R v Van Den Bemd

[1992] QCA 371

IN THE COURT OF APPEAL	[1992] QCA 371
SUPREME COURT OF QUEENSLAND

C.A. No. 236 of 1992

T H E Q U E E N

v.

PAUL ANTHONY VAN DEN BEMD

(Appellant)

Mr Justice Davies

Mr Justice McPherson Mr Justice de Jersey

Judgment of the Court delivered the Thirtieth day of October 1992

APPEAL ALLOWED.
VERDICT AND CONVICTION SET ASIDE.

ORDER THAT THERE BE A NEW TRIAL

CATCHWORDS : CRIMINAL LAW - Responsibility under s. 23 The

Criminal Code - Manslaughter.

MINUTE OF ORDER

Appeal allowed. Verdict and conviction set aside. Order that there be a new trial.

CATCHWORDS
CRIMINAL LAW - DEFENCES ACCIDENT - Appellant convicted of
unlawful killing after Judge declined to instruct jury on effect
of s.23 - Whether death was such an unlikely consequence of punch
by appellant that an ordinary person could not have reasonably

foreseen it - Tests discussed and Martyr overruled.

Counsel: S.E. Herbert, with him F. Martin, for the appellant

M.J. Byrne for the Crown

Solicitors: Reidy & Tonkin, t/a for Mallett & Woods,

Toowoomba, for the appellant

Director of Prosecutions for the Crown

Hearing date: 19 October, 1992

JUDGMENT OF THE COURT
Delivered the Thirtieth day of October 1992

The appellant was convicted at the Toowoomba sittings of the Supreme Court of unlawfully killing Alan John Bankier on 28 March 1992. This is his appeal against that conviction.

The incident that led to the death of Bankier took place in a public bar in a hotel at Toowoomba. There was a brief altercation between the appellant and the deceased followed by some punches. The evidence of witnesses who saw some or all of what followed was that the deceased received at most two blows from the appellant that appeared to strike him about the face.

What the witnesses said is supported by marks of injuries later discovered on the face of the deceased. However, post-mortem examination also revealed subcutaneous bruising of about 3 cms in extent situated within the neck muscles at a point below and slightly behind the left ear. Medical opinion at the trial was that death had resulted from traumatic subarachnoid haemorrhage associated with the impact that caused the bruising within the neck muscles. A possible explanation of the presence of the bruising is that it was sustained by the deceased striking some projecting object as he fell forward after being punched. Reliance upon any such possible explanation was, however, specifically disavowed by defence counsel at the trial. Of that the jury were reminded in the course of the summing up. It is not, therefore, a matter that is now available to support the appeal. The verdict of guilty can be accounted for on the basis that the jury decided that, in spite of what the eye witnesses claimed to have seen, a blow from the appellant struck the deceased on the side of the neck rather than the face.

It was admittedly open to the jury to reach such a conclusion on the evidence before them. The contrary was not argued. It does, however, raise another question on appeal. At the trial defence counsel asked that in summing up the jury be instructed on the effect of s.23 of the Criminal Code. The judge declined to give that instruction, holding that s.23 had no application where the blow struck by the appellant was a willed act and the death a direct result of it. In consequence, the jury were not asked to consider whether or not the Crown had proved that the death of the deceased was a foreseeable consequence of the blow, or was an "event" which had occurred "by accident" for which the appellant was not criminally responsible under s.23.

The refusal of the trial judge to direct the jury as requested, and his reason for declining to do so, accords with the decision in R. v. Martyr [1962] Qd.R. 398. The facts of that case were similar to those here in that Martyr was held to have been rightly convicted of unlawfully killing a man who died after being punched on the jaw and the forehead. Medical evidence at the trial was that death had resulted from brain haemorrhage that could have been caused by one of those blows, although it would have been "extremely unlikely" to cause such a haemorrhage except in a person having the "peculiar weakness" of this victim. R. v. Martyr being a decision of the Court of Criminal Appeal, the trial judge in the present case rightly regarded it as binding him. The correctness of the decision was, however, challenged on this appeal and it now falls to be considered in the light of later authority.

Before turning to that matter, something must be said about the offence with which the appellant was charged. Manslaughter is defined in s.303 of the Code as unlawful killing under circumstances not constituting murder. By s.291 killing is unlawful unless it is by law authorised, justified or excused. We are concerned here with the third of those exceptions. The word "excuse" appears only in the marginal note to s.31 of the Code. Plainly, however, it includes the exculpatory provisions of s.23, which "may operate to provide an excuse for an act which would otherwise be criminal": R. v. Mullen (1938) 59 C.L.R. 124, 128; see also Evgeniou v. R. (1964) 38 A.L.J.R. 508, 509. The first paragraph of s.23 exempts a person from criminal responsibility "for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident". For completeness it should perhaps be added, first, that manslaughter is not, in terms of the second paragraph of s.23, an offence of which the intention to cause a particular result is an element; and secondly, that the case is not one to which s.289 has any relevance, so that problems of the kind encountered in R. v. Hodgetts and Jackson [1990] 1 Qd.R. 456 do not arise here.

With these matters in mind, we revert to R. v. Martyr. Not long after it the decision appeared to receive the approval, direct or indirect, of the High Court (Menzies J. dissenting) in Mamote-Kulang v. The Queen (1964) 111 C.L.R. 62. It was followed by the Court of Criminal Appeal in R. v. Hansen [1964] Qd.R. 404, although in some respects it was departed from in a further decision of that Court in R. v. Tralka [1965] Qd.R. 225.

See also R. v. Knutsen [1963] Qd.R. 157, 165. In Mamote-Kulang a conviction for manslaughter was upheld against an accused who had struck his wife in the abdomen; she died because the blow ruptured her spleen, which as a result of disease was unusually enlarged. On the other hand, in Timbu Kolian v. The Queen (1968) 119 C.L.R. 47, a conviction for manslaughter was quashed on appeal where the accused had struck out with a stick at his wife in the dark; unknown to him she was holding their baby, who received the blow on the head and died. In Ward v. R. [1972] W.A.R. 36, where the deceased fell and fractured his head on concrete after being punched by the accused, R. v. Martyr was also mentioned with approval. Nevertheless, the Court of Criminal Appeal of Western Australia in that case accepted that criminal responsibility for the death would be excused under s.23 "if it was not intended by the accused, was not foreseen by him nor reasonably to be foreseen as the consequence of a man's conduct" : see Ward v. R. [1972] W.A.R. 36, 47.

It is not easy to reconcile all of the reasoning in those cases. Mamote-Kulang and R. v. Hansen, like R. v. Martyr, adopted an interpretation of s.23 that views its function as being primarily causal, meaning that under it a person remains criminally responsible for a consequence of his willed act if that consequence is "immediate and direct", notwithstanding that, by reason of circumstances that were unknown and even unknowable, it was not reasonably foreseeable by a person of ordinary intelligence. That might be thought to invert or reverse the second rule in s.23 by treating it as imposing rather than excluding criminal responsibility. Where the consequence is "immediate and direct", the only scope that Philp J. in R. v. Martyr [1962] Qd.R. 398, 415, would allow to the second rule of s.23 is if the "event" is the product of an intervening or supervening circumstances or agency: cf. also R. v. Hansen [1964] Qd.R. 404, 413. The validity of that interpretation was questioned by Hanger J. in R. v. Dabelstein [1966] Qd.R. 411, 427-428; but it achieved a measure of approval in Timbu Kolian v. The Queen (1968) 119 C.L.R. 47, 71, and Ward v. R. [1972] W.A.R. 36, 43. However, to regard the baby's head in Timbu Kolian as an "event" that "intervened" (see 119 C.L.R. 47, 71) is, with respect, either a most unorthodox use of language or an unusual perception of physical phenomena.

This brief survey shows that the authorities on the second rule of s.23 are in some disarray. It might nevertheless be necessary for this Court to try to pick a path through them if it were not for the subsequent decision of the High Court in Kaporonowski v. The Queen [1973] 133 C.L.R. 209, in which the operation of s.23 was elucidated by Gibbs J. (as he then was). According to his Honour, the first paragraph of s.23 states two rules which he said are "quite distinct". Under the first rule, a person is not criminally responsible for an act unless it be "his own act, and an act which results from the exercise of his will" (133 C.L.R. 209, 226-227). Examples taken by his Honour from decided cases of the exculpatory operation of the first rule include the act of a servant; and an act done in a state of sleep or automatism (cf. also R. v. Falconer (1990) 171 C.L.R. 30). In relation to the first rule Gibbs J. said the word "act" refers to "some physical action apart from its consequences", such as the firing of a rifle rather than the wounding that follows; or the wielding of a stick rather than the killing of the child whom it strikes (133 C.L.R. 209, 231).

By contrast, in relieving a person from criminal responsibility for an "event" which occurs "by accident", the second rule of s.23 "exculpates an accused from liability for the accidental outcome of his willed acts (ibid, at 227). His Honour said the word "event" in this rule meant "the consequences of an act" (at 231); or as Philp J. expressed it in R. v. Callaghan [1942] St.R.Qd. 40, 51, "a result or consequence of action". That accords with both the derivation of the word "event" (from the Latin eventus, evenire = "to come out" or "outcome") and its dictionary meaning: see Shorter OED. The conception is one that may be compared with "a physical result of human conduct", which is a phrase used in Kenny's Outlines of Criminal Law, 16th ed. 1952, para. 12.

Where a particular "act" ends and an "event" ensues sometimes produces differences of opinion as in Timbu Kolian. The differences there are analysed in Kaporonowski (133 C.L.R. 209, 229-230). Which "happening" is to be identified as the "event" is a question that has become simpler to answer in the light of the judgments in the latter case. The facts were that the accused forced a glass into the face of the complainant Bajric causing the glass to break and cut Bajric's eye. He was charged with occasioning grievous bodily harm contrary to s.320 of the Code. Having set out s.23, McTiernan A.C.J. and Menzies J. went on (133 C.L.R. 209, 215):

"Here the event for the purpose of the section is the grievous bodily harm suffered by Bajric. The act, for the purposes of the section, is the forcing of the glass against and into Bajric's face.

That event did not happen by accident. It was the obvious, natural and probable consequence of the act. That act did not occur independently of the exercise of the will of the applicant. What he did was done deliberately."

Likewise, Gibbs J. held that neither the first nor the second rule of s.23 had any application to the case. The first rule did not, because the pushing of the glass was an action willed by the accused (133 C.L.R. 209, 231). The second rule did not because (at 231-232):

"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".

It was, his Honour added, "impossible to say that the grievous bodily harm suffered by Bajric was so unlikely a consequence of pushing a glass forcibly towards his face that no ordinary person could reasonably have foreseen it". Stephen J. agreed with the reasons of Gibbs J. in Kaporonowski (at 241).

The result is that four of the five members of the High Court in Kaporonowski held that for the purposes of s.23 the "act" was pushing the glass to or into Bajric's face, and the "event" was the grievous bodily harm that ensued as a consequence. Section 23 did not operate to exculpate the accused in that case because the act was willed and the event was a reasonably foreseeable consequence of that act. As appears from what was said by Gibbs J. in the passage last quoted above, criminal responsibility under the second rule depended on whether the grievous bodily harm sustained was so "unlikely" a consequence of the act that no ordinary person would have foreseen it. The test thus appears to be one of foreseeability of the happening of the consequence as a matter of probability or "likelihood". See also on this R. v. Knutsen [1963] Qd.R. 157, 166, 176, 186; R. v. Tralka [1965] Qd.R. 225, 232.

It remains to apply these principles to a manslaughter case like the present. In the face of the reasoning of the High Court in Kaporonowski, it is plain that the decision in R. v. Martyr is no longer good authority. 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 not 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. Because R. v. Martyr was considered to be the ruling authority, that question was not put to the jury, as we have now decided it ought to have been.

It may be added that on this appeal it was sought to place some reliance on the recent decision of the High Court in Wilson v. The Queen (1992) 66 A.L.J.R. 517 as setting the test for determining whether the offence of manslaughter has been commmitted; but that was an appeal from South Australia, where the common law prevails and there is no statutory equivalent of s.23 bearing on criminal responsibility.

The result here is that the appeal must be allowed. The conviction and verdict must be set aside, and there must be a new trial.