R v Odgers No. Sccrm-02-350

[2002] SASC 419

R  v  ODGERS
[2002] SASC 419

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ

1. DOYLE CJ: The appellant was convicted after a trial by jury on a count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 21 of the Criminal Law Consolidation Act 1935 (SA). He was also convicted on two counts of common assault. He appeals against his conviction only on the first mentioned charge. The appeal challenges one aspect of the Judge’s directions to the jury.

   Facts

2. The charges arose from a brawl outside licensed premises in an Adelaide suburb.  The brawl occurred in the early hours of 24 June 2000.

3. The reasons for the brawl are not relevant for present purposes.  It suffices to say that a fight erupted in the car park outside the premises when people were leaving the premises.  A number of men were involved in the brawl.  Other men were charged with other offences on the same Information.

4. In relation to this particular charge evidence was given by the victim, Mr Swanson, that while he was lying on the ground he was kicked to the head a number of times.  He suffered two fractures to the jaw.  There is no doubt that Mr Swanson suffered grievous bodily harm.  While he gave evidence of having been kicked to the head a number of times, he was not able to identify the persons who kicked him.

5. One witness gave evidence of one man kicking him, and another man standing close behind.  Yet another witness gave evidence of two people kicking Mr Swanson.  On the prosecution case, while there was no doubt that someone made a vicious attack on Mr Swanson, and while there was evidence identifying Mr Odgers as an attacker, it was a reasonable possibility that there were two attackers, one of whom was Mr Odgers.

6. According to the Judge the defence case was that Mr Odgers did not kick Mr Swanson, and that his part in the brawl was limited to helping another friend who was being attacked.  On the defence case, the identification of Mr Odgers as one of the attackers was contested.

7. Under the circumstances, the Judge had to direct the jury about how to approach the case if they were satisfied that there were two men kicking Mr Swanson about the head, and that Mr Odgers was one of these men, and if they were unable to satisfy themselves that Mr Odgers caused the injury which amounted to grievous bodily harm.  I add that the other man involved in the incident, if there was another man, was not charged.

8. It is this aspect of the summing up which Mr Cuthbertson, counsel for Mr Odgers, attacked on appeal.  The submissions by Mr Cuthbertson, and by Ms Kelly for the Director, were commendably clear and concise.

   The summing up

9. No criticism is made of the summing up in respect of the Judge’s treatment of the offence in question.  After outlining the four elements of the offence (causing grievous bodily harm, unlawfully, maliciously and with an intention to cause grievous bodily harm) the Judge briefly outlined how a joint enterprise might have arisen between Mr Odgers and the second man.  The Judge then explained how a person might be made liable as an aider and abettor.

10. The Judge then said:

    “In this trial these principles of criminal complicity have a limited but important role.  Let us focus for a moment on count 1.  Let me assume for the purposes of this explanation that you find that the accused Odgers did inflict force on Swanson and that his intention was to cause grievous bodily harm.  You may not be able to determine whether or not any of Odgers blows actually caused the grievous bodily harm.  That would be particularly so if you accepted Arron (sic) Poulton’s evidence that two men were kicking Swanson as he lay on the ground.  However, if you were satisfied that, at the very least, Odgers aided and abetted the intentional infliction of that harm by the other man, then he would still be guilty, even though he might not have inflicted that grievous bodily harm himself, subject, of course, to all the other elements being proved.”

    Submissions on appeal

11. Mr Cuthbertson submits that in this passage the Judge erred.

12. He submits that by her use of the word “however” the Judge separated the first half of the paragraph from the second half of the paragraph.  He submits that in the second half of the paragraph the Judge then directed the jury that they could find Mr Odgers guilty as an aider and abettor of the second man (in the manner already explained by the Judge), if the second man caused grievous bodily harm and intended to do so, and that the concluding part of the passage meant further that Mr Odgers would be guilty if the “other elements” were proved.  By this reference he says the jury would have understood the Judge to mean the elements of unlawfulness (self-defence was an issue) and acting maliciously.  Mr Cuthbertson submits that the Judge expressed herself in a manner that would have led the jury to think that while the second man must intend to cause grievous bodily harm, there was no need for them to be satisfied beyond reasonable doubt that Mr Odgers intended to cause grievous bodily harm.  He submits that when the Judge referred to “all the other elements being proved”, the jury would not have understood that as a reference to all four elements identified by the Judge, including an intention to cause grievous bodily harm.

13. I do not accept that submission.  In my opinion the direction was adequate.

14. To begin with, the whole paragraph is premised on the jury being satisfied that Mr Odgers intended to cause grievous bodily harm.  The paragraph as a whole deals with how the jury should approach the matter if they are satisfied that Mr Odgers participated in the attack (inflicted force), and intended to cause grievous bodily harm, but if they are not satisfied that he actually caused grievous bodily harm.  I have no doubt that the jury would have understood this paragraph as dealing with the situation in which, for it to apply, the jury had to be satisfied that Mr Odgers had the necessary intent.  The use of the word “however” did not break the paragraph up into two separate topics or parts.

15. In any event, when the Judge referred in conclusion to “all the other elements being proved”, I am satisfied that the jury would have understood her to say that when they considered the liability of Mr Odgers as an aider and abettor of the second man, they had to be satisfied of all other elements involving Mr Odgers, and in context that obviously meant each of the four elements other than the actual infliction of grievous bodily harm.

16. In effect, the Judge told the jury that Mr Odgers could be found guilty as an aider and abettor of the second man, if there was one, if Mr Odgers participated in the attack, intended to cause grievous bodily harm, and if he acted unlawfully and maliciously.  The jury would also have understood that they had to be satisfied that the second man caused the grievous bodily harm with the intention to do so.

17. The jury was correctly directed, and their verdict was one that was well and truly open on the facts.

    Conclusion

18. I would dismiss the appeal.

19. LANDER J:I agree the appeal should be dismissed and I agree with the Chief Justice’s reasons.

20. BLEBY J:               I agree.