R v Smiler

[2000] NTSC 56

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R v Smiler [2000] NTSC 56

Application under s26L of the Evidence Act

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R v Smiler [2000] NTSC 56

PARTIES:THE QUEEN

v

REGGIE SMILER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:9926406

#DATE 12:7:2000

DELIVERED:  12 July 2000

HEARING DATE:  14 June 2000

JUDGMENT OF:  MILDREN J

CATCHWORDS:

Application under s26L of the Evidence Act.

Order: reasons for ruling.

REPRESENTATION:

Counsel:

Appellant:M Carey

Respondent:  J Condon

Solicitors:

Appellant:Director of Public Prosecutions

Respondent:  Katherine Regional Aboriginal Legal Aid Service

Judgment category classification:    C

Judgment ID Number:  

Number of pages:  5

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Smiler [2000] NTSC 56

No. 9926406

BETWEEN:

THE QUEEN

Appellant

AND:

REGGIE SMILER

Respondent

REASONS FOR RULING

CORAM:    MILDREN J

(Delivered 12 July 2000)

MILDREN J:

1. This is an application under s26L of the Evidence Act.

2. The accused has been arraigned on a charge of having caused grievous harm to one Sharon Darby on 6 November 1999.  The question I have been asked to determine is whether the evidence which the Crown intends to lead at the trial is such that a jury, properly instructed as to the law, might find that the accused caused grievous harm to Ms Darby.  For the purposes of this ruling, both parties have relied upon the transcript of evidence led at the committal and it is not in contention that on 6 November 1999 the accused struck Ms Darby with a star picket causing a compound comminuted fracture of the inferolateral margin of the lateral malleolus with multiple small bone fragments within the adjacent soft tissue - in other words, a fracture which caused the relevant bone to shatter into a number of smaller pieces, and which caused the bone to become exposed through the skin to the air.

3. The evidence is that Ms Darby, who was the accused's wife, suffered the injury at a small Aboriginal community called Gilwi, in the Timber Creek area.  Following the injury, she sought no treatment for several days.  On 11 November she was brought into the Katherine Hospital where she presented with a swollen foot and a large pus-filled sore on the right lateral aspect of the right ankle.  She complained of being cold and sweaty and shivering. She had an elevated temperature and racing pulse.  She also had a number of infected sores of varying ages, which were full of pus, over both her calves and lower limbs, which were unrelated to the ankle injury.  She was given intravenous antibiotics and other treatment including bed rest.  X-rays were taken which showed the comminuted fracture.  The fracture did not transvest the lateral malleolus, implying that the ankle was stable and the joint was symmetrical.  On 16 November, she was taken to theatre.  A large abscess cavity on the right ankle, extending from the lateral malleolus to the middle of the calf was debrided, and the loose bone fragments were removed.  A large abscess on the left ankle was also debrided.  Blood cultures were taken: she did not have septicemia.  She was given a split skin graft on 30 November and eventually discharged on 6 December.

4. The evidence of Dr Williams, the Acting Medical Superintendent at Katherine Hospital, was to the following effect.  If she had presented for medical treatment immediately, she would have been given antibiotics, because, with compound fractures, there is always a risk of infection getting into the ankle joint and completely destroying it.  The injury to this ankle, if left untreated, would more than likely have become infected, causing the bone to become infected and leading to chronic osteomyelitis.  The end result would probably have been a painful stiffness in the joint, causing difficulty in walking.  The infections in her case were caused by staphylococcus and streptococcus organisms.  Without antibiotics, it was likely that she would have contracted septicemia which, if untreated, would have led to death.  The said organisms are normal flora in most humans, which cause infections when introduced into a wound.  A lot of patients who present to the Katherine Hospital do so with pustular lesions from infected scabies, or poor nutrition and lack of cleanliness.  An inference is able to be drawn that the infection in the ankle was a natural and probable consequence of having suffered the injury caused by the star picket.

5. The term "grievous harm" is defined by the Criminal Code, s1, to mean

   any physical...injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health.

   In R v Lobston (1983) 2 Qd.R 720 at 721, the Queensland Court of Criminal Appeal held that the situation must be looked at at the time the harm was done, by looking at the nature of the injury itself, and not the surrounding circumstances and the availability of medical attention. This decision has been followed by Malcolm CJ in Vinh Hoang Pham v The Queen (unreported, Court of Criminal Appeal Western Australia, 21 December 1990).

6. The submission of Mr Carey for the Crown was that the facts were sufficient to establish that the injury was likely to cause permanent injury to health if left untreated.  The argument of Ms Condon for the accused, was that the cause of the infection was delay in treatment which was an intervening causal act.  This argument is misconceived.  As R v Lobston, supra¸ shows, the availability of medical attention is irrelevant.  The evidence shows that had the injury not been treated, the injury was very likely to become infected leading to serious permanent disability to the victim's foot and, therefore, to her health: see Tranby v R (1991) 52 A Crim R 228 at 233 per Macrossan CJ; at 236-7 per de Jersey J. In fact, the evidence went further because it showed that, left untreated, the infection was likely to result in septicemia, and death, although the Crown does not rely upon this limb of the definition. Ms Condon's argument that the infection was a novus actus interveniens must be rejected also on another ground.  Because the fracture was compound and exposed the bone to the air, and because the organisms likely to cause infection are commonly found on all humans, it cannot be even faintly argued that the organisms which caused the infection were an intervening cause. Even if the organisms entered the wound from pre-existing sores caused by scabies or malnutrition, this would not assist the accused as the accused must take his victim as he finds him: see Smith and Hogan, Criminal Law, 4^th Ed, p276; R v Blaue (1975) 3 All ER 446 at 450.

7. In conclusion, there is more than sufficient evidence available to the Crown to support the contention that the injury caused grievous harm to Ms Darby and I so rule.

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