Swan v The Queen

[2020] HCATrans 9

[2020] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S291 of 2019

B e t w e e n -

WILLIAM RODNEY SWAN

Appellant

and

THE QUEEN

Respondent

BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2020, AT 9.45 AM

Copyright in the High Court of Australia

MS B.J. RIGG, SC:   May it please the Court, I appear with my learned friend, MR T. QUILTER, for the appellant.  (instructed by O’Brien Hudson Solicitors)

MR L.A. BABB, SC:   May it please the Court, I appear with my learned friends, MS T.L. SMITH, SC and MS B.K. BAKER, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, Ms Rigg.  We have handed up, together with your outline, your proposed amended notice of appeal.  It might be convenient to deal with that issue first, in circumstances in which the grant of leave is opposed.

MS RIGG:   Yes.  Your Honours, the proposed ground 3 is submitted to be appropriate for a grant of special leave on this occasion.  The test of exceptional circumstances is one that is sometimes raised in the authorities which are set out in the appellant’s submissions. 

In essence, the basis of the application at this stage is that the Crown theory that is being advanced is in itself a very novel and exceptional one.  Furthermore, consideration of the directions provided by the trial judge to the jury in her Honour’s summing‑up is intertwined in an indispensible way with the merits of ground 1 of the appeal.

BELL J:   Can I just test that with you?

MS RIGG:   Yes.

BELL J:   Ground 1, and on a view ground 2, direct attention to whether there was evidence to support what we will call the third theory of causation.  Is that right?

MS RIGG:   Yes, that is right. 

BELL J:   The question of the adequacy of the directions is discrete, and in that sense can be – it is in a silo quite distinct from the issue of the sufficiency of any evidence to support the inference of causation on the third basis.

MS RIGG:   Yes. 

BELL J:   We are here faced – this is not a Fingleton‑type case where there is a point not taken below that is a killer point.

MS RIGG:   Yes, that is right.

BELL J:   So that the question of the directions that ought be given in a case raising what you describe as a novel issue of causation – we have not had the benefit of the intermediate court’s consideration of that matter and, perhaps more pointedly, at this trial at which both your client and the co‑accused were represented by senior counsel no application was made for redirections. 

When one looks at it one can see at least a forensic reason for the determination to make no application for further directions on causation.  As things stood, the jury had their attention particularly directed to the capacity of the prosecution to exclude pathological fracture as a reasonable possibility and, on one view, the defence might have thought it unattractive to have the trial judge detail the third pathway more closely than was done in the summing‑up.  What is the response to that, Ms Rigg?

MS RIGG:That certainly is an available inference, and had the point been taken in the intermediate appellate court, that may have been a reason for the Court of Criminal Appeal refusing leave under rule 4 of the Criminal Appeal Rules.  However, on the other hand the case advanced by the Crown was put so forcefully to the jury and it does involve such exceptional interpretation of the evidence and of the law, that if the Court comes to the view that by some – what must be a slim margin – ground 1 is not upheld, that is, there was some evidence to support the Crown theory, the jury was essentially just left with no assistance whatsoever as to how these important issues were to be dealt with.

And really, if a Crown case theory of this nature is able to be left, the three issues that are set out in the appellant’s submissions that the Crown at the bare minimum needed to prove, were really in the nature of essential intermediate facts and so for that reason it is submitted that apart from miscarriage of justice in the individual case the grant of special leave would provide significant guidance in terms of that which needs to be provided by way of direction to a jury as to the issues in a case.  That is, not just about elements and evidence but how the issues in a case need to be left in a complex and difficult case such as this. 

KEANE J:   If you were seeking special leave on that basis, an answer to your application for special leave would be that the Court would not regard the case as a good vehicle because we would be left without any assistance from the Court of Appeal – the Court of Criminal Appeal. 

MS RIGG:   Yes, I accept, your Honour, that that is a factor that is relevant to take into account against the grant of special leave.

BELL J:   Yes, thank you.  There will not be a grant of leave to amend to include the proposed third ground.

MS RIGG:   May it please the Court.  Yes, thank you.  Your Honours, in relation to the grounds on which special leave has been granted, the case is about a conviction for murder where causation was based on a decision made by a third party – that is, not the deceased himself – to repair his broken hip when he was a patient in hospital, some eight months following a violent robbery that occurred in his home.

The violence inflicted during the robbery caused the deceased serious injuries which amounted to grievous bodily harm but death resulted from complications from a fractured hip that was not sustained during the course of the assault.  The fracture and the decision made by the third party, or third parties, namely, medical practitioners and in consultation with the son of the deceased, brought about a failure to provide treatment for that fractured hip and that ultimately was the cause of the deceased’s death, the complications flowing from that fractured hip.

EDELMAN J:   Was there any argument at the trial or any submission that was made or comment made by the prosecution to the jury that the injury to the hip was caused in the broad sense by the assault in the sense that, had the assault not occurred, he would not have been in hospital and would not have suffered the fall and so on?

MS RIGG:   Yes, there was a passing reference in the closing address to the deceased being a falls risk, by reference to the notes, and that ties in, though, with one of the theories of causation which is not impugned for the purposes of this appeal.  So there certainly was a passing reference to that proposition by the Crown Prosecutor in the closing address, and it really is that proposition - it is only that proposition that makes sense of the conflicting evidence about whether the fracture was pathological or traumatic because it is really only on that issue about whether causation could attach, because the deceased was a falls risk, that there needed to be any consideration of whether the hip was fractured because of weakness from the metastasis or from trauma on the other hand.

GORDON J:   But that is not part of this appeal.

MS RIGG:   No, it is not, no, that is right.

NETTLE J:   We are only concerned with the third way in which causation was put.

MS RIGG:   That is right, yes.

NETTLE J:   And, therefore, ex hypothesi, the break in the femur was not caused by the assault.

MS RIGG:   Yes, that is right.

NETTLE J:   Was it demonstrated, do you contend, beyond reasonable doubt, or was it capable of being demonstrated beyond reasonable doubt, that the operation, if it had been undertaken, would have cured the problem?

MS RIGG:   No.  That is part of the appellant’s complaint - I withdraw that.  There is an absence of evidence as to what the fate of this particular man would have been had he had surgery.  So there is evidence that surgery was essential, in the sense that without it, it was expected that he would die as a result of fat emboli from the fracture.  However, there is, in the appellant’s submission, no sufficient evidence whatsoever that this particular man would have in fact survived surgery.

EDELMAN J:   Well, the only evidence really is exhibit AG.  That is the extent of it, is it not?

MS RIGG:   That is the extent of the evidence regarding what the basis of the decision was.  There was other evidence in the trial, expert evidence that was called by doctors who came to give evidence.

GORDON J:   There seem to be, on my review, four areas of evidence:  there was Dr Bailey, there was Professor Fox, there was Professor Cordner and there were the notes from the hospital, which are exhibit AG, to which Justice Edelman just referred.

MS RIGG:   Yes, that is right.

GORDON J:   You say in I think it is paragraph 68 in your submissions that there was no evidence as to the likelihood of successful surgery for this particular man.

MS RIGG:   Yes.

GORDON J:   Is there anything else other than those four sources to which I have referred that would address the issue?

MS RIGG:   No, your Honour, and the doctors who gave the oral evidence were referring to an otherwise healthy 78‑year‑old man and it is in that sense that it is important to bear in mind the evidence that was given, particularly by Dr Bailey and by Professor Cordner, that for a great number of reasons Mr Kormilets was not an otherwise healthy man.

He was a very unwell man in December of 2013 for a whole range of physical health reasons that were not shown or suggested to be connected with the assault, those including severe atherosclerosis, polycythemia, cancer, tachycardia, atrial fibrillation, there was a suspected stroke in the days preceding his admission to hospital.

So it is in that sense that the evidence was all the one way, that he was a very unwell man in December 2013 and the only evidence about prospects for successfully surviving and thriving following surgery were related to an otherwise healthy 78‑year‑old.

EDELMAN J:   Dr Bailey says her evidence was speculative.  She conceded that, in any event.

MS RIGG:   Yes.

GORDON J:   Professor Cordner’s evidence, which I think is set out in the respondent’s further materials at 152 to 153, is that the highest it goes, questions about a 78‑year‑old man with an undiagnosed carcinoma, et cetera?

MS RIGG:   Yes, your Honour, that is right.  In the appellant’s submission, that would be the highest that the evidence went and at that point, contrary to the submission that is made by the respondent in relation to that material, Professor Cordner was, even in dealing with an abstract or general sense, saying that he would not at all suggest that he would even recommend surgery for someone with a 75 per cent focally severe atherosclerosis. 

GORDON J:   Is that what he said?  I think he says he would not refuse surgery.

MS RIGG:   Yes.  He initially said that he had ultimately agreed with the Crown’s suggestion that he was not contending he would refuse surgery.  That was not the point that he was making, but he said that it was six of one and half a dozen of another whether someone with those health complaints would even be ‑ attempted, as a patient, be given that type of surgery.

EDELMAN J:   It is set out at paragraph 52 on page 162 as a summary.

MS RIGG:   Yes.  The Crown Prosecutor’s question there appears at line 36.

BELL J:   I am sorry, what page is this?

MS RIGG:   I am sorry, this is page 152 of the respondent’s further material.  The Crown Prosecutor asks:

If a 78 year old man with an undiagnosed carcinoma of the kidney, polycythemia, a bit of coronary atherosclerosis but no heart ischemia, atrial fibrillation, fell over, got a broken neck of femur, he would be immediately rushed to the surgery for pinning or hip replacement, would he not?

It is that point that Professor Cordner notes that it was not just a bit of atherosclerosis, it was quite severe.  The Crown Prosecutor took the matter further, and it is then that the answer:

Well, a bit six of one and half a dozen of the other as far as I’m concerned -

is nominated at line 7 on page 153 of the respondent’s further materials.

GORDON J:   But it is the next question which is important too, is it not?

You are not saying a 78 year old man . . . would be refused surgery?

. . . 

A.   No, I’m not saying that.

MS RIGG:   Yes, that is correct.  So he is not saying that a 78‑year‑old man would be refused surgery.

GORDON J:   Your point is it does not say that it would have been a successful operation.

MS RIGG:   No, that is right.  Your Honours, the death followed four days from the decision to not operate on the hip and that became the relevant part of the Crown’s case at trial that in circumstances where the assault had occurred eight months earlier, the appellant had nonetheless legally caused the patient’s death, despite the hip not being fractured in the robbery.

Those who were involved in making the decision were either not called to give evidence, or in the case of the son of the deceased, was called and asked nothing at all about his thought processes on 6 December 2013, nor even at that earlier point in July of the same year when his father had been in St Vincent’s Hospital and the first “not for resuscitation” note had been made.

NETTLE J:   What is the point of that?  Is the contention that it is not demonstrated by the Crown that this decision was in the scope of risk created by the assault, or something else?

MS RIGG:   The submission is that the Crown has not proved that the decision on the part of the son of the deceased was based on the four quality of life issues that the Crown maintained it was at trial, and continues to maintain, that is, four quality of life issues which were no doubt in fact caused by the assault were the incontinence, the reduced mobility, the need for nourishment by a percutaneous epigastric tube, and the declined cognitive ability.

NETTLE J:   How much more do you need?

MS RIGG:   Those were caused by the assault.  But the absence in the evidence, in the appellant’s submission, is that those were not, on the evidence, firstly said never to be - going to improve, which is what the Crown submission was.  The Crown submitted that the decision to not have surgery was because those four problems were never going to improve.  That, firstly, is contrary to the evidence.

But secondly, the only evidence that there was as to what the thought processes were of the deceased’s son comes from that exhibit AG.  It lists a number of matters that were discussed between the son and the doctors, none of which include that matter.  They include the cancer; the prospect of ongoing fractures such as this one was understood to possibly be as a result of metastases of the cancer.

They referred to the prospect this was aspiration sepsis.  They referred to the possibility of a stroke.  They referred to the previous decision to not intubate if there was another incident of aspiration sepsis, that is, so far as the notes give rise to or prove material facts as to what was discussed, what was discussed was not the fact that the deceased was incontinent and that was never going to improve.

So the Crown is suggesting that an inference should be drawn which is different from the matters that are actually set out in exhibit AG as to what was discussed between the doctor and the son.

EDELMAN J:   But the only one of those matters that is independent of consequences of the assault was the cancer, was it not?

MS RIGG:   No, the others – so a mistaken diagnosis of aspiration sepsis ‑ ‑ ‑

EDELMAN J:   Yes.

MS RIGG:   ‑ ‑ ‑ is submitted not to be sufficiently causally related to the assault, even though it might be said that but for the earlier incidents of aspiration sepsis following the assault, it might not have been made.  The possibility of a stroke in the days preceding hospitalisation was not suggested by the evidence to be connected to the assault.  The atrial fibrillation and the tachycardia were not suggested by the evidence to be connected with the assault. 

GORDON J:   The difficulty about – at least on one reading of exhibit AG, which is set out in the core appeal book at page 153 at paragraph 29 – is that it proceeds from a factual assumption, it seems, especially at line 40 where the son is recorded as having told them that the patient has:

deteriorated significantly since Aug –

Now, August is when the terrible events occurred.

MS RIGG:The events occurred in April, but August is when he was transferred to the nursing home. 

GORDON J:   That is because he had been in hospital. 

MS RIGG:Yes.

GORDON J:   Yes, so we have April hospital, transferred to high‑care facility. 

MS RIGG:Yes. 

GORDON J:   So this assumption that regardless of any of these things that have subsequently happened there has been this deterioration, we are now in December. 

MS RIGG:Yes, that is right. 

GORDON J:   So to suggest that there is no link back to the original assault seems to be a large step, does it not?

MS RIGG:The deterioration, your Honour, since August would seem to be, by virtue of that reference there in exhibit AG at line 40 on page 153, to be to the physical health of the deceased and that ties in also with the evidence that Mr Zitserman orally, that some months prior to his father’s death he had been told by hospital staff that his father might die.  So there seems to have been a significant physical deterioration in the health of the deceased which was just left completely unexplained by the evidence, but related to heart ‑ ‑ ‑ 

GORDON J:   Well, he had this terrible assault?

MS RIGG:The heart problems, the possible stroke and matters of that kind, the prospect of dying, and deteriorating significantly were not, on the evidence, linked with the assault.  But more importantly the four issues that the Crown was relying upon were the quality of life issues – they were not physical health problems.  It was the incontinence, the lack of mobility, the method of nourishment and the cognitive decline.  It was those four issues that were the subject of the Crown Prosecutor’s closing address as being the reason for declining surgery. 

So this other issue of deteriorating physical health, which is not suggested to be causally related to the assault, is submitted to cause further problems with the Crown being able to advance what is being called the third theory.  The only evidence about the four quality of life issues was either neutral or was positive in terms of improvement.  So the cognitive capacity was thought to be improving.  There was soon to be a review of the “nil by mouth” status, and there were exercises in place - as at the last care plan on 5 December 2013 - with a view to improving mobility. 

So, in the appellant’s contention, it was simply not correct for the Crown to contend that those things were never going to improve, and for that reason the son of the deceased in consultation with the doctors, made a decision that surgery was just not worthwhile. 

BELL J:   What was the evidence as to the deceased’s cognitive ability, as at 5 December 2013, and his capacity to communicate, assuming he had a translator, to those treating him?

MS RIGG:   There was evidence that, on occasions during his stay at the nursing home, with the assistance of a translator, he was able to communicate his wishes in relation to his medical care.  So, in particular, in the appellant’s submissions, we have referred to consultation with a speech pathologist where, with the assistance of his rabbi translating, the speech pathologist raised with him the prospect of having a trial, of oral intake, as distinct from being fed by the PEG tube.  And with that assistance, he was able to express his wish to not have that trial, and explained why that was so, namely because the same had occurred with a speech pathologist while he was in hospital, but it had resulted in him swallowing items and having some difficulties in that regard.

Moving forward on in time to December, there was no particular evidence in terms of witnesses who came to give evidence at the trial regarding his particular communicative skills at that stage.  The medical documents ‑ I am sorry, the full documentation of exhibit AG is in the respondent’s book of further material at 121 to 131.

GORDON J:   Is there a transcript of that anywhere?  There are excerpts of it throughout the judgments, but there is no complete transcript of it.

MS RIGG:   The full one is in the respondent’s book of further materials at 121.

GORDON J:   No, no, that is the original, it is hard to read.

MS RIGG:   Yes, that is ‑ there is not.

GORDON J:   I mean, did someone actually go to type it up?

MS RIGG:   No.

GORDON J:   No.

MS RIGG:   No, that is not the case.  Certainly, there are references in that to the deceased being responsive, sometimes drowsy and the like.  He was, at that stage, still trying to get out of bed and was restless at times.  But the transfer form, at the time of movement from the nursing home to the hospital on 5 December 2013, was in evidence, and that indicated that the deceased, at that stage, was able to indicate the fact that he was dizzy, whether or not he was in pain, and matters of that kind.  So there was simply no exploration at the trial of any significant enough deterioration in the deceased’s cognitive capacity to support the contention that is now advanced on appeal, that something like the Guardianship Act, for example, provides authority to the son of the deceased to have made decisions for his father.

There is certainly ‑ those who did speak to the deceased, who had regular contact with him such as his son and also such as Rabbi Jacob, who attended to his spiritual needs whilst in the nursing home, and who was not a witness, gave no evidence of the deceased ever indicating any wish on his own part for his life to not continue, nor did they indicate any deterioration to the point at December 2013 which would justify the son of the deceased making a decision without the wishes of the deceased being the primary focus.

BELL J:   Just directing your attention for a moment to your second ground, that takes up, as I understand it, the Court of Criminal Appeal’s references at appeal book 176, paragraph 93 and 178, paragraph 99, to the effect that there was an inability to surgically treat the deceased.  And your contention is the court misapprehended the tenor of your challenge that there was in fact no evidence of an inability to surgically treat and, by reason of misapprehending your challenge, the court did not deal with ground 1 effectively.

MS RIGG:   Yes, your Honour.

BELL J:   So success for you must depend upon success on ground 1, must it not, because this Court is being asked by that ground to consider the sufficiency of the evidence to support the decision to leave pathway 3 on causation?

MS RIGG:   Yes.

BELL J:   Whether the Court of Criminal Appeal is to be understood when the judgment is read as a whole in the way for which the respondent contends or the way for which you contend, in a sense, does not assist unless you succeed on your first ground.

MS RIGG:   Yes.  Ground 1 is certainly the focus of the appeal.  As to whether it adds anything additionally – the second ground adds anything additionally to ground 2 would only be in circumstances where – if this Court were to come to the view that the material as currently articulated by the respondent is able to pass that point of rendering the impugned theory open on the evidence.

BELL J:   Well, we would hardly, even if there was merit to your second ground, remit the matter if we were satisfied that there was no force to ground 1.

MS RIGG:   Yes, that is so, your Honour.  I agree with that.

BELL J:   So, in a sense, we are looking at ground 1 and that is the issue that is determinative of this appeal.

MS RIGG:   Yes, I agree with that, your Honour.  Things at the special leave stage may have been different, perhaps, because of an ability at that stage to remit it on that ground alone but I agree, your Honour, that ground 1 is central.

BELL J:   Yes.  All right.

MS RIGG:   The submissions put forward in support of ground 2 are still relied upon as complementing ground 1 because, in a sense, it is the lack of cogency and clarity in the Crown case as articulated at trial that the appellant complains about, and the fact that the Court of Criminal Appeal, on the appellant’s interpretation of the judgment, did not come to grasp the central nature of that case is another demonstration of the lack of cogency in the case theory that was presented for the Crown.

GORDON J:   The other way of putting it is that it is a particular of ground 1 on the basis that you say there was not sufficient evidence on that limb of success of the operation.  In other words, it is a subset of ground 1?

MS RIGG:   Yes, your Honour, that is right.  Your Honour, it is submitted that in order to establish liability for murder via the third path of reasoning, the Crown would have to prove beyond reasonable doubt at least the following facts - that effective surgery was available that could have saved this particular man’s life.

NETTLE J:   Could or would?

EDELMAN J:   You would have to say “would”, would you not?

MS RIGG:   I would submit that the Crown should have proved that it would have saved his life.  But the appellant goes so far to say that in this particular case there was not even evidence that it could have saved his life.  So the appellant does submit that the test of – the evidence should have been to the point that it would have saved his life, to make out a case of causation to show that the assault was the cause of the death.  But even on the less demanding term, the Crown simply adduced no evidence on the topic relating to this particular man. 

Secondly, the Crown needed to prove beyond reasonable doubt that this particular man or someone lawfully authorised to act on his behalf made a decision to not undertake that surgery that was available and, thirdly, that that decision to not undertake surgery was motivated by non‑improving low quality of life debilities, which are the four that I have referred to already, which were caused by the assault, as distinct from poor health issues or concerns about necessary preparation for surgery or a mistaken diagnosis of aspiration sepsis.

The appellant contends that those three are essential intermediate facts in a case of this nature, for this to even be viable as a case for causation in a murder trial.  The appellant contends that the Crown failed to produce evidence capable of proving any of those three matters.  It called no one involved in the decision‑making process, or insofar as the son was called, he was asked nothing about it.  Exhibit AG is the only evidence that the Crown has relied upon, the hospital notes. 

The Crown ultimately also of course relies on the primary fact of the underlying quality of life issues, but insofar as looking at the decision‑making process on 6 December, exhibit AG is the only evidence that was before the court.

Your Honours, I have dealt earlier with the absence of evidence of the availability of effective surgery for this particular man, with all the health vulnerabilities that he had in December of 2013.  Furthermore, there was no evidence as to what was required to stabilise Mr Kormilets medically, prior to having the surgery that had been recommended by the orthopaedic surgeon.

BELL J:   What is the significance of that?

MS RIGG:   It goes to the issue of whether that stabilisation was feasible, whether it was something that was likely to be distressing for the deceased.  So they may well have been issues that were taken into account in the decision‑making process, or may have meant that surgery was not likely to be successful without distress to the deceased.

It was simply just not explored at all in the evidence.  There was nothing from a medical practitioner as to what was expected to be required.  It relates again to the decision‑making process of the son of Mr Kormilets because he was taken back to a decision made earlier in July when the first “not for resuscitation” note had been signed – which was to the effect that in the event of a further incident of aspiration sepsis, the deceased was not to be resuscitated, not to be intubated.

So that whole process of a potential mistaken diagnosis on 5 and 6 December of aspiration sepsis, but also consideration as to what was required to stabilise the deceased medically no doubt had a role – or the inference is well capable of being drawn – had a role to play in relation to the decision‑making process on that occasion. 

So it goes to the absence of evidence about what was required to stabilise the deceased medically, it goes to the issue of whether the surgery was viable and also what the factors were that were taken into account by the decision‑makers.  As to the decision‑maker, the identity of the medical practitioner is not even known, far less was that person called as a witness. 

GORDON J:   This is the “medically stabilised” note doctor?

MS RIGG:No, the medically stabilised one seems to be by Dr Cohen, who was the orthopaedic surgeon, but the note which comes after that - which is the one recording the decision to palliate rather than treat surgically. 

GORDON J:   Thank you.

MS RIGG:Thank you.  Your Honours, in terms of the reason for the decision there were similar shortcomings in the evidence in that regard and, importantly, as indicated earlier there were very serious health complications otherwise suffered by the deceased.  On the preponderance of evidence there was probably a mistaken diagnosis of aspiration sepsis or pneumonia, which is what caused then the reference to be made to the earlier note, which suggested that if there was a further incidence of aspiration sepsis, there was not be an intubation or ventilation. 

BELL J:   What is the significance of that?  If a decision was taken either by the deceased or by his son, not to resuscitate, whether it was because of feared repetition of aspiration sepsis or some other condition, if an inference is open that the reason for that instruction was because the patient was so badly compromised by the injuries, the result of the fall, what does it matter whether there was a misapprehension about the likelihood of aspiration sepsis as opposed to some other condition?

MS RIGG:Because, your Honour, it would suggest that then, on 6 December, there was a mistaken understanding as to what the condition of the deceased was and because there was that mistaken understanding it brought about that prior presumptive inclination to ‑ ‑ ‑ 

BELL J:   So this is a mistaken understanding that this was an elderly man particularly prone to aspiration sepsis and that was a factor which is to be inferred was taken into account in the decision not to surgically intervene? 

MS RIGG:Yes, because it is specifically referred to in exhibit AG as a matter that was discussed. 

BELL J:   I understand. 

MS RIGG:That ties in with the medical evidence that that is what the doctors had understood at that time, although after the event it seems mistakenly to have been his condition.  So, rather than realising this was a man who was demonstrating symptoms that were the result of a fractured hip, which required the repair of the hip, there was, in the mistaken diagnosis of aspiration sepsis, a reverting back to the prior note.

Insofar as the Crown contends that the reason for the decision, the reasoning of the decision‑maker was a matter that is different to and not contained in those matters discussed, as noted in exhibit AG, it is submitted that this is conjecture rather than a rationally‑drawn inference, and if such evidence was available, it was peculiarly within the knowledge of the decision‑makers, and in an adversarial and accusatorial context would be expected to be called by the Crown.

So if it was the case that the son of the deceased was, on the 6 December, not thinking about the mistaken diagnosis of aspiration sepsis, not thinking about the cancer that was being discussed, not thinking about his father’s serious physical health decline, the stroke that had just been thought to have occurred the previous days, the atrial fibrillation and tachycardia, but on the other hand focused on the poor quality of life issues which were linked to the assault, this was a matter that was peculiarly within his knowledge, and should have been the subject of evidence before the trial.

It is submitted that this is a case where it is now extraordinary for the respondent to seek to draw an inference when direct evidence as to the man’s thinking process would be expected to have been called at the trial in relation to what was the emphasis of the Crown Prosecutor’s closing address, that is, the decision being made to not operate because of incontinence, lack of mobility, reduced cognitive capacity, PEG feeding, which was never going to improve.  Mr Zitserman and the medical practitioners were exquisitely able to explain that it was those matters, not the matters referred to in exhibit AG, that were the basis of the decision to not operate, had that been the case.

The appellant submits that at the very least, the response to the respondent’s contention now as to drawing an inference that those matters were instrumental to the son’s decision to not operate, would at the very least warrant the type of consideration that was given by this Court in the decision of Mahmood v The Queen, which is in the joint book of authorities, your Honours, at 54, (2008) 232 CLR 397.

At paragraph 27, the Court, having considered the limitations on the drawing of inferences in criminal trials, as considered in RPS v The Queen, indicated that in the particular case before the Court, the question was not ‑ direction was not required, as is said there that:

In the joint reasons in RPS v The Queen it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.

At the minimum, it is submitted now that the Court, in contemplating the contention that is advanced by the Crown, should treat with great care the proposition that where a witness was in fact called by the Crown and asked nothing of the decision‑making process that is said to be so central, that goes directly to the issue of whether the Crown has proved that matter.

Furthermore, the appellant would contend that the circumstances here are so unusual that, despite the limitations on drawing of inferences in criminal trials as set out in Dyers v The Queen (2002) 210 CLR 285, which is at page 6 and following of the joint book of authorities, this is a case, given the requirements of the Crown to call the relevant evidence and the adversarial and accusatorial nature of a criminal trial and in particular this being a matter of personal intention or volition on the part of a witness who was called, that the Court really can take this so far as to say that the Crown contention is really calling on conjecture or speculation rather than the drawing of rational inferences.

The decision of this Court in Bayden‑Clay v The Queen, which is in the joint book of authorities at page 124 and following, the citation being (2016) 258 CLR 318, also applies. This was a case where the intermediate appellate court had drawn an inference in favour of the respondent that the Crown had not excluded the possibility that the accused had fought with his wife and killed her unintentionally, in circumstances where the respondent, Mr Bayden‑Clay, had himself given evidence at trial and denied fighting with his wife.

If I could just take your Honours briefly to the joint book of authorities at page 131, the inference that the finding of the Court of Appeal was there set out, that is, that:

it was open to jury to find that the respondent had killed his wife, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended either to kill her, or to cause her grievous bodily harm.  In particular, the Court of Appeal accepted the respondent’s submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve an intent on his part either to kill her or to cause her grievous bodily harm.

Now, in relation to that theory that the appellate court had found not excluded, the Court at paragraph 47 – and this is at page 140 of the joint appeal book ‑ ‑ ‑

KEANE J:   Which paragraph please?

MS RIGG:   Paragraph 47.

KEANE J:   Thank you.

MS RIGG:   Confirms that:

For an inference to be reasonable, it “must rest upon something more than mere conjecture.

At paragraph 48, the nature of a criminal trial being accusatorial but also adversarial is referred to.  At paragraph 55, which is over on page 142 of the joint book of authorities, it was held that:

The Court of Appeal’s conclusion to the contrary was not based on evidence.  It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence.  In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her.  There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made.

The appellant contends that similarly here, where there is evidence before the Court of the matters that were discussed between the decision‑makers, and the person whose decision‑making process is being considered was called and asked nothing about it, it is simply conjecture to contend that the decision‑making process was based on the reasons suggested by the Crown.

It is particularly important as well, because even though it might go without saying that no doubt the quality of the deceased’s life was, as we have said in the written submissions, no doubt in the back of the minds of the decision‑makers, and the appellant would not contend that it obviously had nothing to do with the decision‑making process, there were so many other important factors at play that an articulation of his own mental processes was essential for the jury to take into account the test of whether there was a substantial or significant contribution to the death, which is the test obviously that needs to be met in relation to causation in a criminal trial.

BELL J:   Turning to the three matters that you say it was incumbent on the Crown to establish in order to support the inference, the second, one might think satisfied by exhibit AG in the sense that it provides evidence that a decision was taken to treat palliatively and not to operate, your third point is that it is necessary, so the argument goes, to establish that the decision‑maker, whoever it might be, either the patient or the son, made that decision by reason of the quality of life issues.

I just take up with you the correctness or otherwise of that proposition because it carries with it the notion that one can disaggregate the various things that lead to a decision not to take some life‑preserving measure.  One can hardly, one would think, expect a person to be able to say, “My concern about my metastasising cancer is the only thing informing my decision to die rather than seek life‑extending treatment”. 

MS RIGG:   Yes. 

BELL J:   But just as a matter of ordinary human understanding, one would think that there is an interplay of factors.  So your third ground cannot be, can it, that the decision for palliative care was taken solely by reason of consideration of the compromised condition in which the patient found himself, or the son perceived him to be?

MS RIGG:   No, certainly that was not the evidence but so far as the appellant’s construction of the Crown case now is concerned, it is not contended that the Crown was required to prove that was the only consideration for surgery.

BELL J:   You say it must establish that it was a significant consideration in forming the decision.

MS RIGG:   Yes.

BELL J:   Why is not the inference irresistible that whether the decision was that of the son or the patient his compromised condition was significant, having regard to the evidence about his state?

MS RIGG:   The inference is available that it was a consideration.  In terms of its significance, your Honour, the inference is less clear in circumstances where there were so many other serious problems suffered by the deceased at that time and the existence of the mistaken diagnosis.  It is really those other factors that make the significance of the quality of life issues fuzzy and unclear, in the appellant’s submission.

Further on your Honour Justice Bell’s point about the second limb – that is, whether that is well made out by exhibit AG – it is accepted that the fact of a decision to palliate rather than treat surgically is clear.  However, it is submitted that exhibit AG does not support or make clear the proposition that the son of the deceased was in a position to make decisions for his father on that occasion.  That is, additionally, submitted to be a highly problematic area on the evidence.  And although the respondent has on a number of occasions during the written submissions referred to one or two particular parts of the evidence, there is a range of evidence about how the deceased’s cognitive functions were from time to time and he, clearly, was someone who continued to speak, to interact, to talk with his son ‑ ‑ ‑

GORDON J:   On 5 December?

MS RIGG:   During the time he was at the nursing home – the evidence is less clear in relation to 5 December.  There is the transfer form itself, which is quoted in the judgment of the Court of Criminal Appeal at appeal book 152, paragraph 27.  This is the day the deceased was taken to hospital, following a history of being unwell for four days.  But there is indication, then, so far as the transfer note is concerned that there is complaint of dizziness, that he denied any pain, shortness of breath, headaches and the like.  Importantly, there is no evidence called by the Crown from anyone who worked at the facility, at the nursing home, who had any contact at all with the deceased during the months he was there and certainly not on this particular date.

So, really, there is an absence of evidence, again, about what the communicative capacity of the deceased was on 5 and 6 December 2013, in particular.  In circumstances where the Crown is now seeking to contend, by reference to some other particular dates, notes of particular times, it should be taken that the son had authority because the deceased could not make decisions for himself.

EDELMAN J:  If the evidence had been given by the son that he had made the decision with authority because of his father’s inability to communicate, or evidence had been given by a nurse that the father’s communication of his wishes and that those communications had been that the decision had been taken not to operate because of a range of factors including some of the factors that you mention and some of the factors relating to his condition from the assault, would that have been sufficient?

MS RIGG:It may have been.  The appellant does not contend as a matter of law that that would never be capable of being left as a case to the jury.  The problem is that there was not that evidence here and, furthermore, the jury was not asked to – although this goes to the proposed ground 3 in relation to which special leave has not been granted - the jury was not asked to think about it.  But apart from the summing‑up, even the Crown Prosecutor’s address did not direct the jury properly to what the issues were that they needed to be deciding, if a case had been presented with that evidence, for example. 

EDELMAN J:  But why was not an inference open that a decision had been taken by someone, either on instructions from the deceased or from the son, and that informing that decision were factors that included the consequences of the assault?

MS RIGG:In terms of the test for causation being significant or substantially contributing to the death, there simply being a factor that was taken into account would give rise to an inadequacy of evidence in the appellant’s submission. 

EDELMAN J:   Is that your point or are you suggesting that there is any contrary inference out there that could be drawn and, if so, what would the contrary inference be?

MS RIGG:The appellant submits that, firstly, the inference that this was – the way the Crown framed it was that this was the reason the decision was made.  It was repeatedly put as the reason for the decision, and expressly put that not for unrelated issues such as cancer was the way that the Crown framed the submission.  Framed that way it was contrary to the evidence and not supported by it. 

Insofar as perhaps argued differently by the Crown Prosecutor, that is that there were a range of factors taken into account, it would give rise to a different reasoning process on the part of the jury when they tied that in with legal directions as to causation, but would have focused more clearly the jury’s attention on what the evidence actually was and the absence of evidence to the effect that this was the reason for the decision‑making process and the evidence about non‑improvement of those quality of life issues, which was so repeatedly stressed by the Crown. 

BELL J:   In terms of your outline, am I right in thinking that we have got the last discussion as being at 5.6?

MS RIGG:Yes, your Honour.  The Crown’s submission that those four quality of life issues were never going to improve was contrary to the evidence, or not supported by it, and the respondent has not put forward any evidence to support that contention having been advanced by the Crown at trial. 

It is further submitted to be important on the issue of what is, in effect, a reasonably novel causation case.  So, one of the authorities included in the joint book of authorities is the decision in Royall v The Queen (1990) 172 CLR 378. Rather than going in detail through particular passages of the judgment, a number of times during the various judgments in that case the way that the - the three particular paths of reasoning for causation that were left to the jury in that case are set out in the judgments of this Court, not only the three ways that the Crown did advance its case, but the way that the judge directed about the three particular, separate paths of reasoning.

In a case like Royall where the victim - an act of the victim was found not to break the chain of causation in a recognised set of circumstances, that is, where she is subject to a violent assault and has a well‑founded fear and takes action to avoid that, the Court referred to the established body of law that related to that issue and related to the

circumstances in which an act on the part of the victim herself might not break the chain of causation.

Similarly here, if a case is to be advanced that a decision, either by a deceased person or by a relative on his behalf, to intervene either by taking life or by not taking up the opportunity of life‑saving surgery for a different issue which has arisen, there would need to be consideration of factors of that kind.

So the submission made by the Crown that those quality of life problems were never going to improve is something that would take on, in the appellant’s submission, some significance because it is - apart from being factually wrong it is wrong in an important way because in terms of whether an act of a deceased person or a relative might not break a chain of causation that would, in the appellant’s submission, be a significant factor, that is proof that the quality of life problems that did result from the assault were never going to improve. 

Your Honours, the case before the Court highlights the importance of the integrity of Crown case theories and identification of issues in trials, that is, not simply being about the presentation of evidence and receipt by juries of direction in relation to elements of the offences.  The appellant relies upon a number of decisions where the integrity of Crown case theories is pressed and has been found to be - have given rise to a miscarriage of justice when evidence has - when those theories have not been firmly based upon the evidence.

Ultimately, however, the court below accepted, and it seems not to be in dispute between the parties, that if it was the case that the Crown case theory that is complained about was not based upon the evidence then that did give rise to a miscarriage of justice.

BELL J:   Yes.

MS RIGG:   Thank you, your Honour, those are the submissions for the appellant.  Thank you.

BELL J:   Yes, thank you, Ms Rigg.  Yes, Mr Babb.

MR BABB:   Thank you, your Honour.  To establish that the alternative pathway should not have been left to the jury, the appellant must demonstrate that the evidence taken at its highest is not capable of sustaining the inferences sought to be drawn by the Crown – Doney v The Queen, Peacock v The King - and whether an inference should, as opposed to could be found, is a question for the tribunal of fact. 

It is instructive that my learned friend, in relation to questioning about the third of her points, the motive for the decision, said that the inference was less clear.  That is an implicit acceptance that the inference was available, and that it was a jury question.  I would like to address your Honours on why, in my submission, each of those three sub‑points that my learned friend said were without evidence, were in fact with evidence and available for the jury to find them made out.  Firstly, what evidence is there that there was a reasonable expectation that surgery could or would be successful?

GORDON J:   For this particular man.

MR BABB:   For this particular man.  The first relevant ‑ ‑ ‑

EDELMAN J:   You accept that in the absence of sufficient evidence that there was a reasonable expectation that surgery would be successful, that the appeal would have to be allowed?

MR BABB:   Yes.  In my submission, that is a requirement of the alternative case being made out.

NETTLE J:   It is enough, is it, that there be a reasonable expectation that it would have worked?

MR BABB:   Yes, would or could have worked.  I do not think that ‑ ‑ ‑

NETTLE J:   I mean, you take a case like Royall, there is no doubt that the woman was killed by jumping out the window.

MR BABB:   Yes.

NETTLE J:   You do not have to worry about would it have been different, et cetera.

MR BABB:   Yes.

NETTLE J:   When you come to this case, you have to demonstrate causation which but for the criminal act, at a minimum, would not have resulted.  Does that not mean that you have to demonstrate at a minimum surgery would have worked?

MR BABB:   Because it is dealing with something that has been interrupted by the course of events, my submission is that you do not necessarily put a label on it as in “would”.  There was an expectation that surgery would have worked, or that surgery could have worked, is sufficient in this case.

NETTLE J:   Well, because of the inherently problematic nature of surgery, or something else?

MR BABB:   That is one thing that factors into it.  I do not think you would ever get a medical practitioner ‑ ‑ ‑

NETTLE J:   No.

MR BABB:   ‑ ‑ ‑ prognosticating in relation to someone who has died for another cause to say that surgery would necessarily have worked.  There is always an element of risk in any surgery.

NETTLE J:   You would expect the surgeon to come and say, “I have a high degree of confidence that this surgery would have been successful”.

MR BABB:   Yes, and that is, in my submission, what the notes are implicitly saying in this case.  When you have the orthopaedic surgeon ‑ and this is probably best available by going to the Court of Criminal Appeal’s judgment in the core appeal book at 153 ‑ ‑ ‑

GORDON J:   This is part of the notes from the hospital?  This is the material in the “stabilised” passage, is it?

MR BABB:   That is exactly right, yes, your Honour, and “Will require surgical intervention”, not “May require”.  There was an understanding by the orthopaedic surgeon at the time of writing this note that this person “Will require surgical intervention once stabilised medically” ‑ so he may require surgical intervention if he can be medically stabilised.  That is one piece of the evidence ‑ ‑ ‑

EDELMAN J:   That does not say anything about the likelihood of success.

MR BABB:   Except that surgery is not undertaken unless it is expected that it will be successful.  You do not undertake it in circumstances where you do not believe that there is going to be success in relation to a life‑threatening injury, in my submission.

Then one moves to the same exhibit and the note in relation to the explanation of the decision re palliative versus operative.  So there was a decision to be made as to whether an operation should take place and, in my submission, again that is indicative of the fact that the practitioner discussing it considered that an operation was an available option to save the person’s life but that the alternative they needed to discuss whether to operate or to use palliative care.

The other material is material that does not deal directly with this accused but is talking about surgery in relation to a hip fracture.  It is set out, your Honours, in the respondent’s written submissions at paragraph 27(iii).  The first evidence that I would draw the Court’s attention to – and, in my submission, it was not in dispute that a fractured hip was a survivable injury in relation to a healthy person of the deceased’s age, so Professor Fox gave evidence that an otherwise healthy person with a fractured neck of the femur would have surgical treatment and recover.

GORDON J:   This is referred to by the Court of Appeal at paragraph 48?

MR BABB:   Exactly.

GORDON J:   Yes. 

MR BABB:   Core appeal book 161.  Professor Fox went on to note that renal carcinoma is not uncommon in an elderly patient, and that he would refer a patient of the deceased’s age with a carcinoma of that type for surgery - and that is at paragraph 48 of core appeal book 161.  The forensic pathologist gave evidence and your Honour has already taken my learned friend to it ‑ ‑ ‑ 

GORDON J:   Is it Dr Bailey or Professor Cordner ‑ ‑ ‑ 

MR BABB:   No, Professor Cordner.

GORDON J:   Professor Cordner’s evidence which is set out. 

MR BABB:   Yes. 

GORDON J:   What do you make of that exchange?

MR BABB:   In my submission that exchange is clearly saying that in relation to someone with coronary disease at the level that this deceased had, that there was no bar to surgery. 

GORDON J:   Does Dr Bailey’s evidence take it any further?  It does not seem to. 

MR BABB:   I do not think so.  There were limitations and Dr Bailey did not feel that she could give that evidence. 

BELL J:   I might just indicate, Mr Babb, the Court is not proposing to take a morning adjournment. 

MR BABB:   Thank you, your Honour.  So, your Honours, getting back to the test that needs to be applied to make out the appellant’s case, in my submission, this evidence is available and was available and the Court of Criminal Appeal was correct to find that there was a proper case for the alternate ground to be put to the jury. 

GORDON J:   Can I just ask you about the two paragraphs that the appellant complains about in relation to the second ground relevant to this, where they seem to ask the wrong question? 

MR BABB:   Yes. 

GORDON J:   Chief Justice Bathurst seems to identify the issues but unfortunately uses the wrong language at two critical paragraphs.  What are we to make of that, and does it matter?

MR BABB:   Well, no.  In my submission there was no possibility that the Chief Justice was incorrectly believing that there was not a decision to made about surgery and that can be clearly seen from the judgment when viewed as a whole.  The use of the terms “could not be surgically treated” at paragraph 93, and an “inability to surgically treat” at 99, when read in the context of the judgment as a whole, do not demonstrate the error alleged. 

The Chief Justice correctly summarised the respective arguments of each parties, which were founded on the decision not to operate.  So if I can take your Honours to paragraphs 82 and 83 of the Court of Criminal Appeal judgment - and that is at pages 172 and 173 of the core appeal book – and if your Honours read that, you can see, at paragraph 83:

The Crown submitted that this evidence gave rise to the issue of whether the inference was available that Mr Zitserman’s decision not to proceed by way of surgical intervention was “based on the quality of life that was actually being endured‑

It was the argument before the Court of Criminal Appeal about whether the third pathway of causation was available and the focus was upon whether a decision - because the third pathway is, if you cannot rule out beyond reasonable doubt a traumatic fracture, and you may have a pathological fracture, then causation is caused by the decision not to operate because of, in significant part, the poor quality of life resulting from the assault. 

Further, if your Honours turn over the page to the conclusion of the court at paragraph 100, it similarly - so if your Honours see that one of the complained‑of passages is at 99:

inability to surgically treat‑

but if you go to paragraph 100, his Honour makes it clear in the third and fourth lines:

the ultimate decision not to operate at Prince of Wales Hospital -

So it is quite clear that the court was not mistakenly of the view that there was an inability to operate.  Quite clearly, they always had in mind that the issue was whether a decision had been made and on what grounds that decision had been made.

EDELMAN J:   One might read “inability” as being an inability resulting from a refusal of permission.

MR BABB:   It was - they were unable to operate in those circumstances, and that is the way that I would submit that should be read, in both those paragraphs.  If I could move back to the second of the two points where my learned friend says there was no evidence capable of making out that the son properly declined available surgery.  Your Honours, in my respectful submission, it is crucial that the nursing home notes are read in their entirety and the key portions of those are summarised by the Court of Criminal Appeal in its judgment, and it is useful because they have transcribed the relevant portions of the notes. 

Firstly, the evidence was that the deceased had lost the ability to communicate and express himself, and that he could not relay his symptoms and his complaints.  If I can take your Honours to page 84, the care plan, lines 26 following.

GORDON J:   You are in the respondent’s book of further materials now?

MR BABB:   Respondent’s book of further materials, thank you, your Honour.  About lines 26 and following:

Unable to mentally comprehend and undertake daily living activities.

GORDON J:   This follows from the earlier findings of notes at page 80 of “double incontinent” with:

a physical or cognitive disability preventing –

him doing those very daily activities.

MR BABB:   Yes.  The notes when read as a whole paint a picture of a man with gross cognitive disabilities that impacted very significantly – and I will just briefly take your Honours through the relevant portion, so you get a flavour of all the notes as a whole.  I will follow the Court of Criminal Appeal’s examination - it commences at paragraph 7, it is 147 in the core appeal book.  Firstly there is the evidence from the son, Dmitri, that his father was:

an “absolutely normal man” –

before the assault - cooking, cleaning, driving a car and looking after his financial affairs, no problems going to the toilet.  After the assault, he visited his father every day.  The father:

sometimes understood him clearly, but other times seemed to not know him or be listening to him.  He . . . did recognise his son, daughter‑in‑law and granddaughter, but that there were other relatives whom he did not recognise –

at all.  He “became angry”.  He ate normally for only three weeks before food got into his lungs and he needed to be PEG fed.  He was incontinent, dual incontinent and:

wearing a nappy.

His doctor, Dr Alexander Aristoff – the evidence of the son, Dmitri, is not in the further materials, but the evidence of Dr Aristoff is, and that is at page 101 of the respondent’s further materials and following.  But briefly, Dr Aristoff confirmed that description of him being a well, very fit man for a 78 year old, whose medical problems were pretty well managed before the assault.  The polycythemia was under treatment and under control.  When he saw the deceased at the nursing home he was “shocked” to see his condition.  The thing that shocked him most was he had:

lost his ability to communicate properly and . . . express himself and to relate to people.  His physical condition was also very poor because he almost lost completely his ability to swallow.

He understood that to be due to the bilateral brain injuries he had sustained in the right and left hemispheres as a result of the assault.  Dr Aristoff spoke Russian, which was the native tongue of the deceased, and he was in the best position – both he and the son were the people who knew him best before and after the assault.

Dr Aristoff said that the deceased retained some ability to understand what was actually spoken to him but had lost his ability to express himself completely and the important thing for him was his loss of cognitive function and the signs of dementia.  Now, these assessments are confirmed when one reads the nursing home notes as a whole.

BELL J:   For the son to make the decision as a responsible person under the Guardianship Act it would have been necessary to demonstrate that the patient was incapable of giving consent to the carrying out of the medical treatment.

MR BABB:   Yes.  I say that that was clearly an available inference when one works through the medical notes.  Would your Honours be assisted by me taking you through the key portions of the medical notes or not at this stage?

BELL J:   Yes, I think that might assist, Mr Babb.

MR BABB:   Thank you.  Starting at the respondent’s further materials, at page 8, there was evidence given by Ms McKern, who was a senior person from the nursing home, as to what this document related to.  The ratings, at the top of page 8, D is the worst rating and A is the best rating, so nutrition was an A because he was being PEG fed and it was being put straight into the stomach.  Mobility was a D, personal hygiene a D, toileting a D and continence a D and I will take your Honours to a further exploring of those ‑ and cognitive skills, D – that is below the purple line on the same page, 8.  Verbal rating D, physical rating D.  Moving to page 9, under the heading “Physical” at line 20:

Physical disability‑Acquired brain injury ‑

Moving down to “Eating” on that same page:

TUBE OR PEG FEEDING RESIDENT ONLY ‑

The reason for the PEG feeding was detailed in Dr Aristoff’s evidence at page 101 of the respondent’s further materials.  He was asked – this is commencing at line 13:

His physical condition was also very poor because he almost lost completely his ability to swallow.

. . . 

Q.  How can that take place, how does a patient lose his ability to swallow?
A.  My understanding in particular Alex’s case was that due to the injuries to brain injuries that he sustained and from the records that I’ve seen from St Vincent’s Hospital he sustained bilateral brain injuries to the right hemisphere and to the left hemisphere of his brain and especially he did have a subdural haematoma on the left‑hand side of the brain that was probably pressing quite extensively to the basement of the brain and that’s where the centres for controlling breathing, swallowing  –

GORDON J:   What is the bit that then follows?  Do they have the effect on the way he took food and that links it back?

MR BABB:   Yes, it does.  Thank you.  At page 10, there is an assessment of mobility:

poor dynamic balance –

And we know that that is a result of the assault because he was a fit man who walked regularly in Moore Park.  Requires two people to:

assist with pelican belt.

And over at page 11, you see that that is for every movement:

Bed to Chair x2, Chair to Bed x2 –

This is at line 21:

Wheelchair to Bed x2, Chair to Wheelchair x2 –

And, under “Cognitive” on page 10:

Lacks understanding for personal safety
Forgets to use mobility aid

. . . 

Attempts to get up from bed or chair and walk to another area unaided –

“Medical condition”:

Brain injury, cerebral haemorrage, incontinent –

all specifically related to the assault upon him.  Moving forward to page 12, he needs personal hygiene care because of his:

Unsteady Hands or Fingers, Unsteady Gait, Poor Coordination –

The dual incontinence, a direct result of the brain injury, page 17, and at line 21, incontinence of urine and faeces. 

For the purpose of getting through it, I will take your Honours forward to page 32, physical behaviour record.  So, it is a daily update of the physical behaviour and P3 means “Constantly physically agitated”.  You can see that that is a daily occurrence for most of the time when he is being observed.

He was a “high falls risk” and if I can take your Honours forward to page 88 of the respondent’s further materials.  In the middle of the page “Care Needs”, line 34 or thereabouts:

Mobilises with assistance x1 – tries to mobilise on his own
High falls risk –

And we know from the previous note that that trying to mobilise on his own is as a result of the acquired brain injury and an inability to understand the risk that mobilising on his own causes.  Page 81, line 25, confirms the fact that he was a high falls risk led to four to six falls in the last 12 months.

GORDON J:   Where was that, sorry?

MR BABB:   Line 25, page 81, of the respondent’s further materials.  And, moving over to page 83 ‑ ‑ ‑

BELL J:   Just before you leave page 81, there is reference at about line 35 and following to:

The resident has dementia or behavioural problems ‑

and that perhaps affecting the assessment.

MR BABB:   Yes.

BELL J:   That is really not a conclusion, as I read it, that the patient necessarily has dementia but I suppose the inference is he either has problems that are dementia like or ‑ ‑ ‑

MR BABB:   Yes, that would be my submission.  We are really looking at a man who, in April, was functioning perfectly well in every respect and that inference is available, that whatever cognitive impairment he has is as a direct result of the assault.

BELL J:   Yes.

GORDON J:   Can I just ask a question about the date of this.  It says 5 December 2013.  Is that the date of the preparation being the date of the ‑ ‑ ‑

MR BABB:   That is the date of his entering hospital.

GORDON J:   That is why I am asking.  It seems very unusual that that is the same date.

MR BABB:   Can you excuse me?  I will see if I have an answer to your Honour’s question.  I am not sure that I do.

GORDON J:   If you do not, you do not.  It just seems an odd thing.

MR BABB:   I am sorry; I cannot answer that question, your Honour.

GORDON J:   Thank you.

MR BABB:   Page 83, line 27, is significant:

Gait:  Shuffled, Slow, poor dynamic balance . . . 
Posture:  Stooped
Can walk 0 Metres ‑

GORDON J:   Is it not what follows as well?

MR BABB:   Yes.

GORDON J:   That is:

Related medical conditions include Brain injury –

et cetera, and:

Lacks understanding for personal safety ‑

MR BABB:   Yes, exactly.  Your Honours, the four incidents of falling are detailed at the respondent’s further materials page 90.

GORDON J:   Did you take us to 84?

MR BABB:   No, I did not, your Honour.

GORDON J:   In the middle of the page it says:

Unable to physically undertake any daily living activities, Unable to mentally comprehend and undertake daily living activities.

I know it is under “Oral and Dental Care” but ‑ ‑ ‑.

MR BABB:   Yes.  Actually, your Honour, I withdraw that.  I did start there with my discussion of his mental comprehension.

GORDON J:   Thank you.

MR BABB:   Page 90 is the detail of the first fall and that is at line 37, 24 September.  The record of the second fall is at page 92, line 40, 18 October.

NETTLE J:   What is the one at 25:

Alex was found on the floor next to his bed at around 1340 ‑

MR BABB:   Which page?

NETTLE J:   Page 93.

MR BABB:   Yes, that is the final incident before he goes to hospital, your Honour, and there is one earlier one at page 58, an incident report form, 30 November.

BELL J:   Yes.

MR BABB:   Your Honours, can I just draw to your attention that in terms of notes that relate to 5 December and where they can be found, page 93 in the respondent’s further material is the detailed note about 5 December.  The interactions with the deceased - you will see that the son is informed.  The son immediately comes to the nursing home and it is the son ‑ ‑ ‑

BELL J:   It is the son who indicates the decision to take him to hospital.

MR BABB:   To take him to hospital.  The transfer form to the hospital is page 69 of the respondent’s further materials.  At the bottom of the page, that reference to “decline in condition” is a decline in the already poor condition that I have taken your Honours through in relation to the general notes about his time in the nursing home. 

The son was the appropriate person to make the decision on the balance, on the evidence, or at least that was certainly an available inference.  He was noted in the nursing home records as being the responsible person.  He made the earlier decision at St Vincent’s Hospital, and it was noted as being official, and this is detailed in the Court of Criminal Appeal judgment at paragraph 12, core appeal book 148.

My learned friend puts some weight on the fact that that decision about not resuscitating or going into ICU or intubation was limited to aspiration sepsis.  My submission is that when you read it in its full context that that is not so.  It was a decision made that if another similar episode were to occur - and similar episode is, in my submission, serious health problem on the part of the deceased, which was what he faced on 5 December, and medical staff clearly considered that the son had the legal authority and are well used to dealing with patients and assessing whether they are capable of giving instructions or whether someone else needs to be contacted for those instructions.

The motivation for the decision - the final point - my friend has quite rightly accepted that the low quality of life resulting from the assault does not need to be isolated as the absolutely only cause and that flows from the causation test itself.  It need not be the only cause but ‑ ‑ ‑ 

BELL J:   But her central point is if one accepts that the son was the decision‑maker and, on your submission the son was, the son was called and no evidence was given relating to the decision and the matters that informed it. 

MR BABB:   Yes. Your Honours, what I say about that is that we are really in this case considering whether the evidence was capable of making out the proposition.  With respect, the reference to Mahmood, which is a decision about directions, is not at all relevant.  We are not looking at what directions may have been requested and may have been given had they been requested.  We are looking at this case, and in this case we are looking at the evidence that is available, and I have taken your Honours through the proper inferences that were available on the evidence that was before the jury.

In terms of my friend’s submission that somehow there needed to be an establishment that the deceased would never improve, I have taken your Honours through the notes and he has had a consistently poor quality of life from April through to December and if that indeed needed to be established, in my submission it was established. 

There is some further evidence that is relevant on that point and that comes from Professor Cordner who was the forensic pathologist called by one of the accused – the co‑accused – and his evidence, relevant evidence, is in the respondent’s further materials at page 151.  Perhaps the most relevant passage is at 152, line 20 and following:

Q.  Although the physical injuries that were inflicted as a result of the assault may have healed, he still had some major on‑going disabilities.
A.  Yes.

Q.  And one of, or the major one seems to be a fairly severe cognitive decline?
A.  Yes.  And he had residual bone damage that was visible at the autopsy. 

Q.  Just in relation to those, I will call them debilities, as a result of the assault, you say they were operative at the time of his death?
A.  Yes.

Q.  They played some part?
A.  Yes. 

Then, at page 167 of the respondent’s further materials, when you say “debilities following an assault”, what do you mean by that?  What does “debility” mean: 

“debility” was “a general word to cover a range of disabilities and infirmities –

in this case, mainly:

consequent –

in my view:

upon the head injuries”. 

You mention the cognitive decline but that would have been the main reason why he was more or less confined to bed and the head injuries were the result of the assault.  Unless I can assist your Honours further, they are my submissions.

BELL J:   Thank you, Mr Babb.  Anything in reply, Ms Rigg?

MS RIGG:   On two issues, your Honours:  firstly, on the issue of the availability of effective surgery.  It is not the appellant’s submission that there was a bar to surgery because of the deceased’s physical state of health.  The submission is that there was simply no evidence before the court as to the likelihood for successful surgery in relation to this particular very unwell man.

BELL J:   What do you say to the respondent’s submission that the medical note by the orthopaedic registrar or surgeon “will require surgical intervention” recorded at appeal book 153, paragraph 28, suffices to support an inference that an appropriately qualified person in saying “will require surgical intervention” was presumably expressing the opinion that surgical intervention would in the ordinary course be effective?

MS RIGG:   It is submitted that, on the contrary, all that that demonstrates is a consistency with the evidence that without surgery this man was expected to die.  It does not indicate anything at all as to what level of success of surgery was expected and it was well open to the Crown to call evidence in this case. 

Of course it will never be certain or definite but rather than simply the evidence that was called which related to likelihood of successful surgery for a healthy man, if some more particular evidence as to what the likelihood of success or expectation of success was for this man and, further, the submission advanced that no one operates unless success is expected completely ignores the huge variety of expected rates of success in relation to surgery in a whole range of different circumstances.  It is the expectation of success in this particular case that needed to be the subject of evidence. 

Secondly, on the issue of the incapacity alleged on the part of the deceased to make a decision in relation to surgery in December 2013, there is no issue that there was cognitive decline on the part of the deceased.  The issue was whether the evidence called by the Crown got to or made out the contention that the appellant submits is necessary, that is, that the deceased was not capable of making a decision about such a basic issue as whether he wanted to have surgery that was necessary to save his life.

The notes are full, as well as the references to impairment in the deceased’s cognitive capacity, to the fact that he still is communicating.  He, when given assistance with Russian, was able to speak to medical practitioners, spoke regularly with his son and with his rabbi.  He had ongoing interests in the nursing home, such as playing dominoes and watching television – that is at respondent’s further material 42. 

The transfer form created on 5 December, this is at respondent’s further material 69, indicates that the deceased at that stage was thought to:

not understand words spoken at normal speed –

and to:

not understand complex sentences –

But as indicated earlier, he was still able to communicate in relation to his symptoms on that particular occasion, that is, whether he was in pain, whether he was dizzy and the like.  In circumstances where such a significant issue is being advanced as to whether necessary life‑saving surgery was to be the subject of a decision by the deceased himself or by someone else, evidence from those speaking with him on that day was, in the appellant’s submission, absolutely essential, as well as far more comprehensive medical evidence that would address such a contentious proposition.

The notes further refer to the deceased continuing to communicate, despite his language difficulties, with other residents whilst in the nursing home, so, respondent’s further materials 73, indicates that he was:

Quiet amongst other residents.  Shakes his head side ways and nodding to respond to questions as a Yes or No -

and over the page, on the respondent’s further materials 75, the staff were trained to use:

simple words and short phrases -

and have a staff member who speaks Russian available to speak when appropriate.  So the evidence essentially indicates that there were communication difficulties, and this is further repeated at respondent’s further material 89, that:

Alex was communicative, however, it was difficult to understand what he was communicating -

so that the social worker spoke to the son.  The appellant’s written submissions referred to the interaction with the speech pathologist on 1 October 2013 where, given assistance with interpretation, the deceased was able to undergo engagement with the expert and make decisions about his own health.  That is at appellant’s further material page 24.  Thank you, your Honours.

BELL J:   Thank you, Ms Rigg.  The Court will reserve its decision in this matter. 

Adjourn the Court to 9.30 am tomorrow in Canberra and in Sydney.

AT 11.36 AM THE MATTER WAS ADJOURNED