R v Batchelor - [1993] QCA 37

[1993] QCA 037

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA

BYRNE J

CA No 258 of 1992
THE QUEEN
v.

MARK PHILLIP BATCHELOR

BRISBANE

DATE 05/02/93

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence and an appeal against conviction. The appellant was convicted of manslaughter in August last year and sentenced to eight years’ imprisonment.

The application for leave to appeal may be briefly disposed of. The applicant has a fairly substantial criminal record including a number of convictions in recent years for offences of violence. It was conceded by his counsel that the sentence imposed was within the proper range and we think that concession was rightly made. The application for leave to appeal against sentence was not abandoned but neither was it pressed.

The appeal against conviction is said to involve a question of some importance, namely whether the Court as presently constituted should accept as correct the decision in Van den Bemd, judgment in which was delivered in this Court on 30 October last. To explain how that point arises, it is necessary to give some details as to the facts.

The Crown case was that the victim died as a result of an attack on him by the appellant in a night club at a time when it appears that the victim, one McNally, was substantially intoxicated. According to the Crown, McNally was struck by a

woman and shortly after that punched in the face by the
appellant. McNally fell to the ground and then the appellant
kicked him in the head. After being kicked, McNally did not
get up. The appellant then dragged McNally to the front of the
building where McNally was observed to be bleeding badly from
the nose and mouth.

McNally died, according to the medical evidence, of a subarachnoid haemorrhage. On examination it appeared he had received a blow behind an ear. In the doctor’s opinion, that was caused by trauma and the doctor thought a "fairly substantial" force must have been applied. He explained:

"You do not have to have a very severe force if the
applied force is in the correct position and the
person is sufficiently intoxicated. It appears that
the alcohol dilates the blood vessels and removes
the protective muscular mechanisms which, normally,
if somebody is hit in that area their muscles go
into spasm and it protects them from the blow but if
they have sufficiently high alcohol their muscular
reflexes are thought to be inadequate to protect
them."

There was some evidence that McNally struck a corner of a table as he fell in consequence of the punch delivered by the appellant. The other possibility appears to have been that the haemorrhage was caused by a kick. The evidence was unclear with respect to the point at which the kicks landed, so that the Crown had to accept that the corner of the table may have caused the fatal damage.

The doctor said that it would have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] QCA 37
Decision Date: 5/02/1993

CaseChat Overview and Summary

The Court of Appeal heard an application for leave to appeal against both sentence and conviction in the case of R v Batchelor. The appellant was convicted of manslaughter and sentenced to eight years in prison. The primary issue in the appeal was whether the trial court should have accepted the decision in Van den Bemd, which had recently been handed down by the same Court. The appeal against the sentence was not pressed, and it was conceded that the sentence was within the proper range. The appeal against conviction centred on the interpretation of section 23 of the Criminal Code concerning the defence of accident. The appellant argued that the trial judge had incorrectly directed the jury on the foreseeability of death resulting from the assault.

The Court examined the nature of the "event" referred to in section 23, considering whether it encompassed the entire sequence of events leading to death or just the initial act. The Court noted the conflict between the decisions in Martyr and Mamote-Kulang, which had previously held that death was not an accidental event when it was a direct result of a willed act, and the more recent decision in Van den Bemd, which suggested that death itself could be the accidental event if it was an unlikely consequence of the act. The Court decided to follow Van den Bemd, acknowledging the arguable correctness of both viewpoints but finding it prudent to adhere to a recent and carefully considered decision of their own Court.

Additionally, the Court found that the trial judge's direction to the jury regarding the appellant's police statement was misaligned with established law in Queensland, potentially misleading the jury. Given that the conviction would be overturned and a new trial ordered, the Court deemed it unnecessary to further address this issue. The appeal against conviction was allowed, the conviction was set aside, and the Court ordered a new trial.

Orders