Swan v The Queen

Case [2020] HCA 11

HIGH COURT OF AUSTRALIA

BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ

WILLIAM RODNEY SWAN  APPELLANT

AND

THE QUEEN  RESPONDENT

Swan v The Queen

[2020] HCA 11

Date of Hearing: 13 February 2020
Date of Judgment: 18 March 2020

S291/2019

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

B J Rigg SC with T Quilter for the appellant (instructed by O'Brien Hudson Solicitors)

L A Babb SC with T L Smith SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Swan v The Queen

Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death.

Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial".

Crimes Act 1900 (NSW), s 18(1)(a).

BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ.  

Introduction

  1. Mr Kormilets was a 78-year-old man living alone in a Department of Housing apartment in Redfern, New South Wales. He was an active man, in apparently good health, with a caring family. In the early hours of 15 April 2013, he was severely assaulted and robbed in his home by the appellant, a 31-year-old man, and the appellant's accomplice. Armed with a machete, the appellant entered through the balcony of Mr Kormilets' apartment, opened the front door for his accomplice, and then savagely attacked Mr Kormilets, intending to cause him grievous bodily harm. Mr Kormilets suffered immediate and severe injuries including to his brain, his face, his kidneys and his chest.

  2. Mr Kormilets spent almost four months in hospital before being transferred to a high-level care facility in August 2013. His mental and physical condition was so poor that he was unable to undertake, or even to comprehend, any daily living activities. On 5 December 2013, he was discovered on the floor next to his bed facing downwards and moaning. Later that day he was transferred back to hospital, where x-rays showed that the neck of his left femur was fractured. His fractured femur was not operated on and he died in hospital from the consequences of the fracture on 10 December 2013.

  3. The appellant and his accomplice were charged upon indictment for murder, as defined in s 18(1)(a) of the Crimes Act 1900 (NSW). They were tried before a judge (N Adams J) and jury in the Supreme Court of New South Wales. The jury returned…

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Swan v The Queen [2020] HCA 11
Case
[2020] HCA 11
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant against the decision of the Court of Criminal Appeal of New South Wales. The appellant had been convicted of murder, with the central dispute revolving around whether the appellant's actions were the legal cause of the victim's death. The Crown's case posited that the severe deterioration in the victim's quality of life, a direct consequence of the appellant's assault, led the victim to refuse life-saving surgery for a subsequent fractured femur, thereby causing his death.

The legal issues before the High Court were whether it was open to the jury to convict the appellant on the basis that the victim's low quality of life, resulting from the assault, caused him to decide against undergoing surgery that would have saved his life, and consequently whether the appellant's conduct constituted a "substantial or significant cause of death" for which he bore legal responsibility. The appellant argued that the Court of Criminal Appeal had addressed the wrong question regarding the jury's ability to infer causation, contending the correct focus should have been on whether surgery could have prevented death but was not undertaken due to the victim's diminished quality of life.

The High Court affirmed the decision of the Court of Criminal Appeal, finding that the jury was entitled to conclude that the appellant's conduct was a substantial or significant cause of death. The Court reasoned that the evidence supported an inference that the victim's severely compromised quality of life, a direct result of the appellant's assault, was the reason for his refusal of surgery. This refusal, in turn, was considered a direct consequence of the injuries sustained from the assault, establishing the necessary causal link for legal responsibility. The Court noted that the jury was directed to consider all facts, including the victim's condition before and after the assault and expert evidence, when determining causation and legal responsibility.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.The evidence at trial and the Crown's three causation pathways Mr Kormilets' general practitioner of over 20 years gave evidence that prior to the assault on 15 April 2013, Mr Kormilets lived a comfortable, healthy life. Although Mr Kormilets had a condition called polycythemia which gave rise to an increased risk of blood clots, this was managed with medication and posed no imminent danger to his health. In his autopsy it was also discovered that Mr Kormilets had severe coronary artery disease, with 75 per cent stenosis or blockage to the artery, and a tumour on his left kidney. But there was no evidence or suggestion that these had noticeably affected his lifestyle. His general practitioner described him as a "very fit man" and said that his medical problems were "pretty well managed". He had cared for his wife very well until her death in 2012. He cooked and cleaned for himself, managed his own financial affairs, and had a normal social life. Mr Kormilets was "quite clear in his mind" and "fairly intelligent" and enjoyed walking in the park and driving to Bondi, Coogee or Maroubra. He had a good relationship with his son, Mr Dmitri Zitserman[1], and with his grandchildren. He spoke little English but conversed in his native Russian language with those around him including Dmitri, his general practitioner, and his rabbi.[1]The materials before this Court spelled Mr Zitserman's first name in different ways. The Court of Criminal Appeal and the respondent spelled his name "Dmitri". On 15 April 2013, after the assault, Mr Kormilets was admitted to the intensive care unit at St Vincent's Hospital. The attending doctor described him as suffering "severe traumatic life-threatening multi-system injuries". The injuries included multiple fractures of his ribs on both sides of the rib cage, lacerations of his spleen and right kidney, and fractures of his face. His severe chest injuries created difficulty for him to breathe so he underwent a tracheotomy of his throat and a "chest drain", which was a large tube that was inserted into his chest cavity to drain it of blood and other fluids to allow his lungs to reinflate. His general practitioner was "shocked" at Mr Kormilets' condition after his discharge from hospital and he observed how Mr Kormilets had almost completely lost the ability to swallow and was being fed food and medication through a tube.

Decision

Reasons for decision

BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ
The trial judge told the jury that causation was a "live issue" in the trial. Her Honour directed the jury that an essential element of the Crown case for murder was to prove beyond reasonable doubt that a voluntary act of the appellant caused the death of Mr Kormilets. The trial judge said that causation, by substantial or significant contribution to the death of Mr Kormilets, did not require that the acts of the appellant were the only cause of death, the most important cause of death or even the only important cause of death. She directed the jury to consider all the facts including the evidence of the injuries, the evidence of Mr Kormilets' condition before and after the assault, and all the evidence from the experts, which she described in detail including the significant body of evidence concerning whether the fracture might have been pathological, "when deciding whether to attribute legal responsibility" to the appellant.The Court of Criminal Appeal decision and the central issue in this Court The appellant relied upon two grounds of appeal in this Court and sought leave to amend to raise a third which had not been the subject of the grant of special leave to appeal to this Court. The first ground of appeal raises the same issue as the sole ground of appeal to the Court of Criminal Appeal. That issue is whether a miscarriage of justice occurred because the Crown case on cause of death, as articulated in the prosecutor's closing address, left open the third path of causation reasoning, a path which the appellant submits was not open to the jury on the evidence. The appellant's second ground of appeal in this Court asserts that the Court of Criminal Appeal failed to consider the appellant's sole ground of appeal. In this Court, the appellant relied upon two paragraphs in the reasons of the Court of Criminal Appeal to submit that the Court of Criminal Appeal had addressed the wrong question, namely whether it was open to the jury to find that the surgery "could not" happen. The appellant submitted that the correct question raised by the ground of appeal was whether, on the Crown's third causation pathway, it was open to the jury to find that surgery could have prevented death but was not undertaken due to the appellant's low quality of life as a consequence of his injuries from the assault on 15 April 2013. In oral submissions in this Court, senior counsel for the appellant accepted that the first ground of appeal was the determinative issue and that success on the appeal would depend on the first ground. The second ground of appeal can be dismissed briefly. In the passages relied upon by the appellant, Bathurst CJ said that the jury was entitled to conclude that "but for the earlier injuries, [Mr Kormilets] could have been treated" and that "a significant reason for the inability to surgically treat the fracture was the consequence of the injuries suffered from the assault"[6]. The comments by Bathurst CJ were responding to the appellant's submissions to the Court of Criminal Appeal that "the focus of the Crown case on causation ... was the decision to not operate" and that the third pathway to causation was not open to the jury because there was "no evidence about why the decision was made not to operate". Prior to the two comments in his reasons, Bathurst CJ had referred to the Crown submission that an inference was available that a decision not to proceed with surgery had been made due to the low quality of life of Mr Kormilets resulting from his injuries from the assault[7]. After the second comment, the Chief Justice said that the conclusion that the hospital was unable to operate was supported by evidence including the "not for resuscitation" decision made while Mr Kormilets was at St Vincent's Hospital and "the ultimate decision not to operate at Prince of Wales Hospital, which referred back to the earlier decision made at St Vincent's Hospital"[8]. In that context, it is clear that the Chief Justice was not describing a surgical inability to operate but was instead referring to an inability to operate due to the refusal of consent to an operation. He held that the jury was entitled to conclude that the refusal of consent was caused by Mr Kormilets' injuries from the assault. He did not fail to address the appellant's ground of appeal.[6]Swan v The Queen [2018] NSWCCA 260 at [93], [99].[7]Swan v The Queen [2018] NSWCCA 260 at [83].[8]Swan v The Queen [2018] NSWCCA 260 at [100].

Ratio Decidendi

Legal Principle Established

Established by: BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ

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