Jozsef Marcus Bedi v R No. 4210 Judgment Nos. SCGRG 93/229, SCGRG 93/230 Number of Pages 7 Criminal Law and Procedure (1993) 68 a Crim R 539 (1993) 61 Sasr 269

[1993] SASC 4210

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DUGGAN(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing up - failure of trial judge to direct jury on relevance of intoxication - charges of threatening another with a firearm and endangering life - intoxication relevant to issues of intention, self-defence and the assessment of witnesses. R v Perks (1916) 41 SASR 335, R v Stokes and Difford
(1990) 51 A Crim R 25, referred to.
Information, indictment or presentment - element of offence not averred in information - consideration of Criminal Law Consolidation Act, 1935s 277(1) and Third Schedule - no miscarriage of justice occasioned by omission. R v McVitie (1960) 2 QB 483 referred to.

HRNG ADELAIDE, 20 September 1993 #DATE 8:10:1993
Counsel for appellant:     Mr D Peek
Solicitor for appellant:     Mr J Lister
Counsel for respondent:     Mr J Doyle QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal against convictions allowed.

JUDGE1 DUGGAN J The appellant has appealed against his conviction and sentence on charges of threatening another with a firearm and endangering life. The particulars of the charges upon which he was convicted are as follows:
     "First Count Statement of Offence Threatening Another
    Person with a Firearm. (Section 47a of the Criminal Law
    Consolidation Act, 1935.)
     Particulars of Offence Jozef Marcus Bedi on the 13th
    September, 1992 at Woodville South, without lawful excuse,
    threatened Scott Christopher McIntyre with a firearm.
     Second Count Statement of Offence Endangering Life. (Section
    29(1) of the Criminal Law Consolidation Act, 1935.)
     Particulars of Offence Jozef Marcus Bedi on the 13th
    September, 1992 at Woodville South, without lawful excuse,
    discharged a firearm, intending thereby to endanger the life of
    Scott Christopher McIntyre, or being recklessly indifferent as
    to whether the life of Scott Christopher McIntyre was thereby
    endangered.
     Third Count Statement of Offence Threatening Another Person
    with a Firearm. (Section 47a of the Criminal Law Consolidation
    Act, 1935.)
     Particulars of Offence Jozef Marcus Bedi on the 13th
    September, 1992 at Woodville South, without lawful excuse,
    threatened Scott Christopher McIntyre with a firearm.
     Fourth Count Statement of Offence Endangering Life. (Section
    29(1) of the Criminal Law Consolidation Act, 1935.)
     Particulars of Offence Jozef Marcus Bedi on the 13th
    September, 1992 at Woodville South, without lawful excuse,
    discharged a firearm, intending thereby to endanger the life of
    Scott Christopher McIntyre, or being recklessly indifferent as
    to whether the life of Scott Christopher McIntyre was thereby
    endangered." 2. The alleged victim, Scott McIntyre, gave evidence that he and the appellant attended a 21st birthday celebration on the evening of 12 September 1992. McIntyre said that he left the party at about 2.00 am with the appellant and a 16 year old girl. He agreed to give the appellant a lift home on the understanding that he could sleep the night at the appellant's house. When they arrived there the girl went to bed and the appellant and McIntyre drank alcohol and listened to music. After they had been at the house for some time McIntyre said that he saw the appellant walking around with a rifle. He said the appellant was "big noting" himself and at one stage he said to McIntyre, "Don't change that tape or I will shoot you". 3. Then, at approximately 3.00 am, the appellant, McIntyre and the girl returned to the house at which the party had been held. The house was only a short distance from the appellant's house. However they ascertained that the party had finished by this time and they returned to the appellant's house. 4. McIntyre said that he and the appellant continued drinking on their return to the appellant's house and they also smoked marijuana. It was not long after their return that the appellant produced the rifle once more. He threatened the appellant with it, telling him that he would shoot him. He continued to walk around the house with the rifle and then walked through the door of the loungeroom where McIntyre was standing. According to McIntyre the appellant pointed the gun at McIntyre's head, moved it to one side and then fired a shot. McIntyre said the bullet would have gone over his shoulder. There was evidence that it struck one of the walls of the loungeroom not far from the ceiling. McIntyre said that the appellant then remarked "See I could have killed you". The firing of the rifle on this occasion was relied upon by the prosecution as the basis for the offence charged in the second count. 5. The two men continued drinking together after this incident until the appellant went to his bedroom. McIntyre said he went to the door of the appellant's bedroom and called out to the appellant that he was weak. McIntyre then returned to the loungeroom and while he was lying on the lounge the appellant came in with the rifle and poked it in his ear and ribs. McIntyre's evidence continued:
    "He was poking me and then he sort of took one hand off
    the gun and started punching me in the side of the head, calling
    me a fucking idiot and this sort of stuff, and after he had
    finished poking me, I got up and he said 'Get out of here, I'm
    going to kill you'. I got up and started walking backwards to
    the door so I could see what he was doing. I opened the door,
    walked out backwards and all this time he has got the gun
    pointed at my head, saying 'Get out of here, I'm going to kill
    you'. I jumped the fence, walked alongside of my car to the car
    door, I still had the gun pointed at me and he shot another
    shot. I quickly started my car up, ducked my head and reversed
    back, got out of there." 6. According to the evidence the appellant was standing in the vicinity of the front door of the house when this shot was fired. The car was parked in the street on the same side as the house and about 30 feet from the front door. The driver's side was adjacent to the gutter and McIntyre was about to enter the vehicle through the driver's side door when the shot was fired. The projectile struck the front driver's side mudguard. It was the firing of this shot which constituted the prosecution case in relation to the fourth count. McIntyre said that he drove off to a friend's house and obtained a baseball bat with the intention of returning to the appellant's house. He said he abandoned this plan after reporting the matter to the police, but he did return not long after in order to throw a rock at the house. 7. It is unnecessary for the purposes of this appeal to examine the appellant's version of events in detail. He claimed that McIntyre created a disturbance in the house after the appellant refused to allow him to have intercourse with the girl. He said McIntyre was behaving in an irrational way, banging on the door of the appellant's bedroom and walking up and down the hallway. McIntyre refused to leave the house. The appellant said he loaded the rifle and fired a shot while it was pointing away from McIntyre. He then said to McIntyre "Are you going now?" Eventually McIntyre left the house but remained in the vicinity of the front of the premises. It was then that the appellant fired a shot into the front mudguard of the car. The appellant was asked why he fired the rifle both inside and outside the house and he replied:
    "Well, Mr McIntyre was totally irrational about the
    situation and getting quite volatile, and I was scared for my
    safety and my property, and I just wanted him to leave and I
    couldn't get him out. I tried several times to ask him, calm
    him down and to no avail." 8. The principal complaint raised by the appellant on appeal is that the learned trial judge failed to direct the jury on the relevance of the effects of intoxication to various issues which had to be considered including the intention of the appellant and the reliability of the witness McIntyre's account of the relevant facts. The only comment made by the trial judge on the effects of intoxication was when she said:
    "It is clear that on that night, both McIntyre and the
    accused had been drinking, and you might not find it very
    difficult to attribute any irrational behaviour on the part of
    one or the other of them to the effect of alcohol. That is a
    matter for you to decide, but no doubt it would be fair to say
    that neither of them admits to being so affected by alcohol that
    they cannot recall the events of that evening. Each of them has
    told you that they have a fairly clear recollection of the
events of that evening." 9. McIntyre stated that he was at the party for approximately five hours. He said that during that time he consumed about half a dozen glasses of beer and a drink of Scotch. He said he had taken a full bottle of Scotch with him to the party but left it in the boot of his car. When they left the party he thought the appellant was "pretty well sober". He said that he himself was sober. However it would appear that he and the appellant consumed the remainder of the bottle of Scotch (almost a full bottle) when they went to the appellant's house. They also smoked "a couple of cones each" of marijuana. While McIntyre was not prepared to concede that the alcohol and marijuana had very much effect on him, the appellant claimed that both of them were considerably affected by alcohol. The learned trial judge's comment that it was not difficult to attribute any irrational behaviour on the part of both men to the effect of alcohol underlines the relevance of the issue. 10. It is clear that the intoxication of an accused person, whether induced by alcohol, drugs, or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence to the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. It may well be that for one reason or another the defence does not wish to rely on evidence of intoxication, but that does not relieve the trial judge of giving the jury appropriate directions. (R v Perks (1986) 41 SASR 335) I respectfully adopt the summary of Hunt J in R v Stokes and Difford (1990) 51 A Crim R 25 at 32:
    "The disavowal by counsel then appearing for the appellants
    that intoxication was being raised as an issue, though no doubt
    made for tactical reasons which were bona fide thought to be in
    the best interests of their clients, did not relieve the judge
    of the duty to give directions in relation to that issue in this
case: Pemble (1971) 124 CLR 107 at 117-118, 130. Counsel cannot
    concede a matter of law to the disadvantage of the accused;
Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397.
    The Judge must comply with his duty to put to the jury any issue
    sufficiently raised by the evidence even if that issue gives an
    air of unreality to the case sought to be made by the accused in
relation to some other issue: Lawson and Forsythe (1986) VR 515
at 548; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported,
    Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ,
17 July 1990) at pp 1-2." 11. In my view the evidence as to the intoxication of the appellant and McIntyre was relevant to a number of issues which the jury was required to consider. In order to convict the accused on the counts of endangering life the jury would have to be satisfied beyond reasonable doubt that the appellant knew the discharging of the firearm was likely to endanger McIntyre's life and that he either intended such a consequence or was recklessly indifferent to its occurrence. In determining these aspects of the appellant's state of mind it was essential for the jury to consider the bearing which the effects of alcohol and drugs may have had on the appellant's appreciation of relevant facts and whether or not he formed the necessary intent inherent in the charge. (The Queen v O'Connor (1979-1980) 146 CLR 64 at 82; R v Tucker (1984) 36 SASR 135 at 139.) 12. The appellant's intoxication was also relevant to the defences of self-defence and defence of property which he raised. In deciding whether the prosecution had negatived a genuine belief that the actions taken by the appellant were necessary and reasonable in defence of himself or his property it was necessary for the jury to consider the effect of the consumption of alcohol and marijuana on his perception of events. 13. The relevance of intoxication was more limited in the case of the first and third counts, but it had a bearing on the jury's assessment of the reliability of the witness McIntyre and the issues of self-defence and defence of property. In my view the absence of any directions on intoxication must lead to the setting aside of the convictions on all counts. 14. An acceptance of this view would be sufficient to dispose of the appeal. However a discussion of the remaining grounds of appeal may be of assistance in the event of a retrial. It was argued on behalf of the appellant that an essential element of the charge of endangering life was not averred in the information and that the conviction on the two counts alleging that offence were void or fundamentally flawed. In so far as it is relevant s.29(1) of the Criminal Law Consolidation Act, 1935 provides as follows:
    "29. (1) Where a person, without lawful excuse, does an act
    or makes an omission -
     (a) knowing that the act or omission is likely to endanger the
    life of another; and
     (b) intending to endanger the life of another or being
    recklessly indifferent as to whether the life of another is
    endangered, that person shall be guilty of an indictable offence
and liable to be imprisoned for a term not exceeding 15 years." 15. In my view this provision is clumsily worded. Inherent in the requirement that the accused knew the act or omission was likely to endanger the life of another is the proposition that it was, in fact, likely to produce that result. Accordingly proof that it was such an act would seem to be an important element in establishing the commission of the offence. It is unsatisfactory that this should be left to inference from the wording of the section. 16. Given that this objective fact is an element of the offence, Mr Peek, for the appellant, argued that it was necessary to allege it in the information. If there had been an averment as to knowledge then I do not think that it would have been necessary to refer to the objective fact in the wording of the charge. If the information had followed the wording of the section it could not be criticised, although it would have been more appropriate if this element had been included. However there was no averment of the element required by s.29(1)(a), namely, that the appellant had knowledge that the discharging of the firearm was likely to endanger McIntyre's life. What then is the effect of that omission? 17. Section 277(1) of the Criminal Law Consolidation Act provides that every information shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge. This is to be read in conjunction with Rule 4(3) of the Indictment Rules in the Third Schedule of the Act which states: "The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence and, if the penalty for the offence charged is fixed by statute, may contain a reference to the section of the statute fixing the penalty." 18. These provisions follow the wording of the rules contained in the Indictments Act, 1915 (UK). The English rules have now been modified by the Indictment Rules, 1971 which require that the particulars in an indictment shall disclose the essential elements of the offence provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it. In R v McVitie (1960) 2 QB 483 the word "knowingly" was omitted from the particulars of an offence requiring proof that a person knowingly had explosives in his possession in circumstances such as to give rise to a reasonable suspicion that he did not have possession of them for a lawful purpose. The Court of Criminal Appeal drew a distinction between a "bad" indictment disclosing no offence known to the law (e.g. where it was laid under a statute which had been repealed) and an indictment which was simply defective or imperfect. In McVitie's case it was held that the indictment came within the latter category in that it described a known offence with incomplete particulars. It was held that the indictment had not given "reasonable information as to the nature of the charge", the requirement to be found in s.3 of the Indictments Act and s.277 of the Criminal LawConsolidation Act. As there had been no miscarriage of justice the proviso was applied. (See also the discussion of these provisions in the judgment of Cox J in R v Wong (1990) 54 SASR 297). 19. Despite the deficiency in the indictment the trial judge directed the jury that the knowledge required by s.29(1)(a) was an element of the offence and if the failure to allege such knowledge had been the only complaint it would have been appropriate, in my view, to apply the proviso. However, it should be made clear in a direction on the elements of this offence that knowledge implies another requirement, namely, the existence of the actual likelihood of endangering life. Although her Honour mentioned this aspect in passing at one stage in the summing up I think it should have been pointed out with more clarity that it was an element of the offence. In the circumstances it is unnecessary to consider whether the convictions on the counts alleging the offence of endangering life were vitiated as a result. 20. Mr Peek submitted that the convictions on the first and third counts are void for duplicity and uncertainty. He also contended that the jury should have been directed that there had to be unanimity upon a particular incident before a verdict of guilty could be returned. According to the argument there were various incidents which, on the facts led by the prosecution, answered the description contained in the first and third counts of "threatening Scott Christopher McIntyre with a firearm". 21. After reading the prosecution opening, the evidence and the summing up I am satisfied that the incidents upon which these two counts were based were identified to the jury as being the pointing of the rifle which immediately preceded each discharge of the weapon. In my view this was made clear to the jurors by the trial judge when she reminded them of McIntyre's evidence "of the events on which these counts rely". She then proceeded to read the evidence relating to the two shooting incidents including the pointing of the rifle at McIntyre which immediately preceded each incident. The conclusion that her Honour and counsel for both the defence and prosecution were of the same mind as to the factual basis of the counts receives further support from the fact that the experienced counsel who appeared for the appellant at the trial did not request further particulars of the offences as charged in the first and third counts; nor did he request the learned trial judge to further identify them at the conclusion of the summing up. This ground of appeal must fail. 22. Finally Mr Peek contended that an independent assessment of the evidence supports the conclusion that the verdicts were unsafe and unsatisfactory and that a judgment of acquittal should be entered on each count. I have reviewed the evidence in accordance with the duty of an appellate court when considering this ground of appeal but in my view it is not of such a nature as would require the order sought. However, in the light of the deficiencies in the summing up on the matter of intoxication, I am of the view that the convictions on all counts should be set aside and a retrial on those counts ordered.

JUDGE2 BOLLEN J In the light of the evidence of consumption of alcohol by the appellant I agree with the order proposed by Duggan J and with his reasons. I agree that there was no adequate directions "about alcohol". I agree, too, with His Honour's comments on the other grounds of appeal.

JUDGE3 MULLIGHAN J I would allow the appeal against conviction and sentence for the reasons given by Duggan J and I agree with the orders which he proposes.