R v Blaue (1975)

English Criminal Law

R v Blaue
‘King Mannaseh’ by Unknown Artist

The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.

In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death. While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property. When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.

In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion, at which point the deceased explained that due to her religious disciplines, she would be unable to receive foreign blood, and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.

Before passing, the deceased also acknowledged such a position in writing, and so at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.

Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.

After returning a verdict in favour of the deceased, the appellant appealed, after which the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:

“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”

It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, and that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit. It was for this fundamental reason that the appeal was dismissed and the murder charge upheld.

R v Cheshire (1991)

English Criminal Law

R v Cheshire
Image: ‘The Surgeon’ by Jose Perez

Novus actus interveniens’ or breaking the chain of causation, is a maxim often relied upon in criminal cases, however, while the principle itself is simple enough, the facts required to establish it prove far from clear. In a case involving the potentially fatal shooting of an unwitting victim, the surgical aftercare provided, became subject to the scrutiny of the courts when death followed soon afterwards.

In late 1987, the deceased was party to an argument with the now appellant, which resulted in three shots being fired from a concealed handgun. The first bullet was fired in the air above them, while the second and third entered the victim’s upper thigh and abdomen, shortly before the appellant fled from the scene.

Having been rushed to hospital, the surgeons cleaned up both wounds, while reconnecting the thigh bone and undertaking an extensive bowel resection in order to prevent further complications. In the weeks following his admission, the deceased complained of breathing difficulties, at which point a tracheotomy was performed, after a simple ventilating machine had failed to properly address the problem.

Around a month later his condition deteriorated, and so investigative measures were taken to inspect the stomach wound, while the deceased began to suffer with vomitous discharge and chest infections, later resulting in fluid permeation of the lungs. It was then, after numerous complaints and several visits by the consultant general surgeon, surgical registrar, orthopaedic registrar and finally the house surgeon, that his breathing pattern was recognised as ‘stridor’, a disturbing vibration typically associated with an obstruction of the larynx or windpipe.

Unfortunately, despite the intervention of a medical registrar and urgent cardiac massage, the deceased died as a result of mucus blockage of the windpipe resulting from excessive tracheotomy scarring, upon which the resident pathologist concluded that:

“I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.”

At the trial, the judge directed the jury to establish a conviction of recklessness on the part of the hospital, which if proven, would support the breaking of the chain of causation on grounds that the hospital had failed to properly identify the actual cause of death, and that in doing so, the appellant’s actions were now secondary to the death of the victim. After a degree of jury deliberation, a verdict was passed in favour of the hospital, before the appellant challenged the judgment under s.23 of the Criminal Appeal Act 1968.

Presented to the Court of Appeal, consideration was given to the principle of recklessness and gross negligence, while particular reference was made to the words of Goff LJ in R v Pagett, who said:

“Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result…nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility.”

However in R v Smith it was also argued by Parker CJ that:

“It seems to the court that if 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 the result of the wound, albeit that some other cause of death is also operating. Only if 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. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”

Before Lane CJ later reiterated in R v Malcherek that:

“[T]he fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”

With careful appreciation of the medical evidence, along with reasoned accommodation of the high threshold of surgical margins of error, the Court held that despite the alleged negligence of the hospital staff, there was simply insufficient evidence to uphold the application of ‘novus actus interveniens’, and that even with the best medical team on hand to treat the deceased, the fundamental cause of death preceding the complication was, and remained, the shooting by the appellant, and so on those grounds the appeal was dismissed and the original murder charge upheld.

Criminal Law Terminology

Insight | February 2017

Criminal Law Terminology
Image: ‘Empty Kingdom’ by Sean Phillips

A crime can be defined both as any wrongful act causing harm to another person, or damage to another’s property, and any act that contravenes those proscribed by common law or statute. Similarly, criminal acts are actions requiring either rehabilitation of the offender and compensation for damages to property, or the victim’s psychological state,  which can also include incarceration in more serious cases (this can also be observed from a moral perspective inasmuch as actions that violate the rights and duties owed to the community), while the perception of criminal behaviour is also subject to various political and social factors, therefore can vary across nations.

A criminal definition is necessary in order to help distinguish a moral wrong from a civil wrong, and so criminal activity tends to be associated with some element of punishment when bought to trial, whereas a civil wrong is not considered an act of deviance, but a conflict of perspectives or contractual obligations.

The purpose of criminal law is to distinguish between the two previously mentioned wrongs, in order to help protect the public and the State from acts of aggression, or violent rebuttal; while the objectives of criminal sentencing are to allow an individual the opportunity to reflect upon any criminal act undertaken, and to help the public observe justice being done when miscarriages occur. In addition, the larger aim of sentencing is to maintain public order and minimise anxiety that could adversely affect productivity, and to help reduce crime through deviant punishment and protection of the public. Shown below are some common phrases used within criminal law:

Thin Skull Rule

This phrase means that despite any unforeseen vulnerabilities in a victim being bought to light during trial (or at case preparation stage), the amount of punishment or (tortious) compensation would remain as full as it would be should, or had, the victims been ‘normal’. An excellent case for this is R v Hayward, where the victim to a brutal domestic beating died of natural causes, yet the offender was held criminally liable.

Act of God (or Naturally Occurring Interventions)

These would constitute naturally occurring disasters such as floods, storms, bolts of lightening etc. that prevent criminal liability being placed upon a person.

Third-Party Interventions

Typically a lawsuit procedure, where the court allows a third person not originally part of the case, to become involved through joining either the plaintiff or defendant.

Medical Interventions

A phrase used to describe a medical procedure serving as an intervening act, which could break the chain of causality when establishing the cause of a victim’s death or serious injury. A case reference for this would be R v Smith, which involved the dropping of an injured solider on the way to hospital, an act alleged to have contributed to his death.

Breaking the Chain of Causation

A process whereby the manifestation of a victim’s actions or moral beliefs, exacerbate the wounding (and in some cases instigation of a death). A useful case for this is R v Blaue, where a Jehova’s witness refused a blood transfusion after being stabbed, thereby legally dying as a result of blood loss, instead of knife inflicted wounds.

Defendants Conduct Culpable

A term used where a defendant engages in set of behaviours or actions, that in and of themselves, bring harm to them, without the actions or inactions of another. In this scenario, a person or defendant cannot readily portray themselves as a victim, rather lacking mental capacity or sound mind and judgment. A case example would be R v Williams, where the victim was killed by stepping in front of a moving vehicle driven by an uninsured and unqualified driver, resulting in their criminal liability.

Actus Reus

The part of a crime that is concerned with identifying the conduct that criminal law deems harmful. It also describes what the defendant must be proven to have done (or failed to do) in circumstances that produce consequences attributable to moral guilt. The case of R v Miller provides that when waking up drunk to find his lit cigarette had started a fire in the home in which he was staying, the defendant simply moved rooms, rather than attempting to extinguish the fire; translating that his actions resulted in an act of arson.

Mens Rea

A term used to describe the element in a criminal offence relating to the defendant’s mental state. Examples of mens rea include intention, recklessness, negligence, dishonesty or knowledge. This legal principle plays a crucial role in ensuring that only blameworthy defendants are punished for their crimes, however, mens rea is not equivalent to moral guilt. A useful case example is Collins v Wilcockwhere it was found that when attempting to question a member of the public, a police officer grabbed their arm with the aim of physically restraining and harming them, as opposed to getting their attention.

Intention

How a defendant determines a consequence of his actions when he acts with the aim, or purpose, of producing that consequence. The case of R v Haigh showed that while the appeal jury had clear evidence a mother had intended to smother her child, a lack of mens rea reduced the verdict from murder to manslaughter.

Recklessness

When a defendant was aware of a risk attached to their conduct, and that the risk was an unreasonable one to take. A useful case for this is R v G, where the judges held that a minor was not capable of possessing the reasoning ability of an adult.

Negligence

When a defendant has behaved in way a reasonable person would not (see also recklessness). A perhaps extreme example of this is R v Adomako, where an anaesthetist failed to observe an oxygen supply disconnection that resulted in his patient’s death.

Novus Actus Interveniens 

A term used to describe a break in the chain of causation bought about by a new action, that alters the effect of injury (or death) of a person in such a way that alters the identity of the person culpable; or a free and voluntary act of a third party, that renders the original act a substantial and operating cause of injury or death. An example of this would be R v Jordan, where a stabbing victim had a fatal allergic reaction to a hospital administered drug, therefore altering the cause of injury and subsequent death; and in R v Kennedy, where the supply of heroin did not constitute liability for a users death.