SUPREME COURT OF QUEENSLAND

Introduction

1. de JERSEY CJ:  The appellant was convicted by a jury of the offence of unlawfully doing grievous bodily harm, on 8 July 2005, to one Anthony Seeto.  He was sentenced to five years imprisonment.  He was at the time a 38 year old man, with no prior criminal history.  He appeals against the conviction, and also applies for leave to appeal against sentence. 

2. The ground of appeal against conviction is that it is unsafe and unsatisfactory. In his outline of argument, the appellant has additionally contended that the trial Judge erred in leaving self defence under s 271(1) of the Criminal Code for the jury’s consideration, and in not permitting the jury to have with them, in the jury room, a copy of the statement of Yini Shi. 

3. At the trial it was common ground that the appellant inflicted grievous bodily harm upon the complainant. The issue was whether the prosecution established that he did so unlawfully.

The evidence

4. The incident occurred at a boarding house where the appellant and the complainant occupied separate, adjoining rooms. Their past relationship had not been a particularly friendly one.

5. On the day of the offence, the complainant, who was mopping a floor upstairs at the residence, heard an argument downstairs involving his friend David Kennedy. The complainant went downstairs. Accounts of what transpired came from four sources: the complainant, his friend David Kennedy, the appellant and Yini Shi. The first three gave oral evidence. Yini Shi was unable to give evidence because she was in China.  Her written statement was read to the jury, as constituting her evidence, that admission being made pursuant to s 644 of the Criminal Code (Record Book, page 136 line 15, page 7, line 35, and Ex “A” for identification).  The accounts of the complainant and Mr Kennedy were substantially to the same effect.  The account of the appellant was substantially different, and arguably gained some support at least from the version of Yini Shi.

6. The complainant’s account was that downstairs, he went over to the appellant and asked what was the problem, whereupon the appellant punched him in the chin. The complainant returned one punch. The appellant went to the kitchen, returning with a meat cleaver raised above his head. He swung it downwards towards the complainant, who put up his left arm to protect himself. The arm was then cut by the meat cleaver. To avoid further harm, the complainant restrained the appellant in a bear hug. The two men fell through a doorway onto a patio and rolled out onto a grassed area. The appellant was on top of the complainant, threatening to kill him. In response to the complainant’s call for help, Kennedy hit the appellant with the mop, and the appellant withdrew.

7. As mentioned, Kennedy’s account was substantially the same. He gave evidence of the earlier argument, in which the appellant complained about Kennedy’s being there, because he was not a tenant, and jostled him. Kennedy said two or three punches were thrown in the initial incident between the complainant and the appellant. The appellant took only a few seconds to arm himself with the meat cleaver. Ultimately, the hit to the head with the mop did not stop the appellant, on Kennedy’s account: Kennedy had to threaten the appellant with a chair. In his oral evidence, Kennedy conceded some inconsistencies between his account given in court, and his account to police officers.

8. The appellant’s account was that Kennedy initially swore at him, and assaulted him. The appellant went inside the residence, to be confronted by the complainant, who punched him. The appellant returned the punch. The appellant then went and got the knife. He said to the complainant: “Back off…you attacked me.” It was on the grass that the complainant must have been cut, on the appellant’s evidence. The appellant said that he feared serious injury or death. He believed the complainant and Kennedy had a stick and a chair. He said: “They attacked me and then I was on my back. I get the knife in my hand, so I waved my knife…to protect me.”

9. Yini Shi described a more protracted series of events. The complainant tried to separate the scuffling appellant and Kennedy in the kitchen area. It was about five minutes later, on Ms Shi’s account, that the appellant twice said: “You attacked me.” Some time later, Ms Shi saw the appellant fetch the knife. Then she went to her room.

Section 271(1) Criminal Code

10. The appellant complained that the first limb of s 271 was left to the jury, where defence counsel asked that it not be left. The appellant’s point is that the jury would easily have excluded that limb of the provision, because the use of a meat cleaver was likely to cause grievous bodily harm. The appellant submitted that leaving the defence was therefore a needless distraction for the jury, and may have deprived the appellant of a chance of acquittal.

11. The short answer to this contention is that the Judge was obliged to leave s 271(1) for the jury’s consideration, because it was raised as a live issue by the evidence. See Van den Hoek v R (1986) 161 CLR 158, 161-2.  The Judge was not excused from that obligation because the defence did not wish to rely on the particular provision (cf Fingleton v R (2005) 216 ALR 474, [83] per McHugh J).  Defence counsel at the trial raised only the matter of possible confusion, not some other particular forensic motivation.  It is not necessary in this case to decide whether a defence, arising on the evidence, must be left if the defence disavows it for some particular, articulated forensic reason perceived as important to the defence approach.

12. The Crown Prosecutor expressly asked that the defence be left, pointing to the appellant’s evidence as to the way he used the implement: “He just had a knife and was waving it without much force (RB, page 253, page 241 line 30)”. That was the Prosecutor’s summation of the evidence, which had included a demonstration by the appellant (RB, page 213). An arguably significant point is that on the appellant’s evidence, he was waving the weapon about in the dark, and not aiming it at his assailants That evidence left open the factual question whether the prosecution had established that any force used was “likely to cause…grievous bodily harm” (in particular).

13. The direction suggested in the Supreme and District Courts Benchbook does not include an explanation of what “likely” means in this provision. The Judge prudently followed the benchbook. The jury found the injury a likely consequence of the use of the meat cleaver.

14. It is really not necessary to dwell here on the precise meaning of “likely” in this provision. It is an ordinary English word, and its ordinary meaning is well understood. But then again, so is “probable”; yet it takes a particular meaning from its context in s 8 of the Code, as being something which could well happen (Darkan v R (2006) 227 CLR 373, 298-99) – something more than “reasonably possible” (p 393).  Further, “likely” in s 302(2) of the Code means there is a substantial chance, one which is “real and not remote” (Boughey v R (1986) 161 CLR 10, 21; R v Hind and Harwood (1995) 80 A Crim R 105, 141).

15. But it is not necessary to analyse further the precise ambit of the word “likely” in s 271.  It was enough for this jury to consider whether the prosecution established beyond reasonable doubt that the force used by the appellant, in manipulating the cleaver, was likely to cause death or grievous bodily harm.  On the evidence I have mentioned, that was an open question.

16. The Judge was duty-bound to take the course he did.

17. An observation made in R v Willett [2005] QCA 339, [16], is apposite to this case:

“It is true that, objectively speaking, there was little or no real prospect that self defence would succeed…But as Gibbs J said of self defence in Viro v The Queen (1978) 141 CLR 88, 118, ‘a judge, if in any doubt as to whether there is sufficient material to raise such an issue, should leave the issue to the jury’. 

18. In Willett it was likewise suggested that leaving s 271(1) could have confused the jury.  But as McPherson JA pointed out, ‘there (was) nothing to show that they went about their task in a confused way’.  This jury retired at 1.04 pm, returning with a verdict at 4.16 pm the same day, without in the interim having sought any further direction.

Statement of Yini Shi

19. The Judge declined the defence request that the jury be allowed a copy of this statement. The jury had been reminded of its content in the summing up. The Judge equated the statement with a transcript of evidence (RB, page 137), and was concerned that leaving a copy with the jury may have led to its being given undue emphasis. In the end, defence counsel did not press his request (RB, page 159 line 29).

20. Ms Shi gave evidence at an earlier trial at which the jury could not agree. Defence counsel at the second trial “definitely did not want” (RB, page 11 line 5) to have Ms Shi’s evidence given at the first trial read out to the jury at the second.

21. The appellant contended that fairness required that the jury be given the written statement, because he, the appellant, suffered the disadvantage of the absence of the witness in person, whereas the other supporting witness, Mr Kennedy, was present to give evidence. On the other hand, Ms Shi was not subjected to cross examination by the Crown Prosecutor.

22. The admission precisely made under s 644 was that the content of the statement constituted Ms Shi’s intended evidence. By agreement, the statement was subsequently read to the jury (RB, page 138). In formal terms, there was therefore a further implicit admission that what was read to the jury comprised the content of the written statement. By those means, Ms Shi’s account was placed before the jury, and in a regular way, became evidence.

23. But the statement in documentary form was not evidence: it was never tendered. That being so, it could not have been put before the jury.

24. All that could possibly have been done would have been to give the jury the transcript of the reading out of the statement. It follows from the Judge’s approach that, on discretionary grounds, he would not have allowed that transcript to go to the jury.

25. For present purposes, it suffices to note that the Judge was asked to give the jury the statement itself, which in strictness could not have occurred. But in broader terms, no injustice was even arguably occasioned by the course taken in respect of this matter.

Reasonableness of verdict

26. In his outline, the appellant refers to evidence given about the presence of blood in particular. That the blood may have been substantially outside, and may not substantially have covered the appellant’s clothing, did not necessarily erode the prospect of conviction. That was a matter for the jury’s consideration at the trial, and was not a feature which can or does assume predominance at the appeal.

27. In the end, the jury were perfectly entitled to accept the version given by the complainant, especially supported as it was by the evidence of Mr Kennedy. That on the account of Ms Shi, the appellant accused the complainant of attacking him, was not necessarily of crucial consequence in contradiction of the complainant’s account. Ms Shi’s account, significantly, did not substantially support the account given by the appellant.

28. The complainant’s account plainly negatived both limbs of s 271.

29. A review of the evidence confirms that the verdict of guilty was a verdict the jury could reasonably return (cf MFA v R (2002) 213 CLR 606, 615, 623).

A defence of accident?

30. There is one other matter which may for completeness be mentioned, although it was not raised in the notice of appeal or the outlines. At no stage did either party raise with the Judge whether the defence of accident under s 23(1)(b) of the Criminal Code should be left for the jury’s consideration.  Neither did the Judge expressly refer to it.  That is explained by the difficulty of seeing how that defence could have arisen. 

31. Taking the best position for the defence, that is, the position which arose on the appellant’s own evidence, the appellant was lying on his back on the ground, in the dark, waving a meat cleaver about in the course of a continuing scuffle, where the appellant was “almost in front” of him (see RB, page 213 lines 40-60, for example).

32. The question to be addressed under s 23 is would an ordinary person in the position of the appellant reasonably have foreseen the suffering of this grievous bodily harm (the “event”) as a possible outcome of the circumstances briefly summarized in the last paragraph – that is, something which could happen, excluding remote or speculative possibilities. See R v Van Den Bemd [1995] 1 Qd R 401, 404; (1994) 179 CLR 137; R v Taiters [1997] 1 Qd R 333, 338; Stevens v R (2005) 227 CLR 319, 368.  The answer would necessarily have been “yes”, so that s 23 did not arise.

33. By contrast, the issue which arose under s 271(1) was whether the force used was likely to cause death or grievous bodily harm. For reasons discussed above, that was factually more open and arguable, as no doubt the Crown Prosecutor rightly apprehended in urging that that defence must be left for the consideration of the jury.

34. The appeal against conviction should be dismissed.

Application for leave to appeal against sentence

35. The complainant was seriously injured. Absent treatment, the hand would have been amputated, or if not, left useless. The complainant underwent surgery and a skin graft. The residual consequence is permanent nerve damage. A course of physiotherapy and exercise returned movement only to the thumb and index finger. The others are crippled.

36. The sentencing Judge referred to an absence of remorse, and the applicant’s other personal circumstances. He considered a recommendation as to eligibility for parole inappropriate – presumably because the applicant had taken the matter to trial.

37. The applicant challenged His Honour’s having proceeded on the basis that the jury likely accepted the evidence of the complainant and Kennedy as excluding self-defence, rather than its being a case where excessive force was used in self-defence. The Judge was entitled to see the former as the more likely explanation for the verdict. That the jury took no more than about three hours in its deliberations is of no present significance.

38. The applicant’s challenge to the extent of the complainant’s residual disabilities cannot be sustained. It was sufficiently supported by the medical evidence before the Judge.

39. The applicant submitted that the sentence proceeded on a “clear factual error of substance” and should be reopened under s 188 of the Penalties and Sentences Act.  He referred to R v Ronkovich [2007] QCA 193.  But his contention is essentially that the Judge gave inadequate weight to the applicant’s good work history and his cooperation with the police, and undue weight to absence of remorse – a concomitant of  his plea of not guilty.  That sort of complaint could not bring the matter within the statutory provision.

40. The applicant also sought to minimize the seriousness of the attack on the basis it occurred in a private residence and not a public place. That is of little significance: that the applicant attacked the complainant with a deadly weapon in his own home, where the complainant might have expected guaranteed security, is itself a very serious consideration.

41. Finally, the applicant pointed to the burden resulting from his imprisonment to his children and present de facto partner. As has frequently been pointed out, considerations of deterrence and general punishment must transcend such private issues.

42. Notwithstanding the applicant’s past history of employment and the absence of any prior criminal history, a sentence of five years imprisonment for an attack of this savagery, with a meat cleaver, for minimal cause, leading to serious permanent incapacity for the complainant, carried out within a private home, cannot be regarded as manifestly excessive, or indeed excessive at all. It was an appropriate sentence (cf R v Johnston [2004] QCA 12).  Further, since the matter went to trial, it was entirely within the Judge’s discretion not to ameliorate that sentence by adding a recommendation in relation to parole.

43. The application for leave to appeal against sentence should be refused.

44. McMURDO P: I agree with the Chief Justice that the appeal against conviction should be dismissed.  Subject to the following observations, I also agree with his Honour's reasons in which the relevant facts and issues are set out. 

45. It may sometimes be unnecessary or inappropriate to leave self-defence under both s 271(1) and s 271(2) to the jury.  As this Court observed in R v Bojovic,^[1] the consequence of a judge summing-up on both limbs may sometimes be to cause confusion and to detract from proper consideration of the true defence.  This Court recognised, however, that:

"The necessity for directions under both limbs may arise in cases where the circumstances are arguably but not clearly such as to cause a reasonable apprehension of grievous bodily harm on the part of the accused. … It is only cases in the grey area where it is arguable but not sufficiently clear that the requisite level of violence was used by the [complainant] that directions under both subsections will be desirable."^[2]

46. This was such a case. It is common ground that s 271(2) was raised on the evidence. That was the appellant's case at trial. Even on the appellant's evidence, his assailants were not armed with traditional weapons such as a knife or a gun. They had not seriously physically assaulted him with the weapons he claimed they used (a stick and a chair) before he tried to scare them by waving around the knife, a formidable looking cleaver, resulting in serious injury to Mr Seeto. On the other hand, on his version the two assailants acted in concert and had shortly before punched him and made his face bleed. According to the appellant, at the time he wielded the knife his assailants were threatening him with a stick and a chair and the "two of them jump[ed]" on him whilst he was lying on the ground and he feared for his life. The level of violence he alleged they had used or threatened against him by the time he wielded the knife was not unequivocally such as to persuade a jury that it may have caused him apprehension of death or grievous bodily harm (s 271(2)).  He claimed he waved the knife about during his scuffle with Mr Seeto and Mr Kennedy without intending to strike and not realising the knife had struck Mr Seeto.  The effect of this evidence, though far from compelling in light of the objective facts, was sufficient to raise s 271(1) for the jury's consideration. 

47. It is well established that where there is any doubt about whether a defence is raised on the evidence the prudent course is for a trial judge to leave it to the jury: see, for example, Viro v The Queen^[3] and R v Willett.^[4]  A judge has that obligation even if the parties do not ask that the issue be put to the jury: Van den Hoek v The Queen.^[5]  In the present case the defence specifically requested that the exculpatory provisions of s 271(1) not be left for the jury's consideration, even if raised, because they might weaken the impact of the defence submissions on s 271(2).  The primary judge ultimately determined that he ought to direct the jury on s 271(1).  As the authorities recognise, that is usually the prudent course.  In determining whether to direct a jury, contrary to the wishes of the defence, on an exculpatory matter fairly raised on the evidence, the overriding consideration for a trial judge will always be fairness and the interests of justice in light of the evidence, issues and the conduct of the trial.  I am not persuaded that the learned primary judge erred in leaving s 271(1) for the jury's consideration. 

48. That being so, it was for the jury to decide whether the prosecution proved beyond reasonable doubt that the appellant's waving of the knife in the circumstances set out above was likely to cause death or grievous bodily harm so as to negate this aspect of self-defence in s 271(1). No complaint has been made about his Honour's careful jury directions on s 271. I do not consider it helpful in determining the issues in the present case to attempt to define the term "likely" in s 271(1). It is a word in common use. Jurors should give it its ordinary meaning. The primary judge explained s 271(1) to the jury in its terms without attempting to explain the meaning of "likely". Unsurprisingly, the jury did not ask for assistance as to the meaning of "likely".

49. Even were I wrong and s 271(1) was not raised on the evidence, I am satisfied that the leaving of this exculpatory issue for the jury's consideration has not resulted in any miscarriage of justice: s 668E(1A) Criminal Code.

50. On the view of the evidence most favourable to the appellant, the defence of accident under s 23(1)(b) Criminal Code was not raised.  At its highest, on the appellant's version he waved around the knife during a scuffle with his assailants to scare them whilst he was lying on his back on the ground in the dark.  Mr Kennedy was on his right and Mr Seeto "almost in front of" him.  As I have mentioned, the knife was a large cleaver.  The appellant gave evidence that he did not intend to injure Mr Seeto.  He gave no evidence as to whether he foresaw that he could seriously injure Mr Seeto by waving the knife around in the way in which he claimed he did.  On the evidence given at trial, an ordinary person in the appellant's position inevitably would have reasonably foreseen that serious injury to Mr Seeto was a possible outcome of the appellant's waving around of the knife.  The exculpatory provisions of s 23(1)(b) were not raised.  This is not inconsistent with leaving s 271(1) for the jury's consideration.  Proof that foreseeable serious injury to Mr Seeto was a possible outcome of the appellant's conduct (s 23(1)(b)) was a lower threshold for the prosecution in negativing the defence than proof that death or grievous bodily harm was likely from his conduct (s 271(1)).  No doubt that is why defence counsel did not ask the judge to sum up on the defence of accident; the judge did not sum up on it; and the failure to do so is not a ground of appeal.  As the evidence did not raise the defence of accident, the judge was right in not addressing the jury on it.

51. The learned primary judge was also right to resist providing the jury with Ms Shi's written statement or the transcript of its reading to the jury. The jury did not request it. The judge re-read Ms Shi's statement to the jury during his summing-up. Had the judge taken the course urged on him by defence counsel there was, as his Honour rightly identified, the risk that the jury would give undue emphasis to it as against the other oral evidence, including the evidence of the appellant: cf the position apposite when a witness statement becomes evidence under s 93A Evidence Act 1977 (Qld) as discussed in R v H.^[6]

52. I agree with the Chief Justice that the sentence of five years imprisonment was not excessive, even without an early recommendation for parole eligibility. The appellant did not have the mitigating factors of an early plea of guilty or cooperation with the authorities which often justify an early recommendation. His commendable antecedents and the absence of any prior convictions, together with the remorse he appeared to finally express in this Court about his actions and the injuries he caused to the complainant, suggest he will be a promising candidate when he becomes eligible for parole after serving 50 per cent of his sentence.

53. The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

54. FRYBERG J: Most of the circumstances giving rise to this appeal are set out in the reasons for judgment of the Chief Justice.  I need not repeat them.  Nor need I refer to the ground relating to the statement of Ms Shi: on that matter I substantially agree with what the Chief Justice has written.

55. The questions arising in relation to s 271 of the Criminal Code are more complex. The first two are, was s 271(1) raised by the evidence, and if not, has there been a miscarriage of justice by reason of the directions given by the trial judge in relation to it. Consideration of that evidence gives rise to the further question, should the jury have been given directions in relation to s 23(1)(b).

Section 271(1)

56. There can be no doubt that if a defence is not raised by the evidence, there is no occasion for a direction to be given in relation to it. Whether a defence is raised is a question for the trial judge. In the present case that question can be summarised (adapting the words of the High Court^[7] in a case of provocation): on the version of events most favourable to the accused which is suggested by material in the evidence, might a jury acting reasonably fail to be satisfied beyond reasonable doubt as to at least one of the elements of s 271(1).  It has been recognised that in answering that question, a trial judge may naturally be reluctant to withdraw a defence from the jury, but an appellate court “must apply the test with as much exactitude as the circumstances permit”^[8].

57. In order to answer that question it is necessary to consider how the defence might apply to the facts of the case and whether those facts give rise to any difficulties of interpretation of the relevant section. If such difficulties appear, they must be resolved before the question is addressed.

58. In the present case one such difficulty arises out of the word “likely”. It is further complicated by the fact that the relevant element is expressed in the negative: “not … likely to cause death or grievous bodily harm”.

Likely

59. The words “possible”, “likely” and “probable” are all used in the Code. There are two instances of “possible”, 54 instances of “likely” and five of “probable”. The two instances of “possible” were added by way of relatively recent amendment as were three of the five instances of “probable” and a number of those of “likely”.^[9]  It would be unsound to presume that any of the three words necessarily has the same meaning on every occasion it is used, or that the relativity between “likely” and “probable” remains constant.  The matter is one dependent upon context.

60. Section 271 is part of ch 26 of the Code. That chapter deals with matters of justification and excuse in relation to assaults and violence to the person generally. The expression “likely to cause death or grievous bodily harm” occurs in another three places in that chapter: ss 258, 269 and 270. A similar, although not identical, expression occurs in s 302(1)(b) and s 306 (ch 28) where murder and attempted murder are defined: “likely to endanger human life”.  Similarity of subject matter and proximity of use suggest that in these contexts at least, the meaning of “likely” does not vary.

61. I have found no case which deals directly with the meaning of “likely” in s 258 or ss 269-271 of the Queensland Code.  However in Boughey v The Queen the High Court considered the meaning of “likely to cause death” in the Tasmanian Criminal Code.  In that context the majority (Mason, Wilson and Deane JJ) wrote:

“In our view, the word ‘likely’ is used in both ss 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a ‘real and not remote’ - chance regardless of whether it is less or more than 50 per cent.”^[10]

Section 157 dealt with the definition of murder, but in my judgment the passage is apposite in relation to s 271.

62. A similar approach was taken by the Western Australian Court of Appeal in construing the Western Australian equivalent of s 302(1)(b). In Macartney v The Queen^[11] Wheeler JA said:

“The section also requires that the act be of such a nature as to be likely to endanger human life.  That is, it must be found beyond reasonable doubt that there was an act which, regarded objectively, was of such a nature as to give rise to a substantial, real and not remote chance that the life of the victim would be endangered.”

On the other hand Roberts-Smith JA seemed to construe the word to mean “probable”.  Steytler P (dissenting on other grounds) was prepared to assume the construction adopted by Wheeler JA.

63. The approach taken by Wheeler JA is similar to that of Pincus JA in R v Hind and Harwood.^[12]  Applying the decision in Boughey to s 302(1)(b), his Honour held that “likely” “conveys the idea that the act in question created a substantial or real chance of danger to human life, regardless of whether that chance was more or less than 50 per cent”.^[13]

64. Darkan v The Queen concerned the construction of “probable” in s 8 of the Code.  The High Court identified four possible meanings:

“In this case the possible meanings of ‘probable’ which were referred  to were, in descending order of likelihood:

(a)more probable than not;

(b)a probability of less than 50/50, but more than a substantial or real and not remote possibility;

(c)a substantial or real and not remote possibility;

(d)a possibility which is "bare" in the sense that it is less than a substantial or real and not remote possibility.”^[14]

(It will be observed that possibility (c) is the meaning which the High Court gave to “likely” in Boughey.)  The court held that “probable” in s 8 has the meaning set out in sub-para (b).  It clearly distinguished this meaning from that in sub-para (c).

65. It cannot be said that the meaning of “likely” in s 271 is free from doubt. However the weight of authority favours giving it the meaning adopted in Boughey.  It may be that after full argument and due consideration, it will be appropriate to adopt some different meaning.  We have had no such argument in this appeal - the appellant was unrepresented.  We should not depart from authority by holding that “likely” means “probable” in the Darkan sense.

The evidence

66. The appellant submitted in effect that s 271(1) was not raised because a finding beyond reasonable doubt that striking someone in an overhead motion with a meat cleaver would be likely to cause grievous bodily harm was inevitable. The respondent submitted that on the appellant's own evidence, taken at its most favourable, such a finding was possible. The appellant's evidence was to the effect that after obtaining the cleaver from the kitchen and telling the complainant to back off, he tried to leave the scene. Because he was moving backward with his eyes on the complainant, he fell when he reached the side door of the house. He landed on the grass outside and continued to threaten the complainant with the cleaver. He began to wave the cleaver in the air above his head. However the complainant jumped on him and must have sustained the injury in the course of the resulting struggle.

67. Counsel for the respondent drew our attention to the following evidence given by the appellant:

“So what happened once you were confronted by Mr Kennedy?-- When I got there and confronted by Mr Seeto and then he throw punching at my face.

He what, sorry? --  He punched me.

What happened then? --  Then, of course, you know, I had a push – a punch back to him, and then I realise my nose, blood coming out.

…

Then from there where have you gone?--  Then from there I got to the kitchen, through that little walkway there.

…

What did you do?-- Then I grabbed the knife.

…

All right.  And you've come back to that position?--   When I come back to that – from here I just said to them, ‘Back off.’  And then I said, ‘You attack me.’

…

What were they doing at that point in time?--  He still – they still – Tony still there and as I recall David start moving towards the coffee table.

Where did you go?--  And then I walk along – I back myself along the bench here and the fridge here and then I got out the sliding door.

How did you go out the sliding door?--  of course I go backward and I tip over - I don't know, the - the rail.

I'll just show you Exhibit 18.  Is that the sliding door you're talking about?--  yes.  Then I backed out of door here.  But, of course, I go backward because I keeping eyes on them, then I tumble outside here, and then I still going backward – I didn’t realise back here – footing – so I tumble back to the grass.

Yes.  So you've fallen out on the grass?--  I fall out, yeah.

What happened after you fell onto the grass?--  So I got out – I mean I was on my back on the grass and two of them jump on me and then I believe one of them use a stick and one holding a chair.

Do you remember what sort of chair it was?--  I believe one of the chair, the metal chair.

… how were you feeling at that stage when you grabbed the knife?-- I just feel, you know, I got attacked by two – two guy and I worry about me, you know, getting serious injury or I might even get killed and when I - - - -

Why did you think that, Mr Trieu?--  Because I been attack and blood come out of my mouth and I worry I get serious injury, and when I – when I got – when I was here I believe Mr Seeto got the stick on his hand or the stick somewhere there.

…

Was that Mr Seeto or Mr Kennedy that had the stick?--  One of them hold a stick, but I – I – I believe that Mr Seeto holding the stick because dark outside.  You know, at night-time - - - - -

Was there - are you aware if there was any lighting above this area?--  No, no lighting outside.

…

So when you've ended up out on the grass on your back what did you do?--  So they attack me and then I was on my back and I got the knife in my hand, so I waved my knife like that to protect me.

You're indicating that you were waving it in your left hand?--  Yes.

Are you right-handed or left-handed?--  Left-handed.

And you were waving it in the air?--  I wave in the air to protect me.

Where was Mr Kennedy and Mr Seeto?--  Mr Kennedy on the - when I lying down like that - so Mr Kennedy on the right and Mr Seeto right - almost in front of me.

And you were waving it around?--  Yeah, I wave it around.

Do you remember what happened after you were waving it around?--  Then after that, you know, they stopped.  I didn’t know I cut him or I touch anything.

What did you do?--  And then I got up and run inside.

…

When you - just finally, Mr Trieu, when you were back on the grass and you say that Mr Seeto and Mr Kennedy were coming for you, can you describe how you reacted to that?--   You mean how I react?

Yes, how - can you describe what you did?--  They come at me so I just wave my knife to protect myself.  I may put my hand up, this hand too, so that's why I got injured here, I'm not sure.  I just wave my knife, you know.  I didn't mean to - I didn't know I cut him or anything like that.

…

CROSS-EXAMINATION

…

Can you again indicate for the court how it was that you were waving the knife?--   I was on my back.  I waved my knife like that.

So that’s just above your head? - - Yes.

It would be – as you were lying on your back - - - ? - - Yes.

- - - - it would be just above where your face was? - - Yes, because the thing coming at me, I think.

…

What happened with the knife when you fell?--  I fell it on my hand.

Sorry, it's still in your hand?--  Yes, I just tumbled backwards like that.

Did you stay on your back?--  Yes.

Why did you stay on your back?  Why didn't you get up?--  Because if I got up - as soon as I got down there then they come outside and jump on me.  So I got no time to get up.

…

Where on your body did you get hit with the chair?--  I am not sure where I got hit, anywhere, you name it, I don't know.

Did you get hit on the hand you were holding the knife in?--  I don't know.  I don't know where I got hit.

You were still waving the knife around at this stage though?--  That’s all I could do and -----

… Was there enough light that you could see the knife you were waving around?--  No, I don’t see it.

You didn't see the knife you were waving around?--  I didn’t see.  I just hold it and just wave like that.

Did you have your eyes shut?--  Because – no, I haven’t got my eyes shut but I wave like that.  You know, I don’t know what I hit, did I hit Anthony or hit David or whoever there or hit the chair or hit the stick you know.

You ---- ?--  I don’t know.

----  can’t say where you hit anything at all.  You don’t recall hitting anything with the knife?--  I don’t know I hit anything.  I – because you got attacked, you know, you don’t worry about ----

…

And all this time your waving a meat cleaver?--  Yes.

And you can't say with any certainty as to whether it hit anything or anyone?--  I don't recall I hit anything.

…

And your evidence is that just in waving it like that -----?--  yes.

----- you don't recall it coming in contact with anything?--  I don’t know I touch – touch him or cut him.”

68. The cleaver which the appellant used was a small kitchen cleaver, not much more than a knife, which was the word the appellant used to describe it. It was very light and, although described as a meat cleaver, appeared adapted for cutting vegetables. It was in poor condition in that the cutting edge was quite badly chipped and bent in a number of places. On the appellant's version it seems that little force was used while he was waving it in the air. He demonstrated how he waved it to the jury, and while we do not have video evidence of that demonstration, the judge described him as waving the cleaver “fairly limply”.^[15]  That does not suggest that the appellant was wielding the cleaver very forcefully.

69. The respondent submitted that the appellant was effectively saying that the force which he used, namely waving a knife around in the dark not knowing at whom he was waving it nor whether he was even going to hit them, was certainly not likely to cause death or grievous bodily harm. Consequently, the judge was correct in directing on s 271(1).

70. Considering the question with as much exactitude as the circumstances permit, I am satisfied that on this evidence it was open to the jury acting reasonably to not be satisfied beyond reasonable doubt that the force used in inflicting the injury was not likely to cause death or grievous bodily harm. It was not inevitable that the Crown would succeed on this matter.

71. It follows that it was not open to the trial judge to withhold s 271(1) from the jury on the ground that it was not raised by the evidence.

The relevance of defence counsel's submission

72. After the conclusion of the evidence and in the absence of the jury, the judge discussed addresses and his summing up with counsel. The following exchange occurred with counsel for the appellant:

“HIS HONOUR:  All right.  I’ll just go back to Mr Whittle for a moment.  You don’t want a direction on the first paragraph of section 271.

MR WHITTLE:  I’m concerned if 271 subsection 1 is left to the jury on this trial on the basis that it may well confuse the jury as to what exactly it is they have to decide.  As your Honour is very well aware, under subsection 1 it’s a totally objective test and then we flip over to subsection 2 which becomes very subjective and we’re – and of course with 272(2) it’s the same, it’s a subjective test with an extra element.  My concern is the jury digesting all of section 271 and 2, and then also having to turn their mind to section 272 may very well confuse them as to what it is they have to determine with self-defence, or putting it another way, what the Crown have to prove.”

73. It is settled law that a direction must be given on a defence which is open on the evidence even if defence counsel does not raise it^[16] and possibly even if defence counsel has abandoned^[17] or disclaimed^[18] it.  However I know of no authority for the proposition that the judge must put a defence which counsel expressly requests not be put.  Such a doctrine could seriously impede the conduct of the defence case and could result in a miscarriage of justice.  I agree with the President that the overriding consideration for a trial judge will always be fairness and the interests of justice in light of the evidence, issues and the conduct of the trial.

74. In the present case it is not necessary to determine the matter. Counsel's submission quoted above is not unequivocal. Even if it be treated as a submission that the defence not be left to the jury, the reason given for it is feeble. The jury was not likely to become confused provided a careful direction was given. Two of the elements of s 271(1) necessarily had to be referred to in any event in the course of a direction on s 271(2).  There is no criticism of the direction which was in fact given and not the slightest reason to think that the jury was in any way confused.  Even if it be the case that the direction should not have been given, it has occasioned no substantial miscarriage of justice.

75. This ground of appeal should therefore fail.

Accident

76. In the course of the hearing in this court, the question of accident (or more precisely, the availability of a defence under s 23(1)(b) of the Code) was raised from the bench. If it was open to the jury to find that the force used by the appellant was neither intended nor likely to cause death or grievous bodily harm, would it not be open to them also to find that the infliction of the harm occurred by accident?

77. Cutting the complainant with the cleaver and inflicting grievous bodily harm upon him was clearly capable of amounting to an event within the meaning of the section. The question is whether on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that it did not occur by accident. That question naturally draws attention to the appellant’s conduct in hitting the complainant with the cleaver. The resulting harm was inseparable.

78. As to what constitutes an accident, the Queensland Supreme and District Courts Benchbook contains the following passage:

“It is settled law that an event occurs by accident within the meaning of [s 23] if it was a consequence which was not in fact intended or foreseen by the defendant and would not reasonably have been foreseen by an ordinary person.  The prosecution must prove that he 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 defendant would reasonably have foreseen the event as a possible outcome.  In considering the possibility of an outcome, you should exclude possibilities that are no more than remote and speculative.”^[19]

That passage reflects the judgment of the court in R v Taiters ex parte Attorney-General.^[20]

79. The word “possible” in the expression “as a possible outcome” connotes an indefinite level of likelihood. Nonetheless it can be placed in the list of meanings suggested by the High Court in Darkan v The Queen.^[21]  The last meaning, a possibility which is “bare” in the sense that it is less than “a substantial or real and not remote possibility” is expressly excluded by the reasons in Taiters.  The second meaning, “a probability of less than 50/50, but more than a substantial or real and not remote possibility” was that which the High Court attributed to “probable” in 8.  The Court held that a correct jury direction under that section would involve referring to “probable” in the sense that the commission of the offence “could well have happened”.  This meaning contrasts with the expression “as a possible outcome” as used in Taiters; it cannot explain that expression.  A fortiori the first meaning suggested by the High Court cannot be applied.  It follows that either the expression bears the third meaning suggested by the High Court, “a substantial or real and not remote possibility”, or it bears some other meaning.  There is nothing in the reasons for judgment in Taiters to suggest that the latter is the case, and it would be most undesirable to create yet another level of likelihood to be communicated to a jury.

80. As I have already noted, the third meaning is that which current authority indicates is borne by “likely”. It is not appropriate in the present case to depart from that authority. I therefore cannot agree that s 271(1) presents a higher threshold for the prosecution than that presented by s 23(1)(b).

81. There is no doubt that on the version of events most favourable to the appellant, the infliction of grievous bodily harm on the complainant was neither intended nor foreseen by the appellant. It was not open to the Crown to displace a defence of accident on either of those bases. But what of the third alternative in Taiters?  On the evidence was the only conclusion open to the jury that an ordinary person in the position of the appellant would reasonably have foreseen the infliction of grievous bodily harm as a possible outcome?  If it was, then s 23 was not raised by the evidence.

82. The evidence which might support an answer favourable to the appellant has been set out above. It can be summarised:

• the struggle between the complainant and the appellant occurred outside the house, in darkness
• the appellant had been carrying the cleaver to scare the complainant and Mr Kennedy for a period of time
• the appellant had backed away from the complainant and Mr Kennedy
• the appellant fell on his back on the grass
• the complainant and Mr Kennedy jumped on the appellant almost as soon as he fell, inferentially unexpectedly
• the appellant was only waving the knife, not aiming blows
• the judge described him as waving the knife “fairly limply”
• the wound inflicted was a cut, not a stab wound
• the appellant did not know that he had struck anyone.

83. On the other hand the appellant did not suggest in his evidence that the complainant jumped onto the cleaver, nor even that he began to wave it before the complainant jumped on him. There is a degree of vagueness in his description of the struggle, but the picture which emerges is one of the complainant and the appellant wrestling on the ground in the darkness, with the appellant waving the cleaver in an attempt to scare the complainant and Mr Kennedy.

84. Had I been the trial judge (and had the possibility occurred to me), I might on this evidence have given the jury a direction on s 23.  Considering the matter here with as much exactitude as the circumstances permit, I have concluded (after some uncertainty) that a jury would necessarily have decided that an ordinary person in the position of the appellant would reasonably have foreseen the infliction of grievous bodily harm on the complainant as a possible outcome of waving the cleaver.  In reaching that decision I have taken into account the whole of the circumstances surrounding the infliction of the harm on the complainant.  It seems to me that this involves wider considerations than those which arise in determining whether the force used by the appellant was likely to cause death or grievous bodily harm.

85. It follows that no direction on s 23 was called for.

Sentence

86. I agree with the reasons for judgment of the Chief Justice.

Orders

87. I agree with the orders proposed by the Chief Justice.