FLINDERS LAW STUDENTS’ ASSOCIATION INC.
QUESTION BANK SUBMISSION COVER SHEET
BASIC DETAILS
Name
Vassallo v Grabovski
Competition
Open Moot
Year
2011
Round
Preliminary Round
Author
Mary Heath
QUESTION DETAILS
Primary Area of Law
Criminal
Judges Notes
Not provided
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Open Moot Question
Factual Context
Arturo Vassallo and Mikhail Grabovski were fellow members of a gun club, but they
were not the best of friends. Grabovski had won the election for President of the gun
club earlier that year, defeating Vassallo after a campaign in which rumours about
Vassallo’s integrity in conducting the financial affairs of the club had circulated.
Vassallo blamed Grabovski for the rumours, but had no proof of his allegations. Both
men collected the same rare guns, and their rivalry in bidding for historic weapons
had not improved the tone of their relationship.
On the day in question, the two men had been heard arguing about a particular gun,
with Grabovski claiming that Vassallo had his gun. The argument went on for long
enough, and loudly enough, that other members passing through and around the
clubhouse heard it, though none had intervened. Grabovski was reported as saying
‘It’s mine! Give it back before I make you give it back!’ Vassallo was heard to say ‘I
have had enough of your lies and I’ll make you pay for them’. Come here and I’ll
show you that this is my gun and not yours, you b******.’ And I’ll show you what I
think of you, as well.’
Just after this last statement, a gunshot was heard. No one else saw the shot fired, but
other club members ran to see what had happened immediately. Vassallo was
standing over Grabovski with a gun in his hand. Grabovski was unarmed and on the
ground, bleeding heavily from a gunshot wound to his torso. Grabovski was
struggling to get to his feet, apparently to move away from Vassallo, when he
suddenly slumped to the ground motionless.
Grabovski was pronounced dead a few hours after his arrival in hospital.
Medical evidence
Medical evidence showed that Grabovski had died from a stroke when a clot lodged
in his brain, causing his final loss of consciousness. Medical experts were able to say
that he was suffering from advanced arterial disease which would have predisposed
him to stroke, but they were unable to state definitively whether the stroke had
resulted directly from a clot formed or dislodged as a result of the gunshot wound, or
whether it had resulted from a combination of his pre-existing condition and the stress
of trying to move when he was so seriously injured.
Voluntariness
At trial, the prosecution’s evidence showed that the club had a policy that loaded
weapons were not to be brought into any part of the clubroom, and that safety catches
were always to be in place on weapons outside the firing range.
The defence argued that Vassallo’s action in pulling the trigger was not voluntary. As
Grabovski came toward him, Vassallo had moved toward Grabovski, caught his toe
on a loose piece of carpet in the President’s office, and tripped. In doing so, he pulled
the trigger as a reflex action. Re-enactment at the scene showed that the carpet was
indeed loose and that a person whose toe was caught in the carpet while their finger
was already on the trigger would have pulled the trigger in a reflex action as they
tripped. The defence further denied intention to kill or cause grievous bodily harm.
Causation
At trial, the prosecution argued that the accused had caused the victim’s death and
that neither the victim’s actions taken in self-preservation nor any prior medical
vulnerability to stroke should be understood as breaking the causal chain between the
accused’s actions and the victim’s death.
The defence had argued that the accused’s actions had not caused the death of the
victim, but that he had died from the stroke, which resulted from the victim’s preexisting condition and not from the accused’s conduct.
Appeal grounds
Vassallo was convicted of murder and appealed on the grounds that:
1. The trial Judge invited the jury to consider the act that caused death ‘in the
setting of its circumstances’ Ryan v R (1967) 121 CLR 205, per Barwick CJ
when determining whether the death causing act was willed by the accused,
that is, whether it was a voluntary act. However, the trial Judge erred in then
inviting the jury to consider the entirety of the circumstances on the day of the
victim’s death, including the statements made by each of them. This wide
interpretation of ‘the setting of the circumstances’ significantly departed from
the meaning given to those words in prior judgements and thus amounted to a
misdirection.
2. The trial judge erred in instructing the jury that Vassallo had caused
Grabovski’s death if ‘but for’ Vassallo’s actions, Grabovski would not have
died from a stroke.
3. The trial judge further erred when she directed the jury that when determining
whether the accused’s acts had been the ‘substantial cause’ of the death of the
victim, they could not take into account any previous condition of the victim R
v Blaue [1975] 3 All ER 446 or any act taken by the victim Royall (1991) 172
CLR 378. The issue of causation is a question for the jury, to be determined
according to their common sense R v Withers [2009] VSCA 306, [132]-[137].
This direction removed the question from determination according to the
jury’s common sense, usurping the jury’s role in determining this question.
4. Finally, the evidence was incapable of supporting the conclusion that the
accused’s actions were a ‘substantial cause’ of death as required by law.