New South Wales Court of Criminal Appeal CITATION: Pengilley v R [2006] NSWCCA 163 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 April 2006 JUDGMENT DATE: 24 May 2006 JUDGMENT OF: McColl JA at 1; Adams J at 51; Latham J at 52 DECISION: 1. Appeal allowed. 2. Quash the conviction of the appellant for malicious wounding and the sentence imposed upon him following that conviction. 3. Order a new trial. CATCHWORDS: CRIMINAL LAW - Conviction appeal - charge of malicious wounding contrary to s 35(1)(a) Crimes Act 1900 - trial judge failed to explain concept of recklessness - whether jury properly directed as to meaning of maliciously. Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Appeal Rules 1952 R v Cato [1976] 1 All ER 260 R v Chai [2002] HCA 12; (2002) 76 ALJR 628 R v Coleman (1990) 19 NSWLR 467 R v Cunningham [1957] 2 QB 396 R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 CASES CITED: R v Micalizzi [2004] NSWCCA 406 R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304 R v Safwan (1986) 8 NSWLR 97 R v Stokes and Difford (1990) 51 A Crim R 25 R v Whittaker (1993) 68 A Crim R 476 R v Williams (1990) 50 A Crim R 213 Saffron (No 1) v R (1988) 17 NSWLR 395 PARTIES: Regina, Conrad Eugene Pengilley FILE NUMBER(S): CCA 2006/544 COUNSEL: C Smith - Appellant P Miller - Crown SOLICITORS: S Kavanagh, Crown Solicitors S O'Connor - Legal Aid Commission LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/41/0195 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 13 September 2005 IN THE COURT OF CRIMINAL APPEAL CCA 2006/544 McCOLL JA ADAMS J LATHAM J Wednesday 24 May 2006 CONRAD PENGILLEY v R Judgment 1 McCOLL JA: The appellant Conrad Eugene Pengilley was convicted by a jury in the District Court of New South Wales of maliciously wounding Adrian Pira contrary to s 35(1)(a) of the Crimes Act 1900. 2 He seeks to challenge his conviction on the basis that the trial judge erred in his directions to the jury as to the meaning of "maliciously" by failing to explain the concept of recklessness. Circumstances of the case 3 The Crown's case at trial was, in short, that the appellant had maliciously wounded the victim, Adrian Pira, by smashing a beer glass into his face, near his eye, at the Royal Hotel at Queanbeyan on the evening of 6 February 2003. 4 On that evening the victim went to the Hotel with two friends, Mark Tierney and Sue Byrne at about 9.30 pm. They were sitting at a table having drinks when a man in a white shirt approached the victim, pushed him to one side, then asked Ms Byrne for a game of pool. The victim fell back, got up and asked the man why he could not have gone around him. The man then spoke aggressively to the victim, but returned to his table near the pool table. He continued to abuse the victim however, including calling him a "little black prick". 5 There were two other people at the table with the man wearing the white shirt, one wearing a blue shirt and denim pants who, on the Crown's case, (not now disputed) was the appellant. After the abuse had continued for a couple of minutes, the victim got off his chair and walked towards the group. He asked the man in the white shirt "what his problem was" and he said "no problem". (T 35). The victim's voice was raised during this exchange. 6 After the man in the white shirt said "no problem", according to the victim he got up off his chair, pushed the victim away and then: "… I hit him, he hit me and punch was going on, punch for punch and next minute I just felt a glass in my eye. I mean I couldn't see or anything … I just – the glass was put in my eye at the same time I was arguing with the guy in the white… ". (T 39). 7 The victim was taken to hospital by his friends and received about sixty stitches to his facial injuries. 8 Mr Plummer, the hotel publican, gave evidence that he saw the man in the white shirt having a scuffle with the victim and that, as he approached them, the man in the blue shirt on the other side of the table picked up a schooner glass and hit the victim in the left forehead with a "full swing of a punch". He observed the glass shatter on impact and saw the victim grab hold of his face. Mr Plummer had not had anything to drink that evening, he being a teetotaller. 9 Another witness, Patrick Monsall, heard the abusive exchange between the man wearing the white shirt (to whom he had been introduced and who he knew as Matt) and the victim. He had also been introduced to the appellant who had been identified as Matt's brother. As Mr Monsall was playing a pool shot, he heard the crashing of glass and a few loud words and looked up to see Matt punching the victim and: "… [the appellant] actually just got back from the bar with a full schooner of beer and he's launched over the table and struck Adrian in the face with a full schooner of beer." (T 73). 10 Mr Tierney also observed the fight breaking out and said he saw the victim get hit with a glass by "the guy in the blue shirt with the white stripes." 11 Ms Byrne did not see how the victim suffered his injuries. 12 The appellant admitted hitting the victim with a glass but said in an ERISP interview conducted on the evening of 6 February 2003, that he had acted in self-defence of his brother. The ERISP recorded the following exchanges: "Q 38 What's happened when you've put your hand out in front of him? A Well, obviously he's run into my hand and while this has happened other people have, like, jumped on me from behind… Q 39 What was in your hand? A I was drinkin' my beer at the time, I think I was havin' a cigarette, drinkin' a beer. Q 41 Which hand was the beer in? A Right hand. Q 43 Did the, did the beer glass hit the person? A Well, I imagine it did. I mean, you know, it all happened pretty quick ۥ'cause other people jumped on me as well, but basically what I did was put me hand out quickly to try and stop someone getting' hit so, it was just a gut reaction. Q 44 Did the glass break? A It may have done. Q 45 What do you mean by that? A Well can't really recall exactly what happened. Basically, I put me hand out and tried to stop someone from hittin' someone else and got stuck in the middle of it. [After saying he could see the victim coming to hit his brother with his left fist closed] Q 58….and then what happened? A I just intervened thinkin', oh, well, you know, I don't want him to get hit. I can see, 'cause my brother probably couldn't see him comin', so I'm thinkin', oh, well, best thing to do is just try and, you know, stop the guy from bowlin' someone over, so I'll stick my hand out. Did it pretty quickly though, like, it was a gut reaction, so it's put me hand out quick. Q 147 Now, do you think by putting your arm out with the glass near that person's face was a reckless thing to do? A I don't think so, I think I was tryin' to prevent any injuries, not incur them, so, or cause them, you know, it's purely, like I say, a gut reaction tryin', you know protect someone else, and do it the most, you know, effective way to not hurt anyone else. The fact that, you know, it slipped me mind that there's a glass in me hand's a secondary issue. Q 148 Well, would you think that if someone was to push a glass or a schooner glass towards someone's face that it may cause injury? A Well, there's nothin' good about it, but like I say, you know, I wasn't thinking about a glass even being in me hand, I was quite happy with the conversations I was having, and having a good time, you know, the last time [sic] on me mind was other people tryin' to invade our space by being violent. Q 151 Do you think a glass pushed into someone's face at force would cause injury? A I guess it would, but you know, my intentions were nothing like that. Like I say, it was purely a gut reaction. Q 152 Do you think your reaction was reckless? A I don't think so um, like I say, you know, I was protecting someone else, not tryin' to cause injury, probably, if anything trying to prevent it. " (emphasis added) The appellant did not give or call evidence at trial. 13 The appellant agreed he was wearing a blue t-shirt with white stripes on the sleeves and that it had a considerable amount of blood on it. He described himself as "a total non-aggressor towards the whole thing". 14 Police Officers Ronald King and Daniel Black attended at the Hotel after the incident. They saw three men at the front arguing with hotel security, including a man who was not wearing a shirt and another wearing a blue t-shirt with a large amount of blood on it. They heard both men say on numerous occasions: "We smashed them brother. Those Maori cunts didn't know what hit them." 15 It was put to the victim in cross-examination that he had moved quickly over to the man in the white shirt with the intention of punching him in the head, a proposition he denied. It was also put to him that the man in the blue shirt (the appellant) had "stuck his hand out to try and stop you", a proposition he also denied. 16 Messrs Plummer, Tierney and Monsall were all cross-examined on the basis that they were mistaken in their observations of the incident, propositions they denied. The Crown case at trial. 17 The Crown Prosecutor opened the Crown case to the jury by telling it that there were two elements of the offence of malicious wounding: "That the accused maliciously by any means which means that the accused either did what he did deliberately with intent to cause some injury, not necessarily the injury caused. Or he did so recklessly. That is knowing that it was possible that some injury could occur and in both cases without lawful excuse. That is, in acting maliciously he either did it deliberately or recklessly." (19/7/05, T pp12-13). 18 Counsel for the appellant also opened to the jury and said (19/7/05,T p26) that what was in dispute was how the victim was injured. 19 In his final address to the jury the Crown Prosecutor repeated that the Crown's case was that the accused had maliciously wounded the victim by shoving a glass into his face: "… either deliberately with intent to cause injury, not necessarily [the next portion of his address was not transcribable] but deliberately to cause injury, or did so recklessly. That is knowing that it was possible that some injury might occur, recklessly went ahead anyway." 20 He concluded his address by saying: "In the Crown's submission the accused did it deliberately. He struck Mr Pira deliberately with that glass and you might think even on the accused's version he says he had the glass he wasn't sure what had happened to him but you might think that what he did in view that he was holding a glass was reckless at the very least. In the Crown's submission a deliberate act, a deliberate act. And that you would have no difficulty after careful analysis of the evidence being satisfied beyond a reasonable doubt that the accused acted maliciously." 21 Counsel for the appellant addressed the jury in the following terms: "There's no dispute about wounding. We know that Mr Pira got wounded, the question is was it the accused wounded him, I suggest that there's some real doubt about that and even if you can resolve that doubt and come to a conclusion beyond reasonable doubt that those injuries were inflicted by Mr Pengilley, the accused, then the other element of the offence, maliciously, which has been described by the learned Crown as either deliberately or recklessly comes into play. In the course of my submissions I'm going to be submitting to you that you'll have some real difficulties working out what happened on this night, really. There's only about one thing that you can be sure of, I suggest and that's that Mr Pira was coming over to belt his brother. As to what happened after that it's very hard to piece together but maliciously and deliberately, well there's a few hoops to get through in my submission to the Crown before you could find Mr Pengilley guilty. … If you can be satisfied that all of those things happened, that Mr Pengilley did put his hand out striking deliberately not accidentally, because accident has been raised by Mr Pengilley, that what he did, he did reflexively, not being aware or conscious of the glass, or taking it into account or having any intent with it . That's effectively what he said, so that the glass I just stuck my hand out, I wasn't thinking about the glass, I don't know what happened to the glass. Self defence by sticking his arm out you would think would be reasonable, but even if you could come to the conclusion on the factual circumstances as described that he did that deliberately, having the opportunity to think about the glass and going ahead anyway, in the circumstances, self defence arises." (emphasis added) The summing up 22 In the course of his summing up the trial judge read to the jury s 35(1)(a) of the Crimes Act, the definition of "maliciously" in s 5 of the Crimes Act. He reminded the jury that the Crown's case was that the appellant had acted recklessly. 23 At the conclusion of the summing up, in the absence of the jury, counsel for the appellant asked the trial judge to give a direction to the jury which would explain the concept of recklessness. The following exchange then took place: "HIS HONOUR: There is no statutory definition of it, is there? Counsel: No, there's no statutory definition, your Honour, but the jury needs, in my submission to have explained to them what reckless is and in the circumstance of this case, in my submission, given that there is an explanation given by the accused which they are entitled to consider, the question of – and you[r] Honour has indicated deliberately does that act, your Honour did direct the jury that deliberately does that act. In my submission that needs to be clarified as to what they need to determine, because it is raised by the accused that he deliberately did an act of swinging his hand, they may find that he had a glass in it, in my submission that is the act that they need to find he deliberately did, deliberately swung with a glass as opposed to what he had claimed and raised as a defence in effect, accident or reflex which goes directly to the issue of intent. HIS HONOUR; Yes, I see what you are putting. Well as I am going to bring them back I will remind them that the Crown opened deliberate act and I will tell them that for the Crown to succeed on that limb of it, they must be satisfied that he knew he had the glass in his hand when he made the movement he did. Counsel: Yes. HIS HONOUR: What do you say recklessness involves. Counsel: Recklessness in the commentary in the Criminal Procedure, under the actual definition of maliciously, there is a short section which deals with - HIS HONOUR; Yes. Counsel: -- there foresight of the consequences. HIS HONOUR: Yes, I will put that. I should have done that. All right, bring them back please. Is there anything else?" 24 The jury was brought back into court after argument not presently relevant. His Honour then said: "First of all, I read to you the definition of maliciously and it referred of course to acts done with intent to injure and it referred to acts done recklessly. Thereafter, I said that the Crown had opened to you that his allegation was one of recklessness. That is indeed correct but I failed to tell you that the Crown also opened that what the accused did was deliberate. So you have those two matters to consider." 25 His Honour did not give the jury the direction about the concept of recklessness as he had said he would. Neither counsel drew that omission to his attention. 26 During the course of its deliberations the jury asked a number of questions, including seeking a copy of the definition of malicious. His Honour then appears to have given them a copy of the definition in s 5 of the Crimes Act. 27 The jury delivered its guilty verdict after deliberating for approximately three hours. Submissions 28 The appellant complains that the trial judge's direction as to the meaning of "maliciously" was inadequate. He submits that it was not sufficient for his Honour to read out the definition of "maliciously" in s 5 but, rather, that he had to explain the concept of "recklessly", and his failure to do so meant the jury was left to work out what "recklessly" meant. He contends his Honour ought to have given the jury the directions on "maliciously" set out in the Bench Book, in particular that he ought to have directed the jury that: "The accused is reckless if at the time the act was done there was a realisation on the part of the accused that some physical harm – but not necessarily the degree of harm in fact so done – may possibly be inflicted yet he or she went ahead and acted. The accused cannot be found to have acted recklessly if the accused did not apply his mind to the consequences of his/her act." 29 The appellant submits that it was that direction which his counsel sought at trial. He argues that if the jury had been properly directed there was a real possibility it would have found he had not applied his mind to the consequences of his act. He contends that the failure of the trial judge to direct the jury properly led to a miscarriage of justice bearing in mind that the major issue at trial was the cause of the victim's injuries. 30 The Crown relies on the fact that after the trial judge brought the jury back and directed it that in addition to the Crown case being based on recklessness, the Crown had also opened that what the accused did was deliberate, counsel for the appellant had not complained again as to the adequacy of his Honour's direction in relation to recklessness. 31 Further, the Crown contends that the appellant's case at trial was not that he did not realise it was a possible consequence of his act that some physical harm might be occasioned. Accordingly there was no need for a direction on recklessness. The Crown drew attention to the fact that the appellant had not suggested in his ERISP that he did not realise some injury might possibly have flowed from his act, but claimed he had put his hand out to stop his brother from being hit (see Q/A 37, 43, 45 and 58). While the appellant had suggested that he did not realise he had a glass in his hand at the time he raised it, the Crown submits there was no evidence it did not cross his mind that raising his hand would carry a risk of harm. The Crown submits that in the absence of evidence that the appellant did not realise that some injury would flow from his act, a direction on the meaning of recklessness was not required. The Crown also submitted that the appellant's claim of self-defence suggested that he did realise some injury would flow from his act. 32 The Crown also relies upon the fact that the trial judge gave the jury clear directions about the appellant's claim of self-defence about which no complaint is made and that once, as is apparent from the verdict, the jury rejected the claim of self-defence, there was ample evidence that at the very least the appellant realised the possibility of some physical harm but went ahead anyway. 33 Finally the Crown contends that if the Court concluded that the trial judge's direction on "maliciously" was inadequate, this was not a case where a substantial miscarriage of justice had occurred: s 6, Criminal Appeal Act 1912. The Crown relies upon the fact that although the jury sought a copy of the definition of "maliciously" it did not seek further directions on either the meaning of that term or the term "recklessly". Secondly, the Crown submits, once the appellant's version of events given in his ERISP was rejected by the jury, the evidence of Mr Plummer, Mr Monsall, Mr Tierney and Senior Constable King and Constable Black overwhelmingly established that the injury was inflicted maliciously. Consideration 34 Crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent: R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 at [60] per Wood CJ at CL, Spigelman CJ and Kirby J concurring. 35 In R v Coleman (1990) 19 NSWLR 467 at 472, Hunt J (with whom Finlay and Allen JJ agreed) described the concept of "malice" as calling for "meticulous analysis and fine and practical decisions to be made by the jury (for which task such a body is quite ill-suited)." 36 In Coleman the accused was charged with maliciously inflicting actual bodily harm with intent to have sexual intercourse. The jury was directed (see 471) that: "The malicious infliction of injury was established if the appellant had wielded the bottle either with the intention of causing some injury such as was in fact caused or if he did so recklessly." The judge defined the concept of recklessness as "… a realisation of the possibility that some such injury might result but nevertheless proceeded to act." 37 Hunt J (at 471) said that was the correct direction as based on R v Cunningham [1957] 2 QB 396 at 399-400. He rejected (see 471-472, 476) the appellant's argument that realisation of the possibility of injury was insufficient and that the accused had to realise the probability or likelihood of injury in order to have acted recklessly for the purpose of malice. 38 In this case the Crown contended the appellant was guilty of maliciously wounding the victim because he injured him, either deliberately or recklessly. 39 The appellant's case, in part, was that he put his arm out "reflexively, not being aware or conscious of the glass, or taking it into account or having any intent with it". While his counsel put that proposition to the jury in the context of advancing his self-defence argument, the argument also squarely raised the issue whether the appellant had the intent, let alone foresight of the consequences, essential to a finding he had acted recklessly. 40 In such circumstances it was, in my view, essential that his Honour explain to the jury that to establish the appellant had acted recklessly, the Crown had to prove he acted as he did, realising the possibility that some injury might result from his action. 41 It was not sufficient for the trial judge to read the s 5 definition of "maliciously" to the jury, nor to give the jury a copy of the definition. In R v Safwan, (1986) 8 NSWLR 97 Street CJ (with whom Lee and McInerney JJ agreed, subject to a qualification not presently relevant) said, in substance, (at 102) that, in some circumstances, quoting a section of a statute may mislead a jury. More recently in R v Micalizzi [2004] NSWCCA 406 at [36] Simpson J (with whom Hulme and Howie JJ relevantly agreed) expressed the opinion that "it is not good practice to read legislation to a jury" and that "were it necessary to refer to a legal principle derived from a statute, it is the effect of the provision, so far as it is relevant to the issues before the jury, and not its precise terms, that should be conveyed." 42 The Crown draws attention to the fact that counsel for the appellant did not complain, at trial, about the trial judge providing a copy of the statutory definition to the jury so that r 4 of the Criminal Appeal Rules 1952 applies. This is so, but the success of the appeal does not turn upon the sole issue of providing a copy of the definition of "maliciously" to the jury. The question is whether the jury was properly instructed having regard to the facts and the issues to be decided: R v Chai [2002] HCA 12; (2002) 76 ALJR 628 at [18]. It was essential that his Honour's direction conveyed to the jury what was necessary to enable it to discharge its function: R v Williams (1990) 50 A Crim R 213 at [222] per Badgery-Parker J (with whom Gleeson CJ and Wood J agreed). 43 The significance of providing the jury with a statutory definition which does not address the concept of recklessness lies in its potential, in a given case, to mislead. 44 The Crown has contended that the trial judge was under no obligation to explain the concept of recklessness to the jury relying on R v Safwan at [102]; R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304 at [98]; R v Cato [1976] 1 All ER 260 at [268]; R v Williams (1990) 50 A Crim R 213 at [222]. In those cases, however, the trial judge had given a direction or indication as to the meaning of recklessness which was held to be sufficient in the circumstances. 45 This was a case in which, in my view, (and as the trial judge himself recognised) a direction as to the concept of recklessness was required. The failure to explain that concept may well, as the appellant submits, have misled the jury, leaving them to believe, for example, that it was sufficient that the appellant, although not intending to inflict injury, had acted recklessly merely because he deliberately put his hand out with a glass in it. Absent a direction as to the concept of recklessness, the jury may well not have appreciated it was necessary, in order to find the appellant had acted recklessly, that in addition to putting his hand out with the glass deliberately, he had a foresight of the possibility that some injury such as was caused might result, but nevertheless proceeded to act. 46 The Crown submits that the appellant did not suggest in his interview with the police that he did not realise that some injury might possibly have flowed from his act. In my view, the passages from the ERISP which I have underlined (at [12]) sufficiently raised the issue of the appellant not foreseeing the consequences of his act to require a direction from the trial judge. 47 As to the Crown's submission that counsel for the appellant did not complain following the trial judge's failure to direct the jury as to the concept of recklessness in the manner he had indicated, I do not regard that as affecting the manner in which this point can be considered on appeal. The Crown does not suggest that r 4 arises in relation to this ground of appeal but, rather, appears to contend that, in some fashion, counsel had abandoned the complaint about the adequacy of the trial judge's direction in relation to recklessness. It is possible to conceive of an argument that trial counsel's silence at this stage indicates that, in the atmosphere of the trial, he did not consider this issue to have been important so that there was not, in the circumstances, a miscarriage of justice: see Saffron (No 1) v R (1988) 17 NSWLR 395 at 434. In the circumstances of this trial, however, I do not so understand trial counsel's conduct. A better explanation is that having asked once, been told by the trial judge that his submission had been successful but then not hearing the direction emerging from his Honour, he regarded that as a reversal of his Honour's earlier decision. I think it would have been desirable for trial counsel to have pursued the matter however that failure is not fatal to the appeal. 48 Accordingly, in my view, the trial judge's direction on "maliciously" was inadequate and, subject to the Crown's submissions as to the application of the proviso in s 6 of the Criminal Appeal Act 1912, the appeal should succeed. 49 In my view this is not a case for the operation of the proviso. In R v Whittaker (1993) 68 A Crim R 476 at 484 the Court held that an important consideration as to the application of the proviso was whether the appellant had lost a chance of acquittal which was fairly open to him. In particular, the Court (Gleeson CJ, Kirby P and Grove J) observed "there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial." In my view that is this case. Orders 50 I propose the following orders: 1. Appeal allowed. 2. Quash the conviction of the appellant for malicious wounding and the sentence imposed upon him following that conviction. 3. Order a new trial. 51 ADAMS J: I agree with McColl JA and Latham J 52 LATHAM J: I have had the opportunity of reading Justice McColl's judgment in draft and I agree with the orders proposed and the reasons in support of those orders. I wish to add a few remarks on the adequacy of the summing up, particularly in relation to the case advanced on the appellant's behalf at trial. 53 Before doing so, it is helpful to review the meaning of "maliciously" as expounded in the course of Justice Hunt's judgment in R v Stokes and Difford (1990) 51 A Crim R 25 at 40: "In Kenny's 'Outlines of Criminal Law' (19th edition, 1966) at 211, the author stated : 'The principle is that in any statutory definition of a crime 'malice' must be taken not in the old vague sense of wickedness in general, but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done or (2) recklessness as to whether such harm should occur or not (that is, the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it.)' That statement in the 16th edition (1952 at 186) was approved by the (English) Court of Criminal Appeal in Regina v Cunningham [1957] 2 QB 396 at 399 -- 400. See also Regina v Mowatt [1968] 1 QB 421 at 426 -- 427. This Court has also approved of that statement: Regina v Coleman (1990) 19 NSWLR 467 at 477. In the same case (at 475), it was said: ' …in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm -- but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted.' That was a statement of the law generally accepted in Australia at the time of the High Court's decision in The Queen v Crabbe (1985) 156 CLR 464. In Regina v Coleman (at 476), it was held that the decision in The Queen v Crabbe should not be interpreted as requiring any change in that generally accepted law. (emphasis added) 54 Applying these principles to the instant case, the recklessness allegedly inherent in the appellant's conduct was recklessness as to the wounding of Mr Pira, not recklessness as to whether the appellant had a glass in his hand. The evidence upon which the Crown relied at trial was capable of establishing that the appellant deliberately struck Mr Pira in the face whilst holding a beer glass, intending to wound him. There was cogent evidence to that effect from other patrons of the hotel that night and from two police officers who overheard the appellant and his brother boasting, in effect, about the assault. However, the Crown also relied on recklessness as to the wounding, namely, that the appellant struck Mr Pira by extending his arm whilst holding a beer glass, realising the possibility that Mr Pira might be wounded, but choosing nonetheless to so act. Both required an awareness by the appellant that he was holding a beer glass at the relevant time. This was a feature of the Crown case that his Honour seemed to entirely overlook. 55 His Honour's misunderstanding is evident from the exchange set out at par 23 above. His Honour seems to think that only proof of intentional wounding required satisfaction beyond reasonable doubt of the appellant's knowledge of the glass in his hand. Regrettably, this misunderstanding was compounded by the appellant's counsel, who, it seems to me, also suffered from a degree of confusion on this score. A direction on recklessness would have done nothing to highlight for the jury the thrust of the appellant's case as it was expressed in the ERISP. 56 The account given by the appellant in the course of his ERISP, and relied upon by the appellant's counsel at trial, suggested that the appellant was unaware that he was holding a glass at the time that he extended his arm towards Mr Pira. Specifically, at Q 147 the appellant said that "it slipped me mind that there's a glass in me hand" and at Q 148 "I wasn't thinking about a glass even being in the hand". Counsel's address took up this theme :- If you can be satisfied that all of those things happened, that [the appellant] did put his hand out striking deliberately not accidentally, because accident has been raised by [the appellant], that what he did he did reflexively, not being aware or conscious of the glass, or taking it into account or having any intent with it . 57 Leaving to one side the issue of self defence, there were two limbs to the appellant's defence at trial. Firstly, that the Crown had failed to prove to the requisite standard that it was the appellant who caused Mr Pira's injuries, and alternatively, that the appellant had wounded Mr Pira accidentally. Self defence need not have been addressed unless the jury were satisfied beyond reasonable doubt that the appellant struck Mr Pira with the intention of wounding him, or that when the appellant struck Mr Pira with the glass in his hand, he applied his mind to the consequences of that act. Either way, the jury had to be satisfied that the appellant was aware he was holding the glass. If they were not so satisfied, the appellant was entitled to an acquittal. 58 With respect to his Honour, the summing up completely failed to explain these distinct aspects of the appellant's case at trial. The jury was never directed that they had to be satisfied that the appellant was aware of the glass in his hand when he struck Mr Pira, despite his Honour stating that he would so direct in relation to the intentional wounding. In many respects, the summing up failed to put the appellant's case at all. His Honour referred to the evidence in the Crown case at length, before saying "you will of course have regard to what the accused told the police in the course of his interview. You will give such weight to it as you see fit." (SU 20) His Honour then repeated a number of the questions and answers in the ERISP (from Q 38 to Q 67 at SU 20-21), before saying :- As I said before I went into that evidence, what you have got to do before you get to the accused's state of mind is to satisfy yourself as to what happened. …. It is only then that you can come to the issues involving the state of mind of the accused. You will remember when you are doing that, that I directed you earlier about matters involving intention. In doing that, I pointed out that you may have regard to what a person says before, during or after the time that he acts, in order to determine his intention. (SU 21) 59 This passage at pp 20-21 of the summing up was virtually the entirety of his Honour's reference to the appellant's case, and even then, it occurred in the context of a discussion about fact finding and intentional wounding. In these circumstances, I am of the view that the trial fundamentally miscarried. ********** 24/05/2006 - Cover sheet jursidiction amendment - Paragraph(s) cover sheet 11/08/2006 - Short case title to read Pengilley - Paragraph(s) Cover sheet 14/08/2006 - Cover sheet file number should be 2006/544 - Paragraph(s) cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.