Causation

Question 1

Actus reus: Causation:

Answer 1

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.

Question 2

Introduction: important things to note

Answer 2

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

Question 3

What is Causation?

Answer 3

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.

Question 4

Why is Causation important?

Answer 4

•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.

Question 5

When is causation relevant?

Answer 5

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

Question 6

Who decides questions of causation? → Causation is an objective question of fact that should be left to the jury

Answer 6

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 →

Question 7

A hypothetical eg:

Answer 7

•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.

Question 8

Homicide: s158 and 160:

Answer 8

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.

Question 9

Causing death = the acceleration of death:

Answer 9

•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

Question 10

S164:

Answer 10

“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

Question 11

Can have multiple causes of death

Answer 11

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 →

Question 12

There can be multiple causes of any death:

Answer 12

•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

Question 13

It follows that:

Answer 13

• 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

Question 14

Background cases:

Answer 14

•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.

Question 15

R v Kuka [2009] NZCA 572:

Answer 15

•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.

Question 16

R v Paenga (No 4) HC Tauranga, 22 Feb 2006:

Answer 16

•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 →

Question 17

R v Paenga:

Answer 17

“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.

Question 18

Second lecture slides: Overview of the legal tests (b):

Actus reus: causation
B. The legal tests for causation
The legal tests for causation:

Question 19

Actus reus: causation

The legal tests for causation:

Answer 19

.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

Question 20

Professor Glanville Williams…

Answer 20

•“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

Question 21

Causation is an objective question of fact:

Answer 21

•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

Question 22

Is there a “but for” test?

Answer 22

•“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

Question 23

Substantial and operative cause test:

Answer 23

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

Question 24

R v Cato [1976] 1 WLR 110:

Answer 24

•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.

Question 25

Why do omissions present a problem?

Answer 25

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

Question 26

(1.1) Omissions: R v Kuka [2009] NZCA 572:

Answer 26

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.

Question 27

R v Kuka [2009] NZCA 572:

Answer 27

•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.

Question 28

Omissions: R v Kuka:

Answer 28

“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.”

Question 29

A “novus actus interveniens”:

Answer 29

•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.

Question 30

Novus actus interveniens:

Answer 30

•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

Question 31

Professor Glanville Williams (on novus) :

Answer 31

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

Question 32

Two lines of authority in NZ (for novus):

Answer 32

•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

Question 33

The reasonable foreseeability test…

Answer 33

•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.

Question 34

Lecture slides 3 applying the tests - contributing causal factors ( c):

Answer 34

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

Question 35

Actus reus: Causation

C. Contributing and intervening causal factors originating with the victim

Answer 35

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?

Question 36

Applying the tests: Causal factors originating with the victim:

Answer 36

•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.

Question 37

Pre-existing medical condition in the victim:

Answer 37

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

Question 38

Contributory negligence by the victim to the accident or injury causing death:

Answer 38

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

Question 39

Victim’s decisions not to get medical treatment:

Answer 39

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.

Question 40

Section 165:

Answer 40

“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.”

Question 41

Victims decision not to use a dangerous substance supplied by the accused:

Answer 41

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

Question 42

R v Kennedy (No 2) [2007] UKHL 38:

Answer 42

•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.

Question 43

Exceptions to the general rule in Kennedy (No 2)

Answer 43

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.

Question 44

R v Burns [2012] HCA 35:

Answer 44

•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

Question 45

NZ - conflict of authority in High Court:

Answer 45

•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.

Question 46

R v Tema 2010 HC:

Answer 46

•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

Question 47

In NZ: R v Tema 2010 HC:

Answer 47

•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

Question 48

Professor Kevin Dawkins:

Answer 48

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.

Question 49

In NZ: R v Leaitua 2013 HC:

Answer 49

•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?

Question 50

R v Leaitua:

Answer 50

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.

Question 51

Fright response of the victim:

Answer 51

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.

Question 52

R v Pagett (1983) 76 Cr App R 279::

Answer 52

•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.

Question 53

NZ R v Tomars [1978] 2 NZLR 505:

Answer 53

•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.

Question 54

R v Lucas [2015] NZHC 2155, [34]:

Answer 54

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.

Question 55

Court of Appeal in Tomars:

Answer 55

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

Question 56

A few important notes:

Answer 56

•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.

Question 57

Is the victim’s age relevant?

Answer 57

•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.

Question 58

Section 163:

Answer 58

“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.

Question 59

Actus reus: Causation lecture slides 4:

D. Applying the tests: When there are contributing factors other than the victim:

Answer 59

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

Question 60

Recap:

Answer 60

•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?

Question 61

Causal factors originating with a third party:

Answer 61

•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

Question 62

Medically negligent treatment:

Answer 62

•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.

Question 63

For eg (medically negligent treatment):

Answer 63

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.

Question 64

Turning off life support: is it “treatment” under s.166?

Answer 64

•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.”

Question 65

Third party’s actions:

Answer 65

•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