Citation: R v Wright; R v Lowe [2009] NSWDC 251
Court: District Court of New South Wales
Date: 23 September 2009
Judge(s): Murrell SC DCJ
Background
Two accused, Jonathan Lowe and Ashley Wright, were charged with the manslaughter of the deceased, who was Lowe's father. The Crown alleged they had manufactured TATP (triacetone triperoxide), a highly volatile primary explosive substance, and assembled it into an improvised explosive device (IED) kept in Lowe's flat, which was attached to his parents' home.
The deceased, a research scientist with a hobby interest in antique firearms, discovered the IED the day before his death. According to a police interview with Lowe, the deceased recognised the TATP as extremely volatile, offered to "get rid of it", and told Lowe he had "taken care of it". The following day, while mowing the lawn near a skip bin, an explosion occurred. The deceased sustained a partial amputation of his right thumb and finger, together with deep shrapnel wounds to the chest, from which he later died.
The two accused applied for a permanent stay of proceedings, arguing that the Crown could not establish causation given that the deceased had independently assumed possession of and responsibility for the device with full knowledge of its dangerous nature.
Legal Issues
- Whether the proceedings should be permanently stayed on the basis that the Crown could not prove causation as a required element of manslaughter.
- Whether the deceased's voluntary assumption of possession of the IED, with knowledge of its dangers, broke the chain of causation between the accused's acts and his death.
- What legal principles govern causation in homicide cases where the direct cause of death involves the conduct of the victim rather than the accused.
Decision
The court first addressed the threshold question of whether a stay was the appropriate remedy for an allegedly deficient Crown case. Murrell SC DCJ held that a stay is not the proper response to a fundamentally weak prosecution. The appropriate mechanism is a directed verdict at the close of the Crown case, once any deficiency has fully emerged. An apparently deficient Crown case does not generate the kind of "necessary unfairness" that justifies a stay.
Turning to causation, the court reviewed the governing principles from Royall v The Queen (1990) 172 CLR 378 and related authorities. An act causes a death if it is a substantial or significant cause, though it need not be the sole, direct, or immediate cause. The causal contribution must be sufficiently cogent to justify attributing legal and moral responsibility to the accused. Where an intervening act of the victim is involved, the reasonableness or proportionality of that conduct is relevant but not necessarily determinative.
The court acknowledged that the law is unsettled on whether and how reasonable foreseeability may be incorporated into causation directions to a jury in homicide cases, particularly where a string of events follows the accused's original act. Where such a direction is given, the concept should be interpreted narrowly, perhaps approaching "a natural consequence", rather than in the broader sense familiar from negligence law.
Applying these principles, the court held that the jury could still find causation established even if it accepted that the deceased had knowingly assumed possession of the IED. The temporal and physical proximity of the accused's acts to the death, the nature of those acts, and the circumstances surrounding the explosion remained matters for the jury to assess. The court was not satisfied the Crown could not prove causation, and refused the stay.
Orders Made
- The application for a stay of proceedings was refused.
Key Takeaways
- Causation in a manslaughter prosecution is fundamentally a question of fact for the jury, resolved by applying common sense within a criminal law context rather than by importing principles from other areas of law.
- A permanent stay of proceedings is not the appropriate remedy where the Crown case is said to be deficient on an element such as causation; the correct mechanism is a directed verdict at the close of the Crown case.
- Where a victim's own conduct forms part of the causal chain leading to death, the reasonableness or proportionality of that conduct is relevant to causation but does not automatically sever the chain.
- The District Court confirmed that the law remains unsettled on whether, and in what terms, reasonable foreseeability may be incorporated into a causation direction to a jury in homicide cases involving a sequence of events.
- A causal contribution by the accused need not be the sole or immediate cause of death; it is sufficient that it is a substantial or significant contributing cause, with the connection cogent enough to support a finding of moral culpability.
Legislation and Cases Referenced
Cases:
- Arulthilakan v R [2003] HCA 74
- Campbell v The Queen [1981] WAR 286
- Jago v District Court of NSW (1989) 168 CLR 23
- McAuliffe v R [1995] HCA 621
- R v Lam [2005] VSC 296
- R v Roberts (1971) 56 Cr App R 95
- R v Styman; R v Taber [2004] NSWCCA 245
- R v WRC [2003] NSWCCA 394
- Royall v The Queen (1990) 172 CLR 378
Legislation: No specific legislation was cited in the judgment.