The State of Western Australia v Carkeek - [2016] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARKEEK [2016] WASC 201

CORAM: HALL J

HEARD: 13 - 21 JUNE 2016

DELIVERED : 17 JUNE 2016

PUBLISHED : 30 JUNE 2016

FILE NO/S: INS 329 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CHRISTOPHER MALCOLM CARKEEK
Accused

Catchwords:

Criminal law - Manslaughter - Unlawful assault causing death - Causation - Accident - s 23B Criminal Code (WA) - 'Eggshell skull rule' - Whether s 23B(3) only applies where the death is caused directly - Whether issue of whether death caused directly or indirectly for jury to determine - If indirect then s 23B defence of accident open even if the deceased only died due to a particular vulnerability

Legislation:

Criminal Code (WA), s 23B

Result:

Ruling that it was open to jury to find that death was caused indirectly and that, therefore, s 23B was available

Category: A

Representation:

Counsel:

Prosecution : Ms A J Burrows & Mr P I Lyons
Accused: Ms J G Fordham

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Fordham & Roast

Case(s) referred to in judgment(s):

Hooper v The Queen [2000] WASCA 394
Kaporonovski v The Queen (1973) 133 CLR 209
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
Mamote‑Kulang v The Queen (1964) 111 CLR 62
R v Callaghan [1942] St R Qd 40
R v Martyr [1962] Qd R 398
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Seminara v The Queen [2002] QCA 131
Taiters (1996) 87 A Crim R 507
TB v The State of Western Australia [2015] WASCA 212
The Queen v Van Den Bemd (1994) 179 CLR 137
Timbu‑Kolian v The Queen (1969) 119 CLR 47
Ward v The Queen (1972) WAR 36

HALL J: Christopher Malcolm Carkeek, the accused, was charged with unlawful killing (manslaughter) contrary to s 280 of the Criminal Code (WA). At trial, the primary issue was whether the acts of the accused had caused the death of Brian Burgess, the deceased. A secondary issue was whether, in the event the jury was satisfied as to causation, the defence of accident provided for in s 23B of the Criminal Code was open on the facts of this case. I made a ruling that s 23B was open and directed the jury accordingly. I said that written reasons for that ruling would be published in due course.

The prosecution case

The accused and the deceased were neighbours. On the evening of 30 May 2015, the accused held a birthday party for a friend at his home. The party involved music being played in a shed in the backyard of the accused's house. The music continued to be played until the early hours of the morning of Sunday, 31 May 2015. At around 7.30 am that morning, the deceased telephoned the accused to complain about the noise.
The prosecution case was that the accused was angered by the complaint and walked to the deceased's house to confront him about it. He banged on the front door and is alleged to have verbally abused the wife of the deceased. The deceased then came to the door and told the accused to leave. The deceased came out of the house and there was a scuffle and an angry exchange of words. Shortly after this, the ex‑wife of the accused, Ms Carley Whalen, also walked over and attempted to pull the accused away. He resisted and struck Ms Whalen in the face. The confrontation with the deceased then resumed and it is alleged that on two separate occasions the accused struck the deceased to the back of the head or neck. It is not suggested that these strikes caused any injury to the deceased that in any way materially contributed to his death.
The accused then left the area and returned to his home. The deceased remained standing at the front of his house. A few minutes later, he suffered an acute malignant cardiac arrhythmia. This caused him to lose consciousness and collapse to the ground. He was attended to almost immediately by neighbours who commenced cardiopulmonary resuscitation. An ambulance arrived soon after and resuscitation attempts continued. These efforts were unsuccessful and Mr Burgess was declared dead soon after his arrival at hospital.
The prosecution case is that the conduct of the accused in aggressively confronting the deceased was the cause of the cardiac arrhythmia, which resulted in the death of the deceased. The process of causation is alleged to be that the accused's conduct caused the deceased to become angry and stressed, that this stress resulted in the increased production of adrenalin and that this led to an increased heart rate. The deceased, unknown to him, had severe underlying heart disease. He was suffering from chronic coronary atherosclerosis which involved significant narrowing of the three principal coronary arteries. This meant that his coronary arteries were unable to cope with the increased heart rate and the demand of the heart for blood. This, combined with existing scarring to the heart muscle caused by previous undetected heart attacks, caused the deceased's heart to go into ventricular fibrillation. In this state the heart was no longer able to pump blood to the brain and vital organs. This caused the deceased to lose consciousness and ultimately die.

Causation

The principal issue at trial was causation, that is whether the actions of the accused were a significant or substantial cause of the death of the deceased. See TB v The State of Western Australia [2015] WASCA 212 and Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347. In that regard both the prosecution and the defence called expert evidence from cardiologists. For the purposes of this ruling it is unnecessary to refer to that evidence in detail. It is sufficient to note that the prosecution expert was of the opinion that stress resulting from the accused's actions had caused the fatal cardiac arrhythmia of the deceased. In contrast, the defence expert was of the view that it was impossible to make such a causative link with any degree of certainty. In the view of the defence expert the severity of the underlying heart disease was such that the deceased was at high risk of dying at any time and that a coincidental fatal arrhythmia could not properly be discounted.
It is to be assumed that the jury were ultimately not satisfied as to causation because they found the accused not guilty both of manslaughter and the available alternative of unlawful assault causing death. However, at trial the availability of that alternative depended on whether s 23B of the Criminal Code had any application.

Relevant law

The accused was charged with manslaughter contrary to s 280 of the Criminal Code. Insofar as it is relevant that section provides:
(1)If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter and is liable to imprisonment for life.
One of the available alternative offences for manslaughter is unlawful assault causing death contrary to s 281. Insofar as it is relevant s 281 provides as follows:
(1)If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.
(2)A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.
There are two obvious differences between s 280 and s 281. Firstly, s 281 is confined to assaults which result in death whereas s 280 uses the word 'kills' which is not confined to assaults. The term 'kill' is defined in s 270 in the following terms, 'any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that other person'. Secondly, the alternative offence of unlawful assault causing death under s 281 specifically excludes the defence of accident. That is, a person will be held liable for an unlawful assault that results in death even if that death was not intended, foreseen or reasonably foreseeable. In contrast, the defence of accident is not excluded in respect of the offence of manslaughter. Whether that defence is available in any particular case will depend on the facts of the case and on the terms of s 23B.
Section 23B provides as follows:
Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
(3)If death or grievous bodily harm -
(a)is directly caused to a victim by another person’s act that involves a deliberate use of force; but
(b)would not have occurred but for an abnormality, defect or weakness in the victim,
the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.
(4)Subsection (3) applies -
(a)even if the other person did not intend or foresee the death or grievous bodily harm; and
(b)even if the death or grievous bodily harm was not reasonably foreseeable.
Section 23B does not focus on the act of the accused person but rather on the event or outcome. It is well established that an event occurs by accident if it was unintended and unforeseen by the accused and not reasonably foreseeable by an ordinary person: Kaporonovski v The Queen (1973) 133 CLR 209, 231 (Gibbs CJ). Where this issue is raised on the evidence the prosecution have an obligation to prove beyond reasonable doubt that death was either intended, foreseen or foreseeable by an ordinary person in the position of the accused as a possible outcome: Taiters (1996) 87 A Crim R 507.
Section 23B was inserted in 2008. The previously existing section, s 23, referred both to unwilled acts (now dealt with in s 23A) and accident. No specific reference was made in s 23 to the situation where the victim would not have died from the act of the accused but for some particular abnormality, defect or weakness. However, it had become well‑established at common law that an accused must take his or her victim as he or she finds them (the 'eggshell skull' exception). In effect this meant that where death resulted from a violent act it was considered irrelevant that that death would not have occurred but for a particular weakness or abnormality in the victim: Mamote‑Kulang v The Queen (1964) 111 CLR 62, 79 (Windeyer J) and Timbu‑Kolian v The Queen (1969) 119 CLR 47, 59.
In this State the eggshell skull exception influenced the interpretation of the former s 23. In Ward v The Queen (1972) WAR 36 Virtue SPJ (delivering the judgment of the court also comprising Jackson CJ and Lavan J) said:
[W]here the injury is the direct and immediate result of a blow intending to cause some harm it is immaterial from the point of view of criminal responsibility that death only results because of some constitutional defect unknown to the person responsible for the blow.
But if there is in fact some supervening occurrence between the striking of the blow and the deceased sustaining the injury causing the death, the jury, as well as being directed that they must be satisfied that the inflicting of the blow caused the death, must be directed that they should acquit unless they are satisfied that the death was not an event occurring by accident in accordance with provisions of s 23.
And they should be directed that the death would be an accident if it was not intended by the accused, was not foreseen by him nor reasonably to be foreseen as the consequence of a man's conduct (46 ‑ 47).
In Ward the facts were that the accused had punched the deceased who had then fallen and hit his head on concrete. The punch was not the immediate cause of death, rather death was caused by a fracture of the skull. The trial judge had declined to leave accident to the jury and this was held to be wrong and the appeal was allowed.
The decision in Ward was influenced by the Queensland cases of R v Callaghan [1942] St R Qd 40 and R v Martyr [1962] Qd R 398. In Martyr the deceased died from a brain haemorrhage caused by a blow. Such a haemorrhage was not a usual or expected consequence of the type of blow inflicted and indicated a weakness peculiar to the deceased. It was held that the death was not an event caused by accident within the meaning of s 23. Philp J said:
If a non-fatal blow be struck and there supervenes upon the blow an unforeseeable happening whereby the actual fatal force is applied to the victim his resultant death occurs by accident. But that is not the case here, since here the death was the immediate and direct result of the willed act (415).
The issue of whether the eggshell skull exception should be formally incorporated into s 23 was considered by the Law Reform Commission of Western Australia in its report 'Review of the Law of Homicide' (Project No 97 September 2007). In that report the authors noted that notwithstanding the decision in Ward, the position in Western Australia was not entirely clear (153). There was thought to be a conflict between Ward and a refusal by the High Court to grant special leave in The Queen v Van Den Bemd (1994) 179 CLR 137. The Commission concluded that the eggshell skull exception was an appropriate qualification to the general test for accident and that because of conflicting case authority it was appropriate to amend s 23 to expressly incorporate that exception (155). Recommendation 21 of the report suggested a new s 23B in substantially the same terms as the section that now exists (157).
In Van Den Bemd the deceased died when, in the course of a fight in a bar, he was struck in the neck which caused a fatal subarchnoid haemorrhage. There was evidence that the deceased may have had a predisposition to a subarachnoid haemorrhage, either because of some natural infirmity or because he had consumed alcohol. In summing up to the jury the trial judge said that if a person dies as a direct result of force used by the accused 'without any other factor intervening' the accused was deemed to have killed the person even if death only resulted due to some particular vulnerability. The Queensland Court of Appeal allowed an appeal against conviction and in doing so said 'the test of criminal responsibility under s 23 is not whether the death is an "immediate and direct" consequence of a willed act of the accused, but whether death was such an unlikely consequence of an act an ordinary person could not have foreseen it' (see Van Den Bemd (141) (Brennan J). By majority (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, Brennan and McHugh JJ dissenting) the High Court refused an application by the prosecution for special leave to appeal. The reasons of the majority were brief and, in essence, were that 'the words of the section are inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland. The interpretation given to the section by that court favours the individual and reflects accepted notions of culpability and responsibility for criminal conduct'. This outcome appears to suggest that the eggshell skull exception had no application in regards to accident under the former s 23 notwithstanding Ward, Martyr and Mamote‑Kulang (to which the majority made no reference). In his dissenting judgment Brennan J strongly supported the previous cases that had applied the eggshell skull exception, and in doing so said that it applied where trauma inflicted by the accused causes the death 'and nothing has intervened'; 'there is no factor that warrants the treating of the death as accidental' (148). McHugh J was of a similar view (151 ‑ 152). The decision in Van Den Bemd has now been rendered largely irrelevant because of the amendment to s 23 in this State. Nonetheless, the references to intervening factors in Brennan J's reasons are instructive.
Section 23B was inserted by the Criminal Law Amendment (Homicide) Act No 29 of 2008. The stated purpose of the amending act was to give effect to the recommendations of the Law Reform Commission report, including those in relation to s 23. In the course of debates the then Attorney General said that the purpose of the new section was not to alter the existing law but to clarify it (Hansard, Legislative Assembly 8 May 2008, p 2724c ‑ 2743a). It is apparent that the intention was not to give the eggshell skull exception any greater application than it was previously understood as having in this State as a result of the decision in Ward. In those circumstances Ward continues to guide the proper interpretation of s 23B.
The question that arises in this case is whether there is significance in the use of the word 'directly' in s 23B(3)(a). That is, if death or grievous bodily harm is indirectly caused to a victim by the deliberate use of force in circumstances where that death or harm would not have occurred but for an abnormality, defect or weakness in the victim, is the defence of accident still available?
As has been noted earlier, s 270 of the Code provides that a person kills another when they cause the death of that person 'directly or indirectly'. In these circumstances the use of the word 'directly' in s 23B has apparent significance. If s 23B(3) is only intended to apply to those cases where a deliberate use of force has directly caused the death of the deceased, then in cases where death was indirectly caused (albeit that death would not have occurred but for an abnormality, defect or weakness in the victim) the question of foreseeability may still arise.
Counsel for the prosecution submitted that the rationale for the use of the word 'directly' was to deal with cases where there was an intervening occurrence. This cannot mean a significant intervening factor that broke the chain of causation, because if causation was not established s 23B would not arise. Counsel explained that she was referring to those cases where a person has died following an assault as a consequence of falling onto a hard surface such as a road or pavement. In its report the Law Reform Commission said that such cases could be distinguished from a typical eggshell skull case because the death is not caused directly by the violence but rather by injuries sustained from the fall. The cases in this regard include Ward, Hooper v The Queen [2000] WASCA 394, Taiters and Seminara v The Queen [2002] QCA 131. The Commission concluded that it was not possible to say that death was reasonably foreseeable in all cases where the victim had fallen over after being assaulted. This was because the foreseeability of death would vary significantly depending upon the precise factual circumstances. The Commission then went on to state:
The Commission has concluded that a person should be held criminally responsible in eggshell skull cases because the consequences of deliberate violence include that some people will suffer injury, serious injury or death as a direct result of the application of force. The Commissioners determined that it is not possible to exclude accident in cases where death may be indirectly caused by deliberate violence (for example, an intervening event), because in certain circumstances death may be so unexpected that there is insufficient connection between the blameworthy conduct of the accused and the resulting death (p 156).
It should be noted at this point that 'one punch' or 'fall' type cases do not necessarily always engage the eggshell skull exception. In many such cases the death is a result of the severity of the fatal injury and not due to any particular vulnerability of the victim. In that event the availability of the accident defence is not in doubt and the fact that death was caused indirectly is simply part of the factual circumstances relevant in considering whether that event was foreseeable. For the eggshell skull exception in s 23B(3) to apply, both limbs of that subsection must be satisfied. That is, the deliberate use of force must have directly caused the death and the death would not have occurred but for the particular vulnerability of the victim. However, the issue of the eggshell skull exception has certainly arisen in 'fall' cases, and it was suggested that the factual scenario of those cases should guide the interpretation of s 23B(3).

The issue then is whether the word 'directly' as used in s 23B(3) was intended to exclude only those cases of the factual nature referred to, that is 'one punch' or 'fall' type cases. It was suggested that, in such cases, there was a supervening or intervening physical event, namely the impact with the ground or other hard object, which did not break the chain of causation but could be said to be not reasonably foreseeable.

Application to this case

The State case was that the death in this case had been caused directly by the actions of the accused. Counsel for prosecution submitted that there was no intervening physical occurrence of the type referred to in the 'one punch' and 'fall' cases. In these circumstances, it being accepted that the actions of the accused would not have led to the death of the deceased but for the deceased's underlying severe heart condition, s 23B(3) applied and the defence of accident was excluded. However, counsel did accept that the question of whether the death was caused directly or indirectly was a factual one for the jury. It was also accepted that if the jury found that the death was caused indirectly, the defence of accident was open and should be left for their consideration.
In dealing with the question of whether death was caused directly or indirectly, the Law Reform Commission report and the cases referred to in it related to factual circumstances where the use of force had led to the deceased tripping or falling and then incurring fatal injuries from that fall. None of the cases referred to a circumstance where the deceased had suffered either a myocardial infarction (heart attack) or cardiac arrhythmia, allegedly as a consequence of an act of the accused. Nonetheless, I am unable to accept that there was any intention to limit the category of indirectly caused deaths to those referred to. The factual circumstances in which death or grievous bodily harm can occur are infinitely varied and there is no suggestion that the word 'directly' as used in s 23B(3) was intended to have anything other than its ordinary meaning.
In the present case the position was further complicated by the fact that although the conduct of the accused was alleged to involve a deliberate use of force, that was only part of the conduct and it was not suggested that that part alone was, or could have been, the cause of death. Section 23B(3) appears to have been formulated to deal with those situations where it is the deliberate use of force by the accused that is alleged to have caused death. The application of that sub‑section is more doubtful where force is only one component of a course of conduct which is said to have caused death, as is the case here.
However, even assuming that the act referred to in s 23B(3)(a) can encompass a course of conduct only part of which involves the deliberate use of force, it is difficult to see how that conduct here can be said to only be a direct cause of death. It would be at least open to the jury to find that the conduct of the accused did not directly cause the death of the deceased, but rather caused the deceased to become angry which then resulted in the physiological effects that led to his death. The intervening or supervening event could be the emotional response of the deceased to the conduct of the accused. That response would not break the chain of causation unless it was an over‑reaction (Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 412 (Deane & Dawson JJ), but that would not mean that it lacks the quality of a supervening event. In this regard, I do not accept that a supervening event can only be a physical event. The jury could conclude that the conduct of the accused indirectly caused death because that conduct was not the immediate or operating cause.
That there was intended to be a distinction between deaths caused directly and those caused indirectly is reflected in the choice of words, the fact that s 23B was not intended to change the existing law, that the decision in Ward had previously drawn such a distinction and that the distinction was also made in the Law Reform Commission in its report which recommended the introduction of s 23B. I am also not persuaded that a narrow view of the meaning of 'directly' should be taken. A distinction between physical and non‑physical supervening events is not required by the terms of the section and would be to impose a limitation that would not obviously serve the interests of justice.
In my view, this interpretation of s 23B accords with its evident purpose. The purpose of the eggshell skull exception in s 23B(3) is to ensure that those who cause death by the direct use of force against another person do not escape liability where death would not have resulted but for an underlying vulnerability in the victim. The intention is clearly to make such people responsible for their actions even where the consequences are greater than could be expected due to the vulnerability of the victim. But where death is indirectly caused questions of foreseeability would be expected to arise whether or not the victim is particularly vulnerable.
For these reasons I concluded that:
(1)the question of whether the death was caused directly or indirectly was one for the jury;
(2)it was open for the jury on the evidence in this case to find that death was caused indirectly;
(3)in that event it would be necessary for the jury to consider whether the death was intended or foreseen by the accused or foreseeable by an ordinary person in his position;
(4)in the event that the jury concluded that the accused indirectly caused the death of the deceased but that the death was not intended, foreseen or foreseeable the alternative verdict of unlawful assault causing death was available.
A question trail that incorporated these issues (as well as those relating to causation) was provided to the jury.