MLL214 Assignment 214135333

MLL214 Vernon Singh 214135333 1
Deakin University
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Faculty of Business and Law
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Last Name
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SINGH VERNON 214135333
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MLL214 CRIMINAL LAW BURWOOD Lecturer: HARLIS KIRIMOF
Tutor: FONTINI PANAGIOTIDIS
Assignment number / title Due date
CAUSATION ESSAY
(Number of words: 2051)
17/8/15
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Student’s signature: VERNON SINGH Date: 16/8/15
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this assignment
Comments:

Should there be One Test?
For years, the courts have debated about what can and what cannot be regarded
as a cause of a crime, specifically murder, through various systematic, laborious
factual and legal causation tests. But to this day, the tests for causation are
considered to be in disarray and are unhelpful or (even in the rare case that they
actually are helpful) slow and strenuous, in connecting the crime to the cause.
I believe that there should only be one new test for causation in Australia’s legal
system. I will outline why this is so by examining the flaws in the current system
and offering new suggestions, which of course will ultimately lead to the new and
improved test for causation.
Why Factual Causation is Unreliable
Inadequately Considers Multiple Causes
Factual causation, which relies on the ‘but for’ test, is impractical in situations
where multiple independent causes may bring about a single crime or harm that is
committed by the accused. Therefore, it is generally used in situations where a
single cause can be attributed to a crime or harm1
. The ‘but for’ test has proven to
1
Jill Lawrie, Annie Leeks, Gordon McKee ‘Test for Causation in Canada: But for,
but… Maybe not’ (2008) 19 Australian Product Liability Reporter (Newsletter) 102,
102.

be an approach that lacks common sense in certain situations2
. For example, the
event in Royall v R (‘Royall’) where the appellant’s violent attack induced the
victim to jump out the window would ask ‘but for’ the attack, the victim would
not have died3
. Clearly, this statement is extremely vague and cannot correctly
consider all matters in one perspective.
For example, what if the victim had a safer mode of escape? What if the victim
provoked the attack? But worse than those are: ‘but for’ the accused’s mother
giving birth, the defendant wouldn’t exist, thus this event would never have
occurred. In addition, it doesn’t directly answer the fact if the death was the
victim’s fault or the appellant’s fault. In Chappel v Hart, the court quoted Mason
CJ, who emphasised in March v Stramare Pty Ltd, that “causation for legal
purposes is concerned with allocating responsibility for harm or damage that has
occurred”. Thus, the statement ‘but for’ the defendant’s act, the injury would not
have occurred, is not sufficient in establishing causation4
.
The ‘But for’ Test is not the only Method
The courts have failed to make a thorough and logical distinction when applying
this test. The court rejected the proposition that in criminal cases the ‘but for’
test is the sole useful method in determining if the accused’s act is linked to the
victim’s injury or fatality. Instead, before the accused can be held criminally
liable, the link must be convincing and appropriate to justify attribution of causal
2
Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd (2011) 284 ALR 601, 617 [58].
3
Royall v R (1991) 100 ALR 669, 714.
4
Chappel V Hart (1998) 156 ALR 517, 524 [26].

responsibility5
. An exception to the ‘but for’ test was discussed in Walker Estate v
York Finch Hospital. The court held that it would be impossible to prove what a
victim in the causal chain would have done if the defendant did not commit the
act6
.
Overall, the ‘but for’ test should not be used as a test for causation as for the
reasons stated earlier.
Intervening Acts make it Difficult to Test
Causation
Self-Preservation should not be an Intervention
It appears that in some cases, this test favours the defendant and not the
deceased. In R v Lam (‘Lam’), it was held that an accused will not be criminally
liable for the death, if there is an intervening act that can reduce their criminal
liability7
. It seems that this area of law is not fully developed if the law is unable
to decide if the deceased’s act of self-preservation is at the fault of the
defendant. Mason CJ confirms this in March v Stramare, pointing out that an
5
Royall v R (1991) 100 ALR 669, 714.
6
Walker Estate v York Finch Hospital [2001] 1 SCR 647.
7
R v Lam (2005) 15 VR 574, 578 [13].

intervening act does not mean the injured party’s injuries are not a result of the
defendant’s conduct8
.
A case that seems to agree is R v Evans where the defendant’s verbal and physical
threats lead to the deceased jumping out of the window to preserve her own life.
The court affirmed that the defendant should be held answerable to the
consequences of the deceased’s fall in the same way if he literally threw her out
the window himself9
. Therefore, it seems that if a victim were to jump out of a
window in order to save their own life from a threat, their act of jumping can’t be
declared as a novus actus interveniens. But according to Royall this is because the
victim’s act was within proportion of the accused’s threat, so it would be
reasonable for the victim to take such extreme measures10
.
However, what proves my point that this area of law is not developed is the fact
that in Royall, Deane and Dawson JJ failed to mention what is proportionate and
what is reasonable under any given circumstance. For example, if A and B are
standing on top of a two meter building and A threatens B, who jumps off the roof,
is B’s act considered within proportion of A’s threat? If it was a 20 meter building,
would the reasons be different? Furthermore, how is it appropriate for a ‘but for’
or novus actus interveniens test to determine if B’s act was reasonable within
proportion? The ‘but for’ test could be applied incorrectly asking ‘but for’ A and B
not standing on top of a building, B would not have jumped of and died.
What is Reasonable and Proportionate?
8
R v Lam (2005) 15 VR 574, 578 [13], quoting March v Stramare Pty Ltd 99 ALR
423.
9
R v Lam (2005) 15 VR 574, 578 [18], quoting R v Evans.
10
Royall v R (1991) 100 ALR 669, 714 [23].

In most cases, I believe the judges fail to set strict criteria on what constitutes as
a reasonable mode and motive for escape. Stanley Yeo considers the application of
a two stage system that will aid in the determination of whether an intervening
act constitutes a novus actus interveniens11
. Although this method is used in tort
law, particularly in acts of negligence, it has potential in criminal cases. The first
stage asks was it reasonably foreseeable that the intervening act was likely to arise
from the defendant’s conduct? If the answer is it was reasonably foreseeable then
the defendant is liable12
. However, in Lam it appears the answer was no, meaning
that the defendant’s conduct was not causally linked to the deceased’s act and
instead the criminal liability was imposed on the accused13
.
The second stage asks if the intervening act, which is unlikely to arise from the
defendant’s conduct, could reasonably be foreseen as the very risk against which
the defendant had a duty of not harming the victim. If it was, the defendant is
liable, but if it was not, the defendant is not liable and the act constitutes a novus
actus interveniens14
. Furthermore, the defendant is not obliged from shifting
liability to the victim or other person performing the intervening act because of
the risk of such an act occurring was an aspect of what made the defendant’s first
act wrongful15
.
However, in Lam the defendant’s attempted to shift the liability to the deceased,
claiming that their threat at the bus stop was not related to the deceased’s act of
11
Stanley Yeo, Making Sense of Liability for Intervening Acts (1997) 5 Tort Law
Journal, 45
12
Ibid.
13
R v Lam (2005) 15 VR 574, 578.
14
Yeo, above n 10
15
Ibid.

jumping into the river, because the deceased jumping into the river was a new
intervening act and with this claim they succeeded16
. What the court failed to
mention was the victim is never in a logical and thorough state of mind when
fleeing from a threat, because they are attempting to preserve themselves, even
though the preservation is equally fatal as the threat.
Overall, novus actus interveniens shouldn’t be entirely disregarded, but the
victim’s act should never constitute as a novus actus interveniens.
Substantive and Operative Tests are Useful
to an Extent
This test is used if the ‘but for’ test has produced an illogical and unrealistic result
for causation. In R v Evans and Gardiner, it was argued that if something happened
which delayed the deceased’s recovery, then the death did not occur because of
the original cause, in this case, the wound. The court disagreed with this
statement, except in the rare circumstance where the second cause was so
overwhelming that it rendered the first cause to be disregarded17
. I also disagree
with the findings in Marsh v Baxter which similarly stated that if there is an event
of damage which occurs after a previous event of damage, then there is no legal
causation established18
.
I believe that in the new test, the first cause should not be disregarded in any
circumstance and be treated equally as important. To further illustrate this view:
16
R v Lam (2005) 15 VR 574, 578 [23].
17
R v Evans and Gardiner [1976] VR 523, 528.
18
[2014] WASC 187.

if A stabbed C in the leg but B stabbed C in the heart, they should both equally be
the cause of C’s death, instead of B being more (or the only one) liable than A. I do
agree with the decision in Lane v Chaplin (‘Lane’) that the deceased’s act of
running onto the road cannot be a substantive contribution to their own death, but
instead the substantive fault is of the defendant’s negligent driving19
. In most
circumstances, the victim should never be considered a cause of their death. This
would mean that if A stabbed C in the leg but then C stabbed them self in the
heart, A must still be criminally liable for C’s death.
The essence of Royall, I believe, supports this because it was stated that issue of
causation should be determined by using common sense20
. In addition to a common
sense approach, Lane stated that the parking of the bus could not be the cause of
the deceased’s death21
. Not only is this not substantial, but it is completely
unreasonable for the bus driver to be criminally (or in any other way) liable when
they were obeying the traffic laws. Furthermore, this is where the ‘but for’ test
would fail: ‘but for’ the bus not being parked on the street, the deceased would
not have died.
What Should Australia’s Test Be?
Perhaps Australia should take Canada’s negligence cases approach, but modify it to
also be used in our criminal cases. In Resurfice, the court set out two
requirements. First, it must be so impossible for the victim (or prosecution), due
to external and uncontrollable factors, to prove that the defendant’s negligence
19
[2015] TASFC 4 [11].
20
Royall v R (1991) 100 ALR 669, 714.
21
[2015] TASFC 4 [11].

caused the victim’s injury using the ‘but for’ test. Second it must be obvious that
the defendant harmed the victim and the victim therefore suffered because of
that harm22
. I believe this approach is more fair to the victim because it shows
that criminal liability can still be imposed on the defendant, despite not satisfying
the ‘but for’ test, usually because of its ambiguity and struggle in assessing and
pinpointing a causal connection.
Overall, there should be one new test where it does not ask ‘but for’, does not
consider interventions to be a novus actus interveniens and does not require the
cause to be substantive and operative. Instead, it should be that any number of
acts should be equally accounted for, meaning act B is not worse than act A and
thus, act A shouldn’t be disregarded. It is similar to the substantive test, except is
it is more just on the victim and defendant.
22
Jill Lawrie, Annie Leeks, Gordon McKee, above n 1, 102 quoting Resurfice [2007]
1 SCR 333.

MLL214 Assignment 214135333

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