Causation Flashcards
Actus reus: Causation:
Firstly → overview introduction into how causation works
And then go through the legal test for causation
There is a number of legal tests
And when you are dealing with a causation issue → the first thing you have to do is figure out what sort of situation you are dealing with to see what sort of test you are applying
And then specific situations where we apply one test or the other test
And see what the case law says on that.
Introduction: important things to note
Actus Reus: The physical elements of the Offence that must be proven by the Prosecution
(That part of the definition of a crime which does not refer to the defendant’s mental state)
The first thing to note is that →
When we are talking about causation we are talking about a actus reus not a mens rea concept.
So not interested → when talking about causation what is going on in the accused head → that is not the issue
Actus reus component of the crime → and something that generally has to be proven if you have a consequence that is part of the actus reus
What is Causation?
Causation is about establishing a link between the accused acts or omissions and the prohibited consequence
Basically what causation is → is about establishing a link between whatever it was that the accused did or didn’t do and → that consequence
In order to show that the accused needs to bear some criminal responsibility for that consequence.
So that is what causation is about
For example → if i am walking down the street and someone is killed in that street → i cant be charged with homicide → I have no causal responsibility for what has occured.
Sheeting home consequences → to people who bear some liability for those consequences.
Why is Causation important?
•There can be multiple causes of the actus reus
•Whenever the actus reus of offence requires proof of a prohibited consequence, it must be proven that the accused had causal responsibility for that outcome in order to be criminally responsible for it (subject to findings of mens rea)
Whenever the actus reus requires proof → of a prohibited consequence → the defendant has to be proven generally to have caused that consequence
So causation → or proof of causation → becomes part of the actus reus.
It is the case that → the world is complex
So there can be multiple causes of a consequence
And to determine whether the accused is one of those
And whether they are sufficiently one of those to bear legal liability → is what the law of causation is about.
When is causation relevant?
It is relevant whenever a consequence is part of the actus reus of an offence. For eg
•Homicide (an act or omission causing death)
•Excess blood alcohol causing death (s61(1)(a) Land Transport Act 1998)
•Wounding (s188)
•cf common assault (s 196)
It follows that causation is relevant whenever → you are talking about a criminal offence → where a consequence is part of the actus reus of the offence.
Mostly going to be talking about homicide cases here.
And the reason for that is → most of the law of causation has developed in the context of homicide.
If you get homicide cases in criminal practice → you are at the apex of your career
Many criminal lawyers → spend their whole career and never have a homicide case.
We put a lot of resources into our homicide cases → our senior lawyers, senior judges.
Media looks at them → they are our showcase of justice.
So a lot of the case law involves homicide → because those are the cases where lawyers are arguing everything they can argue.
The stakes are so high for both the victims and the defendants → and us as a society
Because there our worst types of crimes.
So a lot of our case law → the issues are fleshed out in this context.
But those principles apply to causation in other contexts → where there is very little case law
For example → offence of excess alcohol causing death → under the land transport act section 61
Wounding → if someone is wounded in my vicinity that is not enough for me to be charged with wounding → i have to be shown to have some causal role to that wounding.
And that is very different from an offence → like for an example → common assault
Where there are no consequences → so causation is never part of your actus reus discussion for common assault
It is simply my action of touching you that is the offence
Who decides questions of causation? → Causation is an objective question of fact that should be left to the jury
ØCausation is not determined by reference to what the accused knew or ought to have known about the outcome of their actions
•
ØThose questions of what the accused knew or ought to have known are reserved for the question of whether the accused had the relevant mens rea
Whether causation has been established or not → is an objective question of fact for the jury.
It does not depend on what was going on in the defendants mind
It is an actus reus issue → quite separate from fault or mens rea
And we don’t even ask what the defendant ought to have known → except maybe in relation to one very narrow test of causation
In most cases even negligence from the defendant’s perspective is not relevant to causation.
Generally there are lots of facts situations in the law where → people are charged with an offence that requires proof of causation and its really obvious that causation is there.
So i shoot someone or i stab someone → and they die of their injuries
You wouldn’t even really be arguing causation and that set of facts → it is pretty obvious that it exists beyond reasonable doubt.
But sometimes causation is way less obvious →
A hypothetical eg:
•The accused assaults the victim
•The victim has an enlarged spleen that ruptures in the assault
•The victim is rushed to hospital but doctors fail to attend to him quickly enough and then his injury is misdiagnosed. By the time it is correctly diagnosed it is too late.
There are facts situations where there can be multiple factors in addition to the defendants actions that play a causal role in the death.
And they can range from those that are really immediately connected to the victim’s death and situation that are way more remote.
And sometimes people talk about a chain of causation because there can be events that unfold over time → Where one contributes to the next
Kind of like a domino effect
Sometimes it can be a chain of causation → where things set off other things
And the defendant’s actions might be at the beginning of that chain.
Or there can be situation where lots of things concurrently contribute
All happening at the same time
And the defendant’s action if it didn’t have other things not happening → it wouldn’t have caused the outcome for example.
Hypothetical example →
The accused assaults the victim
So they have done something to the victim → that is their action
The victim has an enlarged spleen that ruptures in the assault
They are rushed to the hospital → and doctors fail to attend to the victim quickly enough
And there is a misdiagnosis
By the time the doctors realise what is going on and the victim is correctly going on → then it is too late → victim died
So this is a situation where there is a chain of causation
There is the injury → and then after that hospital care in response to that which is negligent → chain of causation
And then there is concurrent things → if defendant assaulted the victim and they didn’t have an enlarged spleen on this set of facts
There wouldn’t have been a death
Situation where → there are multiple factors.
Homicide: s158 and 160:
S158 Homicide defined
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
S160 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person—
(a) by an unlawful act; or
(b) by an omission without lawful excuse to perform or observe any legal duty; or …
(c) …
(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his or her death; or …
(e) …
If we are talking about a death
Which we are if we are discussing homicide
Then basically if you cause someone’s death → if you accelerate their death
So for example i stab someone → and im charged with homicide
Can i say no → the person was dying anyway?
In a sense we are all dying
We are all moving towards death inexorably
So i can i shoot someone in the head and say → no they were dying anyways so what?
The answer is NO i cant
Because i have accelerated their death –> and the same is true even if they are actually on their death bed about to die
If i have accelerate their death by five minutes → then i have caused that death
The law is you cause someone’s death → if you accelerate their death.
Section 164 encapsulates this principle → but really just giving effect to the common law.
Causing death = the acceleration of death:
•You cause someone’s death by accelerating their death because everyone is already in the process of moving towards death at greater or lesser speeds
S164:
“Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his or her death while labouring under some disorder or disease arising from some other cause.”
Everyone who by any act or omission
Causes the death of another person
Kills that person although the effect of the bodily injury was
Merely to hasten to his or her death
While labouring under some disorder or disease arising from some other cause
Important to bear in mind if talking about death → acceleration death = causing death
Can have multiple causes of death
Assault + Enlarged Spleen + negligent medical care —> death
Can have multiple causes of death
Have this situation where we had multiple causes of death
The reality is that on any set of facts
We can go back even further
Can actually go back as far as you want to in relation to causal factors.
Assault + Enlarged spleen + Negligent medical treatment + the accused’s mother giving birth to him + the alcohol the accused and victim were drinking—> death
Not just the fact that these are the three immediate causes of death →
The assault
The enlarged spleen
The negligent medical treatment
We could go back even further and say the accused mother caused that death
She gave birth to the accused and brought him up
Take her out of the equation → no death
We can say that the alcohol that the accused and the victim were drinking caused death → they wouldn’t have got into this escalation if not for that alcohol
The alcohol companies which cynically market alcohol to us for emotional problems and social lubricant cause death
The defendant can be held to have caused death by the assault → even though there is just no way that victim would’ve died if they didn’t have a pre existing medical condition
But the issue then becomes → do you have a culpable homicide for other reasons?
So flicking someones head →
May be De minimis
It is not really an assault → so therefore it is not an unlawful act
So need to have an unlawful act that causes death precisely for that reason
You certainly wouldn’t have a murder if you had no mens rea at all.
And then the question would be → do you have sufficient negligence for manslaughter
Even if you do have an unlawful act → because technically flicking someones head is still an assault
Do you have a manslaughter → the answer is you have to have for manslaughter → an unlawful act that a reasonable person would know carries the risk of injury/harm to someone
Nobody would think flicking someones head
But if talking about a more serious assault → then you might
So punching someone in the abdomen → they have an enlarged spleen
Everybody knows that punching someone in the abdomen does carry the risk of causing injury
Depending on how hard you’ve punched the person → so could be a homicide
So given that we can have multiple causes of death → Some more immediate and some more remote the law says
That the defendant does not need to be the main sole or only cause of death →
There can be multiple causes of any death:
•The accused does not have to be the sole, main or only cause of death.
•They will legally cause death so long as their actions or omissions made an operative and significant contribution to the death.
So given that we can have multiple causes of death → Some more immediate and some more remote the law says
That the defendant does not need to be the main sole or only cause of death →
It would be silly to say that → because there is almost no situation in life where they would be the only cause of death
So generally → the defendant will not legally cause death unless they have made a operative and significant contribution to that death
So they don’t need to be the only cause → but must have been a current and a significant cause
In other words → enough of a cause for us to attribute criminal liability for what happened
So what this means is → in the enlarged spleen situation → where there is multiple contributions
Spleen, negligent medical care etc.
As long as the accused assault —> was a significant and operative cause of death
Then they will be a cause of death → even though these other things have also caused death
So there are a number of points that flow on from this
It follows that:
- The causal liability of a third party (or the causal responsibility of the victim) says little about the causal liability of the accused.
- The accused can commit a number of acts and omissions that each independently contribute to the acceleration of death and satisfy the tests for causation. See R v Kuka Cf R v Paenga (No 4)
Important to understand this
The first is
That causal liability of another person says nothing (or very little) about the causal liability of the accused.
So NEVER in an exam question for example → arguing my client was not liable because the doctors engaged in medically negligent treatment.
What is the fallacy in that argument → the defendants actions were still a significant and operative cause of the death
So never arguing that → somebody else breached their duty and caused death → because so what? They will be charged if they are liable
The issue here is your defendant → and their liability and that depends on whether they satisfy the legal tests for causation
So never find yourself in a situation where you are arguing → my client wasn’t liable because somebody else is liable
That is a fundamental misconception on how the law of causation operates
Do not have to establish that the defendant was the → main, only, or the real cause of death → so long as they were a significant and operative cause of death.
Significant or operative cause of death → that it was a current cause of death, did not happen in the past, was playing a causal role, and it was a meaningful role in the death
Not something in the past that does not play a causal role
The second point is that the → accused themselves may commit a number of actions or omissions
Which each separately cause death
If each play a significant role in accelerating the death of that victim.
And the result is → that the accused might be committed of
Multiple counts of homicide even though the victim only died once
This can be problematic → but it does exist in a line of authorities
And there are many background cases which effectuated this outcome
Background cases:
•R v Clarke [1982] 1 NZLR 654 – can be multiple convictions for the one death so long as the act or omissions which forms the foundation for liability is not the same for each offence.
•R v Witika [1993] 2 NZLR 424 – each was a party to the assault that resulted in death and also breached their duty to get medical care once the child was injured under s 152.
R v Clarke →
Held that a person can be convicted of multiple criminal offences in respect of the one death
So long as the act or omission which forms the foundation for liability under the different offences is not the same
So as long as they are different acts or omissions
If it is exactly the same act or omission → you can’t convict the defendant of two counts of manslaughter
That would be → double jeopardy.
In Clarke → the defendant was convicted of manslaughter on the basis of reckless driving
And also causing death while under the influence of alcohol
So one was based on their crazy way of driving
And one was based on the fact that they were driving drunk
So these were different actions → both of which played a causal role in death.
Then the case of Wikita →
The Court of Appeal extended Clarke → by permitting the accused to be convicted of separate counts of manslaughter in relation to the one death
So they had either caused the death → by breaching their obligation to protect the child from injury
And thereby encouraging the person who punched the child in the abdomen
And → they had caused death by not getting the child medical care
In time to address that injury
The doctors would have been able to save her life
That also caused death
So they were both convicted of manslaughter
Based on the injury and then the failure to get medical care.
So those were the background cases which then resulted in the case of Kuka.
R v Kuka [2009] NZCA 572:
•She left her children with her partner and flatmates while she worked six days a week. The children were abused while she was away.
•She failed to get her child, Nia Glassie, medical treatment once she became aware that the child was floppy and unresponsive.
See also Hoana Matiu (unreported)
Court of Appeal Decision
Similar case to Wikita but unreported Hoana Matiu → this case was a harder set of facts
But Kuka → case which got alot of attention in the media
And it went up to the Court of Appeal
Case where a woman left her children with her partner
Who was significantly younger than her and her and flatmates → while she worked six days a week
She was a really hard worker → only person in household bringing home money
Worked a significant distance from where she lived
Worked long hours
Well respected by her employer
Manager of a sorting and packing of vegetables and fruit → working in an itinerant industry as well
So very seasonal → get contracts to deal with different things
She had three children → she had separated from the father of her children
And those children were abused while she was away
And she had tried to raise after seeing some things
Seen things and tried to raise these issues with her flatmates → and they basically sort of denied what was being done or made her at fault for being away.
So children were quite badly abused
And then she failed to get her child → youngest child → medical treatment
Once she realised the child was unresponsive
So she bathed the child → and the child hardly sort of came to consciousness
And it took her a day to go to hospital
Hoana Matiu (different case) → where a woman was being very very badly abused by the person who killed her child
And the same thing → She was charged and convicted of manslaughter twice
Once based on a failure to protect her child →
and one based on a failure to get medical care once she became aware that the child had been injured
In Hoana matiu → talking about a woman who had been in relationship with someone who was extremely brutal
Multiple brutal partners as well
She had been shot in the thigh at one point
And she had no teeth left
And she was characterised very harshly by the media
NZ judgemental of moms for their failures in these cases
These are two cases where women are convicted of manslaughter twice
Even though their child has only died once.
And there are alot of problematic things about that
One is that the obvious impression given to other people → if you have two manslaughter conviction is that you have killed two people
One could argue that that is really unfair labelling
And supposedly your criminal convictions should reflect the nature of your wrongs
Could be charged of one charge of manslaughter in recognition of the fact that only 1 death
And one count of section 195 potentially
So a breach of duty that carries a risk → breach of a duty in relation to a child
Acknowledgement of of the two types of omissions, but only held the person symbolically accountable for one death
The other issue that arises is that if you saw these duties as the breach of the same duty for example
A breach of your parental duty to supply child with necessaries of life → you would probably only have 1 manslaughter conviction
But because we have gone down this legal path → in Lunt → saying necessaries does not include body guard protection or protection from injury
So we have created a separate legislative duties
It looks like you have two separate breaches as opposed to one breach of duty
We don’t for example → charge parents for 365 counts of manslaughter because of every day that they failed to protect their child from injury
Ongoing breach but we just take it as one overall breach
365 days for example is every day they failed to protect their child is a fresh breach in a sense → which may have played a role in the outcome.
R v Paenga (No 4) HC Tauranga, 22 Feb 2006:
•Drove home without strapping her passenger in properly. He was paralysed and fell out of his wheelchair and was suffocated.
•Charged with careless driving and driving under the influence.
We have these cases → problematic cases
And then we have cases not actually overturning those cases and not from a court level that can overturn those cases but → they are saying hang on a minute those cases don’t make sense
This is one of those cases
R v Paenga (No 4) → where the accused was charged with two counts of manslaughter arising out of the same death.
One was based on careless driving
And one was based on driving under the influence
And the question was could they be convicted of both?
And the judge noted that this line of authority applied → only when the acts or omissions which form the basis of liability under each count of manslaughter
Were not substantially the same
And the Court said → on this case the facts involved a single act of driving which was capable of dual characterisation
And so therefore this line of authority → was not applicable
That The act of driving under the influence and driving carelessly → involved the same act of driving
And the judge went on to say →
R v Paenga:
“I find it difficult conceptually to understand the basis for entering two convictions for manslaughter against one person in respect of a single death. At a practical level, imagine, for example, the problems caused to a person required to disclose his or her convictions in explaining that two or more convictions for manslaughter arose from only one death.”
And see King v R [2011] NZCA 664, at [47].
I confess that
Notwithstanding the reasoning articulated
I find it difficult to conceptually to understand the basis for entering two convictions for manslaughter
Against one person
In respect of a single death
At a practical level imagine
For example the problems caused to a person
Required to disclose his or her convictions in explaining that two or more convictions of manslaughter arose from only one death
There is the doctrine of double jeopardy → you are not supposed to be convicted twice for the same thing
But its really awkward → when you look at the doctrine you will see its interpreted very narrowly
If you intercept the essence of homicide as being → the death of the victim
Then these are cases of double jeopardy
It depends on how you think about the facts
So if you think the essence of homicide → is the victim death
Without the victims death there is no homicide
Then cant convict the person twice of the same homicide
What the Court is doing here is using the law on causation and omissions and saying
Well we actually there two omissions → they have both caused death
And so we can have two homicides
In NZ we have a habit of handing out concurrent sentences → really the symbolic value of you trying to explain your convictions
And it looks like you have killed multiple people → when you are trying to explain to your employer that you have multiple convictions for manslaughter
Generally in NZ we hand out concurrent sentences
But depends on the sentencing judge
And depends on moment in time
How sensitive that judge to your set of facts and your circumstances
In the Kuka case → there was a bit of a pile on
Given concurrent sentences → but head sentence was raised
By a year in acknowledgement of the fact that she had killed her child once
So in fact → she was given concurrent sentences
But the overall head sentence was raised
So the fact that she was convicted of manslaughter twice had an impact on her sentence
Tracy Mckintosh → goes into prison regularly and said Kuka was brutalised in prison
If you kill children → you have to go to solitary confinement or a specialised unit where kept out of main prison
And no relationship with remaining kids
And sentencing judge said she was a good mother apart from the fact that she left her kids with people who were harming her kids
Recently there have not been many cases where people have been convicted of two homicides
And there have been more situations where they are charging with one homicide and then an adjunct section 195 based on the other omission
Then concurrent sentences → then not two homicides on the record.
Second lecture slides: Overview of the legal tests (b):
Actus reus: causation
B. The legal tests for causation
The legal tests for causation:
Actus reus: causation
The legal tests for causation:
.1) Modified in relation to omissions: (R v Kuka)
(2) Doctrine of novus actus interveniens
(3) The reasonable foreseeability test: applies in situations where the accused has threatened the victim and the actions taken by the victim to escape that threat, result in the prohibited consequence.
The legal tests for causation
And we really have only basically two tests
With some modifications and some sub-tests
The main test in the criminal law is → the substantial and operative cause test
That is the primary test used in New Zealand
It is modified in relation to omissions
And the case of Kuka was the one that modified it in relation to omissions
Then there is this weird doctrine of → novus actus interveniens
Which has a pretty uncertain state at the moment in the law in NZ
And then we have → A subsidiary test which is not used in alot of situations which is the
Reasonable foreseeability test
And that according to what can be seen in the case law → only applies in situations of fright
The fight and self preservation cases
Those are cases where the accused by way of terrorising the victim
Causes the victim to kill themselves
And the question is → whether the accused has caused the death
By frightening the victim
And really this test so far as can be seen from the case law
Is about containing liability so we don’t spread criminal liability too far
So rather than → everyone being liable whenever they scare somebody who goes and does something crazy
That you would never expect → only liable if you scare someone if they do what you reasonably would have expected them to do in response to that
So it is about containing liability for the accused
So they are only liable for things the victim does that they could have reasonably expected
Behaving in the way that they did
So it is similar to all tests of causation → a containment of liability
Professor Glanville Williams…
•“The law student would be left with the cold comfort of Professor Clarence Morris’s suggestion, that he should memorise a reasonable number of the more popular formulae so that he can make a noise like a lawyer.”
•
•“Causation in the Law” (1961) CLJ 62, 85
Causation is a difficult area
Conflicting case law
Glanville said → the poor law student who doesn’t know how to chart their through this morass of tests
And professor morris → suggested that the law student should just memorise a reasonable number of the popular formulae so they can make a noise like a lawyer
In other words dont know the law in this area → so just make lawyery noises using these tests
Writing in 1961 → more clarity about causation now
Causation is an objective question of fact:
•It is not determined by reference to what the accused knew or ought to have known about the outcome of their actions
•Questions of fault are reserved for the application of whatever mens rea is required by the particular offence that is being applied
Is there a “but for” test?
•“But for” is a threshold consideration - a starting point only
•It determines that the accused’s act was “necessary” in respect of the death event
•It is overly inclusive as a test
•R v Hawkins HC Napier 15 February 2001
It is sometimes said that the starting point for determining causation is
The “but for” test
In other words but for the accused behaviour would the death have happened?
If the death would have occurred anyway → even if the accused had behaved in that way
Then you can definitely say that the accused has not caused the death
Whatever the accused did might have provided the occasion for the death but → it didn’t cause the death
In the case of R v Hawkins
It was a case where the judge kind of used this test to get rid of liability
As it had been charged on the facts of that case
So the unlawful act alleged to have caused death was → driving without a valid drivers licence
This case is still being applied by the police → Case has had a big impact
So the accused had an accident, and they had caused someones death
And they didn’t have a valid drivers licence
They were charged with causing death by driving without a valid drivers licence
And the Court said → no that is the wrong charge → dismiss the charges
It asked → whether the fatal collision would still have occurred if the defendant had a valid drivers licence at the time
And the obvious answer was yes
The accused had a car accident → because she was driving even though she had epilepsy and suffered a seizure behind the wheel
That was the cause of death
That would have happened even if she had a drivers licence
The drivers licence didn’t cause the death
Failing to have a driver’s licence made no positive contribution to the victims death
So that is an example of the but for test
NOTE THAT → the but for test is not really a legal test
Some say it is really a factual test → that disposes of cases where the defendants actions did not play any role factually
Why would the ‘but for’ test not be a good legal test?
It is pretty easy to establish → and way too broad
In our example where the accused punched the victim and caused their death perhaps → the but for test → you would have the accused mother and father
You would have everyone in that was responsible → because if they hadn’t given birth
If they hadn’t had sex at that moment in time
If they hadn’t given birth, if they brought their child up differently
Way too inclusive → so its good for chopping things down but not good as a legal test
AND IT ISN’T A LEGAL TEST →
So if you find yourself arguing the but for test in an exam → you can make mistakes, because it is not a legal test → don’t mistake it for a legal test.
BUT FOR test is NOT A LEGAL TEST.
But for the defendant’s actions, would the victim have died?
YES
The defendant is not the factual cause of the victim’s death
Consider legal causation
NO
The defendant is the factual cause of death
Has there been an Intervening event?
Act of God/nature
Act of the victim
Act of a 3rd party
Substantial and operative cause test:
R v Smith [1959] 2 QB 35:
“if at the time of death the original wound was still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”
Test adopted in NZ:
R v McKinnon [1980] 2 NZLR 31 (CA) and affirmed in R v Myatt [1991] 1 NZLR 674 (CA)
Now working through the tests
How the tests work
And different facts situations to see which tests have been applied where
The primary test is → the substantial and operative cause test
This was a test laid down in England in a case called R v Smith
Where a victim was stabbed then they were dropped twice
While they were being carried to get medical treatment
And then when they got to the medical tent
They were given treatment that was thoroughly bad and might well have affected their chance of recovery
And this is what the English Court said → Famous quote and its where the test comes from →
If at the time of death the original wound was still an
Operating cause and a substantial cause
Then the death can properly be said to be the result of the wound
Albeit that some other cause is also operating
Only if it can be said that the original wounding is merely the setting in which another cause operates
Can it be said that the death does not result from the wound
Putting it another way
Only if the second case is so overwhelming to make the original wound merely apart of the history
Can it be said that death does not flow from the wound
So basically the way this test works is → you are looking at the moment of death
And you are asking the way the victim died and the circumstances of them dying
The facts as they have actually played out
And you are asking whether → the actions of the defendant → were still current
In other words → Were they still playing a role → THIS IS WHAT IS MEANT BY OPERATIVE
And were they still important in contributing to that death → Were they still SIGNIFICANT OR SUBSTANTIAL
So really a normative judgement → about the way the victim died
The defendants contribution is still sufficiently significant in how the victim died → to mean that they should bear some legal responsibility for that event
The accused actions may not satisfy that test → because they are already spent
By the time a fresh causal factor kicks into action
Or an intervening cause → may be so independently overwhelming that it makes their cause just insignificant → wipes it out in terms of how things play out
In New Zealand this test has been embraced by a number of cases for example
R v Mckinnon
And R v Myatt
Those are cases which stand for this being the test in NZ
R v Cato [1976] 1 WLR 110:
•The cause does not need to be substantial so long as it “not be minimal”
•
•R v Kuka: rejected this test, at least for omissions
It has said in subsequent cases and Cato is the famous one that → substantial means
A real cause as distinct from a minimal cause
Arguably that likely lowers the test
In other words → Requiring a substantial cause is very different from requiring a cause that isn’t minimal
So Cato → was a case where the Court said what we really mean by substantial
Is that it wasn’t playing a minimal role
Which is very different from saying it has to play a substantial role
When looking at the NZ dicta → We can see that the Courts use these terms interchangeably
Some judges talk about → Substantial some talk about not being minimal
So not clear what the test is in NZ
Whatever is used to describe the importance of the role that the accused behaviour played in causing death
It is clear that the defendants actions don’t have to be independent
They can meet this test → even though defendants actions occurred alongside other things that played a role
So in our enlarged spleen case → the fact that there was an enlarged spleen,
if the defendant had assaulted the victim without an enlarged spleen death would not have occured
But → the assault also played a role in bursting the spleen
If causes are totally indivisible can you say its one or the other?
The answer to that is → its going to be a normative factual judgement for the jury
The jury is going to be given this set of facts and told → do you think the accused actions were still substantial and operative
OR
Not minimal and operative
In other words → Was the role that the accused actions played still current in what transpired → and were they not insignificant?
And it is a normative judgement → so jury is going to make that decision.
Morality can play a role in it → do you judge that person as being someone that should bear responsibility for the crime?
We will see that in relation to the medical negligence cases
Some of the medical negligence cases are very stretched
Cheshire case for example → Hard to imagine how Cheshire really had plated a current causal role but the jury still convicted.
So element of normative judgement → that goes into the criminal law always and
factual judgement
This is why cases are never authorities for their facts in the criminal law → because you could have the same scenario
Give it to two seperate juries who arrive at two different outcomes → and this is how it is in the law.
Why do omissions present a problem?
In Kuka the NZCA had to decide →
Which test would be used to determine when an omission by the defendant
Played a role in causing this.
This is where the defendant does nothing
The question is there → quite complicated
Because the question is → in an alternative world → if they had done something → would this have made a difference
Its like you are trying to imagine
Not asking factually what did happen → you are trying to imagine an alternative universe in which the defendant did do what they didn’t do → That was a breach of the duty
So they present a particular problem → element of speculation or hypothesis involved in omissions
In the words of the CA in Kuka → it is impossible to show that an omission for certain caused death
Since that would entail making a claim about what would for certain have happened in a different supposed set of circumstances
It is tempting given the stringent standards of the criminal law → to settle for nothing less than absolute proof
But absolute proof is not going to be available in such cases
Any proposition about what would have happened but for an omission
Must be qualified by a lesser standard of probability than absolute certainty
And the CA → rejected the test of Cato for omissions
It said that → the test as expressed in Cato is low → arguably too low
The more than the de minimis standard is a significantly lower standard than the substantial and operative test requirement
So that was a case → which they said ATLEAT in relation to OMISSIONS → they said Cato sets the bar too low.
Kuka went on to set a standard. → more stringent
(1.1) Omissions: R v Kuka [2009] NZCA 572:
At [33]: “It must be demonstrated that but for an accused’s omission the victim ‘would or would probably’ not have died. It is not enough, therefore, to show that life might have been prolonged.”
The CA in Kuka went on to set a standard which they described as → stringent
As it has to be in the criminal context → but realistic
They said it must be demonstrated that “but for” the accused omission → the victim would or would probably not have died
Its not enough therefore to show that life → might have been prolonged.
Effectively what you are going to need for example a failure to get medical → you are going to have to acquire
The prosecution will have to produce doctors who show up in Court and say → if we had had the child brought to us in a timely manner when this parent knew this child was in trouble
We would or would probably → in other words → we would most likely have saved the child’s life
So you can’t say anything for certain → but we would probably
If they said → we could have saved the child’s life, we think its possible that we could have saved the childs life → its possible that the child could have lived for a little bit longer → that is not going to satisfy the standard.
The Court didn’t really discuss causation on the facts
It kind of assumed in relation to the failure to protect charge → that causation was not problematic in relation to that charge
One of the problems is in these set of circumstances is → Kuka was not a case involving family violence
but in cases that do involve family violence → we tend to assume that if you call the police people are going to be safe.
Background on family violence → no family violence safety system
If dealing with case → where the issue is that the victim did not take reasonable steps in terms of alerting someone else about what was happening to the child
Then the prosecution SHOULD (but often not) to prove if the defendant did go to the police or call child protection authorities then that child would be safe.
Generally we just assume that.
There are cases in Canada → where court has held that you cant make the assertion that for example contacting child protection authorities would result in the child’s safety
The prosecution does actually have to prove that the child would have been safe.
R v Kuka [2009] NZCA 572:
•She left her children with her partner and flatmates while she worked six days a week. The children were abused while she was away.
•She failed to get her child, Nia Glassie, medical treatment once she became aware that the child was floppy and unresponsive.
Omissions: R v Kuka:
“The test as expressed in Cato, is low and, arguably, too low. The ‘more than de minimis’ requirement is a significantly lower standard than the ‘substantial and operative cause’ requirement outlined in Myatt…”
“The standard expressed in Morby is stringent, as it must be in the criminal context, but it is realistic, and we adopt it. It must be demonstrated that but for an accused’s omission the victim ‘would or would probably’ not have died. It is not enough, therefore, to show that life might have been prolonged.”
A “novus actus interveniens”:
•An event that is so overwhelming that it breaks the chain of causation between the accused’s actions and the ultimate harm.
Next test → After substantial and operative test
Tricky doctrine → Doctrine of novus actus interveniens
What this principle suggests is that → when the actions of another person other than the accused
Including the deceased
Are the immediate cause of death
And independent of the situation created by the accused.
Novus actus interveniens:
•The actions of a person other than the accused (including the victim) are the immediate cause of death
•Those actions are independent of the situation created by the accused
•The relevant person is fully informed about the situation
And that person (either the accused or someone else) → is fully informed about the situation that they are in
Then they will break the chain of causation between the accused actions and the victims death
So in other words → another adult who is in the situation → fully informed about everything —> making their own independent decision to act → breaks the chain of causation
Professor Glanville Williams (on novus) :
Glanville williams → famous criminal law scholar from England → explains some of the rationale behind this
Or this is his statement of the doctrine →
The first actor who starts on a dangerous criminal path will often be responsble for what happens if no one else intervenes
But a subsequent actor → who has reached responsible years → so they are an adult
They are of sound mind and have full knowledge of what they are doing
And is not acting under intimidation or other pressure or stress resulting from the defendant’s conduct
Replaces him as the responsible actor.
And the rationale for this is → if those conditions are met that person has exercised their own free will in making a deliberate choice
And assumes full responsibility for anything that follows after that
So professor glanville williams says → the doctrine is rooted in the principle of autonomy and the idea that a person is only responsible for what they do themselves
And not the exercise of independent free will by another adult
And this is a quote from Glanville again → i may suggest reasons to you for doing something
I may urge you to do it → tell you i will pay you to do it
Tell you its your duty to do it
My efforts may perhaps make it very much more likely that you will do it → but they do not cause you to do it
In the sense in which one causes a kettle of water to boil by putting it on the stove
Your volitional act → is regarded within the doctrine of responsibility as setting a new chain of causation going → irrespective of what happened before
So recognition that people are → independent adults making their own decision
Can influence them but really can’t replace their free choice or autonomy
So the doctrine of Novus actus interveniens →
Applies in England
Whenever an adult → independently makes a decision → that breaks the chain causation or is a link in the chain of causation
Classic example → i give you a whole load of drugs → you choose to ingest them
My giving you drugs → you are an adult → you chose to take them → if you left them sitting there → you wouldn’t have died
Two lines of authority in NZ (for novus):
•The doctrine applies when the other person’s actions come after the defendant’s actions and when the defendant’s actions have stopped being operative/are “spent” (Turton (1989) 5 CRNZ 270, 272; Vaughan v R HC Auckland, 10 August 1998, 6).
•Even when a causal link is established between the defendant’s actions and the death, the “free, deliberate and informed” act of a third party will usually be an intervening act (R v Ten Bohmer (2000) 18 CRNZ 173, [28]; R v Leaitua [2013] NZHC 702)
In New Zealand → when you look at the case law → its not apparent really that we have applied the doctrine of novus actus interveniens
When you look at some of the cases where some of the Courts talk about it → they look like they are applying the substantial and operative cause doctrine
So they are saying something is novus actus interveniens → if it breaks the chain of causation → so that the defendants actions are no longer a significant and operating cause of death
In that case we can say that this was a novus actus interveniens → it broke the chain of causation
A couple of authorities in NZ
R v Ten Bohmer
And R v Leaitua
Where the Courts appeared the apply the doctrine of novus acus interveniens
As a separate INDEPENDENT principle
In other words → independent of the result you would get if you just applied the substantial and operative cause test/doctrine
The reasonable foreseeability test…
•Only applies in the “fright and self-preservation” cases
•Operates to limit the operation of the “substantial and operative cause test” to actions by the victim that would have been reasonably foreseeable to someone in the defendant’s shoes doing what they did to the victim….. (to be continued)
The final → third test → only applies in a very limited set of circumstances
The reasonable foreseeability test
This operates quite differently from the substantial and operative cause test
When we are applying the substantial and operative cause test → we are looking at the circumstances of the victims death as they played out → and saying → can we see that the defendants actions are still playing a role (still contributing to this death) → and not in a completely insignificant way
When we apply the reasonable foreseeability test → we are looking at the time where the accused does the actions → that are going to result in death
And saying doing those actions → in that set of circumstances → was it reasonably foreseeable that things would play out in the way that they did.
So that is like projecting into the future at a different point in time for this test.
So it operates in a different way
So you’re saying → the accused cant be responsible for anything that doing what they did in the circumstances that they did → where it wouldn’t be predictable that the victim would go and behave in this sort of way which caused their death.
Lecture slides 3 applying the tests - contributing causal factors ( c):
Different situations and see what the tests are that the Courts have applied
So start with situations where you have a fact situations where → you have a fact situation
And whatever the intervening factor is → it originated with the victim
Actus reus: Causation
C. Contributing and intervening causal factors originating with the victim
Recap:
•Main test = substantial and operating cause test (Smith)
•Modified for omissions: If the defendant had not breached their duty the consequence (eg death) would or would probably not have happened (Kuka)
•In the fright and self preservation cases: Reasonable foreseeability test (Tomars [1978] 2 NZLR 505)
•In the case of human interventions: The doctrine of novus actus interveniens? Question – in NZ is this just another way of applying the substantial and operating cause test?
Applying the tests: Causal factors originating with the victim:
•A pre-existing medical condition in the victim
•Contributory negligence by the victim to the accident or injury causing death
•The victim’s decision not to get medical treatment
•The victim’s decision to use a dangerous substance supplied by the accused
•The fright response of the victim
First scenario is → a pre existing medical condition in the victim
Another situation is where the victim has engaged in contributory negligence → so something has happened by the accused and then the victims made it worse by their own behaviour
Another scenario is where the victim has refused medical treatment that might have broken the chain of causation had they accepted it
Or where the victim has made the decision to use a dangerous substance which is applied by the defendant
Or where the victim has responded in a fright to what the accused has done and actually ended up killing themselves
So these are the different scenarios above.
Pre-existing medical condition in the victim:
R v Young HC ChCh, 2004
•The accused had an argument with the victim and assaulted him.
•The victim collapsed and died of heart failure.
•The victim had severe heart disease – any emotional or physical excitement could have caused a cardiac arrest.
•Did the accused cause the death of the victim?
The First scenario → pre existing medical condition in the victim
The case of R v Young (2004) → is a case dealing with this
Very similar to enlarged spleen example
The accused had argument with the victim and assaulted him
Where upon the victim collapsed and died of heart failure
And it turned out that the victim had a severe heart disease that could have killed them at any point in time
Any sort of emotional or physical excitement could have produced a cardiac arrest
Not known to the defendant → or the victim
Court held that there was enough evidence on the facts to link the assault to the death
On the basis that the assault → triggered the arrhythmia → through the medium of stress which was caused
So the assault → stressed the victim → triggered their heart condition → resulted in their death.
So open to the trial judge to leave causation to the jury → and then up to jury to decide on the facts whether they thought this was a substantial and current contribution to the death
This fact situation also illustrates the difference between the reasonable foreseeability test and the substantial and operative cause test → because it was not at all reasonably foreseeable → that when you assault this they are going to have a cardiac arrest
But that doesn’t matter → we are looking at the moment of death → and deciding was a role played by the accused actions
Different inquiry between the two tests
And it also illustrates the point that → the defendants actions don’t have to independently cause death → they can cause death in interaction with other things which are also crucial → and they can have a role in death
Contributory negligence by the victim to the accident or injury causing death:
Vaughan v R HC Auckland, 1998: It could not be said that the victim’s conduct was an overwhelming cause of the accident or that the company’s conduct was trivial or insignificant in how matters played out.
No longer having an effect, deceased actions may be an additional cause of death.
Contributory negligence by the victim → to the accident or injury which causes death
Unless what the accused has done to cause death is spent → in other words → it’s no longer having an effect on things that happened subsequently
The deceased own negligence will not generally break the chain of causation
And that will be the case even though the deceased’s actions might be an additional cause of death
This is illustrated by the case of Vaughn v R → case where a company was charged with manslaughter
Based on a failure to exercise reasonable care under section 156 → they were a person in charge of a dangerous thing and they haven’t exercised reasonable care
What had happened was they installed a lift which was faulty → the installation was part of problem then they hadn’t maintained it properly
And the question was → Was that a significant and operative cause of the victims death
The victim → had actually been employed to repair the lift → he was trying to repair the lift when it fell on him and crushed him
It was a very problematic lift → and somebody had put an oven rack → so that if the lift fell there would be a space created → the oven rack would stop the lift completely going to the ground
And someone had said to the victim → when you repair the lift don’t remove the oven rack
And he had removed the oven rack → so the lift fell and crushed him
The company who installed the faulty lift is trying to argue → he killed himself he removed the oven rack → it was his negligence
And the Court said NO → your faulty lift was still playing a role → it was not SPENT in that accident
Victim’s decisions not to get medical treatment:
R v Blaue
“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This … means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited her from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the accused refused to stop this end coming about did not break the causal connection between the act and death.”
Leading case is the case of Blaue
This is a case where the victim was hospitalised for a stab wound → and she refused a blood transfusion → for religious reasons
She lost a lot of blood → and if she accepted that blood transfusion it probably would have saved her life.
The defendant tried to argue that her deliberate decision with full knowledge of the consequences caused her death not the defendant → the Court rejected this argument
The Court said → it has long been the policy of the law that those who use violence on other people must take their victims as they find them.
This means the whole man, not just the physical man
It doesn’t lie on the mouth of the assailant to say that his victims religious beliefs which inhibited her from accepting certain kinds of treatment were unreasonable
The question for decision is what caused her death
The answer is the stab wound
The fact that the accused refused to stop this end coming about did not break the causal connection between the act and death.
Some people have taken this case for the principle that you must take the victim as you find them
Like the eggshell skull principle → but this can be said to be a tortious concept
Julia doesn’t think this really applies in the criminal law
Julia thinks → the Court is just pointing out here that causation is an objective question of fact
And it cant have different answers depending on whether their victim’s beliefs that inform their inaction are judged to be reasonable or not
So you could probably best understand the decision as an application of the substantial and operative cause test.
You look at the victims death → you ask waht caused her death → blood loss from being stabbed → the accused actions → they are still a substantial and operative role → the fact that she didnt do something to stop that is beside the point in terms of the deceased liability.
Section 165:
“Everyone who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.”
Victims decision not to use a dangerous substance supplied by the accused:
R v Kennedy (No 2) House of Lords
•Accused prepared a syringe of heroin and handed it to the victim who injected himself
•Accused left the room
•Victim died of an overdose
•
Did the accused cause the victim’s death?
A conviction for unlawful act manslaughter could not be based on supply alone…
Victim decides not to use a dangerous substance supplied by accused
Their is a leading House of Lords decision → R v Kennedy (No 2) → that applied the novus actus interveniens principle in this set of facts.
And the facts were that the defendant prepared a syringe of heroin and handed it to the victim → who injected himself (victim) → the defendant left the room shortly before the victim died of an overdose.
And he was convicted of manslaughter → on the basis that he had caused the victim’s death → by supplying the syringe of heroin
And he appealed →
And the House of Lords on appeal said → it was settled law that the unlawful act of supplying the illegal drug would itself have caused no harm
unless the deceased had subsequently used the drug in a form and quantity that was dangerous
So it followed that a conviction for unlawful act manslaughter could not be based on the fact of supply alone
R v Kennedy (No 2) [2007] UKHL 38:
•Informed adults of sound mind are treated in law as autonomous beings able to make their own decisions about how they act:
•
“The free deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.”
The Court said → generally speaking informed adults of sound mind are treated as autonomous beings, able to make their own decisions about how they will act
Thus the defendant is not to be treated as causing the victim to act in a certain way if they make a voluntary and informed decision to act in that way rather than another
The Court went on to say it was a fundamental and non-controversial principle of criminal law that the free deliberate and informed intervention of a second person who intends to exploit the situation created by the first
But is not acting in concert with them → is normally held to relieve the first actor of criminal liability
So this is an application of the novus actus interveniens doctrine
There are a number of exceptions to this doctrine
If someone is not an adult → young or people are vulnerable in certain ways so that mean they are not fully responsible for their actions
Or when you are talking about situations involving duress, necessity, deception, or mistake
So that is why we say fully informed → in this case → given a syringe of heroin → you know what is in the syringe → its not that you are thinking that it is something else for example
This is very different from situations where the defendant directly injects the victim themselves
There they ARE playing a direct role.
Exceptions to the general rule in Kennedy (No 2)
Exceptions to the general rule potentially arise in the case of:
•young or vulnerable people or people who are not fully responsible for their actions; or
•situations involving duress, necessity, deception or mistake
•
To be distinguished on the facts: cases where the defendant directly injects the victim with the controlled drug….
So this is an application of the novus actus interveniens doctrine
There are a number of exceptions to this doctrine
If someone is not an adult → young or people are vulnerable in certain ways so that mean they are not fully responsible for their actions
Or when you are talking about situations involving duress, necessity, deception, or mistake
So that is why we say fully informed → in this case → given a syringe of heroin → you know what is in the syringe → its not that you are thinking that it is something else for example
This is very different from situations where the defendant directly injects the victim themselves
There they ARE playing a direct role.
R v Burns [2012] HCA 35:
•This represents the position in Australia also.
•A voluntary and informed decision to take drugs included a “foolish decision… not knowing its likely effects.”
The Case of R v Burns the High Court of Australia said → this statement of principle in Kennedy (No 2) also represents the position in Australia
And it was of the opinion that a voluntary and informed decision to take drugs which breaks the chain of causation includes a → foolish decision → not knowing its likely effects → you are bearing the risks of your behaviour if you make a stupid decision
This is clearly very different from Blaue where the victim did nothing → and just let what the defendant did play out in the world
This is a situation where if the victim had done nothing they would be alive → so they’ve made a decision that is a novus actus interveniens
Our situation in NZ is a little more complex than this
NZ - conflict of authority in High Court:
•R v Tema HC Wellington, 5 May 2010
•R v Leaitua [2013] NZHC 702
Our situation in NZ is more complex than this
We actually have a conflict of authority at the moment between the case of R v Tema and R v Leaitua
And they are both cases in the High Court → so neither prevails necessarily → they are both at the same level
So what we really need is an appeal to the appellate level court which can resolve the conflict
In the case of Tema → the defendant prepared four liquid doses of a drug → gamma hydroxybutyrate → at the victims request → which he then drank.
R v Tema 2010 HC:
•Three unlawful acts potentially causing death
•Act of administering a class B controlled drug
•Act of supplying a class B controlled drug
•Being a party to the victim’s unlawful act of consuming a class B controlled drug
•
•The victim not the defendant administered the drug
•Not prepared to rule that supplying drugs could never cause the defendant’s death – but did not recommend the Crown pursue manslaughter on this basis…
In the case of Tema → the defendant prepared four liquid doses of a drug → gamma hydroxybutyrate → at the victims request → which he (the victim) then drank.
And he was charged with three counts of manslaughter → based on the unlawful acts of administering a class b controlled drug → supplying a class b controlled drug → or being a party to the victim’s illegal consumption of a class b drug
So the prosecution is trying to charge him with everything to see what is going to stick
He either → supplied it , administered it, or hes a party to her illegal act of consuming it
Justice Gendall first ruled that the Crown could not pursue charges of manslaughter based on the unlawful act of administering the drug
Because the victim self administered → they drank it themselves
So the defendant did not administer it.
He then went on to say that he was not prepared to rule that supplying drugs could never as a matter of fact cause the victims death → although ultimately he suggested the crown don’t pursue manslaughter on this basis.
What justice Gendall did was he took the English case law above about novus actus interveniens (HOL Kennedy) → and he used a very different structure for drug offences in New Zealand →
and the principles of party liability in New Zealand to distinguish Kennedy and come to a different outcome
In England → they basically tried to do this thing where they are not going after addicts (or people who use drugs) → going after people who supply drugs as being really the problem.
And so they are adopting what is called a medical model in England → where you try rather than criminalising consumption → you try and help people who have a problem with drugs.
In New Zealand → we still criminalise consumption of drugs.
In England it is supply and administration that is criminalised in New Zealand it is consumption, supply, administration and everything to do with drugs
So Justice Gendall thought → the consumption of a controlled substance is an offence in New Zealand → the accused by supplying drugs to the victim was a secondary party to the offence of consumption because he has assisted the victim to consume drugs
And then her consumption of those drugs → Resulted in her death
And so the defendant is guilty by being a party to consumption → which is the act that caused death
He is guilty of manslaughter.
Professor Dawkins has argued against this position
One of the things that Justice Gendal → is he thought that the fact that the doses given to the victim → bit by bit → played a role → or might mean that the victim played a role in her death
So he talked about it not just being her consumption → But her consumption of large quantities of the drug on four occasions.
In reality the fact that the drug is delivered in multiple doses means → that their capacity to make rational choices is degraded over time
So in respect of those last decisions they might not have been an adult → completely in sound mind
their rationality might have been eroded by the fact that they were actually quite intoxicated by drug ingestion
So that they couldn’t make rational and fully informed decisions
That would be pertinent to the application of novus actus interveniens → IF that doctrine was legally relevant → because you could argue at that point that the victim was no longer of sound mind
So she could fit with one of the exceptions outlined to the doctrine in Kennedy (No 2)
But on Justice Gendall’s application of the law to the fact → the victims unlawful actions are the direct cause of her own death
So it makes no sense to understand them as a novus actus interveniens in the chain of causation
So that doesn’t really work
In NZ: R v Tema 2010 HC:
•Unlike in Kennedy (No 2) the accused could be a party to the offence of consuming a controlled substance under s7(1)(a) of the Misuse of Drugs Act 1975
Professor Kevin Dawkins:
Professor Dawkins has argued against this position
Hes argued that basically this is turning the criminal law into something that’s way too contrived → because in fact a person cant commit manslaughter on themselves
So it’s basically taking the scenario where a person has killed themselves → you can never commit homicide on yourself → it has to be another person
So they could never by consuming drugs → killing themselves → be guilty of manslaughter
And you have somehow converted helping somone consume drugs into manslaughter → as a secondary party → even though there is no manslaughter when it comes to the person who actually consumed the drugs
Because it is legally impossible.
He says → this is a contrived charge → Because the defendant does not themselves perform the actus reus for the unlawful act that causes the death of another human being for the purposes of manslaughter
The victim does
And it is not possible to conduct manslaughter in respect of oneself.
Dawkins points out that the approach taken in Tema essentially means that the acts of secondary participation → which in and of themselves would not be enough to cause either the victims own behaviour or their death
Are artificially converted into acts of principal participation for the purposes of additional manslaughter charges.
In NZ: R v Leaitua 2013 HC:
•L gave his mother-in-law some drugs in packages.
•She ingested them in order to courier them into NZ.
•Several of the packages ruptured inside her and she died of a drug overdose.
Did the accused cause the death of his mother-in-law?
Then there is this conflicting authority → Conflicting with the case of Tema
Case decided by Justice Katz → and she disagreed with and departed from the decision taken in Tema
And instead chose to embrace Kennedy (No 2) as reflecting the law in NZ
This is a case where → the defendant supplied another person with Class A drugs → it happened to be his mother in law → and she was ingesting them to try and traffick them into New Zealand
Unfortunately some of the packages ruptured in her body → and she died in consequece
And the question was → By supplying those drugs to her which she chose to ingest → had he caused her death?
And Justice Katz → said No → in this case it wasnt the supply of drugs which caused her death → it was her voluntary decision to ingest those drugs →
the victim fell within none of the exceptions to the rule set out in Kennedy → she was an adult of sound mind → who knew what she was ingesting → She wasn’t acting under pressure or intimidation → to the extent that her will had eroded.
So we have → these two conflicting decisions → Tema and Leautiua
Really it is a matter of preference → what do you prefer?
R v Leaitua:
Katz J disagreed with the position taken in Tema and followed Kennedy (No 2):
•“the supply of a controlled drug, consumed freely and voluntarily by the victim, cannot form the basis of an unlawful act manslaughter conviction in New Zealand, unless one of the exceptions identified by the House of Lords in Kennedy applies, which it does not in this case.”
•The mother in law’s “death was not caused by the unlawful supply of cocaine to her, but rather her own voluntary act of ingesting the drugs supplied to her.”
So we have → these two conflicting decisions → Tema and Leautiua
Really it is a matter of preference → what do you prefer?
Some people might argue that Justice Katz position → better fits with assumptions about human agency, autonomy, and choice that underpin the criminal law
That were about holding people accountable for their individual choices
Other people might prefer the outcome in Tema
So we wait for an appellate level decision before we see how this plays out.
Fright response of the victim:
The reasonable foreseeability test is applied in the “fright and self-preservation cases”
The final situation where we are talking about the contributing factor benign something by the victim
Fright and self preservation cases → these are not cases where you apply the substantial and operative cause decision
Although if you read the case law → it is possible that you first do substantial operative cause test then you apply the reasonable foreseeability test in these cases.
These are cases where the accused has threatened the victim → and then the victim has gone and done something to escape the threat
And that has directly resulted in their own death
So they cover situations where the victim → hides in a river and is drowned → or they jump from a window and die in the fall → or they have an accident because they are trying to escape from the defendant
Or they are trying to run away → and they trip and fall down the stairs
Originally in the common law → the Court said that the victim’s perception that the defendant was going to inflict serious physical injury → had to be reasonable
Had to be a reasonable perception → and then if the victim had that reasonable perception and died trying to escape then it didn’t matter how unreasonable or ill advised their attempts to escape were → the accused had caused their death
But the modern variation of the test is not that → the victim does not have to be reasonable in their fears they have to be reasonably predictable in their escape attempts from the defendant’s point of view.
R v Pagett (1983) 76 Cr App R 279::
•Victim’s response has to be reasonably foreseeable
•You can be responsible for the victim’s behaviour AND/OR for third party behaviour if it is a reasonable defensive response to the threat you pose
The second thing that has happened is → the Courts have extended the victim’s behaviour to third party behavior’s
So you can be responsible for third party behaviours → that are reasonably predictable
So in the Padgett case → the defendant was firing at police → and he was holding the victim as a shield in front of him → and the police fired back in self defence → and they were the ones who actually shot the victim.
But he was held to be causally liable for their behaviour → as reasonably predictable behaviour in consequence of his behaviour.
NZ R v Tomars [1978] 2 NZLR 505:
•Was the victim in fear of violence from the accused when he did what he did?
•Did such fear cause him to attempt to cross the road in the circumstances and manner in which he made the attempt?
•If so, was the attempt to cross the road a natural consequence of the actions of the accused. That is, was it the kind of action that could reasonably have been foreseen by reasonable and responsible persons in the accused’s shoes?
•If so, did the act of the victim in attempting to cross the road cause his death?
The leading case in New Zealand is R v Tomars → that was a case where the defendant was pursuing the victim who was on a motorcycle
They passed him and they threw bottles at him
So they had been terrorising him in high pursuit → and what he did was after he passed him → he turned off his lights and he did a u turn in the dark
So he was trying to sneak away → and he was killed by another driver
And the Court laid down this test → whether his attempt to cross the road was a response to what the defendant did
And whether it was the kind of action that could reasonably have been foreseen by a reasonable and responsible person in the accused shoes.
R v Lucas [2015] NZHC 2155, [34]:
Distilled the questions in Tomars, requiring that:
•the actions of the defendant caused the deceased, from fear of violence, to act in the way he did;
•that it was the kind of action that could reasonably have been foreseen by reasonable and responsible persons in the shoes of the defendant; and
•that the act contributed in a not insignificant way to his death.
And the case of Tomars was slightly modified in the Case of Lucas → where the Court distilled these questions into three questions
Did the actions of the defendant cause the deceased, from fear of violence to act in the way they did?
Was it the kind of action that could have reasonably been foreseen by reasonable and responsible persons in the shoes of the defendant?
And did the act contribute in a not insignificant way to their death → in other words the operative and not insignificant cause test.
Second lecture start:
Looking at test that apply when dealing with a fright and preservation case
Cases where the defendant scares someone and they go and do something that causes their death
And the question is in a sense → is the defendant responsible for what the victim did?
Whether what the victim did breaks the causal chain → or whether it can be seen as a continuation of what the accused did.
The leading case for this in NZ is Tomars →
And we have a recent HC decision that distilled the questions set out in Tomars.
Lucas was a case where → a person hid in water with just their nose showing on a dark cold night → and ended up drowning → they thought they were going to get a beating by the defendants
And the questions you ask yourself in this sort of case
Whether the action of the defendant caused → from fear of violence to act the way they did
Whether their action → deceased action was the kind of action that could reasonably have been foreseen by reasonable and responsible persons in the shoes of the defendant
And that the act contributed in a non insignificant way to his death.
Court of Appeal in Tomars:
was clear that the restriction of causation to what could have reasonably have been foreseen as a consequence of the accused’s conduct added a gloss on the need for the prosecution to prove simple causation. In other words, it is necessary for the prosecution first to satisfy the significant and operative cause test. The idea is to avoid the accused being held liable for unpredictable over-reactions to their behaviour.
The Court of Appeal in Tomars → was very clear that the restriction of causation to → What was reasonably foreseeable → is a containment of liability for the accused
Your not obliged → not responsible for everything the deceased does → just the things that you could have predicted as an outcome of what you did.
So in a way → its a gloss or a further restriction on what is required to prove simple causation
A containment of liability rather than an expansion of liability
A few important notes:
•We do not require the victims to act reasonably in these situations.
•The question is NOT whether the victim’s response was a reasonable response to the accused’s behavior BUT whether the victim’s response was reasonably foreseeably by a reasonable person in the shoes of the accused.
•The reasonable person does not have to predict or foresee all the specific details of the victim’s response: Liev v R [2019] NZCA 242.
•There is no requirement that the victim’s actions be proportional to the threat they are under: Perry v R [2018] NZCA 595.
Final points to note
Not requiring that the victim is acting reasonably
The question is not whether their response was reasonable → but whether it was reasonably foreseeable to someone in the defendants shoes
The reasonable person doesn’t have predict or foresee all the specific details of the victims response
And there is no requirement that the victims response be proportional to the threat that they’re under
Liev v R → case where a woman leaped out of the boot of a car → and leaped out while the car was moving
And defence counsel tried to argue → we wouldn’t have predicted that → we would have predicted her trying to get out when the car was stopped
And the answer was no → dont have to foresee all the details → if you tie someone up and put them in the boot of the car → you can predict that they will try to get out at some point
And that is all you need to foresee.
Is the victim’s age relevant?
•What is reasonably predictable behaviour by the victim will differ depending on the age of the victim. R v Mackie [1973] 57 Cr App R 453
•What is predictable to a reasonable person in the accused’s position is an objective question of fact. Does the standard differ according to the accused’s age? No. R v Majoram [2000] Crim LR 372
The victims age is relevant → Because what is predictable from a child might not be predictable from an adult
Authority for that is the case of Mackie → case in which the victim was only three → so the accused made a gesture towards them → and the little victim who had been subject to violence in the past from the accused
Tried to escape him → went over the top of some stairs and went all the way down the stairs without touching anything and died in consequence
And what is reasonably predictable from a three year old is the test.
What could you have foreseen that little victim would have done?
But we don’t modify the standard according to the accused age → so it’s not what was reasonably predictable to an 18 year old accused
The reasonable person doesn’t have an age →
the standard does not vary according to the accused age → the authority for that is Marjoram.
Section 163:
“No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.”
Funny provision section 163
Its says no one is criminally responsible
For the killing of another by any influence on the mind alone
Except by wilfully frightening a child under the age of 16 years or a sick person
Nor for the killing of another by any disorder or disease arising from such influence
Except by willfully frightening any such child as aforesaid or a sick person
Confusing section
Dont think it has been discussed in the case law
Dealing with situations where not dealing with violence or violent threats
So for example → frightening the victim in some other way
Dealing with situations where someone hasn’t frightened someone by violence or threats of violence
But for example telling them ghost stories → or scaring them over time so they die of an illness
Not fright and self preservation cases → it’s a more tenuous connection
Such threats, disclosures, frightening stories, cause stress or illness in the victim that results in their death.
Actus reus: Causation lecture slides 4:
D. Applying the tests: When there are contributing factors other than the victim:
Final piece of causation →
These are Where we have contributing factors that are other than just the victim/deceased
Causal factors originating with a third party
And the most common → is negligent medical treatment
Recap:
•Main test = substantial and operating cause test (Smith)
•Modified for omissions: If the defendant had not breached their duty the consequence (eg death) would or would probably not have happened (Kuka)
•In the fright and self preservation cases: Reasonable foreseeability test (Tomars [1978] 2 NZLR 505)
•In the case of human interventions: The doctrine of novus actus interveniens? Question – in NZ is this just another way of applying the substantial and operating cause test?
Causal factors originating with a third party:
•Medically negligent treatment
•Turning off life support
•Third party actions
There is some case law on turning off life support
And also a little bit of case law on third party actions
Medically negligent treatment:
•Section 166
“Everyone who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that persons, although the immediate cause of death be treatment, proper or improper, applied in good faith.”
•R v Kirikiri [1982] 2 NZLR 648
Section 166 of the Crimes Act → deals with intervening medical treatment
And it provides that → everyone who causes to another person any bodily injury, in itself of a dangerous nature from which death results
Kills that person, although the immediate cause of death be treatment proper or improper applied in good faith
In R v Kirikiri it was said that → this section simply declares the common law
So in other words what we do is we just apply the substantial and operative cause test
In these kinds of cases where we are dealing with medically negligent treatment
Basically what you do → you look at the way the victim dies → classic application of substantial and operative cause test → look at that moment of death and you ask yourself → is the defendants action still operating?
Is it still playing a role of some kind in that death
And is it a significant role? Or not insignificant role → depending if you are applying the Smith or the Cato test
And what you can find is that both the medically negligent treatment and the actions of the accused are both playing a role
So NEVER in an exam → be answering a question by determining whether the doctors behaviour caused the victims death because it’s irrelevant to the accused’s liability
So your argument should never be → the accused is not liable because the doctors actions caused the death → that is completely legally irrelevant → they might both be liable → remembering we can have multiple causes of death
So just simply applying the test in respect of the accused → if the test is satisfied then the medical negligence has not broken the cause of causation
In actuality → when we look at the case law → you can see that medically negligent treatment is very unlikely to break the chain of causation.
For eg (medically negligent treatment):
R v Cheshire [1991] 3 All ER 670
“the accused’s acts did not need to be the sole or even the main cause of death, it being sufficient that his acts contributed significantly to that result, and that even though negligence in the treatment of the victim was the immediate cause of his death, they should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts and in itself so potent in causing death that they regarded the contribution made by his acts as insignificant.”
Juries are reluctant to find that someone who has used violence against somebody can escape liability just because that victim got horrible medical treatment
And the high watermark for this is the case of R v Cheshire → this was still a case where causation would be left to the jury
Case where the victim was admitted to hospital for an operation after they had been shot in the leg and the stomach by the accused
And while they were in hospital → they developed respiratory problems → so a tracheotomy had to be inserted in their wind pipe so they could breathe
More than two months after the death → they died of complications from the tracheotomy
And what had happened was the medical staff had negligently failed to realise what was going on → to diagnose the problem and address it
And at that point → the wounds the accused had caused had completely healed
And the English Court of Appeal held that → the accused acts did not need to be the sole or even the main cause of death → it being sufficient that his acts contributed significantly to that result
Even though negligence in the treatment of the victim was the immediate cause of his death → the jury should not regard it as excluding the responsibility of the accused
Unless the negligent treatment was so independent of his acts and in itself so potent in causing death
That they regarded the contribution made by his acts as insignificant
Shows how difficult it is to get medical negligent treatment to break the chain of causation
Might be moral and policy reasons behind this.
Turning off life support: is it “treatment” under s.166?
•R v Trounson [1991] 3 NZLR 690: Life support is medical treatment
•R v Tarei HC Tauranga, 5 August 2005: Life support is not medical treatment: ‘“treatment implies something done to enhance the prospects of a recovery.”
Third party’s actions:
•The accused pushes the victim onto Queen St. The road is busy and the victim is almost immediately killed by a passing car.
•
•Did the accused cause the victim’s death? (R v Fleeting [1977] 1 NZLR 343)
Third party actions
One case we have on this is the case of R v Fleeting
That was a case where the accused pushed the accused onto a busy road that was Queens street
On a friday or sat night → there was a lot of traffic on the street
And the victim was almost immediately run over and killed by a passing car
And the Courts said that the issue for the jury → was whether the unlawful act in its context → was a real and substantial cause of the victims death
So the defendant tried to argue → pushing someone →
Court said no → we have to look at pushing someone onto a busy road
Almost immediately run over in this case → what had happened was the accused had pushed him in front of a car which couldn’t stop
So in a sense → a third party’s actions is a novus actus interveniens
The way the Court applied the doctrine of novus actus interveniens in R v Fleeting → two lines of authorities for novus in NZ
And they applied the line of authority where novus actus interveniens is not an independent legal doctrine → just an application of the substantial and operative cause test
So that is the test that they applied
If you did apply novus as an independent doctrine → it wouldn’t break the chain of causation in this case anyway
And the reason why is that → the third parties actions aren’t really independent of the situation set up by the accused.
So the accused has pushed someone in front of their car and they can’t stop in time → so its not an independent
A free informed independent decision by an adult such that they are assuming responsibility for everything that comes afterwards
