Swan v R

BATHURST CJ: Mr William Rodney Swan (the applicant) and Mr Thompson Kimura were jointly tried before a judge of this Court and a jury on an indictment of one count of murder (with manslaughter as a statutory alternative) and an alternative count of armed robbery in company causing grievous bodily harm. On 20 May 2016, the jury returned a verdict of guilty of murder against each of the accused.

The victim was a 78-year-old man, Mr Alexander Kormilets (the deceased), whose unit was the subject of a home invasion early in the morning of 15 April 2013. The deceased was severely beaten in the face and chest by two men and he sustained a number of serious injuries. As a result, the deceased spent over four months in hospital before being released to a “high-level care facility” in August 2013. However, he was transferred back to hospital on 5 December 2013, where he died five days later on 10 December 2013.

The applicant does not dispute that the jury were entitled to find that he was one of the two men that perpetrated the assault. However, he contends that a miscarriage of justice occurred in the course of his trial, since “the Crown case on cause of death, as articulated in the Crown Prosecutor’s closing address … encouraged a path of reasoning not properly open” to the jury.

In considering this issue, it is necessary to have close regard to the way the Crown put its case on the issue of causation at trial, both in its opening and closing addresses, as well as the extensive medical evidence concerning the deterioration in the deceased’s health following the assault, the immediate circumstances surrounding his death on 10 December 2013 and the medical evidence which was led relating to the cause of his death during the course of the trial.

In her opening address, the Crown Prosecutor summarised the causation case in the following fashion:

Later on in her opening address, the Crown Prosecutor stated that “the other very important issue here” was what caused the deceased’s death. She went on to make the following remarks:

The deceased’s son, Mr Dimitri Zitserman, gave evidence as to the deterioration in his father’s condition. He said that, before the assault, his father had been an “absolutely normal man”. He had cared for his wife until she died in 2012. He used to cook and drive a car, and had a normal social life. He did the cleaning, kept a clean house, and was a “neat person”. He had no problem understanding or remembering things, was fit and liked to walk in Moore Park. He was able to drive easily from his home to Bondi, Coogee or Maroubra and he looked after his financial affairs himself. He never had a problem going to the toilet and he did not need a walking stick or frame.

Mr Zitserman said that, after the assault, he visited his father “almost every day” at St Vincent’s Hospital. He said that, for the first month, “they put [the deceased] in a sleep, I don’t know for what reason, it’s a medical thing”, and that, when the deceased woke up, he was just lying in bed most of the time. He said that his father sometimes understood him clearly, but other times seemed not to know him or be listening to him. He said that the deceased did recognise his son, daughter-in-law and granddaughter, but that there were other relatives whom he did not recognise. He said that he and his father spoke together, but that sometimes the deceased “didn’t like it” and became angry.

Mr Zitserman said that the deceased was breathing normally after “a couple of months” and the tracheotomy tube was removed. Thereafter, he said that the deceased ate normally for about three weeks, but that he then started getting food into his lungs and so “PEG feeding” was commenced. He said that the deceased was incontinent and wearing a nappy, and that he could only move around in a wheelchair. He said that he was told by the hospital staff that the deceased had suffered a series of falls from his hospital bed since he would keep trying to get up all the time. He said that, whenever the deceased fell from his bed, the hospital would telephone him.

Mr Zitserman also gave the following evidence:

On his admission to hospital after the assault, the deceased was attended to by Dr Tamara Preda. A certificate prepared by her was read into evidence. It stated that the patient was suffering from “multiple traumatic injuries”, including “subdural and subarachnoid haemorrhage, multiple bilateral rib fractures with haemo-pneumothorax, splenic laceration, right renal laceration, [and] facial fractures”. She described the treatment required during his time at the hospital as “admission to the intensive care unit, reversal of anti-coagulation, embolisation of right kidney, right chest drain, intubation, respiratory support (prolonged ventilation dependence), tracheotomy, feeding by NG (nasogastric tube) initially graduating to [PEG] feeds; treatment for hospital acquired pneumonia, cognitive decline secondary to traumatic brain injury; prolonged stay in hospital and rehabilitation with eventual discharge to nursing home”. She described the injuries as “severe traumatic life-threatening multi-system injuries”. She said that, from the date of admission, the patient’s condition improved and that he was discharged to a nursing home on 1 August 2013.

A further note from the records of St Vincent’s Hospital was read into evidence:

The fact that the deceased was in robust health prior to the assault was confirmed by Dr Alexander Aristoff, a general practitioner of whom the deceased was a regular patient. Dr Aristoff expressed the view that, before the assault, the deceased was a “very fit man” for a 78-year-old and his medical problems were “pretty well managed” by Dr Aristoff and the deceased’s treating specialist. Dr Aristoff recalled him being “quite clear in his mind” and “fairly intelligent”. He said that he was “physically very well built” for his age and was always driving his wife to a surgery in Bondi Junction. Dr Aristoff said that the deceased was under treatment for polycythaemia, which he characterised as involving “excessive production of red blood cells”. However, Dr Aristoff considered that this did not pose any imminent danger to his health.

Dr Aristoff gave evidence that he saw the deceased at the Camelot Nursing Home on 15 August 2013. He stated that he was “shocked” to see the deceased’s condition because “he appeared to me as a very sick man” and that the psychological changes that had occurred were especially concerning, since he had lost the ability to communicate properly, express himself and relate to people. He stated that the deceased’s physical condition was also “very poor” because he had almost completely lost his ability to swallow. He stated that he understood this to be due to the “bilateral brain injuries” the deceased had sustained to the right and left brain hemispheres. He stated that this affected how he took food. A “PEG tube” was installed, which connected the outer abdominal wall to the inside of the stomach, so that the deceased could be fed “special food” and medication through the tube.

Dr Aristoff said that the deceased retained “some ability to understand what was actually spoken to him” but had “lost his ability to express himself completely”. He noted physical changes, such as the loss of “a lot of weight” and muscle bulk, and that the deceased needed assistance to walk. However, he said that the “most important thing” was his loss of cognitive function and the signs of dementia.

Dr Aristoff also said that it came to his attention that the deceased had been transferred to the intensive care unit while he was still at St Vincent’s Hospital due to “life threatening complications”. He said that this indicated to him the “seriousness of [the deceased’s] medical condition at the time”.

Dr Aristoff accepted that, at the autopsy, it was observed that the deceased had a tumour in his left kidney which was about 6 centimetres large and “probably malignant”. He said that the deceased did not exhibit any clinical signs of renal tumour when he was examined for a urological procedure in 2006 or 2007. However, he noted that, once the deceased was admitted to the hospital, he had “lost his ability to relate his symptoms and complaints to us”.

Ms Deborah McKern, a registered nurse, gave evidence in her capacity as the “executive care manager” at the Camelot Nursing Home where the deceased was a permanent resident from 28 August 2013 to 5 December 2013. She agreed that the nursing home was a “high level facility” which provided care to elderly patients with “a high complexity of clinical conditions” requiring “extensive physical and clinical support in all aspects of daily living”.

Ms McKern gave evidence concerning the bed which the deceased occupied while he resided at the nursing home. She described the bed as “a low low bed” which could be lowered to only 5 centimetres above the ground. She stated that a patient would always be given such a bed if they did not have good mobility and were “at risk of personal damage by trying to get out of bed unsupervised”. She stated that a fall from a bed would be classified as an incident requiring a report and potentially an investigation.

Ms McKern explained that “PEG feeding” was required where “someone’s ability to swallow food properly has been impaired” and there was “a risk of the food going into their lungs and not into their stomach”. She stated that the most common cause of this impaired swallowing was an acquired brain injury that affected the neurological pathways to swallowing.

Ms McKern also gave evidence about aged care funding instruments (ACFIs), which she stated comprised “a series of assessments that generate a picture of the care that each individual person needs to receive to maximise their independence and quality of life”. The ACFI in respect of the deceased was tendered at the hearing through Ms McKern (Exhibit AC). The ACFI noted that the deceased was given an “A” rating for nutrition, by reason of the “PEG tube”, an “A” rating for wandering, since he was not able to walk around the nursing home unassisted, and a “B” rating for depression. His mobility assessment described him as “semi-ambulant” with a “slow” and “shuffled” gait, “stooped” posture and “poor dynamic balance”. It stated that he required supervision while seated, and required the assistance of two staff members and a “pelican belt” to stand for more than 30 seconds. He was assessed to require the aid of a “gutter frame” for walking, as well as being physically guided. He required the assistance of two staff members to move between his bed and a chair or wheelchair. Further, his physical behaviour assessment noted the deceased to be “constantly physically agitated”.

Several further documents were also tendered through Ms McKern (Exhibit AD). A document in Exhibit AD entitled “Note Report” prepared by Ms Krystal Hawkins, a social worker, indicated that, on 28 August 2013, the deceased required the assistance of another person to mobilise and was a “high fall risk”. He was described as “upset” by his incontinence. His determination was noted as a strength. It was also noted that his medical diagnosis included an acquired brain injury and facial fractures from an assault.

Another document in Exhibit AD entitled “Care Plan” noted that the deceased had had four to six falls within the preceding 12 months. It noted that he would attempt to get up from a bed or chair and walk to another area unaided and lacked understanding for his personal safety. It also noted that he was “unable to physically undertake any daily living activities”, or to “mentally comprehend” them.

Another document in Exhibit AD entitled “Incident Form Resident” recorded a fall by the deceased at 6:31pm on 30 November 2013 caused by the deceased getting out of a chair unassisted. Exhibit AD also included other notes in the “Note Report” which detailed several other falls, including falls on 24 September 2013, 18 October 2013 and 5 December 2013.

The note for 5 December 2013 recorded that the deceased was found on the floor next to his bed “facing downwards and moaning”. It recorded that he was assisted by three staff to get back into his bed and that he was reluctant to bear his own weight, which was said to have been something which had become evident since his last fall. It stated that there was no expression of pain. That note had a timestamp of 1:55pm.

However, at 4:00pm on the same day, a further note recorded that the deceased “looked u[n]well” and nodded his head in response to being asked about dizziness. A final note at 9:36pm stated “Resident c/o dizziness 1530hrs. This evening at 2030hrs, decline in condition, tremors, chesty, cough. Denied any pain, SOB, head[a]ches … LMO notified of transferring to hospital and Son informed tonight. Son wished for transfer to St Vincents hospital. Reviewed by paramedics and suggested for transfer to POWH ED.” It seems that “POWH” referred to Prince of Wales Hospital.

A document entitled “Transfer Form” dated 5 December 2013 noted the main reason for the transfer as “Resident condition gradually declining” with the following additional information:

The deceased remained in Prince of Wales Hospital from 5 December 2013 until the date of his death on 10 December 2013. At the hearing of this appeal, the parties agreed that the order in which the handwritten clinical notes surrounding his admission and subsequent death (Exhibit AG) were to be read was the order in which they were annexed to the Crown’s submissions. The first page of the notes contained a statement dated 6 December 2013 which was apparently written by “Cohen – ortho”. The applicant transcribed this note in his written submissions as follows:

On pages 2 and 3 of the notes, the following handwritten comments were made. They are undated, but having regard to the dates which appear on the subsequent pages, were presumably made on 6 December 2013:

The death certificate was signed by Dr Elyse Fyfe (Exhibit AF). It recorded that the deceased was declared to be dead on 10 December 2013, with the cause of death being described in Part 1 of the certificate as “(a) Aspiration sepsis (b) fractured neck of femur” with “traumatic brain injury, frailty, atrial fibrillation, recurrent aspiration pneumonia” being listed in Part 2 of the certificate as “significant conditions contributing to the death, but not related to the disease or conditions causing it”.

The autopsy was performed by Dr Kendall Bailey, a “staff specialist forensic pathologist”. Dr Bailey explained some of the terms used in the reports of Dr Preda and Dr Fyfe to which I have referred at [11] and [30] above. I have summarised the evidence given by Dr Bailey in relation to Dr Preda’s report as follows:

Dr Bailey explained the terms used in the death certificate as follows:

Dr Bailey performed the autopsy on 11 December 2013 and formed an opinion as to the cause of death of the deceased which differed from that recorded by Dr Fyfe. In the autopsy report, Dr Bailey made the finding that the “clinical cause [of death] appears to be one of respiratory failure, secondary to blunt force injury of the chest due to prolonged ventilation and ongoing respiratory infections. Fat emboli to the lungs arising from the bon[e] injury, hip fracture, will compound pre-existing respiratory failure”.

Dr Bailey did not find anything to support aspiration pneumonia or aspiration sepsis during the autopsy, but rather, described findings of congestion and oedema in the lungs, which suggested to her the presence of infection. She also described “relatively certain” findings of “widespread fat emboli in the lungs” from a microscopic examination of lung tissue. She explained that “fat emboli” in blood vessels were “fat droplets that get pushed along by the blood flow”.

Dr Bailey suggested that the presence of fat emboli was caused by the exposure of bone marrow to the blood vessels as a result of the fractured neck of the femur of the deceased. She explained that bones contain marrow with “very high fat content”, and that, when bones break or fracture, the “marrow cavity” in the bone opens to the surrounding blood vessels and allows “little bits of fat to go into the blood stream and float around in the blood stream and come to rest in the lungs”. She said that, where there are many fat emboli in the smaller blood vessels in the “thin walls of the air sacs” of the lungs, they “get stuck” and “you can’t oxygenate your blood anymore”. In cross-examination, she agreed that, if fat emboli in the lungs were numerous enough on their own, then they could bring about “respiratory problems and death”. She also agreed that the fat emboli were “certainly numerous” in the case of the deceased.

Dr Bailey also said that she found evidence of “healed rib fractures” and of “healing bleeds” in the “subdural and subarachnoid” areas of the deceased’s brain. She found no evidence of injury to the kidney or spleen.

Dr Bailey also found a 6 centimetre tumour at the “lower pole of the left kidney” with no evidence of metastasis or the spread of cancer. She said that it was “quite large”, but that there were no other tumours on other organs or surrounding tissue and no enlargement of the lymph nodes next to the kidney, which suggested that there had been no spread. While Dr Bailey was initially not sure whether the tumour was cancerous at the time of the autopsy, it was not in dispute by the time of the trial that it was.

In cross-examination, Dr Bailey agreed that, as at 5 and 6 December 2013, the deceased was a “very unwell person” with cancer of the left kidney, high blood pressure, polycythaemia, atrial fibrillation and severe coronary atherosclerosis. She stated that, at the time she performed the autopsy, she was not aware of the fracture being a “pathological fracture”, which was a fracture resulting from “low trauma” and weakness in the bone caused by the spread of cancer from elsewhere in the body, as opposed to a “traumatic fracture”, which was a fracture resulting only from external trauma. Dr Bailey said that she would have sampled the bone to test for a pathological fracture if she had been aware of any indication of it, and that she could not confirm or deny the prospect that the fracture was in fact “pathological”. She had also accepted in her evidence in chief that osteoporosis could increase the risk of fractures and that the deceased’s reduced movement would have likely caused “some degree” of osteoporosis.

Dr Bailey stated on a number of occasions that the fracture of the kind evidenced by the deceased required surgery. In that context, she gave this evidence in chief:

Then, the following evidence was given by Dr Bailey:

At trial, a number of questions asked of Dr Bailey in chief were objected to on the basis that they asked her to give an opinion about why there was no surgical intervention to remedy the fracture, including the second question I have extracted at [40] above. Ultimately, it was accepted that any opinion expressed by Dr Bailey as to why surgical intervention did not take place was “speculative”, and the prosecution was content instead to rely the notes in Exhibit AG insofar as they disclosed the reasons for the lack of surgical intervention.

In his written submissions, the applicant accepted the trial judge’s following description of Dr Bailey’s evidence in her summing-up:

Dr Watson was a specialist histopathologist. He said that he had been provided by Dr Bailey with “macroscopic photographs” and “histological glass slides” of the tumour on the deceased’s kidney that she had identified during the autopsy. He described the tumour as a “mucinous tubular and spindle cell carcinoma”, which he explained was an “indolent” or “lower grade” type of tumour, unless it “dedifferentiates” into a different grade.

Dr Watson gave evidence that the tumour in question had shown “an area where it has undergone dedifferentiation to a higher grade tumour”, explaining that “higher grade” meant “aggressive”. He said that the tumour had the potential to metastasise, but that it could not be seen whether it had from the observations which had been made, acknowledging that nothing was seen by Dr Bailey in the vein, adjacent lymph nodes, or lung.

Dr Watson stated that most renal tumours spread by “invasion of the renal vein”, and that the general order of frequency for metastasis was “lung, bone, brain, liver” from highest to lowest. He stated that the absence of the finding of evidence of carcinoma in the renal vein did not mean that metastasis in the left femur could be “fully excluded”, although it made it “less likely”. He said that the absence of a finding by Dr Bailey of metastasis in the lung did not mean that it had not happened but that it was “less likely”.

Professor Fox was an oncologist who gave evidence of assessing the deceased’s case based on his medical history, x-rays taken while he was still alive, and the autopsy. He stated that he had been advised that there was a question about metastases which may have contributed to the cause of the fractured neck of the left femur in the deceased. In this respect, he noted that he had considered the findings of Dr Bailey including her identification of the tumour, her identification of fat emboli in the lungs, and her opinion regarding the cause of death.

Professor Fox also said that he had viewed the x-ray of the deceased’s fractured left femur taken before his death. He said that metastasis in the bone was often visible in x-rays as “an area of bone thinning or a discrete hole” and that he could not see any sign of these in the x-ray of the deceased’s fractured left femur. In cross-examination, he agreed that he could not exclude the possibility that there was metastasis in the bone and that the fracture was a “pathological” one caused by metastasis, although he said that the absence of any reference in the radiological report to evidence of metastasis on the x-ray of the deceased made this “unlikely”.

Professor Fox gave evidence that, if he had a patient of the deceased’s age found to have a carcinoma of this type who sustained a fracture of the neck of the femur, then he would refer the patient to an orthopaedic surgeon for pinning. He agreed that “an otherwise healthy person with a fractured neck of femur would have surgical treatment and recover”. Ultimately, he said that it was not his view that the deceased had died from the tumour on his kidney and its sequelae.

Professor Cordner was a forensic pathologist called in the case of the applicant’s co-accused. He confirmed that the death certificate was wrong in stating that the cause of death was aspiration sepsis, and gave similar evidence to Dr Bailey about embolism mimicking the symptoms of aspiration sepsis. He also said that people could die from fat embolism on its own or in combination with other illnesses.

Professor Cordner explained that bones “ordinarily don’t break by themselves”, but that, if a bone is diseased because of cancer which has spread from another part of the body, then it may “fracture by itself or fracture with much less force than required to ordinarily cause a fracture”. He said that this was known as a “pathological fracture”. He accepted that the x-ray of the deceased’s fractured femur reduced the possibility of a pathological fracture to some extent, but did not exclude the possibility of metastasis in the bone and a resulting pathological fracture. In cross-examination, he described metastasis in the bone as “unlikely”, although it was still a “reasonable possibility”, not in the sense that “everything is possible”, but a “possibility that I can easily conceive of and I think should be taken into account”.

In cross-examination, Professor Cordner stated that the usual sequence of the metastasis of a kidney tumour was to “preferentially spread to lung and also bone”. He also referred to metastasis in the bone occurring through the lymph node and the prospect of not seeing metastasis in the lung despite metastasis in the bone. He said that the absence of evidence of a “large heavy fall” raised the possibility of a pathological fracture, and that the presence of visible “osseous deposits” indicated the possibility of metastasis in those areas.

In his evidence in chief, Professor Cordner described each of the deceased’s disabilities as playing some part in his death “to an unknown extent”, although it was the “respiratory problems” caused by the fracture which precipitated death. In cross-examination, he agreed that the bone fracture was the “last thing in [the deceased’s] life that wasn’t dealt with and [the deceased] died because it wasn’t pinned or the hip wasn’t replaced”. He also agreed that “not to pin or surgically treat a fractured femur” in a 78-year-old man would “probably be fatal” and that such a person’s capacity to survive the fractured femur and the consequential fat emboli in the lungs at that age would depend on how “substantial” the concentration of fat emboli in the lungs was. He stated that it “seems to have been substantial in this case”. He also did not agree with the proposition that, for someone with the severe level of coronary atherosclerosis suffered by the deceased, the ordinary procedure would be to operate on them for a fractured femur.

The closing address for the Crown first addressed causation by describing the Crown case as one where an “extremely serious robbery” and “extremely serious assault” was the cause of death. In that context, the following remarks were made:

The Crown also made the following remarks regarding the condition of the deceased prior to his death:

The applicant accepted that the Crown closing address “acknowledged that the issue of whether the assault accompanying the robbery was a substantial and operating cause of death was an issue in the trial”. However, the applicant complained about the emphasis given by the Crown to the evidence, principally given by Mr Zitserman, regarding the abilities of the deceased prior to the robbery compared with his state afterwards and to his loss of enjoyment and quality of life. The applicant submitted that the closing address identified this evidence as bearing on the cause of death.

The applicant noted that there was also a detailed reference in the closing address to Dr Aristoff’s evidence regarding the decline in the condition of the deceased which he observed on 15 August 2013, and in particular, his concern regarding the deceased’s psychological and cognitive decline and loss of ability to swallow. The applicant also referred to what was said in the closing address in relation to the evidence of Dr Bailey. The relevant part of the address was in the following terms:

In his written submissions, the applicant also referred to the following remarks made by the Crown after summarising the evidence of Dr Watson, Professor Fox and Professor Cordner:

No objection was taken to either of these portions of the closing address at trial, where the issue of causation was primarily addressed in closing by senior counsel for the applicant’s co-accused. At the hearing of this appeal, the Crown made particular reference to the following portion of the closing address of senior counsel for the co-accused at trial:

In his written submissions, the applicant accepted that the trial judge correctly directed the jury on the legal test of causation. The applicant noted that the trial judge “described the variations in the expert evidence, and suggested that the principal matter in dispute was the significance of the renal cancer and whether it could have caused the fracture”. However, there are a number of matters in the trial judge’s summing-up which are relevant to the issues on the appeal.

The trial judge directed the jury that the question of whether the acts of the applicant and his co-accused caused the death of the deceased was a question for them to decide, and that the Crown bore the onus of establishing this beyond reasonable doubt. She explained that the acts of the applicant and his co-accused must have “substantially” or “significantly contributed to” the death of the deceased and that the jury should approach the question bearing in mind that they were “considering criminal responsibility for homicide, the most serious offence known in the law”, taking into account the evidence of the deceased’s injuries, the evidence of the deceased’s condition before and after the assault and the evidence of the experts. She pointed out that, in determining the question, it was necessary for them to bear in mind that the deceased had more than one medical condition at the time of death.

Before summarising the medical evidence, the trial judge stated that the principal matter in dispute was “whether or not it is possible that the cause of the fracture that precipitated [the deceased’s] death was a metastasis of a renal cell carcinoma, that is, whether the fracture could be a pathological fracture caused by a metastatic kidney cancer”. In that context, she described the medical evidence as being relevant to the issue of the cause of death, and in particular, whether the fracture could be a “pathological” fracture rather than a “traumatic” fracture.

The trial judge explained to the jury that they did not have to accept the evidence of each expert, but that they were entitled to bring their own common sense to bear on the issue. However, she emphasised that they must keep in mind that the onus remained on the Crown to prove beyond reasonable doubt that the acts of the applicant and his co-accused caused the death of the deceased.

After recounting the medical evidence, the trial judge summarised the Crown case on this issue. In particular, she noted that the Crown referred to the statement by Professor Cordner that the cause of death was “complications of a fractured neck of femur in a man with carcinoma of the kidney and debilities following an assault”. She noted that there was evidence that “debility” was “a general word to cover a range of disabilities and infirmities consequent upon head injuries”. In that context, she told the jury that the Crown had suggested that Professor Cordner “would put that as part of the cause of death”.

The trial judge also summarised the closing address of senior counsel for the applicant’s co-accused on the question of causation. She noted that he had stated that it was a “reasonable possibility” that the fracture was a pathological fracture caused by the metastasis of the kidney cancer, so that the Crown had not proved beyond reasonable doubt that the fracture was not a pathological fracture.

The trial judge noted that senior counsel for the applicant’s co-accused emphasised that the deceased did not die of aspiration sepsis. She told the jury that it was “not in issue that the direct cause of [the deceased’s] death was the respiratory distress caused by fat emboli travelling to small vessels in the lungs which was in turn caused by fracture of the neck of the femur”.

The trial judge also told the jury that senior counsel for the applicant’s co-accused had “no issue with the evidence to the effect that a fractured neck of femur is a survivable injury in a healthy person of [the deceased’s] age, but he submitted [the deceased] was not otherwise a healthy person” and that, given the possibility of a pathological fracture not being excluded, it was not possible to conclude beyond reasonable doubt that the ongoing injuries from the assault were an “operating and substantial” cause of death.

Senior counsel for the applicant submitted that the Crown in effect misrepresented the case by effectively stating that the decision not to operate on the deceased’s fracture was “instrumental” to the death of the deceased and that the decision was made because of the deceased’s “disabilities of incontinence, cognitive decline, a requirement for nourishment by percutaneous epigastric tube and inability to walk unassisted”. She submitted that the implicit assumption that underpinned these propositions was that “had surgery been undertaken [the deceased] would have survived or alternatively that he would have lived but for those ongoing disabilities that the Crown was relying upon which had no doubt been caused by the April 2013 assault”.

Senior counsel for the applicant submitted that the deceased did not die as a result of those disabilities referred to by the Crown. She submitted that there was no direct evidence as to the reason for the decision not to operate. She submitted that Dr Bailey’s evidence was that she did not know why this decision was taken and that Mr Zitserman was not asked anything about it.

Senior counsel for the applicant submitted that the Crown relied in its opening address on a “legitimate, although difficult” case. She said that the case as opened was based on evidence ultimately given by Dr Bailey that the cause of death was “respiratory failure secondary to blunt force injury of the chest due to prolonged ventilation and ongoing respiratory infections”. She also noted that Dr Bailey said that fat emboli to the lungs arising from the fracture would “compound pre-existing respiratory failure”, as I have extracted at [33] above.

Senior counsel for the applicant submitted that the only evidence available on the decision not to operate was the notes which were contained in Exhibit AG, which I have referred to at [28]-[29] above. She submitted that Mr Zitserman was not asked to explain what he had meant when he was recorded in one of the notes as saying that his father’s condition had “deteriorated significantly”. By contrast, she submitted that there was “evidence of improvement” from the injuries suffered as a result of the assault but that “there was left unexplained by the evidence a very large number of serious health consequences”, which on their face had “nothing to do at all with the assault”. She submitted that the evidence established that the deceased has polycythaemia before the assault, although it was well-managed, and that there was no suggestion in the evidence that the coronary atherosclerosis or the kidney tumour had been “caused in any way by the assault”. She submitted that Exhibit AG showed that these health problems were taken into account in the decision not to operate.

Senior counsel for the applicant also submitted that there was “no evidence that the disabilities that were relied upon and pressed by the Crown … were never going to improve”. She submitted that there was only evidence of improvement from the “particular problems” arising from the assault. She also submitted that there was “no evidence indicating that [the deceased] would likely have survived [an operation] … so long as not burdened with the disabilities from the assault”.

So far as the question of the deceased’s falls were concerned, senior counsel for the applicant referred to the “Note Report” from the nursing home contained in Exhibit AD relating to the events of 5 December 2013, which stated that the deceased was “found on the floor next to his bed” with “nil injuries present” and “no expression of pain”, although he was noted to be “reluctant to weight bear which is evident since last fall”. She also noted that, from the evidence given by Professor Fox about the triage notes on the deceased’s admission to Prince of Wales Hospital, where the fracture was discovered, it appeared that the deceased was admitted after “a few days of fever, short of breath, suffering from post-traumatic brain injury six months ago, could respond to yes and no questions, had a tachycardia” (which was described as “a fast heart rate”). It should be noted that the notes as summarised by Professor Fox also stated that the deceased was “assessed for mobility and was scored as a high falls risk”, requiring “assistance by one person getting him to bed and by two people getting him from a bed to a chair”.

After referring to the triage notes, senior counsel for the applicant submitted that, although the Crown took issue with the question of whether the fracture was “pathological”, it was not suggested “in any way by the Crown to be linked with any particular incident, that was then said in any way to sheet home causation back to the April assault”.

Senior counsel for the applicant submitted that the obligation on the Crown in its opening address was “not merely to outline the facts, but is also to indicate in conceptual terms the nature of the Crown case for the assistance of the judge, the parties and the jury”. She submitted that the changes which were made to the Crown case during the trial had the effect of “obscuring a difficulty” in it. She submitted that the Crown’s decision to “no longer pursue the evidence” that death resulted from “vulnerable lungs from the assault and from prolonged ventilation manifested itself in the changed Crown theory which had the effect of obscuring the difficulty in the Crown case”.

However, senior counsel for the applicant stated that she had not raised a ground of appeal which complained of a miscarriage of justice because of the Crown changing its case. Rather, she indicated that the revised Crown case was not based on the evidence. She submitted that there was no evidence to establish that “the combination of proved ongoing consequences from an assault, in combination with other unrelated health conditions, could give rise to a finding by doctors that surgery would not be sustained”. She stated that her complaint was not about procedural prejudice resulting from the change in the Crown case, but that the revised case was not based on the evidence.

Senior counsel for the applicant also submitted that putting the case in this fashion meant that a case was presented based on evidence “which gave rise to a very high level of emotion and sympathy”. She accepted that it would not have been unfair had there been a proper basis for such a case, but where there was not, it simply added to the “real risk of a miscarriage of justice in this particular case”.

The Crown submitted that the issue of the decision not to operate on the fracture was first raised by the Crown at the trial in its opening address in the context of the evidence expected to be led from Dr Bailey, which the Crown Prosecutor referred to as including a review of medical evidence which showed that, while there was some improvement in the deceased’s health, there was also a reference to ongoing poor health as a result of the injury and a decision being made in relation to palliative care if further treatment was required. I have extracted the relevant portion of the opening address at [5] above.

The Crown then referred to the evidence which was relevant to the issues raised in its opening address. The Crown first referred to the evidence of Mr Zitserman concerning the deterioration in the condition of the deceased following the assault. I have summarised this evidence at [7]-[10] above. The Crown drew particular attention to the evidence to which I have referred at [10] above.

The Crown then referred to the evidence of Dr Bailey that her interpretation of the notes contained in Exhibit AG was that the deceased was “deemed not fit” for surgical intervention, to which I have referred at [39] above, and to the other evidence to which I have referred at [40] above. She noted that, in the first question set out in the latter paragraph, the scenario put to Dr Bailey expressly referred to a kidney tumour, and that there was an objection to the second question concerning the decision not to operate on the deceased’s fracture.

The Crown noted that, in response to the objection, the Crown Prosecutor had pointed out that all of the notes from the hospital contained in Exhibit AG had already been brought into evidence. The Crown then pointed out that the issue being discussed was whether Dr Bailey could be asked whether she could see from the hospital records why there was no surgical intervention. During the course of this discussion, the Crown Prosecutor had indicated that the evidence intended to be led from Dr Bailey was that the decision was made “not to surgically to intervene in this because there had already been a decision made that there would be no surgery if anything arose that required it because of [the deceased’s] frailty and lack of functioning”.

The Crown then referred to the note from the records of St Vincent’s Hospital which I have set out at [12] above, which referred to a decision having been made that, if another episode of aspiration pneumonia occurred, then the deceased be “not for resuscitation” and that a certificate to that effect had been signed. The Crown submitted that this note showed that the decision to not surgically intervene was made prior to the transfer of the deceased to the nursing home and prior to his later transfer to Prince of Wales Hospital, without any issue with respect to the fracture and without any reference to the other medical issues which were later identified.

The Crown submitted that, in those circumstances, it was open to infer from the Prince of Wales Hospital notes contained in Exhibit AG that the decision of Mr Zitserman at this point was made as a consequence of the injuries which the deceased had sustained and the decline in his quality of life. The Crown referred to what was described as the “key entry” in the notes from Prince of Wales Hospital contained in Exhibit AG, being the recording of the “decision to proceed not surgically but by way of comfort care”. The Crown pointed out that the entry on the first page of the notes recorded a consultation with an “ortho” and referred to the deceased being admitted for “aspiration pneumonia”, and that paragraph 5 of the note referred to “possible aspiration sepsis”, being a similar condition to that referred to in the St Vincent’s Hospital notes.

The Crown submitted that this evidence gave rise to the issue of whether the inference was available that Mr Zitserman’s decision not to proceed by way of surgical intervention was “based on the quality of life that was actually being endured by [the deceased] at that time, as well as the serious injuries that [the deceased] had sustained from the assault but continued to exist”. The Crown submitted that this was the basis on which the Crown Prosecutor addressed the jury in closing.

The Crown accepted that one of the ways in which the Crown case was put in the closing address was based on the decision not to have the surgery, but did not accept that this was the only basis. The Crown submitted that the statement by the Crown Prosecutor to which I have referred at [54] above addressed the fact that the deceased was at risk of falls as a consequence of the injuries. The Crown stated that this was supported by the documents from the nursing home contained in Exhibit AD to which I have referred at [22]-[27] above, and the evidence of Ms McKern which I have set out at [18]-[21] above. In those circumstances, the Crown submitted that the case was left to the jury on the basis that the fracture was not “pathological” and did relate to the earlier injury, and that the jury were entitled to conclude that the injury was not actually a pathological fracture.

In summary, the Crown submitted that the principal manner in which its case was put was whether the kidney tumour had “anything to do” with the fracture and that there was enough evidence to find beyond reasonable doubt that it did not. The Crown submitted that its alternative case was that, whatever was the cause of the fracture, there was still a direct relationship between the effects of the initial attack and the death of the deceased.

There are a number of matters that should be noted at the outset. First, as I indicated at [75] above, the applicant does not complain of injustice because of the way the Crown changed its case or that there was procedural prejudice. Although senior counsel for the applicant criticised the “emotional” fashion in which the jury was addressed, it was not relied upon as a ground of appeal. This is not a case where it was contended that material which was irrelevant and prejudicial to an accused was wrongly left before the jury: cf Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 (Patel). Rather, the submission was that there was no evidence to support the way the Crown case, at least in one fashion, was put to the jury.

Second, as I have indicated, neither counsel for the applicant nor counsel for his co-accused made any complaint at the trial about the directions given by the trial judge, nor did they complain about any portion of the Crown closing address. Although I am of the view that, if the case was in fact put to the jury in a way in which there was no evidence to support it, substantial injustice would have been occasioned to the applicant such that r 4 of the Criminal Appeal Rules (NSW) would not apply, there is some significance in the fact that the alleged evidentiary lacunae in the Crown case was not apparent to either the trial judge nor counsel for either the applicant or his co-accused.

Third, the Crown submitted that the Crown case, as put to the jury, was that the fracture was not “pathological” and related to the injuries sustained as a result of the assault. That seems to be correct from the extract from the Crown closing address which I have set out at [56] above, the address of senior counsel for the co-accused to which I have referred at [58] above, and those portions of the summing-up of the trial judge referred to at [61] above. The Crown also submitted that the alternative Crown case put to the jury was that there was a direct relationship between the injuries sustained in the assault and the death, irrespective of the cause of the fracture. Once again, there seems to be little doubt that the Crown put its case in that fashion: see the passages from the Crown closing address which I have set out at [54]-[56] above.

The applicant did not seem to contend that the first way that the Crown put its case was not open on the evidence. However, it was submitted that what was described as the “alternate Crown case” was not. If this is so, and the jury were asked to reason in a manner in respect of which there was no evidence, then the ground of appeal would be made out. To consider this issue, it is necessary to consider both ways in which the Crown put its case.

The jury was directed by the trial judge that they needed to be satisfied beyond reasonable doubt that the assault was a “substantial or significant cause of death”. That was the formulation preferred by Deane and Dawson JJ in Royall v The Queen (1991) 172 CLR 378 at 411; [1991] HCA 27 (Royall). That formulation has generally been accepted: see Moffatt v The Queen [2000] NSWCCA 174 at [70]-[71]; Reynolds v The Queen [2015] NSWCCA 29 at [41]; Patel at [75]; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [15] (Osland).

It seems to me that it was open to the jury to convict in the manner in which the Crown case was first put, namely, that the fracture resulted from a fall which occurred as a result of the injuries and disabilities he suffered from the assault. The evidence which I have summarised at [7]-[27] above shows the significant deterioration in the condition of the deceased when compared to his condition prior thereto, the deceased’s lack of cognitive ability, and importantly, his propensity to fall. Leaving aside for the moment the question of whether the fracture was “pathological”, it was open to the jury to be satisfied beyond reasonable doubt that the fall which caused the fracture resulted from, or was at least substantially contributed to by, the injuries and disabilities resulting from the assault. Further, as the trial judge pointed out in her summing-up, which I have noted at [65] above, it was “not in issue that the direct cause of [the deceased’s] death was the respiratory distress caused by fat emboli travelling to small vessels in the lungs, which was in turn caused by the fracture of the neck of the femur”.

Further, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the fracture was not a pathological fracture. Dr Bailey stated that, while she had found the kidney tumour during the autopsy, she found no evidence of metastasis, or the “spread”, of the tumour, although she said that she could not confirm or deny the possibility the fracture was “pathological”, as I have noted at [38] above. Dr Watson and Professor Fox were of the view that, although metastasis to the left femur could not be fully excluded, the absence of evidence that it had occurred made it “less likely”, while Professor Cordner stated that metastasis in the bone was “unlikely” but a “reasonable possibility”, not in the sense that “everything is possible”, but a possibility that he could “easily conceive of” and which “should be taken into account”. However, he did explain that bones do not usually fracture by themselves, although if they are diseased because of cancer, a bone may “fracture by itself or fracture with much less force than required to ordinarily cause a fracture”, as I have noted at [50] above.

Based on that evidence, it seems to me that the jury was entitled to conclude that the fracture resulted from a fall which was a consequence of the injuries and disabilities suffered as a result of the assault, particularly having regard to the absence of evidence of metastasis in the bone. There was no evidence to suggest that the bone fractured by itself, and even if there was a possibility that the tumour had metastasised to the bone, the fact that the bone may be fractured more readily did not mean that the fracture was not caused by a fall. What was critical was that the jury needed to be satisfied that, because of his injuries and disabilities, the deceased could not be surgically treated. The notes from Prince of Wales Hospital contained in Exhibit AG, particularly with reference to the discussion about surgical intervention previously recorded by St Vincent’s Hospital, confirmed that this was the case. The jury was entitled to conclude that, but for the earlier injuries, he could have been treated.

This seems to follow from the evidence of Dr Bailey to which I have referred at [40] above, and the evidence of Professor Fox that, if he had a patient of the age of the deceased with a diagnosis of carcinoma, he would refer the patient to surgery. While Professor Cordner did not go so far, he described the deceased’s disabilities as contributing “to an unknown extent” in his death and he stated that the failure to pin or surgically treat a fracture in a 78-year-old man would “probably be fatal”, depending upon the concentration of fat emboli in the lungs, which he said seemed to have been “substantial in this case”, as I have set out at [52] above.

In those circumstances, if the jury was satisfied that the fracture resulted from a fall, rather than simply being a pathological fracture having nothing to do with a fall, then they were entitled to conclude that the assault was a “substantial or significant cause of death”.

The alternative way that the Crown case was put was that, even if the fracture was “pathological”, occurring as a result of the kidney tumour, then the jury could still be satisfied beyond reasonable doubt that the assault was a “substantial or significant cause of death”. That gives rise to the question of whether such a pathological fracture was an “intervening event” which broke the chain of causation even if it could be found that the death would not have occurred “but for” the assault: see the discussion by McHugh J in Royall at 448-449; see also Osland at [145]-[147].

The fact that an intervening event could be seen as a cause of the death does not necessarily mean that the original act (in this case, the assault) did not remain a “substantial or significant cause”. The position was explained by the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. In that case, a university professor was injured in a motor vehicle accident. He resumed his university duties, but later retired four and a half years before retirement age because the pain and sleepiness and associated loss of “intellectual energy” made him unable to discharge his duties to his satisfaction, as opposed to the satisfaction of his employer. It was held, notwithstanding that decision, that he was entitled to damages for loss of earning capacity. The majority made the following remarks at 6-7:

Although these remarks were made in the context of a claim for damages for negligence, as McHugh J pointed out in Royall at 448, the “broad principles of causation applicable in civil cases should be equally applicable in criminal cases”, although the object of the inquiry in criminal cases is to determine moral culpability and a different standard of proof applies.

Applying these principles, even if the jury was not able to exclude the possibility of a pathological fracture, they were still entitled to conclude that the assault and the injuries and disabilities sustained by the deceased as a result were a “substantial or significant cause of death” of the deceased. For reasons that I have given, the jury were entitled to be satisfied that the cause of death resulted from the inability to surgically treat the fracture, and that that inability had nothing to do with the existence of the tumour or, for that matter, the cause of the fracture. However, they were entitled to be satisfied that a significant reason for the inability to surgically treat the fracture was the consequence of the injuries suffered from the assault.

This conclusion is supported by the evidence of the deterioration in the deceased’s condition, the evidence that, after the aspiration pneumonia which the deceased suffered while at St Vincent’s Hospital, it was determined that if a similar incident occurred he would be “Not for Resuscitation”, the evidence of his condition at the nursing home, and the ultimate decision not to operate at Prince of Wales Hospital, which referred back to the earlier decision made at St Vincent’s Hospital. I have summarised the evidence above and will not repeat it. Taking all of it into account, in my opinion, the jury were entitled to be satisfied beyond reasonable doubt that, irrespective of the cause of the fracture, the injuries suffered as a result of the assault remained a “substantial or significant cause” of the death of the deceased.

Thus, there was evidence on which the jury could have convicted on either of the two approaches put forward by the Crown at the hearing. In these circumstances, the jury was not asked by the Crown to embark on a process of reasoning unsupported by the evidence.

Therefore, leave to appeal should be granted, but the appeal should be dismissed.

HOEBEN CJ AT CL: I agree with the Chief Justice and the orders which he proposes.

R A HULME J: I agree with Bathurst CJ.