R v Graham [1995] QCA 190

Court of Appeal (Qld)|1995-05-19|Before: Before Davies J, McPherson J

The appellant was tried in the Supreme Court and found guilty of having unlawfully killed Lisa Jane Newell on 20 November 1993. The evidence at the trial was that death was caused by cardiac arrest induced by brain damage resulting from a single punch delivered by the appellant to the jaw of Ms Newell at about 9.10 on the evening of that day.

The grounds of appeal essentially are, first, that the victim's death was an event that was caused by accident within the meaning of s.23; and, secondly, that nothing that was done by the appellant which caused or contributed to the death went beyond reasonable self defence in the whole of the circumstances. It was accordingly contended that the jury's verdict of guilty of manslaughter was, in the view of the evidence, unsafe and unsatisfactory.

In law the appellant was criminally responsible for the death unless it was such an unlikely consequence of the blow that an ordinary person would not have foreseen it : R. v. van den Bemd [1994] HCA 56; (1994) 68 A.L.J.R. 199; affg. (1933) 70 A.Crim.R. 489. See also R. v. Whiting (C.A. 321 of 1994). The trial judge's direction to the jury on this point was, if anything, favourable to the appellant, in that he put the question to them in terms simply of what a reasonable person in the position of the accused would have foreseen as the consequence of delivering the blow with the force that they found to have been used. In an interview with the police soon after the incident, the appellant described how he struck the victim. He said: "I hit her probably as hard as I could hit at the time, as hard as I could ... I didn't think about how hard I was going to hit her. I just smacked her and stopped her".

There was evidence at the trial (Dr Ellison Stephenson) that the subdural bleeding was caused by rupture of blood vessels connecting the brain and the dura; that this was caused by the twisting of the dura as a result of the trauma of the blow; and that the danger of such twisting is greater if the brain is diminished in size, which is a condition that may be caused or accelerated by alcoholism.

On appeal it was submitted that an ordinary person would not be expected to know this, or to foresee that the victim here was in a condition in which she may have been more vulnerable than others to the effects of a blow. However, there was also evidence from the pathologist (Dr David Williams) who performed the post-mortem examination that there was deep tissue bruising of the mouth and lower jaw of the deceased, and that in his opinion the degree of force required to produce such bruising was "significant". The test laid down in van den Bemd superseded the mechanical test of physical "directness", but it provides a criterion of responsibility for the death that is objective. As such, it is for the jury acting on their collective knowledge as representatives of the community to determine whether an ordinary person would have foreseen death as a result of a blow delivered with the degree of force described in the evidence at the trial. It is not possible to say that on that issue their verdict of guilty was not sustainable, or that it was unsafe or unsatisfactory.

This ground therefore fails. The other ground of appeal falls to be determined by considerations of much the same kind. The appellant did not testify at the trial; but there was evidence that the fatal blow was struck in response to an attack by Ms Newell on the appellant's brother or himself with the prongs of a pitchfork. Speaking generally, ss.271 and 273 provide an exemption from criminal responsibility for using such force against an assailant as is "reasonably necessary" to defend someone from an unprovoked assault. Even though the force used "may" cause death, it is lawful to use it as a measure of defence in specified circumstances. The assault itself must be such as to cause "reasonable apprehension" of death or grievous bodily harm, and the person using that force must believe on "reasonable grounds" that the person defended cannot otherwise be preserved from death or grievous bodily harm. The emphasis throughout is on the reasonableness of the defensive force in fact used.

In the present case the trial judge instructed the jury that the expression "may" cause death or grievous bodily harm appearing in s.271 meant likely to cause death or grievous bodily harm. No complaint is made about that. It was a matter for the jury to consider whether or not the blow inflicted by the appellant, using the degree of force described in evidence, was in all the circumstances reasonably necessary to defend his brother or himself against assault by Ms Newell to the point of inflicting grievous bodily harm or causing her death. Among those circumstances were the facts that she was a woman who was very drunk, and said to be only about 150 cms. (5 ft) tall, whereas the appellant, who was one of two men threatened or attacked, was, according to one version of what the jury would have seen of him at the trial, at least 5'8" tall and of medium build. In fact, we were informed that, according to the police photograph of him, he measured 180 cms or 6 ft.

Like his victim, the appellant was the worse for having taken alcohol at the time, which may in part explain his actions at the time. That does not, however, excuse him from criminal responsibility : cf. R. v. O'Grady [1987] Qd.R. 995, to which Mr Carmody referred us on the appeal. It was a decision in which a mistaken belief about the severity of an attack on the accused was held not to raise a defence of self-defence to a charge of homicide. The decision turned on the relevance at common law of a mistake, brought about by the effects of intoxication voluntarily induced, about the extent of the force threatened. In Queensland any such mistaken belief would become relevant only if it was both honest and, objectively speaking, "reasonable" in terms of s.24 of the Code. We are not prepared to say that the appellant in this case was, under either s.24 or s.271, entitled to escape responsibility for causing the death because of a mistaken belief, brought about by self-induced intoxication, concerning the degree of force threatened, or the extent of the force that was needed to preserve himself or his brother from the apprehended assault.

The jury were properly directed, and they were justified in returning a verdict of guilty of manslaughter.

CATCHWORDS CRIMINAL LAW - MANSLAUGHTER - Whether victim's death was an accident within the meaning of s.23 Code - Whether appellant's actions were done in self-defence - Whether appellant could escape responsibility because of a mistaken belief brought about by self-induced intoxication concerning degree of force threatened.

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