and Neil Raymond Jose v The Queen
[2014] VSCA 90
•6 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0146 | |
| NEIL RAYMOND JOSE | Appellant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | NETTLE, REDLICH and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 May 2014 | |
DATE OF JUDGMENT: | 6 May 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 90 | |
JUDGMENT APPEALED FROM: | DPP v Jose (Unreported, County Court of Victoria, Judge Gucciardo, 9 July 2013) | |
---
CRIMINAL LAW – Conviction – Aggravated burglary and intentionally cause serious injury – Jury – Jury question as to ‘intent’ following long deliberations – Subsequent directions by trial judge – Whether demeanour and tone of directions such as to ‘overawe’ jury – Whether directions amounted to a ‘comment’ and judge ‘stepped into the arena’ – Appeal dismissed – B v The Queen (1992) 175 CLR 599, R v Halse (1971) 1 SASR 327, R v Mathe [2003] VSCA 165 referred to.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Tehan QC | Slades & Parsons |
| For the Crown | Ms K Argiropoulos | Mr Craig Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
Following a trial in the County Court at Melbourne, the appellant was convicted of one charge of aggravated burglary (Charge 1) and one charge of intentionally causing serious injury (Charge 2). On 29 May 2013, the appellant was granted leave to appeal against the conviction of Charge 2 on the sole ground that:
The trial on charge 2 miscarried by reasons [sic] of the Learned Judge’s Directions, in particular:
a)The Learned Judge’s demeanour and tone when answering a question from the Jury, relating to the intent of the Complainant at the relevant time, overawed the Jury,
b)The manner in which the Learned Judge delivered his direction, and the language used, amounted to a comment on the evidence, and no acknowledgement was made that it was such.
The Crown case at trial
At the time of the offending, the appellant was staying ‘on and off’ at Grant Wratt’s flat in an apartment block in St Kilda. The complainant, Dion William Blanch, was living with his partner in another flat in the same apartment block. The appellant had known the complainant as a friend for ‘a few months, perhaps longer’ and they occasionally drank together. They had not fought before.
On 26 January 2010 the appellant and Wratt spoke to another resident of the flats, Kate Lenne. The appellant told Lenne that, if she heard the complainant making any noise, she was not to call the police. He said that he wanted to kill the complainant.
Later that night, the complainant was alone in his flat watching television when he heard a knock on his door. He opened the door but it was dark and he could not see anyone outside. He asked three times, ‘who is it?’, but received no reply. Then, as he reached towards the light switch, the appellant, who was wearing a balaclava, hit the complainant on the left side of his face, entered his flat and continued to hit him. The complainant backed into his flat but fell to the floor and the appellant kicked and punched him repeatedly while he was on the floor. Then the appellant dragged the complainant by his hair into the bedroom.
The complainant managed to get the appellant into a headlock and realised that the appellant was wearing a balaclava. At that point, the balaclava came off and the complainant recognised the appellant. After that, the appellant got out of the headlock, walked back into the main area of the flat, closed the front door and turned on the light. Then he started playing with the blades of two ornamental swords which were affixed to a plaque on the back of the front door.
The complainant entered the main area of the flat, grabbed a knife from the kitchen, pointed it at the appellant and told him to get out. But the appellant did not get out. Instead, he moved towards the complainant, kicked the knife out of the complainant’s hand and punched him to the ground. After that, the appellant picked up the knife and used it to stab the complainant on the back of his left shoulder, then grabbed the complainant by the hair, and then pulled the complainant’s head forward and started slashing the complainant’s back with the knife. Finally, the appellant left and headed towards Wratt’s flat.
The complainant lay on the floor for a while and then called 000. At approximately 8.55 pm that night, police attended his flat and found him shirtless and apparently intoxicated. He told police that ‘Neil at No. 15’ had stabbed him. Police then moved to Wratt’s flat and knocked on the door. There was no response to their knocks and so they entered through the window. They found the appellant and Wratt inside and they arrested both of them. When police asked the appellant what had occurred and where the knife was, the appellant replied:
Just dropped it when I left. … I think it’s just inside. The cunt should not have attacked me with it. … Just a normal kitchen knife, the prick grabbed from his sink, I think. … It was a black handled, about this big … [indicating about seven inches] … The fucking cunt, the weak ass fucker shouldn’t have pulled it on me. I had to protect myself, so grabbed it off him and stuck him with it. … I cannot believe you’re arresting me. You should be fucking arresting that cunt. I just defended myself.
The complainant was conveyed to the Alfred Hospital and found to be suffering from bruising around his right eye, blood in the right nostril, bruised and swollen lips, a three centimetre laceration to the left upper back, several superficial slash wounds to the upper back, bruising and tenderness of the right ankle (which was possibly fractured), bruising of the left elbow, bruising of the dorsal of the right hand and a fracture of the left index finger.
The appellant made a ‘no comment’ record of interview and did not give evidence at trial.
The impugned directions
After the judge had charged the jury and they had been deliberating for over 10 hours, they returned with two questions which the judge announced to counsel, as follows:
The jury only have two questions, although they put one down in writing and another verbally and I’ll ask the foreman to tell me what that second oral request is so that it can be reflected in the transcript.
The first which is in writing is, ‘Can you clarify intent?’ I don’t know that I can expand on that English word to any extent without going astray. I mean, I can — I think it would cause me to have to go to other definitions which are simply unnecessary. ‘Intent’ means what it says.
The second is a quibble over the check list which pertains to serious injury and they’re wondering about the definition. Doesn’t seem overly relevant to what their task is but they’re asking whether in the check list under serious injury under the paragraph — under the heading which says, ‘Consider’, ‘Injury includes unconsciousness, hysteria, pain’ and the rest. Whether that should read ‘serious injury’. I think they’ve missed the point, I’ll try and clarify what that means.
Following some discussion with counsel as to the way in which the questions should be answered, the judge brought in the jury and answered them thus:
HIS HONOUR: Mr Foreman, I understand you’ve put something in writing in relation to one query which is, ‘Can you clarify intent?’ and the second had to do with something in the check list that I gave you in relation to those. Could you just tell me so that I can have it reflected in the transcript what it is that that query is about.
FOREMAN: The query is about a definition of a serious injury versus injury and whether in your check list it says, ‘Consider: injury includes unconsciousness, hysteria, pain and (indistinct) and serious injury includes a combination’, so does that mean that injury itself, if someone just made you unconscious, that is only an injury, not serious injury?
HIS HONOUR: All right. It's a matter for you to determine whether the injury that Mr Blanche suffered was a serious injury. But I told you before a number of things about this. The starting point is an understanding of what an injury is to begin with. An injury is all of those things and what you would as a matter of ordinary experience call an injury. Whether that injury or a combination of the injuries that Mr Blanche[1] suffered which were clearly injuries according to this definition which is not an all-encompassing definition, it just gives some examples, whether that combination of injuries is serious. At one level that is a matter for you to determine using your common sense and your experience of life, but the law quite clearly says that a combination of injuries such as those precisely suffered by Mr Blanche can be a serious injury, especially, I would have thought in — and [this] is a comment of mine ‑ the cut to the skin with a bladed instrument, with a sharp bladed instrument that cuts and opens the skin for a wound would in all common sense be regarded as a serious injury. (Emphasis added) In any event, the second part to this is that's what the prosecution would put to you, that this is clearly a serious injury that’s been suffered because the law says that a combination of a number of injuries amounts to a serious injury. Their argument to you is you should have no issue finding that this is a serious injury and in the context of this trial the defence was not heard to say to you that you should not consider this a serious injury. There was no contest taken with that issue, and if I may say so, with respect, it seems to me that if you’re arguing about that, you're arguing over a red herring.
FOREMAN: No, we’re not, Your Honour. The question is more around in, for example, in the intention to cause serious injury, you said consider if it is not sufficient for Neil Jose to have only intended to cause injury.
HIS HONOUR: Correct.
FOREMAN: And we want to know what the difference between injury and serious injury is.
HIS HONOUR: Well, I come back to the first point. What is serious injury ‑ those are two separate questions. What is objectively a serious injury is a matter for you to determine. I’ve told you that I need to tell you about that. That is that you start off with a definition of injury, you apply your common sense to the totality of those injuries that he suffered and you ascertain in your own mind if you’re satisfied that what Mr Blanche suffered are serious injuries. So that’s the first step.
So you start off with a definition that I’ve given you there as including all those things and whatever else in your common sense as a matter of ordinary experience you call an injury. What you then, from that you ascertain is whether this amounts to serious injury and I'm sure you can decide that quite easily. Does it amount to serious injury? The issue as to intention and whether Mr Jose intended to cause serious injury is a [different] issue. That has to do with what he intended to do, not with what the result was. He must have intended to cause serious injury when he took the actions with the knife. At one end you may well decide on the facts that that’s exactly what he did, he caused serious injury. The question for you is did he intend to cause that level. So the question around intention, and I can’t define it any more for you, intention is a plain English word that means what it says; did he intend to do that? So you would need to ask yourself and analyse the evidence about whether someone in that situation wielding a knife and then having caused the injuries and having done the actions which caused those injuries would to your mind satisfy you [that he] must have intended to cause serious injury. If the answer to that question is no, he didn’t intend to cause serious injury, he struck the bloke, a bare chested bloke with a sharp knife and cut into him and then slashed [into] him across the back, but we don’t find that he intended to cause serious injury under those circumstances, well then that’s what you decide. If on the other hand you say well no, we find that having done those actions in those circumstances he must have intended to cause serious injury, then that's what you decide. So these are all matters that are open for you to look at the evidence and then ask yourself the question, and again remember this is a process of drawing inferences, of drawing conclusions from established facts, so the exercise must have been well, what do we find are the proved facts? Do we have proven facts to our satisfaction as to what the accused man did? So here they are, one, two, three, four, five. In the circumstances at which we find took place and are true, this is what he did. From these proven facts what can we conclude? What’s a reasonable conclusion to draw from that? Except in this case it’s got to be the only reasonable conclusion. So is the only reasonable conclusion that he must have intended to inflict serious injury when he wielded the knife? Is it the only reasonable conclusion that anyone could draw, that you can draw?
You don’t have to look at the injuries separately and assess whether or not any one of them is sufficiently serious. A person may suffer a serious injury because of the combination of injuries that he suffered and in relation to intent I can’t really give you a more expansive definition of intention except to say that he must have intended to injure Mr Blanche. The element will not be satisfied if he only intended to injure him and that’s it, not seriously injury. For this element of intention to be met, he must have intended to seriously injure him, so if from all the proven facts you can only reasonably conclude that when he hit him holding the knife that he thought to himself well, I'm just going to cause him a bruise, or I’m just going to cause him some injury, then that would not be sufficient. If you think instead that the inference is the only reasonable inference open is that when you wield a knife like that, that you’re going to cause serious injury, then you infer that he intended to cause serious injury. If you are not satisfied that he so intended to cause serious injury, then you ask well, if he didn’t intend to seriously injury the complainant, at the time that he did the acts, was he aware that those acts would probably result in the complainant being seriously injured? That is he knew that Blanche was likely to be seriously injured. That’s recklessness. And that’s the alternative that you have to intention.
So if you are not satisfied having a look at all the proven facts that the only reasonable inference that’s open from those proven facts is that Jose intended to cause serious injury, then in the alternative you would ask well, was he aware that the acts when he did the acts would probably result in Blanche being seriously injured. That is, did he know that Blanche was likely to be seriously injured and he went ahead and did it anyway. That’s what recklessness is. And those two positions are a matter entirely for you. I say again, and this is a comment of mine and not a direction of law, it seems to me that if you’re quibbling over injury, that you’re probably spending time thinking about an issue that isn’t an issue. What’s important is whether you are satisfied from proven facts that when he inflicted serious injury he was intending to so inflict or whether he was reckless.
If that’s still not clear, then have a discussion and formulate a question about where your difficulty lies and I’ll try and help you, but within the confines of intention I can’t use other words in order to define it because it’s the word that describes how thought translates into action. It connects the two things. Ultimately anything that falls short of wanting to achieve a purpose by what you do, it’s in that context that you must answer that question. And of course you would consider all the circumstances that you know were happening on the night that would inform your decision about that. That’s all I intend to say. Thank you.
[1]The reference to Mr Blanche was an obvious mistake, it should have been a reference to the applicant, and it is accepted that the jury would not have been misled by it.
The appellant’s argument
Counsel for the appellant argued that the answers to the jury’s two questions would have so overawed the jury as effectively to take the issue of intent away from them. In particular, in counsel’s submission, it was apparent that the judge, having made the comment in the first emphasised passage set out above that:
the cut to the skin with a bladed instrument, with a sharp bladed instrument that cuts and opens the skin for a wound would in all common sense be regarded as a serious injury.
so juxtaposed the following description of action causing that injury, which appears in the second emphasised passage set out above, that the jury would have been left in no doubt as to the judge’s view of the issue of intent.
Further, as counsel would have it, by then putting the alternative argument in the third emphasised passage set out above, and therein referring by way of example to the possibility of the appellant striking with the knife with intent to cause a bruise, the judge would have conveyed to the jury that his Honour did not consider it open to conclude that it was reasonably possible the appellant lacked the intent to cause serious injury.
Additionally, counsel submitted, the manner and tone in and which the judge gave the answers to the jury were so forceful as in effect to amount to the judge descending into the arena,[2] with the result that, even though the jury may have been told that the decision was for them, they would have been left with the impression that really there was nothing for them to decide or that it would be fatuous or disrespectful if they disagreed with the judge’s position.[3]
[2]R v Mathe [2003] VSCA 165, [56] and [73].
[3]Broadhurst v Reg [1964] AC 441, 464; R v Hulse (1971) 1 SASR 327, 335; B v The Queen (1992) 175 CLR 599, 605.
Finally, counsel contended, the fact that, having deliberated for 10 hours, the jury returned their verdict only some 26 minutes after the judge so answered their two questions, strongly implied that they were heavily influenced by what the judge had said to them.
The Crown’s submissions
The Crown contended to the contrary that there was nothing exceptionable about the way in which the judge answered the two questions. Rather, read in context against the background of the judge’s initial directions — including his Honour’s repeated admonitions to the jury that they were free to accept or reject any comments he might make in relation to the evidence — the judge’s answers to the two questions would have made clear to them what it was about intent which needed to be decided and that it was up to them to make up their own minds about how it should be decided.
In particular, counsel for the Crown emphasised the fact that, when making the comment in the first emphasised passage set out above, the judge expressly told the jury that it was a comment; the answer to the questions was given in two separate parts in a manner which made clear to the jury that the issue of whether the injury was serious injury was separate and distinct from the issue of whether the appellant intended to inflict serious injury; the judge emphasised that both issues were ‘a matter entirely for you [the jury]’ and that ‘What’s important is whether you are satisfied from proven facts that when he inflicted serious injury…’; and the judge stressed that the jury were not to infer an intent to commit serious injury unless ‘it is the only reasonable conclusion that anyone could draw, that you can draw’.
Analysis
I am not persuaded that there is anything exceptionable about the impugned answers. Putting aside for a moment the question of the judge’s demeanour, to which I shall come, I see nothing in the text of the answers which is wrong or likely to have overborne the jury. Perhaps, it might be said that the judge’s invitation to the jury to consider the matter in terms of asking whether someone wielding a knife must have intended to cause the injuries erroneously implied an objective test of intention. But, read in the context of what precedes and follows those words, there can be no doubt that his Honour made the jury to understand that the question was one of subjective intention about which they had to be satisfied beyond reasonable doubt.
Equally, in my view, the suggestion that, by referring to use of a knife with intent to inflict a bruise, the judge foreclosed consideration of whether the Crown had proved intent, overlooks that the judge in the same breath also referred to use of a knife to inflict ‘other injury’. Thus, as his Honour explained when exception was taken, and in any event is and would have been obvious, the reference to causing a bruise was an exemplar of the minimum sort of injury which might conceivably have been intended by striking with a knife and the reference to ‘other injury’ denoted injury of greater gravity along the line from bruise to serious injury falling short of the latter. No doubt the jury would have perceived the judge to imply that, in his view, it was unlikely that anyone who strikes with a knife intends only to bruise. I share his Honour’s perception. But, as his Honour told the jury, in terms which they are bound to have understood, what he said about it was a comment which they were free to ignore. The decision was for them.
As to demeanour, I have watched the video recording of the judge giving the answers to the jury and I allow that his Honour’s manner and tone were perhaps more animated and possibly emphatic than is ordinarily thought to be desirable. It was essentially upon that basis that leave to appeal was granted. But, at the same time, it is not unprecedented or inappropriate for a judge to make at least some use of his or her hands in demonstrating facts established by the evidence; and, as counsel for the Crown submitted, in this case his Honour’s hand movements faithfully accorded to the evidence.
Even if, however, the judge did go too far in terms of the manner and tone of delivery, and I am not persuaded that is so, there has been no substantial miscarriage of justice. Given the indisputable facts of the case — which is to say that the appellant, instead of leaving the complainant’s home when asked to do so, seized the knife from the complainant, grabbed him by the hair, pulled his head forward and down in order to expose his back and then stabbed downwards into his back so as to inflict the three centimetre knife wound shown in photographs 33 and 34,[4] I consider that the jury were bound[5] to find intent to inflict serious injury regardless of the manner and tone in which they were directed.
[4]Exhibit A1 on the appeal.
[5]Baini v R (No 2) [2013] VSCA 157, [8].
Conclusion
In the result, I would dismiss the appeal.
REDLICH JA:
I agree with Nettle JA that neither the content of the impugned direction or its mode of delivery went beyond that which was permissible.
The suggestion that the trial judge had erred in his instructions to the jury so
as to give rise to a miscarriage of justice, makes it necessary to have regard to the manner in which the trial was conducted by the defence.
At trial, the appellant's defence was that his conduct was necessary in self-defence. There was no issue that the injury was serious. Neither was it suggested to the jury that the appellant did not intend to inflict serious injury. It was entirely understandable that the appellant did not put either of these matters in issue before the jury as any suggestion that the appellant's slashing motion with a knife was not intended to cause at least the serious injury which it did, would have been quite unrealistic and unlikely to find favour with the jury. The criticism of the judge's answer to the jury's questions is to be viewed in this context.
No matter what care was used by the trial judge, any comprehensive answer must have carried with it the unmistakable impression that the injury was in fact serious and that in the manner in which it was inflicted, the appellant intended to cause the serious injury. That is because, as a matter of fact, there was but one reasonable conclusion on both issues. That was not to take the issue away from the jury or to leave them with nothing to decide. On the contrary, the jury was repeatedly told that it was for them to decide these issues.
Even if contrary to my view, the trial judge had intruded into the arena by conflating his own comments with instructions, I also agree with my brother Nettle that it did not give rise to a miscarriage of justice as it was, in my view, inevitable that the jury, properly instructed, would have decided both questions adversely to the appellant.
PRIEST JA:
Essentially for the reasons advanced by Nettle JA, I agree that the appeal should be dismissed. I wish, however, to add some observations of my own.
Nettle JA has set out in some detail the directions that the judge gave in
answer to two questions posed by the jury after they had been retired for considerable time.[6] Complaint is made in the ground of appeal that the trial judge’s ‘demeanour and tone when answering a question from the jury, relating to the intent of the [appellant] at the relevant time, overawed the jury’, and that the ‘manner’ in which the judge delivered the direction, and ‘the language used’ amounted to a comment on the evidence which was not identified as such.
[6]At [11] above.
Having viewed (and listened to) the audio-visual recording of the pertinent directions I am not persuaded that either of the complaints embodied in the ground of appeal is made out. It is plain that, at times, there was inflection in the judge’s voice. The instructions were not delivered in a monotone. As a matter of impression, however, there was nothing inappropriate in the judge’s tone. Indeed, looked at objectively, it strikes me that any alteration in pitch or tone was an oral device designed to retain the jury’s attention, and, as an aid to the jury’s comprehension, to lend emphasis to particular parts of the directions.
It is also fair to observe that, in one part of the further directions, the judge was moderately physically animated. Thus, when directing the jury that, ‘If the answer to that question is no, he didn’t intend to cause serious injury, he struck the bloke, a bare chested bloke with a sharp knife and cut into him and then slashed into him across the back, but we don’t find that he intended to cause serious injury under those circumstances, well then that’s what you decide’, the judge drew his hand across the area of his throat as if holding an imaginary knife, and made what appear to be stabbing motions. Viewing the judge’s physical actions objectively, however, taken in combination with the content and manner of delivery of the oral directions, it cannot be concluded that the judge unfairly was making a comment or conveying his own view of the facts (acknowledged or unacknowledged). It might have been better for the judge not to have been so manually expressive — and in another case in another context extravagant gestures by a judge might be productive of a miscarriage of justice — but I doubt that in the circumstances of this case the jury would have interpreted the judge’s hand movements (alone or in combination with what fell from him orally) as conveying the judge’s view on any matter of fact. It is part of ordinary human experience that people, to a greater or lesser extent depending on personality, culture and mood, gesticulate when speaking. A modern jury, comprised of sensible people with a modicum of firmness of character, certainly would not have been overawed by anything the judge said or did. Further, I note that when delivering his charge to the jury, the judge directed them that they were free to reject any comments that he made ‘about the facts’. There is no reason to think that the jury would not have adhered to that instruction.
For these reasons, and those given by Nettle JA, there is no substance in the ground of appeal.
I should observe, however, that in my opinion one aspect of the directions given by the judge plainly was wrong. The judge said:[7]
For this element of intention to be met, he must have intended to seriously injure him, so if from all the proven facts you can only reasonably conclude that when he hit him holding the knife that he thought to himself well, I’m just going to cause a bruise, or I’m just going to cause him some injury, that would not be sufficient. If you think instead that the inference is the only reasonable inference open that when you wield a knife like that, that you’re going to cause serious injury, then you infer that he intended to cause serious injury.
[7]Emphasis added.
The emphasised portion of the directions in effect instructed the jury that the intention to cause serious injury was a foregone conclusion once they were satisfied that the appellant had wielded the knife in the manner alleged. That was clearly in error. It was not far removed from telling the jury that a person is presumed to intend the natural consequences of his or her acts.[8] The direction was, however, surrounded by a plethora of correct instructions on the requisite intention, and would have been subsumed within them. In any event, I note that the erroneous direction was not the subject of complaint at trial, and was not the subject of any
complaint on the hearing of this appeal until it was drawn to counsel’s attention.
[8]R v Schonewille [1998] 2 VR 625; Smyth v R (1957) 98 CLR 163, 166; Stapleton v R (1952) 86 CLR 358, 365; Vallance v R (1961) 108 CLR 56, 82–3; Parker v R (1963) 111 CLR 610, 648–9; Snow v R [1962] Tas SR 271, 286–8; R v Hubert (1993) 67 A Crim R 181, 198–9.
Further, I am of the opinion that even had the complaints embodied in the ground of appeal been made out, or had distinct reliance been placed on the erroneous direction I have adverted to, nonetheless there could not have been said to have been a substantial miscarriage of justice.[9] Once it was accepted that the appellant used the knife in the manner alleged — by pulling the complainant’s head forward by the hair while slashing at his back with a knife (any claim of self-defence having been rejected) — conviction on the charge of intentionally causing serious injury was, in my view, inevitable.[10]
[9]Criminal Procedure Act 2009, s 276(1)(b) and (c).
[10]Baini v The Queen (2012) 246 CLR 469, 480–1 [28]–[32]; Andelman v The Queen (2013) 227 A Crim R 81, 98–100 [85].
Finally, I note that the judge more than once in the relevant directions told the jury he could give them no further or ‘more expansive’ definition of ‘intention’, it being ‘a plain English word that means what it says’. In my opinion, where it is appropriate to give to the jury a further explanation of the meaning of intention, the jury should be told that intention means more than desire or mere contemplation, but connotes a decision to bring about a particular result.[11] Nothing in this case, however, turns on the judge’s failure to give a more expansive definition of intention.
[11]Hyam v Director of Public Prosecutions [1975] AC 55, 74 (Lord Hailsham of St Marylebone); He Kaw Teh v The Queen (1985) 157 CLR 523, 569 (Brennan J).
NETTLE JA:
The order of the Court is that the appeal is dismissed.
- - -
0
8
0