R v Faumunia

[2005] QDC 93

[2005] QDC 093

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE RACKEMANN

THE QUEEN

v.

ARTHUR FAALII FAUMUINA

SOUTHPORT

..DATE 10/03/2005

EXTRACT OF PROCEEDINGS

RULING

HIS HONOUR:  In this matter a question has arisen as to

the proper direction to the jury with respect to section 23 of

the Code.

In this case the evidence is that the accused punched

Mr Anfield resulting in Mr Anfield falling backwards and

hitting his head and incurring a brain injury, which, it is

common ground, satisfies the definition of grievous bodily

harm.

It is common ground that the jury should be directed in

relation to section 23 and, in particular, as to the

foreseeability of the event which may have occurred by

accident.

The dispute is as to the definition of the event for the

purposes of that direction.

There are, of course, cases which distinguish between what is

the act and what is the event, but that is not central to the

dispute between the parties in this case.  Rather, the dispute

relates to whether the event, which must be relevantly

foreseeable, is the injury, which in this case constitutes the

grievous bodily harm, or whether what must be foreseeable is

simply that any type of grievous bodily harm might result from

the act.  In that regard I was referred to some decisions of

the Court of Appeal. 

In the case of R v Taiters 1997 1 QdR 333 it was said at page

335 that:

"It should now be taken that in the construction of section 23
the reference to 'act' is to 'some physical action apart from
its consequences' and the reference to 'event' in the context
of occurring by accident is a reference to 'the consequences
of the act."

If the Crown's contention were correct, that is, that the

relevant consequence is just some form of grievous bodily

harm, then the event in question, being the consequences of

the act, in this case punching, could be related to injuries

which have nothing to do with the facts of this case.  So

that, for example, it might be foreseeable that, as a result

of punching a person in these circumstances, a person would

suffer an injury such as a broken jaw or some other type of

injury which would fit within the definition of grievous

bodily harm.

The defence, on the other hand, contends that the event, being

the consequences of the act of punching, must be related to the

injury which constituted the grievous bodily harm in the

circumstances.

In Taiters case reference was made to Kaporonovski's case as

an example.  In relation to Kaporonovski's case it was said:

"The thrusting of the glass by the accused was the act and the
injury to the victim's eye which constituted grievous bodily
harm was the event."

That formulation appears to be consistent with the contention

of the defendant, although the Crown points to a latter

passage on the same page in which it is said:

"In cases when grievous bodily harm is charged the state of
bodily harm will be the relevant event..."

I am not sure, however, that it is correct to take the

reference to, "The state of bodily harm" in that reference to

be any state of bodily harm rather than a reference to the

harm which constituted the grievous bodily harm in a

particular case.

My attention was drawn to two more recent decisions of the

Court of Appeal.  The first is the Queen v Camm, the

reasons for which were delivered on 1 April 1999.  That case

involved a circumstance where the appellant either pushed or

threw the complainant when he was standing near a flight of

stairs 1 metre above a concrete footpath and a broken hip

resulted.  The judgment of McMurdo P refers to the event which

occurs by accident as being, "The broken left hip suffered by

the complainant."  And went on to say:

"It was accepted in the way the trial was conducted that if
the injuries occurred as outlined by the complainant...  then
the jury would inevitably have been satisfied that the broken
hip was foreseeable."

The joint reasons for judgment of Fryberg and Muir J J also

defined the event by reference to the particular injury which

constituted the grievous bodily harm in that case. in

particular, having referred to the appellant's argument that:

"What must be foreseeable is not grievous bodily harm
generally, but the injuries suffered by the complainant."

And having referred to R v Taiters it was said:

"Applying that construction of section 23 to the events in
question, the 'act' was the pushing of the complainant by the
appellant and the 'event' was the injury to the complainant's
hip which constituted the grievous bodily harm."

The joint judgment went on to discuss the relevant

circumstances and stated:

"In those circumstances, the possibility of the complainant
suffering a broken hip is something which an ordinary person
would reasonably have foreseen."

The way in which the event was described in the Queen v

Camm is consistent with the defence submissions in

this case.

I was, however, also referred to a subsequent decision of the

Court of Appeal delivered on 4 June 1999 in R v Watt.

Although being decided only a matter of months after R v

Camm, there was no reference to Camm's case in the reasons.

In Watt's case reasons were given by Derrington J with whom

McMurdo P agreed.  Separate reasons were published by

Chesterman J. In the reasons of Derrington J it was said as

follows:

"The 'event' to which section 23 refers is the resulting
happening of an injury that amounted to grievous bodily harm:
R versus Taiters, ex parte Attorney General [1997] 1 QDR 333.
(It may be slightly inaccurate to refer to the relevant
condition as death or grievous bodily harm as the event rather
than the event constituted by the happening.  Death or injury
in the sense of a resulting condition, as distinct from the
happening, is not an event:  Of the Distillers Company
(Australia) Pty Ltd v. Ajax Insurance Co Ltd (1974) 130 CLR 1
at 19 per Stephen J. However, this distinction will not
usually be and is not here significant)."

...

"All that is necessary for the defence is that that event, the
happening of the relevant injury, was an unforeseeable
consequence of the act for which the accused was responsible:
R versus Van den Bemd (1994) 179 CLR 137."

...

"In assessing this, that, whether the defence is raised in
this way will, of course, depend upon the quality of the
circumstances themselves."

...

"In assessing this, the correct issue is whether the relevant
consequential event is a reasonably foreseeable possibility.
It need not be reasonably foreseeable as a certainty nor even
as a probable consequences.  This means that it is not
necessary that the exact nature of the resulting harm or the
mechanical processes of its causation should be precisely
understood:

only that harm amounting to grievous bodily harm might
possibly follow: cf The Queen v West (unreported) Court of
Appeal (Queensland) CA 288 of 1996 - 26 November 1996.

The degree of force which the jury had to accept was used on
this young child before it could find that the appellant was
responsible for it at all was so serious that the possibility
of grievous bodily harm could not have been other than
reasonably foreseeable."

The prosecution focused upon the reference in those reasons to

the fact that "only that harm amounting to grievous bodily

harm might possibly follow" is required and the reference to

the fact that in that case "the possibility of the grievous

bodily harm could not have been other than reasonably

foreseeable".  It might be noted, however, that earlier in the

judgment there was a reference to the event being "the

happening of the relevant injury".  It would not appear,

however, that the identification of the event as being the

relevant injury which amounted to grievous bodily harm or

simply the causing of some grievous bodily harm was critical

in that case.  This was a point made in the judgment of

Chesterman J who said:

"In declining to direct the jury in terms of section 23, the
trial Judge said, in the course of submissions from counsel:
'If the jury were to be satisfied that the...force that
Dr Seto spoke of was the force required to cause this sort of
injury, then it seems to me that any direction under the
second limb of section 23 is superfluous.  If they were
satisfied that there was such a severe blow as that, then it
seems to me that there just is not any room for any notion
that an ordinary person would not have foreseen serious injury
such as occurred.'

This is a sufficient summary of the point.  The evidence which
the jury must have accepted if it was satisfied beyond
reasonable doubt that the appellant did grievous bodily harm
to the child also established, beyond reasonable doubt, that
the harm was reasonably foreseeable.

This being the position, it is not necessary to say anything
about the meaning or operation of section 23 which has been
the subject of authoritative exposition in R v Taiters ex
parte Attorney-General 1997 1 QdR 333. If it were relevant to
this appeal I would, conformably with what was said in Taiters
at 335, regard the event of which the section speaks as being,
in this case, the brain injury which, by the application of
the definition found in section 1 of the Criminal Code,
constitutes grievous bodily harm."

I am not persuaded that the state of the authorities is such

that I am bound to adopt the characterisation contended for by

the plaintiff.  It seems to me that the characterisation of

the relevant event in R v Camm and in the judgment of

Chesterman J in R v Watt is consistent with the exposition

in R v Taiters and is the correct way of putting the matter to

the jury.  Accordingly, in this case the act is the delivery

of the punch and the event is the incurring of a brain injury

which amounts to grievous bodily harm. 

That is not to say, however, that the exact nature of the

resulting harm or the mechanical processes of its causation

must be precisely understood. As Derrington J said in R v

Watt, that is not something which is required.  Accordingly,

as defence counsel concedes, it is not necessary that the

precise nature of the brain injury be specifically foreseen or

the precise method in which it occurred have been contemplated

or within contemplation. However, in my view, the event of

which section 23 speaks in this case is the brain injury which

by the application of the definition found in the Criminal

Code constitutes grievous bodily harm. 

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