R v W[1999] QCA 202

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 490 of 1998

Brisbane

[R v. W]

THE QUEEN

v.

W

(Applicant) Appellant

McMurdo P

Derrington J

Chesterman J

Judgment delivered 4 June 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 4 June 1999

1. I have had the advantage of reading the reasons for judgment of Derrington J and agree with him that the appeal against conviction should be dismissed generally for the reasons given by him.

2. I agree with Derrington J that the application for leave to appeal against sentence should be refused for the reasons given by him.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 4 June 1999

Appeal against Conviction

1. The appellant was convicted of causing grievous bodily harm to his step-child, the son of his partner, who was then a little under three years old.  The child suffered a serious head injury causing internal bleeding which the expert medical witness believed, and which must have been found by the jury to have been, the result of a very severe blow to the skull.  It was necessary to the conviction that it was caused by a force well beyond the result of ordinary trauma such as a simple fall, for the appellant denied having applied any force at all to the child at the relevant time.  Unless the force was of such magnitude, the jury could not have inferred that it must have been inflicted by him.

2. In that regard the description of the force necessary to cause the injury as deposed to by the prosecution’s medical expert must have excluded any possibility that the injury suffered by the child would not have been a reasonably foreseeable consequence of that force.  The jury was directed that they could not convict unless they were satisfied beyond reasonable doubt that the force inflicted on the child was as described, for absent that, they could not find that the appellant had inflicted it.

3. His only ground of appeal against conviction is a complaint that the jury was not directed by the learned trial judge of the need to be satisfied beyond reasonable doubt of the exclusion of the second leg of the defence under s.23 of the Criminal Code, that is, that the event occurred by accident.  Essentially it is argued that the jury should have been directed that in order to convict they had to be satisfied beyond reasonable doubt that the occurrence of harm amounting to grievous bodily harm was a reasonably foreseeable consequence of the appellant’s use of force on the child.  This submission predicates the acceptance of the jury’s finding that the force was of the severity described above.

4. The “event” to which s.23 refers is the resulting happening of an injury that amounted to grievous bodily harm: R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333.  (It may be slightly inaccurate to refer to the relevant condition of death or grievous bodily harm as the event rather than the event constituted by their happening.  Death or injury in the sense of a resulting condition, as distinct from the happening, is not an event: cf The Distillers Company Biochemicals (Australia) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 at 19 per Stephen J.  However, this distinction will not usually be, and is not here, significant.)

5. It is not necessary that there be an intervening factor to produce the unforeseeable consequence, such as arises where a person who is punched falls to the ground and suffers a more serious injury by striking his head.  All that is necessary for the defence is that the event, the happening of the relevant injury, was an unforeseeable consequence of the act for which the accused was responsible: R v Van Den Bemd (1994) 179 CLR 137.

6. Consistently with his denials, the appellant did not discuss his expectation as to the consequences of the force which he used, and so he did not raise this defence by his own evidence.  However, that is not necessary, and the direction should be given if the circumstances leave it reasonably open that the event consequential on the facts found against an accused may not have been reasonably foreseeable.

7. Whether the defence is raised in this way will of course depend upon the quality of the circumstances themselves.  For example, in a case outside s.23(1A) of the Code, the victim’s dying from an unusual result of a blow to the neck, which might ordinarily not be expected to have such a result, would ordinarily attract a direction to the jury on the section: cf Van Den Bemd.  Conversely, the consequence of grievous bodily harm from savage blows with a heavy instrument to the victim’s head may be so plainly foreseeable that the defence is not fairly raised on the evidence, and no direction on it is required.  It is a matter of degree, with some allowance in favour of the direction in marginal cases.

8. In assessing this, the correct issue is whether the relevant consequential event is a reasonably foreseeable possibility.  It need not be reasonably foreseeable as a certainty nor even as a probable consequence.  This means that it is not necessary that the exact nature of the resulting harm or the mechanical processes of its causation should be precisely understood; only that harm amounting to grievous bodily harm might possibly follow: cf The Queen v West (unreported) Court of Appeal (Qld) CA No.288 of 1996 - 26 November 1996.

9. The degree of force which the jury had to accept was used on this young child before it could find that the appellant was responsible for it at all was so serious that the possibility of grievous bodily harm could not have been other than reasonably foreseeable.  Consequently, the circumstances simply did not raise a defence that, if the appellant had committed the act, its consequences could be accidental.

10. On the application by learned counsel for the accused to the trial judge to direct the jury on this defence, the latter replied:

“If the jury were to be satisfied that the blow or rather the force that Doctor Seto spoke of was the force required to cause this sort of injury, then it seems to me that any direction under the second limb of section 23 is superfluous.  If they were satisfied that there was such a severe blow as that, then it seems to be that there just isn’t any room for any notion that an ordinary person wouldn’t have foreseen serious injury such as occurred.”  (R152/28-36)

This is in conformity with the above reasoning.  It is simply a matter of practical assessment.  The same approach in circumstances similar in principle was taken by Callinan J, with whom Gleeson CJ and McHugh J agreed, in Charlie v The Queen (1999) HCA 23 (13 May 1999) in relation to the need for a direction as to intent to cause grievous bodily harm, and he concluded that the brutality of the assault was such that the perpetrator could have intended no other result, and that there was no error in the trial judge’s failure to direct on this issue.

11. Learned counsel for the appellant argued that the determination of this issue is a jury question in all such cases but, with respect, as it has been explained above, that is so only if the defence is fairly raised.  Significantly, he did not seek to argue before this Court that the reasoning of the learned trial judge as to the inference to be drawn from the degree of force used was wrong.

12. The result is that no error has been shown in the learned trial judge’s refusal to direct on the defence, and the appeal should be dismissed.

Sentence

13. In the alternative, there is an application for leave to appeal against the sentence of four years’ imprisonment without any recommendation of early consideration for parole.  The applicant was a 38 year old man at the time of the offence and was 39 years at sentence.  He had a number of prior convictions, but none of these involved violence.  He appears to have been a good worker and produced a number of character references in his submissions on sentence.  These are less effective because of his general treatment of the child.

14. In the absence of evidence to the contrary, it should be assumed that, at worst, his action on this occasion was the result of a loss of control and that he did not intend to inflict injury of this magnitude upon the child.  When he subsequently discovered that the child was unconscious, he took him to hospital.  However, he must still have used considerable force to the child’s head.  Further, as the learned sentencing judge observed, the applicant “had fallen into or developed a pattern of dealing with this little boy which was somewhat bizarre and excessively violent as a means of dealing with any child, let alone a toddler of this age.”  This included tying him up and on other occasions forcing him to walk rapidly in circles by way of punishment.

15. The degree of permanent injury is serious.  There is damage to the child’s brain which will remain with him for the rest of his life.  It is not yet known whether there will be permanent damage to his motor skills or in his behaviour.

16. The most serious feature of the events is that the applicant so cruelly inflicted serious violence on a very young and vulnerable infant who was within his control and under his protection.  The learned trial judge correctly took into account the need for deterrence against injury to vulnerable children in circumstances such as this.  However, he seems to have made allowance for the factors favourable to the appellant, for the sentence imposed was at the lower end of the range of four to six years proposed by the prosecutor and generally justified by the schedule of comparable sentences supplied to the court.  Although some criticism might be levelled at the sentence imposed on a comparison with particular cases in the schedule, that is not a satisfactory approach.  To avoid idiosyncratic variations in particular cases, reference to the general range of a larger comparable group is safer.  In any case, if allowance is made for countervailing factors, the sentence here is reasonably comparable with the recent cases referred to on the applicant’s behalf.  Nor is it manifestly excessive.

17. The application for leave should be refused.

REASONS FOR JUDGMENT - CHESTERMAN J

Judgment delivered 4 June 1999

1. I have read the reasons for judgment prepared by Derrington J.  I agree that in the circumstances of this case it was not necessary for the trial judge to direct the jury in relation to the exculpation from criminal liability afforded by section 23 of the Criminal Code.  It is only where the evidence fairly raises the prospect that the provisions of the section are applicable that the working of the section should be explained to the jury.  In any other case an exposition of the provisions will be a distraction.

2. The appellant’s defence to the charge of doing grievous bodily harm was that he did not harm the child.  It was not that the harm was an unintended, unforeseen and unforeseeable event.

3. The trial judge very fairly warned the jury that they should not convict unless satisfied, beyond reasonable doubt, that the degree of force with which the child was struck was that described by Dr Seto.  The verdict must signify the jury’s acceptance of the evidence that the child was struck with very considerable force.  Dr Seto’s description of the force necessary to cause the injury ruled out any reasonable possibility that the injury suffered by the child was not reasonably foreseeable as a consequence of the blow.

4. In declining to direct the jury in terms of section 23, the trial judge said, in the course of submissions from counsel:

“If the jury were to be satisfied that the ... force that Dr Seto spoke of was the force required to cause this sort of injury, then it seems to me that in direction under the second limb of s. 23 is superfluous.  If they were satisfied that there was such a severe blow as that, then it seems to be that there just is not any room for any notion that an ordinary person would not have foreseen serious injury such as occurred.”

This is a sufficient summary of the point.  The evidence which the jury must have accepted if it was satisfied beyond reasonable doubt that the appellant did grievous bodily harm to the child also established, beyond reasonable doubt, that the harm was reasonably foreseeable.

5. This being the position it is not necessary to say anything about the meaning or operation of section 23 which has been the subject of authoritative exposition in R v. Taiters: ex parte Attorney-General [1997] 1 Qd R 333.  If it were relevant to this appeal I would, conformably with what was said in Taiters at 335, regard the event of which the section speaks as being, in this case, the brain injury which, by the application of the definition found in section 1 of the Criminal Code, constitutes grievous bodily harm.

6. Similarly, I would prefer to use the terminology employed in Taiters and describe what is to be foreseen or foreseeable as “a possible outcome” bearing in mind the discussion preceding that formulation found in Taiters at 338.

7. I agree with the orders proposed by Derrington J.