R v Hung

SUPREME COURT OF QUEENSLAND

CITATION: R v Hung [2012] QCA 341

PARTIES: R v HUNG, Wally James (appellant)

FILE NO/S: CA No 111 of 2012 SC No 158 of 2012

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

HEARING DATE: 7 November 2012

JUDGES: Holmes and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Appeal against conviction allowed.****Conviction and verdict set aside.**A re-trial is ordered.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted on one count of manslaughter – where the appellant had punched the deceased, causing his death – where the evidence about the extent of force of the punch was mixed – where the appellant argued that the trial judge misdirected the jury in relation to self-defence against unprovoked assault in s 271(1) of the Criminal Code – where the trial judge referred to the word “likely” in the context of “likely to cause death or grievous bodily harm” in s 271(1) as being a substantial likelihood, which might be less than 50/50 but had to be more than a remote or speculative possibility – where the trial judge directed on likelihood of death or grievous bodily harm and “possible outcome” in the context of accident in s 23 in almost identical terms – whether explaining what amounted to a substantial likelihood by distinguishing it from a remote or speculative possibility was a misdirection – whether equating “likely” in s 271(1) with “possible outcome” relating to accident in s 23 was a misdirection – whether a miscarriage of justice resulted / Criminal Code 1899 (Qld), s 1, s 8, s 23, s 271(1), s 271(2) / Criminal Code and other Legislation Amendment Act 2011 (Qld), s 4 / Criminal Code 1924 (Tas), s 156(2), s 157(1) / Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29, considered / Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, considered / R v Crossman [2011] 2 Qd R 435; [2011] QCA 126, considered / R v Hind and Harwood (1995) 80 A Crim R 105; [1995] QCA 202, cited / R v Taiters; ex parte Attorney-General (Qld) [1997] 1 Qd R 333; [1996] QCA 232, considered / R v Trieu [2008] QCA 28, considered

COUNSEL: J M McInnes for the appellant B J Power for the respondent

SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA: The appellant was convicted of manslaughter. He had punched another young man, causing his death. The defence case was that the blow was struck in self-defence or in aiding in the defence of another; or alternatively, that the death was an accident. The appellant appeals his conviction on the grounds that the trial judge misdirected the jury in relation to s 271(1) of the Criminal Code 1899 (defence against unprovoked assault); erred in failing to leave to the jury a defence under s 271(2) (where the person using force believes on reasonable grounds that he cannot otherwise preserve himself or another from death or grievous bodily harm); and misdirected the jury on the excuse of accident.

The circumstances of the killing

2. The appellant and the deceased man, Todd Parnell, were respectively about 21 and 23 years of age. They knew each other from high school and from playing rugby league together. On 25 July 2009, both were attending a 21st birthday party at the clubhouse of their local rugby league football club. In the early hours of the morning, Mr Parnell punched a friend of the appellant’s in the face, knocking him off balance. The appellant, who by this stage had drunk 10 or 11 cans of a rum and cola mix, responded by punching Mr Parnell.

3. In a record of interview with police, the appellant said that on seeing his friend hit, he ran towards Mr Parnell and grabbed his arm. The latter swung around and raised his hand. The appellant blocked it with his left hand and struck Mr Parnell with his right fist; where exactly, he could not remember. Other witnesses, however, described seeing the appellant approach Mr Parnell from behind and punch the side of his head. The forensic pathologist who had examined Mr Parnell’s body said that he had found bruising in the area of his left ear, which was likely to have been the result of a blow from a fist, delivered with mild force. It had caused brain bleeding and swelling which had led to death.

4. In the police interview, the appellant was asked why he had hit Mr Parnell and gave these answers:

“HUNG: I like, seriously don’t know. I just got really mad like, ‘cause he’s Todd. Like, it’s Todd and he’s like, he will shit all over Pete and that and pickin’ on like little Pete like, a guy younger than him and all that. So—

SCON GORIUP: Mmmhmm?

HUNG: It just made me like, mad and that.

SCON GORIUP: Got ya upset?

HUNG: Yeah, got me upset, I just went to stop it and then I swear he, he did throw a p-, he did trow [sic] a punch. ‘Cause I’ve gone like that and blocked it, so.”

5. The appellant agreed that he had seen advertisements associated with the “one punch can kill” campaign and was aware of its message, that a punch could cause serious injury. Asked how hard he had hit Mr Parnell, the appellant responded:

“HUNG: I wouldn’t have a clue, but I’ll say probably pretty hard, if it was a reaction. This come, followed, m-, my whole body weight followed, so.

SCON GORIUP: Alright, so you put your whole body behind the punch?

HUNG: I don’t know, I’d say, ’cause that’s, I react.”

The officer returned later to the topic of the blow’s force:

“SCON GORIUP: ...Alright. And you’ve hit him, and you said you’ve put your whole body behind the punch?

HUNG: Oh, nah, probably, I don’t know.”

The direction on accident

6. At the time of these events, the relevant part of s 23 was as follows:

“(1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

…

(b)an event that occurs by accident.”

The section has since been amended by substituting for “an event that occurs by accident”:

“an event that—

(i)the person does not intend or foresee as a possible consequence; and

(ii)an ordinary person would not reasonably foresee as a possible consequence.”¹

7. The effect of the amendment is simply to reflect the common law test of accident in R v Taiters; ex parte Attorney-General,² on the basis of which the learned trial judge directed the jury. His Honour told the jury that the Crown had to prove beyond reasonable doubt that an ordinary person in the appellant’s position would have reasonably foreseen Mr Parnell’s death as a possible outcome of punching him in the way he did. (There was no suggestion that the appellant had himself foreseen that result.) His Honour elaborated on the issue of foreseeing the death as a “possible outcome”:

“…the test postulates foresight of something as a possible outcome. Here we're talking about a substantial likelihood, something more than a remote or speculative possibility. However, a substantial likelihood does not have to be more than 50/50. It can be less than 50/50, but it must be more than a remote or speculative possibility, and it's the outcome, that is the death which must be considered, not the precise sequence of events that led to the death. …”

(Italics added)

8. The jury sought a re-direction in relation to accident. In the course of re-directing, the trial judge repeated what was to be borne in mind in considering the “possible outcome” of a blow:

“…We're talking about a substantial likelihood, something that's more than a speculative or remote possibility, but a substantial likelihood does not have to be more than 50/50. It's simply a likelihood that is of substance that must be foreseen. It must be reasonably foreseen.”

(Italics added)

The direction on self-defence

9. The learned judge directed the jury on s 271(1) of the Criminal Code, which is in these terms:

“271Self-defence against unprovoked assault

(1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.”

10. On the issue of whether the force used was “not such as [was] likely to cause death or grievous bodily harm”, the learned judge said this:

“…We know with hindsight that the punch did cause death but that is not the point. Unlikely results do happen. You have to consider the question from the position before the event. Also, you must consider the question objectively, having regard to the circumstances existing at the time the perch [sic] was thrown. Hung's subjective knowledge of the “one punch can kill” campaign does not prove that death or grievous bodily harm was likely in the circumstances of this case. Now, “likely” in this context refers to a substantial likelihood. A substantial likelihood may be less than 50/50 but a remote or speculative possibility is not enough.”

(Italics added)

The appellant’s contention on the self-defence direction

11. The appellant contended that it was a misdirection to explain what amounted to a substantial likelihood by distinguishing it from a remote or speculative possibility. The test that the learned judge suggested in relation to the likelihood of death or grievous bodily harm was virtually the same as that for a “possible outcome” in the context of accident; but for something to be likely, the chance of it occurring had to be more substantial than for it to be merely a foreseeable possibility.

Previous decisions: the meanings of “likely” and “probable”

12. In Boughey v The Queen,³ the High Court considered the correctness of a direction given in relation to culpable homicide and, more particularly, the expression “likely to cause death” used in s 157(1) of the Criminal Code (Tas). That sub-section provided that “culpable homicide” was murder if it was committed by an

“unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death...”

The preceding sub-section, s 156(2), defined “culpable homicide” as including homicide caused

“by an act intended to cause death or bodily harm, or which is commonly known to be likely to cause death or bodily harm...”

13. The trial judge in Boughey had commenced his explanation of the expression “likely to cause death” by saying it was an ordinary English phrase which most people would understand but find difficult to define with precision. However, he went on to say, if something were likely to happen there was a good chance that it would happen; it was something that might well happen. The appellant’s contention, however, was that “likely” should be understood as meaning “more likely than not” in the sense of a more than 50 per cent chance; in effect, as a synonym of “probably”.

14. In the High Court, Mason, Wilson and Deane JJ in their joint judgment expressed the view that it was usually undesirable to attempt to explain “likely” as entailing knowledge of some particular degree of probability or likelihood. In any case, the meaning of the words “probable” and “likely” was liable to vary according to context. It was unlikely that an intentional act obviously involving a substantial risk of death or bodily harm would only be captured by the words “likely to cause death” in the s 156(2) definition of “culpable homicide” if the act were also commonly known to be more likely than not to cause that result. The words should be read in the same way in s 157(1); that reading accorded with the ordinary meaning of the word “likely” as conveying

“the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent.”⁴

15. In any case, Mason, Wilson and Deane JJ said, it was inadvisable to “submerge” the ordinary meaning of a commonly used word through “synonym, gloss and explanation”⁵; as introducing glosses of “more likely than not” and explanations of “a more than 50 per cent chance” would do. The trial judge’s comments made the point that the expression was an ordinary one, “meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility”.⁶ The comments went as far as was desirable, and the judge was correct

“… in not introducing an added requirement either that the applicant directed his mind to, or attempted to calculate, the degree of mathematical probability that his acts would cause death in the circumstances or that the applicant knew or ought to have known that it was ‘more likely than not’ or an ‘odds on chance’ that his actions would cause death in the circumstances.”⁷

16. Gibbs CJ, also in the majority in Boughey, but delivering a separate judgment, expressed the view that the word “likely” in the sections referred to meant “probable” and not “possible”; that was its natural meaning. A trial judge ought not, he considered, refer to an “odds on chance” or a “more than 50 per cent chance” although it would be helpful to explain that a possibility (as distinct from a probability) was not enough. References to “chance” were unfortunate because the word conveyed possibility, even if it were qualified by adjectives such as “good”, “substantial” or “real”.

17. In Darkan v The Queen,⁸ the High Court was considering the meaning of “probable” in the expression “probable consequence” used in s 8 of the Criminal Code (Qld). The Court drew a distinction between the words “likely to cause death” in s 157 of the Criminal Code (Tas) and “probable consequence” in s 8. The former section related to responsibility for murder as a principal offender for someone who had unlawfully killed in the prosecution of an unlawful purpose (or, more accurately, in the commission of an unlawful act). The latter provision, in contrast, dealt with responsibility otherwise than as a principal offender for something which was merely a consequence of a common purpose or counselled offence. It followed that the test created by the expression “likely to cause death” should be easier to satisfy than that entailed in the words “probable consequence”.

18. The expression “a probable consequence” meant that the occurrence of the consequence did not have to be more probable than not, but it had to be better than possible; something that “could well happen”.⁹ The trial judge had erred in telling the jury that a probable consequence was a real or substantial possibility or chance. The word “probable”, in any common usage, suggested a more exacting standard than “possible”. The problem was that

“[T]he trial judge’s direction, compelled by authority as it was, carried the risk of leaving the jury with the impression that the appellants could be found guilty in relation to outcomes which, while more than merely possible, in that they were substantial or real, were not probable...the direction...was flawed in that it did not convey the idea that the consequence to be looked for was ‘a probable or likely outcome’.”¹⁰

19. R v Trieu¹¹ was a case in which this Court considered the expression “likely to cause death or grievous bodily harm” in s 271(1) of the Criminal Code; but the question there was whether the provision should have been left for the jury’s consideration over defence counsel’s objection. (On the appellant’s version of events, he had been attacked and was left lying on his back. The complainant was cut as he, the appellant, waved a knife about in the scuffle to protect himself.) In the course of discussing that question, de Jersey CJ made this observation:

“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).”¹²

The trial judge in that case had, as the Chief Justice observed, “prudently” followed the Benchbook direction, which does not elaborate on the meaning of “likely”. On the same topic, McMurdo P said:

“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’.”¹³

20. A second question discussed in Trieu was whether the defence of accident should also have been left to the jury. The Chief Justice resolved that issue thus:

“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.

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.”¹⁴

21. McMurdo P took a similar view of the difference in what was necessary to enliven the operation of the two provisions:

“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)).”¹⁵

22. Fryberg J, the third member of the court in Trieu, regarded the weight of authority as indicating that the meaning to be given to “likely” in s 271(1) was that in Boughey, as a substantial or real and not remote chance, regardless of whether it was less or more than 50 per cent; but in the absence of argument on the point it was not appropriate to reach a concluded view. As to what amounted to a possible outcome for the purposes of accident, he turned to the spectrum of likelihood identified by the High Court in Darkan, in which the arguable meanings of "probable" were listed in descending order:

“(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.”¹⁶

23. Fryberg J reached his conclusion on the point by a process of elimination from that list. A “possible outcome” could not be more probable than not; Taiters indicated that it was more than a “bare possibility”; and “a probability of less than 50/50, but more than a substantial or real and not remote possibility” was the meaning the High Court had ascribed to “probable consequence”. That left “a substantial or real and not remote possibility”, the same meaning as that attributed in Boughey to the word “likely”. It followed that s 271(1) did not present a higher threshold than that in s 23(1)(b).

24. In R v Crossman,¹⁷ this Court had to consider a direction on the meaning of “likely” as the word was used in the Code’s definition of “grievous bodily harm”; which includes, a “bodily injury...likely to endanger life”.¹⁸ The trial judge gave a direction which was essentially that contained in the Benchbook: that “likely” meant that there was a substantial chance, a real chance rather than a remote one, but it did not require that the outcome be more probable than not, a 51 per cent probability rather than a 49 per cent probability. The argument for the appellant was that the direction was erroneous because something was not likely unless it was more probable than not.

25. Chesterman JA, with whom the other members of the court agreed, regarded the direction given, and that in the Benchbook, as supported by the weight of authority. He referred to Boughey and Darkan. The definition of “grievous bodily harm” rendered an offence more serious and an offence liable to greater punishment; it did not involve the consideration which existed in Darkan, of the prospective width of accessorial liability. A less demanding test was appropriate for the imposition of liability which followed from the offender’s own act. Chesterman JA went on to consider R v Hind and Harwood¹⁹ and Trieu. He concluded from those authorities that the words “likely” and “probable” when used in the Criminal Code were not interchangeable, and there was no case which had held that “likely” meant “more probable than not”. Accordingly, the trial judge’s direction was correct.

Misdirection on the meaning of “likely” in s 271(1)

26. Returning to what was said in the present case, the reference in the direction to “substantial likelihood” could give no cause for complaint. But the explanation of a substantial likelihood as something which “may be less than 50/50 but a remote or speculative possibility is not enough” does, as the appellant says, carry the risk of giving the jury the impression that anything better than a remote or speculative possibility would suffice. The respondent argued that it accorded with the meaning attributed to the expression in Boughey. But while it is true that what the trial judge said departs from what was said in that case by only a word or two, there is a significant difference between a “real and not remote chance” and a possibility which is put no higher than that it is better than remote or speculative. More generally, if it is thought necessary to offer some explanation of the word “likely”, there is a good deal to be said, in my view, for leaving the discussion on the basis that what is required is a real or substantial likelihood, without adopting the approach deprecated in Boughey, of descending into percentages of probability.

27. But the greater vice in the learned judge’s directions is that they equated a “likely” result with a “possible outcome”: the same explanation was given for the latter in the context of accident as was given for the former in relation to self-defence. The jury could, consistently with those directions, have concluded that if a possible outcome of the force used was death or grievous bodily harm, that would suffice to show that those results were likely. In this regard I prefer, with respect, the view of de Jersey CJ and McMurdo P in Trieu to the contrary conclusion reached by Fryberg J. The common law “possible outcome” test for accident in s 23 entails a lower threshold than that for likelihood of death or grievous bodily harm. (The distinction endures with the adoption of the statutory test of “possible consequence”.) In the present case, to direct in relation to s 271(1) in the same terms as for s 23 was an error.

28. That misdirection was critical in this case because the evidence about the extent of the force used was far from conclusive. Although in his interview the appellant had said that his “whole body weight” followed the blow, he commenced his answer by saying that he did not “have a clue”, and his subsequent replies were much more equivocal:

“I don't know, I’d say, ‘cause that’s, I react.”;

And later:

“Oh, nah, probably, I don’t know.”

suggesting that the first answer was the result of reconstruction of the event. Importantly, the pathologist had described the blow as one delivered with “mild force”. The force of the blow and what was “likely” to follow from it were pivotal questions for the jury on which the evidence, given those variations, did not point to an inevitable and obvious answer. The way the jury approached its finding as to likelihood of death or grievous bodily harm was thus of fundamental importance and demanded accurate direction. The appeal must succeed on this ground, and it is unnecessary to consider the others advanced.

Orders

29. I would allow the appeal, set aside the conviction and order a re‑trial.

30. MUIR JA: I agree that, for the reasons given by Holmes JA, the appeal should be allowed, the conviction should be set aside and a re-trial ordered.

31. DAUBNEY J: I respectfully agree with Holmes JA.

Footnotes

1. The section was amended, with effect from 4 April 2011, by s 4 of the Criminal Code and Other Legislation Amendment Act 2011. ↩

2. [1997] 1 Qd R 333. ↩

3. (1986) 161 CLR 10. ↩

4. At 21. ↩

5. At 21. ↩

6. At 22. ↩

7. At 22. ↩

8. (2006) 227 CLR 373. ↩

9. At 398. ↩

10. At 399. ↩

11. [2008] QCA 28. ↩

12. At [14]. ↩

13. At [48]. ↩

14. At [32]-[33]. ↩

15. At [50]. ↩