Hooper v The Queen - [2000] WASCA 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HOOPER -v- THE QUEEN [2000] WASCA 394

CORAM: MALCOLM CJ
IPP J
WALLWORK J

HEARD: 17 NOVEMBER 2000

DELIVERED : 15 DECEMBER 2000

FILE NO/S: CCA 187 of 2000
CCA 188 of 2000

BETWEEN: MURRAY REO HOOPER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Accident - Death caused by striking head on ground after a blow to face - Whether Crown had negatived accident - Whether death excused - Alternatively, whether grievous bodily harm excused - Discussion of "event" which occurs by accident in s 23 of the Criminal Code

Legislation:

Criminal Code (WA), s 23

Result:

Retrial ordered on alternative count of grievous bodily harm

Representation:

Counsel:

Applicant: Mr R W Cannon & Ms L Boston
Respondent: Mr S P Pallaras QC

Solicitors:

Applicant: Lisa Boston
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Kaporonovski v The Queen (1973) 133 CLR 209
R v Callaghan [1942] St R Qd 40
Taiters (1996) 87 A Crim R 507
Ward v R (1972) WAR 36

Case(s) also cited:

Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995
Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999
Hubert (1993) 67 A Crim R 181
Inkson (1996) 88 A Crim R 334
Lowndes v The Queen (1999) 195 CLR 665
MacKenzie v The Queen (1996) 190 CLR 348
McLaughlin v The Queen, unreported; CCA SCt of WA; Library No 950252; 26 May 1995
Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991
R v Hodges [1999] WASCA 278
R v McCarthy (1995) 16 Cr App R (S) 1038
R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996
R v Van Den Bemd (1993-1994) 179 CLR 137
R v Van Den Bemd [1995] 1 Qd R 401
Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 28 February 1997
Royall v The Queen (1991) 172 CLR 378

MALCOLM CJ: The applicant was convicted after a trial in the District Court at Perth on 23 August 2000 of unlawfully doing grievous bodily harm contrary to s 297 of the Criminal Code. On 24 August 2000 the applicant was sentenced to imprisonment for six years with eligibility for parole. The sentence was backdated to 18 July 2000.
The indictment contained three alternative counts, namely:
"(1)On 25 September 1999 at Quinns Rock MURRAY REO HOOPER unlawfully killed GAVAN PAUL WILLIAMS.
(2)AND IN THE ALTERNATIVE to count (1) that on the same date and at the same place MURRAY REO HOOPER unlawfully did grievous bodily harm to GAVAN PAUL WILLIAMS.
(3)AND IN THE FURTHER ALTERNATIVE to count (1) that on the same date and at the same place MURRAY REO HOOPER unlawfully assaulted GAVAN PAUL WILLIAMS and thereby did him bodily harm."
At the trial it was conceded by the defence that Mr Williams' death had been caused by Mr Hooper but it was contended that the death was an accident in the context of s 23 of the Criminal Code (WA). Section 23 of the Code relevantly provides that:
"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident."
The applicant was found not guilty of unlawfully killing Mr Williams, but was found guilty on the alternative charge in count (2) of the indictment that he unlawfully did grievous bodily harm to Mr Williams.
The appeal against conviction is on the following grounds:
"1.The verdict of guilty of the charge of grievous bodily harm (count 2) is unsafe and unsound in that the verdict is inconsistent with the verdict of not guilty on the charge of unlawful killing (count 1). The evidence relied upon by the Crown to prove the 'death' in the unlawful killing, was the same evidence the Crown relied upon to prove the injury in respect of 'grievous bodily harm'. In both counts the injury (and consequence) was the same, it was death.
2.The injury inflicted by the appellant was the punch to the jaw, there was no evidence that this punch could have caused death or grievous bodily harm, and no evidence that it came within the definition of grievous bodily harm. The medical evidence is neutral in distinguishing between a blow on the jaw and its effect on the brain and the hitting of the head on the brick surface and its effect on the brain. The assumption without medical evidence that a single blow to the jaw, in the mind of an ordinary man, could result in death or grievous bodily harm is an inference that cannot be drawn."
Count (1) on the indictment constituted a charge of manslaughter. The offence is the subject of s 280 of the Code which provides that:
"A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter."
Section 270 of the Code provides that:
"Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person."
It should be immediately apparent that the relevant "event" in the context of manslaughter, as alleged in count (1) was the death of Mr Williams: R v Callaghan [1942] St R Qd 40; Ward v R (1972) WAR 36. In the case of the offence alleged in count (2) of the indictment the relevant event was the grievous bodily harm: Kaporonovski v The Queen (1973) 133 CLR 209 at 215 per McTiernan ACJ and Menzies J; and at 231 -232 per Gibbs J . The term "grievous bodily harm" is defined in s 1 of the Code as follows:
"The term 'grievous bodily harm' means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."
The facts of this particularly sad and unfortunate case have been set out in the judgment of Wallwork J and there is no need for me to repeat them, except so far as necessary for the purposes of these reasons. Suffice it to say that I agree generally with those reasons and wish only to state some short reasons of my own.
The defence of accident having been raised, it was for the Crown to negative that defence by proof beyond reasonable doubt that the death was not accidental. In the case of the alternative count it was for the Crown to negative the defence by proving beyond reasonable doubt that the grievous bodily harm was not accidental. In that context it needs to be understood that "grievous bodily harm" embraces two possible categories of event, namely:
(a)bodily injury of such a nature as to endanger, or be likely to endanger life; and
(b)bodily injury of such a nature as to cause, or be likely to cause permanent injury to health.
It can be seen at once that where the accused raises the defence of accident in a case in which the allegation by the prosecution is that the accused inflicted bodily injury of such a nature as to fall within (a), as being of such a nature to endanger or be likely to endanger life, a verdict of guilty of the offence of doing grievous bodily harm would be inconsistent with a verdict of not guilty of manslaughter based on the same evidence. In such a case, the verdict of not guilty of manslaughter would necessarily involve a finding by the jury that the actions of the accused were of a kind that it was not reasonably foreseeable that they would cause or be likely to cause death. If, however, the Crown case was that the alternative offence of doing grievous bodily harm was committed because the actions of the accused caused the victim to suffer a bodily injury likely to cause permanent injury to health, there would be no inconsistency.
In this case the Crown sought to rely on both parts of the definition of "grievous bodily harm". In other words, the prosecution case was that the punch by the appellant to the head of the deceased victim caused either a bodily injury of such a nature as to endanger or be likely to endanger life, or, alternatively a bodily injury of such a nature as to cause, or be likely to cause, permanent injury to health.
So far as manslaughter is concerned, where, following on an act intended to cause some bodily harm, such as a punch to the head of another of sufficient force to knock a person to the ground, the jury should be directed that:
(a)they must be satisfied beyond reasonable doubt that the blow to the head caused the death;
(b)they should acquit the accused unless they are satisfied beyond a reasonable doubt that the death was not an event occurring by accident;
(c)that the death would be an accident if death was not intended by the accused, was not foreseen by him and not reasonably forseeable as the consequence of the conduct of the accused.
In Ward v R, above, the facts were very similar to the facts in the present case. As described in a judgment of this Court (Jackson CJ, Virtue SPJ and Lavan J) delivered by Virtue SPJ at 43 they were as follows:
"In the present case, however, no question as to causation actually arises. On the Crown case the deceased died from a fractured skull caused by striking his head on a concrete apron when falling as a direct result of a blow struck by the accused. Hence although death was not the direct and immediate result of the blow it was clearly open to the jury to find that the accused caused the death indirectly. The element of causation having clearly been answered favourably to the Crown (this being an inference which must inevitably be drawn from the jury's verdict) the question is whether the jury should have been directed that it was open to them to find a verdict for the appellant if they were not satisfied that the Crown had disproved accident in the terms of s 23."
Virtue J also said at 46-47:
"In the light of the authorities mentioned it would appear that the trend of authority is in favour of the conclusion that in cases under the Code in Queensland or Western Australia where following on an act intended to cause some bodily harm to another some unexpected occurrence supervenes which is the immediate cause of injury to the person struck from which he dies, then if that occurrence was not intended or foreseen and was unlikely the death of such person would be an accident within the meaning of s 23 and the act in question would not amount to manslaughter.

As I have already said where the injury is the direct and immediate result of a blow intending to cause harm it is immaterial from the point of view of criminal responsibility that death only results because of some constitutional defect unknown to the person responsible for the blow.
But if there is in fact some supervening occurrence between the striking of the blow and the deceased sustaining the injury causing the death, the jury, as well as being directed that they must be satisfied that the infliction of the blow caused the death, must be directed that they should acquit unless they are satisfied that the death was not an event occurring by accident in accordance with provisions of s 23.
And they should be directed that the death would be an accident if it was not intended by the accused, was not foreseen by him nor reasonably to be foreseen as the consequence of a man's conduct."

I agree with Wallwork J that the learned Judge misdirected the jury in relation to the relevant "event" in relation to both counts (1) and (2). In the case of count (1) the "event" was the death and not the falling to the ground and the fracturing of the skull. In the case of count (2) it was the grievous bodily harm and not the falling down and fracturing the skull. In my opinion, Wallwork J has also demonstrated that in his directions to the jury the learned trial Judge did not draw a distinction between the two parts of the definition of "grievous bodily harm". In the result the verdict on the two counts are inconsistent. The verdict of not guilty on the first count necessarily means that the jury were not satisfied beyond a reasonable doubt that the striking of the head on the ground and the consequent injury to the skull was not an accident. In other words they were not satisfied that the death of the victim was not foreseen by the appellant or reasonably foreseeable. It follows from the verdict of guilty on the second count that the jury must have found that the striking of the head on the ground was not an accident, but was caused by the punch to the head of the victim, or was a result of the punch which was foreseen by the appellant or was reasonably foreseeable. On that basis, I would allow the appeal against conviction, quash the conviction and sentence and order a re‑trial on count (2).
IPP J: The appellant was charged with unlawfully killing Gavin Paul Williams, unlawfully doing grievous bodily harm to Mr Williams and unlawfully assaulting Mr Williams and doing him bodily harm. The

principal defence raised by the appellant at the trial was that the death of Mr Williams occurred by accident. The appellant contended that he was not criminally responsible for Mr Williams' death and relied principally on s 23 of the Criminal Code which provides:
"Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

The appellant was found not guilty of manslaughter but guilty of unlawfully doing grievous bodily harm.
On appeal, a substantial part of the appellant's argument was directed to the proposition that the verdict of manslaughter was inconsistent with the verdict of doing grievous bodily harm.
Section 280 of the Code defines manslaughter as follows:
"A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter."
By s 297 of the Code:
"Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years."
Section 1 of the Code defines grievous bodily harm as meaning:
"[A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."
I accept that in a case where the defendant relies on accident, and the prosecution asserts only that the accused inflicted bodily injury of such a nature as to endanger, or to be likely to endanger life, a verdict of not guilty of manslaughter would be inconsistent with a verdict of guilty of doing grievous bodily harm. That is because the verdict of not guilty of manslaughter would have to be construed as a finding by the jury that it was not foreseeable that the injuries inflicted by the accused would be likely to cause death. See in this regard the remarks by Gibbs J in Kaporonovski v The Queen (1973) 133 CLR 209 at 231:
"It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person."
In that event, the jury having found, in effect, that it was not foreseeable that the injury inflicted by the accused would be likely to cause death, it would be inconsistent for the jury to find that the injury was likely to endanger life and hence was an injury of such a nature as to endanger, or be likely to endanger life, within the meaning of s 1 of the Code.
On the other hand, should the prosecution contend that the offence of doing grievous bodily harm was committed because the accused person inflicted a bodily injury likely to cause permanent injury to health, no inconsistency would arise.
In the present case the prosecution relied on both limbs of the definition of doing grievous bodily harm. That is, the prosecution contended that the blow struck by the appellant resulted in a bodily injury of such a nature as to endanger or be likely to endanger life, as well as a bodily injury of such a nature as to cause, or be likely to cause, permanent injury to health.
Nevertheless, it seems to me, for the reasons set out by Wallwork J, that the learned Judge's directions did not draw a clear distinction between the two limbs of the definition of grievous bodily harm. His Honour instructed the jury in such a way that the jury could well have believed that the prosecution was relying only on the first limb of the definition. That is to say, the jury could well have believed from his Honour's directions that the offence of doing grievous bodily harm was committed solely by Mr Hooper striking a blow of such a nature as to endanger or be likely to endanger life. I do not think that the jury were given clear directions to consider whether Mr Hooper committed the offence of grievous bodily harm constituted by Mr Hooper inflicting an injury on Mr Williams of such a nature as to be likely to cause Mr Williams permanent injury to health.
That being so, I agree that the conviction of doing grievous bodily harm should be set aside and the matter should be sent for a retrial on the second count in the indictment.

WALLWORK J: On 23 August 2000 in the District Court at Perth the applicant in this matter was found not guilty of unlawfully killing Mr Gavin Williams on 25 September 1999 at Quinns Rocks. He was, however, found guilty of an alternative charge that on that date and on the same occasion, he unlawfully did grievous bodily harm to Mr Williams. On 24 August 2000, the applicant was sentenced to a term of 6 years' imprisonment with eligibility for parole with the sentence to date from 18 July 2000. He now appeals against his conviction and applies for leave to appeal against the 6-year term of imprisonment.
The circumstances which resulted in Mr Hooper being charged with unlawfully killing Mr Williams, with two charges in the alternative to that charge, were that Mr Hooper's son had apparently been with a group of people who had caused trouble at or near Mr Williams' house on 25 September 1999 when Mr Williams was having a buck's party prior to his planned marriage. Apparently Mr Hooper's son was engaged in some kind of scuffle as a result of which he ended up bleeding from the nose and mouth. He then went to see his father who was in a nearby tavern. Mr Hooper having seen the injuries to his son and knowing where his son had been, went straight to Mr Williams' house. Without any warning he punched Mr Williams in the face. Mr Williams, who had been standing on his own driveway, fell backwards and fractured his skull. He later died as a result of the injuries he had received in the fall in the driveway.
After some changes in the indictment, the trial proceeded in the Perth District Court on 21 August 2000. The indictment charged three counts as follows:
"(1)On 25 September 1999 on Quinns Rocks MURRAY REO HOOPER unlawfully killed GAVIN PAUL WILLIAMS.
(2)AND IN THE ALTERNATIVE to Count 1 that on the same date and at the same place MURRAY REO HOOPER unlawfully did grievous bodily harm to GAVIN PAUL WILLIAMS.
(3)AND IN THE FURTHER ALTERNATIVE to Count 1 that on the same date and at the same place MURRAY REO HOOPER unlawfully assaulted GAVIN PAUL WILLIAMS and thereby did him bodily harm."
At the trial, the defence conceded that Mr Williams' death had been caused by Mr Hooper but raised the "defence" of accident pursuant to s 23 of the Criminal Code (WA).
The relevant part of s 23 reads as follows:
"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident."
The question for the jury at the conclusion of the trial was whether the Crown had negatived the defence contention that the death of Mr Williams had occurred by accident. Alternatively, whether the Crown had negatived that the grievous bodily harm, which had resulted to Mr Williams, had been an event which had occurred by accident.

It was not in dispute at the trial that Mr Hooper had struck Mr Williams causing him to fall and fracture his skull and to receive the injuries which had tragically caused his death. Mr Hooper said that when he had arrived at Mr Williams' house, he had seen a person walking straight towards him. As far as he was concerned that person (Mr Williams) was going to punch him. He said he thought this because of the way Mr Williams had been walking towards him. Mr Hooper said that he had punched Mr Williams with "a very quick punch". He said it was not hard. He said he had then walked to the rear of the house and started chasing a couple of men around. As he was leaving the house he had seen Mr Williams lying on the ground. He had gone over to see him to make sure he was all right. He had later come back to the house when an ambulance had arrived. He had originally gone to the house intending to find out who had bashed his son. He said he had never intended Mr Williams any harm.
Before summing up, the learned Judge had a discussion with counsel and had ascertained that the second count on the indictment was not concerned with an injury of such a nature as to endanger or to be likely to endanger life but rather with an injury causing, or being likely to cause, permanent injury to health. His Honour said that when addressing on the second count, "I will obviously have to leave the first bit out, because that's been negated by the finding of not guilty on the manslaughter". His Honour was alert to the position that if the jury were to bring in a verdict of not guilty to the manslaughter charge in the first count, they would only be concerned on the second count with Mr Williams' injuries being of a nature likely to cause permanent injury to health.
In the learned Judge's summing up to the jury, he told them that the defence was firstly that, Mr Williams' death had been caused by accident, or, by Mr Hooper acting in self-defence. His Honour pointed out that the Crown had to prove that Mr Williams' death had not been an accident. He instructed the jury on the onus of proof and told them that there was not much of a conflict between the evidence of what the two Crown eyewitnesses had said and what Mr Hooper himself had said.
When instructing the jury on the first charge of unlawful killing, his Honour told the jury that there was no issue concerning the blow struck by Mr Hooper causing the injury which resulted in the death. His Honour then said:
"The Crown case is that Mr Hooper caused the death of Mr Williams and that in the circumstances he is criminally responsible for his death. It is the Crown case that Mr Hooper unlawfully killed Mr Williams by striking him with his clenched fist to the side of - to the mouth with such force as to cause Mr Williams to fall to the driveway, which was brick paved, and strike his head, fracturing the back of his skull."
His Honour told the jury that the Crown had submitted that Mr Hooper must have known when he threw the punch at Mr Williams that Mr Williams had been standing on a brick driveway and in the circumstances Mr Hooper must have expected that serious injury could follow from the blow which he had struck, and that any reasonable and ordinary person in the circumstances would expect the risk of such injury in such circumstances - it would be reasonable to foresee that the person struck would at least receive serious bodily injury from that blow, if that person fell backwards onto the ground and hit their head. He pointed out that Mr Hooper did not deny hitting Mr Williams, or that his blow had caused Mr Williams to fall to the ground and fracture his skull. He said that Mr Hooper claimed that he was not criminally responsible for Mr Williams' death "because the event of Mr Williams falling to the ground after the blow had been struck and fracturing his skull was an accident …".
It should be noted at this stage that the relevant "event" when considering the first charge of unlawfully causing Mr Williams' death, was the death itself and not the falling to the ground or the fracturing of his skull. This is because s 23 provides that a person is not criminally responsible for an event which occurs by accident and the charge concerned the death of Mr Williams.
His Honour then said:
"The defence is simply that Mr Hooper is not criminally responsible for the death of Mr Williams as the initial blow and injury received on falling would not have been perceived by an ordinary person as likely to cause the death or grievous bodily harm or that what he did he did in self defence …"
The medical evidence was that Mr Williams had suffered an extensive fracture to the skull with consequential swelling to the brain and subdural haemorrhage. Because Mr Williams' brain had been injured, it had swollen. That had resulted in haemorrhages in the mid-brain and ultimately compression of the respiratory control centres in the lower brain. That combination of injuries had caused Mr Williams' death.
His Honour referred to the medical evidence that a person could injure that person's brain by an unprotected fall. One example given of that was when a person falls whilst intoxicated and whilst that person's reflexes are not as sharp as those of a person who is not intoxicated. His Honour pointed out that the blood alcohol level found at the post-mortem of Mr Williams was some 0.2 per cent. A doctor had said that a person who was unconscious when falling might have no ability to make a conscious action of putting an arm out to save that person from his or her head hitting the ground.
At the hearing of this appeal, it was common ground that as stated in Taiters (1996) 87 A Crim R 507 at 509:
"The principle now established in respect of the second part of the rule appearing in the quoted words of section 23 may be taken as stated by Gibbs J (at 231):
'It must now be regarded as settled that an event occurs by accident within the meaning of the rule, if it was a consequence which was not in fact intended or foreseen by the person and would not reasonably have foreseen by an ordinary person'."
See also, Ward v R (1972) WAR 36.
Having discussed some of the evidence, the learned Judge further directed the jury on the law with respect to the first charge of unlawful killing. His Honour said:
"The criminal law says that a person is not criminally responsible for an event which occurred by accident. The event that we are talking about here is the striking of the head on the pavement. That is the event that we are talking about. Not the blow that was struck; the striking of the head on the pavement. Here all the event that you are concerned about is Mr Williams' head hitting the driveway and causing it to fracture and the brain to suffer the damage which killed him."
With respect to his Honour, it was in error to tell the jury that the event which they were concerned about was Mr Williams' head striking the driveway. The event in the first charge was the death. This becomes important because, having been found not guilty of the first count, Mr Hooper was convicted of the second count of unlawfully doing grievous bodily harm to Mr Williams. The event with respect to that second count was the "grievous bodily harm".
His Honour continued:
"If you are left in the position that you think Mr Hooper didn't foresee the consequences of Mr Williams' head hitting the roadway and suffering the injury and nor would any reasonable person have foreseen the consequence, then the Crown would have failed to prove to you that the killing was unlawful, as what occurred would be excused as being an accident in the legal sense."
Again, it was the death which should have been referred to as the relevant event and not the head hitting the roadway and the injury.
His Honour continued:
"The Crown has to prove to you that Mr Hooper was criminally responsible and that Mr Williams falling to the ground and hitting his head when Mr Hooper hit him on the mouth was no accident and to prove to you beyond reasonable doubt that Mr Williams hitting his head on the driveway and fracturing his skull was a consequence that Mr Hooper expected when he struck the blow; that Mr Hooper foresaw that Mr Williams falling and hitting his head on the driveway and fracturing his skull might occur and that any reasonable person in Mr Hooper's position would have foreseen that that would have occurred. Then if the Crown proved to you those things, then the effect of Mr Hooper's blow would not be an accident and he would be criminally responsible for the death."
Again, with respect, the direction concerning Mr Williams' hitting his head on the driveway and fracturing his skull is in error as the relevant event was the death.
A little further on his Honour again reverted to this question and said:
"The Crown says that any reasonable person and Mr Williams himself, should have in the circumstances realised that the striking of the blow to a man standing on the roadway who really is simply standing and not doing anything and is struck out of the blue, as it were, anybody in those circumstances, and Mr Hooper himself, must have realised that there was a likelihood of the man falling back and hitting his head and that the consequence of that occurring may well be that there be an injury, so the event of hitting the head didn't occur by accident because it should have been foreseen by Mr Williams. Although it wasn't intended, he should have foreseen that it would have occurred and any reasonable person in the circumstances would also have foreseen that it occurred. So that's one basis upon which the Crown is to prove that he is criminally responsible by proving to you that it wasn't an accident."
In my view, the learned Judge's directions on the first count were in error. Although the applicant was found not guilty of that first count, those directions of necessity affect the conviction on the second charge in the indictment. This is because the jury, by their verdict of not guilty on the first count, revealed that they were not satisfied that the striking of the deceased man's head on the ground and his head injury were not an accident. In then finding the applicant guilty of unlawfully doing grievous bodily harm, the jury came to an inconsistent verdict. This is because by doing that they had found that the striking of the head on the ground and the injury was not an accident. Two verdicts cannot stand together.
Ground 1 states:
"The evidence relied upon by the Crown to prove the 'death' in the unlawful killing was the same evidence the Crown relied upon to prove the injury in respect of 'grievous bodily harm'."
At least that is how the learned Judge left it to the jury.
It should be mentioned for completeness that his Honour then dealt with the question of self-defence. He said:
" … and he hits him with sufficient force to cause him to fall to the ground in circumstances where he must have realised that Mr Williams was likely to fall to the ground and strike his head and suffer an injury which could kill him and that he was not acting in reasonable self defence because there was no basis upon which he could have thought that Mr Williams was going to strike him."
His Honour said:
"Mr Cannon asked you to consider that there was only the single blow to the face; that there was no injury to the hand of Mr Hooper which you might expect if there was a very considerable blow struck, and that in the circumstances an ordinary person would not expect that a person struck in the face would die as a result of falling to the ground and hitting his head. It is submitted to you by Mr Cannon that that is the situation. That Mr Hooper would not have foreseen that the result of his action would be death; it is something you wouldn't expect and nor would any reasonable person expect that in the circumstances; the most that might be expected is that the person struck got some cut to his face or had a sore head in the morning."
His Honour then dealt with the alternate charge and told the jury that they would have to consider whether or not Mr Williams had suffered grievous bodily harm.
He told the jury that grievous bodily harm was defined "as bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health. That is what grievous bodily harm means in law and the grievous bodily harm the Crown is referring to there is the brain, injury to the brain, caused by the fracture of the skull." His Honour said:
"If you were satisfied and there doesn't seem to be any doubt that Mr Williams did suffer grievous bodily harm, then you have to be satisfied that that followed upon the blow struck by Mr Hooper. I think that's not really in dispute on the submission made by Mr Cannon. Then you would have to go on to consider whether Mr Hooper was criminally responsible for the grievous bodily harm because he wouldn't be criminally responsible as I've explained if it occurred by accident. He wouldn't be criminally responsible if that grievous bodily harm occurred in the course of self defence and I'm not going to go and repeat the remarks that I have just made to you in relation to accident and self defence but the fact that the Crown has to prove is that it wasn't an accident in the way I have described in law nor was it an action taken in self defence."
His Honour then directed on the third count, which is not relevant for the purpose of this appeal as the jury found Mr Hooper guilty of unlawfully causing grievous bodily harm. The jury did not have to consider whether he was guilty of the second alternative count, being the third count in the indictment.
The second ground of appeal against conviction is based upon the proposition that a jury could not conclude without the benefit of medical evidence to that effect, that a single blow to the jaw "in the mind of the ordinary man" could result in death in grievous bodily harm.
It is not necessary in the circumstances to discuss that second ground of appeal or to comment upon the application for leave to appeal against the 6-year term of imprisonment which was imposed upon the applicant after his conviction upon the alternative count in the indictment.
In my view, as stated above, the conviction on the alternative count is inconsistent in the circumstances with the verdict of not guilty on the first count. In Whitehorn v The Queen (1983) 152 CLR 657 at 686, Dawson J said:
"In Plomp v The Queen (1963) 110 CLR 234 at 244, Dixon CJ said a court of criminal appeal may interfere with a conviction if it thinks that 'it was dangerous to convict … in all the circumstances'. In the same case, Menzies J expressed the question as being whether 'this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt'. The expressions 'dangerous in the administration of justice' and 'dangerous in all the circumstances' were used by Barwick CJ in Hayes v The Queen (1973) 47 ALJR 603 at 604 to describe a verdict of guilty which ought to be set aside."
The appeal should be allowed and the conviction should be set aside. The matter should be sent back for a re-trial on the second count in the indictment.