Jose v The Queen

[2013] VSCA 353

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0146

NEIL JOSE

v

THE QUEEN

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

DETERMINED ON THE PAPERS

JUDGE	ASHLEY JA
WHERE HELD	MELBOURNE
DATE OF JUDGMENT	4 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 353
JUDGMENT APPEALED FROM	R v Jose (Unreported, County Court of Victoria, Judge Gucciardo, 9 July 2013)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Aggravated burglary - Intentionally causing serious injury – Whether reasonably arguable substantial miscarriage of justice - Jury questions after long period of deliberation - Whether judge, by his re-directions, ‘stepped into the arena’, ‘overawed’ jury, or made a comment without so identifying it – Judge’s tone, manner and demeanour when re-directing jury – Leave to appeal granted only against conviction on charge of intentionally causing serious injury – Possible consequences for sentence on charge of aggravated burglary – Section 277(3), Criminal Procedure Act 2009 – CMG v The Queen [2013] VSCA 243.

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Appearances:	Counsel	Solicitors
No Appearances

ASHLEY JA:

1. The applicant, Neil Jose, having pleaded not guilty, was found guilty by a County Court jury on 29 May 2013, and was sentenced on 9 July,  for the following offences:

Charge	Offence	Maximum		Sentence	Cumulation
1.	Aggravated burglary [s 77(1)(b) Crimes Act]	25 years		5 years	Base
2.	Intentionally causing serious injury [s 16 Crimes Act]	20 years		5 years	15 months
Total effective sentence:			6 years 3 months
Non-parole period:			4 years
Pre-sentence detention:			42 days

1. The applicant having been found guilty of intentionally causing serious injury, it was unnecessary for the jury to consider an alternative charge (Charge 3) of recklessly causing serious injury.

Circumstances

1. The Crown case was that the offending took place on 26 January 2010 at a unit in an apartment block in St Kilda where the complainant was living with his partner. The applicant was staying ‘on and off’ at a nearby unit with a friend.  The applicant and the complainant had known each other for a few months, and occasionally had a drink together.  On the evening of 26 January, having announced to his friend and another person his desire to kill the complainant, in substance he invaded the complainant’s unit and there kicked and punched the complainant repeatedly, and later slashed the complainant a number of times with a knife which the latter had taken up to defend himself, but which the applicant had seized from him.

1. The issues at trial were: (1) in relation to Charge 1, whether the applicant entered the complainant’s unit as a trespasser with an intent to assault the complainant; and (2), in relation to Charges 2 and 3, the applicant’s state of mind when he injured the complainant, and whether he was acting in self-defence.

1. It was not put in issue at trial that in combination the injuries sustained by the complainant constituted serious injury.  The judge so directed the jury.  No exception was taken to this direction.

1. The jury deliberated for a long time without verdict, then asked several questions of the judge.  His Honour was asked to explain the meaning of ‘intent’ and the meaning of ‘serious injury’. 

1. It was, I think, not clear at the outset whether the jury was having difficulty in deciding if the injuries suffered by the complainant in fact constituted serious injury.

1. The judge seems to have assumed, not without reason, that the jury was having such difficulty.  He gave this re-direction:

At one level, that is a matter for you to determine, using your common sense and your experience of life, But the law quite clearly says, that a combination of injuries such as those precisely suffered by [the complainant] can be a serious injury. Especially, I would have thought, and this is a comment of mine, the cut to the skin with a bladed instrument, with a sharp bladed instrument that cuts and opens the skin for a wound, would in all common sense be regarded as serious injury. 

1. But it became clear that this was not the problem.  Rather, it related to the question of the applicant’s intent.  For when the judge said -

There was no contest with th[e] issue [whether serious injury had been caused], and if I may say so, with respect, it seems to me that if you’re arguing about that, you’re arguing over a red herring,

The foreman replied -

No, we’re not, your Honour.  The question is more around in, for example, in the intention to cause serious injury, you said consider if it is not sufficient for [the applicant] to have only intended to cause injury.

1. Although the foreman later said that the jury wanted to know what the difference between injury and serious injury was, that should be understood as bearing upon the applicant’s intention.

1. The judge said this:

What is objectively a serious injury is a matter for you to determine.  I’ve told you that I need to tell you about that.  That is that you start off with a definition of injury, you apply your common sense to the totality of those injuries that he suffered and you ascertain in your own mind if you’re satisfied that what Mr Blanche suffered are serious injuries.  So that’s the first step.

So you start off with a definition that I’ve given you there as including all those things and whatever else in your common sense as a matter of ordinary experience you call an injury.  What you then, from that you ascertain is whether this amounts to serious injury and I’m sure you can decide that quite easily.  Does it amount to serious injury?  The issue as to intention and whether Mr Jose intended to cause serious injury is a definite issue.  That has to do with what he intended to do, not with what the result was.  He must have intended to cause serious injury when he took the actions with the knife.  At one end you may well decide on the facts that that’s exactly what he did, he caused serious injury.  The question for you is did he intend to cause that level.  So the question around intention, and I can’t define it any more for you, intention is a plain English word that means what it says;  did he intend to do that?  So you would need to ask yourself and analyse the evidence about whether someone in that situation wielding a knife and then having caused the injuries and having done the actions which caused those injuries would to your mind satisfy you must have intended to cause serious injury.  If the answer to that question is no, he didn’t intend to cause serious injury, he struck the bloke, a bare chested bloke with a sharp knife and cut into him and then slashed him across the back, but we don't find that he intended to cause serious injury under those circumstances, well then that’s what you decide.  If on the other hand you say well, no, we find that having done those actions in those circumstances he must have intended to cause serious injury, then that’s what you decide.  So these are all matters that are open for you to look at the evidence and then ask yourself the question, and again remember this is a process of drawing inferences, of drawing conclusions from established facts, so the exercise must have been well, what do we find are the proved facts?  Do we have proven facts to our satisfaction as to what the accused man did?  So here they are, one, two, three, four, five.  In the circumstances at which we find took place and are true, this is what he did.  From these proven facts what can we conclude?  What’s a reasonable conclusion to draw from that?  Except in this case it’s got to be the only reasonable conclusion.  So is the only reasonable conclusion that he must have intended to inflict serious injury when he wielded the knife?  Is it the only reasonable conclusion that anyone could draw, that you can draw?

You don’t have to look at the injuries separately and assess whether or not any one of them is sufficiently serious.  A person may suffer a serious injury because of the combination of injuries that he suffered and in relation to intent I can’t really give you a more expansive definition of intention except to say that he must have intended to injure Mr Blanche.  The element will not be satisfied if he only intended to injure him that’s it, not seriously injure.  For this element of intention to be met, he must have intended to seriously injure him, so if from all the proven facts you can only reasonably conclude that when he hit him holding the knife that he thought to himself well, I’m just going to cause him a bruise, or I’m just going to cause him some injury, then that would not be sufficient.  If you think instead that the inference is the only reasonable inference open is that when you wield a knife like that, that you’re going to cause serious injury, then you infer that he intended to cause serious injury.

If you are not satisfied that he so intended to cause serious injury, then you ask well, if he didn’t intend to seriously injure the complainant, at the time that he did the acts, was he aware that those acts would probably result in the complainant being seriously injured?  That is he knew that Blanche was likely to be seriously injured.  That’s recklessness.  And that’s the alternative that you have to intention.

So if you are not satisfied having a look at all the proven facts that the only reasonable inference that’s open from those proven facts is that Jose intended to cause serious injury, then in the alternative you would ask well, was he aware that the acts when he did the acts would probably result in Blanche being seriously injured.  That is, did he know that Blanche was likely to be seriously injured and he went ahead and did it anyway.  That’s what recklessness is.  And those two positions are a matter entirely for you.  I say again, and this is a comment of mine and not a direction of law, it seems to me that if you’re quibbling over injury, that you’re probably spending time thinking about an issue that isn’t an issue.  What’s important is whether you are satisfied from proven facts that when he inflicted serious injury he was intending to so inflict or whether he was reckless.

Grounds of Appeal

1. The judge’s re-directions give rise to this application for leave to appeal, which relies upon the following grounds:

Ground 1:The trial miscarried by reasons of the Learned Judges Directions, in particular:

a)The Learned Judge’s demeanour and tone when answering a question from the jury, relating to the intent of the Complainant at the relevant time, overawed the Jury.

b)The manner in which the Learned Judge delivered his direction, and the language used, amounted to a comment on the evidence, and no acknowledgement was made that it was such.

Ground 2:      By virtue of the matters raised in Ground 1, there was a substantial miscarriage of justice, in that:

a)The Learned Judge may have precluded the Jury from finding that the Applicant had a lawful excuse for causing injury to the Complainant, and:

b)The possibility of a finding of recklessly rather than intentionally causing injury was closed to the jury and:

c)The verdict on Count 1 was contaminated by virtue of the matters raised in Ground 1.

Submissions

1. The applicant complains that the judge, by his demeanour and manner when answering the question respecting intent, overawed the jury.  The jury could have been left in no doubt of his Honour’s view respecting the applicant’s intent - that is, it had been an intent to cause serious injury.  His forceful comments amounted to him ‘having descended into the arena to such an extent as to bring about a miscarriage of justice,’[1] leaving nothing for the jury to decide on the issue of intent.  Further, by his tone, demeanour and language when re-directing the jury in relation to intent, the judge in fact had made a comment on the evidence without identifying it as such.[2]  The timing of the guilty verdict – it came very soon after the re-direction - implies that the jury was heavily influenced by it.  In the event, there was a substantial miscarriage of justice.

   [1]R v Mathe [2003] VSCA 165, [73] (Eames JA).

   [2]R v Mong [2012] VSCA 203, where Callaway JA said this: ‘There is no doubt that a trial judge is entitled to comment on the evidence so long as it has been made clear to the jury that such comments are like the arguments of counsel, to be accepted or rejected as the jury sees fit.’

1. In respect of Ground 2, the applicant submits that the judge’s tone and demeanour, when directing the jury, in substance meant that self-defence was taken away from the jury.  Further, there was a real danger that his Honour’s re-direction on Charge 2 compromised the jury’s consideration of the mental element necessary to prove Charge 1.

1. It is submitted for the Crown, in essence, that neither the words used, nor the manner or tone in which those words were spoken by the judge, would have caused the jury to think that they were being directed to find the facts in a particular way.  Overall, the judge’s directions in response to the jury questions were balanced.  He appropriately made reference to the evidence relevant to the determination of the issues and reminded the jury of the respective cases of the prosecution and defence. 

1. Issues of tone, demeanour and manner having been raised, I have watched a DVD which contains his Honour’s impugned re-directions.

Resolution

1. I think it is not reasonably arguable that the judge influenced the jury to a conclusion that the complainant had in fact suffered serious injury.  The jury’s questions, properly understood, show that it had got beyond that issue.  Its focus was upon proof of intent, as applicant’s trial counsel recognised when he applied, as it appears, for a further re-direction.

1. There is no doubt that the judge expressed himself strongly about that issue.  In discussion with counsel, he used, inter alia, the adjectives ‘forthright’ and ‘adamant’[3] to describe his language.  The question is whether he impermissibly entered the arena.

   [3]In the context: ‘If I seemed adamant’.

1. Whilst I find it difficult to imagine how a reasonable jury, properly instructed,  could have had any doubt in inferring, as the only reasonable inference, an intention on the applicant’s part to inflict serious injury upon the complainant,[4] the fact is that the jury deliberated for a long time, that it sought the judge’s assistance upon a particular point, that the judge directed the jury correctly, but in expansive language which was adverse to the applicant, and that the jury then speedily arrived at its verdict.  I cannot conclude that it is not reasonably arguable that the jury was overborne, and that in consequence a substantial miscarriage of justice occurred.

   [4]If a Court of three was to reach a similar conclusion, Baini v The Queen (No 2) [2013] VSCA 157 [10], [18] and [24] might well be in point.

1. In my opinion, it is not reasonably arguable, on the other hand, that what the judge said impacted upon (1) the issue of self-defence which had been raised respecting Charge 2; or (2),  the jury’s consideration of Charge 1.  

1. It follows that I will grant leave to the applicant to appeal his conviction on Charge 2; but not grant leave otherwise. If the permitted appeal succeeds, a question might arise as to the sentence imposed on Charge 1. The language of Section 277(3) of the Criminal Procedure Act 2009, considered in CMG v The Queen,[5]  shows that the Court would be empowered to re-sentence the applicant on Charge 1 despite that Charge not being before the court as a subject of appeal.

   [5][2013] VSCA 243, [48]-[52] (Warren CJ), [133]-[137] (Redlich JA).

Disposition

1. I grant the applicant leave to appeal against conviction on proposed Ground 1, but subject to the Ground being amended to insert, after ‘trial’, ‘on Charge 2’.  I otherwise refuse the application.