R v Patrick Keith Griffin No. SCCRM93/372 Judgment No. 4290 Number of Pages 2 Criminal Law and Procedure

[1993] SASC 4290

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE, MOHR AND BOLLEN JJ

CWDS
Criminal law and procedure - particular offences - offences against the person - causing grievous bodily harm with intent to do grievous bodily harm - recklessness is not an element of this crime. R v Blevins (1988) 48 SASR 65 at 67, discussed.

HRNG ADELAIDE, 16 November 1993 #DATE 26:11:1993
Counsel for appellant:     Mr W F Braithwaite
Solicitors for appellant:    Mr W F Braithwaite
Counsel for respondent:     Mr B J Jennings QC
   with him Ms R C Gray
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 LEGOE, MOHR AND BOLLEN JJ The appellant was convicted by a jury in the District Court of causing grievous bodily harm with intent to do grievous bodily harm. 2. No verdict was taken on an alternative count of assault occasioning actual bodily harm. 3. We need not set out the facts. Suffice it to say that the state of mind of the appellant at the time of the suggested events was very important. He had drunk a lot of alcohol. He offered evidence fit for consideration on the issue of self defence. 4. More or less at the end of argument we announced that we allowed the appeal, quashed the conviction and penalties and ordered that there be a new trial on each count. We said that we would give our reasons later. 5. These are our reasons. They are brief. In our opinion, there is no need to consider more than one ground of appeal. As there is to be a retrial, we will say what we think about that ground only. We make no comment, for or against, any other ground. The one direction amounted to a misdirection. In our opinion, it is fatal to the conviction. The learned trial Judge told the jury the elements of the crime alleged in count 1. When he came to "the fourth element" he said:-
    "Ladies and gentlemen, the fourth element of the offence of
    which you must be satisfied before the accused can be convicted
    of the offence in count 1 is that when he acted as he did, if
    you should find him to have done so, the accused acted
    maliciously. To act maliciously is to act either with a
    deliberate and conscious intention to cause grievous bodily harm
    to the victim or to act with the positive foresight that the
    particular kind of harm might be caused to the victim and the
    accused presses on with his actions, regardless of the
consequences." 6. In our respectful opinion, the introduction of the element of "recklessness" makes this a misdirection. The crime of causing grievous bodily harm with intent to do grievous bodily harm is proved by nothing less than (as to state of mind) the positive intention to cause grievous bodily harm. There is no place for recklessness. The introduction of recklessness may well have confused the jury. It may have lead them along the wrong path. (See by parity of reasoning R v Blevins (1988) 48 SASR 65 at 67 per King CJ.) 7. It is true that there are other passages in the summing up which speak of intent in unexceptional terms. But we do not think that that overcomes the risk of confusion and incorrect reasoning by the jury. The misdirection is capable of being understood as saying that one avenue to conviction was by way of recklessness. The jury may have so understood and applied the direction. 8. That misdirection was enough to lead to the decision of the Court.