Further to my earlier posting the appellant raised liability defences on appeal that were not considered by the trial judge. In particular the appellant argued that sub-section 6(2) of the Criminal Code Act 1899 and/or section 45 of the Civil Liability Act 2003 provided a statutory defence.
Their Honours Holmes JA and Chesterman JA concurred with Applegarth J in dismissing the appeal. His Honour discussed at length the meaning and application of section 45 of the Civil Liability Act 2003 at paragraphs 18-25. Ultimately, his Honour was of the view new matters could not be raised for the first time on appeal, and it was not a “breach of duty” claim. Further it was not an indictable offence (if any), but a summary offence, having noted the trial judge found the offence in question had ceased before the glass was thrown.
 The principle that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below upholds the important policy of ensuring the finality of litigation. It is based, in part, on the elementary proposition that a party is bound by the conduct of its case. In University of Wollongong v Metwally (No 2) it was stated:
“Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
 The appellant conducted his case on the basis that he did not throw any object at the respondent, and therefore did not cause his injury. For reasons that are not explained, the appellant’s trial counsel and his solicitors did not seek to rely upon the statutory defences that have been raised on appeal. The pleading and proof of the statutory defences as alternatives to the appellant’s defence that he did not throw any object may have complicated, and possibly undermined, the simple defence that he raised. The appellant having failed in the defence that he chose to adopt at trial, it would be unfair and contrary to the interests of justice to permit him to raise new grounds of defence on appeal.
 The findings of fact made by the primary judge do not establish each of the elements of the statutory defences because the issues at trial and the primary judge’s findings were not directed towards them.
 The evidence that might support such a defence is deficient in certain respects. For example, the offence to which the respondent pleaded guilty has not been shown to have been an indictable offence, rather than a regulatory offence. In any event, s 659 of the Criminal Code operates to deem any indictable offence for which the respondent was summarily convicted on his plea of guilty to be a simple offence only, and not an indictable offence, for the purpose of a provision such as s 6 of the Criminal Code Act.
 The evidence does not establish each of the elements that would need to be proved to create a defence under s 6 of the Criminal Code Act or s 45 of the Civil Liability Act. This includes evidence in relation to the passage of time between the commission of the offence committed by the respondent and the act of the appellant that caused injury to his eye. The appellant’s reason or reasons for throwing the object may have been further explored if additional defences had been raised at trial, and it is possible that further evidence about these issues and the precise sequence of events would have defeated any alternative defences.
 The appellant did not raise at trial as an alternative and possibly inconsistent ground of defence that he was provoked into throwing the object as a result of the respondent breaking the glass window. The judge found it unnecessary to make findings about the lapse of time between the breaking of the window and the throwing of the object. In the absence of findings in relation to these and other matters, the Court would be required to make findings of fact in order to determine the statutory defences in favour of the appellant. The evidence does not permit the Court to reach conclusions in the appellant’s favour concerning factual matters that were not in issue such as the connection, if any, between the breaking of the glass in the window and the throwing of the object. It would be unfair to the respondent to do so on the basis of evidence that was called without regard to statutory defences that are raised for the first time on appeal.
 The evidence to which the appellant points concerning the nature of the offence committed by the respondent and the connection between that offence and the injury that the respondent sustained does not establish either statutory defence. It is sufficient, however, to conclude that if the statutory defences had been raised before the trial court, it is possible that the respondent could have met them by calling additional evidence. For this reason the appellant should not be permitted to raise these defences for the first time upon appeal.
Brisbane Barrister – David Cormack