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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Van Den Bemd

Details

AGLC: R v Van Den Bemd [1992] QCA 371
Case: [1992] QCA 371
Decision Date: 30/10/1992

CaseChat Overview and Summary

The appellant, Paul Anthony Van Den Bemd, was convicted of the unlawful killing of Alan John Bankier, and he appealed against that conviction. The incident that led to Bankier's death occurred in a public bar in a hotel at Toowoomba, where the appellant punched Bankier. The medical evidence suggested that Bankier died from a traumatic subarachnoid haemorrhage associated with the impact that caused bruising within the neck muscles, though the exact cause of death was not definitively established. The appellant was convicted based on the jury's conclusion that a punch from the appellant struck Bankier on the side of the neck rather than the face. The central legal issue in this appeal was whether the trial judge correctly declined to instruct the jury on the effect of section 23 of the Criminal Code, which provides an exemption from criminal responsibility for events that occur by accident and were not reasonably foreseeable.

The court found that the trial judge's refusal to instruct the jury on section 23, as well as his reasoning for doing so, was in line with the decision in R. v. Martyr, which the trial judge regarded as binding. However, the correctness of the Martyr decision was challenged on appeal. The court examined the authorities and concluded that the High Court's decision in Kaporonowski v. The Queen provided the correct test for determining criminal responsibility under section 23. According to this decision, an event occurs by accident if it was not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. The court held that the trial judge should have allowed the jury to consider whether Bankier's death was such an unlikely consequence of the punches delivered by the appellant that it could not have been foreseen by an ordinary person. Given that this question was not put to the jury due to the Martyr decision, the court found it necessary to allow the appeal, set aside the conviction and verdict, and order a new trial.

This decision highlights the importance of correctly applying statutory provisions related to criminal responsibility and the necessity for trial judges to properly instruct juries on all relevant legal principles. The court's ruling also underscores the necessity for a clear understanding and application of the foreseeability test in determining criminal liability under section 23 of the Criminal Code.

Orders