Regina v Ismail [2000] NSWCCA 217

New South Wales Court of Criminal Appeal

CITATION : Regina v Ismail [2000] NSWCCA 217 FILE NUMBER(S) : CCA 60211/99 HEARING DATE(S) : Thursday 8 June 2000 JUDGMENT DATE : 8 June 2000

PARTIES : Regina v Khodr Ismail JUDGMENT OF : Giles JA at 1; Grove J at 2; Greg James J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0362 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : M.C. Marien (Crown) I. H. McClintock (Applicant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Legal Aid Commission) CATCHWORDS : Criminal Law and Procedure - Malicious Wounding With Intent to do Grievous Bodily Harm - Express Pleading of Alternative of Malicious Wounding - Sufficiency of Charge to Jury - Comment by Judge Concerning Issue Actually Being Contested - Severity of Sentence - Deliberate Wounding of Police Officer by Running Down With Motor Vehicle LEGISLATION CITED : Evidence Act 1995 CASES CITED: R v Asquith 72 A Crim R 251 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60211/99

GILES JA GROVE J GREG JAMES J

Thursday 8 June 2000

REGINA v KHODR ISMAIL

JUDGMENT

1 GILES JA: The Court is in a position to give judgment and I will ask Grove J to give the first judgment. 2 GROVE J : This is an appeal against conviction of the appellant on a count of malicious wounding with intent to cause grievous bodily harm following a trial before Latham DCJ and a jury in the Sydney District Court. 3 The indictment presented against the appellant included two counts pleaded in the alternative to that upon which he was convicted. As the jury found a verdict of guilty upon the principal count, verdicts were not taken on these alternatives which charged, in the second count using an offensive weapon with intent to hinder a member of the police force from investigating an act which reasonably called for investigation, and the third count, malicious wounding. All counts related to the same incident and were directed against the same victim. The third count, which I have mentioned simply charged malicious wounding, was in any event an available verdict to the jury in respect of the first count if they were not satisfied of the specific intent requisite to sustain that count but the Crown was entitled, if it chose, explicitly to plead the count as an alternative. 4 The appeal against conviction is focussed upon two grounds which assert that the trial judge misdirected the jury in relation to the third count and erred in not distinguishing between the first and third counts. The grounds are obviously related and it will be convenient to deal with them together. It will not be necessary to make further reference to the second count. 5 On 14 October 1997 the victim, a female sergeant of police, was driving her private vehicle after completing her shift at the Newtown Police Station. She was not carrying her appointments and was not in uniform in the sense that she was wearing a civilian windcheater style jacket on the upper part of her body. She saw a vehicle perform a manoeuvre upon a public street in Ultimo and that vehicle, which contained a group of young men, then stopped beside her vehicle in traffic. The appellant was seated in the front passenger's seat. The police sergeant made a reproving gesture, her intention being to refer to the driving manoeuvre which she had witnessed. The appellant spat on the bonnet of the vehicle which she was driving. That he did so was the subject of an express admission at trial made pursuant to s184 of the Evidence Act. 6 Thereafter the vehicle in which the appellant was riding as a passenger stopped and the sergeant pulled up her vehicle behind it. She alighted, approached the driver and showed her police identification. She said to the driver that he should stay where he was as she wished to speak to the passenger and that he should not move the vehicle. She walked to the front passenger window and as she approached it, the window which was open, was closed. A similar event occurred as she took a short step to the rear passenger's window but while it was open she said again to the driver that he should not move his vehicle and she emphasized this by saying it was a direction and she wanted to speak to him. 7 The sergeant walked to the front of the vehicle by which time all car windows had been wound up. She was standing in the front of the vehicle and had a clear view through the front windscreen and she observed what appeared to be a heated discussion between the driver and the appellant who was still in the front passenger seat. She then saw the driver get into the back seat by passing between the two front bucket seats and she saw the appellant get into the driver's seat. At all times the vehicle's engine was running. 8 The appellant was then in the driver's seat and therefore in control of the motion of the vehicle. It lurched forward about twelve inches and stopped at the sergeant's knees. She placed her hands on the bonnet and stepped back about twelve inches and the vehicle suddenly accelerated towards her again. She was struck as a result of which she came to be lying across the bonnet. The vehicle continued in motion as a result of which she fell from her position on the bonnet and her leg went underneath the vehicle and the rear wheel ran over it. She had fallen hard to the bitumen surface. 9 There was a second formal admission at trial that the victim suffered wounding and actual bodily harm in the form of lacerations and contusions. The issue fought at trial was proof by the Crown that the appellant was the driver of the vehicle when the victim was wounded. He denied that he was the driver and gave and called evidence in his case to that effect. Manifestly, the jury were satisfied of the evidence of the victim's observations which I have above recounted. The learned trial judge emphasized to the jury on several occasions during her charge to them that they would need to be satisfied of the truth of her evidence beyond reasonable doubt before they could convict. 10 The submissions on behalf of the appellant assert that her Honour failed to clearly distinguish the nature of the first and the third counts. It should be observed that from the very commencement of the trial each juror had been supplied with a copy of the indictment. It would scarcely need instruction from the trial judge to anticipate that jurors would observe that the only difference in the formulation of the first and third counts was that the first count added the words "with intent to cause grievous bodily harm to her". 11 Although that contrast or comparison could easily be made it remained incumbent upon the judge to explain to the jury the ingredients of the charges which were requisite to be proved by the Crown beyond reasonable doubt. She did so. No complaint is made of her explanation of the meaning of the word maliciously in the context of the charges nor, of what constitutes wounding in law although, as I have observed, there was an admission in respect of this. Nor was there any complaint about the content of her explanation to the jury of what was required to be proved to demonstrate that the assailant had acted with intent to do grievous bodily harm. 12 Although all of the ingredients in the third count were duplicated in the first count, the distinction being the additional matter to be proved in order to sustain the first count, the learned trial judge nevertheless separately reminded the jury of the ingredients of that count and repeated her adjuration that the outcome would hinge entirely upon whether or not they accepted that it was the appellant who was driving the car at the relevant time. 13 The principal complaint urged on behalf of the appellant was that after dealing with the ingredients of the three counts her Honour added the following: "I say without wishing to pre-empt what your finding will be of course, but there has been no real dispute in this trial about the fact that whoever did drive this vehicle at Sergeant Bellemore intended to get her out of the way and in the process, because of the way in which they drove the vehicle at her, intended to cause her serious injury. There has been no real dispute about that. The issue really is about whether or not it was the accused who drove the vehicle. Nonetheless, you have to be satisfied beyond reasonable doubt of the ingredients of those charges." 14 The thrust of complaint is directed towards her Honour's remark that there had been no real dispute about the intention to cause serious injury. It is argued that the jury may have formed the view that there was an attempt to frighten or intimidate without a specific intent to do really serious bodily injury. Whether there was such an intent was of course a matter for the jury but it was open to her Honour to make such comment as she thought appropriate in the context of the trial as it was conducted. She had given the jury the conventional caution about the separate roles of the judge and the jury as to fact finding. Her remark about the absence of contest was explicitly qualified by her opening remark that she did not wish to pre-empt the finding by the jury. There was no protest by counsel conducting the trial about her Honour's remark and there is no reason why this Court should conclude that what was said did other than represent the real issues between the parties. The remarks of Hunt CJ at CL in R v Asquith 72 A Crim R @ 253 are apt. 15 One can understand the tactical and practical inhibition upon the appellant, who gave evidence before the jury, asserting that he was not the driver and proposing an alternative that, if he was, he did not have the specific intention pleaded against him in the first count. The issue is however whether her Honour gave sufficient and properly comprehensive directions to the jury. She did so. And whether by her remark above quoted, the jury might have been led into error and the appellant deprived of a real chance of acquittal. That was not the case. 16 The appeal against conviction should be dismissed. 17 Application is made for leave to appeal against sentence. The appellant was sentenced to penal servitude for a total of seven years constituted by minimum and additional terms of four years and three years respectively. Her Honour explicitly took into account one month of pre-sentence custody. She noted the prescribed maximum penalty for such offence of twenty five years penal servitude. Her Honour found as aggravating facts that the appellant knew that the victim was a police officer at the time he persuaded the driver of the vehicle to give up his place in his favour and that the course of conduct was pre- meditated in the sense that he had persuaded the previous driver to exchange his position. She expressed herself as unconvinced that the appellant's prospects of rehabilitation were "all that great" at this stage. Those findings and that conclusion are not shown to be wrong. 18 Latham DCJ recounted the appellant's criminal history which led her to find as a matter of aggravation that he had a tendency to repeat patterns of (mis)behaviour and had manifested an intransigence towards members of the police force with particular regard to the commission of traffic offences. Her Honour's recounting of the appellant's history was accurate and the findings that she made were open to her. She found the most significant factor in the appellant's favour was his comparative youth, being twenty three years at the time he appeared for sentence. She found that as a contributor towards a finding of special circumstances extending the additional term component of sentence during which the appellant might be at liberty on parole but under supervision. 19 The sentence imposed might be viewed as severe but in all the circumstances it was warranted. I perceive no error in finding or assessment by the sentencing judge and I consider that the imposition was within the range of the sound exercise of discretion. 20 I propose the appeal against conviction be dismissed; leave to appeal against sentence be granted but that appeal also dismissed. 21 GILES JA: I agree. 22 GREG JAMES J: As do I also agree. 23 GILES JA: The orders of the Court are as proposed by Grove J. *********