R v Brady [2012] NSWDC 222

District Court New South Wales

Medium Neutral Citation: R v Brady [2012] NSWDC 222 Hearing dates: 5 -12 November Decision date: 13 November 2012 Jurisdiction: Criminal Before: Blackmore SC DCJ Decision: An offence under s35 of the Crimes Act of recklessly causing grievous bodily harm is not a crime of specific intent for the purposes of Part IIA - Intoxication Catchwords: CRIMINAL LAW - Intoxication Legislation Cited: Crimes Act Cases Cited: Blackwell v R [2-11] NSWCCA 93 Grant v R (2002) 131 AcrimR 523 at [95] DPP v Majewski [1977] AC 443 Ilioski v R [2006] NSWCCA 164 Texts Cited: Outlines of Criminal Law 19th Ed Category: Principal judgment Parties: The Crown Martin Terrence Brady Representation: Mr C Everson - Crown Mr B Levet - Accused File Number(s): 2010/377753

Judgment 1HIS HONOUR: A question has arisen as to whether an offence alleged under s 35 of the Crimes Act, as set out in the indictment, which alleges that the accused recklessly caused grievous bodily harm to the victim is an offence of specific intent for the purpose of deciding if the accused could rely on self-induced intoxication. The first thing to observe is that s 35 is not listed as an offence of specific intent in the table to s 428B of Crimes Act. That might suggest that the offence is not one of specific intent. However, since the decision in Blackwell v R [2011] NSWCCA 93 it has been necessary for the Crown to prove that an accused who acts recklessly must foresee the possibility that their actions will cause grievous bodily harm. 2In Grant v R (2002) 131 ACrimR 523 at [95] Wood J Chief Judge at common law said that when considering whether murder by reckless indifference is an offence of specific intent under pt 11A of the Crimes Act: "There is at least a hint in that concluding passage in the speech of Lord Russell that there may be offences involving special malice forethought for which the effects of self induced intoxication remain relevant. In that regard, a distinction may properly be recognised between recklessness where a person does not apply his or her mind at all before undertaking an act and where that person does apply his or her mind and foreseeing the specific risk involved, nevertheless goes ahead regardless of it." 3Lord Russell was one of the judges in DPP v Majewski [1977] AC 443. 4Those remarks suggest that there is a distinction to be made between offences such as this one where it is necessary for an accused to foresee a risk of something specific happening before he or she can be convicted and other offences where that is not required. What that distinction is and what effect it would have on this question was not really explained. Does it affect the decision as to whether an offence, which relies on an element of recklessness is to be regarded as an offence of specific intent? 5When a final ruling was made in Grant it was made in terms of the offence of murder only. An important part of the reasoning in that regard is that murder was left in the table to s 428B of the Act. Wood CJ at CL concluded: "I have reached the conclusion that the legislature should be taken as having intended that murder in all of its forms should come within the operation of s 428C. Had it been intended to apply a distributive effect to it so that s 428C was applicable only to murder dependent upon intent to kill or cause grievous bodily harm, then it might have been expected that it would have been included in pt B of the table to s 428B(2) rather than in pt A." 6As I have said, s 35 is not referred to in the table to s 428. But when pt 11A (Intoxication) was included in the Act s 35 was in a different form and it was not regarded as an offence of specific intent; see Ilioski v R [2006] NSWCCA 164 at [97] 7However, the section was substantially changed thereafter. It was this new section that was being dealt with in the case of Blackwell. Blackwell made it clear that under the new section it was necessary for the accused to not merely contemplate the possibility that some harm would be occasioned by his actions but that such harm amounted to grievous bodily harm. 8It seems to me that the starting point for consideration of the question posed must be the terms of s 428B itself. That section states that an offence of specific intent is an offence of which an intention to cause a specific result is an element. A number of sections are set out in a table to the section but the section also says that the table only provides examples of such offences. Clearly the sections set out in the table are not the only sections that might be held to contain offences of specific intent. 9A simple reading of the words of s428B does not suggest that s 35 is an offence of specific intent. (Note that s35 has been amended again, removing the requirement to prove that the accused recklessly caused grievous bodily harm). Recklessness imports a concept of taking an unjustified risk rather than having a specific intent. Recklessness is an easier state of mind to prove than intention. It has been said that, "Intention cannot exist without foresight but foresight can exist without intention:" Kenny's Outlines of Criminal Law 19th edition at para 24. That simple statement demonstrates the clear distinction between the two concepts. 10Even when looking at the decision in Grant I note that Wood CJ at CL, before reaching his final decision that all forms of murder should be interpreted as being crimes of specific intent, said at [33] that reckless indifference to life murder is not a crime of specific intent as such. He said: "To prove reckless indifference to human life an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring and went ahead regardless. As such, it is strictly not a crime of specific intent", 11Those remarks seem to me to be consistent with a finding that s 35 is not a crime of specific intent. 12I am not aware of any other judgment or authority on this issue and having considered the question I am of the view that an offence under s 35, as stated in the indictment, is not an offence of specific intent under s 428B of the Crimes Act and in this case I will direct the jury accordingly.