Edwards v Tasmania - [2016] TASCCA 7

[2016] TASCCA 7

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Edwards v Tasmania [2016] TASCCA 7

PARTIES:  EDWARDS, Joseph Andrew
  v
  STATE OF TASMANIA

FILE NO:  CCA 267/2015
DELIVERED ON:  3 June 2016
DELIVERED AT:  Hobart
HEARING DATE:  12 April 2016
JUDGMENT OF:  Blow CJ, Estcourt and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal dismissed – Taking part in an affray and causing grievous bodily harm – Attack commenced without participation by appellant – Probative force of evidence of subsequent involvement.

M v The Queen (1994) 181 CLR 487; Smart v Tasmania [2013] TASCCA 15, referred to.
Aust Dig Criminal Law [3476]

REPRESENTATION:

Counsel:
             Applicant:  R Meredith
             Respondent:  J Shapiro
Solicitors:
             Applicant:  Wallace Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 7
Number of paragraphs: 82

Serial No 7/2016
File No CCA 267/2015

JOSEPH ANDREW EDWARDS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
ESTCOURT J
PEARCE J
3 June 2016

Orders of the Court

Leave to appeal granted.

Appeal dismissed.

Serial No 7/2016
File No CCA 267/2015

JOSEPH ANDREW EDWARDS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
3 June 2016

The applicant, Joseph Edwards, is seeking leave to appeal against convictions on a charge of causing grievous bodily harm and a charge of taking part in an affray. He was found guilty by a jury. Both charges related to fighting that occurred in Morrison Street, Hobart in the early hours of the morning of 22 April 2012. The jury found him not guilty on a charge of unlawfully assaulting a man named Hall. Two other men, Mr Ong and Mr McWilliams, were jointly charged with the applicant, and also found guilty by the jury, on the charges of causing grievous bodily harm and taking part in an affray. The applicant contends that the guilty verdicts relating to him were unreasonable and cannot be supported by the evidence.
The evidence and the applicable legal principles have been discussed in considerable detail by Estcourt J. I have had the advantage of reading his Honour's reasons in draft form. I agree with him that leave to appeal should be granted but that the appeal should be dismissed. However my reasoning differs from his in some respects.
The applicant had three companions at the time of the fighting – Mr Ong, Mr McWilliams, and a youth whom I will refer to as TC. The evidence established that there were two separate fights. In one of them, the applicant fought Mr Hall. The assault charge related to that fight. The applicant's acquittal on that charge indicates that the jury were not satisfied beyond reasonable doubt that his use of force against Mr Hall was unlawful. The jury may have considered his use of force to have been lawful, or possibly lawful, on two bases: (1) that he used force lawfully in self-defence; or (2) that he used force lawfully in the course of consensual fighting. For the reasons stated by Estcourt J, I consider that, because of his acquittal on the assault charge, the jury could not have concluded that he took part in an affray by using force against Mr Hall.
Mr Ong, Mr McWilliams and the applicant were jointly charged with causing grievous bodily harm to a Mr Bannister by "striking him and continuing to strike him while he was on the ground".
Mr Bannister was involved in a second and separate fight, at some distance from the fight that involved Mr Hall. The evidence established that Mr Ong and Mr McWilliams were with Mr Bannister when that second fight started. A critical question for the jury was whether the applicant subsequently became involved in that second fight in any way. The evidence that tended to suggest that he was involved in that second fight came from a recorded police interview of TC, a statutory declaration by a Mr Chadwick, and a Mr Harrex.
A recording of TC's interview was tendered pursuant to s 38 of the Evidence Act 2001. He told the police the following things:
·     He and the applicant went over to the second fight.
·     The applicant got involved in it.
·     The applicant did not do much at all. Most of the damage was done already by Mr McWilliams.
·     Mr Ong kicked the man in the head. It was like kicking a soccer ball. He saw Mr Ong kick him just under the jaw. It was reasonably hard.
·     The applicant "was about to get in it and I just sort of grabbed him and he's sort of trying to get in …".
·     "All I was trying to do was just get him [the applicant] out of the scuffle."
·     "… he was just trying to get in on it and … I'm just trying to grab him from getting in there."
Mr Chadwick gave evidence that he had signed a statutory declaration prepared by a police officer shortly after the events in question. In that statutory declaration he referred to "three males dressed in Rambo outfits". The evidence established that there were two people present wearing "Rambo" style camouflage costumes, not three. Those two were the applicant and TC.
Mr Chadwick's statutory declaration included the following:
"I can recall the males dressed in Rambo outfits punching one of the males who helped the female. The male was around 30 with dark hair and a goatee beard.
This dark haired male was knocked to the ground by a combination of punches from the three males dressed in Rambo outfits. He layed [sic] on the ground and was utterly defenceless.
The same three males were kicking and punching the male as he lay on the ground. It lasted for around 30 seconds to a minute and was quite brutal. They seemed also to be stomping on his chest area."
Mr Harrex gave evidence that he and a young woman were involved in a confrontation with some men dressed in camouflage outfits, and that a man – apparently Mr Bannister – intervened, whereupon the group in camouflage outfits went away. His evidence-in-chief proceeded as follows:
"Did you look back at all to see what was happening to this person who had intervened?..........Yes, I did look back and when I did this guy that come from Customs House was laying kind of on the street as the men were kicking and punching him.
How many were involved in the kicking and punching?.........I think there were four to five.
Again are you able to tell us what they were – how they were dressed?.........No, only the three in the camouflage.
So were the three in camouflage were they kicking and punching?...........Not too sure now.
All right. Do you recall any specific person kicking or punching the person that was on the ground?.............From memory I can't, no."
That was the extent of the evidence that the Crown could rely upon to prove that the applicant participated in the second fight. The learned trial judge left the affray charge to the jury for consideration only on the basis that each accused had actually committed the crime. Accessorial liability was expressly excluded. The jury must therefore have been satisfied beyond reasonable doubt that the applicant personally assaulted Mr Bannister. As a matter of law, such a finding was no doubt open because of the evidence in TC's interview, the evidence in Mr Chadwick's statutory declaration, and the oral evidence of Mr Harrex.
Whilst it is fair to say that, to some degree, the evidence of the applicant's participation in the second fight lacked probative force, I do not think that that evidence was so weak that there has been a miscarriage of justice in relation to the affray charge. For the reasons stated by Estcourt J, I think it was reasonable for the jury to conclude that they were satisfied beyond reasonable doubt that the applicant participated in the attack on Mr Bannister, and thereby took part in a fight in a public place to the terror of Her Majesty's subjects.
In relation to the charge of causing grievous bodily harm, the learned trial judge directed the jury as to three possible bases for a verdict of guilty:
·     Abetting.
·     Participation in a joint criminal enterprise.
·     Prosecution of an unlawful common purpose.
For a principal offender to be guilty of the crime of causing grievous bodily harm, it is not necessary for that person to have intended to cause grievous bodily harm. An assailant is guilty of that crime if he or she foresees that his or her physical act is likely to cause grievous bodily harm, and does that act with reckless indifference to that possibility: Vallance v The Queen (1961) 108 CLR 56; R v Bennett [1990] Tas R 72.
However, for a person to be guilty of the crime of causing grievous bodily harm as an abettor, it is necessary for that person to intend that grievous bodily harm be caused. An accused will only be guilty of a crime as an abettor if he or she intentionally encourages the commission of the crime by the principal offender: Hutt v The Queen (1989) 14 Tas R 182; Roughley, Marshall and Haywood v The Queen (1995) 5 Tas R 8. Recklessness on the part of a person encouraging an assault is not sufficient to make that person criminally responsible for any grievous bodily harm resulting from the assault.
And I think the Crown must bear the burden of establishing an intention to cause grievous bodily harm in order for a person to be criminally responsible for grievous bodily harm as a participant in a joint criminal enterprise. If two or more people reach an understanding or arrangement that together they will commit a crime, and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the proposed crime, and one of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the intended crime, then each is guilty of that crime, regardless of what part each plays in its commission: Clarke v Tasmania [2013] TASCCA 11. If one or more of the applicant's companions caused grievous bodily harm to Mr Bannister while the applicant was involved with them in a joint attack on that man, he could be guilty of causing grievous bodily harm only if he intended such a consequence. If he foresaw such a consequence and was recklessly indifferent to that possibility, it could not be said that he had reached an understanding with anybody else that they would commit the crime of causing grievous bodily harm. Such an understanding or arrangement necessarily involves the forming of an intention to cause grievous bodily harm.
However, under the "unlawful common purpose" doctrine, which is the subject of s 4 of the Criminal Code, a participant in an unlawful common purpose can be guilty of causing grievous bodily harm without intending or even foreseeing such a consequence. Section 4 reads as follows:
"Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."
In my view it was open to the jury to make findings to the following effect:
·     The applicant arrived at the scene of the second fight and commenced to involve himself in it by assaulting Mr Bannister.
·     Mr Ong and Mr McWilliams saw him arrive and join in the attack.
·     At that stage, all three of them formed a common intention to prosecute an unlawful purpose, namely assaulting Mr Bannister, in conjunction with one another. (Previously only Mr Ong and Mr McWilliams shared such a common intention.)
·     In the prosecution of that purpose, the crime of causing grievous bodily harm was committed by Mr Ong and/or Mr McWilliams.
·     The commission of that crime was, objectively judged, a probable consequence of the prosecution of their unlawful purpose (assaulting Mr Bannister).
In my view the evidence available to support such findings, which is summarised above, had so much probative force that the jury's verdict that the applicant was guilty of causing grievous bodily harm should be regarded as unimpeachable.
The Crown was on weaker ground in seeking to persuade the jury to find the applicant guilty of causing grievous bodily harm either as an abettor or as a participant in a joint criminal enterprise. That is because criminal liability on either basis could be established only if the jury inferred that the applicant intended that grievous bodily harm be caused to Mr Bannister. However, for the reasons stated by Estcourt J, I consider that there was evidence from which the jury could infer that the applicant had the necessary intention for conviction as an abettor, and that that evidence has such probative force that a finding of guilt as an abettor involved no miscarriage of justice.
The question of criminal liability as a participant in a joint criminal enterprise is a more difficult one. In order to find the applicant guilty on that basis, it would have been necessary for the jury to be satisfied beyond reasonable doubt that, upon his arrival at the scene of the second fight, he joined in an understanding that he and his companions would all cause grievous bodily harm to Mr Bannister. Such an understanding would involve a greater degree of participation on the applicant's part than merely encouraging someone else to cause grievous bodily harm, or merely assaulting Mr Bannister personally. In the absence of evidence that the applicant personally did anything that might have caused grievous bodily harm to Mr Bannister, I am inclined to think that a verdict of guilty on this basis would involve a miscarriage of justice.
However, for the reasons stated above, I am not satisfied that there has been a miscarriage of justice. I would grant leave to appeal, but dismiss the appeal.
File No CCA 267/2015

JOSEPH ANDREW EDWARDS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
3 June 2016

The appeal

On 1 April 2015 the applicant, Joseph Andrew Edwards and two other men, Denison Ong Chin Jui and Nicholas David McWilliams, were each found guilty by a jury of one count of causing grievous bodily harm contrary to s 172 of the Criminal Code, and of one count of taking part in an affray contrary to s 80 of the Code.
The applicant had also been indicted on one count of assault contrary to s 184 of the Code upon a man named Lyndon Eric Hall. He was acquitted by the jury of that count.
The applicant seeks to appeal the guilty verdicts on the ground that they are unreasonable and cannot be supported by the evidence.

The law as to the appeal

The principles as to an appeal such as the present were restated in a joint judgment of this Court in Smart v Tasmania [2013] TASCCA 15 at [49]-[50] in the following terms:
"49 With that in mind, the question for this Court is whether the verdict of the jury was 'unsafe and unsatisfactory'. In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462).'
50 A verdict may be set aside as unsafe or unsatisfactory even if, as a matter of law, there was evidence upon which the accused could have been convicted: Whitehorn v R (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618 – 619; Morris v R (1987) 163 CLR 454 at 461, 473; Chidiac v R (above) at 442 – 443."
As will be seen, there was in the present case evidence upon which the applicant could have been found guilty. The question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

The relevant facts

The factual background to the three counts on which the applicant was tried and the course of the trial were succinctly summarised by the learned trial judge, Porter J, at the time his Honour passed sentence on the applicant and his co-defendants. I take the following account from his Honour's summary.
His Honour explained that the incident giving rise to the charges of causing grievous bodily harm and affray, and to the charge of assault against the applicant alone occurred at about 3.30am on 22 April 2012 in Morrison Street, Hobart, in the general vicinity of a number of waterfront hotels and nightclubs.
The charges were the result of a fight involving two groups of men. One group consisted of the applicant and his co-defendants and a youth then 16 years old, who his Honour referred to as TC. The other group comprised Lyndon Hall, Benjamin Bannister, Matthew Dobson and Adam Cox. Mr Hall was the complainant in the assault count of which the applicant was acquitted. Mr Bannister was the complainant in the charge of causing grievous bodily harm. Both complainants and Mr Dobson gave evidence. Mr Cox was not able to be found. TC was originally charged, but later discharged, and gave evidence for the Crown. Three other eye-witnesses, Ayden Bradley Harrex, Benjamin Michael Chadwick and Shaun Douglas Byrne also gave evidence. Of the defendants, Mr McWilliams gave evidence, whilst the jury had the explanations offered by Mr Ong and Mr Edwards in video recorded police interviews. As will be seen, the jury also had the benefit of TC's recorded police interview.
The applicant admitted that he was involved in a fight with Mr Hall but that he left the scene after that altercation concluded and was not part of the group which took part in the attack on Mr Bannister.
Earlier in the evening of these incidents a group consisting of the applicant, TC and a Mr Batt were part of an organised night out dressed in "Rambo" style costumes comprising camouflage or khaki pants, camouflage or light coloured tee-shirts, head bands and facial camouflage paint smears. They went to various venues and ended up in the waterfront district. Mr Batt then went on his own way. Mr McWilliams joined the other two after he had made phone contact with the applicant. They went to a bakery in Salamanca Place and Mr Ong joined them there. After getting something to eat, they left and walked in an easterly direction along the waterfront towards the Isobar Nightclub in Morrison Street. It was common ground, notwithstanding some conflicting evidence from eye-witnesses, that by this time the only person, apart from the applicant, dressed in camouflage clothing was TC.
On the waterfront in Morrison Street the applicant's group encountered one of the eye-witnesses, Mr Harrex, who was with a young woman. The young woman made derogatory remarks about the costumes which the applicant and TC were wearing. The group of four men then moved away to a spot outside Isobar, stayed there for a few minutes, and then walked back the way they had come. The young woman was still in the same place with Mr Harrex and the argument recommenced. The arguments with the girl primarily involved TC, although CCTV footage indirectly shows that Mr Ong did become involved to an extent, and, on his own admission, at one point he called her a slut.

At this time, the group containing the complainants was also walking in an easterly direction in search of a taxi. Mr Bannister and Mr Cox were leading the way and seemed to have gone past the recommenced argument with Mr Harrex and the female. Mr Hall and Mr Dobson became concerned about what was going on and decided to intervene. They spoke to the applicant's group; it would appear to TC in particular.
The learned trial judge was satisfied and I respectfully agree, that on the evidence the two main protagonists were Mr Hall and TC, and that Mr Hall pushed TC. Mr Hall may have retaliated, but in any event the applicant stepped in and warned Mr Hall to leave TC alone. His Honour was satisfied and I agree that Mr Hall punched the applicant to the chest or shoulder area. The applicant retaliated. This was the incident which was the subject of the count of assault against the applicant of which he was acquitted.
In my view that verdict was arrived at on the basis that the jury was not satisfied beyond reasonable doubt that the applicant was not acting in self-defence and/or the defence of another person. Given the evidence at trial as to the level of the violence involved in the fighting between the applicant and Mr Hall, I see no basis for the jury to have found the applicant not guilty of assault on the ground that the fight between him and Mr Hall was a consensual fight. However, if that and not self-defence was the basis upon which the jury reached its verdict of not guilty on the count of assault, it would not in my opinion make any difference to the outcome of this appeal. I say that because the effect of the verdict so arrived at would still have been that the fighting with Mr Hall was not unlawful, and as it was not unlawful, the fighting with Mr Hall could not amount in law to an affray.
To understand how that state of affairs is arrived at it needs to be observed that the jury was instructed by the learned trial judge that "except in certain cases and circumstances" upon which his Honour did not relevantly elaborate, "an assault is not unlawful if committed with the consent of the person assaulted". And his Honour also instructed the jury that to amount to an affray "the fighting must be unlawful".
The law seems clear that a person acting in self-defence is not guilty of affray (see R v Honeysett (1987) 10 NSWLR 638 at 640), but even if there is some uncertainty as to whether it is necessary for fighting to be unlawful per se in order to constitute an affray (see Taylor v Director of Public Prosecutions (1973) 57 Cr App R 915), the fact remains that the jury was instructed by the learned trial judge that a consensual fight was not unlawful, and that a fight had to be unlawful to amount to an affray. The jury was bound of course to follow his Honour's directions as to the law. It follows that the jury could not have found that the applicant's fight with Mr Hall was an affray.
To continue with the factual background, the fight between Mr Hall and the applicant seemed to trigger the involvement of others on both sides. Mr Bannister said he swung a punch at someone who might fit the description of Mr McWilliams, but then was hit by Mr Ong, whom he pushed away with his foot. He said that he was grabbed from behind and slammed head first into the ground (although I note that the State ultimately did not rely on that assertion in addressing the jury in closing. Counsel for the State told the jury that he did not know if that assertion was correct.) Both Mr Ong and Mr McWilliams said that Mr Bannister hit Mr Ong first. Mr Ong said, and the learned trial judge found for sentencing purposes, with respect, correctly in my view, that Mr Ong hit Mr Bannister twice in response to being struck, and that Mr Bannister fell to the ground. Mr Ong said that he fell unconscious. The State's case was that Mr Bannister was then kicked and punched, causing grievous bodily harm, in which all defendants, including the applicant, were involved to one degree or another.
As to the applicant, the jury was obviously satisfied that he was a party to causing grievous bodily harm. As I have already noted, his acquittal on the separate count of assault on Mr Hall was, in my view, given the dynamics of the fighting, almost certainly on the basis on self-defence. Significantly, the applicant's counsel, Mr Meredith, addressed the jury solely on that basis on that count.
Counsel for the applicant argued to the jury that a verdict of guilty of the affray was not open in respect of the applicant with respect to the Bannister incident because the applicant was not involved in the attack on Mr Bannister at all. As I have already noted, the jury was instructed that for there to be an affray, the fighting must be unlawful, in effect, as involving excessive force or not being in self-defence or the defence of another.
Further, the criminal responsibility of each defendant on the count of affray was only left for consideration on the basis that each had actually committed the crime. Accessorial liability was expressly excluded.
It follows from all of the foregoing observations that in order to find the applicant guilty of affray the jury must have been satisfied that the applicant was involved in fighting with Mr Bannister and not just Mr Hall. For the reasons I have just explained the jury could not have found the applicant not guilty of assaulting Mr Hall, but nonetheless have found the fight with him to constitute an affray, and in any event, I regard it as totally unrealistic that the jury would somehow have regarded the fight between the applicant and Mr Hall as a discrete affray or, given the distance between the scene of that fight and that of the attack on Mr Bannister, as a separate component of a single affray. To the extent that counsel for the respondent, Mr Shapiro, submitted to the contrary, that submission cannot be accepted.

The issue on the appeal

Thus, in my view the real issue on this appeal is whether the jury could have been satisfied beyond reasonable doubt that the applicant took part in the attack on Mr Bannister at any stage. It is clear that he was not involved initially because on any view of the evidence, including Mr Bannister's own account, the attack on Mr Bannister did not commence until after he had witnessed Mr Hall knocked down by a blow or blows from the applicant, whereupon Mr Bannister himself struck at the person immediately in front of him, not being the applicant, and the affray began.
The central question thus becomes whether the applicant left the scene after his fight with Mr Hall as he claimed, or whether he returned and joined in with the group attacking Mr Bannister.
There were numerous pathways to the applicant's guilt explained by the learned trial judge in his seven page memorandum to the jury. They included liability as a joint principal, liability for a crime committed in the prosecution of a common purpose pursuant to s 4 of the Code, and liability on the basis that the applicant abetted the infliction of grievous bodily harm on Mr Bannister.
The relevant part of the learned trial judge's memorandum to the jury is as follows:
"4        Criminal responsibility - further explained
4.14.1.1    Two or more people can jointly commit a crime. For instance, this can arise where two or more persons agree to commit a crime and each does something to participate in the completion of the crime; presence at the scene pursuant to the agreement is sufficient.
4.1.2The person who actually commits the crime is often called the 'principal' offender. A person who abets another to commit a crime is often called a 'secondary offender'.
4.24.2.1     'Abetting' is to do an act of encouragement which can be by actions, gestures or words. The person must intend to encourage the principal offender, and the principal offender must in fact be encouraged by the conduct of the abettor.
4.2.2The secondary offender must do the act of encouragement with knowledge of the essential facts which need to be proved to establish the crime charged, including the state of mind of the principal offender. That is, the person does something to encourage the principal offender to commit the particular crime, knowing what the principal offender was doing, or knowing or having an expectation of what the principal offender was going to do, and with what state of mind.
4.2.3Where the principal offender commits a crime, it is possible for a person said to have aided or abetted that person in committing the crime, to be convicted as an abettor in relation to a less serious offence, with the persons being distinguished according to their mental states.
4.34.3.1 The following points apply to 'common purpose' under s4 of the Criminal Code:
•    you must consider fully and in detail what was the alleged unlawful purpose and what its prosecution was intended to involved.
•    you need to be satisfied beyond reasonable doubt that the particular crime committed, was committed in the prosecution or carrying out of the purpose.
•    the question of whether the crime committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose to be looked at objectively and not from what the accused may have recognised or foreseen.
•    a probable consequence is more than a mere possibility, it must be one that you regard as probable in the sense that it could well have happened.
•    the question is whether the conduct constituting the crime committed was an offence of such a nature that its commission was a probable consequence and not whether the conduct itself was a probable consequence.
4.3.2You need to be satisfied beyond reasonable doubt that if a common intention to prosecute an unlawful purpose had been formed, the accused person did not withdraw from or abandon the common purpose before the crime was committed."
In my view a useful starting point is to examine whether the evidence was capable of and ought to have satisfied the jury beyond reasonable doubt that the applicant joined the attack on Mr Bannister after his fight with Mr Hall, and thus abetted the others involved by the encouragement of his actions.
It is also convenient to address this question first because it is as an abettor that the learned trial judge sentenced the applicant on the count of causing grievous bodily harm. If the jury was able to be satisfied beyond reasonable doubt of the applicant's guilt as an abettor, then it becomes unnecessary to examine any other pathways to liability on that count. I note in passing that the learned trial judge when sentencing the applicant treated the affray as subsumed within the more serious charge.

The evidence of abetting

As I have already noted, the account that the applicant gave to police in his recorded interview with them was that he did not return to the group attacking Mr Bannister after he fought with Mr Hall. The applicant told police he and Mr Hall got up and looked at each other. He said that neither seemed to want to keep going, and it was at that point that the applicant said he looked over and saw Mr Bannister with security staff from the nearby Observatory Nightclub. There is some potential support for this version in the evidence of Mr Hall.
After describing how he came into conflict with the applicant and being hit by him, the following exchange is recorded in the transcript of Mr Hall's examination-in-chief by counsel for the State:
"All right, so after you got hit do you remember, what's the next thing you remember after that?...........Well, I was down on one knee, sort of hunched over and I was sort of, you know a bit stunned, and well, then I sort of couldn't remember much for a bit, it was a bit of a blur and then when I finally got back up, well, you know, I was sort of kicked up in the ribs or what I – well, I had a couple of broken ribs and a couple of bumps on me head, I don't know if they kicked me or punching or what they done.
So when you got yourself back up again then what – did you see Mr Bannister after that?........Well, I got up and I'm sort of looking around thinking where has everyone gone and then I couldn't see any of them and then I seen a crowd, I think they might have been on the right or maybe the left of me, in front of me and I walked over there and Ben was laying on his back looking up and yeah, I was singing out to him, I tried to help him up but they said, 'Oh, don't touch him, we've got an ambulance and that here', and they put a brace around his neck and … ."
The jury would have needed to exercise some caution however in finding complete support for the applicant's version in that evidence because, while it might be inferred that the applicant was still with or near Mr Hall at the time he made that observation, Mr Hall did not say so and it is clear from his evidence that after he was punched in the eye, he fell down to one knee and was kicked in the ribs, and kicked or punched in the back of the head, and that after that he passed out. It is then obvious that when he regained consciousness he was observing the scene where Mr Bannister was attacked after the attack was over and security staff were in attendance.
Turning to the evidence of the three eye-witnesses, Mr Harrex, Mr Chadwick and Mr Byrne, each appears to describe more than one person in camouflage clothing in the group attacking Mr Bannister.
Mr Harrex said that he saw the person lying on the street and men kicking and punching him. He thought that there were four to five men, and that three of them were wearing camouflage clothing, but that he was not too sure if the three in camouflage were kicking and punching the person on the ground.
Mr Chadwick could remember little when called to give evidence on the trial, but he had made a statutory declaration to police shortly after the events of 22 April in which he said, although he claimed he could not remember saying, relevant to the attack on Mr Bannister:
"… The same three males [the males dressed in Rambo outfits] were kicking and punching the male as he lay on the ground. It lasted for around thirty seconds to a minute and was quite brutal. They seemed also to be stomping on his chest area."
Similarly, Mr Bryne had no memory of the events when called to give evidence on the trial, but he did remember talking to police at the police station closer to the day of the incident. It was suggested to him that he had told police that approximately one minute after the male (who must have been Mr Bannister) had been knocked out, there was another male, who he described as "shorter than 185 centimetres, dressed with head gear, possibly a bandana, possibly Asian, dark black hair", who ran through and deliberately kicked the male laying on the ground, in the head.
Now even if the jury was entitled to accept that these three eye-witnesses had indeed seen and described accurately to police seeing, as few as one, and as many as three men, in camouflage clothing attacking Mr Bannister, the jury could not in my view, given the applicant's record of interview and Mr Hall's evidence as I have just recounted it, have been satisfied beyond reasonable doubt on that eye-witness evidence that the applicant had joined the group attacking Mr Bannister after fighting with Mr Hall.
I note that TC was wearing camouflage clothing and that the fight between the applicant and Mr Hall sprang out of the original encounter between TC and Mr Harrex and his female companion. That is sufficient to explain any witnesses' impression of more than one person in camouflage clothing in the overall incident, although any suggestion of more than two at any time was clearly not correct. It does not however establish that the applicant re-joined his group as they attacked Mr Bannister.
What I have just set out was not all of the evidence available to the jury on this issue. There was also the evidence of TC.
In his closing address to the jury, counsel for the State relied on passages from the transcript of the audio-visually recorded interview between police and TC, which interview had been played to the jury and tendered during TC's evidence-in-chief following a successful application made by the State pursuant to s 38 of the Evidence Act 2001.
After it was played TC was asked why he had said a lot more to the police in the interview than he had said when he gave his earlier evidence on the trial. TC said that it was because the incident happened nearly three years ago and there were only certain parts of the night that he actually currently remembered. He agreed, in effect, that the reason for his different recollections was just his lack of current memory.
The passages of the interview relied upon by counsel for the State in his closing address were as follows:
"So you and Joe were involved in a scuffle to start with, the first one, and then you dished that bloke off and he's out of the equation then you've gone across to where Denison and McWilliams are and you've got involved over there in the second one haven't you?
I didn't get involved in that no.
Well you've gone over to have a look though you said?
Yes.
Yeah how close did you get?
Oh it was a couple of metres.
Couple of metres, and Joe was with you?
Yep.
Yep and he got involved though didn't he because he was fired up from the last one?
Ah yes.
Yeah and what did he do to this second person then?
Ah he didn't do much at all really. I think that most of the damage was done already by Nick and like kicking that guy and he was pretty out of it and that but yeah.
…
I seen um yeah we were just – went straight over and like I said there was a lot of random people standing around. They were around this side. Nick and Sugar [Mr Ong] were here and then there was um their friend was just around here and then there was sort of – just as it was going on right in the middle and people sort of crowded around and I've just seen this guy lean down, about to get up, and Sugar kicked him in the head enough that he was –
How did he kick him in the head, was it like kicking a soccer ball or did he stomp on his head like from above?
Oh it was like kicking a soccer ball.
Kicking a soccer ball, and what part of the face did he get him in?
I seen him kick him just like under the jaw. He's sort of down like that and he just sort of clucked him in there.
Under there?
Yep.
How hard would you estimate he would have done it [T]?
Oh it was reasonably hard. You know I was pretty much like I said, I was in shock. I was just like shit I was um yeah I was shaken up by it and that and I was just like oh you know let's get out of here.
So you're saying that you weren't physically involved though is that what you're saying?
No I was not physically involved no.
In that second fight?
No.
Not at all?
No.
Did you try and take Joe away from it?
Ah yeah.
Perhaps you were involved in that way?
Yeah.
You did?
Yes.
So, tell me about what you did?
He was about to – well he was about to get in it and I just sort of grabbed him and he's sort of trying to get in, get to one of the guys and that, and (inaudible) sort of grabbed him and (inaudible) I'm just pulling him back and holding him.
…
All I was trying to do was just get him out of the scuffle.
And so, Joe's gone over there, because bearing in mind mate, we've got these witness statements saying that the blokes in the Rambo suits were also kicking and punching him, all right, what did Joe do when he got there into the second fight?
Into the second fight?
Yep?
Oh well he was just trying to get in on it and that's when I sort of – I was standing there, I'm just trying to grab him from getting in there." (Emphasis added.)
TC was cross-examined by counsel for the applicant, and the following passage of that cross-examination as recorded in the transcript is relevant:
"Now, during the course of your interview with police they went to great lengths to suggest to you that both you and Mr Edwards, instead of walking away went over towards that second group?.......Yeah, again I don't remember that happening now, no.
That's not right is it, you never went towards that second group?.........No.
Certainly Mr Edwards didn't walk over there?............No, he wasn't, no, we – going there, leaving." (Emphasis added.)

In summing up to the jury the learned trial judge warned about unreliable witnesses. As to TC, his Honour said:
"So there's (TC) and he was part of the group involving these accused. He may have had some involvement, he may not have, we don't know, but because of the situation he was in, in the police station, and his evidence here it may be unreliable because he's attempting to shift blame from himself and maybe moving blame away from his friends. And it's been suggested to you that he's picked the obvious one, the person who's not his friend – named him as Mr Ong. So I do need to tell you that you need to exercise some caution in acting on (TC's) evidence."

Discussion

In my assessment, TC could not reasonably be regarded as trying to shift blame onto the applicant who had been his close friend and who, he said on the trial, he remained on good terms with. On the contrary, he appeared to be minimising the applicant's entry into the group attacking Mr Bannister. It would not have been lost on the jury that TC was at the same time minimising his own involvement in an incident that he was essentially responsible for starting. This was not a case of TC attempting to shift blame on to the applicant. It would in my view have been apparent to the jury that contrary to his own version of events, and to any inference that might have been drawn from Mr Hall's evidence, the applicant did leave the fight with Mr Hall and return to and join the group attacking Mr Bannister at a time when that attack was by no means over. The extent of his involvement may not have been great but it did not have to be in order to encourage the others of his group involved in the fighting and the attack on Mr Bannister.
The jury was entitled, acting reasonably, to be satisfied beyond reasonable doubt, as I am, that the applicant abetted other members of his group in the commission of the crime of causing grievous bodily harm, and himself committed the crime of affray. He did both by leaving the fight with Mr Hall, which was justified by law, and by joining the group attacking Mr Bannister, and by grabbing or attempting to grab one of the other group involved. The defendant both abetted the commission of one crime and committed the other by getting involved because "he was still fired up", as TC agreed with police was the case, and by trying to get into the affray and to get one of the other group and by grabbing him, or attempting to grab him, and in having to be pulled back himself and held.
The applicant may not have done "very much at all really", as TC expressed it to police, but he was in my view, on TC's description of the events, abetting the crime of causing grievous bodily harm in the sense that his actions would have amounted to acts of encouragement to the others attacking Mr Bannister, and at the same time he was committing the crime of affray by joining the fighting and having to be pulled back out of it.
The jury was entitled to reject, as I do, the tenor of the answers I have set out above as given by TC in cross-examination by the applicant's counsel as a further attempt to protect the applicant by TC retreating to his then current state of memory after having already acknowledged, in effect, his superior recollection at the time he was interviewed by police.
Finally, in my view, the jury would have been entitled to treat the evidence of TC's police interview as putting the lie to the applicant's claim to police that he did not go back at all to the group attacking Mr Bannister after his fight with Mr Hall had ended.
As to the crime of affray, the applicant's counsel, Mr Meredith, in his written submissions contends that the evidence did not disclose any conduct on the part of the applicant, separate to the fight with Mr Hall, that was "to the terror of Her Majesty's subjects" such as to constitute an affray. I do not accept that submission. In my view it was open to the jury to approach that question in the way outlined by the learned trial judge in his summing-up. His Honour said:
"So to convict an accused person of this crime you have to be satisfied that he was taking part in a fight, that is, he's involved in fighting with at least one other person. That it was a public place – well there doesn't seem to be any doubt about that. To the terror of her Majesty's subjects which, as I say, a nice quaint expression. Now there's no evidence from her Majesty's subjects who came along to say we were terrified but I think the Crown's asking you to infer – there's evidence about a number of people around and so on and there's been no argument about it. You might think that that sort of fighting going on at that hour of the morning with that number of people around – you can see the number of people around on the CCTV and so on – that might have caused a bit of terror to her Majesty's subjects. Fear and anxiety, apprehension, shock to people who witnessed it. So I don't know that you really need to trouble yourself too much about the terror of her Majesty's subjects as an element but – and I don't think there's an issue about it being in a public place, the question is is it unlawful fighting." [Emphasis added.]
As to the crime of causing grievous bodily harm, Mr Meredith argues that TC's evidence at its highest could only establish that he and the applicant got no closer to the attack on Mr Bannister than a couple of metres away, and that the applicant "was about to get into it" but that TC held him back. Moreover, he argues that TC's account places TC and the applicant still some distance away from the attack on Mr Bannister "at the time Mr Ong kicked Mr Bannister, inflicting the grievous bodily harm".
I reject both components of that submission.
First, it was open to the jury to approach TC's evidence about what happened when he and the applicant left Mr Hall and returned to where Mr Bannister was being attacked in the way I have outlined. That is to say that whilst the applicant's involvement may have been minimal, he did join in with the group involved in the attack on Mr Bannister and abetted his co-accused by encouragement.
Second, even if the jury accepted TC's evidence that Mr Bannister was kicked in the head before TC and the applicant left Mr Hall and joined the group attacking Mr Bannister, it remained open to the jury to be satisfied beyond reasonable doubt that at the time the applicant joined in, Mr Bannister had not been "stomped" on the chest, and that the resulting injury to his chest amounted to grievous bodily harm.
As to the question of grievous bodily harm, the learned trial judge instructed the jury as follows:
"Now there's been an issue raised, of course, as to whether the injuries – now that seems to be the two prominent injuries – the head injury and the chest injury to Mr Bannister. There's been an issue raised as to whether either or both are grievous bodily harm within the meaning of the section… Now in that first sentence, I read this to you yesterday. It's:
Any bodily injury of such a nature as to endanger or be likely to endanger life, or cause or be likely to cause serious injury to health.
What I perhaps should have said to you was that those words have their ordinary meaning, there's nothing special or technical about them, they have their ordinary meaning. And it's for you to determine whether the injury, a particular injury or the two injuries, either injury amounts to grievous bodily harm." [Emphasis added]
As to when the chest injury was inflicted, it was open to the jury to be satisfied that it was at the end of the attack on Mr Bannister and after he had been kicked in the head by Mr Ong. It was open on the basis of Mr Chadwick's evidence in the way contended for by counsel for the State in his closing address.
Counsel for the State drew the jury's attention to Mr Chadwick's statement that:
"The same three males were kicking and punching the male as he lay on the ground. It lasted for around thirty seconds to a minute and was quite brutal. They seemed to also be stomping on his chest. The male offenders ran from the scene. I later saw them getting into a taxi at the Grand Chancellor."
Counsel, after observing that TC and the applicant both admitted that they got into a taxi at the Grand Chancellor, then said:
"That was probably Mr Bannister that he's seen there. That's, that's, you know, it's up to you, it's up to you – I'm not saying beyond a reasonable doubt, but it seems, from looking at this, from all the evidence that we have, that's an example of where he's looked away and looked back for a second and the same, you know, a couple of the people who are involved with the first guy on the ground, they've gone to the second one.
I say that to you because we know that Mr Bannister had this pneumothorax and he's seen this stomping on the chest. You know, the evidence is that it's likely to have been caused by blunt trauma. The next point after the stomping on the chest is:
I can't recall exactly how the fight came to an end but that it came to an end.
And we can be pretty sure that the attack on Bannister was the last, you know, was the end of the fight."
Ultimately then it seems to me that it was a question for the members of the jury as to whether they were satisfied from TC's evidence that the applicant did join in the attack on Mr Bannister as an abettor, but after Mr Bannister had been kicked in the head by Mr Ong, and then whether they were satisfied on the evidence of Mr Chadwick that the stomping on Mr Bannister's chest was at or towards the end of the attack on him, at a time when the applicant was present, and that the injury to Mr Bannister's chest constituted grievous bodily harm, either on its own or in conjunction with the injury to his head.
It might be argued on the whole of the evidence that there are other pathways to satisfaction of guilt beyond reasonable doubt in respect of the count of causing grievous bodily harm. However, given the view I have formed as to the jury's entitlement to be satisfied of guilt on the basis that the applicant was an abettor, I do not find it necessary to explore possible alternatives. I do note however, that in my view there is nothing in the evidence that is capable of establishing beyond reasonable doubt the reaching of an agreement to commit a crime, or the formation of a common intention to prosecute an unlawful purpose. A fight commenced between the applicant and Mr Hall, and when Mr Bannister observed Mr Hall to be knocked to the ground he, Mr Bannister, struck the person immediately in front of him, not being the applicant, and a second and quite separate fight broke out. There is no evidence capable of supporting an inference of a meeting of minds. Nor do the circumstances in which the applicant joined in the attack on Mr Bannister permit of any opportunity for the formation of an agreement or a common intent.

Disposition

In my view the jury verdicts are not unreasonable, and are reasonably capable of being supported to the required degree by the evidence as a whole. As I have already noted, the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. For my part, I am so satisfied.
I would grant leave to appeal but would dismiss the appeal.
File No CCA 267/2015

JOSEPH ANDREW EDWARDS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
3 June 2016

I have had the advantage of reading the reasons prepared by Blow CJ and Estcourt J in draft form. To the extent that there is any difference in reasoning I agree with Blow CJ. Otherwise I agree that, for the reasons given by their Honours, leave to appeal should be granted but the appeal dismissed.