The High Court unanimously dismissed an appeal against a decision of the Queensland Court of Appeal on the defence of accident to a grievous bodily harm conviction. The appellant and his former business partner fell out over business dealings and an adultery claim, leading to a fight in a Gold Coast shopping mall. The jury convicted the appellant of grievous bodily harm for breaking the victim’s hip after shoving him over, but acquitted him of another charge that he kicked the victim while he was on the ground. The defence of accident in s23 of Queensland’s Crimninal Code states (emphasis added):

(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— (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.
Example: Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1) (b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

The QCA rejected the appellant’s claim that the hip fracture fell within s23(1)(b) in the following terms (emphasis added):

A jury may well have considered that an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip. That, it seems, was the trial judge’s view. But that is not the test for this Court. It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push. The resolution of the issue was a matter for the jury. They had the advantage of seeing the height and build of the 55 year old complainant and appellant. Assuming they were of average build and height, the appellant’s push of the complainant, necessarily on the medical evidence forceful, on a slight downward sloped tiled ramp, could foreseeably result in the complainant falling badly and seriously injuring himself, even breaking his hip. Such a result was not theoretical or remote.

After reviewing the whole of the evidence, I am satisfied that the jury verdict of guilty of grievous bodily harm was not unreasonable and against the weight of the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It follows that I would dismiss the appeal against conviction.

The High Court (Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ) held (at [44]) that s23(1)(b)’s reference to ‘would’ ‘involves a degree of probability, albeit that it need not be more likely than not, whereas’ the QCA’s referrence to ‘could’ ‘is a matter more akin to mere possibility’ and hence was ‘prone to lead to error in the application of s 23(1)(b)(ii)’ and ‘the practice should not be repeated’.However, the Court noted (at [45]) that the trial judge directed the jury in the correct terms and ‘there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.’

The Court then turned to the particular reasoning of the QCA, holding (at [47]) that the intermediate court correctly inferred from the appellant’s own evidence (including that he was ‘really angry [and] really cranky’ when he pushed the complainant and medical evidence that the complainant struck the ground ‘with some speed’) that the appellant used ‘a considerable degree of force’ when he pushed the complainant. At [49], the Court held that the QCA’s remark that a finding of forseeability was ‘equally open’ to the jury meant that ‘it was open to be satisfied that an ordinary person in the appellant’s position would reasonably have foreseen the possibility of the injury that was suffered.’ While ‘[i]t does not suffice to prove foreseeability of simply any injury amounting to grievous bodily harm… [w]hat is required is proof beyond reasonable doubt that an ordinary person in the position of the accused would reasonably foresee the possibility of the type of injury in fact caused.’ ([51]). The Court concluded (at [52]), that ‘in the circumstances of this case, it cannot be sensibly doubted that, when pushing a middle-aged man backwards on a downward-sloping, hard-surfaced, concrete-tiled ramp with sufficient force to cause him to stumble backwards three or four metres and hit the ground at speed, an ordinary person in the position of the appellant would reasonably foresee an injury of that kind as a real and not remote possible consequence of such a push.’ Accordingly, the QCA correctly concluded that the verdict was not unsafe or unsupported by the evidence. The Court accordingly dismissed the appeal.,