McKay v The Queen

[2014] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McKay v R [2014] NSWCCA 187
Hearing dates:	23 July 2014
Decision date:	17 September 2014
Before:	Hoeben CJ at CL at [1] McCallum J at [75] Garling J at [76]
Decision:	In relation to both the conviction appeal and the application for leave to appeal against sentence, leave to appeal granted but appeal dismissed.
Catchwords:	CRIMINAL LAW - CONVICTION APPEAL - assault occasioning actual bodily harm - applicant and victim both prisoners - fight as a result of which victim suffered serious injury to an eye - whether verdict of jury was capable of being supported by the evidence - whether jury adopted an inappropriate line of reasoning - whether inconsistency in jury acquitting on primary judge but convicting on secondary charge - verdict open to jury - SENTENCE APPEAL - challenge to fact finding of sentencing judge - basis for challenge not established - appeal dismissed.
Legislation Cited:	Crimes Act 1900 - s 35(2), s 59 Evidence Act 1995 - s38
Cases Cited:	Mackenzie v R [1996] HCA35; 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 SKA v The Queen [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	Matthew James McKay - Applicant Regina - Respondent Crown
Representation:	Counsel: Mr D Dalton SC - Applicant Ms V Lydiard - Respondent Solicitors: Michael Bowe - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2011/268992
Decision under appeal	Date of Decision: 2013-05-17 00:00:00 Before: Huggett DCJ File Number(s): 2011/268992

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant was tried in the District Court of New South Wales before Huggett DCJ and a jury from 16 - 24 April 2013 upon two counts as follows:

Count 1: Recklessly cause grievous bodily harm contrary to s 35(2) Crimes Act 1900 and in the alternative,

Count 2: Assault occasioning actual bodily harm, contrary to s 59 Crimes Act 1900.

1. The jury acquitted upon the first count and convicted upon the second. Her Honour sentenced the applicant to a term of imprisonment of 4 years with a non-parole period of 3 years to date from 15 June 2011.

1. The applicant initially appealed against conviction only on the following grounds:

Ground 1: The verdict of the jury was unsafe and unsatisfactory and cannot be supported by the evidence and/or

Ground 2: The jury has adopted an inappropriate line of reasoning in seeking to differentiate between the elements of the two counts, when upon the evidence, there was no basis to do so, and there has been a miscarriage of justice accordingly.

1. During the course of oral argument, the applicant was granted leave to amend his Grounds of Appeal to add an additional ground by way of seeking leave to appeal against sentence as follows:

Ground 3: The sentence imposed was manifestly excessive in all the circumstances generally and in particular:

(i) Her Honour erred in finding beyond reasonable doubt that the assault involved the injury to the victim's eye; and/or

(ii) Her Honour erred in not finding the offence was constituted by the admitted punch to the rear of the victim's head resulting in a haematoma and/or

(iii) Her Honour erred in finding beyond reasonable doubt that the injury (to the eye) was caused by an object in the applicant's hand.

1. Since the conviction grounds of appeal raise issues of fact, it is necessary for the applicant to obtain the leave of the Court in order to pursue these grounds. Because the grounds of appeal do raise arguable issues, I would grant that leave.

The Crown and defence cases

1. It was the Crown case that the applicant and the victim were inmates at the Outer Metropolitan Multi-Purpose Correctional Centre (OMPC) on 15 March 2011. They were working in the laundry. The victim saw the applicant spraying some cigarette bumpers (cigarette butts) with Mortein and putting dirty underwear in the locker that belonged to Mr Morris, another inmate. The victim confronted the applicant about this. In response the applicant hit the victim on the back of the head and as the victim turned around, the applicant punched his eye. It was the Crown case that the applicant was holding a sharp object at the time and that this perforated the victim's eye. The victim was taken to hospital where the eye was removed.

1. It was the applicant's case that he tried to play a prank on Mr Morris. The victim saw him and approached him about it. The victim started a physical altercation with him and hit him in the face. While they were scuffling another inmate, Mr Lee, came up and tried to separate them. Mr Lee was holding a pen. The victim was injured and went down onto the ground holding his eye. The applicant punched him in the head and then went outside the laundry. The applicant denied stabbing the victim in the eye.

Factual Background

The Victim

1. The victim gave evidence that in March 2011 he was working in the laundry of the OMPC. On the day of the incident, there were about 15 inmates working there. One of those was a Mr Morris whom he had befriended. Mr Morris used to collect bumpers and would roll them up into cigarettes to smoke.

1. The victim said that he saw the applicant spraying Mortein on the bumpers in the ashtrays in the laundry at about 10.30am and at about 12.30pm he saw the applicant putting dirty underwear in Mr Morris' locker. The victim said that he challenged the applicant and said "Leave Red [Mr Morris] alone. Pick on someone your own size." He said that the applicant made a dismissive response but when he turned away, the applicant hit him twice in the back of the head. The victim said that as he turned around, the applicant "lunged at him with his hand, with his fist closed, there was something hanging out the end, and hit him in the right eye with it". The victim said that the item in his fist was silver and metal. He felt excruciating pain and went straight to the toilet. He then became aware that he had blood on his face, looked in the mirror and saw that he had a cut in his eye. The victim was taken to the clinic by a correctional officer.

1. The victim told the officer that he fell over and hit his head on a table. He said this because he did not want to be labelled a "dog". He told the people in the clinic that he fell over. He was taken in an ambulance to the Nepean Hospital. After 15 minutes he was transferred to the Westmead Hospital where he underwent surgery. In the ward after surgery, the victim told Mr Jones, a corrective services officer, that he had been hit in the back of the head and hit in the eye by the applicant.

1. The victim knew an inmate called Mr Lee. Mr Lee also worked in the laundry. The victim said that Mr Lee was not near him when he was hit by the applicant. Before the assault, he said that he last saw Mr Morris outside smoking near the back roller door of the laundry. Later, the victim described the object in the applicant's hand as "a sharp long object that was in his hand". He denied that he had challenged the applicant to a fight. He denied that he had spoken to Mr Morris after he returned from the hospital and denied that he had tried to influence Mr Morris in any way.

1. In cross-examination the victim denied that he was really angry and had challenged the applicant. He said that the hit to the back of his head was very hard. He said that he was dazed by it. He saw something sticking out of the applicant's fist but did not know how far out. The victim said that his nose was not hit and the fist went straight to his eye. The injury was to the white part of the eye between the pupil and the edge of his nose. He denied that Mr Lee stepped in between him and the applicant to break up the fight.

1. Later in the cross-examination the victim agreed that he had not mentioned that the object in the applicant's hand was silver or that it was metallic before the trial. He agreed that approximately a week after the incident when making a statement to the police he said that the weapon was definitely not a pen. By that time he had heard some rumours around the prison that Mr Lee had stabbed him with a pen. He did not tell the police anything about it being metallic or a silver object at that time. He did not tell the police that it was shaped like a key. He agreed that until he gave evidence in the trial, he had not described the object. He agreed that he did not know what object had hit his eye.

1. He was cross-examined as to what he had told the corrections officer at the Nepean Hospital. The victim said he could not remember the detail of what he had said but agreed that he did not tell the officer about a weapon being used by the applicant. The victim agreed that when he spoke to officer Fraser-Jones at Westmead Hospital he did not tell him that the object was metallic or a key, nor did he describe it as 6 - 7 centimetres long.

1. The victim denied that he had sought to influence Mr Morris or bribe him by offering him drugs and by offering to provide him with a residential address so that he was better able to obtain parole.

Mr Morris

1. Mr Morris gave evidence. His evidence in chief was as follows: On the day of the incident he was working in the laundry but stated that he did not recall seeing anything happen between the applicant and the victim in March 2011. He had lied to the police and most of what he told them in his interview with them was a lie. He lied to help out a friend. He lied when he told the police that the applicant had hit the victim from behind and that he had a key.

1. Mr Morris was then cross-examined by the Crown pursuant to s38 of the Evidence Act 1995 in relation to the statement which he had made to the police. Mr Morris agreed that he was concerned about the other inmates knowing that he had spoken to the police because they did not approve of anyone giving evidence as a prosecution witness. He said that he knew that the victim was defending him and that he wanted to do the right thing but still denied seeing the applicant hit the victim.

1. When Mr Morris was shown a DVD of his recorded police interview he said that it was all made up because he wanted to assist the victim. He agreed that he smoked bumpers and that he regularly collected them from other inmates.

1. When cross-examined on behalf of the applicant, Mr Morris said that he did not see the actual fight and that he was coached on what to say to the police by the victim and other people. He said that he was friendly with both the victim and the applicant. He said that the applicant did not put any pressure on him and no-one had threatened him on behalf of the applicant. He said that he had been offered inducements if he said the "right thing" to the police. He said that he was not told to tell the police about a key. That was just something that he heard from others.

Mr Lee

1. Mr Lee gave the following evidence. He was in his mid to late sixties in March 2011 and worked in the laundry at the OMPC five days a week. He knew the applicant because they were in the same wing, but they were not friends. He did not know the victim. He was sitting outside the laundry at the time of the incident. He knew that something had happened because people told him about it. After the incident there was a muster and he spoke to the police and told them that he did not see the incident. He told the police that he did not assault the victim.

1. Evidence was given by correctional officers Bristow, Moorhouse, Greenfield, Szegedi, Silvano, Fraser-Jones, Robinson and Hooker. Their evidence did not advance the Crown case significantly. Officer Bristow was in the laundry when the incident occurred but did not see it. When he spoke to the victim, he was told that he fell. He and other correctional services officers did not believe that story and the inmates in the laundry at the time were mustered and searched, as was the laundry area.

1. Officer Moorhouse conducted a more detailed search of the laundry on the day following the incident and found a piece of melted biro in the bin outside the toilets. It was not concealed in the bin. He did not see any blood on the biro. It looked like a pen that had been through the dryer. He said that fly spray was kept in his office and he did not recall the applicant asking for fly spray on 15 March 2011. He said that when the inmates were mustered, all that the search found was a paper towel with blood on it in a bin in the toilet area. This was not the same bin where the biro was located.

1. Officer Greenfield said that she spoke to the victim who told her that he had fallen. When she spoke to the applicant on the day of the incident, she noticed that he had a mark on his face. She arranged for him to be strip searched and locked up. His clothes were removed in case they were required for evidence. She thought the mark on the applicant's face was consistent with him being in a fight. She agreed that he was strip searched and segregated because she suspected that he might have been involved in a fight with the victim.

1. Officer Szegedi gave evidence about how keys were kept in the gaol. He said that each inmate had a key for their cell and that they generally kept it with them when they were not in the cells. He said that each key had the cell number printed on it and that there were two keys per cell in case one got lost. The inmates were just given a key and not a key ring. They could choose to wear it on a chain, keep it in their pocket or just leave it in their cell. The dimensions of the key were about 6.5 cms long, 9 mms wide, with the top of the key being about 2.8 cms wide. The narrowest point on the key which opened the lock was about 5 mms and the broadest part of the point was about 8 - 9 mms. He was not able to say when the inmates were searched but the keys or pens would not have been regarded as weapons.

1. Officer Silvano was told by the victim that he hit his face on the corner of a bench in the laundry. He also saw the applicant and noticed some redness on his face, which the applicant said were allergies.

1. Officer Fraser-Jones spoke to the applicant in the holding cell where he was kept after the incident. He asked about the mark on his face and the applicant said that he did not know how it got there. On 17 March he was an escort for the victim at Westmead Hospital. According to his notes, it was there that the victim told him that he was assaulted by the applicant.

1. By reference to his notes, officer Fraser-Jones said that the victim told him that the appellant was bullying "Red" and that he had stood up for him. He told the applicant to stop being a pest and harassing inmates who could not stand up for themselves. He confronted the applicant and then turned away. He then got a heavy knock to the back of the head. He turned around and saw the applicant standing there. He was hit in the eye by the applicant's right hand with an object that he could not identify.

1. Officer Robinson said that she spoke to the applicant on 16 March 2011 in the holding cells. She was the Acting Superintendent for the day. The applicant told her that there was evidence in the laundry that would prove his innocence and that he was concerned that it would be destroyed by the inmates if they were allowed into the laundry. He said that there was a blue biro that was used to stab the victim in the bin in the toilet area. He also said that Mr Lee from F Unit was the assailant. The applicant then told her "off the record" that he got into a fight with the victim and that Mr Lee yelled and said that he was going to help and then he saw Mr Lee with the pen. He did not see Mr Lee stab the victim.

1. Dr Kerdraon was an ophthalmologist. When the victim was admitted to the Nepean Hospital there was an open wound to his eyeball. He observed a small 3 mm L-shaped wound on the nasal side of the white of the eye. His evidence was that the injury would have been caused by a sharp object and that it was unlikely that a fist could have caused it. He was shown a photograph of a key and said that the key was more likely to have caused the injury than the pen casing.

1. In cross-examination Dr Kerdraon agreed that 5 - 6 mm, being the width of the key, was longer than the wound in the victim's eye. He said that the sharp object need not be an L-shape itself. He said that with the skin of the eye stretching, the object could have been about 4 mm wide. He agreed that the size of the cut did not tell much about the force that was used to cause the injury. He agreed that the history, which the victim gave to another doctor, was:

"Allegedly assaulted with a single punch to the right eye, falling backwards, hitting his head in the shower where he sustained swelling and bleeding to the right eye, as well as the loss of vision."

1. Because of the way in which the appeal hearing proceeded, it is necessary to set out in more detail the actual evidence of Dr Kerdraon:

"Q. In your expert opinion what did you consider might have made such a cut?

A. I would expect a sharp instrument, possibly pointy. Not so much a blunt instrument.

Q. So when you say blunt something like a fist, could a fist make that injury?

A. I could never say never.

Q. All right, yes?

A. But unlikely.

Q. Unlikely. So for that injury to occur I think it was described earlier as a penetrating injury, is that suggestive that something has actually gone into the eye?

A. Yes but a blunt injury can also cause an open globe just like a soccer ball being run over by a car can rupture and cause a blunt open injury but that was fairly small and there are certain places, weak spots in the eyeball that a rupture if caused by a punch or blunt injury would tend to break at and that was not one of them.

Q. So if you were asked, based on your assessment, to consider whether it was more likely that the injury you saw would have been caused by something like a key as opposed to, perhaps if the doctor could be given exhibit G, just take a moment doctor to look at what's inside but please don't take it out, and I just want to give you a photograph doctor and then I want to ask you a question. Now I have given you a photograph which is a photograph of a key and I have given you a plastic bag that has the outer casing of a pen, are you able to offer an opinion, in terms of your experience and what you observed, as to which would be more likely to cause the type of injury that you saw?

A. I would probably lean towards the key but only marginally 60/40 sort of --

Q. All right and why do you say that though?

A. Just because the injury was more elongated and the pen I presume, but I could be wrong, the pen had a metal tip at the time.

Q. No?

A. It was only the --

Q. Assume you are looking at the item as it is--

A. All right as is, unlikely then, I'd probably increase those odds to 80/20 to say it was the key, in favour of the key.

Q. And that's because?

A. That's because the key seems to have a sharper edge to it and that's on the scale of the eyeball a fairly blunt instrument, sorry the pen on the scale of the eyeball is a fairly blunt instrument." (18.4.2013 - T.69-17 - 70.11)

"Q. And I think on the previous occasion it was your opinion, was it not, that the key itself as you look at it, the key part of it had a width of something like half a centimetre, 5 or 6 millimetres, which was in fact longer than the wound you saw or measured in Mr Sharp's eye?

A. That's correct.

Q. So it was wider than the wound itself?

A. That's right.

Q. But of course as you suggested it's possible that the tissue stretched whilst it was being injured?

A. That's correct.

Q. If the tissue stretched whilst it was being injured do you then the next step is to assume that it has come back to its original state after the injury. Is that right?

A. That's right.

Q. So in order for something of this width to cause that injury one must first assume a stretching and then I guess a reversion back to its original state?

A. That's right.

Q. If the skin was stretched as a part of this traumatic injury is it possible that it would have remained in that stretched state?

A. That would - it's variable, so it can - it's somewhat elastic.

Q. Yep?

A. Meaning that it will revert back to its original size, original state, but also it's a laceration which is a part of the tissue that's actually touched and that won't close up.

Q. So it could just as well be that the thing that caused the injury, whatever it was, you've been given a choice of two things, but whatever it was had a width of 3 millimetres. That's also a possibility, isn't it?

A. That's a possibility." (18.4.2013 - T.71.46 - 72.29)

"Q. But again in order for it to have been a key just like this there had to have been some stretching of the tissue. Is that right?

A. Yes, there would've been.

Q. So I come back to my original proposition, sir. If we leave aside those variables, the assumption that there was some stretching and then the tissue came back to its original size, those two steps, if you left them out, if that didn't occur, the key you see here is too big to have caused that injury, isn't it?

A. If there were no stretching of the tissues?

Q. Yes?

A. That's correct.

...

Q. Can you tell the angle at which the sharp implement that caused this injury hit the eye?

A. No.

Q. Can you tell whether it was a puncture or a slicing motion that did it?

A. No.

Q. It could well have been more of a slicing motion?

A. It could have been.

Q. So going forwards and slightly sideways at the point of impact?

A. Possibly.

...

Q. The eyeball, if I could just take a step back, is a very thin piece of tissue, is that right?

A. Yes.

Q. I think you described a soccer ball as a good analogy. It's a closed unit. It's like a ball?

A. That's right.

Q. Which contains liquid, a jelly-like substance?

A. Amongst other things.

Q. Amongst other things, but it's a closed unit?

A. Yes.

Q. You describe there being a difference between a rupture and a laceration?

A. That's right.

Q. Could you just explain to the members of the jury what that difference is?

...

A. Sorry. So a laceration implies the use of a sharp instrument to actually make a cut through the tissues of the eye whereas a rupture implies no sharp instrument, just a sudden increase in the pressure of the eyeball that causes it to explode essentially.

Q. So I think you used the analogy of running over a soccer ball. So for the eye it would be something pushing against the eyeball so much so that there was a rupture?

A. That's right.

Q. It blew out?

A. That's right.

Q. So it wasn't that in your opinion?

A. It is not likely to be that, no.

Q. Blunt force trauma can cause injuries that look remarkably like lacerations, can't it?

A. Yes.

Q. Especially if the tissue is in some way forced to fold or back onto itself or pushed in an unusual way?

A. The eyeball is fairly slippery so it would be difficult. If you're insinuating that you can fold over the tissue of the eyeball, I think that would be fairly unlikely.

Q. A punch to the eye is quite a great deal of force on the eye, is it not?

A. At what --

Q. A punch to the eye?

A. At what force?

Q. Yeah, is a great deal of force on --

A. A great deal, yes.

Q. And that can result in injuries that look like lacerations?

A. It's always possible, yes.

Q. Was there anything in the look of this injury that allowed you to conclude it was not a laceration - I'm sorry, was not a rupture. I'm sorry about that.

A. So like, as I said before, I can't be 100 per cent certain that it wasn't a rupture but a rupture tends to occur at specific parts on the eyeball where there are weak spots such as the stitching of the soccer ball and this part where this wound was was not one of those weak spots.

Q. And that's relative to the other parts of the eyeball, is it not?

A. That's right.

Q. But the eyeball itself, what's holding it together is a fairly thin piece of tissue, is it not?

A. Yes." (18.4.2013 - T.73.11 - 75.37)

"Q. Doctor, you were asked many questions about what may be possible, correct?

A. That's right.

Q. And anything that's not impossible is possible. Is that correct?

A. That's right." (18.4.2013 - T.79.39)

1. Detective Senior Constable Stephen Crimston gave evidence but that evidence did not advance the Crown case beyond that already established by other witnesses.

The Applicant

1. The applicant gave evidence in the first trial. That evidence was recorded and the audio recording was played to the jury as Exhibit O during the second trial. The applicant said that he used to work in the laundry at OMPC, operating the washing machines. He knew the victim and he knew inmates Morris and Lee. He had assisted Mr Lee to move from H Wing where he was unhappy, to F Wing. After that Mr Lee used to cook him meals and they were friends.

1. On 15 March 2011 he tried to play a prank on Mr Morris by putting some female underwear from a nursing home in his locker which was in the kitchen area. The victim saw what he had done and a verbal exchange occurred between them. He walked out of the kitchen area but when he looked back he saw that the victim was following him.

1. The applicant described what then occurred as follows: the victim approached him and said "Do you want to have a go do you?" and then hit him on the right side of his face. He grabbed the victim's hands and they struggled. He hit the victim on his left cheek and they continued to wrestle. Mr Lee then came up on the applicant's right side and he was holding a pen. Mr Lee tried to separate them. He pushed Mr Lee away against the wall and looked at the victim and noticed that he was "going down" and holding his right eye. When he was going down, he hit the victim twice in the back of the head and then walked outside. He did not see Mr Lee stab the victim with the pen. He did not have a pen of his own, or any other stabbing implement. He did not stab the victim in the eye.

1. The applicant said that following the fight, he and other inmates were brought together for a muster. He was separated from the other inmates, strip searched and taken to a holding cell. Nothing was removed from him during the search. His injuries included a swollen eye and some marks on his arms and chest.

1. In cross-examination the applicant said that he saw Mr Lee holding a black biro in his right hand. He denied that he "invented this story to involve Mr Lee in the fight". He was intimidated by the victim because the victim was much heavier than him. Even though he was scared of the victim, he responded to his taunt in the kitchen because he would have appeared "weak" had he not done so. He agreed that in gaol the inmates like to sort things out between themselves and not involve the correctional officers. He agreed that Mr Morris was younger than most of the other inmates and also smaller.

1. He denied spraying Mortein on the bumpers and said it was not a low act to put the underwear in Mr Morris' locker. He said it was a joke because they were friends. He denied bullying Mr Morris. He denied that Mr Lee was vulnerable, or that he was a convenient fall guy.

1. The applicant did not have his key with him on the day of the fight. He did not lock his cell as he was in a privileged wing and no-one would steal from his wing. When the cells were locked, they could easily be opened with a butter knife. He denied having anything sharp in his hands or striking the victim with anything sharp. He denied hitting the victim in the back of the head. Mr Lee did not say anything when he was trying to break up the fight but he had a frantic look on his face. He did not tell the truth to the officers about the red marks on his face because he did not want them to think that he had been in a fight.

Mr Wu

1. Mr Wu gave evidence in the applicant's case. He knew Mr Lee as they had been in other gaols together. He was housed in F Wing with the applicant and Mr Lee. He understood that the applicant had assisted Mr Lee in moving to F Wing. Mr Wu used to work in the laundry as a folder and he knew Mr Morris and the victim. Mr Lee was the storeman and he counted the stock in the laundry. He used to write down figures on a piece of A4 paper with a pen. When he was not using his pen, he would put it in the pocket of his jacket.

1. Mr Wu said that on 15 March 2011 he and the applicant were teasing Mr Morris and calling him "a bum" because he used to pick up cigarettes from the floor. He did not see the applicant spray Mortein on the cigarette butts and he did not see him put underwear in Mr Morris' locker. He never saw the applicant lock or unlock his cell with a key. He could not remember if he ever saw the applicant wearing his key around his neck.

1. Mr Wu said that when the incident occurred, he was outside the laundry. He heard the victim say "Why don't you pick on someone your own size?" and he made reference to "Red". The applicant then called the victim a "fat cunt". They continued to verbally abuse each other and then it became physical. They said "Let's have a go" and walked inside the front of the storeroom. There were punches being thrown by both of them. He saw that Mr Lee was on the right side of the inmates who were fighting. Mr Lee was trying to get between them. The applicant had his fist clenched, but he could not see if he was holding anything. When the applicant walked out, Mr Wu saw his hands and there was no blood anywhere, nor did he see the applicant holding anything.

1. In cross-examination Mr Wu said that when he was talking to Mr Lee in the yard, Mr Lee used to say "If anyone messed with me, he'd stab them with a pin". Mr Wu said that he had a good view and watched the incident unfold. He did not see the victim fall down after the incident and he did not see blood on his face or see a tissue on his face. He denied that the applicant was a good friend of his but that he was just an associate. Mr Lee was not a good friend of his, but he remembered that Mr Lee used to have three or four pens in his pocket because it was boring in gaol. Mr Morris could not afford to buy cigarettes because he used his money for drugs. Mr Wu thought it was disgusting to pick up cigarette butts from the floor and he found it very funny. He agreed that when the applicant sprayed water on the floor, it made the butts useless to Mr Morris.

1. By way of further background, it is necessary to deal with a question received from the jury during their deliberations. The jury note (MFI 13) read:

"What is the relationship between the allegations in count 2 and the elements? That is, the elements do not refer to something in his hand."

After discussing the matter with counsel, her Honour responded to the jury as follows:

"Can I say this, members of the jury, you have before you the document that contains the elements for count 1 and the elements for count 2. And none of the elements for either count 1 or count 2 contain or include an element involving something in the accused's hand, the elements are as per this document.

The Crown's case and the evidence of David Sharp [the victim] was that there was something in the accused's hand but the elements are as per the document that you have been provided with. So all I can say is if you focus on the evidence and the way the Crown's run its case, we are not talking about theoretical possibilities here. The evidence is what is before you and I have told you not to speculate and not to guess and matters of that sort, so if you focus on the elements in the document that has been provided to you, that is what the Crown is required to prove beyond reasonable doubt."

1. In order to understand that direction, it is also necessary to set out her Honour's directions as to the elements of the offences. In relation to count 1, her Honour said:

"The elements that the Crown must prove beyond reasonable doubt before the accused can be convicted of Count 1 are as follows.

(1) That the accused cause grievous bodily harm to David Sharp. The words "grievous bodily harm" mean really serious bodily injury. Such injury need not be permanent, but it must be more than trivial or trifling. There is no dispute in this trial that David Sharp did in fact suffer grievous bodily harm as a result of an incident that occurred in the laundry on 15 March 2011.

...

The second element that the Crown must prove in relation to Count 1 is that the accused was reckless.

...

Grievous bodily harm is caused recklessly, and this is referred to on your document, if the accused realised that grievous bodily harm may possibly be inflicted upon David Sharp by his actions yet he went ahead and acted as he did anyway.

...

The accused cannot be found to have acted recklessly unless the Crown proves that he actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm occurring."

1. In relation to count 2, her Honour's directions were:

"The elements or ingredients that the Crown must prove beyond reasonable doubt before you can convict the accused of Count 2 are as follows. Firstly, that the accused was the person who assaulted David Sharp. Obviously you must be satisfied beyond reasonable doubt that it was the accused as opposed to any other person such as Anthony Lee who assaulted David Sharp.

There are four elements which constitute an assault. They are:

(a) a striking or a touching or the use of force by the accused to another person.

(b) That such conduct of the accused was without the consent of the complainant, Mr Sharp.

(c) That such conduct was intentional or reckless in the sense that the accused realised that David Sharp might be subject to immediate and unlawful violence, however slight, as a result of what he or she was about to do but took the risk anyway and went ahead.

(d) That such conduct was without lawful excuse.

There is no dispute here at all that to punch someone in the eye whether with something in your hand or not is an assault. There is no issue that it was unwanted. The real issue is whether it was the accused who did this as opposed to any other person such as Anthony Lee."

1. When the jury delivered its verdict and her Honour sought to reconcile their reasoning between count 1 and count 2, she did so as follows:

"Given the jury's resolution of the issue regarding identity in a manner adverse to the offender in Count 2, the jury's verdict of not guilty to Count 1 indicates either that they were not satisfied beyond reasonable doubt that the loss of the eye, constituted grievous bodily harm, a scenario which I reject, or the jury was not sufficiently satisfied that when the offender inflicted the injury to the victim's right eye that he acted recklessly. That is, the jury was not satisfied beyond reasonable doubt that the offender realised that grievous bodily harm may have possibly been inflicted to the victim by his actions."

Conviction Grounds of Appeal

Ground 1 - The verdict of the jury was unsafe and unsatisfactory and cannot be supported by the evidence and/or

Ground 2 - The jury has adopted an inappropriate line of reasoning in seeking to differentiate between the elements of the two counts, when upon the evidence there was no basis to do so, there has been a miscarriage of justice accordingly.

1. Although Ground 1 is expressed in terms of the verdict of the jury being "unsafe and unsatisfactory and incapable of being supported by the evidence", the applicant accepted that it was open to the jury to be satisfied beyond reasonable doubt that it was him and not Mr Lee who inflicted the injury on the victim. The real gravamen of the grounds of appeal is that once the jury had reached that conclusion, there was no rational basis in the evidence for the jury to acquit on Ground 1 but convict on Ground 2. The applicant submitted that the overwhelming inference was that the jury engaged in an impermissible line of reasoning and delivered a compromise verdict. The applicant submitted that it was in that way that the verdict was unsafe and unsatisfactory and could not be supported by the evidence.

1. The applicant submitted that support for that ground of appeal emerged from the way in which the Crown put its case, i.e. that the only real issue was the identity of the person who injured the victim's eye.

1. In that regard, the applicant called in aid the warning given to the jury by the trial judge:

"It would be quite wrong of you to find the accused guilty of count 2 simply because you could not all agree on the same verdict for count 1."

1. In making that submission, the applicant properly accepted that a jury is permitted to determine for itself what it considers to be the issues, quite apart from those determined by the parties and the trial judge, but that it can only give substance to such a consideration if there is evidence properly before it. The applicant did not challenge in any way the directions given by the trial judge as to the elements of the offences raised by the two counts.

1. The applicant put the same submission in a slightly different way. He asked (rhetorically) whether there was any evidence to differentiate between the mental element in count 1 and the mental element in count 2. If there were no proper basis for such differentiation, he submitted that the jury must have had a doubt about whether it was the applicant who struck the victim in the eye or whether he struck the victim in the eye with an object and either way, there was no proper basis for the jury to convict him on count 2 as opposed to count 1. He submitted that in order to do so the jury must have engaged in an inappropriate process of reasoning and that there had been a resulting miscarriage of justice.

1. The applicant submitted that at trial his counsel at no time submitted to the jury that if he was the person who stabbed the victim in the eye with an object, he might have done so without the requisite intent. The applicant submitted that this was because such a submission was not available in the circumstances. The applicant submitted that if he had stabbed the victim in the eye with an object, it was obvious in the circumstances that he must have done so with at least the realisation of the risk of serious injury.

1. In that regard, the applicant submitted that her Honour's attempt to reconcile the jury's verdict, (i.e. that the finding of guilt on the second count meant that the jury were not satisfied as to the mental element necessary to establish the first count) was simply not available on the evidence. The applicant submitted that such a distinction was not open despite the fact that the Crown had made a submission to that effect at trial when in the course of his address, the Crown said:

"If you have something sticking out of your fist and you punched someone in the face in the area of the eye, you realise the possibility that you can cause really serious harm but he continued nevertheless. And as you know Mr Sharp did suffer really serious harm. Members of the jury, the Crown submits when you carefully consider the evidence, you would be satisfied beyond a reasonable doubt that the accused is guilty of the first count on the indictment. If you have some concern about Mr McKay's state of mind but you're satisfied he punched Mr Sharp in the face causing the injury, then you will move on to count 2 and you were told and no doubt would be reminded the Crown must prove that he struck him as a result of which actual bodily harm was occasioned. No doubt the injuries, more than actual bodily harm, so if you accept that Mr McKay struck him in the face and you don't accept that he realised the possibility of what kind of injury could be imposed but nevertheless accept that he did, than you would return a verdict of guilty in relation to the alternative count." (23.4.13 - T.37.25 - .39)

Consideration

1. Because the first ground of appeal is expressed in the way in which it is, it is necessary to say something about that ground in its terms. It was common ground that the relevant principles as to how a Court of Criminal Appeal should approach the question was set out by the plurality (French CJ, Gummow and Kiefel JJ in SKA v The Queen [2011] HCA 13; 243 CLR 400. The guidance there provided by their Honours was:

"The task of the Court of Criminal Appeal

11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

...

14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.""

1. There is no issue that there was evidence to support the jury's finding that it was the applicant who struck a blow to the victim's right eye. There was conflicting evidence. The evidence in support of the Crown case was that of the victim, the statement made by Mr Morris to the police and in a negative sense, the denial of any involvement by Mr Lee. The applicant's case consisted of his evidence and that of Mr Wu. This was not one of those cases where a Court of Criminal Appeal could take into account objective evidence, or inherent improbabilities or probabilities arising from the evidence. The only independent evidence was that of the ophthalmologist, Dr Kerdraon, and even that evidence was not unequivocal.

1. This trial involved issues of credit which were fundamentally for the jury to determine. This Court has not had the benefit of seeing and hearing the witnesses. Suffice it to say that on a proper analysis of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that it was the applicant who struck the victim in the right eye. It follows that looked at on its own and in its terms, ground 1 has not been made out.

1. The next issue is whether there was a rational basis for the jury's acquittal of the applicant of the offence in count 1 and their conviction for the offence in count 2.

1. Assistance is provided by the plurality (Gaudron, Gummow and Kirby JJ) in Mackenzie v R [1996] HCA35; 190 CLR 348 at 366:

"3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case"."

1. In MFA v R [2002] HCA 53; 213 CLR 606 the plurality (Gleeson CJ; Hayne and Callinan JJ) made observations to similar effect:

"33 In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However, the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1 to 6 and count 9. The complainant was, to a significant extent, supported by MA.

34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in Mackenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

35 It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.

36 The test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment. ..."

1. Applying those principles, can the acquittal on count 1 and the conviction on count 2 be explained on the basis put forward by the Crown in its final submission and as explained by her Honour in her remarks on sentence - i.e., that the jury were not satisfied as to the mental element in ground 1, on the basis that the jury did not accept that the applicant realised that grievous bodily harm might possibly be inflicted on the victim, if he struck him in the right eye with an object in his fist. In my opinion it can. The reasoning would be that the jury thought that in the context of what seems to have been a fight between the applicant and the victim, where the victim was a very large person, no thought was given by the applicant to the possibility of serious harm being inflicted on the victim's eye.

1. On the evidence it was open to the jury to see a distinction between an assault with the deliberate use of a weapon against the eye, which would have sustained count 1, and an assault in which the applicant was holding an object but did not deliberately direct it at the victim's eye. There was no suggestion in the victim's evidence that the applicant took up an object by way of weapon for the purpose of hitting the victim with it. The victim's evidence went no further than that there was something hanging out from the end of the applicant's fist when he was struck.

1. The jury could well have entertained a reasonable doubt about the applicant's state of mind concerning the possibility of grievous bodily harm while accepting the victim's evidence that the applicant was in fact holding an object in his hand at the time he punched him.

1. Alternatively, the jury may not have been satisfied that the applicant had anything in his fist when he punched the victim. That this was a concern of the jury appears from the question which they asked. Their concern was not without a basis. The evidence of the victim from when he first disclosed that he had been struck in the eye by the applicant up to the time of trial, was that he thought the applicant had something in his hand but he did not know what it was. The more detailed description which suggested a key came from the victim for the first time at trial. There was otherwise no evidence at all that a key was involved, except for the fact that each inmate had access to a key. The evidence as to a biro shell (as distinct from an intact biro with a sharp point) was based on a rumour in the gaol and the finding of a biro case in the laundry bin. Testing of the biro case showed no trace of blood. Accordingly, there was no clear evidence as to what, if anything, the applicant had in his hand when he struck the victim in the right eye.

1. The victim's evidence was that he was struck a hard blow to the head which caused him to turn around, at which time he was struck in the right eye. There was no suggestion in the evidence that when the first blow was struck, there was anything in the applicant's hand. If it be the case that the applicant had something in his hand, he must have obtained it or placed it there between the time of the first blow and that of the second. The time between the two blows seems to have been very short and that may well have been a matter that the jury took into account.

1. Finally, the medical evidence was not decisive. Dr Kerdraon thought it more likely than not that a sharp object had caused the wound to the eye, but he could not exclude the biro case or a heavy punch. When one has regard to the unsatisfactory evidence as to the object being a key, the other possibilities which Dr Kerdraon accepted as real, come into play.

1. It follows that the jury's verdicts can be rationalised on either of those bases. It was open to the jury to find that the applicant was holding an object but did not deliberately direct it at the victim's eye or alternatively, it was open to the jury to have a doubt as to whether the applicant had any object in his hand at the time he struck the victim in the right eye. Either alternative provided a reasonable basis for an acquittal on count 1 but a conviction on count 2. On that basis, I am not satisfied that the jury's verdict was unreasonable and cannot be supported by the evidence.

Application for leave to appeal against sentence.

Ground 3: The sentence imposed was manifestly excessive in all the circumstances generally and in particular:

(i) Her Honour erred in finding beyond reasonable doubt that the assault involved the injury to the victim's eye; and/or

(ii) Her Honour erred in not finding the offence was constituted by the admitted punch to the rear of the victim's head resulting in a haematoma; and/or

(iii) Her Honour erred in finding beyond reasonable doubt that the injury (to the eye) was caused by an object in the applicant's hand.

1. In relation to the first two particulars of this ground of appeal, the applicant submitted that it was not open to her Honour to reconcile the two verdicts in the way in which she did, nor was it open on the evidence to find that the jury could have had a reasonable doubt that the applicant had an object in his hand when he struck the victim's eye. Accordingly, the only explanation for the jury's verdict was that they did not regard the blow to the eye as the action which constituted the offence in count 2.

1. That submission can be quickly dealt with. The blow to the back of the head, other than being described by way of background to the injury to the eye, played no part in any of the contested issues at trial. There were no submissions made in relation to it and it clearly formed no part of the jury's consideration. I have already indicated why it was open to the jury to acquit in relation to count 1 but still find beyond reasonable doubt that the applicant caused the injury to the victim's eye.

1. This leaves the third part of this ground for consideration. The applicant submitted that if contrary to his primary position, the Court were satisfied that there was a basis in the evidence for the jury having a reasonable doubt as to whether the applicant had something in his hand when he struck the victim's right eye, it was not open to her Honour to find beyond reasonable doubt that such was the case.

1. The precise findings by her Honour are to be found in her remarks on sentence as follows:

"Reacting to this hit the victim turned back around towards where the offender had been standing prior to him, the victim, having turned his back and the offender lunged at the victim with a closed fist and with "something" in his hand. The victim was hit once to the area of his right eye." (ROS 5.5)

"Notwithstanding resolution of this factual issue in the offender's favour, I am nevertheless satisfied that the offender while standing in close proximity to the victim made a deliberate movement toward the victim's face which landed in the area of his right eye and caused the injury to the offender's eye." (ROS 10.7)

"Based upon the evidence of Dr Kerdraon and the evidence of the victim, I accept beyond reasonable doubt that something was in the offender's hand, although I am unable to determine exactly what that item was." (ROS 11.5)

1. Although her Honour made that finding, she was very conscious of the lesser seriousness of the offence for which the applicant had been convicted. In that regard, her Honour said:

"Of course the offender must not be sentenced for an offence for which he has not been convicted. Nor can I take into account for the purpose of increasing the otherwise appropriate sentence a circumstance that would have warranted a conviction for a more serious offence than the one for which the offender stands to be sentenced. Accordingly, the offender must be sentenced on the basis that although he deliberately and intentionally assaulted the victim whilst something was in his fist, he did not intend to cause harm amounting to grievous bodily harm. To make this clear the offender cannot and will not therefore be sentenced on the basis that he recklessly caused grievous bodily harm to the victim which would of course constitute a more serious offence. He cannot and will not be sentenced on the basis he realised the grievous bodily harm may have possibly been inflicted by his actions. The Court must sentence the offender on the basis that the deliberate assault he occasioned to the victim caused injury of an extremely serious kind to the victim's right eye." (ROS 11.8 - 12.4)

1. As indicated, the jury acting rationally could well have entertained a reasonable doubt about the applicant's state of mind concerning the possibility of grievous bodily harm while accepting the victim's evidence that the applicant was in fact holding an object in his hand at the time he punched the victim. It follows that it was open to her Honour in the sentence proceedings to make that finding beyond reasonable doubt. The fact that there was another rational alternative available to the jury did not preclude her Honour making such a finding. Accordingly, the third part of this ground of appeal has not been made out.

1. For the above reasons, in relation to both the conviction appeal and the application for leave to appeal against sentence, I would grant leave to appeal but dismiss the appeal.

1. McCALLUM J: I agree with Hoeben CJ at CL.

1. GARLING J: I agree with Hoeben CJ at CL.

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Amendments

22 September 2014 - Typographical error

Amended paragraphs: 27

Decision last updated: 22 September 2014