New South Wales Court of Criminal Appeal CITATION: Quach v R [2008] NSWCCA 284 HEARING DATE(S): 12 September 2008 JUDGMENT DATE: 4 December 2008 JUDGMENT OF: Allsop P at 1; Johnson J at 2; Price J at 3 DECISION: Appeal dismissed CATCHWORDS: Criminal Law - appeal against conviction - directions on mental elements of offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm - injuries inflicted by single blow - whether directions adequate Crimes Act 1900 s 33, s 35, s 35(1)(b), LEGISLATION CITED: Evidence Act 1995 s 191 Criminal Appeal Rules r 4 CATEGORY: Principal judgment CASES CITED : R v Stokes & Difford (1990) 51 A Crim R 25 The Queen v Wheeler (1844) 1 Cox CC 106 TEXTS CITED: Criminal Trial Courts Bench Book PARTIES: Lam Quach Regina FILE NUMBER(S): CCA 2007/4060 COUNSEL: G Wendler (applicant) P Calvert (respondent) SOLICITORS: AKN and Associates (applicant) S Kavanagh (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/0071 LOWER COURT JUDICIAL OFFICER: Robison J LOWER COURT DATE OF DECISION: 28 August 2007 LOWER COURT MEDIUM NEUTRAL CITATION: R v Quach IN THE COURT OF CRIMINAL APPEAL 2007/4060 ALLSOP P JOHNSON J PRICE J 4 December 2008 Quach v R Judgment 1 ALLSOP P: I agree with Price J. 2 JOHNSON J: I agree with Price J. 3 PRICE J: This is an appeal by Lam Quach against his conviction on 28 August 2007 after a jury trial in the District Court of a charge that on 14 May 2005 he did maliciously inflict grievous bodily harm on Richard Mills with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. He had been further charged in the alternative that on 14 May 2005 he did maliciously inflict grievous bodily harm upon Richard Mills contrary to s 35 of the Crimes Act. 4 The appellant was sentenced to imprisonment with a non-parole period of 2 years commencing on 8 February 2008 and expiring on 7 February 2010 with a balance of term of 1 year commencing on the expiration of the non-parole period and expiring on 7 February 2011. The Judge directed that the sentence be served by way of periodic detention and that the appellant be released at the expiration of the non-parole period. 5 There are two grounds of appeal: 1. The trial Judge erred in law by failing to adequately direct and distinguish for the jury the mental elements applicable to the offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm. 2. The trial Judge erred by failing to direct the jury that merely finding beyond reasonable doubt that it was the appellant who kicked the victim did not automatically mandate that the appellant was guilty of one or other of the offences charged. A summary of the facts 6 On 14 May 2005 a soccer match was being played between the Dobroyd Lions and the Cabra-Vale Diggers at Algie Park Haberfield which was part of the Sydney Amateur Football League competition. The alleged victim Richard Mills volunteered to be one of the linesmen for the match. Mr Mills was a member of the Dobroyd Lions but was not playing that day. The appellant played for the Cabra-Vale team and was wearing a number 10 Jersey. 7 The match commenced at 3pm and was played without incident until about the 80th minute when a member of the Dobroyd team was fouled by a Cabra-Vale player. Both players fell to the ground. As both players got off the ground, the Dobroyd player pushed the Cabra-Vale player to the chest. Mr Mills said that he waved his flag for the foul and the referee blew his whistle simultaneously. There was some shouting and then the Cabra-Vale player pushed back at the Dobroyd player and a few other players joined in the argument. 8 It was the Crown case that Mr Mills stepped onto the soccer pitch to intervene. He dropped his flag before doing so. Mr Mills testified that he stepped onto the pitch because the situation may have been made worse by the additional players running over and he thought it needed to be defused. He put himself between the players with his arms outstretched pushing them both away from each other. The referee was still standing where he had blown the whistle. At this stage a player grabbed hold of Mr Mills' shirt. It wasn't, Mr Mills said, either of the men that he had his hands on. It was one of the men who had come over as the disagreement had broken out. He was standing directly in front of Mr Mills. At that point, the Cabra-Vale player who Mr Mills had his hands on was also pushing him and holding onto his shirt. Mr Mills gave evidence that the third person was of Asian appearance, about thirty years old, five foot ten tall, had shortish black hair and was of medium build. He did not see the number on the man's shirt. He could recall more shouting and arguing and then a few other players were trying to break things up. That was his last memory. The next thing he remembered was one of the Dobroyd players putting a bag of ice over his nose. Mr Mills was driven to Concord Hospital where he remained in the emergency ward until the early hours of the morning and was then discharged. On 15 May 2005 he saw a dentist for treatment in relation to the damage to his teeth. He returned to Concord Hospital on 16 May 2005 for further treatment. Mr Mills sustained a broken nose, a broken left cheek bone, a severed nerve to the area of his left cheek, a fractured left eye socket, a damaged right retina and a neck injury similar to whiplash. He also had two broken teeth and one bent backwards at a 90 degree angle. Root canal surgery was performed on the broken teeth and the third was crowned. 9 A large number of witnesses were called by the Crown. For the purposes of the appeal, it is unnecessary to refer to them all. 10 Sherif Desoukey, the match referee, testified that after the linesman ran onto the field, he saw the number 10 Cabra-Vale player throwing a motion of a kick. Mr Desoukey was about two or three yards away from him. There was no one around player number 10 when he did the kick. It wasn't a violent kick. After that, player number 10 joined the commotion. He did not notice where the linesman was at that stage. Mr Desoukey said when the commotion stopped, he sent off the number 10 player from Cabra-Vale because in the rules of soccer a kick or attempted kick whether it connects or not is not allowed. In cross-examination he said that he saw only one kick by the number 10 Cabra-Vale player and that kick did not connect with anyone. 11 Naomi Golding, the linesperson, told the jury that she saw the club linesman enter the field of play and into the melee. She then lost sight of him and soon afterwards she heard someone say "look at his face". She did see a foot in the air but could not say whether it connected with anything. The foot had a red soccer boot on it. She saw the red soccer boot in the same proximity as the linesman. The boot was at head height and went from left to right. In cross-examination Ms Golding agreed that she did not observe the precise event that caused the injury to the linesman nor could she identify the person who caused the injury. 12 Viet Tran Pham, one of the Cabra-Vale players, testified that he did not kick the linesman in the head and did not see anyone else kick him in the head. He had not told anyone that he did it. Mr Pham said that he was not wearing red football boots during the match. In cross-examination Mr Pham said he could not remember whether he went to soccer practice on the Thursday after the game. He denied that he admitted to the appellant that he was the person who kicked the linesman. He was shown an email sent to him by the appellant (exhibit 3). He agreed that he had taken the view that he had been falsely accused by the appellant of inflicting this injury. He said he was shocked and upset by this but he still considered the appellant to be a friend. He denied that he kicked the linesman. 13 Darren Roberts, a Dobroyd player, gave evidence that the linesman came onto the pitch and tried to break up the players by standing in between them with his arms outstretched and palms outwards. Mr Roberts then saw the linesman on the ground on all fours. A Cabra-Vale player ran in towards the linesman and kicked him flush in the face. The kick carried through until the Cabra-Vale player's leg was horizontal. It was, Mr Roberts said about four feet off the ground. The number on the jersey of the Cabra-Vale player, Mr Roberts testified, who kicked the linesman was number 10. He said the player was about five foot five inches to five foot six inches tall with black hair and Asian appearance. The number 10 player from Cabra-Vale was sent off. Mr Roberts described the kick as being very powerful. 14 Jonathan Curry, who had been watching the game, testified that after Mr Mills walked onto the pitch, he pushed one of the Cabra-Vale players in the chest with both hands knocking him backwards. The player fell to the ground. Some of the Cabra-Vale players started wrestling with Mr Mills who ended up on the ground on his hands and knees. Mr Curry said that Mr Mills was kicked in the face by a Cabra-Vale player. The player ran towards Mr Mills and kicked him with his right foot. He described the person who kicked Mr Mills as five foot six or five foot eight tall and of Asian background. He had short black hair and had the number 10 on the back of his top. Richard Walters gave evidence of the linesman coming onto the field, trying to separate the players and defuse the situation. Mr Mills fell to the ground and appeared to be on all fours. Someone then kicked him in the face. This person was the number 10 player from the Cabra-Vale side. 15 Geoffrey Millar, a Dobroyd player, testified that Mr Mills was on his hands and knees when the number 10 player for the Cabra-Vale team ran towards him and kicked him in the face. It was a kick that followed through. Mr Millar said the boot of the kicker was a red Adidas boot. He recalled that the same player had scored a goal during the game. Daniel Fuller, a Dobroyd player, described Mr Mills being pushed to the ground. He then saw a guy running straight behind the person he was speaking to and he then heard a loud cracking noise. He saw one of the Cabra-Vale players stepping away but did not see the number on his top. The man had orangey-coloured hair and bright red football boots. This man was immediately surrounded by a lot of Cabra-Vale players. Mr Mills stumbled off the pitch with a Dobroyd player. In cross-examination, Mr Fuller said that he did not see any kick connect with Mr Mills. 16 Liam McDaid, a Dobroyd player, described Mr Mills being down on all fours facing the ground when the number 10 player from the Cabra-Vale team ran in and kicked him square in the face. The number 10 player was wearing red and white boots. Keith Quinn testified that Mr Mills had been pushed by an opposing player and was on all fours. The player that Mr Quinn had been marking then ran towards Mr Mills and kicked him with his right foot in the face. Stephen Taylor, secretary of the Dobroyd Point Soccer Club, gave evidence that the number 10 Cabra-Vale player came out of the pack and kicked Mr Mills in the face. He kicked him like he was kicking the soccer ball towards a shot at goal. He used his right foot and it was, he said, a very strong kick. 17 A dental surgeon, Dr Kenneth Wong, gave evidence of the dental injuries sustained by Mr Mills which included a tooth displaced lingually, that is, towards the back of the mouth, 1.5cm from its original position. He also had three fractured teeth. Dr Wong opined that the injuries suffered by Mr Mills would have been caused by heavy force from the front of the patient and the speed of the trauma would have had to have been great. 18 A set of Agreed Facts pursuant to s 191 of the Evidence Act 1995 became an exhibit. It was agreed that Mr Mills was treated by a plastic surgeon on 19 May 2005 and gave a history of being kicked in the face. He sustained a fracture of the left eye socket with a depressed left cheek bone, a fracture of the bones above the left upper teeth, a fracture of the bones the left eye sits on, associated teeth and retinal injuries, bruising on the right side of his face and a fracture of the nose. Mr Mills underwent surgery on 19 May 2005. The bones of his left face were repositioned and three metal plates were used to hold them in position. The injuries were consistent with and a typical consequence of a direct forceful blow to the mid-face and cheek. 19 The appellant gave evidence during which he said he did not kick any person while he was on the field nor did he intentionally kick at any person whether or not it connected. He accepted that he was the number 10 player for Cabra-Vale and had scored one goal that day. He said that he was wearing red soccer boots and to his recollection no one else had red boots. He said that he was called over by the referee, given a red card and sent off the field. He did not ask why he was being sent off as he never questioned referees or officials in a game. The appellant thought that he may have been sent off for blowing a kiss at the number 10 Dobroyd player as that was bad sportsmanship. The appellant then left the field, got changed and went home. The next day he received a phone call from the team captain who told him that someone had been hurt on the field. He asked "What does that have to do with me?" He was told "Dobroyd is blaming it on you." After a conversation with the club secretary, he went to the Glebe Police Station as she had advised him to do. He was told that there was no incident regarding a soccer match according to their records. The appellant said that he attended training on the Thursday immediately after the match. During training Viet Pham approached him and said "I kicked the bloke". The appellant did not respond. He identified the email sent by him to the club secretary and her response (Exhibit 1). He also identified an email sent by him to Viet Pham (exhibit 3) and his response. 20 Lyle Walsh, a spectator, gave evidence that the linesman was kicked in the face by one of the players from the Cabra-Vale side. He did not see the number of the player that did the kicking. That player was wearing black boots. 21 Two witnesses testified as to the appellant's good character. The appellant did not have a prior criminal history. Dealing with the appeal Ground 1: The trial Judge erred in law by failing to adequately direct and distinguish for the jury the mental elements applicable to the offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm. 22 The appellant was charged on the indictment with a single count of maliciously inflicting grievous bodily harm upon Mr Mills with intent to do grievous bodily harm contrary to s 33 of the Crimes Act and in the alternative with a single count of maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Crimes Act. It was the appellant's submission that the Judge's directions to the jury were inadequate as they failed to distinguish between the mental elements of the count contrary to s 33 and the alternative count contrary to s 35. 23 In order to establish that the appellant was guilty of the more serious crime of maliciously inflicting grievous bodily harm with intent (the s 33 offence with a maximum penalty of 25 years), the Crown had to establish beyond reasonable doubt that the appellant inflicted the injuries upon the victim with the intention of inflicting grievous bodily harm. For the alternative and lesser crime of maliciously inflicting grievous bodily harm (the s 35 offence with a maximum penalty of 7 years), the Crown had to establish that the appellant maliciously inflicted grievous bodily harm. The meaning of the word 'maliciously' includes an intention to cause some physical injury: R v Stokes & Difford (1990) 51 A Crim R 25 per Hunt J at 40. 24 In his directions to the jury, the Judge said (SU 4): " Now, you have heard about the elements for an offence and I take it you have still got the copy of the indictment with you there, and I will come to that in a moment. But for a crime to have been committed, certain things will have to be done, and the law calls these the ingredients or the elements of the offence. So for you to find the accused guilty, the Crown has to prove each and every one of these ingredients or elements, and prove each and every one of them to your satisfaction beyond reasonable doubt." 25 The Judge drew the jury's attention to the two counts on the indictment and went on to say (SU 6): "…The second charge does not say 'with intent to do grievous bodily harm'. That is in the first charge." 26 His Honour asked "what are the elements of these charges?" The jury was then instructed (SU 6): " First of all, the word 'maliciously' certainly comes into play here. What is meant by the reference to 'maliciously'? Well 'maliciously' includes every act done of malice, whether against an individual or others, or, if not malice, with indifference to human life or suffering, or with an intent to injure somebody. And it is without lawful excuse. If it is done recklessly or wantonly, that shall also be taken to have been done maliciously." 27 The jury was told that "grievous bodily harm really means any bodily injury of a really serious kind…It does not have to be permanent, but it may be." 28 The jury was further directed (SU 6-7): "When it comes to intent, and there is a reference here to intent to do grievous bodily harm, intent can be inferred from the conduct of a perpetrator. And you can look at all of that when you consider the evidence. For example, the Crown has said that this is a circumstantial evidence case, and I will be giving you some directions about that in a moment, but there is a series of circumstances upon which the Crown relies when it comes to these events which occurred. So they are basically the elements of the first charge. In particular, you will see that there is, in the second charge, no reference to 'intent to do grievous bodily harm'. That is not the second charge. So there is a difference between the two charges, but only to that extent. As far as the second charge is concerned, I give you the same directions when it comes to the issue of maliciously and the reference to grievous bodily harm, and it ends there in the second charge." 29 By these directions, the Judge had made it plain to the members of the jury that for the appellant to be found guilty of the s 33 offence they had to be satisfied beyond reasonable doubt of each of three elements which included the element of intent to do grievous bodily harm, whereas the alternative count did not require proof of such an intent. 30 At the conclusion of the summing up, the Crown trial advocate asked for a further direction in the terms of the Criminal Trial Courts Bench Book in relation to intention, the third element of the s 33 offence as the Judge had given "a very brief direction in relation to that" with which request the appellant's trial counsel agreed. 31 When the members of the jury returned, the Judge directed them in the following terms (SU 36-7): " You will recall the directions I have given you in relation to what is meant by maliciously inflict grievous bodily harm and the question of intention. Intent and intention, members of the jury, are very familiar words, and in the legal context they carry their ordinary, natural meaning. Intention may be inferred or deduced from the circumstances in which an act occurs, or from the conduct of the accused before, at, or after a specific act occurs. Now, here, you know the Crown's case is that the accused kicked the head of Mr Mills, with the injuries which followed. In some cases, a person's acts may themselves provide the most convincing evidence of his or her intention. So, where a specific result is the obvious and inevitable consequence of a person's act, and where he or she deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that specific result." 32 What was said by the Judge substantially followed the Bench Book direction. No further directions were requested by the Crown trial advocate or counsel for the appellant. 33 The additional directions were said by the appellant, in written submissions to this Court, to be confusing in the sense they did not distinguish between the mental element for the offence of specific intent and the mental element applicable to the alternative charge. Furthermore, it was contended that the Judge did not preface the additional directions by instructing the jury it must first be satisfied beyond reasonable doubt that it was the appellant who kicked Mr Mills before proceeding to consider the question of intention. The additional directions were criticised as being in a vacuum. 34 The additional directions were not confusing nor were they delivered in a vacuum. The Judge had instructed the jury as to the elements of the s 33 offence and the alternative offence and the additional directions on intent could only have been understood to relate to the third element of the s 33 offence. Much of the Judge's charge to the jury had been devoted to the question of identification to which topic he returned in the additional directions. It is evident that the jury had been instructed that it must be satisfied beyond reasonable doubt that it was the appellant who kicked Mr Mills before he could be found guilty of either charge. 35 During oral argument in this Court, the appellant contended that as the Crown case alleged one kick, it was vitally important that the Judge remind the jury what the evidence was in relation to what occurred at the time the kick took place. The appellant submitted that the Judge's instructions conveyed to the jury that if it was satisfied beyond reasonable doubt that the appellant was the kicker that was the end of the inquiry when it was not. The jury had to take the next step to decide inferentially from the evidence what his level of criminal responsibility was because it was one kick and the kick would not by itself show a specific premeditated intent to inflict grievous bodily harm. Reliance was placed by the appellant on the decision in The Queen v Wheeler (1844) 1 Cox CC 106 where Alderson B directed the jury that striking a single blow, even though grievous bodily harm be done, is not of itself sufficient to show an intent to do grievous bodily harm, which must be proved by other circumstances. That case involved a single blow with a fist. 36 The infliction of grievous bodily harm by a single blow does not preclude a conclusion being reached that the blow was struck with the intention to cause grievous bodily harm. Such an intention may be inferred from the nature of the single blow. It may be difficult to infer an intention to cause grievous bodily harm from a single blow with a fist whereas if the blow was struck with a baseball bat little difficulty might be experienced. Each case depends on its own facts. Hunt J in R v Stokes & Difford at 30 said: "…it is usual to direct the jury in the appropriate case that a person's acts may themselves provide the most convincing evidence of his intention. If, for example, a person deliberately hits another hard on the head with a hammer, it is easy to conclude from that act that he thereby intended to inflict grievous bodily harm upon that other person. Such harm (or injury) was the result he sought to achieve by his act." 37 In the present case, the nature of the blow which struck Mr Mills was not controversial. Whilst the appellant in argument in this Court referred to Mr Desoukey's evidence that he saw a "motion of a kick" which was not a violent kick, Mr Desoukey testified that the kick did not connect with anyone. 38 The jury was told by counsel for the appellant in his closing address that "the only issue which [was] being ventilated by [him] on behalf of the accused" was "has the Crown proven beyond reasonable doubt that the person who kicked Mr Mills was this accused?" Nothing was said about the nature of the blow or the question of intention as the address concentrated on the issue of identification. It is not surprising that trial counsel adopted this approach. Upon the jury being satisfied beyond reasonable doubt that it was the appellant who had kicked Mr Mills, it would have been easy for the jury to conclude from that act that he intended to inflict grievous bodily harm upon him. Various witnesses had testified that the Cabra-Vale player had run towards Mr Mills who was then on the ground and kicked him in the face. The Cabra-Vale player was wearing soccer boots at the time. Mr Roberts, in particular, described the kick as being very powerful, the kick carrying through until the Cabra-Vale player's leg was horizontal and about four feet off the ground. Mr Taylor's evidence was that the Cabra-Vale player kicked Mr Mills like he was kicking a shot at goal. The right foot was used and it was a very strong kick. 39 Whilst it is true that the Judge in summing up did not provide a summary of the evidence of each witness as to what had occurred at the time the kick took place, the Crown trial advocate in her closing address did so. She also told the jury: " The third element [of the s 33 offence] that must be proved, beyond reasonable doubt by the Crown, is that there must have been intent by the accused to do the grievous bodily harm and my submission to you is that intent, as a matter of common sense, if you run at a person who is on the ground on all fours and kick them in the face with a great deal of force, as described by the witnesses which I've just gone through with you, then you intend to do them a really serious injury, that is grievous bodily harm." The Judge summarised in some detail for the members of the jury the closing addresses of both counsel. The circumstances of the trial did not require anything more. 40 In my opinion, the first ground of appeal has not been established. Ground 2: The trial Judge erred in failing to direct the jury that merely finding beyond reasonable doubt that it was the appellant who kicked the victim did not automatically mandate that the appellant was guilty of one or other of the offences charged. 41 Leave is required for this ground as it was not taken by the appellant's counsel at trial: Rule 4 of the Criminal Appeal Rules. 42 The appellant complains that the Judge did not instruct the jury that a finding beyond reasonable doubt that the appellant was the kicker did not automatically mean they could return a verdict of guilty on the first or second counts. The appellant in support of this contention points to the Judge's direction (SU 5): " The real issue in this trial, which was been identified from the bar table, is the question of the identity of the perpetrator who kicked the linesman, Mr Mills." And later on (SU 11) "In this case, the issue is whether the Crown has satisfied you beyond reasonable doubt that the perpetrator was the accused…" 43 The appellant submitted that although this was certainly a fundamental issue joined in the trial, it was not the only issue because the task of the jury was to determine beyond reasonable doubt the legal nature of the perpetrator's criminal responsibility. 44 The Judge's identification of the "real issue" in the trial was an adoption of what had been said by the appellant's counsel in his final address. Although the summing up did not provide a specific direction that a finding that the appellant was the kicker did not automatically mean that he was guilty of either offence, his Honour said to the jury (SU 6): " And even though the question of identity is the real issue in this case, you, as Judges of the facts, still have to examine all of the elements of the charge." 45 The jury was instructed in the passage quoted at [24] that the Crown must prove beyond reasonable doubt "each and every" one of the elements of an offence before he could be found guilty and the elements of the s 33 offence and the alternative charge were identified. The Judge reminded the jury on two further occasions that the Crown must establish all of the essential elements beyond reasonable doubt before guilt could be found. The jury could not have understood that a finding that the appellant was the kicker meant that he was guilty of either offence. 46 Although this ground of appeal was not taken at trial, I would grant leave to raise this ground. Ground 2 of the appeal, however, fails. 47 I propose that the 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. 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.