R v Daniel

[2021] ACTSC 64

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Daniel
Citation:	[2021] ACTSC 64
Hearing Date(s):	7 September 2020
Decision Date:	4 December 2020
Reasons Date:	19 April 2021
Before:	Loukas-Karlsson J
Decision:	The accused is not guilty of recklessly inflicting grievous bodily harm. The accused is guilty of the statutory alternative, causing grievous bodily harm.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – Trial – Trial by judge alone – Recklessly inflicting grievous bodily harm – Whether accused reckless as to grievous bodily harm – Accepted by accused that grievous bodily harm occasioned – Blackwell direction
Crimes Act 1900 (ACT) ss 20, 23, 25
Legislation Cited:
Evidence Act 2011 (ACT) s 184 Supreme Court Act 1933 ss 68B, 68C
Cases Cited:	Blackwell v The Queen [2011] NSWCCA 93; 81 NSWLR 119 Byrne v The Queen [2014] ACTCA 31 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Pattalis v The Queen [2013] NSWCCA 171 R v Connors (No 2) [2016] ACTSC 333 R v Daniel Byrne [2013] ACTSC 246 R v DM [2010] ACTSC 137 R v Droudis (No 14) [2016] NSWSC 1550 R v Mulcahy [2010] ACTSC 98 R v Song (No 2) [2017] ACTSC 148 R v Sutton [2021] ACTSC 37
Texts Cited:	Judicial Commission of New South Wales, Criminal Trial Courts
Bench Book (Judicial Commission of New South Wales, 2002)
Parties:	The Queen (Crown) Zane Daniel (Accused)
Representation:	Counsel
M Howe (Crown) M Kukulies-Smith (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Kamy Saeedi Law (Accused)
File Number(s):	SCC 39 of 2020
LOUKAS-KARLSSON J
Introduction

1.	This is a judge-alone trial conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT) after Zane Daniel (the accused) signed an election to be tried by judge alone on 26 May 2020.
2.	The accused was arraigned on 7 September 2020 and pleaded not guilty to the offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act).

Directions

3.

Section 68C(2) of the Supreme Court Act 1933 (ACT) requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a Territory law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].

4.

I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 [6]-[18]; R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)). The relevant directions are as follows.

Onus and Standard of Proof

5.	A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
6.	The prosecution bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The prosecution has asserted that the accused has committed a criminal offence, therefore the prosecution must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
7.	The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
8.	The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty: see Mulcahy at [16]; Droudis (No 14) at [23]; R v Sutton [2021] ACTSC 37 at [10].

Judge of Facts and Law

9. In addition to the fundamental rules which govern a criminal trial, the following rules
have been developed. As I am the judge of the facts, as well as the judge of the law, I
must bring an open and unbiased mind to the evidentiary material. I must view that
material coldly, clinically and dispassionately, and I must not let emotion enter into the
decision-making process, because both the prosecution and the accused are entitled to
my verdict free of partiality or prejudice, favour or ill will.

General Directions on Witnesses

10.	I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
11.	I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses: see Mulcahy at [20]-[21].
12.	I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

Accused as Witness

13.

I direct myself that the accused gave evidence on oath and his evidence is to be considered in the same way as other witnesses in the trial. By giving evidence, the accused does not assume any burden, onus, or obligation to prove his innocence. The fact that the accused has given evidence does not alter the burden of proof. The accused does not have to prove that his version is true. The prosecution has to satisfy the Court that the account given by the accused should not be accepted as a version of events that could reasonably be true.

14.

I adopt the foregoing directions in the present case.

Elements of the offence

15.	The offence of recklessly inflicting grievous bodily harm is contained under s 20 of the Crimes Act.
16.	Section 20 relevantly provides as follows:

20 Recklessly inflicting grievous bodily harm

(1) A person who recklessly inflicts grievous bodily harm on another person is guilty

of an offence punishable, on conviction, by imprisonment for 13 years.

(2) However, for an aggravated offence against this section, the maximum penalty

is imprisonment for 15 years.

17. The Dictionary of the Crimes Act defines grievous bodily harm as follows:

grievous bodily harm to a person includes—

(a) any permanent or serious disfiguring of the person; and

(b) for a pregnant woman—loss of or serious harm to the pregnancy other than in the course

of a medical procedure (whether or not the woman suffers any other harm).

18.	In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
19.	The prosecution summarised the elements of the offence as follows:

(a)	the accused engaged in conduct;
(b)	the accused intended to engage in conduct;
(c)	the conduct resulted in grievous bodily harm being inflicted on another person; and
(d)	the accused was reckless as to inflicting grievous bodily harm on the person.

20. The prosecution indicated at the beginning of the trial that reliance was placed on the statutory alternative of causing grievous bodily harm, contrary to s 25 of the Crimes Act. The prosecution noted there is a further statutory alternative of inflicting actual bodily harm, contrary to s 23 of the Crimes Act. It was submitted, however, that the injuries of the complainant were too serious for this alternative to be considered. This was accepted by counsel for the accused (T 5.10-24).

The Prosecution Case

21.	The prosecution case was that the accused was playing pool at Civic Pub with his partner, Ms Horan, and friends, Ms Hazel and Mr Dash. The complainant, Mr Fernandis, attended Civic Pub on the same evening with his girlfriend and two friends. The two parties were unknown to each other.
22.	There had been some tension earlier in the night as Mr Fernandis’ group wished to use the pool table being used by the accused and his friends. Mr Fernandis’ group ultimately began playing pool at a table adjacent to the accused’s pool table. The complainant’s
girlfriend, Ms Tabjan, and the accused were taking pool shots at their respective tables,
and their pool cues were getting in the way of each other. Ms Tabjan, after the accused’s
pool cue got in the way, moved her own pool cue up, before lowering it again and waiting
for the accused to take his shot before she could take hers. The accused’s girlfriend, Ms
Horan, saw the interaction and said to Ms Tabjan, “Really?”
23.	The complainant then walked around his own table, so that he was across the table from Ms Horan, and started speaking to Ms Horan. The accused was standing next to the complainant at this point. The accused turned to the complainant, grabbed the front of
the complainant’s shirt with his left hand, and punched the complainant to the left side of
his face with his right hand. He then struck the complainant to the throat area. The complainant immediately fell backwards to the ground, unconscious.
24.	The accused turned back to his group and finished his drink, before he and his friends attempted to leave.
25.	The complainant remained on the ground until paramedics arrived and transported him to the hospital. The complainant presented at the hospital with clinically significant and life-threatening injuries. Active resuscitation was required in order to preserve his life. His injuries included a severe traumatic brain injury with associated post-traumatic amnesia lasting 38 days. The complainant was hospitalised for 75 days, including 7 days in the Intensive Care Unit.

The Defence Case

26.	Prior to the commencement of the trial, counsel for the accused identified that the issue at trial was whether or not the mental element for recklessly inflicting grievous bodily harm as set out in Blackwell v The Queen [2011] NSWCCA 93; 81 NSWLR 119 (Blackwell) was established.
27.	It was conceded by counsel for the accused that, if the statutory alternative of causing grievous bodily harm under s 25 of the Crimes Act is considered, then all elements are made out. Counsel indicated that the accused would have pleaded guilty to a charge of causing grievous bodily harm had that charge been on the indictment.

Admissions by the Accused

28.	The prosecution tendered a document containing admissions signed by the accused on 7 September 2020 pursuant to s 184 of the Evidence Act 2011 (ACT).
29.	The accused made full admissions to the matters set out in the Prosecution Case Statement, including that he had punched the complainant to the head and pushed the complainant in the throat/upper chest area.

Recklessness

30. It was accepted by both counsel that the relevant test for recklessness in this jurisdiction is elucidated in the case of Blackwell. At [78] of Blackwell, Beazley J (with James J agreeing), stated:

Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that

by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is

really serious injury, would be inflicted and yet went ahead anyway and acted.

31. At [171] of Blackwell, Hall J formulated the test in a similar manner:

… In my opinion, the basis for the conclusion that the appellant had the specific intent

required by s 33 in that he realised that his act towards Mr Ward would, or would very likely,

cause him grievous bodily harm.

Evidence

Medical Report

32.	The prosecution tendered a medical report of Dr Amanda Jane Van Diemen dated 12 March 2020. The report was based on the medical documents and the CCTV footage and did not involve Dr Van Diemen examining the complainant herself.
33.	The report states that the complainant presented to the Canberra Hospital on 17 August 2019 with clinically significant and life-threatening injuries. Active resuscitation was required in order to preserve his life. His injuries included:

(a)	A severe traumatic brain injury with diffuse axonal injury;
(b)	Traumatic subarachnoid haemorrhage overlying the left temporal lobe;
(c)	Contrecoup subdural and subarachnoid haemorrhage overlying the right frontotemporal region;
(d)	Bilateral basal ganglia haemorrhage;
(e)	Left sided temporal bone fracture with associated hemotympanum and ossicular canal disarticulation;
(f)	Scalp haematoma overlying the left temporoparietal region;
(g)	A head abrasion; and
(h)	Bruising over the left and right clavicles.

34.	The complainant spent seven days in the Canberra Hospital Intensive Care Unit, including three days in an induced coma. He required the insertion of a right frontal lobe intracranial pressure monitor which was subsequently removed; this will result in permanent scarring. The complainant experienced post-traumatic amnesia for 38 days following the incident and required admission to the Liverpool Hospital Brain Injury Rehabilitation Unit.
35.	Following admission to the Liverpool Rehabilitation Unit, the complainant was documented to have the following ongoing deficits: higher level physical impairments; impairments related to memory recall, speed of information processing, and complex planning; impairments in conversation and communication; and a reduction in social skills. The temporary or possible permanent nature of these deficits will become evident with time.
36.	The complainant was hospitalised for a total of 75 days.

Electronic Record of Interview

37.	The prosecution tendered an electronic record of interview (ROI) between Detective Leading Senior Constable Mat Reid, First Constable Simon Tankey, and the accused. The interview took place at around 11.20pm on Saturday 17 August 2019. A transcript of the record of interview was marked for identification as an aide-memoire in the proceedings.
38.	The accused stated in the ROI that he had consumed approximately five drinks since arriving at Civic Pub at around 7.30pm that evening. He stated that he was not feeling intoxicated.
39.	The accused admitted to striking the complainant. He stated: “I was the person who
struck the male in the Civic Pub. Ah, I felt I had to out of self-defence in a way. Ah, there was previous lead ups to that incident in regard to my partner Shannon and another
female. I don’t know the name of her. That’s it.”
40.	The accused explained the background incident, stating that “I didn’t quite catch conversations between them all, but there were remarks towards us … I was just trying

to ignore them, just hoping they would go away. … They’d just be picking at – picking at

us. Just talking obnoxiously.” The accused stated that he put more money down on the

pool table so they could continue playing, and the woman who had wanted to play on

the table didn’t seem to appreciate it. He stated: “I can’t recall if she said any words to

me or anything but there was definitely a remark made in some way that she didn’t

appreciate that”.

41.	In relation to the incident itself, the accused stated: “after two more games, the incident
where she was standing behind me happened where she swung her stick up at me and
I, as I said, turned to her and was like what the hell. That’s when Shannon turned to her
and said, “Really”. That’s when her partner came across to our table, the side of our
table. Started yelling at my partner. That’s when we’ve had the confrontation and I struck
him. He fell to the ground. Everything follows after that.”
42.	The accused stated that the complainant turned to him before the accused struck him.
He stated: “There was a couple of words between us two but, in some way, I’ve felt that
I was threatened myself, so I’ve struck first”. He further stated that, if he didn’t strike, the complainant “would have had a go at me first too”.
43.	The accused recalled that the complainant had grabbed the accused’s hand before the
strike.
44.	The accused gave the following response when asked “And then when he’s on the
ground, what were you thinking?”:

Part of me was a bit worried at the way he fell. I did see he was – kind of like when boxers

are knocked down, they kind of just fall, stiffen up a little bit. That made me know he was

unconscious. Um, yeah. So, part of me was like, oh shit, but yeah, so, I’m not happy with

what happened pretty much, ah, I definitely know there was a way round that.

45.	The accused stated that, in the moment he put his left hand out towards the complainant,
he did not believe he had the opportunity to leave the pub. He stated: “I thought I was either going to get attacked or I was going to attack”.
46.	In relation to the force of the punch, the accused stated: “I don’t think I hit him ridiculously
hard. I think I just [hit] him in the right spot”.
47.	The accused was shown CCTV footage from Civic Pub and agreed that it was an accurate record of what he recalled.

CCTV Footage

48.	The CCTV footage variously depicts the pool room, the main bar area, the outside entrance, and the lounge area at the Civic Pub on the evening of 17 August 2019. The accused and the complainant are both depicted in the pool room footage playing games of pool with their respective groups. The pool tables that they are playing on are spaced close together. The accused and Ms Tabjan come into slight contact at 10:18pm as they both attempt to play a shot at their respective tables at the same time. The accused appears to be startled by Ms Tabjan, who then stands back and allows the accused to take his shot. The complainant then passes closely between Ms Tabjan and the accused, brushing against the accused from behind as he does so.
49.	Words are then clearly being exchanged between the complainant, and the accused’s
partner. The accused then grasps the complainant by the front of his shirt with his left hand, pushing him backwards towards a third pool table. While still holding the complainant, the accused strikes the complainant to the side of his face with a closed right fist, and then immediately strikes him again with a left fist, and the complainant falls to the floor.
50.	The footage of the main bar area and the lounge area of the Civic Pub do not depict the incident taking place, but rather show what was occurring elsewhere in the venue immediately after the incident occurred, including footage of the accused leaving the venue.
51.	The prosecution submitted that the footage shown of the accused leaving the premises was tendered only to show his demeanour when leaving the premises. There was no suggestion of flight or consciousness of guilt.

Evidence of the Accused

52.	The accused was called to give evidence in the trial. He indicated that he agreed with the answers he gave in the police record of interview.
53.	The accused gave evidence that he was “surprised” that the complainant was unconscious. He stated that, in the moment prior to the punch, he was thinking that he just wanted to stop what was happening and to stop the verbal abuse of his partner. He gave evidence that he just wanted the complainant to go away.
54.	The accused agreed that what had happened was different to what he had expected. He
stated that he was surprised that the complainant “ended up unconscious on the ground” and that ‘he “just expected him [the complainant] to go away from the situation”.
55.	The accused agreed that he had told police he had done a bit of boxing training. He
stated that this involved pad work with his father at his father’s house, over a period of a
couple of months more than a few years ago. The purpose of this boxing was fitness and did not involve throwing punches at another person. The accused gave evidence that he also attended one session at a Muay Thai training area in Woden. He gave evidence that he has never engaged in fighting or boxing in a ring or against another person.
56.	The accused gave evidence that when he told police he had hit the complainant “in the right spot” he meant that he hit the complainant in the head along the jawline. He stated
that he struck for the head when punching the complainant. He gave evidence that there
was no particular reason he struck at that area of the complainant’s head.
57.	In cross-examination, the accused agreed that he was annoyed by the behaviour of the other group by the time the complainant approached him. He further agreed that he was angry.
58.	The accused agreed that he had told police the complainant had turned to him before he threw the punch. He further agreed that he got that detail wrong, as it was clear from the CCTV footage that at no stage did the complainant step towards the accused.
59.	In cross-examination, the accused was asked what he meant by saying he hit the
complainant in “the right spot”. He stated: “I watch a lot of combat sports and, when you see people get struck in a certain way, they … do become unconscious”. The accused agreed that he had watched a lot of combat sports – boxing, mixed martial arts, and kick boxing – prior to the incident and he had witnessed in these sports people being struck
unconscious by a blow to the head. He agreed that people can suffer serious injuries as a result of a strike to the head.
60.	The accused accepted that the complainant was rendered immediately unconscious as a result of the strike and that he punched the complainant with significant force. He further accepted that he knows that punching someone with significant force to the head can result in serious harm.
61.	The accused maintained that he thought the complainant was a threat to both himself and his partner. He could not recall the specific words that were spoken by the complainant to his partner.
62.	The accused agreed that the CCTV footage showed the complainant holding his hands out with open palms about chest height prior to the accused striking him. He further
agreed that this is not a threatening gesture. The accused maintained that he “thought something was going to happen” to him (T 18.23-26).
63.	The accused gave evidence that he didn’t believe he had time to consider what he was
going to do. He agreed that he was several steps away from the complainant and the
interaction between the complainant and the accused’s partner lasted a few seconds.
He further agreed that he made the decision to approach the male to strike him in the face.
64.	In re-examination, the accused gave evidence that he was not thinking about the contact sports he watches on the night, before he struck the complainant. He further gave evidence that, at the time he was throwing the punch, he was not thinking about the fact that punching someone in the head can result in serious harm.

Witness Statements

Statement of Shannon Horan

65.	Ms Shannon Horan is the partner of the accused and made a statement to police dated 18 August 2019.
66.	The statement outlines the background of the night in line with the case statement and admissions of the accused. Ms Horan states that, after they had played a couple of games of pool, a woman approached the table and appeared as though she wanted to play.
67.	Later, Ms Horan states that the woman re-approached the table and seemed “cranky”;
someone tried to explain to her that the group wanted to keep using the table. A male (the complainant) approached the table and Ms Horan states that it looked like he was trying to diffuse the situation and calm the woman down. Ms Horan states that she was
beginning to feel frustrated about the woman’s behaviour and stated: “If she continues,
I’m going to say something to the bouncers”.
68.	Approximately 30 minutes later, the woman went to take a shot on the table next to Ms
Horan’s group, at the same time as the accused. Ms Horan states that she could see
them “backing on to each other”. The woman looked back “with a vindictive look” and
flicked her pool cue up. This may be contrasted with the CCTV footage, in that, I
interpolate here to note that the “vindictive look” is not corroborated on viewing the CCTV
footage. There does appear to be a movement of the pool cue.
69.	Ms Horan states that she said to the female: “Really?”. The complainant walked over to
the table, past the accused, and began to talk to Ms Horan. Ms Horan states that the
complainant put his hands up and said in a raised voice: “Yeah really”.
70.	Ms Horan states that the complainant appeared agitated and that she felt threatened. The accused walked towards the complainant and there were some words said that Ms Horan could not recall. Ms Horan states that she saw the accused throw a punch; the complainant fell backwards onto the floor and the accused walked away from him and back to where Ms Horan was standing.

Further statements

71. There were further statements in evidence from the following individuals:

(a)	A statement of Ms De Salis dated 22 August 2019;
(b)	A statement of Ms Hazell dated 21 August 2019;
(c)	A statement of Ms Mayfield dated 18 August 2019; and
(d)	A statement of Mr Savage dated 18 August 2019.

72. I have considered all of the statements in my assessment of the evidence.

Prosecution Submissions

73.	The prosecution submitted that the following matters are established from the accused’s
oral evidence:

(a)	Prior to the complainant approaching the pool table, the accused was already
annoyed by the behaviour of the complainant’s group (T 15.20-21);
(b)	The accused was angry about the manner in which the complainant was speaking to his partner (T 15.23-29 and T 18.39-40);
(c)	The accused decided to approach the complainant and punch him in the head (T 15.31-32 and T 18.42-43);
(d)	The accused was several steps away from the complainant when he made this decision (T 18.31);
(e)	The accused deliberately aimed for the complainant’s head (T 14.30-36);
(f)	The accused punched the complainant with significant force (T 17.39 and T 18.45);
(g)	The accused has watched a lot of combat sports where people get struck in the head and are rendered unconscious (T 16.21-23) and T 16.43-47); and
(h)	The accused knows that people can suffer serious injuries and harm as a result of being struck to the head (T 17.1-2 and T 17.41-42).

Recklessness

74. The prosecution referred to the following statement of Murrell CJ in R v Daniel Byrne
[2013] ACTSC 246 (Byrne) at [31] when considering the same issue of recklessness:

In the absence of direct evidence as to the accused’s state of mind upon which some weight

can be placed, the Court must determine this matter on the basis of the actions of the accused and the surrounding circumstances (although the determination of mental state is not usually considered to be a matter requiring a circumstantial evidence direction).

75.	The prosecution noted that Byrne was overturned on appeal in relation to an error of fact concerning self-defence: Byrne v The Queen [2014] ACTCA 31.
76.	The prosecution noted the submission by counsel for the accused that this reasoning is inapposite in circumstances where the accused has given evidence as to his state of mind at the time (T 27.23-25). The prosecution submitted that little weight should be
attached to the accused’s evidence in this regard, as it is implausible, or alternatively, it
is “so at odds with the remainder of the objective evidence such that permits its rejection”:
at [6].
77.
The prosecution referred to the case of Pattalis v The Queen [2013] NSWCCA 171. At
[23] , Hoeben CJ (McCallum and Schmidt JJ agreeing) stated:

… Over recent years, the incidence of such offences, particularly when associated with the

excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence.

Regrettably, it is now notorious (as his Honour recognised) that a single punch can

not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties.

(Emphasis added)

Oral Evidence of the Accused

The prosecution submitted that there are three grounds upon which the Court can reject

the accused’s oral evidence:

78.

(a)	It is inherently unlikely that the accused would punch the complainant to the head with significant force simply to get him to go away.
(b)	The accused did not at any stage tell police during the Record of Interview that he punched the complainant to get him to go away.
(c)	It is inherently unlikely that, over 12 months after the incident, the accused would remember precisely what he was or was not thinking in the period of 2-3 seconds before punching the complainant.

79.

Counsel for the accused accepted that the accused’s actions did not arise in response to “any sort of threat that would justify physical violence” (T 31.23-24). The prosecution
agreed with this submission and submitted further that the explanation given for such a
serious act of violence is “so far fetched that [it] is unbelievable”: at [8].
80.	The prosecution submitted that the accused was multiple steps away from the complainant when he made the decision to punch him; there was a pool table between
the complainant and the accused’s partner; even if a threat to the accused’s partner was
received, there was no immediacy to the situation; and there were a number of alternative actions that could have been taken.
81.	Further, the prosecution submitted that the accused’s explanation in oral evidence, that
he wanted the complainant to “go away”, was never proffered during the Record of
Interview, only an hour after the incident. The accused told police that he punched the
complainant because he felt threatened and defended himself; in the accused’s words, he was “either going to get attacked or I was going to attack”. The prosecution submitted
that this explanation is inconsistent with the explanation given in oral evidence and
“severely undermines” the exculpatory explanation now offered, over a year after the
incident.
82.	In relation to the accused’s oral evidence, the prosecution, in summary, submitted the
following:

Finally, it defies ordinary human experience that over a year after the incident the accused would remember precisely what was in his mind during the 2-3 seconds that preceded the punch. This is particularly so when, if it is accepted that the accused was doing his best to be truthful when he spoke to police, his perception of the events that caused him to strike the complainant was wrong in critical respects only an hour after the incident. The fallibility of memory is why the preserved objective evidence in the form of video footage is critical to determine the present matter.

Conduct from which Recklessness can be Inferred

83. The prosecution submitted that there are five factors that establish recklessness by
inference:

(a)	The punch was directed to the head;
(b)	The accused was well in control of his faculties;
(c)	The accused’s actions were not preceded by any physical threat;
(d)	There was an opportunity for reflection; and
(e)	The punch was delivered with great force.

84.	Overall, the prosecution submitted that each of these five factors is accepted by the accused. It was submitted that the prosecution is not required to prove any one of these factors establishes recklessness beyond reasonable doubt, but rather can rely on the totality of these circumstances, each established by reliable evidence, to draw the
necessary inference. The prosecution submitted that the inference is an “irresistible” one
in the present circumstances, even more so than in the circumstances of Byrne.
85.	In the prosecution’s submission, “the inescapable inference based off those five points
is that, before punching the complainant, the accused reflected briefly on his actions, realising the possibility that a forceful punch may cause really serious injury but went
ahead anyway” (T 27.6-10).

Consideration

86.	Counsel for the accused submitted that there is “direct evidence” given by the accused
during the Record of Interview and in Court in relation to his intention behind the punch and his surprise at the result of his action. I accept this submission in relation to the relevance of the direct evidence.
87.	In the police interview, the accused was asked what he was thinking when the
complainant was lying on the ground and the accused’s response was: “oh shit”. Counsel for the accused submitted that this statement reflected the accused’s surprise at the
outcome, including his shock at the degree of harm caused.
88.	Relevantly, counsel for the accused noted the following aspects of the accused’s
evidence:

(a)	The accused gave evidence that he was surprised at the complainant’s unconscious state. He stated: “I didn’t expect that. I just expected him to go away from the situation” (T 12).
(b)	When asked whether he was thinking that a hit to the head can cause serious injury at the time he threw the punch, the accused said no (T 19.20).

89.	Counsel for the accused submitted that the evidence of the accused was that, at no point in time prior to the punch, he turned his mind to the possibility that the harm could occur. Counsel further submitted that there is no proper basis for rejecting this evidence, as the
accused was “frank and honest in his interview with police and in giving evidence before
the Court”: at [9].
90.	It was submitted that, although the accused has admitted to a general knowledge of
combat sports, “the onus of proof in order to prove that the defendant acted recklessly is
not met by proving that the defendant possessed a general awareness” of these factors:
at [11]. Counsel for the accused submitted that the issue is what was in the accused’s
mind in the moment leading up to the punch. I accept this submission.
91.	Further, counsel for the accused relevantly submitted that the situation may have been different had the accused caused injury to someone in the past or engaged in hand to
hand combat; however, his evidence was that he had only ever trained “with pad work for fitness”. The accused gave evidence that he has never been in situations of actual
fighting or combat.
92.	In relation to the prosecution’s submission that the accused’s evidence as to intention
was unreliable, counsel for the accused submitted that the “explanation for why a clear intention for the [accused’s] action was not given to police is simply that he was never asked about his state of mind at the relevant time”: at [16].
93.	Generally, I accept the submissions of counsel for the accused outlined above, as the submissions accord with my view of the evidence.

Recklessness

94. In oral submissions, counsel for the accused submitted the following in relation to the
test for recklessness (T 29.25-38):

All the time my client accepts, sitting in court today, it’s notorious that the head is a vulnerable

area of the body. Does that mean that was in his head at this time in the Civic Pub at that night in the two to three seconds that this incident takes place? And my submission to your

Honour is it doesn’t necessarily beyond reasonable doubt mean that. It means it might be in

his head, it means it’s something he is potentially aware of, but was he actually turning his

mind to the possibility?

And that’s the issue in Blackwell. And indeed, to be blunt, that’s the reason the New

South Wales legislature … immediately changed the law in New South Wales following

Blackwell. The ACT have not chosen to change the law. So that leaves recklessness with this higher standard in the ACT that what prevails currently in New South Wales.

(Emphasis added)

95.	I note in this context that Byrne can be distinguished as there was an “absence as to the
accused’s state of mind upon which some weight can be placed”: Byrne at [31].
Conversely, in this case, there is direct evidence given by the accused in relation to his state of mind.
96.	In relation to the five factors referred to by the prosecution, the following are relevant:

(a)	The punch was directed to the head: This was accepted by counsel for the accused, as it must be, as was the fact that the accused had general knowledge that harm could be caused by an attack to the head. This does not of itself establish that the accused turned his mind to this in the seconds prior to the punch.
(b)	The accused was in control of his faculties: This was accepted by counsel for the accused, as it must be.
(c)	The actions were not preceded by a physical threat: This was accepted. It was, however, submitted by counsel for the accused that it was the complainant
who suddenly walked up to the accused’s pool table. I interpolate here to note
from the CCTV footage that the complainant did walk up to the accused’s pool
table. However, the CCTV footage cannot by its nature confirm the character of any verbal interaction.
(d)	The accused was given an opportunity for reflection: Counsel for the accused submitted that the accused did not have or take the opportunity for reflection necessary to support a finding that he acted recklessly. It was submitted in this respect that: (1) there was a time frame of less than two seconds between the perceived threat and the reaction; (2) the existence of an opportunity for reflection does not mean that it was taken; and (3) the situation required immediate intervention. In my view, on all the evidence there was an opportunity for reflection.
(e)	The punch was delivered with significant force: This was accepted. It was submitted, however, that the degree of force in and of itself is not capable of satisfying the test of recklessness. I accept this submission.

97. In summary, counsel for the accused submitted the following:

The prosecution case invites your Honour to draw the same inference as the Chief Justice drew in the matter of Byrne. However, to do so firstly ignores the direct evidence in this case that distinguishes the current matter from Byrne. Secondly, even if the direct evidence was rejected (which I submit there is no proper basis to do so), the inferences are far weaker in

this case due to the factual differences including the time of the intervention … and the

resulting differences in movement and engagement between the parties. The prosecution is unable to provide a single plausible explanation as to why the court should disregard the direct evidence. The inferences are insufficient to reach a conclusion the defendant was reckless beyond reasonable doubt.

98. I do not disregard the direct evidence of the accused.

Conclusion

99.	It is fundamental to underline that the criminal standard of proof applies and not the civil standard of the balance of probabilities.
100.	The prosecution must prove beyond reasonable doubt that the accused realised the possibility of really serious bodily injury (not merely some injury), and the accused went ahead anyway: Blackwell at [78]; R v Byrne at [30].
101.	In Blackwell, Beazley JA formulated the direction at [78]:

Accordingly, in this case, the jury should have been directed in terms that if the appellant

was to be found guilty on the alternative count, they had to be satisfied that he realised that…

it was possible that grievous bodily harm, that is really serious injury, would be inflicted and

yet went ahead and acted.

(Emphasis added)

102. In Byrne, Murrell CJ set out the direction at [30]:

[T]he prosecution must prove beyond reasonable doubt that the accused realised the possibility that his act of punching the complainant may cause the complainant to suffer really serious bodily injury (not merely some injury), but the accused went ahead anyway: Blackwell v The Queen [2011] NSWCCA 93 per Beazley JA at [78].

103. The direction set out in the New South Wales Criminal Trial Courts Bench Book sets out
a formulation of the jury direction at [4-092]:

The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury was inflicted recklessly by the accused. An injury is inflicted recklessly if the accused realised that grievous bodily harm may possibly be inflicted upon the victim by his actions, yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm occurring.

(Emphasis added)

104.	In Blackwell, the term “would” is used. In Byrne, the term “may” is used. In the Bench
Book, the test is somewhat differently worded, though on a textual analysis more akin to Blackwell. While these differences exist, in the context of the case before me not a great deal turns on the nuanced distinction between the three formulations.
105.	In this case, weighing all the evidence including the actions of the accused, the surrounding circumstances, and the evidence from the accused as to his state of mind, I am not satisfied beyond reasonable doubt that the accused realised the possibility of really serious bodily injury occurring, as opposed to some injury.
106.	Were the standard of proof the balance of probabilities, the prosecution may arguably have succeeded. The criminal standard of proof beyond reasonable doubt is a higher standard. The prosecution must prove the case against the accused beyond reasonable doubt and in this case has not done so.
107.	On all the evidence I am not satisfied beyond reasonable doubt that the accused was reckless as to inflicting grievous bodily harm.

Orders

108. On 4 December 2020 I returned the following verdict:

The accused is not guilty of the single count in the indictment dated 17 April 2020. The accused is guilty of the statutory alternative of causing grievous bodily harm.

I certify that the preceding one hundred and eight [108]

numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date: