The Queen v Auld[1997] QCA 202

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 80 of 1997

Brisbane

[R. v. Auld]

THE QUEEN

v.

GARRY BRYAN AULD

Appellant

Davies J.A.

McPherson J.A.

Lee J.

Judgment delivered 11 July 1997

Separate reasons for judgment of each member of the Court each concurring as to the order made.

APPEAL DISMISSED.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 11 July 1997

I have had the advantage of reading the reasons for judgment of McPherson J.A. and Lee J.  Like McPherson J.A. I agree with Lee J. that the first ground of appeal must be rejected for the reasons which he gives.

As to the arguments with respect to accident (s. 23) and s. 289, by far the strongest inference, in my view, was that the appellant intended to strike the complainant on the leg with the knife.  Nevertheless it was possible to infer that he did not have that intention.

Even if he did not have that intention, accident under s. 23 was negatived if "an ordinary person in the position of the accused would reasonably have foreseen the event (the knife wound) as a possible outcome":  R. v. Taiters;  ex parte Attorney-General [1997] 1 Qd.R. 333 at 338.  Plainly, for reasons given by McPherson J.A., an ordinary person would have reasonably foreseen that event as a possible outcome.

Once it is accepted that an ordinary person bringing a knife of this kind swiftly down towards the complainant's leg would reasonably have foreseen the occurrence of the wound, it is inconceivable that s. 289 would have any relevance.  In the first place it imposes a duty on persons in charge of dangerous things and seems to be concerned with omissions to perform an act or acts in observance of that duty.  But even if it is appropriate to apply it more widely than this, then the duty there expressed to use reasonable care and take reasonable precautions to avoid danger to life, safety or health of a person (by, in this case, wounding) would invariably be breached where, in consequence of the deliberate downward movement of a knife as in this case, injury to the complainant's leg would reasonably have been foreseen by an ordinary person.

In my view it was unnecessary to direct on s. 289 and the second ground of appeal must also fail.  I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 11 July 1997

The facts relevant to this appeal against a conviction for wounding are set out in detail in the reasons for judgment of Lee J., which I have had the advantage of reading.  I agree with what his Honour has said as regards the first question on the appeal.  As to the second, for present purposes, it is enough to say that, using a Wiltshire Staysharp knife, the appellant inflicted a cut (which required suturing) on the calf of the complainant’s right leg.  Before doing that, he had said he was going to kill her, and had drawn the knife across her throat, but without breaking the skin, and had threatened to cut off her fingers.

At the time of the offence, the complainant was sitting down.  The appellant was standing in front of her.  He turned around, she said, and faced away from her.  As he did so, she lifted her right leg up and crossed it over her left leg.  He then turned back again and, bringing his hand down, struck her with the knife in the leg causing the wound complained of.  Before he did that, the knife, she said, was in his hand held up near his head.  He brought it down upon her in what she described as “one motion”.  Her detailed testimony about how the knife struck her was not contradicted by the appellant, whose evidence was that he was absent when she was cut.

According to the complainant’s account, when the appellant saw what he had done, he said “I didn’t mean to do it”.  However, wounding under s. 323(1) of the Criminal Code is, within the meaning of s. 23(2), an offence of which intention to cause a result is not an element.  To constitute the offence of wounding, it is enough that there is a complete parting of the “true” skin, which in this case there was. The appellant is therefore criminally responsible for wounding the complainant unless excused from responsibility by s. 23(1), or by some other provision of the Code.

Section 23(1) provides that “... a person is not criminally responsible for an act or omission which occurs independently of the exercise of the will, or for an event that occurs by accident”.  In this instance the “event” was the penetration or severing of the complainant’s skin.   The “act” was the downward movement made by the appellant with the knife in his hand.  There is no doubt at all that it was a willed act within the meaning of s. 23(1). The suggestion was offered that the appellant might at the time have been under the influence of drugs; but, even so, it would not operate under s. 23(1) to exculpate him from criminal responsibility.  See Re Bromage [1991] 1 Qd.R. 1, 5.  Intoxication or stupefaction by drugs may attract s. 28 of the Code; but it does so only if the state of mental disorder induced by drugs is caused without intention on the part of the offender: s. 23(1), and not if that person has caused himself to become intoxicated or stupefied: s. 28(2).  In terms of s. 28(3), as well as s. 23(2), wounding under s. 323(1) is an offence of which intention to cause a result is not an element.

What remains for consideration is (or is said to be) the “second limb” of s. 23(1).  It excludes criminal responsibility if the “event” occurs “by accident”.  I have said that in this instance the “event” was the penetration or severance of the skin or, in other words, the wounding itself.    The word “event” in s. 23(1), connotes the consequence of an act: R. v. Taiters, ex parte Attorney-General [1997] 1 Qd.R. 333, 335; a physical result of human conduct; or, put more shortly, an outcome: see R. v. van den Bemd [1995] 1 Qd.R. 401, at 404; R. v. Taiters [1997] 1 Qd.R. 333, 338.  It has the same, or much the same, meaning as the word “result” in s. 23(2) and “specific result” in s. 28(2).

If the second limb of s. 23(1) fell to be considered here, it would call for inquiry whether the wounding in this case was a reasonably foreseeable result or outcome of the appellant’s downward movement with the knife: see R. v. van den Bemd [1995] 1 Qd.R. 401; R. v. Taiters [1997] 1 Qd.R. 333, 338.  It is a question that falls to be decided on an objective assessment of the consequences of the appellant’s act to be tested from the standpoint of what an ordinary person would reasonably have foreseen.  It is true that, if the appellant in fact intended to wound the complainant, he would without more be criminally responsible for that result, consequence, or event.  An event cannot be considered to be accidental if the person who brought it about actually foresaw and so intended it: cf.  R. v. Tralka [1965] Qd.R. 225, at 233; but, whether or not he did so, it is enough if the jury is satisfied that the event was one that an ordinary person  would have foreseen.

In the present case the appellant complains of the judge’s failure to direct the jury to consider accident under s. 23(1).  Presumably his Honour thought that the evidence admitted of no interpretation other than that the wounding was intentional.  It might perhaps have been simpler if he had directed them to consider accident.  It would have avoided the need to do so now on appeal.  But the omission cannot be said to have deprived the appellant of a chance of acquittal that was fairly open to him.  No ordinary person placed in the position of the appellant could possibly have been left in any doubt that wounding the complainant was a reasonably foreseeable outcome of bringing the knife down in the direction of the complainant seated as she was right in front of  him.  The fact that, before doing it, he had turned away from her increased rather than reduced the risk that he would strike her with the knife if he brought it down in her direction.  Crossing her right leg over her  left would not have perceptibly altered that risk in any respect. It was not so unlikely a movement that no ordinary person would have foreseen it. Although in some ways superficially similar, the facts of the present case differ from R. v. Tralka [1965] Qd.R. 225. There the accused, from a distance of between 8 and 18 yards away, threw an axe at the driver of a motor vehicle but hit and wounded one of the passengers.  He had wanted to hurt or frighten the driver but not the passenger.  The Court held that the question of accident under s. 23(1) ought to have been left to the jury.  But there is a great deal of difference between throwing an axe from a distance and stabbing at someone at close quarters with a knife.

Accident under the second limb of s. 23(1) was, for the reasons I have given, something that was not fairly raised by or on the evidence at the trial.  The judge was consequently not in law compelled to put it to the jury for their consideration.  Section 23(1) is, however, introduced by the words “Subject to the express provisions of this Code relating to negligent acts and omissions ...”.  In R. v. Young [1969] Qd.R. 417, 443, Lucas J. regarded this introductory phrase as comprehending all the provisions of ss. 285-290 of chapter 27 of the Code.  The purpose of those provisions is to impose on the person to whom they are directed a duty to take positive action in specified circumstances.

Section 289 makes it the duty of a person to use reasonable care to avoid danger from a thing under his control that is of such a nature that it may endanger life, safety or health; failing which he is “held to have caused any consequences to the life or health of any person by reason of any omission to perform that duty”.  This and the other sections in that collocation seem to have been directed primarily to problems of causation that sometimes arise in what may be described as cases of “pure” omission to act.  See Callaghan v. The Queen (1952) 87 C.L.R. 115, 123.  In circumstances in which s. 289 applies, it has been held to have the effect of excluding the operation of s. 23(1): see Evgeniou v. R. (1964) 37 A.L.J.R. 508, 509-510.

Among others, “dangerous things” for the purposes of s. 289 have been held to include a loaded rifle; a motor vehicle in motion; and even a sharpened pencil (R. v. Dabelstein [1966] Qd.R. 411).  It cannot be doubted that a sharp knife like that used in this case is capable of falling within s. 289.  It does not follow that the present matter ought to have been disposed of under that section.  I respectfully agree on this point with Thomas J. in R. v. Hodgetts & Jackson [1990] 1 Qd.R. 456, 462, in thinking that it is difficult to find room for the application of s. 289 where the victim is the intended target of the accused’s act.  Here the complainant was obviously the target of the appellant’s downward movement with the knife.  He aimed the knife in her direction.  It was not a case of passive control of a dangerous thing, or of a pure omission to act.  Section 289 therefore had no application to the circumstances of this case.

The appeal should be dismissed.

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 11 July 1997

This is an appeal against conviction and an application for leave to appeal against a sentence of 18 months' imprisonment imposed on 21st February 1997 after a trial before the District Court on one charge of unlawful wounding committed by the appellant on 30th December 1993 on his then defacto partner Melissa Jane Redmile.  The application for leave to appeal against sentence was abandoned at the commencement of the hearing and was accordingly dismissed.

The appellant was born on 1st September 1972 and was 21 years of age on 30th December 1993 and 24 years of age at trial.  His relationship with the complainant commenced in 1990 and ended in 1995.  They have two children, a boy aged five at trial and a girl aged three at trial. 

There were two grounds of appeal:-

1. the learned trial Judge erred in allowing evidence of two previous convictions for assault recorded against the appellant to go before the jury; and

2. the learned trial judge was wrong in law in failing to allow the defence of accident to be put before the jury.

After objection by defence Counsel before evidence was called, the Crown was permitted to lead evidence from the complainant about the history of the relationship which she described as violent.  She said that the appellant assaulted her on numerous occasions, probably every second day, by slapping her, kicking her, and scratching, even when she was pregnant carrying their two children.  She said she never complained because he threatened that if ever she did anything about it, he would take her son away and she would never see him again.  There were however domestic violence orders taken out at times.  Nevertheless, their relationship continued on and off up to 1995.  They broke up several times and resumed cohabitation and did so on more than one occasion after the incident on 30th December 1993.  Various photographs were tendered showing bruises to her face and other parts of her body, which had been inflicted upon her by the appellant prior to 30th December 1993.

On 30th December 1993 the parties were living at Morayfield with their two children.  She said that at about 11.00a.m., the appellant was "very paranoid because he was using speed at the time...which made him think I was doing...things...like stealing his drugs", which led to an argument.  She said he called her a "fucking maggot cunt and that I was a liar and that I had stolen his drugs".  She said that he was angry and speaking in a harsh tone.  She denied taking his drugs and said he did not believe her.

While she was sitting close to the dining room table, but with her legs away from the table, he went into the kitchen and came back and stood before her with a Wiltshire Staysharp knife, normally kept in the kitchen draw.  He stood right in front of her and was holding the knife in front of and close to her face with the blade towards her face.  He said he was going to kill her and that he could slice her from ear to ear.  He ran the knife across her throat from ear to ear.  It touched her skin but did not cut her.  He told her to put her hand on the table and threatened to cut off her fingers.  She had trouble doing this because of a large bruise on the palm of her hand which she suffered during a previous assault on her the day before.  He told her to put her smallest finger on the table and that every time she stole his drugs he was going to cut one of her fingers off.  She pulled her finger away.  She was scared.  He became very angry.

She then continued:-

"He turned around - he was standing in front of me and he turned around and faced away from me and as he did that I crossed my leg up.  I brought my right leg up on to my left leg and sat it there and as I did that he turned around and had the knife in his hand and brought it down and, like, hit it on my leg and cut my leg."

In cross-examination she was asked again about the incident and described it as follows:-

"I think I've got the sequence correct, and I'll put it to you - this is in so far as the actual suffering of the wound on your version is concerned - that he turns so that he's facing away from you?--  Mmm.

Then you put your right leg over your left leg; correct?--  Yes.

Then he turns, and as he turns he brings the knife down?--  Yep.

And then the wound occurs; correct?--  Yes.

And then he says, 'I didn't mean to do it'?--  I said, 'Oh, my God, it's bleeding'.

And he said, 'I didn't mean to do it'?--  He said sorry, then I think he said - he said, 'Show me.  Let me have a look'.  He looked at it and then he said he was sorry, he didn't mean to do it."

In re-examination she described her position at the time she was struck in the following terms:-

"You were asked some questions just a few moments ago about how you were seated when you were struck.  Can you just clarify for us, how were you seated when you were struck by the knife?--  Well, I was sitting facing Garry with my right leg up resting, like, on my other leg with the calf exposed. 

All right.  Where was he in relation to you?--  Right in front of me.

Was he standing up or sitting down or what?--  Standing up.

How far away do you think he was from you?--  Not very far, sort of basically right in front of me.

HIS HONOUR:  If I can just ask you to demonstrate with your leg - there's Exhibit 6 which shows your legs crossed, your right leg over your left.  But the way you demonstrated, they weren't crossed like that?--  No, not like in that photo, no.

I'll just hold that up.  You demonstrated with the lower part of your leg across your ---?--  Yes.

...left knee; is that right?--  Yes."

In further cross-examination she said:-

"I just wish to refer to this aspect: the expression 'crossing one's legs', you've heard of that?--  Yes.

That is just putting one leg over the top of the other?--  No, but it wasn't - that wasn't - how you would think a person crosses their legs was not actually how I had them crossed.  I had my right ankle basically placed on my left leg. 

Yes.  You've realised, obviously, that this couldn't have happened if you'd had your legs crossed in a normal position?--  Yes.

Yes.  As you described it initially to the police, you said it this way: 'He walked away.  As he did, I crossed my legs, putting my right leg over my left and, as I did, he spun around'.  Correct?  That's the way you've described it?--  Yes, that's the way I described it."

The last passage corresponds in part with the complainant's version put to the appellant in the record of interview on 4th January 1994 which was in evidence.  After the words "...he spun around...", the record continued:-

"...and slashed at me slashed me with the knife.  When he turned around he quickly raised his right hand that was holding the knife and brought it down pulling it back towards him.  The knife cut my right calf that was sitting on top of my left leg..."

The complainant did not in her evidence describe the incident in precisely that manner.  However, the photograph Exhibit 6 showed to the complainant by the trial Judge during her demonstration of the position of her right leg, shows that the cut to her right calf was virtually in a horizontal position across the calf which indicates that the complainant had merely lifted her right ankle up so that it was over the left knee with the right calf exposed in an approximate upward position.  This accords with the learned trial Judge's view expressed in a ruling at p. 100 that:-

"she raised one leg so that the ankle of one leg was placed over the knee of the other leg."

After she was cut with the knife, the complainant said that she attempted to stop the flow of blood by tying her nightie around her leg.  She sat with the appellant for some hours talking about what she was going to say to the doctor.  She said that he suggested to her that she tell the doctor that she did it in climbing through a window in the house, the window smashed and cut her leg.   The appellant's sister and mother arrived during the afternoon and took the complainant to a doctor at about 4.00p.m.  The complainant told the doctor that she had cut her leg on a mirror which had broken.  The wound was sutured.  There is no dispute that the wound cut the true skin and so constituted unlawful wounding. 

The complainant made a complaint to the police five days later on 4th January 1994.  She said in evidence that she did not do so earlier because the appellant would not let her leave the house.  She said she lied to the doctor because she was terrified that the appellant might really harm her if she told the doctor the truth.  It is obvious that she was in constant fear of him.

Counsel for the appellant did not cross-examine the complainant about past history of violence or assaults apart from one question (T.70) as to whether she had "got in a scuffle with a couple of ladies".  When she answered "No" to that question, Counsel took the matter no further.  He concentrated his attack on her version of how her leg was cut and suggested to her that it was false.  She denied the suggestion that the appellant had gone out of the house in the morning with the two children and on his return she had already had a bandage around the calf of her leg indicating that she had cut it when he was out.  She also denied that she had told the appellant that she had cut it on a window.

The appellant in evidence denied the complainant's version and said that on his arrival home in the morning he observed the complainant sitting on the back stairs with a bandage around her knee and that she had told him that she had cut her leg on a window.  He was extensively cross-examined about the incident and in particular about the contents of a record of interview conducted on 4th January 1994.  He asserted that he did not cause the wound and did not know how she had cut the leg other than what she had told him.  Nor did he check whether there was any broken window or broken mirrors.

In the record of interview, the appellant said that the complainant had given him permission to strike her or slap her if she lied to him and which he said in the record that he did on two occasions about 12 months prior to the incident in question.  When asked in cross-examination about the complainant's permission to assault her, he said she gave permission to him three years before the incident with the knife after he had asked her to stop lying to everyone when she had said: "If I lie again you can slap me".  Thereafter his answers in evidence appear to have denied that he did slap her.  The evidence proceeded:-

"Are you suggesting there that you thought you were allowed to hit your wife if you thought she was lying to you?--  No, she might have said that's okay, but still I would not have done it.  It's not, you know...

You also just told us that the last time you assaulted her was three years before the alleged wounding on December 30, 1993?--  No, that's when she said that instance that - about lying.

...

Well, when did you assault her?--  I've haven't assaulted her. 

Ever?--  I think I recall once, about two years before that incident, I think I slapped her once.

There is point of law I wish to raise, Your Honour."

The Crown Prosecutor then requested permission  pursuant to s. 15(2)(c)of the Evidence Act 1977 to lead evidence of the appellant's convictions on 10th February 1994 of an assault occasioning bodily harm committed by him on the complainant on 20th November 1993 and an aggravated assault on a female, namely the complainant, on 21st November 1993.  The Crown Prosecutor submitted that this was admissible pursuant to s. 15(2)(c) of the Evidence Act 1977 on the basis that the appellant had adduced evidence of his own good character and by denying that he was ever violent towards his wife.  It was submitted that evidence of the convictions showed more than a mere propensity but a disposition to violence on the appellant's part towards the complainant.

Counsel for the appellant at the trial submitted that the evidence of the actual convictions did not add to anything which the complainant had already said and that what the appellant had said in evidence did not materially differ from what he had said in the record of interview.  It was also submitted that the appellant did not put his own character in issue or challenge the character of the complainant and that the cross-examination was a structured basis designed by the Crown Prosecutor in order to arrive at a situation where the appellant's criminal record could be placed before the Court only on a matter of credit and in circumstances where the appellant denied the assaults the subject of the appellant's convictions on 10th February 1994.

The learned trial Judge declined to admit the evidence under s. 15(2)(c) but admitted the evidence of those convictions pursuant to s. 15(2)(a).  His Honour said that the evidence of the convictions "is in the same category as evidence already allowed to be given...and that the Crown Prosecutor should be entitled to ask any questions in cross-examination which are directed to seeking to show a matter of which proof was admissible evidence to show that the accused was guilty of the offence with which he is here charged...".  Those were the words of s. 15(2)(a).

In further cross-examination, the appellant admitted that he had said in the record of interview that he had slapped the complainant on two previous occasions over 12 months previously but then said that this had occurred "two years before the incident, yep".  When asked about whether he had assaulted his wife in November 1993 he said that he had not, even though the matter had gone to trial.  He said he was convicted but was not guilty of those offences.  He said that the complainant had testified under oath in the Court at Caboolture that she had been assaulted in the Caboolture Tavern by a group of girls and that the appellant was not the cause of the injuries the subject of those charges.  It appears that she was declared a hostile witness and a previous statement to the police was tendered in which she had alleged that he was the cause of those injuries.  There was no appeal from those convictions.

On appeal, Counsel for the appellant submitted that the learned trial Judge exercised his discretion wrongly in that evidence of the convictions, particularly when they were disputed, added nothing to the evidence already given by the complainant and that the learned trial Judge did not consider whether the prejudicial effect outweighed the probative value.  It was submitted that the discretion had to be exercised in accordance with the principles of the common law and that the same discretion had to be exercised pursuant to s. 15 of the Evidence Act.  He relied upon a passage in the judgment of Hunt C.J. at C.L. (with whom Finlay and Levine JJ. agreed) in the Court of Criminal Appeal in New South Wales in R  v. Beserick (1993) 30 N.S.W.L.R. 510 at 522 as follows:-

"So far as concerns the second of the balancing operations (the discretion to reject the evidence upon the basis that its probative weight is outweighed by its prejudicial effect), the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature.  When that stage has been reached, trial judges should be firm in excluding the evidence tendered."

Counsel for the Crown submitted that evidence of the previous convictions was part of the relationship evidence and was directly relevant to that evidence, given by the complainant. It was contended that that evidence put the subject offence in context and accordingly evidence of the previous convictions had great probative value.  It made the difference between one witness against another, in the context of the relationship evidence.

Once it is accepted (as it was on behalf of the appellant) that relationship evidence was relevant and consequently the complainant's evidence that assaults had occurred, it cannot be said that following the denials by the appellant that there was any relevant assault, the stage was "inevitably" reached in accordance with the passage referred to in R  v.  Beserick that admissible evidence of other assaults would no longer reasonably be required to place the evidence of the offence charged into a true and realistic context.

It was not contended by Counsel for the appellant that evidence of prior relevant convictions was not admissible as such but rather that the evidence should have been excluded as a matter of discretion for the reasons stated above.  However it appears to have been conceded that the convictions on 10th February 1994 (if admitted into evidence), were prima facie proof that the appellant committed the offences to which the convictions related (Supplementary Outline pp. 12-14).  If accepted by the jury, the convictions showed that the complainant was right and the appellant was wrong. 

Even assuming the appellant was entitled to challenge the correctness of the convictions, as the Crown in para. 9 of the Supplementary Outline concedes, the appellant was not deprived of the opportunity of doing so as he did during cross-examination and to some extent in re-examination notwithstanding that his Counsel abandoned further questioning after objection by the Crown Prosecutor (T.88-89).  No attempt was made to recall the complainant although as indicated above, she had categorically answered "No" to one question as to whether she had "got into a scuffle with a couple of ladies".  The learned trial Judge in his summing up referred to defence Counsel's submissions and to the denial by the complainant of any altercation with other females as well as to the appellant's denial that he had committed those assaults (T.107,116).

It may also be observed that if what the appellant said had occurred in the Magistrates Court at Caboolture on 10th February 1994 had in fact occurred, it was reasonably open to the jury to infer that this was a further example of the complainant seeking to cover up for the appellant during their "on and off" stormy relationship which she said nevertheless had some good aspects to it.  She had also feared what he said he would do to her son.   This is also what she did in giving her version to the doctor on 30th December 1993, as well as in statements to the appellant's mother and sister on their visit later that day (T.43,93).

Subject to the constraints imposed by s. 15(2), evidence of those two convictions was admissible as a matter of fairness and was relevant in establishing the true nature of what can only be described as a violent relationship between the complainant and the appellant and particularly where there was a conflict between the complainant and the appellant with respect to them.  The entire relationship evidence and her fear of the appellant was also capable of explaining the complainant's false account to the doctor and her reasons for the delay in complaining to the police five days later. 

It cannot be said that the learned trial Judge failed to weigh the prejudicial effect of the convictions against their probative value.  They clearly added to the evidence already given by the complainant of past assaults.  No complaint was made as to the learned trial Judge's direction to the jury on the use to which evidence of the relationship including the convictions could properly be put.  The first ground of appeal fails.

The question of the applicability or otherwise of s. 23 of the Criminal Code depends only on evidence given by the complainant.  There is no evidence from the appellant in this regard.  As indicated, he simply denied having assaulted or wounded the complainant.  He said he was not present when she suffered the wound.  The trial Judge declined to allow the question of accident to be put to the jury under either of the two limbs referred to in the section.  His Honour first of all concluded that there was no basis for considering the first limb of the section.  The appellant held a knife at about head or shoulder height and brought it down in a manner described by the complainant whereupon it came in contact with her leg, resulting in the wound.  His Honour's ruling was as follows:-

"So far as the matter not reasonably having been able to be foreseen by an ordinary person is concerned, one has to look at the evidence of the complainant.  It is, in effect, that the accused, after he had made a number of threatening gestures and verbal threats to use the knife on the complainant, he turned away during which time she raised one leg so that the ankle of one leg was placed over the knee of the other leg, and as he turned back he brought the knife down and that struck her on the leg that had been raised in the meantime.  It seems to me this does not raise accident.  The mere change of the leg is, it seems to me, not greatly significant when one has regard to the fact that the knife struck the complainant at about the calf area. 

The real situation is simply that on the complainant's evidence the accused, in effect, deliberately brought the knife down to a position where her legs had been and were then, and in those circumstances it seems to me that it's the most likely outcome that the knife, being a sharp implement, would cut the complainant, and in those circumstances it seems to me a reasonable person in the position of the accused would inevitably have foreseen that harm as a possible outcome of what he did."

Notwithstanding submissions in the written outline as to what constituted the "act" in the circumstances, Counsel for the appellant limited his submissions to the second limb of s. 23.  It cannot be disputed that the wielding of the knife by the appellant was a voluntary or willed act quite apart from its consequences, as the learned Judge held, and as apparently conceded in the appellant's outline (p. 12, T.17): Kaporonovski  v  R (1975) 133 C.L.R. 209 per Gibbs J. at 231; R  v  Taiters ex parte Attorney-General [1997] 1 Qd.R. 233 at 335.  The relevant event within the meaning of the section was the wounding. 

It was submitted that it was open to the jury to have a reasonable doubt whether the appellant intended to wound the complainant and that this was relevant to the question of foreseeability.  Counsel relied upon the complainant's evidence that the appellant was using speed at the time and her initial statement to the police that the appellant did crazy things when he "has drug influence" meaning that he "sort of loses his sense of perception and things like that".  It was said that this evidence supported the possibility of accident when considered in conjunction with the fact that the appellant initially turned away, the fact that the complainant moved her right leg up and that immediately after the wounding he said "I didn't mean to do it" and that he was sorry.  It was said that a culmination of these circumstances meant that the issue of accident was open and should have been left to the jury, even if the evidence was slight.  He relied upon Griffiths  v  The Queen (1994) 69 A.L.J.R. 77.

No assistance can be derived by the appellant from the High Court decision of Griffiths  v  R.  In that case there was no evidence of what had actually occurred.  The accused had simply said to a person subsequently "I killed him, but it was an accident".  In the current case the facts are known from the accepted evidence of the complainant.  Nor does Griffiths  v  R lay down any test or principle whereby the Court can discriminate between those cases in which the facts raise accident and those in which they do not: R  v  West (C.A. No. 288 of 1996, 26th November 1996, unreported).  Whilst it is accepted that if there is some evidence raising accident, however slight, the matter should be left to the jury, the question in this case is whether there was any such evidence at all.  The learned trial Judge held that there was none.

The offence of unlawful wounding does not require any element of intention to cause a specific result viz. wounding.  For the purposes of the second limb of s. 23, an event occurs by accident if it was not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Vallance  v  R (1961) 108 C.L.R. 56 at pp. 61, 65, 82; Kaporonovski  v  R per Gibbs J. at 231, Stephen J. agreeing at 241; R  v  Van Den Bemd [1995] 1 Qd.R. 401 at 404; R  v  Taiters at 335.  The test, cast in positive form, appears in Taiters at 338 as follows:-

"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 test has both a subjective and an objective component.  The submission that it was open to the jury to have a reasonable doubt whether the appellant intended to wound the complainant might, if the evidence justified accident being left to the jury, have been capable of being relevant to the subjective component.  However, it was apparently not limited to that component and seems to have been directed also to the objective component of the test.

Therefore, if the submission is correctly understood, Counsel's reliance upon the evidence, such as it is, as to the use by the appellant of "speed" and upon the evidence of the complainant that when he does "he sort of loses his sense of perception and things like that", appears not to have been directed only to the subjective elements of the test.  It was not and could not have been directed to any question of insanity under s. 27 because if the appellant was in fact under the influence of speed, it was self-induced: s. 28(2).  The submission seems rather to have been directed to the question of whether, just as intoxication (self-induced or otherwise) is relevant to the mental element of intention when such an intention is a necessary element of an offence, intoxication may also be relevant to the mental element of "intention" in the subjective part of the test as well as to the mental element of "foreseeability" in either the subjective or objective components of the test for the purpose of the second limb of s. 23.  Counsel submitted correctly (15) that for s. 23 to operate, the event must neither be foreseen nor reasonably foreseeable.

Because of the two components of the test, the submission appears to come down to this.  If there was a reasonable doubt as to whether the appellant subjectively intended or foresaw the event, there may also have been a reasonable doubt as to whether an ordinary person in the position of the appellant would reasonably have foreseen the event as a possible outcome of his actions.  It is not immediately apparent how this would follow.  Furthermore, Counsel conceded that if there was unequivocal evidence that the appellant intended to strike the complainant on the leg with a knife, as the learned trial Judge concluded on the sentencing proceedings (T.142), accident was not reasonably open.  This of course is correct: R v. Taiters. 

Even if it could be said that a reasonable doubt was open on the subjective components, a difficult conclusion on the undisputed evidence, the appellant faced the further hurdle of the objective test.  Where there is evidence sufficient to allow s. 23 to go to the jury, the question of what qualities should be attributed to an "ordinary person in the position of the accused" arises for consideration.  These qualities or attributes do not appear to have been defined in any authority as seems to have been the case with respect to the "ordinary" person referred to in the sections dealing with provocation: Stingel  v  R (1990) 171 C.L.R. 312 at 324-332. 

This is not a case where any attempt should be made to do so.  The make up of the hypothetical "ordinary" person may differ according to the particular facts of the case when consideration is given to the additional words "in the position of the accused".  For present purposes, and because the possible influence of "speed" was the only matter said to bear upon any mental element, it would appear to follow from the submission, if it is correctly understood, that an ordinary person "in the position of the appellant" must be a person who was also under the influence of "speed", in the same way in which it was submitted was the appellant's condition by reason of the evidence given by the complainant, so that such a person's capacity to foresee might have been impaired.

No authority has been referred to or discovered which supports any such submission and in any event the facts do not support the submission.  The complainant's evidence of the use of speed by the appellant that day was vague and uncertain and insufficient to warrant a conclusion that the appellant was under the influence of drugs or to what extent if any at that time.  Some comfort in this conclusion is obtained by the appellant's statement to the police in the record of interview (p. 6) that he was not affected by any drugs or alcohol that day and that at about 11.00a.m. that day, he had had nothing to drink and had not taken any drugs that day.  Therefore the question of influence of drugs does not arise.

The remaining matters relied upon - the fact that the appellant initially turned away, the fact that the complainant moved her right leg up and that immediately after the wounding he said he was sorry and that he did not mean to it, do not avail the appellant.  The objective evidence was perfectly straightforward.  The appellant turned away.  Then the complainant moved her right ankle over to the top of her left knee thus exposing the calf of her right leg upwards.  The appellant turned with the knife in his hand which had either been raised to about head or shoulder height during the turn or just after, and then he quickly brought the knife down from that height onto the complainant's leg which was then in that position when it was cut.  There is no evidence that he did not see her leg before he brought the knife down or that as the knife was being brought down, she moved her leg from a position into the path of the knife intended to miss her and only to frighten her.  The evidence is to the contrary.  He knew she remained seated in the chair facing him and any movement by her could not have been substantial.

The conclusion is irresistible that after the appellant turned around he must have seen the complainant's leg in the position to which she had moved it before he brought the knife down from that height.  There is no evidence that he attempted to stop the downward thrust of the knife towards her leg or any evidence that he intended to stop or miss her leg by a fraction.  The appellant deliberately brought the knife down onto her leg as the learned trial Judge found.  It is difficult to disagree with His Honour's remarks on sentencing that the appellant intended to inflict the wound.

In the circumstances, the learned trial Judge was correct in concluding that it was not a matter for the jury because there was no evidence of accident or anything approaching it.  Also, given that the wielding of the sharp blade from a substantial height after the appellant turned around with the blade facing towards the complainant was clearly a willed act, His Honour concluded that a "reasonable person in the position of the accused would inevitably have foreseen that harm as a possible outcome of what he did", so that the event, the wounding, did not occur by accident.  It is also difficult not to agree with that view.  The second ground of appeal fails. 

One other point should be mentioned.  During submissions at the end of evidence at the trial when Counsel for the appellant submitted that accident should be left to the jury, he conceded that criminal negligence was open.  The learned trial Judge, in rejecting accident, did not find it necessary to consider criminal negligence.  It was said on the appeal that this was a question which also should have been left to the jury.  For the same reasons stated by the trial Judge, even if there had been any real doubt that the appellant intended to strike the complainant, it is difficult to conclude that a jury, properly directed on the scope of s. 289 of the Code and the standard required for criminal negligence, would still not inevitably have found beyond reasonable doubt that the appellant was guilty.

I would accordingly dismiss the appeal.