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Court of Criminal Appeal 17 August 2000

Regina v Andrew

[2000] NSWCCA 310

Homicide
CRIMINAL LAW CAUSATION OF DEATH

Citation: Regina v Andrew [2000] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 17 August 2000
Judge(s): Spigelman CJ, James J, Sperling J

Background

The appellant was charged with murdering a man at Artarmon in May 1990. The Crown's case was that the appellant and a companion attended the deceased's flat armed with a baseball bat, adhesive tape and a plastic bag, intending to kill him. The appellant struck the deceased over the head with the bat, and both men bound the deceased with tape. A plastic bag was then placed over the deceased's head and taped tightly around his neck, causing death by suffocation.

The Crown could not prove which of the two men placed the bag over the deceased's head. The forensic pathologist, Dr Duflou, gave evidence that the head blow was not itself fatal but that it contributed to the death by making it easier to place the bag over the deceased's head.

The appellant pleaded not guilty to murder. After trial before Sully J in the Supreme Court, the jury returned a verdict of guilty of manslaughter. The appellant appealed to the Court of Criminal Appeal on four grounds, principally targeting the trial judge's directions on causation.

  • Whether the trial judge erred in his directions on causation and on identifying the act or acts said to have caused the deceased's death
  • Whether the trial judge erred in his directions on unlawful and dangerous act manslaughter
  • Whether the trial judge erred in his directions on self-defence as it related to manslaughter
  • Whether the trial judge failed to adequately or fairly put the defence case to the jury

Decision

The Court of Criminal Appeal allowed the appeal on grounds 1 and 2 (causation and unlawful and dangerous act manslaughter) and found it unnecessary to determine the remaining grounds.

The central problem was the trial judge's direction on causation. The jury was instructed to find "the" cause of death from four possible causes identified in the summing-up, without being given any legal test or criteria to guide that selection. The correct legal test, established in the authorities, requires the jury to determine whether a particular act was a "substantial and significant" cause of death, not simply the act without which death would not have occurred.

Because the jury received no criteria, they may have selected the earliest act in the sequence as "the" cause, reasoning that without that initial act the deceased would not have died. On that approach, the jury could have fastened on acts clearly attributable to the appellant such as the blow to the head or the binding of the deceased without those acts necessarily satisfying the correct "substantial and significant" test for causation. Alternatively, the jury may have applied some other undisclosed reasoning. The Court found there was a serious possibility that the appellant was convicted on an incorrect test, and that he would not have been convicted had the correct test been applied.

The Court acknowledged that no objection was taken to these directions at trial. However, it found the errors were sufficiently fundamental to warrant granting leave to argue the grounds on appeal.

Orders Made

  • Appeal allowed
  • New trial ordered

Key Takeaways

  • A conviction for manslaughter by an unlawful and dangerous act requires the jury to be directed that the relevant act must be a "substantial and significant" cause of death, not merely a cause in the "but for" sense.
  • Directing a jury to identify "the" cause of death from a list of possible acts, without providing the legal criteria for making that selection, constitutes a fundamental misdirection on causation.
  • The Court of Criminal Appeal confirmed that the absence of a trial objection to a misdirection does not necessarily bar an appeal ground where the error is sufficiently fundamental.
  • Where a jury may have selected a cause of death by applying an incorrect or unspecified test, a serious possibility of a wrongful conviction can arise even if the facts strongly implicate the accused in the overall attack.
  • Fundamental errors in causation directions will be assessed on their potential effect on the verdict, with a new trial ordered where it cannot be determined that the jury applied the correct legal standard.

Legislation and Cases Referenced

Cases:
- Royall v R (1991) 172 CLR 378
- R v Moffatt [2000] NSWCCA 174

Legislation: No specific legislation was cited in the judgment.