R v Stuart [2005] QCA 138

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: The appellant, Mr Stuart, was convicted following a five day jury trial of doing grievous bodily harm to Hayden Thomas Mitchell on 20 June 2002. The only ground of appeal pursued, added by leave, was as follows: when explaining the second limb of s 23(1) Criminal Code 1899 (Qld) ("Criminal Code"), the learned trial judge erred in telling the jury that for the prosecution to succeed it must show that some injury was foreseeable but that the 'degree of injury' did not need to be foreseen.

[2] Before examining this contention in more detail it is useful to refer to the evidence to show how the issue arises.

[3] Mr Mitchell gave evidence that on the day of the offence he had braces removed from his teeth. Later, he and a friend were involved in a confrontation with a group of youths, including Mr Stuart, at Mt Gravatt Garden City shopping town. Mr Stuart struck him with a single blow to the mouth, either from the side or from behind. As a result he lost teeth and suffered injuries to his gums. Mr Stuart appeared shocked at Mr Mitchell's injuries.

[4] Mr Stuart, through his counsel, formally admitted at trial that these injuries amounted to grievous bodily harm.

[5] Mr Mitchell's friend, Mr Yates, also gave evidence of his perception of the circumstances leading to the blow which caused Mr Mitchell's injuries. In the end, Mr Yates' evidence was of little assistance because he agreed that he did not actually see the blow delivered.

[6] Mr Stuart was interviewed by police later that evening. He told police that Mr Mitchell kept on pushing him with his open hands and holding him so he punched him once with a clenched fist, acting in self defence to avoid being pushed over a railing.

[7] Mr Stuart gave and called evidence. He said he intervened in a confrontation between one of his companions and Mr Mitchell. While he was trying to separate them, Mr Mitchell grabbed him and pushed him backwards, forcing his legs against a seat and his upper body over a railing with concrete below. Mr Mitchell held him in this position with his arm on Mr Stuart's chest. Mr Stuart struck out with a single blow not aimed at any particular point. The blow struck Mr Mitchell in the mouth. He said: "I just swung and punched him." He did not aim for Mr Mitchell's mouth. Mr Stuart was shocked when he saw Mr Mitchell bleeding from the mouth and by Mr Mitchell's injuries.

[8] Mr Carsburg, a friend of Mr Stuart, gave evidence that Mr Stuart intervened in an altercation between Mr Carsburg and Mr Mitchell, telling Mr Mitchell to leave Mr Carsburg alone. Mr Mitchell then pushed Mr Stuart with his two hands and kept on pushing him until Mr Stuart was leaning back over a railing. If he had been pushed again he would have fallen over the railing. Mr Stuart, with his eyes closed, then hit Mr Mitchell in the face. In cross-examination, he conceded he had two convictions for assault which he committed in company in circumstances which amounted to street fights.

[9] Mr Buckell, also a friend of Mr Stuart, gave evidence that he saw Mr Mitchell push Mr Stuart and pin him up against the railing, holding his shirt. Mr Stuart then punched Mr Mitchell with his left hand. It was a hard, full-on punch which struck Mr Mitchell in the front of the mouth. He described the punch as "straight up".

[10] Defence counsel's address to the jury emphasised the following. Mr Mitchell was the aggressor. The jury would prefer the account given by Mr Stuart and his friends to that of Mr Mitchell. Mr Stuart used reasonable force in self-defence in circumstances where he had to act quickly to protect himself. Mr Mitchell's teeth were vulnerable because of the recently removed braces so that not much force was needed to knock out his teeth. Mr Stuart did not know Mr Mitchell's braces had recently been removed. He was plainly shocked at the injuries he caused to Mr Mitchell. Mr Stuart did not intend to damage Mr Mitchell's teeth and mouth and ordinary onlookers would not have foreseen such injury, not knowing that the teeth were loose and vulnerable; the injuries were accidental. Grievous bodily harm was admitted and on the evidence the jury might well conclude that it was Mr Stuart's hit that caused the damage, but the prosecution could not exclude both accidental injury and self-defence.

[11] The prosecutor, in his address at trial, encouraged the jury to accept Mr Mitchell's version of events and to reject the version given by Mr Stuart and his friends. He contended that the force used by Mr Stuart was plainly unreasonable in circumstances where the worst scenario for Mr Stuart was that he might fall onto his bottom. The jury would be satisfied that Mr Stuart had not acted in reasonable self- defence and would convict Mr Stuart.

[12] Although the principal issue at trial was self-defence, one question for the jury was whether Mr Stuart's conduct was excused by s 23(1) of the Criminal Code which relevantly provides:

"23(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for -

(a) an act or omission that occurs independently of the exercise of the person's will; or

[13] In the course of the summing-up to the jury, his Honour referred to the elements of the offence of grievous bodily harm of which the jury had to be satisfied beyond reasonable doubt. His Honour read the charge to the jury, noting that identification, date and place were not in issue. He reminded them that the prosecution must establish that Mr Mitchell suffered grievous bodily harm and that Mr Stuart's counsel had admitted this. His Honour noted that "grievous bodily harm, in broad terms, is a serious injury. There is no doubt [Mr Mitchell] suffered a serious injury." His Honour next dealt with the question of causation of the grievous bodily harm, pointing out that there was no suggestion that Mr Stuart intended to do grievous bodily harm; the prosecution case was rather that in punching Mr Mitchell he committed a conscious and deliberate act. If the jury were not satisfied beyond reasonable doubt that the punch was a conscious and deliberate act, they must acquit; if they were so satisfied, they would then consider the next question.

[14] His Honour's direction on that question is the subject of this appeal and was in the following terms:

"... you ask yourselves this: 'Was the injury likely to happen in the ordinary course of events?' Or, to put it another way, in deciding whether the injury was likely to happen, you must be satisfied beyond reasonable doubt that an ordinary person in the position of the accused, then and there at the time the accused punched the complainant, would have foreseen that injury was likely to be sustained in the manner in which injury was in fact sustained by the complainant.

Now, you don't have to foresee the degree of injury, but what has to be foreseen is that injury was likely to be sustained in the manner in which the injury was, in fact, sustained by the complainant. It is a matter of foreseeing the likelihood of some injury being sustained in the manner in which injury was, in fact, sustained. That is the question which you have to be satisfied of and the Crown must satisfy you of that beyond reasonable doubt.

So, you look at the evidence and decide again, first of all, what happened. Without that, it is quite clear, you can't apply the law as I've described it to you and you can see that there may be differences in your decision, depending of course upon what you decide happened because, as I have said, if you accept the evidence of [Mr Mitchell] and Yates that [Mr Mitchell] was talking to Rose and Silverjacket and without warning, he was punched from the side by [Mr Stuart], if you accept that, and that of course is a very different situation from that which has been described by [Mr Stuart] in his record of interview, by his evidence in this court room, by the evidence of Rose, [sic] Buckley [sic] and Carsburg.

So, if you come to the conclusion that this incident happened the way as described by [Mr Mitchell], you ask yourselves on those circumstances would an ordinary person, in the position of [Mr Stuart], have foreseen that injury was likely to be sustained in the manner in which it was. If you came to the conclusion that you can't decide how this incident occurred, as I have said to you, the onus is upon the Crown, you would then be in doubt as to how it happened and you would acquit.

But if you came to the conclusion that it occurred in the way described by [Mr Stuart] in the record of interview, in this court room, by Carsburg and Buckle [sic], well again you apply to that circumstance the question which I have said to you again, would a person foresee in those circumstances that injury would be sustained in the manner in which it was."

[15] His Honour then gave the jury detailed directions as to self-defence (about which there is no complaint) and summarised some aspects of the evidence. At the conclusion of the summing-up, his Honour summarised the prosecution and defence case as follows:

"The Crown's proposition is that you would accept the evidence of [Mr Mitchell] and Yates and, in those circumstances, there is no suggestion of [Mr Stuart] acting in self defence and you'd have no doubt about the question of causation. To punch somebody the way it is alleged by [Mr Mitchell] and Yates all those matters the Crown says to you are established and you'd convict him.

And the proposition, of course, that's put forward on behalf of [Mr Stuart] and from his evidence and the record of interview, is that he was acting in self defence and, in those circumstances, [Mr Mitchell] was pushing him against and over a railing and he lashed out. It's unfortunate that the injury was, in fact, caused, but he didn't foresee it, didn't intend it and, in those circumstances, the force he used was no more than reasonable. He was acting in self defence but, in any way, it's for the Crown to prove beyond reasonable doubt that he wasn't."

[16] Neither counsel asked for any redirection on any matter of law. The jury retired to consider their verdict at 10.30 am on the fifth day of the trial and delivered their verdict at 11.08 am.

[17] Mr Glynn SC, on behalf of Mr Stuart, argued that the learned trial judge's direction on s 23[1] was flawed because it suggested to the jury that, to negative the operation of s 23(1)(b) Criminal Code, the prosecution need only establish beyond reasonable doubt a foreseeable injury of any kind, rather than the type of injury caused by the blow which Mr Stuart struck. In this regard, Mr Glynn placed heavy emphasis upon the learned trial judge's observation to the jury that: "It is a matter of foreseeing the likelihood of some injury being sustained ... ". Mr Glynn also relied upon the statement of Gibbs J, as his Honour then was, in Kaporonovski v R,[2] where his Honour said:

"It must now be regarded as settled that an event occurs by accident within the meaning of the rule 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. . . ."

[18] That statement has been adopted in the Queensland Supreme and District Courts Benchbook's suggested direction to be given to a jury when s 23(1)(b) Criminal Code is raised. There can be no doubt that, for the purposes of s 23(1)(b) the "event which occurs by accident" is, in the circumstances of the present case, the injury which constitutes the grievous bodily harm suffered by Mr Mitchell.[3]

"The Crown is obliged to establish that the defendant 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 defendant would reasonably have foreseen the event as a possible outcome. In considering the possibility of an outcome, you should exclude possibilities that are no more than remote and speculative.

If an ordinary person in the position of the defendant would not have foreseen the [serious injury] of [the complainant] as a possible outcome of his actions [here, punching him with a closed fist to the vicinity of the mouth], then that person would be excused by law, and you would have to find him not guilty. It is not for the defendant to prove anything. Unless the prosecution proves beyond reasonable doubt that an ordinary person in the position of the defendant would reasonably have foreseen [serious injury] as a possible outcome of his actions, you must find him not guilty."

[20] It is unfortunate that his Honour did not follow the Benchbook model direction. The learned trial judge instead instructed the jury in these terms. "Was the injury likely to happen in the ordinary course of events?" At this point, it is clear that his Honour was speaking of the injury constituting the admitted grievous bodily harm to which he had referred earlier in the course of his direction to the jury. The learned trial judge went on to say that the issue was whether it was foreseeable "that injury was likely to be sustained in the manner in which injury was in fact sustained by the complainant". And in the sentence in the direction upon which Mr Glynn particularly relies, after the learned trial judge referred to "the likelihood of some injury being sustained", his Honour went on to say: "... in the manner in which injury was in fact sustained". Finally his Honour repeated that the question was: "... would a person foresee in those circumstances that injury would be sustained in the manner in which it was".

[21] Mr Glynn submitted that the reference to foreseeability of "the manner in which injury was in fact sustained" did not refer to foreseeability of the kind of injury in fact sustained, ie the grievous bodily harm which had admittedly occurred, but rather referred merely to the foreseeability of contact between Mr Stuart's fist and Mr Mitchell's mouth sufficient to cause some injury.

[22] It is possible a jury may have interpreted the direction in the way suggested by Mr Glynn, although the absence of any request for a redirection suggests that at least counsel at trial did not. The State Reporting Bureau has supplied the relevant portion of the tape recording of his Honour's summing-up, but the oral emphasis given to the relevant words does not resolve the potential for ambiguity raised by Mr Glynn. It follows that the jury may have reached their verdict believing the prosecution need only establish beyond reasonable doubt that when Mr Stuart did the deliberate, willed act causing grievous bodily harm, injury of any kind was foreseeable (rather than injury of the kind in fact suffered).

[23] Despite that error, this Court has the power to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred: s 668E(1A) Criminal Code.

[24] Immediately before the ambiguous direction, his Honour told the jury:

"You must be satisfied that the act of [Mr Stuart] in punching [Mr Mitchell] was a willed act. That is, a conscious and deliberate act. Now, once again you will look at the evidence to decide was there - was the punch a conscious and deliberate act. As I said, its quite clear that you've been - you're faced with different versions. A different version from [Mr Stuart] and from [Mr Mitchell] and Yates."

[25] It can be seen that the learned trial judge directed the jury that, in order to convict Mr Stuart, they had to be satisfied beyond reasonable doubt that he had deliberately punched Mr Mitchell. The learned trial judge did not direct the jury that only Mr Stuart's striking out with his fist needed to be a conscious and deliberate act. He directed them that they had to be satisfied that the actual punch was a conscious and deliberate act and that this issue fell to be resolved by reference to the competing versions as to how contact between Mr Stuart's fist and Mr Mitchell's mouth occurred. It may be that this direction was unduly favourable to Mr Stuart in that it might be said that the act which had to be conscious and deliberate on the part of Mr Stuart was the striking out with a clenched fist rather than the actual punch to Mr Mitchell. Be that as it may, a direction in these terms (that they must first be satisfied beyond reasonable doubt that, in punching Mr Mitchell, Mr Stuart committed a conscious and deliberate act) meant the jury were only considering s 23(1)(b) if satisfied beyond reasonable doubt that the punch was a conscious and deliberate act. The jury's guilty verdict meant that they were satisfied beyond reasonable doubt that Mr Stuart caused Mr Mitchell grievous bodily harm in circumstances where he punched Mr Mitchell in a deliberate, willed act which was not reasonable self-defence. In those circumstances, the jury would have inevitably concluded that the evidence established beyond reasonable doubt that an ordinary person in Mr Stuart's position would have foreseen that such a punch to the mouth might lead to Mr Mitchell's teeth and gums suffering serious injuries similar to those he actually incurred. The loss of a tooth is sufficient to constitute grievous bodily harm.[4] In any event, it was admitted that the injury which occurred, which involved scarring of the gums and the loss of several teeth, constituted grievous bodily harm. It was not necessary that the precise number of teeth damaged or the precise extent of scarring to the gums should have been foreseeable. What had to be foreseeable was that the punch might cause that kind of damage.

[26] It follows that, had the jury been given a model direction as to s 23(1)(b) Criminal Code, they would inevitably have convicted Mr Stuart; he has not lost a real chance of an acquittal through judicial error: Wilde v R,[5] Festa v R[6] and Conway v R.[7] It follows that the appeal against conviction should be dismissed.

[27] Mr Stuart was granted bail pending appeal so that it is necessary for this Court to order a warrant to issue for his arrest.

2. A warrant is to issue for the arrest of the appellant but to lie in the registry for 48 hours.

[1] Set out in [14] of these reasons.

[2] [1973] HCA 35; (1973) 133 CLR 209 at 231.

[3] R v Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999 at [2] per McMurdo P and at [13] per Fryberg and Muir JJ.

[4] See the definition of "grievous bodily harm" in s 1 Criminal Code: "the loss of a distinct part ... of the body".

[5] [1988] HCA 6; (1988) 164 CLR 365, 371-372.

[6] (2001) 208 CLR 593.

[7] (2002) 209 CLR 203, [6], [38].