SUPREME COURT OF QUEENSLAND

1. JERRARD JA:  On 30 January 2006 Mr Peachey was convicted by a jury of having unlawfully done grievous bodily harm to Luke Nicholas Dekker on 12 January 2004 at Cairns, and sentenced to two years imprisonment, that sentence to be suspended after 12 months for an operational period of three years.  He has appealed against his conviction.

2. There are four grounds of appeal. Ground 1 is that the learned judge erred in failing to adjourn the trial when so requested on 25 January 2006, the first day of the trial. Having heard the adjournment application after the jury had been selected, the learned judge adjourned the trial until 2.15 pm that day, and evidence (from the complainant) began a little after 3pm. The court adjourned at 4.30pm, after Mr Dekker’s cross-examination and re-examination were completed, and the next day, Australia Day, was a public holiday. The trial resumed on 27 January 2006 and Mr Dekker was recalled for further cross-examination that day, on which all the evidence was completed, including Mr Peachey’s. Discussion then took place that day about the charge and the directions to the jury, and the court adjourned. Counsel then addressed the jury and the learned judge summed up the case, on Monday 30 January 2006.

3. The second ground of appeal alleges error by the learned trial judge in not directing the jury as to the existence and application of a possible defence based on s 271(1) of the Criminal Code 1899 (Qld).  The directions the learned judge gave on self-defence had been restricted to s 271(2).  Ground 3, added by leave, was that the learned judge erred in his directions to the jury in respect of the second limb of the defence of accident, and further erred in not leaving the first limb of that defence to the jury; and ground 4, also added by leave, was that the learned judge erred in directing the jury as to the meaning of grievous bodily harm and the evidence relevant to whether the injury Mr Dekker suffered constituted grievous bodily harm.

Background matters

4. Mr Peachey was employed on 12 January 2004 as a security officer at the Mad Cow Nightclub in Cairns. When so engaged he kicked Mr Dekker in the head, causing an injury which the jury found to be grievous bodily harm. The defences advanced at the trial were self-defence and accident.

Mr Dekker’s evidence

5. Mr Dekker had been to a post-Christmas function on Sunday 11 January 2004 at the Hilton Hotel in Cairns, where he worked as a concierge. In his evidence he recalled consuming eight “heavy” beers and described how he and a companion (another employee) lost track of their friends that evening, and went searching for them in a number of different nightclubs. When they attended at the Mad Cow where Mr Peachey and another security officer were working, Mr Peachey refused to let Mr Dekker enter, and Mr Dekker’s evidence was that that was because Mr Peachey did not “like the look of me”.^[1]  Mr Dekker was offended by that ground of refusal, and deliberately abused and insulted Mr Peachey.  Mr Dekker could recall calling Mr Peachey a “dickhead” and a “rent-a-cop”^[2], a “fuckhead”, and a “tosser”^[3]; he also described that Mr Peachey stepped towards him, whereupon Mr Dekker said: “Mate, you can’t touch me.  I know my rights, you know, I used to be a security officer”.^[4] 

6. After that Mr Dekker and his companion quit the area, returning to the Hilton to get something his companion had left there, but then they abandoned that enterprise. That resulted in Mr Dekker deciding to head home, and on his account his chosen course resulted in his going past the Mad Cow Nightclub.

7. Mr Dekker saw Mr Peachey outside it, and Mr Dekker said that Mr Peachey also saw him, and that Mr Peachey made a motion in Mr Dekker’s direction. Mr Dekker (on his account) then “just waved my hands up in the air”, remarking to Mr Peachey that “[i]t’s a free country mate, I can walk on the footpath.”^[5]  That resulted in Mr Dekker being pushed by Mr Peachey over a rope barrier at the entrance to the nightclub, and Mr Dekker falling to the ground.  He felt embarrassed by that, and he next recalled coming to his senses some distance down the footpath, being unable to breath, and lying in a pool of blood.  His head felt heavy, he could not get up, and somebody called an ambulance.  He was then taken to hospital.

The video evidence

8. A video taken by closed circuit TV captured the incident, in which Mr Dekker can be seen falling over the rope, although it is difficult to conclude whether he fell or was pushed. Mr Peachey stepped forward and in one quick motion kicked Mr Dekker as the latter began to lift himself up from the footpath. Although the point of impact of the kick is not captured on the video, which was taken from behind Mr Dekker and whose body obscures from view part of Mr Dekker’s, it was on Mr Dekker’s right check. The video records Mr Dekker falling to his left and remaining inert for a number of seconds, and his body then moved out of the camera view.

Mr Peachey’s evidence

9. Mr Peachey’s account was that he first became aware of Mr Dekker when on duty, and when he heard an altercation at the front of the nearby Sports Bar, where there was only one security officer on duty. The altercation was between that officer and Mr Dekker, who was aggressively objecting to being refused entry. Mr Peachey went and stood near that other security officer, as a means of providing support, and concluded that Mr Dekker was heavily intoxicated and angry. He saw that Mr Dekker turned to walk away, and Mr Peachey then returned to his position on duty at the front of the Mad Cow.

10. Mr Dekker in fact followed Mr Peachey back to the Mad Cow, which is some 30 metres from the Sports Bar, and on seeing that Mr Dekker intended to enter the Mad Cow, Mr Peachey “…let him know that he was clearly intoxicated and obviously had been in a verbal altercation with the security of another nightclub and at no time on that evening would I be allowing him to enter the nightclub that I was working for.”^[6]  Mr Dekker’s response was angry and drunken abuse of Mr Peachey, which included the statement that “Well f [sic] youse.  I’m going to go and get a knife and come back and stab you Cs [sic]”.^[7]  Mr Dekker then left.

11. Perhaps 20 minutes later Mr Peachey became aware of somebody attempting to pass between Mr Peachey and the wall of the nightclub, as if attempting to enter it, and Mr Peachey recognised Mr Dekker. Mr Peachey then told the other security officer on duty at the Mad Cow, a Mr Birgan, not to let Mr Dekker in, and approached Mr Dekker, who turned to face Mr Peachey. Mr Peachey tried to take hold of Mr Dekker who, on Mr Peachey’s account, went backwards over the rope onto all fours (the video records rather more a forward falling onto Mr Dekker’s right side), and Mr Dekker said “I’m going to stab you Cs [sic].”^[8]  If the video is accurate, there was very little time for Mr Dekker to say that before Mr Peachey, as the latter admitted doing, stepped forward and kicked Mr Dekker.

12. Mr Peachey’s evidence was that the kick was aimed at Mr Dekker’s upper body and that although it hit Mr Dekker in the head, Mr Peachey certainly did not intend to do that, nor to injure Mr Dekker in any way. Mr Peachey’s evidence was also that, despite that lack of intent to injure Mr Dekker, he had seen Mr Dekker move and thought he was going for the “knife”, and “…I knew it was only a matter of split seconds before he was – he was up and – and – and – and possibly stabbed me to death.”^[9]  He kicked Mr Dekker because he was in fear of his life, and wanted to wind him. 

Mr Birgin’s evidence

13. Mr Birgan, called by the Crown, largely supported Mr Peachey’s account. He also recalled a disturbance with (Mr Dekker, as it transpired, at the Sports Bar),^[10] which Mr Birgan said was two shops down to the left of the Mad Cow.  He recalled that Mr Dekker was being abusive and threatening to the person who had refused him entry at that bar.  Mr Dekker then moved to the Mad Cow and was refused entry by Mr Peachey, and was again abusive and threatening, saying “he was gonna [sic] stab us, and come and get us and what not.”^[11]  Mr Birgan added that he had seen someone “stabbed there and it’s not very pretty.”^[12]  That evidence was in the same vein as evidence from Mr Peachey that once when the latter was on duty as a doorman at a nightclub in Mount Isa, and had refused entry to a patron who was heavily intoxicated, that patron had pulled out a pen-knife and succeeded in slashing Mr Peachey slightly on the leg.  That had resulted in Mr Peachey being wary of knife attacks on duty.  Mr Birgan’s evidence was that at some later time that evening Mr Dekker had returned and had “…come up behind where we were”^[13], apparently describing how Mr Dekker somewhat slipped along the wall and perhaps behind the two security officers, and how Mr Peachey had turned and grappled with Mr Dekker.  Mr Birgan recalled Mr Dekker yelling something about “…you know, get us, stab us again…”^[14], and Mr Dekker was then thrown to the ground by Mr Peachey, where “[i]t looked like he was crouching, reaching for something, and he was struck by Mr Peachey then.”^[15]

14. Mr Dekker’s evidence in cross-examination was that he had been drinking steadily or at a constant rate that evening and had no recollection of having attempted to gain entry to the Sports Bar. He recalled only having been to the Mad Cow, and had no recollection of having followed Mr Peachey to its entrance. He disagreed that the reason given for refusing him admission to the Mad Cow was that he had been refused entrance to the Sports Bar and had abused its security officer. He denied threatening to knife Mr Peachey or the other security officer at any time, either when first refused admission or when he returned to it. He denied having said “I’m going to stab you cunts”.

Mr Dekker’s injuries

15. Those events occurred in the early hours of 12 January 2004. Mr Dekker was first treated at the Cairns Base Hospital at 2.45 am that day, and recorded as having a large bruise under his right eye and bruising and pain over his right cheek bone. A CT scan disclosed a comminuted fracture of the cheek bone under the right eye, with the fracture extending to the inferior orbital margin, that being in the middle and beneath that eye. Mr Dekker was discharged from the hospital about 6.45 pm on the evening of 12January.  At that time it was understood he was suffering from what was regarded as a reasonably uncomplicated right cheek bone fracture, described by the medical practitioner giving evidence at the trial (Dr Streetfield) as a fairly common injury in sport and after fighting.^[16]  However, it proved not to be uncomplicated, as Mr Dekker developed heavy nose bleeds in his home.  Accordingly, he returned to the hospital at 10.30 am on 13 January, and then again at 2pm, describing three lengthy nose bleeds of about 10 minutes each.  He was re-admitted to the hospital at 2.10 pm on 13 January. 

16. He continued to suffer from bleeding and a consultant specialist was called in that evening at 6.55pm. By that time there had been considerable packing of Mr Dekker’s nose in an endeavour to stop the bleeding, and on the specialist’s instructions a different variety of nasal pack was used. By 16 January 2004 Mr Dekker’s haemoglobin count or level had dropped significantly, to less than half of what a normal healthy male would have, signifying extensive blood loss; and he was given a blood transfusion at 12.30 pm on 17 January 2004. Prior to that he had been recorded as having a large nose bleed in the hospital at 1.30 am that day, with another at 2.30 am, and having had nose bleeds on a daily basis up to and including 17 January 2004, the day of the blood transfusion.

17. Dr Streetfield’s evidence was that the blood transfusion was given because of concern at the haemoglobin level, resulting from the blood loss, and that all together there were three blood packs or transfusions performed. The reason for the blood loss was because, as it happened, Mr Dekker had suffered a fracture of the ethmoid bones and may well have had a torn blood vessel inside the upper part of his nose. On first admission it had not been apparent that there was that damage in the ethmoid area and Mr Dekker accordingly had been discharged. The bones in that area are very fragile and very difficult to “…feel, get into, or get any pictures of.”^[17]   Dr Streetfield, gave the opinion that had Mr Dekker’s nose not been packed as it had been from 13 January until he had the blood transfusion, the injury he had received to his right cheek would certainly have been life-threatening as a result of Mr Dekker’s losing so much blood.^[18] 

18. He also gave the following evidence, in answer to questions asked by the learned trial judge:

“Given that extent of bleeding, what were the chances of the bleeding just stopping naturally without medical treatment? -- Well, the chances were 100 per cent not, because that’s what happened. The chances – given his injury, the chances were – no, he didn’t, ’cause he – he – he couldn’t stop it himself.

Yes. What would have happened to him in your opinion if there had not been the medical intervention to stop the bleeding? -- He wouldn’t have been able to stop it.  He would have collapsed.  Hopefully someone would have – would have got him to hospital pretty quick smart. 

Yes.  Well, if that didn’t happen – if he had no medical treatment, what would have happened to him in your opinion? -- He would – he could well have bled to death.

Yes.  And the extent of that possibility without medical treatment? I mean, a remote possibility, a probably – can you rate it at all? -- What he – what happened to him?

Mmm? -- Well, how they took so long to bring it under control in hospital conditions with our best specialist I’d say it was highly probably [sic] that he may well have died if he didn’t get the – that treatment.”^[19]

19. Dr Streetfield agreed in cross-examination that an injury with fractured cheek bones was fairly common in contact sports, and that on the commonly experienced version of that injury bleeding would ordinarily resolve itself, especially in a younger person. By no stretch of the imagination would that commonly encountered injury be likely to endanger life, if untreated. The injury Mr Dekker suffered was not only more extensive than originally thought, with the epistaxis or nose bleeding, but also unusual. He would not ordinarily have expected a fractured cheek bone to result in such excessive bleeding.^[20]

Ground of appeal 1

20. Mr J Henry of counsel, who appeared for Mr Peachey on the appeal (and who was not counsel at the trial), frankly conceded that he was unable to point to any evidence that might have been available to assist Mr Peachey had the trial been further adjourned rather than started at 2.15 pm on 25 January 2006, and unable to suggest any questions in cross-examination of any witnesses that were left un-asked, but which might have been asked had there been more time to prepare. Additionally, there was no further request for any adjournment by counsel who appeared at the trial, and the trial did adjourn for a day after it had proceeded for a half day on 25 January. Mr Henry suggested that some of the arguments made during the trial might have been more coherently advanced after more preparation time, and that the defence had been disadvantaged by the fact that counsel at the trial did not object to a bundle of medical records being admitted as an exhibit. As to the latter complaints, the submissions made by defence counsel were clearly enough understood by the learned trial judge, who ruled on them, and the defence made reasonable usage in cross-examination of the contents of the medical records. That cross-examination elicited that the injury actually suffered was unusual, with a degree of the blood loss not ordinarily expected.

21. No error was demonstrated by the learned judge’s declining to grant any further adjournment of the trial on 25 January; the basis of the application had been that Mr Peachey was unhappy with the preparation of the case, in part because his counsel had been unable to have a conference with Mr Peachey until that morning. Counsel at the trial submitted that more time was needed for Mr Peachey to give proper instructions, and that perhaps the security provider at the Sports Bar could be located, whose evidence might assist. When declining any adjournment for longer than a half day, the learned judge referred to the fact that the next day was a public holiday and that there was time to locate that potential witness, if available. Mr Peachey’s counsel at the trial did not suggest at any other stage during the trial that he actually needed any further time in which to take more instructions. Mr Peachey’s case was certainly put in full to Mr Dekker, and the appeal record does not demonstrate a basis either for the view that the learned trial judge was in error in the ruling on the adjournment on the only application made to the judge, or that a miscarriage of justice has resulted from the trial not having been adjourned until 27 January 2006, or some other date. I would dismiss that ground of appeal.

Ground 2

22. This ground complains that the learned trial judge restricted the directions on self-defence to directions under s 271(2) of the Criminal Code.  Section 271 provides:

“(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) 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 the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

23. Mr Henry does not complain about the contents of the directions actually given on s 271(2). His complaint is that none were given on s 271(1), and that the learned judge did not give express reasons for excluding, as the judge impliedly did, the possibility of a defence based on s 271(1).

24. The transcript does record that in discussions with counsel as to the directions to be given, the judge established with Mr Peachey's counsel at the trial that the starting point was that the jury had to be satisfied beyond reasonable doubt that the injury amounted to grievous bodily harm, and if not so satisfied, they would find Mr Peachey not guilty. The learned judge went on:

“That would be their starting point.  So if they’re satisfied beyond doubt that it was grievous bodily harm, they then turn to the sections dealing with self defence.  That would be section 271(2).”^[21]

And the learned judge went on to quote the section.^[22]

25. The learned judge was not asked at any stage to direct the jury on a defence under s 271(1), and it appears from the recorded discussion that at the trial Mr Peachey’s counsel was quite satisfied that the appropriate directions were limited to ones under s 271(2). That means that for Mr Peachey to succeed on this ground of appeal, he must show that a direction on s 271(1) should have been given and that it is reasonably possible the failure to give it may have affected the verdict (Dhanhoa v The Queen (2003) 217 CLR 1 at 15).

26. Directions under s 271(2) contain requirements making it potentially more difficult for a defendant to rely on that defence, than do those under s 271(1). The conviction means the jurors necessarily rejected a defence based on s 271(2), and it is very likely that that was simply because the jurors were satisfied that Mr Peachey was not unlawfully assaulted by Mr Dekker as Mr Peachey claimed, namely by Mr Dekker’s two alleged threats to use a knife and the movement understood by Mr Peachey (and Mr Bergin) as Mr Dekker’s perhaps reaching for one. But it is a possibility that the jurors gave Mr Peachey the benefit of the doubt on that point, but were nevertheless satisfied that a defence under s 271(2) had been excluded for other reasons; including that the jurors were satisfied that Mr Peachey did not believe on reasonable grounds that he could only protect himself by kicking Mr Dekker.

27. For a defence under s 271(1) to be available it would be necessary that the Crown failed to persuade the jury that the force that Mr Peachey used was likely to cause grievous bodily harm. The fact that grievous bodily harm was caused does not necessarily mean that it was likely to be caused from the force used by Mr Peachey, and on this possible defence under s 271(1) the matters established by trial counsel in cross-examination with Dr Streetfield were particularly relevant. That is, the argument was open on that evidence that the jurors could not be satisfied that the force used was likely to cause grievous bodily harm, even though they could be satisfied that the nature of the actual injury that occurred did in fact endanger life, or was likely to. Those were different questions.

28. I respectfully consider that the learned judge fell into error in apparently equating the fact that grievous bodily harm had been caused with the question whether the force Mr Peachey used was likely to produce that result. In this trial that mistake produced an error which denied Mr Peachey the possibility of a defence which may have succeeded before the jury, if the Crown could not disprove that Mr Peachey had been assaulted (by a threat made) by Mr Dekker. I am satisfied it is inappropriate to apply the proviso in s 668E(1A) of the Criminal Code, because it is not possible to conclude that the error would have had no significance in the verdict.^[23]  I would allow the appeal on this ground.

Ground 3

29. Mr Henry submitted that the directions the learned judge gave the jury on s 23(1)(b) of the Criminal Code were defective in that they rendered irrelevant the foreseeability of Mr Peachey’s kick striking Mr Dekker’s head.  He submitted that the test ultimately put to the jury dealt only with the foreseeability of the consequence of a kick to the head.

30. Section 23 relevantly provides:

“(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for –

(a) an act or omission that occurs independently of the exercise of the person’s will; or

(b) an event that occurs by accident.”

The directions the learned judge gave the jury included the following direction:

“The first one I want to talk to you about is accident.  If a person does grievous bodily harm to another person by accident, then it is not unlawful; they are not criminally responsible for it.  Insofar as this case is concerned, what you need to consider is this.  Now, the possibility of accident is raised on the evidence and it is a matter for you to consider whether it has any viability or not.  Mr Peachey has told you he did not intend to kick Mr Dekker in the face, in the head, and that is a matter for you to decide whether you are satisfied he is telling you the truth or whether you are satisfied that he is not telling the truth...

“...[o]nce the possibility of accident is raised Mr Peachey does not have to prove to you that it happened by accident.  You may only find him guilty if you are satisfied beyond reasonable doubt that it was not an accident... Part of that may involve the question of whether or not he intended to kick Mr Dekker in the head or whether he intended to kick him in the body.  Your own commonsense would tell you that in terms of the possible consequences of [sic] a kick could well be different between kicking someone in the body and kicking someone in the face.”^[24]

31. The directions continued very soon after:

“So in summary, in order to, as it were, reject the possibility of accident and find Mr Peachey guilty because of the rejection of accident, you must be satisfied beyond reasonable doubt that an ordinary person in Mr Peachey’s position would have foreseen the possibility that Mr Dekker would suffer a fracture which would be likely to result in him bleeding to death without the intervention of medical treatment.  You are ordinary people.  That is why you are here to assist us by telling us what ordinary people think.  So you put yourself in Mr Peachey’s position and in considering this question of accident ask yourselves this: Are you satisfied beyond reasonable doubt that an ordinary person in Mr Peachey’s position, there on the street that night, would have foreseen the possibility – not that it was going to be a result but would have foreseen the possibility – that Mr Dekker would suffer a fracture which would be likely to result in Dekker bleeding to death without the intervention of medical treatment if he kicked him in the face?”^[25]

32. In part the last direction may be too favourable to Mr Peachey in the sense that it requires foresight of the actual mechanism of the grevious bodily harm being suffered, whereas in R v Stuart [2005] QCA 138 the unanimous decision of this Court was to the effect that it was sufficient if an ordinary person in a defendant’s position would have foreseen serious injuries similar to those actually incurred, as a possible outcome of the defendant’s actions.^[26]  In Stuart this Court approved the suggested direction in the Queensland Supreme and District Courts Benchbook that:

“Unless the prosecution proves beyond reasonable doubt that an ordinary person in the position of the defendant would reasonably have foreseen [serious injury] as a possible outcome of his actions, you must find him not guilty.”^[27]

33. In other respects the directions quoted were not favourable to Mr Peachey. One critical matter for the jury to determine was what Mr Peachey had done. They had to decide if the prosecution had proved beyond reasonable doubt that Mr Peachey deliberately kicked Mr Dekker in the head, or whether the prosecution had proved that Mr Peachey deliberately kicked at Mr Dekker without caring where the kick landed, or kicked at Mr Dekker intending to kick his torso but kicked his head. Mr Peachey was entitled to a direction that if the jury had any doubt about the intention, then all that had been established was that Mr Peachey kicked at Mr Dekker and in fact kicked his head.

34. The learned judge drew that to the jury’s attention in the first part of the quoted directions, while the later directions quoted focused on what an ordinary person would foresee from a kick in the face. By itself that latter part of the direction did not do any injustice to Mr Peachey, but the jurors were not directed to consider whether they were satisfied beyond reasonable doubt that an ordinary person in Mr Peachey’s position would have foreseen grievous bodily harm – resulting from a fractured cheek bone – as a possible outcome of kicking at Mr Dekker. Whatever the jury concluded about Mr Peachey’s actions, whether they were an intentional kick to the head or only an intentional kick at Mr Dekker, it was also relevant to remind the jurors in the terms of the suggested direction in the Benchbook that when considering the possibility of an outcome, the jury should exclude possibilities that were no more than remote and speculative.^[28]  That direction was not given, and the learned judge did not remind the jury of Dr Streetfield’s evidence that the injury itself was out of the ordinary and causing an unexpected degree of bleeding.

35. The learned trial judge did direct the jurors in more general terms that did not assume Mr Peachey’s act was a kick to the head as distinct from a kick, at a later stage of his summing up and in re-directions. The directions given later in the general summing up included:

“In order to reject the possibility that it occurred by accident you must be satisfied beyond reasonable doubt that an ordinary person in the position of Mr Peachey would have foreseen the possibility that Mr Dekker would suffer a fracture which would be likely to result in Dekker bleeding to death without the intervention of medical treatment.  So that’s the way, and the only way, in which you can decide that you can reject the possibility of accident.”^[29]

And later, in redirections:

“So you may only find the kick unlawful on the basis that it was not an accident if you are satisfied beyond reasonable doubt that an ordinary person in Mr Peachey’s position would have foreseen the possibility that Mr Dekker would suffer a fracture which would be likely to result in him bleeding to death without the intervention of medical treatment; not that any ordinary person would actually foresee that it will happen, it is going to happen.  But you must be satisfied beyond reasonable doubt that an ordinary person in the position of Mr Peachey would have foreseen the possibility that Mr Dekker would suffer a fracture which would be likely to result in him bleeding to death without the intervention of medical treatment.”^[30]

36. Those directions left it to the jury to decide what Mr Peachey’s actions actually were, and therefore what would have been the position of an ordinary person in Mr Peachey’s position. But those directions did not refer to Dr Streetfield’s evidence. The only part of the summing up in which the learned judge did refer to the medical evidence was when directing the jurors on whether grievous bodily harm had been proved. Those directions did not refer to Dr Streetfield’s evidence as to the actual mechanism of the grievous bodily harm being out of the ordinary, nor that degree of bleeding was unexpected.

37. In those circumstances I respectfully consider the jurors did not receive the assistance to which they were entitled on all of the issues relevant to the defence of accident. More should have been said about unexpected or out of the ordinary consequences when giving directions on the significance of what an ordinary person in Mr Peachey’s position would reasonably have foreseen, as a possible result of what he did.

38. A proper direction would have included that the issue was whether an ordinary person in Mr Peachey’s position would have foreseen serious, that is life threatening or permanent, injury of the nature of grievous bodily harm as a possible outcome of Mr Peachey’s actions. If the jury was satisfied that his action was a deliberate kick by a fit strong man to another person’s unprotected head when the latter was on the ground, it would have been open to the jury to exclude accident as a defence.

Section 23(1)(a)

39. Mr Henry also submitted that the learned judge should have left the first limb of accident, s 23(1)(a), to the jury. He submitted that it was open to the jurors to conclude that the impact between Mr Peachey’s leg with Mr Dekker’s head was an act which occurred independently of the exercise of Mr Peachey’s will. Mr Henry referred in that submission to the decision in Ugle v R (2002) 211 CLR 171, a case in which the High Court relatively recently considered s 23(1)(a) and its application. 

40. That particular case is readily distinguishable on the facts, the issue there being whether the stabbing of the deceased’s chest by a knife held by the defendant was the deceased’s act or the defendant’s. The judgment in Ugle accepts the position described in The Queen v Falconer (1990) 171 CLR 30, that in s 23(1)(a) the “act” is the (death or injury) causing act.^[31]  That description was accepted as sufficient in Ugle.^[32]  Mr Peachey deliberately kicked at Mr Dekker, and to argue that his foot hitting Mr Dekker’s head occurred independently of Mr Peachey’s will, simply because Mr Peachey intended to kick the torso but Mr Dekker moved, is no different from arguing that Mr Ugle could have pleaded the same defence if he had intended to stab the deceased in that case in the stomach, but stabbed the chest because the deceased moved.  Nothing in the judgments in Ugle suggests that in those circumstances a defence under s 23(1)(a) would have been open.  It is the same as the proposition that if, instead of kicking Mr Dekker, Mr Peachey had fired a pistol at him from some metres away, intending to hit Mr Dekker’s upper arm but hitting instead his chest because Mr Dekker moved, that that defence would be equally available there.  It would not.  Being a poor shot, or a good shot whose target moved, is not a defence under s 23(1)(a) in respect of injury caused by a kick or a shot.

Ground 4

41. That ground complains of misdirection as to the evidence relevant to whether Mr Dekker’s injury amounted to grievous bodily harm, and as to what constituted grievous bodily harm.

42. The learned judge directed the jury to the relevant part of the definition of grievous bodily harm, namely “[a]ny bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life whether or not medical treatment is or could have been available.”^[33]  One complaint about the directions is that the judge directed the jury that “likely” means a “serious possibility. Not just some remote or theoretical possibility; a real possibility.”^[34]  Another complaint made is that when quoting Dr Streetfield’s evidence the learned judge unwittingly changed the evidence quoted earlier that:

“I’d say it was highly probable he may well have died if he hadn’t got that treatment”

to:

“I’d say it was highly probably he would’ve died if he hadn’t got that treatment.”^[35] (my emphasis)

43. The other complaint was that the directions the learned judge gave implied there was only one inference open on Dr Streetfield’s evidence, namely that the injury amounted to grievous bodily harm, when a competing inference was available. That third complaint was the one advanced most strongly, and the submission relied on the fact that Dr Streetfield had never expressly opined that Mr Dekker’s injury was likely to have endangered his life. Mr Henry emphasised that Dr Streetfield had said that Mr Dekker “could” well have bleed to death, not that he would have. Mr Henry made plain that his submission was not that the jury should have concluded that grievous bodily harm had not been proved; it was that the evidence left open the inference that it had not been, and the directions somewhat overrode that possibility.

44. Those directions did quote the passage in evidence in which the learned judge asked questions of the doctor, and directed the jury that:

“It is a matter for you but you might think on the basis of Dr Streetfield’s evidence, if you accept it – and it is a matter for you to decide whether you accept it – you might come to the conclusion that this injury sustained by Mr Dekker, in other words the injury to his face resulting in the bleeding, if it had been left untreated, it would endanger or be likely to endanger life.  As I said that is a matter for you.”^[36]

45. Mr Henry submitted that the learned judge erred in not reminding the jurors that Dr Streetfield had not expressly used the word “likely”, in (faintly) misquoting the evidence, and generally in not putting to the jury the possibility that they would not conclude grievous bodily harm had occurred. But with respect, I consider those criticisms of this part of the direction are too refined; Mr Henry was quite correct in his express acknowledgement that the evidence did allow the jurors to conclude that Mr Dekker’s injury if left untreated would be likely to have endangered his life. On the evidence, it did endanger his life.

46. As to the synonyms suggested for “likely”, those accord with suggested directions in the Benchbook, but which may be disapproved in the reserved decision in the High Court in Darkan, Deemal-Hall & McIvor v The Queen.^[37]  The appellants in that case accepted in argument on the appeal in the High Court that “probable” in s 8 of the Criminal Code, if any elaboration on its meaning is necessary, has the meaning “likely”.  That submission in turn relied on some of what was said in Brennan v The King (1936) 55 CLR 253; the arguments in the appeal in Darkan contended that it was an error to introduce concepts of possibility and degrees of possibility as synonyms for “probable”, although “likely” was permissible, if an explanation was needed.  Whatever the outcome in that case I do not consider the directions the learned judge gave in this one would have resulted in the jurors misapplying the proper test, namely whether Mr Dekker’s injury endangered his life or was likely to endanger it.  I would dismiss that ground of appeal.

47. Accordingly, I would set aside the verdict and order a retrial. It is a matter for the Director of Prosecutions whether the period of imprisonment already served by Mr Peachey makes a re-trial unnecessary in the overall interest of justice.

48. CHESTERMAN J: I agree with Jerrard JA.

49. MULLINS J: I agree with Jerrard JA.