Causation is perhaps best described as one of those elements that is extremely simple and straightforward until the very moment that it is not.
Whilst the line between a consequence and an act is usually straightforward, one of the chief issues that arises and complicates the issue is where there is some sort of intervening (or allegedly intervening) event. The best example is perhaps the example that arose in Royall v R  HCA 27, where the victim jumped out of a bathroom window on the sixth floor to escape the assailant. Did the assailant cause her death?
It is good and well to state that the question is whether the accused made a “substantial contribution” to the death of the victim, or whether the accused was the “operating and substantial cause of the death”, but these matters are often so deeply rooted in the peculiar facts of the matter in question that it is difficult to come to grips with the overriding principles.
What is clear is that is necessary to pay careful attention to be precise causal connexion that the prosecution seeks to draw in the particular matter, and on that basis assess whether the element can be proved beyond a reasonable doubt.
Royall v R  HCA 27
“where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct.”
McAuliffe v R  HCA 37
“It was observed in this Court in Royall v. The Queen that in directing a jury on causation of death in fright, escape or self-preservation cases, it is ordinarily undesirable to focus attention upon foreseeability”
Murray v R  HCA 26
“it is for the jury to determine what act or acts were done by the accused and whether they or any of them caused death”
R v Katarzynski  NSWCCA 72
“ That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim.
 That the identification of any such act was a matter of fact for the jury alone.
 That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial.”
R v Lam & Ors  VSCA 109
“In our view it is clear that the acts of the principal offender or offenders in the first attack remained an operating and substantial cause of the death of the deceased and, in circumstances where the injuries were inflicted by two or more assailants, acting in concert and at substantially the same time, it was sufficient for the jury to consider whether or not the attack of the accused principals made a substantial contribution to death of the deceased”
Cittadini v R R v Cittadini  NSWCCA 302
“In the present case, the Crown had to establish to the criminal standard that the alleged omissions by the appellant caused the tragic loss of life by significantly contributing to the failure of the keel.”
Burns v The Queen  HCA 35
“Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another.”
Swan v The Queen  HCA 11
“The central issue on appeal to the Court of Criminal Appeal was whether it was open to the jury to convict the appellant based upon one of the Crown's pathways to proving that the appellant caused the death of Mr Kormilets. In particular, the question was whether it was open to the jury to reason that the low quality of life caused by the assault was the reason that when Mr Kormilets presented to hospital with a fractured hip a decision was made not to undertake surgery that would reasonably have been expected to save his life, which, in turn, resulted in death. The Court of Criminal Appeal concluded that there was sufficient evidence for it to be open to the jury to reach a conclusion of causation by that route. On appeal to this Court, by grant of special leave, the appellant challenges that conclusion. The conclusion of the Court of Criminal Appeal was correct. The appeal should be dismissed.”
Mason CJ (would grant special leave and dismiss the appeal)
Brennan J (would grant special leave and dismiss the appeal)
"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."
6.Causation of death is concerned solely with the external elements of homicide; it is not a mental element of any crime of culpable homicide: see Archbold: Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), vol.2, par.20-8, p 1927. Nevertheless as causation requires proof that the taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an accused or was reasonably foreseeable, the facts tendered to prove a specific mental element necessary to establish the crime of murder may be relevant in some cases to the existence of facts tending to prove causation. It is difficult to envisage a case where proof that the conduct causing death was engaged in with an intent to inflict grievous bodily harm would not establish that at least the possibility of death was foreseen or was reasonably foreseeable. In a case of reckless indifference to life, the probability of death must be foreseen: Reg. v. Crabbe  HCA 22; (1985) 156 CLR 464.
Deane and Dawson JJ (would grant special leave and dismiss the appeal)
Toohey and Gaudron JJ (would grant special leave and allow the appeal)
McHugh J (would grant special leave and dismiss the appeal)
Brennan CJ, Deane, Dawson, Toohey and Gummow JJ
"that of the deceased being out on that rock area on the sea side of the park having been left there and then having got up at some stage and I suppose turned one direction, turned towards the sea, and walked off rather than walking the other way back to safety. That again is very much a matter of commonsense for you to consider in the circumstances. You would no doubt take into account the extent to which there was any light in the area. You would take into account what effect any physical injury or attack, confusion, and the like had upon him."
In the light of the direction previously given that the jury consider whether any act of the deceased was such as to break the chain of causation, that passage would clearly have directed the jury to the matters which the appellants complain were not brought to their attention.
"As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked."
It was observed in this Court in Royall v. The Queen that in directing a jury on causation of death in fright, escape or self-preservation cases, it is ordinarily undesirable to focus attention upon foreseeability. In that case, a direction of the kind given by the trial judge here was approved. There is, in our view, no substance in the appellants' complaints about the trial judge's directions in relation to causation.
Gaudron J (would dismiss the appeal on the unwilled acts ground but allow it on the onus direction ground)
"the wounding and death [of the service station attendant] were caused by a combination of acts ... includ[ing] the loading and cocking of the rifle, the failure to apply the safety catch, the presentation of the rifle ... with the finger ... on the trigger in circumstances in which an attempt at resistance might well have been expected."
Their Honours added that it was "impossible to isolate the act of pressing the trigger ... and argue that it, alone, caused the wounding and death".
His Honour expressed the view, in relation to the fourth of those possibilities, that the accused's description of the killing as an "accident" was inconsistent with an admission that the gun was voluntarily discharged.
Gummow and Hayne JJ (would dismiss the appeal on the unwilled acts ground but allow it on the onus direction ground)
"establish that the accused intended that the event should occur or saw it as a possible outcome or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome"
left the jury insufficiently instructed about how these propositions of law about accidental events were to be applied to the facts of this case.
"The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think."
But to identify the "act" as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant "act" which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant "act" would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences.
Kirby J (would allow the appeal on the unwilled acts ground but would dismiss the appeal on the onus direction ground)
Callinan J (would allow the appeal on the unwilled acts ground and the onus direction ground)
The offender’s evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased.
5 There are three grounds of appeal against conviction; and a further three grounds founding the application for leave to appeal against sentence.
Conviction Appeal : Ground 1
6 The Ground is:
“The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and excessive self-defence where the identified basis for primary liability was reckless indifference to human life.”
At  and 
It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls ‘causation’. The second of the two findings deals with the topic that the law calls ‘voluntariness’.
In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things;
 That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim.
 That the identification of any such act was a matter of fact for the jury alone.
 That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial.
 That the evidence left open for the consideration of the jury two obvious practical approaches, mainly:
(a) to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or
(b) to identify as the relevant act a sequence of things done by the appellant from the moment at which he pulled a pistol known by him to be loaded out of his pants; to the moment when he fired those three successive shots.
82. I have had the advantage of reading the judgment of Sully J in draft. I agree with the orders proposed, generally for the reasons provided by his Honour. I should, however, comment upon Ground 1.
83. In respect of the elements of murder, and leaving aside self defence and provocation, the facts gave rise to three issues:
84. On the Crown case, there really was no issue of causation, voluntariness or intention. An eyewitness, the bouncer at the hotel, described the way in which the appellant beckoned the deceased to a spot where he waited in ambush to shoot him. He fired three shots at close range one after another. All caused grievous injury. One was fatal. The eyewitness account was, to some extent, corroborated by other witnesses. The appellant's brother was also called by the Crown. He said that the appellant was "irate" immediately after the incident. The appellant said, referring to the victim: "Fuck him. He shouldn't have fucked (with) me" (T144). On any view it was a strong Crown case.
85. Mr Katarzynski gave evidence. He provided an alternative version. He said that as he returned to the hotel he was confronted by the deceased. He drew from his waist band a revolver, which he knew to be loaded. At the same time he told the deceased to "fuck off". He was holding the weapon at about waist height, pointed across his body towards the ground. Suddenly the deceased lunged at him with his arms outstretched. The appellant said that he moved backwards. At the same time "he flinched causing the gun to discharge". He said to the police, and repeated to the jury, that he did not mean to shoot the weapon and certainly did not intend to injure the deceased.
91. Here, Senior Counsel for the accused at the trial neither objected to the terms of the summing up, nor sought elaboration to deal with matters now said to be a problem. Even if, being now removed from the atmosphere of the trial, there were matters that might usefully have been put by way of elaboration or clarification along the lines now submitted, I would apply Rule 4. To my mind, there was no possible miscarriage of justice.
Buchanan JA, Vincent JA and Kellam JA
The learned trial judge erred by failing to direct the jury properly on the issue of supervening cause in respect to count 1, in particular by failing to permit the jury to consider that the stab wound inflicted in the deceased’s heart might have constituted a supervening cause of death.
48 By ground 1 Linh Nguyen contended:
The learned judge erred in his directions on causation; and in particular he erred (i) in ruling that it was not open to view the stab wounds to the deceased’s chest as a supervening act which broke the chain of causation and (ii) in withdrawing, or in failing to give directions on, that defence.
49 Similar arguments were raised by Long Tran, Hong Bui and Hoang Tran, but by reason of our conclusion that their applications for leave to appeal should be upheld on other grounds, it is no longer necessary to consider their cases on these grounds.
McClellan CJ at CL
The relevant arguments
29 The trial judge directed the jury that before the appellant could be convicted of manslaughter by criminal negligence four elements must be proved:
(a) The appellant had a duty of care to the deceased persons.
(b) The appellant was negligent in that, by his act(s) or omission(s), he was in breach of his duty of care (in that he did something that a reasonable person in his position would not do or he omitted to do something that a reasonable person in his position would have done).
(c) Such a breach fell so far short of the standard of care that a reasonable person in his position would have exercised and involved such a risk of death or serious bodily harm as to constitute, “gross” or “wicked” negligence and be treated as criminal conduct.
(d) The appellant’s act(s) or omission(s) caused the death of the deceased persons.
(a) The appellant delivered the yacht knowing that the keel had been cut horizontally and then welded back together, or
(b) The appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control and that he failed to implement such a system and that failure caused (or resulted in) the delivery of the yacht with the defective keel.
(a) The appellant was negligent in that he omitted to do something that a reasonable person in his position would have done.
(b) Such a breach fell so far short of the standard of care that a reasonable person in the appellant’s position would have exercised and involved such a risk of death or serious bodily harm as to constitute “gross” or “wicked” negligence and be treated as criminal conduct; and
(c) But for such omissions the yacht would not have been delivered with a defective keel.
Ground 1 – The verdict of the majority of the jury was unreasonable.
Ground 2 – The Crown Prosecutor’s final address caused a miscarriage of justice.
Ground 3 – The trial judge erred in respect of the directions to the jury on the “reasonable person” test.
Ground 4 – The trial judge erred in failing to direct the jury that they must be unanimous in respect of one or the other alternative ways in which the Crown puts its case.
55 The second basis upon which the Crown put its case was that the appellant was under a duty to implement a system in the construction of the yacht that incorporated adequate and proper supervision and quality control. It was submitted that he failed to implement such a system, which failure caused, or resulted in, the delivery of the yacht with a defective keel. It was contended that the appellant was guilty of manslaughter by criminal negligence even if he was not aware that the keel had been cut.
Conclusion with respect to the second basis
“enough if juries (are) told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.”
French CJ (would allow the appeal and acquit the accused of manslaughter)
1. David Hay ("the deceased") died after ingesting methadone said to have been supplied to him on 9 February 2007 by the appellant, Natalie Burns, and her husband at the Burns' apartment in Belmore, a suburb of Sydney. On 20 July 2009, Mrs Burns was charged on indictment with the manslaughter of the deceased. She was also charged with four counts of supplying a prohibited drug, namely methadone. She pleaded not guilty to the charge of manslaughter and to one count of supplying methadone. She pleaded guilty to the three remaining counts. After trial before a judge and jury, she was found guilty of manslaughter and of supplying methadone. On 23 October 2009, Mrs Burns was sentenced on all counts to a total term of imprisonment of five years and eight months, with a non-parole period of four years and six months expiring on 13 January 2014. Her husband was tried separately on the same charges and convicted of manslaughter but died in custody shortly after he was sentenced.
2. The trial judge directed the jury that if Mrs Burns supplied methadone to the deceased and if that supply was dangerous and if it caused the death of the deceased she could be convicted of manslaughter. That direction was in error. It was not in dispute that the supply of methadone to the deceased was unlawful. However, the Crown case as put to the jury at the end of the trial did not involve a contention that the supply of the methadone was a dangerous act in the sense necessary to support a conviction for manslaughter. The Crown's case was that Mrs Burns and her husband had together injected the deceased with methadone and, in the alternative, that they had assisted the deceased to inject himself with the drug. The Crown alleged that their conduct in doing either of those things was an unlawful and dangerous act which caused the death of the deceased and would support a verdict of guilty of manslaughter.
4. The Crown accepted, on the hearing of the appeal to this Court, that the supply of methadone alone could not substantiate the commission of an unlawful and dangerous act. It was necessary to the "unlawful and dangerous act" limb of the Crown case that the jury be satisfied of the role of Mrs Burns either by herself or with her husband in assisting with the injection of the methadone. Counsel for the Crown argued that it was clear throughout the whole trial that the Crown case went well beyond mere supply. Nevertheless the possibility could not be excluded that Mrs Burns was convicted on the basis of the trial judge's misdirection. The appeal was therefore allowed and orders pronounced on 20 June 2012. Having regard to the state of the evidence in relation to the other bases upon which the Crown sought to support a conviction of manslaughter, it is not appropriate to direct a retrial. A verdict of acquittal was entered. My reasons for joining in those orders follow. Before turning to the evidence at trial and the trial judge's direction to the jury in more detail, it is necessary to say something about the law relating to involuntary manslaughter in New South Wales.
39. The first four grounds of appeal in this Court, like the first two grounds in the Court of Criminal Appeal, were concerned with whether the evidence disclosed circumstances capable of giving rise to a duty of care owed by Mrs Burns to the deceased, whether a causal connection between her conduct and the death of the deceased could be established on the evidence and whether the judge had misdirected the jury on duty of care and causation. A fifth ground was added by leave at the hearing of the appeal in this Court:
"The Court of Criminal Appeal should have held that the trial judge erred in declining the application to remove unlawful and dangerous act manslaughter based on supply of methadone."
The disposition of this appeal turns primarily on the fifth ground.
40. The trial judge told the jury that they could find Mrs Burns guilty of manslaughter if they were satisfied beyond reasonable doubt that she intentionally supplied methadone to the deceased, that a reasonable person in her position would have appreciated that the supply was dangerous in carrying with it a risk of serious injury to the deceased and that the supply of the methadone caused the death of the deceased in that it substantially contributed to his death.
41. That was not the case which had been put by the Crown. The evidence did not exclude the possibility that the deceased was capable of making and made a free and voluntary decision to ingest the methadone and did so himself. Having regard to the state of the evidence and the concession, correctly made by the Crown, a conviction for manslaughter was not open on the basis that Mrs Burns had supplied methadone to the deceased. It is not possible to exclude the hypothesis that the verdict of guilty of manslaughter was based upon that direction. The appeal being allowed on that basis, the question then arose whether there should be a new trial as submitted by the Crown, or entry of a verdict of acquittal as submitted by counsel for Mrs Burns.
47. As explained in the joint reasons and noted above, it was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone and that his decision to do so was voluntary. For present purposes therefore, the existence of a duty of care relevant to criminal negligence must be determined on the hypothesis, which cannot be excluded, that the deceased did so inject himself. That possibility, which cannot be excluded, marks a point of distinction between this case and cases in which the accused has created a danger to other people, for example by starting a fire, and thereafter failing to take any steps to remove the danger or warn those at risk of the danger.
48. If the deceased had ingested the drug himself and had rebuffed a suggestion that an ambulance be called, there could be no basis to support a finding that Mrs Burns owed a duty to him. On that hypothesis, which cannot be excluded, the deceased had created the danger to himself. While Mrs Burns may well have been under a strong moral duty to take positive steps to dissuade him from leaving until medical assistance could be called, there was, in the circumstances, no legal duty, breach of which would support a finding of criminal negligence. For these reasons, and the reasons given in the joint judgment, I agree that there should not be a new trial.
Gummow, Hayne, Crennan, Kiefel and Bell JJ (would allow the appeal and acquit the accused of manslaughter)
53. On 20 June 2012, this Court made orders allowing the appeal, setting aside the order of the Court of Criminal Appeal made on 1 April 2011 and in lieu thereof allowing the appeal to that Court, quashing the appellant's conviction for the manslaughter of David Hay and ordering the entry of a verdict of acquittal. These are our reasons for joining in the making of those orders.
56. For the reasons to be given, the Crown's belated concession in this Court, that the supply of methadone is not capable of supporting the appellant's conviction for manslaughter by unlawful and dangerous act, must be accepted. Since the basis on which the verdict was returned is not known, it follows that the appeal must be allowed. Consideration of the consequential order required attention to the parties' arguments respecting the capacity of the evidence at trial to establish the appellant's liability for manslaughter, either on a case that her unlawful act was the administration of the drug to the deceased or because she was under a legal duty to seek medical assistance for him. In order to understand those arguments, it is necessary to describe the evidence given at the trial in some detail.
74. Turning to causation, his Honour directed that the supply of the methadone must have made a substantial contribution to the death of the deceased and that it would not have done so if the "true cause of David Hay's death was the simple fact that he made a rational, voluntary and informed decision to take the methadone" (emphasis in the original written direction). In determining whether the deceased's act was rational, voluntary and informed, the jury was invited to:
"[C]onsider – amongst other matters you think relevant – the evidence as to David Hay's condition when he arrived at the Burns' flat, evidence from the post-mortem as to the condition of his brain, what he may or may not have known about methadone and its effects, and what he may or may not have known about the injection of drugs. You may think that David Hay was a rational adult man, who knew what he was doing so far as drugs were concerned, understood what methadone was and did, and voluntarily took it. ... On the other hand, you might think that he died precisely because he did not know about methadone and its effects, that he already suffered some degree of brain damage from an earlier car accident, that by the time he took methadone he was already affected by olanzapine he had ingested, and so cannot be regarded as a person acting as a rational adult making an informed choice about taking methadone" (emphasis in the original written direction).
84. Recklessness does not inform unlawful and dangerous act manslaughter in Australia. The Court of Criminal Appeal did not embrace the reasoning of the High Court of Justiciary in this respect. However, it agreed with the conclusion that the voluntary act of an informed and responsible adult taking a prohibited drug might not prevent the anterior act of supply of the drug from being in law the cause of the drug taker's death. This is because:
"Where natural or physical events are being considered a voluntary human act may be the cause of that act. But when that human act is one which follows from the act of another human the position may be otherwise. The more predictable the response the more likely it is that the earlier act will be accepted to have caused, in the relevant sense, the later act."
85. This is in line with Professor Feinberg's theory of causation, which suggests that "the more expectable human behavior is, whether voluntary or not, the less likely it is to 'negative causal connection'". It is a theory commended by one commentator as better reflecting the moral dimension of a death occasioned by the supply of an unlawful drug. The alternative view is that expressions of moral judgment should not intrude into the causal inquiry.
86. The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach.
87. The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker's voluntary and informed decision.
86. The Crown's concession that the unlawful supply of methadone was not an act capable of founding liability for manslaughter should be accepted. The supply of the methadone was not an act that carried an appreciable risk of serious injury. That risk arose when the drug was consumed. The cause of the death of the deceased in law was the consumption of the methadone and not the anterior act of supply of the drug.
Heydon J (would allow the appeal but order a new trial)
116. The concession rests on a fine distinction. If V says to A: "Give me a dose of methadone and injecting equipment; I want to inject myself with it right now", A does so, V injects himself unassisted, and V then dies, on the respondent's concession A is not guilty of manslaughter. But if V says to A: "Give me a dose of methadone and help me inject myself with it", V does so and then dies, A may be guilty of manslaughter. Is that distinction sound? That is a difficult legal question. Resolving it would involve investigation of, among other things, the meaning in this context of expressions like "fully informed", "responsible", "volitional", "free", "deliberate" and "mistake".
117. The concession having been made, neither the appellant nor the respondent was concerned to dispute it. In the absence of a contradictor, it is not satisfactory for courts to endeavour to solve difficult legal problems which need not be resolved in order to protect the accused's interests in the particular case in which they arise.
128. An omission to act where the act would have saved the life of another can be manslaughter. But omissions of this kind fall within confined categories. Those categories require particular kinds of relationship between the deceased and the accused. The relationship between the deceased and the appellant was insufficiently close to the accepted categories to justify its recognition as one of them. To extend those categories would be to change the criminal law retrospectively.
132. There should not be a new trial in relation to the first route towards a manslaughter conviction. The respondent does not seek this. In any event, there is no reason to depart from the respondent's concession. Nor should there be a new trial in relation to the third route because to treat the appellant's failure to summon medical aid for the deceased as a criminal omission would involve a retrospective change in the criminal law. But there is no reason why there should not be a new trial in relation to the second route towards a manslaughter conviction.
133. Is an order for a new trial barred because the prosecution would be running a case of unlawful and dangerous act manslaughter at the new trial which was based on an unlawful and dangerous act that was different from the act on which it relied at the first trial? At the original trial, the prosecution case did at times exhibit confusion between the unlawful and dangerous act of supplying methadone and the unlawful and dangerous act of administering it. But at least by the time of the no case submission, the prosecution was alleging that the appellant had done the latter type of unlawful act. And in the prosecution's final address, it pressed the latter type of unlawful act. A case based on the latter type of unlawful act was open on the evidence called by the prosecution. A new trial run based on the second route to a manslaughter conviction would not be one raising a new case, but a narrower version of the old case.
134. For those reasons I disagree with the orders pronounced on 20 June 2012. There should have been an order for a new trial, limited as described.
Bell, Keane, Nettle, Gordon and Edelman JJ
4. The central issue on appeal to the Court of Criminal Appeal was whether it was open to the jury to convict the appellant based upon one of the Crown's pathways to proving that the appellant caused the death of Mr Kormilets. In particular, the question was whether it was open to the jury to reason that the low quality of life caused by the assault was the reason that when Mr Kormilets presented to hospital with a fractured hip a decision was made not to undertake surgery that would reasonably have been expected to save his life, which, in turn, resulted in death. The Court of Criminal Appeal concluded that there was sufficient evidence for it to be open to the jury to reach a conclusion of causation by that route. On appeal to this Court, by grant of special leave, the appellant challenges that conclusion. The conclusion of the Court of Criminal Appeal was correct. The appeal should be dismissed.
15. Mr Kormilets died on 10 December 2013. The intern at the Prince of Wales Hospital who completed the death certificate reported on it that the cause of death was aspiration sepsis (to which the clinical notes on 6 December 2013 had also referred) and a fractured neck of the femur. She described other conditions contributing to the death as traumatic brain injury, frailty, atrial fibrillation and recurrent aspiration pneumonia. Professor Cordner, a professor of forensic pathology, said that each of these "debilities", as defence counsel described them, contributed to death to an unknown extent.
16. The evidence from the death certificate about cause of death was contradicted by evidence from Dr Bailey, the specialist forensic pathologist who conducted the post mortem. Dr Bailey said that there was no evidence of aspiration pneumonia or aspiration sepsis in the sections of the lungs that she tested. She explained that the death was caused by respiratory failure. The respiratory failure was the result of fat emboli being released into the blood stream from the high fat content of bone marrow after the fracture of the left femur. Those fat emboli moved to the lungs and compounded Mr Kormilets' pre-existing respiratory failure due to "blunt force injury of the chest". She described as "relatively certain" findings from a microscopic examination of lung tissue of "widespread fat emboli in the lungs".
The first two pathways were not controversial in this Court. The focus was upon the third.
34 The only issue remaining before this Court is whether it was open to the jury to convict the appellant based upon the Crown's third pathway to causation.
Was the Crown's third pathway to causation open to the jury?
(1) Surgery would reasonably have been expected to save Mr Kormilets' life
(2) Mr Kormilets or Dmitri made a decision not to undertake such available surgery
(3) The decision was motivated by Mr Kormilets' low quality of life due to the assault