Introduction
The
use of acid as a weapon has unfortunately become a horrific trend in the United
Kingdom, with the potential to deliver catastrophic and life changing harm. The
case of R v Wallace involves truly appalling injuries. The suffering resultant from those injuries led the victim to undergo euthanasia. Haunting though the
case is, the decision from the Court of Appeal raises interesting issues of
causation. Where a person commits suicide from their injuries, even where the
person was not likely to die of those injuries, it may mean that the defendant can
be found guilty of murder.
Facts
Berlinah
Wallace and Mark van Dongen had been in a relationship for approximately 5
years. Van Dongen had ended the
relationship, and left Wallace for another woman. On 23rd September
2015, van Dongen went to Wallace’s house and stayed the night. Wallace had
purchased 1L of 98% concentrated sulphuric acid over the internet, prior to van
Dongen’s visit. As van Dognen slept, wearing only his boxer shorts, Wallace shouted
‘if I can’t have you, nobody can’, and threw a full glass of acid over van
Dongen’s face and body.
As
van Dongen screamed out in pain, running into the street to seek help, a nonchalant Wallace phoned
a friend. She made no attempt to contact the emergency services. The resulting
injuries to van Dongen were catastrophic. The burns and subsequent skin grafts
covered over 40% of his total body area. He spent 11 months in intensive care,
losing full sight in his left eye, and most of the sight in his right eye. He suffered
the amputation of his leg left, damage to his bowels, septicaemia, kidney
damage, chest infections, and later developed Critical Illness Neuropathy which
rendered him paralysed from the neck down. His facial scarring was of the most
severe category.
With his family's help, van Dongen moved to Belgium, where his father lived. Whilst
he regained the use of his speech, after several months, due to a lung
infection, van Dongen required a tube to be inserted into his throat. The procedure
carried a very high risk that he would lose his voice, though if he did not
have the tube inserted, he would die.
Under certain strict circumstances,
euthanasia is legal in Belgium. Among several other criteria, Belgian doctors
must be satisfied the patient was in a ‘medically futile condition of constant
and unbearable physical or mental suffering that cannot be alleviated’ in order
to carry out such a process. Van Dongen applied for euthanasia in Belgium on 1st
December 2016. On 2nd January 2017, doctors ended his life.
Wallace
was charged initially with applying a corrosive fluid with intent contrary to
section 29 of the Offences Against the Person Act 1861. After van Dongen’s
death, she was also charged with murder.
The appeal
The
discussion this post focuses on comes from an appeal from the prosecution. The
appeal sought to challenge a decision by the judge at trial, who accepted a
submission of no case to answer in relation to the murder charge. The trial
judge accepted the reasoning that - had the euthanasia been conducted in this
jurisdiction, it would have been murder, and that would have inevitably broken
the causal link between the actions of the defendant and van Dongen’s death. The
trial judge therefore withdrew the charge of murder from the jury. The Court of
Appeal disagreed with the trial judge, and ruled that murder could be
considered by the jury, which necessitated a retrial. A summary of the
comprehensive discussion regarding causation will be detailed below.
The
full decision of the Court of Appeal can be found here:
Conviction and sentence
After
a retrial, the jury returned a verdict of not guilty in relation to the murder
charge, and a verdict of guilty to the charge under s.29 of the 1861 act. In the relatively lengthy sentencing
remarks, the judge emphasised the cruelty of the crime, the horrific extent of
van Dongen’s injuries and the complete lack of remorse Wallace demonstrated.
The judge gave Wallace a life sentence, with a minimum term of 12 years to be served
before she can be considered eligible for parole. Only once this term is
served, and the parole board consider Wallace to no longer be a danger to the
public, will she be released. She will also remain on licence for the rest of
her life.
The
sentencing remarks can be found here:
How could a jury find
Wallace guilty of s.29, but not murder?
As
a jury always deliberates in secret, free from all external influence, this is
unknown. However, the appeal document is very helpful in this regard as it
provides a template for the directions to be given to the jury. Though the exact words may not have been
delivered by the judge, it is highly likely the trial judge used a similar
version of these questions, albeit tailored to the evidence presented at trial.
The
suggested questions of the Court of Appeal are pasted below to give a sense of
what the jurors would have been asked before determining their verdict.
1. Are
you sure that the defendant deliberately threw acid over Mr van Dongen?
2. Are
you sure that at the time of the attack the defendant intended to kill Mr van
Dongen or at least cause him serious bodily harm?
3.In
order to convict the defendant (of murder) you must be sure that the
defendant’s unlawful act of throwing acid over Mr van Dongen caused his death.
That is a question of fact that you
should answer using your collective common sense. It is common ground that but
for the injuries caused by the acid attack, Mr van Dongen would not have undergone
voluntary euthanasia. If you are sure this is the case, go on to ask yourself:
3(a). Are you sure that the defendant’s
unlawful act of throwing acid over Mr van Dongen was a significant and operating
cause of death?
The injuries do not need to be the only
cause of death but they must play more than a minimal part in causing Mr van
Dongen’s death.
Consider all the circumstances, including
the nature and extent of Mr van Dongen’s injuries, the passage of time,
intervening events, the involvement of the doctors in carrying out the
voluntary euthanasia at Mr van Dongen’s request, what Mr van Dongen was told
and what he said.
If your answer is yes, proceed to
question 3(b). If you are not sure, your verdict on (the count of murder) will
be not guilty.
3(b). Are you sure that at the time of the acid attack it
was reasonably foreseeable that a defendant would commit suicide as a result of
his injuries.
In answering this question consider all
the circumstances, including the nature of the attack, what the defendant did
and said at the time and whether or not Mr van Dongen’s decision to undergo
voluntary euthanasia fell within the range of responses which might have been
expected from a victim in his situation.
If your answer is yes your verdict on
count 1 will be guilty. If your answer is no, your verdict on (the count of
murder) will be not guilty.
So,
a jury may be sure that the defendant deliberately threw acid over van Dongen.
It may also be sure Wallace at least intended to cause really serious bodily
harm. Being satisfied of these questions would be enough to return a verdict of
guilty in relation to the charge of applying a corrosive fluid with intent.
They may not, however, because of van Dongen’s decision to have doctors end his
life, have been sure that Wallace’s throwing of acid was an operating or
substantial cause of his death.
Even
if the jury were sure that the throwing of acid was an operating or substantial
cause of his death, they may not have been sure that van Dongen’s decision to
commit suicide was a reasonably foreseeable result of his injuries. Clearly,
the questions posed in 3(a) and 3(b) have elements of causation that may have
been difficult to grapple with. This may explain why the jury found the
defendant guilty of s.29, but not murder.
How is causation determined?
The
judge in the case started out by reiterating a position established in R v
Hughes [2013] UKSC, which stated there is not a settled or stable concept or
causation, and different legal rulings may apply to different situations. The
law has subsequently developed multiple principles to apply in order to determine
liability in causation.
The
‘but for’ test forms the foundation of factual causation. The test can be
stated as: but for the defendant’s actions, harm would not have come to the
victim. Applying this to the present case, but for the throwing of acid by
Wallace, van Dongen would not have taken the decision to end his life. The judge re-emphasised that it is wrong to
place too much weight on the but for test,
but reasoned that ‘the connection between the inflicted injuries and death
was…a direct and discernible one…inextricably bound up’ in the actions of the
defendant. It could not be disputed that van Dongen’s unbearable suffering was
the result of the defendant’s conduct, and but for that unbearable suffering,
he would not have requested euthanasia, nor would the Belgian doctors have lawfully
carried it out.
However,
an intervening act, known as novus actus
interveniens is capable of breaking the chain of causation, which potentially
absolves the defendant from liability. A prevailing principle within this is referred to in the Court of Appeal judgement, citing a Canadian case, R v Maybin [2012] SSC 24, which states that where an intervening act
occurs, if the defendant’s conduct is a substantial
and operative cause of the result, the defendant will be responsible. The jury is not tasked with evaluating
competing causes to determine which was dominant; citing the principles of R v Smith [1959] 2 Q.B 35, the defendant’s acts need not
be the sole cause or even main cause of death. All is required is that the
defendant’s acts contributed to the result.
Only if the second cause of death is so overwhelming, rendering the original
wound ‘merely part of the history’, will the chain of causation be broken.
In
R v Kennedy (No 2) [2007] UKHL 38, the accused prepared a syringe of heroin and
gave it to the victim. The victim injected himself, returned the syringe, but
died shortly after. As the victim knew what he was doing, and freely and
voluntarily chose to inject himself, the chain of causation was broken, and the
House of Lords ruled that the accused did not ‘cause’ the drug to be
administered. The judge in the present case distinguished Kennedy, stating that the
position of the drug addict ‘was not truly analogous’ to the situation of van
Dongen. The victim in Kennedy was not faced with responding to the extreme
circumstances that van Dongen was, nor, in the judge’s view, were those
circumstances created by the accused. The judge went on to say that Wallace put
van Dongen in a position requiring him to make a decision he never would have
otherwise made. Even though the Belgian doctors considered van Dongen’s request
to be ‘voluntary’ adhering to the Belgian euthanasia legislation, the judge
did not consider this to be determinative, as due to the truly terrible situation
van Dongen was in, his action could not decently be described as voluntary.
In R v Dear [1996] Crim. LR 595, the defendant slashed the face of a man with a Stanley knife, believing the victim had abused his daughter. The victim received treatment and began to recover but reopened his wounds in an apparent suicide attempt, and subsequently died of his injuries. When
considering an intervening act, the jury must be satisfied that the intervening
act, if done by the victim, was ‘within the range of responses which might have
been expected of him’ in his situation, as held in Dear. It is whether his reaction
was so ‘daft to make it (the victim’s) own voluntary act’ and thus break the
chain of causation, as held in R v Roberts [1971] 55 Cr. App.R 95. The
assessment is objective, based upon the reasonable man's response were he to
have the victim’s characteristics, and be placed in their circumstances. Any
pre-existing conditions, including religious beliefs, are taken into account.
The
judge ruled that the request for euthanasia by van Dongen, and the action taken
by the doctors to then end his life could not reasonably be separated. She
reasoned that it would be an odd result, where two victims attacked in
identical circumstances rendered one able to take his own life but the other
requiring assistance from doctors, meant that their attacker could only be
legally responsible for one of their victims' death.
The judge relied on the decision in Dear to say that ‘seeking death in response
to horrific injury does not preclude a jury from finding that the defendant’s
conduct made a significant contribution to Mr van Dongen’s death.’
The judge accordingly allowed the appeal, and ordered a retrial so that the jury
could consider the charge of murder.
Commentary
This
decision has potentially wide reaching consequences. It remains to be seen what
could be made of a similar, though different set of facts. Where a victim
finds himself in circumstances so dire as a result of an injury, whether from acid, knife, firearm
or otherwise, his decision to end his life has the potential to turn a charge
of grievous bodily harm in to murder. It is suspected the severity of the
injuries inflicted, and the response to end one’s life will significantly
influence the decision as to whether legal causation is made out, and whether a charge
of murder is appropriate. It is difficult to imagine injury and suffering
worse than that experienced by Mr van Dongen. It is submitted that in most other cases involving less serious injury, where a victim later takes their own life, a break in the chain of causation is highly probable. As R v Wallace shows, however, this will not always be the case. Nevertheless, Wallace might better be seen as an exception, rather than a rule.
Conclusion
The
principles within causation are complex, and are often unsettled as case law
admits. Where intervening acts are concerned, the key question is whether the
defendant’s action remains a substantial and operative cause of the result. The
defendant remains liable where the victim’s response to the defendant’s act was
within a reasonable range of responses considering the circumstances, or they
have a pre-existing condition. Whilst a free and voluntary act typically breaks the chain of causation, where that decision arises from extreme
circumstances, as this case holds, the defendant may still remain liable.
