R v Kestell

[2013] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KESTELL

[2013] SASCFC 55

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)

19 June 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ALTERNATIVE VERDICTS

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

Appeal against conviction - the defendant was charged on Information with one offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA) - the defendant pleaded not guilty - trial before a Judge and jury in the District Court - the prosecution alleged that the defendant struck the complainant in the face with a glass causing serious injuries to the complainant's face - the defendant admitted striking the complainant with a glass but claimed that he was unaware that he was holding a glass at the time - the defendant claimed that he was acting in self-defence - the Judge directed the jury that a glass is an offensive weapon for the purposes of circumstances of aggravation - the jury acquitted the defendant of the offence charged - the jury convicted the defendant of alternative charge of aggravated recklessly causing serious harm - whether the Judge erred in failing to direct the jury that to establish circumstances of aggravation it was necessary to determine that the prosecution had proved that the defendant was carrying or controlling the glass knowingly for the purposes of causing personal injury or incapacity - the Director of Public Prosecutions accepted that the Judge had erred in informing the jury that the glass was an offensive weapon - the defendant was arraigned before the Court of Criminal Appeal and pleaded guilty to one offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act.

Held per the Court: Appeal against conviction allowed - defendant pleaded guilty to one offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act - defendant to be sentenced by the Court of Criminal Appeal.

Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA, s 23 and s 353(1), referred to.

R v KESTELL
[2013] SASCFC 55

Court of Criminal Appeal:       Gray, Sulan, Nicholson JJ

THE COURT.

1. This is an appeal against conviction.  The appeal was allowed at the conclusion of the hearing with the Court indicating that reasons would be published later.  What follows are the Court’s reasons for allowing the appeal.

2. The defendant and appellant, Glenn David Kestell, was charged with the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial before a Judge and jury in the District Court, he was acquitted of that charge, but was convicted of the alternative charge of aggravated recklessly causing serious harm.

3. The defendant was charged on Information in the following terms:

   Statement of Offence

   Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Glenn David Kestell on the 23rd day of December 2011 at Glenelg East, caused serious harm to [SD], intending to cause him serious harm.

   It is further alleged that Glenn David Kestell used an offensive weapon, namely a glass, when committing this offence.

4. It was the prosecution case that the victim of the offence, SD, was an invited guest at an eighteenth birthday party held at the Glenelg Football Club on 23 December 2011.  The party was hosted by the defendant’s sister. 

5. At about 10.40 pm that evening, a series of fights broke out near the bar at the licensed premises at the Club.  In the main, this consisted of pushing and shoving.  SD was not involved in any of these fights.  Shortly thereafter, the incident the subject of the charge occurred. 

6. On the prosecution case, the defendant, perceiving some insult to his sister, stepped between SD and his sister.  At that time, SD had a glass of beer in each hand.  SD took a small step backwards and at this moment the defendant struck him in the face.  The defendant had a glass in his hand at the time the blow was struck.  The glass smashed on impact, causing serious injuries to SD’s left eye, as well as significant facial scarring.  It was SD’s evidence that he was struck to the face without warning.  He recalled there being some pushing and shoving at the bar, but that this had more or less died down.  He was looking for a friend for whom he had purchased a drink.  The defendant’s sister approached him and requested that he put the drinks down.  At this moment, he was struck in the face.  He did not see who struck him.  He did not see the blow coming.  He saw something move across him, heard the sound of smashing glass and then felt pain to his face. 

7. On the prosecution case, SD’s account was supported by CCTV footage, as well as the accounts of several eyewitnesses.  Several of these witnesses were SD’s friends.  Other witnesses were employees of the Club, who the prosecution described as being wholly independent, without allegiance to either SD or the defendant. 

8. A friend of SD described having witnessed the incident and having observed that the defendant “swiped the glass out of [SD’s] hand quite quickly in an upward sort of thrust and then with his right hand, come across [SD]’s face and thrashed his glass into his face”.  He described the defendant as holding a glass in his hand as he swung the blow.  This witness gave evidence that SD had not been involved in any physical or verbal altercation before the blow was delivered. 

9. Other friends of SD provided descriptions of the defendant striking SD in the face.  One of those witnesses gave evidence that the defendant had a glass in his right hand at the time. 

10. A bartender working at the bar about five metres from the incident claimed to have had a clear view of the incident.  She saw a man walk up to another man with a glass in his hand and observed that he “just shoved it into his face”.

11. A crowd controller described a man doing a “glassing”.  He gave the description that this person “hit the gentleman from blind side as he was actually using the glass to hit the person the person who got hit actually turned to look at it and got hit with it”. 

12. Another member of the bar staff observed the incident.  He described SD as standing off to the side facing two groups engaged in a scuffle.  He described the defendant “coming from behind the victim, sort of moved in to in front of the victim”. The witness then saw a glass “come from sort of waist height straight into the guy’s face”.  He described the blow as “an upthrust with – from waist level straight into the face with the open end into the face”.  This witness described SD as just standing there by himself, and as not being involved in any tussle with anybody prior to being struck. 

13. The defendant gave evidence and called a number of attendees at the party in his defence.  He admitted to striking SD.  He claimed to have observed his sister and SD in an argument, and said that his sister was yelling at SD to put down the drinks that he was carrying.  He described SD as being extremely intoxicated and aggressive.  He stepped in to grab the glasses as he was concerned for his sister.  His account was that as he went to grab the glasses, SD pulled back and that they both had their hands on the glasses.  According to the defendant, he formed the opinion that SD was going to hit him, so he struck first.  He could not recall having had a glass in his hand when he struck SD.  In essence, he admitted to striking SD, did not deny that a glass was involved, but claimed that he had engaged in a pre-emptive strike and had acted in self-defence.

14. The first complaint advanced on the appeal was that the trial Judge did not direct the jury as to the basis on which they were entitled to find that the defendant struck SD while carrying an offensive weapon.  Permission to raise this ground was sought, as permission had been refused by a Judge of this Court.  We consider that permission should be granted.  As is discussed later in these reasons, the Director conceded that there had been a misdirection and that the proviso could not be applied. 

15. During the course of his summing up, the Judge directed the jury as follows:

    All of the offences are alleged to be aggravated offences.  It is the use of an offensive weapon which makes the offences aggravated offences.  A glass is an offensive weapon. 

    The reference by the Judge to all of the offences was a reference to the offence the subject of the Information and to the alternative verdicts available for the consideration of the jury.

16. It was the submission of the defendant on the appeal that the Judge’s direction, as set out above, was wholly inadequate.  To understand this submission requires a consideration of the relevant statutory provisions. 

17. Section 23 of the Criminal Law Consolidation Act provides:

    (1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.

    Maximum penalty:

    (a)     for a basic offence—imprisonment for 20 years;

    (b)     for an aggravated offence—imprisonment for 25 years.

    (2)If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.

    (3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.

    Maximum penalty:

    (a)     for a basic offence—imprisonment for 15 years;

    (b)     for an aggravated offence—imprisonment for 19 years.

18. Section 5 of the Act defines “aggravated offence” as follows:

    aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA)

19. Section 5AA then relevantly provides:

    (1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:

    ...

    (b)     the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;

20. Section 5 defines “offensive weapon” as follows:

    offensive weapon means—

    (a)     an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including—

    (i)a firearm or imitation firearm (ie an article intended to be taken for a firearm); or

    (ii)an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or

    (b)   an article or substance that a person has—

    (i)     for the purpose of causing personal injury or incapacity; or

    (ii)in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity;

21. It was the submission of the defendant on the appeal that the relevant part of the definition of offensive weapon was to be found in subsection (b)(i) of the above definition, namely that the defendant had a glass for the purpose of causing personal injury or incapacity.  It was accepted by the prosecution that this was the only part of the definition on which reliance was placed.

22. The evidence led at trial by the defendant was that he did not knowingly have a glass in his hand.  It was said that the Judge was required to direct that it was necessary for the jury to evaluate the conflicting evidence in order to determine whether the prosecution had proved that the defendant was carrying the glass or controlling the glass knowingly and, if so, whether the defendant was carrying it or controlling it for the purposes of causing personal injury or incapacity.  It was complained that this direction was not given.  Rather, it was said that the effect of the earlier referred to direction was that the jury was required to approach the proof of the other elements of the offence upon the basis that the defendant was carrying an offensive weapon.  It was further complained that this erroneous approach also effected an inadequacy in the Judge’s directions as to self-defence. 

23. The effect of the submission advanced on the appeal was that the Judge erroneously withdrew from the jury’s deliberations a factual question in relation to the proof of the circumstance of aggravation.  This misdirection, it was said, necessarily informed the jury’s deliberations in relation to the proof of a specific intent to cause serious harm, and whether the defendant was acting in lawful self-defence.

24. The Director conceded that the Judge had misdirected the jury when he informed them that the glass was an offensive weapon.  During the hearing of the appeal, it was acknowledged that the misdirection was an error of law and that, in the circumstances, it was not contended that the proviso[1] could have application.  These concessions were entirely appropriate.  The jury was misdirected.  No occasion arose to apply the proviso.  For this reason alone, the appeal had to be allowed.

    [1] Section 353(1) of the Criminal Law Consolidation Act provides:

    The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

25. It was submitted, however, that the evidence was such that this Court could enter a substitute verdict of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act.  The text of that subsection has been set out earlier in these reasons.  The defendant opposed this Court entering such a verdict, contending that questions of credibility arose which this Court was ill-equipped to address and resolve.  The Director, in support of his submission, showed relevant portions of the CCTV footage to the Court. 

26. The need to determine the issue about the substituted verdict was resolved when the defendant was arraigned before this Court and pleaded guilty to the charge of recklessly causing serious harm, contrary to section 23(3) of the Criminal Law Consolidation Act.  On the Director indicating that this plea was accepted, the Court heard sentencing submissions and stood the matter over for this Court to resentence the defendant. 

27. Having regard to the foregoing, it was unnecessary for the Court to consider the further grounds of appeal.  Those grounds included complaints about the summing up on the question of specific intent, a failure to properly put the defence case and a misdirection about the need for the jury to consider the entirety of the evidence in the trial.  It should be pointed out that no complaint was raised as to the form of the Information and, in particular, as to whether an offence of aggravated causing serious harm with intent to cause serious harm was an offence known to the law.

    Conclusion

28. The defendant has been found guilty on his plea to the offence of recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act.  The defendant will be sentenced by this Court on a date to be fixed.