Reg v Van Den Bemd

[1993] HCATrans 348

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B53 of 1992

B e t w e e n -

THE QUEEN

Applicant

and

PAUL ANTHONY VAN DEN BEMD

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

Van Den Bernd 1 12/11/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 NOVEMBER 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR R.N. MILLER, QC:  May it please Your Honours, I appear

for the applicant, together with my learned friend, MR J.R. HUNTER. (instructed by D. Field, Solicitor

to Director of Public Prosecutions (Queensland))

MR S.E. HERBERT, QC:  May it please the Court, I appear with

MR A.J. GLYNN for the respondent. (instructed by

J.A. Hodgins, Director, Legal Aid Office

(Queensland))

MASON CJ: Yes.

MR MILLER: This is an application for special leave to

appeal against a decision of the Court of Appeal of

Queensland rendered on 30 October last year.	The
court overturned a jury's conviction for
manslaughter and ordered a retrial.

If I could go to the record, the reasons for

judgment commence at page 327.

MASON CJ:	You might just give us the opportunity of reading your outline of submission, Mr Miller. It will not
take as long.

MR MILLER:  Yes, indeed. Have all the members of the Court

got a copy?

MASON CJ:	I think so, yes.
MR MILLER:	Might I mention, Your Honours, on the second page, the reference to the footnote in Wilson -
that footnote appears on page 334, not page 354.

MASON CJ: Yes.

MR MILLER:  If Your Honours please, if I could turn to the

judgment of the court, which was a unanimous

judgment, at page 327. It appears that:

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 -

of the deceased. There was some evidence at the

trial that the bruising might have been occasioned:

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.

Van Den Bernd 12/11/93

The Court of Appeal said:

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.

It is at that stage the court then considered the

application of section 23 of the Queensland

Criminal Code with which Your Honours are, no

doubt, fairly familiar.

Reference was made at the bottom of page 328

to the Queensland case of Martyr, (1962) Qd R 398,

a case in which the facts were not dissimilar from

the facts in Van Den Bemd itself. In Martyr a man

had been struck on the chin, as I remember it, and

he slumped to the ground. At page 329 from the

top, it appears:

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.

The court said:

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.

The members of the court, in this judgment,

then went through a number of cases which had been

previously decided, including Martyr, including

Mamote-Kuland, Knutsen, Hansen, Tralka - they are

Queensland cases - Ward, in West Australia;

Timbu Kolian in the High Court itself, and on 331

there was mention made of Dabelstein and then at

the bottom of 331 we see this:

This brief survey shows that the

authorities on the second rule of s.23 are in

Van Den Bernd 12/11/93

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 High Court in Kaporonowski v.

The Queen (1973) 133 C.L.R. 209, in which the

operation of s.23 was elucidated by Gibb 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". 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. In

relation to the first rule Gibbs J. said the

word "act" refers to "some physical action -

In the next paragraph:

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.

His Honour said the word "event" in this rule

meant "the consequences of an act"; or as

Philp J. expressed it in R. v. Callaghan, "a

result or consequence of action".

The Court went on:

That accords with both the derivation of the

word "event" ..... and its dictionary meaning -

Then on the next page there is reference to the

meaning of "act" and "event" in Timbu Kolian and

the discussion of the meaning to be given to those

words in Kaporonovski. If we turn to the bottom of page 333,

reference is then made to what Mr Justice Gibbs, as

he then was, said in Kaporonovski:

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.

And he continues on the next page:

It was, his Honour added, "impossible to say

that the grievous bodily harm suffered by

Van Den Bernd 4 12/11/93

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 Jin Kaporonowski.

And then it is said:

The result is that four of the five members of

the High Court in Kaporonowski held that for
the purposes of section 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 -

BRENNAN J: That was not quite accurate, was it? The "act"

in Kaporonovski was pushing the glass to the eye;

in other words, it is the contact of the thing held

with the body. Once you get to that point,

everything falls into place.

MR MILLER:  The point that I am going to make in this

application is that the factual circumstances in

Kaporonovski, like the factual set of circumstances

in Vallance, are quite distinct from the factual
circumstances that cause section 23 to be examined

in both Mamote, the enlarged spleen case, and in

Martyr, the egg shell skull case.

BRENNAN J: Well, of course the facts are different in every

case, Mr Miller, but the relevant problem is this,

is it not, that if you have got elements in an

offence, some of which acts and some of which are

results, section 23 and its two limbs covers the

field.	So, your problem is to determine where does
act finish and event start, and if you identify

"act" as finishing at the point of contact with the

body, then all of these cases fall into place.

MR MILLER:  I must agree with Your Honour, but the

interpretation given to section 23 in Mamote and in

Martyr has been that where there has been a

weakness in the deceased, then that case does not fall within the second limb of section 23 because

there has not been any supervening event.

BRENNAN J:	I understand that, but if you stop short of the point of contact with the body as the "act", then
you have got room for argument about the "event"
as, for example, in the case of striking out in the dark, and not knowing that there is baby being held
there, but if you know that there is a baby being
Van Den Bernd	12/11/93

held there and the baby is struck, then the fact that the baby has an egg shell skull or whatever

does not matter. Well, that is your argument, is

it not?

MR MILLER:  Yes, it is my argument. My further argument is

this, that in Kaporonovski the Court was not called upon to consider whether the decision in Mamote was right or wrong, nor was it required to consider

whether the decision in Martyr was right or wrong.

So what was said by Mr Justice Gibbs in that

case was not intended to apply to the ruling which

had been handed down by the High Court in Mamote, and by the Court of Criminal Appeal in Queensland

in Martyr.

Might I just state at this stage that this is

an application for special leave, and in my

submission leave should be granted for the reason

it deals with a very important point so far as the

law in relation to manslaughter in Queensland under

the Criminal Code is concerned. It is in a state

of somewhat disarray at the present time. We need

a decision by this Court to let counsel for both

sides and the bench know just what the law is. I

think my learned friend would support me in that. If I could go to Kaporonovski - - -

DEANE J: Did I understand you to say that counsel for the

respondent supports the application for special

leave?

MR MILLER:  Yes, I am making that statement, Your Honour.

DEANE J: What, so that his client's conviction can be

restored?

MR MILLER:  No, so that the point can be argued and decided

upon. Am I not right? They did not oppose.

DEANE J: What, they do not oppose his conviction?

MR MILLER:  No, they do not oppose the grant of special

leave.

DEANE J:  My question was, they do not oppose his conviction

being restored. Because, if you win that is the

result.

MR MILLER:  No, they will not go that far. If they had gone

that far we need not have come down here. No, they

are not opposed to the grant of special leave, but
they want this Court to rule that the

Court of Appeal in Queensland was right in saying

that Kaporonovski, in effect, overruled Martyr and

Van Den Bernd 6 12/11/93

overruled Mamote, so that the law in Queensland can

be settled.

DEANE J: Well, I hope that has been explained to the

accused.

MR MILLER:  I do not know what has been explained to the

accused, Your Honour.

DEANE J: It strikes me as extraordinary, if I may say so.

MR MILLER: If I could go to the judgment of

Mr Justice Gibbs, as he then was in Kaporonovski.

TOOHEY J:  Mr Miller, I do not really understand. What is

the proposition that you are inviting the Court to

enunciate, as it were, in relation to section 23?

MR MILLER: That where a death has resulted from a willed

act, but it has been contributed to by a physical

defect, or constitutional weakness in the deceased,

then the accused cannot take advantage of

section 23, it does not rate in those

circumstances. In other words, I am arguing that the decision in Mamote and the decision in Martyr are still good law because that is the effect of

those two cases.

TOOHEY J:  Do you mean if a person, an accused, strikes

another person on the face, let us say, and unknown

to him that person has - and let us say it is quite

a light blow - some constitutional defect, on your

argument, what, manslaughter is the appropriate

verdict?

MR MILLER: Yes, in accordance with the rulings in Martyr

and in accordance with the decision of this Court

in Mamote. Now, it may not accord with current

notions of correlation between moral responsibility

and criminal responsibility but this Code was

enacted in 1899 and, whilst it might seem to be

harsh, the fact of the matter is that the

sentencing judge can take into account all of the

circumstances in deciding what the appropriate

punishment is. In that, it may seem to be quite

just that a man should be adjudged guilty of the

manslaughter of another because, without the act

which caused the haemorrhage, there would not have

been a death, but the judge in sentencing should

take into account the fact that the death was quite

fortuitous.	It may not accord with the common law
of today.

GAUDRON J:  What is the difference between "fortuitous" and

"occurs by accident"?

Van Den Bernd 12/11/93

MR MILLER:  Perhaps I have put my foot in it there. But in

this particular case what I would be putting is

that the judge, in sentencing the offender, would

have regard to the fact that but for the inherent defect in the victim, there would not have been a death.

GAUDRON J: Well, what meaning do you give to the words

"occurs by accident"?

MR MILLER:  In the context of an unlawful blow, then an

event which occurs by accident where in fact death

has resulted as a consequence of a constitutional

weakness, there cannot be any event within the

context of the second limb of section 23, because

there is no supervening event, no occurrence.

BRENNAN J:  Do you give any meaning to "accident" different

from that which was given by this Court in

Vallance?

MR MILLER:  I have got to say this, Your Honour, that what

was said in Vallance, is also said in Kaporonovski,

but in Mamote it was said, in effect, that rule

does not apply where death has resulted as a result

of a willed act and is being contributed to by a

physical weakness. That is, in effect, a decision

both in Mamote and Martyr. It may be illogical,

but the first question for this Court is whether in

Kaporonovski there was, in fact, an intent to

overrule a former decision of this Court in
Kaporonovski and the decision of the Queensland

Court of Appeal in Martyr.

If I might just go to the judgment of

Justice Gibbs.	If we go to the bottom of page 231
of 133 CLR 209,	we see this - it is the last
paragraph:

In my opinion, the second rule does not

apply. 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: See Valance v

The Queen, Mamote-Kulang v The Queen -

and if we go to the footnote we see that the

reference in Mamote-Kulang is to pages 69, 72 and

85.

So we now go to Mamote, (1964) 111 CLR 62, to

those pages.	I go to page 69 in the judgment of
Mr Justice Taylor and Mr Justice Owen.	Now, about

10 lines up from the bottom of that page we see

Van Den Bernd 8 12/11/93

this - after a reference to the Chief Justice and

Mr Justice Kitto, Their Honours said:

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.

So that is the page that is referred to by

Mr Justice Gibbs. But what follows could not have

been overlooked by Mr Justice Gibbs at all, because

what follows is this:

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. If, as here, 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.

So that is a reference to page 69.	Of course, I
have gone over to page 70.

We now go to page 72 referred to in the footnote to Mamote-Kulang and Kaporonovski, and

that is in the judgment of Mr Justice Menzies who

was the dissenting judge. At the middle of page 72

His Honour said:

Here it is perhaps convenient to interpolate

that one thing that Vallance v The Queen did decide is that, contrary to the view which I

had there formed upon the provisions of the happen "by chance" within the meaning of s 13

Van Den Bernd 9 12/11/93

of that Code unless it 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.

Then with reference to Mr Justice Dixon, the

Chief Justice, and Justices Kitto and Windeyer.	He
said then:

This, of course, applies equally to the words

"by accident" in the Queensland Criminal Code.

In Reg. v. Martyr it was decided that

death resulting from an intentional blow could

not be accidental. There, in the course of a

brawl the accused struck the deceased who died

from a blow on the jaw causing haemorrhage of

the brain because of a peculiar weakness in

the constitution of the deceased. The facts

that the killing or the death was not intended

and not foreseen by the accused and could not

have been foreseen by a person of ordinary

prudence were not regarded as making the

consequence of an intentional blow an event

which occurred by accident. If this decision
be correct, then so is the decision under

appeal, for I can see no point of distinction.

So, certainly Mr Justice Gibbs, as he then was, was

certainly properly quoting in support of his

statement at the bottom of 231 what was said in
part by Mr Justice Menzies in Mamote-Kulang.

We go now to page 85 - before I go to page 85 I would just mention this, that Mr Justice Gibbs

could not have overlooked what Mr Justice Menzies

said with regard to the Martyr-type case.	To
page 85 and that is in the judgment of
Mr Justice Windeyer. About five lines from the

top, he said this:

As I see the matter, the most that can be got

from Vallance's Case 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.

Well, certainly that gives support for what

Mr Justice Gibbs says in Kaporonovski at page 231.

But, Mr Justice Windeyer went on:

But that an occurrence is not accidental if any one or more of certain qualities can be

van Den Bernd 10 12/11/93

predicated of it does not mean that it is

accidental if none of them can be predicated.

As a logical proposition, the argument adduced

involved the fallacy of an undistributed

middle term. The test proposed may suffice in

some cases to determine whether an event

occurs by accident. But it will not suffice

in a case of manslaughter; for, as I have

said, that assumes a killing that (provocation

apart) was not intended and not expected to
occur. In this the Code and the common law do

not differ.

It really does not matter whether they differ

or not. In this case the court at trial was

construing the Code without regard to the common

law. Now, if I can return to the judgment of the

court in Van Den Bemd, at page 334 - perhaps I

could go to page 330, because in the fifth line

from the top of that page it said there:

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-Kuland v. The Queen.

Indeed it received the direct approval of at least three of the judges; there cannot be any

doubt about that. If I can go to the bottom of

page 331 - I think I have already referred the

Court to this - the Court said there that:

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, in which the operation of s.23 was

elucidated by Gibbs J. (as he then was).

According to his Honour -

I have read that. At page 334, six lines down:

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

Van Den Bernd 11 12/11/93

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 the foreseeability of the happening of the
consequence as a matter of probability of

"likelihood".

Reference is then made to Tralka,

(1965) Qd R 225, and Mr Justice Gibbs happened to

be a member of the Supreme Court of Queensland when

that decision was handed down.	He was a party to
that decision.	The charge there was unlawfully

wounding. Tralka threw an axe, he meant to strike

one brother with the axe, but there was a sudden

movement of the vehicle and the axe, instead of

hitting the intended victim, struck the brother.

The question was whether section 23 might avail the

accused, and it was held that it might.

If we go to page 231 of the judgment of

Mr Justice Gibbs, he said this, about 10 lines from

the bottom, the last paragraph:

The learned trial judge took the view that the

decision in Reg. v Martyr (1962) Qd. R. 398

covers the present case and that since the

willed act of throwing the axe was the

proximate cause of the wounding, s. 23 had no

operation. We are of course bound by Reg. v

Martyr (supra) but that case is

distinguishable from the present. There the
accused deliberately struck one Scott several

blows, and it was held that Scott's death,

which resulted, was not an accident,

notwithstanding that it would not have

resulted if he had not been suffering from a

constitutional weakness of which the accused

could not have known. The case was concerned

with the result of force deliberately applied

case, however, the appellant did not intend to the body of the victim. In the present	that the axe should touch the body of Buddy
Allister Facer.

If I could go to the judgment in Martyr.

TOOHEY J: Just before you do, Mr Miller, can you just tell

me this: it is not apparent from the draft notice

of appeal to this Court what it is that the Crown

is seeking by way of order of this Court.	Is it
simply to restore the conviction?

MR MILLER:  To restore the conviction, yes, on the ground

that section 23, the second limb, was not available

to the accused in the circumstances of this case

and that the Court of Appeal was wrong in holding

Van Den Bernd 12 12/11/93

that Kaporonovski, in effect, overruled Martyr and,

in effect, overruled Mamote. Yes, we would be

asking for the restoration of the jury's verdict,
for the quashing of the judgment of the Court of

Appeal and the restoration of the jury's verdict.

Could I go to Martyr - - -

GAUDRON J:  Is it your submission that the second limb of

section 23 simply does not apply in manslaughter

cases? That is not it, is it? It does not apply

in a particular sort of manslaughter case.	Why is
that?

MR MILLER: Because of the decision in Martyr and the

decision in Mamote.

GAUDRON J: Is there some principle or some logic which

brings that about or is it the doctrine of

precedent?

MR MILLER:  It is a matter of construction of the Criminal

Code of Queensland.

GAUDRON J: What is the construction? What does "accident"

mean?

MR MILLER:  What was said in Mamote, and what was said in

Martyr is that there cannot be an accident where

death has resulted from a deliberate blow where the death has been contributed to by an inherent defect in the victim because there is no supervening

occurrence. One can have a case of manslaughter

where section 23 second limb can apply but it would

occur in a circumstance where A delivers a blow to

Band then B strikes his head, quite unexpectedly,

not foreseeably, on something - it might have been

in the dark that the blow was struck - and then he

dies.	The second limb would be available to the
accused in those circumstances.	And maybe there is
no justification morally for - - -

GAUDRON J:  I am more concerned with logic and principle.

Is it because you say there must be a supervening event?

MR MILLER:	Yes, an occurrence.
GAUDRON J:	A supervening occurrence - going to be an

accident.

MR MILLER: Yes, and that is what is said is made plain in

Martyr when I now come to it.

I had not intended to refer this Court to certain sections of our Criminal Code, but I am

going to hand up to the Court now copies of

sections 291 through to 303 included. They are in

Van Den Bernd 13 12/11/93

Chapter XXVIII dealing with homicide, et cetera,

which deal with - I will hand them up.

The Court will note 291 is the section which

deals with a killing being unlawful:

It is unlawful to kill any person unless

such killing is authorised or justified or

excused by law.

Section 292 then deals with "When a Child becomes

Human Being". I will pass over that. Section 293,

"Definition of Killing":

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.

Section 294 deals with "Death by Acts done at

Childbirth" :

When a child dies in consequence of an

act done or omitted to be done by any person

before or during its birth, the person who did

or omitted to do such act is deemed to have

killed the child.

Section 295 deals with "Causing Death by Threats":

A person who, by threats or intimidation of any kind, or by deceit, causes another

person to do an act or make an omission which

results in the death of that other person, is

deemed to have killed him.

Section 296, "Acceleration of Death":

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.

Section 297:

When a person causes a bodily injury to

another -

a bodily injury to another -

from which death results, it is immaterial

that the injury might have been avoided by

proper precaution on the part of the person

injured, or that his death from that injury

van Den Bernd 14 12/11/93

might have been prevented by proper care or

treatment.

Section 298:

When a person does grievous bodily harm

to another, and such other person has recourse

to surgical or medical treatment, and death

results either from the injury or the

treatment, he is deemed to have killed that

other person, although the immediate cause of
death was the surgical or medical treatment,
provided that the treatment was reasonably

proper under the circumstances, and was

applied in good faith.

Section 300 says:

Any person who unlawfully kills another

is guilty of a crime, which is called murder

or manslaughter, according to the

circumstances of the case.

And then murder is defined. Manslaughter is defined in 303 as:

A person who unlawfully kills another

under such circumstances as not to constitute

murder is guilty of manslaughter.

Now, foreseeability is not mentioned in any of those sections. It says in certain circumstances a

person shall be deemed to have produced the

killing.	I do not put that forward as a strong
argument.	I had not intended to raise it because

those sections are as applicable in manslaughter by

negligence cases as they are in manslaughter by a

willed act. But it does, I would submit, give some

indication of the intention of the framers of the

Code when section 23 was enacted.	I am talking
about the second limb.

Might I now go to Martyr, (1962) Qd R 398.

The Chief Justice Mr Justice Mansfield gave the

first judgment. At page 403 he dealt with the

evidence. About 10 lines from the bottom of that

page 403, he said:

Dr Joyce formed the opinion that death was

probably due to the haemorrhage on the base of

the brain.

Dr Joyce further said that he thought it

possible that a punch on the jaw would have

caused the haemorrhage; that it was not usual

that a punch on the chin would cause that

injury; and that it was possible that the

Van Den Bernd 15 12/11/93

injury could indicate some weakness peculiar

to the deceased.

Dr Tonge, the Director of the Laboratory of

Microbiology and Pathology, examined the

deceased's heart -

We pass over that. Next page Dr Tonge further

said:

that a blow to the jaw would be extremely

unlikely of itself to cause a haemorrhage

confined to the base of the brain and that it

could be due in part to an inherent weakness

in the vessel. It would be quite safe to

presume that the haemorrhage did not precede

the blow.

In his summing up the learned trial judge

directed the jury on the provisions of the

Criminal Code relating to unlawful killing,

self defence and provocation.

The only reference to accident appeared in

relation to the direction on unlawful killing

and was in these terms: "The matter might be

accidental. A man might come out of a place

on to a footpath and may be just swinging his
arms for exercise, and, accidentally, he might

have his hand closed and hit somebody, and

that person may die. It is purely accidental.

He did not deliberately punch that person. It

is a matter that happened by accident.	Of
course, in that case you have excuse".

Then the Chief Justice went on:

This case directly poses for the decision of

this court the law in force in this State

concerning accident as an excuse for what

would otherwise be an unlawful killing.	The question is to be decided having regard to	section 2 of The Criminal Code Act, 1899 which
enacts that the provisions contained in the Code shall be "the law of Queensland with respect to the several matters therein dealt with". It is therefore the duty of this court to interpret the Code as we find it without any supposition that it was intended merely to codify the common law or earlier Statute law.
See also the preamble to the Act which recites
that "it is desirable to declare, consolidate
and amend the Criminal Law".

van Den Bernd 16 12/11/93

The whole question therefore in my view must

be considered as one of statutory construction
only.

Section 23 provides that 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.

Section 291 provides that it is unlawful to kill any person unless such killing is

authorised, justified or excused by law.

The offence is the killing or causing of death

and not the death itself and it is therefore

the killing for which a person is criminally

responsible. From this it follows that the

killing is the event referred to ins. 23,

because no criminal responsibility attaches to
any person for the occurrence of a death

unless he has caused it.

On the next page, about seven or eight lines down,

His Honour said:

It was contended however that the killing was

an event which occurred by accident because it

was not intended and not foreseen by the

appellant and could not have been foreseen by

a person of ordinary prudence.

The reference was then made, at the middle of the

page, to Coupland's case in 1901, shortly after the

Code came into operation. In the last 10 lines or

so:

It is to be noted that Griffith CJ did not

instruct the jury to consider whether the

killing was accidental in that it was not

foreseen by the prisoner and could not

reasonably have been foreseen by a man of

ordinary prudence as a result of the

prisoner's act, and that he merely instructed

them to consider whether the fall which caused

the death was an accidental happening (i.e.

caused by tripping over the mat).

If that be the correct view, then in the

instant case the defence of accident could not

arise because it was clearly proved that the

intended blow given by the appellant killed

the deceased.

At the bottom of page 406:

Van Den Bernd 17 12/11/93

The words "which occurs by" imply the notion

of causation, and the latter part of the

section in my view covers the case where in

consequence of an intentional act by A.

(whether lawful or unlawful) an unintended and

unforeseen happening occurs which is the

death. proximate cause of an injury resulting in

"Accident" therefore, in my view does not

include an existing physical condition or an

inherent weakness or defect of a person, such

as an egg-shell skull, or as in this case, a

possible inherent weakness in the brain.

Just a little later he said:

I have reached the conclusion that the meaning

to be attributed to the expression "event

which occurs by accident" is a result which is

caused by an unforeseeable occurrence.

In the instant case there was evidence that

the proximate cause of death was the unlawful

assault by the appellant and there was no

evidence which raised the issue of accident

under s. 23 for the determination of the jury.

There was therefore no necessity for a

direction to the jury on the application of

that section.

Mr Justice Philp gave the next judgment, and I turn

to page 409, last paragraph:

As to the second ground the question arises

whether the judge should have directed the

jury to consider whether the death of Scott

was an "event which occurred by accident" in

view of the medical evidence from which it

could be deduced that it was extremely

unlikely that a blow on the jaw would cause
the fatal haemorrhage unless there were some

unusual "weakness" in Scott's physical make-

up. It was argued that the jury should have
been directed that before convicting they must

be satisfied beyond reasonable doubt that

Scott's death was a foreseeable outcome of the

blows he received.

Just below half-way on page 412, after a review of

common law, His Honour said:

So far I have been at pains to show that

apparently the modern concept of the relevant

common law is not different from the

corresponding provisions of the Code but the

pains are unnecessary since our duty is to

Van Den Bernd 18 12/11/93

construe the legislation contained in the Code

in accordance with the rule laid down in

Brennan v. The King ([1936] 55 CLR 253).

At the bottom of page 413, His Honour said:

The question then arises - was Scott's

death "an event which occurred by accident?"

The argument is that the medical evidence

indicates that Scott was probably suffering

from some "weakness" or idiosyncrasy which

rendered him unforeseeably vulnerable to a

blow on the jaw and that therefore the jury

correctly directed might properly have found

that his death was an accidental event of the

blow.

The judge did not direct in that sense -

he in effect told the jury that if Scott was
suffering from any "weakness" that fact was

irrelevant to the appellant's criminal

responsibility for the death. Whether the

judge's direction is correct is to be

determined by interpretation of the Code.

His Honour then referred to a number of sections

which I refer this Court to. At the bottom of

page 414, last paragraph, His Honour said:

But was Scott's death an event or result

which occurred by accident? I will assume

that Scott's death would not have resulted

from the blows if he had not been suffering

from some invisible and highly unusual

weakness or constitutional abnormality.	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.

The words under discussion I think have

operation in the following circumstances. If

a non-fatal blow be struck and there

supervenes upon the blow an unforeseeable

happening whereby the actually fatal force is

applied to the body of the victim, his

resultant death occurs by accident. But that

is not the case here, since 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

Van Den Bernd 19 12/11/93

taps it and it thereupon shatters, the

shattering, in my view, is not an event which

occurs by accident.

McHUGH J: There may be some difficulty applying what

Justice Philp said to this particular case, but

what about what Justice Mansfield said at 406/407?

Why does that not apply here? Why was there not an

intentional act by the accused to punch the

deceased in the face, but the jury could find that

there was an unforeseen happening and that he hit

him somewhere at the back of the neck and that was

the approximate cause of the injury resulting in

death?

MR MILLER:  I would suggest that the happening would have to

be something from outside, like a falling of a body

on to a concrete or against a projecting corner;

something like that.

BRENNAN J: That is quite inconsistent with Timbu Kolian, is

it not?

MR MILLER:  Timbu was the baby in the dark case.

BRENNAN J: Yes.

MR MILLER: No, Your Honour, with respect. In Timbu Kolian,

the death or the striking of the child was

unforeseeable.

McHUGH J: But he intended to hit his wife.

MR MILLER:	He intended to hit his wife.
McHUGH J:	And instead he hit the baby.
MR MILLER:	But he did not know it was there.
McHUGH J:	He did not know it was there.
MR MILLER: It was not foreseeable. It is like Tralka's

case, where the axe was thrown at one but

unexpectedly some event occurred, the movement of

the motor vehicle, and instead of the axe - the axe
travelled in the same direction, but the victim

moved away from the direction and somebody else

came into the line of the throw and he was struck.

BRENNAN J:  What Justice McHugh put to you was that the

deliberate acts were striking on the face. The act

which might attract section 23 is the blow which

struck the neck.

MR MILLER: Yes, I understood that, Your Honour. But it

must have been a deliberate striking of the body.

This is introducing, I would suggest, niceties that should not be introduced into the criminal law. It

Van Den Bernd 12/11/93

was a deliberate blow. There is nothing here to

suggest that he intended to strike at one place and

he struck at another; nothing to that effect at

all.

McHUGH J: But the jury's verdict must be based upon the

view that in some way, notwithstanding all the

evidence, the deceased must have turned his head in

some way so that he was hit on the back of the

neck.

MR MILLER: It was there, I think, Your Honour.

McHUGH J: Yes, under the ear.

MR MILLER: Yes. Well, if one engages in a fight with

somebody else one can expect that the other is

going to try to avoid the punches and it is likely

that the fist, if it strikes, is going to come into

contact with a part of the body which was not

intended, and surely in those circumstances the

attacker must bear the consequences, legally and

morally, otherwise we will have unnecessary

niceties introduced into the law.

I would submit in those circumstances there

has not been any supervening occurrence, there has

been a direct application of force by the accused

to the body of the victim. No other event has

supervened upon his own willed act. Otherwise

someone might say, "I intended to shoot him through

the upper part of his arm but he moved and it went

through his heart. I should not be held

responsible for the death that results from the

bullet going through his heart. I should only be

held responsible in law for the wounding to the

shoulder which I intended."

McHUGH J: That is a question, then, as to whether that

could have been foreseen, is it not? I do not

think there would be much difficulty about a jury's

verdict, and in this case a jury may have convicted

even with a direction which the Court of Appeal

said should have been given. But the question is

whether the direction was available.

MR MILLER:  Yes, that is right. And that is what we want

cleared up by this special leave application. We

want to know how a trial judge in Queensland should

direct the jury where, in fact, death has resulted

as a result of a willed act where the death has
been contributed to by a physical weakness in the

deceased. We would not complain, of course, if the Court said that the proviso should be applied here.

But we do want a definitive ruling so that judges

in Queensland and counsel, both for the prosecution

and counsel for the defence, will know just what

Van Den Bernd 21 12/11/93

the state of the law is with regard to homicide in

circumstances such as obtained in Martyr and in

Ma.mote.

DEANE J:  Mr Miller, I did not understand what you meant

when you said you would not mind if we said the

proviso should be applied. What does that mean?

MR MILLER:  I withdraw that, Your Honour. I withdraw that.

BRENNAN J: There are two questions that you have to

address, are there not? The first question is:
what is the meaning of "act" in a case where there
is a physical movement by the accused resulting in

death or bodily injury to the victim? You have to

answer that question in order that the further

question can be answered, namely: is that

particular act an act which occurs independently of

the exercise of the will? Then, as a second

category, you have to say:  from the end of that

act to the consequence of the death, or the bodily

injury, what is the meaning of "accident"?

MR MILLER: Well, in the circumstances of this case, I would

submit that the act is the application of force.

BRENNAN J: Well, I understand you to say that, but the

question is whether you define the act as an

application of force to the body of the deceased?

MR MILLER: Yes.

BRENNAN J:  And if so, whether you further define it as an

application of force to the left-hand side of the

neck of the deceased? Or do you say, consistently

with Justice McHugh's question, the case is more

like Tralka - it is by his accident that it hit the

left of the neck of the deceased; it was aimed

somewhere else.	And if you answer that question in
favour of the Crown, then the next question is, if

that is the act which causes the death in the

ordinary course of events, having regard to the
physical condition of the accused, is it material
that the death was not foreseeable by the accused

or foreseen by the accused?

MR MILLER:  The act, I would suggest, is the physical

movement of the fist towards the body, the head, of the deceased, and the touching; that does not occur

by accident. The question is whether the

application of force in the particular place arises

by virtue of a happening which was not foreseeable,

such as a sudden movement of the deceased to bring

it within Tralka. There are certainly not

questions raised in Tralka. I think in Tralka the

application of force was to the chin. It certainly

van Den Bernd 22 12/11/93

is not a matter that was raised in argument before

the Court of Appeal in Queensland.

DEANE J:	Was there any issue on this trial that the accused was inaccurate as to where his blows landed in that
he intended to hit point A and accidentally hit
point B?
MR MILLER:	No, they were in close proximity to one another too, Your Honour.
DEANE J:	Was not the only issue where he in fact hit him?
MR MILLER: Yes.	It was never a live issue at trial, as I

understand the evidence, that he intended the blow

to go to one place and inadvertently it struck

elsewhere. I mean, that point has never been

agitated before the trial judge or the appellate
court.

The point is that in Martyr and in Mamote the courts have given a particular ruling in relation

to section 23 where a death has resulted from a

willed act where the death has been contributed to

by an inherent weakness in the deceased. My

submission is, in short, that in Kaporonovski the

Court did not intend to overturn a decision of the

Court of Criminal Appeal in Queensland in Martyr
and it certainly did not intend to overturn a
decision of its own in Mamote. There was no need

in Kaporonovski for either the counsel for the

Crown, who was myself, or my opponent to raise

before the Court the correctness, or otherwise, of

the decision in Mamote or Martyr.

I think I have made this plain, but in

Tralka's case Tralka was throwing the axe intending

to hit one brother, there was a sudden movement of
the vehicle, and instead of it striking A it struck

B. He did not intend to strike Bat all. There

was a supervening there. Something happened - - -

DAWSON J:  I find that decision very hard to accept. The

injury was not accidental.

MR MILLER:  Your Honour, the silly thing about it is that if

he intended to kill brother A and he, in fact,

killed brother B, under the law of Queensland he

would have been guilty of murder.

TOOHEY J: Not only that, even if he had not intended to

kill anyone, might not he have been guilty of

murder under section 302(2) of the Code?

MR MILLER: Very likely, but very definitely, without any

shadow of doubt, under the Queensland Criminal

Code, if he intends to kill or to do grievous

Van Den Bernd 23 12/11/93

bodily harm to A and, fortunately for A, but

unfortunately for B, Bis the victim, then he is

guilty under our law of the murder of B. But

whether Tralka is right or wrong, in my submission,

does not affect the essential question that this

Court has to decide in this particular case.

MASON CJ: Yes, Mr Herbert.

MR HERBERT:  May it please the Court, may we ask

Your Honours to read our summary of argument?

MASON CJ: Yes.

MR HERBERT:  Your Honours, we oppose any restoration of the

conviction. Our position is simply this, we cannot

argue that the question raised below, and here, is

other than an important one. Our contention is

that the court below was correct.

DEANE J: But, do you oppose the grant of special leave?

MR HERBERT:  For the reason that there is no doubt about the correctness of the decision below.

DEANE J: But, not because it is an appeal by the Crown?

MR HERBERT:  We also oppose the restoration of the

conviction on the grounds of the Court's usual

reluctance to allow Crown appeals, particularly

here where the decision appealed from was given on

11 October last year. This respondent has been at

liberty now for 13 months.

Might we firstly deal with the question of the

"event" for the purposes of section 23. In

Kaporonovski it is treated by four of the five

Judges as being, relevantly for our purposes here,

the death. That is to be seen from the judgment

below. At page 334 of the record, the court said

at line 14:

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.

Kapronovski, factually, allowed no room for the operation of the second limb of section 23,

because it must have been obvious to anyone that

the consequence of pushing a glass into a person's

face would be the consequence which, in fact,

ensued. At line 35 of the judgment below, at

van Den Bernd 24 12/11/93

page 334, the court said, in our respectful

submission correctly:

The test thus appears to be one of

foreseeability of the happening of the
consequence as a matter of probability of

"likelihood".

Now, the test contended for by our learned friends

involves this:  a conclusion that event which

occurs by accident does not mean an event which is

unforeseen and unforeseeable, but can only mean, in

manslaughter cases, an event influenced by some

external supervening or intervening event.

That reasoning is supported by some of the statements in Martyr but, in our respectful

submission, Kapronovski has taken the law beyond

notions of requirements of intervening or

supervening event. We submit that there never was

any reason for such requirements to exist in

relation to accident.

DAWSON J: Is the answer to be found in the word "event",

rather than "accident", because if, for instance, a

person is struck and he hits his head on some

object and a haemorrhage occurs and he dies as a

result, well there is an event in the sense that he

struck his head on something else. If, however,

the blow causes the haemorrhage itself, it may be

that there is a congenital weakness, but that can

hardly be said to be an event.

MR HERBERT:  Which is the difficulty with that, Your Honour?

The death?

DAWSON J:	The death is not the event.
MR HERBERT:	Kaporonovski is the authority for the

proposition that it is the event; that the relevant

event for the purpose of section 23 is the death.

DAWSON J: That is what it says, but what I am putting to

you is that the real answer is to be found in the

word, "event" as much as in the word, "accident".

MR HERBERT:	As much, yes.
DAWSON J:	And that explains why, in a case where a person

strikes his head on something else there is an

event. Where a person just suffers from a

congenital weakness, there is no "event".

MR HERBERT:  That is the argument against us. Our

submission is that it is now simply not to be

questioned that the event is the death. I

understand Your Honour's point that differing

Van Den Bernd 12/11/93

meanings of the term, "event" will lead to

different answers.

DAWSON J: That leads to an extraordinary result if the - I

mean, in most manslaughter cases, many anyway, the

death was unexpected.

MR HERBERT: It must not be intended. That is the first

requirement under the law of Queensland.

Unexpected by the doer and unexpectable, is the

further requirement for section 23 to here operate

to excuse. It must both be unexpected and not to

be expected by normal people, reasonably to be

expected.

BRENNAN J:  You are drawing some distinction between

expectability and foreseeability?

MR HERBERT:  No, I was using expectability as foreseeable,

and I would therefore use foresee instead of

expected.

BRENNAN J: Are you adopting Vallance's case as the test?

MR HERBERT:  Yes. We say the test is Vallance.

BRENNAN J:  And as to whether or not "event" is death or

some striking of the head or whatever, the question

then is whether or not "event" in section 23 is

defined element of an offence or a fact.	What does
Kaporonovski say about that?

MR HERBERT:  Kaporonovski says the death is the "event".

Can we take Your Honours to what Kaporonovski says?

Firstly, Your Honours at 215, in the judgment

of Mr Justice McTiernan and Mr Justice Menzies at

about two-thirds or three-fourths of the page,

after the reproduction of section 23:

Here the event for the purposes 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.

BRENNAN J: It is a bit ambiguous, is it not, because it

goes on:

That event did not happen by accident.

It was the obvious, natural and probable consequence of the act.

MR HERBERT:  The event being - well, we would say there is

no ambiguity, Your Honour; what is being referred

to is the grievous bodily harm, and that is the

Van Den Bernd 26 12/11/93

obvious consequence of forcing a glass into a

person's face.

Now at page 231, Mr Justice Gibbs said this at

the bottom of the page in the final paragraph which
there begins:

In my opinion, the second rule does not apply. 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:

Authority is cited, and at page 232, beginning at

the second line, His Honour says:

It is 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 -

His Honour is obviously, we would submit, saying,

the event is the grievous bodily harm.

At page 241, Mr Justice Stephen agreed with

Mr Justice Gibbs, and as we say, therefore the

result, as the court below said, is that four

members of the Court in Kaporonovski identified

unambiguously what we would say here, relevantly in

the death or the ..... of grievous bodily harm, as

being the event.

DAWSON J: But that is not the same. In this case you have

a chain of events; a longer chain of events than

you did in Kaporonovski, because you have the act,

the injury and death.

MR HERBERT:  One separates out the injury.

DAWSON J:  And one has to have regard to the nature of the

injury, because it has to cause death.

MR HERBERT:  The event may be a compound happening of the

injury and the death, but because the Code deals with the event as the matter in respect of which

one is to be criminally responsible, we would say

the better view is that it must be the death. The injury in a manslaughter case is not something for

which the accused is being said to be criminally

responsible, but rather the death. It is the event

about which section 23 speaks, therefore it is the

death.

Van Den Bernd 27 12/11/93

DAWSON J:  Why can you not, on your argument, say this death

was caused by a subarachnoid haemorrhage. A

subarachnoid haemorrhage was entirely unforeseeable

and therefore it is an event for which the accused

is not responsible and therefore, of course, he is
not responsible for death as well. Is that not the

reasoning you would employ?

MR HERBERT:	Yes, that is where we are, yes.
DAWSON J:	What would be put against you is the subarachnoid

haemorrhage was not an event, the injury was an

event and what flowed was due to the congenital

disability, or whatever it might be. But that was

not an event.

MR HERBERT:  Our answer is to refer, once again, to

Kaporonovski and what we submit to be as a

necessary consequence of the fact that section 23

deals with criminal responsibility for events. We

can simply repeat what we said earlier, that the
event has to be the death because the provision

dealing with criminal responsibility deals with the

event.

DAWSON J: But it cannot be death, can it? I mean if

someone is exercising in the - or wildly throwing

his arms around and hits someone accidentally and

death ensues, the accidental event is the injury.

MR HERBERT: That may be as well, we would submit; that

perhaps may be as well.

DAWSON J: Yes,it has been pointed out that would be an act

which occurs independently of the exercise of will,

so it is not a good example. Once there is an

accident and death ensues as a result of it, of

course the death is accidental, one could say that

but, really, one focuses on the earlier event if

that is the cause of death and -

MR HERBERT:  Our submission is that there is no need in law,

for the purposes of section 23, to ask such

questions about anything but the death.

TOOHEY J:  I just have a difficulty here, Mr Herbert. say in the events that happened the death occurred You

by accident, but it did not.	I mean, it occurred
as a result of a blow.	The deceased had a

constitutional condition which made him more

vulnerable to the blow that he received which, in

the case of most people, would not have had that

consequence. But it is difficult to say that death

occurred by accident; it occurred as a result of

the blow that he received. I thought what you were

putting by way of response to Justice Dawson was

van Den Bemd 28 12/11/93

that the death occurred by accident, it being the

event, but how do you make that good?

MR HERBERT:	By a combination of saying the death is the event and then looking to Vallance and other
decisions to determine when that event is an
accidental one.
TOOHEY J:	You mean you introduce the notion of

foreseeability into the notion of accident.

MR HERBERT: Yes, we do. Yes.

TOOHEY J:  You have to, really, in a case like this, do you

not?

MR HERBERT:  We must. That is what Vallance's case says.

Vallance tells us what "accident" is for the purpose of section 23: an event is accidental if it is unforeseen and unforeseeable, says Vallance; so does Kaporonovski; so do all recent notions of

what is "accident".

The construction for which the applicant

contends is one which requires the suspension of

normal notions of causation or the use of language,

we would submit, because to take Timbu Kolian, as

an example, the victim is being held by his mother,

nothing happens except the blow which strikes the

child. We would respectfully adopt what the court

said below is that to say that the baby's head as

an intervening event is at least an unorthodox use

of language, or an odd notion of physical

phenomenon. You see, in Timbu Kolian, to avoid

what might otherwise have been thought to be the

consequence of the decision in Mamote, it was said

that the baby's head constituted some supervening

or intervening event.

Now, with all respect, we submit that is not a

tenable proposition and it ought to be faced,

squarely, that that is not a tenable proposition.

BRENNAN J: In which judgment does that appear?

MR HERBERT:  Can we note that, Your Honours?

Mr Justice Windeyer at 67, if we could take that as

our starting point, at, again, approximately

three-quarters of the page down:

In the light of the decision in

Vallance's Case it can now be said that an

event occurs by accident if it was not
intended, not foreseen, and unlikely, that is

not reasonably to be foreseen as a

consequence of a man's conduct.

Van Den Bernd 29 12/11/93

In the present case the striking of the

child causing his death seems to me to answer

the description of an event which occurred by

accident.

Reference is made to Mamote.	Now, Mamote had
said -

DAWSON J: That is not the presence of the baby's head being

an accident. It is the striking which is the

"event".

MR HERBERT:  Because it was unknown that the baby's head was

there, in that case.

BRENNAN J: That was described in other judgments as being

an "unwilled act", was it not?

MR HERBERT: That is the difficulty. In Timbu Kolian some

judges came to the view by the first limb of 23,

and with other judgments resort is to the second

limb.

BRENNAN J:  Now, for the purposes of this case, as I read

your notes of argument, you accept that there is a willed act and you are concentrating solely on the

second limb of section 23??

MR HERBERT:	We are relying upon the second limb.
BRENNAN J:	Now, what about the point that was raised by

Justice McHugh about the blow being unwilled if it

lands on the neck rather than on the face?

MR HERBERT: This was discussed below. Now, the facts here

are best found at page 2, at the record at 328.

One first notes that the witnesses who saw what

occurred said that there were, at most, two blows

from the appellant that appeared to strike the

deceased about the face. At 328, line 14, it is

said:	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.

Now, that would permit, we would respectfully

submit, the jury to reach the conclusion that the

movement of the accused's fist was a willed act,

but then one has to divide that movement and the

striking. And to rely upon the first limb of 23,

it is necessary to speak of the act along with,

perhaps, its intent. A view available to the jury

here was that the act - the blow was not directed

Van Den Bernd 30 12/11/93

at the neck but struck it, therefore that

particular contact by that particular blow was an

unintentional blow.

BRENNAN J:  What evidence was there of that, or what

evidence was there to suggest that?

MR HERBERT:  The evidence was that blows were only seen going towards the front of the face.

BRENNAN J: Well, that is from a witness. There is no

doubt, on medical evidence, that there was a blow

or some trauma to the neck.

MR HERBERT: 

Yes, to the side of the neck.

BRENNAN J: 

And assuming that that happened in the course of

the fight, there is no doubt but that the accused
struck him on the neck.

MR HERBERT: 

I understand what Justice McHugh to be raising

with me is the possibility of arguing that striking
him on the neck, rather than an intended part,
could be regarded as an act occurring independently

of exercise of the will.

BRENNAN J:  What is there to suggest that hitting him on the

neck was not an intended act, or a willed act? Is

there anything?

MR HERBERT:  Not in the evidence here, not as we understand

the law to be concerning willed acts. That is why

we rely upon the second limb.

DEANE J: Or, more to the point, that your client was

selective as to the precise part of the body at

which he aimed the punch.

MR HERBERT:  Yes, we would say that to deal with questions

like that is just artificial. There is too much

artificiality?

DEANE J:  He was not a professional pugilist by any chance?

MR HERBERT:  No. Your Honours, the submission is that the

view of the law for which we contend is one which

is in accordance with the ordinary language of the

provision; is in accordance with notions of justice

and is an easy test to administer, giving as it

does to the jury the responsibility for determining

whether the conduct is to be criminalized or not by

reference to their notions of reasonable

foreseeability and whether it was foreseen. That approach, we would submit, accords perfectly with

the general approach now taken in relation to

criminal responsibility at the common law as well.

This returns to the jury the decision of deciding

Van Den Bernd 31 12/11/93

whether such things are excused or not by reference

to broad common sense concepts rather than the

introduction of artificiality, such as the notion

that when one throws an axe at a moving car it is a

supervening event if it does not hit the person you

intend, as in Tralka.

That is how in Tralka the courts avoided the

obvious unjust result and it is how in Timbu Kolian

some members of this Court avoided, what we would

have contended to be as well, the unjust result of

holding him criminally responsible for the death of

the baby; to regard matters of intent and his

awareness as somehow raising questions of

supervening event. That is all that really in the

end is being said in Timbu Kolian. Because he was

not aware of something, you can therefore say there

is a supervening event. We would say that is

simply artificial and illusory and the way it
should be considered is to say, "Did he foresee?"

If he did there is no question - it is manslaughter at least - and second, "Was it foreseeable?". If

the death was a foreseeable consequence of the

willed conduct in which he engaged, then

manslaughter will be the verdict. If it is not

foreseen and not foreseeable by any reasonable

person, then criminal liability will fall to be

decided much as in Wilson's case, in the majority.

McHUGH J:  How do you define the act in this particular

case?

MR HERBERT:  We have avoided defining the act, because we

have relied upon the second limb. Whatever the act

is, we rely upon the second limb. We would have

said - but it is somewhat ad hoc - the act is the

striking of a blow.	We would have thought that
accords most closely with the authorities.	It is
not a considered submission.

McHUGH J: Even when you are applying the second limb, can

you avoid defining what the act of the accused is?

Because the hypothesis of section 23 is that he has

done something that otherwise brings him within the

section.

MR HERBERT:  He has to otherwise be responsible?

MCHUGH J: Yes.

MR HERBERT:  To inculpate, that is, yes, because absent

evidence that it falls within the first limb of 23,

it is to be taken as a willed act generally, so
there is no need to consider the question. That is

really to make the first limb of section 23

inculpatory when it is not. It is an exculpatory

section from the usual assumption that it is a

van Den Bernd 32 12/11/93

willed act. In a case of this kind, anyway, in a case of the aiming of the blow or the throwing of the blow.

McHUGH J: Well, how does a judge instruct a jury on this

second limb on your theory? There must be some

points of reference. He just does not leave it to

the jury and say, "Well, was this death

fortuitous?"

MR HERBERT: If death was foreseen by the accused, the

instruction would be in that event, the proper

verdict must be manslaughter if death was foreseen.

Second, the direction would be if death was

foreseeable to any normal person in the position of

the accused as a possibility, then - - -

McHUGH J: Yes, but you seem to be avoiding dealing with the

concrete. The accused must have done something.

He cannot determine whether it is foreseeable

unless you are trying to determine a relationship

between the event and something that the accused

has done.

MR HERBERT: 

One can deal with that by saying this, if the

question that is, was death a foreseen or
foreseeable consequence of the accused's conduct in
striking the deceased. If Your Honour is seeking a

practical direction that could have been given

here, yes.

MCHUGH J: Yes.

MR HERBERT: That is the practical direction one might give,

to pose the question that way.

DAWSON J: That is taking it a long, long way, is it not?

You see, manslaughter is the crime which occurs

when there is an unintentional killing and an

unlawful one as well, but this is introducing

notions of intention and you are pushing

manslaughter right back into the corner as a crime.

The law regards death as an important thing, and

that is why manslaughter covers a wide range of

circumstances, and why intention is kept out of it.

If you are engaged in an unlawful act and death

ensues, and if it is a dangerous act, I am talking

about the common law - - -

MR HERBERT: Yes, that is the difficulty. That is a

redebate of Wilson.

DAWSON J: If you try to look at equivalents, this is going

a long way further than narrowing what is meant by

dangerous act. This is introducing real notions of

intention, the way you put it.

Van Den Bernd	33	12/11/93
MR HERBERT:	We would say, with respect, no.	The question,

in fact, avoids any consideration of intention.

The question is, was it foreseeable - - -

DAWSON J: Well, foreseeability, introduces a mental

element.

MR HERBERT:  It is a mental element that we say is now

involved, because of the way in which accident, or

event which occurs by accident, has been defined

consistently in cases such as Vallance and

Kaporonovski.

DAWSON J:  You may be right, but I am just expressing some

dismay.

MR HERBERT:	No, the outcome is really, with all respect, rather consistent with Wilson, an acceptance of our
proposition.
DAWSON J:	It may be consistent with the majority

verdict -

MR HERBERT:  It is consistent with the majority, not the

minority, no, it is not. But in a practical sense, one should consider what is the practical result of

that direction to a jury. They must consider to

make the accused responsible for the offence of
manslaughter, not that merely he foresaw; there is

no question that he will be guilty of that at

least, but if it was foreseeable as a possibility

to a reasonable person, then an affirmative answer

to that question makes him liable for manslaughter.

Now, that is not diminishing the offence of

manslaughter or greatly reducing its -

DAWSON J:  You see, it depends on what view you take. If

you take the view that manslaughter was meant to

cover everything from a bar room brawl to the

really serious case of homicide, then you would not

find that satisfactory.

MR HERBERT:	Yes.
DAWSON J:	You say manslaughter, on this view, is not meant

to cover the case of a bar room brawl where someone

unforeseeably dies as a result of a punch.

MR HERBERT:  The shape of this discussion bears similarities

to the shape in Wilson.

DAWSON J: Yes, of course.

MR HERBERT:	And what we have sought to do is to grapple with Wilson to see how close this is.	It is
similar to the majority.

Van Den Bernd 12/11/93

DAWSON J: That is probably why I expressed dismay.

MR HERBERT:  And it may be why Your Honour rebels against

it, but it is.

McHUGH J: But if this does cut into the common law

understanding of manslaughter, it is because

section 23 is a provision of general application

and it states a principle which has to be applied

to every offence.

MR HERBERT: Throughout the law, for any offence in

Queensland and Western Australia and - - -

McHUGH J:  Yes. So it may have strange consequences from a

common lawyer's point of view, but so be it.

MR HERBERT: That does not matter. In any event, we would

say it does not. We would say it is very close to

the test propounded by the majority in Wilson. In

a practical sense, to ask a jury to pose to itself

that question, would a normal reasonable person have foreseen the possibility of death here, we

would say the outcomes will generally be exactly

the same as the majority in Wilson.

BRENNAN J: Mr Herbert, two questions: first of all I take

it that your submission in relation to death and

manslaughter in section 23 have as their

consequence the same application of section 23 to

any physical condition which is an element of an

offence, bodily harm, wounding, whatever it might

be.

MR HERBERT:	Yes.
BRENNAN J:	Now, the second question
MR HERBERT:	Excuse me, Your Honour, it will not apply to

bodily harm because there is no general offence of

bodily harm in the Code. There is no offence of

unlawfully doing bodily harm.

BRENNAN J: Assault occasioning bodily harm?

MR HERBERT:  It has to be assault occasioning bodily harm.

BRENNAN J: Well then, why would it not apply here?

MR HERBERT:  We have not considered whether the bodily harm

in that case is to be regarded as the event.

BRENNAN J: Occasioned, which is caused by the assault.

MR HERBERT:  Yes, I just prefer not to commit myself to an answer on that without thinking it through.

Van Den Bernd 35 12/11/93

BRENNAN J:  I can understand that you would not want to

commit yourself to it, but it seems to me that it

is inevitable that it is across the board, for the

very reason that 23 is of general application.

MR HERBERT:  As Justice McHugh observes, yes.

BRENNAN J: Yes, and the second question is: could you show

us the passage in the transcript where there was an

application for redirection on the grounds of 23?

MR HERBERT:  On the grounds of section 23?

McHUGH J: Yes. It is at page 229, line 30, that His Honour

says:

How do you says 23 is open on the facts?

MR HERBERT:  We refer Your Honours to what is said at

page 228.	Mr Martin, then counsel for the accused,
said:

The second one, is that there is no evidence

where a jury could assess whether a reasonable

person in the appellant's position, or in the

accused's position, I should say, would have

realised that in punching the deceased he was

exposing the deceased to an appreciable risk

of serious injury.

McHUGH J: That is based on Wilson, is it not?

MR HERBERT:	Yes, the application really was an application for direction in accordance with Wilson, which
metamorphosed in the Court of Appeal to - - -

MCHUGH J: But over on the following page, Mr Martin

specifically referred to section 23, line 28.

MR HERBERT:  Yes, because he was now contending in relation to the event. Your Honour will see his reference

to that at line 30. Further discussion about

Wilson's case. The effect of the application was a direction to leave the second limb of section 23 to the jury, that was the effect of the implication.

The next matter upon which we rely for our

construction of section 23 is the introductory

words, making it subject to the provision of the

Code dealing with negligence.	If we could take
Your Honours to that:

23. Subject to the express provisions of this

Code relating to negligent acts and

omissions -

So one should consider those.

Van Den Bernd 12/11/93

Section 289 of the Code is the principal

provision dealing with criminal responsibility for
physical outcomes. First, it creates a duty on the
part of anyone who has under his control something
which absent proper precautions may endanger the

life or safety or health of someone, and where

there has been a failure to use reasonable care and

take reasonable precautions to avoid that danger,

then the person will be deemed responsible for

anything caused by a failure to take reasonable

care.

We would submit the criminal responsibility

when falling to be determined by section 289, where

the death is a consequence of the operation of some
dangerous agency or thing, will closely match the
test for which we suggest section 23 in its second

limb supports, it will be a test involving

reasonable foreseeability. We would submit that

there is no reason, in principle, for a person

whose liability falls to be judged under 289, to be

judged by a higher standard than at 23. The view

for which the applicant contends erases any

question of foreseeability under section 23. It

just erases it and says if it is a willed act, you

are responsible for the manslaughter.

Here, under 289, where one has some dangerous

thing, it is precisely questions of reasonable
foreseeability which are considered to give rise to

criminal responsibility. There is no reason, we

would submit, why the legislature should provide

for a lesser test in the case of section 23 for a

person who causes death without the use of some

dangerous article than 289 where a dangerous

article is involved.

The judgments of Mr Justice Menzies in both

Memote and Timbu Kolian are judgments favouring the

proposition for which we contend here. His Honour

dissented in Memote, and in Timbu Kolian the Court,

through a different method, came to the same

conclusion that we would contend for here. That is

all we have to add to the summary of argument,

Your Honours.

MASON CJ: Yes, thank you, Mr Herbert. Mr Miller?

MR MILLER:  Where a homicide, or any other unlawful act, is

alleged to have been committed, there is not a need

to identify an act or an event. The need to

identify an act or an event only arises where there

is an allegation that there is a relevant act which

occurs independently of the exercise of the will,

and there is only a need to identify an event if it

is alleged that an event has occurred by accident.

Relevantly, in some cases of homicide there will

Van Den Bernd 37 12/11/93

not be an act coming within the first limb of

section 23. In some cases of homicide there will

not be a relevant event coming within the terms of

the second limb of section 23. My submission is

that with regard to the second limb of section 23,

event cannot be the death because it will be a

death in every homicide. What we are looking for,

if it exists, is whether there has been an event

which has occurred by accident, and that means in

the context some supervening occurrence.

TOOHEY J: That argument would be stronger perhaps if

section 23 were simply a provision that related to

homicide. But it is not. It is a provision that

relates to any offence under the Code.

MR MILLER:  Yes, Your Honour. Can I just examine what

Your Honour says with regard to, say, doing

grievous bodily harm - as in Knudsen. A man

punched a woman, I think to the ground, left her on

the roadway and later on a car came. The driver

was negligent, I think, and did her grievous bodily

harm. A question there would be whether an event

occurred which was by accident, and one could

identify an event occurring by accident, that is, a

supervening event, and that is the collision

between the car and the woman lying unconscious on

the roadway. So it can have application both in

homicides and in non-homicide cases.

McHUGH J: But there must always be a relevant act, must

there not, even in homicide, because there is -

MR MILLER: There will be an act -

McHUGH J: Well, it has to be

MR MILLER:  - - -but it will not be a relevant act because

it does not fit the description of an act which

occurs independently of the exercise of the will.

an act which occurs independently of the exercise	If I punch someone there is an act, but it is not
of my will. So what we are looking to identify is
whether there is an act which occurs independently
of the exercise of the will.
In all, where there is an application of force, there will be an outcome. There will be a
consequence, there may be a death, there may be
grievous bodily harming, there may be a wounding.
But, what one would be looking for to see whether
someone is excused from criminal responsibility for
that consequence is whether there has intervened
some "event" which has occurred by accident.

TOOHEY J:  I take it, on your argument, in any body contact

sport where two persons come into collision,

van Den Bernd 38 12/11/93

intentionally but not dangerously, and it happens

that one of the persons involved has some

constitutional weakness that leads to their death,

when ordinary that would not be the case, it may be

the case they would not even sustain any sort of

injury, that is a manslaughter case?

MR MILLER:  Your Honour, that is a horror question, with due

respect. It is one that we find very difficult to

answer under the Criminal Code.

TOOHEY J:  You mean you do not want to answer it, or it does

not admit of an answer or what? It is really the

other end of the spectrum from Justice Dawson's

illustrations to you.

MR MILLER:  Yes, it is indeed. It is like the one that

Mr Justice Menzies raised about the woman who has

her bag snatched and she hit somebody with her

umbrella.

TOOHEY J: But I was not offering it to you just as a horror

illustration but because it seems to follow from

your argument that if the presence of some

constitutional weakness is irrelevant once there is

an intentional "act", then manslaughter is the

appropriate verdict.

MR MILLER: In the common law, I think, would say and I am

relying on my memory of what Sir Garfield Barwick

said in

Mc HUGH J:  Ryan.

MR MILLER:  One of the New Guinea cases. He used the word

"malice" in, I think, it is Timbu Kolian. I have

not read this case again with a view to having that

particular point in mind, but I think it is in that

case that a reference is made to "malice", and it

would seem to me that in a common law context that

would seem to make a lot of sense. Because if you	are in a friendly game of football, there is no
malice, but one can have malice in a game of
football, as we saw many years ago where a player
was lifted up and turned head into the ground,
speared into the ground. Now, there is malice
there.

TOOHEY J: Well, I mean that is putting it into the pub

brawl sort of category - - -

MR MILLER: Yes.

TOOHEY J:  I quite deliberately chose a situation where

there was no more than the sort of contact between

two individuals that you would expect in a body

contact sport. But, all I am asking you is

Van Den Bernd 39 12/11/93

whether, on your argument, it is impossible for the

accused to say, "Well, there is an event which

occurred by accident," because you cannot say

anymore than that the death occurred by accident.

MR MILLER: If this was in a game of sport, one could say, I

think, that there was consent and therefore there

was no unlawful act. There was consent to the use

by the other of - - -

TOOHEY J:	Even if death ensued?
MR MILLER:	I think as Mr Justice Gibbs in Kaporonovski

takes Mr Justice Philp to task for his statement in

Martyr that, "a killing can only be excused if the

death is excused", Mr Justice Gibbs says the

killing can be excused if in fact the act which

caused the death is also excused, and surely that

must be right. That if an assault by one upon

another as a result of provocation or self-defence,
if it gives rise to death, then the result must be
authorized, justified or excused, if in fact the

application of force in the first place was.

So, if two players in the game of football,

playing within the rules, where one might be said

to be consenting to the application of force by the other to him within the rules, and one of them dies as a result of some weakness in him, there is no

unlawful act.	So there would not be any homicide.
There would be an application of force.	It would

be a willed act, but it is not an unlawful act.

TOOHEY J: But the Code does not say that there has to be an

unlawful act, does it? It says it is unlawful to

kill anyone unless the killing is authorized or

justified or excused by law.

MR MILLER: That is the point Mr Justice Philps made in

Martyr. But Mr Justice Gibbs takes him to task for saying that in Kaporonovski where it is asserted by

the later Chief Justice that so long as the act is

justified or excuse9, then the result will be as

well. I am referring to page 236.

TOOHEY J:	Of volume?
MR MILLER:	I am referring to page 236 in the judgment of

Mr Justice Gibbs in Kaporonovski about ten lines

from the bottom:

To say, as Philp J did in Reg v Martyr, that the provocation may excuse the assault but not the killing, would in my opinion, with all respect to that eminent judge, be to place altogether too narrow a construction on the exculpatory words of section 269 and to

van Den Bernd 40 12/11/93

construe section 291 with a slavish literalism

which would ignore the sense of the section

and its relation to other provisions of the

Code.

The other point that I would raise is this,

that my learned friend suggests that really there

is no difference between the argument that he

contends for and the decision in Wilson. As I

understand Wilson's case, the common law test for

manslaughter, as laid down by the court, required

an unlawful and dangerous act in circumstances such

that a reasonable person, in the accused position,

would have realized that he or she would be

exposing another, or others, to an appreciable risk

of serious injury.

The ruling of the Court of Appeal in

Van Den Bemd was that death had to be unforeseeable; death had to be foreseeable if the

Crown was to get a verdict of manslaughter.	So the
test in Van Den Bemd is stricter; it imposed a

larger burden on the prosecution than does the

common law test laid down in Wilson on a

prosecuting authority in the common law state.

BRENNAN J:	Mr Miller, on your argument about the necessity of some supervening event, it is right, is it not,
that section 23 in the second limb directs its
attention to an element of an offence as defined?
MR MILLER:	I would not think so, Your Honour.

BRENNAN J: Well then, what can be the possible meaning of

saying, a person who is not criminally responsible

for some fact which is not an element of an

offence?

MR MILLER:  What the section is saying is that a person is

not criminally responsible for an act which occurs

independently of the exercise of his will.

BRENNAN J: Or for an event which occurs - - -

MR MILLER:	Or for an event which occurs by accident. not imposing upon him a liability. It is excusing	It is
him from liability.

BRENNAN J:  Was there any liability for anything except

something which was an element of the offence?

MR MILLER:  The way the Queensland Criminal Code is

constructed is that we have offences which really

only comprise external elements, and one has to go

to some section which sets up authorization or

justification or excuse; different from the common

law. So, in a homicide one would look to see

Van Den Bernd 41 12/11/93

whether there was a willed act; did it cause the

death? Yes, it is unlawful unless justification or excuse can be found. If justification or excuse is sought to be found in section 23, then the defence

will have to point to some event, if that is the

limb that they are looking to, which will

demonstrate that there was, in a chain of

circumstances, some occurrence which breaks the

chain in causation.

BRENNAN J:  I know that is what you are saying. What I am

asking you is, as a matter of construction of

section 23, how can "event" be other than the

element of the offence charged?	How can it be
simply a link in a chain of causation?	You have

got two sections: you have got section 2 which deals with acts or omissions, and then you have got, in this context, section 23 which deals with

those elements of the offence which are not acts or

omissions.

MR MILLER:  Yes. I will try to tackle Your Honour's

question this way. With regard to the first limb

of section 23 which talks of a person not being

criminally responsible for an act occurring

independent of the exercise of his will, the act

which causes the event may be not the act of the

accused. It is not his act at all, it is somebody

elses. He is - I am not going to be far fetched in

an example that I give - but in Royal's case I

think it is, the fear case where the woman jumps
out the window, a question arises there as to
whether the act was the act of the accused or

whether her act was not so connected with the

threat that it was not his act.

TOOHEY J: Well, there is a causation problem on one view of

Royal.

MR MILLER: Yes. But the point that I am seeking to make

here, and I am not making it too well, is that with

regard to "act" in the first limb we are not

looking - if the accused is excused, the act will

not be his act. And if excused under the second

limb, the event is not something attributable to

him, therefore it must come from outside.

McHUGH J: If I cause the death of somebody by administering

a stupefying drug not being aware that there was a

drug in the cup of coffee I gave the person, which

limb of section 23 protects me? Either or them?

MR MILLER: Well, it may be that Your Honour might have to

rely on an honest an reasonable and mistaken belief

that it was not a drug that was in the coffee or

the injection or whatever.	That may be where the
answer is to be found.	If somebody slipped it in

Van Den Bernd 42 12/11/93

without my knowing it, it should not be difficult

for me to prove to the jury or to at least raise a

doubt that I believed that it was an innocuous cup

of coffee or whatever. Probably the answer is to

be found there. I have nothing further to add.

MASON CJ: Court will consider its decision in this matter

and we will adjourn until 10.15 am on Tuesday next.

AT 12.21 PM THE MATTER WAS ADJOURNED SINE DIE

12/11/93

van Den Bernd 43