LAWS1016 Lecture Notes - Lecture 5: Bowel Resection, Abdominal Pain, Well-Founded Relation
16 May 2018
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5| Homicide I: Murder
Conduct element: act or omission causing death:
• Omissions causing death:
Taber (2002):
▪ Facts: Accused robbed the deceased and left her bound and gagged, from
which she died of dehydration.
▪ ‘Any person who deliberately puts another in danger comes under a legal duty
to remove that danger.’ Barr J
▪ Ways of analysis:
▪ One continuing act which led to her death, or
▪ An act, followed by an omission
BW & SW (No 1) [2009]
▪ Mother (SW) convicted of murder and father of manslaughter, after breaching
the duty of care imposed on them as parents to provide adequate nourishment
and medical attention. The child, who was 7, died of chronic malnutrition
caused by starvation over a number of months
▪ Judge did not say that SW had a long term plan to kill her daughter, BUT, she
exercised a deliberate choice to do nothing that might save her from the
situation, in circumstances where she watched her daughter deteriorate over a
lengthy period of time.
▪ ‘Did nothing that might save her as the situation went from possibility to
probability to certainty that Ebony would die without intervention’
• The precise act or omission causing death:
It is extremely important to identify the precise act or omission causing death
Conduct element: act or omission causing death:
a) Where the alleged intervening conduct is the act of a third party: R v Evans and Gardiner
(No 2)
Facts: Deceased was stabbed in stomach by two applicants while they were prisoners
in Pentridge. A bowel resection operation was performed successfully (and skilfully)
but about a year later, the deceased suffered abdominal pain and vomiting. He
received medical treatment (this was found to be inept) but died. The cause of death
was due to a problem at the site of the resection operation which was apparently
common. It was open to the jury on the evidence to find that the doctors should have
diagnosed the condition, and that operative treatment would have rectified it. Each
applicant was convicted of manslaughter. THe issue on appeal [appeal dismissed]
The Full Court:
▪ Note: Hamilton died not long before the expiry of the ‘year and a day rule’
which provides that, for liability for homicide to ensue, the death must occur
within a year and a day from the date when the injury causing death was
inflicte → irrebutable presumption that the death was attributable to some
other cause
▪ Said the trial judge did not sufficiently indicate that the act of stabbing was
required to be the direct cause of death. Also said the trial judge was
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misleading in talking about the chain of causation where the original wound
had healed
▪ Whether there is or may be more than one factor cotnribtuing to the death of
a deceased, the question for the jury is whether the Crown has established
beyond reasonable doubt that the act of the accused had caused the death
▪ Found that failure of medical practitoners to diagnose correctly the victim’s
condition, however inept or unskillful, was not the cause of death → it was
the blockage of the bowel which caused the death and the real question for
the jury was whether that blockage was due to the stabbing
▪ ‘a positive act of commission or an act of omission will serve to break the
chain of causation only if it can be shown that the act or omission accelerated
the death, so that it can be said to have caused the death and thus to have
prevented the felonious act which would have caused death from actually
doing so’
▪ Counsel for the accused tried to follow the ratio in Jordan’s case:
(distinguished) (in common law, not case for causation, it was a case
decided on its own facts)
Facts: Victim admitted to hospital prompty after stab wound
and was stitched up but died about a week later.Evidence given
by two doctors said the death had not been caused by the stab
wound but by the introduction of terramycin after the deceased
man had shown that he was intolerant to it, and by the
intravenous itnrodcution of abnormal quantities of liquid.
Before the abnormal treatment started, the injury had almost
healed
Death following deliberately inflicted serious bodily harm is
NOT murder if that harm would not have resulted in death
without grossly improper medical treatment
▪ Reference to R v Smith
→
Case relied on the ratio here (followed)
[First authority for operating and substantial cause test]
Soldier allegedly stabbed the victim (solider) during a barrack room
fight. Victim received treatment that was afterwards shown to be
‘thoroughly bad’ and might have affected his chances of recovery.
Found that there were a series of mishaps following the act, which
broke the chain of causation
Court found that IF the death was still an OPERATING CAUSE
AND A SUBSTANTIAL CAUSE, so the death was a result of the
wound [the act or conduct]
BUT HERE: if the second cause is so overwhelming as to make the
original wound merely part of the history, is the death considered as
not a result of the wound [the act or conduct] [e.g. in class example:
if someone stepped on foot, causing someone to walk slower,
resulting in someone run over by a car → second thing is too
overwhelming]
▪ RESULT:
The stabbing was still a operating and substantial cause of the deasth
- Cause: stabbing or failure to give sufficient medical treatment
- The question whether the alleged act caused the death is not a question for the Judge at a criminal
trial. It is a question of fact for the jury: Brennan v R → but what kind of test should the jury
apply to determine → ‘substantial and operating cause’ test → this case followed this test that was
from the SMITH case
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- Cheshire – medical negligence case – reluctance to recognise medical intervention as a
novus actus interveniens: “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 defendant unless the negligent treatment was so independent of his acts, and in
itself so potent in causing death, that they regard the contribution made by his acts as
insignificant.[4]
b) Where the alleged intervening conduct is an act of nature: see HALLET p 812-815
Facts: Fight between H and W. At the water’s edge, H put his hand around W’s
throat and shook him until he started to changed colour. W lay with his ankles
in a few inches of water and his head on the beach. Later, when H woke up, he
saw W in the water, face down, about 1.5 metres from the water’s edge. H was
charged with murder. He was convicted for murder, and this was appealed
[dismissed]
▪ Trial judge had quoted ‘Smith and Hogan’s Criminal Law’ → good example
with distinguishing different situations:
1. Where death from a subsequent act or event was a natural consequence of
the act of the accused
2. Second, where the death from the act was not a natural consequence of
the act e.g. knocking a man down in a building, where a earthquake
happened and knocked down the building and killed the man → the hit
was the reason the man was in the building, but the hit was not the cause
of the earthquake
▪ Foresight by the accused, of the possibility or probability of death from his
act is relevant to the question of malice, BUT has nothing to do with the
question of causation → not relevant whether H put W in a position of safety,
or may have foreseen consequences of doing so
▪ The principle regarding causation: The question to be asked is whether an act
consciously performed by the accused is so connected with the event that it or
they must be regarded as having a sufficiently substantial causal effect which
subsisted up to the happening of the event, without being spent or without
being in the eyes of the law sufficiently interrupted by some other act or event
▪ The real question in this case: whether the actions of the sea can be regarded
as breaking the chain of causation, functioning as an ordinary operation of
natural forces (rather than extraordinary, like the earthquake example) → in
the earthquake example, the appeal court noted that if this instance had an
earthquake which created a tidal wave, then this may have broken the chain
of causation
▪ Appeal dismissed
c) Where the alleged intervening conduct is the act of the deceased
i) Refusing medical treatment: see BLAUE 815-817
B attacked the deceased with a knife, inflicting stab wounds, after she rejected
his sexual advances. An operation required a blood transfusion but as she was a
Jehovah’s Witness, this would be against her beliefs. She was told of the
consequences of her actions, that she would die, and she gave her refusal. She
died the next day. B found guilty of manslaughter. They appealed (dismissed)
Issue: What was the actual cause of death?
Held:
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Document Summary
Conduct element: act or omission causing death: omissions causing death: Taber (2002): facts: accused robbed the deceased and left her bound and gagged, from which she died of dehydration. Any person who deliberately puts another in danger comes under a legal duty to remove that danger. " barr j: ways of analysis, one continuing act which led to her death, or, an act, followed by an omission. Bw & sw (no 1) [2009: mother (sw) convicted of murder and father of manslaughter, after breaching the duty of care imposed on them as parents to provide adequate nourishment and medical attention. The child, who was 7, died of chronic malnutrition caused by starvation over a number of months. Did nothing that might save her as the situation went from possibility to probability to certainty that ebony would die without intervention": the precise act or omission causing death: It is extremely important to identify the precise act or omission causing death.
