R v Betts

[2018] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BETTS

[2018] SASCFC 2

Judgment of The Full Court (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)

18 December 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

The appellant was charged with causing serious harm with intent to cause serious harm. He was found guilty by way of jury verdict on the statutory alternative of recklessly causing serious harm. He appeals this conviction on the basis that the trial judge's directions to the jury as to the legal element of recklessness, illustrated by way of an example, caused them to return a guilty verdict on a mistaken legal basis.

Held per the Court (Kourakis CJ, Stanley and Doyle JJ), dismissing the appeal:

1. The trial judge's directions on the legal element of recklessness were correct and conformed to the definition within s 21 of the Criminal Law Consolidation Act 1935 (SA).

2.  The trial judge's imperfect example as to the distinction between intent and recklessness did not result in a miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) ss 21, 23, referred to.

R v BETTS
[2018] SASCFC 2

Court of Criminal Appeal:  Kourakis CJ, Stanley and Doyle JJ

1. THE COURT:      The appellant, Mr Betts, was charged on information with causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The jury returned a verdict of not guilty on the charged count but guilty on the statutory alternative of an offence of recklessly causing serious harm contrary to s 23(3) of the CLCA. Mr Betts has appealed against that conviction. Mr Betts was charged on the same trial of two counts of assault of others but was acquitted on both of those counts.

2. The prosecution adduced evidence from witnesses, including a Miss N who testified that on the night of 24 July 2016 on the main street of Port Lincoln Mr Betts, without any provocation, landed a very heavy punch to the back or side of the head of Mr B.  The reliability and veracity of at least some of those accounts were disputed but on aspects more directly related to the issue of self‑defence.

3. The witnesses gave evidence that Mr B fell to the ground where Mr Betts stomped on or kicked him.  The witnesses also described Mr Betts punching two other men who intervened.  That conduct was the subject of the two counts of assault of which Mr Betts was acquitted.

4. Mr Betts gave evidence in his defence.  He accepted that he punched Mr B who then fell to the ground but testified that he had gone to the defence of his nephew, Mr W.  Mr Betts testified that Mr B took a swing at him first before he punched him.  Mr Betts denied that he punched, kicked or stomped on Mr B whilst he was on the ground and that he intended to cause him serious harm. Mr Betts testified that he punched the other men in self-defence believing that they intended to attack him.

5. Mr W also gave evidence and he supported Mr Betts' account.  Mr W testified that Mr B became angry when he intervened in an attempt to stop Mr B hassling the young woman, Miss N.  However, Miss N was recalled after Mr W gave his evidence and denied that she was hassled by Mr B.

6. The Judge gave the following directions on the issue of recklessness:

   I shall now say something about alternative verdicts.  Where a person is on trial for a particular charge, the jury very often has available to it an alternative verdict which can be utilised where the jury is satisfied of some, but not all, of the elements of the main charge.  Generally the alternative verdict closely follows the structure of the main charge, but is less demanding in terms of its elements.  The first alternative verdict for count 1 is recklessly causing serious harm.  As you can see from page 2 of the memorandum, the elements of this charge coincide with the elements of the main charge insofar as the first, second and third elements are concerned.  The critical difference between this alternative and the main charge is that, instead of having to prove an intention to inflict serious harm, the prosecution need only prove that the accused was reckless as to causing serious harm.  Recklessness means that before he performed the act or acts which resulted in serious harm, he realised that there was a substantial risk of serious harm being caused in one way or another, but went ahead to perform the act or acts anyway.  Therefore if, when you are considering count 1 on the information, you are satisfied of elements 1, 2 and 3, but you are not satisfied beyond reasonable doubt of the fourth element on page 1, then you would acquit the accused of count 1 and move to the first alternative, the one I have labelled (a) and consider whether you are satisfied of the fourth element, being that of recklessness.  In presenting these alternatives to you, I do not mean to imply that you will come to consider them, or that you would look at one rather than the other, I simply present them because, depending on the way you find the facts, they could become relevant.  I make no comment about whether they will be or not.

7. After the jury retired they returned to ask the Judge to 'clarify the difference between intent and being aware from count 1.4'.  The Judge correctly surmised that the jury was seeking clarification about the concept of recklessness and gave the following further direction: 

   I think you are wanting to know what the difference is between an act which is performed with a particular intention, as against an act which is performed recklessly.  First, let me give you an example that is outside the facts of this case.  If I fire a gun with the intention of hitting someone, then that is obviously an intentional act and my purpose includes not simply pulling the trigger, but actually hitting someone.  So that is an intentional act and obviously that would be performed with the intention of causing serious harm. If I am simply reckless, I might fire the gun towards the main street, into the air, but towards the street.  I would know when I was doing that that there was a substantial risk that someone would be hit and hurt, but I might go ahead and do that act anyway.  That would be reckless, in the sense that I would know of that substantial risk of causing serious harm – I would recognise that risk – and notwithstanding recognising that risk, I would go ahead with it.  That is really the essential difference.  On the one hand, there is the intentional act with a particular aim in mind: to hit someone and cause serious harm.  On the other hand, there is an intentional act to pull the trigger, but not particularly desiring that result, but realising that that result is a substantial risk, and then going ahead with it anyway.

   Of course we don’t sit back and contemplate these issues and weigh all the possibilities.  Everything happens pretty quickly.  But that’s the decision that you have to weigh up: whether you are satisfied of the one, or the other, or none of them.  Does that help?  They are difficult concepts I must say.  I think with the first one, the intention in element 4 of count 1, think of it in two parts, that it has to be an intentional act with a particular desired result in mind.  Whereas the recklessness one does not have that particular desired result. 

   That seems to be satisfying a number of you. If that has not helped, or you want me to go through that again, by all means send me another note and put the question differently, or the same, or whatever.  But I will assume that that is something to go on with. Anything counsel want me to add about that?

8. The appellant complains that the example given by the judge of shooting with a gun was not apposite because even though the intentional pulling of a trigger of a gun might be equated with an intentional punch the foreseeability of the consequences in each case is very different.  The likelihood that a bullet will hit its target may vary greatly depending on the circumstances but the serious physiological circumstances of wounding, if it does so, are, if not obvious, at the very least more likely to have been foreseen than the consequences of a punch.

9. On the other hand, in this case, even though Mr Betts must have appreciated that he would land his punch on Mr B's head, the real issue was his appreciation of the risk of any, or any serious harm, to Mr B in doing so.

10. The distinction drawn by Mr Betts' counsel was a sound one.  By reason of that distinction the redirection given by the judge was not as helpful as it might have been on the facts of this case.

11. However, the judge's directions on the legal element of recklessness were plainly correct and conformed to the definition of s 21 of the CLCA. The imperfect analogy employed by the Judge in answering the jury's question did not detract from those directions. There is no reason to think that the jury returned a verdict of guilty on the mistaken legal basis that it was sufficient that Mr Betts appreciated that there was a substantial risk that he would land his punch to Mr B's head. Indeed, so much was if not expressly, at least implicitly, conceded by Mr Betts because he testified that it was his intention to make contact, albeit for what he claimed was a defensive purpose.

12. The Judge's directions, the aide-mémoire and the repetition of the phrase 'substantial risk' in answering the jury's question were all calculated to draw the jury's direction to the difference between desiring the result on the one hand and appreciation of a substantial risk of its occurrence on the other.

13. Moreover, the terms of the jury's question in asking for an explanation of the difference between 'intent' and 'recklessness' suggests that the jury was grappling with the question of whether Mr Betts intended to cause serious harm or was merely aware that it was a substantial risk, and not with the question of whether or not Mr Betts appreciated that there was a substantial risk.

14. The evidence of how Mr Betts struck Mr B strongly supports the inference that at the very least he was aware that there was a substantial risk of serious injury.  Indeed, on Mr Betts' own evidence its purpose was to use sufficient force to repel any attack by Mr B.

15. We observe that on the hearing of the appeal, a complaint was made that in directing on the further lesser alternative of causing simple harm the Judge limited the direction to the mental element to the mental element of intention.  That omission could only have been favourable to the appellant and in any event it is of no consequence because the jury convicted the appellant, not on that lesser alternative, but of recklessly causing serious harm.

16. For the above reasons the Judge’s imperfect example has not resulted in a miscarriage of justice.  The Court dismisses the appeal.