By Mark Tedeschi AM QC -
Snapshot
- The recent High Court case of Swan v The Queen has effectively extended the law of causation in homicide cases.
- Prior to this decision, it was generally accepted that if the accused could have foreseen intervening acts that were the immediate cause of death, then the intervening acts did not break the chain of causation between the accused’s original act and the death.
- In Swan, the accused were convicted despite there being no suggestion that they could have foreseen the intervening acts.
The High Court recently delivered a fascinating decision in Swan v The Queen [2020] HCA 11 that has extended the law of causation in homicide cases. In order for a person to be legally responsible for a homicide, the prosecution must prove beyond a reasonable doubt that an act of the accused was ‘a substantial or significant cause of the death’ (Osland v R (1998) 197 CLR 316; Royall v R (1991) 172 CLR 378; Moffatt v The Queen [2000] NSWCCA 174; Reynolds v The Queen [2015] NSWCCA 29). It is not necessary for the prosecution to prove that the accused’s act was the only cause of death, or even the most important cause of death. It is sufficient that it was one of a number of causes of the death, so long as it was a substantial or significant cause. However, the law dictates that where there has been some intervening act or event (novus actus interveniens) which is a more proximate cause of the death and for which the accused person is not legally responsible, the causal chain may be broken and the accused may not be guilty of homicide (R v Pagett (1983) 76 Cr App R 279).
Facts
The facts of this case were most interesting. The victim, Mr Kormilets, was an active, independent and relatively healthy 78-year-old man who lived in an apartment in Redfern. One night in April 2013, the accused, Mr Swan, and an accomplice broke into Mr Kormilets’ apartment and severely attacked him with a machete. Mr Kormilets did not die, but he suffered severe, traumatic, life-threatening injuries to his brain, his face, his kidneys and his chest. Mr Kormilets spent four months in hospital and was then transferred to a high-level nursing care facility where his condition was so poor that he was unable to undertake any daily living activities. Mr Kormilets lacked any real capacity to understand what was happening around him, or even to recognise close relatives and friends. He was unable to feed himself and suffered from double incontinence. For most of the time, he was confined to his bed in a most parlous state, showing frequent signs of agitation. His main support person was his son, Dimitri.
In July 2013, Mr Kormilets developed serious aspirational pneumonia and was taken from the nursing home to St Vincent’s Hospital where his condition was treated aggressively and successfully, so that Mr Kormilets was returned to the nursing home. After this treatment, his son Dimitri signed a directive that his father was not to be resuscitated in the event of a similar life-threatening event. Between September and December 2013, Mr Kormilets’ condition in the nursing home was so poor that he was unable to physically or mentally engage in any daily living activities.
On 5 December 2013, eight months after the attack on him, Mr Kormilets fell at the nursing home, which caused a fracture of the neck of his femur (a broken hip). He was transferred to the Prince of Wales Hospital where a decision was made in consultation between the doctors and his son that no operation to repair the fracture was to be performed. Rather, Mr Kormilets was to be treated with palliative care, knowing that he would probably die. This decision was based upon the singularly poor quality of Mr Kormilets’ life since the attack upon him. There was evidence that operations on hip fractures have a high success rate.
Mr Kormilets died five days later. A post-mortem examination of his body disclosed that the cause of death was fatty deposits in the blood vessels and heart that were a direct and frequent result of a fracture of the femur.
