Haralampos Korres v The Queen

[2013] ACTCA 53

HARALAMPOS KORRES v THE QUEEN      
[2013] ACTCA 53 (20 December 2013)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – whether verdict was “unsafe and unsatisfactory” – several different versions of events provided by Crown witnesses of circumstances of assault – open to the jury to be satisfied beyond reasonable doubt that appellant was guilty of having assaulted complainant – appeal dismissed.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – jury directed that decision to reject witness’s evidence should be based on rational grounds able to be pointed to by juror – whether jury misdirected – whether trial judge conferred upon witnesses the benefit of a presumption of truthfulness – directions were not “standard” – whether directions had potential to confuse jurors – even if point decided in appellant’s failure, there was no substantial miscarriage of justice – s 37O(3) of the Supreme Court Act 1933 (ACT) – appeal dismissed.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – assault occasioning actual bodily harm – s 24, Crimes Act 1900 (ACT).

Supreme Court Act 1933 (ACT) s 37O
M v R (1994) 181 CLR 487
R v Manunta SCSA 20 December 1988, unreported
Richardson v R [2013] NSWCCA 218

Australian Criminal Trial Directions (Tilmouth and Glissan, LexisNexis Butterworths, 1995)
Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, 2002)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 48 of 2012
No. SCC 343 of 2009

Judge:             Penfold and Buchanan JJ and Nield AJ
Supreme Court of the ACT

Date:              20 December 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 48 of 2012

)          No. SCC 343 of 2009
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

HARALAMPOS KORRES            Appellant

AND:

THE QUEEN           Respondent

ORDER

Judge:  Penfold and Buchanan JJ and Nield AJ
Date:  20 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 48 of 2012

)          No. SCC 343 of 2009
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

HARALAMPOS KORRES            Appellant

AND:

THE QUEEN  Respondent

REASONS FOR JUDGMENT

Judge:  Penfold and Buchanan JJ and Nield AJ
Date:  20 December 2013
Place:  Canberra

PENFOLD J:

1. I have had the opportunity to read the Nield AJ’s judgment in draft, and gratefully adopt his description of the trial and the evidence.

1. I agree with Nield AJ that on the evidence before the jury, it was open to the jury to reach the verdict that was reached, and that Ground 1 of the appeal should fail.

1. As to Ground 2, however, I consider that the part of the trial judge’s directions complained of by the appellant was inappropriate and in general terms likely to confuse a jury. The direction complained of was as follows (it is also quoted, in context, at [49] below):

If you propose to reject the evidence of a witness that decision should be based on rational grounds. Such grounds may, for example, be provided by the cogency of other evidence but before you reject the evidence of a witness you should be able to point in your own mind to something which rationally allows you to reject that evidence.

1. First, the relevant direction, to the effect that a decision to reject evidence should be “based on rational grounds” is inconsistent with the standard direction also given by the trial judge and quoted in the joint judgment at [55], the relevant part of which is:

Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things including what the witness has to say, the manner in which they say it and the general impression which they make upon you when they are giving evidence.

1. It is by no means clear that a juror would, for instance, regard “the general impression which [a witness] made upon [the juror] when ... giving evidence” as “something which rationally allows [the juror] to reject that evidence”.

1. Secondly, the direction is also inconsistent with another standard jury direction, which in my view reflects the fundamental significance of the jury system; an example of this direction is found in the Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, 2002) at 7-020, as follows:

You are brought here from various walks of life and you represent a cross section of the community — a cross section of its wisdom and its sense of justice. You are expected to use your individual qualities of reasoning; your experience; and your understanding of people and human affairs.

In particular, and I cannot stress this too strongly, you are expected to use your common sense and your ability to judge your fellow citizens, so that you bring to the jury room (during the course of your deliberations) your own experience of human affairs, which must necessarily be as varied as there are twelve of you. It is that concentration of your own experience and your own individual abilities, wisdom and common sense which is, of course, the critical foundation of the whole of the jury system ...

You have very important matters to decide in this case — important not only to the accused but also to the whole community. The privilege which you have of sitting in judgment upon your fellow citizens is one which carries with it corresponding duties and obligations. You must, as a jury, act impartially, dispassionately and fearlessly. You must not let sympathy or emotion sway your judgment.

1. The trial judge also gave this direction, although in a slightly briefer form.

1. This direction specifies that jurors must not be swayed by sympathy or emotion, but emphasises the importance of reasoning, experience, understanding of people and human affairs, common sense, ability to judge people, and wisdom.  The exercise of these qualities is no doubt enhanced by a rational approach to assessing the evidence, but this does not mean that the jury’s deliberations are to be confined to conclusions that can be justified on rational grounds.

1. Many people would no doubt feel more comfortable deciding what evidence to accept by reference to an analysis of the content of the evidence given by the various witnesses for its coherence, consistency (both internal and with the evidence of other witnesses) and inherent likelihood than relying on matters such as how a witness conducted him or herself in the witness box. However, outside the courtroom environment, human interaction relies to a significant degree on intuition and an ability to detect and make sense of non-verbal cues to enable us to take from an interaction with another person a message that is in fact different, and intended to be different, from that conveyed by the raw content of the person’s words. The use of sarcasm or irony, for instance, involves an attempt to convey a message that is very different from that carried by the words used if taken out of context and stripped of the tone in which they are delivered. This presumably explains the emphasis, in the standard jury direction quoted at [6] above, on jurors relying not just on reasoning but also on such things as experience, common sense and wisdom.

1. An exhortation to accept evidence unless there is a rational basis for rejecting it may leave the jury in a very difficult position. It is easy to see how a direction not to reject evidence without a rational basis for doing so (especially given that a trial may involve only prosecution witnesses) could induce a jury to ignore their intuition or their common sense, and to accept prosecution evidence that they instinctively find unconvincing, simply because they cannot articulate a rational basis for being unconvinced.

1. However, such a problem is unlikely to have arisen in the current case, given that although, except for the appellant, all witnesses were called by the prosecution, those prosecution witnesses gave two or more quite different versions of events. The evidence of the witnesses that seems to have been accepted differed from that of the other witnesses in that it explained what was apparently an undisputed fact, being that in the time between the incident with the goalkeeper and when the complainant came out of the bathroom, the complainant had sustained an injury to his face which had produced quite a lot of blood. That is, in this case the jury members would not have found it difficult to articulate a rational basis for preferring the evidence of one group of prosecution witnesses over that of another group, so were unlikely to have been led astray by the direction.

1. For this reason I am satisfied for the purposes of s 37O(3) of the Supreme Court Act 1933 (ACT) that, while the appellant’s complaint about his Honour’s direction about evidence might in the abstract have been decided in the appellant’s favour, no substantial miscarriage of justice has actually occurred in this case.

1. Accordingly, I agree with Nield AJ that Ground 2 of the appeal also fails, and that the appeal must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:
Date:    20 December 2013  

IN THE SUPREME COURT OF THE     )          No. ACTCA 48 of 2012

)          No. SCC 343 of 2009
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

HARALAMPOS KORRES            Appellant

AND:

THE QUEEN  Respondent

REASONS FOR JUDGMENT

Judge:  Penfold and Buchanan JJ and Nield AJ
Date:  20 December
Place:  Canberra

BUCHANAN J:

1. I agree with Nield AJ, and for the reasons he gives, that the appeal must be dismissed.

I certify that the preceding one (1) paragraph numbered [14] is a true copy of the Reasons for Judgment herein of his Honour, Justice Buchanan.

Associate:
Date:     20 December 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 48 of 2012
  )          No. SCC 343 of 2009
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

HARALAMPOS KORRES            Appellant

AND:

THE QUEEN  Respondent

REASONS FOR JUDGMENT

Judge:  Penfold and Buchanan JJ and Nield AJ
Date:  20 December 2013
Place:  Canberra

NIELD AJ:

Introduction

1. The appellant is Dr Haralampos Korres and the respondent is the Crown.

1. On 30 March 2012 the appellant appeared before Burns J to stand his trial for that on 28 May 2008:

(a)he recklessly inflicted grievous bodily harm on the complainant, Mr Simon Hui; or

(b)in the alternative to (a), he assaulted the complainant thereby occasioning actual bodily harm to him;

and, on his being arraigned with the charges, he pleaded not guilty to each of them.

1. The charges against the appellant arose from an incident which the Crown alleged occurred during the grand final of an indoor soccer competition (called “Futsal”) conducted by ANU between the ABCD team and the Newell’s Old Boys team, in which incident the appellant was said to have assaulted the complainant.

The trial

1. The jury heard evidence from 22 witnesses (21 called by the Crown Prosecutor and the appellant) and it received 19 exhibits (15 tendered by the Crown Prosecutor and 4 tendered by the appellant’s trial counsel) over four days (30 March 2012 to 4 April 2012), it heard counsel’s addresses on one day (4 April 2012) and the summing up of Burns J on one day (5  April 2012), and it returned its verdicts later on the fifth day (5 April 2012) after a retirement of 5 hours 18 minutes.

1. The witnesses who gave evidence during the trial were:

(a)the complainant, a member of the ABCD team (AB 7-34);

(b)Mr Francisco Jose Sanchez, the goalkeeper of the Newell’s Old Boys team (AB 35-44);

(c)Mr Sivaraman Purshothuman, a member of the Newell’s Old Boys team (AB 44-54);

(d)Ms Annasuya Sardana, a spectator, who had friends in the ABCD team (AB 59-72);

(e)Mr Hector Rodriguez, a member of the Newell’s Old Boys team (AB 73-81);

(f)Mr Heng Wei Chan (aka Toby), a member of the ABCD team (AB 81-95);

(g)Mr Anesh Nair (the younger brother of Mr Dinesh Nair), a member of Newell’s Old Boys team (AB 96-108);

(h)Mr Dinesh Nair (the older brother of Mr Anesh Nair), a member of the Newell’s Old Boys team (AB 109-119);

(i)Mr Leo Xu, a member of the ABCD team (AB 123-139);

(j)Ms Emma Louisa Filer, a member of the ABCD team (AB 139-153);

(k)Mr Mahbod Salahsor, a member of the Newell’s Old Boys team (AB 153-162);

(l)Dr Pravin Periasamy, the captain of the Newell’s Old Boys team (AB 163-167);

(m)Mr Krishan Timothy Caldwell, a member of the ABCD team (AB 167-184);

(n)Dr Rebecca Anne Hinton, a member of the Newell’s Old Boys team (AB 185-190);

(o)Mr Luke Jonathon Williams, the referee of the soccer game (AB 190-198);

(p)Mr Gavin Alexander Wendt, the goalkeeper of the ABCD team (AB 198-204);

(q)Dr Olivia Marinov, who examined and treated the complainant in the Emergency Department of Calvary Hospital at about 1.00 pm on 28 May 2008 (AB 210-213);

(r)Mr Terrence Ong, the captain of the ABCD team (AB 213-225);

(s)Mr Randall Starr, the Operations Manager of the ANU Sport, who was approached by the complainant with “a cut chin” (AB 226.18) and who told the complainant “to go down to the doctor’s surgery” (AB 226.20) (AB 225-228);

(t)Constable Jennifer Clark, to whom, at 10.40 am on 29 May 2008, the complainant complained (AB 229.21) and who investigated the complainant’s complaint (AB 229-245); and

(u)the appellant, Dr Haralampos Korres, a member of the Newell’s Old Boys team (AB 246-264).

1. It should be noted that the police statement of Mr Ariel Moisis, a member of the Newell’s Old Boys team, was admitted into evidence as Exhibit 18.

1. The exhibits admitted into evidence were:

(1) two photographs (showing the complainant with the laceration to his chin) (AB 14-15);
(2) five photographs (one showing the complainant and four showing the scar to the complainant’s chin) (AB 15);
(3) six photographs (showing the court on which the soccer game was played) (AB 16-17);

(4) a diagram (showing the lines of the court) (AB 21);

(5) a disc containing a video of the “photo-board” process involving the complainant (AB 24);
(6) a disc containing a video of the “photo-board” (AB 24);
(7) the photograph selected from the “photo-board” by Ms Sardana as showing the face of the man who “hit” (AB 63.44) the complainant (AB 63-64);
(8) photographs marked by Ms Sardana to show places on and about the court referred to by her in her evidence (AB 64-72);
(9) the photograph selected from the “photo-board” by Mr Chan as showing the face of the man who “struck” (AB 63.44) the complainant (AB 87);
(10) a photograph (AB 90.16) marked by Mr Chan to show where he was when he saw the “assault” (AB 90.26) on the complainant (AB 96);
(11) the photograph selected from the “photo-board” by Mr Xu as showing the face of the man who “struck” (AB 129.30) the complainant (AB 130);
(12) two photographs marked by Mr Xu to show places on and about the court referred to by him in his evidence (AB 133-134, 137) (AB 139);
(13) a diagram (AB 177.22) marked by Mr Caldwell to show, inter alia, “where Simon was when you say the elbow blow was delivered” (AB 177.34) (AB 184);
(14) records of the Emergency Department of Calvary Hospital relating to the complainant’s attendance on 28 May 2008 (AB 213);
(15) a diagram of the court (AB 216.12) marked by Mr Ong (AB 218.35) (AB 219);
(16) a list of the players registered to play on the ABCD team and a list of the players registered to play on the Newell’s Old Boys team (AB 227);
(17) the photograph of the appellant taken by police on 15 July 2008 for the purpose of the “photo-board” (AB 232.17);
(18) the police statement of Mr Ariel Moisis (AB 234);
(19) the photograph of the Newell’s Old Boys team taken on 28 May 2008 after the soccer game.

1. The jury found the appellant to be not guilty of Count 1 of the indictment (the charge of recklessly inflicting grievous bodily harm on the complainant) but to be guilty of Count 2 of the indictment (the charge of assaulting the complainant occasioning actual bodily harm to him). Clearly, the jury was satisfied beyond reasonable doubt that the appellant had assaulted the complainant, as alleged by the Crown, and denied by the appellant.

The penalty

1. On 11 September 2012 Burns J convicted the appellant of the offence of assault occasioning actual bodily harm, and made a good behaviour order requiring the appellant to enter into an undertaking to be of good behaviour for 12 months.

The appeal

1. On 9 September 2012 the appellant filed a Notice of Appeal in the Registry of the Court of Appeal by which he appealed against his conviction for the offence upon the ground that the jury’s verdict of guilty is “unsafe and unsatisfactory” (that is, that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence – see s 37O(2) of the Supreme Court Act 1933 (ACT)).

1. On a later date the appellant was granted leave to rely upon an additional ground of appeal, that being:

The trial judge in his summing up misdirected the jury in law as to the grounds on which they should accept or reject evidence of witnesses, and thus:

(i) impermissibly explained, qualified, undermined and contradicted His Honour’s directions on the criminal onus of proof beyond reasonable doubt; and

(ii) in effect, conferred on prosecution witnesses the benefit of a presumption of truthfulness.

The hearing of the appeal

1. On 1 August 2013 the appellant’s appeal came on for hearing before us. After hearing submissions from counsel, the Court reserved its judgment.

1. I propose to consider first the “unsafe and unsatisfactory” ground of appeal and then to consider the additional ground of appeal.

Ground 1 – is the jury’s verdict unsafe or unsatisfactory?

1. As I have said already, the charges against the appellant arose from an incident which occurred during the grand final of an indoor soccer competition played between the ABCD team, of which the complainant was a member, and the Newell’s Old Boys team, of which the appellant was a member. In fact, there may have been three incidents involving the complainant that occurred during the first half of the game.

The first incident

1. The first incident occurred after the appellant had committed a foul during play against the complainant, as a result of which the complainant was awarded a free kick (AB 247.26). When the complainant kicked the ball, the ball hit the appellant (to use his own words) “lightly at the back of [his] head” (AB 247.33).

1. The first incident, albeit differently described, was witnessed by Mr Sanchez (AB 36.20-45); Ms Sardana (AB 60.8); Mr Rodriguez (AB 73.25-37); Mr Anesh Nair (AB 105.7); Mr Dinesh Nair (AB 115.43); Mr Xu (AB 124.18); Ms Filer (AB 140.41); Mr Caldwell (AB 168.19); Mr Wendt (AB 199.11); and Mr Ong (AB 214.39).

1. There is not any doubt that the appellant was involved in the first incident. The complainant described the man who was hit by the ball as “about 170 cms or so, athletically built, tan skin, ... a moustache goatee ... short [hair], spiked up the top” (AB 12.23). Mr Sanchez named the man as “Harris” (AB 36.37). Ms Sardana selected the appellant’s photograph from the “photo-board” (AB 63.44) as showing the face of the man who was hit by the ball. Mr Rodriguez identified the man as “Harry Korres” (AB 73.29). Mr Anesh Nair identified the man as “Haralampos Korres” (AB 105.8), as did Mr Dinesh Nair (AB 115.43). Mr Xu described the man as having “... a Mohawk, a short beard, ... tanned skin ... quite athletically built ... taller than [the complainant]” (AB 124.19) and he selected the appellant’s photograph from the “photo-board” (AB 129.30). Ms Filer described the man as “... tall, ... dark hair, ... short on the sides, a little bit longer on the top, ... thick eyebrows, dark eyebrows, ... olive skin” (AB 141.6). Mr Caldwell described the man as “... tall ... a bit over 6 feet ... slightly olive skin ... facial hair around the moustache and beard area ... short hair, brown” (AB 168.35). Mr Wendt described the man as “... stubble around his chin, short black hair, ... kind of messy ... about a metre 80 ... darkish skin” (AB 199.37). Mr Ong described the man as “... olive complexion, ... hair in a Mohawk, short Mohawk, ... moustache and dark stubble” (AB 215.1). The appellant admitted being the man who was hit on the back of his head by a ball kicked by the complainant (AB 247.32). The photograph of the Newell’s Old Boys team (Exhibit 19 – the appellant is the bearded man on the left end of the back row) reveals that the descriptions of the appellant given by the complainant, Mr Xu, Ms Filer, Mr Caldwell, Mr Wendt and Mr Ong were broadly accurate and that the selections of the appellant’s photograph on the “photo-board” by Ms Sardana, Mr Chan and Mr Xu were correct.

The second incident

1. The second incident occurred after the complainant had “tak[en] a shot at goal” (AB 9.24). He followed the ball as the Newell’s Old Boys team’s goalkeeper, Mr Sanchez, moved forward to collect the ball. The complainant believed that the goalkeeper had not collected the ball, but, rather, that the ball had rebounded from the goalkeeper. However, by the time when he reached him, the goalkeeper had collected the ball and the complainant and the goalkeeper collided, with the complainant kicking the goalkeeper, after which the goalkeeper pushed the complainant away from him.

1. The second incident, albeit, again, differently described, was witnessed by Ms Sardana (AB 60.33); Mr Rodriguez (AB 74.4); Mr Chan (AB 82.28); Mr Anesh Nair (AB 97.12); Mr Dinesh Nair (AB 110.4); Mr Xu (AB 125.21); Ms Filer (AB 141.32); Mr Salahsor (AB 154.28); Dr Periasamy (AB 163.38); Mr Caldwell (AB 169.21); Dr Hinton (AB 185.26); Mr Williams (AB 191.16); Mr Wendt (AB 200.1); Mr Ong (AB 216.8) and the appellant (AB 248.19). Mr Moisis referred to an “argument between both teams ... over our goalie being kicked” in his statement (Exhibit 18).

The third incident

1. The third incident may have followed shortly after the second incident. The complainant, who had not been injured during either the first or the second incident, was injured in an incident. Although there was general agreement among the witnesses as to the fact of the first and second incidents, there was much disagreement among them about whether there was a third incident. The differing versions are as follows:

(a)the complainant – after being pushed away by the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), the complainant was walking along the sideline to the halfway line (AB 10.2) when he saw the appellant running towards him with his elbow raised (AB 10.9) and then the appellant’s elbow collided with his chin (AB 10.32), after which he felt blood running from his mouth (AB 11.8), causing him to leave the court to go to the bathroom. Later, he was joined by Ms Sardana (AB 13.1), who took him to the reception desk, then to the medical centre and then to Calvary Hospital (AB 13.12);

(b)Mr Sanchez - after pushing him away, the “Asian male” (the complainant) (AB 37.33) walked off (AB 40.36) and “a few of our team and a few of theirs probably got together and spoke with each other” (AB 39.27), at which point the referee (Mr Williams) came over, told everyone to calm down and awarded a free kick (AB 40.13);

(c)Mr Purshothuman – although he did not see the incident involving the complainant and the Newell’s Old Boys team’s goalkeeper (Mr Sanchez) (AB 46.7), he was told to “go on for Harris” (AB 47.15) and, as the appellant was “at our bench”, he “went straight on” (AB 47.17);

(d)Ms Sardana – after he had been pushed by the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), the complainant bumped into “the same one who got hit in the back of the head with the ball earlier on” (the appellant) (AB 60.40) and he “walked off” (AB 61.33), when “the other player extended his arm out and hit [the complainant] in the face ... and [he] covered his face up with his hand ...” (AB 61.36). Then the complainant walked “directly to where I was sitting, and there was a lot of blood down his shirt” (AB 62.8). After he had left the male toilets, she took him to the reception desk, then to the medical centre and then to Calvary Hospital (AB 62.19);

(e)Mr Rodriguez – after the “Asian player” (the complainant) (AB 75.7) had been pushed on the back (AB 76.10) by the Newell’s Old Boys team’s goalkeeper (Mr Sanchez) (AB 76.6), the referee (Mr Williams) walked to the “action” (AB 76.29) and spoke to the complainant (AB 77.12). The other ABCD team members were on their half of the court (AB 77.17) and the team captain (Mr Ong) called the complainant “to get off” (AB 77.14), whereupon he left the court with his hands at his sides (AB 77.27), and went to the toilets (AB 79.3), using a door which was about two metres away (AB 79.17);

(f)Mr Chan – after he had been pushed by the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), the complainant walked along the court and a Newell’s Old Boys team member (the appellant) came up to the complainant and he “used his hand ... on his shoulder” to turn the complainant around (AB 84.29) and then he “hit [the complainant] with his right hand” (AB 84.44), hitting the complainant’s face (AB 85.6), causing him “... to hold his .... hand on his jaw or his mouth area and [to] walk off the court” (AB 85.27);

(g)Mr Anesh Nair – after the Newell’s Old Boys team’s goalkeeper (Mr Sanchez) had pushed the complainant, “... there was a fracas. He was obviously very angry – he was also heated up so there was a bit of an argument, then that’s about it really” (AB 98.13). The referee was on the sideline (AB 98.38) at the middle of the court (AB 98.38) and he blew his whistle and gave “us a free kick” (AB 99.9). The complainant “walked off” (AB 99.21), with his hands by his sides (AB 99.36). The appellant had been “substituted” by “Sivar Purshothuman” (AB 100.16). There was “no contact at all between the [appellant] and [the complainant] at that stage of the game” (AB 107.4). As the complainant left the court, walking toward “his bench”, he “had his hands by his sides as he walked, there was no blood visible and certainly no blood on his white T-shirt” (ABA 107.10);

(h)Mr Dinesh Nair – after seeing the complainant kick the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), he said to the referee (Mr Williams), who was on the sideline at about halfway (AB 110.40), “Look, you know, you’ve got to do something about this ...” (AB 110.18) and the referee said “That’s why I’m giving you guys a foul” (AB 111.18) and he awarded the Newell’s Old Boys team a penalty for the foul, at which point “Harris” (the appellant) left the court and “Sivar” (Mr Purshothuman) went onto the court to replace him (AB 112.6). At about this time, the complainant left the court (AB 112.12), walking off normally (AB 112.21) towards his “bench” on the sideline (AB 112.28). There had not been any “violence between any of our players and Hui whatsoever” (AB 116.25). As he left the court, the complainant did not show any sign of an injury and he did not have any blood on him (AB 117.18);

(i)Mr Xu – after the Newell’s Old Boys team’s goalkeeper (Mr Sanchez) had pushed him, the complainant walked away from the goalkeeper when “the guy with the Mohawk” (the appellant) (AB 126.40 and AB 138.44) walked “very quickly towards” the complainant (AB 126.41) and “swung his arm at” the complainant (AB 127.8) and then the complainant “was ... holding his face” (AB 127.12). Then the complainant “walked off the field, towards the exit” (AB 128.5) after which Ms Sardana offered to “take him to the hospital” (AB 128.23);

(j)Ms Filer – “... so the keeper shoved [the complainant] to the side, and then [he] was sort of pushed out of the field, and then [he] started to walk back into the field” (AB 141.36) when “... this guy came from behind me from the halfway line and went straight up to [the complainant] and just shoved him” (AB 143.20) in “the face area and just underneath” (AB 143.32), and the complainant “... put his hands straight to his mouth” (AB 143.45). The “guy” who “shoved” the complainant was the Newell’s Old Boys team member who was “kicked in the free kick” (the appellant) (AB 145.35, 40). Then “Josh and the keeper” (AB 152.12) “came in and broke it up” (AB 147.24), after which the referee (Mr Williams) spoke to the complainant (AB 147.35), who then walked off the court to the bathroom (AB 147.38). When he left the bathroom, the complainant was “bleeding pretty heavily” (AB 148.2) from “a large gash just underneath his bottom lip” (AB 148.1), then he left the court with Ms Sardana (AB 148.14);

(k)Mr Salahsor – following “the opposition player” (the complainant) running into “our goalkeeper” (Mr Sanchez), the referee (Mr Williams) “stopped the game ... and the opposition player ... walked [to the] end of the court and he turned round [to] get back to the game” (AB 154.28). At this time, “it was me and Harris” in the Newell’s Old Boys team’s half of the court (AB 160.30), and, “anticipating the kick from the goalkeeper to come downfield” (AB 157.17), “we [the appellant and Mr Salahsor] were attacking” (AB 157.15), so we headed towards the other end of the court; “when we attack, he [the appellant] was almost behind me” (AB 158.37). He “didn’t see any assault” (AB 160.6) by anyone upon anybody.

(l)Dr Periasamy – “... there was [an] altercation ... with the keeper [Mr Sanchez] and the opposing player [the complainant] ... the referee [Mr Williams] came in, stopped it ... awarded us a free kick, ... the player got sent off and then [he] walk out ... like pissed off ...” (AB 163.38) “... past me and then into the toilet” (AB 165.24), with his hands by his sides (AB 166.12), not holding his jaw with his hands (AB 167.3);

(m)Mr Caldwell – after the Newell’s Old Boys team’s goalkeeper (Mr Sanchez) had pushed the complainant, “he [the complainant] was walking towards our half ...” (AB 170.38) when “... this other player ... ran in and ... elbowed [the complainant] in the face” (ABA 171.15), in “the chin area” (AB 172.15). The complainant “... had a nasty gash” “just above the chin” (AB 174.5), and he was “bleeding quite freely” from the gash onto his shirt (AB 174.7). The referee (Mr Williams) was on the sideline, he did not go onto the field of play, he did not do anything “to calm things” (AB 182.14);

(n)Dr Hinton – after the “Asian” player (the complainant) (AB 185.26) had collided into “our” goalkeeper (Mr Sanchez), the goalkeeper pushed the “Asian” player, after which “there was a bit of a ruckus” (AB 186.37), whereupon “several other players from both teams sort of surrounded” (AB 187.2) “the Asian player and the goalkeeper” (AB 187.9). The referee (Mr Williams) “blew the whistle” and “gave us a penalty” (AB 187.33). She did not see what happened to the “Asian” player after he was pushed by the goalkeeper because she was not watching  him (AB 188.15). When the goalkeeper was about to take the free kick, “Harris substituted off the field and Siva substituted onto the field for Harris” (AB 188.38);

(o)Mr Williams – when the player (the complainant) “who had the shot on goal came through a little bit late and hit the keeper [Mr Sanchez] on the shin with his boot” (AB 191.19), he blew the whistle for “a free kick straight away” (AB 192.25), but the goalkeeper had taken offence to the late shot and “he ... went up and slightly pushed the person who had committed the late shot” (AB 192.26), which caused “a few more people ... to run in to where that was happening” (AB 193.9), “... three or four people from each team in a sort of huddled mass” (AB 193.40), then the person left the huddle holding his hands to his mouth and went to the bathroom (AB 194.1). Later, the player came out from the bathroom with “a bleeding lip” (AB 197.40);

(p)Mr Wendt – after the complainant had “bumped into” the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), the goalkeeper pushed the complainant, whereupon “a few players started congregating on the two players” (AB 201.4), then the complainant, who had been “in the centre of the group ... emerged [with] blood on his shirt” (AB 201.8). “The guy who got hit in the back of the head” (the appellant) (AB 201.40) walked “with the rest of the group heading straight towards” the complainant (AB 201.33);

(q)Mr Ong – after the complainant had “collided with” the Newell’s Old Boys team’s goalkeeper (Mr Sanchez), the goalkeeper pushed the complainant in his chest whereupon “people”, including “the person [who] was hit in the back of the head” (the appellant) (AB 219.45) ran towards the complainant (AB 217.35), “obscured” the complainant and the goalkeeper (AB 217.44), and the referee (Mr Williams) “entered the field and ... broke apart the crowd” (AB 218.9), leaving the complainant holding his chin with both his hands (AB 219.20), with blood coming from his hands (AB 219.34);

(r)the appellant – because of “the break in play” (AB 248.29) following “the foul that [the complainant] committed [against] the goalkeeper” (Mr Sanchez) (AB 251.10), “I took advantage of [the] break to actually sub out again” (AB 248.35). “I basically [ran] out on the sideline. Siva [ran] in” (AB 249.33), “I ... sat on the bench ...” next to Anesh (AB 249.44).

1. I note that, in addition to the evidence of the witnesses to whom I have referred, Mr Starr gave evidence of being at the reception desk when he was approached by a player who had a “cut chin” (AB 226.19) and Dr Marinov gave evidence of examining and treating a soccer player who complained of being “... hit into the jaw while playing soccer ...” (AB 212.32).

1. As I have said, there was much disagreement among the witnesses about whether there had been a third incident. Those who gave evidence of a third incident were the complainant, Mr Sanchez, Ms Sardana, Mr Chan, Mr Xu, Ms Filer, Mr Caldwell, Dr Hinton, Mr Williams, Mr Wendt and Mr Ong, albeit they differed as to the circumstances of the incident; and those who did not give evidence of a third incident were Mr Rodriguez, Mr Anesh Nair, Mr Diresh Nair, Mr Salahsor, Dr Periasamy and the appellant.

1. So, the jury was required to decide whether there had been a third incident. If the jury decided that there had been a third incident, then, as a matter of logical and rational reasoning, the jury would reject the evidence of those witnesses who did not give evidence of a third incident but, rather, gave evidence that there had not been any third incident.

1. I note that the appellant’s trial counsel did not suggest to any of the complainant, Mr Sanchez, Ms Sardana, Mr Chan, Mr Xu, Ms Filer, Mr Caldwell, Dr Hinton, Mr Williams, Mr Wendt or Mr Ong that there had not been a third incident or that his or her (as was the case) evidence as to the happening of a third incident was wrong or inaccurate.

1. Then, if it decided that there had been a third incident, the jury was required to decide what were the circumstances of the third incident – was the complainant assaulted by the appellant “in the open”, so to speak, as described by him (AB 10.32) and by Ms Sardana (AB 61.36), Mr Chan (AB 84.44), Mr Xu (AB 127.8), Ms Filer (AB 143.32) and Mr Caldwell (AB 172.15) or by someone unidentified “in a huddle” as described by Mr Williams (AB 193.40), supported, in broad terms, by Mr Sanchez (AB 39.27), Dr Hinton (AB 187.2), Mr Wendt (AB 201.8) and Mr Ong (AB 218.9).

1. I note, again, that the appellant’s trial counsel did not suggest to any of the complainant, Ms Sardana, Mr Chan, Mr Xu, Ms Filer or Mr Caldwell, all of whom identified, in one way or another, the appellant as the man who had assaulted the complainant “in the open”, that his or her (as was the case) evidence as to the identity of the man who had assaulted the complainant or as to the circumstances of the third incident was wrong or inaccurate.

1. Indeed, I note that the appellant’s trial counsel said to the jury “Well, we can assume some assault happened or an injury happened” (AB 266y.12) and “... this is a case where we don’t contest that Mr Hui hasn’t [sic] suffered a nasty injury” (AB 266z.4).

1. I consider that it is beyond doubt that the complainant was assaulted and thereby injured, and that he was not assaulted in either of the first or the second incidents. Therefore, he must have been assaulted at some time and in some way after the second incident – either by the appellant “in the open” or by someone unidentified “in a huddle”.

1. I consider that, by its verdict, the jury was satisfied beyond reasonable doubt that the complainant had been assaulted by the appellant “in the open”, rather than by someone unidentified “in a huddle”.

1. The Court’s task, as we have been asked to conclude that the jury’s verdict of guilty is “unsafe” or “unsatisfactory”, that is “unreasonable” or “cannot be supported by the evidence”, is to ask ourselves whether we think that, upon our independent assessment of the whole of the evidence, and allowing for the facts that the jury is the body entrusted with the responsibility of determining guilt or innocence and that the jury had the benefit of seeing and hearing the witnesses, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty (see M v R (1994) 181 CLR 487, per Mason CJ, Deane, Dawson and Toohey at 493).

1. I have referred to the various witnesses and the varying versions of whether the complainant had been assaulted in a third incident and, if he had been assaulted in a third incident, the varying versions of the third incident and the circumstances in which the complainant was injured. I am satisfied, having regard to the nature of our task, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of having assaulted the complainant.   Indeed, I think that the jury reached the only verdict open to it on the evidence considered logically and rationally.

1. I consider that Ground 1 fails.

Ground 2 – was the jury misdirected as to acceptance or rejection of a witness’s evidence?

1. The trial judge’s charge to the jury covers a little more than 14 pages of single spaced typing. It was direct, concise and to the point. His Honour directed the jury as to these things:

(a)his (the judge’s) role (AB 266bb.34);

(b)the jury’s role (AB 266bb.28);

(c)the appellant’s right to a fair trial (AB 266ff.21);

(d)the onus of proof (AB 266bb.15);

(e)the standard of proof (AB 266bb.21);

(f)the jury’s obligation to consider all of the evidence (AB 266ff.11);

(g)the jury’s acceptance or rejection of evidence (AB 266bb.44);

(h)the jury’s use of commonsense (AB 266ff.27);

(i)the jury’s drawing of an inference (AB 266cc.5-31);

(j)his (the judge’s) comments on the evidence (AB 266ff.4);

(k)counsel’s comments on the evidence (AB 266ff.6);

(l)an outline of the evidence (AB 266cc.33-266dd.5);

(m)“the most significant issue in dispute” in the trial (AB 266hh.14);

(n)the “ultimate issue” (AB 266ff.40);

(o)the need for a unanimous verdict (AB 266ff.44);

(p)the jury’s use of the appellant’s evidence (AB 266gg.7);

(q)the jury’s use of the evidence of the appellant’s good character (AB 266gg.19);

(r)identification and the use of a “photo-board” (AB 266jj.15);

(s)the essential elements of the charges (AB 266ll.43);

(t)the requirement of an assault by the appellant upon the complainant (AB 266nn.26);

(u)the meaning of recklessly (AB 266mm.26);

(v)the meaning of grievous bodily harm (AB 266mm. 45);

(w)the meaning of bodily harm (AB 266mm.37).

1. Except for the two sentences complained of, to which I will come, the appellant has not complained about anything said by the trial judge in his charge to the jury.

1. The appellant complained of the following two sentences (as emphasised) in the trial judge’s charge to the jury:

I have nothing to do with resolving the question of what happened on 28 May 2008. That’s a matter for you to decide if, indeed, you can decide what actually happened on that day. It is for you to determine what evidence you accept as truthful or what evidence you reject as being untruthful or unreliable. It is for you to decide what weight you may give to any particular piece of evidence or what inference you may be prepared to draw from evidence.

Now, I’ve told you that it is for you to determine what evidence you accept and what evidence you do not accept however this should not be a capricious decision. If you propose to reject the evidence of a witness that decision should be based on rational grounds. Such grounds may, for example, be provided by the cogency of other evidence but before you reject the evidence of a witness you should be able to point in your own mind to something which rationally allows you to reject that evidence. (AB 266bb.34 – 266cc.4) (emphasis added)

1. The appellant complained that, because of these sentences:

The trial judge in his summing up misdirected the jury in law as to the grounds on which they should accept or reject evidence of witnesses, and thus:

(i) impermissibly explained, qualified, undermined and contradicted His Honour’s directions on the criminal onus of proof beyond reasonable doubt; and

(ii) in effect, conferred on prosecution witnesses the benefit of a presumption of truthfulness.

1. The appellant submitted that, in broad terms, the trial judge “set the jury rigid rules which must be complied with before [it] can reject the evidence of any witness” which “... gave the Crown case an unfair advantage, which must be presumed to have affected [its] deliberations in a manner prejudicial to the appellant’s defence”. (Submissions, paragraph 16C). In other words, the appellant submitted that the trial judge’s direction “gave the benefit of a presumption of truthfulness [to a witness’s evidence] unless the jury was able to articulate a reason for rejecting [the] evidence”.

1. The respondent submitted that, considering the trial judge’s charge to the jury as a whole, it cannot be said that his Honour set any rule for acceptance or rejection of a witness’s evidence, or that his Honour created a presumption of truthfulness in favour of those witnesses who supported the Crown’s case and against those witnesses who supported the appellant’s case.

1. I accept the appellant’s submission that the two sentences emphasised above are not contained in and are a departure from the “usual” or “standard” direction as to the jury’s acceptance or rejection, in whole or in part, of a witness’s evidence (see R v Manunta SCSA 20 December 1988, unreported; Australian Criminal Trial Directions, Tilmouth and Glissan, Butterworths Loose Leaf Service; Criminal Trial Courts Bench Book, Judicial Commission of New South Wales, pages 1406 and 1407), but I do not accept that these sentences undermined the trial judge’s directions to the jury as to the onus of proof or conferred “a presumption of truthfulness” upon those witnesses who supported the Crown’s case.

1. The first point to be made, as submitted by the respondent, and as conceded by the appellant, is that the trial judge’s charge to the jury must be considered as a whole. His Honour emphasised both the onus of proof (AB 266bb.15; AB 266ff.35) and the standard of proof (AB 266bb.19; AB 266cc.19; AB 266ff.36 and 42; AB 266gg.29 and 39; AB 266hh.3). I fail to see that the jury could have been in any doubt as to the onus of proof or the standard of proof.

1. The second point to be made is that, as noted by both the appellant and the respondent, after the trial judge had directed the jury in the words complained of by the appellant, his Honour directed the jury in the following terms:

Now, it is for you to assess the various witnesses that you have seen and heard and to decide whether they are telling the truth or whether their evidence is reliable. You have seen each of the witnesses that have given evidence and it is a matter for you entirely as to whether you accept the evidence of any particular witness. Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things including what the witness has to say, the manner in which they say it and the general impression which they make upon you when they are giving evidence. All of these things you can take into account when determining to accept or reject the evidence of a particular witness. It is, of course, entirely up to you whether you accept all of the evidence of a particular witness or reject all of their evidence or accept some of it and reject other parts of the evidence of a particular witness. There is no reason in law or logic why you should reject all of the evidence of a witness simply because you find that you cannot accept part of it. You may, if you think fit, accept part and reject part of the same witness’ evidence. The fact that you do not accept a portion of the evidence of the witness does not mean that you should reject all of it. ... It does not mean that you should reject the remainder of that evidence if you think that it is worthy of acceptance. (AB 266ee21-42)

1. I consider that the jury could not have been in any doubt as to its acceptance or rejection, in whole or in part, of any witness’s evidence.

1. The third point to be made is that, if the sentences complained of conferred upon any witness “a presumption of truthfulness” (and I do not accept any such presumption), then the “presumption” was conferred upon every witness, including, specifically, the appellant, about whose evidence the trial judge said:

If you [the jury] are unable to find any rational reason for rejecting the evidence of the accused then you must acquit him of the charges. (AB 266gg.32)

1. The last point to be made is that the appellant’s trial counsel did not raise any objection to, or seek a redirection in relation to that part of the trial judge’s charge to the jury of which the appellant now complains. Who better, I ask rhetorically, than the appellant’s trial counsel to consider whether part of the trial judge’s charge to the jury is inaccurate or inappropriate? I respectfully agree with the comment by Latham J in Richardson v R [2013] NSWCCA 218 at [97] that:

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakin v R [2007] NSWCCA 373; (2007) 70 NSWLR 476 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].

1. I consider that Ground 2 fails.

The proviso

1. Section 37O(3) of the Supreme Court Act provides that:

However, the Court of Appeal may also dismiss an appeal against conviction if it considers that –

(a)the point raised by the appeal might be decided in favour of the appellant, but

(b)no substantial miscarriage of justice has actually occurred.

1. I consider that, had I found that the part of the trial judge’s charge to the jury now complained of by the appellant was inappropriate or wrong, I would have found that no miscarriage of justice, substantial or otherwise, had actually occurred.

1. I would dismiss the appellant’s appeal against the conviction.

I certify that the preceding forty-eight (48) paragraphs numbered [15] to [62] are a true copy of the Reasons for Judgment herein of his Honour Acting Justice Nield

Associate:
Date:     20 December 2013

Counsel for the appellant:  Mr B Gross QC
Solicitor for the appellant:  Collaery Lawyers
Counsel for the respondent:  Mr J Lundy
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  1 August 2013
Date of judgment:   20 December 2013