Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Griffiths v R [2014] NSWCCA 60 Hearing dates: 2 April 2014 Decision date: 17 April 2014 Before: Simpson J at [1]; Davies J at [31]; Adamson J at [37] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - reckless wounding - s 35(4) Crimes Act 1900 (NSW) - whether verdict unreasonable and cannot be supported by evidence - M v The Queen [1994] HCA 63 - MFA v The Queen [2002] HCA 53 - SKA v The Queen [2011] HCA 13 - question of fact - leave required under s 5(1)(b) Criminal Appeal Act 1912 (NSW) - leave granted due to uncertainty created by police officer's notes - amply open to jury to be satisfied beyond reasonable doubt of applicant's guilt - appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), s 35(4) Criminal Appeal Act 1912 (NSW), s 5(1)(b) Evidence Act 1995 (NSW), s 38 Cases Cited: M v The Queen [1994] HCA 63; 181 CLR 487 MFA v the Queen [2002] HCA 53; 213 CLR 606 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Brian Shawn Griffiths (Appellant) Regina (Respondent) Representation: Counsel: J Trevallion (Applicant) N Noman SC (Respondent) Solicitors: Archbold Legal (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/276169 Publication restriction: Non-publication of any information or material that may lead to the identification of certain individuals (s 15A Children (Criminal Proceedings) Act 1987 (NSW)) Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-03 00:00:00 Before: North DCJ File Number(s): 2011/276169 Judgment 1SIMPSON J: On 30 July 2012 the applicant was arraigned in the District Court in Parramatta on an indictment that contained a single count of reckless wounding (of MZ), brought under the Crimes Act 1900 (NSW), s 35(4). After a trial that took place over a number of days, the jury returned a verdict of guilty. The applicant now appeals against the conviction. He did, but now does not, seek leave to appeal against the sentence subsequently imposed. The sole ground of appeal asserts that the verdict of guilty was unreasonable and could not be supported by the evidence. Because such a ground involves a question of fact alone (or a question of mixed law and fact) the appellant requires leave to appeal: see Criminal Appeal Act 1912 (NSW), s 5(1)(b). 2The task of this Court where such a ground is raised is well established and well known: M v The Queen [1994] HCA 63; 181 CLR 487; MFA v the Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. 3The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question, ultimately, is whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand: M at 492; or whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. 4In making that assessment, the court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses. The Crown case 5The Crown case may be stated as follows. Much of it is not in dispute. 6On the evening of 20 August 2011, Ms Amy Key celebrated her 27th birthday by having a party at her home in Lurnea. Among others, she invited the applicant, who was her cousin, and who attended with his girlfriend and with Corey Littlewood and his girlfriend. Corey Littlewood was an unusually and distinctively tall man. Also in attendance at the party were DZ, his son MZ, MZ's friend (CW), and a friend of DZ, Dario de Castro. Mr de Castro shared accommodation with DZ and MZ, and was in a casual romantic relationship with Ms Key. MZ and CW were both 15 years of age. In order to promote compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the names of DZ, MZ and CW have been withheld. 7At an early stage of the party, Ms Key observed signs of hostility from the applicant and Mr Littlewood towards MZ and Mr de Castro. (This, it was said, stemmed from publication on the Internet by Mr de Castro of information about his relationship with Ms Key.) DZ also observed the hostility. He said that the applicant and Mr Littlewood behaved in an intimidating manner, giving him and his son "death stares". He felt uncomfortable and decided to take the teenagers home. Eventually, the hostility became a confrontation with Mr Littlewood verbally abusing CW and MZ, and following DZ and MZ outside. He then hit MZ in the face, breaking his nose. 8DZ attempted to defend and protect his son. A physical altercation broke out, in which Mr Littlewood was the aggressor. During the course of the physical altercation, MZ was struck in the back of the head with a wine bottle, which shattered and caused him injury. This was the subject of the charge on the indictment. DZ and Mr de Castro took MZ to the Liverpool Hospital. CW accompanied them. The Crown case was that it was the applicant who struck the blow. The trial 9That the melee had occurred and that MZ was struck with a bottle and was injured was not in dispute in the trial. The issue was whether the Crown had established, to the criminal standard, that it was the applicant who struck MZ with the bottle. 10Evidence was given by Ms Key and a number of attendees at the party. Not surprisingly, there was some conflict in the evidence concerning the central event, the striking of MZ with the bottle. 11The first account of that event appears to have been given by DZ to a police officer, Senior Constable Steven Zitianellis at the Liverpool Hospital. Senior Constable Zitianellis was one of several police officers called to Ms Key's address. Later, he attended the Liverpool Hospital and spoke to DZ. He did not have his official notebook with him. There is no record of the time of his conversation with DZ. He made notes of the conversation in what he called his "scrapbook". The notes are, relevantly, in the following terms: "Victim's father - [DZ's name and address] POI - tall about 6.2 really short light coloured hair lanky build  grey long sleeve (shirt jumper) - australian Amy's cousin Victim [MZ's name and date of birth] POI 2 - Brian Tall Version:- Arrived at 6pm 20/8/2011  Dario - green ford falcon sedan  Amy's party who are seeing with Dario  POI's may be cousins of Amy  Dario posted 'open relationship'  Big tall guy picking fight with Dario cause of facebook update  me, dario, mother, [CW] (15) walked outside front porch  tall guy pick fight with (15) year old son,  tall guy picked up a bottle and smashed it over his head  POI's friend Brian also had a bottle and swung at victim's father but he ducked and kept fighting with.  victim's son ended up inside when fight ended." It was accepted that "POI" was an abbreviation for "Person of Interest", and that references to "the tall guy" were references to Mr Littlewood. 12By the time he gave evidence in the trial, Senior Constable Zitianellis had no accurate recollection of the conversation with DZ. He said that what was noted was: "... something just for me to get a quick rundown of what happened to commence the investigation." It is of some interest that Senior Constable Zitianellis said that he made arrangements for DZ to attend the Liverpool Police Station "at a later date" in order to provide a statement. 13The account of the altercation given by DZ in the trial was significantly different from what was recorded in Senior Constable Zitianellis' notes. The most apparent construction of what was there recorded was that DZ squarely attributed responsibility for the physical attack (with the bottle) on his son to "the tall guy" - that is, Mr Littlewood. 14In his evidence in the trial, however, he unequivocally and forcefully attributed the striking with the bottle to the applicant. It is necessary to reproduce his evidence at some length. He said: "Okay the first note was when Corey [Mr Littlewood] started screaming at [MZ], saying 'why are you such a hard cunt, why do you want to be a hard cunt?' And I've turned around and Corey said, 'hey bro I said relax. My son's fifteen.' Corey ignored me and started again on [MZ] and again I said to him, I said, 'yo bro, I said, relax mate he is only 15.' And that was when Corey turned onto me, threatening me saying that he was going to kick my arse all around the car park. I just said, 'don't bother, we're out of here.' And it was at that time when Corey's turned around, screamed at [MZ]'s face, standing over him saying 'why do you have to be a hard cunt' and that was at the time when Corey's actually hit [MZ] and that was when also Brian had come between Corey and the brick wall of the house and hit my son with the bottle. And that was when I, for a moment I was taken back and then I've jumped on the veranda and started getting into Corey and having a fight with that Corey, he was the biggest there. He was the more intimidating. I didn't want him anywhere near my son, I just wanted to get him away from my son. He just wanted to get away from me to attack [MZ]. I kept jumping in front of him and that was when we just had a fist fight and that was it, yes." A little later, the following exchange took place: "Q. And how many blows was it that he received from the accused Brian Griffiths? A. I've, I've seen Brian hit him with the bottle. I've seen a scuffle, [CW] had jumped up, I didn't see what happened there. My whole concentration was to get this big guy away from my son. My son is fifteen, this guy is in his thirties. I just had to get him away from my son that was all I had to do. That was my whole concentration. I didn't notice what happened on the side. Who was fighting who. My whole concentration was this big guy, that was it. Q. Where was the accused standing when he hit [MZ] with the bottle? A. Standing high on the porch. Q. On the porch? A. Yes standing on the porch. ... Q. You have said though that the accused Brian Griffiths hit your son [MZ] with the bottle? A. Yes. Q. You saw that did you? A. Yes. Q. And can you describe the bottle? A. No not at all. ... Q. And what happened to the bottle upon impact? A. The bottle just shattered straight away. Q. At that point why did you go for Corey rather than Brian Griffiths? A. Corey was the biggest, the tallest, the most intimidating there. My whole reaction was, 'get the biggest guy' I couldn't let him fight my son or even touch my son. After I'd seen the blood Corey wanted to jump on him again. I don't know what Brian was doing. I presumed [CW] jumped in front of [MZ] but I can't be as certain on that because I didn't notice. But that was my whole reaction. I just wanted to get this big guy away from him." [The first answer in this extract was initially recorded as "I didn't see Brian hit him with the bottle.". However, after the sound recording was replayed at a later date, it was established that the words used were those set out above.] 15In cross-examination, the following exchanges took place: "Q. Did you see no one else get hit with a bottle? A. The only bottle I saw used was Brian Griffith's hit my son with a bottle and then when I was fighting Corey the last thing I was taking note was who's doing what. I had my own concentration. I had my own fight to deal with, that was it and no I didn't see who was hitting who with bottles or if anything else. I didn't take notice of what was going on around me. I'm focussed on this big tall guy that was it. ... Q. You were concentrating on taking the big guy out because the big guy hit your son with the bottle? A. No that's incorrect because I saw Brian - Brian Griffiths hit my son with a bottle, not Corey. Corey hit my son in the face in the nose and broke his nose and then Brian hit him a bottle. That's the way I seen it; don't try and put words into my mouth because I'm a bit offended over that. I know what I seen. It was Brian Griffiths that hit my son not Corey. I took Corey out because he was the biggest and the biggest threat there, so don't try and make it out any other way please. ... Q. And you later, from later that morning onwards, worked out who you think might be responsible for hitting your son on the head? A. No not at all, I saw who hit him. Not at all, don't try and put words in my mouth. I didn't assume or hear from anyone. I'm saying what I had seen with my own eyes and I'd seen Brian Griffiths use the bottle on my son. Not Corey. Brian Griffiths. ... Q. Mr Griffiths did not strike you - sorry, you did not see Mr Griffiths strike your son on the head? A. Well that's incorrect because I actually did see him strike him." 16DZ was cross-examined about the notes made at Liverpool Hospital by Senior Constable Zitianellis. He denied having said that it was Mr Littlewood who hit MZ with the bottle. He said: "No I don't think I've wrote that or have I stated that at any time because the tall guy didn't him, so you're making this up, I'm telling you what I had seen and now you're telling me that I've got written somewhere, not once have I ever written anywhere or told anybody that it was the tall guy that hit my son with a bottle. Not once have I ever said that because I know exactly who hit him because I was right there, I was in a perfect line of view and I'd seen what happened. Now you're trying to state that I'm saying that Corey hit him, the big tall guy, the big tall guy punched my son in the face. Q. Now you told the police that that person's friend, Brian, also had a bottle and swung at you but you ducked and kept fighting with him? A. No, that's crap because not once did I state that someone attacked me with a bottle or that someone came at me with a bottle. Corey had no bottles in his hand, he was totally hands empty, just like I was, no weapons, it was Brian that came between Corey and the brick wall of the house and hit my son with a bottle and that was when I have jumped up and started hitting into Corey and that's the way it happened. Not once did I say that it was Corey who hit my son with a bottle. ... A. ... I think you're trying to put words into my mouth and trying to twist things around, not once did I state it was the big tall guy that hit my son with a bottle. Not once did I state that, not in any of my evidence, not in any of my statements. If I really believed it was the tall guy that hit my son with a bottle I would have mentioned the big tall guy hit my son with a bottle, but I'd seen what happened and it wasn't the tall guy, it was Brian Griffiths that hit my son with a bottle because I'd seen it." 17DZ was cross-examined also about a statement he had made to police on 23 August. In particular, he was cross-examined about variations between the content of the statement, and the evidence he gave in the trial. The statement was not in evidence. It is, however, of some interest that the cross-examination did not suggest that, in that statement, he had adhered to an account that Mr Littlewood was the perpetrator of the offence. There was no cross-examination directed to variations in any account in that statement of what had happened, and DZ's evidence in the trial. 18MZ gave a description of the opening events, involving aggressive behaviour by Mr Littlewood, similar to that given by his father DZ. His evidence was that thereafter: "[Mr Littlewood] pushed me in the chest with an open palm about like this, like more towards - to my neck and I stumbled backwards, it was quite a hard push and I would describe it more as a hit than a push. And it all happened very quickly, that was about pretty much at the same time when I hit - got hit in the back of the head with the bottle. ... Q. When you had first gone out the front you said that you saw Brian Griffiths having a cigarette? A. Yes. Q. Did you see him again after that? A. Yes. Q. Where and when did you see him again after that? A. He was standing next to the car I picked up a bottle from the recycle bin, after I got hit, and I held it towards him but he kept coming towards me so I hit him with the bottle a couple of times, I don't know how much times but. Q. Why did you do that? A. Because I felt threatened. Q. By who? A. By Brian Griffiths. Q. Why did you feel threatened by Brian Griffiths? A. Because I just got hit in the head with a bottle by him. Q. How do you know that you just got hit in the head with a bottle by him? A. Because as soon as I turned around I was -- [This was followed by an objection, resolution of which involved correction to an earlier part of the evidence. It is not necessary to go into the details.] ... Q. And at the moment that you were hit, were you standing up or what position were you in at the moment-- A. I was standing up. Q. You were standing up? A. Yes but when I got pushed, I turned slightly to protect myself. Q. Sorry? A. I turned to protect myself because I thought - the taller male went and hit me again so I turned to the left to protect myself and then that was when the bottle came. Q. So when you turned to the left to protect yourself, which direction were you facing in then? A. Towards Corey. Q. Where was he? A. Right in front of the patio, standing on the patio. Q. And what direction were you facing in at the moment you got hit? A. Towards the diagonal type of way. HIS HONOUR Q. And when you say 'the diagonal', do you mean the diagonal to your left? A. Yes. CROWN PROSECUTOR Q. And in what direction were you facing immediately after you got hit? A. Straight towards Brian Griffin (as said). Q. Beg your pardon? A. Straight towards Brian Griffin. As I lifted my head up, I turned towards him. Q. And when you turned towards him, what did you see? A. I seen him with broken glass all over the ground and that's what I seen." 19CW gave evidence. Again, his account of the introductory events was similar to those of DZ and MZ. He then said: "And I, I seen specifically, I seen the whole thing when Brian ran from out of nowhere and struck [MZ] in the side of the head with the bottle and the bottle just went everywhere. [MZ] dropped to the ground. When I seen this happen I ran at Brian. [MZ] when he got hit he got straight back up and he ran at Brian as well. And then Brian backed up in between the car and a house - and the house, that was about a good - not even a 1 metre gap and he kept going back down there as [MZ] was trying to hit him." 20Mr Littlewood was made available, at the request of the applicant, for cross-examination. Mr Littlewood was charged with common assault arising out of the incident. He pleaded guilty. He gave no substantive evidence in chief. Cross-examined by trial counsel for the applicant (not counsel who appeared on the appeal), he gave the following account of the events: "Q. How did you receive that injury to your head, the back of your head? A. I was hit from behind with a bottle. Q. Do you remember or did you feel whether or not the bottle smashed or not? A. From what I can recall I heard a bottle, like I heard the smashing sound. Q. Did you see anyone else hit with a bottle? A. Yeah, Brian. Q. Got hit with a bottle? A. Yeah. Q. Did you see who hit him? A. It all happened so quick but as [DZ]'s pushed past me Brian was hit with a bottle and then I was hit. I've gone to catch Brian as he's fallen back and then I was hit from behind." 21The Crown was, pursuant to s 38 of the Evidence Act 1995 (NSW), permitted to cross-examine Mr Littlewood. He said that he could not remember very much of that evening, as he was highly intoxicated. He denied that he had struck MZ with a bottle. 22The applicant did not give evidence in the trial, and did not call any evidence. The appeal 23The argument advanced on appeal drew attention to discrepancies in the accounts given by various witnesses. Particular reliance was placed upon the evidence of MZ, extracted above, from which it can be inferred that MZ did not directly see who it was who struck with the bottle. There were, however, strong inferences available from his last answer in the extract of his evidence above. Reliance was also placed upon the differing accounts of CW, and of DZ. 24Perhaps the most significant aspect of the applicant's case lies in the initial account given by DZ to Senior Constable Zitianellis at the hospital, which, it was accepted, should be interpreted as attributing the striking to Mr Littlewood, not the applicant. 25There are some difficulties with that. The notes were taken in great haste and very informally. DZ said, understandably enough, that his concentration while at the hospital was with his son and not upon what he was saying to Senior Constable Zitianellis. Of some importance, in my opinion, is that it may be inferred, from the cross-examination on his statement made two days later, that he did not repeat any accusation against Mr Littlewood. Moreover, it is apparent, even from a reading of the transcript, that he was very definite about what he said he had observed. This was a classic case where the opportunity of the jury to observe the witnesses must be accorded full weight. 26Such discrepancies as there were in the accounts were relatively minor, and unsurprising in the circumstances of the events of the evening in question. 27As a matter of reality, only two of those present could be held to have committed the offence - the applicant and Mr Littlewood. Apart from what is recorded in Senior Constable Zitianellis' "scrapbook" there is no evidence that the person responsible was Mr Littlewood. There is, by contrast, much evidence of a direct kind that it was the applicant. 28In my opinion it was amply open to the jury to be satisfied beyond reasonable doubt that it was the applicant who struck MZ over the head with a bottle. I have made my own assessment of the evidence. On the whole of the evidence, I am satisfied beyond reasonable doubt that it was the applicant who struck MZ with the bottle. 29This is a case in which the evidence strongly implicated the applicant. Only because of the uncertainty created by Senior Constable Zitianellis' notes would I grant leave to appeal. 30I propose that leave to appeal be granted, and the appeal dismissed. 31DAVIES J: I have read and agree with the reasons of Simpson J. 32The basis for the assertion of an unreasonable verdict was the differing accounts given by the witnesses at the trial with some emphasis being placed upon the notes taken by Senior Constable Zitanellis of what DZ apparently said to him at the hospital on the morning after the incident. 33The significant point that Simpson J makes is that MZ could only have been struck with the bottle by one of two people - the Applicant or Mr Littlewood. No person gave evidence at the trial that they saw Mr Littlewood strike MZ with a bottle or that Mr Littlewood had a bottle in his hand at any relevant time. 34Moreover, MZ's evidence (at T 406-407) was that, after he was punched in the face by Mr Littlewood (a matter not really in doubt because Mr Littlewood was separately convicted of that assault), although he turned to the left to protect himself he was still facing Mr Littlewood. It was at that point that he was hit by the bottle. Not only did MZ not say that it was Mr Littlewood that hit him with the bottle but their respective positions and the location of the injury on MZ's head meant that it could not have been Mr Littlewood who struck him in that way without MZ seeing him do so. 35My own assessment of the evidence satisfies me that it was easily open to the jury to be satisfied beyond reasonable doubt that it was the Applicant who struck MZ with the bottle. 36I agree with the orders proposed by Simpson J. 37ADAMSON J: I have had the benefit of reading the draft reasons of Simpson J. I agree with the orders proposed and with her Honour's reasons. I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree for the reasons given by Simpson J that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of reckless wounding, the sole count on the indictment. ********** 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: 17 April 2014