New South Wales Court of Criminal Appeal CITATION: CRYER, Jamie Oliver v R [2010] NSWCCA 18 HEARING DATE(S): 8 February 2010 JUDGMENT DATE: 10 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 3 DECISION: 1. Leave to appeal refused. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - conviction appeal - charge of maliciously inflict grievous bodily harm contrary to s 35(1)(b) Crimes Act 1900 – whether trial judge erred in his directions on malice - whether jury properly or adequately directed as to concept of recklessness – where failure by defence counsel to seek redirection - rule 4 of Criminal Appeal Rules – leave to appeal refused - appeal dismissed LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Appeal Rules CATEGORY: Principal judgment Chamberlain v R (1983) 46 ALR 493 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219 Pengilley v R [2006] NSWCCA 163 R v Chai [2002] HCA 12; (2002) 76 ALJR 628 CASES CITED : R v Coleman (1990) 19 NSWLR 467 R v Cunningham [1957] 2 QB 396 R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 R v Mowatt [1968] 1 QB 421 R v Stokes and Difford (1990) 51 A Crim R 25 Tripodina & Morabito (1988) 35 A Crim R 183 Williams (1990) 50 A Crim R 213 PARTIES: Jamie Oliver Cryer (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/9329 COUNSEL: A Francis (Appellant) M C Grogan (Respondent) SOLICITORS: S E O'Connor, Solicitor for Legal Aid New South Wales (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2006/9329 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 16 November 2007 IN THE COURT OF CRIMINAL APPEAL 2006/9329 McCLELLAN CJ at CL HOWIE J HARRISON J 10 February 2010 Jamie Oliver CRYER v R Judgment 1 McCLELLAN CJ at CL: I agree with Harrison J. 2 HOWIE J: I agree with Harrison J. 3 HARRISON J: The appellant was convicted following a trial before his Honour Nield DCJ and a jury of maliciously inflicting grievous bodily harm upon Ryan White. The appellant was sentenced on 19 March 2008 to a period of 5 years and 6 months imprisonment with a non-parole period of 4 years, 1 month and 15 days. No complaint is made about that sentence. 4 The appellant appeals against his conviction. Two grounds are relied upon. They are as follows: Ground 1 : The trial judge erred in his directions on malice. Ground 2 : The manner in which malice was left to the jury has given rise to a miscarriage of justice. Background 5 The appellant had been drinking in the Chittaway Tavern on the evening of 11 March 2006. He became involved in an altercation with a friend of Mr White. Nothing arises from that altercation. Shortly thereafter the appellant punched Mr White twice to the head. He fell backwards and suffered a very serious brain injury when his head struck the ground. 6 The appellant took part in an ERISP with the police on 28 March 2006 and admitted that he punched Mr White twice because of a threat made to him by Mr White that he would have his head blown off for earlier fighting with his friend. He said that he inflicted the blows to get some distance between himself and Mr White in order to leave the hotel safely. He said that the first punch "only, just, just got him. Probably wouldn't even hit him hard …". The appellant did not concede that he intended to cause injury to Mr White when he punched him. 7 The Crown addressed the jury on the basis that the appellant was malicious inasmuch as he intended to inflict some injury upon Mr White when he punched him and grievous bodily harm was occasioned as a result. The Crown also addressed upon the alternative basis that if the jury were not satisfied that the appellant intended some injury to be caused by the punches, the appellant was reckless as to their consequences. 8 The appellant complains that his Honour gave no directions as to what constituted recklessness, nor did he correct what the appellant contends was the erroneous basis upon which the Crown addressed the jury as to what constituted the mental element of recklessness in this case. In addition, the appellant contends that his Honour did not give adequate directions concerning malice to the extent that it was constituted by an intention on the part of the appellant to inflict grievous bodily harm. The appellant's submissions The Crown case on malice 9 The Crown identified its case to the jury on malice as follows: "Count one says that the [appellant] maliciously inflicted grievous bodily harm upon Ryan White. We all probably in our own minds understand the meaning of what – when we say someone is malicious. It probably means ill willed or something like that, bad. The law has a particular meaning of malicious. What the law says someone acts maliciously if they act in this case, if the [appellant] punched Ryan White, intending to cause him some harm, then that's malicious. The Crown doesn't have to prove that he intended to cause the very serious injuries that resulted. It has not been suggested in this trial that that is what he intended. All the Crown has to prove is that he intended to cause him some harm when he swung those two forceful punches to his face. That is the first way the Crown can establish maliciousness. The second is this, the accused punched him recklessly. The Crown can also establish he was acting malicious[ly]. What the law says if you punch someone, realising the possibility that some harm may result, then you've acted maliciously. Once again it is not that harm that was actually occasioned, you don't have to realise that you might cause someone brain damage, it is just some harm. So the Crown says here, if you accept the evidence that the [appellant] delivered those two forceful blows to the face of Ryan White, and that in all likelihood fractured his nose, and was so forceful that caused him to fall possibly unconscious to the ground the Crown say you might have little difficulty being satisfied that what he did was malicious." 10 The appellant contended that the Crown's address was wrong insofar as she asserted that the relevant mens rea for recklessness in this case was foresight of the possibility of "some harm". The appellant contended that what the Crown must prove is foresight of the possibility of grievous bodily harm even if not necessarily the precise nature of the harm that was occasioned in fact. 11 The appellant contended that this so-called error was not uncommon and derived from what was suggested to be a misunderstanding of the judgment of Hunt J in R v Coleman (1990) 19 NSWLR 467 at 475 as follows: "At the time of that decision, it was also generally accepted law in Australia that, 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 general acceptance in Australia appears to have flowed from the decision of the English Court of Criminal Appeal in R v Cunningham , as explained by that Court in R v Mowatt [1968] 1 QB 421 at 426 ." 12 In Coleman at 471 Hunt J had earlier said this: "The jury were directed that, in the context of this case, 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 went on to define the concept of recklessness as a realisation of the possibility that some such injury might result but nevertheless proceeding to act. In doing so, his Honour followed what has long been accepted as the correct direction, which is based upon the decision of the English Court of Criminal Appeal in R v Cunningham [1957] 2 QB 396 at 399-400." 13 In that case the accused had been charged with maliciously inflicting actual bodily harm with intent to have sexual intercourse. The appellant contended that it was therefore correct in that case for the judge to have directed the jury that recklessness was made out by a realisation on the part of the accused "of the possibility that some such injury might result but nevertheless proceeding to act." The appellant argued that "some such injury" was a reference to actual bodily harm. However, the appellant submitted that where, as in the present case, grievous bodily harm is alleged, it is necessary for the Crown to establish recklessness as to the type of harm alleged, namely, a realisation of the possibility that really serious injury might result. 14 The appellant submitted that the allegedly erroneous aspect of the Crown address on this issue was not, but should have been, corrected by his Honour in the summing up. It is important also to observe that counsel for the appellant at trial did not ask him to do so. The summing up 15 His Honour commenced his summing up to the jury with respect to the elements of the offence in the following terms: "The essential elements are, obviously, that the accused did something maliciously, that what he did was inflict something and that what he inflicted was grievous bodily harm. Three essential elements, maliciously, inflict and grievous bodily harm. Maliciously means intentionally or deliberately, recklessly. Inflict means cause. Grievous bodily harm means a really serious injury. The Crown's case is that the [appellant] either deliberately or intentionally punched Mr White twice, or that the [appellant] recklessly punched Mr White twice. The Crown's case is that the punches of the [appellant] to Mr White inflicted or caused something to Mr White. The Crown's case is that what was inflicted or caused to Mr White was a really serious injury, being a fracture of the occipital bone, fractures of the nasal bone and fractures of a third bone, with the consequential extreme, indeed life threatening . . . brain damage. That is the Crown's case." 16 The appellant conceded that the injuries suffered by Mr White amounted to grievous bodily harm. His Honour dealt with this in his summing up. He went on to make the following remarks: "So, members of the jury, when you consider what was said to you by learned counsel for the [appellant] in his address to you, it appears well be that the issue in the trial is not whether the [appellant] maliciously did something to Mr White causing a really serious injury, but whether the accused was justified at law in doing what he did to Mr White." 17 This last remark would appear clearly to have been a reference to the appellant's defence of self-defence. His Honour somewhat later continued: "If, upon your consideration of all the evidence, you are satisfied beyond reasonable doubt that the [appellant] maliciously, that means either deliberately or intentionally or recklessly, inflicted, that means caused, grievous bodily harm, that is a really serious injury, upon Mr White, then your duty is to find the [appellant] to be guilty." 18 The appellant submitted that his Honour did not address the jury as to what was meant by malice or recklessness so that the jury may well have reasoned that mere carelessness on the appellant's part was enough for them to find him guilty. He argued that, consistently with the manner in which the Crown addressed the jury, it might well have reasoned that the appellant was guilty if he foresaw the possibility that some injury may have been occasioned by the punches. The appellant contended that this was a case in which a direction as to the concepts of malice and recklessness was required. It was according to the appellant certainly reasonable and open on the evidence for the jury to have had a doubt as to whether the appellant was malicious in the sense that he intended his acts to inflict some injury on Mr White. In addition the appellant submitted that there was a real issue as to whether the Crown could prove that the appellant realised the possibility that really serious harm may have been caused by his acts. Rule 4 19 Counsel for the appellant did not seek a redirection with respect to any part of his Honour's summing up. Nor did he address the jury upon the basis that the Crown had not established that the appellant was acting maliciously. However the issue was not conceded. In his address, counsel for the appellant referred to the version of events given by the appellant and contended that he only intended to hit Mr White "with enough force to stun him so he could get away from the situation." 20 Rule 4 is therefore enlivened in respect of the absence of any complaint about his Honour's summing up with respect to what his Honour said about the meaning of malice, what is said to be his Honour's failure to correct the allegedly erroneous aspect of the Crown address on the "some such injury" point and his Honour's alleged failure to instruct the jury about recklessness. 21 The appellant contended that the nature of the address by his counsel did not absolve his Honour from the obligation properly to leave all the elements of the offence. He submitted that the question was 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]. The appellant submitted that a similar error was upheld in Pengilley v R [2006] NSWCCA 163 where it was held that because recklessness was in issue at the trial it was incumbent upon the trial judge to give directions to the jury explaining what the concept meant and how it applied to the facts. 22 It is uncontroversial that the duty of the trial judge is to ensure that the jury have a sufficient understanding of the issues that arise on the evidence to determine the case according to law: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 561; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 at [30]. A trial judge is not bound to direct the jury in relation to a hypothesis unless it is reasonable having regard to the evidence: Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219. It is essential that his Honour's directions in the present case conveyed to the jury what was necessary to enable it to discharge its function: Williams (1990) 50 A Crim R 213 at [222]. 23 The appellant contended that he had lost the possibility of an acquittal and accordingly a miscarriage of justice, as contemplated by s 6 of the Criminal Appeal Act 1912, has occurred. He submitted that leave to argue the several points raised in this appeal should therefore be granted: Chamberlain v R (1983) 46 ALR 493 at 501-2; Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 at 512; Tripodina & Morabito (1988) 35 A Crim R 183 at 195. Consideration 24 There was no error either in the Crown address or in his Honour's summing up to the jury on the issue of malice. The so-called misunderstanding of the comments of Hunt J in R v Coleman is not a misunderstanding at all. The evidence established that the appellant intended to punch Mr White and that he punched him twice. He did not concede that he intended to cause injury by doing so. The relevant issue therefore became whether the jury could be satisfied that the appellant intended to cause injury to Mr White or was reckless as to the possibility that injury might be caused. The appellant contended that the scope or extent of the injury contemplated by the expression "some physical harm" for the purposes of establishing this element of the offence was coextensive with the scope or extent of the injury in fact caused. This would require the Crown to prove either an intention to cause grievous bodily harm or foresight of the possibility that grievous bodily harm may result. 25 However, Hunt J's remarks, and the authorities upon which he drew, make it plain that the relevant degree of foresight is limited only to some physical harm not necessarily amounting to grievous bodily harm. It seems to me that some confusion may arise from a reading of only the remarks of Diplock LJ in the English Court of Appeal in R v Cunningham [1957] 2 QB 396 at 399-400 without going to what Hunt J referred to as the explanation of those remarks to be found in R v Mowatt [1968] 1 QB 421 at 426. The original passage from R v Cunningham is as follows: "We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952: '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 (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured.' The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592. We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton's case. In our opinion the word 'maliciously' in a statutory crime postulates foresight of consequence." [Emphasis added] 26 The repetition of the emphasised words may on one view tend to give the impression that the particular kind of harm referred to in the first case, which for present purposes may be taken to be grievous bodily harm, is the same kind of harm that is also contemplated by the recklessness limb of malice. However, no such impression remains once the "explanation" from R v Mowatt is considered. It is in the judgment of Diplock LJ and is as follows: "In the offence under section 20, and in the alternative verdict which may be given on a charge under section 18, for neither of which is any specific intent required, the word 'maliciously' does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by 'the particular kind of harm' in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e., a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result ." [Emphasis added] 27 At the risk of some repetition it is to be observed that Hunt J returned to this issue in R v Stokes and Difford (1990) 51 A Crim R 25 at 40 in these terms: "The word 'maliciously', as defined by s 5 of the Crimes Act, includes (so far as is here relevant): '[e]very act ... done without malice but ... with intent to injure some person ... , and in any such case without lawful cause or excuse, or done recklessly ... ' That intention to injure means an intention to cause some physical injury; it does not mean an intention to cause injury to the particular extent which was in fact caused. Specifically, when applied to the crimes of maliciously inflicting grievous bodily harm with or without intent, the word 'maliciously' does not mean an intention to cause grievous bodily harm. In C S Kenny, Outlines of Criminal Law (19th ed, 1966), p 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 p 186) was approved by the (English) Court of Criminal Appeal in Cunningham [1957] 2 QB 396 at 399-400; (1957) 41 Cr App R 155 at 159-160: see also Mowatt [1968] 1 QB 421 at 426-427; (1967) 51 Cr App R 402 at 406-408. This Court has also approved of that statement: Coleman (1990) 19 NSWLR 467 at 477; 47 A Crim R 306 at 314-315. In the same case (at 475; 312-313), 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 Crabbe (1985) 156 CLR 464 ; 16 A Crim R 19 . In Coleman at 476; 313-314, it was held that the decision in Crabbe should not be interpreted as requiring any change in that generally accepted law." 28 The passage quoted earlier from R v Mowatt must be taken to be the inspiration for Hunt J's comments in R v Coleman from which the appellant's present contention appears to derive. The interpretation of those words for which the appellant contends, however, is not available in my opinion as the emphasised words in that passage, and the extract from R v Stokes and Difford, both clearly and unambiguously demonstrate. The Crown's address was therefore unexceptionable and his Honour did not err in any way by failing to "correct" what the Crown had said. 29 Should the trial judge have summed up on the issue of recklessness? Diplock LJ also considered this in R v Mowatt at 426-427 in terms that are particularly instructive for present purposes. He said this: "In many cases in instructing a jury upon a charge under section 20, or upon the alternative verdict which may be given under that section when the accused is charged under section 18, it may be unnecessary to refer specifically to the word 'maliciously'. The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence. There may, of course, be cases where the accused's awareness of the possible consequences of his act is genuinely in issue. Reg. v. Cunningham is a good example. But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realise that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in self-defence, it is unnecessary to deal specifically in the summing-up with what is meant by the word 'maliciously' in the section. It can only confuse the jury to invite them in the summing-up to consider an improbability not previously put forward and to which no evidence has been directed, to wit - that the accused did not realise what any ordinary person would have realised was a likely consequence of his act, and to tell the jury that the onus lies, not upon the accused to establish, but upon the prosecution to negative that improbability and to go on to talk about presumptions. To a jury who are not jurisprudents that sounds like jargon. In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence. There is no issue here to which the jury need direct their minds and there is no need to give to them any specific directions about it." 30 This is a case of an assault by the appellant with the use of his hands. There was no defence of accident. This was not a case of the appellant not realising that two punches delivered to Mr White might cause some physical harm. The appellant's case at trial was run upon the basis that he acted in self-defence. His Honour's remarks in the course of his summing up, quoted at [16] above, which included the words "it appears that the issue in the trial is not whether the [appellant] maliciously did something to Mr White causing a really serious injury, but whether the accused was justified at law in doing what he did to Mr White", were never contradicted or sought by the appellant to be corrected. Moreover, the following exchange between his Honour and counsel for the appellant should also be noted: "HIS HONOUR: If the jury are satisfied by the evidence to reject self defence then the jury should find the accused guilty of the first count on the indictment and it need not consider the second count on the indictment, you agree with that? HEWSON: Yes your Honour. I think the learned Crown Prosecutor obviously highlighted the fact that the maliciousness was in relation to the recklessness or intention at the time no doubt your Honour will address that aspect." 31 The Crown submitted in this Court that his Honour's question sought to clarify whether there was, from the defence perspective, a material issue in the trial other than self-defence. If the Crown established that the acts were not done in self-defence it was impliedly conceded by counsel that there was no dispute that the Crown had proved the elements of the first count on the indictment. That included that the acts that caused the grievous bodily harm to Mr White were done maliciously. Counsel for the appellant at trial all but conceded that the only issue was why the appellant struck Mr White. That was how the case was run. That was the framework within which any consideration of the summing-up had to be made. 32 This seems to be particularly uncontroversial when one has regard to the evidence given by at least one of the witnesses to the incident. Neville Bates said he saw the two punches thrown by the appellant in quick succession. He then gave the following evidence: "Q. Did you see, what did you see happen after those punches were delivered? A. Well the person just seemed to go stiff as board, I mean he was unconscious I thought right from that time. He just went straight backwards and his head just hit the cement when he went down." 33 Mr Bates was not cross-examined on that answer or otherwise on the topic it raised. 34 The case was never conducted upon the basis that the appellant did not realise what any ordinary person would have realised was a likely consequence of his act. In the absence of any evidence that the appellant did not realise that some physical harm might be caused to Mr White, the Crown satisfied the relevant onus of proving the commission by the appellant of an act that any ordinary person would realise was likely to have that consequence. There was no issue here to which the jury needed to direct their minds and there was no need for his Honour to have given them any special directions about it. Conclusion 35 In my opinion the appellant has not made out either ground of appeal. 36 Moreover, the appellant's counsel at trial would appear to have been untroubled by the manner in which his Honour summed up to the jury and with the content of the Crown's address. No discernible tactical reason would appear to have underpinned any decision or failure by him at the time to seek to have his Honour redirect the jury on any issue. That included the comments by his Honour about what appeared to him to be the issue in the trial. Counsel would appear clearly to have understood and appreciated what was occurring and the trial was conducted accordingly. Rule 4 applies and leave should be refused. Orders 37 The orders that I would propose are as follows: 1. Leave to appeal is refused. 2. The appeal is 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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