Facts: A group of youths were in a fight where rocks and bricks, etc. were being thrown between a group of 7 and a group of 5. MD hit RM with a brick; he meant to throw it at him, but he misjudged and hit him with the brick before he let it go. RM died 9 days later, with 2 severe head injuries; one of which was caused by MD, and the other one’s cause his unknown. Pathologist concluded: 1-Cause of death was a cerebral contusion due to a fractured skull, 2-RM received 2 or more separate blows that could have been from the same or different objects, 3-both principal wounds were potentially fatal, 4-no distinction was made as to the seriousness of either wound, 5-Either wound=very probable cause of death, 6-no certain way of telling which injury came first, 7-There was reasonable and sensible possibility that the deceased might have recovered from the first injury, whichever that one was.
Procedural History: MD was being charged with murder and grievous bodily harm…to RM. In this case, the trial judge upheld the defense submission (see reasoning) at the close of the prosecution that it would be unsafe to leave the count to the jury.
Issue: Is the forehead injury, (the one cause by MD), the cause of RM’s death?
Holding: No. Cannot be determined that this injury was the cause of death.
Reasoning: Submissions: the Crown had failed to prove that MD was responsible for cause of death because, (a) evidence that it was a reasonable possibility that the injury behind the ear (other injury) caused the death and there was no evidence that MD was responsible for it, and (b) no evidence that the injury that MD did cause, cause death beyond a reasonable doubt.
Even if forehead injury (one caused by MD) was the first one, there was still a possibility of recovery. In sum: 1) there was another injury, 2) that injury may reasonably have been the cause of death and 3) that injury cannot be shown not to have been the cause of death.
Disposition: Not guilty of murder charge, later pleads guilty to counts 1 and 4 (see below)
Comments: MD changed the plea to guilty on Count 1 (affray) and Count 4 (grievous bodily harm).