A Study in Causation - Case in Focus: R v Wallace [2018] EWCA Crim 690



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 from which resulted in the victim deciding 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 their injuries, 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 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 the help of his father, van Dongen moved to Belgium after the attack, 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, and 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, and 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. Amongst many other things, in a relatively lengthy document of 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 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 license 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 was 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.[1]
           
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 took the decision to end his life. The judge re-emphasised that it is wrong to place too much weight on the but for test,[2] 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 comes from 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; 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.[3] 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.[4]

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, returning 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.[5]

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.[6]

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.[7] 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.’[8] 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.



[1] R v Wallace [2018] EWCA Crim 690, para 86
[2] March v E & MH Stramare Pty Ltd [1991] 171 CLR 506, para 48 of R v Wallace
[3] R v Smith [1959] 2 Q.B. 35
[4] Ibid
[5] R v Wallace [2018] EWCA Crim 690, para 76
[6] R v Blaue [1975] 1 WLR 1411
[7] R v Wallace [2018] EWCA Crim 690, para 85
[8] Ibid

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