Legal Causation in the Criminal Law - Essay Example

THERE SHOULD BE MORE THAN ONE TEST FOR LEGAL CAUSATION IN THE CRIMINAL LAW I CAUSATION There should be a single test for legal causation in the criminal law. The following discussion substantiates this contention. In the past, the courts had to consider several tests, while deciding the issue of causation in criminal law, and the complexity of these tests made it difficult to identify the real perpetrator in a criminal offence. For example, establishing the actus reus, in offences, such as murder and physical harm, required evidence that the defendant had brought about the wounding or death of the victim as a matter of fact and law. In these cases, the prosecution had to establish a chain of causation between the prohibited outcome and the act or omission of the defendant. In some instances, the defendant would submit evidence proving an interruption in the chain of causation due to a new intervening act, thereby circumventing liability for the completed crime.1 In addition, the courts had favoured, albeit minimally, the ‘substantial cause’ test rather than the ‘reasonable foreseeability’ test, which was better suited to the law of causation. That test furnished a rationale for the existence of the ‘thin skull’ principle, as a distinct principle of causation that acknowledged an exception to the general norms of causal responsibility. 2 Moreover, the ‘thin skull’ principle eliminates unusual antecedent conditions of victims from the evaluation of causal responsibility. In general, assailants have to confront their victims, regardless of their condition. Thus, unforeseen and unforeseeable antecedent conditions are immaterial for the ordinary individual.3 Consequently, causal responsibility is attributed to the assailant, upon adopting the ‘substantial cause’ test. A Causation in Law In general, it would be legitimate to query whether the prohibited consequence had been a reasonably foreseeable outcome of the act of omission of the defendant. However, evidence regarding the presence of a novus actus interveniens, would cause the courts to endorse an approach that entailed the inquiry of whether the act or omission of the defendant had been the effective and important cause of the proscribed result.4 There are instances, wherein a defendant could be guilty of having caused a thing to transpire, despite the fact that his conduct was not the sole legal cause for such occurrence. For example, in R v Hennigan,5 the accused claimed to be not guilty of having caused death by dangerous driving. He contended that another driver had been more to blame, than himself, for the death. The Court of Appeal held that if his involvement was substantial, he could be made accountable for the death.6 Moreover, it held that even a 20% involvement of a party would be sufficient for attaching accountability. The objective of legal causation is to identity, precisely and unambiguously, the individual who is actually at fault. It endeavours to achieve this by determining the significant and operating cause. However, there could be an intervening act or novus actus interveniens. Where the defendant can foresee the intervening act, it constitutes a component of his plan. Hence, it is not deemed to be an intervention as the new cause.7 This has been illustrated in R v Pagett.8 Significantly, the courts have conceded that extraordinary medical negligence will be regarded as a novus actus interveniens that disrupts the chain of causation.9 In R v Pagett,10 the accused used his pregnant girlfriend’s body as a shield, whilst engaging in a gunfight with the police. The girlfriend was shot dead, in the melee, and the Court of Appeal held Pagett guilty of manslaughter. The actions of the accused had jeopardised the victim’s life, and the events that took place thereafter, were natural and foreseeable.11 B Novus Actus Interveniens The term novus actus interveniens is used for describing situations wherein the acts of a subsequent person interrupts the causal chain originating from a previous entity. However, the possibility exists of an actor dismissing the contributing responsibility of another.12 For instance, in R v Smith, the accused had stabbed a colleague with the bayonet of his rifle, puncturing his lung. This wounded person was dropped twice, on the way to the hospital. At the hospital, his condition was improperly diagnosed, and he was given emergency treatment that was contraindicated for his condition. This had a fatal outcome.13 The court held that the wound caused by the accused constituted an operating and substantial cause. In R v Hayward,14 the accused had pursued his wife, threatening her with a severe beating. In order to escape the violence of her wrathful husband, she fled with all possible haste. However, her chronic cardiac disability was aggravated by this sudden and great strain, culminating in her demise. The court held the husband guilty of manslaughter. In R v Blaue,15 the accused had stabbed a female. The latter, being a Jehovah’s Witness, did not consent to a critically required blood transfusion, leading to her death.16 The accused was convicted for manslaughter on the grounds of diminished responsibility. II NEW APPROACHES IN THE CONCEPT OF CAUSATION A Royall v The Queen In Royall v The Queen, McHugh J, provided very important insights into the issues pertaining to causation in criminal cases.17 This judge opined that despite the victim’s act not being a novus actus interveniens, it would be an instance of an onerous imposition of the criminal law to render the accused criminally responsible for the unintended harm. Moreover, the harm caused to the victim by the accused could not have been foreseen by any reasonable individual.18 Furthermore, this judge advocated the adoption of the reasonable foresight of the consequences test, with regard to cases, wherein the victim experienced harm on account of the subsequent act or omission of herself or a third party. Thus, McHugh J recommended that an accused had to be held morally culpable for the harm caused to the victim by his conduct and which had been intended or should have been foreseen.19 In addition, the majority of the presiding justices came to the decision that juries had to employ common sense, whilst making the accused causally responsible for the results of the wrongful act or omission. In addition, these judges supported the principle that an accused was not to be deemed criminally responsible for the harm caused to the victim, unless the wrongful act or omission constituted a major reason for the prohibited consequence.20 Moreover, it was held that the mens rea of the accused could be of relevance in establishing causation. Furthermore, it was opined that the notion of foreseeability was to be discarded while directing juries on the issue of causation. The jury was to be directed to determine whether the self-preservation attempt of the victim was a natural consequence of the conduct of the accused or a disproportionate response to the same.21 This makes it indispensable for the judiciary to arrive at a consensus regarding the methodology to be adopted for attributing causal responsibility in criminal matters that ensures an equitable balance between the competing interests discussed above. As such, the concept of proximate causation is nothing more than that of policy, and it cannot be distanced from mural culpability, fairness, or foreseeability.22 The decisions in Royall v The Queen,23 R v Hallett24 and similar cases, make it evident that the general approach to the law of causation, adopted by the Australian judiciary, vis-à-vis criminal matters, conforms to this view. B Perkins and Boyce Methodology It has been deduced by Perkins and Boyce that the case law promotes the view that an event has to be independent, intervening and unforeseeable if it is to be regarded as superseding. An event is deemed to be intervening, when it does not take place in the presence of the defendant or at the location where the act of the defendant takes effect, but becomes effective prior to or at the time of the damage. Moreover, an event is described as being independent, if it had not been caused in fact by, or as a response to, the wrongful act or omission of the defendant.25 This was the ruling in Isham v Dow’s Estate.26 As such, Perkins and Boyce noted that if a harmful outcome resulted from an intervening act, then the significance of foreseeability would be determined by the nature of the intervening act. Where the intervening cause constitutes a customary reaction to the situation, the consequence could be attributed to the original act, independently of the element of foreseeability. However, an uncommon response would be regarded as overriding if it was not rationally foreseeable.27 In addition, the intended consequences exception constitutes another exception to the three-part test. This exception states that a wrongful act or omission will be deemed the immediate cause for the consequences that the accused intended to result from the wrongful act or omission. This holds good, regardless of the intervention of a cause that is intervening, independent and unforeseeable.28 This exception is justified, as it would be extremely illogical to permit an individual to act with the aim of producing a certain result, and then to allow him to evade liability for that result, when it transpires, by claiming that it has not been proximate. As such, the condition of proximate causation relates to imposing reasonable restrictions upon liability for consequences that have been causally related to the conduct of the accused.29 This exception constitutes a judicial determination that such reasonable limitations do not encompass outcomes intended by the accused. This applies, even if an intervening, independent and unforeseeable event is integral to the intended consequence. Thus, causal responsibility in criminal matters is based on moral culpability. As such, the highest degree of moral culpability is the intention to cause harm. Consequently, foreseeability and fairness demand the imposition of reasonable restrictions on the liability of the defendant, vis-à-vis the consequences of his wrongful conduct. The fairness and foreseeability elements, per se, are integral to the query of whether an act or omission is the proximate cause of a prohibited harm.30 III CONCLUDING REMARKS The decision in Royall v Queen, attempted to balance the competing interests in the crime. The methodology submitted by Perkins and Boyce has achieved substantial success in striking a fair balance betwixt the need for flexibility and the doctrinal consistency of the law. Consequently, its inclusion into the Australian common law of doctrine of causation would drastically improve the system of justice and render it more equitable and effective. In accordance with the above discussion, it would be appropriate to implement a single test for establishing causation. It should incorporate mens rea or intention of the accused, independence of the act, intervening act causing the harm, and fair balance between the interests of the victim and culpability of the offender. This test would strike a fair balance between the need for flexibility and consistency in the law of causation. Read More