R v Van Den Bemd

The facts, issues and statutory provisions are set out in the judgment of Brennan J. Like his Honour, I am of the opinion that special leave to appeal should be granted and that the appeal should be allowed.

Despite its jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences of the Supreme Court of any State" [45] , this Court is extremely reluctant to grant special leave to the Crown to appeal against an order of the Court of Criminal Appeal of a State Supreme Court quashing a conviction. In exercising its jurisdiction to grant special leave to the Crown to appeal against such orders, the Court has been much influenced by the common law tradition concerning challenges to verdicts of acquittal. The common law set its face against any form of challenge to a verdict of acquittal by a jury. In R. v Jones [46] , Pratt C.J. said that "[i]t was never yet known that a verdict was set aside by which the defendant was acquitted". And at common law, as Lord Devlin has pointed out [47] , it "has not been known since". The common law's refusal to interfere with a jury's verdict of acquittal was founded upon the rule against double jeopardy although it "may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings" [48] .

1. Constitution, s 73. 2. (1723) 8 Mod. 201, at p. 208 [88 E.R. 146, at p. 149]. 3. The Judge (1979) at p. 118. 4. Davern v Messel (1984), 155 C.L.R. 21, at p. 55.

An acquittal entered by a Court of Criminal Appeal "differs greatly in substance from an original verdict of a jury" [49] . Yet the policy of the law is so firmly set against an appeal from an order of acquittal that the case needs to be truly exceptional before this Court will grant the Crown leave to appeal against such an order [50] . In considering whether a case is truly exceptional, the institutional role of this Court as the body responsible for declaring the law of Australia and its States is a factor of great importance. It must be weighed against the law's traditional solicitude for a person who has had a conviction quashed and an order of acquittal or an order for a new trial substituted for the verdict of guilty. If the Court of Criminal Appeal has erred, refusal to grant leave may "only serve to perpetuate that error and allow it to become a source of further error" [51] . Furthermore, an accused person who appeals against a conviction and induces a Court of Criminal Appeal to quash a conviction on erroneous grounds "has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact" [52] . However, the alleged error must have serious consequences for the administration of justice before the Court will grant leave to appeal. And, of course, depending on all the circumstances of the case, the presence of an error having those consequences may not be sufficient.

1. R. v Weaver (1931), 45 C.L.R. 321, at p. 356; Reg. v Benz (1989), 168 C.L.R. 110, at pp. 112, 131. 2. Benz (1989), 168 C.L.R., at p. 146. 3. ibid., at p. 113. 4. United States v Wilson (1975), 420 U.S. 332, at p. 345; Davern (1984), 155 C.L.R., at p. 60.

Assuming an error of the requisite seriousness, the case for a grant of special leave to appeal is strengthened when the reversal of the order of the Court of Criminal Appeal will simply restore the verdict of a jury and not subject the accused to a further trial. It is strengthened further if the order of the Court of Criminal Appeal itself was for a new trial rather than the entry of an acquittal [53] . Review by a final appellate court is clearly less prejudicial to an accused who faces a new trial than to an accused who has been acquitted by an appellate court. Where an accused faces a new trial it is only the chance of acquittal at the trial which is jeopardised by the further review.

1. See, e.g., R. v Lee (1950), 82 C.L.R. 133 where the Court granted special leave to appeal against an order for a new trial of a charge of murder, allowed the appeal, and restored a sentence of death. See also Attorney-General (S.A.) v Brown , [1960] A.C. 432.

In my opinion, the Court of Appeal erred in the present case when it quashed the conviction of the accused and ordered a new trial. The trial judge's summing-up concerning s. 23 of The Criminal Code Q was in accordance with the ratio decidendi of this Court's decision in Mamote-Kulang v The Queen [54] and contained no error concerning the construction of that section. Mamote-Kulang held that death is not "an event which occurs by accident" within the meaning of s. 23 if no more appears than that the death was the immediate and direct result of an intentional blow to a person who had a constitutional defect, unknown to the accused, which made the deceased more susceptible to death than an ordinary person in good health. In Mamote-Kulang the accused was convicted of the manslaughter of his wife who had died as the result of a punch to her abdomen. Death was caused by the rupturing of the spleen which was unusually enlarged. McTiernan J. said [55] :

It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to [the victim] from which she died. After referring to the judgments of Dixon C.J. and Kitto J. in Vallance v The Queen [56] , Taylor and Owen JJ. said [57] : What their Honours were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an "event occurring by chance" (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident. In the result we find ourselves in agreement with the conclusion reached by the Queensland Court of Criminal Appeal in Reg. v Martyr [58] , a case in which the facts are indistinguishable from those in the present case. 1. (1964) 111 C.L.R. 62. 2. ibid., at p. 64; see also the judgment of Taylor and Owen JJ., at p. 66. 3. (1961) 108 C.L.R. 56. 4. Mamote-Kulang (1964), 111 C.L.R., at pp. 69-70. 5. [1962] Qd R. 398.

The subsequent decisions of this Court in Timbu Kolian v The Queen [59] and Kaporonovski v The Queen [60] do not affect the ratio decidendi of Mamote-Kulang. In Timbu Kolian, the accused aimed a blow at his wife with a stick. As a result, he killed his child who was being carried by his wife. The incident took place in the dark; the accused did not know and had no reason to suspect that his wife was carrying the child. The Court unanimously held that the conviction of the accused for manslaughter must be set aside. However, in that case death was not contributed to by a physiological weakness as it was in both Mamote-Kulang and the present case. Moreover, none of the judgments in Timbu Kolian expresses any doubt on the authority of Mamote-Kulang.

1. (1968) 119 C.L.R. 47. 2. (1973) 133 C.L.R. 209.

In Kaporonovski, the Court upheld a ruling of the trial judge that no defence was open under s. 23 of The Criminal Code Q in a case where the accused forced a glass against the victim's eye, causing him grievous bodily harm. Gibbs J., with whose judgment Stephen J. agreed, said [61] :

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. However, nothing in his Honour's judgment suggests that he was intending it to apply to cases where the victim has a physiological pre-disposition or to overrule the ratio decidendi of Mamote-Kulang. Indeed his Honour made, inter alia, three references to the judgment in Mamote-Kulang as authority for his statement [62] . 1. ibid., at p. 231. 2. (1973) 133 C.L.R., at p 232.

The first of these is to part of the passage from the judgment of Taylor and Owen JJ. which I have already set out. The second is to the judgment of Menzies J. [63] The third reference is to a page in the judgment of Windeyer J. [64] which contains the following:

As I see the matter, the most that can be got from Vallance's Case [65] . that could be relevant in this case is that a killing cannot be an event which occurs by accident if the person charged intended to kill, or foresaw death as a likely result of his act, or if a reasonably prudent person in his position would have realized that death was a likely result of such an act. But that an occurrence is not accidental if any one or more of certain qualities can be predicated of it does not mean that it is accidental if none of them can be predicated. (My emphasis.) Windeyer J. [64] also expressed the conclusion that the decision of the Supreme Court of Queensland in Reg. v Martyr [66] was correct. Yet the Court of Appeal which adopted Kaporonovski, overruled Martyr in the present case. 1. Mamote-Kulang (1964), 111 C.L.R., at p. 72. 2. ibid., at p. 85. 3. (1961) 108 C.L.R. 56. 4. ibid., at p. 85. 5. [1962] Qd R. 398.

While the statement by Gibbs J. in Kaporonovski as to the effect of the second limb of s. 23 of The Criminal Code is an extremely helpful guide as to whether or not an event has occurred by accident, the decision in Mamote-Kulang shows it cannot be regarded as an exhaustive definition of the term "accident". If a person intentionally punches another person and kills him or her, it would not be in accordance with ordinary speech to describe the death as an accident even if the death would not have occurred but for some weakness in the physical constitution of the deceased.

In my opinion, nothing in Timbu Kolian or Kaporonovski throws any doubt on the decision of this Court in Mamote-Kulang. The Court of Appeal was in error in holding that it was open to the jury to find in the present case that the deceased died "by accident".

The error of the Court of Appeal is sufficiently serious to warrant the grant of special leave to appeal. It involves an important question as to whether the concluding words of s. 23 provide a defence in a case where the harm suffered by a person was the direct result of an intentional blow and the person had a constitutional defect, unknown to the accused, which made that person more susceptible to harm than an ordinary person in good health. By itself, I think that question is sufficiently important to warrant the grant of special leave to the Crown. But the case for the grant of leave is strengthened by the fact that the decision of the Court of Appeal cannot be reconciled with the decision of this Court in Mamote-Kulang. To refuse leave would have serious consequences for the administration of justice not only in Queensland but also in other States where Codes have supplanted the common law.