R v Van Den Bemd

[1994] HCA 56

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

THE QUEEN v VAN DEN BEMD

(1994) 179 CLR 137

2 March 1994

Criminal Law (Q.)

Criminal Law (Q.)—Criminal responsibility—Person not responsible for event which occurs by accident—Manslaughter—Death not reasonably foreseeable—Whether accidental—The Criminal Code (Q),s. 23.

Orders

Application for special leave to appeal refused.

Decisions

MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ This is an application by the Crown for special leave to appeal from the judgment of the Court of Appeal of Queensland quashing the respondent's conviction on a charge of unlawful killing and ordering that there be a new trial on that charge. It is well established that special leave should be granted to the Crown in such a case only in very exceptional circumstances ((1) R. v. Lee (1950) 82 CLR 133; Reg. v. Benz (1989) 168 CLR 110.).

2. The outcome of the case depends upon the application and interpretation of the words "an event which occurs by accident" in the context of s.23 of the Criminal Code (Q.). That question is essentially one of statutory construction, the answer to which does
not depend upon an important point of principle. As Dixon CJ observed in Vallance v. The Queen ((2) (1961) 108 CLR 56 at 61; see also Kaporonovski v. The Queen (1973) 133 CLR 209 at 220 per Walsh J ("each case presents a different problem").), with reference to s.13 of the Criminal Code (Tas.) (a provision comparable to s.23):

"(I)t is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s.13 can be worked out judicially".

3. The words of the section are inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland. The interpretation given to the section by that Court is one which favours the individual and reflects accepted notions of culpability
and responsibility for criminal conduct. Moreover, it is an interpretation which derives support from comments made in some judgments of this Court, particularly Gibbs J (with whom Stephen J agreed) in Kaporonovski v. The Queen ((3) (1973) 133 CLR 209.).

4. In these circumstances, the case is not one in which it would be appropriate to grant special leave to enable the Crown to challenge an order of a State Court of Appeal quashing a conviction and ordering that there be a new trial. The consequence is that the interpretation placed by the Court of Appeal on s.23 remains unaffected in that State.

5. Special leave to appeal should be refused.

BRENNAN J An indictment charging the respondent with the manslaughter of Alan John Bankier in Toowoomba on 28 March 1992 was presented to the Supreme Court of Queensland sitting in Toowoomba. After a trial before Mackenzie J and a jury, the respondent was convicted. The death of the deceased was the result of a fight in a bar. Eyewitnesses claimed to have seen one or two blows by the respondent which struck the deceased on the face. However, the death of the deceased was caused by a subarachnoid haemorrhage which, according to a pathologist's evidence, was the result of a blow struck on the left side of the neck. The verdict shows that the jury must have accepted the pathologist's evidence and found that the accused had struck the deceased in that part of his body thereby causing his death. The deceased may have had some pre-disposition to a subarachnoid haemorrhage, either because of some natural infirmity or because he had consumed alcohol.

2. Prior to commencing the summing up, Mackenzie J was asked by counsel for the accused to direct the jury pursuant to s.23 of The Criminal Code (Q.) that the death of the deceased occurred by accident. The material part of s.23, which is one of the pivotal provisions of Ch V of the Code relating to criminal responsibility, 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 for an event which occurs by accident."

The trial judge's direction to the jury included the following:

"Nor is it a defence that a person may have been more susceptible than usual to a subarachnoid haemorrhage because he was intoxicated. In this case it is not suggested that the victim unexpectedly hit himself on something after he fell down after he was punched. ... you don't have to consider the defence of accident that might be open in some circumstances where people fall and hit themselves after a fight because of the way in which this case has been conducted. So far as the law is concerned, I direct you that if you punch someone and that person dies and there is nothing else to suggest that anything but the punch caused the injury from which the victim died, you are deemed to have killed him. The fact that it might have been only a moderate punch does not matter. If the person dies as a result of a direct application of force without any other factor intervening, the person who applied force is deemed to have killed him. There is a principle that is sometimes stated as the principle that you take your victim as you find him. What that simply means is that if you hit someone on the head who proves to have had an abnormally thin skull, for example, and the person dies because of an injury to the brain, it does not affect the question of liability, even though a person with a normal skull would not have died from a similar blow. Similarly, if you stab somebody who suffers from haemophilia and he bleeds to death when a person whose blood clots normally would not, that does not affect your criminal responsibility."

3. On appeal against conviction, the Court of Appeal allowed an appeal and ordered a retrial. Their Honours 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 an ordinary person could not reasonably have foreseen it. In the present context that means that the relevant question was whether the jury were satisfied beyond reasonable doubt that Bankier's death was such an unlikely consequence of the punches delivered by the accused that it could not have been foreseen by an ordinary person in the position of the accused."

The Crown seeks special leave to appeal to challenge that view. The Court of Appeal noted the recent decision of this Court in Wilson v. The Queen ((4) (1992) 174 CLR 313.) but observed that "that was an appeal from South Australia, where the common law prevails and there is no statutory equivalent of s.23". No doubt their Honours were right to regard the question before them as one turning on the construction of the Code ((5) including s.293 which provides:
" Except as hereinafter set forth, any person who
causes the death of another, directly or indirectly, by
any means whatever, is deemed to have killed that other
person." See per Taylor and Owen JJ in Mamote-Kulang v. The Queen (1964) 111 CLR 62 at 66, cited post.) but cases at common law may illuminate the construction of the Code where the meaning is doubtful ((6) See the cases mentioned in Boughey v. The Queen (1986) 161 CLR 10 at 30-31.). However, where the Code has been authoritatively expounded, the exposition is unaffected by judicial developments of the common
law. Structure of The Criminal Code

4. The Criminal Code is constructed on the footing that the external elements of each offence are prescribed by the respective offence- creating sections. Some of the offence-creating sections also prescribe specific mental elements of an offence (for example, an intention to effect a particular result such as the death of a person in the case of murder: s.302(1)). Liability in respect of an offence is imposed upon a principal offender by s.2 of the Code which provides:

" An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence."

The external elements of an offence frequently include elements other than acts or omissions. These other elements can be broadly classified into the circumstances in which an act is done or an omission is made ("attendant circumstances") and the consequences of an act or an omission ((7) See per Gibbs J in Kaporonovski v. The Queen (1973) 133 CLR 209 at 230-231.). Chapter V of the Code then prescribes conditions of criminal responsibility, including conditions which prescribe the requisite mental elements that apply respectively
to the doing of acts, the attendant circumstances and the consequences. Omissions are necessarily dealt with separately, for omissions are referable to particular duties to act (see, for example, s.289). Within Ch V, s.24 applies to attendant circumstances. The first limb of s.23 ("independently of the exercise of his will") applies to acts; the second limb ("event which occurs by accident") applies to the consequences of the relevant act ((8) Timbu Kolian v. The Queen (1968) 119 CLR 47 at 52-53.): to the results of the act or, perhaps, to other things that happen after the act is done. The division of an accused's conduct into acts and consequences is oftentimes important but difficult to draw, as the judgments of the several members of this Court in Timbu Kolian illustrate.

Death as an "event" for the purposes of s.23

5. The present case does not raise the problem of classifying the accused's conduct. The relevant act was the delivery of the blow to the left side of the deceased's neck. The relevant "event" was the death of the deceased. The blow caused the death, but the accused would not be criminally responsible for the death (and hence would not be liable to conviction for manslaughter) if the death occurred "by accident". The relevant question is whether the evidence, in particular the evidence of a pre-disposition of the deceased to suffering his fatal subarachnoid haemorrhage, raised an issue of accident which ought to have been submitted to the jury. In my opinion, that question was authoritatively decided against the accused by Mamote-Kulang v. The Queen ((9) (1964) 111 CLR 62.). That case confirmed the earlier decision of the Queensland Court of Criminal Appeal in Reg. v. Martyr ((10) (1962) Qd R 398.), a case hardly to be distinguished from the present. In Martyr Mansfield CJ said that "accident" in his view "does not include an existing physical condition or an inherent weakness or defect of a person, such as an egg-shell skull, or ... a possible inherent weakness in the brain" ((11) ibid. at 407.). Philp J said ((12) ibid. at 414-415.):

"Now the appellant was charged with killing a particular person - Scott - and the fact that Scott had a constitutional abnormality did not in my view make his death an 'accident' as that word is used in the section. If a haemophilic bleed to death from a small cut, his death cannot be said to be an accidental outcome of the cut. ... here the death was the immediate - the direct result
of the willed act. What I have said does not only apply 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."

Referring to s.296 of the Code ((13) " A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have
killed that other person.") his Honour thought that "the Legislature intended that no defence to homicide could arise from the fact that death was partly due to the victim's disease or disorder which word I think includes constitutional weakness". Townley J said ((14) (1962) Qd R at 416-417.):

" In my opinion the death was an 'event' within the meaning of s.23 and the question is whether that event occurred by accident or rather, whether the Crown on the evidence excluded the reasonable possibility of its having so occurred. My opinion on the matter has varied from time to time
but I have finally concluded that, if a person kills or
injures another by a 'willed' blow with his fist, although the death or particular injury is not reasonably foreseeable, the death or injury is not an event which occurs by accident."

6. In Mamote-Kulang, the accused struck his wife a blow with the back of his hand on the right side of the body in the upper part of the abdomen. She had an enlarged spleen that was unusually susceptible to rupture. It burst and she died. The appellant submitted that the deceased's death occurred by accident within the meaning of the second
limb of s.23. McTiernan J said ((15) (1964) 111 CLR at 64.):

"It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. What is missing is proof of an accidental cause of death. Certainly the blow was not an accidental occurrence; nor was the disease to her spleen such an occurrence. The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to Donate-Silu from which she died."

Taylor and Owen JJ said ((16) ibid. at 65-66.):

"In cases such as the present, where no question arises under the first limb of the section, the question must be whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not be held to be responsible. In other words the section contemplates the intervention in the series of circumstances culminating in death of some happening of an accidental nature, a happening so related to the killing as to displace the operation of the very general words of s.293 that 'any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person'. In the present case it can scarcely be said that there was a chain of circumstances; there was an intentional striking of a blow and that blow resulted directly in the death of the appellant's wife. That the blow was deliberate and intended is beyond
question and if, without the intervention of some event
occurring by accident, it resulted in the death of the appellant's wife the case was one of unlawful killing. But the argument is that the death was an 'event', within the meaning of s.23, and that because it was not shown that it was reasonably foreseeable as the result of the blow which was actually proved to have been struck the death was an 'event' which occurred by accident. In our view this proposition proceeds from a misunderstanding of the terms of the section. At common law no such argument would have been admitted for if 'the deceased was in a bad state of health ... that is perfectly immaterial, as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it': R. v. Martin ((17) (1832) 5 Car and P 128

(172

ER 907).). (See also R. v. Edmunds ((18) (1909) 25 TLR 658.) and the discussion in Russell on Crime ((19) 11th ed. (1958) at 471.) concerning the case of R. v. Johnson ((20) (1827) 1 Lewin 164 (168

ER 999).))." Their Honours cited, with apparent approval, Philp J's reference to s.296 but did not come to a final conclusion on it. But they agreed ((21) (1964) 111 CLR at 69-70.) with the conclusion in Martyr's Case and said ((22) ibid. at 70.):

"If ... 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 egg-shell 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."

Windeyer J said ((23) ibid. at 82.):

"The question is not whether the death, not being intended, would be called accidental in ordinary speech. It is whether the homicide, the act which attracts the criminal law, was an event which occurred by accident. 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."

He too agreed ((24) ibid. at 85.) that the decision in Martyr was correct. However Menzies J, who dissented, said that death can be an accidental event though it is caused by "an intentional blow which was not intended to harm and was apparently unlikely to harm - such, for instance, as a friendly slap on the back or a fair blow in a boxing contest" ((25) ibid. at 72.). He placed particular reliance on that element in Vallance v. The Queen ((26) (1961) 108 CLR 56 at 61, 65, 82.) which emphasized that an accidental event is "both unintended and unexpected by the doer and it is fortuitous or surprising in the sense that an ordinary person would not reasonably expect it to happen as a consequence of what was done".

7. This view of accident in relation to a death following uninterruptedly after and caused by trauma deliberately inflicted is inconsistent with the view of the majority in that case and was expressly rejected by Taylor and Owen JJ Speaking of the well-known exposition of "by chance" (or "accident") in Vallance, a case of a slug discharged from an airgun wounding the victim, their Honours said ((27) (1964) 111 CLR at 69-70.):

"What (Dixon CJ and Kitto J) were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an 'event occurring by chance' (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident. In the result we find ourselves in agreement with the conclusion reached by the Queensland Court of Criminal Appeal in Reg. v. Martyr, a case in which the facts are indistinguishable from those in the present case."

8. In Timbu Kolian (where a blow struck and killed the baby whose presence in the dark was unknown to the accused) there was a divergence between the judgments as to which limb of s.23 applied. Barwick CJ ((28) (1968) 119 CLR at 54.) and McTiernan J ((29) ibid. at 55, 56.) held that the striking of the baby on the head - the relevant "act", in their Honours' view - was not an exercise of the will of the accused. Kitto, Menzies and Owen JJ held that the death of the child, or the interception of the blow by the child's head, were events which occurred by accident ((30) ibid. at 56, 71. This was the analysis preferred by Gibbs J in Kaporonovski (1973) 133 CLR at 231.). By treating the "act" as complete before the baby's head was struck, their Honours treated the interception of the blow by the baby's head as an accidental "event". The accused was not criminally responsible either for that event or for the baby's ensuing death. Windeyer J was prepared to say that the striking of the child was not a willed act ((31) ibid. at 65.). As to the second limb of s.23 he said ((32) ibid. at 69.):

"In this case the question is not whether death after a blow intentionally delivered was an event which occurred by accident. It is whether the striking of the child whereby he was killed was an event which occurred by accident. In my opinion it was, because it was not intended and it occurred as the result of the accused being both ignorant of a circumstance (the presence of the child) in which he wielded the stick, and without any foresight of the consequence of his doing so. These facts remove it from the area of mens rea and bring it within the description of an accidental event."

If the facts in Timbu Kolian are analysed into an "act" complete before the striking of the baby's head and the "events" of striking and death, it is clear that the "accident" in that case did not consist of any interruption in the chain of causation between the trauma (the striking) and the death.

Kaporonovski, Mamote-Kulang and Martyr

9. In this case, the respondent placed some reliance on Kaporonovski v. The Queen ((33) (1973) 133 CLR 209.), a case of unlawfully doing grievous bodily harm. There Gibbs J, with the concurrence of Stephen J, separated "the act" (consisting of the pushing of the hand holding
a glass forcibly towards the victim's face) from "the event" (consisting of the grievous bodily harm suffered by the victim) and held ((34) ibid. at 231-232.) that it was impossible to contend that that event was accidental. The same view was taken by McTiernan A.CJ
and Menzies J ((35) ibid. at 215.). Walsh J denied that any sensible distinction could be universally drawn between act and event. His Honour held that there was no act of the accused which could have been found to have occurred independently of the exercise of his will ((36) ibid. at 220.) and there was nothing which attracted the operation of the second limb of s.23 ((37) ibid. at 222.). With respect, Kaporonovski has nothing to do with the problem in the present
case. In Kaporonovski there was no occasion to consider the physiological or pathological relationship between the trauma inflicted by the offender and the bodily harm suffered by the victim. Therefore
where a physiological reaction (such as a vagal reflex) or a pathological condition (such as a ruptured aneurism) is triggered by trauma and produces death, Kaporonovski affords no legal guidance. In such a case, the relevant points of reference are Mamote-Kulang or Martyr. To the extent that the judgment of Gibbs J in Kaporonovski throws any light on the problem in the present case, it affirms the approach taken in Martyr and Mamote-Kulang. Leaving aside the judgment of Menzies J in Mamote-Kulang ((38) (1964) 111 CLR at 72.), each of the passages cited by Gibbs J ((39) (1973) 133 CLR at 231-232.) to support the Vallance criterion of an event which occurs by accident shows that the cited Judge accepted (in the passage cited or in the passage immediately following) the correctness either of the decision in Martyr or of the decision in Mamote-Kulang ((40) Mamote-Kulang (1964) 111 CLR at 70, 85; Timbu Kolian (1968) 119 CLR at 69, 71; Reg. v. Tralka (1965) Qd R 225 at 233.).

10. The propositions advanced by the majority in Mamote-Kulang, by Windeyer J in Timbu Kolian and by the Court of Criminal Appeal in Martyr are inconsistent with the decision of the Court of Appeal in this case. It has never been thought hitherto that, under the Code, a death which is caused by the deliberate (or "willed") infliction of a fatal blow is "accidental" merely because the death was not foreseen or intended and was not reasonably foreseeable by the accused or by a lay bystander ((41) A similar, but not identical, problem in the common law of culpable homicide is discussed in Wilson v. The Queen (1992) 174 CLR 313.). A deceased whose death is facilitated or accelerated by some bodily infirmity not known to the accused or to such a bystander has not been thought to have died accidentally. It has been said both in the United Kingdom and in Canada that offenders "must take their victims as they find them" ((42) Reg. v. Blaue (1975) 3 All ER 446 at 450; (1975) 1 WLR 1411 at 1415; Smithers v. The Queen (1977) 75 DLR (3d) 321 at 331.). Nor has the chain of causation between the blow and the death been regarded as severed for the purposes of criminal responsibility ((43) cf. R. v. Johnson (1827) 1 Lewin 164 (168 ER 999) where the trial judge directed an acquittal because it was impossible to apportion the operations of "the several causes" contributing to the death. The decision was criticized by Russell on Crime, 12th ed. (1964), vol.1 at 416-417, n.49, and the criticism (in the 11th edition) was noted in Mamote-Kulang (1964) 111 CLR at 66. Perhaps it may be explained as a case where the trial judge thought that death by natural causes had not been excluded: see the reporter's footnote.).

11. That is the only practical approach to the operation of the criminal law. It would be absurd to invite a jury either to assume the knowledge of a physiologist or pathologist in determining whether the chain of causation between trauma to and the death of the victim was reasonably foreseeable, or to assume ignorance of specialist knowledge in determining the question. If, as a matter of fact, the trauma inflicted by an accused does cause the death of the victim and nothing has intervened between the trauma and the death, there is no factor that warrants the treating of the death as accidental.

12. The Court of Appeal, in my respectful opinion, misunderstood the cases to which they referred. Their conclusion that a victim's death might be an accidental event if it were the uninterrupted result of trauma deliberately inflicted is inconsistent with the judgment of this Court in Mamote-Kulang. Their Honours correctly perceived that the Vallance test of accident is generally relevant to events which follow upon an accused's willed act but, in my respectful opinion, they failed to see that the test is not satisfied merely because an accused, ignorant of the physiological or pathological relationship between the trauma and the death, does not foresee and a reasonable bystander, equally ignorant of that relationship, would not foresee the death. This misconception was contributed to by their Honours' reliance on a dissenting judgment in the Court of Criminal Appeal ((44) Hanger J in Reg. v. Dabelstein (1966) Qd R 411 at 427-428.)
which ran counter to what had been said in this Court in Mamote-Kulang. Their Honours did not distinguish between the applicability of the second limb of s.23 to events which occur between the doing of an act and the infliction of fatal trauma and the inapplicability of that provision to a death following without interruption after and caused by trauma deliberately inflicted ((45) This distinction seems to have been appreciated by the Court of Criminal Appeal of Western Australia
in Ward v. The Queen (1972) WAR 36 at 46-47.). That is the distinction which is critical in this case. The interpretation of s.23 is not in issue so much as its application to the results of trauma deliberately inflicted.

13. The application of s.23 to bodily conditions following uninterruptedly on trauma deliberately inflicted is of daily concern in the criminal courts. As the Court of Appeal could not overrule what this Court has held in Mamote-Kulang and as trial judges are bound by what this Court has said, the decision of the Court of Appeal leaves trial judges (including the judge presiding at the retrial of the respondent) in an impossible position when they are called on to give juries the requisite direction. Merely to recite the second limb of s.23 or to expound it in terms of Vallance is
to invite the jury to apply that limb to a death following uninterruptedly after and caused by trauma deliberately inflicted. That is inconsistent with Mamote-Kulang. In my respectful opinion, a refusal of special leave in this case throws the law into confusion. If Mamote-Kulang is to be overruled, this Court must do so expressly and expound a criterion for assessing the reasonable foreseeability of death following uninterruptedly after and caused by trauma deliberately inflicted. If special leave be refused, the authority of Mamote-Kulang stands unaffected but the misunderstanding of the authorities by the Court of Appeal is left undisturbed. If special leave be refused, the conflict between Mamote-Kulang and the judgment of the Court of Appeal will have to be addressed by the Court of Appeal. In my opinion, that conflict should be resolved in this Court.

14. As I would not overrule Mamote-Kulang, I would grant special leave to appeal, allow the appeal, set aside the judgment of the Court of Appeal and in lieu thereof order that the appeal to that Court be dismissed.

McHUGH J The facts, issues and statutory provisions are set out in the judgment of Brennan J Like his Honour, I am of the opinion that special leave to appeal should be granted and that the appeal should be allowed.

2. Despite its jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences ... of the Supreme Court of any State" ((46) Constitution, s.73.), this Court is extremely reluctant to grant special leave to the Crown to appeal against an order of the Court of Criminal Appeal of a State Supreme Court quashing a conviction. In exercising its jurisdiction to grant special leave to the Crown to appeal against such orders, the Court has been much influenced by the common law tradition concerning challenges to verdicts of acquittal. The common law set its face against any form of challenge to a verdict of acquittal by a jury. In R. v. Jones ((47) (1723) 8 Mod 201 at 208 (88 ER 146 at 149).), Pratt CJ said that "(i)t was never yet known that a verdict was set aside by which the defendant was acquitted". And at common law, as Lord Devlin has pointed out ((48) The Judge, (1979) at 118.), it "has not been known since". The common law's refusal to interfere with a jury's verdict of acquittal was founded upon the rule against double jeopardy although it "may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings" ((49) Davern v. Messel (1984) 155 CLR 21 at 55.).

3. An acquittal entered by a Court of Criminal Appeal "differs greatly in substance from an original verdict of a jury" ((50) R. v. Weaver (1931) 45 CLR 321 at 356; Reg. v. Benz (1989) 168 CLR 110 at 112, 131.). Yet the policy of the law is so firmly set against an appeal from an order of acquittal that the case needs to be truly exceptional before this Court will grant the Crown leave to appeal
against such an order ((51) Benz (1989) 168 CLR at 146.). In considering whether a case is truly exceptional, the institutional role of this Court as the body responsible for declaring the law of Australia and its States is a factor of great importance. It must be weighed against the law's traditional solicitude for a person who has had a conviction quashed and an order of acquittal or an order for a new trial substituted for the verdict of guilty. If the Court of Criminal Appeal has erred, refusal to grant leave may "only serve to perpetuate that error and allow it to become a source of further error" ((52) ibid. at 113.). Furthermore, an accused person who appeals against a conviction and induces a Court of Criminal Appeal to quash a conviction on erroneous grounds "has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact" ((53) United States v. Wilson (1975) 420 US 332 at 345; Davern (1984) 155 CLR at 60.). However, the alleged error must have serious consequences for the administration of justice before the Court will grant leave to appeal. And, of course, depending on all the circumstances of the case, the presence of an error having those consequences may not be sufficient.

4. Assuming an error of the requisite seriousness, the case for a grant of special leave to appeal is strengthened when the reversal of the order of the Court of Criminal Appeal will simply restore the verdict of a jury and not subject the accused to a further trial. It is strengthened further if the order of the Court of Criminal Appeal itself was for a new trial rather than the entry of an acquittal ((54) See, for example, R. v. Lee (1950) 82 CLR 133 where the Court granted special leave to appeal against an order for a new trial of a charge of murder, allowed the appeal, and restored a sentence of death. See also Attorney-General for South Australia v. Brown (1960) AC 432.). Review by a final appellate court is clearly less prejudicial to an accused who faces a new trial than to an accused who has been acquitted by an appellate court. Where an accused faces a new trial it is only the chance of acquittal at the trial which is jeopardised by the further review.

5. In my opinion, the Court of Appeal erred in the present case when it quashed the conviction of the accused and ordered a new trial. The trial judge's summing-up concerning s.23 of the Criminal Code (Q.) was in accordance with the ratio decidendi of this Court's decision in
Mamote-Kulang v. The Queen ((55) (1964) 111 CLR 62. and contained no error concerning the construction of that section. Mamote-Kulang held that death is not "an event which occurs by accident" within the meaning of s.23 if no more appears than that the death was the immediate and direct result of an intentional blow to a person who had a constitutional defect, unknown to the accused, which made the deceased more susceptible to death than an ordinary person in good health. In Mamote-Kulang the accused was convicted of the manslaughter of his wife who had died as the result of a punch to her abdomen. Death was caused by the rupturing of the spleen which was
unusually enlarged. McTiernan J said ((56) ibid. at 64; see also the judgment of Taylor and Owen JJ at 66.)

"It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. ... The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to (the victim) from which she died."

After referring to the judgments of Dixon CJ and Kitto J in Vallance v. The Queen ((57) (1961) 108 CLR 56.):Taylor and Owen JJ said ((58) Mamote-Kulang (1964) 111 CLR at 69-70.),

"What their Honours were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an 'event occurring by chance' (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident. In the result we find ourselves in agreement with the conclusion reached by the Queensland Court of Criminal Appeal in Reg. v. Martyr ((59) (1962) Qd R 398.): a case in which the facts are indistinguishable from those in the present case."

6. The subsequent decisions of this Court in Timbu Kolian v. The Queen ((60) (1968) 119 CLR 47.), and Kaporonovski v. The Queen ((61) (1973) 133 CLR 209.) do not affect the ratio decidendi of Mamote- Kulang. In Timbu Kolian, the accused aimed a blow at his wife with a stick. As a result, he killed his child who was being carried by his wife. The incident took place in the dark; the accused did not know and had no reason to suspect that his wife was carrying the child. The Court unanimously held that the conviction of the accused for manslaughter must be set aside. However, in that case death was not contributed to by a physiological weakness as it was in both Mamote-Kulang and the present case. Moreover, none of the judgments in Timbu Kolian expresses any doubt on the authority of Mamote-Kulang.

7. In Kaporonovski, the Court upheld a ruling of the trial judge that no defence was open under s.23 of the Criminal Code (Q.) in a case where the accused forced a glass against the victim's eye, causing him grievous bodily harm. Gibbs J, with whose judgment Stephen J agreed, said ((62) ibid. at 231.) :

"It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person".

However, nothing in his Honour's judgment suggests that he was intending it to apply to cases where the victim has a physiological pre-disposition or to overrule the ratio decidendi of Mamote-Kulang. Indeed his Honour made, inter alia, three references to the judgment in Mamote-Kulang as authority for his statement ((63) ibid. at 232.)

8. The first of these is to part of the passage from the judgment of Taylor and Owen JJ which I have already set out. The second is to
the judgment of Menzies J ((64) Mamote-Kulang (1964) 111 CLR at 72.). The third reference
is to a page in the judgment of Windeyer J ((65) ibid. at 85.)which contains the following:

"As I see the matter, the most that can be got from Vallance's Case ((66) (1961) 108 CLR 56.) that could be relevant in this case is that a killing cannot be an

event

which occurs by accident if the person charged intended to kill,

or

foresaw death as a likely result of his act, or if a reasonably prudent person in his position would have realized that death was a likely result of such an act. But that an occurrence is not accidental if any one or more of certain qualities can be predicated of it does not mean that it is accidental if none of them can be predicated." (my emphasis)

Windeyer J ((67) Mamote-Kulang (1964) 111 CLR at 85.) also expressed the conclusion that the decision of the Supreme Court of Queensland in Reg. v. Martyr
((68) (1962) Qd R 398.) was correct. Yet the Court of Appeal which adopted Kaporonovski,
overruled Martyr in the present case.

9. While the statement by Gibbs J in Kaporonovski as to the effect of the second limb of s.23 of the Criminal Code is an extremely helpful guide as to whether or not an event has occurred by accident, the decision in Mamote-Kulang shows it cannot be regarded as an
exhaustive definition of the term "accident". If a person intentionally punches another person and kills him or her, it would not be in accordance with ordinary speech to describe the death as an accident even if the death would not have occurred but for some weakness in the physical constitution of the deceased.

10. In my opinion, nothing in Timbu Kolian or Kaporonovski throws any doubt on the decision of this Court in Mamote-Kulang. The Court of Appeal was in error in holding that it was open to the jury to find in the present case that the deceased died "by accident".

11. The error of the Court of Appeal is sufficiently serious to warrant the grant of special leave to appeal. It involves an important question as to whether the concluding words of s.23 provide a defence in a case where the harm suffered by a person was the direct result of an intentional blow and the person had a constitutional
defect, unknown to the accused, which made that person more susceptible to harm than an ordinary person in good health. By itself, I think that question is sufficiently important to warrant the grant of special leave to the Crown. But the case for the grant of leave is strengthened by the fact that the decision of the Court of Appeal cannot be reconciled with the decision of this Court in Mamote-Kulang. To refuse leave would have serious consequences for the administration of justice not only in Queensland but also in other States where Codes have supplanted the common law.