Niciforo v The Queen
[2000] WASCA 318
•31 OCTOBER 2000
NICIFORO -v- THE QUEEN [2000] WASCA 318
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 318 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:91/2000 | 15 AUGUST 2000 | |
| Coram: | WALLWORK J PARKER J McKECHNIE J | 31/10/00 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order for retrial | ||
| PDF Version |
| Parties: | NAZZARENO NICIFORO THE QUEEN |
Catchwords: | Criminal law Self defence Direction to jury No new principles |
Legislation: | Criminal Code (WA), s 248 |
Case References: | Boughey v The Queen (1986) 161 CLR 10 Van den Hoek v The Queen (1986) 161 CLR 158 Domican v The Queen (1992) 173 CLR 555 R v Matthews & Ford [1972] VR 3 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NICIFORO -v- THE QUEEN [2000] WASCA 318 CORAM : WALLWORK J
- PARKER J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Self defence - Direction to jury - No new principles
Legislation:
Criminal Code (WA), s 248
Result:
Appeal allowed
Order for retrial
(Page 2)
Representation:
Counsel:
Applicant : Mr J D Allanson
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Butcher Paull & Calder
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Boughey v The Queen (1986) 161 CLR 10
Van den Hoek v The Queen (1986) 161 CLR 158
Case(s) also cited:
Domican v The Queen (1992) 173 CLR 555
R v Matthews & Ford [1972] VR 3
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of McKechnie J and to the orders proposed by his Honour.
2 PARKER J: I have had the advantage of reading in draft the reasons to be published by McKechnie J. His Honour has set out the essential evidence and the issues raised in this application for leave to appeal. I will not, therefore, go over these matters again.
3 The jury had to be directed by the trial Judge with respect to two offences. The first was that charged in the indictment, ie unlawfully causing grievous bodily harm with intent to do so. The applicant was acquitted of this offence. The second offence of unlawfully causing grievous bodily harm was open as a matter of law as a lesser alternative to the offence charged. The distinction between the two offences was the element of intention. The jury returned a verdict of guilty of this alternative offence.
4 When the jury was charged his Honour dealt with a number of issues, including self-defence, on the basis that his directions about those issues applied to both offences. Self-defence, of course, would operate to make lawful the assault of the applicant by which the grievous bodily harm was caused to the victim Worthington. It therefore relates to the element of unlawfulness which applied to both offences.
5 A little later in his charge his Honour turned specifically to the alternative offence of unlawfully causing grievous bodily harm. His Honour directed the jury that the elements which had to be proved against the applicant were that the accused caused grievous bodily harm to Worthington and that it was done unlawfully. He told the jury in effect that he had already directed them about the first of those elements and would not revise what he had said. But when his Honour turned to unlawfulness he said:
"If you are satisfied that the gun was discharged because the accused deliberately pulled the trigger and that the accused person intended or foresaw that the complainant would be struck by the pellets or that an ordinary person in the position of the accused would reasonably foresee that would happen, you would be satisfied that the doing of the grievous body harm was unlawful, I think."
- His Honour then went on to other issues, especially criminal negligence in the handling of the firearm by the applicant, after which his Honour in
(Page 4)
- effect summarised the direction he had given concerning the alternative offence. This summary included the following:
"Obviously if you're not satisfied either as to the doing of grievous bodily harm or as to the question of whether or not it was unlawful, members of the jury, it would follow that you would return a verdict of not guilty. Again, the rules that I have given you in relation to self-defence … apply equally in relation to the question of unlawfulness under the alternative charge."
7 Were there nothing else there would not be a problem with this. Unfortunately, there was also the specific direction which I have set out above. This dealt with the subject matter of s 23 of the Code - willed act and an event occurring by accident - but it concluded with the passage that if the jury were satisfied about willed act and event occurring by accident:
" … you would be satisfied that the doing of the grievous bodily harm was unlawful …"
- Section 23 is dealing with criminal responsibility, not unlawfulness. Yet the jury were positively directed they might find unlawfulness from a consideration of willed act and event occurring by accident. To compound the problem, no reference was made to self-defence which, on the basis on which his Honour charged the jury, was material to the issue of unlawfulness.
8 In my respectful opinion this portion of the charge left open the real possibility that the jury might have followed this positive direction when they considered the element of unlawfulness in its application to the alternative offence. It is not possible to regard the concluding reminder of the earlier direction about self-defence as sufficiently clearly removing this possibility.
9 There was also a limited redirection in response to a question posed by the jury during its deliberations. In this the trial Judge again directed that the Crown must prove the accused was not acting in self-defence and that:
(Page 5)
- "If a person acted in self-defence … and grievous bodily harm was thereby done while that person was lawfully acting in self-defence ... then plainly the doing of grievous bodily harm would not be unlawful." (emphasis added)
- His Honour went on to say in effect that he would not go over again the directions given earlier about self-defence. This redirection did not, therefore, overcome the problem which has been identified. In fact the use of the word lawfully could have served to redirect attention to the earlier positive direction about unlawful.
10 In my view there is a real possibility that the jury were led into material error when they considered the element of unlawfulness with respect to the alternative charge.
11 In this case it is possible the jury were persuaded of the applicant's guilt on the quite different basis of criminal negligence in the applicant's handling of his gun. Had that occurred the deficiency concerning the charge as to self-defence and unlawfulness would not be material. Both bases were left to the jury. It is not possible, therefore, to know from the verdict of the jury the basis for their verdict. The deficiency in the charge which has been identified cannot, therefore, be disregarded.
12 The respondent submitted that the deficiency could be disregarded because the applicant's case at trial did not specifically raise self-defence and, in truth, the evidence did not provide a sufficient basis for self-defence to have been left to the jury. At trial the defence relied on accident. It is clear that the jury, in the end, rejected this.
13 There is clear inconsistency between defences of accident and self-defence so that it is not surprising that the defence case at trial did not positively advance a case of self-defence. Of course, the issues relied on by the defence are material to the trial Judge's consideration of the matters to be dealt with in the charge to the jury, but they are not necessarily determinative. Subject possibly to the case where there is an express disavowal of a particular defence that is only arguably open, what must be dealt with in the charge are those matters of defence which are sufficiently supported by the evidence.
14 In my respectful view the trial Judge was justified in this case in taking the view that the issue of self-defence was adequately raised by the evidence. The jury were directed about self-defence. Given the evidence it cannot be concluded that it was not material to their verdict.
(Page 6)
15 Hence, in my view, the conviction of the applicant of the alternative offence cannot be allowed to stand.
16 Many other issues were raised by the applicant. None of them appeared to me to have the force of the issue of self-defence, but I need not deal with them because of the view I have formed that the conviction should be set aside.
17 For these reasons, I agree with McKechnie J that the applicant should have leave to appeal, the appeal should be allowed, the conviction should be set aside, and the applicant should be remanded to the District Court for retrial on the alternative count of unlawfully doing grievous bodily harm.
McKECHNIE J:
Introduction
18 In April 2000 the applicant was tried on an indictment alleging that on 4 May 1998 at Bentley, he, with intent to do some grievous bodily harm to Jason Peter Worthington, unlawfully did grievous bodily harm to Jason Peter Worthington.
19 On 10 April 2000 the jury found the applicant not guilty as charged, but guilty of the crime of unlawfully doing grievous bodily harm to Worthington. He was fined $3500.
20 In very brief terms, the Crown case at trial was that some youths, including Worthington, were making a noise outside the applicant's house where he had been asleep.
21 The applicant left the house with a loaded shotgun and a short time thereafter Worthington was shot. The essential defence as put by the applicant was that the shotgun had discharged by accident and further that the Crown had been unable to establish that the complainant had suffered grievous bodily harm.
22 In summary the trial Judge directed the jury as to the elements of the offence and directed them as to accident and the concept of criminal negligence. He also directed the jury as to self-defence under the Criminal Code s 248.
23 He advised the jury what in law was capable of amounting to grievous bodily harm.
(Page 7)
24 Each of these three areas of the trial Judge's directions are the subject of grounds of appeal.
25 In respect of the issue of self-defence, two questions logically arise. Even though the applicant did not explicitly claim that he was acting in self-defence, the trial Judge had an obligation to leave that issue for the jury's consideration if there was some evidence the applicant may have acted in self-defence. The applicant asserts that there was such evidence and that although the Judge directed the jury on the issue, his directions were wrong and led to a miscarriage of justice. The Crown asserts that there was no sufficient evidence to form an evidential basis for the defence and that in any event the trial Judge's direction in this regard was adequate.
Summary of the case at trial
Worthington's evidence
26 Jason Peter Worthington was 24 years at the date of trial. In May 1998 he was staying with friends in Stonehouse Crescent, Bentley. On 4 May he went to the movies with his two friends and another young man who lived in the house. The movies finished some time before 10 pm and he returned to the house, purchasing on the way a carton of full-strength beer. Back at the house the group started drinking. Worthington may have drunk up to 10 cans. Earlier that day he had smoked up to five cones of marijuana and had sniffed paint. He was drinking with Robert John McDerment and Christopher Sutton at their residence, which was the adjacent duplex. They each drank a some cans of beer and smoked marijuana. During the course of the evening the mood changed when Chris Sutton and his partner Hayley started fighting about their relationship. About 15 minutes later Sutton began calling Worthington names, causing Worthington to become pretty "pissed off". Sutton went up the driveway and jumped the fence and Worthington followed him. There was another name-calling incident and Worthington again gave chase. At that stage Worthington was in company with McDerment. He acknowledged that he may have punched Sutton when he caught up with him and that later he came back and he chased him again towards the corner of Bunning and Stonehouse Streets when he was in hot pursuit and angry. Eventually Worthington was standing on the road or the start of the driveway of the applicant's house, yelling out Sutton's name, when "A bloke came out of his front door with a light on". This person was the applicant. The applicant started yelling at Worthington and Worthington
(Page 8)
- started yelling back at him staying he was not doing anything wrong. The applicant was saying something along the lines that he thought "I was in his backyard - or something like that". Worthington thought the man was holding a stick. During the course of the yelling, Worthington told the man that he was not doing anything wrong but he was looking for something. The applicant started walking up to Worthington who walked towards the applicant until they were close together in the driveway, within arm's reach. Worthington acknowledged that he was walking towards the applicant up the driveway and was not quite sure whether the applicant was stationary or not. There was another person who came out to the front door, walked along the path and stood behind the applicant as Worthington might have continued to walk closer to the applicant. Worthington said he was holding his hands down by his side as he walked towards the applicant, but acknowledged at the preliminary hearing he had said that his hands were up. Specifically in relation to self-defence the following interchange occurred between counsel for the applicant and the witness:
"As you walked towards this man, it was very clear to you from what he was saying and from what he was doing that he was extremely distraught by your presence?---Yes.
Correct?---Yes.
He wanted you to go?---Yes.
And he made that very clear?---Yes.
You ignored that?---Yes.
And you kept walking towards him. Correct?---No. I didn't keep walking to him.
…
You were in a pretty agitated and angry state of mind when he spoke to you, weren't you?---Yes.
You had about ten cones of marijuana that day?---Yes.
At least ten cans of beer?---Yes.
And you had been sniffing petrol?---Paint.
(Page 9)
- Paint, sorry. Correct?---Yes, but it wasn't all day that I was sniffing paint.
No. You had been sniffing it just before you went up the road?---Yes".
27 Worthington conceded that the entire time he saw the applicant, the firearm was pointing to the ground and that he was not quite sure if he grabbed the barrel of the firearm, but he might have been trying to move the barrel away. Worthington was not quite sure whether he touched the gun or not, but if he did it would have been with his hand. Worthington denied any intention to threaten or assault the man and denied threatening him.
McDerment's evidence
28 Robert John McDerment gave evidence that he was 17 at the time of trial and that in May 1998 he was living at 28 Stonehouse Crescent, Bentley when he came to know Jason Worthington.
29 When Worthington chased after Sutton, McDerment followed. Worthington was looking around and yelling out for Sutton, seeing if he could see him anywhere, when somebody started yelling something from the top window of the applicant's house, saying:
"If you don't get off my property I am going to shoot you".
30 When that was said, Worthington said: "If you're gonna to shoot me, then shoot me", probably more than once. Then a roller door opened and the applicant and a woman walked out, the applicant holding something in his hand which was long and black and the lady had a big pole. The lady was speaking in a foreign language and seemed pretty angry. The applicant started to walk towards Worthington, who in turn, started walking towards the applicant until he was standing in front of him. Worthington walked approximately 3 to 4 metres up the driveway. As Worthington was walking up the driveway he may have been saying something to the man. He was flinging his hands about, both hands out at about shoulder level, fairly fully extended and palms up. The two came to within a couple of feet of each other. The thing in the applicant's hands was pointing in the air and then he brought it down and hit Worthington on the left side. The witness thought they were arguing before the applicant moved the gun but did not remember what was being said. Worthington's hands were moving around. The gun fired as soon as it
(Page 10)
- came down before the applicant turned around and walked back inside. McDerment considered that Worthington was not aggressive. Worthington was angry with Sutton but he was not aggressive towards anyone else. Worthington was "sort of" scary. By the time he got close to the applicant McDerment was pretty sure that Worthington's arms were down by his side. As he walking towards the applicant Worthington was angry, "… but I don't think he was like in a threatening way towards the man". The applicant "seemed" pretty calm.
Other Crown evidence
31 Another Crown witness who did not see the incident, described Worthington's state as "pretty agro and pissed off".
32 A ballistics expert, Constable Burnham, gave evidence that the firearm had a trigger pressure of 2.15 kilograms, the same as lifting up a shopping bag of oranges on one finger. Once the firearm is loaded, it must be manually put in a safe position. On this particular firearm the safety catch does not automatically engage.
The applicant's evidence
33 The applicant gave evidence that he was at the time of trial aged 57 years. He kept the shotgun in his walk-in wardrobe in an unloaded condition. On the night of the offence his son Ashley woke him by saying: "Mum, mum there's someone round the house. Call the police". His son then said: "Dad, there's someone around the house on the back. They tried to broke in [sic]". As the applicant got out of bed, he was scared for the safety of his wife and son. As he put it in his examination-in-chief:
"Well, I mean - there might be somebody you know broke in to bash them up with a knife or with a cricket bat because, I read in the paper, you know, I read things like that, so that's - so many things happen."
34 He got out of bed, took a cartridge from his drawer, put it into the firearm and put the safety catch on because he did not want the gun to go off. When he walked out in front of the garage he saw two people next to the letter box and told them to get out of there. In response, one of them said: "Shoot me" and started walking towards the applicant onto the grass around the letter box. The applicant said: "I don't want to shoot you. I
(Page 11)
- want you to get out of my property" and then kept walking. They were wagging their hands, walking and jumping around.
35 He was asked about his mental state:
"What were you thinking?---Well, in the minute I was very scared.
Why?---Scared of my life and my family inside, but all of a sudden I just heard the garage door open.
…
How would you describe the voice that you heard coming from this man?---Well, they were - 'Shoot me. Shoot me.' It's like angry, you know. They was go like - too crazy in there, you know. They was go like - too crazy in there, you know. I feel like nobody think.
After you told them to get off your property, did they move away from your direction?---No.
Did they go away?---No. No, they tried keep - still keep walking towards me".
36 His wife then came out through the roller door and said: "Help, help" very loudly. The applicant put the gun in his left hand and grabbed his wife and just dragged her into the driveway with him for her safety. The next thing he remembered was that he pushed his wife away and heard words: "You shoot me. You shoot me". He did not hear the gun go off. He did not deliberately point his weapon at Worthington and pull the trigger, nor did he intend to hurt him. He knew the safety catch was on.
37 In cross-examination the applicant confirmed that he was worried that someone might break into the house and hurt his wife and son. He was afraid for them and himself. The applicant said he got the gun, not to use, but to scare. He was asked the question: "Did they threaten you?", to which the reply was: "No, they didn't". Later he said he was scared and afraid for his life and his wife and child's life. He said he did not deliberately take the safety catch off and did not deliberately point the gun at the men who would not leave.
38 The following interchange occurred in cross-examination:
(Page 12)
- "Why didn't you take your right hand off the gun to do that?---It's because the other two men there was maybe 3 metres away from me and I was - you know, I didn't want them to take the gun because I think that they may have intention to take the gun, I suppose, you know.
Did either of them try to take the gun?---Well, you don't know what they think.
Did either of them try to take the gun?---I don't know. I have to wait for them to take it or - no, they didn't because they were still at 3 metres away from me."
Evidence of the applicant's wife
39 Maria Niciforo, the applicant's wife also gave evidence. From her description of the men, the tall one was shouting and the other was waving his arms, jumping "like a bird". She was asked:
"Did you see either of them make a threatening with their hands?---No, they were just jumping there, like, jump up and down".
The alternative routes to conviction
40 The main thrust of the applicant's defence was that the firing of the shotgun had been an act caused independently of the exercise of his will and that the harm to Worthington was an event which was caused by accident.
41 The defence did not specifically raise the issue of self-defence in counsel's speech to the jury.
42 Nevertheless the learned trial Judge directed the jury that it must consider whether the acts of the applicant could amount to self-defence.
43 In my opinion, he was right so to do. The trial Judge has a duty to instruct the jury as to the law. He is obliged to instruct the jury if there is evidence fairly open for their consideration on a particular issue, even if the issue is not particularly advanced by the accused at trial: Van den Hoek v The Queen (1986) 161 CLR 158.
(Page 13)
44 In one sense the question of self-defence was inconsistent with the issue of accident specifically relied on by the applicant. However the applicant was entitled to have the matter considered by the jury.
45 In this case the jury may have reached a conclusion to convict the applicant in one of two ways.
46 It may have reached the conclusion that the Crown had not disproved accident. If the jury reached this conclusion then it would have gone on to consider whether the accident was caused by a breach of the Criminal Code s 266, that is whether the applicant had failed in a duty of reasonable care in his control of a dangerous object, namely a loaded shotgun. If it so concluded beyond reasonable doubt, the jury would have convicted as charged.
47 The jury may have also reasoned by a different route to reach a conviction.
48 By its verdict it is clear the jury entertained a reasonable doubt whether the applicant intended to do grievous bodily harm when the weapon discharged.
49 Contrary to the applicant's evidence the jury may have been satisfied beyond reasonable doubt that the discharge of the weapon was a willed act by the applicant which caused grievous bodily harm to Worthington. If the jury came to that view, it would also have to be satisfied that the causing of grievous bodily harm to Worthington was unlawful, that is not authorised by the provisions of the Criminal Code and particularly s 248.
50 Because the jury's verdict is inscrutable, in order to sustain the conviction, it is necessary that the trial Judge's directions as to both Criminal Code s 248 and s 266 were correct.
Self defence against unprovoked assault
51 The Criminal Code s 248 provides:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."
(Page 14)
52 A person who, by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person: Code s 222.
53 It can be seen from the summary of the evidence, the applicant may well have thought that Worthington, by his bodily acts and gestures, was threatening to apply force and apparently had a present ability to effect that purpose. He had been shouting, advanced on to the applicant's land, may have been aggressive and appeared to be waving his hands about.
54 The learned trial Judge told the jury of the elements of the offence as charged and also those of the alternative count of unlawfully doing grievous bodily harm. He then dealt with the defences of self-defence and defence of dwelling, which he considered were applicable. He reminded the jury that the prosecution must prove the accused person did not act in self-defence and that it would be necessary to look at the position as it is in fact and also the position as it would have appeared to the accused person if he was acting under some honest and reasonable, but mistaken, belief as to the existence of some state of affairs.
55 Having read to the jury the definition of assault which I have set out above, he then said:
"What the law then says is that a person who is assaulted is entitled to use such force as is reasonably necessary to make effectual defence. I will just repeat that. A person assaulted is entitled to use such force as is reasonably necessary to make effectual defence. The law goes on to say that if the nature of the assault is such as to cause a reasonable apprehension of death or grievous bodily harm and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve himself or the person being defended from death or grievous bodily harm, it's lawful to use any such force as is necessary for defence, even though that force may cause death or grievous bodily harm.
In other words, members of the jury, their right to use force arises from an assault or an honest and reasonable mistaken belief that one is being assaulted. Their right is to use such force as is reasonably necessary to make effectual defence and that would include such force as the person honest [sic] and
(Page 15)
- reasonably believes is necessary to - reasonably necessary to make an effectual defence. So there's a principle in proportionality in other words, members of the jury, based on reasonable belief.
If the assault is not of a nature as to give a reasonable apprehension of death or grievous bodily harm, one is not entitled to use force in self-defence that might bring about either of those things, but if the assault is of such a nature as to create a belief on reasonable grounds that it's necessary to use deadly force - if you like, force that might cause death or grievous bodily harm - then the person defending himself or defending himself and others, or defending others, is entitled to use force at that level."
56 After dealing with related matters, he returned to the topic again, when he said:
"The elements of the alternative charge, members of the jury - firstly, the crown must satisfy you that the accused person did grievous bodily harm to the complainant. I have already dealt with that. I don't have to revise [sic] what I have said in relation to that and, secondly, the crown must satisfy you that if grievous bodily harm was done to the complainant by the accused that it was done unlawfully. If you are satisfied that the gun was discharged because the accused person deliberately pulled the trigger and that the accused person intended or foresaw that the complainant would be struck by the pellets or that an ordinary person in the position of the accused would reasonably foresee that would happen, you would be satisfied that the doing of the grievous bodily harm was unlawful, I think."
57 In my opinion this was a serious misdirection by omission.
58 When the jury came to consider the count of unlawfully doing grievous bodily harm the applicant was entitled to the jury's consideration of the issue of self-defence on that charge. By the process of reasoning under which they considered self-defence, the jury would have rejected the accident theory. Nevertheless the jury were not satisfied that the applicant intended to cause grievous bodily harm. In consequence he met one of the conditions within the proviso of s 248.
(Page 16)
59 The applicant was entitled to the jury's deliberation on the question whether his willed act was in the circumstances likely to cause death or grievous bodily harm.
60 The learned trial Judge effectively took this question away from the jury.
61 The learned trial Judge also departed from the language of s 248 when he told the jury "one is not entitled to use force in self-defence that might bring about either of these things". (My italics).
62 The test under the Code is that the force used is not such as is likely to cause death or grievous bodily harm.
63 It is often unfair to subject a Judge's directions to a semantic microscope. Nevertheless in this instance the departure from the language of the Criminal Code has caused a miscarriage.
64 When the Code speaks of "likely", it means "probable": Boughey v The Queen (1986) 161 CLR 10.
65 "Might" is the past tense of the verb "may", and is used as an auxiliary to express the actual possibility ("Macquarie Dictionary").
66 The circumstances of this case called for a direction which encompassed s 248 and related the law to the particular facts. Focus should have been given to the issue whether in the circumstances recounted by the applicant and the other witnesses, including Worthington's evidence that to his observation the firearm was pointing to the ground, the Crown had satisfied the jury beyond reasonable doubt that the act done by the applicant in using force reasonably necessary to make effectual defence was such as to be likely to cause death or grievous bodily harm.
67 After it had been deliberating for some time, the jury sought further directions on the alternative charge of unlawfully causing grievous bodily harm. The learned trial Judge correctly directed the jury on the meaning of "likely". However this direction was given in the context of the definition of grievous bodily harm as to whether the injury is likely to endanger life or is likely to cause permanent injury to health. It was not linked to the concept of likely to cause death or grievous bodily harm as found in the Code s 248.
(Page 17)
68 The learned trial Judge also redirected in brief terms on self-defence when he said:
"Now, there is no intent alleged as an element here. If a person acted in self-defence or if a person acted in defence of a dwelling and grievous bodily harm was thereby done while that person was lawfully acting in self-defence or lawfully in defence of a dwelling, then plainly the doing of grievous bodily harm would not be unlawful. So the crown must satisfy you that the accused person cannot rely on self-defence; in other words, the crown must satisfy you the accused was not acting in self-defence. The crown must also satisfy you the accused person was not acting in defence of a dwelling, and I directed you as to those two things and you have not asked me for a redirection in relation to those so I won't go to those again."
69 This re-direction did not cure the earlier direction because it referred back to it.
70 There has been a miscarriage of justice in relation to this aspect of the Judge's direction and the appeal should be allowed on grounds 1 and 2, the conviction quashed and a new trial ordered.
Criminal Negligence
71 In view of this conclusion it is unnecessary to deal comprehensively with the other grounds.
72 The applicant complains that the learned Judge's directions on mistake and criminal negligence were confusing and also led to a miscarriage of justice. It is submitted that the jury should have been specifically reminded of the applicant's evidence that he believed the safety catch was engaged.
73 I am unable to accept this submission. The factual matters in the trial were not difficult and I consider that the jury were adequately instructed as to both mistake of fact, if it arose, and the concept of criminal negligence. The learned trial Judge correctly directed the jury's attention to the Code s 266 and gave an explanation as to the standard of negligence required to sustain a conviction. He did not deal comprehensively with all the evidence but in my opinion there was no need so to do.
74 The trial was short and the facts upon which the Crown particularised as the failure of duty were in small compass.
(Page 18)
Grievous bodily harm
75 There was an issue at trial whether Worthington's injuries amounted to grievous bodily harm.
76 The Crown called Dr Zilm who gave evidence that he examined Worthington on the night of the incident and made notes of his examination. In his opinion the injuries met the definition of grievous bodily harm. He was extensively cross-examined on this opinion. The defence called Dr Goodheart. While he did not see or treat Worthington, he was able to comment on the observations of Dr Zilm and on his opinion. Dr Goodheart did not consider the injuries amounted to grievous bodily harm. He was also extensively cross-examined.
77 The learned trial Judge gave further directions to the jury in response to a request for such a direction. He said:
"… The reference to an injury being likely to endanger life or being likely to cause permanent injury to health is to the position as it would be if the injury was left untreated and a mere cosmetic injury, that is a scar or other disfiguration, does not constitute an injury to health.
It's for the crown to satisfy you that grievous bodily harm was done to the complainant in relation to the medical evidence. Obviously that involves more than simply preferring the evidence of one doctor to another; that for you to be satisfied that the complainant did sustain grievous bodily harm would involve - if the evidence of Dr Goodheart was to the effect that was not the case, would involve you rejecting that evidence and being satisfied as to the correctness of the evidence of the other doctor."
78 The learned trial Judge did not refer specifically to the evidence of each doctor. In my opinion his failure to do so did not give rise to a miscarriage of justice.
79 The issues were confined on the point and I do not consider the jury would have been assisted by a summary of the medical evidence.
Conclusion
80 Leave to appeal should be granted, the appeal allowed and the conviction set aside.
(Page 19)
81 An order should be made that there be a new trial on the charge of unlawfully doing grievous bodily harm.
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