Irwin v The Queen
[2017] HCATrans 250
[2017] HCATrans 250
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B48 of 2017
B e t w e e n -
MICHAEL JAMES IRWIN
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 6 DECEMBER 2017, AT 2.15 PM
Copyright in the High Court of Australia
MR S.C. HOLT, QC: May it please the Court, I appear for the appellant. (instructed by Nyst Legal)
MR G.P. CASH, QC: May it please the Court, I appear with my learned friend, MS M.B. LEHANE, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))
KIEFEL CJ: Yes, Mr Holt.
MR HOLT: May it please the Court. Our ultimate submission is that the jury’s verdict convicting the appellant, Mr Irwin, of unlawfully causing grievous bodily harm was unreasonable. It is our submission that the Court of Appeal of Queensland only came to a contrary view because it made, in effect, two errors. The first error is that the Court of Appeal misapplied section 23(1)(b) of the Criminal Code (Qld), what was prior to amendments in 2011 referred to and are still sometimes colloquially referred to as the defence of accident.
Secondly, because the Court of Appeal, in our submission, failed to recognise that on its own analysis it had identified a necessary reasonable doubt on the Crown case to the extent that the factual findings were available to support a conviction for grievous bodily harm. Before dealing with each of those two propositions, it is important, in my submission, to note that we are in effect now in a level of agreement as to the only factual basis for conviction, the only even potential pathway for conviction that existed in this case. That is an awfully long way removed from what occurred at trial. At trial, as the Court will appreciate, there was, in effect, a credibility contest between the complainant and the evidence that the appellant gave on oath.
The appellant’s account as to how the grievous bodily harm in the form of a very badly broken hip occurred. The complainant’s account was one which the Crown now no longer seeks to rely on. In effect, as we understand it, the respondent accepts the Court of Appeal’s conclusion that it was not rationally open to the jury to accept the complainant’s account, because on the complainant’s account the defendant swung a blow of some sort which was said by the complainant to have glanced his cheek and that he, the complainant, then collapsed with a severe pain to his hip and landed on the ground and the complainant opined in cross‑examination that that may have been as a result of a king kick, as he described it. All of that was unsupported; indeed the medical evidence was entirely to the contrary.
So if I can rewind - we are now in a position where the prosecution – indeed, in its opening paragraph and its written submissions – accepts that the only even potential pathway for conviction was the factual narrative provided by the appellant in his own evidence, combined with the medical evidence of Dr Nicholl. It was beyond doubt – indeed, not challenged – at the trial that the injury that the complainant suffered to his hip, which was a single fracture but a fracture which split into three parts, into three separate fractures, amounted to “grievous bodily harm”, as that phrase is defined in the Criminal Code.
In essence, we are now proceeding on the basis that the appellant’s account is the only account that could be accepted, that is, that the appellant pushed the complainant to the chest sufficiently hard to cause him to stumble backwards three to four metres and fall to the ground, as the appellant described it in his evidence, reasonably hard, on to the tiled or, at least, accepted hard floor of a shopping centre area which had a very gradual slope to it. As a result of that, it appears again to be accepted that the hip fracture – the only rational conclusion on the evidence as to how the hip fracture was caused –was caused by the impact of the complainant landing on the ground on his hip, in effect.
The medical evidence in this regard is, in our submission, important and was, with respect, misunderstood by the Court of Appeal and again, with respect, continues to be misunderstood by the respondent. The medical evidence was, in effect, that had this injury been caused by a direct blow it would have required something in the order of a very strongly struck blow with a baseball bat or a car hitting or something of that kind.
But, as Dr Nicholl ultimately accepted – indeed, preferred – such an injury could also be caused by what he described as an accelerated fall and importantly he nominated, and as summarised by the Court of Appeal at paragraphs [23] and [24], an accelerated fall involving a “moving or stumbling backwards” and then a fall as part of that movement as being, in essence, his preferred mechanism for the injury in the circumstances of this case. He accepted – that is, the doctor accepted that the evidence was – that the injury was, I am sorry – consistent with being pushed and falling on to a hard surface.
In our submission, all that can be said as a result of that evidence is that the force required to push the complainant by the defendant needed only to be enough to cause him to stumble backwards and fall – stumble backwards three to four metres and fall to the ground. There was no logical link, in our respectful submission, between the proposition that this was a high‑energy injury which, if caused directly, would need the sort of force that might be applied by a car, for example, and the notion that that tells us anything about how hard or fast the push to the chest actually occurred.
All that can properly be said, in our respectful submission, is that the appellant pushed the complainant with sufficient force to the chest to cause him to stumble backwards three or four metres and fall reasonably hard to the ground. And that factual matrix, in effect, requires no contest in this Court because it appears to be accepted by both parties.
KIEFEL CJ: Was there evidence as to the extent of the slope down which he fell?
MR HOLT: There was limited evidence of the extent to the slope down which he fell, your Honour, and the picture ‑ ‑ ‑
NETTLE J: I am sorry; there is a picture?
MR HOLT: There is a picture. The picture is a little hard to follow. Footnote 60 of the judgment on appeal, which is on page 307 of the record book, describes the Court of Appeal’s own assessment of the slope, because it was shown to the Court of Appeal in the course of the hearing in the courtroom, noting that the photographic evidence suggests any slope was very gradual and, in my respectful submission, the picture to which your Honour Justice Nettle has referred just simply makes good that proposition.
If I can just pause for a moment on the question of the slope because it assumed a level of significance in the course of the submissions that have been made. Of course, a slope is a two‑edged sword, in some ways because, as the Court of Appeal ultimately concluded was the position, the complainant was down slope, even though it was, as the court describes it, a very gradual slope, barely a slope at all, in my submission.
But, in any event, one would imagine needing less force to cause a person to stumble backward if they were going down a slope, as opposed to up a slope. But, ultimately, the slope, in my submission, is to some extent a red herring. I am not sure, in my submission, it advances matters particularly at all.
So having, I hope, accurately identified the factual basis upon which this analysis ought to have proceeded in the Court of Appeal and ought, with respect, to proceed in this Court, the question for the Court of Appeal was to apply section 23(1)(b) to the facts as it considered that the jury was entitled to find rationally to determine whether a verdict of guilty was reasonably open on the evidence and that required, of course, a consideration of section 23(1)(b) of the Criminal Code, which, as the Court will know, confirms that:
a person is not criminally responsible for –
an event – and the event here must necessarily be the grievous bodily harm in the form of the badly fractured hip – where:
the person does not intend or foresee [that result] as a possible consequence –
and where:
an ordinary person [in the position of the defendant] would not reasonably foresee –
that – that is, grievous bodily harm in the form of a badly broken hip:
as a possible consequence.
One would add, though it is not in the statute but obvious of the act causing the event; that is, here of the pushing. So the consequence must be the foreseeability of the consequence must be linked to that.
So the Court of Appeal’s task on the appeal, in our respectful submission, was obviously the classical task assigned to it by the statute as construed by this Court in R v M and it appears to be common ground – and I say this by reference to the way in which my learned friends have put it at paragraph 7 of the respondent’s outline – the Crown says ‑ the respondent says at paragraph 7, this verdict:
would withstand challenge if . . . it was open to the jury to be satisfied that an ordinary person in the position of the appellant would have foreseen grievous bodily harm as a possible consequence.
To that statement, of course, one would add it was open to the jury to be satisfied beyond reasonable doubt, but we take that as a matter of implication. There is absolutely no dispute that that was ultimately the question which the Court of Appeal here needed to ask and answer and our respectful submission in terms of the first part of the appeal, the first error that we submit that the Court of Appeal made, with respect, is that it simply failed to ask itself that question and as a result failed to answer that question. That takes us, I hope, in not too circuitous a fashion to paragraph 51 of the judgment below which is at page 307 of the appeal book.
If I can trip relatively quickly through the precursors to this - this is a judgment which, in effect, up until this point had been wholly favourable for the appellant. The President, with whom Justice of Appeal Gotterson and Justice Mullins agreed, concluded that neither the complainant nor the alleged confessional witness could be rationally accepted by the jury, and on that basis we were left just with the account given by the appellant supported by the medical evidence and, to some extent, by the evidence of the independent witness, Mrs Broad.
The key reasoning, in our submission, appears in paragraph 51 of the judgment – [50], [51] and [52], but the essence of it, the core of it, in our submission, is in paragraph [51] of the judgment. Her Honour the President, as she then was, put the matter in two ways: firstly, that a jury may well have considered, as her Honour noted that the trial judge appeared to in that paragraph:
an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip.
That is an important conclusion, in our respectful submission, because it is a conclusion that adopts to some extent the structure of section 23(1)(b) but uses the phrase “could not” rather than the phrase “would not”, but it is a conclusion, in our submission, of quite considerable force and, for reasons I will come to, should have been of determinative effect in the conduct of this appeal that a jury may well have considered that an ordinary person could not reasonably have foreseen the complainant would in those circumstances suffer a fractured hip.
That is a conclusion more than consistent with a not guilty verdict. It is a conclusion that would have been consistent with actual innocence because, of course, the only conclusion that a jury had to come to and a Court of Appeal needed to consider was necessarily available was that it was reasonably possible that an ordinary person in the defendant’s position would not have foreseen the fractured hip amounting to grievous bodily harm as a reasonable possibility. So we have this first conclusion, in effect.
Then one, with respect, assumes that the language chosen was deliberate, without attempting to construe it like a statute. Her Honour the President then said:
It was equally open to the jury on the evidence to reach the contrary conclusion –
By no straining of those words, in my respectful submission, can the respondent’s submission be accepted. The respondent’s submission, as we understand it, is that her Honour was not in fact concluding that they were equally open conclusions, when, in my submission, on the face of the language her Honour plainly was. But it is in this next phrase where the first error is at its most obvious:
It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push.
In our respectful submission, all one needs to do is to accept – because it is correct as a matter of law, in my submission – the proposition that the respondent puts at paragraph 7 of its outline to realise that that formulation is simply wrong. It does not accord with the plain words of the statute and it requires the word “could” to be read in that context as meaning the word “would”.
The respondent makes, as we apprehend it, three responses to our submission that that is simply a plain error. The first submission, as we understand it, is that the court was not, in fact, purporting to apply section 23(1)(b) in that part of its judgment. It was, as we understand our friend’s submission, said that the court was instead applying the test for an unreasonable verdict and the short answer to that point is that the two are indistinguishable.
The court could not ask the question that it needed to ask and answer about whether the verdict was unreasonable without properly applying the test for what was previously called “accident” in section 23(1)(b) because otherwise it would have been asking the question about an unreasonable verdict in a legal vacuum and if I can ask the rhetorical question, if it was not doing that – if the court was not doing that, what else was it doing?
With respect, the better construction of the reasons is that her Honour the President was doing precisely what her Honour the President said she was doing, that is applying the facts that her Honour considered the jury could rationally have found to the law and, with respect, her Honour simply got the law wrong when it came to that point.
The second and third reasons that the Crown, as we understand it, advance in response to the proposition that this was an error, both come down to the proposition that in any event the use of the word “could” does not matter. In effect, it was of no moment. As we understand it, our friends say firstly that the pre‑amendment cases, if I can put them that way, use the term “could” interchangeably with the word “would”.
KIEFEL CJ: Does this explain Sir Harry Gibbs’ reference?
MR HOLT: Yes - and, secondly, that there is, in fact, no substantive difference between the two – that is, that “could” or “would” in the context of the way in which it was put makes no difference. The second proposition really goes to the heart of this matter so I will start with it if I can. That is the proposition that there is no substantive difference in the use of the word “would” or the word “could”.
In our respectful submission, it is simply plainly wrong. Substituting “could” for “would” makes the Crown’s task, the prosecution task significantly easier than it would be if the word “would” was applied. To make that good one only needs to put it, in my submission, in these terms. To prove that an ordinary person would reasonably foresee something is significantly more onerous than proving that an ordinary person could reasonably foresee that thing.
“Would” connotes something in that context when used in that way at least approaching certainty whereas “could” speaks of possibility. In our respectful submission, the distinction is real and our learned friend’s suggestion that it is not ought not be accepted.
NETTLE J: “Would” connotes probably in a sense of not necessarily more probable than not, but probable, does it not?
MR HOLT: Yes, in my submission. In fact, I would hope that the case never emerged where a court was asked to or concluded that it ought put a firm additional meaning to it. It is a word that a jury should be perfectly capable of applying flexibly in the context of a case. Our submission simply is that it does not mean “could” in that context.
GAGELER J: But it is “would” as a possible consequence.
MR HOLT: Yes.
GAGELER J: It is not very far from “could”.
MR HOLT: But, it is some distance from “could”, your Honour. One has to say, given this was a 2011 amendment, it is regrettable that it was not cast perhaps in a positive sense rather than as a negative and also in a way that might avoid these sorts of difficulties. But regardless of the thing it is that is contemplated, in our submission to say that thing – that an ordinary person “could” versus “would” – is to ask a fundamentally different question in the context of the statute as it stands.
One can well understand a situation where, particularly in what might be described as a case where reasonable minds could differ – and many of these assessments will be ones where reasonable minds can differ – when one is asking about what an ordinary person might - would or could foresee – one can well imagine a rational difference being drawn between a conclusion that an ordinary person would foresee the reasonable possibility of, say, a broken hip or an ordinary person could foresee that possibility even with the use of possibility. Our submission is that they serve essentially two different functions.
There will, as my friend says, be cases where it does not matter, but our submission is given how obviously finely balanced given the way in which the Court of Appeal’s reasoning otherwise was in this case, even on its own reasoning, this is not such a case.
KIEFEL CJ: The trial judge did not approach it in the way that the Court of Appeal did, though, did he?
MR HOLT: No, he did not. The trial judge approached it, with respect, correctly in terms of the statute and ‑ ‑ ‑
KIEFEL CJ: And the jury was properly directed?
MR HOLT: Absolutely. There was never a submission in the Court of Appeal, nor a ground of appeal, that the jury was not properly directed. This was and remains put on the basis that this appeal miscarried because the Court of Appeal applied the wrong test, but it was, of course, in terms of the task that was assigned to it under the Act and also as explained by this Court in R v M, it was a factual analysis for the court to undertake against the law as it properly stood.
This was a case where the Court of Appeal had concluded that essentially the entirety of the Crown case, to the extent that it relied upon the complainant, was not rationally available to the jury to permit it to reach its verdict. So we were dealing with an assessment on appeal which was in fact an assessment of a very different case than the one that went to the jury as a matter of contest. I do not say that to raise any ground of appeal but simply to say that made the task that the court undertook and the analysis that is revealed in those paragraphs more important and critically important that the court got the test right, in effect.
The second argument that we understand the Crown make is to say that the word “could” does not matter is a reference essentially to the pre‑amendment cases that construed section 23(1)(b) in its earlier form, and this perhaps was not made as clear in the outline as it should have been for which I apologise. Might I just step the Court through it without any intent to be patronising?
The section was amended in 2011 and the previous wording was to excuse criminal responsibility for an event which occurs by accident, was the wording of the previous phrase, and all of the cases which have been referred to in this sense by my learned friend and by us in our outline deal with the construction of that phrase, an event which occurs by accident, which it will, in our submission, be obviously seen to be a phrase that really needed unpacking. It is not surprising that a body of jurisprudence grew up around it to attempt to explain what it meant, because an event which occurs by accident does not have, with respect to Sir Samuel Griffith, an obvious meaning on its face.
What the Parliament then did was to substitute the new test in 23(1)(b) that we are concerned about for that older test, and I think it is common ground, and if not it is our submission, that the phraseology that made its way into 23(1)(b) came from those cases but particularly Taiters which is one of the cases that is referred to in the outlines at some length.
There is no doubt, as our learned friends identify, that many of the cases that predated the 2011 amendments and are referred to in Taiters and others use different formulations of the test, different paraphrases, different ways of discussing it, but, in our submission, what matters is that Parliament chose in 2011 to use the words that it has chosen to use.
Those words come from the decision in Taiters, there is no doubt about that, but the words are the words that Parliament has chosen to use and there is no need, in our submission, to go back in any sense and look at the earlier cases because the Parliament made its decision as to how it would put those matters.
Now, our learned friends refer to the interesting – and I mean that genuinely – the interesting note to the statute, to the provision, which confirms that Parliament did not intend to “change the circumstances in which a person is criminally responsible” by making that change in section 23(1)(b).
One can well imagine circumstances in which that note might have work to do where, for example, a submission was made that the phraseology meant that there was some very different approach to be taken to the question of the excusal of criminal responsibility under that section. But, in our submission, it has no work to do here where all that we ask and all that the Court of Appeal was obliged to do, in our submission, was to apply the words of the statute and to give it what are in fact their plain and unambiguous meaning, which is not to substitute the use of the word “would” for the use of the word “could”.
Our learned friends cite the decision of Alcan Australia Ltd (1994) 181 CLR 96 for the proposition that – the unexceptional proposition that when Parliament re‑enacts words, it should be taken to be aware of and be effectively incorporating judicial construction of those words where they have previously occurred. In our submission, that simply is not the situation. It would be a wrong application of Alcan. This is not the re‑legislation of words or a phrase that has previously been used; this is the taking of a phrase out of a previous case and turning it into a statute. It is a quite different situation, in our submission. In essence, the language is plain. It needs no gloss. That test is the one that simply needs to be applied, and it was not.
That is the first error. If I can now move to the second error. In our submission, as well as, with respect, putting the test wrong and making the position more – less onerous for the prosecution than it should be as a matter of law, the Court of Appeal also by its reasoning in paragraph [51] in particular revealed that it had in fact come to a conclusion about the state of the evidence and the inferences available from the evidence that could be rationally accepted that were only as a matter of law consistent with the existence of a reasonable doubt and which would then have necessitated the court allowing the appeal, quashing the conviction and entering an acquittal in response.
That again comes back to paragraph [51] in the appeal book and the language that her Honour the President used that it was equally open to the jury on the evidence to reach the contrary conclusion. So her Honour identified two available conclusions, one consistent with guilt and one consistent with innocence, and nonetheless in effect concluded that, because the conclusion consistent with guilt was an available inference, that as a result the appeal must fail and, in our respectful submission, the analysis that the court undertook in fact ought to have compelled it to the contrary conclusion.
The existence of a rational inference consistent with innocence, which is essentially what her Honour finds in the first part of that statement, is in itself and of itself a declaration of the existence of at least a reasonable doubt and, having so found, in our submission, there would necessarily have been some explanation required as to why that was not a rationally available inference because her Honour effectively finds that it is and then does not do anything to overcome that particular view.
In fact, her Honour does more than that and her Honour describes those two conclusions as being equally open, which is far more than is required as a matter of analysis to conclude that there is the existence of a reasonable doubt. Two inferences equally open, not just rationally available but equally open as a matter of weight, is a conclusion which takes – should have taken the court well beyond a bare finding that there was a necessary reasonable doubt but in fact is an overwhelming and obvious reasonable doubt.
I am enormously grateful to my learned friend because he, in the customary discharge of his obligations, cited to the Court a case that we did not and should have, which is Knight v The Queen (1992) 175 CLR 495. Can I invite the Court to go to page 503 of the report, which is the gravamen of the - the essence of the majority judgment of Chief Justice Mason and Justices Dawson and Toohey, where their Honours cite the judgment of Chief Justice Dixon in Plomp v The Queen and then in Martin v Osborne and then note in the second paragraph down:
With respect, Young C.J. –
in the Court of Appeal in that case:
was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open – one consistent with innocence and the other consistent with guilt – were equally open. There are not, as Dixon C.J. observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.
That, in our respectful submission, is a complete answer, in effect, to the submissions that our learned friends make, and I find that in the case which he has cited and I am grateful for it. Further down, just to draw the Court’s attention to it, in the context of that case, which was about the availability of competing inferences as to an intention to kill, the Court noted that one might rephrase the test:
to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo.
If I can finalise this aspect of the argument, essentially the cascading submissions, the first is that the analysis that the Court of Appeal conducted at [51] and the conclusions that it came to at the very least identified a reasonable doubt. In truth, they identified substantially more than that by identifying two conclusions that were equally open on the evidence. The question really that ought to have been asked was whether the jury, acting reasonably, could have rejected the competing inference beyond reasonable doubt. Far from finding that, the Court of Appeal found, in effect, that it was an equally open inference.
Can I make this submission at this point before turning finally to the question of whether the verdict was in fact ‑ is a factual analysis under R v M, of course, in fact unreasonable or against the weight – or contrary to the evidence. If this Court were to consider, with respect, that our second submission should be accepted, that is, that the Court of Appeal in fact found on its own analysis otherwise conducting its task entirely properly that there was a reasonable doubt, then, in our submission, this Court would need go no further in terms of allowing the appeal, quashing the conviction and entering an acquittal.
Had that error not been made on the Court of Appeal’s own findings on the facts, necessarily the appeal would have been allowed on that basis. In our submission, the appropriate course then would be to do that. If not, and if our submission on that aspect of the error is not accepted but the first is, then it would of course then be incumbent on this Court either to remit the matter to the Court of Appeal for hearing – I do not think either party invites that but it is of course a matter for the Court – and otherwise to assess the evidence for itself. At the risk of sounding like a broken record, if our second argument is accepted, our submission is that your Honours do not need to go there because the Court of Appeal has already done that job.
In any event, if I can move to the question of whether the verdict was unreasonable and on that basis whether, applying the test in R v M to the statutory formulation, this was an unreasonable verdict.
This, in our respectful submission, was not a verdict that could be explained by the jury’s advantage in seeing and hearing the witnesses. Unusually, in effect, because of what the Court of Appeal properly did, which was to say, the complainant’s credibility and reliability are so damaged that they form no part of the evidence base that could rationally be considered, we are in effect here assessing something which is known as a set of facts. And the only matter that our learned friends point to, which suggests or submits an advantage upon the jury that is not enjoyed by this Court or would not have been enjoyed by an intermediate appellate court, is the capacity of the jury to observe the size and build of the participants to this altercation.
Of course, her Honour the President, in the Court of Appeal below, at paragraph [51], noted that very point, but assumed that they were each of average height and build for the purposes of the conclusion that her Honour reached. With respect, it is difficult to know how any conclusion about height and build could have been drawn in those circumstances.
But our respectful submission is that, when the question is one of foreseeability of an ordinary person standing in the position of the defendant, the notion that some difference of height and build of the two persons who the evidence demonstrated were essentially of the same age, as being a fact or an observation that might be rationally capable of explaining what a Court of Appeal or an appellate court might otherwise consider an irrational verdict, in our submission, ought be rejected.
The idea that a verdict which would otherwise be considered irrational where there was a reasonable doubt felt by an appellate court, but you might say, well, the jury got to see the height and build, there is no evidence of what that was, but we think it might have made a difference or explain the verdict, is, in our submission, a bridge too far.
BELL J: Would it be fair to say that the fact that no evidence was adduced as to the height and build of the complainant and the accused would suggest that it was not considered by the parties to have been an issue bearing on the determination?
MR HOLT: Yes, with respect. And the appeal book also includes the trial judge’s charge to the jury and the summaries of the respective prosecution and defence cases. Nowhere in that summary is there any suggestion that is a significant feature. But one could well understand – indeed, a case I had very many years ago in New Zealand involved a person punching another person, but the person doing the punching was 140 kilogram professional K1 fighter and that became a very single feature in the case and one could well understand that scenario playing out. But, in the absence of anything suggesting some real difference, in our submission, your Honour Justice Bell’s comment would be entirely correct.
Could I then turn finally, then, to the question of the unreasonableness of this verdict just as a matter of fact, based on the findings or the factual matrix which appear now to be uncontroversial. The Crown here, or the jury here, in order to convict the defendant of the charge of unlawfully causing grievous bodily harm, had to prove beyond reasonable doubt that an ordinary person in the position of the defendant would have foreseen the reasonable possibility that his act would cause the event. The event here – and it is something which, in our submission, cannot and which will not be glossed over – is grievous bodily harm in the form of a complex fracture.
So, it is not a question of saying would you foresee some injury or would you even foresee a broken bone as a reasonably foreseeable possibility, but would an ordinary person foresee the possibility of grievous bodily harm and of the limbs of grievous bodily harm that are provided for in the Code, this case appeared squarely to fall in the third – that is, an injury of such nature that if left untreated would endanger, or be likely to endanger, life or be likely to cause permanent injury to health. So, it is an injury of that kind within that spectrum of injuries which would need to be contemplated as a reasonable – foreseen as a reasonable possibility.
If I can put it as simply as I can – and I am subject to anything I can further assist the Court with – it is my final submission, a push to the chest sufficient only – as the evidence would permit – to cause a stumble
backwards and then a fall, even a reasonably hard one, but a push to the chest on that basis, it would be irrational on that basis to conclude that beyond reasonable doubt that an ordinary person doing that would reasonably foresee the possibility of grievous bodily harm in the form – in any form but certainly not in the form of a complex fracture.
Our respectful submission, on that basis, on a proper analysis of the evidence – almost regardless of all the submissions I have made before – this was, in fact, doing the factual analysis which this Court demands through R v M – this was an unreasonable verdict. Unless I can assist the Court, those are my submissions.
KIEFEL CJ: Thank you, Mr Holt. Mr Cash?
MR CASH: May it please the Court. If your Honours have had the opportunity to see our summary of oral submissions, your Honours will see that we seek to make good five propositions that are there set out and which I will not list now but deal with as I progress.
Coming to the first proposition, it was the ultimate task of the Court of Appeal in this case to answer the question of whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. The evidence at trial undoubtedly raised an issue of the application of section 23(1)(b) of the Criminal Code. The trial judge directed the jury in a manner about which there is no complaint either in the Court of Appeal and certainly not in this Court. The jury convicted the appellant which, of course, indicates they were persuaded beyond reasonable doubt that the operation of section 23(1)(b) had been excluded.
Then, as part of the task of the Court of Appeal assessing the reasonableness of the verdict, consideration of whether the jury, excluding the operation of 23(1)(b) in convicting the appellant was itself reasonable was a subsidiary but obviously critical assessment for the Court of Appeal to make. It is important, in our submission, to bear in mind, of course, that we are, in these proceedings, engaged in an assessment of whether the Court of Appeal have discharged its task sufficiently and we are not considering a case where a trial judge, for instance, directed a jury using the word “could” which does not conform with the words of the statute.
Looking at whether or not the Court of Appeal discharged their duty is to be assessed, in our submission, and I do not suspect that this is a controversial proposition, by consideration of the whole of the judgment and not simply by isolating a single instance of the use of the word “could” – which is to be found in paragraph [51] which is at appeal book 307.
Part of the task of the Court of Appeal then, as I have said, required an assessment of the conclusion which the jury did reach that the operation of section 23(1)(b) had been excluded in order to determine if on all of the evidence the verdict was one which was reasonably open. Her Honour, the President, who, in effect, gave the reasons of the Court, dealt with that issue having referred to the positive obligation upon the prosecution to prove that an ordinary person would have foreseen an injury such as that suffered in this particular case.
Can I take your Honours to some passages in her Honour’s judgment which illustrate, in our submission, that her Honour was plainly aware of what the correct test was, and then I will come to whether the use of the word “could” in paragraph [51] betrays error or misunderstanding.
If your Honours might first go to appeal book 304, paragraph [37] of the judgment below, your Honours will see that her Honour the President there set out what was in effect a summary of the contentions advanced on behalf of the appellant in the Court of Appeal, the argument there being in essence that an injury of this sort, a complex fracture of the hip was something which was so remote or theoretical a possibility as to bespeak unreasonableness of the verdict. Her Honour says in the second part of paragraph [37]:
The jury could not rationally conclude beyond reasonable doubt that an ordinary person would reasonably foresee the possibility of a broken hip –
her Honour there, as I have said, summarising, as it were, the argument that was made on the appeal on behalf of the appellant but indicating, we say, an understanding of the appropriate test to be considered.
KIEFEL CJ: It is not necessarily the case, though, if her Honour is summarising. If the context is an argument, then her Honour is summarising the argument. Summarising an argument one can easily lose sight of the correct legal definition.
MR CASH: Indeed, and one, of course, could summarise an argument which one rejects in the end, but if your Honours look at the surrounding sentences, her Honour sets out some uncontroversial propositions such as what it is that needs to be foreseen – that is, an injury of the kind that was in fact sustained and footnotes and cases to which I will come in a moment, and in that context it is our submission that while her Honour is paraphrasing, so to speak, a submission that was made, it does indicate an understanding of what might be called the correct test.
Could I come then to the decisions that her Honour notes in various footnotes in that paragraph? If I might list them and then come to some paragraphs. Her Honour sets out R v Stuart [2005] QCA 138; R v Condon [2010] QCA 117; R v Coomer [2010] QCA 6 and R v Taiters; Ex parte Attorney‑General [1997] 1 Qd R 333. I will not trouble your Honours to go to the particular passages, they are referred to in our outline, but in each of those cases there are references to the tests described properly as being one whether an ordinary person would reasonably foresee the event in question.
Again, we point to that as being indicative of her Honour appreciating and understanding the test which was to be engaged when considering 23(1)(b) in the context of what we have proposed as being the ultimate question of whether the verdict of the jury was one which was reasonable or not in the circumstances.
It follows from that, we submit, that it could not be challenged that her Honour – who I might say in passing was actually on the court in two of the four cases to which her Honour referred speaking of the application of section 23(1)(b) – herself misunderstood what was the legal test to be applied. That does not, of course, itself deal with any issue that is presented by the use of the word “could” rather than “would” in paragraph [51], which is a topic to which I will return.
But it is our submission that her Honour understood the correct test and it now becomes a question of whether her Honour applied the correct test when one looks at the language that was used later in her judgment. It is, in our submission, against the background of what we say is a plain understanding of the correct test that one is to assess paragraph [51] which is the critical paragraph in the judgment to which your Honours have already been taken at 307 of the record book.
There it is submitted by the respondent that what her Honour was engaged in was answering, as it were, what I have proposed is the ultimately question, whether the verdict was one which was reasonable or not. In doing so, her Honour has, of course, tackled the important, if not critical, subsidiary question of the operation or exclusion of section 23(1)(b).
The language used by her Honour in paragraph [51] addresses, we submit, the reasonableness of the jury’s conclusion, noting that other conclusions might also have been reached and in using the words “an ordinary person in the position of the appellant could have foreseen”, we submit that her Honour was not there attempting definitively to state the test that is prescribed by section 23(1)(b). To do so would, in our submission, be inconsistent with what we say is her Honour’s recognition of the proper test expressed earlier in the judgment, particularly with reference to the decided cases that her Honour footnotes.
The use of the word “could” where arguably “would” may have been the better word to use does not in this context, in our submission, compel the conclusion that the Court of Appeal misunderstood the task in which they were engaged. The language that was used that “an ordinary person could have foreseen the consequence” – and there of course I am paraphrasing – adopts, in our submission, the language found both in Kapranovski (1973) 133 CLR 209, and I will ask your Honours in a moment to go to page 232, and also the language of Justice Callinan in a proposed direction, as it were, that his Honour discussed in Stevens (2005) 227 CLR 319 at 370, accepting though that her Honour the President in this case adopted that language, in our submission, to put it in positive terms rather than to employ double negatives as is sometimes done.
If I can invite your Honours then to look at Kapranovski at 232, and this is in the very well‑known judgment of Sir Harry Gibbs, where your Honours will find at the top of the page in the paragraph that is continuing from the preceding page the sentence that commences with:
It is impossible to say that the grievous bodily harm suffered by Bajric was so unlikely a consequence of pushing a glass forcibly towards his face that no ordinary person could reasonably have foreseen it –
So his Honour there employs the word “could”, though I accept in what might be described as being a negative sense that, “It is impossible on those facts” that someone could not reasonably have foreseen is a way in which that might be paraphrased.
Justice Callinan employs, in our submission, a similar phrase in the decision of Stevens, at 370. This is in the context of his Honour Justice Callinan proposing what the trial judge in Stevens perhaps could have done to direct the jury on 23(1)(b), which the court held should have been put to the jury in that case. I will simply note that Justice McHugh agreed with that proposed direction, at page 332, paragraph 32, as did Justice Kirby, at 346, paragraph 79. At 370, towards the bottom of the page, your Honours will see the sentence in this proposed direction:
That evidence may also raise the possibility that neither the accused nor an ordinary person could reasonably have foreseen that the fatal rifle shot would not have occurred in the circumstances.
A similar form of words to that was used by Sir Harry Gibbs in Kapranovski.
One then looks at the critical sentence in paragraph [51] of the judgment of the President in the present case, where her Honour has expressed it, leaving out some words, that “an ordinary person in the position of the appellant could have foreseen” the event in this case. That is, in our submission, doing no more than taking the language of Kapranovski and the language of Stevens and, rather than putting it perhaps in this way, to say that the jury were, on the evidence, entitled to reject the notion that no ordinary person could have foreseen the event, to express it as her Honour did in positive language, that an ordinary person could foresee the event. No error is implied or established, in our submission, by framing the ultimate conclusion in that way.
BELL J: If one accepts that for present purposes, how do you deal with the argument that in paragraph [51] her Honour says:
It was . . . open to the jury on the evidence to reach the . . . conclusion, that an ordinary person . . . could have foreseen –
et cetera, having only moments earlier recorded her conclusion that a jury may well have considered the converse? The task that her Honour was carrying out was to ask whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. That required exclusion of the conclusion in the first sentence of paragraph [51].
MR CASH: Yes. Our submission in respect of that is that, when one looks at Knight v The Queen, to which my learned friends have taken your Honour, where one is considering – sorry, might I restart that. Where the Court of Appeal is being asked to consider competing inferences, the question is, in our submission, whether it was reasonably open to the jury to reject the innocent hypothesis, and that is what her Honour was engaged in. While her Honour refers to a conclusion a different jury may have reached, that does not, in our submission, indicate that her Honour entertained the doubt ‑ ‑ ‑
BELL J: Where do we find the analysis that explains the basis upon which it was open to exclude beyond reasonable doubt that possibility? I have some difficulty seeing the analysis.
MR CASH: Yes, with respect, I understand why your Honour would have that difficulty. Her Honour says not much more than to go on to say, as your Honours would see, that the resolution of that issue was a matter for the jury.
BELL J: That is the difficulty, is it not? True it is, the jury was the constitutional Tribunal to determine the question in the first place ‑ ‑ ‑
MR CASH: Yes.
BELL J: ‑ ‑ ‑ but it was her Honour’s task to apply M v The Queen.
MR CASH: Yes. Her Honour does, in the sentences that follow toward the end of paragraph [51], refer to evidence and there is some discussion to be had about whether the medical evidence bore out the conclusion that her Honour reached about forcefulness. But that does, in our submission, inform this Court to a degree as to why her Honour felt that it was open to the jury to exclude the innocent hypothesis and act instead on the guilty hypothesis, as it were, speaking of a push, which her Honour described as being “forceful, on a slight downward sloping ramp.” There is, I concede, not much analysis there and we are left with the words that we find in the paragraph.
BELL J: It is put by the appellant that if one can discern error in the statement of her Honour’s reasons and focus here is upon paragraph [51], one can conclude from the whole of her Honour’s reasons and the opening sentence of paragraph [51] that the correct task had been undertaken by the Court and that then there were, on the appellant’s analysis, two errors which flawed the ultimate conclusion. And what is contended is that, if one accepts that the first sentence of paragraph [51] is a conclusion that means what it says, then this Court would simply uphold the appeal, finding that in the balance of the paragraph there was error and it would not be necessary for this Court to itself consider the M v The Queen issue. What is your response to that submission?
MR CASH: Our submission to that, your Honour, is that if there is error in the reasoning of the Court below, it still falls to this Court to assess for itself the reasonableness of the verdict. Much as the respondent does not invite your Honours to go beyond the – sorry, I withdraw that and start again. It is not, we submit with respect, for this Court to simply accept conclusions that were reached below if there has been error but rather it is for this Court to undertake – well, either to remit or to undertake its assessment of the evidence to answer the question of whether the verdict was unreasonable.
GORDON J: Is that because of the inability to determine which bits are accurate and not accurate?
MR CASH: Well, that is at least part of it, with respect, yes. That is our submission, your Honour, that even if one accepts the submission advanced on behalf of the appellant as to the apparent error, it still falls to this Court. We submit, of course, subject to your Honours’ discretion it is determinant, the alternative being to remit it to the Court of Appeal.
BELL J: Do you rely on the contention that the jury had an advantage in seeing the height and build of the complainant and the appellant?
MR CASH: We do not abandon that contention but we must concede, with respect, that there is considerable force in the observation of your Honour that had it been a matter of significance at the trial one might have expected attention to be drawn to it either in the evidence or in the submissions. So, without resiling entirely from it, we have to accept that it is not our most forceful submission.
Could I deal with one final point in what I suggested is our first proposition, and that is the complaint the appellant makes about that first sentence in paragraph [51] suggesting that it reveals error in an appreciation of the test set by section 23(1)(b) itself. Our response to that is that which your Honours will see in the respondent’s outline at paragraph 12 which is simply that it mirrors almost precisely the language of the Court of Appeal in Van Den Bemd [1995] 1 Qd R 401 at 405, a decision in which this Court refused special leave, in effect, for what it is worth, endorsing the decision of the Court of Appeal.
So no error, in our submission, is suggested by the formulation that her Honour uses in terms of saying “could not have reasonably foreseen”. That is not the issue, of course, that your Honour Justice Bell has proposed but I am just dealing with that submission made in the appellant’s outline. So that formula does not indicate error, in our submission.
That is, in our submission, a way in which this appeal ought to be disposed of, and that is that her Honour should not be understood as attempting to definitively state the test in section 23(1)(b) in what her Honour says at paragraph [51]. Can I move then to the second proposition that, in effect, even if it is understood that her Honour was stating the test, that in the context of this particular case, using the word “could” is not itself indicative of error and this involves some brief consideration of the history in the context of section 23(1)(b) to which your Honours have to some extent already been taken.
So, repeating what has already been said to some small extent, before 2011 the section simply referred to an event which occurs by accident, which was a phrase subject to some considerable judicial consideration principally in the decision of Kapranovski to which your Honours have already been referred. We then come to 2011 when the Queensland Parliament changed the words, enacting some of the words that had been found in decided cases, particularly Taiters. The words referring to an ordinary person were not included but nothing turns upon that for the purpose of today’s proceedings.
It is appropriate, in our submission, to have reference to cases decided determining the content of the phrase “an event that occurs by accident” for two reasons. One is the principle to which the appellant has already referred that when Parliament enacts legislation adopting phrases that had been judicially considered that they can be taken to have intended they acquire the same meaning.
Secondly, the note that was inserted into the legislation in 2013, which is by operation of the Acts Interpretation Act deemed to be part of the legislation, has to be given effect and that is expressing the intention of the Parliament not to alter the circumstances in which liability would attach which one infers indicates that resort can be had to the state of the law at the time of the amendment that it occurred in 2011.
If that proposition is correct, then that invites consideration of other cases where the phrase “an event that occurs by accident” has been considered, and there we find various uses of the words “could” and “would” and phrases “could not” and “would not”, not in a context which we suggest implies universal interchangeability ‑ that would be too large a proposition to advance – but certainly in circumstances where the focus is, we submit, on the jury acting reasonably conducting an assessment of probabilities, looking at – and I will come to some of these phrases – the obviousness of the risk, whether the circumstances are such that there is an appreciation of an outcome such that it is to be, in effect, guarded against and such that an accused person does not escape responsibility for acting heedlessly in the face of such risk.
It is against that background that we make the submission that in a case such as this, such nuanced difference between “could” and “would”, such fine distinction as may be able to be drawn between “could” and “would”, becomes really quite ephemeral to the point where in a case like this there is no practical distinction between those two concepts, and her Honour in employing the word “could” has not disadvantaged the appellant in that she has not applied a test which is more favourable to the Crown in considering whether section 23(1)(b) had properly been excluded by the jury.
Can I mention briefly then some of the cases where this is discussed, and I will not invite your Honours to go back to it, but Kapranovski to which your Honours have recently had regards. Your Honours will find at the foot of 231, going over to 232, Sir Harry Gibbs first using “would” and then “could”, “could” of course being in that negative context as I have already submitted.
If I might next take your Honours to Van Den Bemd (1995) 1 Qd R 401 and the passage at 405 where your Honours will see the phrase there at about line 19:
whether death –
which was the event in that case:
was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it.
I note as well that at 10 just above the Court there spoke of:
no ordinary person would have foreseen it.
So we do see a changing between the use of “would” and “could”, accepting of course in context that “could” is often used in the negative sense of “could not” or “no ordinary person could” foresee the particular event.
R v Taiters; Ex parte Attorney‑General (Qld) (1997) 1 Qd R 333, which is the next case that I will briefly mention, is a decision on which the formula that we now find in the statute was based. The relevant passage is at 338. Ultimately, at the foot of the page the Court proposes what is to this day still used as, in effect, the model direction, put in a positive term, speaking there of an accused who:
[no] ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.”
It is useful, in my submission, to have regard to the analysis of the court preceding that ultimate conclusion where the court speaks of this process being one of an assessment of probabilities – and I will not read the passages but your Honours will see on 338 the court speaking of different situations of certainty of likelihood of probability emphasising that a process such as this where a jury or, indeed, a Court of Appeal are asked to consider whether an event was one which would reasonably have been foreseeable by an ordinary person, is engaged in a practical exercise of assessing probabilities and not one of passing language and finding nuanced differences between a word such as “could” – which I accept indicates possibility – and a word such as “would” which, in our submission, indicates a degree of probability. It is not as high as certainty, we would submit, but ‑ ‑ ‑
KIEFEL CJ: Mr Cash, do the extrinsic materials to the amendment offer any assistance in relation to the choice of the word?
MR CASH: No. We do not submit that they do, your Honour, no. We have not placed that material before the Court.
KIEFEL CJ: But it does not assist?
MR CASH: Not in our submission, no. Taiters speaks there, in our submission, of what is a legitimate approach to questions such as this and that is where there is a real risk of an outcome, the event – to use the language of section 23 – that an ordinary person would have been conscious of it and someone does not escape liability by acting in disregard of so obvious a risk.
So here, where on the facts, there was a push – putting it as neutrally as one can – a push that resulted in the complainant stumbling back three to four metres and falling in a manner which was described in the evidence as reasonably hard which must have been the act that resulted in his hip fracture, there is, in our submission, no difference between that which an ordinary person could have foreseen as an outcome and that which they would have foreseen when one looks at the principles that are behind the assessment of such a question and the focus on it being a practical question of the assessment of probabilities in the circumstances as they are presented.
BELL J: Again, accepting, for present purposes, that submission and turning to the heart of the issue, one of the difficulties is this, is it not, that once one accepts there was a stumbling back some distance, combined with Dr Nicholl’s evidence of the serious injury being occasioned by the dynamic forces of a body moving and then falling onto a hard surface, is it right to conclude beyond reasonable doubt that it was the force of the push as opposed to the fact that it caused stumbling and then an unknown dynamic leads to the occasioning of the injury in the context of the hip hitting the hard surface?
MR CASH: That does, with respect, go very much to the heart of the question of what is “reasonably foreseeable”. It was, in our submission, open for the jury so to conclude in circumstances where there was no unusual feature of the ground. There has been discussion of the gradual slope. There was nothing which would explain how the complainant came to fall with sufficient force to cause his injury other than, we submit, the force that was introduced into the equation by the push by the appellant.
So it was, in our submission, a conclusion that was reasonably open on the evidence. I might come back to that in a moment. If I can preview, as it were, a submission that we make, it is that even if one focuses simply on the evidence of the appellant that it was a push with sufficient force to cause the appellant to stumble back three to four metres, that of itself bespeaks of something more than minimal force but I will come back to that, if I might.
The issue on the appeal, of course, as I have submitted with respect, is not looking at the adequacy of what her Honour the President said at paragraph [51] as if it was a direction to the jury, but looking at it in assessing whether the verdict of the jury was itself reasonable or unreasonable, stating it in the way that her Honour did, that it was open to the jury to conclude an ordinary person could have foreseen such an injury, was not, in our submission, an inappropriate way to phrase it within the context of this case.
Can I move, then, to the medical evidence, which I can deal with I think reasonably briefly. The finding, in effect, of her Honour was that it was most likely – it was not a positive finding but rather that it was most likely that there was a considerable degree of force. And then later her Honour – I should mention where this is in the judgment – says:
considerable degree of force –
at appeal book 307, in paragraph [50], the second last line. And then, in [51], the fourth last line, her Honour speaks of the push being:
necessarily on the medical evidence forceful ‑
So the two adjectives that her Honour uses to describe the push are “considerable degree of force” – adjectival phrases – and “forceful”. Those were conclusions that were, in our submission, supported by the evidence, starting with the proposition that, for two 55‑year‑old men, a shove of sufficient force to cause a stumbling back of three to four metres suggests, at the very least, something more than minimal force.
One then looks at the injury that was suffered, and it has been described by Dr Nicholl as a high energy fracture. Dr Nicholl does speak of that equating, in effect, to the amount of force that was involved in the impact between the body and the ground, we can assume, in order to cause the fracture of the hip. And that is, I accept, a step removed from the force that was used in the push, but I will come to that.
The reference to the force your Honours will find in the appeal book at 139, line 5, where Dr Nicholl was asked:
And when you say a higher amount of energy, are you talking about the amount of force used?‑‑‑Yes.
The effect then of the doctor’s evidence, in our submission, is that accepting that there was a possibility that a shove which caused movement back three or four metres and a fall to the ground may be an explanation for the cause of the injury. The doctor spoke in terms of the energy involved or the force that had to have been applied in terms much starker than simply stumbling back and falling, in our submission.
The doctor did speak of if this was a direct application of force, striking with the bumper of a car, or, as was put in cross‑examination, if it was the result of being hit with the bat, it was put to the doctor that it would be a very forceful striking with the bat, a proposition with which the doctor agreed. Your Honours will see that in the appeal book 144 during the cross‑examination of Dr Nicholl, at line 25:
Or a baseball bat being swung incredibly hard into that area?‑‑‑Yes.
What one takes from that is that the energy involved, the force involved, one can use any number of words to describe it but it had to have been ‑ ‑ ‑
KIEFEL CJ: But they are two totally different situations with different dynamics, are they not?
MR CASH: That is so, that is so, but our submission is that an assessment of the force involved, even if it was a fall, is assisted by consideration of these types of quite lurid descriptions of what would be involved if there was a direct application of force as opposed to a fall, which then forms ultimately an assessment of how much force was used by the appellant when he pushed the complainant.
KIEFEL CJ: One inference you could draw between the two – the point of distinction between the two is it would be a lot easier to determine if a cricket bat was used that the answer is readily available ‑ ‑ ‑
MR CASH: Indeed, indeed.
KIEFEL CJ: ‑ ‑ ‑ but this is a lot more difficult.
MR CASH: That is so, that is so, and of course, the direct application of force was plainly excluded by the absence of soft tissue injury or other signs that would have been consistent with that.
NETTLE J: What you are saying is that in order to achieve the amount of force that was imposed on the man’s hip by the fall that pushed his body to accelerate into the ground must have been fairly forceful.
MR CASH: With respect, that is so.
NETTLE J: More than just pat‑a‑cake, this was a real shove.
MR CASH: That is so, and for that reason, her Honour’s description is it being most likely a forceful push was not one which bespeaks error, accepting that there may have been other explanations for the injury. That does not, in our submission, invalidate the assessment as put by her Honour.
KIEFEL CJ: To what extent did the medical evidence go into other aspects of what might have contributed to the particular injury? For instance, the position in which a person fell, the point at which they fell, was any of that gone into?
MR CASH: There was some brief reference to position in the sense that – I will find the passage. The doctor did speak of falling on to the hip itself, there being the relatively direct application of force to the hip.
KIEFEL CJ: But the question then would become foresight. If that was a large component in it, it would be foresight as to someone being pushed and falling in that position.
MR CASH: And falling in a particular manner, yes. What I was going to say, your Honour, is there was not much else in terms of what might be called the biomechanics of the situation. Perhaps, of course, Dr Nicholl may not have been qualified to speak as to that, I do not know, but little was said about any precise combination of circumstances which had to have been present before this injury may have occurred.
I will just go to perhaps what might be the best passage dealing with that. It is to be found at appeal book 144 in the cross‑examination that occurs from the top of the page down to about halfway down. It does not speak very much as to the issue that your Honour the Chief Justice has raised.
KIEFEL CJ: Understandably so, perhaps.
MR CASH: Yes.
KIEFEL CJ: I suppose at trial a large part of the evidence was directed to the complainant’s account, which turned out to be unreliable.
MR CASH: Yes. It is one which it seems quite plain the jury themselves rejected ‑ they did not convict of the second count – and it is one which, for entirely understandable reasons, the Court of Appeal did not act upon either. We do not seek to rehabilitate his evidence in this Court. There was then, in our submission, sufficient evidence from Dr Nicholl to permit the description that her Honour the President allocated to the amount of force that most likely was involved in the push which the appellant admittedly gave to the complainant.
Can I move then to our fourth proposition, which is the treatment by the Court of Appeal of what are said to be equally open propositions, and that is, of course, the language used by her Honour. To some extent I have mentioned this in exchange with your Honour Justice Bell, and I will not repeat myself there, but it remains our submission that her Honour was engaged in the task of assessing whether it was reasonably open to the jury to reject the innocent hypothesis. The way that her Honour has expressed herself is sufficient to deal with that, noting of course what your Honour Justice Bell has raised with us.
That leaves us then with the last topic to address and that is if there is some error in the reasoning of the Court of Appeal, it is our submission that this Court conveniently could deal with the question of unreasonableness for itself. That is something which I can deal with quite briefly.
The propositions advanced by the respondent in that regard involve a consideration of the push itself – the forcefulness that may have been involved in that – and an assessment of the forcefulness, or the likely forcefulness, is, in our submission, assisted by understanding the state of mind of the appellant as he expressed himself, in this sense, that it is more likely that there was a greater degree of force used by someone who was, in his own words, variously cranky, upset, and in cross‑examination he accepted that he was furious at the time of the altercation with the complainant.
That being so, a push with sufficient force to cause the complainant to go back three to four metres on the hard surface which was described as being this tiled surface was something which meant it was open to the jury to conclude that an ordinary person in those circumstances would have foreseen an injury of this sort which amounted to the grievous bodily harm.
So I will not go to the passages which we have referred to in our outline. There is reference to the evidence of the appellant there. To some extent, one might also consider the evidence of the witness described as an independent witness, that is Ms Broad, who, of course, did not see the push but who described circumstances in which it was open to conclude that it was the appellant who was the aggressor, at least in that part of the transaction which she observed.
So it is our submission that if your Honours do come to consider the reasonableness of the verdict for yourselves, that this is a verdict which was
open to the jury in the evidence reasonably to have reached. Unless there is anything further, those are our submissions.
KIEFEL CJ: Thank you, Mr Cash. Anything in reply, Mr Holt?
MR HOLT: Just briefly, if I may? Dealing firstly with what we have described as error one – that is the use of “could” rather than “would” – my learned friend makes entirely understandable submissions that have shades of Wu Shan Liang and I hope we are not being too finely tuned to error in the reasons of her Honour the President but, in our respectful submission, paragraph [51] needs to be seen for what it is which is where her Honour actually does the analysis.
Indeed, it is the only place in the judgment where her Honour actually does the analysis and, in our respectful submission, her Honour should be taken to have said what she meant and meant what she said – that is, that she used the word “could” instead of “would”. With respect, my learned friend at no stage grappled with the problem though at times alluded to the fact that there is a difference between the formulation that has “could” and a formulation that has “would”. They are different formulations and they set, in our respectful submission, different standards.
Section 23(1)(b) is, of course, a critical provision in terms of the attribution of criminal liability in the State of Queensland, unlike the common law States, which – at least since He Kaw Teh – have taken “intention” as being inferred from physical elements described in terms of the definition of criminal offences.
The Code States, and Queensland in particular, take a wholly different approach. So this is the provision which imports where intention is not otherwise an element of an offence. This is the provision which imports the question of state of mind objectively and subjectively and determines the question of criminal liability based on those issues. So, care needs to need to be taken, in our respectful submission, in the way in which it is construed.
My learned friend referred to a number of the pre‑amendment cases - and amend - I think it was obvious in his submission that they were pre‑amendment but they are. They were cases construing a different phrase – a phrase which needed construing and Parliament has chosen to use a particular phrase to set it down in stone in this really important provision in the way in which a criminal justice system functions and criminal liability is attributed in Queensland.
My friend talked about cases which deal with issues like the fact that this is a practical exercise – competing probabilities and so on. Well, no, with respect. The starting point is this is the application of the words of the statute, section 23(1)(b). Of course the note has work to do in the sense that Parliament made clear that it was not intending to change the circumstances of liability, but that does not permit us to proceed as if those words do not exist, because they do. The starting point is those words ought be applied, not words which mean something different.
Moving to the second error, which is the question of the treatment of competing inferences or conclusions in paragraph [51], in the course of an exchange with your Honour Justice Bell my learned friend suggested, if I might say with respect and perhaps faintly, but nonetheless suggested that the second half of paragraph [51] is what provides the analysis to support the proposition that the inference or conclusion consistent with innocence could be excluded beyond reasonable doubt.
In our respectful submission, on proper analysis the second half of paragraph [51] in fact explains why a conclusion consistent with guilt was open; it does nothing to suggest or to explain why the conclusion or inference consistent with innocence could be excluded beyond reasonable doubt.
Finally, can I deal with the practical question which arose right at the end of my learned friend’s submissions, which was the question of the push and how forceful it was. With respect to your Honour Justice Nettle and to my learned friend, your Honour Justice Nettle made reference to this not being pat‑a‑cake ‑ of course plainly so.
The appellant’s evidence made absolutely clear that this was a push of sufficient force to get the movement back three or four metres and that is not pat‑a‑cake, nor minimal force. That has never been a part of the appellant’s case that it was such. In our submission, though, it is too much to say, it is illogical to go further and say, comparisons with things like being hit by a baseball bat, permit any conclusion about the level of force used in the shove. All, on a proper analysis of the doctor’s evidence, that can be logically be said, is that the push had to be sufficient to cause a stumbling backwards; that is, an accelerated fall, because the doctor made clear that an accelerated fall was a mechanism sufficient to cause an injury of this kind.
In fact, the appellant’s evidence makes it slightly worse for him, because it is three to four metres, that comes only from his mouth, but even so, in our submission, that is the nature of the force we are dealing with here and when one analyses the proposition that an ordinary person would foresee the possibility of grievous bodily harm from that act, in our submission, the answer remains that they could not rationally do so, beyond reasonable doubt. Those are our submissions, if the Court pleases.
KIEFEL CJ: Yes, thank you. The Court will adjourn until 10.15 tomorrow.
AT 3.40 PM THE MATTER WAS ADJOURNED
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