Children's Court New South Wales Medium Neutral Citation: Police v ZQ [2014] NSWChC 1 Hearing dates: 28 January 2014 Decision date: 11 February 2014 Jurisdiction: Criminal Before: Children's Magistrate Graham Blewitt AM at Sutherland Decision: Verdict - HELD wounding established Catchwords: CRIMINAL LAW - YOUNG PEOPLE - Wounding - Laceration not extending through the dermis Legislation Cited: Crimes Act 1900, Section 35 Cases Cited: Devine v R [1982] Tas R 155; (1982) 8 A Crim R 45 Regina v Shepherd [2013] NSWCCA 351 R v Smith (1837) 8 Carrington & Payne 173 Category: Principal judgment Parties: Police Young Person Representation: Sgt Mataele for the Prosecution Mr Keane, solicitor, for the Young Person File Number(s): 2013/190687 Publication restriction: Pseudonyms have been used Judgment Reasons for Decision 1The Young Person has been charged with two offences arising out of an incident that occurred on 21 June 2013 at Sylvania Waters, namely reckless wounding (Crimes Act, s 35(4)) and a back-up charge of assault occasioning actual bodily harm (Crimes Act, s 59). 2There is no dispute that the victim, BC, suffered a 10 cm laceration to his right shoulder during the incident. There is a factual dispute as to how that injury was inflicted, the prosecution case being that the accused Young Person deliberately inflicted the injury with a broken beer bottle; the defence case being that the prosecution is unable to establish that it was not accidental. There is also a legal dispute whether the injury suffered by the victim constitutes a wounding, in the legal sense. The legal issue - Wounding 3I propose to deal with this legal issue first. 4A great deal of the prosecution evidence was admitted by consent. In particular, and for the purposes of this aspect of the judgment, a number of colour photographs were admitted as exhibit 2, including one photograph numbered 3, which clearly and graphically depicts the injury sustained by the victim. The medical evidence, consisting of the medical certificate signed by Dr Richard Neilson, was admitted as exhibit 4. 5In paragraph 7 of the doctor's statement, it is stated that the examination of the victim in the Emergency Department revealed a "10 cm laceration to the skin overlying the posterior aspect of the right shoulder, not extending through the dermis". Paragraph 8 continues "He was treated with wound closure under local anaesthesia and discharged....." 6It was submitted by the defence, at the end of the prosecution case, that the evidence could not establish that there was a wounding (in the legal sense) in this case, having regard to the medical evidence that the laceration did not extend "through the dermis" (emphasis added). 7The defence relied on the NSW Court of Criminal Appeal decision of Regina -v- Shepherd [2003] NSWCCA 351, at paragraph 31 where the following appears: 31. Secondly, it is instructive to examine what may amount to a "wounding" for the purposes of the offence of malicious wounding under s35(1) of the Act. The term is not defined by the Act. A wounding is generally assumed to be "the infliction of an injury which breaks the continuity of the skin" (cf R v Newman (1948) ALR 109 at 110). In R v Smith (1837) 8 Carrington & Payne 173, the prisoner was charged with assault, cutting and wounding the victim on the left side of the face. It was the Crown case that he had struck the victim with a hammer, breaking his jaw in two places. The hospital reported that the skin was broken internally, but not externally. The issue arose whether that was "wounding" within the Statute. The Court held it was. The case is generally cited for the following proposition (see Howie & Johnson, "Annotated Criminal Legislation of NSW" (2002/2003 Ed)): (p 653) "'Wounds' is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient." 8The prosecution submitted that the evidence was sufficient to satisfy the Court that the injury sustained by the victim could amount to a wounding. The prosecution relied on a decision of the Tasmanian Court of Criminal Appeal, in Devine v. The Queen [1982] Tas R 155; (1982) 8 A Crim R 45. 9In that case Green CJ found that: "..it is sufficient if the jury are satisfied that the accused inflicted an injury which broke the skin and which penetrated below the epidermis". (The "epidermis" is the outer, non-vascular, non-sensitive layer of the skin, covering the true skin or corium (dermis) [Macquarie Concise Dictionary].) 10In the same case Cosgrove J concluded that: "It is neither necessary nor permissible in my opinion to construe the reference to breaking of the whole skin as the division of the dermis to its full depth". 11I am satisfied that the medical evidence in the present case does not amount to a conclusion that there was no breaking or cutting of the dermis, only that the laceration did not extend THROUGH the dermis. Further, accepting the oral evidence that there was a great deal of bleeding associated with the injury, and observing the injury in the photograph, I conclude that the prosecution has established that there the injury broke the skin and penetrated below the epidermis. 12Accordingly, I am satisfied beyond a reasonable doubt that the prosecution has established that there was a wounding, in the legal sense, in this case. The factual dispute 13I now turn to the factual dispute. 14Briefly, the prosecution case consisted of the tendering of a number of witness statements, and the oral testimony of the victim, BC, and an eyewitness, Sally. The accused did not call any evidence, as was his right - he is entitled to put the prosecution to strict proof and to establish its case beyond a reasonable doubt. 15The accused denies causing any intentional or reckless injury to the victim, and contends that the injury was caused accidentally when the victim fell down some stairs amongst some broken glass. 16Some thirteen witness statements were tendered as part of the prosecution brief and were marked as exhibit 1. There were ten police statements included in this exhibit, and it is not necessary to provide any particulars of the contents thereof, as they merely covered incidental issues, including the arrest and interviewing of the Young Person. The exhibit also included the statements of three civilian witnesses, MA, ME and AM. These witnesses did not testify. 17Another witness statement, that of LP, was also tendered (exhibit 7) with the witness not being called. There was evidence that a person BS was uncooperative with the police and refused to provide a statement. The evidence is that this last mentioned person was the main instigator of the incident that resulted in the injuries suffered by the victim BC. 18Briefly the facts are that during the evening of Friday 21 June 2013 a large group of young people (one estimate being about 40-50 people), mainly school friends, were gathered at an oval in Sylvania, and many of these people were drinking alcohol and were intoxicated to varying degrees. The accused Young Person and the victim BC were present. The accused Young Person had consumed a substantial amount of alcohol and was substantially intoxicated and subsequently had little memory of the events of the evening, including the incident involving the victim being injured. The victim BC had not consumed any alcohol. 19One of the members of the group, AM, extended an invitation for the gathering to continue at her residence, a two story town house, as her parents were not at home. One estimate is that about 20-30 people from the oval attended the AM home. This was around 10 pm. More alcohol was consumed at the house, and some were smoking cannabis. 20Later in the night there was a confrontation between the accused Young Person and the person BS. This occurred at the top of a flight of stairs in the AM residence. There appears to be no dispute that the person BS was the instigator of the incident, which involved BS confronting the accused Young person and being aggressive, insulting and trying to instigate a fight with the accused. 21There is no dispute that the victim, BC, who was at the bottom of the stairs, observed the confrontation between BS and the accused Young Person. The victim BC ascended the stairs and intervened by pulling the accused Young Person backwards by his shirt, and the accused Young Person fell down the stairs. 22BC gave evidence that before he pulled the accused Young Person down the stairs, he had witnessed BS punch the accused in the face, and had witnessed the accused swing the Corona beer bottle at BS, missing, and striking the wall with the bottle, which smashed. 23BC and the witness Sally gave evidence that when the accused Young Person stood up, after falling down the stairs, he deliberately stabbed BC in the right shoulder with a broken beer bottle. BC did not witness the actual stabbing, but says when he felt the blow he turned around to see the accused Young Person standing there, with no one else around him. He said there was blood pouring from a cut on his shoulder. Sally says she saw the accused Young Person deliberately stab BC from behind, with the broken bottle, using a downward stabbing motion. 24As is often the case with matters of this nature, there was confusion with inconsistent accounts from those present. This case was no different. 25I am satisfied, however, that the evidence does establish that BC had not consumed any alcohol on this night, and that the witness Sally was not affected by alcohol. I am also satisfied that the evidence does establish that the accused Young Person was well affected by alcohol. 26BC attended the hospital where his wound was treated. 27Police subsequently attended the premises and took statements from potential witnesses. 28BC provided two statements to police, and conceded in cross-examination that he provided no details of some important aspects to police in those statements, including not mentioning seeing the accused Young Person swing the unbroken beer bottle at BS; not mentioning seeing the beer bottle being broken at the top of the stairs when the accused Young Person swung it at BS; not mentioning that the accused swung the broken bottle towards another person (although BC says he did tell the police about this aspect). His statement made some four days after the incident (exhibit 6 - paragraph 8) says "My back was covered in blood. I don't know when I was cut. I didn't feel it happen. I believe I was cut by Z..." BC says this was incorrectly recorded by the police when he made his statement. 29BC was an excitable witness. Even though he did not embellish his evidence when it might be expected he could, his evidence in Court was nevertheless at odds with the versions he provided to the police on the night of the incident and again four days later when he provided a second statement. These inconsistencies or omissions would make it difficult to accept his evidence as a reliable version of events. 30Following the arrest of the accused Young Person, he was interviewed by police on the morning following the incident (ERISP transcript, exhibit 3). It is fair to say that the accused could not remember any relevant events from the night before, due to his level of intoxication, although he does make some assumptions. It is my view that some potential admissions are not sufficiently reliable to take into account in these proceedings. 31The witness Sally was in my view an impressive and credible witness. She says she witnessed the accused Young Person stab BC in the shoulder with the broken beer bottle. Her evidence about surrounding events is consistent with the statements made by others at the scene. 32I accept the evidence of the witness Sally, and accordingly I am satisfied, beyond a reasonable doubt, that the accused Young Person deliberately wounded BC with the broken beer bottle, and I find this charge proved. Having made this finding, it is not necessary to make a finding in relation to the back-up charge. 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. Decision last updated: 03 April 2014