Swan v The Queen - [2018] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Swan v R [2018] NSWCCA 260
Hearing dates: 2 May 2018
Date of orders: 23 November 2018
Decision date: 23 November 2018
Before: Bathurst CJ at [1]; Hoeben CJ at CL at [103]; R A Hulme J at [104]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW – General matters – Criminal liability– Causation – accused tried on indictment for murder victim died eight months after assault during a home invasion – conflicting medical evidence concerning cause of death – whether it was open to the jury to conclude that the assault caused the death of the victim
Legislation Cited: Criminal Appeal Rules (NSW)
Cases Cited: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Moffatt v The Queen [2000] NSWCCA 174
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
Reynolds v The Queen [2015] NSWCCA 29
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Category: Principal judgment
Parties: William Rodney Swan (applicant)
The Crown (respondent)
Representation:
Counsel:
B Rigg SC (applicant)
T Smith (respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2013/117929
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

20 May 2016 (conviction); 16 December 2016 (sentence)

Before:

N Adams J

File Number(s):

2013/117929

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 15 April 2013, Mr Alexander Kormilets was assaulted by two men during a home invasion. He was 78 years old at the time of the assault and he sustained severe injuries. He was taken to hospital. After four months in hospital, he was released to a nursing home in August 2013. However, his condition deteriorated and he was transferred back to hospital on 5 December 2013. He died five days later on 10 December 2013.

In 2016, Mr William Swan and Mr Thompson Kimura were jointly tried for the murder of Mr Kormilets before a jury. While there were other issues at the trial, one of the key issues was whether the prosecution had established beyond a reasonable doubt that the assault on 15 April 2013 had caused the death of Mr Kormilets. On 20 May 2016, the jury returned a verdict of guilty of murder against each of Mr Swan and Mr Kimura. Both were convicted and sentenced to a term of imprisonment.

Mr Swan appealed against his conviction on the ground that a miscarriage of justice had occurred during the course of his trial. In particular, he claimed that the prosecution closing address had “encouraged a path of reasoning not properly open” to the jury in relation to whether the assault on 15 April 2013 had caused the death of Mr Kormilets. He said that the path of reasoning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Swan v The Queen

Details

AGLC: Swan v The Queen [2018] NSWCCA 260
Case: [2018] NSWCCA 260
Decision Date: 23 November 2018

CaseChat Overview and Summary

Swan v The Queen is a case that involved the accused being tried on an indictment for murder, where the victim died eight months after an assault during a home invasion. The dispute centred around whether the accused's actions directly caused the victim's death, given the extended period between the assault and the death. The case was heard in the High Court of Australia, which was tasked with determining the legal issues surrounding criminal liability, specifically the element of causation in this context.

The legal issues before the court were whether it was open to the jury to conclude that the accused's assault caused the death of the victim, given the conflicting medical evidence presented. The court had to weigh the evidence and determine whether the jury's conclusion was supported by the evidence, and whether it was open to them to make such a finding. The court also had to consider the principles of causation in criminal law and how they apply in cases where the death occurs some time after the assault.

The court held that it was open to the jury to conclude that the assault caused the victim's death, despite the conflicting medical evidence. The court found that the jury was entitled to consider all the evidence before them, including the medical evidence, and to make a finding based on that evidence. The court emphasised that the question of causation was a question of fact for the jury, and that it was open to them to find that the assault caused the death if they were satisfied that it did, based on the evidence presented. The court also noted that the principles of causation in criminal law are not rigid, and that the circumstances of each case must be considered when determining whether there is a causal link between the accused's actions and the victim's death.

The final orders of the court were that the appeal by the accused against his conviction for murder be dismissed, and that the conviction be upheld. The court found that the jury's conclusion that the assault caused the victim's death was open to them based on the evidence presented, and that there was no error in the trial judge's directions to the jury on the issue of causation. The court also noted that the evidence was sufficient to support the jury's conclusion, and that the appeal against conviction should be dismissed.

Orders