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

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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

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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 required a blow behind the

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ear to cause the haemorrhage which ensued and, if accepted,
that excluded the possibility that the death was due to
punching. In the doctor's opinion, an "ordinary, healthy
person" unaffected by alcohol would be unlikely to suffer the
injury which McNally suffered.

In short, although the jury's verdict demonstrated their satisfaction that the appellant’s attack upon McNally caused his death, there was evidence giving a foundation for an argument that death was a very unlikely consequence of such an attack, had McNally been sober.

The defence of accident was raised at the trial and pursued
before the Court. The relevant part of section 23 of the

Criminal Code reads as follows:

"Subject to the express provisions of this Code
relating to negligent acts and omissions, a person
is not criminally responsible for an act or omission
which occurs independently of the exercise of his
will, or from an event which occurs by accident."

It is accepted that the prosecution must negate accident in cases in which it arises and the argument here was that the death was an "event" which had occurred by accident within the meaning of s 23.

Mr Herbert QC, for the appellant, contended that the Judge wrongly directed the jury on the point. The Judge told the jury that the question of foreseeability "doesn't run to any

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question as to whether death would occur", but was related to
the problem whether "a punch to a man in the condition of the
deceased person at that time, could foreseeably cause him to

fall backward and strike his head on the table".

It was, it appears, put to the jury in that way because, as
has been mentioned, the Crown was unable to prove that the
injury behind the ear had been caused by a kick rather than
the corner of the table. Mr Herbert said that the Judge, in
directing the jury not to consider the foreseeability of the
death, gave them a direction inconsistent with the decision of
the High Court in Kaporonovski (1973) 133 CLR 209 and with Van

Den Bemd above.

The essential question is the nature of the "event" mentioned
in s 23. If a person assaults another by hard blows and death
of that other is a direct or indirect consequence of the
assault, is the "event" the whole sequence of occurrences or
something less? Mr Herbert contended, on the authority of Van
Den Bemd, that the answer is now clear; the event is the
death. Mr Miller QC, who appeared as senior counsel for the
respondent, conceded that if Van Den Bemd is correct, then the
appeal must be allowed.

Van Den Bemd was a case of a very similar character. The victim was assaulted and died as a result of a subarachnoid

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haemorrhage. The Judge declined to put accident to the jury,
on the ground that s 23 could not apply "where the blow struck
by the appellant was a willed act and the death a direct
result of it". After reviewing the authorities, and in

particular the decision in Kaporonovski, the Court said:

"The test of criminal responsibility under s 23 is
not whether the death is an 'immediate and direct'
consequence of a willed act of the accused, but
whether death was such an unlikely consequence of
that act that an ordinary person could not
reasonably have foreseen it."

In so deciding, the Court expressed the opinion that the decision of the Court of Criminal Appeal in Martyr [1962] QdR 398 is no longer good authority. That was also a brain haemorrhage case, where the medical opinion was that the death was probably caused by the haemorrhage, but that the haemorrhage was an unlikely consequence of such an assault as occurred. It was suggested in the evidence that there may have been an inherent weakness in the victim's brain. The Court held, as to an argument based on s 23, that the section did not apply because the death was "the direct result of a willed act" (415-417). After expressing his view of the case, Philp J remarked:

"What I have said does not apply only to homicide.
If a man not knowing whether a vase is fragile or
not, deliberately taps it and it thereupon shatters,
the shattering, in my view, is not an event which

occurs by accident." (415).

It seems plain, as was accepted in the judgment in Van Den

Bemd, that the decision in Martyr was approved by a majority

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of the Judges of the High Court in Mamote-Kulang (1964) 111
CLR 62. It is desirable to quote some of what was there said.
The case was one in which the deceased died of a ruptured
spleen as a result of a blow by the appellant's fist. There
was evidence suggesting that a fatal result would not have
ensued had the spleen been in good order; in fact it was

diseased.

McTiernan J said:

"The blow was the sole cause of her death. It wasn't
intended to cause death, but this does not give the
blow or the death the quality of an accidental

occurrence." (64).

Taylor and Owen JJ said:

"If, as here, the death is the immediate and direct
result of an intentional blow, the fact that the
person struck has some constitutional defect, be it
an enlarged spleen or an eggshell skull, unknown to
the person striking the blow and which makes the
recipient of the blow more susceptible to death than
would be a person in normal health, does not enable
the accused to assert that he is being sought to be
made criminally liable for an 'event' occurring by
accident." (70).

Lastly, Windeyer J, in holding s 23 not to be applicable, said:

"The blow was not an accident. The fact that the
deceased woman had an enlarged spleen was not an
accident. No accidental occurrence intervened
between the blow and its outcome or event, the
death." (82).

Mr Miller contended that, the point having been clearly decided in Martyr and that case affirmed in Mamote-Kulang,

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this Court must follow those decisions, rather than the
conflicting decision in Van Den Bemd. In that case, the Court
expressed the view that the authorities on the relevant part
of s 23 are in a state of disarray. It determined, in effect,
that Kaporonovski had elucidated the true rule. That was, as
Mr Miller emphasised, not a manslaughter case, but one of
having unlawfully done grievous bodily harm contrary to s 320
of the Code; Mr Miller suggested that the case should be
distinguished on that ground. It does not appear to us
necessary to deal with Kaporonovski at length. There is to be
found in it authority that the "event" for the purpose of s 23
was the grievous bodily harm (215, 231, 232). Mr Miller
contended, however, that the Judges who decided Kaporonovski
could not have had in mind overruling what was clearly laid
down in Mamote-Kulang, and he said, in effect, that the case

should be distinguished.

Mr Miller also informed us that an application for special
leave to appeal has been filed, seeking to attack the Court's
decision in Van Den Bemd. He told us that the application is
expected to be heard next month. We have, in the
circumstances, given some consideration to the question
whether we should simply reserve our decision, until the
result of the application for special leave in Van Den Bemd is

known.

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We have come to the conclusion that we should decide the case
rather than defer a decision until a result is obtained in the
High Court.

One consideration in favour of that course is that, as Mr Miller pointed out, the same question may arise in other cases before Van Den Bemd is finally disposed of, even if that occurs fairly soon. Another is that one would not be astonished if special leave were granted in Van Den Bemd and then the ultimate decision of the appeal itself might be some considerable time ahead.

Mr Miller argued that we should not follow Van Den Bemd, on the ground that that decision is plainly wrong. We are all of the view that that is not so. It is, in our opinion, arguably correct that, as Mr Miller contends, the approval in Mamote-Kulang did or should have put an end to all controversy on the point. On the other hand, we think it arguably correct that what was said on the subject in Kapouonovski by a number of the Judges is inconsistent with the result arrived at in Martyr. Plainly this Court should be very slow to depart from views adopted in a recent and carefully considered decision of the same Court in Van Den Bemd. We do not propose to take that course.

A further point arises. The Crown, during the trial, tendered

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a statement made by the appellant in the course of police
investigation and that statement contained portions which were
self-serving and arguably helpful to the appellant on an issue
of self-defence. In his directions to the jury, the trial

Judge said:

"You are to take into account the evidence of the
police officer as to the response of the accused man
when he was asked about these things. That evidence
of what the accused man said is not evidence that
what he said is true. It is evidence that that was
his response when this matter was raised to him by
the police. And in so far as it raises defences,
then the Crown is under an obligation to prove that
those defences do not apply here; and the onus is on
the Crown to prove it beyond a reasonable doubt. But
that does not mean that what the accused has said to
the police is evidence of these facts. It is only
evidence that he said that to the police at the
time. So, in that regard you pay particular regard
to considering what he said to the police as a
response on his part, and then you look at that in
the light of the evidence of the witnesses who have
come and given evidence in that regard."

He later gave further directions which were suggested to qualify the first directions somewhat.

However, the first direction was so clear that there were distinct dangers that the jury would apply it, and that direction does not represent the law in Queensland: see R v. Cox [1986] 2 QdR 55; Beck [1990] 1 QdR 30 at 33.

Since we are ordering a new trial in any event, it is unnecessary to say anything further about this second ground.

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The appeal must be allowed and the conviction set aside. There will be an order for a new trial.

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