Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Swan v R [2016] NSWCCA 79 Hearing dates: 19 April 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Before: R A Hulme J at [1] Garling J at [4] Wilson J at [92] Decision: (1) Leave to appeal granted. (2) Conviction for the offence contrary to s 35(1) of the Crimes Act 1900 of recklessly causing grievous bodily harm in company is quashed, and a verdict of acquittal on that offence is substituted. (3) The appellant is convicted of the offence contrary to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm in company. (4) The appellant is sentenced with respect to the offence of assault occasioning actual bodily harm in company to the following: (a) a non-parole period of imprisonment of 12 months commencing on 14 March 2015 and expiring on 13 March 2016; (b) a balance of term of imprisonment of 6 months commencing on 14 March 2016 and expiring on 13 September 2016. Catchwords: CRIMINAL LAW – appeal – conviction – evidence – verdict unreasonable or unsupportable on evidence – where appellant convicted of recklessly inflicting grievous bodily harm in company – s 35(1) Crimes Act 1900 (NSW) – whether injuries suffered by victim amounted to "grievous bodily harm" – whether Court should enter substituted verdict for assault occasioning actual bodily harm in company WORDS AND PHRASES – "grievous bodily harm", "actual bodily harm" Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: AM v R [2012] NSWCCA 203 Director of Public Prosecutions v Smith [1961] AC 290 Haoui v R [2008] NSWCCA 209 Hawi v R [2014] NSWCCA 83 Hyam v DPP [1974] UKHL 2; [1975] AC 55 Libke v R [2007] HCA 30; (2007) 230 CLR 559 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Muldrock v The Queen [2011] HCA 39 R v Miller [1951] VLR 346 R v Overall (1993) 71 A Crim R 170 R v Perks (1986) 41 SASR 335 SKA v R [2011] HCA 13; (2011) 243 CLR 400 Texts Cited: Not applicable Category: Principal judgment Parties: Dean Matthew Swan (Appellant) Regina – Respondent Crown Representation: Counsel: T Gartelmann SC (Appellant) M Cinque SC (Crown) Solicitors: S E O'Connor – Legal Aid NSW (Appellant) C Hyland – Solicitor for Public Prosecutions (Crown) File Number(s): 2013/62090 Publication restriction: Not Applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 4 November 2014 Before: Berman SC DCJ File Number(s): 2013/47014; 2013/62090; 2013/46995; 2013/46986; 2013/46999 Judgment 1. R A HULME J: I agree with Garling J that it was not open to the jury in all the circumstances of this case to find beyond reasonable doubt that the injury sustained by the victim amounted to grievous bodily harm. Subject to what follows I agree with his Honour's reasons for that conclusion. 2. Garling J has also considered a question whether the characterisation of an injury as "grievous bodily harm" can involve considerations going beyond the effects of the injury. For my part I do not see the resolution of that question as necessary for the disposition of this case and so I refrain from expressing any view. 3. I agree with the orders proposed by Garling J. 4. GARLING J: From 10 June 2014 to 17 June 2014, the appellant, Dean Matthew Swan, stood trial in the District Court at Newcastle on an Indictment containing three counts. 5. On 17 June 2014, the appellant was found guilty by a jury of the first two counts on the Indictment. As the third count was an alternative to the second count, no jury verdict on that count was necessary or taken. 6. The first count on the Indictment was that the appellant, on 12 February 2013, at Cessnock, did engage in conduct in the nature of an affray contrary to s 93C(1) of the Crimes Act 1900. The jury found the appellant guilty. No appeal is brought against this finding by the jury, nor the entry of conviction consequent upon the jury's verdict. 7. The second count on the Indictment was that the appellant: "On 12 February 2013 at Cessnock in the State of New South Wales, in company did cause grievous bodily harm to Jason Dewey and [was] reckless as to causing actual bodily harm to him." 1. This was an offence contrary to s 35(1) of the Crimes Act. The jury returned a verdict of guilty on this count. 2. The third, and alternative, count on the Indictment upon which no verdict was taken was that the appellant assaulted Jason Dewey thereby occasioning him actual bodily harm contrary to s 59(2) of the Crimes Act. 3. The appellant stood trial with a co-accused, Ryan Hodge. Mr Hodge was found not guilty of the offences with which he was charged. As a consequence, he has no role in this appeal. 4. On 4 November 2014, Berman SC DCJ imposed the following sentences upon the appellant: 1. for the offence of affray, a term of imprisonment of 3 years and 6 months, comprising a non-parole period of 2 years commencing on 14 June 2014 and expiring on 13 June 2016, and a balance of term of 1 year and 6 months; and 2. for the offence of inflicting grievous bodily harm in company, a term of imprisonment of 3 years, comprising a non‑parole period of 1 year and 6 months commencing 14 March 2015 and expiring on 13 September 2016, and a balance of term of 1 year and 6 months. 1. The effective overall sentence was a period of imprisonment of 3 years and 9 months comprising a non-parole period of 2 years and 3 months commencing on 14 June 2014 and expiring on 13 September 2016. Notice of Appeal 1. On 16 November 2015, the appellant filed a Notice of Appeal. It contained a single ground, namely: "The verdict in respect of Count 2 is unreasonable or cannot be supported having regard to the evidence." 1. The appellant does not appeal against the verdict in respect of Count 1, nor has he sought leave to appeal against either of the sentences imposed by Berman DCJ. 2. As this single ground does not raise only a question of law, leave to appeal is required: s 5(1)(b) Criminal Appeal Act 1912. Since, as is apparent later, I propose that leave to appeal be granted, I have, and will, refer to the applicant as the appellant. Applicable Legal Test 1. The principles to be applied by this Court in determining this appeal are not in doubt: see M v R [1994] HCA 63; (1994) 181 CLR 487; MFA v R [2002] HCA 53; (2002) 213 CLR 606; SKA v R [2011] HCA 13; (2011) 243 CLR 400. 2. I commence with an acknowledgement that the jury is the body entrusted with the primary responsibility of determining the guilt of an accused and that, in discharging that responsibility, the jury has the advantage of hearing and seeing the witnesses. Nevertheless, on an appeal against a jury verdict, this Court must make its own independent assessment of the sufficiency and quality of the evidence. In so doing, the Court is to consider whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. As Hayne J observed in Libke v R [2007] HCA 30; (2007) 230 CLR 559 at [113], the question is "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt". 3. The task for this Court is not to determine whether there was evidence to support the jury's verdict as a matter of law. Rather, the task for this court is to determine, on its own assessment of the evidence, whether it entertains a reasonable doubt about the guilt of the appellant. Ordinarily, a reasonable doubt entertained by this Court would be a doubt which a jury ought to have entertained. However, this conclusion may not follow in cases where the jury was capable of resolving the doubt by virtue of its advantage of being able to see and hear the evidence. 4. I respectfully agree with the way in which the Court's task was expressed by Bathurst CJ (with whom Price J agreed) in Hawi v R [2014] NSWCCA 83 at [308]: "It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (MFA) at [26] and [55]-[56])." Appellant's Submissions 1. The appellant submits that, having regard to all of the evidence led by the Crown, this Court must entertain a reasonable doubt that the victim, Mr Dewey, suffered grievous bodily harm. 2. As the appellant submits, the Crown has the onus of proving beyond reasonable doubt all of the elements of the offence on Count 2 of the Indictment. One of the elements of that offence is that the victim suffered an injury which amounted to grievous bodily harm. The appellant submits that the Crown did not discharge its onus with respect to that element and, accordingly, the verdict on Count 2 is unreasonable or cannot be supported having regard to the evidence: s 6(1) Criminal Appeal Act. 3. The appellant accepts that if his conviction on Count 2 is quashed, then the Court ought to proceed by way of substitution of a verdict of guilty for the alternative offence on Count 3 of the Indictment, namely assault occasioning actual bodily harm in company: s 7(2) Criminal Appeal Act. The appellant accepts that the jury must have been satisfied beyond reasonable doubt of all of the elements of this offence. The appellant submits that the Court should proceed to sentence him with respect to that less serious offence and, accordingly, should impose a less severe sentence. The Offence 1. The facts surrounding the offence the subject of this appeal can briefly be summarised as follows 2. On 12 February 2013, Mr Dewey, the victim, was at a house in Cessnock at which his wife and their two children, a 9 year old boy and 6 year old girl, lived. Mr Dewey lived next door to that house with his mother, but was a regular visitor at his wife's house. 3. Late on the evening of 12 February 2013, at a time when his children were asleep, and his wife was in bed, the victim (who was still awake) heard voices coming from a number of men outside the house. They were threatening the victim. The victim went out to the front veranda where he saw a group of approximately 10 men at the front of the house. He observed that some of them were armed with bats or pieces of wood. One of the men yelled out to the victim that they were going to kill him. 4. The victim recognised the appellant in the group, who was his wife's cousin. He knew him well because they had lived together for approximately a year. The victim's wife, who came out onto the front veranda, recognised a number of other men in the group. 5. The victim's wife took their son to the house next door where the victim's mother lived. From there she telephoned the police. The victim attempted to escort his daughter away from the house, which had been damaged by a number of the men. As he did so, members of the group struck him with implements and threw objects at him, including rocks and bricks. Eventually, the victim's daughter ran next door to her mother. 6. After his daughter had left his care, the victim was grabbed and forcibly dragged to the middle of the front yard of the house. Members of the group surrounded him while he was on the ground, and he was kicked and punched. He was struck with a cricket bat. A guitar was smashed over his head. He was punched on the side of the face. He was kicked and punched whilst lying in a foetal position on the ground. 7. One of the members of the group called out "Get in here Dean and have a go; we're here for you". At that time, the appellant, who had been standing back from the group, ran in and kicked the victim several times before retreating. Police car sirens were heard approaching and the group fled. The Crown Case 1. It was the Crown case at trial that the victim had sustained grievous bodily harm by reason of a fracture to the transverse process of the L3 vertebra. The victim also sustained a laceration to the forehead, a laceration to the back of the neck, bruising to the left side of the back, grazing and bruising to the left forearm, grazing to the right elbow and grazing to the knees. These other injuries were not relied upon by the Crown as amounting to grievous bodily harm. 2. An ambulance attended and the victim was taken to hospital, where he remained for 48 hours. 3. In the Crown case, the injuries sustained by the victim, and the consequences of them, were only addressed by two witnesses: the victim himself and Dr Ting. It is appropriate to now note their evidence. Evidence of Mr Dewey 1. Mr Dewey said that after the affray and the assault upon him, he walked into his wife's house and grabbed a drink of water. He noticed some damage which had occurred inside the house and attempted to fix it. Having done so, he walked out to the front of the house and went to sit on the front veranda. He was unable to sit down because his back was aching "too hard". He was assisted by a police officer to sit on the gutter. 2. He described the pain at that time as being in the lower left side of his back. He said that it was excruciating. He said that he was unable to walk properly for two or three days, and then when he could finally walk, it was a struggle. He was asked how long it was that he struggled to walk and he responded by saying that he was in pain for "ages". When asked to describe how long that was, he said it was for "a good few weeks". 3. Mr Dewey went on to say: "[I] [s]till suffer from it a little bit now, but you know, touch wood, it hasn't been too bad." 1. He said that he continued to experience pain when he picks up a bag of cement or when he piggybacks the kids around the house. 2. Mr Dewey informed the Court that he did not require surgery and that he had some other minor injuries by way of lacerations, bruising and grazes on various parts of his body. 3. In cross-examination Mr Dewey told counsel for the appellant that he did not remember the trip in the ambulance because "I was that doped off my head on morphine, mate". There was no cross-examination which took issue with any of Mr Dewey's evidence about the extent of his injuries or the consequences of them. Evidence of Dr Ting 1. Dr Ting gave evidence by telephone. This occurred as a result of an agreement between the Crown, the appellant and his co-accused. She gave evidence that she had treated Mr Dewey on the evening that he was brought in by ambulance to the John Hunter Hospital. She described various lacerations, abrasions and bruising. She then added that Mr Dewey was "quite sore in the mid-line of his back from … below his chest to his tailbone". 2. Dr Ting said that Mr Dewey had been sent for a CT scan because of the laceration on his forehead. The CT scan was undertaken so as to confirm that Mr Dewey had not suffered any brain damage. 3. She said that the CT scan detected a transverse process fracture on the left side at L3. She described that fracture as follows: "A transverse process is a part of the backbone [which] is made of many individual units. The lumbar spine spans the area from the bottom of your chest to your tailbone and that's individually – there's five of them. It's labelled L1 to L5. He's injured the one in the middle, which is – if you look at an x-ray, it's the second from the bottom and it's the little side – the bony protrusion from the side of his vertebral that he's fractured on the left side. It's a part of a backbone unit." 1. Dr Ting said that the injury did not traverse the victim's spinal canal, but that it could have been "quite sore" at the time it was sustained. 2. Dr Ting said by reference to the hospital records that Mr Dewey complained of being sore in the area of his left lower back upon admission, and also on the following morning. 3. She said that a neurosurgeon consulted with Mr Dewey on the morning after his admission, and was satisfied that the fracture was stable. A back brace was not needed, and Mr Dewey was advised that he could go home once he could "mobilise". 4. She said that there was no need for any follow up of Mr Dewey by any medical practitioner with respect to his back injury. She also said that no other treatment was necessary for his back. 5. She was asked about the effect that the injury would have on Mr Dewey and said: "He would be out of work – sorry, he would not be able to do any physical work for the greater part of four to six weeks while the fracture is healing, primarily because of pain, but he should have no long term consequence." 1. She was asked to describe what was meant by the description of the fracture as "stable", and she gave this evidence: "It means that the fracture did not go into the part of the vertebra that contained the spinal cord, and that the muscles around the area held the fragment in place so it was not likely to go anywhere. So there was no intervention that was needed and was unlikely to cause him any neurological deficit long term or any immediate bleeding." 1. She was asked to describe the seriousness of the injury, and she said "Considering the circumstances, it's very minor". 2. In cross-examination, she agreed with counsel for the appellant that the L3 vertebra was embedded within its own muscle and that, on its posterior side, that is, its back, it was surrounded by thick fat. She said that, on the front of the vertebra, there was "just a lot of muscle". 3. Dr Ting agreed with counsel for the appellant that Mr Dewey's fractured transverse process would not be a permanent injury, and that there was nothing which would suggest that Mr Dewey would not make a full recovery from the injury. She was then asked this question, and gave this answer: "Q. Considering all the types of transverse process fractures that are possible, on a scale of 1 to 10, 1 being the least serious and 10 being the most serious, where would you put Jason Dewey's fractured transverse process? A. 3." 1. She went on to give this evidence: "Q. You said the time that you authored the report, that you were of the opinion that the injuries were minor? A. That is correct. Q. Do you stand by that opinion? A. I do. Q. You also went on to say that the prognosis was considered to be good? A. Yes. Q. With short term disability anticipated? A. Correct. Q. When you say short term disability, by that do you mean that you anticipate in the medium and long term, a full recovery or no disability? A. Correct. Q. And what sort of short term disability did you have in mind if you're able to say so? A. The lower back pain from a transverse process fracture or any fracture, is going to take about six weeks to three months to heal. So Mr Dewey, from memory, does a lot of physical labour so that would impact his lifestyle in the short term, in terms of going back to work. Q. Mr Dewey walked out of hospital when he was discharged didn't he? A. Yes he did." Other Evidence 1. As well as the evidence from Mr Dewey and Dr Ting, the jury saw seven photographs of the victim taken on the night of the affray and before the victim was taken to hospital. A number of the photographs show the bruising on the victim's back. The victim's CT scan, which was relied upon at the hospital to diagnose the bony fracture, was not tendered to the jury. 2. By its nature, the transverse process fracture was not visible in the photographs taken of the victim at that time. "Grievous Bodily Harm" 1. Section 4 of the Crimes Act provides an inclusive definition of the term "grievous bodily harm": 4 Definitions … "Grievous bodily harm" includes: 1. the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and 2. any permanent or serious disfiguring of the person, and 3. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). None of those included definitions apply to the circumstances in this appeal. 1. The offences charged in the alternative on the Indictment involve the concepts of "grievous bodily harm" and "actual bodily harm". These are offences of different levels of seriousness, reflected in their significantly different maximum terms of imprisonment. 2. "Actual bodily harm" means any hurt or injury that interferes with the health or comfort of a person. Such an injury does not need to be permanent, but it must have more than a fleeting or trivial effect upon the victim. As the trial Judge directed the jury in this case, bruising may constitute actual bodily harm. There was no dispute at trial that the injuries sustained by the victim, Mr Dewey, constituted actual bodily harm. 3. "Grievous bodily harm" refers to a more serious form of injury than actual bodily harm. Grievous bodily harm means really serious bodily injury. In R v Perks (1986) 41 SASR 335, King CJ noted that, in attempting to explain the phrase "grievous bodily harm" to a jury, a trial Judge should not use merely the word "serious", but the words "really serious". 4. The phrase "really serious bodily injury" has its genesis in the English courts. In Director of Public Prosecutions v Smith [1961] AC 290, the Lord Chancellor, Viscount Kilmuir said at 334: "I can find no warrant for giving the words 'grievous bodily harm' a meaning other than that which the words convey in their ordinary and natural meaning. 'Bodily harm' needs no explanation, and 'grievous' means no more and no less than 'really serious'." The Lord Chancellor expressed his agreement with the judgment of Martin J in the Supreme Court of Victoria in R v Miller [1951] VLR 346 at 307. 1. In Miller, Martin J (with whom Smith J and Coppel AJ agreed) held that it was an error for the trial Judge to have directed the jury that grievous bodily harm meant "some serious interference with bodily health or comfort". At 356, Martin J said: "A black eye, or a sprain or any considerable bruising will quite commonly amount to a serious interference with bodily comfort, and the same is true of the normal results of an ordinary caning of a schoolboy. But such matters cannot be brought within the ordinary and natural meaning of the expression 'grievous bodily harm'." 1. At 358, his Honour reiterated that the words "grievous bodily harm" were to be considered by reference to their natural and ordinary meaning. 2. The Lord Chancellor's description of "grievous bodily harm" as "really serious bodily injury" in Smith was embraced by Lord Hailsham, the Lord Chancellor, Viscount Dilhorne and Lord Diplock in their speeches in Hyam v DPP [1974] UKHL 2; [1975] AC 55. 3. In one sense, describing "grievous bodily harm" as "really serious bodily injury" does little to elucidate the meaning of the phrase. However, the addition of the word "really" to the phrase "serious injury" does indicate that the phrase refers to injuries which are considerably more serious than those which constitute "actual bodily harm". 4. In Haoui v R [2008] NSWCCA 209, Johnson J observed at [162] that there is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm, a remark with which McCallum J agreed at [168]. His Honour also approved the direction given in that case to the jury that the words "grievous bodily harm": "… do not require that the injuries are a permanent one nor that the consequences of the injury are long-lasting or life threatening, but that they do require that the injury is a really serious one." (sic) 1. In AM v R [2012] NSWCCA 203, Johnson J (with whom McClellan CJ at CL and I agreed), said at [70]: "At common law, the words 'grievous bodily harm' are given their ordinary natural meaning. 'Bodily harm' needs no explanation and 'grievous' simply means 'really serious': R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209 …" 1. It is clear from the authorities that in ascertaining what constitutes really serious bodily injury, questions of fact and degree are involved. In R v Overall (1993) 71 A Crim R 170, Mahoney JA (with whom Allen J agreed) considered the difference between actual bodily harm and grievous bodily harm. At 174, his Honour said: "The difference between actual bodily harm and grievous bodily harm is … one of degree. Actual bodily harm if 'really serious' (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is 'harm' but the one is more serious than the other." 1. A remaining question, upon which no direct authority was cited by the parties, is whether the characterisation of an injury as "grievous bodily harm" can involve considerations going beyond the effects of the injury. That is, in assessing whether an injury amounts to "grievous bodily harm", is it open to a jury to have regard to the personal, social and economic consequences of the injury, in addition to the physical effects of the injury? For example, an injury such as a black eye may have very different consequences for an individual depending on their occupation. It may have little, if any, financial consequence by way of time off from work for a person engaged in an ordinary occupation. However, if the victim was a fashion model who could not take part in photographic shoots or fashion shows for a period of time until the physical consequences of the injury had completely disappeared, there might be very significant financial consequences from an injury ordinarily regarded as actual, and not grievous, bodily harm. Do such consequences convert the injury into grievous bodily harm in that hypothetical and individual case? 2. If a person employed in an administrative position suffers a fracture of their little finger in an assault, they might have little, if any, time away from work and few, if any, ongoing consequences. However if the fracture was sustained by a concert pianist, severe financial consequences to that pianist's career might ensue. Does an injury which comprises actual bodily harm such as bruising to an individual's non-dominant hand become grievous bodily harm if the same injury is sustained to the individual's dominant hand, thereby significantly impacting on their capacity to carry out their work, or do many tasks of individual care which require use of the dominant hand? One could think of many other similar examples. 3. In another respect, should the natural stoicism of a victim, who tolerates high levels of pain consequent upon an injury, mean that that the injury falls below the level of being "really serious"? Conversely, should the heightened sensitivity of another victim, who reports extreme levels of pain consequent upon an injury, mean that the injury is "really serious"? 4. By the definition in s 4 of the Crimes Act, grievous bodily harm includes "any permanent or serious disfigurement of a person". In addition to its physical consequences, the "seriousness" of a disfigurement might be seen to depend on other matters such as the victim's age, the status of a personal relationship, cultural influences and the reactions of other people to the sight of the disfigured individual. A victim with narcissistic traits might react to such an injury, even if minor, quite differently from someone who does not have such a disposition. 5. All of these examples lead me to conclude that in determining whether an injury constitutes grievous bodily harm, within that expression's ordinary and natural meaning, such individual or subjective characteristics and features must be ignored. It is not, and should not be, open to regard the same injury with the same physical consequences as amounting to actual bodily harm in one victim, and grievous bodily harm in another. This is particularly so in circumstances where the offender may not know of the individual features of the victim which give rise to the particular subjective consequences. 6. To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase "grievous bodily harm": 1. It is to be interpreted according to its natural and ordinary meaning; 2. On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury; 3. there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree; 4. not every injury is capable of amounting to grievous bodily harm; 5. only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury. Discernment 1. No challenge was made to the direction of the trial Judge to the jury with respect to what constituted grievous bodily harm. Nor was there any challenge to the trial Judge's rejection of the no case submission made by the appellant's counsel at the end of the Crown Case. 2. Over the years, this Court has had the opportunity to consider a range of particular injuries, some of which have been held to constitute grievous bodily harm, others of which have been held only to constitute actual bodily harm. Beazley P, in her judgment in Haoui at [138]-[139], refers to a number of injuries which have been held to constitute grievous bodily harm. 3. The injury sustained in this case involved a fracture to a bone which was a part of a lumbar vertebra. Such an injury may be capable of amounting to grievous bodily harm. However, there are a number of features of the bony fracture in this case which tend against a conclusion that the victim suffered grievous bodily harm. These include: 1. There was no displacement of the fracture; 2. The fracture required no operative or other treatment, including ongoing medical consultation; 3. There was no permanent injury; 4. The victim was in hospital for a relatively short period and was released without any plan for further treatment; 5. The doctor who saw and treated the victim described the injury as a "minor" one; and 6. The victim did not visit any doctor for any treatment at any time after leaving hospital. 1. Even if one were to look beyond the direct physical effects of the injury and take into account the victim's subjective description of the consequences of the injury, the injury remains a relatively minor one. Mr Dewey described a few weeks of lower back pain after being discharged from hospital. He took no medication for his pain. His pain was measured by reference to weeks, and is not a permanent feature of his life. He now only experiences pain upon undertaking a small selection of physically strenuous activities. 2. Consideration of these features of the victim's injury demonstrates that the injury fails to answer the description of "serious bodily injury", let alone "really serious bodily injury". Whilst the question of whether an injury amounts to "really serious bodily injury" is one of fact and degree, and appropriately one for the jury's assessment, that does not mean that all injuries will properly be assessed as really serious, or that this Court has no role to play in determining whether, on such an issue, the jury's verdict is unreasonable. 3. In all of the circumstances, it is my opinion that the jury's conclusion (essential to its verdict) that the appellant inflicted "grievous bodily harm" on Mr Dewey was an unreasonable one. Having regard to the nature of the injury, it is my opinion that the jury must have concluded that there was a real doubt that the injury amounted to grievous bodily harm. It could not have concluded that the Crown had established that element of the offence on Count 2 of the Indictment beyond a reasonable doubt. 4. Accordingly, the appeal must succeed and the appellant's conviction on Count 2 of the Indictment must be quashed. Alternative Verdict 1. As already mentioned, the appellant submitted that if his conviction on Count 2 is quashed, then this Court ought to substitute a verdict of guilty on Count 3 of the Indictment for the offence of assault occasioning actual bodily harm contrary to s 59(2) of the Crimes Act. 2. The Crown agrees that that is an appropriate order. That order should be made. Re-Sentence 1. Substituting a verdict of guilty for the offence of assault occasioning actual bodily harm requires this Court to impose an appropriate sentence. 2. The maximum penalty for the offence of recklessly causing grievous bodily harm in company (the offence for which the jury convicted the appellant) is 14 years. The maximum sentence for the charge upon which he will now be convicted, namely assault occasioning actual bodily harm in company, is 7 years. No standard non-parole period applies. 3. Undoubtedly, the resentencing of the appellant must reflect the significantly lower maximum penalty for the s 59(2) offence. Maximum penalties are legislative guideposts to which regard must be had on sentence: Muldrock v The Queen [2011] HCA 39 at [27]. 4. The sentencing Judge sentenced the appellant upon the basis of his participation in a joint criminal enterprise. His Honour said: "I am unable to find beyond reasonable doubt that the offender actually struck Mr Dewey. His criminality is less than those who did, but in the circumstances of this case, where he was part of the mob and where he threw objects at Mr Dewey as part of his participation in the mob's joint criminal enterprise, his conduct was, as his counsel recognises, seriously criminal." 1. I agree with the trial Judge's description of the appellant as a "follower". His participation in the events on the evening of 12 February 2013 reflects that assessment. That is the appropriate basis upon which to sentence the appellant for the substituted offence. 2. I accept, as the trial Judge did, that there is a degree of overlap in the conduct constituting the offence of affray and the offence the subject of the substituted verdict. Dealing with the assault offence and having regard to the appellant's role in occasioning actual bodily harm upon the victim, I am satisfied that the objective seriousness of the offence is in the mid-range. 3. Having regard to the appellant's personal background, I am satisfied, as was the trial Judge, that the appellant's moral culpability is lessened having regard to his upbringing. The appellant has been assessed as having a very low level of intellectual functioning. He has also been assessed as someone who has not functioned well socially at any point in his life, and has been very much affected by ongoing conflict within his home. He has a significant lack of self-confidence and has had a chequered history of employment. 4. There are clearly special circumstances in this case, in particular the appellant's need to have significant assistance from the Probation and Parole Service after release from jail. 5. In all of the circumstances, an appropriate sentence is a non-parole period of 12 months with an additional term of 6 months. 6. The original sentence was fixed to commence on 14 March 2015. That is a suitable commencement date. Orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Conviction for the offence contrary to s 35(1) of the Crimes Act 1900 of recklessly causing grievous bodily harm in company is quashed, and a verdict of acquittal on that offence is substituted. 3. The appellant is convicted of the offence contrary to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm in company. 4. The appellant is sentenced with respect to the offence of assault occasioning actual bodily harm in company to the following: 1. a non-parole period of imprisonment of 12 months commencing on 14 March 2015 and expiring on 13 March 2016; 2. a balance of term of imprisonment of 6 months commencing on 14 March 2016 and expiring on 13 September 2016. 1. WILSON J: I have had the advantage of reading in draft the judgments of R A Hulme and Garling JJ and gratefully adopt the outline of the evidence and relevant law set out by Garling J. I am, respectfully, unable to agree with the conclusion of their Honours as to the unreasonableness of the jury's verdict in relation to the element of grievous bodily harm in count 2. Since I am in the minority, my comments will be relatively brief. 2. The appellant makes no complaint concerning the correctness of the trial Judge's direction to the jury as to what constitutes grievous bodily harm and it can be concluded that the jury applied the law as directed. 3. The assessment of the seriousness of the injury to Mr Dewey was one of fact for the jury. In concluding that the injury sustained by the victim was a really serious bodily injury, the jury plainly had regard to the evidence of Mr Dewey, but also to that given by Dr Ting. Whilst this was not an obvious and clear cut incidence of grievous bodily harm, the following features of the evidence of injury doubtless informed the conclusion of the jury that it was, nevertheless, grievous. 1. The nature of the injury itself, being a fracture to the L3 spinal vertebra. 2. The impossibility of the victim undertaking any physical work for a period of between four and six weeks, not because of the nature of his employment or considerations personal to Mr Dewey, but because the restriction was medically necessary to permit the fractured bone to repair itself, and because of the pain which typically attaches to an injury of this nature. 3. Pain attributable to the injury, in any sufferer as distinct from Mr Dewey personally, could be expected to continue for between six weeks and three months, and it did continue in this instance. 4. When referring to the injury as "minor", Dr Ting referenced fractures to the spinal vertebrae, not injuries overall. The assessment of the spinal fracture as minor falls to be assessed in that context. 5. The victim was required to be hospitalised for about two days to be monitored and treated. 6. Mr Dewey deposed that he had been unable to walk properly for two to three days and that walking for a period of some weeks thereafter was a "struggle" which caused him pain. This evidence was not disputed at trial, and nor was it in any way inconsistent with Dr Ting's evidence of what would be expected. 7. At the time of trial, which was about sixteen months after the date on which the injury was occasioned, the victim continued to experience pain on physical activity, such as lifting heavy objects or piggybacking his children. There was no issue taken with this evidence. 1. Although an injury such as that described in evidence at trial is, as the trial Judge described it during the sentence proceedings, "very much at the lower range of injuries encompassed by the expression grievous bodily harm", I do not consider that it was unreasonable for the jury to conclude that the injury was grievous, or that such a conclusion was not open on the evidence. I am unable to find that the jury must have entertained a doubt as to proof beyond reasonable doubt concerning this element of the offence. That the jury could have reached a different conclusion is not sufficient to render the verdict unreasonable. 2. In my view it was open to the jury to be satisfied beyond reasonable doubt that the element of grievous bodily harm had been established: M v The Queen [1994] 181 CLR 487 at 493. 3. On that basis, although I would grant leave to appeal, I would dismiss the appeal. ********** 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: 06 May 2016