R v Van Den Bemd

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.