Michael James Irwin v The Queen [2018] HCA 8 - Would or Could Have Foreseen?

In Michael James Irwin v The Queen [2018] HCA 8 (14 March 2018) the High Court has unanimously dismissed an appeal from a decision of the Queensland Court of Appeal that the jury's verdict that the appellant was guilty of one count of unlawfully doing grievous bodily harm was not unreasonable or unsupported by the evidence (see R v Irwin [2017] QCA 2 (3 February 2017)).

Background Facts

The appellant was convicted as a result of a confrontation between the appellant and the complainant which resulted in the complainant's left hip being broken in three places.  In the appellant's account of the confrontation, he said that he had pushed the complainant in the chest, causing the complainant to stumble back three or four metres and fall "reasonably hard" onto the ground.

The appellant’s account was consistent with the medical evidence that the complainant's hip injury was a high energy fracture.  The fracture required a high degree of force and was consistent with the complainant being pushed and then falling directly onto his left side on a hard surface with some speed. 

The complainant’s account of the confrontation was different. Parts of the complainant's account were inconsistent with the medical evidence and the evidence of an independent witness, and that account was very likely to have been rejected

The Criminal Code of Queensland at section 23(1) provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence, and that an ordinary person would not reasonably foresee as a possible consequence.  Section 23(1) dealing with intention – motive, is as follows:

The appellant accepted that the trial judge had correctly directed the jury as to the effect of s 23(1). 

Appeal to the Queensland Court of Appeal

The appellant appealed his conviction to the Queensland Court of Appeal (see [2017] QCA 2). The appellant argued that the jury could not rationally have excluded the possibility that an ordinary person in the appellant's position would not reasonably have foreseen the possibility of an injury of the kind sustained by the complainant as a possible consequence of pushing the complainant in the manner described by the appellant. 

The appeal was dismissed by the Queensland Court of Appeal which took the view that an ordinary person in the appellant's position "could have foreseen" that the complainant might suffer a serious injury such as a fractured hip from a push that involved "a considerable degree of force".

Appeal to the High Court

By grant of special leave on 18 August 2017, the appellant appealed to the High Court of Australia. The key grounds for the appeal were that the Queensland Court of Appeal had erred by applying the test of whether an ordinary person could, rather than would, have foreseen the possibility of the kind of injury suffered by the complainant. 

The High Court’s Decision

In its decision the High Court found that there is a difference between what an ordinary person would and could reasonably foresee - the former involves a degree of probability whereas the latter is a matter more akin to mere possibility. The High Court found that the Queensland Court of Appeal should not have expressed the test in the terms it did. 

However, the High Court held that there was no reason to doubt that the jury had adhered to the trial judge's proper directions as to the effect of the Criminal Code of Queensland section 23(1), and no cause to doubt the reasonableness of the verdict.  The High Court further held that the Court of Appeal had not erred by stating that the appellant had pushed the complainant with "a considerable degree of force", or by its observation that there were "equally open" interpretations of the evidence before the jury. 

On this basis the High Court  of Australia dismissed the appeal.

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Michael James Irwin v The Queen [2018] HCA 8 (14 March 2018) and judgment summary

R v Irwin [2017] QCA 2 (3 February 2017)