R v West

[1996] QCA 472

IN THE COURT OF APPEAL	[1996] QCA 472
SUPREME COURT OF QUEENSLAND

C.A. No. 288 of 1996.

Brisbane

[R v. West]

T H E Q U E E N

v.

GLEN DAVID WEST

Appellant

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Pincus J.A.
Lee J.

Fryberg J.

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Judgment delivered 26 November 1996

Joint Reasons for Judgment of Pincus J.A. and Lee J., separate concurring Reasons for
Judgment of Fryberg J.

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: Criminal law -grievous bodily harm - whether accident under s. 23 of Criminal Code open on the evidence - whether a direction to the jury on accident required - Griffiths (1995) 69 A.L.J.R. 77.

Counsel:	Ms L Clare for the Crown. Mr P Feeney for the appellant.
Solicitors:	Queensland Director of Public Prosecutions for the Crown. Price & Roobottom for the appellant.
Hearing date:	20 September 1996.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND LEE J.

Judgment delivered 26 November 1996

The appellant, having been convicted of unlawfully doing grievous bodily harm, appeals against the conviction. Five grounds are mentioned in the notice of appeal, but none of these are pressed. The only point taken, pursuant to an application for leave to add the appropriate ground, is that the judge should have directed the jury on accident, under s. 23 of the Code. The complainant’s account supported (in its essentials) by other witnesses, was that the appellant pushed the complainant to the footpath outside a nightclub, then kicked towards her face:

" . . . he pushed me - he pulled me towards him and then pushed me and I fell onto the footpath backwards and the next thing I remember was seeing [the appellant’s] right foot being lifted in a manner that he was going to kick me in the face, so I put up my right arm to protect my face and that’s when the leg hit my arm - on my right arm."

The complainant said that the appellant kicked her very hard and that she experienced a lot of pain when kicked. The medical evidence was that she suffered fractures of the arm and it seems clear that these amounted to grievous bodily harm. The appellant’s version of events was that he merely pulled the complainant away when she was assaulting another person. At the trial counsel conceded that if the injury the complainant suffered occurred as she said then the appellant had no defence. The judge told the jury that if they accepted that the complainant was injured in the way she said, they should convict, otherwise they should acquit. His Honour gave appropriate directions about the onus and standard of proof. His Honour did not mention accident, in his directions.

Mr Feeney argued that the judge’s direction was wrong, because even if the complainant’s version were accepted, a defence under s. 23 of the Code arose for consideration; he relied on the decision of the High Court in Griffiths (1995) 69 A.L.J.R. 77. There, the Crown case was that the appellant had killed a friend of his by shooting him in the back of the head. The judge did not direct the jury on s. 23; this Court held (by a majority) that his Honour did not err, but the High Court held to the contrary, taking the view that accident was clearly raised on the evidence and should have been left to the jury. Griffith’s case is of limited assistance here; it does not lay down any test or principle whereby the Court can discriminate between those cases in which the facts raise accident and those in which they do not.

Mr Feeney’s point was that, on the Crown case, if accepted by the jury, a s. 23 issue arose because the jury had to consider the foreseeability of permanent injury. In Taiters (C.A. No. 310 of 1995, 16 July 1996) this Court held that if a defence based on the words "an event which occurs by accident" in s. 23 arises, the jury should be told that:

"The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome."

Counsel for the appellant argued that the jury should have been told that the Crown had to prove that the outcome - grievous bodily harm - was foreseeable; that is a shorthand way of saying that the Crown had to prove that an ordinary person in the accused’s position would reasonably have foreseen the event as a possible outcome.

As we have explained, on the Crown case the appellant aimed a very hard kick at the complainant’s head; plainly, the jury must have accepted this and accepted that the kick was hard enough to cause fractures. It would not have been an attractive argument for defence counsel to put to the jury, that the Crown had not proved that, accepting everything the complainant said, the kick which caused grievous bodily harm was hard enough for such a result to be foreseeable.

It is not the law that an accused is always bound by counsel’s conduct of his case. But this is not to say that judges are obliged to give directions to the jury which ignore all efforts by counsel to narrow the issues; Pemble (1971) 124 C.L.R. 107, the leading case on the judge’s duty to instruct the jury on all issues which arise, does not decide that this is the way criminal trials should be conducted. This is illustrated by the remarks of Street C.J. in McNeilly (1981) 4 A.Crim.R. 46 at 48:

"It is trite to say that a summing up is to be considered in the context of the issues that have been fought at the trial. This will not overcome the omission of a direction on a point essential for the jury’s determination; nor will it overcome a misdirection in law. In a case such as the present, however, where the only issue in contest at the trial was whether it was the appellant who sent the bomb, it is unreal to expect that the trial judge would embark upon a long dissertation of the law in relation to intention."

Such a point was also discussed in Collingburn (1985) 18 A.Crim.R. 294. There, McGarvie J. took the attitude of defence counsel as indicating that there was no risk of miscarriage of justice (298). Ormiston J. (as his Honour then was) having referred to Pemble, remarked (302, 303):

"In the present case the learned trial judge . . . directed the jury on the basis that the real issue as to self-defence was whether the applicant reasonably believed that she was under an immediate threat of death or serious bodily harm by shooting . . . No other issue was fairly raised on the evidence . . ."

Lastly, in Hamilton (1987) 31 A.Crim.R. 167, Street C.J. evaluated the adequacy of the summing-up on a particular topic (the effect of alcohol) -

" . . . in the context of senior counsel having deliberately chosen not to address the jury on this topic and in the context of no submissions being made by senior counsel to his Honour at the end of the summing up along [the relevant lines]." 172

Here, the question of foreseeability agitated before us was not in issue at the trial. We can find no evidence, and in particular no cross-examination, which appears to be directed to the point; it seems to have been treated as self-evident that if it was proved to the requisite standard that the fractures were caused in the way the complainant said, then they were foreseeable.

To adopt the language of Barwick C.J. in Pemble, by not directing on s. 23 the trial judge did not fail to "secure for the accused a fair trial according to law" (117) or fail to give "an adequate direction both as to the law and the possible use of the relevant facts upon any matter on which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part" (117, 118). In this passage the word "could" does not encompass mere fanciful possibilities, as is demonstrated by the two English decisions cited by Barwick C.J. both before and after the parts of his Honour’s reasons which we have quoted. In Mancini [1942] A.C. 1 at 12, Viscount Simon L.C., with whom the other members of the House of Lords agreed, remarked:

"If the evidence before the jury at the end of the case does not contain material on which a reasonable man could find a verdict of manslaughter instead of murder, it is no defect in the summing-up that manslaughter is not dealt with."

In the other case referred to by Barwick C.J., Kwaku Mensah [1946] A.C. 83 at 92-94,
Lord Goddard for the Privy Council said:

" . . . if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury . . . If on the whole of the evidence there is nothing which could entitle a jury to return the lesser verdict the judge is not bound to leave it to them to find murder or manslaughter." (91, 92)

In summary, if there was, on the evidence, an issue about foreseeability in some real as opposed to theoretical sense, the judge should have directed the jury on it, even if defence counsel invited him not to. But in the present case, if the jury accepted the complainant’s story, nothing sensible could have been said about foreseeability as an issue and the judge was not obliged to give directions relating to it.

We would dismiss the appeal.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 26th day of November, 1996

The jury must have accepted that the appellant deliberately aimed a kick at his victim as she lay on the ground; that the kick connected with her arm; and that as a result she suffered grievous bodily harm. In the circumstances of this case, a reasonable person in the position of the appellant would inevitably have foreseen that harm as a possible outcome1. Section 23 of the Code was not raised on the facts. Even if counsel for the appellant had sought a direction under s.23, the judge would have been right to have refused it.

I also agree with the observations of Pincus JA and Lee J (whose judgments I have had the benefit of reading in draft) in relation to the approach to be taken to the conduct of an accused person's case at trial. A defence competently conducted by a trained person acting solely in the interests of an accused is the best form of defence our system can provide. This court must bear that fact in mind. It is unnecessary in the present case to explore to what extent an accused person is bound by his or her lawyer's conduct of the case.

The appeal should be dismissed.

1R. v. Taiters, ex parte Attorney-General QLR, 16th November 1996.