DISTRICT COURT OF QUEENSLAND

1. [1]
   An issue has been raised in this trial as to whether, with respect to the defence of accident, the jury should be directed that the event to be considered is the rupturing/ severing of the tendon solely, or whether it is grievous bodily harm in the more general sense i.e. serious injury. The Crown Prosecutor submits the wider direction should be given.

2. [2]
   In this regard there are a number of conflicting Court of Appeal decisions.

3. [3]
   In R v Peachey [2006] QCA 162 the Court was comprised by Jerrard JA and Chesterman and Mullins JJ. In that case, it was held at [32]:

“In part, the last direction may be more favourable to Mr Peachey … [This was a reference to the direction that the specific injury was referred to by the trial judge] … in the sense that it requires foresight of the actual mechanism of the grievous 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.”

Needless to say, such a proposition supports the Crown contention.

4. [4]
   The next decision is the case of R v Coomer [2010] QCA 6. Interestingly enough, Peachey and Stuart appear not to be referred to in Coomer. That Court was comprised by Keane and Holmes JJA and Margaret Wilson J. It was held at [27] by Keane JA:

“It is not necessary that the precise nature of the grievous bodily harm, or the precise mechanism whereby it might be inflicted, be foreseeable. A blow of the kind struck here might not always lead to a fall with serious injuries, but it is readily apparent that injuries of the kind which occurred here might well occur.”

Again, this supports the Crown contention.

5. [5]
   Then there is the case of R v Condon [2010] QCA 117. That court was comprised by the President, Fraser and Chesterman JJA. In that case, it was argued that the event is the actual injury, namely in that case, the broken jaw. At [18], there was reference to R v Taiters; ex parte Attorney-General [1997] 1 Qd R 333. In the last paragraph of Taiters it was said:

“However, section 23 is concerned to excuse from criminal liability, so the relevant event for the purpose of the section should be taken to be one which, apart from the operation of the section, would constitute some factual element of the offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event.”

6. [6]
   So it seems to be when one combines those two sentences of Taiters, the factual element of the offence is the important consideration. One can deduce that when reference is made to “the state of bodily harm” that harkens back to the factual elements of the offence. Hence, for that reason it seems to me, at [19], the President held:

“It follows that in the present case the ‘event’ was the injury suffered by the complainant constituting the factual element of the offence of doing grievous harm, namely, a broken jaw. The issue for the jury was whether an ordinary person in the appellant’s position would reasonably have foreseen the complainant’s broken jaw as a possible outcome of the appellant striking the complainant. The primary judge three times misdirected the jury by widening that concept to any injury amounting to grievous bodily harm. This could include a less serious injury than a broken jaw.”

7. [7]
   That decision – and, in my view, Taiters – tends to support the defence position here.

8. [8]
   So we have a position where there are conflicting Court of Appeal decisions.

9. [9]
   I prefer the approach taken in Condon’s case and Taiters’ case. It seems to me the event must relate to the factual circumstance which is the “fact” referred to in Taiters.

10. [10]
    But even if I am wrong about that, I turn to consider the facts of this case. In this case, the evidence reveals that the complainant suffered a ruptured/severed Achilles tendon. There was no evidence led from either of the doctors as to what other grievous bodily harm might have been suffered aside from this particular injury. If such evidence had been led, then other possibilities could have fully been explored both in favour of the Crown and defence counsel could have cross-examined as to whether they were likely, possible, or otherwise.

11. [11]
    In this case, there is an absence of evidence as to other injuries which might constitute grievous bodily harm and which might have been foreseeable. It would lead to medical speculation on the part of jurors who are not medically qualified. I think it would be unfair in those circumstances, on the facts of this case, to leave the wider approach to “event”. So, as I say, even if I am wrong on the legal approach, in my view on the factual matrix presented to me, the direction which I had marked Exhibit A is the appropriate one to give here, and I propose to so do.