Irwin v the Queen

Case [2018] HCA 8

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, NETTLE AND GORDON JJ

MICHAEL JAMES IRWIN  APPELLANT

AND

THE QUEEN  RESPONDENT

Irwin v The Queen

[2018] HCA 8

14 March 2018

B48/2017

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC for the appellant (instructed by Nyst Legal)

G P Cash QC with M B Lehane for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Irwin v The Queen

Criminal law – Appeal against conviction – Where appellant convicted of one count of unlawfully doing grievous bodily harm – Where complainant suffered broken hip in three places following confrontation with appellant – Where appellant gave evidence that he pushed complainant causing complainant to stumble backwards three or four metres and fall to ground – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal observed there were "equally open" interpretations of evidence – Whether jury verdict unreasonable or unsupported by evidence.

Criminal law – Appeal against conviction – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal found it open to jury to conclude ordinary person could have foreseen injury of kind suffered by complainant – Whether Court of Appeal applied incorrect test – Whether any difference between what ordinary person "could" and "would" reasonably foresee.

Words and phrases – "could have foreseen", "grievous bodily harm", "possibility", "probability", "unreasonable verdict", "verdict unsupported by evidence", "would have foreseen".

Criminal Code (Q), s 23.

  1. KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ.   Following trial by jury in the District Court of Queensland, the appellant was convicted of one count of unlawfully doing grievous bodily harm ("Count 1") and acquitted of a further count of assault occasioning bodily harm ("Count 2").  His appeal against conviction to the Court of Appeal of the Supreme Court of Queensland[1] was dismissed.  By grant of special leave, he now appeals to this Court.  The issue is whether the Court of Appeal erred in not holding that the jury's verdict of guilty in respect of Count 1 was unreasonable or could not be supported having regard to the evidence.  For the reasons which follow, it should be held that the verdict was not unreasonable or incapable of being supported by the evidence, and, therefore, that the appeal should be dismissed.

    The evidence at trial

  2. The principal issue at trial was the contest between the account given by the complainant ("Ross") and the account given by the appellant as to a confrontation that occurred between the two men on 28 July 2012.  The evidence was, in substance[2], as follows.

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AGLC
Irwin v the Queen [2018] HCA 8
Case
[2018] HCA 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the appellant against the dismissal of his appeal by the Court of Appeal of the Supreme Court of Queensland. The appellant had been convicted by a jury in the District Court of Queensland of unlawfully doing grievous bodily harm to the complainant, who suffered a broken hip in three places following a confrontation. The appellant's defence included evidence that he had pushed the complainant, causing him to stumble backwards and fall. The central issue on appeal was whether the jury's verdict was unreasonable or unsupported by the evidence, particularly in light of section 23(1) of the Criminal Code (Q), which provides that a person is not criminally responsible for an event that an ordinary person would not reasonably foresee as a possible consequence.

The High Court was required to determine whether the Court of Appeal erred in not finding the jury's verdict to be unreasonable or unsupported by the evidence. This involved considering the application of section 23(1) of the Criminal Code (Q), specifically whether an ordinary person in the appellant's position could reasonably have foreseen the possibility of grievous bodily harm resulting from the appellant's actions. The Court also considered whether there was any material difference between what an ordinary person "could" reasonably foresee and what they "would" reasonably foresee in this context.

The High Court reasoned that the jury had been properly directed that they must be satisfied beyond reasonable doubt that an ordinary person in the appellant's position would reasonably have foreseen the possibility of grievous bodily harm, and that this possibility must have been real, not theoretical. The Court found no error in the Court of Appeal's assessment of the evidence, noting that the appellant's own evidence, combined with the medical evidence, supported an inference that the push was delivered with a considerable degree of force. The Court also clarified that the Court of Appeal's observation that "equally open" interpretations of the evidence existed did not mean the jury was bound to find reasonable doubt, but rather that different views of the evidence could lead to the conclusion that the injury was reasonably foreseeable. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

KIEFEL Following trial by jury in the District Court of Queensland, the appellant was convicted of one count of unlawfully doing grievous bodily harm ("Count 1") and acquitted of a further count of assault occasioning bodily harm ("Count 2"). His appeal against conviction to the Court of Appeal of the Supreme Court of Queensland[1] was dismissed. By grant of special leave, he now appeals to this Court. The issue is whether the Court of Appeal erred in not holding that the jury's verdict of guilty in respect of Count 1 was unreasonable or could not be supported having regard to the evidence. For the reasons which follow, it should be held that the verdict was not unreasonable or incapable of being supported by the evidence, and, therefore, that the appeal should be dismissed.[1]R v Irwin [2017] QCA 2. The evidence at trial The principal issue at trial was the contest between the account given by the complainant ("Ross") and the account given by the appellant as to a confrontation that occurred between the two men on 28 July 2012. The evidence was, in substance[2], as follows.[2]See Irwin [2017] QCA 2 at [6]-[33] per McMurdo P (Gotterson JA and Mullins J agreeing at [53], [54]). Ross, who was 55 years of age at the time of the confrontation, deposed that he had known the appellant since about 1985 after meeting him at a mutual friend's wedding. From about 1987, the appellant had worked for Ross in Tamworth in insurance sales and thereafter in selling homes. In about 2007, they worked together in a building company with the appellant as builder and Ross as sales consultant. About 12 months later, the appellant took over the company and, by late 2009 or early 2010, the appellant and Ross had stopped doing business together. They were, on the whole, good friends and remained so until 2012. Ross was the godfather of one of the appellant's children. Ross stated that, on Saturday 28 July 2012, he was in his office in Cavill Avenue, Surfers Paradise, from about 8:00 am until about 10:00 am. He then left to purchase a newspaper and cigarettes, and put in a lotto ticket at a nearby shopping centre, Circle on Cavill. He deposed that he walked up a slight ramp past the Perle Nightclub, and, by reference to three photographs, he described how he saw the appellant when he neared the top of the ramp, just to the right of an orange-red post. He claimed that the appellant appeared angry, with glazed eyes, and was seething and frothing at the mouth. According to Ross, the appellant said "I've been waiting for this effing time for a long time" and pushed Ross with his left hand, causing Ross to take a few steps back. Ross claimed that the appellant then swung at him with his right fist. Ross turned his head and the blow grazed across his left ear and cheek. The push and the swing were at about the same time and left Ross a little off-balance and moving backwards. The next minute he felt "this almighty pain" in his left leg near his hip and crashed down onto the ground "like a sack of potatoes". He did not see what caused the pain, but was "pretty sure" he landed on his "butt".

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ
That said, however, the jury were properly directed that, in order to find the appellant guilty of the offence of unlawfully causing grievous bodily harm, they had to be satisfied beyond reasonable doubt that an ordinary person in the appellant's position would reasonably have foreseen the possibility that Ross would sustain grievous bodily harm, and they were further correctly directed that what the ordinary person would need to have foreseen was a real and not theoretical possibility of harm. As will be explained, there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.Conclusion as to "considerable degree of force" behind push It will be recalled that, in the appellant's submission, the medical and other evidence did not establish the level of force with which the appellant pushed Ross, and therefore it could not be concluded, as the Court of Appeal concluded[22], that the appellant used "a considerable degree of force".[22]Irwin [2017] QCA 2 at [50] per McMurdo P (Gotterson JA and Mullins J agreeing at [53], [54]). Contrary to the appellant's submission, there was no error in the Court of Appeal's assessment of the evidence. Given the appellant's own evidence – that he pushed Ross in the chest as Ross stood below him on a hard-surfaced, gradually downward‑sloping ramp, while "really angry [and] really cranky", with sufficient force to cause Ross to stumble back three or four metres and fall "reasonably hard" – and given further, as it emerged from the medical evidence, that the appellant must have pushed Ross with sufficient force to cause him to fall "while moving quickly" and to hit the ground "with some speed", it was open to infer, as the Court of Appeal inferred, that the appellant pushed Ross with "a considerable degree of force". Indeed, as a matter of common sense and ordinary human experience, it is difficult to see how one could rationally come to any other conclusion. While other quantifying descriptions of the amount of force used might also have been justified by the evidence, for the reasons given there was no error in the Court of Appeal's description of "a considerable degree of force" and the appellant's submission that the medical evidence was silent as to the degree of force should be rejected.Equally open to find either way There was equally no error in the Court of Appeal's observation[23] that there were "equally open" interpretations of the evidence before the jury. Contrary to the appellant's submission, that statement did not mean that the jury acting rationally were bound to conclude that there was a reasonable doubt as to whether an ordinary person in the appellant's position would reasonably have foreseen the possibility that Ross would suffer an injury in the nature of grievous bodily harm. Rather, it appears as having been intended to convey that, while possibly more than one view of the evidence was open, depending on which view of the evidence was taken it was open to be satisfied that an ordinary person in the appellant's position would reasonably have foreseen the possibility of the injury that was suffered. There is no reason to doubt that was so.[23]Irwin [2017] QCA 2 at [51] per McMurdo P (Gotterson JA and Mullins J agreeing at [53], [54]).

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ

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