Bellchambers v R - [2008] NSWCCA 235

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DENNIS ARTHUR BELLCHAMBERS v REGINA [2008] NSWCCA 235

FILE NUMBER(S):
4637/2007

HEARING DATE(S):
8 September 2008

JUDGMENT DATE:
14 October 2008

PARTIES:
Dennis Arthur Bellchambers
Regina

JUDGMENT OF:
Allsop P Johnson J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0737

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
23 November 2007

COUNSEL:
Appellant - Mr S Odgers SC
Crown - Mr P G Ingram

SOLICITORS:
Appellant - Ziman and Ziman Solicitors
Crown - S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW – grievous bodily harm – intent to cause grievous bodily harm – Crimes Act 1900(NSW) ss 33, 428A-428I – whether inference can be drawn from seriousness of wounds
CRIMINAL LIABILITY AND CAPACITY – intoxication – direction as to intoxication – whether misdirection as to intoxication – Criminal Appeal Act 1912 (NSW), s 6(1) – Criminal Appeal Rules, r 4
INTOXICATION – capacity to form specific intent.

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules

CATEGORY:
Principal judgment

CASES CITED:
Coleman (1990) 19 NSWLR 467; 47 A Crim R 306
Spencer (2003) 137 A Crim R 444
Tripodina (1988) 35 A Crim R 183
Viro v The Queen (1978) 141 CLR 88

TEXTS CITED:

DECISION:
1. Grant leave to rely on misdirection as to intoxication.
2. Allow the appeal.
3. Quash the conviction of the appellant.
4. Order that there be a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/4637
ALLSOP P
JOHNSON J
PRICE J
14 October 2008

Dennis Arthur BELLCHAMBERS v R

JUDGMENT

ALLSOP P: On 13, 14, 15, 16, 20, 21, 22 and 23 August 2007 the appellant, Dennis Arthur Bellchambers, stood his trial on a charge that on 25 May 2005 at Dunbogan he maliciously inflicted grievous bodily harm upon Ms Julie Ann Barry with intent to do grievous bodily harm contrary to the Crimes Act 1900 (NSW), s33. The jury returned a verdict of guilty. The trial judge sentenced the appellant to a term of imprisonment consisting of a non-parole period of 10 years commencing on 23 November 2007 and a balance of term of 3 years commencing on 23 November 2017.
The only ground of appeal argued was that the trial judge erred in his direction as to intoxication. For the reasons below I am of the view that the trial judge did err in his direction in this respect. Given that there was no complaint made at the trial by counsel for the appellant about the direction given a question of leave under the Criminal Appeal Rules, rule 4 arises. This, in turn, raises the operation of the proviso in the Criminal Appeal Act 1912 (NSW), s6(1).
Some background to the events of 25 May 2005 is necessary. The following is taken from the summary of trial prepared by the Crown and to which there was no demur by the appellant. The appellant and Ms Barry had begun some form of relationship in 2003. Both were heavy drinkers. The appellant drank scotch. Ms Barry’s drinking increased after the relationship with the appellant began. From Christmas 2003 it was noticed that Ms Barry had bruises and a black eye. Ms Barry’s daughter and son noticed bruises and wounds on their mother from time to time from 2003 to 2005. In early 2005 Ms Barry broke her collar bone. In April 2005 Ms Barry had a black eye. On one occasion she had a gash in her arm. On another a swollen face.
The appellant and Ms Barry would sometimes go to the appellant’s holiday home at Dunbogan (where the assault in question was said to have taken place). The neighbours would often hear the sound of arguments and fighting when the appellant and Ms Barry were at the Dunbogan house.
In mid-May 2005, the appellant and Ms Barry went to the Dunbogan house for a fortnight. Ms Barry would regularly go to the Dunbogan General Store to purchase alcohol, including scotch. On 22 May 2005 Ms Barry was seen by the neighbours with a black eye and a swollen face. She was seen at the general store on 23 and 24 May with a bruised and swollen eye. On 24 May, the neighbour observed that Ms Barry had two black eyes and a bruised upper right cheek. One of the neighbours had seen the appellant and Ms Barry arguing that afternoon. On the same day, 24 May, Ms Barry was seen at a liquor shop with a closed, bruised and swollen eye. She also had a bruised chest. Later in the afternoon she was seen at the local supermarket at 5pm and an employee there noticed that she had one or two black eyes and a bruised and swollen left jaw.
The relevant events of 25 May 2005 (the day of the alleged assault forming the basis of the indictment) began at about 1pm. The neighbour came home and saw Ms Barry on the verandah. She looked drunk and agitated. Her face was bruised. At about 1.40pm Ms Barry’s daughter rang the appellant’s mobile phone from Darwin. The appellant said:
I’m sorry Sharni, she was going fucking nuts, I went whack, whack and I’ve given her two black eyes. It’s all I could do to shut her up.
He also said that Ms Barry was smashing up the house. When the appellant put Ms Barry on the phone, she was crying and somewhat incoherent. Ms Barry’s daughter then arranged for Ms Barry’s brother and sister-in-law (Mr and Mrs Howlett) to pick up Ms Barry when Mr Howlett returned from work.
Later in the afternoon, at around 3pm, a visitor to another neighbour had a conversation with Ms Barry who said that the appellant had hit her. That other neighbour later heard the appellant and Ms Barry fighting.
At about 4.30pm one of Ms Barry’s daughters rang the appellant and asked what was going on and what he was doing hitting her mother. The appellant said:
Everything’s fine, it’s okay, you know I’ve got a broken hand, I didn’t hit her that hard.
There was evidence that the appellant had injured his hand in the construction of a wooden deck at the house. Ms Barry’s daughter said that the appellant sounded affected by alcohol. Ms Barry also spoke to her daughter. The daughter said that he mother “seemed a little bit pissed”.
At 5.15pm one of the neighbours returned home and did not hear any fighting.
At 9.30pm Mr and Mrs Howlett arrived to collect Ms Barry. They knocked on the door for some minutes before the appellant answered. Mrs Howlett saw blood on the appellant’s shirt (on the front and the right arm). He came to the door holding a drink and a cigarette. His right hand was swollen. He said:
I’m glad you’re here, I’ve hit Julie. When you see her you’ll be shocked, I’m sorry I had to do it.
Mr and Mrs Howlett went to the main bedroom where they found Ms Barry lying on her back on the floor, close to the doorway. She was only wearing a t-shirt. Her face was swollen, bruised and bloody. Her eyes were swollen shut. The t-shirt and her legs had blood on them. Her breathing was wheezy and laboured. There was a spray of blood on the wall, blood on the mattress and the pillows. The fitted sheet was coated in blood and the doona was soaked in blood. Blood stained the carpet near where Ms Barry was lying.
Mrs Howlett wet a face washer to wipe some of the blood off Ms Barry. A lot of blood on her face was dry and caked. There was fresh blood near her right ear and a lot of dark blood in her mouth. There was dried blood on her upper chest, legs, hands and elbows. There were bruises over her whole body.
An exchange took place between one of the neighbours and the appellant. The neighbour said: “Mate, what the hell have you done?” The appellant replied:
I snapped. She drove me crazy and I snapped.
Mr Howlett remembered the appellant saying in this conversation:
Julie hit me earlier today. … I’ve never hit another woman ever. It’s something about Julie that triggers anger in me … I’m sorry, but I had to do it … I just listened and listened for half an hour [but] hitting her was the only way I could shut her up.
A conversation took place between Mrs Howlett and the appellant in which he said:
I don’t know what happened. I couldn’t have done that, look at my hand, everything was all right and then she just went off.
The ambulance officers arrived. The appellant said to one of them that “she went crazy” and that he hit her at about 5pm. He said he hit her with his fists.
There were a number of empty scotch bottles lying around the house. No blood was noticed on any of them.
The police arrived. Det Snr Constable Buining was a forensic crime scene officer. Amongst other things he noticed was the blood splatter on the wall which appeared to have been of medium velocity and likely to have come from a wound caused by a blunt instrument.
A blood alcohol reading of Ms Barry’s blood was taken at 1.20am on 26 May at Port Macquarie Base Hospital. It gave a reading of 0.232g of alcohol per 100 ml of blood. A previous blood sample taken at 12.15am gave a reading of 0.323g per 100 ml. The variation could have been caused by the intravenous fluids or could have simply been sample variation. Dr Moynham gave evidence that if someone stopped drinking at 5pm these readings would have been equivalent to a reading at 5pm of about 0.53, a level of alcohol that might be fatal except to someone with a very high tolerance.
A neurosurgeon at Nepean Hospital (to where Ms Barry was transferred) gave evidence as to her injuries. Ms Barry had fractured ribs, multiple bruises (some recent, some not) and lacerations, a left collarbone fracture, a partially collapsed lung. There was also a superior sagittal sinus tear which required a localised and fairly severe blunt injury to the top of the head to be caused. It was unlikely to have occurred by a blow by a fist or through falling. The boggy mass of blood at the base of her skull would have taken a few hours to collect.

On the morning of 26 May 2005 the appellant gave his version of what happened in an interview to police that was recorded and placed into evidence. I do not propose to set out verbatim all that the appellant said. The following is a sample of his explanation.
She was fine all the time up until a couple of days ago ... all of a sudden she just started goin’ crazy … she went over town to get some, to the co-op to get some fish for tea and everything was fine before she went and she come back and I was just sittin’ on the lounge and for some reason or other she just started beltin’ me and anyway I sort of, I didn’t hit her, I sat there and I talked to her for probably, I probably talked to her maybe three-quarters of an hour trying to calm her down and she was just going off and off and off and off … So I went to go to bed, next thing she’s ripped all the bloody, the bedclothes off and she’s into me again, beltin’ me. And I just couldn’t take it any longer. A lot of it is, like I did her, I’ll admit it, I’ll admit it, but she damaged herself as well in a tantrum.
…
I only hit her twice and, ‘cause I just couldn’t handle it any longer and I couldn’t quiet her down, and I can’t believe the damage that’s got done from that bit that I hit her, ‘cause I only hit her twice.
…
I just hit her in the right eye.
…
And the next thing she just about crawled underneath the bed and she was just sobbin’ … I ended up goin’ to sleep … her daughter rang up … I said, look, your mother’s gone off, she’s gone crazy, and I said I didn’t want to do it, but I said, I have hit her.
…
Yeah, just with a fist, yeah, I broke it.
…
But all the damage to her, I didn’t do that. I couldn’t believe it when I seen her face, of what it was, I couldn’t believe it, I honestly could not believe it.
…
She was bloody runnin’ into the walls, the next thing she’s belted her head, that’s part of where she hit herself too. When she was goin’ off she got out of bed and belted herself on the, you know the wooden tables, them bedside tables.
…
I really didn’t hit her that hard. She’s done the damage to herself, not all of it, but I would have done some, obviously, but she’s done a lot of the damage to herself.
…
I had about six drinks from 3 o’clock to 5 o’clock. I was drinkin’ scotch and Coke.
…
It would be a full nip or more.
(When asked whether that drinking affected him in any way the appellant answered “No”)
…
Before I went to sleep she had a black eye, but the rest of the injury she didn’t have.
(When asked on a number of occasions by the police at the interview whether he was affected by alcohol he said “No”.)
…
I think she was just drunk, drunk and fell down the stairs, because she’s one of those people that can’t handle grog.
(On another occasion he said that she had struggled and hit her head on the little bedside table.)
The appellant did not give evidence. The electronic recorded interview and video was tendered.
The appellant’s case was that although he had hit Ms Barry twice that afternoon he did not cause the injury to her superior sagittal sinus which must have been caused by herself either in a tantrum or accidentally when affected by alcohol such as falling down the stairs or hitting her head on the wall or on the bedside table.
From the above factual background, the following can be stated, with some confidence, as matters apparent to the jury. First, the relationship between the appellant and Ms Barry was one characterised by the mutual consumption of significant amounts of alcohol and by violence. Secondly, Ms Barry suffered or was likely to have suffered a number of her injuries including the black eyes and swollen jaw before 25 May. In that regard, the stark photographs of her facial and bodily injuries that were in evidence do not necessarily reveal the damage caused to her on 25 May, being the day to which the indictment was directed. This explains why the Crown case was directed to the wound on the top of the head as the very serious injury to found the element of grievous bodily harm in the charge. Thirdly, despite the appellant’s denials to the police that he was intoxicated, the evidence of the drinking patterns of both him and Ms Barry, of the purchases of alcohol, of the observation of their affected state and the extremely high blood alcohol level of Ms Barry all point to the likelihood or at least real possibility of both the appellant and Ms Barry being significantly intoxicated during the afternoon and early evening of 25 May.
The direction
The trial judge in his summing up made clear the matters that were required to be proved beyond reasonable doubt. He also referred to the approach of the Crown, as follows:
The Crown argues, and I will come to this in a little while, that one of the things that you can take into account in determining what the intention of the accused indeed was is what the outcome was. If I strike someone with a feather, you would not infer that I have any intention of bringing about some real harm to them. If on the other hand it is not a feather, it is a machete that I use, then you might infer from that there is an intention to cause some really significant damage to that person; and from the result you could see, so the argument runs, that must have been the intention because to believe otherwise, to not have the intention would just be contrary to your own human experience. If you deal somebody a very serious blow with a very serious object, then commonsense will tell you you must have meant to do them some real harm. That is part of the way in which the Crown argues its case.
But in any event, those are the elements which the Crown has to establish beyond reasonable doubt: that it was the accused who inflicted this serious injury, namely brain damage as the result of a blow to the head, the top of the head, that he did that deliberately, and that at the time he did it he had the intention that she should suffer some really serious physical harm, not necessarily the exact harm which in fact transpired.
His Honour then proceeded to explain the statutory alternative and the absence of the need to prove the specific intent of intention to cause very serious physical harm:
It is convenient perhaps to deal now with the alternative, because as the Crown said to you in her address, and indeed as Mr Flynn dealt with in his address as well, if you are satisfied beyond reasonable doubt that the first and second of those elements were established, namely that it was the accused who inflicted this serious physical harm on Ms Barry and that he did that deliberately, but you were not for some reason satisfied beyond reasonable doubt that he had the intention of doing her real damage at the time that he inflicted the harm, then you would acquit him of the charge which it has brought, but you would then say not guilty as charged but guilty of maliciously inflicting grievous bodily harm; that is, perpetrated the harm deliberately but doing it without the intention to bring about such a serious, or indeed any really serious result.
After discussion with counsel, the trial judge directed the jury on intoxication. The Crown had at first opposed such a direction upon the basis of what the appellant had said in his record of interview. The Crown Prosecutor, on reflection (and perfectly correctly) agreed that there should be such a direction. At the end of the afternoon of 22 August, the trial judge gave the following direction on intoxication:
There is one other thing that I should speak to you about this afternoon and that is the concept of intoxication. I am reminded of it by virtue of the fact that I have just been dealing with the very high blood alcohol content registered by Ms Barry. Now this charge which the Crown has brought is called in law a crime of specific intent and that is because it contains, as I have explained to you, the third element that he did this, caused a really serious harm, deliberately and that he intended to do her some really serious harm. So that is the specific intent.
Now if a person is intoxicated to the extent that they cannot form an intention, they are incapable of forming that sort of intention then they cannot be guilty of the crime which has the specific intent attached to it. What is the evidence of his level of intoxication and does it cause you any reasonable doubt about his ability to form the intention in this case? Well the evidence in his version to the police is that he poured himself five or six Scotches. That they were generous, bigger than a nip, although I do not think there is any further elucidation of just how big these drinks individually were.
So we know that he had taken, indeed the history of this pair over the preceding few weeks would tell you that each had something to drink on this day, so we know that he had had something to drink. How intoxicated was he? Well there is very little evidence of that other than his description of what he had taken. The police asked on a number of occasions and you will look at the recorded interview with this in mind as well as a number of other things. They asked him whether he was affected at various stages, whether he was affected when he was talking to them, whether he had been affected by alcohol in times earlier during the day and evening. And he said no. But you have got the way he looks to guide you as well.
It is a matter for you but in order to be incapable of forming the necessary intention you have got to be intoxicated to a pretty significant level but nonetheless I need to tell you that as a matter of law that if you were not satisfied that he had the capacity to form the necessary intent because of a level of intoxication based upon that evidence then you could not find him guilty because he did not have the ability to form the intention, consequently did not have the intention.
The direction was as to capacity to form the specific intent. There was no direction as to the relevance or possible relevance of intoxication to whether the appellant did (as opposed to could) form the relevant specific intent.
On appeal the Crown accepted this as an error. The judge, however, returned to the topic next morning. What he said the next morning cured, so the Crown argued, any defect of the previous afternoon. The trial judge said the following to the jury:
You will remember that I said in summary that here the Crown has charged an offence of specific intent, that is, that the accused maliciously deliberately inflicted grievous bodily harm with the intention at the time of doing that of causing grievous bodily harm.
Because the Crown needs to establish beyond reasonable doubt that the accused had a particular mind set and intention, it is relevant to consider whether he had the capacity to form such an intention, and if somebody is so intoxicated they lose the capacity to form an intention, then of course they can’t have the intention.
So the Crown needs to negative the idea that the accused was so intoxicated that he just wasn’t able to form an intention. The Crown seeks to do that by pointing to the paucity of evidence about just how intoxicated he was. He himself says he poured five or six generous measures of scotch. I do not recall there being any detailed evidence at least over what period of time the number of drinks was consumed. In any event, the Crown says he repeats on a number of occasions during the course of his recorded interview the fact that he was not, in his own view at least, affected.
So the Crown says he certainly had the capacity to form the intention. It remains, of course, a question of fact for you to determine whether the Crown has proven beyond reasonable doubt that he had the intention, and the Crown seeks to do that by a number of other methods which I rehearsed for you yesterday – the nature of the injuries, the circumstance, and so on.
That, of course, relates to an offence of specific intent. You will remember I was instructing you yesterday that there is available to you an alternative; that is, if you are satisfied of two things, namely that the accused inflicted grievous bodily harm and that he did this deliberately, non-accidentally, but you were not satisfied that he had the requisite intent that he intended that she should suffer some really serious harm at the time that he had attacked her, if I may put it in that short form, then you would come to the alternative of simply convicting him of assault inflicting grievous bodily harm without the intention.
Of course, if you drop the idea of the specific intention, of course the concept of intoxication by alcohol or any other means disappear. It has no longer any relevance because it is no longer an offence of specific intent. I hope I have not made that too obscure, and it leads me to put it this way to you; that when you return, assuming you have agreed upon the verdict, you will be asked this question by my associate.

On appeal the Crown relied, in particular, upon the part of the direction emphasised in the above quotation.
In my view not only was the direction on intoxication given on the afternoon of 22 August flawed, but it was not cured by what was said on 23 August.
It was common ground on appeal (as it was at the trial) that intoxication was irrelevant, except as to the specific intent, that is, the intention to cause grievous bodily harm. Part 11A of the Crimes Act (ss428A-428I) deals with intoxication. Section 428B deals with specific intent, as follows:
428BOffences of specific intent to which Part applies
(1)An offence of specific intent is an offence of which an intention to cause a specific result is an element.
(2)Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent.

Section 33 is one of the offences in the table under s428B.

Section 428C deals with intoxication in relation to offences of specific intent. It states:
428CIntoxication in relation to offences of specific intent
(1)Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.
(2)However, such evidence cannot be taken into account if the person:
(a) had resolved before becoming intoxicated to do the relevant conduct, or
(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

In Viro v The Queen (1978) 141 CLR 88 at 112, Gibbs J (as his Honour then was) said:
That in my respectful opinion is good sense as well as good law, and it applies equally to intoxication caused by drugs.
In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.
The statement of principle, above, destroys the Crown’s argument on appeal that the further direction on 23 August cured the direction based on capacity to form the intention the afternoon before. As Gibbs J said, it is not enough to say that the Crown must prove intent, the jury should be told that the fact (if it be the case) that the accused was intoxicated may be regarded for the purpose of deciding whether the specific intent existed.
In Coleman (1990) 19 NSWLR 467; 47 A Crim R 306 at 323 and 325 Hunt J (with whom Finlay and Allen JJ agreed) reiterated what Gibbs J had said in Viro and made clear that the judge will likely fall into error by dealing with capacity to form intention, rather that the fact of intention. At 19 NSWLR 488; and 47 A Crim R 325 in a passage redolent of the circumstances here Hunt J said:
In the present case, it is clear from the various passages from the summing up which I have quoted or to which I have referred that the judge did on some occasions state that the issue which the jury had to decide was whether the appellant was capable of forming the various states of mind which were relevant to this charge. On other occasions the issue was correctly stated as being whether the appellant had in fact formed them. It may be that on the former occasions the judge was intending only to deal with the factual issues which arose in the case, but this unfortunately was not made clear and the jury may well have understood (or perhaps misunderstood) these directions as requiring them to decide simply whether the Crown had removed from their minds the reasonable possibility that, by reason of his intoxication, the appellant was incapable of forming the relevant states of mind. That would have been an erroneous direction.
Another case of some relevance here is Spencer (2003) 137 A Crim R 444. The Crown at the trial here and the judge in his summing up told the jury that they could be assisted in finding the specific intent by the seriousness of the wounds: see the extract of the summing up at [24] above. In Spencer at 451, Mildren J (with whom Bailey J and Priestley AJ agreed) said:
In the present case, there was evidence critical to the appellant's defence that the appellant was intoxicated and it would have been necessary for the jury to consider whether, in the circumstances, an inference could be drawn from the nature of the wound which caused the deceased's death, that the prosecution had proven an intent to kill or cause grievous harm, particularly as that wound was to the area of the thigh which I have previously described and required only mild force. In those circumstances, the learned trial judge was required not merely to draw to the jury's attention the evidence which bore on the extent of the appellant's intoxication, but to instruct the jury that an inference of an intent to kill or to cause grievous harm might not be as readily drawn from the nature of the injury or injuries inflicted if he were intoxicated as might be the case if he were sober and that the critical question was whether by reason of his intoxication, he might have inflicted that fatal wound without intending to kill or cause grievous harm: see R v Wingfield (1994) 156 LSJS 14 at 18; R v Williams (1999) 205 LSJS 472 at 472-473.
There was no discussion or warning by the trial judge that care was required in drawing inferences from the wound or wounds inflicted to conclude the existence of the specific intent if the jury were satisfied the accused was intoxicated.
Ultimately in argument on appeal, the Crown came close to accepting that the flaw in the direction given in the afternoon of 22 August was not cured the following morning. In my view there were two, arguably three errors. First, the clear direction as to capacity misled the jury into a false issue – the direction should have been as to whether the specific intent was held, not whether there was capacity to form it. Secondly, that was not overcome by reiterating that the Crown must prove intention. It was necessary to draw together the possibility of a lack of specific intent and intoxication. Thirdly, in particular, in the context of these errors, it was necessary to say something more about the care with which one might approach any inference about specific intent from the seriousness or nature of the injuries inflicted.
There was therefore, in my view, a misdirection. There being a misdirection it is necessary to consider whether leave should be given to permit the appellant to rely upon this matter. Leave should be given if the irregularity was of such a nature that the proviso to s6(1) of the Criminal Appeal Act would not otherwise have been applied: Tripodina (1988) 35 A Crim R 183 at 191-195 and Coleman at 325-326. The question of rule 4 of the Criminal Appeal Rules therefore collapses in one sense into the question whether or not the proviso applies. In argument the Crown accepted this as the essential question in the appeal. The Crown submitted that when one had regard to all the evidence a verdict of guilty was inevitable. Paragraph 39 of the Crown’s written submissions put the matter clearly as follows:
39. Such a verdict would be inevitable having regard to all the relevant circumstances including:
a. the repeated and very clear concessions by the Appellant that he had assaulted the victim in the bedroom at and about the relevant time;
b. the location of the victim on the bed in that bedroom and with a pool of blood upon the mattress;
c. (despite the continued denials by the Appellant that he had inflicted the relevant injury) the absence of any other possible means or agency by which that injury could have been inflicted upon the victim by the Appellant;
d. the repeated and very clear assertions by the Appellant to the Police that he had not been intoxicated at the time of the assault that he was admitting;
e. the repeated and very clear concessions by the Appellant that he had lost control at the time of the assault upon the victim that he was admitting;
f. the tolerance of the Appellant for alcohol was obviously great and accordingly the six drinks he described having consumed could not have deprived him of the capacity to form the requisite specific intent;
g. the inevitable inference that by whatever means he inflicted the injury, the Appellant must have done so using an object of some type, such as a liquor bottle, and with considerable force sufficient to leave the blood splatter pattern on the wall through the bed-head;
h. the further inevitable inference that, despite any possible effects of alcohol intoxication, the Appellant must have been acting with the specific intent to inflict some really serious harm upon the victim when he caused the relevant injury to the victim.
Whilst there is considerable force in these submissions, ultimately, I am not persuaded that the issue of specific intent was not a legitimate one for the jury. It can be accepted that the injury to the top of the skull of Ms Barry was such that it would in all likelihood have to have been inflicted by a blunt object and in all probability one wielded by the appellant. However, if the jury were satisfied that the appellant was significantly intoxicated and if it was satisfied (as appears to have been the case) that Ms Barry was also significantly intoxicated the possibility of the wound being inflicted in a general drunken melee by a bottle or some other object in circumstances where the appellant did not specifically intend to cause the grievous bodily harm is a possibility. It was, legitimately, a question for the jury and not one which would be inevitably answered one way. This can be contrasted with the facts in Coleman where once the jury had decided as it appears to have that the accused committed the act (as the jury apparently decided the appellant did here) there could be no doubt at all that it was an act done with the specific intent. That conclusion arose from the nature and character of the act in question, being the insertion of a beer bottle with a cap still on it in the anus of the victim prior to sexual intercourse.
Here, although the medical evidence was such as to support the conclusion that the wound to the head was caused by a heavy blow which could well have been accompanied by the specific intent to cause grievous bodily harm, it was a wound that could also conceivably have occurred by the application of force in a confused drunken melee. That was, of course, not the case of the appellant in his record of interview. Nevertheless, it was a conclusion that was open to the jury in the facts that were before them being facts which were less than precise, and that were confused about both chronology and the state of intoxication of both parties, the victim, Ms Barry, and the appellant.
In all these circumstances in my opinion the proviso to s6(1) of the Criminal Appeal Act does not apply and there being a misdirection of a nature which has a caused a miscarriage of justice I would grant leave to rely upon the ground of misdirection as to intoxication, allow the appeal, quash the conviction of the appellant and order that there be a new trial.
JOHNSON J: I agree.
PRICE J: I agree.

LAST UPDATED:
14 October 2010