Citation: [2018] NSWDC 16
Court: District Court of NSW
Date: 8 February 2018
Judge: Haesler SC DCJ
Background
The accused stood trial at Wollongong District Court charged with assault causing death while intoxicated under s 25A(2) of the Crimes Act 1900 (NSW). The charge arose from events on 24 May 2015, when the accused and his father were drinking heavily at the family home in Dapto. Following an argument, the accused struck his father to the jaw. The father fell to the carpet and briefly lost consciousness.
The father regained consciousness but later collapsed and was taken to hospital. He underwent surgery but never recovered, and life support was withdrawn on 26 May 2015. His cause of death was a subdural haematoma, caused by traumatic arterial bleeding consistent with a fall to the ground.
The matter had previously proceeded to a hung jury in 2016. In the 2018 retrial, the Crown case closed without any defence evidence being called. This judgment records the trial judge's pre-summing-up remarks to counsel on three matters arising before the jury charge was delivered.
Legal Issues
- Whether the blow struck by the accused and the consequent fall caused the father's death
- Whether consent was available as a lawful excuse, and whether consent can operate as a defence to an assault that occasions actual bodily harm
- Whether self-defence was available as a lawful excuse
- Whether the causation test under s 25A(3) of the Crimes Act 1900 is purely statutory, displacing the common law "substantial or significant contribution" formulation
Decision
The trial judge addressed three discrete issues ahead of delivering the summing-up. On context evidence, the judge indicated he would direct the jury that evidence of an earlier incident at a neighbouring house was relevant to the accused's state of mind, while cautioning against tendency reasoning. The judge noted the evidence cut both ways: it was consistent with the Crown's case that the accused was angry and intoxicated, but also consistent with the defence position that he had not struck anyone during that earlier incident.
On consent, the judge expressed significant doubt about the defence's strength on this ground. He noted that a person cannot legally consent to an assault that occasions actual bodily harm, and that a fractured jaw and a loosened tooth that subsequently fell out would appear to satisfy that threshold. The judge confirmed he would direct the jury accordingly, while leaving the factual question to them.
The most significant part of the ruling concerned causation. In the previous trial, the judge had directed the jury using the common law formulation that the assault must have made a "substantial or significant contribution" to the death. He stated he would not repeat that direction. His Honour reasoned that s 25A(3) contains its own specific causation provision, introduced by the words "For the purposes of this section," and that the legislature thereby displaced the common law test. The critical statutory word is "directly": the assault causes death where the person is killed as a result of injuries received directly from hitting the ground as a consequence of the assault. Using the common law language of substantial contribution would, in the judge's view, constitute an error.
For practical purposes in this trial, the distinction made no difference to the shape of the case. The Crown had always contended that the fatal head injury arose directly from the father striking the ground after being hit. The defence, by contrast, contended there was a possible alternative cause, namely an undocumented fall that might have preceded the incident.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 25A(3) of the Crimes Act 1900 (NSW), the legislature has enacted its own causation test for assault causing death, specifying that the assault causes death where the victim is killed as a result of injuries received "directly" from hitting the ground as a consequence of the assault.
- The District Court held that this statutory formulation displaces the common law test, meaning a jury direction referring to "substantial or significant contribution to the death" would be an error in a s 25A prosecution.
- The Court of Criminal Appeal had previously confirmed in R v Mofatt [2000] NSWCCA 174 that even under the common law, directing a jury to search for the "principal cause" of death is a misapplication of principle; the statutory provision goes further by confining the inquiry to the word "directly."
- Consent cannot operate as a lawful excuse to an assault that occasions actual bodily harm; a fractured jaw and a lost tooth were identified as plainly satisfying that threshold.
- Section 25A appears, on this analysis, to cover a relatively narrow and specific category of unlawful death cases, limited to intentional hitting and the direct consequences of any resulting fall.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 25A(2) and s 25A(3)
Cases
- Andrew v R [2000] NSWCCA 310
- R v Mofatt [2000] NSWCCA 174
Secondary Source
- Quilter, J (2014), "One Punch Laws, Mandatory Minimums and 'Alcohol-Fuelled' Violence as an Aggravating Factor: Implications for NSW Criminal Law," International Journal for Crime, Justice and Social Democracy 3(1): 81-106