R v Pearson

[2002] NSWCCA 429

Reported Decision: 137 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Pearson [2002] NSWCCA 429
FILE NUMBER(S):	CCA 60245/02
HEARING DATE(S):	18/10/02
JUDGMENT DATE:	24 December 2002
PARTIES :	Regina Andrew John Pearson (Appellant)
JUDGMENT OF:	Giles JA at 1; Bell J at 2; Smart AJ at 94

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/41/0164
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	GIO Rowling (Crown) DG Dalton (Appellant)
SOLICITORS:	S E O'Connor Nikola Velcic & Associates (Appellant)
LEGISLATION CITED:	Regina v Clarke (1995) 78 A Crim R 226 Crimes Act (NSW) 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 MFA v the Queen [2002] HCA 53 Jones v The Queen (1997) 191 CLR 439 Regina v Barreto (unreported) NSWCCA, 29 September 1993 R v Condon (1995) 83 A Crim R 335 R v Lardner (unreported) NSWCCA, 10 September 1998 R v Safwan (1987) 8 NSWLR 97 The Queen v De Simoni (1981) 147 CLR 383 Zecevic v DPP (1987) 162 CLR 645
DECISION:	Appeal against conviction dismissed; Leave to appeal against the sentence granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60245/02

GILES JA
BELL J
SMART AJ

24 December 2002

REGINA v Andrew John PEARSON

Judgment

Introduction

1 GILES JA: I agree with Bell J.

2 BELL J: Andrew John Pearson appeals against his convictions on each of three counts and seeks leave to appeal against the severity of the sentences imposed upon him following his trial in the District Court at Wollongong on charges arising out of an incident on 28 April 2000 at Kemblawarra in which he is said to have assaulted his estranged wife and her partner.

3 On 14 November 2001 in the Wollongong District Court the appellant was jointly arraigned with his cousin, David Leslie Jenkins (“Jenkins”), on an indictment charging him with the following offences:

(i) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously inflict grievous bodily harm upon Kane Andrew Thickpenny with intent to do grievous bodily harm to Kane Andrew Thickpenny;
and in the alternative
(ii) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously inflict grievous bodily harm upon Kane Andrew Thickpenny;
(iii) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously wound Kane Andrew Thickpenny;
(iv) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did assault Tanya Shirley Pearson thereby occasioning to her actual bodily harm.

4 The appellant and Jenkins pleaded not guilty to each of the counts and stood their trial. On 5 December 2001 the jury returned verdicts convicting the appellant of counts one, three and four. Jenkins was acquitted of all counts.

5 Count one charged the appellant with an offence contrary to s 33 of the Crimes Act (NSW) 1900 (“the Crimes Act”). This offence carries a maximum penalty of twenty-five years imprisonment. On 18 April 2002 the appellant was sentenced to a term of seven years imprisonment on this count. The sentence was expressed to have commenced on 5 December 2001 and will expire on 4 December 2008. A non-parole period of four years was specified.

6 The third count charged the appellant with an offence contrary to s 35 of the Crimes Act. This offence carries a maximum penalty of imprisonment for seven years. The appellant was sentenced to a fixed term of imprisonment of three years, commencing on 5 December 2001 on this count.

7 The offence charged in count four is provided by s 59 of the Crimes Act, it carries a maximum penalty of imprisonment for five years. The appellant was sentenced to a term of twelve months imprisonment commencing on 5 December 2001 on this count.

8 The appellant challenges his convictions on four grounds. Before turning to these it is appropriate to refer to the evidence led at the trial in some detail since the fourth ground contends that the verdicts are unreasonable and cannot be supported having regard to the evidence.

The Evidence

9 The Crown case was substantially, although not wholly, reliant upon the evidence of Tanya Shirley Curtis (“Curtis”) (formerly Pearson) and Kane Thickpenny (“Thickpenny”).

10 Curtis gave evidence that she had been married to the appellant for a number of years. They had three sons. Around April 1998 they separated. They were reconciled for a time between September 1998 and February 1999. There followed a further separation. There was evidence that they had encountered difficulties in relation to the custody of the three boys. Shortly before the date of the alleged offences the appellant failed to return the boys to Curtis’ home after an access visit.

11 At the date of the offences Curtis was involved in a romantic relationship with Thickpenny. Around a week to two weeks prior to the incident Thickpenny was involved in a motor vehicle accident and he suffered significant injury. He was hospitalised for five days. His injuries included a fractured right thigh, damage to both knees and to the ligaments of his ankle. He was discharged in a wheelchair. He was only able to walk with the aid of crutches and he had a brace for his damaged left knee and compression bandages on his ankles and on the right knee.

12 Following his discharge Curtis stayed with Thickpenny at his unit at 3/32 Hoskins Avenue, Kemblawarra in order to look after him. As at 27 and 28 April 2001 it was the Crown case that Thickpenny was largely immobile. He said that he had been confined to bed from the time of his discharge from hospital. He remained in bed, save on occasions when he was assisted to the toilet.

13 Curtis’s temporary move into Thickpenny’s premises at Kemblawarra had been the cause of concern to the appellant and to members of his family. The appellant’s grandmother died in April 2000. Curtis had been close to her and it was expected that she would attend the funeral. She was notified of it but did not attend.

14 It was the appellant’s case that he was concerned about Curtis’ whereabouts. He visited the former family home and saw that rent had not been paid for a substantial period. The appellant’s parents reported Curtis to the police as a missing person.

15 It was against this background that the appellant came to obtain details of Thickpenny’s address. He visited the premises on two occasions looking for Curtis with a view to speaking to her about the children. He did not see her car parked outside the premises on either occasion and so he left without further inquiry.

16 On 27 April 2000 the appellant called into his parents’ home where he met up with Jenkins. The two ended up having a drink with a friend at the Fig Tree Hotel. At around 10:00 pm the appellant and Jenkins went to the Coniston Hotel where they played pool and consumed some further drinks. They left the Coniston Hotel in the appellant’s vehicle. He drove to Hoskins Avenue, Keblawarra.

17 The appellant said that he drove into the driveway of 3/32 Hoskins Avenue and noticed that Curtis’ Mitsubishi Pajero was parked there. He then reversed back out, parked his vehicle under a street light, saying to David Jenkins, “wait here I’ll be back in a sec” (T14 – 27/11/01 & T7 – 28/11/01). Jenkins waited in the car and the appellant walked to Thickpenny’s unit and opened the fly-screen door and knocked on it. There is a significant factual issue as to what happened thereafter.

18 On the Crown case Curtis and Thickpenny had fallen asleep on a futon bed in the lounge room, while watching television. They were awakened by a knock on the door. Curtis answered the door to find the appellant and Jenkins standing there. The appellant said, “here you are” and grabbed her by her arms, throwing her to the floor. He then went over to the futon on which Thickpenny was lying and punched him in the face. Curtis said that Thickpenny pleaded with the appellant not to hurt him because his legs were injured. She tried to pull the appellant off Thickpenny. The appellant took hold of her arms then threw her against the wall. The impact of this caused the television set to fall off its stand. It struck Curtis fracturing her rib. Curtis tried to leave the apartment but was confronted by Jenkins who barred the door and said to her “no way, you’re not going anywhere” (T4 - 20/11/01). She was pushed back inside the flat.

19 Thickpenny said that the appellant hit him as he was lying on the futon. The appellant was accusing him of “touching his wife” (T5 – 21/11/01). He returned the appellant’s punches. He had a pair of bandage scissors in his hand and he used these to defend himself. The appellant suffered a number of incised wounds (consistent with being stab wounds) to his face. During this part of the incident Thickpenny said that the appellant said to him, “you fucking cunt, you touch my woman I’m going to fucking kill you” (T6 – 21/11/01).

20 The appellant dragged Thickpenny onto the floor and continued to punch him. Curtis called on the appellant to stop and endeavoured to pull him off. The appellant turned and warded off Curtis with a series of punches to the face (T5 – 21/11/01). The appellant put his thumbs about Thickpenny’s throat saying “I’m going to kill you, you fucking touch my Mrs” (T6 – 21/11/01) and exerted pressure as if to strangle him. The appellant let go of Thickpenny and returned to his confrontation with Curtis. Thickpenny rolled under the futon.

21 Curtis said that she had again attempted to leave the room but that on this occasion she was confronted by the appellant who took hold of her by the hair and forced her back into the room. She saw Jenkins standing near the futon. She tried to escape. Jenkins attempted to take hold of her, but his grip slipped and she fled from the room to raise the alarm (T6 – 20/11/01). A short time after this Thickpenny said that both the appellant and Jenkins left the room.

22 Curtis said that after escaping from the unit she knocked on a neighbour’s window and then hid behind a pot plant. She heard the appellant and Jenkins calling out to her, saying, “we’re going to get you, I’ll be back for you” (T7 – 20/11/01). She waited for five minutes behind the pot plant before hearing the appellant’s vehicle depart. Her neighbour, Wayne, opened his door and she asked him to call the police and the ambulance service. She waited in Wayne’s unit until the police arrived.

23 It was Thickpenny’s evidence that while Curtis was outside the apartment the appellant and Jenkins returned. The appellant lifted the futon and kicked and jumped on his legs, calling out “you fucking wank, touching my Mrs … who do you think you are?” (T7 – 21/11/01). The appellant smashed a ceramic vase on Thickpenny’s head exclaiming, “you want to stab me, you’re going to pay for this”.

24 Thickpenny said that the appellant and Jenkins again left the flat and that he dragged himself out to the hallway. The appellant and Jenkins returned. The appellant was carrying a piece of wood. The two men kicked Thickpenny in the stomach, face and legs. The appellant stomped on Thickpenny’s head and, fractured his jaw. The appellant and Jenkins walked out to the foyer of the premises and Thickpenny crawled back inside his unit. The appellant and Jenkins, again, returned to the unit. The appellant jumped on Thickpenny and stabbed him. Thickpenny described a sensation of pain in his left shoulder and neck as he heard the appellant say, “you want to stab me, I’m going to kill you” (T9 – 21/11/01). The appellant said “this is not over” and then left the flat in company with Jenkins. Thickpenny went to the kitchen and dialled 000 and contacted the emergency services.

25 The police and ambulance attended and Thickpenny was taken to Wollongong Hospital. His injuries included split ears, a bleeding face, fractured jaw, stab wounds to the back of his left shoulder, bruised right ribs, cut hands, chipped front teeth. The fractured jaw required the insertion of metal plates.

26 Dr George Berios said that Curtis had soft tissue swelling around the left eyebrow and rib pain consistent with a minor fracture. X-rays confirmed the existence of a fracture.

27 Robert Goetz, forensic biologist, gave evidence of the results of DNA testing. Blood on the appellant’s jeans had the same DNA profile as that of Thickpenny. Blood group analysis established that the blood on the scissors could have come from Curtis and Thickpenny.

28 The appellant and Jenkins gave evidence at the trial. The appellant said that Curtis opened the front door. He stepped inside and suddenly felt a sharp blow to his left shoulder. He saw Thickpenny attempting to take hold of him. He grabbed Thickpenny and forced him down onto the futon. The two struggled and ended up on the floor. Thickpenny was punching the appellant. The appellant felt a strange sensation, as if something were sticking into him. He noticed that his shoulder was bleeding. As the appellant was trying to pin Thickpenny to the floor Curtis took hold of him by the hair and pulled him backwards onto the lounge room floor. The appellant firmly pushed Curtis away. This caused her to fall against the television stand. This was the only episode of physical contact between the two. The appellant turned and approached Thickpenny. He felt a sharp blow to the face and saw a pair of scissors sticking out of his nose. He took hold of the scissors from Thickpenny’s hand and flung them into the kitchen.

29 The appellant denied using the scissors as a weapon at any stage. He suggested that Thickpenny received the stab wound to his shoulder accidentally as the result of his own action in stabbing the appellant.

30 Jenkins’ evidence was generally conformable with that of the appellant. He remained in the car. He heard screams and went to the flat to see what was going on. The front door was open and he looked in. He saw Curtis on the floor in the vicinity of the television. The appellant and Thickpenny were on the ground wrestling. Curtis approached him with her hands over her face and he asked, “what’s going on?” (T9 – 28/11/01).

31 The appellant said that Jenkins intervened when he and Thickpenny were struggling. On his account Jenkins took hold of him and pulled him away. He broke free from Jenkins’ grasp and moved back, taking hold of Thickpenny’s hair and punching him. Jenkins again intervened and took him outside the flat. The appellant saw Thickpenny standing in the front doorway of the flat calling out, he turned towards him and punched him with a right upper cut under the jaw (T26 – 27/11/01). Thickpenny fell down and hit the ground “fairly hard” (T27 – 27/11/01). The appellant returned to his car and drove home.

32 The appellant described the confrontation as taking no more than a minute and a half. He suffered a cut and bleeding nose, which later required seven sutures (T26 – 27/11/01). As he was driving home he vomited blood on more than one occasion. When he got home he changed clothes and drove to Wollongong Hospital to get some treatment.

Ground one – his Honour erred with respect to the directions upon the elements of count one (the charge pursuant to s 33 Crimes Act (NSW) 1900).

33 The trial judge’s directions concerning the elements of the offence charged in count one were as follows:

The first count, as you have heard from the Crown, relates to the attack which is alleged to have occurred on Thickpenny and, in particular the broken jaw, and you have evidence that he had a broken jaw. This is not in dispute. You have got the certificate of Dr Bosanquet which says that he had a broken jaw and nobody suggests that he did not.
What the Crown alleges is that each of the accused did maliciously inflict grievous bodily harm on Kane Andrew Thickpenny with intent to do grievous bodily harm to Kane Andrew Thickpenny. Now grievous bodily harm means serious injury. And I tell you as a matter of law that a fractured jaw can be a really serious injury. What, however, you have also to be satisfied about is that the accused had the requisite intention. Now I am going to say something to you about the role of each of them in a minute because there are some more directions of law that I will give you about joint enterprises.
But what you must think about is whether or not each of the accused had an intention to cause that serious injury to Thickpenny. Intent and intention are very familiar words. In this legal context they carry their ordinary meaning. Intention may be inferred or deduced – and inference is something that I am going to speak to you about in a minute – intention may be inferred or deduced from circumstances in which the injury, in this case to Thickpenny, occurred, and from the conduct of Mr Pearson and Mr Jenkins before, at the time of, or after they did the specific act, if you accept they did it.
Whatever a person says about his or her intention maybe looked at for the purpose of finding out what that intention was at the relevant time. But in some cases a person’s acts may, themselves, provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he or she deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that specific result.
Let me give you an illustration of that direction that I have just given you which is different from anything in this case. If a person hits another person on the head with a hammer you may think it is obvious and inevitable that the person who is hit will receive a really serious bodily injury as a result. If therefore, the first person deliberately hits the other person on the head with the hammer, it is a simple matter for a jury to conclude that he or she did so with the intention of inflicting really serious bodily injury on that other person.
You may think there is no difficulty at all about coming to that conclusion, but you must remember that you are considering the intention of the accused, not what your intention might have been in the circumstances and not the intention of any hypothetical reasonable person.
Now I said that I would tell you about inferences, because here there is no evidence that either of the accused said anything to the effect that he was going to go and inflict serious injury on Thickpenny. The Crown is asking you to infer that intention from the other evidence that is brought before the Court. Now you may, as judges of the facts, draw inference from the direct evidence. There is nothing extraordinary about that because we all draw on inferences, consciously or unconsciously, in our everyday lives.
…
Now in the context of a criminal trial, where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. As I have said to you in this case, the Crown asks you to infer that each of the accused had a particular state of mind and it asks you to infer that from other facts. (SU 5-8)

34 Mr Dalton did not challenge the accuracy of the directions as to the elements of the offence charged. He raised two related challenges to the adequacy of the directions in so far as they dealt with the specific intent.

35 The observation, “you may think there is no difficulty at all about coming to that conclusion” (set out above) was said to have constituted an invitation to the jury to find that proof of the specific intent was not an issue in this case. In written submissions Mr Dalton contended:

“Any argument that the invitation should only be read as a reference to the preceding paragraph and His Honour’s example of the inferences to be drawn from the use of a hammer to another’s head should be dismissed as that paragraph is not only complete unto itself and indeed refers to the hypothetical jury, but the subject of the relevant paragraph is clearly the accused (the appellant), it was addressed to the jury in the trial and was accordingly to be understood in the context of the specific intent of the appellant in the circumstances of the trial at hand.”

36 It does not seem to me to be useful to speak in terms of paragraphs as complete in themselves or the like. The jury did not have access to the summing up as a document. It is not apparent that his Honour’s comment is to be taken as an invitation to the jury to consider that there was no difficulty in coming to the conclusion that the specific intent had been proved in this case. Rather, it might be thought of as an observation that the inference (of the formation of the specific intent) could readily drawn from the illustration just given. Mr McGill, who appeared for the appellant at trial, made no complaint about this comment.

37 The real thrust of Mr Dalton’s complaint on this ground was that the judge failed to relate his directions to the evidence. It was common ground that it was the appellant’s act that caused the fracture to Thickpenny’s jaw. There were two versions as to how that injury was inflicted. The Crown’s case depended on the evidence of Thickpenny. He said that the appellant had stomped on his face while he was lying on the floor. The appellant’s account was that after he and Jenkins left the unit he saw Thickpenny in the foyer and he went back and struck him with a single uppercut punch. Thickpenny fell heavily as the result of this blow.

38 In Mr Dalton’s submission while the inference as to the existence of the specific intent might have been readily available on Thickpenny’s version, it was not so readily drawn on the appellant’s version. It was submitted that the trial judge’s directions should have discussed the necessity for the Crown to prove the existence of the specific intent by reference to the different factual findings that were open.

39 The direction that his Honour gave concerning the means by which the Crown may discharge the onus upon to prove the specific intent was in conformity with that approved in Regina v Barreto (unreported) NSWCCA, 29 September 1993. It was a direction that pointed out to the jury that where a specific result is the obvious and inevitable consequence of the doing of an act and the act is done deliberately it is open to the jury to draw an inference as to the existence of the intent. It is not a direction that invites the jury to conclude that the accused is presumed to have intended the natural and probable consequences of his act.

40 The appellant’s case at trial was that he had been set upon by Thickpenny and repeatedly stabbed by him. He contended that the Crown had failed to negative self-defence with respect to the offence charged in count one. The defence to this charge was not without its difficulties. It was the appellant’s case that he was removed from the unit by Jenkins and that he had returned and struck the blow to Thickpenny. His counsel approached the matter in his closing submissions without reference to any question of the specific intent. He put it this way:

“I suggest this to you that he had lost that degree of control because of the pain that he was suffering, the blood that was oozing out of his face, and the hurt that he was suffering at the hands of Mr Thickpenny that he lost that degree of control where he could give reasonable thought in a calm quiet deliberate manner as to what he should do. So he has come back in and decked Mr Thickpenny. What I am suggesting to you is this that in that instant the time that elapsed between the last attack on Mr Pearson and the time that he finally attacked Mr Thickpenny out in the foyer wasn’t such as to give him any cause other than to think that he might still be under attack from Mr Thickpenny.” (T 3/12/02 at 32.26).

41 The approach adopted by trial counsel was to invite the jury to take a broad-brush approach to the issues. Generally, it was the defence position that Thickpenny was the aggressor and that his account of events was exaggerated and unreliable. Although Curtis provided some support for Thickpenny’s version of events, his evidence as to the incidents charged in counts one and three was unsupported. In trial counsel’s submission the jury would not convict on the word of Thickpenny. This was an understandable forensic approach to adopt. A close analysis of the appellant’s evidence relating to count one might not be thought to have been in his interests. The claim to have acted in self-defence was barely open. Any concentration on the appellant’s evidence would only tend to reinforce this.

42 Trial counsel did not invite the jury to consider that on an acceptance of the appellant’s account (as a reasonably possible version) the specific intent had not been established. He did not seek a re-direction analysing the appellant’s evidence in the context of proof of the intent to cause grievous bodily harm. That was an understandable forensic decision. Any analysis of what it was the appellant said that he did might not be thought to have been helpful to the case that he was conducting. The appellant’s evidence was that after Jenkins took him out of the unit he returned and delivered an uppercut blow to Thickpenny’s face. The blow was of sufficient force to knock him down.

43 The appellant requires leave under r 4 of the Criminal Appeal Rules 1952 to argue this ground. In Regina v Clarke (1995) 78 A Crim R 226 Hunt CJ at CL (in a judgment with which McInerney J agreed) observed:

“The requirements of r 4 of the Criminal Appeal Rules that leave be granted before a misdirection will be allowed as a ground of appeal where objection was not taken at the trial are not some mere technicality which may simply be brushed aside. One purpose of the rule is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury (Knight (unreported) NSWCCA, 18 December 1990). Where a wrong direction is given which could easily have been cured once the judge’s attention had been drawn to it, and if counsel for the accused to whose detriment the error may have operated fails to comply with that duty, simply standing by and allowing the error to occur, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community (cf McKinney (1991) 171 CLR 468 at 488; Cleland (1982) 151 CLR 1 at 10).
It was submitted that the errors made by the judge were of a fundamental nature which went to the root of the proceedings so that the trial could not fairly be said to have been a trial at all ( Glennon (1994) 179 CLR 1 at 8). However, whether a misdirection is of such a nature must depend upon the circumstances of the particular case, and it is appropriate in determining that question to have regard to the strengths and weaknesses of both the prosecution and the defence cases in order to assess the gravity and significance of the error ( Wilde at 373-374; Glennon at 8). Such an assessment in the present case reveals a very strong Crown case and a very weak defence case. The errors made were manifestly not fundamental in the way suggested.
I would grant leave to add the fourth and fifth grounds of appeal, but I have serious doubts as to whether it is appropriate that further leave be granted in relation to them in accordance with r 4. That is because, even if the appellant was able to show a miscarriage as a result of these misdirections in order to obtain such leave ( Tripodina at 191-195; Abusafiah at 536) the Crown must in my view succeed in the application of the proviso to s 6 of the Criminal Appeal Act to have the appeal dismissed, upon the basis that there has been no substantial miscarriage of justice and notwithstanding the different onus’s of proof involved. The distinction between a miscarriage and a substantial miscarriage has been maintained ( Dietrich (1992) 177 CLR 292 at 337; Asquith (1994) 72 A Crim R 250 at 260.”

44 I do not consider that the appellant has shown that there exists the possibility of a miscarriage of justice arising out of the point now taken. I would refuse to leave to rely upon it.

Ground two – his Honour erred with respect to the directions upon the elements of count three the charge pursuant to s 35 Crimes Act (NSW) 1900

45 The trial judge’s directions concerning the offence charged in count three were expressed with considerable brevity:

The third count – which is not an alternative count – is one that you are going to have to consider in respect of each of the accused – relates to the alleged stabbing by Mr Pearson of Thickpenny. And here again the only word that you will need to think of in a legal context is, ‘maliciously’. And again it means intentionally, without lawful excuse and, ‘wounding’ has its ordinary meaning” (SU19).

46 Mr Dalton identified two challenges to the adequacy of these directions. The first complaint was that having regard to the factual issues it was necessary to make clear to the jury that the Crown must prove an intentional stabbing (as distinct from an accidental one). In Mr Dalton’s submission it was necessary for the trial judge to direct the jury that:

“They must find beyond reasonable doubt the appellant intended the particular harm caused (or at least was reckless in that regard) in other words, he intended to stab Thickpenny”.

47 I do not consider there is substance to this aspect of the challenge to the adequacy of the directions. The direction that the element of malice would be satisfied by proof that the act was done intentionally and without lawful excuse seems to me to have been sufficient in the context of this case; R v Safwan (1987) 8 NSWLR 97 at 99.

48 Brief as the directions on count three were I am satisfied that they served to make clear that it was incumbent on the Crown to establish beyond reasonable doubt that the appellant intentionally stabbed Thickpenny and thereby wounded him.

49 The second basis on which Mr Dalton challenged the adequacy of the directions as to the elements of this offence was that the trial judge erred by failing to direct the jury that it was necessary for the Crown to negative self-defence. The directions set out above included that the stabbing must have been carried out “without lawful excuse”. Immediately preceding that direction the trial judge in completing his directions on the alternative count (count two) said:

“Now again, those words have the same meaning that I have explained to you. ‘Grievous bodily harm’, means really serious injury and ‘maliciously’, means intentionally without lawful excuse. So what I have said to you about self-defence applies equally to this count as it does to the first.” (SU 18)

50 In setting out the elements of the offence charges in count three the trial judge did not direct the jury that it was incumbent on the Crown to negative self-defence. If on any view self-defence was open with respect to this count this would be a significant omission.

51 On the Crown case no issue of self-defence arose with respect to count three. If such an issue did arise it was because of the appellant’s evidence. It is necessary to look at his evidence on this topic with some care.

“Q. After that Mr Pearson he says that whilst he was back in the flat laying on his stomach on the lounge room floor that you’ve jumped on top of him on the floor with your knees and started stabbing you in the shoulder with the object you had in your hand, is that true or not?
A. No that is not true.
Q. Did you even hold that pair of scissors in your hand?
A. Only struggle when I’m out of his hand to throw them on the kitchen floor, that was the only time that my hands touched the weapon.
Q. Listen to the question. Did you ever by yourself hold the scissors in your hands?
A. No.
Q. Can you give the jury any explanation as to how it might be that those scissors could have come in contact with the left back shoulder of Mr Thickpenny?
A. I do have a suspicion of how he may have been injured on the left shoulder. If you recall I was telling you how when we went off the bed onto the lounge room floor that I tried to get into a position above him and he was stabbing me under the chin. At that stage Tanya came through, I was stabbed a few times under the chin in an upward motion like that by Mr Thickpenny. At that stage Tanya reached over from behind me, pulling by the hair, pulling me backwards on the floor. While Mr Thickpenny was stabbing me if my head was no longer there and the force that he was using to throw those scissors I feel that if he has been stabbed then that is and how he got his injuries” (T34- 27/11/01).

52 Mr Dalton submitted that in cross-examination the appellant left open, both that it was his voluntary act that caused the stab wound to Thickpenny’s left shoulder and that it was done in self-defence:

“Q. At any time while he was on the ground beside the bed, this time when you were struck by the, know to be scissors anyway whether you saw them at the time but although you realise they were scissors?
A. …. Had scissors yeah.
Q. Were you at any time during that did you strike him back?
A. I attempted to, I’m not sure if I actually did get to strike him but in, while I was trying to get on top of him he was still striking me. I was trying to get into a position where I could strike him, yes and in those moments Tanya pulled me off, I don’t know if I ended up hitting him or not, I couldn’t, I honestly couldn’t say.

Q. From what you tell us there was only really the one point where you had the scissors at all whether its …
A. Yes that’s right.
Q. … jointly holding them with …
A. That’s correct, yeah.
Q. Mr Thickpenny, is that right?
A. yeah that’s right, yes.
Q. You actually grabbed them and wrenched them basically from his hand and threw them away, is that correct?
A. Yeah, they were still lodged in my face and he still had hold of them, I grabbed his hand and the scissors in the one go with both my hands and threw them to my right into the kitchen area that was quite dark.
Q. I take it from what you tell us as to what happened the only way that those scissors could have been embedded into the back of the shoulder of Mr Thickpenny was at the time you were pulled back by Tanya?
A. That’s the only way I can see that it could have possibly happened. I’ve re-enacted this in my lounge room many, many times.
Q. You’ve re-enacted it in the lounge room?
A. That’s right, in my lounge room, yes.
Q. So you re-enact how that may happen that …
A. No, I’ve re-enacted and that’s where I’ve come to the conclusion that if he had been stabbed this is the most possible way that it could have happened.
Q. Did you consider any other possibilities or there was simply just no other possibilities?
A. Well I never had the scissors long enough apart from that couple of seconds when I wrestled them off him and threw them away, I never touched them again so I know for a fact that I did not stab him.
Q. Basically the time that you were pulled back, you say Tanya grabbed you by the hair is that right?
A. That’s correct.
Q. And pulled your head up and backwards, is that correct?
A. True, each time grabbed me on the hair towards the fringe and ripped me backwards and at that I went backwards, yes that’s correct.
Q. You say at that point if he was striking towards your face he may well have, well missed you because you had gone and …
A. Right up until that very moment he was uppercutting me with the scissors into the jaw, whack, whack under the chin and that’s when Tanya pulled me off.
Q. So what you say is the only, and you have re-enacted it in the lounge room that the scissors could strike him in the back of the left shoulder is that whilst he is lying on his back on the floor you having your knee pinning his left side to the ground?
A. Yes that’s right.
Q. As your head’s moving back and away from him when he tries to strike you its somehow gone back over his shoulder and into his shoulder?
A. Well I didn’t know until this week exactly if he had been stabbed or where exactly he had been stabbed. All I knew that there was a question that he had been stabbed. That’s as far as I got until this week in court.
Q. But that’s what you’re saying is the only possibility because you say that you never had the scissors in your hand to strike him at all?
A. That’s correct, yes.
Q. The only time you really had the scissors was to throw them away?
A. That’s correct, yeah.
Q. I take it he had the scissors in his right hand is that correct?
A. Opposite me, yeah that’d be right, yeah.
Q. I mean because you had his left …
A. That’s right.
Q. … hand held and you were pinning him left side with your knees?
A. That’s correct, yes.” (27/11/01 63-65).

53 The answer to which Mr Dalton directed our attention commences “I attempted to, I’m not sure if I did actually get to strike him but …’. This was not evidence that the appellant attempted to strike Thickpenny with the scissors. The whole of the cross-examination on this topic makes plain that the appellant’s account was that the only time he took hold of the scissors was when he removed them from his face and threw them away. He maintained that he had not stabbed Thickpenny. On his account as he was pulled away from Thickpenny by Curtis Thickpenny’s own gesture with the scissors in his hand had been the likely cause of the wound to his back left shoulder.

54 Mr Dalton, in further written submissions, contended by reference to the content of the defence counsel’s closing submissions that, “self-defence was raised at trial on behalf of the appellant with respect to all counts upon the indictment including count three.” Mr Dalton drew attention to the following passage in the transcript of the defence address:

“I want to turn now to Mr Pearson’s case. You heard him go into the witness box and you heard him give his evidence. What his defence is members of the jury is that he was acting in self-defence that night, nothing more, nothing less. Acting in self-defence” (T3/12/01 at 30).

55 Mr Dalton’s written submissions continued with the contention:

“It is submitted counsel in effect addressed the jury in terms of count three on the basis the injury the subject thereof was caused accidentally whilst the appellant was defending himself struggling with Thickpenny in an attempt to disarm him of the scissors.”

56 Mr Dalton submitted that the case had been fought both by the Crown and the appellant on the basis that self-defence was to be negatived on each of the counts that alleged assaults on Thickpenny.

57 Mr Dalton’s submissions concerning the approach taken by the Crown refer to the contents of the Prosecutor’s address at T 3/12/01 5 – 6:

“The other aspect is that, and on behalf of Mr Pearson in opening the defence case, Mr McGill told you that the actions of Mr Pearson were in self-defence and that is what the tenor of the evidence of Mr Pearson was. That he was acting in response to the attack on him. Now though it is termed self-defence it is for the Crown to establish beyond reasonable doubt that he was not acting in self-defence.
…
The Crown says of course, and in proving this, that this isn’t a case of Mr Pearson reacting in self-defence. This is a case where he was the attacker and it was Mr Thickpenny who attempted to defend himself. But there is one other aspect to that and I will come to that when I talk about the evidence, in particular the evidence of Mr Pearson, but the Crown says even if you had a doubt or you accepted what Mr Pearson said inside the flat that he was acting in self-defence or the Crown has not satisfied you beyond reasonable doubt that he was not inside the flat there was some acts of self-defence by Mr Pearson, by the time it came to being outside in the foyer the Crown says even on his own version there was no question that he was acting in self-defence. Now I will take you to that. The Crown says that even if we haven’t established beyond reasonable doubt inside the flat what was happening, even on the accused Mr Pearson’s own version in that foyer, that he did an act which was an intentional act which resulted in the broken jaw to Kane Thickpenny thereby being serious grievous bodily harm and he intended to do serious bodily harm to him, or if you are not satisfied that you are still satisfied he intentionally did an act which inflicted grievous bodily harm on Mr Thickpenny. Likewise as to when it came to the point where he came back in and we say stabbed him because there is that differences as to that happening. Mr Pearson saying that he didn’t do any stabbing of Kane Thickpenny” (T3/12/01 5-6).

58 In his supplementary written submissions Mr Dalton said:

“During oral argument in the course of the hearing of this appeal the point was made that perhaps self-defence was raised on neither the Crown’s nor the appellant’s cases at trial with resect to count three and accordingly there was no need for his Honour to direct the jury upon same. Given the addresses it can be seen the parties clearly considered it had been raised, and as expressed, logically based upon the evidence. Further and in any event the same argument could be postulated with respect to count one in that even on the appellant’s account at trial it might be argued self-defence was not raised. It was certainly never suggested on appeal self-defence had not been properly raised with respect to count one. Indeed the Crown mounted arguments of that nature to the jury in address in an attempt to negative self-defence with respect to both counts one and three, yet in no way framed same to suggest the Crown did not agree that self-defence was the key issue raised at trial upon all counts, including three, and that it was therefore the Crown’s onus to negative that defence. Indeed the Crown even noted this was the basis counsel for the appellant at trial opened to the jury before the evidence was called.”

59 Although the claim to have been acting in self-defence with respect to count one might be thought to have been tenuous there was an evidentiary basis for it. The appellant’s account was that as he was leaving the unit Thickpenny had come out yelling and that he had put his hand out as though he was “going for the banister” (T27/11/02 at 26). The appellant went on to say of his reason for striking Thickpenny with the upper cut to the jaw:

“I don’t know how to explain the sort of the emotions that go through you when you know something like that happens it was from one second there was a knock on the door, the next second I’m fighting for my life and I don’t know exactly why I did it, I didn’t think about it, I saw his face and the next second I hit it and that was pretty much how it went” (T27/11/01 at 27)

60 It was no part of the appellant’s case that he had stabbed Thickpenny because he believed it was necessary to do so in order to defend himself; Zecevic v DPP (1987) 162 CLR 645. The defence was that the stabbing was not the appellant’s act. In his closing address trial counsel said this:

“So what I am saying to you is that that wound, that laceration on Mr Thickpenny’s shoulder, I’d submit to you it’s more likely than not it came about by accident rather than by design. In other words that it wasn’t a deliberate attempt to injure this man by stabbing him with scissors, rather it’s something that is more likely to have happened when the two of them are scuffling over the scissors trying to exert power over each other, and bear in mind despite Mr Thickpenny’s leg problem, nevertheless you heard that he was in good physical shape otherwise, and you’ve got a photograph there in front of you which shows him to be in remarkably good condition for a man of his age. That is a photograph of him sitting down on a bed. Remarkably good condition. A very athletic looking man and a man who knows how to use his hands in that sort of situation. So can I suggest this to you that it is possible that that abrasion, that laceration to Mr Thickpenny’s shoulder came about as the two of them were struggling to get control of these scissors.” (3/12/01 at 31-32).

61 In this passage trial counsel submitted that the jury might consider that the wounding came about accidentally in the course of the struggle as the two men scuffled over the scissors. This might be thought to be a gloss on the evidence that the appellant gave. The appellant did not describe a scuffle over the scissors in which as each man tried to exert power over the other it was possible that Thickpenny sustained the wound to his left rear shoulder. I do not accept Mr Dalton’s submission that the case was conducted on the basis that the appellant wounded Thickpenny in self-defence. That was not his case. At all times it was the appellant’s case that the wounding was accidental.

62 Trial counsel did not seek a re-direction that the Crown must negative self-defence with respect to count three.

63 Putting to one side how counsel chose to conduct the case, it does not seem to me that there was an evidentiary basis on which self-defence was open with respect to count three. For this reason I do not consider that the directions as to count three were wrong in failing to include as an element of the offence that the appellant was not acting in self-defence.

64 This leaves a consideration of the adequacy of the directions generally concerning the elements of the offence charged in count three. The jury were directed that the stabbing must be intentional and that it must cause a wounding. The summing up on this count was notably brief and did not involve any attempts to relate the elements of the offence to the issues raised by the respective cases. In R v Condon (1995) 83 A Crim R 335 this Court explained that it is the duty of the trial judge to assist the jury with understanding the critical issues of fact by reference to the applicable principles of law. The judge is not relieved of this responsibility by the arguments of counsel.

65 No complaint as to the adequacy of the directions with respect to count three was made by trial counsel. Leave is required pursuant to r 4 of the Criminal Appeal Rules. The issues raised by this count were relatively simple. I am not persuaded that the appellant has identified as a possibility that a miscarriage of justice occurred by reason of the failure of the trial judge to relate the directions that he gave concerning the elements of the offence to the factual issues raised by the respective cases. I would refuse leave pursuant to r 4 to rely upon it.

Ground three – his Honour erred with respect to the directions upon self-defence

The directions complained of with respect to self-defence were as follows:

The first count uses the expression, ‘maliciously’ and what that means is, ‘intentionally’. I have already told you what, ‘intentionally’, means. Something in law is done maliciously if it is done intentionally and without lawful excuse. In this case the defence has raised what it says is a lawful excuse, and that is self-defence.
A person who is attacked or who is threatened with an attack may defend himself or herself. A person who is attacked or threatened has a right to defend himself or herself and to strike a blow if it is reasonably necessary in self-defence. Self-defence does not mean that a person has a right to take revenge on an assailant when the danger has passed. A person is not entitled to take action which he or she does not believe on reasonable grounds to be necessary in order to defend himself or herself.
For example, if a grown man is attacked by a small boy with a shanghai he could hardly believe that it was necessary to respond with a shotgun, and if he did have that belief you might well be satisfied beyond reasonable doubt that there are no reasonable grounds for it.
In the present case the Crown says in fact that Mr Pearson and Mr Jenkins were the attackers, but because they have raised the question of self-defence, the Crown has to satisfy you beyond reasonable doubt that Mr Pearson and Mr Jenkins were not acting in self-defence. That means that the Crown says that even if Mr Pearson, on his own evidence, had been attacked and feared further attack, what he did when on his own evidence he struck Thickpenny with the upper cut, was so out of proportion to that attack that he could not have believed that it was necessary. He did it after he had left the flat where he said he had been attacked. Even if you thought it possible that Mr Pearson did believe that it was necessary the Crown says there were no reasonable grounds on which Mr Pearson could have held that belief.
Now it is for you to assess the weight of that argument, having regard to the facts and circumstances that have been proved by the Crown beyond reasonable doubt and the material which each of the accused asks you to consider. When you consider a claim by an accused that he acted in self-defence, the question that you have to ask and answer is this. Did the accused – in this case Mr Pearson – believe on reasonable grounds that it was necessary to do what he did in defence of his person? If he had that belief and had reasonable grounds for it, or if you are left in reasonable doubt about the matter, then the accused is entitled to be acquitted. The reasonable belief – and I emphasise this – is the belief of that accused person, not what you would believe and not what a hypothetical person would believe.
On the other hand, if you are satisfied beyond reasonable doubt that Mr Pearson did not believe that it was necessary to do what he did in self-defence, or if you accept that he may have had that belief, if you are satisfied beyond reasonable doubt that he did not have reasonable grounds for holding that belief, the claim of self-defence fails. In determining whether Mr Pearson had that belief and had reasonable grounds for holding it, you must have regard to the circumstances that Mr Pearson genuinely regarded them to be at that time.
There is a fundamental point in relation to the claim of self-defence which you must take into account. The onus of proof, the burden of proof, is not on Mr Pearson or Mr Jenkins to prove that what Mr Pearson did was done in self-defence. Because he claims that he acted in self-defence the law requires the Crown to prove that he was not acting in self-defence and the Crown must believe beyond reasonable doubt that the accused was not acting in self-defence before you can find him guilty.
I say again to you that what a person, who is threatened, can do is to use such force as is reasonably necessary to defend himself and herself and that person must have the belief that what he is doing is reasonably necessary.
Finally, you should remember that it would be sensible for you to approach a claim of self-defence in a practical way and give weight to the situation in which Mr Pearson found himself at the relevant time. He says – and you may accept this – that he had little opportunity for calm deliberation and assessment of the appropriate response to any or actual threatened attack to his person. You must also consider what the Crown says, in relation to Mr Jenkins’ evidence, that Mr Pearson had actually been taken out of the flat and was away from any threat. (SU9-12).
…
Now I think I have completed all that I wanted to say to you about count one and all that I want to say to you about when you would need to go on to consider count two. I have not said anything specifically to you about count two but much of what I have said already relates to that, because it is a charge that you will only consider if you find each of the accused not guilty on count one. It is a charge that they maliciously inflicted grievous bodily harm on Kane Thickpenny. (SU 18)

66 Following the luncheon adjournment on 4 December 2001 his Honour was asked to give a further direction concerning joint criminal enterprise. In this context he directed the jury:

“And as I said to you before, if you are not satisfied beyond reasonable doubt – and here I am using a double negative – if you are not satisfied beyond reasonable doubt, by the Crown, that Mr Pearson was not acting in self-defence, then there is no crime. Because if he was acting in self-defence, in the way that I explained to you, that is a lawful excuse” (SU50).

67 Two, related, complaints were identified with respect to these directions Firstly, his Honour observed:

“Because he claims that he acted in self-defence the law requires the Crown to prove that he was not acting in self-defence and the Crown must believe (emphasis added) beyond reasonable doubt that the accused was not acting in self-defence before you can find him guilty”. (SU 11)

68 In Mr Dalton’s submission the jury would have taken from this direction that there was an independent obligation upon the Crown to determine that the appellant was not acting in self-defence before inviting to the jury to find that it was negatived. It was submitted that the jury would be more inclined to reject self-defence upon the basis that the Crown’s representative had himself reached such a conclusion. This error is said to have been compounded by directions:

I think I have now completed what I want to say to you about count one because if you find that the Crown has not satisfied you beyond reasonable doubt that Mr Pearson acted in self-defence then he will not have a lawful excuse and you may find that what he did was done maliciously.
Now if you are not satisfied beyond reasonable doubt of all those matters, or if you are not satisfied beyond reasonable doubt that Mr Pearson acted in self-defence then you must find the accused not guilty on count one and then proceed to count two. If you find each of the elements of the alternative offence, that is the one in count two, proved beyond reasonable doubt but you are not satisfied of each element of the more serious offence, that is count one, then you may find each of the accused not guilty on count one and guilty on count two. But you should not regard this as an invitation to compromise. (SU13).

69 The two paragraphs set out above contain serious misstatements of the law. However, the directions are to be viewed as a whole. The trial judge correctly directed the jury in conformity with Zecevic and then, after making these admittedly confusing remarks, he went on to clearly and accurately direct the jury as to the onus of proof with respect to the elimination of self-defence. Mr Dalton in his written submissions did not seek to contend otherwise. His principal challenge is that the trial judge did not correct the earlier reference to the Crown’s “belief” that the accused was not acting in self-defence.

70 The reference to the Crown’s belief is inexplicable. The whole passage is incomprehensible. Counsel listened to the tape of the summing-up and informed the Court that the transcript is an accurate record of what the judge said. None of the three counsel appearing at the trial raised the matter. (Mr West, who appeared for Jenkins, had an interest in the jury being correctly directed on the issue of self-defence). It was an extraordinary proposition and one might have expected it to have been the subject of a request for a re-direction. The fact that it was not suggests that in the context of the whole of the directions on self-defence this curious slip did not assume any prominence.

71 Read as a whole I am satisfied that the directions on self-defence served to accurately state the law and to make clear that the onus was on the Crown to negative it. The appellant requires leave pursuant to r 4 of the Criminal Appeal Rules to argue this ground. I would not grant leave.

Ground four – the verdicts were unreasonable, cannot be supported having regard to the evidence and/or are effected by the errors of law dealt with in the other grounds of appeal such as to constitute a substantial miscarriage of justice.

72 In support of this ground the appellant relies on the cumulative effect of what are said to be the errors the subject of grounds one to three. For the reasons that I have already given I am not persuaded that there is merit to this aspect of ground four.

73 The appellant also submits that in all the circumstances a properly instructed jury ought to have entertained a reasonable doubt as to his guilt; M v The Queen (1994) 181 CLR 487. The appellant relies both upon the sufficiency of the evidence in the Crown case to support the verdicts and upon the contention that the acquittals of Jenkins on each of the counts so diminished the credibility of Thickpenny and Curtis that it was not open for the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt as to his guilt: Jones v The Queen (1997) 191 CLR 439.

74 The Crown case against Jenkins was that he was a party to a joint criminal enterprise with the appellant to commit each of the offences. In the course of his summing up the trial judge directed the jury that the case against each of the accused must be considered separately. His Honour went on to direct:

“There is nothing in law or commonsense which requires you to return the same verdict in respect of each and you should not, in your deliberations, seek to decide whether, as a couple, they are guilty. That is wrong and unfair. You must consider the case against each of them and for each of them quite separately (SU14).
…
Now all these counts are alleged against both of the accused. I am now going to tell you about what you have heard described as joint illegal enterprise. What I have to say to you is not simple but it is something that is extremely important and I would ask you to listen carefully. I may have to go over some of this material a few times before we get on top of it.
This is a very important direction in relation to the case against Mr Jenkins who is accused of having committed the same offences as Mr Pearson, the offences of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The alternative charge, the malicious wounding and the stab wound, and the assault on Tanya Pearson.
The Crown says that he was a joint participator in that illegal enterprise. The Crown says that he was present at the time when the crimes were committed by Mr Pearson and the Mr Jenkins intentionally assisted or encouraged Mr Pearson in the commission of that crime.
A person who does that is just as guilty of the crime as the person who actually committed it. Mere presence of the accused at the scene of the crime is not sufficient to make the accused jointly liable.
The Crown must satisfy you beyond reasonable doubt that there was also intentional assistance or encouragement by Mr Jenkins of Mr Pearson in the commission of the crime.
Encouragement is established if the Crown satisfies you beyond reasonable doubt that Jenkins was both present and ready to assist Pearson in actually committing the crime if required. And readiness to give assistance amounts to an encouragement.
…
Before you can find Mr Jenkins intentionally gave either aid or encouragement in the commission of the crime, you must be satisfied beyond reasonable doubt that Mr Jenkins knew all the essential facts or circumstances that the Crown must satisfy you of beyond reasonable doubt, in respect of Mr Pearson.
The intention that the Crown has to prove must be based on Mr Jenkins’ knowledge of the essential facts. What the Crown seeks to do here is to prove beyond reasonable doubt, firstly that Mr Pearson committed the offence, secondly that Mr Jenkins was there. For that they rely on the evidence of Ms Curtis and Mr Thickpenny who say that both of them were present at the relevant times. Thirdly, that Mr Jenkins knew all the essential facts or circumstances necessary to show that the crime was committed by Mr Pearson and that he intentionally assisted or encouraged Mr Jenkins to commit that crime” (SU21-23).

75 After the luncheon adjournment on 4 December 2001 his Honour returned to directions concerning the case brought against Mr Jenkins. He said this:

“Now you must also be satisfied, in respect of Mr Jenkins, that what happened when Mr Thickpenny received serious injury, was something which was at least a possibility that Mr Jenkins should have been aware of when he entered into that agreement or undertaking by agreeing to be present with Mr Pearson when crime was committed. So he must have been aware that serious harm to Mr Thickpenny was a possibility at the time” (SU50).

76 The circumstances of the present case do not seem to me to raise the issues with which the Court was concerned in Jones. The Crown made quite different cases as against the two accused. It was the Crown case that the appellant was the principal in the first degree. He alone was said to have broken Thickpenny’s jaw, stabbed Thickpenny in the left shoulder and assaulted Curtis. In the way the matter was put to the jury it was necessary for the Crown to establish beyond reasonable doubt not only Jenkins’ presence at the scene and willingness to give encouragement or assistance to the appellant, but his realisation “that serious harm to Thickpenny was a possibility” at the time he entered into the arrangement to be present with the appellant when the crime was committed. It appears to have been common ground that on two occasions Jenkins took action to remove the appellant from the scene.

77 The test to be applied in determining whether verdicts are inconsistent was discussed by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 and more recently in MFA v the Queen [2002] HCA 53. In MacKenzie at 367 Gaudron, Gummow and Kirby JJ observed:

“Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (see Mercer v Commission for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, if there is a proper way by which the appellant court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted ( R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury ( Hayes v The Queen (1973) 47 ALJR 603 at 604-605). In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt ( R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40).”

78 The acquittal of Jenkins on each of the counts charged against him does not carry with it as a necessary conclusion that the jury did not accept the evidence of Thickpenny or Curtis. The differing verdicts are explicable upon a view that the jury considered that the Crown had failed to establish that Jenkins’ presence was that of an aider and abettor providing encouragement to the appellant with respect to the commission of the offences.

79 I turn now to a consideration of the appellant’s submissions concerning the sufficiency of the evidence to support the convictions. In his written submissions Mr Dalton contended:

“Critical to the Crown case was the evidence of the alleged victims Ms Curtis and principally Mr Thickpenny. There was little evidence which in fact corroborated Thickpenny’s version which essentially involved a brutal unprovoked attack by the appellant and Mr Jenkins with fists, feet, timber and scissors. There was certainly medical evidence regarding the broken jaw, a wound to the shoulder and a chip fracture behind the left knee. These injuries were certainly consistent with Mr Thickpenny’s account but become equivocal in the light of the appellant’s claim of self-defence. No bruises are noted by Dr Vickers upon Mr Thickpenny’s body which whilst the doctor gave evidence one wouldn’t necessary observe bruises when a person had been repeatedly kicked and punched by two men, the absence of same certainly, and at the very least, does not lend positive support to Mr Thickpenny’s version of events. Perhaps most importantly the appellant suffered multiple stab wounds which is consistent with the appellant’s account and inexplicable upon that of Mr Thickpenny’s.”

80 Mr Dalton also complained of the Crown’s failure to call two neighbours who it would seem may have been in a position to support aspects of the two complainant’s evidence.

81 Ultimately, in Mr Dalton’s submission, the Crown case depended upon the credibility of the two complainants. Jenkins’ evidence was at odds with that given by the two complainants and was, in general terms, consistent with that of the appellant. In all the circumstances it was contended that the jury ought to have entertained a reasonable doubt.

82 The events giving rise to counts one and three were not witnessed by Curtis. The Crown case depended upon an acceptance of the evidence of Thickpenny. This was a matter to which the trial judge directed attention during the course of his summing up. His Honour said this:

“Now in this case one witness is essential to the proof of a substantial part of the Crown case and that is Kane Thickpenny, because he is the only witness to a number of the events that the Crown says took place on the late evening of 27 April or the morning of 28 April. Tanya Pearson was there at the beginning, but on the accounts of all the witnesses, she left. And she left, she was not present, when Mr Thickpenny says that he was assaulted with the piece of wood, when his face was stomped on and his jaw broken, or when he was stabbed. So for this reason his evidence is the only evidence to support those charges and you must take particular care with it.
Since the Crown must prove its case beyond reasonable doubt and the evidence given by Mr Thickpenny is the only evidence relating to essential matters which the Crown must prove, then it follows you must be satisfied beyond reasonable doubt that his evidence is reliable and that you accept it, otherwise each of the accused must be found not guilty.
Now you must assess not only what the witness says but also his honesty and reliability as a witness. And the Crown has given you a number of reasons why it says you should accept Mr Thickpenny’s evidence.
There is some objective material. First of all there is no doubt that Mr Thickpenny suffered some injuries, although there is a dispute about the extent of his injuries. There is no doubt that there was a lot of blood on the floor and on the furniture in his unit, and on the telephone. The Crown says that the place where blood was found on the floor between the wall and the bed, supports Mr Thickpenny’s version of events, namely that when Mr Pearson went to attack Tanya Curtis he crawled under the bed and subsequently Pearson moved the bed to get at him and attacked him there. The Crown makes similar arguments to you in respect of the blood on the floor in the foyer, although you have heard a lot of contrary arguments from other counsel. And I will be saying more about those at a later stage. The Crown says that Mr Thickpenny is the one who called the police and that tends to corroborate his evidence.
So I emphasise that the Crown must establish that Mr Thickpenny is honest and reliable, in giving evidence that supports the Crown case. It is not for the accused to show that Mr Thickpenny was either dishonest or unreliable” (SU37-39).
Now the part of the evidence to which I was referring earlier when I said you had to give special attention to Mr Thickpenny’s evidence, is that evidence of what happened after Curtis left, because after that he is the only Crown witness who has told you about what happened.
He says that at that time he was on the floor near the bed, he rolled under the bed and Mr Pearson came back and moved the bed. Now you have also heard Mr West, at least, address you on that. Both Ms Curtis and Mr Thickpenny said that the bed was up against the wall to begin with, and Mr Thickpenny said it was moved. And you will see a photograph of the bed at an angle to the wall, and you will see that between the bed and the wall there is blood on the floor, there is some blood on the wall. There is some blood on the bedding.
It is for you to make of that what you think. You may think it is consistent with what Thickpenny said. You may think that it is Mr Pearson’s blood that was there when there was a scuffle on the bed, although Thickpenny’s evidence, as I recall, was that this scuffle was on the other side of the bed and it was pulled off him.
After that, he says, that after Mr Pearson had punched him, on the floor, Mr Pearson left and Thickpenny went out into the foyer area for help and he went to the other flat that opens onto that landing, and hung onto the screen door. He said the lady came and said she did not want to be involved, to ask somewhere else. At that time, he says, Mr Pearson and Mr Jenkins came back. Mr Pearson was carrying a piece of wood.
It is really only Thickpenny’s evidence of that. Curtis gave evidence about that, but she said, when she was cross-examined, that she did not actually see the piece of wood, she was told about it and she believed it, but she did not actually see it. So Thickpenny was the only person who saw it” (SU53-54).

83 The Crown points to a number of matters which are said to have provided some support for an acceptance of Thickpenny’s evidence beyond reasonable doubt. These included the history of deteriorating relations between the appellant and Curtis. The appellant chose to visit the Thickpenny residence at around midnight after he had been drinking. In the Crown’s submission the jury might well have accepted the evidence both of Thickpenny and Curtis concerning the circumstances in which the incident commenced, namely, an assault by the appellant upon Thickpenny.

84 The Crown placed reliance on aspects of the forensic evidence including the broken ceramic vase and the evidence of the blood staining in the vicinity of the futon bed. Both of these were said to point to an acceptance of Thickpenny’s account.

85 The jury were entitled in evaluating the evidence of Thickpenny (that he was the victim of an unprovoked assault and not the aggressor) to take into account that he was suffering injury to both legs at the time.

86 This was a case that depended on an assessment of the credibility of the witnesses. In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ said at 493:

“[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

87 I note that in some respects Thickpenny’s evidence differed from that given by Curtis in matters of detail. However, I am not persuaded that the Crown case contained discrepancies or displayed inadequacies or otherwise lacked probative force such that I would conclude, making full allowance for the advantage enjoyed by the jury in assessing the evidence of the witnesses, that the jury ought to have entertained a doubt.

Appeal against sentence

88 Mr Dalton submitted that the trial judge erred in finding that, “these offences were clearly planned and premeditated” (ROS4). In his submission no basis was identified in the evidence to admit of such a finding. There was no evidence that before leaving the hotel the appellant formed any intention of assaulting the complainants, he had not armed himself or made other arrangements referable to a planned attack on Thickpenny and Curtis. In Mr Dalton’s submission it was open on the evidence to find that the appellant went to Thickpenny’s unit with a view to talking to Curtis and that on seeing her he lost his self-control and assaulted her and Thickpenny.

89 It was not a surprise to the appellant that his wife was staying at Thickpenny’s unit. He went there expecting to find her. His conduct in immediately assaulting her and Thickpenny admitted of a finding that the offences were planned in the sense that he went to Thickpenny’s unit in order to have a violent confrontation.

90 Mr Dalton next contended that the sentencing judge erred by taking into account as aggravating the offences that they were committed at night and that they involved the invasion of the complainants’ home. In his submission in so doing his Honour offended the principle enunciated by Gibbs CJ in The Queen v De Simoni (1981) 147 CLR 383 at 389. The principle is that in imposing sentence a judge may not take into account circumstances of aggravation that would have warranted conviction for a more serious offence. It does not seem to me that there was any infringement of that principle in this case. The judge was sentencing the appellant in respect of an offence contrary to s 33 of the Crimes Act, of maliciously inflicting grievous bodily harm with intent thereby to inflict grievous bodily harm. He considered that offence to have been aggravated by reason of the fact that it was committed in the complainant’s home. In doing so his Honour did not take into account a fact which would have rendered the appellant liable to conviction for a more serious offence. It was open to him to consider the commission of the offence in the security of the complainant’s home to be a feature of aggravation; R v Lardner (unreported) NSWCCA, 10 September 1998 at 14-15.

91 Finally, it was contended on the appellant’s behalf that the sentence is manifestly excessive. The appellant was a man of thirty-seven years at the time he stood for sentence. He had a record of minor criminal offending, but save for one prior conviction for assaulting his wife, the earlier history was of little significance. His Honour noted that it was appropriate to take into account that this was the first time that the appellant wound undergo a sentence of imprisonment. At the time of the offences the appellant was looking after his three sons. His Honour made a finding that the appellant was remorseful and that he had undertaken a course in drug and alcohol abuse and anger management. Overall his Honour considered that personal deterrence was not a matter to be accorded significant weight in the circumstances of this case. He found that there were special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In this respect he took into account the circumstance that the appellant had earlier suffered a severe back injury associated with his employment. He considered that the appellant was a person with good prospects of rehabilitation and that an extended period of parole was appropriate. Having regard to the close association in time between each of the offences his Honour determined that they should be served concurrently.

92 Mr Dalton submits that in the circumstances of this case a sentence of seven years with a four-year non-parole period is so severe as to betray latent error. I am not persuaded that is so. The offence charged in count one carries a maximum penalty of imprisonment for twenty-five years. This offence occurred in the context of a sustained assault. It was a sentence of considerable severity but I do not believe that it can be said to have fallen outside the range of the exercise of discretion.

93 For these reasons I propose the following orders:

1. Dismiss the appeal against conviction.

2. Grant leave to appeal against the sentence but dismiss the appeal.

94 SMART AJ: I agree with Bell J.

95 As to the second ground of appeal it must be remembered that as the judge summed up the jury had a copy of the Indictment (SU.5) and the judge went through it with the jury. The charge and the facts relating to it were simple, straightforward and self-evident. Not much needed to be said. Although the directions were brief they sufficed in the circumstances of the present case. In other cases fuller directions would have been required with the principles of law related to the facts.

96 The incorrect directions as to self defence identified by Bell J and set out at SU.13 were unfortunate. As Bell J has pointed out correct directions had been given and at some length. What was said at SU.13 purported to be an encapsulation of what the judge had said earlier. What the judge said at SU.13 did not make sense and is hard to follow. It would not have meant anything to the jury. The jury would have followed the earlier and correct directions as to self defence.

97 As Bell J has demonstrated, the appellant's defences to all charges were unbelievable and did not bear close analysis. The appellant, having spent some time drinking, arrived at the flat of his wife's lover, with a friend, after 11 pm. He resented the behaviour of his wife and her lover. The lover was seriously incapacitated as a result of major surgery, being on crutches and wearing a leg guard which extended from his left thigh to his left ankle. He was convalescing. The Crown evidence was highly persuasive and ample to satisfy a jury (and a judge) beyond reasonable doubt of the appellant's guilt. The defence case was not capable of raising a doubt. It was wafer thin. It would have been surprising if the jury had not convicted the appellant.

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