Kahl v R [2012] NSWCCA 136

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kahl v R [2012] NSWCCA 136 Hearing dates: 4 June 2012 Decision date: 02 July 2012 Before: McClellan CJ at CL at [1]; Garling J at [11]; Adamson J at [12] Decision: 1. Appeal upheld. 2. The conviction for the offence contrary to s 35(2) Crimes Act is quashed. 3. Order that there be a new trial. Catchwords: CRIMINAL LAW - appeal - conviction - where directions of trial judge regarding recklessness incorrect - whether proviso should be applied - appeal upheld - conviction quashed - retrial granted. Legislation Cited: Crimes Act 1900 Cases Cited: Blackwell v R (2011) NSWCCA 93 Category: Principal judgment Parties: Dallas Clinton Kahl (Appellant) Regina (Crown) Representation: Counsel: J G Carty (Appellant) N Noman (Crown)

Solicitors: Scott Geoffrey James (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/243668 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 30 September 2011 Before: Nicholson DCJ File Number(s): 2010/5641

Judgment 1. McCLELLAN CJ at CL: The appellant was convicted of recklessly inflicting grievous bodily harm an offence against s 35(2) of the Crimes Act. He seeks orders that the conviction be quashed and further that a verdict of acquittal be entered. 2. In the course of the summing up the trial judge discussed with the jury the element of recklessness in the offence. His Honour directed the jury that the Crown must prove that the accused realised that his punch might cause "some form of bodily injury." Two days after the verdict this Court delivered judgment in Blackwell v R (2011) NSWCCA 93 in which it unanimously held that to prove the element of recklessness in s 35(2) the Crown must prove that the accused realised that his actions might cause "grievous bodily harm" or "really serious injury." 3. The respondent acknowledges that having regard to the decision in Blackwell the direction given by the trial judge was erroneous. Accordingly, the issues which must be considered by this Court are whether the proviso should be applied, as the Crown contends, or the court should enter a verdict of acquittal as the appellant contends. 4. The trial was held with a jury. The Crown called 21 witnesses and tendered a recording of a police interview with the appellant. The appellant did not call any evidence. 5. The charge arose out of an incident in the early hours of New Year's Day 2010 in Dorrigo. The complainant was in company with his friend Jay West and his girl friend Emily Henness. He parked his car in Cudgery Street around 2 am. Subsequently, Mr West drove the complainant's car to get cigarettes and in the course of doing so did some burn outs in and around Cudgery Street. On his return Dylan Hutchinson complained about Mr West's driving and punched him. Subsequently the complainant drove away from the area with Ms Henness and Mr West as passengers. As they left a bottle was thrown at the complainant's car. The complainant then stopped and quickly turned the car around skidding the wheels in the process. He got out of the car and yelled "who threw the bottle." The complainant was then approached by a number of persons including Dylan Hutchinson and the appellant. Soon after, the appellant struck the complainant with a single punch to his face. The blow caused the complainant to fall backwards and hit his head on the roadway. There was no dispute at the trial that he suffered grievous bodily harm as a result of that fall. 6. At his trial the appellant framed his defence around self-defence. In the alternative he said that the punch was an instinctive blow delivered without any intent. In his police interview he said that he went to break the complainant and Mr Hutchinson apart but the complainant pushed him and he punched him. He said "Yea we went around the back and that's where I hit old mate after he pushed, wasn't to hurt him, you know. It was just a bit of, a bit of a shock and self defence sort of thing." When he was asked to describe his actual swing he said "it wasn't like, you know, line him up and want to kill him or tear his head off. It was like a quick snap sort of thing ... just a matter of reflex and then holy shit, you know, he split his head open." 7. The defence counsel submitted to the jury that the punch was delivered without contemplation that it might cause the complainant bodily injury. lt was further submitted that the punch was not very hard as there was no evidence of any abrasion or injury to the complainant's face or the appellant's hands or knuckles. 8. In my opinion the appeal must be upheld and the conviction quashed. Whether or not in inflicting the blow upon the complainant the appellant acted recklessly realising that he might cause "grievous bodily harm" or "really serious injury" was not considered by the jury. I am not persuaded that the evidence at the trial justified a conclusion that the appellant was nevertheless guilty of the offence as charged. Whether the Crown will be able to discharge its burden in relation to the defence depends upon the view which a jury may take of the evidence of various witnesses and the inferences which can be drawn from the circumstances in which the offence occurred. 9. With respect to the appellant's submission that a verdict of acquittal should be entered I am also of the view that this court cannot accept that submission. As I understand the evidence presented to the appellant's trial it would be open to a jury to conclude that in delivering a punch to the complainant's jaw with sufficient force to knock him over the appellant may have realised that his actions might cause the relevant degree of harm. As with the application of the proviso the appropriate conclusion to this question will depend upon the view which the jury takes of the evidence of various witnesses. 10. Accordingly in my judgment the following orders should be made: 1. Appeal upheld. 2. The conviction for the offence contrary to s 35(2) Crimes Act is quashed. 3. Order that there be a new trial. 1. GARLING J: I agree with McClellan CJ at CL. 2. ADAMSON J: I agree with McClellan CJ at CL.