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Abone, Regina v [1967-68] PNGLR 277 (29 March 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 277 - Regina v Yofia Abone

[1967-68] PNGLR 277

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

YOFIA ABONE

Port Moresby

Minogue J

12-13 March 1968

29 March 1968

CRIMINAL LAW - Indictments - Joinder of counts - Series of acts done in prosecution of single purpose - Double punishment for same act or omission - The Criminal Code (Queensland, adopted), ss. 16, 567, 596.

CRIMINAL LAW - Assault - Present ability to effect purpose - Grievous bodily harm - Criminal negligence - Accident - The Criminal Code (Queensland, adopted), ss. 23, 245, 289, 320^*[cccxxxix]1.

The accused moved to quash an indictment presented against him containing five counts. The first three, which were in the alternative, alleged various offences of violence committed against his wife while the other two, also in the alternative, alleged offences committed against another person, a young boy. The facts which the Crown proposed to prove were, inter alia, that the accused after assaulting his wife with the handle of an axe and pursuing her until she ran into the house of a neighbour had thrown the axe in her direction and had struck the head of a young boy who looked out the door at that moment and caused him to suffer a depressed fracture of the skull. Counsel for the Crown intimated that he did not intend to call the wife to give evidence because she was a deaf-mute.

Held:

(1)      That the charges came within the proviso to s. 567 and were properly joined.

(2)      That as the Crown did not propose to call the wife as a witness the possibility of prejudice arising out of her competency and compellability as a witness varying on the different charges did not arise and it did not appear that any prejudice to the accused would otherwise eventuate.

(3)      That in deciding whether s. 16 applies the Court has to consider whether or not at the close of the evidence there is a likelihood of double punishment and a submission made by defence counsel concerning s. 16 on this motion was premature.

R. v. Simpson [No. 1], [1958] Q.W.N. 39, applied.

The accused on being arraigned pleaded not guilty to all counts. The evidence established that the accused, who had normally been on good terms with his wife, had on the day of the alleged offences been irritated by her failure to cook him a meal in the morning before he went to work; returning to his house in the village that afternoon he found that again his wife had prepared no meal for him; angered by her conduct he approached his wife who was at the woodheap nearby, took the axe she was holding and struck her with the handle; she retreated towards a neighbour’s house with the accused in pursuit; she disappeared into the house and the accused hurled the axe after her; as the axe was travelling in the direction of the doorway the young boy, who was a member of the family whose house it was, poked his head out and some part of the axe struck him on the forehead causing a depressed fracture of the skull. At all material times it was drizzling and there was no evidence that any children of the village were out of doors; Papuans generally do not like wet weather and are accustomed to keep to their houses when it is raining.

Held:

(1)      The accused’s pursuit of his wife did not constitute an assault because the evidence did not show that he had “actually or apparently a present ability to effect his purpose” within the meaning of those words in s. 245 of The Criminal Code. His initial striking of his wife with the handle of the axe did constitute an unlawful assault.

(2)      To sustain a charge of unlawfully doing grievous bodily harm contrary to s. 320 of The Criminal Code the Crown had to prove that the act causing grievous bodily harm was unlawful either because it amounted to an act of criminal negligence under s. 289 or because though not itself a criminally negligent act, its result, the infliction of grievous bodily harm, was not “an event which occurred by accident” within the meaning of s. 23. The evidence did not establish either form of unlawfulness.

R. v. Tralka, [1965] Qd.R. 225; Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56; R. v. Martyr, [1962] Qd.R. 398; Callaghan v. The Queen (1952), 87 C.L.R. 115; Evgeniou v. The Queen, [1964] P. & N.G.L.R. 45; R. v. Knutsen, [1963] Qd.R. 157; R. v. Bateman (1925), 19 Cr.App.R. 8; and Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound)[1961] UKPC 1; , [1961] A.C. 388, referred to.

(3)      The blow suffered by the child was “an event which occurred by accident” within the meaning of s. 23.

Motion To Quash Indictment—Criminal Trial.

Yofia Abone was charged upon an indictment in which five counts were joined. Particulars of the counts appear in the reasons for judgment. The accused moved that the indictment be quashed, and this motion was dismissed for reasons now incorporated in the reasons hereafter appearing. The accused pleaded not guilty to all counts, and all of the relevant facts appear in the reasons for judgment.

Counsel:

Gajewicz, for the Crown.

Broadley, for the accused.

Cur. adv. vult.

29 March 1968

MINOGUE J:  An indictment was presented against the accused Yofia Abone in which five charges were joined. The first three of these charges related to a woman, Bisoi Auda, who was his wife. Firstly he was charged that on 25th November, 1967, with intent to maim disfigure or do some grievous bodily harm to Bisoi he unlawfully attempted to strike her with a projectile, namely an axe. Secondly, he was charged that he attempted to unlawfully do grievous bodily harm to her and, thirdly, that on the day in question he unlawfully assaulted her. The fourth and fifth charges related to a young boy aged about seven. The accused was charged with on 25th November, 1967, unlawfully doing grievous bodily harm to the boy, Eva Tom by name, and also with unlawfully assaulting him. At the outset I was informed by the learned prosecutor that the first three charges were alternative and in descending order of gravity, whilst the latter two were also alternative but that the offences alleged in respect of the boy Eva were additional to those alleged in respect of Bisoi.

Before the accused was called on to plead to the indictment Mr. Broadley, who appeared for him, moved under s. 596 of The Criminal Code (Queensland, adopted) to quash it on both grounds open under that section, i.e. on the ground that it was calculated to prejudice or embarrass the accused in his defence and on the ground that the indictment was formally defective. Mr. Broadley informed me that he was not in fact seeking to have the indictment quashed but sought an order that it be amended in such manner as the Court should think fit. This power of amendment the Court has under the section. What he ultimately sought was an election by the prosecutor upon which of the several charges he would proceed. Mr. Broadley’s submission that the indictment was formally defective was based firstly upon the first paragraph of s. 567 of the Code which provides that except as otherwise stated in that section an indictment must charge one offence only and not two or more offences. There was no complaint of the joinder of the first three charges because he realized that these were charged in the alternative. His complaint was of the joinder of charges four and five which although they were themselves alternative charges should not have been joined with the quite separate offences alleged in relation to Bisoi. He further argued that the indictment was formally defective because of a likely infringement of s. 16 of the Code which enacts that a person cannot be twice punished either under the provisions of the Code or of any other law for the same act or omission, and he submitted that as it was the one act of the accused which gave rise to both sets of charges Yofia was in jeopardy of being punished twice for the same act or omission. In support of his submission that the indictment was calculated to prejudice or embarrass him in his conduct of the defence he argued that he could well find himself in a most difficult position. On the first group of charges Bisoi was both a competent and compellable witness but on the second group she was not compellable and was only competent on the application of the accused, she being his wife (see Evidence and Discovery (Papua) Ordinance, s. 58). Further it was quite conceivable that other evidence might be tendered which was admissible on the one group of charges and not on the other. And although this was not a trial by jury he could conceivably be embarrassed in other ways in the handling of the defence which although not immediately apparent might well arise during the course of the trial.

The learned prosecutor in opposition to the motion, outlined the facts which it was proposed to prove. They were that the accused man on his return from work late in the afternoon of 25th November found that his meal had not been prepared for him, became angry, assaulted his wife with the handle of an axe and on her running or moving away from him pursued her with the axe. She ran or hurried into the house of a neighbour whereupon he threw the axe at her. Either she was too quick or his aim was incorrect, but it was very shortly after the moment of her disappearance into the neighbour’s house that the boy Eva’s head emerged from the doorway and the axe hit him on the forehead causing a depressed fracture of the skull. He further assured me that Bisoi would not be called to give evidence, not for any tactical reason but because she was a deaf-mute and it was virtually impossible to establish communication with her.

I do not think that the learned prosecutor was quite clear in his mind as to the way he should tackle the objection based on s. 16, because at one stage he informed me that he would rely on the first assault upon the wife and not upon the throwing of the axe and so there could be no possibility of s. 16 being brought into operation; but I rather think that when he realized that evidence of that assault would not support the first charge on the indictment he thought he had better have it both ways and rely also on the attempted assault which might be constituted by the throwing of the axe. Be that as it may, I ruled against Mr. Broadley’s submission for reasons which I expressed at the time but which I think should properly be here set out.

With regard to his submission that the indictment was defective by reason of its breaching the provisions of s. 567 I agree with what was said by Mr. Gajewicz that the situation described by him came within the proviso to s. 567 in that whatever distinct indictable offences there were they were alleged to be constituted by the same acts or omissions or by a series of acts done in the prosecution of a single purpose and in such a case the section has specifically provided that they may be joined in the same indictment. On the facts as outlined to me it seemed that whatever offences were committed by the accused they could be said to be done in the prosecution of the single purpose of chastising or assaulting his wife, or if the act relied upon was the hurling of the axe that act (which in my view must include any foreseeable results consequent upon the act) could well constitute several distinct indictable offences. Section 567 also provides safeguards for the accused person if it appears to the Court that he may be prejudiced by a joinder of charges. Apart from the prejudice which could arise if Bisoi were called upon to give evidence I could see none other likely to be occasioned the accused by the joinder of the several charges nor could I see any occasion for requiring the prosecutor to elect upon which he would proceed. After all, as outlined, there seemed to be a very simple and uncomplicated set of circumstances and the books abound in cases where there has been a joinder in much more complicated circumstances than in this case.

With regard to the submission that the indictment was formally defective because of the possibility which could arise under s. 16 of the Code I took the view that the objection was wrongly conceived and that any attempt to call s. 16 in aid was premature. I did not think that I could come to consider s. 16 until all the evidence was concluded because until that time it would not be apparent whether or not the accused was at risk of being twice punished for the same act or omission. It was possible that he might be acquitted of one or both of the two groups of charges contained in the indictment. What the Court really has to consider is whether or not at the close of the evidence there is a likelihood of double punishment. This was the view taken by Sheehy J. in R. v. Simpson [No. 1][cccxl]². Accordingly I allowed the accused to be arraigned on the charges as they appeared in the indictment. To all of these charges he pleaded Not Guilty. The trial proceeded and I heard all the evidence both for the prosecution and the defence. The facts I find to be as follows.

The accused arose at about 5.30 in the morning of 25th November, 1967, which was a Saturday. He is a man aged about thirty-seven years and his wife, whom I did not at any stage see, is considerably younger. She is a deaf-mute and they have one child aged about two years. The accused is a driver employed by the Itikinumu Estate and has been so employed for many years. His standard of education is low but otherwise he is an ordinary villager of Kailaki Village and a man of good repute. There was no history of dissension within his family circle. On the morning of 25th November he made several attempts to wake his wife in order that she should prepare his breakfast. However, she persisted in sleeping and he prepared such breakfast as he had and went off to work in a disgruntled frame of mind. Due to some trouble with a truck he did not return until some time between three and four o’clock in the afternoon—I have no doubt tired, irritable and hungry. Bisoi did not have a meal prepared for him but was at the back of their house at the woodheap. The accused’s irritation turned to anger and he took an axe from Bisoi’s hand and holding it by the steel head struck her once with the wooden handle. It is not clear to me whether he intended to strike her there a second time but at any rate she hurried towards a neighbour’s house some twenty to thirty yards away, whilst the accused pursued her still with the axe in his hand at a distance, deposed to by a bystander, one Griffin, as being about twenty yards but in my opinion much more closely. Bisoi went up about six steps leading to the neighbour’s house, opened the front door thereof and disappeared within. There was conflict between Griffin, who had come in his utility to pick up the accused and who was seated in it a few feet from the front door of the accused’s house, and the accused as to what happened at or about this time. But I am satisfied and find as a fact that when a few yards, I would think perhaps five, from the door of the neighbour’s house the accused hurled the axe after his retreating wife. I am not clear as to whether he at this stage was holding it by the wooden handle or by the steel head but I do not think this of any great significance. The accused himself when describing to Sub-Inspector Mulkern later that evening what he had done demonstrated a holding of the axe by the wooden handle very close to the steel head and a hurling from slightly above shoulder level in the manner of throwing a spear. His action is open to the conclusion that he intended to hit his wife with the axe but it is also open to the view that when he saw her disappearing into the house and was unable to chastise her in the manner in which he had already done he hurled the axe in temper in her general direction without any intention of hitting her. As I have said there was no history of violence; the accused is a man of good reputation and I would not be prepared to conclude that he intended to wound or maim or disable her. I incline to the view that his action was that of a man hurling an implement after his wife in sheer temper brought about or exacerbated by her evasion of him and I certainly could not be satisfied beyond reasonable doubt that this was not the case.

Unfortunately at the very moment whilst the axe was in the air and hurling in the direction of the open doorway the child Eva, for what reason I have no evidence but possibly out of curiosity, poked his head out of the open doorway and some portion of the axe, probably the back or blunt end of the steel head, struck him a glancing blow on the forehead. The blow caused a depressed comminuted fracture of the skull. Fortunately the child was able to be taken to the hospital at Port Moresby and receive early attention and most fortunately he has made what appears to be a complete recovery from an injury which in my opinion could well have been fatal. I should add that the axe was thrown at a fairly acute angle from the line of the front of the house into which the wife had gone and this fortifies my conclusion that the blow suffered by the child was a glancing one. The axe was subsequently picked up from the ground by Griffin and thrown under the house. Immediately after this incident Griffin took hold of the accused who thereafter was quiet and caused no further trouble.

Because I think it to be material I find also that Kailaki is a smallish village straddling the main Sogeri Road beyond Sogeri. There are between seventy and ninety children in the village and it is customary for drivers to slow down when passing through because of the likely presence of children in or about the roadway. At the relevant time it was drizzling and there is no evidence that any children were out of their houses. The owner of the house into which Bisoi disappeared had seven or eight children ranging in age from about two years upwards. Yofia was well aware of this. It is known that people of this area and indeed Papuans generally do not like wet weather and are accustomed to keep to their houses or dwellings when it is raining.

[His Honour then decided that the accused should not be convicted of the first and second charges because the requisite intents had not been proved beyond reasonable doubt. His Honour then continued:]

The third charge raises some difficulty. It is clear on his own admission that he assaulted his wife when he hit her with the axe handle at the woodheap and this of course is sufficient to convict him of the offence charged. It may be that he was also guilty of assault in his pursuit of her. Assault is defined by s. 245 of the Code, inter alia, in these terms:

“A person . . . who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault . . . .”

I do not feel able to be satisfied on the evidence that in his pursuit of Bisoi, Yofia either attempted or threatened to apply force in circumstances in which he had actually or apparently a present ability to effect his purpose. If anything Bisoi seems to have been lengthening the distance between them and there is no evidence that until the actual hurling of the axe Yofia held the axe in such a way as to enable him to strike Bisoi with it. She, so it was said, was looking over her shoulder as she was moving away from him and as she was not actually running it appears that she at least felt in no danger of immediate contact and from her actions it would appear that there was no present ability to effect any purpose of chastisement of the nature already inflicted. There is nothing in the evidence to show that the accused prior to actually throwing the axe was preparing to or appeared likely to do so. And so in my view the accused must be held Guilty on the third charge in that he assaulted his wife at the woodheap and in relation to no other act or acts on his part that afternoon.

I come now to consider the charges in respect of the child Eva. The first and more serious is that the accused unlawfully did grievous bodily harm to him. Mr. Broadley submitted that the hitting of Eva with the axe was not intended by the accused, that it was an event both unforeseen by him and unforeseeable by an ordinary villager in his position and so was an event which occurred by accident. Section 23 of the Code says that:

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for . . . an event which occurs by accident . . .”,

and he said the accused is entitled to the benefit of this exculpatory provision. Mr. Broadley relied strongly on R. v. Tralka[cccxli]³ which was an unanimous decision of the Court of Criminal Appeal of Queensland on facts not dissimilar to those in the instant case. Tralka in anger had thrown an axe intending to hit one John Facer, driver of a reversing and receding utility truck, but apparently partly because of the unexpected course of the truck he missed his aim and the axe went through the windscreen and hit Facer’s brother who was sitting beside him. On a charge of unlawful wounding under s. 323 of the Code the trial judge refused to allow the defence of accident under s. 23 to be put to the jury. The members of the Court founding on the reasoning of the majority of the High Court in Vallance v. The Queen[cccxlii]⁴ and of the members of the Court of Criminal Appeal of Queensland in R. v. Martyr[cccxliii]⁵, that an event occurred by accident if it was both unforeseen by the actor and unforseeable by the ordinary man were unanimously of opinion that the defence should have been left to the jury. I observe that R. v. Tralka[cccxliv]⁶ of course could not conclude this case because even if I were to hold it applicable I would still, as the judge of fact, have to decide both whether an injury to Eva was unforeseen by the accused (which I would have no hesitation in doing) and whether it was unforeseeable by the ordinary man (which might occasion me difficulty).

Mr. Gajewicz on the other hand submitted that the defence of accident was not open to the accused. The Crown based its case on his criminal negligence and in the light of the decisions of the High Court in Callaghan v. The Queen[cccxlv]⁷ and Evgeniou v. The Queen[cccxlvi]⁸, s. 23 has no relevance when criminal negligence is involved. It was the duty of the accused, he having in his control an inanimate thing of such a nature that in the absence of care or precaution in its use or management the life safety or health of another person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger. It was the breach of that duty which made the grievous bodily harm suffered by Eva unlawful and so made Yofia, the “doer” of that harm, guilty of a crime. In my view the problem raised by this conflict of approach calls for some examination of what is to be proved to support a charge under s. 320 of the Code (under which this charge is made). In such examination I derive considerable assistance from what was said by the judges of the Court of Criminal Appeal in Queensland in R. v. Knutsen[cccxlvii]⁹. Section 320 enacts: “Any person who unlawfully does grievous bodily harm to another is guilty of a crime.” With respect I adopt what was said by Stanley J.:

“The technical words ‘grievous bodily harm’ are defined in the Code (s. 1) viz.: ‘any bodily injury of such a nature as to endanger or to be likely to endanger life or to cause or be likely to cause permanent injury to health’. The section makes the transitive verb ‘does’ govern as object a statutory definition. The section must therefore be expanded to read—‘Any person who does to another an injury of such a nature as to endanger life . . .’. The section reads smoothly as enacted, but its meaning is disguised by the general nature of the incorporated definition. It is not customary to say that ‘A did a broken spine (or any other specific injury) to B’. One says ‘A did an act or made an omission that resulted in or caused the breaking of B’s spine’, as the case might be.

“This ordinary word ‘does’ is found in the context of the 1968 section linked with a ‘crime’. A crime is an indictable ‘offence’ (s. 3) for which the offender can be prosecuted only under the Code. By s. 2 an ‘offence’ is defined as ‘An act or omission which makes the person doing the act or making the omission liable to punishment’. When the offence is defined as in s. 320 by its result, and there is no other over-riding guide to its meaning, one is forced to the conclusion that the offender is the person who does an act or makes an omission that causes that result”[cccxlviii]¹⁰.

I would add to this analysis that the act or omission referred to by the learned judge must of course be done or made unlawfully. It is its unlawful character which makes the doer liable to punishment and as Philp J. said in the same case[cccxlix]¹¹ to prove that grievous bodily harm was done unlawfully all that the Crown has to prove is that the doing was contrary to law and not excused. In what way can it be said that the act or omission of the accused in this case was unlawful? As I see it there are two answers to this question. He could be in breach of the duty imposed on him by s. 289 and he could have committed the offence of assault which by s. 246 is made unlawful and an offence unless it is authorized or justified or excused by law. The offence alleged against him might be expanded to read “the said Yofia by reason of his failure to take reasonable care in the use or management of a dangerous thing under his control, to wit an axe, and/or by his unlawfully assaulting Eva did him an injury of such a nature as to endanger his life or as to be likely to endanger his life”. But this expanded charge in its turn would require consideration of the quality or degree of the breach of duty alleged, of the unlawfulness of the assault and possibly of the degree of foreseeability involved in estimating the likelihood of danger to life.

I will consider first the proposition urged on behalf of the Crown which was compendiously expressed by the submission that I must find the accused guilty of causing grievous bodily harm to Eva by criminal negligence. I should state here that I have no doubt that by the injury he suffered his life was in fact in danger. The expression “criminal negligence” does not appear in the Code and the gravamen of the Crown allegation was that the accused was in breach of the duty imposed upon him by s. 289. The nature of that duty is clear enough and in cases of death consequentially on such breach the High Court has decided that to attract liability under s. 291 of the Code proof is required of what amounts to criminal negligence at common law: Callaghan v. The Queen[cccl]¹² and Evgeniou v. The Queen[cccli]¹³. In the former case in the course of construing the Code and of arriving at this view the Court came to the conclusion also that s. 23 has no place in the consideration of the existence of criminal negligence. Their Honours said, speaking of the provisions of the Western Australian Criminal Code, s. 266, which is identical with s. 289 of the Queensland Code:

“It will be noticed that s. 266 is expressed in terms of duty, so to speak, in gross. It is not connected with criminal liability in itself. But, because s. 23 is qualified by being made subject to the provisions relating to negligent acts and omissions and s. 266 is such a provision, it must be taken that the fact that an event causing death occurs independently of the accused’s will or by accident can afford no excuse within s. 268 [our s. 291] if it falls within s. 266. For that reason, and because of the final part of s. 266 by which the person omitting to perform the duty is held to have caused any consequences which result to the life or health of another, breach of the duty of care imposed by the section becomes one of the constituents of the crime of manslaughter”[ccclii]¹⁴.

In Evgeniou v. The Queen[cccliii]¹⁵ an appeal from the Supreme Court of this Territory in which Callaghan v. The Queen[cccliv]¹⁶ was applied, McTiernan and Menzies JJ. said:

“The scheme of the Act [scil. The Criminal Code] is, however, that there being an express provision applicable if the appellant killed Justus Besiaro by an omission to take reasonable care or reasonable precautions to avoid danger to the deceased arising from the use of the motor car, that express provision (viz. s. 289) excluded the operation of s. 23”[ccclv]¹⁷, and: “in a case where what is alleged is death resulting from failure on the part of a person in charge of or in control of a thing that, carelessly used, may endanger life to use reasonable care or to take reasonable precautions as required by s. 289, we are satisfied that liability has to be determined by reference to ss. 289 and 291 without resort to s. 23”[ccclvi]¹⁸.

Taylor J. held an inquiry under s. 23 to be quite irrelevant in a case where the act resulted from a breach of the duty imposed by s. 289 and both Windeyer and Owen JJ. held that in such a case s. 23 had no application. Logically I cannot see any reason why the view of the High Court as to the exclusion of s. 23 should not be equally applicable if there is a breach of the duty imposed by s. 289 from which, whilst not resulting in death, consequences ensue to the life or health of a person which attract criminal liability under a provision or provisions of the Code. Although I cannot discover any reported case in Queensland where the point has been decided and Stanley J. in R. v. Knutsen[ccclvii]¹⁹ found it unnecessary to decide the question, Mack J. (as he then was) in that case said that throughout the years s. 320 has been interpreted to include grievous bodily harm arising through negligent acts or omissions. In R. v. Tralka[ccclviii]²⁰ breach of s. 289 does not seem to have found any argument for the unlawfulness of the wounding. As I see it breach of the duty there imposed makes both the wounding in Tralka’s case and the doing of grievous bodily harm in this case unlawful and so supplies the element of unlawfulness required by both ss. 323 and 320 (see R. v. Knutsen[ccclix]²¹).

And so I would hold that if the unlawfulness of the act of the accused is to be measured according to whether or not he is in breach of s. 289, s. 23 has no application. In considering such breach I am of opinion that any negligence of his must be proved to be of the gross or culpable character described in R. v. Bateman[ccclx]²²:

“the prosecution . . . must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

Had Eva died this would certainly be so. I cannot see that the fact of his not having died alters the position. The accused is charged with a serious crime committed by criminal negligence, and I do not think it to be the law that civil standards should be applied in such a case. In considering his guilt the test of negligence since Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound)[ccclxi]²³ may not be all that different from the test of foreseeability for the purposes of s. 23. I consider that I must ask was the conduct of Yofia in throwing the axe such that an ordinary person then and there at the time would have foreseen that injury was likely to be sustained in the manner in which it in fact was sustained by Eva; that is, not would he have foreseen the details or the degree of injury but would he have foressen the probability of some injury being received in the manner in which Eva’s injuries were in fact received. The question is not foreseeability of something remotely possible, fanciful or conjectural. And I must be satisfied beyond reasonable doubt that such a person would foresee that result before I can convict the accused of the charge under consideration.

If the unlawfulness of the doing of grievous bodily harm rests on the assault committed by the accused then in my view s. 23 must be taken into consideration for it is that section which may excuse the assault and so render it not unlawful, with the result that the accused is not criminally responsible and so not guilty of the crime constituted by s. 320. As Philp J. said in R. v. Knutsen[ccclxii]²⁴:

“s. 23 implies that a person is criminally responsible for his willed act and for the foreseeable consequences of that act- the non-accidental events of that act.”

The willed act here was the throwing of the axe in the direction of the house into which the accused’s wife had retreated. The event of that act was the wounding and consequent grievous bodily harm suffered by Eva. If such a result was foreseeable as a likely consequence it was not an event which occurred by accident and the act, i.e. the assault by the accused, was unlawful. Here in determining foreseeability it seems to me that I must also ask was the conduct of Yofia in throwing the axe such that an ordinary person then and there at the time would have foreseen that injury was likely to be sustained in the manner in which it in fact was sustained. So that by whatever route one approaches the problem there would be no difference in the ultimate result. To conclude otherwise would lead to absurdity. In R. v. Knutsen[ccclxiii]²⁵ Mack J., in considering the test to be applied under s. 320, cited a number of instances in the Code where criminal responsibility depends on whether something is likely to happen. And he went on to say:

“It follows from the sections to which I have referred that ‘does’ for the purpose of making a person a principal offender at least in some cases includes as an element a result that was likely to happen from the prisoner’s (scil. unlawful) act or conduct and this, I think, is the test to be applied under s. 320. The test is objective and is to be based on what the ordinary reasonable man thinks was likely to result and which did result.”

So that in his view in considering the accused’s guilt under this section one looks first to the provisions of the Code or other statute law to decide upon the unlawfulness of the act or conduct and then to the likelihood of the result happening from that act or conduct.

In the light of all the circumstances as I understand them from the evidence I cannot be satisfied that the grievous bodily harm suffered by Eva was foreseeable or likely. True it is that there were children in the house but it was drizzling and the chances of anybody emerging were minimal. Apart from Griffin, who was well behind the line of aim, there was no evidence that there was any other person abroad at the time nor was there any evidence that the axe was thrown at or hit the house itself, nor was it thrown so as to fly through the open doorway. ne emergence of the child seems to me the sheerest mischance and whilst in a civil case with its lower standard of proof it might not be too difficult to hold the accused negligent I am not satisfied that the criminal onus has been discharged. I cannot feel that a reasonable even-tempered villager could in the circumstances existing on that afternoon be expected to anticipate the emergence of the child. Accordingly I find the accused not guilty on this charge.

There remains only for consideration the charge that he unlawfully assaulted Eva. That there was an assault within the meaning of s. 245 is clear. It is equally clear that on this charge I must consider whether the accused can be exculpated under s. 23. I am satisfied that the accused did not foresee the results of his action and the only question is was the event, i.e. the blow suffered by the child, reasonably to be expected by any ordinary person or was it in the words of Kitto J. in Vallance’s case[ccclxiv]²⁶ “in itself a surprising thing”. In my opinion for the reasons I have already endeavoured to express it was not reasonably to be expected, or to put it more accurately, I cannot be satisfied beyond reasonable doubt that it was. And so I must acquit the accused on this charge also.

Verdict: Guilty on third count, Not Guilty on other counts.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.