SUPREME COURT OF QUEENSLAND

1. PINCUS AND DAVIES JJA:  The appellant appeals against his conviction on a charge of having unlawfully done grievous bodily harm to one Zidar and applies for leave to appeal against his sentence.  The Crown case was that for no good reason the appellant punched Zidar in the jaw, breaking it.  Zidar described the force of the blow as being "Enough to knock me down.  Break me jaw in two places".  The medical evidence was that the injury was consistent with Zidar's description of the way it was sustained.

2. Police came to the caravan park where this incident occurred and interviewed the appellant who told them, according to the Crown evidence, that he hit "the guy only once". The police said they saw abrasions on the knuckles of the appellant's right hand. None of this evidence was contradicted. But Mr Peter Callaghan for the appellant argued that the verdict should be set aside because the judge had not directed the jury on the defence of accident. The judge instructed the jury that the only issue was whether they were satisfied beyond reasonable doubt that the grievous bodily harm that was suffered was caused by the appellant.

3. It is clear from the cross-examination of Zidar that counsel's instructions were that the appellant did not punch Zidar and it appears from the judge's directions that this line was pursued in counsel's address to the jury. According to the judge's summary of submissions, however, the appellant's counsel below:

" ... said the complainant used the word 'accident' at the last trial before the word was mentioned by the defence barrister.  Mr Andrews submitted to you that is significant".

It does not appear, from the judge's summary, that anything further was said in the address about accident.  The judge did not give any directions about the law relating to it, nor did counsel ask him to.  From the cross-examination it appears that at a previous trial, when asked why he did not tell the police about certain people that were present on the night, Zidar answered:

"They weren't there when it happened – the accident happened, whatever you want to call it".

After further cross-examination at that previous trial, in answer to a long question, Zidar said that he meant incident not accident.

4. A case which might be thought to have some resemblance to the present is Griffiths (1994) 69 ALJR 77.  There the Crown case was that Griffiths shot another person in the head and, to prove that, reliance was placed substantially upon evidence of people to whom, according to the evidence, Griffiths admitted having killed the person in question.  There was no evidence whatever as to the circumstances in which the killing occurred other than that of a statement by the appellant:  "It was an accident.  I didn't mean to do it".  In the principal set of reasons, their Honours remarked:

"In the present case, on the view of the evidence adopted by the majority, two schoolboys, best friends without any evidence of hostility between them, were out in the mountains together with a gun;  the gun went off and killed one boy and the other went away and tried to lay a false trail about the incident but, when acknowledging that he shot or killed the other, said it was an accident.  On that evidence, the possibility that the death was due to 'accident' – stumbling when the gun was cocked and loaded or some other kind of accident – was clearly raised".

5. It was held that the defence of accident should have been put to the jury. The passage just quoted points up differences between that case and the present. The evidence of the prior friendly relationship between the parties was coupled with the general statement, said to have been made by Griffiths, that the shooting was an accident. Here the only description of the events leading up to the breaking of Zidar's jaw was that given by the Zidar and no alternative version as to the manner in which the injury was sustained was put to him. Further, there is the difference that if the jury accepted that Griffiths shot the other boy, in the absence of any other information the hypothesis that the death was caused by accident was in the circumstances not a fanciful one. In Griffiths there was evidence that the accused regarded the shooting as an accident;  there was no such evidence here.

6. If the jury accepted that Zidar was struck on the jaw by the appellant, the blow being hard enough to break it, then in our view the hypothesis that the injury was caused by accident can properly be called fanciful; of course, if the jury did not believe the substance of Zidar's story about the way his injury was sustained, no question of considering accident arose because in that event the appellant was entitled to be acquitted.

7. Therefore, despite the superficial resemblance of the circumstances of this case to those of Griffiths, it is our opinion that the outcome of Griffiths is not determinative of the present case.  We should add that in Griffiths the trial judge refused to put the defence of accident to the jury and gave reasons for that decision:  see p 13 and p 14 of the principal judgment in this Court, CA No 292 of 1993, 20 December 1993.  In the present case it appears that the judge was never asked to explain the defence of accident to the jury.

8. The circumstances in which a possible defence must be put to the jury are variously described in the authorities; see the discussion in West, CA No 288 of 1996, 26 November 1996.  One thing which is clear is that the fact that a possible defence is not argued by counsel is not conclusive.  But it was said in Payne [1970] Qd R 260 at 264, in the Court of Criminal Appeal: 

" ... this does not mean that a judge must search his mind for fanciful interpretations of the evidence in order to put them to the jury as possible defences, particularly if he is not asked to do so by counsel for the accused".

In Howe (1980) 55 ALJR 5 at 7, where it was held that a particular defence should have been put to the jury, the High Court said:

"The essential question here is whether the trial judge should have perceived that an issue based on s 247 was fairly raised on the evidence".

9. One way, perhaps, of testing whether a defence is fairly raised on the evidence is by attempting to construct a sensible direction, on the basis of the evidence given. The judge told the jury, correctly, that:

"It is the Crown case that the accused caused grievous bodily harm to the complainant by punching him and breaking his jaw".

The Crown had no other case than that.  It would have been wrong, in the circumstances of this case, for the judge to give directions to the jury about accident on hypotheses which assumed a rejection of the Crown case, just mentioned, such as that Zidar (who was drunk) fell over and sustained the injury in that way.  It is true that the judge could have told the jury that, even if they accepted Zidar's account of the way in which the injury was sustained, they should still have considered whether when the appellant hit Zidar on the jaw he foresaw the injury actually sustained –

" ... 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". (Taiters [1997] 1 Qd R 333 at 338)

But that would, in our view, have been a consideration properly described as fanciful.

10. The judge was right in not directing the jury about accident and the appeal against conviction must be dismissed.

11. Mr Callaghan also argues that the sentence imposed is too heavy. The judge sentenced the appellant to imprisonment for two years and six months. The appellant is 46 years old and was previously convicted for assault occasioning bodily harm, in April 1993. It appears from the sentencing remarks that that was another punching case; the punch, the sentencing judge explained, caused the victim –

" ... to try and get out of the caravan quickly, the consequence of which he hit his head on the concrete and that killed him".

Although the sentencing judge took a lenient view of that matter, by releasing the appellant on a good behaviour bond and declining to record a conviction, it can hardly be regarded as immaterial.  The judge's description of the outcome in the present case was as follows:

"The complainant was very badly injured.  He suffered a broken jaw and he was left in a state of incapacity for some time after you injured him.  He has only just recovered from the injuries you inflicted on him".

12. From studying the comparable decisions and from general experience of cases of this kind, our impression is that the sentence imposed is high; but the difficult point is whether it can be described as manifestly excessive. The cases of Partridge (CA No 561 of 1996, 18 March 1997), Silvester (CA No 101 of 1998, 5 June 1998), Dodd (CA No 241 of 1998, 17 September 1998), and Camm [1999] QCA 101; (CA No 431 of 1998, 1 April 1999) were discussed before us.  Silvester and Dodd involved injuries similar to those in the present case and the sentences were 18 months in each case;  there was a recommendation for parole after six months in Dodd.  Each of them suffers from the disadvantage that it was merely a rejection of an application for leave to appeal.  Further, Dodd had no relevant previous history and he pleaded guilty.  Dodd might have gained some slight advantage from his youth, being 26 years of age.  Using Dodd as the principal guide and having regard to the circumstance which we have mentioned, that Dodd had a recommendation for early parole, we would reduce the appellant's sentence by one-third.

13. The orders we propose are –

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence granted;  appeal allowed by substituting a sentence of one year and eight months for the sentence of two years and six months imposed by the learned sentencing judge.

14. McPHERSON JA:  The only point on this appeal against conviction for occasioning grievous bodily harm is the appellant's claim that the trial judge was wrong in failing to direct the jury to consider whether the appellant might not have been excused from criminal responsibility under either s 23(1)(a) or s 23(1)(b) of the Criminal Code. Section 23(1)(a) assumes that some act has been done by the accused (Kaporonowski v The Queen (1973) 133 CLR 209, 226-227) and excuses him if it occurred independently of the exercise of his will; or, in other words, if it was not a "voluntary" act, which in Falconer v The Queen (1990) 171 CLR 30, 40, was said to mean or involve "a choice, consciously made, to do an act of the kind done". To require a direction to that effect, the issue of voluntariness must, to use the time‑honoured phrase, be "fairly raised" by or on the evidence at the trial; but, once so raised, the onus rests on the prosecution to prove that the act in question was voluntary in this sense: Falconer (1990) 171 CLR 30, 41.

15. Here there are, to my mind, two reasons why no such question or issue arose at the trial of the appellant. One was that the proposition put forward by the defence was that the appellant had not in fact delivered any punch to or at the appellant or his jaw. If that was so, it followed that there was no "act" of the appellant capable of attracting the operation of s 23(1)(a). The appellant would have been entitled to an acquittal not because the punch was not the result of his conscious choice or voluntary action, but because there was no punch or "act" on his part at all. The trial judge sufficiently put this proposition to the jury in summing up when he told them it was the Crown case at trial that the accused had caused the complainant grievous bodily harm by punching him and breaking his jaw. The jury by their verdict plainly accepted that that was what had happened. There was thus no occasion for a direction in respect of s 23(1)(a).

16. That is the first of the two reasons. The second is that at an earlier trial the complainant had, in speaking of the events of that evening, referred in cross‑examination to the happening of "the accident, whatever you want to call it". This was seized on as suggesting that the fracturing of his jaw was an accident, and in that sense was not a voluntary or willed act, or that it was an "accident" within the meaning of s 23(1)(b). There was, however, no evidence of anything capable of suggesting that his injury was the result of an accident in that or any other sense.  Objectively there was nothing to indicate that the appellant might have fractured his jaw in a fall, and it does not generally accord with ordinary human experience for fractures of that kind to be caused in that way. On the contrary, there was evidence in the form of abrasions on the knuckles of the appellant's right hand and of an admission by him to the police strongly suggesting that he had in fact punched the complainant.

17. Finally, there is s 23(1)(b). It relieves a person of criminal responsibility for an event which occurs by accident. In this conduct, it is now settled that the "event" refers to a consequence or result of physical context, and not to the "act" or physical action which produced it: see R v Taiters, ex p Attorney-General [1997] 1 Qd R 333, 335. Here, the consequences of the punch delivered to the complainant's face was that his jaw was fractured in two places, which was the grievous bodily harm that the appellant was charged with having done.  The decision in R v Taiters [1997] 1 Qd R 333, 338, establishes that it is sufficient for the Crown to satisfy the jury that an ordinary person in the position of the appellant would reasonably have foreseen that consequence as a possible outcome of his act, in this case of directing a punch at the complainant.  It is, with respect, absurd to suggest that breaking the complainant's jaw was not a foreseeable consequence of punching him, or that it was in any sense an "accident" in terms of s 23(1)(b). The foreseeability of that consequence was perhaps one that should, and no doubt would, have been left to the jury if it had been raised in that form at the trial; but there is only one answer that could have been, or can be, returned to it.  As is shown by the facts in R v Taiters, s 23(1)(b) does not require a minute analysis of the precise extent of the consequence, or of the exact chain of circumstances that produces the "event" or result giving rise to the offence charged. Here there was, objectively speaking, an obvious risk that punching the complainant might break his jaw or inflict some other form of grievous bodily harm on him.

18. The appeal against conviction should be dismissed. As to sentence, I am persuaded that the sentence of imprisonment for two and a half years was not manifestly excessive having regard to the injuries inflicted, the pain, discomfort and inconvenience suffered by the complainant, the age of the offender, and the appellant's prior conviction in respect of a similar offence in 1993. I would dismiss the application for leave to appeal against sentence.