Court of Appeal (WA)|2012-01-05|Before: Buss JA, Lure P, Pullin JA

RAUX -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 1 (5 January 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RAUX -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 1

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Unlawfully doing grievous bodily harm - Accident - Section 23B of the Criminal Code (WA) - Whether the trial judge misdirected the jury on the defence of accident - Whether the trial judge's answer to a question from the jury after it had retired adequately rectified any misdirection on accident - Selfdefence - Section 248(4) of the Criminal Code (WA) - Whether the trial judge misdirected the jury on selfdefence

Application for an extension of time to appeal refused

Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451

DW v The State of Western Australia [2011] WASCA 52

Hussaini v The State of Western Australia [2009] WASCA 207

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Noto v The State of Western Australia [2006] WASCA 278

Pollock v The Queen [2009] QCA 268

R v Taiters, Ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

Wimbridge v The State of Western Australia [2009] WASCA 196

1 McLURE P: This is an appeal against conviction. The State conceded that the trial judge had erred in his direction on accident and that the proviso did not apply. This court can only allow an appeal if in its opinion the conviction should be set aside, relevantly, because of a wrong decision on a question of law by the trial judge or a miscarriage of justice: s 30(3)(b) and (c) of the Criminal Appeals Act 2004 (WA). A State concession that an appeal should be allowed does not bind this court. See Noto v The State of Western Australia [2006] WASCA 278 [18].

2 I agree with Buss JA (and the respondent) that the trial judge erred during his summing up to the jury in relation to the defence of accident. However, I am satisfied that the error was not material; that is, the error was incapable of affecting the verdict at trial. These are my reasons for that conclusion.

3 The appellant was charged with causing grievous bodily harm to the complainant, Wayne Rafferty. The facts are detailed in the judgment of Buss JA. For present purposes, it is sufficient to note the following. It was common cause that on the evening of 16 June 2009, at Katrina Goy's home in Cloverdale, the appellant punched the complainant in the upper right-hand side of his face following which there was a scuffle which continued until the appellant put the complainant in a 'choker hold' as a result of which he lost consciousness (the incident). Ms Goy and her 13-year-old son were present throughout the incident.

4 The unchallenged medical evidence was that during the course of the incident the complainant suffered fractures to bones around the socket of his right eye (the eye injury) and that a sizeable direct force would be required to cause the fractures. The eye injury constituted the grievous bodily harm the subject of the conviction.

5 The appellant and the complainant both gave evidence that the appellant threw only one punch at the complainant. Based on the evidence at trial, there was only one other act of the appellant that was of itself capable of having a causal connection with the eye injury.

6 The complainant said that after the punch he and the appellant started wrestling and pushing one another until they reached a wall with a window. His evidence is as follows:

[A]s we're wrestling, and got down towards the end of where it all finishes and there's a wall - a window, and he's sort of seen the window, and he's looked at the window coming up and he just grabbed me and thrown me into the window which hit me on this side of the face.

So that's the right-hand side of the face---Yeah. Cut my eye here, cut my cheek here.

Okay. So you're just saying that he cut your eye just above the eye, the eyebrow area, is that right---Yeah, and just below.

ASTILL, MR: And cut just below the eye? Okay. So---

GOETZE DCJ: So it's the right eye?

...

Did you actually go through the window---Luckily there was a security window in which case you don't get much of a distance between the glass and the aluminium security.

Yes---My head's smashed into the window, you know, which all the glass has broken but my head, because of the security screen, didn't go all the way through the window. So - thank God.

...

Did you - you've mentioned that you were wrestling. Were any punches thrown during this?------No. He didn't - he didn't strike me then and I didn't strike him either. It was just more of a keeping him away from me sort of thing. So - - -

Pushing and shoving sort of thing? Was there any grabbing---Well, he grabbed me when he threw me into the window, more or less, but that was just from wrestling.

So where did he grab you when you were------Oh, I think - well, we more or less had one another's arms sort of thing because that's what I was trying to do, hold his arms.

So you're just basically grabbing each other------Yeah.

- - - on the arms---Mm hm.

Okay. And that's when he manoeuvred you into the wall, or pushed you into the window, is that right---Threw my head into the window. Yeah.

Threw you into the - so from the window, where did you end up from there---Well, I've heard all the glass and that smash, felt the blood on my face and where we were, behind us, there's a couch and I think we've wrestled down. I think I've got on top of him on the couch (ts 55 - 56).

7 The complainant was cross-examined on this subject as follows:

You both wrestled in the adult room---Yes.

And isn't it the case that you both crashed into the window ---Well, I know my head was put in there, so.

You both crashed in the window, Mr Rafferty, as a result of your struggle, isn't that the case---Well, I can't recall that, no ...

Mr Rafferty, as a result of your wrestling, I put it to you that you both fell into the window and that is where you did most of the damage to your face, your eye. What do you say about that---I say no (ts 68).

8 The complainant's evidence on the incident is corroborated in all material respects by Ms Goy. On the subject of the window, she said:

And then they've stumbled sort of backwards and as they've stumbled backwards it's, to me, it looked like [the appellant's] forced [the complainant's] head through my window and - because [the appellant's] back and [the complainant's] face have hit the window at the same - well, let's say [the appellant's] shoulder blades and [the complainant's] face have hit the window at the same time (ts 82).

9 Ms Goy's son said that he did not know if someone pushed the complainant's head into the glass or not (ts 100).

10 The State case was that the eye injury was solely caused by the appellant's punch to the complainant's face.

11 Buss JA gives a detailed account of the appellant's evidence at trial. In summary, the appellant said the incident occurred after the complainant lunged at him with a beer bottle aimed at his (the appellant's) face. According to the appellant, he blocked the complainant's attack with the beer bottle and landed a glancing punch to the corner of the complainant's right eye. The appellant's claim that the complainant lunged at him with a beer bottle was rejected by the complainant and Ms Goy. It was also inconsistent with the evidence of her son.

12 There was unchallenged expert medical evidence that a glancing punch to the corner of the complainant's eye could not cause the eye injury. On the appellant's evidence, none of his actions in the course of the incident were shown to have any causal connection with the eye injury. He said the complainant crashed into the window as a result of him tripping over after he (the complainant) had first pushed the appellant into the glass. The defence case was that the eye injury occurred some time after he punched the complainant but that it was impossible to say when and how the eye injury occurred but however it occurred, it was an accident. The term 'accident' is being used in both its natural and ordinary meaning (the appellant tripped and fell into the window) and in its legal meaning.

13 I turn now to the trial judge's summing up. The trial judge directed the jury that the prosecution had to prove that the appellant caused the complainant to suffer grievous bodily harm. He put it this way:

The third element that must be proved is that the State must prove beyond reasonable doubt that [the appellant] caused [the complainant] to suffer grievous bodily harm. So there's a causation element; what did [the appellant] do that caused the suffering of that grievous bodily harm (ts 165).

14 It is clear from the trial judge's direction that the jury had to be satisfied beyond reasonable doubt that the appellant caused the complainant to suffer grievous bodily harm before determining whether the conduct of the appellant which caused the grievous bodily harm was unlawful.

15 The error made by the trial judge was in the course of explaining self-defence. The trial judge said:

The defence says that [the complainant] did an unlawful harmful act; namely, to lunge at [the appellant] with a beer bottle. Then [the appellant] had to defend himself against that unlawful harmful act and that is he struck a glancing blow to [the complainant's] right eye ... And a struggle followed, in which at some unknown time, [the complainant] suffered the fractured bones around the right eye by accident. Now, in this case as I've mentioned, the unlawful, harmful act that arises for your consideration is well, basically what happened? And the particular question here is the alleged act of [the complainant], whereby it is alleged that he lunged at [the appellant] with a beer bottle. If you find beyond reasonable doubt that [the complainant] did not do that, then self-defence and accident will not apply in this case. If you find that [the complainant] did lunge at [the appellant] with a beer bottle, then you will need to consider the defences of self-defence and accident (ts 166 - 167).

16 Whether or not the complainant lunged at the appellant with a beer bottle was determinative of self-defence. That was not so in relation to accident. It is the case that rejection of self-defence in fact left no scope for the operation of the defence of accident on the State case, having regard to its narrow scope and the unchallenged evidence that a glancing blow could not cause the eye injury. However, the appellant's defence went much wider than required to defend the State case and the defence of accident arose solely in that wider context.

17 The abovementioned direction was made in the course of a lengthy direction on self-defence. After completing his direction on self-defence, the trial judge turned to accident, noting that it was a separate matter and separate from self-defence (ts 169). The trial judge continued:

The burden lies on the State to satisfy you beyond reasonable doubt that the eye injury to [the complainant] did not occur by accident. Now, if you find that [the complainant] suffered the eye injury, the State must prove that that injury did not occur by accident; that is, it was not intended by [the appellant], was not foreseen by [the appellant] as a possible outcome, and would not reasonably have been foreseen by an ordinary person as [the appellant], as a possible outcome (ts 169).

18 He later summarised the State position as follows:

So what the State is saying to you is that this was an unprovoked attack by [the appellant] on [the complainant] and that self-defence and the defence of accident are not made out ... In terms of accident, the State says that the eye injury did not occur when [the complainant] struck the window. The State says that there was a deliberate punch. It's not something which occurred when [the complainant] fell from the couch because that's less than a metre high, and you heard Dr Ng's evidence about requiring a fall from a height. It was not that he struck his eye when he landed on the weights because he landed on all fours on his evidence. And it was not when he was grappling (ts 173).

19 The trial judge summarised the defence case as follows:

[The complainant] lunged at [the appellant] with the beer bottle. [The appellant] then acted by way of self-defence, in striking a glancing blow to the right side of the face and that there then followed a wrestling match and that at some stage unknown and unable to be determined with any precision, [the complainant] suffered the eye injury by way of accident so that there is a defence of self-defence, and there is a defence that whatever happened to [the complainant], happened as an accident in that process (ts 178).

20 It is clear from the trial judge's directions as a whole that the appellant's defence of accident did not depend upon proving that the complainant lunged at the appellant with a beer bottle.

21 The question asked by the jury is also important. It was in the following terms:

If all 12 members of the jury agree that the grievous bodily harm to [the complainant] was caused by the [appellant], was unlawful, but don't all agree that it was due to the first blow alone, can we return a guilty verdict; that is, does it have to be the first blow alone, rather than an another act during the altercation, to return a guilty verdict? (ts 187)

22 This question shows the jury understood that the State had confined its case to the appellant's single punch to the complainant's face. It is also apparent that the jury had addressed itself to the question of causation and had concluded that the punch alone, or the punch together with another act of the appellant, had caused the eye injury. Based on the evidence at trial the only other possible act of the appellant was smashing the complainant's head into the window. Neither of those acts of the appellant raised accident as a live issue. Accordingly, any misdirection is of no consequence. That is, the jury question disclosed that as a result of its deliberations, it had significantly narrowed the issues raised in the defence case at trial.

23 Moreover, it is apparent from the jury question that it had concluded that the appellant's acts that caused the eye injury were unlawful, that is, the State had negatived the defences of self-defence and accident. I see no reason why the jury, having knowingly gone outside the parameters of the State case, would not have then considered whether the State had negatived the defence of accident in relation to the appellant's causal acts on which they relied.

24 Further, the trial judge's response to the question was to direct the jury that it had to consider the defences of self-defence and accident in the context of the punch and the second (unspecified) act of the appellant which made a causal contribution to the eye injury. The trial judge said:

If you have determined, as you say, that the grievous bodily harm was caused by the [appellant] and was unlawful, that is, the defences of self-defence and accident do not apply, then you can return a guilty verdict on the basis that the first blow alone did not - sorry, on the basis that the first blow alone did not cause the grievous bodily harm, such that it also occurred during whatever happened in the ensuing scuffle, and that would be on the reasoning that self-defence does not apply, which means that - well, perhaps I won't say anything more than that - and also that accident doesn't apply (ts 189).

25 In summary, even if (contrary to my view) the defence of accident was open in the circumstances, I am satisfied that the error made during the direction on self-defence was negatived both by the direction as a whole and the answer to the jury's question. I am fortified in that view by the failure of both counsel to raise it with the trial judge either at the completion of the summing up or after the trial judge had responded to the jury's question.

26 I agree with Buss JA on ground 3. However, I would refuse an extension of time and dismiss the appeal.

27 PULLIN JA: I have had the advantage of reading Buss JA's draft reasons for decision. I agree that leave to appeal on ground 3 should be refused for the reasons given by Buss JA. Ground 2 was abandoned.

28 Ground 1 concerns the directions given by the trial judge before and after a question from the jury. Full details are set out in Buss JA's reasons. The respondent conceded that ground 1 had merit. This concession is to be given due weight, but where this court reaches a different opinion, the court's opinion must prevail: Noto v The State of Western Australia [2006] WASCA 278 [17] - [19] (McLure JA, Steytler P & Wheeler JA agreeing).

29 Although the prosecution case was that the first blow caused the grievous bodily harm, the jury was entitled to work out for themselves what happened. The jury was entitled to conclude that the grievous bodily harm was done in the course of the violent struggle that took place after the unprovoked attack by the appellant in a confined space, which was so violent that it did several thousand dollars damage within the room. On the evidence, the only 'act' other than the initial punch which could have caused the grievous bodily harm was the act of the appellant in driving the victim's head into the glass window or some other object in the room.

30 As Buss JA said in his reasons, once the second question had been asked, it was clear that the jurors unanimously agreed that the appellant had unlawfully caused the grievous bodily harm, and they must therefore have unanimously rejected the appellant's assertion that the complainant had lunged at him with a beer bottle and must have unanimously found that the State had negatived self-defence. The question revealed that some jurors thought the first punch caused the grievous bodily harm whereas others must have thought that it was caused by the appellant driving the victim's head into the glass window or some other object in the room.

31 Once that position was reached, accident was not open. It was not open on the evidence for the jury to find that the appellant did not foresee, and at an objective level, that a reasonable person would not have foreseen, that the victim would suffer grievous bodily harm from the ferocious attack on the victim in a confined space. In R v Taiters, Ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333, Macrossan CJ, Pincus JA and Lee J said that if the outcome of some action is regarded as certain or even

just more probable than not, it cannot legitimately be called accidental. The outcome (that is, the 'event') in this case could not legitimately be called accidental. The 'event' was the grievous bodily harm suffered by the victim. This was caused either by the 'act' of the direct blow or the 'act' forcing the victim into the glass window or some other object in the room. The jury was satisfied that the event was caused by one or other of those acts. The event could not be said to have occurred by accident.

32 Ground 1 has no merit. The court should refuse to grant an extension of time and the appeal is therefore dismissed.

33 BUSS JA: On 10 August 2010, the appellant was convicted, after a trial in the District Court before Goetze DCJ and a jury, of one count in an indictment which alleged that on 18 [sic: 16] June 2009, at Cloverdale, the appellant unlawfully did grievous bodily harm to the complainant, Wayne Andrew Rafferty, contrary to s 297 of the Criminal Code (WA) (the Code).

34 On 8 September 2010, the appellant was sentenced to a term of 2 years' immediate imprisonment, back-dated to 10 August 2010, being the date on which he was taken into custody following his conviction. His Honour made a parole eligibility order.

35 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction.

36 On 17 March 2011, Mazza J ordered that the application for an extension of time be referred to the hearing of the appeal.

37 On 7 April 2011, Mazza J granted the appellant bail pending the determination of the appeal.

The application for an extension of time to appeal

38 The last date for the appellant to appeal against conviction was 29 September 2010. He did not file his appeal notice until 22 December 2010.

39 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

40 The appellant's delay has been explained satisfactorily in his affidavit sworn 22 December 2010. The State would not suffer any relevant prejudice if an extension of time were to be granted. In my opinion,

whether an extension should be granted depends, in the circumstances of this case, upon the merits of the proposed grounds of appeal.

41 The State's case at trial was, in summary, as follows.

42 The appellant and the complainant knew each other before the alleged assault on 16 June 2009. The prosecutor referred to their having had a 'previous relationship of bad blood' (ts 20).

43 On the evening of 16 June 2009, the complainant went to Katrina Goy's home in Cloverdale to assist her with a document she was preparing on her computer. The complainant and Ms Goy were acquaintances. Ms Goy had previously acted as a carer for the complainant's father.

44 While the complainant was at Ms Goy's home, the appellant knocked on her front door. The appellant and Ms Goy had been friends for about 18 years. Ms Goy's son, Stonie Barlow, who was then aged 13 years, answered the door. Stonie let the appellant into the house.

45 The appellant walked from the front door to the sunken lounge room where the complainant and Ms Goy were sitting at the computer table.

46 The appellant was not pleased to see the complainant. He said to Ms Goy, in reference to the complainant:

47 The complainant did not provoke the appellant. Indeed, he sought to defuse the situation.

48 The appellant then launched himself at the complainant and punched him on the right side of his face. This caused serious injuries to the complainant's right eye and cheekbone.

49 A brawl developed between the appellant and the complainant. During the brawl the appellant smashed the complainant's head into a glass window. A security grill prevented the complainant's head from passing through the window, but the glass broke. There was also an altercation on a couch in the lounge room. The appellant rolled the complainant from the couch. He fell about 2 feet onto his back. The appellant pushed his arm into the complainant's throat at least three times and put the complainant in a 'choker hold'. As a result, the complainant lost consciousness.

50 The appellant said to Ms Goy and Stonie, 'don't worry he'll wake up in a few minutes' (ts 23). The appellant then left their home.

51 Ms Goy corroborated the complainant's evidence in relevant respects.

52 The appellant gave sworn evidence at trial in his own defence.

53 He said in evidence that the complainant had attacked him first and that he had acted to defend himself. The appellant's evidence on this issue was, relevantly, as follows:

You've said words to the effect, 'What's this dog cunt doing here?' and ... 'are you still biting off fingers?' Words to that effect---That's correct.

Then what happened---He - he stood up and said, 'Do you want to have a go, then?' And as he did, he - he lunged forward with a bottle which I blocked with my left arm.

...

Coming down in a forward direction with a beer bottle in his hand, aimed at your face---That's correct.

...

And you've blocked it---That's correct, which dislodged the bottle.

Okay. Okay. And what - what happened to that bottle, do you recall---The bottle hit the wall just beside me and then went onto the computer table.

...

Okay. And then what happened---It dislodged the bottle out of my hand, or out of his hand, and it went over my head, hit the wall, landed on the computer table. And then I struck him and then he went - he fell over the chair and landed on some weights.

How did you strike him---As I blocked, I just went straight through, just a direct punch.

Okay---Just sort of glancing the corner of his eye.

...

just explain that a little bit more to the jury---Well, as I've blocked and he's come over like that, I've blocked and he sort of still come forward a bit, dislodging the bottle, and it's just basically left his whole side open. So then I've just done a direct punch towards him to try and keep him away from me.

... was it a closed fist, or an open fist---It was a closed fist.

And do you recall where you struck [the complainant]---It was on the right-hand side of his face, and it was just to the corner of the eye (ts 119 - 121).

54 The appellant then gave this evidence as to what occurred after he had struck the 'glancing blow' to the 'corner' of the complainant's eye:

What happened after that---He - he went backwards, fell over the chair and landed on some weights in the corner of the room.

Okay. And then what happened? Well, what did you do---Well, without having time to get out of there, and I felt bad for what I'd done at Katrina's house - not that I could do much about it - he lunged straight at me.

Okay. And in what sort of motion? Can you describe what he------He's come straight at my throat with open hands - - -

Okay, you've------And grabbed my shirt, and I sort of tried to hold him off and try and grab his arms, keeping his face away from me, cos he's attacked me in the past. And then we've gone backwards and he had considerable force, because from where we were, I was the one that went backwards, and I ripped the back of my jacket on the - on the glass.

Okay---And we've fallen over and got back up and it was sort of a bit of a kerfuffle.

Okay. That kerfuffle, as you call it, how would you describe it---Well, we had - we were both straining, you could say, and both trying to I suppose - I suppose just get control of the situation and I was trying to get out of there, and then we knocked over a few things in the room.

Okay. Now,------We both landed quite heavily after we - after we come off the glass.

Okay. You came off - off the glass. Off the glass what---Off the window.

Okay. Well, how did you get over in the window---That's what I'm saying, it's a fair way from the computer table, across furniture to that wall, and I was basically shoved backwards.

Okay. So [the complainant], ... how was he holding you---?---Pretty much from arms forward, into here. And I think he had an arm, and - and we just basically went straight across. I think we fell over near the computer, and we got up and then we went into the glass.

SAUPIN, MR: For the transcript, Mr Raux, the witness described having two hands on what you might describe [as] the lapels---Yes.

...

Where were your hands---I was trying to keep his shoulders back.

...

So how did you end up in the window---I think I might have tripped back as I was coming back.

Well, without thinking, do you recall---I tripped on something and we went into the back window - into the side window of the house.

Okay. And then at that point, you both - at that window, what happened then---We both went down onto the couch and from there, he come at me and he bit me on the arm, right on here, and he bit me again right there.

...

- - - where did that bite occur---One just below the elbow and then one on that wrist. And that's when I've got my left arm around underneath his chin, and tried to control him. And that was the only way I could control him.

Okay. When you were - when you both moved from the window to the lounge, what were the positions of the both of you---I was pretty much going backwards, towards the TV unit and then we fell down and we got up and then he give me one more almighty push and I went into the glass. I think he's tripped at the same time for him to go into the glass as well.

Okay. And at what point did you, as you say, did he bite you---?---As we come back down onto the lounge, he's come back at me and that's where I heard earlier that someone said I was actually hitting him. I wasn't because they wouldn't have been able to see from there. It was basically the fact that he bit me on the arm,

... so your evidence is he's bitten you on the arm and then what did you do---I - I struck him a little bit on the back of the head, just to try and get him off my arm, just more of a push, and then I got my arm underneath his chin and I held as tight as I could. So I could just not let - let him go and get attacked again.

Did you strike him in any other way---No, more of a push away. That was the only time and then I've followed it up the next day and got - had to go for tests.

Okay. Well, we'll get onto that. So how many times did you hit [the complainant]---Just the once.

And that was the once by the computer, is that right---That's correct.

And you said it was a glancing blow---Yes. That's correct.

Okay. Did you, at any other stage, punch [the complainant]---No.

Did you throw [the complainant] into the window---No.

Did you put a choker hold on [the complainant]---I did.

And why did you do that---Just to gain control and try and get out of there, which I [did].

... what can you recall about [the complainant's] demeanour after you put a choker hold on him---He - he - it settled him down. It was about the only - only thing I could do. It was the only thing I could think of to do.

What did you do then, Mr Raux---I put his face to the side while he was unconscious, onto his side, like a recovery position, and then I walked out of the room. I apologised to Katrina and Stonie as I was leaving and I hopped on the motorcycle and I left (ts 121 - 123).

55 On 17 June 2009, being the day after the incident with the appellant, the complainant consulted Dr John Kerr. On examining the complainant, Dr Kerr noted that he had marks, swelling and bruising of the right eye and the nose associated with bony tenderness. A CT scan of the bones revealed 'complex fragmented right mid-face fractures with fractures of the right zygoma, right maxillary antrum and the orbital margin' (ts 28). According to Dr Kerr, these were significant injuries and of such a nature that they could have caused permanent injury to health.

56 Dr Jonathon Ng gave evidence at the trial. He is an ophthalmologist. He explained in his evidence-in-chief that the zygoma forms the outside wall of the eye socket (ts 31). The maxillary antrum forms the floor of the eye socket (ts 32). The orbital margin is the exterior margin or outer bony ridge of the eye (ts 32). All of these bones are reasonably strong (ts 32). A 'sizeable direct force' would be required to fracture these bones (ts 33).

57 Dr Ng said in cross-examination that a 'glancing blow' would not have been sufficient to cause the trauma to the complainant's eye (ts 35). It could, however, be caused by an adult male falling from a sufficient height and with sufficient force on the eye (ts 35). A 'pretty strong direct blow' would be required to produce the fractures suffered by the complainant (ts 35).

58 Dr Ng said in re-examination that a fall from a couch would be unlikely to result in fractures of the kind suffered by the complainant (ts 36). It would be necessary to fall on the eye from a height of at least one metre (ts 36).

59 At trial, the appellant, through his counsel, admitted that the injuries to the complainant's eye and cheekbone constituted grievous bodily harm (ts 15).

The State's case at trial as to the cause of the injuries to the complainant's eye and cheekbone

60 The prosecutor told the jury in his opening address:

[The appellant] ... on the prosecution case, delivered what could be variously described as a king hit, or a significant punch, to [the complainant's] face, which resulted in, on the prosecution case, that injury to the eye that you can see there. As you can also see from that photograph, it resulted in significant swelling, significant bruising, but there was an injury to the cheekbone, which is what this trial is going to be about. And it's the attack on [the complainant], that punch that was thrown by [the appellant], which is going to concern you during the course of this trial. That's what this trial is going to be about (ts 17).

61 A little later in his opening address, the prosecutor said:

Not long after [the appellant] started referring to [the complainant] as 'a cunt' and asking ... whether Ms Goy knew [the complainant], [the appellant] has then launched himself at [the complainant] and delivered a punch to the right-hand side of [the complainant's] face. So he was on the top stair and has launched himself down and punched [the complainant] in the right-hand side of the face. So as you can see from that photograph that I showed you, he's punched him in the cheek area. Now, as you'll hear, from Stonie Barlow and Katrina Goy, when they give their evidence ... he punched [the complainant] with such force that it actually threw [the complainant] off the chair that he was sitting on and he landed some distance away from where he was sitting at the computer table (ts 22).

62 The prosecutor maintained in his closing address that the injuries to the complainant's eye and cheekbone were caused by the appellant's initial punch to the complainant's face (ts 209, 213, 214). He rejected any suggestion that these injuries may have been caused by a glancing blow delivered by the appellant (ts 209, 213) or by the complainant having landed against a set of weights in the lounge room (ts 223) or by the complainant having collided with the window (ts 223) or when the complainant fell from the couch (ts 223) or when the complainant and the appellant were 'generally tousling in that wrestle that occurred in the lounge room' (ts 223).

63 The prosecutor referred to the complainant's evidence to the effect that it was the initial punch by the appellant that caused the injuries including his evidence that immediately after this punch he felt 'instant pain to the side of his face and it felt like his face had swollen up more or less instantly' (ts 223).

64 According to the prosecutor, on the evidence, there were only two 'opportunities' for the injuries to the complainant's eye and cheekbone to have occurred, namely, the initial punch thrown by the appellant or, alternatively, when the appellant forced the complainant's head into the window (ts 224).

The appellant's case at trial as to the cause of the injuries to the complainant's eye and cheekbone

65 The appellant's defence at trial was that the complainant had lunged at him with a beer bottle. He had to defend himself against the attack. He struck a glancing blow to the complainant's right eye. A struggle then followed. During the struggle, at some unknown time and by some unknown mechanism, the complainant suffered the fractures to his right eye. These fractures occurred 'by accident' (ts 227, 233).

66 The trial judge directed the jury on the elements of the offence. Also, he left to the jury the defences of self-defence and accident.

67 Initially, the appellant relied on three grounds of appeal.

68 Ground 1 alleges that the trial judge made material errors of law and fact in his direction to the jury on the defence of accident. The particulars to ground 1 assert that his Honour directed the jury that accident did not apply unless the complainant first lunged at the appellant; on the defence case, the grievous bodily harm may have occurred in the later struggle between the complainant and the appellant; the direction effectively removed this aspect of the defence from the jury's consideration; and the direction curtailed the jury's proper consideration of this aspect.

69 Ground 2 alleges that his Honour misdirected the jury as to the issues in the trial. The particulars to ground 2 assert that what was in issue at trial was whether the grievous bodily harm was unlawful; in answering a question from the jury, his Honour directed them that the grievous bodily harm may have been caused other than in the manner alleged by the prosecutor; and the direction left the State's case to the jury on a broader basis than that relied upon by the prosecutor.

70 Ground 3 alleges that his Honour erred in law and in fact, and there was a miscarriage of justice, as a result of his Honour failing to direct the jury on the subjective element of self-defence embodied in s 248(4)(b) of the Code.

71 On 17 March 2011, Mazza J granted leave to appeal on ground 1, and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.

72 At the hearing of the appeal, counsel for the appellant expressly abandoned ground 2 (appeal ts 16).

Ground 1: s 23B of the Code and the defence of accident

73 Before the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA), s 23 of the Code read:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

74 By s 4 of the Criminal Law Amendment (Homicide) Act 2008, s 23 was repealed and replaced by new sections 23, 23A and 23B. Section 4 commenced on 1 August 2008.

76 At the material time, s 23A of the Code provided:

(1) This section is subject to the provisions in Chapter XXVII relating to negligent acts and omissions.

(2) A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.

77 At the material time, s 23B of the Code provided:

(1) This section is subject to the provisions in Chapter XXVII relating to negligent acts and omissions.

(2) A person is not criminally responsible for an event which occurs by accident.

(3) If death or grievous bodily harm -

(a) is directly caused to a victim by another person's act that involves a deliberate use of force; but

(b) would not have occurred but for an abnormality, defect or weakness in the victim,

the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

(a) even if the other person did not intend or foresee the death or grievous bodily harm; and

(b) even if the death or grievous bodily harm was not reasonably foreseeable.

78 Section 23B(3) and s 23B(4) are not relevant in the present case.

79 Section 23B(1) and s 23B(2) reproduce, in substance, the second part of the former s 23 of the Code in relation to accident. The case law on the second part of the former s 23 is relevant to the interpretation and application of the current s 23B(1) and s 23B(2).

80 Section 23A reproduces, in substance, the first part of the former s 23 of the Code in relation to unwilled acts and omissions. The case law on the first part of the former s 23 is relevant to the interpretation and application of the current s 23A.

81 In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, Gibbs J (Stephen J agreeing) distinguished between the unwilled physical acts or omissions of the accused apart from their consequences, for the purposes of the first part of the former s 23 (now s 23A) and the 'accidental outcome of his willed acts', for the purposes of the second part of the former s 23 (now s 23B) (226 - 227). Although the two parts of s 23 dealt with related matters, they were quite distinct (226). Gibbs J held that an event occurs by accident, within the second part of the former s 23 (now s 23B), 'if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person' (231).

82 In Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372, Anderson J said:

It appears now to be settled that the reference to 'event' in s 23 is a reference to the consequential event, that is, the event consequential upon the 'act or omission': R v Taiters [1996] QCA 232; (1996) 87 A Crim R 507 at 509. 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 accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 per Gibbs J at 231. An event will not therefore be an accident unless two requirements are met. Firstly, the event must not be intended or foreseen by the accused. That is the subjective element. Secondly, the event must be one which would not reasonably have been foreseen by an ordinary person. That is the objective element [83]. (emphasis added)

See also Hussaini v The State of Western Australia [2009] WASCA 207 [10] - [11] (Wheeler JA).

83 In R v Taiters, Ex parte Attorney-General [1996] QCA 232; [1997] 1 Qd R 333, the Court of Appeal of Queensland examined the degrees of likelihood comprehended by the objective and subjective elements of the defence of accident. Macrossan CJ, Pincus JA and Lee J said:

If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.

The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), ie when it is necessary to consider 'foreseen' by the accused, the same degrees of likelihood will be regarded as those discussed in connection with the objective test (338).

84 The State can disprove accident if it proves either that, subjectively, the accused intended or foresaw the event in question as a possible outcome or that, objectively, the event would reasonably have been foreseen by an ordinary person as a possible outcome (excluding, in each case, possibilities that are no more than remote and speculative).

Ground 1: when the defence of accident should be left to the jury

85 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451 [17], [36] (French CJ, Crennan & Kiefel JJ).

86 A trial judge should leave the defence of accident to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived accident.

Ground 1: some directions in relation to the defence of accident

87 In Taiters, Macrossan CJ, Pincus JA and Lee J said, by way of summary, and examining the matter from the viewpoint of the prosecution, that if accident is to be left to the jury, the applicable burden on the prosecution will be sufficiently stated if the jury is instructed that:

The Crown is obliged to establish that the accused 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 accused would reasonably have foreseen the event as a possible outcome (338).

88 Their Honours noted that a direction to this effect casts the matter in 'an acceptable positive form' (338). They also said that if this direction is given it will be desirable for the trial judge to add that, in considering the possibility of an outcome, the jury should 'exclude possibilities that are no more than remote and speculative' (338).

Ground 1: the trial judge's directions on causation

89 In the present case, the trial judge, in the course of instructing the jury on the elements of the offence of unlawfully doing grievous bodily harm, made this statement in relation to causation:

The third element that must be proved is that the State must prove beyond reasonable doubt that [the appellant] caused [the complainant] to suffer grievous bodily harm. So there's a causation element; what did he do that caused the suffering of that grievous bodily harm. Now, the question of causation is not a philosophical or scientific question. Rather, the element of causation is determined by you applying your commonsense to the facts as you find the facts to be, remembering that in deciding causation the purpose of your inquiry is to attribute legal responsibility in a criminal matter (ts 165). (emphasis added).

Ground 1: the trial judge's directions on accident

90 In the present case, the trial judge told the jury that the State's case was that 'the grievous bodily harm suffered by [the complainant] is the eye wound which was received with the first punch thrown allegedly by [the appellant]' (ts 165).

91 His Honour also told the jury that the appellant's case was that the complainant had lunged at him with a beer bottle; the appellant had to defend himself against that unlawful act; the appellant defended himself by striking the complainant a glancing blow to his right eye; a struggle then followed and, at some unknown time, the complainant suffered, 'by accident', the fractured bones around his eye (ts 166 - 167).

92 The trial judge said that if the jury found beyond reasonable doubt that the complainant did not lunge at the appellant with a beer bottle, 'then self-defence and accident will not apply in this case' (ts 167). His Honour added that if the jury found that the complainant did lunge at the appellant with a beer bottle, 'then you will need to consider the defences of self-defence and accident' (ts 167).

93 His Honour then proceeded to direct the jury on self-defence.

94 After completing the self-defence direction, the trial judge instructed the jury on accident, relevantly, as follows:

Now, accident is a separate matter and a separate defence from self-defence. A person is not criminally responsible for an event if it occurred by accident, in this case the event is the injury suffered by [the complainant], that is the fractures around the eye or in general, the eye wound. The State must prove that the eye wound did not occur by accident. Something occurs by accident if it was not intended by that person, was not foreseen by that person as a possible outcome and would not reasonably have been foreseen by an ordinary person in the same position as the accused, as a possible outcome.

Now, again there is no onus upon [the appellant] to prove that the injury occurred by accident. There is no burden on [the appellant] to prove anything in this trial. The burden lies on the State to satisfy you beyond reasonable doubt that the eye injury to [the complainant] did not occur by accident. Now, if you find that [the complainant] suffered the eye injury, the State must prove that that injury did not occur by accident; that is, it was not intended by [the appellant], was not foreseen by [the appellant] as a possible outcome, and would not reasonably have been foreseen by an ordinary person [such] as [the appellant], as a possible outcome. The State can prove or discharge the burden by proving any one of three things. The first is that [the appellant] intended [the complainant] to suffer injury. The second is that [the appellant] foresaw the eye injury suffered by [the complainant], as a possible outcome of [the appellant's] action. The third is that an ordinary person in the same position as [the appellant], would have foreseen that the eye injury suffered by [the complainant], was a possible outcome of [the appellant's] action. Now, if the State has proved any one of those things beyond reasonable doubt, then it has proved that [the appellant's] actions were not excused by the law, concerning accident (ts 169 - 170).

95 Later in his summing up, the trial judge related the defence of accident to the competing versions of events put forward by the State and the appellant:

In terms of accident, the State says that the eye injury did not occur when [the complainant] struck the window. The State says that there was a deliberate punch. It's not something which occurred when [the complainant] fell from the couch because that's less than a metre high, and you heard Dr Ng's evidence about requiring a fall from a height. It was not that he struck his eye when he landed on the weights because he landed on all fours on his evidence. And it was not when he was grappling. Now, the defence case is broken down into some component parts again, as well. The defence asks you to accept the evidence of [the appellant]. What [defence counsel] says to you is that there was some history between these two men, that there were the comments that I've already referred to made by [the appellant] to [the complainant], and that [the complainant] then lunged at [the appellant] with the bottle; a beer bottle. [The appellant] defended himself. He did that with his left hand and he hit [the complainant] in the face with the right hand. It was a glancing blow to the front. [The complainant] tumbled over onto the floor, he got up and he went for [the appellant]. It cannot have been much of a punch because [the complainant] was not unconscious, and yet you know from the evidence that the bones that were fractured require a considerable degree of force to be fractured. There was then a vicious affair. They fell into the window, onto the floor and onto furniture and three and a half thousand dollars worth of damage occurred. So it was a vicious tussle, as [defence counsel] has indicated to you.

[The appellant] put [the complainant] into a choker hold and said, 'This will settle him down.' He also said that, 'This cunt won't stop until he's out.' And that was [the appellant's] way to stop him; that is to stop an unprovoked attack upon him. [The appellant] left [the complainant] in a recovery position (ts 173 - 174).

96 On 10 August 2010, at 1.23 pm, the trial judge completed his summing up and the jury retired to consider its verdict.

97 Shortly before 4.26 pm, the trial judge received a question from the jury. The question was:

What is the procedure if we all don't come to [a] unanimous decision? (ts 186).

98 The jury returned at 4.26 pm and the following exchange occurred between his Honour and the foreman:

GOETZE DCJ: Now, Mr Foreman, obviously you've not reached a unanimous verdict so far?

THE FOREMAN: That's correct, your Honour.

GOETZE DCJ: Okay. Is there any chance of the jury reaching a unanimous verdict if you have further time?

THE FOREMAN: There is a possibility, but it looks unlikely, your Honour.

GOETZE DCJ: All right. If there's a possibility, I think you should go back into the jury room and keep on deliberating.

THE FOREMAN: Thank you, your Honour.

GOETZE DCJ: All right. If you reach an impasse, then let me know.

THE FOREMAN: Okay (ts 186 - 187).

99 At 4.27 pm, the jury retired to further consider its verdict.

100 Shortly before 5.15 pm, the jury sent his Honour a further question. The question was:

If all 12 members of the jury agree that the grievous bodily harm to [the complainant] was caused by [the appellant], was unlawful, but don't all agree that it was due to the first blow alone, can we return a guilty verdict; that is, does it have to be the first blow alone, rather than another act during the altercation, to return a guilty verdict? (ts 187)

101 The trial judge read the question to the prosecutor and defence counsel, in the absence of the jury, and then made this observation:

Well, it seems to me that if the jury have found that the grievous bodily harm was caused by [the appellant], and that that was unlawful, then that means that self-defence does not apply and that accident does not apply, and that if the injury occurred from the first blow, together with some other incident during the wrestling, then they could return a verdict of guilty (ts 187).

102 The prosecutor submitted that his Honour's observation was correct (ts 188). However, defence counsel contended that the charge was brought 'on the basis that [the complainant] was struck by a punch to the face, causing grievous bodily harm' (ts 188). He added that if the jury was not satisfied that the initial punch had caused the grievous bodily harm, but that the grievous bodily harm happened later in the scuffle, the jury should return a verdict of not guilty (ts 188).

103 The jury returned at 5.18 pm, and the trial judge gave it this direction in response to its question:

If you have determined, as you say, that the grievous bodily harm was caused by [the appellant] and was unlawful, that is, the defences of self-defence and accident do not apply, then you can return a guilty verdict on the basis that the first blow alone did not - sorry, on the basis that the first blow alone did not cause the grievous bodily harm, such that it also occurred during whatever happened in the ensuing scuffle, and that would be on the reasoning that self-defence does not apply, which means that - well, perhaps I won't say anything more than that - and also that accident doesn't apply (ts 189). (emphasis added)

104 At 5.19 pm, the jury retired to further consider its verdict.

105 The jury returned at 5.40 pm with a unanimous verdict of guilty (ts 190).

106 Counsel for the State, in his written and oral submissions, conceded that ground 1 had been made out, and that the appeal should be allowed, the judgment of conviction set aside and a new trial ordered. This concession does not, of course, bind this court. It is necessary for this court to satisfy itself that the ground has been made out.

107 In the present case, the 'event which occur[red] by accident', for the purposes of s 23B(2) of the Code, was the injuries to the complainant's eye and cheekbone which constituted the grievous bodily harm.

108 The trial judge said in his summing up, before the jury retired to consider its verdict, relevantly and in substance, that on the State's case the injuries to the complainant's eye and cheekbone (which his Honour described, in summary, as the eye injury) occurred when the appellant deliberately punched the complainant upon entering the lounge room and launching himself at the complainant.

109 By contrast, the appellant's case was that the complainant had lunged at him with a beer bottle upon the appellant entering the lounge room. The appellant responded by striking a glancing blow to the complainant's right eye and a struggle then ensued. During the struggle, at some unknown time and by some unknown mechanism, the complainant suffered the eye injury.

110 His Honour directed the jury in his summing up, before it retired to consider its verdict, relevantly and in substance, that:

(a) If the jury found beyond reasonable doubt that the complainant did not lunge at the appellant with a beer bottle, then 'accident will not apply in this case' (ts 167).

(b) If the jury found that the complainant did lunge at the appellant with a beer bottle, then it would be necessary for the jury to consider the defence of accident (ts 167).

(c) If it was necessary for the jury to consider the defence of accident, then the State must prove beyond reasonable doubt that the grievous bodily harm 'did not occur by accident; that is, it was not intended by [the appellant], was not foreseen by [the appellant] as a possible outcome, and [sic] would not reasonably have been foreseen by an ordinary person [such as the appellant], as a possible outcome' (emphasis added) (ts 169).

(d) If it was necessary for the jury to consider the defence of accident, then the State could negative accident by proving beyond reasonable doubt 'any one of three things'; namely, that the appellant intended that the complainant should suffer the eye injury, or the appellant foresaw that the eye injury was 'a possible outcome of [the appellant's] action', or an ordinary person in the same position as the appellant would have foreseen that the eye injury was 'a possible outcome of [the appellant's] action' (emphasis added) (ts 169 - 170). His Honour added that if the State proved 'any one of those things beyond reasonable doubt, then it has proved that [the appellant's] actions were not excused by the law, concerning accident' (ts 170).

111 The trial judge did not explain to the jury or elaborate upon what he meant by the expressions 'the appellant's action' or 'the appellant's actions' (ts 169 - 170). See [94] and [110(d)] above.

112 His Honour's directions to the jury in his summing up, before it retired to consider its verdict, contained a material error in relation to the defence of accident.

113 It was a misdirection to instruct the jury that if it found beyond reasonable doubt that the complainant did not lunge at the appellant with a beer bottle, then 'accident will not apply' (ts 167). If the jury made that finding, then, based on the manner in which the appellant's case was run at trial, the State would have negatived self-defence, but it would not follow that, as a result of the finding, the defence of accident should be disregarded. The jury's finding as to whether the complainant had lunged at the appellant with a beer bottle did not, of itself, determine whether it was necessary for the jury to consider the defence of accident. This misdirection was reinforced by his Honour's statement to the jury that if it found that the complainant did lunge at the appellant with a beer bottle, then (and, by necessary implication, only then) it would be necessary to consider the defence of accident (ts 167). On a fair reading of his Honour's summing up as a whole, the misdirection, as reinforced, was not corrected elsewhere in his summing up.

114 A jury is entitled to accept part, but not all, of a witness's version of events. That is, a jury may reject part of the evidence of a witness and accept other parts. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA); Pollock v The Queen [2009] QCA 268 [67] (Keane JA, Muir & Fraser JJA agreeing); DW v The State of Western Australia [2011] WASCA 52 [22] (Buss JA, Pullin JA & Hall J agreeing).

115 In the present case, it was open to the jury to form the view that the injuries to the complainant's eye and cheekbone were caused by:

(a) on the State's version, the appellant's initial deliberate and forceful punch; or

(b) a combination of this initial deliberate and forceful punch and some other action(s) or occurrence(s) during the ensuing struggle; or

(c) on the appellant's version, the initial 'glancing blow' and some other action(s) or occurrence(s) during the ensuing struggle; or

(d) on the appellant's version, an action or occurrence, or a combination of actions or occurrences, during the struggle that ensued after the initial 'glancing blow'.

116 Even if the jury found beyond reasonable doubt (contrary to the appellant's evidence) that the complainant did not lunge at the appellant with a beer bottle, there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived accident, if the jury formed the view that the injuries to the complainant's eye and cheekbone were caused by one or other of the scenarios described in par (c) or (d) of [115] above.

117 In particular, there was the appellant's evidence, as follows:

(a) initially, the appellant merely struck a glancing blow to the complainant's right eye;

(b) as a result of the appellant having struck this glancing blow, the complainant 'went backwards, fell over the chair and landed on some weights in the corner of the room' (ts 121);

(c) the complainant then came 'straight at [the appellant's] throat with open hands', the appellant attempted to 'hold him off and try and grab his arms', both of them then went 'backwards' as the complainant 'had considerable force', and they both fell over (ts 121);

(d) as the appellant was attempting to 'get out of there', both the appellant and the complainant 'knocked over a few things in the [lounge] room' and they both 'landed quite heavily' after they had 'come off ... the window' (ts 121);

(e) the complainant had 'shoved [the appellant] backwards' from the computer table to the window (ts 121);

(f) the appellant 'tripped on something' and then he and the complainant 'went into the ... window' (ts 122);

(g) the complainant gave the appellant 'one more almighty push', the appellant 'went into the glass' of the window, and the complainant 'tripped at the same time' and he went 'into the glass as well' (ts 122); and

(h) after the appellant threw the initial glancing blow he did not strike the complainant in any other way; the appellant merely pushed him away; apart from the initial glancing blow, the appellant did not at any stage punch the complainant and he did not throw the complainant into the window (ts 121 - 123).

118 There is no necessary inconsistency between the unchallenged medical evidence (for example, Dr Ng's evidence that a 'sizeable direct force' would be required to produce the relevant fractures and that if the relevant fractures were occasioned by a fall then it would be necessary to fall on the eye from a height of at least 1 m), on the one hand, and the appellant's evidence as to what occurred (taking it at its highest), on the other. On the basis of the appellant's evidence (taking it at its highest), the acts or occurrences that may have caused or contributed to the complainant's grievous bodily harm were not confined to the appellant's initial deliberate and forceful punch (on the complainant's version of events) or the appellant having smashed the complainant's head into the window (also on the complainant's version).

119 The jury was entitled, if it thought fit, to reject the appellant's evidence that the complainant had lunged at him with a beer bottle, but to accept the appellant's other evidence as to his having merely thrown a glancing blow and as to what occurred during the ensuing struggle, or to be left with a reasonable doubt, on the basis of that other evidence, as to whether the State had negatived accident.

120 Accordingly, even if the jury rejected the appellant's evidence that the complainant had lunged at him with a beer bottle, the evidence I have summarised at [117] above, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived accident.

121 I turn now to consider what occurred after the trial judge completed his summing up (in particular, the jury's second question and his Honour's answer to that question).

122 As I have mentioned, his Honour completed his summing up at 1.23 pm on 10 August 2010 and the jury then retired to consider its verdict; and shortly before 5.15 pm the jury sent his Honour its second question. See [100] above.

123 The jury's second question appears to have been premised on the following:

(a) all of the jurors agreed that the appellant had unlawfully caused the grievous bodily harm suffered by the complainant; and

(b) some of the jurors were of the view that the appellant had unlawfully caused the grievous bodily harm with the first punch he threw upon entering the lounge room; but the other jurors were of the view that the appellant had unlawfully caused the grievous bodily harm, partly with that first punch and partly by some other act during the ensuing struggle.

Braysich v The Queen

At a glance

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Judgment (233 paragraphs)

RAUX -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 1 (5 January 2012)

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