Conclusion to Homicide

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This article deals with a number of side issues relating to homicide.

  • Causation
    • In the case of multiple causes, the test to be used for whether the causation element of the actus reus is satisfied is the 'substantial cause' test, which is formulated as follows:
      • If, at the time of death, the defendant's act was a substantial and operating cause of the death, then the defendant will be deemed as causing that death: Royall.
        • This extends to a situation where the act of the defendant brought about a further event (eg, exposing the victim to a new danger, causing the defendant to take certain actions) which actually caused his death: Royall; Hallett.
        • This also extends to any acts done 'involuntarily', or in self defence, in response to the defendant's action: Pagett.[1]
        • The chain of causation will only be broken if a completely coincidental event has occurred, such as an act of god (:Hallett), or if the victim completely overreacted: Royall.
    • The eggshell-skull rule applies in criminal law - the defendant takes his victim as he finds him, with all special vulnerabilities: Blau.
  • Medical Treatment
    • In order to break the chain of causation, reckless medical treatment is required. Negligence or incompetence is not enough: Cheshire.[2]
    • If a competent adult patient makes a clear direction which the particular situation, the doctor must obey it: Hunter and New England Health Service v A.[3]
      • Doesn't apply to unlawful things.
  • Euthanasia
    • Euthanasia is illegal. Depending on the degree of involvement, a person who aids another with euthanasia will be guilty of murder/manslaughter or aiding suicide.

This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 489- 511.

Causation in Homicide

[4] One of the components of an actus reus of a punishable homicide offence is that the act/omission caused the death of another. Causation can be quite a complex issue, especially in circumstances where the death did not occur immediately after the act, or where there are several legitimate causes.

The correct 'test' for causation was discussed in Royall:

  • The 'operating and substantial cause' test - was the defendant's conduct was a substantial or operative cause of death?
  • There is no need for a single cause of death. Rather, there is a 'chain of events' which all contribute. As long as the defendant's action was a part of that chain (and the chain wasn't broken by an intervening event), he will be considered as causing the injury.

This was also discussed in Hallett:

  • If a defendant causes a situation, which then puts the victim in danger of being affected by another perilous situation, and the victim ends up dying because of the new situation, the chain of causation remains unbroken (since the first is still a substantial cause).

Eggshell-Skull Rule

The eggshell-skull rule has been incorporated into criminal law in Blau:

  • A person who used violence on another had to take his victim as he found him.
  • A special vulnerability of the victim (eg, a prior injury or religious beliefs) will thus not break the chain of causation.

Means of Escape

[5] In Royall, Mason CJ stated that the mode of escape must be a natural consequence of the deceased’s apprehension for his safety. This refers to a situation where there are several modes of escape (in Royall, there was only the window).

A different situation arose in Rik:[6]

  • Facts: the defendant threatened the victim on a rail platform. The victim jumped onto the train tracks, saw an approaching train, and made a decision to keep going and try to jump onto the platform. He was struck by the train and killed.
  • Held: it is ultimately held to be a matter for the jury to decide, upon the facts of each case, whether the victim’s response was reasonable in the circumstances.

Acts of a Third Party In Self Defence

[7] In accordance with the 'substantial cause' test, the chain of causation might not be broken even if the act that immediately results in fatal injury is the act of third party.

This was discussed in Pagett:[8]

  • Facts: The defendant was using the victim as a human shield whilst he shot at police. The police returned fire, hit the victim by mistake and the victim died.
  • Held: an involuntary act by a third party (such as self-defence) which is really caused by the act of the defendant do not break the chain of causation. This would apply even if the victim was just another innocent bystander killed in the shooting, as opposed to being used as a human shield.

Medical Treatment

Medical Intervention and Breaking the Chain of Causation

[9] An obvious issue which arises with medical treatment and homicide is what happens if a defendant harmed a victim in a way which should not inevitably have resulted in death, but nevertheless did because of inadequate medical treatment.

  • In order to break the chain of causation, reckless medical treatment is required. Negligence or incompetence is not enough.[10]

Even before this principle was introduced, the 'substantial cause' test usually still operated to limit the scenarios in which medical treatment has an effect on causation. The reluctance of the court to allow medical treatment to break the chain of causation was discussed in Melcherek v Steel:[11]

  • Facts: doctors of of two victims decided to switch off the life support after there was serious damage to the brain. The issue was whether this was an intervening act to the original acts of the respective defendants.
  • Held: the original act of the defendant was still an operating and substantial cause of death. The treatment by doctors does not break off this chain.

Note that now, s 33 of the Human Tissue Act 1983 (NSW) deals with when a person is officially declared dead (basically, irreversible cessation of the brain or blood circulation). This means that if a defendant brought about such harm to a victim, a doctor will not be breaking the chain of causation by withdrawing life support.

The issue of causation and medical treatment was also discussed in Smith:[12]

  • Facts: after being harmed by the defendant, the victim was dropped twice by the medical staff and his wound wasn't properly assessed which led to the wrong treatments being used, all in all decreasing the victim's chance of recovery by 75%.
  • Held: the original act of the defendant was still an operating and substantial cause of death. The treatment by doctors does not break off this chain.

In the process of reaching the decision in Smith, the Court also held that the following decision in Jordan was unique to its own facts:[13]

  • Facts: in treating a basically healed victim, the medical staff administered a substance despite the fact than an intolerance was discovered, and it was also administered in huge quantities.
  • Held: the chain of causation was held to have been broken due to ‘palpably wrong’ medical treatment.

Liability of the Medical Profession

[14] Besides the situations discussed above (where the medical staff are treating a victim of an attack), the general rule is that where the defendant ‘hastens’ the death of the deceased, they are responsible in law for causing it.[15]

  • However, if a patient is terminally ill (and nothing could be done), the medical staff are entitled to do all that is necessary to relieve the patient’s pain even if this shortens the life of the patient.[16]

Treating A Patient Against Their Wishes

[17] An individual is entitled to refuse medical treatment in whatever circumstances. [18] This is because the individual’s right of self-determination prevails over their need for medical treatment.

  • The decision must be respected if it is made by a competent adult, is clear, and covers the particular situation.[19]
  • A doctor insisting on carrying out treatment against the wishes of the patient will be guilty of battery.

Respecting a Patient’s Wish to Continue Treatment

[20] Accordingly, the wish of a patient to undergo or continue a certain treatment must be respected as well.

  • However, this does not apply to switching off life sustaining machines prematurely (ie, before the person is dead as according to the legislation). A doctor prematurely removing life-sustaining nutrition will be guilty of murder.[21]

Withholding and Discontinuing Treatment

[22] Where the patient is incapable of making a decision of their own accord, the Supreme Court of NSW has a parens patriae jurisdiction to do what is ‘in their best interests’.[23]

  • Discontinuation of life support has been held to be not an act, but an omission, and will not be unlawful unless it constitutes a breach of duty to the patient. If there is no hope of recovery, than the medical care is no lo longer in the patient's best interest.[24]

NSW contains guidelines for end-of-life care and decision making:

  • Advocates a ‘consensus-building approach’ involving both doctors and family.
  • Patient’s best interests put first.
  • Rely on NSW Supreme Court in its parens patriae jurisdiction as a last resort.


[25] Euthanasia is the act of ending a life in order to relieve the sufferer from pain. The general rule regarding euthanasia is that even where a patient makes a conscious decision to end their life, anyone who helps bring about their death is guilty of homicide or aiding and abetting suicide, depending on the part they play in the events leading up to the death.

  • Under s 31C of the Crimes Act 1900 (NSW), aiding and abetting suicide carries a maximum punishment of 10 years.
  • However, any sort of direct help would probably result in a charge of murder or manslaughter.

[26] In addition, some patients are not mentally competent enough to make the decision to die, which would make anyone who helped them commit suicide guilty of murder as opposed to aiding suicide. This was discussed in Justins:[27]

  • The central issue is whether the deceased has the mental capacity to commit suicide.
    • If yes: complete acquittal – no actus reus for homicide.
    • If no: the accused caused the deceased’s death.
  • In terms of what constitutes 'capacity', the question is whether the deceased had the capacity to make a reasoned, but not necessarily informed or rational, choice.

Euthanasia and the Medical Profession

[28] As stated above, euthanasia is prohibited in Australia. However, there is an important distinction between discontinuing treatment, and actively bringing a patient’s life to an end.[29]

Some attempts to legalise euthanasia by medical practitioners were made in the Northern Territory, but they have been overturned by the Criminal Code.


This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1983) 76 Cr App R 279.
  2. [1991] 3 All ER 670.
  3. [2009] NSWSC 761.
  4. Textbook, pp. 489-501.
  5. Textbook, p. 501.
  6. [2004] NSWCCA 282.
  7. Textbook, pp. 501-2.
  8. (1983) 76 Cr App R 279.
  9. Textbook, pp. 502-3.
  10. Cheshire [1991] 3 All ER 670.
  11. [1981] 2 All ER 422.
  12. [1959] 2 QB 35.
  13. (1956) 40 Cr App R 152.
  14. Textbook, pp. 503-4.
  15. Dyson [1908] 2 KB 454.
  16. Adams [1957] CrimLR 365.
  17. Textbook, pp. 504-5.
  18. St George’s NHS Trust v S [1998] 3 All ER 673.
  19. Hunter and New England Health Service v A [2009] NSWSC 761.
  20. Textbook, p. 505.
  21. R (Burke) v General Medical Council [2006] QB 273.
  22. Textbook, pp. 505-6.
  23. Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549.
  24. Airedale NHS Trust v Bland [1993] 2 WLR 316.
  25. Textbook, pp. 506-7.
  26. Textbook, pp. 507-8.
  27. [2010] NSWCCA 242.
  28. Textbook, pp. 508-9.
  29. Airedale NHS Trust v Bland [1993] 2 WLR 316.
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