Royall v The Queen (1991) 172 CLR 378

In Royall v The Queen,¹ the High Court upheld Royall’s murder conviction. Royall’s actions were the substantial or significant cause of the victim’s response of jumping to her death, maintaining the chain of causation. The Court clarified that a victim’s reasonable act of self-preservation does not sever causation, affirming Royall’s criminal responsibility.

COURT: High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

PARTIES: Royall (Appellant); The Queen (Respondent).

PROCEDURAL HISTORY: On appeal from the NSW Court of Criminal Appeal.

• In the Supreme Court of NSW, Royall was convicted of the murder of Healey, as defined by s 18 of the Crimes Act 1900 (NSW) (‘Crimes Act‘). Royall was sentenced to penal servitude for life pursuant to s 19 of the Crimes Act.²
• Royall’s appeal to the NSW Court of Criminal Appeal challenging the jury’s findings on the issue of causation was dismissed (Gleeson CJ, Wood and Newman JJ). Royall argued Healey’s actions constituted an intervening act (novus actus interveniens).

FACTS:

1. On the 6 November 1986, Healey fell six floors from an apartment window to her death after a violent argument with Royall.³ Prior conflict between them led to Healey moving out after living together for four months.⁴
2. Healey had returned to the flat, where Royall admitted that they ‘had a blue’, and punched Healey twice in the face and in the nose.⁵ Evidence showed forced entry into the bathroom and of a bloody struggle.⁶
3. The Crown presented Royall murdered Healey by either: (1) pushing her out of the window (2) he attacked her in the bathroom, and she fell in the course of avoiding the attack; (3) she held a reasonable apprehension of life-threatening violence; she jumped from the window.⁷

GROUND FOR APPEAL:

The principal ground for appeal was that the trial judge misdirected the jury on the issue of causation.

ISSUES:

Whether the appellant’s actions were a legal direct cause of the victim’s death, who fell from a sixth-floor window during a violent argument, or did the victim’s actions break the chain of causation (novus actus interveniens)?

APPLICABLE LAW:

THE CRIMES ACT 1900 (NSW) — MURDER

Section 18 of the Crimes Act 1900 provides for murder:

(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.⁸

In any charge of homicide, there has to be a causal connection between the accused’s conduct and the death of the victim.⁹ However, the test for causation in homicide is not defined in the statute, with recourse to this case as a leading authority.¹⁰

COURT’S REASONING:

The appellant contends that neither the trial judge nor the Court of Criminal Appeal sufficiently defined the act alleged to have caused Healey’s death, complicating the assessment of causation and intent (at 354).¹¹ Mason CJ noted at 382 that while trial judges generally need not focus extensively on identifying the precise act causing death, but there is,¹² citing Barwick CJ in Ryan v The Queen at 217–218:¹³

… [A] logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s 18 are to be satisfied.¹⁴

However, the trial judge clearly identified the three acts alleged to have been done by the applicant which may have led to the deceased’s death.¹⁵ Mason CJ said at 388 that of the three ways in which the Crown case was left to the jury on the issue of causation, only the third calls for comment:¹⁶

An act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connexion between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation.¹⁷

Mason CJ observed at 387 that the governing principle has been articulated in various ways,¹⁸ with the trial judge’s direction based on that endorsed by the Full Court of the Supreme Court (NSW) in R v Grimes and Lee (1894)15 NSWR 209,¹⁹ where the deceased jumped from a railway carriage to escape the accused, who had assaulted and robbed him.²⁰

His Honour further explained that the key element in the chain of causation is whether the accused’s conduct created a well-founded and reasonable apprehension of danger in the victim, prompting an attempt to escape that ultimately led to their death.²¹ According to this approach, it is sufficient that the victim’s apprehension was well-founded and reasonable; there is no requirement that the method of escape itself be reasonable.²²

It was noted by the Court that common law has sometimes placed greater emphasis on the mode of escape chosen by the victim to reinforce the causal link between the accused’s conduct and the victim’s death:²³ Reg v Pitts (1842) Car & M 284 (174 ER 509),²⁴ R v Pagett (1983) 76 CrAppR 279.²⁵

In Reg v Pitts²⁶ and R v Pagett²⁷ it was held that a reasonable act performed in self-preservation to escape an accused’s violence does not sever the causative connection.²⁸ Here, reasonable is understood in light of the defendant’s conduct and the danger it instilled in the victim.²⁹

An alternative formulation is whether the victim’s act leading to their death was a natural consequence of the accused’s violence, something that was highly likely to occur.³⁰ This test was articulated in Reg v Beech (1912) 7 CrAppR 197,³¹ per Darling J, where the victim was injured after jumping out of a window to escape a man she had reason to fear.³²

While R v Roberts (1971) 56 CrAppR 95³³ further clarified this principle, stating that the relevant question is whether the victim’s act was something reasonably foreseeable as a consequence of the accused’s conduct.³⁴ If the act was so unexpected that no ‘reasonable’ person could have foreseen it, then it is considered voluntary and breaks the chain of causation.³⁵

CAUSATION TESTS:

Four tests were identified by the High Court for establishing legal causation:

1. natural consequence test,
2. reasonable foresight of consequences test,
3. substantial cause of death test,
4. novus actus interveniens test.³⁶

1. Natural Consequence Test

Was the voluntary act of the deceased a natural consequence of the previous acts of the accused?

Mason CJ discusses the ‘natural consequence’ test at [19]–[22] which determines causation by looking at the acts done by the victim and the consequences of those acts.³⁷ This test is suited for circumstances in which the victim tries to escape for the purpose of self-preservation (see Reg v Beech).³⁸ His Honour noted at 388 that there is no requirement that the steps taken to escape should be reasonable, it is enough that the victim’s apprehension of danger is well-founded and reasonable:

The key element in the chain of causation, as contemplated by the direction, is that an accused’s conduct creates in the mind of the victim a well-founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death.³⁹

The principle is best formulated as follows per Mason CJ at 389:

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.⁴⁰

Mason CJ concluded that falling from the window to escape from the bathroom in consequence of a well-founded apprehension of physical harm would be a natural consequence of the Applicant’s conduct.⁴¹ His Honour seeing no difficulty in the jury inferring that the Applicant had foresight of that natural consequence.⁴²

2. Reasonable Foresight Test

Was it reasonably foreseeable that the deceased may die? 

The ‘reasonable foreseeability’ of the result was considered by the High Court as another test, citing R v Roberts,⁴³ per Stephenson LJ at 102 in a case of an assault occasioning bodily harm: ‘[t]he test is: was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?’⁴⁴ McHugh J at [43] cited the Full Court in R v Hallet⁴⁵ at 149:

“Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation.” As I have already pointed out, however, for the purposes of the criminal law, causation cannot be separated from questions of moral culpability. And a person should not be regarded as morally culpable in respect of harm which he or she did not intend and which no reasonable person could foresee.⁴⁶

3. Substantial Cause of Death Test

Was the accused’s conduct sufficient to be a substantial cause of death?

The ‘substantial cause of death’ test (or ‘operative cause of death’ test) examines whether the conduct of the accused is a contributing and operating cause at the time death occurs.⁴⁷ Brennan J cited R v Pagett⁴⁸ at 288:

The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim.⁴⁹

The majority of the High Court applied the ‘substantial cause of death’ test (while McHugh J preferred the ‘reasonable foresight’ test), per Deane and Dawson JJ at 410–411 [16]–[17]:

Where … the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. …

Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: Pagett (1983) 76 Cr App R 279.⁵⁰

The accused’s conduct need not be the sole, direct or immediate cause of the death, however, when the death is not caused directly by the conduct of the accused but by something done by the victim in response to the conduct of the accused, there is a question whether the chain of causation has been broken.⁵¹ While causation need not require the accused’s acts to be the sole or main cause of death, they must contribute significantly to the result.⁵²

There is no need for a single cause of death but 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.⁵³ An overreaction (i.e. an unreasonable reaction to the actions of the defendant) can break the chain of causation, however, reasonable actions performed in reaction will not break the chain.⁵⁴

4. Novus Actus Interveniens Test

Was the victim’s final step a novus actus interveniens therefore breaks the chain of causation?

Brennan J discusses at 399–400 the test of ‘novus actus interveniens‘, which first asks whether the victim’s taking of the final fatal step is a novus actus interveniens—breaking the chain of causation?⁵⁵

The second stage is whether; at the time when the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final step, the taking of such step was not in fact foreseen by the accused and wouldn’t reasonably have been foreseen by an ordinary person.⁵⁶

McHugh J observed at 450 that a person trying to preserve himself or herself from immediate danger may place themselves in greater peril.⁵⁷ His Honour considered that the suicide of the victim should not be regarded as breaking the chain of causation, particularly if they are trying to avoid further torture and eventual death.⁵⁸

DECISION AND ORDER:

The High Court determined that Royall’s actions were the substantial or significant cause of Healey’s death, and that causation could be established if the victim’s actions were a natural and reasonable consequence of the accused’s conduct.⁵⁹

There may be no single cause of the death of the deceased, but if the accused’s conduct is a ‘substantial or significant cause of death’ that will be sufficient, given the requisite intent, to sustain a conviction for murder (at 410–411).⁶⁰

Even though the victim may have directly brought about her own death by jumping out of the window, Royall was ultimately responsible for her death, as he created a ‘well-founded apprehension that she would be subjected to further violence’ if she remained in the apartment.⁶¹ The appeal was dismissed.⁶²

LEGAL IMPACT:

Royall v The Queen (1991) 172 CLR 378 remains a leading authority on causation in situations where a victim’s response plays a role in their death. The High Court considered four causation tests to be applied in such circumstances, with the majority of the High Court preferring the ‘substantial cause of death’ test. If an accused’s actions create a well-founded fear of danger, leading the victim to take evasive action that results in injury or death, the accused can still be held criminally responsible.

FOOTNOTES:

1. Royall v The Queen (1991) 172 CLR 378 (‘Royall‘). ↩︎
2. Crimes Act 1900 (NSW) ss 18, 19 (‘Crimes Act‘); ibid [40] (Mason CJ). ↩︎
3. Royall (n 1) 382 [2]. ↩︎
4. Ibid [3]. ↩︎
5. Ibid. ↩︎
6. Ibid [4]. ↩︎
7. Ibid [2]. ↩︎
8. Crimes Act (n 2) s 18. ↩︎
9. Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 124. ↩︎
10. Ibid. ↩︎
11. Royall (n 1) 354. ↩︎
12. Ibid 382 [13]. ↩︎
13. Ryan v The Queen (1967) 121 CLR 205 (‘Ryan‘); Royall (n 1) 386 [13]. ↩︎
14. Ryan (n 13) 217–218. ↩︎
15. Royall (n 1) 387 [16]. ↩︎
16. Ibid 388 [18]. ↩︎
17. Ibid. ↩︎
18. Ibid [19]. ↩︎
19. Reg v Grimes and Lee (1894) 15 NSWR 209. ↩︎
20. Ibid. ↩︎
21. See Royall (n 1). ↩︎
22. Ibid. ↩︎
23. Ibid. ↩︎
24. Reg v Pitts (1842) Car & M 284 (174 ER 509). ↩︎
25. R v Pagett (1983) 76 CrAppR 279 (‘Pagett‘). ↩︎
26. Ibid. ↩︎
27. Ibid. ↩︎
28. See Royall (n 1). ↩︎
29. Ibid. ↩︎
30. Ibid. ↩︎
31. Reg v Beech (1912) 7 CrAppR 197 (‘Beech‘). ↩︎
32. Ibid. ↩︎
33. R v Roberts (1971) 56 CrAppR 95 (‘Roberts‘). ↩︎
34. Ibid. ↩︎
35. Ibid 102. ↩︎
36. Royall (n 1) 449 (Brennan J). ↩︎
37. Ibid [19]–[22] (Mason CJ). ↩︎
38. Beech (n 31). ↩︎
39. Royall (n 1) 388. ↩︎
40. Ibid 389 [21]. A new intervening act (or cause), cited in Oxford Dictionary of Law (10th ed, 2022) ‘novus actus interveniens’. ↩︎
41. Royall (n 1) [38]. ↩︎
42. Ibid. ↩︎
43. See Roberts (n 33). ↩︎
44. Royall (n 1) [35] (McHugh J). ↩︎
45. R v Hallett [1969] SASR 141, 149. ↩︎
46. Royall (n 1) [43] (McHugh J). ↩︎
47. See Royall (n 1). ↩︎
48. See Pagett (n 25). ↩︎
49. Pagett (n 25) 288.  ↩︎
50. Royall (n 1) 410–411 [16]–[17]. ↩︎
51. Ibid [3]. ↩︎
52. Ibid. ↩︎
53. See Royall (n 1). ↩︎
54. Ibid. ↩︎
55. Royall (n 1) 399–400 [4]–[5]. ↩︎
56. Ibid. ↩︎
57. Ibid 450. ↩︎
58. Ibid 450 [44]. ↩︎
59. See Royall (n 1). ↩︎
60. Ibid (n 55). ↩︎
61. See Royall (n 1). ↩︎
62. Royall (n 1) [21], [24] (Mason CJ). ↩︎