Court of Appeal quashes manslaughter conviction where deceased's independent re-entry into burning building broke causal chain.

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THE COURT OF APPEAL Neutral Citation: [2025] IECA 214 Record Number: 122/2023 Kennedy J.

Butler J.

Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT -AND-

DEAN BOLAND APPELLANT

JUDGMENT of the Court delivered on the 7th day of October, 2025 by Ms. Justice Tara Burns

1. This is an appeal against conviction. On 16 December 2022, following a trial before Dublin Circuit Criminal Court, the appellant was found guilty of manslaughter contrary to common law, arson contrary to s. 2(1) and (4)

of the Criminal Damage Act 1991, and burglary contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. This appeal relates solely to the appellant’s conviction for manslaughter (Count 1) with the appellant abandoning his appeal against his conviction on the other two counts.

2. On 30 March 2023, the appellant was sentenced to eight years imprisonment on count 1 with counts 2 and 3 taken into consideration.

Background

3. The deceased lived, with two others, in an upstairs apartment of a building which housed two apartments. On 21 August 2018, a fire was started by the appellant in the ground floor apartment of this building where an acquaintance of the appellant’s resided.

4. CCTV captured a taxi arriving at the building at 2.36am and someone entering the ground floor apartment, through a window, at 2.50am. This transpired to be the appellant. One of the occupants of the upstairs apartment was woken around 3am by loud banging on the apartment door downstairs. Whilst he fell back to sleep, he was aroused again approximately 10 minutes later by the smell of smoke which already was making it difficult to breathe. When he looked out the window, he saw a fire and realised that the situation was urgent. He woke his two flatmates and all three of them, to include the deceased, exited the building to safety at 3.12am.

5. After they left the building and reached a safe distance, the three flatmates initially spoke with each other. The appellant was loitering outside the building. The deceased engaged with him by shouting at him and asking him what was he doing hanging around. One of the other occupants also spoke with the appellant. The other two occupants each rang the fire brigade with the first call recorded at 3.19am. After those calls were made, the deceased re-entered the building and went upstairs. The reason for him so doing is unknown. His flatmates attempted to follow him, but the guards who arrived at the scene stopped them as the situation was too dangerous.

The deceased was subsequently found dead in his apartment having sustained hypoxic-ischemic encephalopathy as a result of cardiac arrest following inhalation of smoke and fire gases.

6. A direction application pursuant to R v. Gallbraith (1981) 73 Cr App R 124 was moved by the appellant at the conclusion of the respondent’s evidence.

The basis for the application relevant to count 1 was a submission that the respondent had failed to establish causation on the part of the appellant.

The appellant submitted that the fact of the deceased re-entering the building having reached safety from the fire, constituted a novus actus interveniens which broke the chain of causation such that there was insufficient evidence before the jury to enable them to safely return a verdict of guilty with respect to the charge of manslaughter. This application was refused by the trial judge. Count 1 proceeded to be considered by the jury who returned a guilty verdict.

Grounds of Appeal

7. The appellant filed a notice of appeal indicating his desire to appeal his conviction on a number of grounds. The sole ground proceeded with for the purpose of this appeal relates to the issue of causation and is as follows:-

1. “The court erred in law and fact by holding that the decision made by the deceased at a time when he was outside the house, and in safety, to return to the burning building did not amount to a novus actus interveniens that should have resulted in the withdrawal of the Count of unlawful killing from the jury.”

The Parties Submissions

8. The appellant submitted that the deceased’s decision to re-enter the property after he reached safety from the fire was a novus actus interveniens. It was submitted that this was a free, deliberate and fully informed act which was not foreseeable, was unreasonable and was the sole cause of the deceased’s death. Having reached distance and safety from the fire, and having sight and knowledge of the danger presenting, the deceased made an independent and separate choice to re-enter the property. It was submitted that the action of the deceased broke the chain of causation with respect to the appellant and that the legal test required to establish causation was not made out on the evidence. Whilst the question of causation was a question of fact for the jury to determine, in circumstances where there was insufficient evidence for the jury properly charged to reach the conclusion that the appellant caused the death of the deceased, it was appropriate for the trial judge to withdraw the manslaughter count from the jury under the first limb of Gallbraith.

9. The respondent submitted that the trial judge did not err in refusing to withdraw the manslaughter count from the jury. In the first instance, the question of causation was a question of fact which fell within the remit of the jury. A determination by the trial judge of this issue trespassed on the jury’s function. In addition, the cause of the deceased’s death was the fire which the appellant had started. If there had not been a fire, the deceased would not have met his death. In those circumstances, it was submitted that the appellant had substantially contributed to the deceased’s demise.

Discussion and Determination Whether the issue of causation can be withdrawn from the jury

10. The respondent submitted that as the question of causation is a question of fact, it would have been inappropriate for the trial judge to determine this issue; that this was solely a matter for the jury to determine having been appropriately directed by the judge in relation to the doctrine of novus actus interveniens. The appellant accepted that the question of causation was a matter for the jury, but submitted that on the facts of this very exceptional case there simply was no evidence whereby a jury, properly charged, could be satisfied to the requisite standard that the appellant had caused the deceased’s death and that therefore it was appropriate under the first limb of Gallbraith to withdraw the case from the jury.

11. Leaving aside the particular facts of this case for the purpose of this legal issue, we are of the opinion that while causation is a question of fact for the jury, similar to any necessary proof in a criminal case, the respondent must be in a position to establish some evidence in relation to it to permit the jury consider that issue. If no evidence exists in relation to a proof which must be established (causation being such a proof) to enable the jury make a determination that an offence is made out, then it is appropriate that a direction application be granted pursuant to the first limb of Gallbraith in which Lord Lane stated:- “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty.

The judge will of course stop the case.”

12. In a homicide case, the question of whether an accused caused the death of the deceased is a necessary proof. Accordingly, if there is no evidence that the accused caused the death of the deceased, then the case must be withdrawn from the jury. The question of fact as to whether an accused caused the death of another must be determined by reference to the legal test of causation. If the test of causation cannot be met on the evidence adduced, then the case must be withdrawn from the jury. Hence, the trial judge has a role in determining whether the evidence is such that the test of causation is met. Indeed, many of the authorities referred to by the parties arose from direction applications made in the underlying trials where it was asserted to the trial judge that the legal test of causation was not established. This view is reflected in Criminal Law by Charlton, McDermott and Bolger (and adopted by the Supreme Court in Dunne v. DPP [2017] 3 IR 1) where at para 10.26, the authors state:

“The accused will legally have caused the death of the victim if the accused’s act, or acts, substantially contributed to the subsequent death, taking onto account the time at which, and the manner in which the death occurred. It is a function of the judge to decide whether there is any evidence reasonably capable of supporting a

conclusion that the accused’s act was still a substantially contributing

factor at the time when the victim died, having regard to the manner of his death.”

13. The test of causation in a manslaughter case was considered by this Court in DPP v. Joel [2016] 3 IR 363. The question arose as to whether the test which had to be satisfied to establish causation was the “de minimis” or ‘substantial cause’ test. Birmingham J delivering the judgment of the Court, stated at para. 33 of his judgment:-

“The issue is the subject of a very helpful discussion, at pp. 251 to

253 in McAuley and McCutcheon, Criminal Liability (Round Hall, Dublin 2000). They correctly point out that the difference between the de minimis test and the substantive cause test is largely one of degree. The former is liable to cast the net wider than the latter – something which fails to satisfy the substantial cause test might still be more than minimal. The authors opine that in cases of what Glanville Williams, Textbook of Criminal Law, (2nd ed., Stevens & Sons, London, 1983) describes as incomplete mens rea, such a manslaughter, the jury should be told that the issue is whether the actions or omissions of the accused were a substantial cause of the death. Such an approach is consistent with fundamental constitutional principles. If the situation was otherwise, it would mean that someone who had contributed to the death only minimally and whose contribution was dwarfed by the contribution of others could be solely made account.”

14. We agree that the test of causation in a manslaughter case is one of ‘substantial cause’ rather than the de minimis test.

15. In a case such as the present, where an issue arose as to whether the actions of an accused caused the death of the deceased, it was not improper nor a trespass on the jury’s function for the trial judge to determine whether the jury, properly charged, could come to the conclusion that the appellant’s actions were a substantial cause of the deceased’s death.

Accordingly, an application to seek a direction on Count 1 was available for the appellant to make and the trial judge to consider.

Whether the Test of Causation was met?

The Jurisprudence

16. The appellant asserted that the act of the deceased re-entering the burning house, when he already had reached safety, constituted a novus actus interveniens such that the appellant could not be said to have caused the deceased’s death. It was submitted that the act of re-entry was a voluntary, independent, unreasonable and unforeseeable act which was the true cause of the deceased’s death and which broke the chain of causation with respect to the appellant’s unlawful act of committing arson at the property.

17. The respondent argued that while the act of the deceased may have been unreasonable and unforeseeable, account had to be taken of the pressurised and stressful circumstances which the appellant found himself in when assessing the voluntariness of his actions. It was further submitted that ‘but for’ the fire which was started by the appellant, the death of the deceased would not have occurred. As the fire in the building was the cause of the deceased’s death, the appellant’s role in starting that fire was a substantial contributing factor to the deceased’s death.

18. The question of causation and the doctrine of novus actus interveniens has been considered throughout the common law world. However, as counselled by the House of Lords in R v. Kennedy [2007] UKHL 38, “causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.” It is not proposed to conduct an analysis of all of the many judgments covering this topic, but rather to focus on particular judgments which are of relevance to the set of circumstances arising in the instant matter.

19. R v. Smith [1959] 2 QB 35, involved a victim of a stabbing who received very poor medical treatment in the immediate aftermath of the assault and passed away. The Court Martial Appeal Court determined that the jury could find that the death was a result of the stabbing. It stated at p 42 of its judgment:-

“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.”

20. R v. Hallet [1969] SASR 141 (a decision of the Supreme Court of Australia)

involved the death of a person assaulted by the accused who was left unconscious on a beach and died due to the ordinary operations of the incoming tide. Bray CJ, delivering the judgment of the court said:-

“Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation. The death of the deceased is the material event. The question to be asked is whether an act … consciously performed by an accused is … so connected with the event that it … must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.”

As there was nothing extraordinary in the tidal activity at the time of the death, it was determined that the assault was a substantial cause of the death.

21. R v. Kennedy related to the death of a drug user arising from the provision of a needle containing heroin to him. Manslaughter was charged against the provider of the needle. The deceased injected himself with the drug rather than it being administered by the provider of the needle. In determining whether it was lawful that the provider of the needle was found guilty of manslaughter, the House of Lords emphasised that the criminal law generally assumes the existence of free will. Whilst acknowledging that the law recognises certain exceptions such as youth, vulnerability, duress and some others “generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decision how they will act”. It referred to an article of Professor Glanville Williams - Finis for Novus Actus? (1989) 48(3) CLJ 391, where he noted at p. 392 that a “volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going irrespective of what has happened before.”

The court found that it was not appropriate to find the provider of the needle guilty of manslaughter where the deceased freely and voluntarily selfadministered the drug.

22. Whilst the doctrine of novus actus interveniens recognises that an informed and voluntary act can cause a break in the chain of causation, recognition is given to the fact that a person subjected to an attack, may react in an unusual way having regard to stressful situation they find themselves in and in those circumstances the chain of causation will be held not to have been broken. Returning to the learned author Professor Glanville Williams, he wrote in his article Finis for Novus Actus? at p. 392:

“The first actor who starts on a dangerous or criminal plan will often be responsible for what happens if no one else intervenes; but a subsequent actor who has reached responsible years, is of sound mind, has full knowledge of what he is doing, and is not acting under intimidation or other pressure or stress resulting from the defendant’s conduct replaces himself as the responsible actor. Such an intervening act is thought to break the moral connection that would otherwise have been perceived between the defendant’s acts and the forbidden consequence.”

23. However, recognition that a stressful situation may result in the victim doing something unusual or unforeseen is not without limitation. A reaction by a victim which has been described as ‘daft’ will be viewed as causing a break in the chain of causation.

24. In R v. Roberts [1971] 56 Cr. App. R. 95, Stephenson LJ sated at p 102 of this judgment:-

“The test is: Was [the victim's reaction] the natural result of what the alleged assailant said and did in the sense that it was something that could reasonably have been foreseen as the consequences of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it both that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.”

25. The Canadian Supreme Court decision in R v. Maybin [2012] IECA 65 considered the question of causation in circumstances where the deceased had been subjected to a number of blows to the head by three men. Two of the men (the appellants in the case) had become involved in a bar room brawl with the deceased, rendering him unconscious. Thereafter the deceased was again beaten about the head by a bouncer who came on the scene almost immediately and struck the deceased after he was identified to the bouncer as the person who caused the fight. The medical evidence was inconclusive as to which strike caused the death. The trial judge directed acquittals of all three. An appeal to the Court of Appeal by the prosecution resulted in an order for the retrial of the two initial assaulters.

They appealed against this order.

26. Karakatsanis J, delivering the judgment of the Supreme Court, emphasised the importance of the factual context at issue in a given case with the overriding test being whether the dangerous and unlawful acts of an accused were a significant contributing cause of the victim’s death. He stated at paras 29 and 60 of his judgment:-

“29. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.

…

60. Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. These approaches grapple with the issue of the moral connection between the accused acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. In my view these approaches may be useful tools depending upon the factual context however the analysis must focus on first principles and recognise that these tools do not alter the standard of causation or substitute new tests. The dangerous and unlawful acts of the accused must be a significant contributing cause to the victim's death.”

27. After a detailed analysis, the court found that it was foreseeable that the deceased would be subjected to another incident after the first assaults he was subjected to, whether that came from other patrons or security staff, in light of the brawl which had earlier arisen in the bar, and that the act of the bouncer could not properly be described as unforeseeable or an independent act. In making this determination, the court considered that “while the general nature of the ensuring acts and the risk of further harm may be reasonably likely, the specific manner in which it could occur may be entirely unpredictable”. The court held, however, that “[f]rom the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts” and that “the specific act need not be reasonably foreseeable.” In the circumstances of that case, the court determined that the actions of the initial assaulters were a substantially contributing factor to the deceased’s death.

28. In R v. Wallace, [2018] EWCA Crim 690, the Court of Appeal in England considered whether the perpetrator of a sulphuric acid attack on the deceased, which resulted in the deceased sustaining catastrophic physical and psychological injuries, could be held liable for his death which occurred by him choosing to end his life by euthanasia. The court conducted an extensive analysis of the case law from various jurisdictions in relation to the issue of causation and examined the different approaches to this issue which have been variously adopted, to include the “but for” test;

independent and voluntary act; and reasonable and/or foreseeable act.

Sharp J delivering the ruling of the court reiterated the test of significant contribution stating at para 64 of her judgment:-

“The key factual question when evaluating legal causation in homicide cases – whether more than one case is said to operate or not – is … whether the accused acts can fairly be said to have made a significant contribution to the victim’s death.

29. Wallace distinguished Kennedy on the basis that Kennedy was not a case where the issue of novus actus interveniens arose because of the response of the victim to “(extreme) circumstances created by a defendant’s unlawful act, which were persisting, and which had put the victim into a position where he made a “choice” that he would never otherwise have had to make or would have made (not therefore…the sort of free and unfettered volition presupposed by the novus actus rule)”.

30. Ultimately, the court determined that the acid attack on the deceased significantly contributed to him wanting to end his life (which he was not in a position to effect himself due to injuries) because of the dreadful physical and psychological injuries sustained by him and that the deceased’s

decision to die and the act of the doctor who gave effect to this decision did not break the chain of causation. The court held at paragraph 61 that these acts “were not discrete acts or events independent of the defendant’s conduct, nor were they voluntary … [but] instead were a direct response to the inflicted injuries and to the circumstances created by them for which the defendant was responsible.”

31. Finally, in terms of our analysis of the law, we have had regard to the Criminal Law by Charlton, McDermott and Bolger, where, having emphasised that “causation is a scientific question divorced from blame”,

the authors set out a summary of the law relating to the question of causation at para. 10.22:-

• “the accused’s actions must be such that but for what he or she did the victim would not have died;

• that the accused merely established the setting wherein the victim was stricken is insufficient, since if liability were thus established, inviting a girl out to dinner for her bus to overturn on the way killing all the passengers would establish causation;

• by his or her own fault the accused must bring about the death of the victim and that fault is required to be the operative cause and not merely incidental for, were the law to be otherwise, driving a car carefully on the motorway without a licence for the victim to run into it and be killed might suffice;

• the accused’s actions must be a substantial, or not minimal, and operating cause of the death of the victim;

• violence and poisonings tend to cause resort to medical treatment and that sometimes can exacerbate whatever ill the accused has brought about but it is only if the intervention kills the victim, by so interfering that the original action of the accused becomes merely part of the history, that liability will be relieved by the chain of causation being broken;

• similarly, a stricken person may make some bad choices as to what to do, but it is only if, at the time of death, the actions of the accused do not make a substantial contribution to the victim’s death that the accused will not have caused it;

• victims vary and if the accused chooses to intervene with violence or poisoning or menaces, the state of the victim will not be compared to a fully healthy individual in the prime of life so as to relieve the accused of liability.”

32. In relation to independent and voluntary acts, the authors stated at para.

10.44:-

“An independent and unconnected action by the victim will not by part of the chain of causation. That action must be voluntary, that is resulting from the choice of the person and not a natural consequence of their being the victim of some wrong by the accused.”

Application

33. The test to establish causation on an accused’s part in a manslaughter case is whether the accused’s acts were a significant contributing factor to the deceased’s death (the causation test in a murder case in this jurisdiction is the deminimus test as per Dunne v. DPP). This is the overriding consideration in terms of the question of causation.

34. As is evident in the jurisprudence, to determine that issue, various approaches have been employed across the common law jurisdictions, which include considering whether “but for” the actions of the accused, would the deceased have died; whether what occurred after the accused’s act, which may have contributed to the deceased’s death, was foreseeable or reasonable and/or was an independent and voluntary act. Whilst an unusual reaction on the part of a deceased which contributed to his or her death might not be viewed as breaking the chain of causation if explicable by virtue of stress or panic arising from the situation which the deceased was in, a re-action which is “daft” or ill-advised breaks the chain of causation such that the acts of the original perpetrator of the harm at issue can no longer be said to be the cause of death.

35. The question of causation is fact specific. The various approaches which have been identified to determine the issue of causation may be more appropriate in some cases rather than in others depending on the circumstances arising. However, the overarching issue is the connection between the accused’s act and the subsequent death of the deceased and whether that act significantly contributed to the death.

36. With respect to the instant matter, the appellant committed the unlawful and dangerous act of arson. This could have had fatal consequences for all three occupants of the upstairs building. However, thankfully it did not, and the three occupants escaped from the upstairs apartment and reached a safe location outside the burning building.

37. Tragically, the deceased having escaped from the burning building; having reached safety; having spoken with his flatmates; and having remonstrated with the appellant, took the ill-advised step of re-entering the building several minutes after leaving the building and after phone calls had been made to the emergency services.

38. The act of re-entering the apartment was unreasonable and unforeseeable in the circumstances. However, we are not convinced that this is an appropriate test to apply when considering the question of causation, particularly as it appears bound up with considerations of an accused’s moral culpability which is not part of the “scientific” question of causation.

In any event, it appears to us that it is not a helpful consideration in the instant case when there is an understandable lack of evidence as to why the deceased re-entered the apartment with an unfounded assertion being made by the respondent that it is not uncommon for people to re-enter burning buildings to retrieve their possessions.

39. We are of the view that the “independent and voluntary act” analysis is more helpful in this matter. In light of the time spent outside the house by the deceased; the fact that the deceased on the evidence did not appear to be in a state of confusion; and the disconnect between emerging from the house and re-entering it, the act of the deceased re-entering the house was an independent and voluntary act on his part which was not brought about as a result of confusion, stress or panic, or a choice made to avoid a perceived greater danger. The deceased’s death in the circumstances arising was not the natural consequence of the arson. While the act of arson by the appellant has had tragic consequences, it cannot be the case that that that act was the cause of the deceased’s death.

40. Accordingly, we are of the view that while the deceased would not have died but for the fire which was started by the accused, the ill-judged step of returning to the fire broke the chain of causation. This was an independent and voluntary act which not the natural consequence of the arson offence which the deceased already had safely escaped from. The act of the accused starting the fire was the setting in which the deceased lost his life but was not the legal cause for the death.

41. Having regard to the specific facts of this case, we are of the opinion that that the appellant’s act of arson could not have significantly contributed to the death of the deceased and the legal test of caution was not met on the evidence. Accordingly, the trial judge erred in not withdrawing Count 1 from the jury.

Conclusion

42. As the appeal is limited to the appellant’s conviction on Count 1, we will quash his conviction in respect of Count 1.

Approved No Redaction Needed