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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.

Arguments on the issue of causation

Mr Swan and his accomplice were charged with the murder of Mr Kormilets. The main legal issue at their trial was whether the Crown could prove causation; in other words, whether it could be concluded by the jury beyond a reasonable doubt that the assault on Mr Kormilets substantially or significantly contributed to his death or whether there had been intervening acts that broke the chain of causation between the attack and the death. Evidence was given at the trial that the failure to surgically treat a broken hip will almost inevitably be fatal and that such surgery would reasonably be expected to have saved Mr Kormilets’ life.

The Crown Prosecutor at the trial relied upon three possible ways of proving that the assault by the two assailants caused Mr Kormilets’ death. They were as follows:

  1. The assault by the accused men caused injuries to Mr Kormilets’ lungs and respiratory system. After Mr Kormilets fractured his hip, his respiratory failure was caused by the fat emboli that travelled to his lungs compounded with the pre-existing lung injury.
  2. The assault by the accused men caused injuries to Mr Kormilets that reduced his cognitive ability and created a propensity for him to fall. If the fracture to the hip resulted from a fall, then the jury could conclude that the assault caused the fall and, thus, caused the fracture. The assault was therefore a substantial cause of Mr Kormilets’ death when the fat emboli travelled to his lungs as a result of the fracture.
  3. The assault by the accused men caused injuries to Mr Kormilets that resulted in a low quality of life for him. This low quality of life was the reason that, when Mr Kormilets presented to hospital with a fractured hip, a decision was made not to undertake surgery. Mr Kormilets died as a result of that decision because the lack of surgery permitted the fat emboli to travel to his lungs.

The defence argued at trial that the two accused men were not responsible for the death because of intervening events that they were not responsible for; namely, the fall at the nursing home and the subsequent decision not to provide Mr Kormilets with life-saving surgery. The prosecution argued that the fall was a direct result of the poor physical and mental condition that Mr Kormilets was in as a result of the attack, and that the decision not to operate on him was also a direct result of his poor physical and mental condition for which the two accused were responsible. Mr Swan and his accomplice were convicted by the jury of murder.

Appeal to the High Court

On appeal by Mr Swan from a decision of the NSW Court of Criminal Appeal, it was the third ground of causation (above) that attracted the attention of the High Court. The High Court acknowledged that for the Crown to succeed on this ground it was necessary for there to be proof beyond reasonable doubt of the following three facts:

  1. surgery upon Mr Kormilets was available and would reasonably have been expected to save his life;
  2. Mr Kormilets or his son Dimitri had made a decision that such available surgery should not be undertaken;
  3. the decision to refuse surgery was motivated by Mr Korlets’ low quality of life due to the assault rather than due to other, unrelated considerations.

The High Court, in rejecting the appeal and confirming the decision of the Court of Criminal Appeal, held that there was sufficient evidence of these three facts and that the third ground of causation was open to the prosecution. In other words, the High Court held that the assault by Mr Swan upon Mr Kormilets was a sufficiently substantial or significant cause of the death to justify a conviction for murder. Putting it another way, neither the fact of Mr Kormilets’ fall, nor the decision by the doctors and Mr Kormilets’ son to forego surgical intervention, amounted to a novus actus interveniens sufficient to break the chain of causation between the attack and the death.

The main legal issue … was … whether it could be concluded by the jury … that the assault … substantially or significantly contributed to his death or whether there had been intervening acts that broke the chain of causation …

Implications of the decision

In my view, this case has extended the concept of causation of a death in homicide cases to an extent that goes beyond what had previously been accepted law. In previous cases, it was generally accepted that if the accused could have foreseen the intervening acts that were the immediate and proximate cause of the death, then those intervening acts did not break the chain of causation between the original act of the accused and the death (see: Medlin v State Government Insurance Commission (1995) 182 CLR 1 and McHugh J in Royall at 448; R v Roberts (1971) 56 Cr App R 95; DPP v Daley [1980] AC 237). For example, if an accused seriously wounds a victim with intent to do grievous bodily harm, the accused could foresee a number of possible consequences: the victim may die weeks later from a raging systemic infection; the victim may get substandard medical attention and perish as a result; the victim may have a previous unknown medical condition that renders him or her much more likely to die from the wounding. None of these are factors over which the accused has any control and yet, because of their foreseeability, they do not amount to novus actus interveniens and do not break the chain of causation between the wounding and the subsequent death.

In the case of Swan v The Queen, however, it was not suggested that the offender should have foreseen that Mr Kormilets may have a fall in a nursing home and break his femur, and that a decision might be made to withhold surgical treatment that would in all likelihood have avoided his death. In my view, the only rational conclusion is that the High Court has extended the concept of causation in homicide cases.


Mark Tedeschi AM QC is a barrister at Wardell Chambers.