Swan v The Queen [2019] HCATrans 193 (13 September 2019)

Last Updated: 17 September 2019

[2019] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S34 of 2019

B e t w e e n -

WILLIAM RODNEY SWAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2019, AT 12.48 PM

Copyright in the High Court of Australia
MS B.J. RIGG, SC: May it please the Court, I appear for the applicant with my learned friend, MR T. QUILTER. (instructed by O’Brien Hudson Solicitors)

MS T.L. SMITH: May it please the Court, I appear with my learned friend, MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Ms Rigg.

MS RIGG: Your Honours, this application is about a decision made to not repair a patient’s broken hip. It was that decision that led to the patient’s death four days later and it was that decision that formed an important part of the Crown’s argument at trial that the applicant had legally caused the patient’s death. Despite the importance of that decision, there was no direct evidence about it from those involved in making the decision and the applicant contends there was insufficient evidence to draw inferences factually that were requisite to make a legally viable case on causation for murder. We contend that it is the lack of evidence about this decision that caused the applicant’s trial to miscarry ‑ that is ground 1 – and it is also the lack of evidence that best explains why the Court of Criminal Appeal erred in its task, and that relates to grounds 1 and 2.

The asserted miscarriage of justice in the individual case arises from the error of application of the law in relation to the drawing of inferences on the one hand as compared to speculation or conjecture on the other. It is submitted that this is well illustrated by considering the contradictory approaches to the evidence by the Crown at trial and the Court of Criminal Appeal on appeal and by the Court of Criminal Appeal as identified in relation to ground 2.

So at trial the Crown argued that the patient’s hip could have been repaired to prevent death, but a decision was made not to do so because his quality of life had become so poor following the assault that had occurred eight months earlier. In that regard, the Crown relied particularly upon his incontinence, his reduced mobility, some reduction of cognitive capacity and his method of nourishment. The Crown argued that because the applicant had caused that low quality of life, he was responsible for the patient’s death following a decision not to repair a fractured hip eight months later and in this Court the respondent acknowledges that such an argument was left to the jury.

By contrast, the Court of Criminal Appeal, in dealing with the applicant’s claim that there was no evidence to support that case on causation that was left to the jury, found the evidence showed that the patient’s hip could not have been surgically repaired and that is the phraseology that the Chief Justice used in rejecting the ground of appeal. So the Court of Criminal Appeal concluded that it was open to the jury to reason that, because the applicant’s assault was the cause of that inability to surgically repair the hip, he was legally responsible for the patient’s death, which is a different argument altogether to the one that had been advanced by the Crown which was the subject of complaint.

It is submitted that the reasoning that underlies the Crown’s argument at trial and the reasoning that underlies the analysis by the court below are not just inconsistent; they are inherently contradictory or mutually exclusive, and it is submitted that those mutually exclusive approaches are no doubt the result of a lack of direct evidence about the decision‑making process in this case, the drawing of contradictory inferences from the scant documents that were relied upon to make out causation, namely, the hospital notes, and a lack of consistency in the Crown’s presentation of its causation case in a murder trial.

BELL J: Ms Rigg, can I just ask this. In terms of the way the matter was left to the jury, if one goes to application book 69, one sees her Honour’s summary of counsels’ submissions on the question of causation.

MS RIGG: Yes.

BELL J: I think you accept that at an earlier stage her Honour had correctly directed on the law as to causation consistently with Royall v The Queen.

MS RIGG: Yes, that is right.

BELL J: When her Honour came to sum up the respective ways the cases were put, one sees beginning on page 69 with the reference to Mr Dennis’ submissions and then her Honour moves to Mr Bruce’s, the issue seemed to be had the prosecution excluded the reasonable possibility that the fracture was the result of the metastasised kidney cancer? That seemed to be the way the trial was being put. Is that correct?

MS RIGG: In terms of the way that the evidence was focused upon, that is correct. The problem is the focus of the Crown Prosecutor’s closing address which is on the theory that is the subject of the complaint in this Court and was the subject of the complaint in the Court of Criminal Appeal. That was the major focus of the Crown Prosecutor’s closing address; that is, in essence, inviting the jury to disregard that conflict between the doctors as to whether the fracture was pathological or whether it was traumatic, and instead find that causation was made out because of the decision made not to surgically treat the fracture.

BELL J: When did the trial judge deal with that argument?

MS RIGG: It was not dealt with. So her Honour did not deal with that aspect of the Crown Prosecutor’s case on causation, but it was nonetheless repeatedly put forward by the Crown Prosecutor in her closing address, and the references in particular appear at application book 158 and 159 and they have been extracted in the written application as well.

BELL J: Your point is the jury was invited by the Crown Prosecutor to consider, regardless of whether the cause was metastasis of the cancer or the fall, that the deceased’s compromised physical condition was such that a decision had been made not to treat him surgically because of quality of life issues?

MS RIGG: Yes, that is correct.

BELL J: The Court of Criminal Appeal said it was open to the jury to reason that because of the injuries sustained in the earlier assault, surgical treatment was not an option?

MS RIGG: Yes, that is correct.

BELL J: That is the issue?

MS RIGG: Yes, that is right, that he was unable to be operated upon, which is the opposite of part of that which the Crown required to prove to the jury on its theory, that is, that he could have been operated upon but the decision was made not to do so because of quality of life issues.

BELL J: The evidence on the making of that decision, to the extent there was evidence, consisted of the notes taken at the hospital prior to his first discharge where it was indicated the son had agreed that there should be no attempt at resuscitation in the event of a further episode of aspiration pneumonia ‑ ‑ ‑

MS RIGG: Yes.

BELL J: ‑ ‑ ‑ and then the further notes following the second hospital admission on 6 December.

MS RIGG: Yes, that is right.

BELL J: It was on the basis of those two sets of notes that the inference was to be drawn that, because his quality of life was so poor, no attempt would be made to surgically treat him?

MS RIGG: Yes, that is the ambit of the evidence that was relied upon to prove causation beyond reasonable doubt in a murder trial.

BELL J: Yes.

MS RIGG: Your Honours, it is submitted that the potentially legally viable Crown case theory on causation that the impugned theory here resembles or approximates is one which is novel and difficult. That is, if the Crown were to advance with cogent evidence and clear articulation a case where the deceased himself or someone who had authority to make decisions for him had an option of surgery available which was likely in fact to be successful and save his life, nonetheless made a decision clearly explained by the evidence because of those quality of life issues, that would be a novel and difficult theory on causation, but has not been submitted to be unavailable legally. The complaint is there was simply no evidence to support many aspects of that.

BELL J: I suppose, allied to that, no assistance given to the jury on this novel approach.

MS RIGG: That is correct because, if there was evidence to support that type of novel approach, it would require deep thought by a tribunal of fact as to whether to attribute criminal responsibility in the sense that is required by the law of causation in a murder trial for death in those circumstances. Causation based on decision‑making and quality of life issues gives rise to difficult questions and it is submitted that the Crown at trial and in response in the court below and in this Court and the Court of Criminal Appeal have not addressed the need as a matter of law to have cogent evidence addressing who it was who made the decision and, if not the deceased, why that person had the authority to make the decision; secondly, why it was that the decision was made; and thirdly, supporting the fact that life was expected to be able to be extended by the surgery.

It is submitted that this application concerns, as to the second of those issues, that is, why the decision was made, the application concerns inference drawing in a criminal trial and particularly the drawing of inferences regarding an element of the offence of murder. Even in relation to the civil standard, causation must be more than an inference of an equal degree of probability with other inferences to avoid guesswork or conjecture or speculation.

Your Honours, we have set out in the application at application book 184 a range of inferences which are submitted to arise as reasonable possibilities from the notes which were exhibit AG, and in the main these are supported by more primary facts even though they are raised as reasonable possibilities than the central inference sought to be drawn by the
Crown which was required to be proved beyond reasonable doubt. So one reasonable possibility is that the mistaken diagnosis of aspiration sepsis may have caused the son and the doctor at the Prince of Wales Hospital to fear a never‑ending cycle of aspiration sepsis and pneumonia, which seems to have been the basis for the son’s decision at least in relation to the first set of notes that your Honour Justice Bell referred to.

But the notes themselves in relation to the later admission clearly suggest that there was a mistaken diagnosis of aspiration sepsis that was pivotal to the decision between the son and the doctor to not operate. Each of those other possibilities that are set out in those paragraphs are supported by primary facts, namely, the suggestion on the document AG that they were matters that had been discussed as between the doctor and the son, with the exception of the suggestion here made that maybe the son might have regarded the ongoing expense of care not worth the quality of life. That is not something that was supported – there is not a primary fact of that having been discussed as between the doctor and the son.

The primary fact of the existence of private health care was of course before the court. But each of those other – the six other considerations there set out are, in the applicant’s submission, more cogently supported by primary facts, namely, the suggestion of discussion between the doctor and the son, than the quality of life decision that the Crown relied upon to prove its case beyond reasonable doubt.

Your Honours, it is submitted that there has been a miscarriage of justice in the individual case in that the murder trial of the applicant was flawed, in that the court below did not properly consider his sole ground of appeal as it was particularised, but it is submitted that responding to that miscarriage of justice in the individual case and addressing it is capable of offering significant instruction in relation to matters of principle concerned with the drawing of inferences, particularly from documents on the one hand, as compared to speculation or conjecture.

It is submitted that it is capable of clearly addressing as well the problems that can result where a Crown case theory has not been cogently developed by clear evidence and articulated as is required. It is submitted that the bar was set far too low for the Crown in the court below in terms of that which was required for the Crown to prove causation beyond reasonable doubt in a murder trial. Thank you, your Honours.

BELL J: Thank you. Yes, Ms Smith.

MS SMITH: Your Honours, the resolution of the applicant’s first ground of appeal turns entirely on an examination of the evidence at trial. The resolution of the second ground of appeal turns entirely upon the construction of two phrases that were used in the Court of Criminal Appeal’s judgment. There is no question of legal principle between the parties to be resolved, it is submitted. The applicant does not allege that as a matter of law causation could not have been satisfied.

BELL J: The application does raise quite large issues of causation, in particular the notion that a pathway was that proposed by the Crown Prosecutor in address on the basis that because the deceased’s quality of life had become poor, a decision was made that he would not receive surgical treatment, that decision apparently being made on his behalf by his son, there being no evidence directly from the son on that topic, and the jury receiving no assistance from the trial judge about what might be thought to be a difficult pathway to causation.

MS SMITH: If I could address the last point perhaps first in relation to what assistance the jury was given in terms of the summing‑up on the issue of causation, your Honour, because I obviously accept that there was no express reference to the particular impugned pathway of reasoning in the course ‑ ‑ ‑

BELL J: In the way the matter was left to the jury by the trial judge, it was, so it seems to me, was the jury satisfied beyond reasonable doubt that the metastasis of the kidney cancer had been excluded as the cause of death.

MS SMITH: The trial judge certainly said that that was one of the principle questions that the jury would need to resolve. However, in terms of her directions that she gave on causation, which are set out at application book 31, the Crown would submit that the general statement of principles would have assisted the jury with the path of reasoning that was nominated by the Crown in the course of the closing address for the following reasons. The particular direction correctly identified that the relevant act needed to substantially contribute to or significantly contribute to death.

Further, that the jury had to approach it in a commonsense and practical way, bearing in mind that they were considering criminal responsibility for homicide, the most serious offence known in law. Further, there is reference to a need to consider all of the facts in the case, about halfway through that page, including the evidence of the injuries, the evidence of the deceased’s condition before and after the assault, and all the evidence from the experts when deciding whether to attribute legal responsibility to the accused for death. Importantly, towards the bottom of that page her Honour actually directs the jury that:

In this trial there is evidence of more than one medical condition being present at the time of . . . death, so you must determine whether the act or acts of the accused remained an operating and substantial cause of . . . death at the time of his death –

The Crown says that those directions that were given in respect of causation were capable of being applied in respect of the impugned path of reasoning. Furthermore, the directions were not the subject of complaint. That is not the issue that was ventilated in the Court of Criminal Appeal.

BELL J: It does not appear to have been the issued identified by the participants – well, I withdraw that – by defence counsel or the trial judge.

MS SMITH: The Crown would say that defence counsel did address this issue and that that is actually set out in the Court of Criminal Appeal judgment so far as I would take the Court to application book 160. If your Honours have that page ‑ ‑ ‑

BELL J: Yes.

MS SMITH: ‑ ‑ ‑ that actually sets out a relevant portion of the closing address that was brought to the attention of the Court of Criminal Appeal because significantly it was dealing with this issue of whether he could or could not have surgery, and the decision not to have surgery, and you will see that there is discussion about the evidence in terms of an otherwise healthy person of similar age being able to have successful surgery, and importantly the key discussion is at the bottom of the relevant extract at application book 161 because there is reference to the fact that this particular deceased:

wasn’t a healthy person. Not only did he have the ongoing problems as a result of the assault, he also had these other problems –

So he said you cannot just use the general principle in that case, but he finally says:

It wasn’t a situation where he was a healthy man, so we really don’t know what considerations went into the doctors’ not repinning him, if I could put it that way.

So the answer by defence was you do not have the evidence in respect of the issue of why the decision was made not to repin.

BELL J: That is Ms Riggs’ complaint. Where is the evidence?

MS SMITH: Yes, if I can attempt to take the Court to the relevant evidence. If your Honours would just permit me to just briefly outline the chronology, because the Crown submits that it is important where the notes actually fall in terms of the sequence of the chronology. In terms of the evidence before the Court of Criminal Appeal, there was clearly at trial, no dispute about the severe deterioration of the deceased post the assault in terms of his functioning and quality of life and his cognitive impairment. There was no issue in that respect actually at the trial stage.

Prior to the assault he had been a robust fit 78‑year‑old who had lived by himself, attending to all of his own daily needs and still driving a car, being completely mobile. He suffered the traumatic brain injury as a result of the assault during the home invasion. There was a significant loss of cognitive function, his inability to stand unaided, walk unaided, his dual incontinence and his loss of ability to swallow. It went so far as to get to the point where his general practitioner of some years, in fact over 20 years, actually described the deceased as retaining some ability to understand what was spoken to him, but that he had lost the ability to express himself completely. That was unchallenged, that evidence.

So after the deceased had spent three and a half months in hospital he became a permanent resident in a high level care facility where he remained until he was transferred to hospital shortly before his death. The nursing home documents also supported the extremely low quality of life insofar as there is reference to him being unable to physically undertake any daily living activities or to mentally comprehend them. It was against this background of severe deterioration in the quality of the deceased’s life that the two important decisions were made. The first decision was the decision that the deceased was not for resuscitation, not for intensive care unit or intubation.

BELL J: Who made that decision?

MS SMITH: The Crown says it is clear from the note in respect of that decision – the hospital record – that it was the son that made that decision in consultation with medical staff, and if I could take you to the note?

BELL J: Was there a guardianship order or something of that character made?

MS SMITH: There was no evidence of a guardianship order. There was evidence before the court in terms of the records from the relevant nursing home that the son was the next of kin and in his own evidence he described himself as extremely close to his father, his mother having passed away.

BELL J: But the legal responsibility to make the decisions respecting the life of the deceased, there was no evidence about that, but the Crown invited the inference that the decision not to resuscitate in the event of further bouts of pneumonia and not to surgically treat the injury to the femur were made by the son?

MS SMITH: That is correct. There was reference in the – sorry, I did not ‑ ‑ ‑

BELL J: No, do go on, Ms Smith.

MS SMITH: There was reference in the nursing home records to him being the person responsible as per the terms of the Guardianship Act, so there was actually in terms of a transferral document that was before the court that he was nominated as the next of kin and his type was person responsible.

BELL J: Under the Guardianship Act does the person responsible have the authority to make decisions of this character?

MS SMITH: Yes, they do, so far as, as long as the relevant test has been made in terms of the inability of the individual to actually make the decision for themselves.

BELL J: Was there evidence of that?

MS SMITH: There is the evidence that I have just outlined for you in terms of the clear evidence in relation to his cognitive decline and to the level and degree of that cognitive decline being even described by his general practitioner of over 20 years as being such that he only retained the ability to understand what was spoken to him, but he had lost the ability to express himself completely.

So the Crown would say that the inference was available from the unchallenged evidence of the long‑term general practitioner, as supported by the nursing home records, that clearly the deceased’s cognitive impairment was such that he was not in a position to be able to make those decisions. This is supported by the note itself from St Vincent’s Hospital, which is the first decision that I was talking about in relation to the issue of the not for resuscitation intensive care unit.

The inference can be drawn from that note which is at application book 143 to 144, the key entry being actually at the top of application book 144 that clearly medical staff had formed the view that it was a situation where the deceased was not capable of making those decisions and therefore it was the decision to be made by the son, because your Honours will see the relevant paragraph there at around line 10 which actually documents or records in the record the process of making the decision in relation to the not for resuscitation, not for ICU and intubation, which actually nominates it as:

Following discussions with Mr Kormilets’ son, Dimitri it has been decided that if another similar episode were to occur that Alex would be (not for resuscitation and not for ICU/intubation). The NFR –

obviously the not for resuscitation order:

has been signed and is official and can be found in the notes.”

The Crown would submit that the use of the terms “signed”, “official” means that the medical staff – the inference clearly available is that medical staff at that time had satisfied themselves of the inability of the deceased to make the decision and that the person responsible who could was the son.

BELL J: Coming to the decision not to surgically treat the fracture to the femur, the Court of Criminal Appeal considered that it was necessary – that it was open to the jury to be satisfied that in consequence of the earlier injuries arising from the assault, the deceased was not a person who was capable of being subjected to surgical repair. What is the evidence for that?

MS SMITH: Your Honours, the Crown would submit that the CCA clearly understood throughout that this was a case of the son having to make a decision in consultation with medical staff for the surgery not to be undertaken. The relevant two phrases that have been identified by my learned friend need to be read in relation to the judgment as a whole. The Crown submits that the CCA clearly understood that what they were considering was the issue of the decision of the son. There are numerous references to that when summarising both the Crown argument as well as summarising the argument that had been mounted on behalf of the applicant.

The words “could not” and “inability” used by the Court of Criminal Appeal simply, the Crown submits, referred to the inability of medical staff to operate once – once the son had made the decision that there would be no surgical intervention. So, in other words, because the son had decided that there should not be surgical intervention, the deceased accordingly, to use the CCA words:

could not be surgically treated –

And similarly, as a result of that decision, there was an:

inability to surgically treat –

So when you actually read those phrases in the context of the judgment as a whole, that language is coming from recognition that once that decision had been made by the son that was the consequence. The consequence was that he could not be surgically treated. In no way was the CCA suggesting that the medical evidence supported that he could not be surgically treated. The issue they were focusing on was that process of making the decision in relation to whether that should occur by the son and accordingly whether the effect of it was that the surgery – the inability for the surgery to occur.

BELL J: So the Crown accepts that the evidence did not establish that the deceased could not have been treated and, for that matter, that that treatment might not have been successful. What he Crown says is that it was open to reason that because of the injuries sustained in the assault, the quality of the deceased’s life had come to be so poor that his son determined on his behalf that he should not have the treatment.

MS SMITH: That is correct.

BELL J: That does raise a nice question of causation when dealing with criminal liability for murder, does it not?

MS SMITH: It does, but it is not the question my learned friend is raising.

KEANE J: But is it not? I mean, one can accept for the sake of argument that the circumstance where the victim of an assault decides that the injuries are so devastating that he or she does not want to be further operated upon. One can accept for the sake of argument that in that situation the original assault might be said to be a substantial or significance cause of death. But for the jury to convict on that basis they would need to have it made very clear to them that they are addressing the question in the context where the deceased himself or herself has actually decided not to be treated in a way that on the evidence might keep the person alive. Now, this jury at no stage was directed to consider that question. Is that not right?

MS SMITH: Not that specific question. They were given only the general directions that I outlined earlier in terms of my submissions. The Crown would, however, say that that is not the argument that is being run in this Court or the argument that was run in the Court of Criminal Appeal so far as any issue in respect of the directions that were given to the jury, which is why the Crown maintained its initial submission that this matter does not raise any issue in relation to the legal principles associated with causation. It is simply an assertion that there was not sufficient evidence capable of supporting one particular path of reasoning in this particular case. Your Honours, I apologise I have just realised that the light has gone red.

BELL J: Thank you, Ms Smith. Yes, thank you, Ms Rigg, we do not need to hear from you further. There will be a grant of special leave in this matter. What is the estimated length?

MS RIGG: Half a day, your Honours.

BELL J: Yes.

MS SMITH: Your Honours, in relation to both grounds or just one of the grounds?

BELL J: Yes, both grounds. Those who instruct you can collect the standard form of directions from the Registry. Thank you. Would you adjourn the Court to 10.00 am on Wednesday, 9 October in Canberra.

AT 1.23 PM THE MATTER WAS CONCLUDED