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

12/11/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1993] HCATrans 348
Decision Date

CaseChat Overview and Summary

The applicant, Paul Anthony Van Den Bemd, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal of Queensland. The Court of Appeal had overturned a jury's conviction of the applicant for manslaughter and ordered a retrial. The dispute concerned the legal basis upon which the jury's verdict could be sustained, particularly in light of medical evidence regarding the cause of death and the application of section 23 of the Queensland Criminal Code.

The central legal issue before the High Court was whether the Court of Appeal erred in its assessment of the evidence and the application of section 23 of the Queensland Criminal Code. Specifically, the court had to consider whether the jury's verdict of manslaughter was supportable on the evidence, and if not, whether the Court of Appeal correctly applied the principles relating to causation in criminal law, particularly in circumstances where death resulted from an unusual susceptibility of the deceased to injury. The correctness of the Queensland Court of Criminal Appeal's decision in *Martyr* was also a significant point of contention, as it had been relied upon by the trial judge.

The High Court noted that the Court of Appeal had found that the jury's verdict could be accounted for on the basis that they concluded a blow from the appellant struck the deceased on the side of the neck, rather than the face, which was open to them on the evidence. However, the Court of Appeal then considered the application of section 23 of the Queensland Criminal Code, which deals with causation. The court observed that the authorities on the second rule of section 23 were in some disarray, referencing a number of Queensland and other Australian cases. The court's reasoning focused on the legal principles of causation and the extent to which an unusual susceptibility of the victim could break the chain of causation.

Orders