New South Wales Court of Criminal Appeal CITATION: R v KAUFUSI [2005] NSWCCA 434 HEARING DATE(S): 26 September 2005 JUDGMENT DATE: 14 December 2005 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Rothman J at 3 DECISION: (a) Leave to appeal against sentence be refused;; (b) Appeal be dismissed. CATCHWORDS: Criminal Law - appeal against conviction - maliciously inflicting grievous bodily harm - requirement to direct jury on self defence - no reasonable hypothesis for self-defence - Rule 4 of Criminal Appeal Rules - whether verdict unreasonable and unsupported by evidence Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Rules Criminal Appeal Act 1912 Pemble v The Queen (1971) 124 CLR 107 Mansini v DPP [1942] A C 1 Kwaku Mensah v The King [1946] AC 83 Barca v The Queen (1975) 133 CLR 82 CASES CITED: R v Clarke (1995) 78 A Crim R 226 R v Abusafiah (1991) 24 NSWLR 531 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Moli KAUFUSI PARTIES: The Queen FILE NUMBER(S): CCA 2005/1207 Mr J Bennett SC COUNSEL: Mr G Nicholson QC A - Mr William Whitby SOLICITORS: C - S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0533 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1207 McCLELLAN CJ at CL HISLOP J ROTHMAN J 14 December 2005 Moli KAUFUSI v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 HISLOP J: I agree with Rothman J. 3 ROTHMAN J: Moli Kaufusi was convicted of maliciously inflicting grievous bodily harm and was sentenced to imprisonment for three years with a non-parole period of 15 months. Mr Kaufusi appealed both the conviction and the sentence, but on hearing, has not sought to agitate leave to appeal against sentence. Facts 4 On 2 November 2002 the appellant, Mr Kaufusi, was dining with his girlfriend at a restaurant in Sydney. They started to argue. Mr Kaufusi had suggested that the couple separate and a heated argument ensued. The girlfriend, Ms Noble, threw a glass of wine at Mr Kaufusi and they left the restaurant and moved into the car park. In the car park Ms Noble attacked, both physically and verbally, Mr Kaufusi who retaliated. The physical altercation which ensued included Mr Kaufusi chasing Ms Noble, sitting on top of her and acting aggressively. He either banged her head against the concrete floor or hit her extremely hard in the head or both. It attracted the attention of people in neighbouring buildings and the incident was reported to the police. Mr Kaufusi and Ms Noble got into the car and drove towards Norton Street. After a short distance, Mr Kaufusi got out of the car and started walking away. 5 Ms Noble also got out of the car and attempted to seek assistance from passers by and was, ultimately, admitted to the backseat of a passing vehicle. One of the passengers in that vehicle spoke with her and observed blood on her clothing and head and, on inspection, the passenger and Ms Noble noticed that part of her ear was missing. It is recorded that Ms Noble told this person and, on the records, at a later time told a number of other people including an ambulance officer, a nurse, police officers and doctors, that Mr Kaufusi had bitten off part of her ear. 6 Mr Kaufusi was arrested nearby. At the time of his arrest he had blood on his clothing and the car, which had been abandoned, was seized by the police for examination. The police conducted searches for the severed portion of Ms Noble's ear but it could not be found. Blood was found in the rear of the vehicle and in the car park area. 7 Independent witnesses testified to some, but not all of the above, including the aggressive manner of Mr Kaufusi, his banging of Ms Noble's head against the concrete in the car park and the general mêlée. Some of the independent witnesses also testified that Ms Noble told them, at the time, that Mr Kaufusi had bitten off her ear. 8 The independent witnesses included the treating physician, the passenger in the car into which Ms Noble was taken and delivered to the hospital and two young women who were in the vicinity of the car park. (It is not here suggested that the two young women testified about the ear or any statement relating to it.) 9 At the hearing Ms Noble gave evidence on subpoena. She had previously refused to give a statement to the police in relation to the matter and resisted police attempts to serve her. 10 The issue of fact upon which the case turned was whether Mr Kaufusi had severed Ms Noble's ear (or a portion of it) by biting it or whether, in accordance with the testimony by Ms Noble given for the first time at the hearing, that Ms Noble fell in the car park and the right side of her body hit the car window causing it to smash. It was, she said, at that time that she felt a sharp pain in the right side of her head but did not know exactly from where the pain was coming. It was Ms Noble's evidence that the ear was severed by the glass of the window when it smashed. The smashing of the window was independently confirmed as occurring at that time but the wound, when treated, had no glass in it and, according to physicians, the wound was consistent with the ear having been bitten. It should be pointed out that there was no evidence to suggest that the wound was inconsistent with having been severed by glass, save for the absence of glass fragments in the wound or around the wound and, possibly, the level of force that would be required to cause the injury. 11 The question of fact as to whether the ear had been severed by Mr Kaufusi was an issue that was put to the jury and on which the jury came to a conclusion. 12 The trial judge, in his summation to the jury made the following comments in relation to these issues: "The assault must be intentional, that is, it is not sufficient if it was simply an unintentional application of force. For example, some sort of accidental application of force or in circumstances, as I think Sherie Noble was intimating here, that she lost her balance and in that process she became injured. The application of force must be without the consent of the person to whom the application of force is applied. In this case, that was Sherie Noble. … … Might I suggest something to you that I hope will assist you in reaching your decision. The case can perhaps factually be analysed in this way. You can ask yourselves this question, 'Did the accused bite a portion of, the woman, Sherie Noble's ear off during an altercation in the car park in Leichhardt?' If you accept beyond reasonable doubt that he did, then that finding by you will assist you in finding the elements of the charge as I have indicated them for you. You still need to look at those elements and you still need to be satisfied about those elements beyond reasonable doubt. If, on the other hand, you are not satisfied beyond reasonable doubt that the accused had bitten off that portion of Ms Noble's ear, then you could not be satisfied of the elements of the offence and you would therefore acquit the accused. … … What she was saying in her evidence was that if she was injured, it was not as a result of any act or intentional act on behalf of the accused, it was in effect because she initiated a fight with him and during the course of that fight she lost balance and hit her head against the car. … … It was submitted to you that it is highly improbable that the ear, cut in the manner in which it was ultimately cut, was cut by the window in that car. There was no glass noted at the hospital in her ear or on her skin, it was physically unlikely that the only injury that would have occurred to her was the type of injury that did occur to her ear if that was what had caused her injury. … … [Counsel for the accused submitted that] … you will have a reasonable doubt because Ms Noble came here and gave evidence, that she gave evidence in a way which it was submitted to you was impressive, she did not shy away from any of the questions asked in cross-examination and that, as a result of that, at the very least, you must have a doubt about which version is true. If you have a doubt, then you must give that doubt to the accused and it was submitted to you by [Counsel] that you will give that doubt to the accused and consequently find him not guilty of having committed any assault on the victim, Ms Noble, on this evening. …" 13 At the conclusion of the direction, the trial judge asked both the Crown and the counsel for the accused whether there were any matters on which either wanted the Court to address the jury. Each of them answered in the negative. It should be pointed out, further, that counsel for the accused had indicated prior to the summation, that the accused did not rely upon self-defence and counsel did not seek to address, or have the Court address, that issue. 14 The appellant raises two grounds on appeal: firstly, that there was a failure to direct the jury on self-defence; and, secondly, that the verdict is unreasonable and cannot be supported by the evidence. Ground One: Self-defence 15 As already stated, counsel for the appellant, after listening to the summation by the trial judge, sought to have no additional remarks made by the judge and, in particular, did not seek to have the issue of self-defence put to the jury by his Honour. Further, again as already stated, his Honour had enquired of defence counsel on the issue of self-defence. At transcript page 87 of 18 August 2004, immediately after the close of the evidence in the proceedings, the Crown Prosecutor sought and was granted a short adjournment before addressing and, prior to the adjournment and in the absence of the jury, his Honour asked the following question of counsel for the accused: "HIS HONOUR: There was one matter I wanted to think about and that was how am I to put the accused's defence here, is it that it never happened, or is it that it happened in the way in which she said it. [Counsel for accused]: That's what we are relying on, Your Honour, and I will be saying that in my address. HIS HONOUR: We just … be satisfied beyond reasonable doubt then you might accept Sherrie's evidence and if you do then you have a reasonable doubt. The only reason I raise this is because I was wondering whether or not you were relying on self-defence at all? [Counsel for the accused]: No, not at all Your Honour, simply rely on her evidence that it didn't happen and we argue that there is a reasonable doubt." (emphasis is mine) 16 The mere fact that for tactical reasons defence counsel does not raise an issue at trial does not, in all cases, mean that the court does not have an independent duty to direct the jury in relation to matters. The overriding concern must be to ensure that the accused receives a fair trial. There are, in this case, obvious reasons why the defence counsel would not, himself, raise the issue of self-defence, given that the theory pressed on the jury by defence counsel was that the injury in question was not caused, at all, by the accused. In Pemble v The Queen (1971) 124 CLR 107, Barwick CJ (at 117-118) said: "Whatever course counsel may see fit to take, no doubt bona fide for tactical reasons in what he considers the best interests of the client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and to the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. … Counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused." 17 A trial judge is obliged to deal with self-defence in his directions to the jury only if there is evidence from which such a defence reasonably arises. (See also Mansini v DPP [1942] A.C.1 and Kwaku Mensah v The King [1946] A.C.83) 18 Self-defence is available if, and only if, the alleged offender believes the conduct is necessary, relevantly, to defend himself, and the conduct is a reasonable response in the circumstances as he perceives them (see s.418 Crimes Act 1900). The onus of proof is on the Crown and it is required to prove, beyond reasonable doubt, that the accused did not carry out the conduct in self-defence. 19 There is no evidence, in this case, which would even raise the reasonable possibility that the accused believed the biting of the ear was necessary to defend himself or that it was a reasonable response to any attack on him. Although some evidence, which was not accepted, was adduced to seek to prove that the ear was not bitten, no evidence was adduced in the proceedings, directly or through the cross-examination of witnesses, to the effect that the biting of the ear was necessary in self-defence. In order for the question of self-defence to have been put to the jury by the trial judge, self-defence must have been a hypothesis which had a rational basis on the material that was adduced in evidence. There is no requirement on a trial judge to put a hypothesis in summing up which is either fanciful or unrealistic (see Barca v The Queen (1975) 133 CLR 82 at 104 and R v Clarke (1995) 78 A Crim R 226 at 230-231). 20 During the course of the appeal hearing, Senior Counsel for Mr Kaufusi, in answer to a question as to the material relied upon to raise the possibility of this defence, made reference to evidence on the voir dire in which Ms Noble gave evidence on questioning by the Crown Prosecutor in the following terms: "Q: How close did you get to him at the closest point during this fight? A: As close as you can hit someone and I grabbed his testicles, I tried anything to – I was so angry, I was angry. I just couldn't stop constantly just punching at him, anything I could do, kicking him." 21 This evidence was never adduced in the trial and was not material before the jury on which they could deliberate. It has not been suggested, in any evidence, whether before the jury or on the voir dire, that the biting incident occurred as a result of Ms Noble grabbing Mr Kaufusi's testicles. Indeed, Ms Noble continued to suggest that Mr Kaufusi did not bite her ear. 22 Evidence was adduced, without objection, that Ms Noble had said, contemporaneously, that the defendant had bitten off her ear and, ultimately, the jury was faced with two quite stark alternatives. The jury chose to believe the independent witnesses and the contemporaneous statements by Ms Noble and not believe Ms Noble in her version of events as given in court. 23 In the circumstances, there was no reasonable hypothesis, on the evidence, consistent with self-defence. It was not necessary for the judge to put self-defence to the jury and no miscarriage of justice has occurred in relation to that matter. The trial was, in the relevant legal sense, a fair trial and this ground fails. Rule 4: Criminal Appeal Rules 24 I have reached the above conclusion without any reference to Rule 4 of the Criminal Appeal Rules. 25 Where the facts before the jury and the principles in Pemble together require the trial judge to direct the jury on self-defence, the operation of Rule 4 becomes significant. The procedure is not a mere technicality to be ignored when it suits. (R v Abusafiah (1991) 24 NSWLR 531 at 536 D-F) One of its purposes is to ensure that the trial judge gains the assistance of counsel in the directions to jury. The right to a fair trial does not include the right to a new trial because a party does not take full advantage of opportunities that were available. In this case counsel did not raise objection to any part of the direction or seek to have self-defence raised. More significantly counsel deliberately eschewed any reliance on self-defence and any requirement for the trial judge to sum up on the basis that it formed any part of the defence of the accused below. (See [15] infra) 26 In those circumstances there is no miscarriage of justice associated with the lack of the direction; there is no arguable case; and there has not been shown to be an error of law. Given the earlier determination as to the merit of the ground sought to be raised, it is unnecessary for the disposition of the appeal to deal with leave sought under Rule 4. However, I would, in the current circumstances, have denied such leave. Ground Two: The Verdict is unreasonable and unsupported by the evidence 27 On appeal it is submitted that the verdict is unreasonable and unsupported by the evidence. This ground depends, in part, upon evidence given by Ms Noble about the time delay in the realisation of the injury to her ear. The evidence is best summarised in the following passage of transcript: "Q: And do you see that the entry starts off '21 year old female' … and then it says 'right ear helix and scapha bitten off by boyfriend'? A: Yeah, I see that written. Q: And then it says 'Patient didn't realise for 30 minutes until told'? A: Yep." (transcript 17.08.04 page 22-23) "Q: The next note is 'patient didn't realise for 30 minutes until told'? A: That is correct. Q: Do you recall that? A: Yes Q: Did you tell the doctor that? A: I may have. Q: At what point in time did you know that your ear had been severed? A: When they told me in the car, when I was in the car with all the people. Q: The people in the car told you? A: Yeah because there was blood there and I was just so wound up and angry at the time I didn't, I didn't know what was wrong, I knew there was a pain there but I didn't know exactly where it was coming from." (Transcript 17.08.05 pp 36-37) 28 The above evidence was consistent with the evidence given by the independent witness in the car who, in effect, testified that he noticed blood, enquired of Ms Noble and the severing of her ear was discovered. However, with due respect to the argument put, the evidence nowhere suggests that the witness was, in making that statement, unaware that her ear had been bitten. The state of knowledge to which that evidence goes was the damage that had been done by the biting incident as described contemporaneously by Ms Noble. Counsel for the appellant suggests that the jury ought to have expressed a reasonable doubt and acquitted the appellant and cites M v The Queen (1994) 181 CLR 487 in support. The issue is one which depends upon the proper application of s.6(1) of the Criminal Appeal Act 1912 which was considered by the High Court in MFA v The Queen (2002) 213 CLR 606. The joint judgment of Gleeson CJ, Hayne and Callinan JJ states that when the issue is whether the verdict of a jury is unreasonable or cannot be supported, the test to be applied is that stated by the majority (Mason CJ, Deane, Dawson and Toohey JJ) in M in the following terms: "Where, notwithstanding that as a matter of law, there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." ( M v The Queen at 493 cited with approval in MFA at 615) 29 The other joint judgment in MFA (McHugh, Gummow and Kirby JJ) also adopted the test in M describing it in the following terms: "[55] Nevertheless, in M , the majority of this Court favoured what might be termed a 'broader' test for unreasonableness or un-supportability of a verdict. Instead of asking whether a jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt applying the criminal standard of proof beyond reasonable doubt acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence'." 30 Section 6(1) of the Criminal Appeal Act qualifies the symbolic acceptance of the verdict of a jury as the final determination of guilt or innocence (MFA at 621 [48]). This is so because, in the context of a criminal trial, the requirement for finality of factual assessment by a jury must be qualified by the importance of the liberty of the individual and the fundamental requirement of the criminal justice system to prove guilt beyond a reasonable doubt. It is these two issues, finality of the verdict of a jury on the one hand and, on the other hand, the importance of the liberty of the individual that are reconciled by the provisions of s.6(1); which issues are the subject of the discussion in both M and MFA. The functions exercised by the Court of Criminal Appeal under s.6(1) of the Criminal Appeal Act are 'designed to afford a mechanism against a prospect that our community and its courts continue to regard as intolerable, namely that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice. The interpretation and application of the sub-section must always keep that purpose in mind. But it involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.' (MFA at 624 [59]) 31 The jury had before them inconsistent statements by Ms Noble. They must have chosen not to believe the later statements. The jury was entitled so to do and accept the evidence given by the independent witnesses. No basis for the intervention of this Court has been demonstrated. 32 For these reasons the appeal fails. I propose: a Leave to appeal against sentence be refused; b Appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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