Stanik v The Queen - [2001] WASCA 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STANIK -v- THE QUEEN [2001] WASCA 333

CORAM: MALCOLM CJ
ANDERSON J
McKECHNIE J

HEARD: 18 JULY 2001

DELIVERED : 31 OCTOBER 2001

FILE NO/S: CCA 1 of 2001

BETWEEN: DANIEL JOSEPH STANIK
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Offences against the person - Unlawfully doing grievous bodily harm - Causation - Whether direction concerning causation in terms of harm to victim "followed directly upon" or "followed from" acts of appellant was adequate - Victim running towards appellant who claimed he merely pushed victim - Self-Defence direction to the jury adequate - Accident the main defence - Grievous bodily harm the relevant "event" - Requirements for direction on accident - Open to the jury to conclude that the force used by the appellant was such that it would have been reasonably foreseen by an ordinary person that an injury of the type which occurred would occur

Legislation:

Criminal Code, s 23, s 245, s 248, s 297, s 317

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S J Jones
Respondent: Mr D Dempster

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Beckford v The Queen [1988] AC 130
Campbell v R [1981] WAR 286
Director of Public Prosecutions v Daley [1980] AC 237
Ford v R [1972] WAR 36
Hooper v The Queen [2000] WASCA 394
Kaporonovksi v The Queen (1973) 133 CLR 209
Marwey v The Queen (1977) 138 CLR 630
R v Beech (1912) 7 Cr App R 197
R v Lawrie [1986] 2 Qd R 502
R v Taiters (1996) 87 A Crim R 507
Reg v Grimes and Lee (1894) 15 NSWR (L) 209
Reg v Pagett (1983) 76 Cr App R 279
Reg v Pitts (1842) Car & M 284
Reg v Roberts (1971) 56 Cr App R 95
Royall v The Queen (1991) 172 CLR 378
Van Den Bemd v The Queen [1995] 1 Qd R 401; 70 A Crim R 489

Case(s) also cited:

Nil

MALCOLM CJ: On 22 November 2000 the appellant was convicted in the District Court on an indictment which alleged that on 9 June 1999 at Forrestfield the appellant unlawfully did grievous bodily harm to Robert Keith Palmer. The relevant offence is constituted by s 297 of the Criminal Code. The application for leave to appeal against conviction should have been filed by 13 December 2000, but was filed some two and a half weeks late on 2 January 2001. The appellant was not then represented and an application for an extension of time was unopposed. The extension was granted at the hearing. The grounds of appeal were originally prepared by the appellant personally. These were amended by leave at the commencement of the hearing.
At about 8.30 pm on 9 June 1999 the appellant drove four friends or acquaintances to the complainant's property in Forrestfield. At that time the appellant had recently had his 18th birthday and those he was with were of a similar age. The complainant was the father of another friend of theirs who they wished to see. The appellant parked his car in the complainant's driveway. Two of the girls in the car went to the front door. The appellant and another male passenger, a Mr Faulkner, urinated on the complainant's front lawn.
Mr Faulkner took exception to the way that the complainant was speaking to the girls. An argument developed between the complainant and Mr Faulkner. The argument became heated and it looked as if he was about to fight Mr Faulkner.
The complainant approached the appellant's car to take down the licence plate. The appellant said that he was a "fucking idiot". The appellant said that the complainant then "stormed" towards him. The appellant said that he panicked and, being fearful that he was going to be hit, he pushed the complainant backwards. The complainant struck the back of his head on a brick wall. The wall was at least 4 metres from where the push took place. The complainant suffered permanent brain damage.
The Crown case was that the appellant's push was so hard that it lifted the complainant off his feet and propelled him into the wall. The appellant said that the complainant lost his balance, and unable to regain his footing, stumbled into the wall. Mr Faulkner then ran up to the unconscious complainant and kicked him in the ribs several times. The group then left. As they were doing so, the appellant repeatedly said he wanted to go back.
The appellant participated in a videotaped record of interview with the police and was subsequently charged with doing grievous bodily harm. Two trials were held. The first took place in September 2000 on an indictment which alleged only the offence against s 297 of the Code. The jury were unable to reach a verdict. Subsequently, an alternative count was added to the indictment alleging that the appellant unlawfully assaulted the complainant and thereby did him bodily harm contrary to s 317 of the Code. It was in these circumstances that the appellant was convicted and subsequently sentenced to imprisonment for 3 years with eligibility for parole.
The appellant's grounds of appeal as amended contend that the trial Judge erred in law in his directions to the jury on three issues raised at the trial, namely, causation, self‑defence and accident.

Causation

Ground 1 of the grounds of appeal was that the learned trial Judge erred in law when he directed the jury that causation was established if the complainant's grievous bodily harm "followed directly upon" or "followed from" the appellant's push.
In Royall v The Queen (1991) 172 CLR 378 reference was made to a number of tests to be applied to determine causation. The comments of Burt CJ in Campbell v R [1981] WAR 286 at 289 were approved by Mason CJ at 387, Deane and Dawson JJ at 411 – 412; and Toohey and Gaudron JJ at 423. The relevant comments were that:
"[It is] enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter."
In Royall, Mason CJ at 388 said:
"Generally speaking, an act done by a person in the interests of self‑preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connection between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation. But the governing principle has been expressed in a variety of different ways. ... The key element in the chain of causation as contemplated by the direction, is that an accused's conduct creates in the mind of the victim a well‑founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death."
The Chief Justice went on to note at 388 – 389 that it had been held that a reasonable act performed for the purpose of self‑preservation in attempting to escape the violence of the accused did not destroy the causative connection with such violence: Reg v Pitts (1842) Car & M 284; Reg v Pagett (1983) 76 Cr App R 279 at 289 per Robert Goff LJ. Mason CJ at 389 mentioned a variant on this formulation in terms that:
"... the victim's act which results in death is caused by the accused's violence if the act is 'the natural consequence' of that violence, something that is very likely to happen."
An example given was R v Beech (1912) 7 Cr App R 197 where the victim was injured after jumping out of a window to escape from a man whom she had reason to fear. His Honour went on to say at 389 that the natural consequence test posed the question whether the victim's act was something that could reasonably have been foreseen as the consequence of what the accused was saying or doing: Reg v Roberts (1971) 56 Cr App R 95 at 102 per Stephenson LJ. Thus, an act so unexpected that no reasonable person could be expected to foresee it would be a voluntary act on the part of the victim breaking the chain of causation between the conduct of the accused and the ultimate injury: ibid at 102. After referring to Director of Public Prosecutions v Daley [1980] AC 237, the Chief Justice said at 389:
"It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct."
There is a clear link between the natural consequence test and reasonable foreseeability.
Brennan J said at 398:
"The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Reg v Pagett [(1983) 76 Cr App R 279 at 288]. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct, though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self‑preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg v Pitts [supra]; Reg v Grimes and Lee [(1894) 15 NSWR (L) 209]; R v Curley [(1909) 2 Cr App R 96; (1909) 2 Cr App R 109]; Director of Public Prosecutions v Daley [[1980] AC 237 at 245 – 246], per Robert Goff LJ. On the other hand, where the victim's attempt at self‑preservation is not reasonable (or proportionate), the chain of causation is broken by the victim's taking of the final step is a question of fact to be answered by reference to the objective circumstances."
Brennan J went on to say that foresight or reasonable foreseeability marked the limit of the consequences of conduct for which an accused may be held criminally responsible. Finally, his Honour said at 399:
"The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self‑preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.
The question whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step is resolved at common law by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred 'by accident' or 'by chance'.
The first question to ask is whether the step taken by the victim was an intervening cause breaking the chain of causation. The second stage of the test is whether at the time when the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final step, the taking of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Vallance v The Queen [(1961) 108 CLR 56 at 61, 65, 82]; Kaporonovski v The Queen [(1973) 133 CLR 209 at 231 – 232]; and Stuart v The Queen [(1974) 134 CLR 426 at 438]."
Deane and Dawson JJ at 410 noted that, in Reg v Grimes and Lee (1894) 15 NSWR (L) 209 at 213, the Full Court approved a direction to the jury which was in the following terms:
"If then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding took place, and if you are satisfied that, although Ah Choy was not actually put through the window by the prisoners, yet that when he jumped through he had a well‑founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man's death as if they had taken him in their hands and thrown him out the window."
See also Toohey and Gaudron JJ at 420 – 425 who formulated the test in terms of substantial contribution.
It was contended that in the present case the complainant approached the appellant. The appellant then became frightened for his own safety. There was evidence from one witness that the two men were in close proximity to one another and the complainant raised his hand to the appellant. The appellant then pushed the complainant who lost his balance and fell backwards. The appellant said that the fall or the stumble backwards was 4 metres, but it was conceded by counsel for the appellant that the stumble backwards was more than 4 metres. In fact there was evidence that the appellant struck the complainant with a blow that lifted the complainant off the ground across the driveway so that he fell against a brick wall, striking his head and sustaining permanent brain damage. The distance from the point where the blow was struck was across a driveway from a point where people were standing on a lawn. The distance was some 4 metres. It was conceded by counsel for the appellant that the most likely outcome as a result of a push would be that the complainant would go backwards remaining on his or her feet. Much depends, however, on the force of the "push". It was contended, however, that a possible outcome, but not a likely outcome, was that the complainant would lose his footing and stumble backwards for some distance. It was contended that this was not a likely outcome. In my opinion, however, the Crown case was that the degree of force used was so great as to lift the complainant off his feet and propel him into the wall with such force that he suffered grievous bodily harm. It was submitted that the reason why the complainant lost his balance and fell was that, in going backwards across the driveway, he stumbled and fell. It was conceded, however, if the jury accepted that it was a very forceful blow which caused the complainant to stumble, fall and suffer the injuries which he did, the chain of causation would not be broken. There was evidence that the appellant pushed the complainant in the area of his shoulders or top of his chest and:
"[The complainant] stumbled back quite a distance and the next thing I noticed that he was slumped up against the wall."
Another witness, Ms Campbell, said that the two men were walking towards each other and the complainant raised a hand when the appellant was standing in front of him and the appellant put his hands up and the complainant fell back. A Ms Taylor said that the complainant, following a disturbance, had gone to the front of the car and noted the registration number. The complainant then started to walk back inside when one of the others present shouted at him with the result that the complainant "stormed back" toward the car. The appellant got out of the car and "sort of charged towards [the complainant] and pushed him with both hands below the shoulders on the top of his chest". This happened very quickly and the complainant stumbled backwards and hit his head on the wall.
The following passage appears in the cross‑examination of the appellant:
"It happened because of what you did, didn't it?---What, that he hit his head?
Yes?---Yes, that's right.
So you're sorry that you pushed him are you?---Yes, I wish I didn't.
Because it was a bit too hard, wasn't it?---At the time I didn't think so but yes, obviously it was.
Standing back and looking at it now it was a bit too hard, wasn't it?---Yes.
Because you pushed him with a lot of force, didn't you?---No, not at all. I only pushed him with enough force, I thought, to get him away from me.
You said he was storming, your word 'storming' towards you?---Yes, he was approaching me.
All right. He was approaching you. Was he approaching you fast?---Yes, he was walking – he wasn't like running towards me but he was, like, walking towards me pretty fast.
So when you say storming, you are embellishing it, you're exaggerating it a little bit?---No, he was approaching me with a considerable amount of speed but he wasn't running towards me.
He was walking towards you and if you changed the direction of someone you agree with me that you have to use greater force, don't you?---Well, yeah, considerable force.
If he was standing still less force would be needed to knock him over than if he were coming toward you. You agree with that?---I would say so.
That's just common sense, isn't it?---I'd say so.
So you have pushed him hard enough to stop him coming towards you and to send him back 4 metres?---No, he sent himself back. He tripped over his feet.
Did he sort of run backwards then, himself. Is that what you're saying?---No, he didn't run backwards.
You also pushed him so hard that you lifted his feet off the ground. Is that right?---But it wasn't that I lifted his feet off the ground it was because he was coming forwards and I pushed him which made him go backwards from coming forwards.
Well, you told the detectives a number of times that his feet came off the ground?---Yeah, but not as in flew through the air.
It is true though, isn't it, that his feet came off the ground?---Yes, a little bit, yes.
Well, they came off the ground. That's what I'm asking you?---Yes.
They came off the ground because you pushed him hard enough to change his direction and lift his feet off the ground?---I only pushed him with a considerable amount of force to get him away from me. That's it.
You pushed him hard enough, do you agree with me, to lift both his feet off the ground?---I agree with I pushed him hard enough to get him away from me.
We've heard from the doctor that his head hit the wall with considerable force?---Yes, so the doctor says, yes.
Do you remember that evidence? You're not suggesting that's wrong, are you?---I'm not suggesting anything.
You pushed him as hard as you could, didn't you?---No, that's not right.
Did you think to yourself as you were pushing him then that you wouldn't push him as hard as you could?---I was thinking to myself to get him away from me. That's it.
You weren't thinking at all, were you, Daniel? You wanted to push him?---No, I wanted to get him away from me."
It was submitted that the learned trial Judge erred by defining causation for the jury by reference to the words "following directly upon" and "following from". The relevant directions were as follows. The learned trial Judge directed the jury that there were three elements that the Crown had to prove beyond reasonable doubt. The first was that the complainant sustained grievous bodily harm, secondly, that the grievous bodily harm followed directly upon the blow or other act of the accused; and, thirdly, that the accused did the grievous bodily harm unlawfully. His Honour went on to say:
"Can I say that the first element is not really in dispute as I understand the way Mr Hogan spoke to you. He accepted that the complainant ... sustained grievous bodily harm but he raised issues of causation with you. In other words, that the harm followed from something done by the accused and he raised issues that grievous bodily harm wasn't done unlawfully."

The jury were then directed that it was not for the accused to prove any of those matters but for the Crown to satisfy the jury beyond reasonable doubt of the three elements. It was not really in issue that the complainant had suffered grievous bodily harm, namely, an injury that was likely to cause permanent injury to his health. The learned Judge then directed the jury on causation as follows:
"The second element that you must be satisfied beyond reasonable doubt is that the grievous bodily harm followed directly upon the blow or other act of the accused. The Crown says that the accused pushed [the complainant] with such force he was propelled back into the wall some 4 metres away. He was obviously falling as he was going backwards and hit his head against the wall.
The doctor's evidence was that it was that blow that sustained the head injury which is the grievous bodily harm. The case of the accused in that respect is that well, [the complainant] received a push but it wasn't a serious push and he was stumbling down and he fell. In determining that issue really just use your common sense and remember that you're attributing blame and you're attributing blame in the context of a criminal trial. The third element that the Crown must prove beyond reasonable doubt is that the accused did the bodily harm unlawfully."
The learned Judge went on to point out there were certain circumstances where the doing of grievous bodily harm may be authorised, justified or excused by law, namely, where the act was done in self‑defence or in circumstances amounting to an accident. The learned Judge explained that the Crown had to prove beyond reasonable doubt that the accused was not acting in circumstances of self‑defence and also that the grievous bodily harm suffered by the complainant was not suffered by accident.
The learned Judge told the jury that:
"I think it's fair to say that in Mr Hogan's address to you he didn't really push self‑defence.
I think he said to you – used the words, 'an accident was the central issue'. Nevertheless some matters said in evidence – for example, the accused said that Mr Palmer was storming towards him – do raise questions in which I do need to tell you about self‑defence and I do need to tell you what the law says about that. It says this, 'an assault' and when we're talking about assault here we're just talking about the application of force without consent, and we're talking about the push by the accused to [the complainant], so: that assault is not unlawful when it is caused when a person acts in self‑defence in certain circumstances.
It is not the case that a person cannot defend themselves when they are assaulted or when another person is in a position to assault that person when the person attacked does not provoke the assault. It is lawful to use such force as is reasonably necessary to make an effectual defence against the assault or the perceived assault provided that the force is not intended to cause death or grievous bodily harm and is not such as is likely to cause death or grievous bodily harm. It is a matter for you to determine whether the force used in this case by the [appellant] was reasonably necessary to make effectual defence against any assault or perceived assault by the [appellant].
It doesn't matter what the [appellant] thought was reasonably necessary or what his actual state of mind is. It is an objective test but what you think the degree of force used was reasonably necessary in all the circumstances. It is also a matter for you to determine whether it was likely that the assault would cause death or grievous bodily harm. However, if the nature of the assault or perceived assault is such as to cause reasonable apprehension of death or grievous bodily harm and the person acting in self‑defence believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for him to use any force on the person attacking him or in a position to attack him even though such force may cause death or grievous bodily harm to the attacker.
So the Crown must satisfy you that the grievous bodily harm did not occur in circumstances where the accused was acting in self‑defence and I have told you what the law says about self‑defence. It must also satisfy you beyond reasonable doubt that the accused was not acting in circumstances where the grievous bodily harm arose as a result of an accident and at all an event will be an accident, and we are talking about the event here is, not talking about the pushing, we are talking about the injury sustained by the complainant, Mr Palmer, the injury to the head. That will be an accident if the consequences were not intended or foreseen by the accused or would not reasonably have been foreseen by an ordinary person."
In my opinion, counsel for the appellant at the trial was right to put it to the jury that the defence of accident was the central issue which the Crown had to exclude beyond reasonable doubt. Nonetheless, the learned Judge did direct the jury about self‑defence and accident. In my opinion, there was no substance in the contention that there was anything inadequate about the directions concerning causation. The appellant admitted that the complainant hit his head because he had pushed the complainant backwards with both hands [AB 83-85]. To the extent that there were any deficiencies in the directions regarding causation, I do not consider that they in any way resulted in any miscarriage of justice.

Self-Defence

Section 248 of the Code provides that:
"When a person is unlawfully assaulted, and does not provoke the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."
Grounds 2 to 5 of the grounds of appeal as amended at the hearing were that:
"2.The learned trial Judge erred in law by repeatedly commenting to the jury that the issue of self‑defence was not one that was 'really pressed' by the defence which comments may have led the jury to consider that self‑defence was not an issue that they need consider.
3.The learned trial Judge erred in law by failing to direct the jury that to negative self‑defence the Crown was required to prove that the complainant's grievous bodily harm was a probable consequence of the appellant's push.
4.In relation to the count of doing grievous bodily harm, the learned trial Judge erred in law by stigmatising the appellant's push as an assault the likely consequence of which was to confuse the jury.
5.The learned trial Judge erred in law by directing the jury that the appellant's state of mind was irrelevant."
Ground 3 is somewhat puzzling because it harks back to the issue of causation. In my opinion, the issue of self‑defence only arises if the jury were satisfied, first, that the complainant assaulted the appellant. The facts were that there was, at best, a threatened assault by the complainant. Secondly, s 248 only applies where the accused "has not provoked the assault". In the present case it seems clear that the appellant's insult to the complainant provoked the latter to storm towards the appellant. In this context, it is not necessary to decide whether the meaning of provoked in s 248 connotes "provocation" as defined in s 245 of the Code: cf Gray v Smith [1997] Qd R 485.
In my opinion there is no substance in ground 4. The push was clearly an assault and, as I have concluded with respect to ground 1, there was no deficiency in the directions to the jury on the issue of causation.
In my opinion defence counsel made it plain in his closing address that the defence or issue of accident was "the central issue". The jury, however, were clearly directed by the learned Judge that an assault is not unlawful when it is committed when a person acts in self‑defence in certain circumstances.
His Honour went on to direct the jury that:
"It is not the case that a person cannot defend themselves when they are assaulted or when another person is in a position to assault that person when the person attacked has not provoked the assault. It is lawful to use such force as is reasonably necessary to make an effectual defence against the assault or the perceived assault provided that the force is not intended to cause death or grievous bodily harm and is not such as is likely to cause death or grievous bodily harm. It is a matter for you to determine whether the force used in this case by the accused was reasonably necessary to make effectual defence against any assault or perceived assault by the accused.
It doesn't matter what the accused thought was reasonably necessary or what his actual state of mind is. It is an objective test but what you think the degree of force used was reasonably necessary in all the circumstances. It is also a matter for you to determine whether it was likely that the assault would cause death or grievous bodily harm. However, if the nature of the assault or perceived assault is such as to cause reasonable apprehension of death or grievous bodily harm and the person acting in self‑defence believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for him to use any force on the person attacking him or in a position to attack him even though such force may cause death or grievous bodily harm to the attacker.
So the Crown must satisfy you that the grievous bodily harm did not occur in circumstances where the accused was acting in self‑defence and I have told you what the law says about self‑defence."
It was conceded by the Crown that the phrase "perceived assault" in the sixth line of the passage just quoted would have been better expressed as "an assault perceived", but the learned trial Judge had already explained the matter correctly in the preceding sentence. The force used by the appellant constituted an assault in the sense of a touching without consent and pushing the complainant across the driveway, but the jury were told more than once that the onus was on the Crown to prove that the assault was unlawful by excluding both self‑defence and accident beyond a reasonable doubt.
As has already been seen, the complainant did not actually assault the appellant. At its highest the evidence was that the complainant "stormed" towards the appellant after the latter had called the complainant a "fucking idiot" when he saw the complainant taking details of the registration of his motor vehicle. At its highest the fact that the complainant was storming toward the appellant may have caused the appellant to anticipate he was about to be assaulted, but he was not in fact assaulted. What the appellant called the complainant was probably an "insult" within the definition of "provocation" in s 245 of the Code.
On the facts I do not consider that the evidence was such that would support a conclusion that the appellant had been "unlawfully assaulted" for the purposes of s 248 of the Code. The situation was complicated by the insult which the appellant uttered which prompted or provoked the complainant to storm towards the appellant.
Counsel for the appellant conceded that there was no evidence that the nature of the complainant's actions was such as to cause reasonable apprehension of death or grievous bodily harm. However, the learned trial Judge was obliged to give a direction about the second paragraph of s 248. Had he not, then, if the jury were satisfied without more that the act was likely to cause grievous bodily harm, self‑defence would not have been open.
The degree of force necessary is to be judged objectively in the light of all the circumstances, as the learned trial Judge directed the jury. When the directions are read as a whole, I do not consider there was any misdirection. It was not necessary to define the meaning of the word "likely" which has an ordinary commonsense meaning. In my opinion, there was no substance in grounds 2 to 5.

Accident

Grounds 6 and 7 of the grounds of appeal were as follows:
"6.The learned trial Judge erred in law by directing the jury that the applicant's state of mind was irrelevant.
7.The learned trial Judge erred in law by only putting the Crown case and failing to put the defence case to the jury."
Section 23 of the Criminal Code provides that:
"Subject to the express provisions of this Code relating to negligent acts and omissions, 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."
The relevant "event" in the context of the subject of the offence was the grievous bodily harm: Kaporonovksi v The Queen (1973) 133 CLR 209 at 215 per McTiernan ACJ and Menzies J; and at 231 – 232 per Gibbs J.
The defence of accident having been raised, it was for the Crown to negative that defence by proof beyond reasonable doubt that the grievous bodily harm was not accidental. In that context, it needs to be understood that "grievous bodily harm" embraces two possible categories of event, namely:
(a)bodily injury of such a nature as to endanger, or be likely to endanger life; and
(b)bodily injury of such a nature as to cause, or be likely to cause, permanent injury to health.
In this case, the Crown alleged that the complainant suffered grievous bodily harm, which was done to him by the appellant by pushing him with such force that he stumbled and fell backwards into a brick wall. As a consequence, he suffered a bodily injury of such a nature as to be likely to cause permanent injury to his health. There was medical evidence tendered by consent by Dr Appiah that, as the result of hitting his head against the wall after he had been pushed by the appellant, the complainant suffered brain injury that was likely to cause permanent injury to his health.
In my opinion, so far as the offence of doing grievous bodily harm is concerned, where it is alleged that the accused intended to cause some bodily harm by an act such as a blow or push with sufficient force to cause the complainant to fall or stumble and fall to the ground, the jury should be directed that:
(a)they must be satisfied beyond reasonable doubt that the push by the accused caused the grievous bodily harm;
(b)they should acquit the accused unless they are satisfied beyond a reasonable doubt that the suffering by the complainant of the grievous bodily harm was not an event occurring by accident; and
(c)that the suffering of the grievous bodily harm would be an accident if grievous bodily harm was not intended by the accused, was not foreseen by him and not reasonably foreseeable as the consequence of the conduct of the accused.
That such directions would be appropriate in this case is implicit in my judgment in Hooper v The Queen [2000] WASCA 394 at pars [10] – [13]; and see Ford v R [1972] WAR 36 at 43 per Jackson CJ, Virtue SPJ and Lavan J; and see Kaporonovski v The Queen, supra, at 215 per McTiernan ACJ and Menzies J; and at 231 – 232 per Gibbs J. In particular, his Honour said at 231:
"It must now be regarded as settled that an event occurs by accident in the meaning of the rule, if it was a consequence that was not in fact intended or foreseen by the person and would not reasonably have been foreseen by an ordinary person."
This passage was specifically adopted and approved in R v Taiters (1996) 87 A Crim R 507 at 509.
In directing the jury in relation to accident, the learned Judge said that the Crown:
"... must also satisfy you beyond reasonable doubt that the accused was not acting in circumstances where the grievous bodily harm arose as a result of an accident and at law an event will be an accident, and we are talking about the event here is, not talking about the pushing, we are talking about the injury sustained by the complainant, Mr Palmer, the injury to the head. That will be an accident if the consequences were not intended or foreseen by the accused or would not reasonably have been foreseen by an ordinary person.
Well the Crown in opening too accepted that it had to satisfy you that the grievous bodily harm did not occur by accident. The [counsel for the Crown] said to you that it is not suggested by the Crown that the accused intended the grievous bodily harm and he also said to you that it is not suggested by the Crown that the accused foresaw the grievous bodily harm but what the Crown says to you is that the force of the push was such that it should have been reasonably foreseen by an ordinary person that an injury of the type of injury that occurred to Mr Palmer would occur. So the position is that in relation to accident it is a purely objective test.
Put yourself in your mind's eye at the scene. You're there. You observe the push and in the knowledge that Mr Palmer has suffered grievous bodily harm then is it reasonably foreseeable that that would occur? So that's the test. It's not a subjective test. It's not what the accused intended or foresaw. The Crown doesn't rely on that. You simpy want an objective test. The Crown says to you that an ordinary person would reasonably have foreseen that this was the likely result of a push of that nature because of course the Crown's case is that this was a very forceful push.
You heard Mr Hogan on behalf of the accused say to you that accident is the central issue in relation to this matter. As I have said to you the Crown has to prove all of the other elements, but in relation to that aspect the Crown has to satisfy you that the doing of the grievous bodily harm was unlawful; that is, it wasn't excused by the law; that is, it wasn't an accident; that is, the Crown must satisfy you beyond reasonable doubt that the grievous bodily harm would have [been] reasonably foreseen by an ordinary person, so it's an objective test.
Put yourself at the scene. You're there. You observe the nature of the push and ask yourself the question, would that have been foreseen by an ordinary person? That is, would the nature of the injury and the final injury suffered by Mr Palmer have reasonably been foreseen by an ordinary person? If the Crown has satisfied you beyond reasonable doubt of that then the Crown will have satisfied you beyond reasonable doubt that this matter did not occur by way of an accident."
Later in his directions the learned Judge reminded the jury that counsel for the Crown contended that it was the force applied by the appellant to the complainant which caused the complainant to stumble backwards and hit the wall. As the learned Judge put it:
"No other reason for Mr Palmer going back and hitting his head on the brick wall other than the fact that he was pushed, the Crown says, with some force. The accused lifted Mr Palmer off the ground – both feet. His head hit the wall. The doctor said that was with some force and indicated to you that photographs indicate there is hair embedded in the wall. He suggested to you that 4 metres was a considerable distance. He then got onto the question of accident.
Remember that I told you the Crown has to satisfy you beyond reasonable doubt that it was not an accident, and he said to you in the circumstances of this case, using the objective test, that it was reasonably foreseeable that Mr Palmer would suffer serious harm. He's using the expression 'serious harm' there for grievous bodily harm. Remember we're talking about grievous bodily harm. He was surrounded by hard surfaces and applying an objective test it's reasonably foreseeable that what happened, that is the grievous bodily harm to Mr Palmer, would happen."

In directing the jury with respect to the alternative count of doing bodily harm, the learned Judge repeated that:
"... the Crown only has to satisfy you that it was reasonably foreseeable to an ordinary person that what the accused did was likely to cause bodily harm.
That is if you get to the stage where you're considering count 2 the Crown has to satisfy you beyond reasonable doubt that it was not an accident, that it would have been reasonably foreseen by an ordinary person that [the complainant] would suffer bodily harm."
At 11.30 am on 22 November 2000 the learned Judge completed his address to the jury. The jury then retired to consider their verdict. At 2.22 pm the jury returned following the receipt by the learned Judge of a note from the jury as follows:
"We the jury require documents explaining explicitly the charges and definitions unlawfully and grievous bodily harm and the three elements, unlawful assault and thereby did him bodily harm and the three elements."
The learned Judge explained to the jury that there were two counts on the indictment but they need not consider count 2 unless they concluded that their verdict was "not guilty" in relation to count 1. His Honour said in relation to grievous bodily harm:
"... [T]here are three elements that go to make up that offence. Firstly, that the complainant sustained grievous bodily harm. All right, and as I said to you, Mr Hogan on behalf of the accused really accepted that the complainant had sustained grievous bodily harm. He has a head injury. There doesn't appear to be any dispute about that so you shouldn't have any difficulty about that aspect.
The second is that the harm followed directly upon the blow or other act of the accused. Well, in respect of that the Crown's case is that this was a very forceful push. He pushed [the complainant] some 4 metres from where he was originally pushed all the way to the wall and he hit his head. The accused's case in relation to that is that there was some stumbling as Mr Palmer went back. He has then fallen and that the accused is not really responsible for that but that's a causation question and the Crown has to satisfy you beyond reasonable doubt that it was the push that caused the injury in that sense.
As I said to you, you just use your common sense about that remembering, of course, that you are dealing with the matter in the context of a criminal trial and the third is that the accused did the grievous bodily harm unlawfully. So that's the third element, unlawfully, and I told you that there were two elements of that. The Crown has to satisfy you beyond reasonable doubt that the accused was not acting in circumstances of self‑defence and I told you what the law says about self‑defence. I also said that that's not really pressed by Mr Hogan on behalf of the accused.
Nevertheless, it is a matter that you need to consider because it could arise on the facts and the other aspect of it being unlawful; that is, that it was not an accident which in the context of this case required the Crown to satisfy you that the grievous bodily harm would have reasonably been foreseen by an ordinary person. That's the test. An independent bystander or observer at the scene, put yourself in your own mind at the scene at the time, determine what the push is and then ask yourselves the question would the grievous bodily harm would have reasonably been foreseen by an ordinary person and that's really a matter of what you determined was the force of the push, in effect."
The learned Judge then repeated the directions relevant to the alternative count 2.
It is of some significance that neither with respect to the summing up to the jury, nor in respect to the repetition of the points to which I have just referred was any exception taken by counsel for the appellant at the trial, save in respect to seeking a redirection, after the directions to which I have just referred, to the effect that there were four elements in the offence of assault occasioning bodily harm, as causation was just as much an issue for that offence as it was for the offence of doing grievous bodily harm. That point was then clarified by the learned Judge for the benefit of the jury.
After deliberating for little more than an hour the jury returned with a verdict that the appellant was guilty of the offence of doing grievous bodily harm to the complainant.
It was submitted that the learned Judge erred in law by emphasising his understanding of the objective nature of the test when the test is not purely objective. It was contended that his Honour should have directed the jury that part of their inquiry was to consider what would have been present in the mind of an ordinary person acting in the circumstances of the accused with the usual limited time for assessing probabilities. This proposition was founded on a passage in Taiters, supra, in the joint judgment of Macrossan CJ, Pinkus JA and Lee J at 511 – 512 where their Honours said:
"In undertaking the necessary analysis, it has to be said first that an event cannot qualify as an accident within the meaning of s 23 simply because a reasonable person, although regarding the consequence as being a likely outcome, would have thought it more probable that it would not happen than it would. To conclude differently on this point would, it is suggested involve a rejection of the concept expounded in Kaparonovksi. The discussion may be carried out and instances at either end of the spectrum looked at. If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against, can, when it happens, be fairly described as accidental.
The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. The subjective part of the expression being considered under s 23 (an event which occurs by accident), ie when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood should be regarded as those discussed in connection with the objective test.
By way of summary and looking at the matter from the point of view of the prosecution, it can be said that if the circumstances of the case call for the s 23 defence of accident, ie that based on the words 'an event which occurs by accident', to be excluded, the applicable onus will be sufficiently stated if the jury is told that:
'The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.'
This casts the matter in an acceptable positive form. If this direction is given it will be desirable for the trial judge to add that in considering the possibility of an outcome the jury should exclude possibilities that are no more than remote and speculative."
In the present case, if the jury were satisfied beyond reasonable doubt that the appellant pushed the complainant in the chest with such

force that he stumbled back across the driveway and fell against the wall in the manner described in the evidence, and suffered the injury to his head, I consider that it was clearly open to them to conclude that the accused, or a reasonable person in the position of the accused, ought reasonably to have foreseen that the push would cause him to be forced backwards in such a way that it would cause him to stumble and fall on the driveway or hit his head against the wall on the other side of the driveway.

The Crown case was that the force of the push was such that it would have been reasonably foreseen by an ordinary person that an injury of the type of injury that occurred to Mr Palmer would occur. The Crown did not suggest that the appellant intended the grievous bodily harm or foresaw it. It was the Crown case that the force of the push was such that it would have been reasonably foreseen by an ordinary person that an injury of the type that occurred to the complainant would occur. While as a matter of law the test in relation to accident is not purely objective, there is normally an alternative available to actual foresight on behalf of the accused but not relied upon by the Crown in this case. In my opinion, it was open to the Crown to put the matter in that way. In any event, the evidence was such that, in my opinion, there has been no miscarriage of justice. Since writing the above, I have had the advantage of reading in draft the reasons to be published by Anderson J. I agree with those reasons.
For these reasons, I consider that none of the grounds of appeal have been made out with the consequence that, while I would grant leave to appeal, I would dismiss the appeal.
ANDERSON J: The facts are fully set out in the judgment of the Chief Justice, which I have had the opportunity to read in draft. There is no need for those facts to be repeated. I agree with the Chief Justice that the appeal must be dismissed. My reasons are as follows.
In this application, the original grounds of appeal were two in number and were in handwriting, prepared by the appellant in person. When the application was called on, Mr Jones, who appeared for the appellant, sought and obtained leave to abandon those grounds and to substitute for them seven entirely new grounds. These grounds are precisely formulated and, in my view, the application should stand or fall on the grounds so formulated, although Mr Jones' submissions included submissions which went outside them.

Ground 1 pleads that:
"1.The learned trial Judge erred in law when he directed the jury that causation was established if the complainant's grievous bodily harm 'followed directly upon' or 'followed from' the applicant's push."
The evidence relevant to causation is not much in dispute. The appellant either struck or pushed the complainant and the complainant went backwards against a brick wall. His head struck the wall, whereby he suffered permanent damage to his brain.
Having correctly informed the jury that there was no real issue that the complainant sustained grievous bodily harm, the trial Judge told them that the question of causation was in issue. He said that defence counsel "raised issues of causation with you. In other words that the harm followed from something done by the accused … " He told the jury they would have to be satisfied beyond reasonable doubt "that the grievous bodily harm followed directly upon the blow or other act of the accused". He reminded the jury that the Crown case was that "the accused pushed Mr Palmer with such force that he was propelled back into the wall some 4 metres away. He was obviously falling as he was going backwards and has hit his head against the wall". The trial Judge then said:
"The case of the accused in that respect is that well, Mr Palmer received a push but it wasn't a serious push and he was stumbling down and he fell. In determining that issue really just use your common sense and remember that you're attributing blame and you're attributing blame in the context of a criminal trial."
During the course of their deliberations, the jury asked for a redirection on the elements of the offence and the relevant part of the redirection was as follows:
"The second [element] is that the harm followed directly upon the blow or other act of the accused. Well, in respect to that the crown's case is that this was a very forceful push. It pushed Mr Palmer some 4 metres from where he was originally pushed all the way to the wall and he hit his head. The accused's case in relation to that is there was some stumbling as Mr Palmer went back. He has then fallen and that the accused is not really responsible for that but that's a causation question and the crown has to satisfy you beyond reasonable doubt that it was the push that caused the injury in that sense … As I said to you, you just use your commonsense about that remembering, of course, that you are dealing with the matter in the context of a criminal trial … "
It is submitted on behalf of the appellant that defining causation by using the terms "following directly upon" and "following from", was a misdirection prejudicial to the appellant.
I do not agree that this direction caused the trial to miscarry. In their context, the terms "following directly upon" and "following from" denoted direct causal connection. Taken as a whole, the direction conveyed to the jury that they could not convict the appellant unless they were satisfied that there was a causal connection between the appellant's conduct and the complainant's injury sufficient to attract criminal responsibility; and that that was a question to be determined by them applying their common sense and appreciating that they were engaged in the task of fixing legal blame in the context of a criminal trial. The direction satisfies the requirements laid down by Burt CJ in Campbell v The Queen [1981] WAR 286 at 290 and approved by the High Court in Royall v The Queen (1991) 172 CLR 378 per Mason CJ at 387, Deane and Dawson JJ at 411 ‑ 412 and Toohey and Gaudron JJ at 423.
I should add that I do not accept the further submission made by Mr Jones, which was not the subject of a ground of appeal, that it was necessary for the trial Judge to tell the jury that the Crown must prove that the appellant's conduct was a "substantial" or "significant" cause of the injury. There was no need to do so in this case, nor to direct the jury in more elaborate terms as to legal cause and effect, remoteness, foreseeability and the like: Campbell v The Queen (loc cit).
This ground of appeal has not been made out.
The second amended ground of appeal is in the following terms:
"2.The learned trial Judge erred in law by repeatedly commenting to the jury that the issue of self‑defence was not one that was 'really pressed' by the defence which comments may have led the jury to consider that self‑defence was not an issue that they need consider."
This amounts to a complaint that the trial Judge, in effect, withdrew the question of self‑defence from the jury's consideration. In my opinion, this is plainly not so. Although he did several times tell the jury (as was the fact) that defence counsel did not "push" or "press" self‑defence and did not put it forward as central to the appellant's defence, the trial Judge made it clear to the jury that, in considering whether the element of unlawfulness had been established, they would have to be satisfied beyond reasonable doubt that the accused was not acting in self‑defence. He referred specifically to the evidence which raised the issue of self‑defence; that is, the conduct of the complainant in "storming towards" the appellant. He gave to the jury extensive directions on self‑defence. Whether those directions were adequate is another question. However, I cannot accept the submission that the jury were invited to put self‑defence to one side or, as is pleaded in this ground of appeal, to "consider that self‑defence was not an issue that they need consider". The ground of appeal is not made out.
The third ground of appeal is in the following terms:
"3.The learned trial Judge erred in law by failing to direct the jury that to negative self‑defence the Crown was required to prove that the complainant's grievous bodily harm was a probable consequence of the applicant's push."
As I understood the argument put in support of this ground of appeal, it was that the jury were not instructed as to what is meant by "likely" in the first paragraph of s 248 of the Code. That section is in the following terms:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."
It must be accepted, of course, that if the exculpatory provisions of this section were available to the appellant on the facts - if the jury was satisfied that the appellant was unlawfully assaulted and had not provoked the assault so that it was lawful for him to use reasonable force to defend himself - he could not be deprived of the benefit of those exculpatory provisions, unless there was proof beyond reasonable doubt that the force he used was intended or likely to cause death or grievous bodily harm.
As I have noted, the issue of self‑defence arose because there was evidence that the complainant "stormed" towards the appellant immediately before the happening of the events by which the complainant was injured. It was open to the jury to regard that conduct on the part of the complainant as an assault within the extended definition of the term in s 222 of the Code, that is, a bodily act or gesture comprising a threat to apply force to the person of the appellant. (See Beckford v The Queen [1988] AC 130 as to the common law right to make defence against a threatened attack.) It was open to the jury to conclude that, in striking or pushing the complainant, the appellant was defending himself against an assault in the form of a threatened attack. It was therefore necessary for the trial Judge to give a self‑defence direction, and he did so. The relevant part of the trial Judge's direction was as follows:
"It is not the case that a person cannot defend themselves when they are assaulted or when another person is in a position to assault that person when the person attacked has not provoked the assault. It is lawful to use such force as is reasonably necessary to make an effectual defence against the assault or the perceived assault provided that the force is not intended to cause death or grievous bodily harm and is not such as is likely to cause death or grievous bodily harm. It is a matter for you to determine whether the force used in this case by the accused was reasonably necessary to make effectual defence against any assault or perceived assault by the accused [sic complainant]. It doesn't matter what the accused thought was reasonably necessary or what his actual state of mind is. It is an objective test but what you think the degree of force used was reasonably necessary in all the circumstances. It is also a matter for you to determine whether it was likely that the assault would cause death or grievous bodily harm."
Although it is perhaps possible to be critical of his Honour's syntax, and there was a mistaken reference to the accused rather than to the complainant at the place indicated above, the meaning of this direction is, on the whole, quite clear and conveys to the jury that the appellant was not guilty if he used no more force than was reasonably necessary to defend himself in a manner not intended, and not likely, to cause the harm that befell the complainant. That was all that was required in this case. There was no need to elaborate on what "likely" means.

I would not uphold this ground.
Ground 4 is in the following terms:
"4.In relation to the count of doing grievous bodily harm, the learned trial Judge erred in law by stigmatising the applicant's push as an assault the likely consequence of which was to confuse the jury."
This ground refers to that part of the self‑defence direction set out above in which the trial Judge said, "It is also a matter for you to determine whether it was likely that the assault would cause death or grievous bodily harm". It was submitted that the trial Judge should not have used the word "assault" in referring to the appellant's act of striking or pushing the complainant, because to do so tended to confuse the jury and to prejudice the appellant.
I am not persuaded that any confusion or prejudice was created by the use of the word "assault" in this part of the charge. It might have been better to avoid pejorative language in referring to the appellant's conduct. But there was no dispute that the appellant had at least pushed the complainant. To describe that as an assault involved no error and it was not unfair to the appellant. There could be no confusion as to whose conduct the trial Judge was referring to. In the context of the whole of this part of the charge, he was plainly referring to the appellant's conduct.
I would not uphold this ground.
Ground 5 is in the following terms:
"5.The learned trial Judge erred in law by directing the jury that the applicant's state of mind was irrelevant."
This ground refers to that part of the direction in which his Honour said:
"It doesn't matter what the accused thought was reasonably necessary or what his actual state of mind is. It is an objective test but what you think the degree of force used was reasonably necessary in all the circumstances."
It is clear that these statements by the trial Judge dealt only with how the jury should approach the question of whether the force used by the appellant was more than reasonably necessary to make an effectual defence to a minor assault, that is, an assault which was not of such a nature as to cause reasonable apprehension of death or grievous bodily harm. This was made clear because the trial Judge went on to expressly distinguish between such a case and the case of an assault which was of the more serious kind and to tell the jury that, in the latter case, the state of mind of the person defending himself was a matter to be considered.
The question raised by this ground of appeal therefore is whether, in a case which falls within the first paragraph of s 248, it is wrong to tell the jury that the extent of permissible force is to be determined without any regard for the accused's state of mind. I think it is, with respect. Even in the case of self‑defence against a minor assault, that is, a case to which the first paragraph of s 248 applies, it goes too far to say, as his Honour did, that "it doesn't matter what the accused thought was reasonably necessary or what his actual state of mind is". It is true that, under the first paragraph of s 248, the jury is required to determine as an objective fact the extent of the permissible force. However, what was reasonably necessary for an effectual defence must be judged in the light of the situation confronting the accused; and his state of mind engendered by that situation may not always be entirely irrelevant. In Marwey v The Queen (1977) 138 CLR 630, Barwick CJ put it like this, at 638:
"The permission of the paragraph [the first paragraph in s 248] is to use 'such force … as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended … to cause death or grievous bodily harm'. In that case, the determination of the extent of the permissible force is directly committed to the jury as an objective fact. But, of course, as I have already indicated, if it be accepted that the accused believed on reasonable grounds that what he did was necessary for his defence against the deceased's attack, it could scarce be denied that what he did was in fact reasonably necessary for his effectual defence. But, because the section throws on the jury the determination of a question of fact, the word 'reasonably' must be used to ensure the width of the question for them."
It is, perhaps, a distinction not altogether easy to draw. It may be a fair summary to say that, whereas under the second paragraph of s 248 the belief of the accused is critical, under the first paragraph of s 248 the belief of the accused, although not definitive, may be one of the circumstances which the jury might take into account in determining objectively whether the force used by the accused was reasonably necessary. In R v Lawrie [1986] 2 Qd R 502, Connolly J said, at 505:
"So far as the first paragraph, the primary rule, is concerned, it is obviously objective in terms. This is not to say however that what is reasonably necessary to make effectual defence will not depend on the circumstances as perceived by the defender. An honest and reasonable belief that a blow is about to be struck may justify a pre‑emptive blow."
See also the commentary in Carter's Criminal Law of Queensland, vol 1, page 2633, in which the authors say:
"Although what was reasonable depended on the nature of the attack, if the moment was one of crisis for someone who was in imminent danger, it might be necessary for that person to take instant action to avert that danger, in which case if the defendant showed that he or she had only done what he or she honestly and instinctively thought was necessary in a moment of unexpected anguish, that would be very strong evidence that the defensive action taken was reasonable. See R v Whyte [1987] 3 All ER 416; (1987) 85 Cr App R 283."
Here, the appellant's case was that he only pushed the complainant with enough force "to get him away from me" (AB 85). It was not his case that in the anguish of the moment, he honestly believed he had to strike or push the complainant with such force as to cause the complainant to travel backwards over a distance of some four metres and hit a brick wall so hard as to cause a serious head injury. His case was that he did not use that degree of force and never intended to do so. Therefore, the direction that the jury need not be troubled with the appellant's state of mind in considering the reasonableness of the force which he used did not prejudice the appellant. It resulted in no miscarriage of justice. I cannot see that it deprived the appellant of a fair trial or of the chance of an acquittal.
I would not uphold this ground.
Ground 6 is in the following terms:
"As to the issue of accident:
6.The learned trial Judge erred in law by directing the jury that the applicant's state of mind was irrelevant."
The defence of accident is provided by s 23 of the Code, the first paragraph of which is as follows:
"Subject to the express provisions of this Code relating to negligent acts and omissions, 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."
In this case, the reference to "omission" and to "an act … which occurs independently of the exercise of his will" can be put to one side. This was not a case of a negligent omission. Nor was it a case of an act which occurred independently of the exercise of the appellant's will. For the purposes of s 23 of the Code, the "act" was the striking of the complainant or the pushing of him: Van Den Bemd v The Queen [1995] 1 Qd R 401; 70 A Crim R 489. That did not occur independently of the exercise of the appellant's will. Such a case was never put. The appellant's case was that the consequence of his action - the head injury - was an accident.
It appears now to be settled that the reference to "event" in s 23 is a reference to the consequential event, that is, the event consequential upon the "act or omission": R v Taiters (1996) 87 A Crim R 507 at 509. An event occurs by accident within the meaning of s 23 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: Kaporonovski v The Queen (1973) 133 CLR 209 per Gibbs J at 231. An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element.
Obviously, therefore, where the defence of accident is raised, the accused's state of mind at the material time may be relevant. That would be so where the Crown case is that the accused intended to inflict grievous bodily harm or actually foresaw that his conduct may have that consequence. In such a case, it would be wrong for the trial Judge to tell the jury that the accused's state of mind was not relevant. But this was not such a case. The Crown did not contend that the appellant intended or foresaw the serious consequences of his conduct. The primary direction was in the following terms, with the parts of particular relevance emphasised:
"It [the crown] must also satisfy you beyond reasonable doubt that the accused was not acting in circumstances where the grievous bodily harm arose as a result of an accident and at law an event will be an accident, and we are talking about the event here is, not talking about the pushing, we are talking about the injury sustained by the complainant, Mr Palmer, the injury to the head. That will be an accident if the consequences were not intended or foreseen by the accused or would not reasonably have been foreseen by an ordinary person. Well, the crown in opening to you accepted that it had to satisfy you that the grievous bodily harm did not occur by accident. He said to you that it is not suggested by the crown that the accused intended the grievous bodily harm and he also said to you that it is not suggested by the crown that the accused foresaw the grievous bodily harm but what the crown says to you is that the force of the push was such that it would have been reasonably foreseen by an ordinary person that an injury of the type of injury that occurred to Mr Palmer would occur. So the position is that in relation to accident it is a purely objective test.
[p 108] Put yourself in your mind's eye at the scene. You're there. You observe the push and in the knowledge that Mr Palmer has suffered grievous bodily harm then is it reasonably foreseeable that that would occur? So that's the test. It's not a subjective test. It's not what the accused intended or foresaw. The crown doesn't rely on that. You simply want an objective test. The crown says to you that an ordinary person would reasonably have foreseen that this was the likely result of a push of that nature because of course the crown's case is that this was a very forceful push.
You heard Mr Hogan on behalf of the accused say to you that accident is the central issue in relation to this matter. As I have said to you the crown has to prove all of the other elements, but in relation to that aspect the crown has to satisfy you that the doing of the grievous bodily harm was unlawful; that is, it wasn't excused by the law; that is, it wasn't an accident; that is, the crown must satisfy you beyond reasonable doubt that the grievous bodily harm would have reasonably foreseen by an ordinary person, so it's an objective test.
Put yourself at the scene. You're there. You observe the nature of the push and ask yourselves the question, would that have been foreseen by an ordinary person? That is, would the nature of the injury in the final injury suffered by Mr Palmer have reasonably been foreseen by an ordinary person? If the crown has satisfied you beyond reasonable doubt of that then the crown will have satisfied you beyond reasonable doubt that this matter did not occur by way of an accident."
In my opinion, this direction is substantially in the terms of the model direction laid down by the Queensland Court of Appeal in R v Taiters (supra) at 512, where the court said:
" … if the circumstances of the case call for the s 23 defence of accident … to be excluded, the applicable onus will be sufficiently stated if the jury is told that:
'The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome'."
The omission from the trial Judge's direction of the words "as a possible outcome" did not prejudice the appellant in this case. If anything, the omission of those words favoured the appellant.
Counsel for the appellant drew our attention to other statements made by the trial Judge on the question of accident, but none of these other statements outweighed or compromised, or detracted from, the direction which is set out above. If anything, they reinforced the effect of that direction.
This ground is not made out.
Ground 7 is in the following terms:
"7.The learned trial Judge erred in law by only putting the Crown case and failing to put the defence case to the jury."
The defence case, in its essence, was that the appellant gave the complainant a push, which he did not foresee and which a reasonable person in his position would not have foreseen would result in the complainant receiving the head injury which he sustained. In support of that case, he gave evidence that the push was not a forceful push, but only

sufficient to push the complainant away from him and that the complainant stumbled backwards and fell against the wall; and that this was neither foreseen by him nor reasonably foreseeable. In my opinion, that case was fairly and adequately put to the jury in the direction as a whole.

I would not uphold this ground of appeal.
I would grant leave to appeal but dismiss the appeal.
McKECHNIE J: I have had the benefit of reading in draft the judgments of Malcolm CJ and Anderson J. I agree with each of them that leave should be granted but that the appeal should be dismissed.
I am in general agreement with the reasons of Malcolm CJ for reaching this conclusion. However, in respect of grounds 3, 4 and 5, I reach this conclusion for the reasons expressed by Anderson J.