McDonald v The Queen

[2010] NSWCCA 220

New South Wales
Court of Criminal Appeal

CITATION:	McDonald v R [2010] NSWCCA 220
HEARING DATE(S):	31 August 2010
JUDGMENT DATE:	30 September 2010
JUDGMENT OF:	Macfarlan JA at 1; Simpson J at 27; Hall J at 28
DECISION:	(1) Leave to rely upon Grounds 1 and 2 of the Notice of Appeal is refused; and (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – conviction appeal – former s 33 Crimes Act 1900 – wounding with intent to cause grievous bodily harm – whether trial judge erroneously directed jury that conviction could be based on recklessness – whether trial judge correctly directed jury on need to find both malice and intent to cause grievous bodily harm - CRIMINAL LAW – conviction appeal – self-defence – s 419 Crime Act 1900 – whether trial judge effectively reversed onus of proof – whether trial judge correctly directed jury that Crown required to prove beyond reasonable doubt that accused did not act in self-defence
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Rules
CATEGORY:	Principal judgment
CASES CITED:	R v Chai [2002] HCA 12; (2002) 76 ALJR 628 Thomas v R [1960] HCA 2; (1959 – 1960) 102 CLR 584
PARTIES:	Jeffrey Keith McDonald (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/5036
COUNSEL:	M Dennis (Appellant) J Pickering (Respondent)
SOLICITORS:	Legal Aid Commission Solicitor for Public Prosecutions

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/5036
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	6 March 2009

CCA 2008/5036

MACFARLAN JA
SIMPSON J
HALL J

30 SEPTEMBER 2010

Jeffrey Keith McDONALD v R

Judgment

1 MACFARLAN JA: On 6 March 2009 a jury found the appellant guilty of an offence under s 33 Crimes Act 1900, namely, that on 18 October 2007 he “did maliciously wound Terry Jaenke with intent thereby to do grievous bodily harm to the said Terry Jaenke”.

2 The offence carried a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years was applicable to it. On 12 March 2009 the trial judge, Garling DCJ, sentenced the appellant to a total term of imprisonment of nine years and four months with a non-parole period of seven years.

3 The appellant appeals against his conviction. He does not seek leave to appeal against the sentence imposed upon him.

Factual circumstances

4 The victim, Mr Terry Jaenke, resided in a residential unit that was part of a complex in which the appellant resided. On the evening of 18 October 2007 Mr Jaenke walked past the unit occupied by the appellant. Mr Jaenke gave evidence that as he did so he heard the appellant yell out, apparently to him, words to the effect of “[f]uck you”. Mr Jaenke said that he responded with words to the effect of “[p]iss off”. On Mr Jaenke’s evidence the appellant then ran towards him and struck his neck with a “cane-cutter”, a sharp-bladed implement. As he had put his hand up to protect himself, one of Mr Jaenke’s fingers was struck also. He was severely cut both on the neck and finger.

5 Two friends of Mr Jaenke gave evidence that the appellant was holding the cane-cutter and making aggressive statements when they arrived on the scene shortly afterwards. Three other residents of the unit complex gave evidence of aggressive behaviour on the part of the appellant not long before the incident involving Mr Jaenke occurred. An electronic record of a police interview of the appellant was admitted into evidence. In the interview, the appellant admitted striking Mr Jaenke with the cane-cutter but claimed that he had done so in self defence.

6 The grounds upon which the appellant appeals and my responses to them are as follows:

Ground 1: That the trial judge erred in directing the jury as to the requisite intent necessary to establish the offence beyond reasonable doubt

7 At the date of the offence s 33 Crimes Act was in the following terms:

“ 33 Wounding etc with intent to do bodily harm or resist arrest
Whosoever:

maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,


with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person,

shall be liable to imprisonment for 25 years”.

8 At the trial it was therefore necessary for the Crown to establish beyond reasonable doubt that:

(a) the appellant wounded Mr Jaenke;

(b) that he did so maliciously; and

(c) that he did so with the intention of causing grievous bodily harm to Mr Jaenke.

9 At the date of the offence s 5 Crimes Act stated the following in relation to the word “maliciously”:

“ Maliciously : Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime”.

10 To establish beyond reasonable doubt that the act of wounding was done “maliciously” it was thus sufficient for the Crown to establish beyond reasonable doubt that the attack was done “recklessly”. Section 5 did not affect the need for the Crown to establish the separate element of intent to cause grievous bodily harm.

11 In his Written Submissions on appeal counsel for the appellant quoted a lengthy passage from the Summing-Up of the trial judge, which commenced as follows:

“Now I want to come to malicious. The Crown must prove to your satisfaction beyond reasonable doubt that when the act was done that caused the injury to the victim the accused did that act maliciously. The term maliciously does not here mean wickedly or some other term with a similar meaning. Acting with malice or maliciously means that at the time of committing the act giving rise to the charge the accused acted either with the actual intention of inflicting the kind of harm that was, in fact, done or he was reckless as to whether that harm would occur or not, and that the accused when he committed the act had no lawful cause or excuse for acting as he did. The term malicious or maliciously here relates to the consequences of the accused’s actions” (Appeal Book p 17).

12 In the remainder of the passage, his Honour made three further references to proof of recklessness being sufficient to prove that the appellant’s wounding of Mr Jaenke was malicious.

13 The appellant’s counsel submitted on appeal that these directions “misstate[d] the law with respect to the offence charged under section 33 of the Crimes Act 1900 (NSW) in that it was erroneously left open to the jury to convict the appellant on the basis of recklessness” (Written Submissions [20]). I do not accept this submission.

14 At the point of the Summing-Up to which the appellant referred, his Honour was plainly and expressly dealing with the element in section 33 of malice. By reason of s 5 Crimes Act, as it then stood, the fact that the appellant acted maliciously was able to be established by proof that he acted recklessly. Counsel for the appellant did not contend otherwise.

15 Having given the jury directions about the need to be satisfied that the act was done “maliciously”, the trial judge said:

“You must also be satisfied that the accused did this act with intent to do grievous bodily harm. The accused has raised a lawful excuse in answer to the charge, that is, he did not act with malice or maliciously and that is that he acted in self-defence. And I will return to that shortly.
Now the other issue that I have got to raise with you is this. When you are considering the elements you have to consider intoxication. You will remember that when the accused spoke to the police he told them that he had consumed some alcohol. One of the matters you have to consider on the question of intent to inflict grievous bodily harm is the effect upon the accused of alcohol which he says he consumed. As a matter of law evidence of self-induced intoxication by drink is relevant in determining whether the accused had formed the requisite intention to commit the offence charged. It is for the Crown to satisfy you beyond reasonable doubt that the accused had the intent to inflict grievous bodily harm upon the victim notwithstanding the evidence relating to the ingestion by him of alcohol prior to the alleged conduct in question. If the Crown has failed to so satisfy you then the accused must be acquitted” (emphasis added, Appeal Book pp 18 – 19).

16 By the opening words of this passage his Honour in my view sufficiently clearly indicated to the jury that it needed to be satisfied not only that the act was done maliciously but also that it was done with intent to inflict grievous bodily harm. The passage quoted in [15] above is followed by one in which his Honour spoke in some detail about the possibility of an intoxicated person not being able to form the requisite intention.

17 The focus of his Honour on the possible effects of the ingestion of alcohol on the ability to form the requisite intent to cause grievous bodily harm was appropriate because on the one hand there was evidence that the appellant had been drinking and on the other hand overwhelming evidence that, but for any effect intoxication might have had on his capacity to form the requisite intention, the act was done by the appellant with intent to cause grievous bodily harm to Mr Jaenke. The function of the trial judge was to tailor his Summing-Up to the issues that arose in the trial and not to engage in a discussion of matters of which it was unnecessary for the jury to be apprised (R v Chai [2002] HCA 12; (2002) 76 ALJR 628 at [18]). The fact that the injury was caused by a single blow to the head with a weapon as dangerous as a cane-cutter was itself some evidence of the relevant intent (see Thomas v R [1960] HCA 2; (1959 – 1960) 102 CLR 584 at 596). Moreover the appellant effectively admitted that he had that intent in his answers contained in the police Record of Interview. Those answers included the following statements:

“I just wanted to maim the bloke, or at least incapacitate the bloke to let him know that you don’t do that on my property” (A171);
“I just wanted to maim the bloke and get him off my property, mate, you know” (A266);
“I think it was a little bit slightly aggressive, to tell you the truth” (A267);
“I think I went a little too far, in respect of the down force motion “ (A268); and
“I think it was a build up of um, of a trauma that I was feeling, which brought out the aggression in me to try and capitalise on what was happening … [apparently a reference to his exchange of words with Mr Jaenke]” (A269).

18 The trial judge did not suggest to the jury that recklessness would suffice to establish the intent of the appellant to inflict grievous bodily harm although, quite properly, he did indicate that recklessness would suffice to establish that the act was done maliciously. Save for the effect of alcohol on the appellant, the question of whether the appellant intended to inflict grievous bodily harm could not have been regarded as in dispute and his Honour was accordingly justified in referring to it in his Summing-Up only briefly except in relation to the effect of alcohol.

19 In conclusion on this topic I note that s 33(1) Crimes Act, as it now stands, requires only that a person who wounds or causes grievous bodily harm to a person have the intent to cause that or any other person grievous bodily harm before he or she can be convicted of such an offence. The removal of the element of malice from s 33 eliminates the overlap, manifest in the trial judge’s directions recorded at [11] and [15] above, that existed between the elements of malice and of intent to cause grievous bodily harm in an offence against s 33 Crimes Act, as it stood at 18 October 2007.

Ground 2: That the trial judge erred in his directions to the jury concerning the issue of self-defence in that his Honour cast an evidentiary onus upon the appellant to have the jury accept his version of events

20 The appellant relied upon the following passage in the trial judge’s Summing-Up:

“What you have got to do is establish a set of facts which you are satisfied of beyond reasonable doubt. Because what the accused has said to you, in effect, amounts to this, that he was acting in self-defence. The reason I said to you if you were satisfied of what Terry Jaenke told you is there is no self-defence comes into that version, that is a version where he is attacked without warning and Terry does not do anything, it is just a straight attack on him. Self-defence does not come into that. Where self-defence comes into it is if you accept the only other version, which is the version he gave to the police. His version there is totally different and that does raise self-defence” (Appeal Book pp 19 – 20).

21 The appellant submitted that these directions were “in direct contradiction to s 419 Crimes Act” which states that if the accused raises a defence of self-defence “the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence”.

22 In the second sentence following the passage upon which the appellant relied, his Honour said “Now I will give you a direction then in relation to self-defence”. His Honour then proceeded to give the jury a lengthy direction on that topic that included the following passages:

“Although self-defence is referred to as a defence it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused’s stabbing was not done by the accused in self-defence, the Crown has the onus of showing you that it was not. It may do this by proving beyond reasonable doubt that either; (1) the accused did not believe at the time of the stabbing that it was necessary to do what he did in order to defend himself; or that the stabbing by the accused was not a reasonable response in the circumstances as he perceived it. For the Crown to eliminate self-defence as an issue it must prove beyond reasonable doubt one or the other of those matters, it does not have to prove both of them. If you decide that the Crown has failed to prove either one of them then the appropriate verdict is one of not guilty” (Appeal Book pp 20 – 21).
“If you find that the accused did have or that it is reasonably possible that he may have had the belief [that his conduct was necessary for self-defence] it matters not that his belief may have been mistaken. If, however, the Crown establishes beyond reasonable doubt the accused did not personally believe that his conduct was necessary for his defence then the Crown will have succeeded in eliminating self-defence” (Appeal Book p 21).
“So I just make it quite clear what I have just said to you. If you are satisfied of what Terry Jaenke told you occurred, satisfied always beyond reasonable doubt, then there would be no element of self-defence in his version” (Appeal Book p 22).

23 Earlier in his Summing-Up the trial judge had said:

“There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt” (Appeal Book p 12).

24 In my view the trial judge made it clear to the jury that, the appellant having raised the issue of self-defence, the Crown was required to prove beyond reasonable doubt that the appellant did not act in self-defence. As the Crown put in its Written Submissions on appeal (at [82]) the passage relied upon by the appellant to show the trial judge misdirected the jury as to the use of self defence (see [20] above) was “clearly [a] pre-amble of his Honour to the actual direction, as opposed to the direction on self-defence itself”. Taking the Summing-Up as a whole, I consider that the trial judge clearly directed the jury that the onus of negativing self-defence beyond reasonable doubt lay upon the Crown.

Rule 4 Criminal Appeal Rules

25 Neither of the complaints that are the subject of the grounds of appeal were made at the trial. For the reasons I have given, I do not consider that either point has any merit. I see no reason why leave should be given to raise the points for the first time on appeal.

Orders

26 I propose the following orders:

(1) Leave to rely upon Grounds 1 and 2 of the Notice of Appeal is refused; and

(2) Appeal dismissed.

27 SIMPSON J: I agree with Macfarlan JA.

: I agree with the reasons of Macfarlan JA and the orders proposed by him.

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