The Queen v Faumunia[2005] QDC 93

[2005] QDC 093

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE RACKEMANN

THE QUEEN

v.

ARTHUR FAALII FAUMUINA

SOUTHPORT

DATE 10/03/2005

EXTRACT OF PROCEEDINGS

RULING

HIS HONOUR:  In this matter a question has arisen as to the proper direction to the jury with respect to section 23 of the Code.

In this case the evidence is that the accused punched Mr Anfield resulting in Mr Anfield falling backwards and hitting his head and incurring a brain injury, which, it is common ground, satisfies the definition of grievous bodily harm.

It is common ground that the jury should be directed in relation to section 23 and, in particular, as to the foreseeability of the event which may have occurred by accident.

The dispute is as to the definition of the event for the purposes of that direction.

There are, of course, cases which distinguish between what is the act and what is the event, but that is not central to the dispute between the parties in this case.  Rather, the dispute relates to whether the event, which must be relevantly foreseeable, is the injury, which in this case constitutes the grievous bodily harm, or whether what must be foreseeable is simply that any type of grievous bodily harm might result from the act.  In that regard I was referred to some decisions of the Court of Appeal.

In the case of R v Taiters 1997 1 QdR 333 it was said at page 335 that:

"It should now be taken that in the construction of section 23 the reference to 'act' is to 'some physical action apart from its consequences' and the reference to 'event' in the context of occurring by accident is a reference to 'the consequences of the act."

If the Crown's contention were correct, that is, that the relevant consequence is just some form of grievous bodily harm, then the event in question, being the consequences of the act, in this case punching, could be related to injuries which have nothing to do with the facts of this case.  So that, for example, it might be foreseeable that, as a result of punching a person in these circumstances, a person would suffer an injury such as a broken jaw or some other type of injury which would fit within the definition of grievous bodily harm.

The defence, on the other hand, contends that the event, being the consequences of the act of punching, must be related to the injury which constituted the grievous bodily harm in the circumstances.

In Taiters case reference was made to Kaporonovski's case as an example.  In relation to Kaporonovski's case it was said:

"The thrusting of the glass by the accused was the act and the injury to the victim's eye which constituted grievous bodily harm was the event."

That formulation appears to be consistent with the contention of the defendant, although the Crown points to a latter passage on the same page in which it is said:

"In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event..."

I am not sure, however, that it is correct to take the reference to, "The state of bodily harm" in that reference to be any state of bodily harm rather than a reference to the harm which constituted the grievous bodily harm in a particular case.

My attention was drawn to two more recent decisions of the Court of Appeal.  The first is the Queen v Camm, the reasons for which were delivered on 1 April 1999.  That case involved a circumstance where the appellant either pushed or threw the complainant when he was standing near a flight of stairs 1 metre above a concrete footpath and a broken hip resulted.  The judgment of McMurdo P refers to the event which occurs by accident as being, "The broken left hip suffered by the complainant."  And went on to say:

"It was accepted in the way the trial was conducted that if the injuries occurred as outlined by the complainant...  then the jury would inevitably have been satisfied that the broken hip was foreseeable."

The joint reasons for judgment of Fryberg and Muir J J also defined the event by reference to the particular injury which constituted the grievous bodily harm in that case. in particular, having referred to the appellant's argument that:

"What must be foreseeable is not grievous bodily harm generally, but the injuries suffered by the complainant."

And having referred to R v Taiters it was said:

"Applying that construction of section 23 to the events in question, the 'act' was the pushing of the complainant by the appellant and the 'event' was the injury to the complainant's hip which constituted the grievous bodily harm."

The joint judgment went on to discuss the relevant circumstances and stated:

"In those circumstances, the possibility of the complainant suffering a broken hip is something which an ordinary person would reasonably have foreseen."

The way in which the event was described in the Queen v Camm is consistent with the defence submissions in this case.

I was, however, also referred to a subsequent decision of the Court of Appeal delivered on 4 June 1999 in R v Watt. Although being decided only a matter of months after R v Camm, there was no reference to Camm's case in the reasons.

In Watt's case reasons were given by Derrington J with whom McMurdo P agreed.  Separate reasons were published by Chesterman J. In the reasons of Derrington J it was said as follows:

"The 'event' to which section 23 refers is the resulting happening of an injury that amounted to grievous bodily harm:

R versus Taiters, ex parte Attorney General [1997] 1 QDR 333. (It may be slightly inaccurate to refer to the relevant condition as death or grievous bodily harm as the event rather than the event constituted by the happening.  Death or injury in the sense of a resulting condition, as distinct from the happening, is not an event:  Of the Distillers Company (Australia) Pty Ltd v. Ajax Insurance Co Ltd (1974) 130 CLR 1 at 19 per Stephen J. However, this distinction will not usually be and is not here significant)."

...

"All that is necessary for the defence is that that event, the happening of the relevant injury, was an unforeseeable consequence of the act for which the accused was responsible:

R versus Van den Bemd (1994) 179 CLR 137."

...

"In assessing this, that, whether the defence is raised in this way will, of course, depend upon the quality of the circumstances themselves."

...

"In assessing this, the correct issue is whether the relevant consequential event is a reasonably foreseeable possibility. It need not be reasonably foreseeable as a certainty nor even as a probable consequences.  This means that it is not necessary that the exact nature of the resulting harm or the mechanical processes of its causation should be precisely understood:

only that harm amounting to grievous bodily harm might possibly follow: cf The Queen v West (unreported) Court of Appeal (Queensland) CA 288 of 1996 - 26 November 1996.

The degree of force which the jury had to accept was used on this young child before it could find that the appellant was responsible for it at all was so serious that the possibility of grievous bodily harm could not have been other than reasonably foreseeable."

The prosecution focused upon the reference in those reasons to the fact that "only that harm amounting to grievous bodily harm might possibly follow" is required and the reference to the fact that in that case "the possibility of the grievous bodily harm could not have been other than reasonably foreseeable".  It might be noted, however, that earlier in the judgment there was a reference to the event being "the happening of the relevant injury".  It would not appear, however, that the identification of the event as being the relevant injury which amounted to grievous bodily harm or simply the causing of some grievous bodily harm was critical in that case.  This was a point made in the judgment of Chesterman J who said:

"In declining to direct the jury in terms of section 23, the trial Judge said, in the course of submissions from counsel:

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

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

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

I am not persuaded that the state of the authorities is such that I am bound to adopt the characterisation contended for by the plaintiff.  It seems to me that the characterisation of the relevant event in R v Camm and in the judgment of Chesterman J in R v Watt is consistent with the exposition in R v Taiters and is the correct way of putting the matter to the jury.  Accordingly, in this case the act is the delivery of the punch and the event is the incurring of a brain injury which amounts to grievous bodily harm.

That is not to say, however, that the exact nature of the resulting harm or the mechanical processes of its causation must be precisely understood. As Derrington J said in R v Watt, that is not something which is required.  Accordingly, as defence counsel concedes, it is not necessary that the precise nature of the brain injury be specifically foreseen or the precise method in which it occurred have been contemplated or within contemplation. However, in my view, the event of which section 23 speaks in this case is the brain injury which by the application of the definition found in the Criminal Code constitutes grievous bodily harm.