Legal Causation Assessment Word Count: 1975

Causation in the criminal law is the connection between the accused’s actions and the consequence that
followed.1 It is a question of fact, and the Australian Courts have yet to provide a single test of legal causation in
the criminal law.2 While this is problematic in terms of overall consistency in the legal system, it does provide
the courts with the discretion to apply what would be the most appropriate test in the case before them. In
order to establish a causal connection in the Australian jurisdiction, both factual and legal causation must be
proven beyond reasonable doubt.3 The ‘but for’ test, or the sine qua non test, is commonly used to establish the
factual causation component, as established in R v White.4 The Australian Courts have refused to apply the ‘but
for’ test as the sole test of causation in criminal cases.5 This may be because it is not always capable of giving a
satisfactory answer to the question of causation when there is a supervening act, novus actus interveniens, that
may be capable of breaking the chain of causation or where there are multiple causes.6

The most persuading test of legal causation currently being used in Australian law is the view that in order to be
found criminally liable, the cause must be an operating and substantial cause.7 The operating and substantial
cause test was set out in R v Smith [1959].8 Lord Parker CJ said (at 42-43):
[I]f at the time of death the original wound is still an operating cause and a substantial cause, then the
death can properly be said to be result of the wound, albeit that some other cause of death is also
operating. Only is it can be said that the original wounding is merely the setting in which another cause
operates can it be said that the death does not result from the wound.9

The necessary elements of ‘substantial’ and ‘operating’ provides that the cause must be more than de minimis,
meaning ‘the law cares not for small things’.10 This indicates that a minor ‘operating event’ will not fall within this
test of causation, and the accused will not be held liable, preventing injustices from occurring.

While in R v Jordan (1956) the court does not does not directly refer to the operating and substantial cause test,11
it does provide an example of where the “original wounding is merely the setting in which” something else causes
the death. In Jordan, the medical evidence provided that the treatment was abnormal to the extent of being
described as ‘palpably wrong’, and as such, it was held that there was an ‘interruption of the chain of causation’,
and that the stab wound could not be held to be the operating and substantial cause of death. Therefore, the act
of the third party was considered to be a novus actus interviens, an intervention of a human activity that was

1
Mirko Bagaric, Ross on Crime (Thomson Reuters, 6th ed, 2013), 3.700.
2
Kenneth J Arenson, Mirko Bagaric and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions: cases and
materials (Oxford University Press, 4th ed, 2015) 2.7.2
3
Ibid 2.7.1
4
R v White [1910] 2 KB 124
5
LexisNexis Australia, Encyclopaedic Australian Legal Dictionary (at 10 August 2015), ‘but for test’.
6
Mason CJ: (1991) 171 CLR 506
7
David Lanham et al, Criminal Laws In Australia (Federation Press, 2006) 156.
8
R v Smith [1959] 2 QB 35
9
R v Smith [1959] 2 QB 35 (at 42-43)
10
Royall v The Queen (1991) 172 CLR 378
11
R v Jordan (1956) 40 Cr App R 152
 ‘regarded as the sole cause of the victim’s death’,12 which relieved the accused of criminal responsibility. The novus
actus interviens test is not one that can should be used alone, rather it works in conjunction with the substantial
and operating cause test. As discussed below, there are circumstances in which the substantial and operating test
requires a further test to cover the circumstances.

While the substantial and operating cause test is generally flexible to cover most causation issues, occasionally an
additional rule is necessary to supplement the test.13 For example, the ‘egg-shell-skull’ provides that you must
‘take your victim as you find him/her’. Where the victim suffers from a pre-existing physical or mental condition,
and dies from an injury inflicted by the accused, but a normal person would not have died, the chain of causation
will not be deemed to have been broken.14 This is despite the argument that the pre-existing condition, rather than
the injury inflicted, is the substantial cause of death.15 The leading case on this issue is
R v Blaue [1975],16 where a woman was stabbed and refused a blood transfusion due to it being against her
Jehovah’s Witness beliefs. Lawton LJ said (at 274):
The question for decision is what caused her death. The answer is the stab wound. The fact that the
victim refused to stop this end coming about did not break that causal connection between the act and
death. 17

Blaue was approved by the Victorian Court of Criminal Appeal in R v Evans and Gardiner (No 2) [1976],18 where it
was held that “the failure of the medical practitioners to diagnose correctly the victim’s condition, however inept
or unskilful, was not the cause of death”, and rather, it was the blockage of the bowel, resulting from the stabbing
11 months prior. Blaue and Evans and Gardiner (No 2) demonstrates that while the operating and substantive test
of legal causation is flexible, extra provisions and additional rules may be required to qualify or supplement the test
when the accused should be held to be criminally responsible for their actions.

Royall v The Queen (1991)19 is the leading High Court case on criminal causation in Australia. Despite it currently
being regarded as the highest authority of causation, it fails to provide a ‘precise set of principles’ to follow when
determining legal causation.20 The majority approved a statement made by Burt CJ in Campbell v The Queen
[1981],21 that the issue of causation is to be determined by the jury ‘applying their common sense to the facts’,
rather than it being a ‘philosophical or scientific question’ and the majority further agreed that the accused’s
conduct must have contributed ‘significantly’ to the victim’s death22, but it was provided that a further test was
necessary. This demonstrates the limited scope in which the substantial and operating cause test can be applied

12
R v Pagett (1983) 76 Cr App R 279, 288.
13
David Lanham, above n 7, 158.
14
Kenneth J Arenson, above n 2, 2.7.2.1.
15
David Lanham, above n 13.
16
R v Blaue [1975] 61 Cr App R 271.
17
R v Blaue [1975] 61 Cr App R 271, 274.
18
R v Evans and Gardiner (No 2) [1976] VR 523.
19
Royall v The Queen (1991) 172 CLR 378.
20
Causation in the criminal law: a search for doctrinal consistency – Kenneth J Areson
21
Campbell v The Queen [1981] WAR 286,, 161.
22
R v Pagett (1983) 76 Cr App R 279.
 exclusively when there are circumstances that complicate the case, and as such further instruction may be
required, including: multiple possible causes, an intervening act, or where the result has been caused indirectly.23
This was the extent to which the majority agreed upon, with two major arguments for the natural consequence test
and the reasonable foreseeability test being put forth in the discussion.

The natural consequence test was favoured by Mason CJ, Deane and Dawson JJ in Royall. Mason CJ outlined the
principle as:
… where the conduct of the accused induces in the victim a well-founded apprehension of physical
harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape
and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct.24

Mason CJ leaves open to question as to ‘whether it is necessary for the prosecution to establish also that the mode of
escape … is a natural consequence’.25 While he accepted that the natural consequences test was linked to the concept
of foreseeability, he said that in most circumstances, that phrase was apt to confuse the jury. Deane and Dawson JJ
went further to suggest that an overreaction, by the victim, to the threat of violence may be capable of breaking
the chain of causation.26 Deane and Dawson JJ’s suggestion appears to be the most viable way of applying this
test, as it proposes that only where the victim’s actions are reasonable in the circumstances should the accused
be held legally responsible for the victims actions.

In contrast, McHugh J favoured a reasonable foreseeability test. This requires the consequence, and in the the
case of Royall the death of the victim, to be within the normal range of expected outcomes for the accused’s
actions. He argued that what was ‘reasonably foreseeable’ depends on the circumstances in which the actions on
the part of the victim took place, and even an ‘irrational act’ of the victim could result in the jury determining that
the act was ‘reasonably foreseeable’ and therefore capable of not breaking the chain of causation27. As such, the
accused could be held liable, even if the victim overreacted to the threat of violence.

While in the case of Royall, both the reasonable foreseeability test and the natural consequence test would result
in the accused being held criminally responsible for the death of the victim, the reasonable foreseeability test
presents two major issues. First, the accused could be held liable for the death of the victim, even if the action
taken by them was not reasonably foreseeable, and second, presenting the jury with the responsibility of
determining what was reasonably foreseeable in the circumstances appears to be immensely inappropriate and is
likely to result in unfair verdicts.28 While the substantial and operating cause test may only be capable of
providing a viable test where the issue of causation is not complicated by further circumstances, the test
stipulated by Deane and Dawson JJ appears to be the most feasible secondary test to work in conjunction with
the substantial and operating cause test.

23
Victorian Criminal Charge Book by the Judicial College of Victoria
24
Royall v The Queen (1991) 172 CLR 378, 21
25
Royall v The Queen (1991) 172 CLR 378, 21
26
Royall v The Queen (1991) 172 CLR 378, 20
27
Royall v The Queen (1991) 172 CLR 378, 48
28
David Lanham, above n 15, 167.
The state of legal causation in the Australian jurisdiction is convoluted by various tests present in the common
law. The Australian Courts have yet to provide a single test for determining legal causation, which is problematic
as it produces inconsistencies with how cases are determined and how juries are instructed. Throughout this
analysis of various precedents within the Australian common law, the most realistic and practical way forward
appears to be continuing with the use of the substantial and operating cause test. However, as discussed above,
this option is only reasonable and available where the issue of causation is not complicated by further facts.
Where there are extenuating factors, it appears appropriate to apply the natural consequence test as considered
by Deane and Dawson JJ in Royall, where the actions of the accused has induced the victim into such a state of
fear, that it makes it a ‘natural consequence’ for them to want to escape, however, an overreaction on the part of
the victim will not hold the accused criminally responsible for the victims actions.
While even these suggestions are flawed, there has yet to be one single test that can be applied to the issue of
legal causation, and as such, this appears to be the most appropriate way forward. This will provide for a
coherent application of the tests available when an issue of legal causation comes before the courts, and is
unlikely to produce injustices.