] was an overreaction' (ts 1040).
3. In my opinion, his Honour was in error in the views he expressed. The requirement of legal causation that, as a matter of objective fact, the appellants' alleged threats or intimidation be a substantial or significant cause of Ms Fairhead's alleged action focussed upon the strength of any causal connection between the appellants' conduct and Ms Fairhead's response. The determination of that issue did not raise for consideration whether Ms Fairhead's alleged action was unreasonable or disproportionate, having regard to all of the circumstances, including the nature of the appellants' alleged threats or intimidation and the fear they were likely to have induced. Any consideration of whether Ms Fairhead's alleged action was unreasonable or disproportionate was separate and distinct from the determination of whether the appellants' alleged threats or intimidation were a substantial or significant cause of her alleged action.
4. A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence, even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it. See Pemble v The Queen;[29] Van Den Hoek v The Queen;[30] Fingleton v The Queen;[31] Braysich v The Queen.[32]
5. On the evidence adduced at the trial, questions arose as to:

(a) whether Ms Fairhead's action in opening the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and exiting the vehicle, was an unreasonable or disproportionate response to the appellants' alleged threats or intimidation having regard to all of the circumstances, including the nature of the appellants' alleged threats or intimidation and the fear they were likely to have induced; and

(b) whether, subjectively, any of the appellants intended or foresaw Ms Fairhead's action as a possible outcome or consequence of the appellants' alleged threats or intimidation or whether, objectively, Ms Fairhead's action would reasonably have been foreseen by an ordinary person, in the appellants' position, as a possible outcome or consequence of the appellants' threats or intimidation (excluding, in each case, possibilities that were no more than remote or speculative).

1. It was necessary for the trial judge to direct the jury under s 23B in relation to Ms Fairhead's alleged action in response to the appellants' alleged threats and intimidation by giving a direction in accordance with [182] above. His Honour's failure to give that direction occasioned a miscarriage of justice.
2. Also, his Honour had to consider whether, on the evidence and the issues in contest, it was necessary to give a direction in accordance with [187] above. I note, however, that the State accepted at the trial that the appellants did not intend that Ms Fairhead would die and did not foresee it.
3. It was unnecessary for his Honour to direct the jury to the effect that:

(a) the State had to prove that Ms Fairhead's action was not 'irrational', as asserted in particular 2.1 of Mr Yarran's and Mr Smith's ground 2;

(b) the State had to prove that Ms Fairhead's fear or apprehension was 'well‑founded', as asserted in particular 2.2 of Mr Yarran's and Mr Smith's ground 2; or

(c) the State had to establish that Ms Fairhead's alleged action was the 'natural consequence' of the alleged threats and intimidation, as asserted in particular 2.3 of Mr Yarran's and Mr Smith's ground 2.

1. The State did not have to prove those matters. They are not integral aspects of the tests for accident under s 23B in relation to the first 'event' or the second 'event' within s 272.
2. My reasoning and conclusions in relation to the issues raised by Mr Yarran's and Mr Smith's ground 2 and Mr Boag's grounds 4 and 7 are different from the submissions advanced by their counsel on those grounds. However, the substance of material aspects of Mr Yarran's and Mr Smith's ground 2 and of Mr Boag's grounds 4 and 7 has been made out. His Honour misdirected the jury on the defence of accident under s 23B in relation to the charge of manslaughter.
3. I would therefore allow each of Mr Yarran's, Mr Boag's and Mr Smith's appeal against his conviction for manslaughter. The judgments of conviction for manslaughter should be set aside and a new trial on that count should be ordered.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 1

1. Counsel for Mr Yarran and Mr Smith submitted that the trial judge erred in failing to direct the jury that if Ms Fairhead inadvertently fell from the vehicle and, when she fell:

(a) Ms Fairhead did not intend to fall from the vehicle; and

(b) Ms Fairhead's fall was not as a result of her deliberately jumping from the vehicle to escape threats or intimidation and her fall was not as a result of Mr Yarran deliberately swerving the vehicle so as to cause her to fall,

then Ms Fairhead's fall would have been a novus actus interveniens that broke the chain of causation for the purposes of s 272 of the Code.

(a) the requirement of factual causation, in the context of s 272, is that the accused's alleged threats or intimidation were, as a matter of objective fact, a cause of the victim's alleged act or omission; and

(b) the requirement of legal causation, in the context of s 272, is that the accused's alleged threats or intimidation were, as a matter of objective fact, a substantial or significant cause of the victim's alleged act or omission.

(a) the appellants' alleged threats and intimidation caused Ms Fairhead to open the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and to exit the vehicle; and

1. In the present case, his Honour gave directions in accordance with [203] above. If the jury was satisfied beyond reasonable doubt that the appellants' alleged threats or intimidation substantially or significantly contributed to Ms Fairhead's action in opening the door of a moving motor vehicle in which she was a passenger, while not wearing a seatbelt, and exiting the vehicle, that causal connection would not be broken, and the deeming provision in s 272 would not fail to be engaged, by any of the matters raised in ground 1. His Honour was not required to direct the jury to the effect alleged in Mr Yarran's and Mr Smith's ground 1.
2. Mr Yarran's and Mr Smith's ground 1 is without merit.

Appeals against conviction: Mr Yarran's and Mr Smith's ground 3

1. I agree with Mazza and Beech JJA, generally for the reasons they give, that there is no merit in Mr Yarran's and Mr Smith's ground 3.

Appeals against conviction: Mr Boag's grounds 1, 3, 5 and 6

1. I agree with Mazza and Beech JJA, generally for the reasons they give, that there is no merit in Mr Boag's grounds 1, 3, 5 and 6.

Appeals against sentence by Mr Boag and Mr Smith

1. Each of the appeals against sentence by Mr Boag and Mr Smith challenges the individual sentence imposed by the trial judge for count 7 (being the manslaughter offence) and the total effective sentence. Neither of the appeals challenges any of the individual sentences for any of the other counts.
2. The individual sentences imposed on Mr Boag are set out at [13] above. The individual sentences imposed on Mr Smith are set out at [15] above. The individual sentences imposed on them were identical. His Honour ordered that the individual sentence imposed on each of Mr Boag and Mr Smith for count 4 (3 years' imprisonment) commence upon him having served 18 months of the individual sentence for count 1 (4 years 6 months' imprisonment) and that the individual sentence for count 7 (8 years' imprisonment) commence upon him having served 1 year of the sentence for count 4. All of the other individual sentences were ordered to be served concurrently. The total effective sentence imposed on each of Mr Boag and Mr Smith was therefore 10 years 6 months' imprisonment.
3. If, as I would order, the judgment of conviction for count 7 (being the manslaughter offence) is set aside and a new trial on that count is ordered, the individual sentences for counts 1, 2, 3, 4, 5 and 6 will remain undisturbed and the total effective sentence in respect of those

counts, namely 4 years 6 months' imprisonment, will continue to be served. That total effective sentence of 4 years 6 months' imprisonment is equal to the individual sentence of 4 years 6 months' imprisonment imposed for each of counts 1, 2 and 3. The backdating of the total effective sentence to 9 August 2016, in the case of Mr Boag, and to 4 August 2016, in the case of Mr Smith, and the parole eligibility order made in respect of each of them, will remain undisturbed.

1. It is apparent from the trial judge's sentencing remarks that the individual sentences he imposed were not influenced by totality considerations.
2. In the circumstances, it is unnecessary to determine the appeals against sentence.

1. I agree with the orders proposed by Mazza and Beech JJA.

1. On 21 March 2018, Lucas Yarran, Ross Boag and Leroy Smith were each convicted after trial of three counts of aggravated armed robbery, three counts of deprivation of liberty and one count of manslaughter. The State case against them on the manslaughter count relied on s 272 of the Criminal Code (WA). That section provides that a person 'who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed' the person.
2. On 8 June 2018, they were sentenced as follows:

(1) Mr Yarran: a total effective sentence of 11 years' imprisonment.

(2) Mr Boag: a total effective sentence of 10 years 6 months' imprisonment.

(3) Mr Smith: a total effective sentence of 10 years 6 months' imprisonment.

1. Each of Mr Yarran, Mr Boag and Mr Smith appeals his conviction on the count of manslaughter. They do not appeal their convictions on the other counts. Mr Boag and Mr Smith also appeal their sentences.
2. For the reasons that follow, we would uphold the appeals against conviction and order a retrial on the count of manslaughter. Consequently, it is not appropriate to determine the appeals against sentence, which should be dismissed.
3. In summary, we would uphold the appeals against conviction because, in our respectful opinion:

(1) On a proper construction of s 272 of the Code, a conclusion that the deceased's response to the accused's threats or intimidation (or deceit) was unreasonable or disproportionate may prevent satisfaction of the requirement, under s 272 of the Code, that the threats or intimidation (or deceit) caused the deceased to do the act. Whether it does so is a question for the jury, and to which the jury's attention should be directed.

(2) The defence case at trial included a contention, fairly arising on the evidence, that the deceased's act of opening the door of a moving car whilst not wearing a seatbelt was an unreasonable or disproportionate response to whatever threats or intimidation might have occurred.

(3) Defence counsel sought a direction from the judge to that effect.

(4) The judge declined to give such a direction, saying that this issue was encompassed by the requirement that the threats or intimidation were a substantial or significant cause of the deceased's act.

(5) In the circumstances of the trial, more was required than the direction, in general terms, that the threats or intimidation must be a substantial or significant cause of the deceased's act. The jury's attention needed to be directed to the question of whether, in opening the car door, the deceased's response to such threats or intimidation as the jury found to have occurred was an unreasonable or disproportionate response. In deciding whether the accused's threats or intimidation substantially or significantly contributed to the deceased's act, the jury could take into account whether, in their view, the deceased's act was an unreasonable or disproportionate response to the threats or intimidation. In the circumstances, a direction to the effect outlined in [294] below was required.

1. The State case at trial in respect of the count of manslaughter was, in summary, that Mr Yarran, Mr Boag and Mr Smith, by threats or intimidation, caused the deceased (Ms Peta Fairhead) to do an act, namely, open the door of a moving car while not wearing a seatbelt, which resulted in her death.[33] The State case was that s 272 of the Code deemed Mr Yarran, Mr Boag and Mr Smith to have killed Ms Fairhead. Its case was put on the basis that Mr Yarran, Mr Boag and Mr Smith were joint principals because they all did an act or acts in a series of acts that resulted in Ms Fairhead being threatened or intimidated.[34]
2. On the evening of 2 August 2016, Mr Yarran, Mr Boag and Mr Smith were at a house in Ridgewood at which they were living or staying. SH, a co-accused on two of the aggravated armed robbery counts at trial, and a female friend of hers, were visiting the house, together with Georgia McEwan. SH was 15 years old and Ms McEwan was 17 years old.[35]
3. The group had congregated in a room near the front of the house that was being used as a lounge room. Mr Yarran asked the others whether they knew anyone they could 'roll for gear'.[36] SH said she knew a few people and started using her mobile phone. Not long after, she said something like, 'I have someone'.[37] That someone was Cody Watson. SH had not met Mr Watson before, but had connected with him through Facebook. The pair exchanged messages that evening discussing drugs and intimacy and Mr Watson expressed a desire to meet her. The State alleged that the messages were an act on SH's part and, at that stage, SH and Mr Yarran, at least, had formed a plan to lure Mr Watson to the Ridgewood address to rob him.[38]
4. At the time of the messages, Mr Watson was four wheel driving in Mundaring with William Wilton and Ms Fairhead in Ms Fairhead's Toyota Prado. Following the exchange of messages, Ms Fairhead agreed to drive Mr Watson to the address in Ridgewood, and Mr Wilton went along for the journey.[39]
5. At around 1.50 am on 3 August 2016, Mr Watson, Mr Wilton and Ms Fairhead arrived at the address in Ridgewood. SH and her female friend were waiting outside to meet them. SH invited the three inside the house. When Mr Watson, Mr Wilton and Ms Fairhead got to the front door of the house, three males came running at them. Two of the males, Mr Boag and Mr Smith, were armed with baseball bats. The third male, Mr Yarran, was armed with a large machete.[40]
6. While wielding the machete, Mr Yarran demanded drugs from Mr Watson. Mr Watson tried to explain why he was there, but was struck in the leg with the baseball bat wielded by Mr Smith. Mr Watson and Ms Fairhead then ran back towards the Prado, but were stopped. Mr Wilton attempted to defuse the situation by explaining why they were at the house. Mr Yarran calmed down and shook Mr Wilton's hand. Mr Watson, Mr Wilton and Ms Fairhead were then ushered into the lounge room near the front of the house. SH, her female friend and Ms McEwan were already in the lounge room.[41]
7. Mr Watson had been carrying an ornamental knife when he arrived at the house. This knife was taken from Mr Watson at some point either before he entered the house or once he was inside. Mr Boag got hold of Mr Watson's knife and used it and the baseball bat as weapons during the rest of the incident.[42]
8. At first, the mood in the lounge room was friendly. Mr Yarran even apologised for his earlier behaviour. However, Mr Yarran then became very angry. He slammed a coffee table in the lounge room with the machete.[43] He demanded drugs again. He put the blade of the machete up against Mr Watson's head and hit his forehead, drawing blood. Mr Yarran then got angry that Mr Watson was bleeding on the floor. At this point, SH, her female friend and Ms McEwan left the lounge room.[44]
9. Mr Yarran demanded that Mr Watson and Mr Wilton strip so they could be searched. They both complied. When Mr Wilton was searched, his mobile phone, some money and a small amount of methylamphetamine were taken from him. When Mr Watson was searched, his mobile phone and some methylamphetamine were taken from him. Ms Fairhead was in the lounge room while Mr Watson and Mr Wilton were strip-searched, and had her mobile phone and car keys taken from her.[45]
10. Mr Yarran, and possibly Mr Smith, then took Ms Fairhead to the main bedroom of the house. Ms Fairhead was pushed into the bedroom, where SH, her female friend and Ms McEwan were situated. Mr Yarran told Ms McEwan to strip-search Ms Fairhead while holding the machete in his hand.[46] Inside the bedroom, Ms Fairhead was crying and began to undress. Ms McEwan told her she did not have to undress and tried to comfort her.[47]
11. While Ms Fairhead was in the bedroom, Mr Yarran took Mr Wilton down the hallway into the laundry. He held the machete to Mr Wilton's neck and said he was giving Mr Wilton a chance to tell him what else he had on him. He punched Mr Wilton in the face. Mr Boag then came into the laundry. He grabbed Mr Wilton's right hand and put it on the laundry cabinet. Using the knife he had taken from Mr Watson, he pressed the blade into Mr Wilton's finger, leaving a mark.[48]
12. While Mr Boag remained in the laundry with Mr Wilton, Mr Yarran and Mr Smith returned to the bedroom and brought Ms Fairhead out. Ms McEwan was told to stay in the bedroom, which she did. She heard lots of yelling coming from the lounge room, and heard Mr Yarran saying humiliating things to Mr Watson and Mr Wilton.[49]
13. Mr Yarran said he was going to search Ms Fairhead's car and took Ms Fairhead with him. When he returned to the house, he made Mr Wilton, Mr Watson and Ms Fairhead sit on a couch in the lounge room. Mr Boag, who by that stage had the machete, grabbed Mr Wilton's hand and held his little finger on the coffee table. He raised the machete and swung it at Mr Wilton's finger, but let go of Mr Wilton's hand so Mr Wilton was able to pull his finger out of the way. The machete hacked into the coffee table.[50]
14. Mr Smith demanded that Mr Wilton hand over a bracelet he was wearing, with which demand Mr Wilton reluctantly complied. Mr Smith then demanded that Mr Watson hand over a neck chain he was wearing and he pulled it off Mr Watson's neck.
15. Mr Yarran, Mr Boag and Mr Smith then took Mr Watson, Mr Wilton and Ms Fairhead outside and made them get in the Prado. Ms Fairhead was made to sit in the front passenger seat while Mr Yarran got into the driver's seat. Mr Yarran tucked the machete between the centre console and his seat. Mr Wilton was made to sit in the middle of the back passenger seat while Mr Boag and Mr Smith sat on either side of him. Mr Watson was made to get in the very back of the Prado. No one wore a seat belt.[51]
16. Mr Yarran drove erratically and threatened to kill Mr Watson, Mr Wilton and Ms Fairhead by taking the car out bush and burning it with them in it. At some point, after Mr Yarran had been driving for a while, Ms Fairhead opened the passenger door. She reached for the machete. Mr Yarran went to grab either her or the machete, the car swerved and Ms Fairhead either fell or jumped out of the car, along with the machete. She fell onto the road and suffered a serious head injury.[52]
17. After a short time of further erratic driving, Mr Yarran turned the Prado back and returned to where Ms Fairhead was lying on the road. Mr Smith retrieved the machete and handed it to Mr Yarran. Mr Smith, Mr Boag and Mr Wilton then put Ms Fairhead, who was unconscious and bleeding from the back of her head, in the passenger seat of the car. Mr Yarran drove the car at speed towards Joondalup Hospital, where Mr Boag and Mr Smith pulled Ms Fairhead out of the car and left her lying outside the main entrance. They then jumped back in the car and Mr Yarran drove off.[53]
18. Not long afterwards, two hospital security guards found Ms Fairhead and one of them, along with some other hospital staff, performed CPR. Members of the Medical Emergency Team followed and took over treatment. However, Ms Fairhead was unable to be revived and passed away.[54]
19. The State case was that all of Mr Yarran, Mr Boag and Mr Smith were liable for manslaughter because they each did an act or acts in a series of acts that resulted in Ms Fairhead being threatened or intimidated. The threats or intimidation were said to have resulted from a combination of words and actions, including:

(1) Mr Yarran, Mr Boag and Mr Smith confronting Ms Fairhead and the others, while armed, outside the house;[55]

(2) Mr Yarran, Mr Boag and Mr Smith confining Ms Fairhead and the others in the house and then separating them;[56]

(3) Mr Yarran, in Ms Fairhead's presence, getting angry and slamming the machete into the coffee table in the lounge room;[57]

(4) Mr Yarran, in Ms Fairhead's presence, hitting Mr Watson on the forehead with the machete, drawing blood;[58]

(5) Mr Yarran, Mr Boag and Mr Smith, in Ms Fairhead's presence, strip-searching Mr Wilton and Mr Watson and stealing from them and her;[59]

(6) Mr Yarran's order to Ms McEwan to strip-search Ms Fairhead, said in a threatening way with the machete in his hand;[60]

(7) Mr Yarran, Mr Boag and Mr Smith forcing Ms Fairhead and the others into Ms Fairhead's Prado while armed;[61]

(8) Mr Yarran's threat to kill Ms Fairhead and the others by burning the car with them in it;[62]

(9) Mr Yarran, Mr Boag and Mr Smith being armed with baseball bats, a machete and Mr Watson's knife over the course of the incident;[63]

(10) Mr Yarran, in Ms Fairhead's presence, demanding more drugs;[64] and

(11) the tone of voice used during the incident.[65]

1. In the State case at trial, it did not matter whether Ms Fairhead fell or jumped out after she opened the door of the Prado.[66] All that mattered was whether she opened the car door intending to exit the vehicle,[67] and whether she did so as a result of the threats or intimidation by Mr Yarran, Mr Boag and Mr Smith.[68] The prosecutor made detailed submissions in closing to rebut the inference invited by the defence, that Ms Fairhead opened the door because of a domestic situation with her then-partner.[69]
2. The State submitted in closing that, bearing in mind what had gone on at the house, the only reasonable inference was that it was the combination of the threatening and intimidating acts of the three appellants that caused Ms Fairhead to open the door of the car and to try to reach for the machete.[70] It was, the prosecutor said, 'an act by a threatened and intimidated woman who was desperate to escape from the terrifying situation she was in'.[71]
3. In respect of the defence of accident, the State case was that when one considers the circumstances in which Ms Fairhead's death occurred, including all that occurred between the time she arrived at the house and the time she opened the car door, one would have no difficulty in being satisfied that Ms Fairhead's death was reasonably foreseeable.[72]

1. The judge stated that, while each of Mr Yarran, Mr Boag and Mr Smith put a separate case, the defence cases were, in essence:[73]

[T]hat whilst there was an initial confrontation outside the house that that was a mistake, in effect. A mistake that was reasonably caused because there had been some incident about a week earlier in which some men, who were described as Africans, had come to the house and run through or at least attempted to run through the house.

That it was in this context that they had armed themselves and confronted Mr Wilton, Mr Watson and Ms Fairhead outside the front. But when they realised their mistake, they didn't persist in that. That things were then amicable. That they went into the house. There was mutual drug use. When the drugs were finished there was then an agreement to all go together voluntarily to get more drugs. That there was no robbery, there was no stealing. And there was nothing done to cause [Ms] Fairhead to jump from the car.

1. Each of the appellants' cases at trial in respect of their count of manslaughter are described in more detail below.

1. Mr Yarran's case at trial in respect of his count of manslaughter was that Ms Fairhead's decision to leave the motor vehicle was an inexplicable action voluntarily engaged in by Ms Fairhead while under the influence of methamphetamine and in response to a domestic violence situation she had been experiencing with her then-partner, and that the jury could not be satisfied beyond reasonable doubt that anything done by Mr Yarran caused her to decide to do so.[74]
2. Mr Yarran was the only accused who gave evidence at trial. His case was that Mr Boag, Mr Smith, Mr Watson, Mr Wilton, Ms Fairhead and he were embarking on an early morning journey in Ms Fairhead's Prado to collect drugs.[75]
3. Mr Yarran's case was that Ms Fairhead was upset and distressed on 2 April 2016, owing to domestic violence issues she was experiencing with her then-partner.[76] His case was that it was difficult, bordering on impossible, to isolate the reality of this domestic violence background from the decision made by Ms Fairhead to leave the vehicle.[77]
4. Further, Mr Yarran's case was that Ms Fairhead had been using methylamphetamine earlier that night and that other drugs were in her system.[78]
5. Mr Yarran's case was that it is always difficult, in circumstances where someone has voluntarily decided to leave a moving motor vehicle, to attribute causal blame to somebody else.[79] The jury would have to be satisfied to a very high degree that the conduct of Mr Yarran in and around the relevant period of time was threatening, violent and essentially horrendous.[80] Even if the jury accepted the State case as to what Mr Yarran did at its highest, her decision to leave the Prado was inexplicable; it was not possible to say, even if it were accepted that Mr Yarran had been violent, that he, or his actions, caused Ms Fairhead to make her decision.[81] Indeed, Mr Yarran actually reached out to try to stop Ms Fairhead falling out.[82] Further, counsel pointed to evidence that Ms Fairhead had said, 'Sorry, I can't do this'.[83]
6. Ultimately, Mr Yarran's case was that, given the evidence of drug use and domestic violence, it was simply not possible to arrive at the view beyond reasonable doubt that it was anything done by Mr Yarran which was a significant cause of Ms Fairhead's decision to leave the vehicle.[84]
7. In respect of the defence of accident, Mr Yarran's case was that it was not reasonably foreseeable to him, or anyone, that Ms Fairhead would make the decision to jump out of the moving car,[85] and Ms Fairhead's death was not a reasonably foreseeable consequence.[86]

1. Similarly to Mr Yarran, Mr Boag's case was that the purpose for leaving the house in the Prado was to go somewhere else to source more drugs. There was no forcing anybody to do anything.[87]
2. Mr Boag's case was that he was not responsible for Ms Fairhead's death because it was not possible to know what was on Ms Fairhead's mind at the time she went out of the car.[88] In opening, counsel said that her reaction in exiting the car was not a reasonable response to whatever might have happened before that.[89]
3. Ms Fairhead intending to exit the car because of threats and intimidation was not the only reasonable inference that could be drawn; her domestic violence situation, the troubles she was having in that respect that very day, her consumption of drugs, her mood at the time and her actions at the time gave rise to an equally available inference that Ms Fairhead was endeavouring to self-harm. Even if this was not to the level of Ms Fairhead intending to commit suicide, it was reasonably open to the jury to infer that Ms Fairhead was trying to harm herself to teach her partner a lesson.[90]
4. Mr Boag's case was that Ms Fairhead's actions were not reasonably foreseeable,[91] and that, whatever had been going on beforehand, it was not a reasonable response for Ms Fairhead to leap out of the car because of threats and intimidation.[92]

1. Mr Smith's case was that the six people willingly got into the Prado to go elsewhere to get more drugs after the drugs had run out at the house. They were on the way when Ms Fairhead jumped or fell out of the car to her death. She may or may not have meant to die, but either way nothing Mr Smith did or said that night had anything whatsoever to do with her death.[93]
2. Mr Smith's case was that this was not a case of manslaughter but a case of a woman driven to the edge by a combination of unfortunate life circumstances that had nothing to do with anyone present at the house that night. Those life circumstances included a marriage breakdown, a separation from three young children who were in the car of her ex-husband, intravenous methylamphetamine use and other drug use, a domestic violence situation which had been escalating over the preceding 10 to 11 days, a violent, abusive and mentally unstable ex-partner from whom Ms Fairhead had finally taken the step of leaving, and a mind and body affected by drugs and alcohol at the time of her death.[94]

1. At the outset, the judge identified what he suggested were the essential issues. His Honour observed that it was not in issue that Mr Watson, Mr Wilton and Ms Fairhead went to the house in Ridgewood in the early hours of the morning on 3 August 2016, and that sometime later Ms Fairhead received fatal injuries after falling or jumping from a moving car.[95] The judge identified the matters in issue, broadly speaking, as:

(1) whether each of Mr Watson, Mr Wilton and Ms Fairhead were robbed and, if so, whether each accused was a party to those acts of robbery;

(2) whether each of Mr Watson, Mr Wilton and Ms Fairhead were forced to stay in the house and then get into the car with threats of violence and thereby were unlawfully detained, and whether each of the male accused was a party to that detention; and

(3) whether Ms Fairhead's action in opening the door of the moving car and falling or jumping out was caused by threats or intimidation and whether each of the male accused was a party to such threats or intimidation.[96]

1. His Honour explained to the jury the ways in which the law provides that a person may be responsible for an offence.[97] He informed the jury that:

(1) Each of the following persons is deemed to have taken part and be guilty of an offence that has been committed:

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do an act for the purpose of aiding or enabling another person to commit the offence; and

(c) every person who aids another person in committing the offence.[98]

(2) When an offence consists of numerous acts and those acts have been done by more than one person, if two or more people act in concert, each of them doing one or more of the acts which together constitute the offence are all guilty of the offence.[99]

(3) To act in concert means to act together with the same purpose.[100]

1. In the general part of his summing up, the judge identified that the State case was that the three male accused (the three appellants) were alleged to be joint principals in respect of all counts, that is, the prosecution alleged that they acted in concert to commit each of the offences, each of them doing one or more acts and those acts together constituting each offence.[101] The acts relied upon included the use of weapons to threaten or intimidate, conducting searches of the people concerned, taking property from them and forcing the three alleged victims into the car.[102] The judge added that the State said, alternatively, that Mr Yarran was the principal offender and Mr Boag and Mr Smith aided Mr Yarran in the commission of the offence.[103] Whether the judge's reference to the State's alternative case was to be taken as encompassing the manslaughter count is raised by ground 1 of Mr Boag's appeal against conviction.
2. The judge provided the jury with a page headed 'Criminal Responsibility', which set out substantially the same matters. His Honour read passages from that sheet to the jury.[104]
3. After dealing with a number of matters that are not presently relevant, his Honour turned to the elements of the offence of manslaughter.[105] His Honour explained that there were three elements: the identity of the accused; the killing of another person; and that the killing was unlawful.[106] His Honour identified that there was no real issue as to identity or unlawfulness and that the jury might think the only issue was whether the accused were responsible for the killing of Ms Fairhead.[107]
4. His Honour then said as follows:[108]

To kill a person means to cause the death of that person directly or indirectly by any means whatever.

Now, the law provides that a person who by threats or intimidation of any kind causes another person to do an act that results in the death of that other person is deemed to have killed him or her. If you turn to the third of the handouts that I've given you, you'll see that that's headed Causing Death by Threats or Intimidation. So that first paragraph reflects what I've just told you:

The law provides that a person who by threats or intimidation of any kind causes another person to do an act which results in the death of that other person is deemed to have killed him or her.

The law here provides for cases where a person is driven to do a dangerous act due to fear, a desire to escape or a hope of self-preservation by the conduct of another person. That's what the prosecution alleges here, namely that the accused together made threats to and intimidated Ms Fairhead and that those threats and intimidation caused her to do an act which resulted in her death. Now, it's not to the point to say that it was Ms Fairhead's act that caused her death. The question is what caused her to act as she did and in particular was her act caused by the accused.

The act which Ms Fairhead is alleged to have done is open the door of a moving car in circumstances where she was not wearing a seatbelt. Now, there's some evidence that she may have pushed herself out of the car. Mr Wilton gave some evidence about that, but the prosecution say[s] it doesn't matter because whether she fell or jumped, it is clear that she deliberately opened the car door. Now, there seems to be no dispute that she did that. The issue is did the accused cause her to do it by threats or intimidation.

So, the relevant questions for you are, and this is reflected in the handout, one, did the accused make threats or perform acts of intimidation as alleged by the State. Two, did any such threats or intimidation cause Ms Fairhead to open the car door and three, did that act of opening the car door result in Ms Fairhead's death. Now, the alleged threats and intimidation are constituted by, it's alleged, the use of weapons and threats in the house, the demands for drugs, the order that Ms Fairhead be strip-searched if you find that that occurred.

The demand that she get into the car with the others and there is allegedly an express threat and Mr Wilton gave evidence of this, to take the car out to the bush and burn it with them in it. So the first thing you have to decide is whether those things occurred and in respect of each accused, whether he participated in doing those things. As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act.

It is sufficient if you are satisfied beyond reasonable doubt that there were, as a matter of objective fact, a cause provided that it was a cause that contributed substantially or significantly to the doing of the act. And that's reflected in the last paragraph on that handout that I gave you. In deciding that question of causation, you should apply your common sense to the facts as you find them to be.

Now, you've heard some evidence about Ms Fairhead's domestic circumstances at around the time that this occurred, and a report - in fact two reports that she made to the police, including one that she made to the police about her partner the day before she died. There is disputed evidence as to whether she was on the phone to her partner whilst she was in the car and you have some phone records, although it's suggested to you that there may be other ways to contact a person other than using the telephone network.

There is evidence that before leaving the car she said words to the effect, 'Sorry, I can't do this.' You are entitled to take that evidence into account, but don't be diverted from the principal question which is whether threats or intimidation by the accused were a significant or substantial cause of her actions. If they were, then it does not matter that she may have had other reasons in her life to be sad or upset.

As to whether Ms Fairhead's act of opening the door resulted in her death, the question for you is whether her death was, as a matter of objective fact, a consequence of that act. Now, it's a matter for you but you may well think that opening the door of a moving car when not wearing a seatbelt is an inherently dangerous thing to do. There is a risk of falling out and suffering injuries, you might well think.

We know that that is in fact what happened. You heard from Dr McCreath as to the traumatic head injuries that were the immediate medical cause of death. It's a matter for you but you may well have little difficulty concluding that Ms Fairhead's death was a result of her opening the car door, falling from the car, hitting the road and suffering head injuries.

1. As can be seen, in the course of that part of his Honour's direction, he directed the jury's attention to a handout headed 'Causing Death by Threats or Intimidation'. That handout succinctly summarised relevant legal principles as follows:

Causing Death by Threats or Intimidation

The law provides that a person who, by threats or intimidation of any kind, causes another person to do an act which results in the death of that other person, is deemed to have killed him or her.

The relevant questions for you are;

1. Did the accused make threats or perform acts of intimidation as alleged by the State?
2. Did any such threats or intimidation cause Ms Fairhead to open the car door?
3. Did that act of opening the car door result in Ms Fairhead's death?

As to causation, the threats or intimidation do not have to be the sole, direct or immediate cause of Ms Fairhead's act. It is sufficient if you are satisfied beyond reasonable doubt that they were, as a matter of objective fact, a cause, provided that it was a cause that contributed substantially or significantly to the doing of the act. In deciding causation you should apply your common sense to the facts as you find them to be.

1. In the passage set out at [262] above, the judge identified that the act which Ms Fairhead was alleged to have done is open the door of a moving car in circumstances where she was not wearing[109]seatbelt.109 The State case was that it did not matter whether she fel[110]r jumped.110 The judge observed that there appeared to be no dispute that she deliberately opened the car door; the issue was whether the accused caused her to do so by threats or i[111]midation.111
2. The judge explained that the first question, whether the accused made threats or performed acts of intimidation as alleged by the State, required attention to whether the State had proved the threats or intimidation it alleged. Those were said by the State to be the use of weapons and threats in the house, the demands for drugs, the order that Ms Fairhead be strip‑searched, the demand she get into the car with the others and the threat to take the car out to the bush and burn it with Ms Fairhead, Mr Watson and Mr Wilton in it.[112] The judge identified that the jury had to decide whether those things occurred, and, in respect of each accused, whether he participated in doing those things.[113]
3. The second question identified by the judge, causation, required the jury to determine whether, applying common sense to the facts found by them, the threats found by the jury to have been made contributed substantially or significantly to the doing of the act.[114] The judge referred to evidence about Ms Fairhead's domestic circumstances and to disputed evidence as to whether she was on the phone to her partner while she was in the car, together with evidence that before leaving the car she said words to the effect of, 'Sorry, I can't do this'.[115] The judge observed that the jury were entitled to take that evidence into account, but told them not to be diverted from the principal question, namely 'whether threats or intimidation by the accused were a significant or substantial cause of her actions [in opening the car door when she was not wearing a seatbelt]'.[116] The judge observed that, if they were, it would not matter that she may have had other reasons in her life to be sad or upset.
4. The third question identified by the judge was whether Ms Fairhead's act of opening the door resulted in her death. The judge explained to the jury that this required them to determine whether Ms Fairhead's death was, as a matter of objective fact, a consequence of her act.[117] The judge then made some comments on the facts in that respect, observing that it was a matter for the jury.[118] His Honour repeated that it was a matter for the jury, but observed that they 'may well have little difficulty concluding that Ms Fairhead's death was a result of her opening the car door, falling from the car, hitting the road and suffering head injuries'.[119]
5. The judge next turned to the question of accident. His Honour gave directions by reference to a document entitled 'Criminal Responsibility' which included a heading 'Accident'. The judge directed the jury in relation to accident in the following terms:[120]

Now, there is another passage which is on the first handout that I gave you on criminal responsibility. If I could ask you to turn back to that, and on the second page of that you'll see there's a heading Accident. Now, if you're satisfied that the accused, or any of them, did cause Ms Fairhead to open the car door, there is another issue you must resolve and that's whether her death was foreseeable[.]

The law provides that a person is not criminally responsible for an event which occurs by accident. You've heard counsel mention this. Accident has a very particular meaning in the criminal law. An event occurs by accident if it was a consequence which was not intended or foreseen by the accused and would not have reasonably been foreseen by an ordinary person.

So there are two elements to accident, one subjective and one objective. An event will not be an accident unless two requirements are met. First, the event must not be intended or foreseen by the accused. That's the subjective element. And secondly, the events [sic] must be one which would not reasonably have been foreseen by an ordinary person. That's the objective element.

Where the issue of accident is raised by the defence, as it has been here, it's for the prosecution to disprove it beyond reasonable doubt. It can do that either by proving that the accused did intend or foresee the event, or by proving that the event was reasonably have been [sic] foreseen by an ordinary person.

In this case the prosecution accepts that the accused did not intend that Ms Fairhead would die and did not foresee it, so you can put that to one side. Rather, what the prosecution say[s] is that her death was objectively reasonably foreseeable by an ordinary person in these circumstances.

So the question for you is are you satisfied beyond reasonable doubt that an ordinary person in the circumstances of the accused would reasonably have foreseen that the death of Ms Fairhead was a possible outcome. A possible outcome is one that is realistically possible, excluding possibilities that are no more than remote or speculative. An ordinary person would of course be sober. That is, not affected by alcohol or drugs.

Your determination of this issue requires you to evaluate all of the relevant circumstances, including any actions or threats that had preceded getting into the car, the manner of driving, whether there were weapons in the car, how an ordinary person in the position of the accused would have perceived Ms Fairhead's emotional condition, and how an ordinary person in the position of the accused would have perceived that their actions had affected or may affect Ms Fairhead.

If you're satisfied that Ms Fairhead's death was reasonably foreseeable, then accident is excluded. In this event, and assuming that the elements of the offence are otherwise proven, the accused in question would be guilty of count 7. If you are not satisfied that the death was reasonably foreseeable or any of the elements of the offence are not proven, then the accused in question would be not guilty of count 7.

1. The judge gave a brief summary of some aspects of the evidence.[121] He outlined the direct evidence from Ms McEwan, Mr Wilton and Mr Watson. Ms McEwan's evidence included that:

(1) After the people (namely Ms Fairhead, Mr Wilton and Mr Watson) arrived, Mr Yarran slammed a machete down on the table.[122]

(2) Subsequently, Mr Yarran brought Ms Fairhead into the bedroom and screamed at Ms McEwan to check Ms Fairhead and to strip‑search her, acting in a threatening way, with a machete in his hand.[123]

(3) Ms Fairhead was hysterical, telling Ms McEwan about her children and saying she 'just wanted to get home to her kids'.[124]

1. Mr Watson's evidence, as outlined by the judge, included that:

(1) After they arrived at the house there was an initial confrontation. Things then calmed down, after which more demands were made and he was hit, or 'sliced', with the machete by Mr Yarran.[125]

(2) They, the three of them, were forced into the car, he being in the very back of the car with limited ability to see what Ms Fairhead was doing.[126]

1. Mr Wilton's evidence included that, after a period of calm, there were demands made by Mr Yarran. Mr Yarran also threatened to cut one of Mr Wilton's fingers both with a knife and subsequently with a machete. There was also a time where Mr Yarran searched Ms Fairhead's car while Mr Boag watched over Mr Wilton, and at that time Mr Wilton was hit with the back of the machete on the foot or the shin.[127] They were then forced into the car. Mr Wilton said that 'they were threatening to take the car out the bush and burn it out with us in it'.[128] This passage of his Honour's remarks is challenged by ground 3 of Mr Boag's appeal against conviction.
2. The judge then gave a brief summary of the cases for the parties. His Honour outlined the State case as being that the four accused entered into a plan to rob someone and steal their drugs, in which they all participated. Further, the three male accused then participated in taking the three victims into the car, depriving them, in the house and in the car, of their liberty, making threats and continuing the threats and intimidation that had occurred in the house. The State further said that the threats and intimidation were a significant or substantial cause of Ms Fairhead opening the car door, which, on the State case, resulted in her death.[129]
3. The judge outlined the defence cases of the three appellants in the way described at [242[130]] above.130 Following submissions from defence counsel, the following morning the judge gave a more detailed summary of the cases for the respective parties. The judge's summary of the defence cases is incorporated in our earlier outline of those cases.
4. In relation to the State case, the judge said, relevantly:

(1) In respect of the manslaughter count, the State case was that the three accused were each liable as joint principals as each had done acts and made statements that threatened or intimidated Ms Fairhead and caused her to open the car door.[131]

(2) The prosecutor had reminded the jury of Ms McEwan's evidence as to the state of Ms Fairhead when she was in the bedroom, which she described as hysterical, frantic and petrified.[132]

(3) Whether Ms Fairhead jumped or fell did not matter, because she opened the door and as a result of her act she died, and that act was caused by the threats or intimidation.[133]

(4) Mr Yarran's evidence that Ms Fairhead was on the telephone was contradicted by Mr Watson and Mr Wilton, whose evidence was supported by telephone records.[134]

(5) While Ms Fairhead may have been upset, that did not mean that the threats and intimidation did not cause her to act as she did.[135]

(6) The State case was that the death was reasonably foreseeable by an ordinary person in all the circumstances.[136]

1. Chapter XXVIII of the Code contains provisions creating homicide offences, including, relevantly, murder and manslaughter. Section 277 of the Code provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter. Section 279 of the Code prescribes the circumstances in which a person who unlawfully kills another commits the offence of murder. Section 280 of the Code provides that if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter. Thus an element of both homicide offences under the Code is that the accused 'kills' the deceased.
2. In Krakouer v The State of Western Australia,[137] McLure JA said as follows:[138]

Under s 270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatsoever, is deemed to have killed that other person. Sections 272 to 275 deal with causation in particular situations: causing death by threats (s 272), acceleration of death (s 273), where death might have been prevented by proper precautions (s 274) and injuries causing death as a result of subsequent treatment (s 275). However, these specific sections do not, in my view, limit the generality of the causation requirement in s 270. The common law principles of causation provide guidance in that regard.

This statement was adopted by Buss JA, with whom Mazza JA and Chaney J agreed, in TB v The State of Western Australia.[139] We will return to the relationship between s 270 of the Code, on the one hand, and s 271 - 275, on the other, later in these reasons.

1. In this case, the State relied on s 272 of the Code, which provides that a person 'who, by threats or intimidation of any kind, or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him'.
2. In TB, Buss JA, with whom Mazza JA and Chaney J agreed, outlined the following legal principles relevant to s 270 and s 272 of the Code in terms we respectfully adopt:

(1) Under s 270 of the Code, the State must establish both factual causation and legal causation.[140] Factual causation requires that the conduct of the accused in fact caused the deceased's death. Determining whether that is so involves applying common sense to the facts to determine whether the relevant conduct was a cause of the death.[141] Legal causation requires that the alleged conduct of the accused has substantially or significantly contributed to the deceased's death.[142]

(2) Where an accused is tried on a charge of unlawful killing involving fright, escape or self‑preservation, in which the State relies on s 272 of the Code, the State must prove beyond reasonable doubt three things:

(a) the accused made threats or performed acts of intimidation as alleged by the State;

(b) the alleged threats or intimidation 'caused' the victim to do an act or make an omission; and

(c) the alleged act done or omission made by the victim 'resulted' in his or her death.[143]

(3) The causal inquiries in a s 272 case are materially different from the causal inquiry dictated under s 270 of the Code. In s 270, the word 'causes' relates to the connection between the alleged means employed by the accused and the death of the victim. By contrast, under s 272, the causal inquiry relates to the connection between the alleged threats or intimidation of the accused and the act done or omission made by the victim, not the death of the victim.[144]

(4) As to whether the accused's alleged threats or intimidation 'caused' the victim to do an act or make an omission, within s 272:

(a) the State must identify the alleged act done or omission made by the victim which was 'caused' by the alleged threats or intimidation of the accused;

(b) the tribunal of fact must determine whether, as a matter of objective fact, the accused's alleged threats or intimidation 'caused' the victim to do the alleged act or make the alleged omission;

(c) as to factual causation, the accused's alleged threats or intimidation do not have to be the sole, direct or immediate cause of the victim's alleged act or omission; it is sufficient, for the purposes of factual causation, if the tribunal of fact is satisfied beyond reasonable doubt that the alleged threats or intimidation were, as a matter of objective fact, a cause; and the tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them; and

(d) as to legal causation, the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the accused's alleged threats or intimidation contributed substantially or significantly to the doing of the victim's alleged act or the making of the victim's alleged omission.[145]

(5) As to whether the victim's alleged act or omission 'resulted' in his or her death, within s 272:

(a) the word 'results', in the context of the phrase 'do an act or make an omission which results in the death of that person', connotes that the victim's death was a consequence of the victim's alleged act or omission; and

(b) the tribunal of fact must be satisfied beyond reasonable doubt that, as a matter of objective fact, the victim's alleged act or omission 'resulted' in his or her death (that is, the death was, as a matter of objective fact, a consequence of the alleged act or omission).[146]

(6) It is important to keep separate the elements of s 272, and their application to the facts and circumstances, from the provisions of s 23B of the Code, concerning accident, and any application those provisions may have to the relevant facts and circumstances.[147]

(7) The concept embodied in the word 'causes' in s 272 does not require, or implicitly involve as an element, the reasonable foreseeability of the victim's alleged act or omission in response to the accused's alleged threats or intimidation. Similarly, the concept embodied in the word 'results' in s 272 does not require, or implicitly involve as an element, the reasonable foreseeability of the victim's death as a consequence of his or her alleged act or omission.[148]

1. In TB, Buss JA also observed that whether the notion of novus actus interveniens had any scope for operation in a case in which the State relies on s 272 of the Code had not been authoritatively determined, and did not need to be determined in that case.[149] In particular, his Honour observed that it was unnecessary to decide whether the chain of causation between the accused's alleged threats or intimidation, on the one hand, and the victim's alleged act or omission, on the other, will be broken, and the deeming provision in s 272 not engaged, if the victim's alleged act or omission was unreasonable or disproportionate, after taking into account all of the circumstances, including the nature of the accused's alleged threats or intimidation and the fear they were likely to have induced.[150] As will be seen, in our view, that question arises in this case, and is decisive of the appeals.

1. Mr Boag advances six grounds of appeal, all in relation to the count of manslaughter. His appellant's case originally included seven grounds of appeal, but, at the hearing of the appeal, he abandoned ground 2.[151] The remaining grounds all complain of the judge's direction to the jury, and are in the following terms (maintaining the original numbering):
   1. The learned Judge erred in law in misdirecting the jury, alternatively, not directing the jury adequately on the issue of the legal basis of the appellant's responsibility for the charged offence of manslaughter, thereby giving rise to a miscarriage of justice.

(a) In relation to determining the liability of each accused on the basis that the accused persons allegedly had acted in concert and were joint principals, his Honour directed the jury in terms of whether any of the totality of the alleged threats and acts of intimidation made or performed by all the accused were a substantial or significant cause of the deceased's act resulting in her death, whereas the jury should have been directed in terms of whether the alleged threats or acts of intimidation made or performed by the particular accused person under consideration were a substantial or significant cause of the deceased's death.

(b) Having regard to the possibility that the jury or some of its members determined the appellant's guilt on the basis that he was an aider pursuant to s 7(b) or s 7(c) of the Criminal Code, a miscarriage of justice occurred by reason of the fact that a proper consideration of the Appellant's liability also required a consideration of the provisions of s 8 of the Code, and there was no jury direction in relation to s 8 in respect of Count 7 and in particular in relation to whether the commission of the alleged offence the subject of Count 7 was a probable consequence of the prosecution of an unlawful purpose.

1. [Abandoned]
2. The learned Judge erred in fact in misdirecting the jury (at 1256) as to the complainant Wilton saying in evidence: 'They were threatening to take the car out the bush and burn it out with us in it', giving rise to a miscarriage of justice.

The jury were not told that the complainant Wilton stated in evidence a short time later that only the accused Yarran said this as opposed to any of the other accused, and that this was only alleged to have been said in the car when it was moving and after it had travelled some distance.

1. The learned judge erred in misdirecting the jury (at T 1240) as to the requirement of reasonable foreseeability in relation to the defence of accident (s 23B of the Criminal Code), by identifying the issue as foreseeability of death occurring, instead of foreseeability of the deceased opening the door of the moving vehicle and exiting the vehicle, giving rise to a miscarriage of justice.
2. The learned Judge erred in not directing the jury in relation to the effect the deceased's significant drug intoxication at the relevant time, in particular her high degree of intoxication from the intravenous use of methylamphetamine, may have had on her actions in opening the car door and exiting the moving vehicle, and the potential of that drug intoxication to have been a cause or the effective cause of her doing so whether as a result of hallucinations, altered perception or otherwise, and / or to have caused the deceased to overreact with the consequence that her act constituted a novus actus interveniens which broke the chain of causation, giving rise to a miscarriage of justice.
3. The learned Judge in his directions to the jury ought to have commented critically on the State's failure to adduce expert evidence as to the likely or possible effects that the deceased's significant drug intoxication would have had on her, as being causally relevant to her actions on the night, including whether her actions were or may have been an overreaction, and the failure to do so gave rise to a real possibility of a miscarriage of justice.
4. The learned Judge erred in law:

(a) in failing to direct the jury to the effect that the chain of causation between the accused's alleged threats or intimidation and the deceased's act would be broken and the deeming provision in s 272 would not be engaged, if the deceased's act was unreasonable or disproportionate; and

(b) in deciding (at T 1039, 1040) that this issue was sufficiently dealt with by telling the jury that legal causation required the relevant threats or intimidation to be a substantial or significant cause,

resulting in a miscarriage of justice. (original emphasis)

1. Mr Yarran and Mr Smith appeal their convictions on the count of manslaughter on identical grounds. Initially, there were four grounds of appeal, but ground 4 was abandoned.[152] Similarly to Mr Boag's appeal, the grounds all complain of the judge's direction to the jury. The grounds are in the following terms:

1. There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to direct the jury that if the deceased unintentionally fell from the vehicle at the time of her fall then that falling would have been a novus actus interveniens that would break the chain of causation in relation to Section 272 of the Criminal Code.

1. There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to adequately direct the jury as to matters the State needed to establish to prove guilt;

2.1 His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's jumping from the car at the point in time she did was not an act that was either irrational nor unreasonable or disproportionate to any threats or intimidation operating at the time;

2.2 His Honour failed to direct the jury adequately/or at all that the State needed to establish that the deceased's fear or apprehension was well‑founded or reasonable in all the circumstances;

2.3 His Honour failed to direct the jury adequately/or at all that the State needed to establish that the alleged act of escape or self‑preservation must be the natural consequences [sic] of the appellant's behaviour.

1. There was a miscarriage of justice when, in relation to Count 7 on the Indictment (manslaughter), His Honour failed to adequately or at all direct the jury, in relation to Section 272 of the Criminal Code, that the State needed to prove the alleged act done by the deceased resulted in her death;

3.1 His Honour failed to delineate between the 'act' and 'result' regarding Section 272 of the Code.

1. Orders were made in each appeal referring the application for leave to appeal to the hearing of the appeal.[153] Mr Smith also requires an extension of time to appeal.
2. It is convenient to begin by dealing with the ground that is, in substance, common to all appeals, and which, in our opinion, must be upheld.

Mr Boag's ground 7: Mr Yarran and Mr Smith's ground 2: unreasonable or disproportionate responses to threats or intimidation Summary

1. Ground 7 of Mr Boag's appeal and ground 2 of Mr Yarran and Mr Smith's appeals raise, in substance, the same question. That question is whether the judge erred in failing to direct the jury that if the deceased's act was an unreasonable or disproportionate response to the threats or intimidation, those threats or intimidation could not be said to have caused the deceased's act, with the result that the verdict must be not guilty.[154]
2. For the reasons that follow, we would uphold these grounds of appeal. In summary, in our opinion, that is because:

(1) On a proper construction of s 272 of the Code, a conclusion that the deceased's response to the accused's threats or intimidation (or deceit) was unreasonable or disproportionate may prevent satisfaction of the requirement, under s 272 of the Code, that the threats or intimidation (or deceit) caused the deceased to do the act. Whether it does so is a question for the jury to determine, and to which the jury's attention should be directed.

(2) The defence case at trial included a contention, fairly arising on the evidence, that the deceased's act of opening the door of a moving car whilst not wearing a seatbelt was an unreasonable or disproportionate response to whatever threats or intimidation might have occurred.

(3) Defence counsel sought a direction from the judge to that effect.

(4) The judge declined to give such a direction, saying that this issue was encompassed by the requirement that the threats or intimidation were a substantial or significant cause of the deceased's act.

(5) In the circumstances of the trial, more was required than the direction, in general terms, that the threats or intimidation must be a substantial or significant cause of the deceased's act. The jury's attention needed to be directed to the question of whether, in opening the car door, the deceased's response to such threats or intimidation as the jury found to have occurred was an unreasonable or disproportionate response. In deciding whether the accused's threats or intimidation substantially or significantly contributed to the deceased's act, the jury could take into account whether, in their view, the deceased's act was an unreasonable or disproportionate response to the threats or intimidation. In the circumstances, a direction to the effect outlined in [294] below was required.

Are unreasonable or disproportionate responses to threats or intimidation relevant under s 272 of the Code?

1. We begin with the question of whether a finding that the deceased's act was an unreasonable or disproportionate response to threats or intimidation (or deceit)[155] has any role or scope for operation in a charge under s 272 of the Code. As we have said, that question was identified, but was not necessary to resolve, in TB.
2. In TB,[156] Buss JA analysed the individual judgments of the High Court in Royall v The Queen[157] in some detail. We adopt that analysis, without repeating it. His Honour came to the following conclusions as to the effect of the decisions of the High Court in Royall and in McAuliffe v The Queen[158] concerning common law States:[159]

The High Court held by a majority in Royall, and unanimously in McAuliffe, that in a fright, escape or self‑preservation case, where the question is whether the victim's reaction was an over‑reaction to alleged violence, threats or intimidation by the accused, the chain of causation will be broken if the victim's reaction was, in all the circumstances, including the nature of the accused's alleged conduct and the fear it was likely to have provoked, unreasonable or disproportionate. The High Court held that, at least ordinarily, it is undesirable for the jury to be directed upon reasonable foreseeability in relation to an intervening act and the chain of causation, and the focus should be upon whether the victim's response was, in all the circumstances, reasonable or proportionate. (emphasis added)

1. In McAuliffe, Brennan CJ, Deane, Dawson, Toohey and Gummow JJ approved a direction in the following terms:[160]

As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked. (emphasis added)

1. The respondent submits that these principles, enunciated in a common law context, have no application in the context of s 272 of the Code, which provides a separate structure for the elements of a homicide offence.[161]
2. In so submitting, the respondent accepts that a person whose threats cause another person to do an act that results in their death will not be criminally responsible for the death if the deceased's act was unreasonable or disproportionate.[162] However, the respondent submits that that outcome is not brought about by any notion of intervening cause embedded in the concept of causation within s 272 of the Code. Rather, it arises because, in the hypothesised circumstances: (1) the threats would not have been a substantial or significant cause of the deceased's act; or (2) the death would have been an accident, so that criminal responsibility would be avoided through the operation of s 23B of the Code.[163]
3. It is well established, in the context of s 270 of the Code, that common law principles as to causation apply to, or inform, causation, as embodied in the word 'causes' in s 270.[164] In TB, Buss JA held that ordinary principles of causation apply in considering the causal nexus required by s 272 of the Code between the threats and the act of the deceased.[165]
4. We accept that the principles enunciated in the different statutory context of common law States cannot be directly transplanted into s 272 of the Code. The decisions of the High Court in Royall and McAuliffe concerned a statute requiring conventional causation between the accused's act and the deceased's death, of a kind analogous to s 270 of the Code, rather than to s 272. As explained in TB, s 272 of the Code does not require causation between an act of the accused and the deceased's death. Rather, it involves a two‑step process: (1) threats causing an act of the deceased; and (2) the deceased's act resulting in death. In that manner, s 272 of the Code creates liability for a person's death in a distinctive setting in which the most proximate cause of death is the deceased's own act.
5. Given that, in a s 272 case, the most proximate cause of the death is the deceased's own act, the causal link between the accused's threats and the deceased's act is of critical significance in the attribution to the accused of criminal responsibility for the death of the deceased. Viewed in that framework, the considerations which underpin and justify the common law position in fright, escape or self-preservation cases seem to us to apply with substantially equal force in the framework of s 272 of the Code. However, in that different framework those considerations have a somewhat different operation. As already noted, an element of an offence under s 272 of the Code is that the accused's threats caused the deceased's act. Whether that element has been proved is a question for the jury. In determining that question, the jury apply their common sense to the facts, as they find them, and consider whether the accused's threats substantially or significantly contributed to the deceased's act. In that framework, in our view, it is for the jury to decide whether the unreasonableness of the deceased's response (if they so find) means that the causation element has not been proved. In other words, in deciding whether the accused's threats substantially or significantly contributed to the deceased's act, the jury may take into account whether, in their view, the deceased's act was an unreasonable or disproportionate response to the threats. So, whereas, at common law, an unreasonable or disproportionate response by the deceased will break the chain of causation between the accused's act and the deceased's death, under s 272 of the Code, in our view, an unreasonable or disproportionate response by the deceased may break the chain of causation between the accused's threats and the deceased's act. Whether it does so is a question for the jury, and the jury's attention should be directed to that question.
6. For these reasons, in our view, on a proper construction of s 272 of the Code, if the jury considers that the deceased's act in response to the accused's threats was an unreasonable or disproportionate response to the threats, it is open to the jury to find that, for this reason, the causal requirement under s 272 of the Code - that the threats caused the deceased's act - is not satisfied. In a case where, on the evidence, there is a question as to the unreasonableness or disproportion of the deceased's response, whether the unreasonableness or disproportion of the deceased's response means the causation requirement in s 272 is not satisfied is a question for the jury. The question should be identified for the jury, and the jury directed to the following effect:

(1) The jury should consider whether the deceased's act in response was unreasonable or disproportionate, taking into account all the circumstances, including the nature of the accused's threats or intimidation (or deceit), as they find it to be, and the fear (or misapprehension) the threats or intimidation (or deceit) were likely to have induced.

(2) If the jury so find, they may take that into account in determining the element of causation - that the accused's threats (or intimidation or deceit) substantially or significantly contributed to the deceased's act in response. Whether the unreasonableness or disproportion of the deceased's act in response means that the causation element is not satisfied is a matter for the jury.

(3) The onus remains on the prosecution to satisfy the jury beyond reasonable doubt that the accused's threats (or intimidation or deceit) substantially or significantly contributed to the deceased's doing of the act.

1. To the extent it so submits, we do not accept the respondent's submission that the requirement for the accused's threats to have been a substantial or significant cause of the deceased's act removes any need to identify for the jury the relevance of an unreasonable or disproportionate response by the deceased to the question of whether the State has satisfied the causation requirement in s 272 of the Code. In Krakouer, McLure JA observed that the legal test of causation - that the act substantially or significantly contributed to the relevant consequence - answers questions relating to, among other things, the effect of 'intervening acts of the victim'.[166] We agree that any issue of unreasonable or disproportionate response feeds into the legal test of causation. However, that does not determine, or reflect, the manner in which a jury is to be directed. As the decision in Krakouer itself illustrates, whether a broad direction as to causation, to the effect that causation requires a substantial or significant contribution, is sufficient will depend upon the circumstances of the case; in some cases, a more specific direction is required.[167] McLure JA cited Royall for the observation that the legal test of causation answers questions relating to intervening acts of the victim. The judgments in Royall (with the exception of McHugh J) make clear that, in a common law fright, escape or self-preservation case, it is not sufficient to direct the jury in general terms by reference to whether the accused's acts were a substantial or significant cause of death. In such a case, the jury must be directed that an unreasonable or disproportionate response by the deceased will break the chain of causation between the accused's act and the deceased's death.[168] In our view, for corresponding reasons, in a case concerned with s 272 of the Code, where a question as to the unreasonableness or disproportion of the deceased's act arises on the evidence, the jury should be directed in the manner outlined in the preceding paragraph.
2. Further, we do not accept the respondent's submission that the availability of the accident defence in relation to the event of death does the work of, or removes the need or justification for, any notion of an unreasonable or disproportionate response by the deceased as a limit inherent in causation in s 272 of the Code. The causation element in s 272 of the Code is conceptually distinct from, and analytically anterior to, the question of whether the death was an event that occurred by accident pursuant to the provisions of s 23B of the Code.[169] In that respect, the Code position mirrors the position at common law, where, as explained in Royall, notions of foreseeability are best kept separate from the judge's direction on the issue of causation.[170] We reiterate our conclusion expressed at [293] above.
3. We turn now to explain why, in our respectful opinion, it was necessary in this case for the judge to identify, as a question for the jury's determination, whether Ms Fairhead's act in opening the car door was an unreasonable or disproportionate response to such threats or intimidation as the jury found to have occurred.

The need for a direction in this case as to an unreasonable or disproportionate response

1. In both opening and closing submissions, defence counsel contended that, on any view of the facts, Ms Fairhead's response to the threats or intimidation, in opening the car door, was unreasonable or disproportionate. For example:

(1) In opening, counsel for Mr Boag said that Ms Fairhead's reaction in exiting the car was not a reasonable response to whatever might have happened before that.[171]

(2) In closing, Mr Boag's counsel contended that, whatever had been going on beforehand, it was not a reasonable response for Ms Fairhead to leap out of the car because of threats and intimidation.[172]

(3) In closing, Mr Yarran's counsel contended that, even if the jury accepted the State case as to what Mr Yarran did at its highest, Ms Fairhead's decision to leave the vehicle was inexplicable, and it could not be said that Mr Yarran caused her to make that decision.[173]

1. In our view, on the evidence at trial generally, and on the State case viewed alone, a question fairly arose as to whether the deceased's act in opening the door was an unreasonable or disproportionate response to whatever threats or intimidation the jury found to have occurred. The respondent submits that Ms Fairhead's act of opening the door of the moving car whilst not wearing a seatbelt was not unreasonable or disproportionate after taking into account all of the circumstances, including the nature of the appellant's and his co‑offenders' threats and intimidation and the fear they were likely to have induced in her.[174] In our view, this court is not in a position to come to that conclusion, given the absence of findings of fact as to precisely what threats or intimidation were established by the evidence. In that regard, the position may be contrasted with TB, in which the findings of fact made by the primary judge enabled this court to come to its own conclusion on the question of whether the deceased's response to the threats was unreasonable or disproportionate. In this case, that was a jury question.
2. Counsel for Mr Boag sought a direction by the judge to the jury that a part of the defence case was that the deceased's act was a disproportionate or unreasonable overreaction to whatever threats or intimidation had occurred.[175]
3. The judge did not give any such direction.
4. The prosecutor opposed the giving of such a direction, submitting that, under s 272 of the Code, there was no requirement that the deceased's reaction be in any way reasonable.[176] The prosecutor suggested that a requirement of reasonableness 'seems to fly in the face of the whole principle in Royall',[177] and that the deceased's response does not have to be a reasonable act.[178]
5. In the course of the exchange with counsel, the judge said he was inclined to think that any question as to the reasonableness of the deceased's response was sufficiently dealt with by telling the jury that legal causation requires that the threats or intimidation be a substantial or significant cause, a proposition accepted by the prosecutor.[179] The respondent, in effect, supports that position.[180] The judge added that if the jury were satisfied that the threats or intimidation were a substantial or significant cause, that would negative any possibility that the deceased's act was an overreaction.[181] For the reasons in [295] above, and the reasons immediately below, in our respectful view, the judge needed to expressly identify the relevance of whether the deceased's act was an overreaction to the threats or intimidation to the issue of whether the threats or intimidation substantially or significantly contributed to the deceased's act of opening the door.
6. A central element of the defence cases was that the reason for Ms Fairhead's conduct in opening the car door was her fragile mental state and her domestic problems with her partner, in circumstances where she had taken drugs. That aspect of the defence cases invited the jury to infer that there was a different and independent cause for Ms Fairhead's conduct in opening the door. The judge referred to that aspect of the defence case in the context of his direction as to the need for the threats to be a significant or substantial cause of the deceased's act.[182] See [262] and [266] above. To our mind, there is a real risk, if not a high probability, that the jury would have focused on the issues raised by these matters in determining whether the threats or intimidation were a substantial or significant cause, without considering any question of whether the deceased's act was an unreasonable or disproportionate overreaction.
7. As already noted, whether a broad direction as to causation, to the effect that causation requires a substantial or significant contribution, is sufficient will depend upon the circumstances of the case.[183] In Krakouer, Steytler P (Wheeler JA agreeing) held that, in the circumstances of that case, the jury needed more than the general direction as to substantial or significant cause. We reach a like conclusion in the present case. In our respectful opinion, the circumstances of this case required more than the general direction as to substantial or significant contribution. In our respectful view, in circumstances where the evidence at trial and the parties' cases raised an issue as to whether the deceased's act was an unreasonable or disproportionate response to the threats or intimidation of the accused, and in the circumstances outlined in [304] above, the judge was required to direct the jury in the manner outlined in [294] above. The failure to do so in this case was an error that occasioned a miscarriage of justice.
8. For these reasons, we would grant leave to appeal on, and uphold, ground 7 of Mr Boag's appeal and ground 2 of Mr Yarran and Mr Smith's appeals.

Mr Boag's ground 4: identification of the relevant event for the purposes of s 23B of the Code

1. Ground 4 of Mr Boag's appeal contends that the judge erred in his direction concerning the defence of accident by identifying the deceased's death as the relevant event, when a relevant question for the jury was whether the deceased's act, in opening the door of the moving vehicle, was an event which occurred by accident.
2. Section 23B of the Code provides that a person is not criminally responsible for an event which occurs by accident. In s 23B, 'event' is a reference to a consequence of an accused's act or omission.[184] 'Criminally responsible' means 'liable to punishment as for an offence'.[185]
3. The reference in s 23B to not being criminally responsible for an event is a reference to an event that is one of the circumstances alleged to render the accused liable to punishment.[186] Put another way, an 'event', for the purposes of s 23B, is the consequence of an accused's act or omission, which consequence constitutes an element of an offence for which the accused would, but for the operation of s 23B, be criminally responsible. That was the view adopted by the Queensland Court of Appeal (Macrossan CJ, Pincus JA and Lee J) in R v Taiters,[187] reflected in the following passage, which has been cited with approval in this court many times:[188]

It should now be taken that in the construction of s 23 the reference to 'act' is to 'some physical action apart from its consequences' and the reference to 'event' in the context of occurring by accident is a reference to 'the consequences of the act'. Even if, as has been said, there can on occasion be some difficulty, in an exceptional case, in distinguishing the border line between act and event so viewed, this theoretical distinction is clear. Taking an example from Kaporonovski itself, the thrusting of the glass by the accused was the act and the injury to the victim's eye which constituted the grievous bodily harm was the event. A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, s 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event. (emphasis added)

1. In essence, Mr Boag submits that:[189]

(1) Where the State relies upon s 272 of the Code to establish a homicide offence, one of the elements of that homicide offence is that the accused's threats (or intimidation or deceit) caused the deceased to do an act. Thus, the deceased's act:

(a) is alleged to be a consequence of the accused's act(s); and

(2) In this manner, the deceased's act is a consequence of the accused's act(s) to which liability to punishment under s 272 of the Code attaches if death results from it, unless the accused is relieved from such liability by, relevantly, s 23B of the Code.

(3) Consequently, applying what was said in Taiters, the deceased's act is an 'event' for the purposes of s 23B of the Code.

1. While there is force in these submissions, for the reasons that follow, having regard to the structure of ch XXVIII of the Code as a whole, we do not accept them.
2. There are many cases in which it has been said that on a charge of unlawful killing under the Code, death is the relevant event.[190] We accept that those statements were made in the context of, or in contemplation of, the general case of a charge of unlawful killing under s 270 in which the only element of the offence concerned with consequence is the death of the deceased. Thus, these statements should not, of themselves, be taken as excluding the possibility that, in the particular case of a charge of unlawful killing relying on s 272, there may be an additional relevant event. However, for the reasons below, we think what is said in these cases reflects the position in all homicide offences under the Code.
3. As outlined at [275] above, ch XXVIII of the Code creates (relevantly for present purposes) two homicide offences: murder and manslaughter. One element of both offences is that the killing is unlawful; by s 268 of the Code, it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Another element of both offences is that the accused 'kills' the deceased. The meaning of the word 'kills' is elucidated by the provisions of s 270 ‑ 275 of the Code. These provisions do not themselves create any offence.
4. Section 270 of the Code provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Similarly, s 271, s 272, s 273 and s 275 of the Code are concerned with when a person is deemed to have killed another person. Each provides that this will be so in particular circumstances. Section 271 relates to death from an act or omission at childbirth; s 272 to causing death by threats or intimidation or deceit; s 273 to acceleration of death; and s 275 to the death of a person as a result of surgical or medical treatment after the person has suffered grievous bodily harm.[191]
5. In this manner, s 271, s 272, s 273 and s 275 of the Code elucidate the element of killing in the homicide offences provided by s 279 and s 280 of the Code. By its nature, killing involves bringing about death. The purpose and effect of these provisions is to prescribe circumstances in which a person is deemed to have killed another, thereby rendering the person liable to punishment, either for the offence of manslaughter or for the offence of murder, for the death of that other. As already explained, s 272 of the Code involves proof of two causal steps: (1) the accused's threats (or intimidation or deceit) causes the deceased's act; and (2) death results from the deceased's act. In this framework, the causal connection between the accused's threats (or intimidation or deceit) and the deceased's act is an intermediate step in the causal chain linking the accused's threats (or intimidation or deceit) with the death. Upon proof of the two causal steps, the accused is deemed to have killed the deceased, thereby rendering the accused liable to punishment for the offence of murder or the offence of manslaughter, subject to any question of authority, justification or excuse for the killing.[192] It is the death, not the deceased's act, for which the accused is rendered liable to punishment for the offence of manslaughter or the offence of murder. That being so, the death is the critical event to which the accused's liability to punishment attaches. In my respectful opinion, there is no occasion, or justification, for identifying any other result of the accused's act, apart from the death, as an event for the purposes of s 23B of the Code. In particular, in a homicide offence relying on s 272, the deceased's act cannot be said to be an event for the purposes of s 23B of the Code.
6. As already noted, Mr Boag relies heavily on what was said in Taiters.[193] However, in our view, what is said in Taiters does not assist Mr Boag's contention. In the italicised portion of the passage set out at [309] above, their Honours identified the relevant event as 'the one which ... would constitute some factual element of an offence which might be charged' (emphasis added). This statement of principle identifies the event in a singular manner: for any given offence, there is, for the purposes of s 23B, a single relevant event - the one which would constitute an element of that offence. That is consistent with, and supports, our analysis. For the offences of murder and manslaughter, the event is the one constituting an element of the offence, namely the death of the deceased.
7. In our view, the conclusion in [315] above does not give rise to any unjust consequences of a kind that would militate against it, taking into account the following two matters. First, the application of the defence of accident to the event of death seems to us to be sufficient to avoid injustice to an accused. An event occurs by accident if the actor did not intend or foresee it, and if it was not reasonably foreseeable by an ordinary person in the position of [194] accused.194 If, in the circumstances in which the accused acted, death was intended, foreseen or reasonably foreseeable, we see no reason, as a matter of justice, why the accused should escape criminal liability for the death on the ground that the deceased's act in response to the accused's threats (or intimidation or deceit) was itself not intended, foreseen or reasonably foreseeable.
8. Secondly, for the reasons already given, if the deceased's act in response was unreasonable or disproportionate, the jury may decide that the causation element in s 272 of the Code is, on that account, not made out, so that the accused will not be liable to punishment for the death. The issue of whether the deceased's act was an unreasonable or disproportionate response will occupy much of the same ground as any issue of the foreseeability of that act, rendering the latter issue of limited practical consequence. In at least most circumstances, only if the deceased's act was an unreasonable or disproportionate response to the accused's threats (or intimidation or deceit) would that act be unforeseeable, and thus an accident. Generally at least, if the deceased's act is a reasonable response to the threats (or intimidation or deceit), it will be reasonably foreseeable by a person in the position of the accused.
9. Further, although not a matter carrying significant weight, we note that acceptance of Mr Boag's contention would make directions to juries in s 272 cases liable to be more convoluted and complex.
10. We accept that Mr Boag's contention is, as Buss P explains in his reasons, supported by the obiter observations of Brennan J in Royall.[195] While the views of Brennan J on the proper construction of the Criminal Code Act 1899 (Qld) are entitled to substantial weight, for the reasons above, we have, with respect, come to a different view.
11. For these reasons, while we would grant leave to appeal on Mr Boag's ground 4, we would not uphold it.

Mr Boag's appeal against conviction: other grounds of appeal Mr Boag's ground 1: the legal basis of Mr Boag's criminal responsibility

1. Ground 1 contends that the judge misdirected, or inadequately directed, the jury on the legal basis of Mr Boag's responsibility for the offence of manslaughter. The ground is particularised in two ways. Particular (a) asserts that the judge erred in directing the jury to determine whether any of the totality of the alleged threats and acts performed by all of the accused were a substantial or significant cause of the deceased's act, when the jury should have been directed to determine whether the threats or intimidation by the individual accused were a substantial or significant cause of the deceased's death.
2. Mr Boag's submissions in support of his ground 1(a) rely heavily on what is said in the decision of this court in Krakouer. Mr Boag points to statements in that case to the effect that an accused will not be held criminally responsible for a death unless his or her act is a substantial or significant cause of the death.[196] Mr Boag's reliance on these statements overlooks the nature of the State case against him and his two co‑accused. As already outlined,[197] and as the judge explained to the jury,[198] the State case was that each of Mr Yarran, Mr Boag and Mr Smith were liable for manslaughter because they all did an act or acts in a series of acts which, together, resulted in Ms Fairhead being threatened or intimidated. That is a conventional application of s 7(a) of the Code, in that the reference to 'every person who ... does the act' in s 7(a), when read with s 10(c) of the Interpretation Act 1984 (WA), encompasses all persons who, acting in concert, do an act or one or more acts in a series of acts constituting the offence.[199]
3. What is said in Krakouer does not detract from the operation of s 7(a) of the Code in this manner. The question in Krakouer was whether the appellant had caused the deceased's death in circumstances where the appellant had struck the deceased with a post to the back of his head, while the deceased was already lying on the ground as a result of a blow with a mallet administered by a co‑accused. The evidence was that the earlier blow would itself have caused the deceased to die. In Krakouer, the accused was not alleged to have acted in concert with the co‑offender and done one or more of a series of act for the purposes of s 7(a) of the Code. In this case, the judge's direction correctly required the jury to consider the question of causation by reference to the totality of the threats or intimidation found by the jury to have occurred.
4. For these reasons, there is no merit in ground 1(a).
5. Particular (b) of ground 1 contends that:

(1) some of the jury may have determined the appellant's guilt on the basis that he was guilty under s 7(b) or s 7(c) of the Code; and

(2) as a consequence, the judge was required to direct the jury in relation to s 8 of the Code.[200]

1. In our view, there is no merit in either of these contentions. First, the State case in relation to count 7 relied solely on s 7(a) of the Code.[201] When the judge directed the jury in relation to count 7, his Honour directed accordingly, and made no mention of any basis of liability under s 7(b) or s 7(c) of the Code.[202] By contrast, when the judge directed as to the other offences, he specifically referred to the alternative bases on which an accused might be a party to the offence.[203]
2. Mr Boag fixes on other parts of his Honour's direction, put in general terms, where there is reference to aiding as an alternative basis of liability.[204] Those references to the alternative of aiding plainly related to the other counts, in respect of which the State case was put on the alternative bases that: (1) all accused were principal offenders; or (2) Mr Boag and Mr Smith aided Mr Yarran.
3. Secondly, even if the first step of Mr Boag's argument were accepted, the fact that a case was made under s 7(b) or s 7(c) of the Code would not have obliged the judge to give a direction in relation to s 8 of the Code. To the contrary, to have done so would have been erroneous and unfair to Mr Boag and the other appellants.
4. For these reasons, there is no merit in ground 1(b). We would refuse leave to appeal on ground 1.

Mr Boag's ground 3: the effect of Mr Wilton's evidence

1. Ground 3 asserts that the judge erred in fact in misdirecting the jury as to the effect of the evidence of Mr Wilton. The judge said that Mr Wilton gave evidence that:[205]

They were threatening to take the car out the bush and burn it out with us in it.

1. Mr Boag complains that his Honour failed to point out to the jury that, in response to the next question asked of him, Mr Wilton said that it was Mr Yarran who said that.[206] Mr Boag submits that, as this related to an important aspect of the State case, there is a real possibility that the omission to refer to this latter aspect of Mr Wilton's evidence resulted in a miscarriage of justice.[207]
2. There is no merit in this ground. The judge emphasised to the jury that they were the sole judges of the facts, that he would be referring only to some of the evidence and that his failure to refer to other parts did not detract from whatever importance the jury judged it to have.[208] Later in his direction, the judge further emphasised that he would not be referring to all of the evidence, and would not go through the evidence in great detail.[209] His Honour also observed that in relation to Mr Wilton's evidence, he proposed to refer to only two passages, namely those at ts 243 and 246.[210]
3. A ground of appeal alleging that the judge misstated the evidence or the facts can succeed only if there is a miscarriage of justice, which will be so if, and only if, it is reasonably possible that the misstatement of fact by the judge may have affected the verdict.[211] Mr Boag falls well short of demonstrating any reasonable possibility that the judge's failure to point out that Mr Wilton said that the relevant words were spoken by Mr Yarran may have affected the verdict of the jury. We would refuse leave to appeal in respect of ground 3.

Mr Boag's ground 5: the deceased's drug intoxication was a novus actus interveniens

1. By ground 5, Mr Boag contends that the judge erred in failing to direct the jury that the deceased's significant drug intoxication may have influenced her actions in opening the car door, including that it may have caused hallucinations or altered perceptions that led to her opening of the door, giving rise to a novus actus interveniens.
2. In support of the ground, Mr Boag points to evidence that Ms Fairhead had consumed methylamphetamine on the evening in question. He also points to evidence given by Mr Yarran, under cross‑examination by the State, as to the tendency of people who have taken methylamphetamine to hallucinate, particularly if they stay up for long periods of time.[212] Consequently, Mr Boag submits, the judge was required to direct the jury in relation to the deceased's drug intoxication and to explain how that intoxication was relevant to the issues, including to causation and to whether the deceased's actions may have been unreasonable or disproportionate.[213]
3. There is no merit in this ground. There was no admissible evidence as to the effects of methylamphetamine generally, or, in particular, as to any tendency of those who have consumed methylamphetamine to hallucinate. The judge properly told the jury that a witness cannot give opinion evidence about the effect of drugs on others unless they are a qualified expert.[214] Mr Yarran's evidence as to the effect of methylamphetamine on others was not admissible.

Mr Boag's ground 6: the State's failure to adduce expert evidence required critical comment

1. Ground 6 asserts that the judge erred in failing to comment critically on the State's failure to adduce expert evidence as to the likely or possible effects of the deceased's significant drug intoxication. The ground, and the submissions in support of it,[215] assert that such evidence would have been relevant to whether her actions were an overreaction and therefore a novus actus interveniens. The ground asserts that the State's failure to call such evidence should have attracted critical comment from the judge to avoid a miscarriage of justice.[216]
2. In oral argument, counsel for Mr Boag made clear that he accepted that the State had no duty to call a witness of the kind referred to in ground 6.[217] That concession was properly made. In light of that concession, in the circumstances of this case there is no basis to contend that the failure to call any witness of the kind referred to gave rise to a miscarriage of justice.[218]

Mr Yarran and Mr Smith's appeals against conviction: other grounds of appeal Mr Yarran and Mr Smith's ground 1: failure to direct in relation to novus actus interveniens

1. Mr Yarran and Mr Smith submit that the judge should have instructed the jury as to the possible application of the defence of novus actus interveniens.[219] The intervening act relied upon by Mr Yarran and Mr Smith in ground 1 is Ms Fairhead inadvertently falling from the car at a point in time when (1) she did not intend to so fall and (2) that fall was not (a) as a result of her deliberately jumping from the car to escape threats or intimidation, nor (b) because, at the time the door was open, the car was deliberately swerved so as to cause her to fall.[220]
2. Mr Yarran and Mr Smith submit that Ms Fairhead's act of inadvertently falling from the car was an act so independent of the acts of Mr Yarran and Mr Smith that it should be regarded in law as the cause of the Ms Fairhead's death to the exclusion of their acts.[221]
3. Mr Yarran and Mr Smith submit that they discharged the evidential burden for the defence of novus actus interveniens to be left to the jury, because, taken at its highest, there was evidence that supported the possibility that Ms Fairhead's fall from the car was inadvertent.[222]
4. In the alternative, Mr Yarran and Mr Smith submit that Ms Fairhead may have voluntarily exited the car (perhaps as a successful attempt at suicide), which would also have constituted a novus actus interveniens.[223] They rely on evidence at trial that Ms Fairhead was engaged in an abusive relationship with an ex-partner and was assaulted the day prior to the incidents leading to her death, as well as evidence that Ms Fairhead was visibly upset before arriving at the house and had been in telephone contact with her ex-partner throughout the day.[224]
5. Consequently, Mr Yarran and Mr Smith submit that the judge erred by not directing the jury as to the possible application of the defence of novus actus interveniens, giving rise to a substantial miscarriage of justice.[225]

1. The gravamen of Mr Yarran and Mr Smith's primary submission on ground 1 is that Ms Fairhead's inadvertent fall from the car should have been regarded as a novus actus interveniens - in other words, it was an act so independent of the acts of the appellants that it should be regarded in law as the cause of death to the exclusion of the appellants' acts. For the reasons that follow, taking into account the facts and circumstances of the case, and the State case at trial, Ms Fairhead's inadvertent fall from the car cannot be seen as an intervening cause, and the judge's direction reveals no error.
2. As already explained, the State case was that:

(1) the appellants' threats and intimidation caused Ms Fairhead to open the car door; and

1. On the State case, Ms Fairhead's act of opening the door resulted in her death because:

(1) she died after she fell (or jumped) from the car;

(2) if the door was not opened she could not have fallen (or jumped) from the car;

(3) opening the door with no seatbelt on created a real risk that she would fall from the car; and

(4) insofar as she fell from the car, that risk, arising from the opening of the door, materialised.

1. In that framework, Ms Fairhead's fall from the car cannot be seen as an independent event that breaks the chain of causation resulting in her death. To the contrary, it is the materialisation of the risk created by the deceased's act in opening the car door. In that way, far from breaking the chain of causation, her fall from the car is part of what establishes the causal link, embedded in the word 'results', between the deceased's act in opening the door and her death.
2. Consequently, Mr Yarran and Mr Smith's primary submission, based on Ms Fairhead's inadvertent fall from the car as an intervening cause, must be rejected.
3. Given our upholding of ground 2 of Mr Yarran and Mr Smith's appeal against conviction, it is not necessary to deal with their alternative submission concerning ground 1, which relies on Ms Fairhead's act of jumping from the car as a novus actus interveniens.

Mr Yarran and Mr Smith's ground 3: failure to direct on the need to prove that the deceased's act resulted in her death

1. Ground 3 asserts that the judge failed to direct the jury, adequately or at all, that the State needed to prove the alleged act done by the deceased resulted in her death. The particulars of the ground assert that the judge failed to delineate between the 'act' and the 'result' for the purposes of s 272 of the Code.
2. Mr Yarran and Mr Smith submit that the act relied on by the State at trial, the opening of the car door, would not necessarily result in the passenger falling out. They say that it was the physical occurrence of leaving the car and striking the road that resulted in Ms Fairhead sustaining fatal head injuries.[226]
3. Further, Mr Yarran and Mr Smith submit that the judge conflated the act of opening the car door with Ms Fairhead falling from the car, such that the need for the State to separately prove the 'act' and 'result' required by s 272 of the Code was blurred. They say the effect of that conflation was that the jury could effectively find Mr Yarran and Mr Smith guilty if they were satisfied their actions caused Ms Fairhead to merely open the door of a moving car.[227]
4. There is no merit in these submissions, which are contrary to the plain effect of the judge's directions.
5. The judge directed the jury, orally and through the handout headed 'Causing Death by Threats or Intimidation', that the State was required to satisfy the jury beyond reasonable doubt of an affirmative answer to each of the following three questions:

(1) Did the accused make threats or perform acts of intimidation as alleged by the State?

(2) Did any such threats or intimidation cause Ms Fairhead to open the car door?

(3) Did that act of opening the car door result in Ms Fairhead's death?[228]

1. Contrary to Mr Yarran and Mr Smith's submissions, this direction did not permit the jury to find the appellants guilty if the jury were satisfied that their actions caused Ms Fairhead to open the door of the car. The judge told the jury that they also need to be satisfied in respect of the third question in [355] above. Consistently with what had been[229]id in TB,229 the judge directed the jury that, as to whether Ms Fairhead's act of opening the door resulted in her death, the question was whether her death was, as a matter of objective fact, a consequence [230]that act.230
2. It is not to the point that, as Mr Yarran and Mr Smith submit, the opening of the car door would not necessarily result in the passenger falling out. The opening of the door was a necessary condition for her falling out and consequently dying. It was well open to conclude, as the jury evidently did, that, in the circumstances, Ms Fairhead's death was, as a matter of objective fact, a consequence of the opening of the door. Moreover, contrary to Mr Yarran and Mr Smith's submission,[231] the judge did not conflate the act with the result. The judge clearly identified Ms Fairhead's act as the act of opening the door of a moving car in circumstances where she was not wearing a seatbelt.[232]
3. For these reasons, there is no merit in ground 3. Leave to appeal on ground 3 should be refused.

1. All of the grounds of appeal in each appeal against sentence challenge the sentence on the manslaughter count or the total effective sentence. Given that we have upheld the appeals against conviction on the manslaughter count, it is not necessary or appropriate to resolve the appeals against sentence, which should be dismissed. The trial judge imposed the sentence he thought appropriate for each individual count and structured the sentences to impose what he evidently considered the appropriate total effective sentence in respect of the counts other than the manslaughter count. In those circumstances, there is no occasion to exercise the power, under s 30(6) of the Criminal Appeals Act 2004 (WA), to vary the sentences for the other counts.

1. For the above reasons, we would make the following orders.
2. On Mr Boag's appeal against conviction:

(2) Leave to appeal on grounds 1, 3, 5 and 6 is refused.

(4) The conviction on the count of manslaughter is set aside.

(5) There be a retrial on the count of manslaughter.

(4) The conviction on the count of manslaughter is set aside.

(5) There be a retrial on the count of manslaughter.

(1) The appellant is granted an extension of time within which to appeal.

(5) The conviction on the count of manslaughter is set aside.

(6) There be a retrial on the count of manslaughter.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Beech

[1] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297.

[2] R v Evans (1812) Russell on Crime (5th ed) vol 1, 651.

[3] R v Grimes [1894] NSWLawRp 38; (1894) 15 LR (NSW) 209.

[4] See the discussion by Eames JA in R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337 [24] - [42].

[5] Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56.

[6] Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319.

[7] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.

[8] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.

[9] R v Van Den Bemd [1994] HCA 56; (1994) 179 CLR 137.

[10] R v Van Den Bemd [1995] 1 Qd R 401, 405.

[11] R v Taiters; Ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333.

[12] Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372.

[13] Hussaini v The State of Western Australia [2009] WASCA 207 [10] - [11] (Wheeler JA).

[14] Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171.

[15] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

[16] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

[17] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [145] - [146] (McHugh J).

[18] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263.

[19] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437 (Gibbs J; Mason J agreeing).

[20] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 30 - 31 (Brennan J).

[21] SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].

[22] Martin v The Queen (No 2) (1996) 86 A Crim R 133, 136 - 137 (Murray J; Ipp J relevantly agreeing and Wallwork J agreeing).

[23] Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347 [74] (McLure JA).

[24] TB [117] (Buss JA; Mazza JA & Chaney J agreeing).

[25] Campbell v The Queen [1981] WAR 286.

[26] Colvin E, Causation in Criminal Law, 254 (fn 3).

[27] Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47, 58 - 59 (Windeyer J).

[28] R v Patel [2010] QSC 198, 9 (Byrne SJA).

[29] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 ‑ 118 (Barwick CJ, Windeyer J agreeing), 132 ‑ 133 (Menzies J).

[30] Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162 (Gibbs CJ, Wilson, Brennan & Deane JJ).

[31] Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J).

[32] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32] (French CJ, Crennan & Kiefel JJ).

[114] ts 1238. See also the written handout at [263] above.

[137] Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347.

[139] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [114] - [117].

[140] TB [125]; see also Couzens v The State of Western Australia [2019] WASCA 54 [43].

[153] Orders of Mazza JA on 18 April 2019 (Mr Boag), 9 September 2018 (Mr Yarran) and 26 September 2018 (Mr Smith).

[154] Particular 2.1 of Mr Yarran and Mr Smith's ground 2 refers to the deceased's act of jumping out of the car. However, given that, as was common ground on the appeal, the State case identified the deceased's act as opening the door, particular 2.1 should be read by reference to that act.

[155] For convenience, we will refer to 'threats' rather than 'threats or intimidation or deceit' when discussing the legal principles relevant to s 272 of the Code.

[157] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

[158] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

[161] Respondent's submissions in Mr Boag's appeal [67] - [74]; in Mr Yarran's appeal [25] - [32]; in Mr Smith's appeal [27] - [34]; appeal ts 71 - 72.

[164] See, for example, Krakouer [21] - [39], [74] - [78]; TB [122] ‑ [126]; Couzens [40] ‑ [44].

[170] See the passages in Royall set out and italicised in TB [131] - [135].

[174] Respondent's submissions in Mr Boag's appeal [33]; in Mr Yarran's appeal [31]; and in Mr Smith's appeal [73].

[184] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 227, 231; R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38; Irwin v The Queen [2018] HCA 8; (2018) 262 CLR 626 [43]; R v Taiters [1996] QCA 232; [1997] 1 Qd R 333, 335; TB [197]; Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1 [115] ‑ [117]; Hawke v The State of Western Australia [2017] WASCA 40 [124] ‑ [126].

[185] Code, s 1 definition of 'criminally responsible'.

[188] See, for example, Collard [116] and Hawke [125]. It has also been approved and applied in decisions of the Queensland Court of Appeal; see, for example, R v Condon [2010] QCA 117 [18].

[189] Mr Boag's submissions [33] - [45]; appeal ts 52 - 63.

[190] See, for example, the cases collected by Steytler P in Macartney v The State of Western Australia [2006] WASCA 29; (2006) 31 WAR 416 [132]; Taiters (335), see the passage set out at [309] above; Collard [120], [125]; Hawke [129].

[191] Section 274 operates in a slightly different manner, in that it does not, by itself, deem a person to have killed another. Rather, it provides that certain matters are immaterial where a person causes a bodily injury from which death results, thereby leaving s 270 to operate to deem the person to have killed another.

[193] See the passage set out at [309] above.

[194] See, for example, TB [198] - [200] and the authorities there cited.

[195] Royall (399); see [120] above.

[196] Krakouer [30], [39], [47], [77]; Mr Boag's submissions [6] - [11](a); appeal ts 23 - 24, 31 - 36.

[197] See [238] above.

[198] See [259] above.

[199] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169, 177, 182; Warren & Ireland v The Queen [1987] WAR 314, 327 - 329; Lacco v The State of Western Australia [2006] WASCA 152 [8], [54]; L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32]; Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 [110] - [111].

[206] Mr Boag's submissions [28] - [29], referring to ts 247.

[207] Mr Boag's submissions [31]; appeal ts 49.

[211] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332.

[212] Mr Boag's submissions [49], referring to ts 955 - 956.

[213] Mr Boag's submissions [55] - [56].

[218] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 - 578.

[219] Mr Yarran's submissions [31]. As Mr Smith's submissions are identical, it is not necessary to make separate reference to them.

[220] Mr Yarran's submissions [30]. See also Mr Yarran's submissions [23]; appeal ts 10, 13, 15.

[222] Mr Yarran's submissions [32], [36].

[225] Mr Yarran's submissions [33] - [34].

[226] Mr Yarran's submissions [59] - [61].