An Australian Evaluation of Causation in Fright Cases
| Date | 01 November 1993 |
| Author | Stanley Yeo |
| Published date | 01 November 1993 |
| DOI | 10.1177/002201839305700409 |
| Subject Matter | Article |
AN
AUSTRALIAN
EVALUATION
OF
CAUSATION
IN
FRIGHT
CASES
Stanley Yeo*
Summary The tests for determining causation are in an unsatisfactory state
in cases where the accused causes the victim to flee, whereby the victim
suffers injury. Recently, the Australian High Court in Royall v R examined
the nature and operation of these tests. This article analyses the findings of
the High Court and argues in favour of the foresight test.
Laying down helpful instructions on causation for the benefit of juries
has always plagued the courts. In the vast majority of cases, judges get
by with the direction that the accused's conduct must have 'significantly
contributed' to the harm suffered by the victim. tBut this direction is
inadequate in those cases referred to as fright, escape or self-preservation
cases in which the accused induces the victim to seek to escape from the
harm threatened by the accused, and the victim is injured in the course
of escaping. Was the accused's conduct still sufficiently connected to the
injury suffered for the purposes of establishing causal responsibility, or
did the victim's avoiding action break the causal connection between the
accused's conduct and the harm suffered? Clearly, the invocation that
the accused's conduct had to be a 'significant contribution' is too
rudimentary to assist the jury in answering this question. A more
sophisticated test is required for the task and in seeking this out, the
courts have inevitably had to come to terms with the precise nature of
the causal inquiry and its role in the criminal law.
An attempt was recently made by the High Court of Australia to
determine the test governing causation in fright cases. In Royall v R, the
appellant was convicted of the murder of a woman who, after a violent
altercation with the appellant, fell to her death from the bathroom
window of their sixth floor apartment.i The trial judge directed the jury
to make a finding of causation if it was satisfied that the appellant had
caused the deceased to have 'a well-founded and reasonable apprehension
that, if she remained in the bathroom, she would be subjected to' life-
threatening violence from the appellant and, in order to escape, she had
jumped
out
of the window.
The
High Court dismissed the ground of
appeal that this amounted to a misdirection.' Five sets of judgments were
• Professor of Law, University of New
England-Northern
Rivers, Australia.
1For the leading cases on this test, see RvMalcherek (1981) 2 All ER 422, at p 428;
RvCato (1976) 1 WLR 110, at p 117; RvHennigan (1971) 55 Cr App R 262. The
Australian High Court in Royall v R (1991) 65
AUR
451 endorsed it as a test of general
application.
(1991) 65
AUR
451.
3Amajority (comprising Deane and Dawson JJ in a joint judgment, Toohey and
Gaudron JJ in another joint judgment, and Mason CJ) regarded the direction on causation
as satisfactory while the other members (Brennan and McHugh JJ) considered that any
misdirection did not result in a miscarriage.
390
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