R v Hawes - [2009] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAWES
Criminal Trial by Judge Alone
[2009] SADC 127
Reasons for the Verdict of His Honour Judge Chivell
19 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Trial by Judge alone - accused charged with aggravated recklessly causing serious harm. Meaning of "serious harm". Meaning of "serious and protracted impairment of a physical function". Meaning of "serious disfigurement".
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 21, 23(3) and 24(2); Juries Act 1927 (SA) s7; Evidence Act 1929 (SA) s34, referred to.
R v Wilkinson (2008) 101 SASR 21, applied.

R v HAWES
[2009] SADC 127
Introduction

Jake Mitchell Hawes is charged with aggravated recklessly causing serious harm, contrary to section 23(3) of the Criminal Law Consolidation Act1935. The aggravated offence has been charged because it is alleged that Mr Hawes used an offensive weapon, namely a knife, when committing the offence.
He pleaded not guilty to that charge, but guilty to aggravated recklessly causing harm, contrary to section 24(2) of the Act. That plea was not accepted by the Director of Public Prosecutions.
Mr Hawes elected to be tried by a judge sitting without a jury. Rule 8 of the Juries Rules was dispensed with by consent, and an order was made pursuant to Section 7 of the Juries Act.
The Evidence
The evidence before me included a number of agreed facts. A memorandum setting out the agreed facts is Exhibit P4. These facts were the subject of formal admissions made by Mr Hawes through his counsel, Ms Burgess, pursuant to Section 34 of the Evidence Act.
The agreed facts are as follows:-
Mr Shaun Michael Beck aged 27 years is the victim in this matter.
Mr Beck and his wife Chontai and their children attended at Troy Marriott’s mother’s house in Port Augusta on 8 August 2008 at about 6.30pm.
Mr Marriott is Mr Beck’s old friend.
Mr Marriott is a friend of Mr Hawes.
Mr Marriott’s mother’s name is Sue.
Mr Hawes and Mr Marriott had been sharing a bedroom at his mother’s home and residing at that home for some time.
Mr Beck and his wife consumed alcohol whilst at the house.
Mr Troy Marriott and his friend Jake Hawes were present and were intoxicated.
Mr Hawes started drinking between 5 and 6pm that evening.
Mr Marriott started drinking some 2 hours before Mr Hawes had started drinking.
Mr Marriott had consumed more than 20 drinks.
Mr Hawes was drunk to the point of staggering when Mr Beck and his family arrived.
Mr Hawes continued to consume alcohol whilst at Sue’s house.
Sue and her partner Rob were present at the house along with two other women Tanita (Mr Hawes’ girlfriend) and her cousin Fatimah Pollyanne Ratara (also known as Dolly).
Additional alcohol was purchased from a nearby drive through during the evening.
Mr Hawes and Mr Marriott were very drunk and doing stupid things like humping each others legs and trying to grab each others groins.
Mr Hawes was slurring his words and swaying when walking.
Mr Hawes vomited in the kitchen sink.
Mr Marriott also vomited at the same time.
Mr Hawes was involved in a sculling competition with Mr Marriott.
Mr Marriott was trying to do a strip show.
Mr Hawes walked to the end of the drive way at one stage and chucked a bottle onto the road smashing it.
At one stage Mr Marriott became angry and punched a fence. He was upset with Mr Hawes because Mr Hawes was accusing Rob of staring at his girlfriend.
Mr Hawes was upset and angry because he thought Mr Beck was racist in his attitude and behaviour towards Mr Hawes’ girlfriend Tanita who is an Aboriginal woman.
Mr Hawes was upset because he thought that Mr Beck was staring at or trying to chat up his girlfriend.
The drinking finished about 9.30pm.
Mr Marriott and Mr Hawes then left the house.
Mr Beck left the house and walked up the road and spoke to Mr Marriott.
Mr Hawes was crying and apologising to Mr Marriott.
Mr Beck then went back to Sue’s house and left with his wife and children.
He returned to his house which was nearby (on the same street but across the road and a couple of houses away).
When Mr Beck was in bed at about 10.15pm he heard yelling out the front of his house.
He went outside and saw Mr Hawes about 1 metre from the gutter on Mr Beck’s side of the road.
Mr Hawes was swearing and yelling saying that Mr Beck was trying to crack onto his girlfriend.
Mr Hawes was holding a large knife – photo 19 – various descriptions given by witnesses – knife/sword.
Mr Hawes was ranting and raving.
Mr Beck told Mr Hawes to settle down and there was no point in carrying a knife.
Mr Beck then moved towards Mr Hawes by taking some steps in his direction.
Mr Hawes lifted his arm up and swung the knife towards Mr Beck.
Mr Beck reacted instinctively and held his arm up to protect himself.
Mr Beck cannot describe the motion but the knife hit his left hand.
An ambulance arrived and took Mr Beck to hospital in Pt Augusta where he underwent surgery.
He later attended in Adelaide for surgery on 10 August 2008.
He underwent more surgery on 11 August 2008.
He was released from hospital in Adelaide on 13 August 2008.
Mr Hawes was arrested on 8 August 2008 at about 11.10pm.
A number of witness statements were also tendered by consent. These statements were admitted as a bundle and marked Exhibit P1. There was also a booklet of photographs (Exhibit P2), and the knife used by Mr Hawes on the day in question. It is an extremely large knife, and is a similar size to a machete. The blade is approximately 40cm long.
Mr Beck’s Injury
Among the statements was that of Dr Ninan dated 19 February, 2009. Dr Ninan is a plastic surgeon. He recited the history of Mr Beck’s admission to the Queen Elizabeth Hospital after he was transferred from the Pt Augusta Hospital on the 10^th of August, 2008.
The description of Mr Beck’s injury is rather sparse:
Full thickness laceration of the left hand between the thumb and index finger.
(page 2).
It would appear that Mr Beck had raised his left arm in a defensive pose when Mr Hawes swung the knife in either a sideways or downward motion towards him. The knife lacerated the soft area between the thumb and index finger but, remarkably, did not damage any of the bones in that area.
The statement of Mr Beck at page 5, and that of his wife Chontai Beck at page 6 are consistent with this description of how the blow was struck.
The photographs (Exhibit P2) depict Mr Beck’s injuries. They were taken on 20 August 2008, 12 days after the injury. They demonstrate that the scar extends from the inside of the wrist and then diagonally across the palm roughly following the crease formed by the ball of the thumb, then around the side of the index finger then down the back of the hand to a point near the base of the thumb.
These photographs were taken after Mr Beck had undergone reconstructive surgery which I will mention shortly. It is not apparent on the evidence if the surgeon enlarged the wound in order to gain access to particular areas, perhaps to reattach tendons and the like.
Dr Ninan described how he operated on Mr Beck’s hand on the 11^th of August, 2008. His statement records that there was 100 percent “transaction” (I think that should read transection) of the dorsal interosseous and adductor pollicis muscles and 100 percent [transection] of the motor branch of the median nerve to the thenar muscles and the digital nerve to the index finger.
Dr Nina sutured the muscles, and reconnected the nerves during the operation before suturing the wound.
Mr Beck gradually recovered, with physiotherapy. By 1 September 2008 the wound was healing well and Mr Beck was still wearing a hand-splint when seen by a consultant. He was referred for physiotherapy.
By 15 September 2008, although the wound continued to heal well, Mr Beck was still suffering tingling and numbness in the left thumb and index finger. On 20 October, 2008 he was still having problems and so the physiotherapist fashioned a dynamic thumb abduction splint.
On 19 January, 2009 it was noted that the left thumb was weak; there was still decreased sensation over the radial side of the left index finger although the nerves were recovering. There was poor thumb abduction and Mr Beck was unable to oppose his thumb to the little finger.
Further surgery was being considered if Mr Beck did not improve. However, by 17 August, 2009, it was noted that all the movements of the thumb had been restored and no further treatment was required.
So far as Mr Beck’s injuries were concerned, Mr Trevarrow, Counsel for the Director of Public Prosecutions told me that it was his case that:
·At the end of 12 months, full functionality of Mr Beck’s hand had been restored;
·There is no ongoing disability;
·The scarring, which looked major in the photographs, will go in time;
·There will be no (other) residual adverse consequences in the long term. (T8-9).
The Legal Issue
The only issue in contention before me is whether it has been proved by the prosecution beyond reasonable doubt that Mr Hawes caused Mr Beck to suffer “serious harm”.
Serious harm is defined in section 21 of the Act as follows:
serious harm means—
(a) harm that endangers a person's life; or
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
Section 21 also defines “physical harm”:
physical harm includes—
(a)     unconsciousness;
(b)     pain;
(c)     disfigurement;
(d)     infection with a disease.
Mr Burgess, counsel for Mr Hawes, referred me to the second reading speech made by the Honourable the Attorney-General when the legislation was presented in Parliament in 2003, but a reading of that material does no more than demonstrate that the legislators acknowledged that the definitions quoted above left room for judicial interpretation.
Ms Burgess also referred me to a number of cases, but none of them are particularly helpful in relation to this case, with the exception of R v Wilkinson (2008) 101 SASR 21 at page 25. Gray J, with whom the other member of the Court of Criminal Appeal agreed, said:
[18] In my opinion the injuries sustained by KS were serious. They led to serious and protracted impairment of both physical and mental function. The physical impairment continued at the very least for some months, leaving permanent damage to the nose and teeth. The unchallenged declaration of KS confirmed ongoing amnesia about the events of May 2006 as well as long-term psychological suffering. The blows struck by the defendant to KS caused serious disfigurement. The photographs taken while KS was in the high dependency unit present clear evidence of serious disfigurement. It is evident that this disfigurement continued for some time, although ultimately healing has occurred. The statutory provision does not suggest that the disfigurement must be permanent disfigurement.
My reading of that paragraph is that on the facts of that case a finding of serious harm could have been justified on any one of a number of bases:
Permanent damage to the nose and teeth;
Long term psychological suffering;
Serious, but not permanent disfigurement.
White J commented:
[47]…The submissions on appeal raised issues about the proper construction of the definition of “serious harm” in section 21 of the Criminal Law Consolidation Act 1935 (SA). However, it is not necessary presently to engage in a detailed examination of the definition as, on whatever view is taken, the injuries inflicted on the victim in this case amounted to serious harm. Some of the issues about the definition which were raised in the course of counsels’ submissions may have to be addressed in a later appeal.
Sulan J agreed with Gray J without any such reservation. On the majority view, then, that case is authority for the proposition that the harm alleged by the prosecution to constitute serious harm for the purposes of section 23 of the Act need not be permanent. I would merely add that the use of the word “protracted” in s 21, suggests something less than permanent. The Shorter Oxford Dictionary definition of that word, helpfully provided by Ms Burgess in her address, is that it means “to prolong (time) so as to cause delay”; “to cause to last longer”; “to prolong”.
In this case, Mr Beck sustained an injury to his hand which, on any view of the facts, should be described as serious. The injury required specialist surgery to repair the skin, muscles and nerves severed by the knife wielded by Mr Hawes. Five months after the injury, in January 2009, Mr Beck still had substantial disability in the hand, since he was still unable to oppose his thumb and little finger. By August 2009, this had completely resolved and he no longer suffers any ill effects from the injury, on the evidence.
In my opinion, the injury and subsequent disability constituted a “serious and protracted impairment of a physical function.” It also caused “serious disfigurement”, which was not permanent. On either of those bases, Mr Beck suffered “serious harm”, consistent with the definition in section 21 of the Act. The other elements of the offence are admitted by Mr Hawes. Clearly, he caused the harm suffered by Mr Beck. There is no suggestion that his actions were lawful, for example in self‑defence. Clearly, Mr Hawes was reckless in causing the harm, at the very least.
In those circumstances, I am satisfied beyond reasonable doubt that the prosecution have proved all of the elements of the crime of recklessly causing serious harm.
Verdict
Guilty.