R v Qutami - [2001] NSWCCA 35

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Piccin [2001] NSWCCA 35

FILE NUMBER(S):
60207/00

HEARING DATE(S): 09/02/01

JUDGMENT DATE: 09/02/2001

PARTIES:
Regina v Kay Piccin

JUDGMENT OF: Giles JA James J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0607

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
P Segal - Appellant
CK Maxwell QC - Crown

SOLICITORS:
Direct Access - Appellant
SE O'Connor

CATCHWORDS:
Malicious wounding - stalking - inconsistent verdicts - Crimes Act s562AB - discharge of jury - character of the accused.

LEGISLATION CITED:

DECISION:
Appeal allowed in part

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60207/00
GILES J
JAMES J
HULME J
Friday 9 February 2001
REGINA v KAY PICCIN
JUDGMENT

JAMES J: This is an appeal by Kay Piccin against her conviction after a trial before his Honour Judge Luland and a jury on charges that on 27 April 1999 at Elizabeth Bay she maliciously wounded Yangyong Premprasert and that on 5 May 1999 at Pyrmont she stalked Yangyong Premprasert with the intention of causing Yangyong Premprasert to fear personal injury.
At the beginning of the trial the appellant had been indicted on the following charges that she:-
1(a) on 27 April 1999 at Elizabeth Bay attempted to murder Yangyong Premprasert;
Alternatively, (b), on 27 April 1999 at Elizabeth Bay she maliciously wounded Yangyong Premprasert;
2 on 27 April 1999 at Elizabeth Bay she maliciously damaged a motor vehicle being the property of Yangyong Premprasert;
3(a) on 5 May 1999 at Pyrmont was armed with a weapon being a knife with the intent to commit an indictable offence, murder;
Alternatively, (b) on 5 May 1999 at Pyrmont she stalked Yangyong Premprasert with the intention of causing Yangyong Premprasert to fear personal injury.
The appellant pleaded not guilty to all of the charges in the indictment.
In the course of the trial count 1(a) in the indictment was amended so as to substitute a charge of wounding with intent to murder and count 2 in the indictment was amended so as to allege that the motor vehicle which had been damaged was the property, not of Yangyong Premprasert, but of Yongyuth Premprasert. The making of these amendments was not opposed by counsel for the appellant at the trial, who was also counsel for the appellant on the hearing of the appeal.
The jury found the appellant not guilty of the offences charged in counts 1(a), 2 and 3(a) of the indictment and, as I have already indicated, guilty of the offences charged in counts 1(b) and 3(b) of the indictment.
In regard to the verdicts of guilty on counts 1(b) and 3(b) in the indictment, his Honour Judge Luland made orders deferring passing sentence, upon the appellant entering into a conditional recognizance to be of good behaviour for two years from 13 April 2000, which was the date on which Judge Luland made the orders.
The appellant is a woman who was born in Thailand in 1955. She came to Australia in 1974. She married in 1981 but separated from her husband in 1993.
Yangyong Premprasert, the victim of the two offences of which the appellant was convicted (who I will refer to as the “complainant”), was born in Thailand in 1977 and came to Australia as a boy. He was referred to in some of the evidence at the trial by the name “Toc”.
Yongyuth Premprasert, the owner of the motor vehicle referred to in the amended second count in the indictment, is Yangyong Premprasert's older brother.
It was common ground at the trial that in 1994 the complainant began working at a Thai restaurant in Neutral Bay. Soon after the complainant began working at the restaurant, the restaurant business was acquired by the appellant. Within a short time of the appellant acquiring the restaurant business, the appellant and the complainant entered into a sexual relationship, which continued at least up until 1998. Between about 1995 and 1998 the complainant worked in the restaurant business and was the tenant of a flat at Homebush owned by the appellant.
By 1998 the appellant was in serious financial difficulties and she had to sell the restaurant business at Neutral Bay and the flat at Homebush which she had been letting to the complainant. She also had to sell her own home at Strathfield and move into a rented flat.
After the appellant sold the flat the complainant had been occupying, the complainant went to live with his brother Yongyuth Premprasert in the latter's flat in a block of flats or units in Harris Street, Ultimo (sometimes referred to in the evidence as Pyrmont). The complainant began working at a takeaway Thai restaurant in Kings Cross operated by his brother Yongyuth and Yongyuth's female partner. One of the complainant's duties was to deliver takeaway food which had been ordered by telephone.
The Crown case on counts 1(a) and 1(b) and 2 in the indictment depended primarily upon the evidence of the complainant.
The complainant gave evidence in his evidence-in-chief that, from about the middle of 1998 and until the end of 1998, there had been no contact between him and the appellant. However, in January 1999, the complainant made a delivery of takeaway food to a room in the Holiday Inn Hotel at Kings Cross and discovered that the customer was the appellant. The appellant asked the complainant to come back to the hotel after he had finished work at the restaurant. The complainant did so and spent the night with the appellant. During the next week the appellant telephoned the complainant and the complainant telephoned the appellant.
Subsequently, the complainant made a delivery of takeaway food to a hotel room in the Top Of The Town Hotel and discovered that the customer to whom he was delivering the food was the appellant. Subsequently, the appellant made a number of telephone calls to the complainant.
The complainant gave evidence that on the evening of 27 April 1999 he was working at the takeaway restaurant. He received a telephone call from the appellant. He told the appellant that he was busy at the restaurant and this first conversation was brief. Shortly afterwards, the complainant received another telephone call from the appellant, who told him that she wanted to meet him urgently and she suggested that they meet at the Sebel Townhouse in Kings Cross.
The complainant drove to the meeting place in his brother Yongyuth's motor vehicle. The appellant was waiting in front of the Sebel Townhouse. She got into a back passenger seat of the vehicle. The complainant drove the vehicle to Roslyn Gardens and parked the vehicle. The complainant turned to face the appellant "in a diagonal way". The appellant and the complainant talked about the breakup of their relationship. The conversation became very loud and aggressive. The complainant told the appellant that their relationship was finished. The complainant then gave evidence--
“And then I turn my face, instead of facing her diagonally, then I turn my face to the front, then when I turn back there’s a knife approaching to me and cut me across the chest”.
The pointed end of the knife cut the complainant across the chest "and then dragged to cut my chin". A struggle ensued between the appellant and the complainant for control of the knife. The complainant gave evidence that the appellant said, in both Thai and English, "I am going to kill you, you have hurt me so much".
After about ten to fifteen minutes of struggling, the appellant calmed down and both the complainant and the appellant got out of the car. The appellant said, "You got away today, I will get you next time. If not me, there will be someone else". She also said, "You are going to die, I am going to kill you".
The complainant returned on foot to the restaurant where he worked. The complainant, his brother Yongyuth and Yongyuth's partner went by taxi to where Yongyuth's car had been left. It was discovered that all the tyres of the vehicle had been cut and were deflated.
The complainant then went to Kings Cross Police Station where he reported the incident. He then went to St Vincent's Hospital where he was treated for the cuts on his chest and under his chin.
Between 27 April and 5 May 1999, the complainant received a number of telephone calls from the appellant. In these calls the appellant said, "Sorry I didn't finish the job and I will get someone else to do it next time". She also said, "Tell the little rat to get out of your life, otherwise she will get hurt too".
The complainant was then in a relationship with a young Thai woman whose nickname was “Orn” and, on the Crown case, the reference to "the little rat" was a reference to Orn. Orn gave evidence in the Crown case that between 27 April and 5 May she had received threatening telephone calls from the appellant.
The Crown case on counts 3(a) and 3(b) in the indictment depended, to a large extent, on the evidence of a witness Mr Nounrasi and evidence by police officers. Mr Nounrasi gave evidence-in-chief that, at about 1 o'clock in the afternoon of 5 May 1999, he met the appellant by chance and they travelled together in her car to Harris Street, Ultimo, arriving between 2.30 and 3 o'clock in the afternoon. There was a Thai restaurant nearby in Harris Street and Mr Nounrasi gave evidence in his evidence-in-chief that he and the appellant were waiting for the restaurant to open, so that they could have dinner at the restaurant.
The Crown Prosecutor was granted leave to cross-examine Mr Nounrasi on the grounds that he had made prior statements, inconsistent with the evidence he had so far given in his evidence-in-chief, when he had been interviewed by the police. In cross-examination Mr Nounrasi agreed that when he had been interviewed by the police, he had said that on 5 May the appellant had told him that she missed her boyfriend (that is, the complainant) and still loved him and that she was very upset and that her boyfriend lived in Harris Street. Mr Nounrasi had also told the police that while the car was parked in Harris Street the appellant was using binoculars.
A police officer, Detective Senior Constable Wall, gave evidence inter alia that after 4pm on 5 May 1999 he went with another officer to Harris Street, Ultimo. There were two people in a car parked in Harris Street, who were the appellant and Mr Nounrasi. The appellant was in the driver's seat. She was wearing a black cap and sunglasses and was looking through binoculars at the block of units or flats in Harris Street, which was the block containing the flat in which the complainant resided. Detective Senior Constable Wall arrested the appellant for the stabbing of the complainant on 27 April. The appellant was taken to a police station, where she was interviewed.
The appellant gave lengthy evidence in her own case at the trial. I will not attempt to summarise all of her evidence, which occupies many pages of the transcript.
In her evidence she asserted that the complainant had become heavily indebted to her, through non-payment of rent for the flat at Homebush and through gambling away some of the takings of the restaurant at Neutral Bay and that the appellant had pressed the complainant to repay some of the indebtedness, particularly when her own financial situation deteriorated.
She said that there had been many telephone contacts between the complainant and herself in the early months of 1999, many of them initiated by the complainant. She said that there had been meetings between them, including a meeting at the Hampton Court Hotel in Kings Cross on the night of 21 April 1999, which had not been mentioned by the complainant in his evidence.
The appellant agreed in her evidence that she and the complainant had agreed to meet outside the Sebel Townhouse on the evening of 27 April, that the complainant had arrived driving his brother's car and that she had got into the car. She said that she had got into the front passenger's seat and not into a rear passenger's seat. The complainant drove the car to Roslyn Gardens, where he parked the car. The appellant asked the complainant about the money the complainant owed her and the complainant told her that he was not going to do anything about paying the money.
The pair continued to argue about the money the complainant owed the appellant. The appellant said it was not fair that the complainant was keeping the appellant waiting for her money. The complainant asked, "What can you do about it?" and the appellant replied that she could tell the complainant's mother, brother and girlfriend Orn, what sort of person he was.
The complainant became agitated. The appellant saw a knife in the complainant's hand. She became very frightened. In a reflex action, she grabbed the complainant's hand. There was a struggle between them for control of the knife. The appellant saw that the complainant's hand was bleeding. Then the complainant's mobile phone rang. The appellant quickly got out of the car and, as she expressed it, “ran for her life”, not looking back. She reached her car and drove off. She said that she had not damaged the complainant's brother's car. She claimed that she had herself sustained injuries in the incident, being a cut to her eyelid and to her index finger.
In her evidence the appellant denied making threatening telephone calls between 27 April and 5 May.
As regards 5 May, the appellant agreed that she had been in the parked car with Mr Nounrasi in Harris Street, Ultimo. She said that she was waiting for the Thai restaurant in Harris Street to open. She denied that she was using the binoculars she had, to try to see anything connected with the complainant. She said that a little knife which the police had found on searching her car was a knife she used to peel fruit and open up packets.
When she was interviewed by the police in a formal interview on 5 May, the appellant denied that she had met the complainant on 27 April at Kings Cross or, indeed, that she had seen the complainant at all on the night of 27 April. It was accepted at the trial that these denials were deliberate lies told by the appellant.
I turn to the grounds of appeal against conviction, which I will deal with in the order in which they appear in the amended notice of appeal.
Ground 1(a): The credibility of the complainant was so diminished that it became an unreliable basis upon which to base a conviction.
It was submitted that at least on one of the counts in the indictment on which the appellant was convicted, that is count 1(b), the Crown case depended substantially on the evidence of the complainant. Reference was made by counsel for the appellant to the well-known passage in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 494 where their Honours said, in relation to evidence relied on by the Crown:
“… where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence”.
It was submitted by counsel for the appellant that, if the complainant's evidence was examined, it exhibited such discrepancies and inadequacies and lack of probative force that the verdict of guilty on count 1(b) could not be allowed to stand. A number of matters were relied on.
Counsel relied on evidence of records of mobile telephone calls, as showing that there had been more frequent telephone calls between the appellant and the complainant in the early months of 1999 than the complainant had acknowledged, and this would seem to have been the case.
It was submitted that the complainant had lied when he said in cross-examination that it had been a complete surprise to him, when he delivered the takeaway meal to the Top Of The Town Hotel, to discover that the customer to whom he was delivering the meal was the appellant. Reference was made by counsel to records of two telephone calls made that evening on the complainant's mobile telephone to the appellant's mobile telephone. However, these mobile telephone calls made by the complainant could have been calls made by the complainant when he was outside the hotel and was seeking to contact the customer, because of the difficulty he was experiencing in parking in the vicinity of the hotel. It seems to me it would have been open to the jury to consider that the evidence given by the complainant, that it was a surprise to him to discover that the customer was the appellant, was not clearly contradicted by the evidence of the telephone calls.
It was submitted - and it is the fact - that in his evidence-in-chief the complainant, in giving evidence about the struggle between the appellant and the complainant in the car on 27 April, did not refer to his mobile telephone ringing. However, when it was put to the complainant in cross-examination, the complainant acknowledged that there had been such a telephone call.
It was submitted that it was improbable that the ringing of the complainant’s mobile telephone would have had the result of putting an end to the struggle between the appellant and the complainant for control of the knife. However, as I understand the case put on behalf of the appellant at the trial, this was what the appellant herself asserted.
It was submitted that it was improbable that, after the complainant had returned on foot to the restaurant where he was working, the complainant, his brother and his brother's partner would have taken a taxi to where the brother's car had been left and not simply have proceeded there on foot. However, it does not seem to me surprising, particularly having regard to the fact that it was raining at the time, that the option was taken of the three of them travelling by taxi.
The complainant's brother gave evidence that, after the three of them had arrived where the car had been left, the brother, after the vehicle had failed to start, checked the tyres of the vehicle. It was submitted that the brother would immediately have checked the tyres of the vehicle upon the vehicle failing to start, only if he had already been informed by the complainant that the tyres had been deflated and the complainant would have known that the tyres had been deflated, only if he had done the deflating himself.
The complainant's brother gave evidence partly through an interpreter and parts of his evidence are not easy to understand. However, I consider that the relevant part of the complainant's brother's evidence is open to the interpretation that the complainant's brother attempted to start the vehicle, in the sense of getting the vehicle moving, and it was after the vehicle had failed to move that he got out of the vehicle and looked at the tyres.
It was submitted that a knife of the size described by the complainant would not have fitted into the handbag that the appellant was carrying on the evening of 27 April. The knife which, on the Crown case, had been used to wound the complainant had not been found. However, at the trial, the defence produced a demonstration knife, which the complainant acknowledged was similar to the knife which he said the appellant had used on the evening of 27 April. The argument then proceeded that such a knife could not have fitted into the handbag the appellant was carrying on the night of the 27th.
However, at the trial, the complainant disputed that the handbag which the defence had produced and which the appellant said was the handbag she had had that night, was the handbag that she had had that night. Hence, this particular argument on behalf of the appellant depended upon the jury being satisfied that a part of the appellant's evidence which was disputed by the complainant should be accepted.

In his evidence the complainant denied that any bag of money had ever been stolen from a car he was using. Evidence was adduced by the defence in the form of a note made by a general medical practitioner who the complainant had consulted on 23 February 1998. The general practitioner made a note, as part of a history given by the complainant, that "bag of money stolen from his car".
It was submitted that, if there had been any violence on the night of 27 April, it would more probably have been perpetrated, not by the appellant who had no record of violence but by the complainant, who, at one stage, had engaged in some form of physical violence against his employer. However, the only physical violence alleged was that at one stage the complainant had pushed his employer.
It was submitted that it was more probable that any knife was being carried by the complainant, who, as someone working making deliveries in the Kings Cross area, might be carrying a knife for his own protection.
Some other criticisms were made of the complainant's evidence.
As I have indicated, some criticisms can properly be made of the complainant’s evidence. However, I do not consider that this ground of appeal should be upheld. In my opinion, it was open to the jury, notwithstanding such discrepancies or inadequacies as there were in the complainant's evidence, to be satisfied beyond reasonable doubt that the essential allegations made by him were true.
This was a case in which the advantage the jury had of seeing and hearing both the complainant and the appellant give their evidence was a considerable advantage. That the complainant had suffered injuries which could have been caused by a knife in the way described by him, was confirmed by other witnesses and the complainant made a prompt complaint to the police.
As had to be conceded by counsel for the appellant, the appellant's own credibility was seriously damaged by the lies on crucial matters which she had told when interviewed by the police on 5 May.
In answers in the interview she said that the relationship between her and the complainant had been a brief one and was a result of the complainant having a “crush” on her. Having regard to the evidence given at the trial by both the appellant and the complainant, these assertions about the duration and nature of the relationship were quite false.
More importantly, in answers the appellant gave in the interview she denied that she had seen the complainant at all on 27 April and she provided an alibi that on the evening of 27 April she had been at one of her children's schools and then at her home. It was conceded at the trial that these assertions were lies. The trial Judge directed the jury, correctly, that they could, if they saw fit, take into account the lies told by the appellant in the interview about not seeing the complainant on 27 April and being elsewhere on that night as being evidence of consciousness of guilt, tending to show that the appellant was guilty of the offences charged.
I would reject the first ground of appeal.
Ground 1(b): The verdict of guilty on count 1(b) is inconsistent with the verdict of not guilty on count 2.
It was submitted that the Crown case on both count 1(b) and count 2 depended substantially on the evidence of the complainant and, if the jury had not been prepared to accept beyond reasonable doubt the evidence of the complainant on count 2, they could not properly have accepted beyond reasonable doubt the evidence of the complainant on count 1(b). Reference was made to Jones v The Queen (1997) 191 CLR 439, especially at 455 per Gaudron, McHugh and Gummow JJ where their Honours said:-
“Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof”.
I do not consider that this principle should be applied in the present case.
A crucial difference between count 1(b) and count 2 is that on count 1(b) the Crown relied on direct evidence from the complainant that the appellant had wounded him with a knife. With regard to count 2, the complainant did not allege that he had seen the appellant cut the tyres of his brother's vehicle. The appellant did not admit that she had damaged the complainant's brother's vehicle. Accordingly, the Crown case on count 2 was a circumstantial one.
In his summing-up the trial Judge enumerated the circumstances on which the Crown relied, directing the jury, perhaps unnecessarily, that, before they could convict the appellant on count 2, they had to be satisfied beyond reasonable doubt of the existence of all of the circumstances on which the Crown relied and his Honour further directed the jury that they would have to be satisfied that the inference that it was the appellant who had damaged the tyres was the only reasonable inference in the circumstances.
One possible alternative explanation advanced at the trial was that it was the complainant himself who had cut the tyres, in an attempt to make more plausible the account of the incident between himself and the appellant which he had decided to give. If it was on this basis that the jury decided not to convict the appellant on count 2, then the verdict of not guilty on count 2 would reflect on the complainant's evidence generally and whether his evidence on count 1(b) should be accepted beyond reasonable doubt.
However, there was at least one other possible explanation, and it was put to the jury by the trial Judge in his summing-up, that some passerby, in the interval of time which elapsed between the complainant leaving the car and returning to the car with his brother and his brother's partner, had cut the tyres and, although this possibility was described by the trial Judge as “perhaps a bit fanciful”, the trial Judge expressly stated it was a matter for the jury and the jury may have concluded that this possibility had not been excluded.
I would reject ground of appeal 1(b).
Ground 2: The summing-up with respect to stalking did not correctly define stalking with the result that the jury applied the wrong test.
Earlier in this judgment I stated the terms of count 3(b) in the indictment. The count was based on section 562AB(1) of the Crimes Act which reads as follows:
“A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is liable to imprisonment for 5 years, or to a fine of 50 penalty units, or both’.
In section 562A “stalking” is defined as meaning:
"The following of a person about or the watching or frequenting of the vicinity of or an approach to a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity."
Before the summing-up commenced the trial Judge said he would direct the jury about stalking in accordance with the statutory definition of stalking. At pages 25-26 of the summing-up, his Honour told the jury:
“Let me firstly tell you that our law defines ‘stalking’ to mean various things. Among other things, it means to follow a person about; it can mean watching a person; it can mean frequenting in the vicinity of a person’s home; or it can mean to approach a person at a person’s place of residence. What the Crown would rely upon here is the meaning that she was watching Mr Premprasert or frequenting his particular premises”.
The trial Judge went on to say:
“The Crown says to you it is no coincidence that where she was parked was virtually directly opposite Mr Premprasert’s premises in Harris Street and he says to you that she was there not to check out the Little Siam Restaurant or not to attend TAFE. She may very well have attended TAFE, the Crown argues to you, but when she was sitting outside the Little Siam Restaurant clearly in view, whether it was on the third, fourth or fifth floors, directly opposite was the premises of Mr Premprasert”.
Later, at page 42 of the summing-up, the trial Judge told the jury:
“I told you that stalking means at law following a person about, or watching a person, or frequenting the vicinity of where a person lives, or approaching persons in their place of residence, or near their place of residence”.
These directions about stalking can properly be criticised. The complainant was not at the premises on the afternoon of 5 May and it could not be said with any literal truth that the appellant was “watching” the complainant or “approaching” the complainant. There was no evidence that the appellant had been to, or in the vicinity of, the complainant's place of residence on any previous occasion and the word "frequent" would, in my opinion, require that there had been more than a single visit to the complainant's place of residence or the vicinity of the complainant's place of residence.
A part of the statutory definition which, it seems to me, the Crown could have sought to rely on is the part which provides that a person stalks by virtue of “watching … the vicinity of … a person's place of residence”.
It can be argued on behalf of the Crown that the nature of the Crown case was clearly conveyed by the trial Judge to the jury and that this case, if established, would have fallen within the part of the definition of “stalking” which I have quoted. However, because of the conclusion I have come to on ground 3, it is unnecessary for me to express any final view on ground 2, that is whether the trial judge correctly defined the act of stalking.
Ground 3: The verdict of guilty on count 3(b) is unreasonable or cannot be supported on the evidence in that the existence of an intention to cause fear of personal injury cannot be supported on the evidence as the only reasonable inference.
It was submitted by counsel for the appellant, and it is clearly correct, that an intention to cause another person to fear physical or mental harm is an essential element of the offence created by section 562AB. The appellant did not admit to having had this intention and, accordingly, the Crown had to establish this intention, as the only reasonable inference that could be drawn about her intention from such circumstances as were established.
In the summing-up the trial Judge told the jury that the circumstances relied upon by the Crown were the presence of the appellant in the parked car in Harris Street opposite the block of flats in which the complainant lived, the fact that the appellant had binoculars, the fact that there was a knife in the car, the fact that the appellant was dressed in black clothing and "the background of all the circumstances of the case".
The trial Judge told the jury that the complainant had given evidence that he was not in fact at home on the afternoon of 5 May. The trial Judge directed the jury that the fact that the complainant was not at his place of residence did not of itself mean that the offence had not been committed. The trial Judge directed the jury that, on the other hand, if the jury accepted, as the appellant had testified, that she knew on the afternoon of 5 May that the complainant was not at home, "then it is hard to imagine how she could have had the intention in Harris Street on 5 May when she was outside of his premises to create a fear in his mind of personal injury".
The intention required by s562AB is an intention to cause another person to fear physical or mental harm. It would seem to me that the intention required by the provision, that is an intention to cause another person to fear physical or mental harm, is not necessarily identical with an intention to cause actual harm to that other person.
In my opinion, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant had the intention required by section 562AB of intending to cause the complainant to fear physical harm. It seems to me that other inferences as to the appellant's intention which could not be excluded beyond reasonable doubt, included that the appellant's intention was merely to visit the neighbourhood in which the complainant lived or to accost the complainant and speak to him or to reconnoitre the vicinity in which the complainant was living or to inflict some kind of harm on him, without previous warning to him and without having an intention to put him in fear before inflicting the harm.
I would uphold this ground of appeal and on this ground the appeal against the conviction on count 3(b) in the indictment should be allowed.
Ground 4: The trial miscarried by reason of the failure by the trial Judge to discharge the jury after a member of the jury declared himself to have a bias.
At the beginning of the sixth day of the trial, after the complainant had given evidence but while the Crown was still in its case, the trial Judge received a note from the jury reading:
“Is a member of the panel allowed to declare himself a biased juror?"
There was discussion about the note between the trial Judge and counsel, in the absence of the jury. The trial Judge ruled, obviously correctly, that if a member of the jury considers that he is biased, that juror should be permitted to reveal that he is biased.
Counsel for the appellant at the trial did not oppose the discharging of the juror who had revealed that he was biased but submitted that, if the biased juror was discharged, the whole jury should be discharged.
The trial Judge decided that he would determine who was the juror who wished to declare that he was biased and that he would then discharge that juror but that he would order, in accordance with section 22 of the Jury Act, that the trial should continue with the remaining eleven jurors constituting the jury. His Honour expressed the view that, although one juror might be biased, the remaining members of the jury could be relied on to remain faithful to their oaths or affirmations to render true verdicts according to the evidence.
The trial Judge questioned the particular juror, in the absence of the other members of the jury, and obtained confirmation from the juror that the juror considered that he had a bias. The trial Judge discharged that juror but did not discharge the remaining members of the jury and the trial continued with the remaining eleven members acting as the jury. When the jury were next brought into the courtroom, the trial Judge told them:
“Ladies and gentlemen, the note coming through your forelady that I received on behalf of the ex panel member would have at least indicated to her, and it’s perhaps of your knowledge or at least some of you may have the knowledge, that that witness declared that he had a bias in the case and, as a result of that, it is apparent that he would not have been able to have undertaken the obligation of being true to his oath that he took to fairly and properly consider this matter upon the evidence that was placed before you, the jury. As a result of that I discharged him from serving further on the jury and I intend now to proceed with the trial with you eleven people constituting the jury.
I just remind you people, probably unnecessary for me to do so, but I do remind you nonetheless that you all took an oath, and one of you an affirmation, to judge this case according to the evidence and that of course is imperative that you do that and that is the reason why I discharged that juror. You have to give the case fair consideration in respect of both parties and to not allow any prejudices or sympathy or ill will or whatever to affect your considerations. I’ll be repeating that to you when I sum the case up to you but for now we will continue with the eleven of you’.
When his Honour summed up to the jury, he gave the jury similar directions.
On the hearing of the appeal counsel for the appellant submitted that the trial judge had erred in deciding not to discharge the jury as a whole and in continuing the trial with the remaining eleven jurors constituting the jury. Counsel referred to the oft-quoted passage in Queen v Sussex Justices; ex parte McCarthy (1924) 1 KB 256 in which Lord Hewart CJ said at 259:
“…Justice should not only be done but should manifestly and undoubtedly be seen to be done … depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”.
In that case an acting Justices’ clerk had retired with the Justices when the Justices were considering their decision, in a prosecution by the police of a driver of one of the vehicles involved in a collision. The acting clerk was a member of a firm of solicitors who were acting in civil proceedings for damages arising out of the same collision, which had been brought by the other driver against the defendant in the criminal proceeding. The case is, accordingly, very different on its facts from the present case.
The principle enunciated by Lord Hewart is, of course, an important principle in the administration of justice. However, I am not persuaded that the trial Judge erred in making his discretionary decision not to discharge the whole jury and to continue the trial with the remaining eleven jurors as constituting the jury or that his decision gave rise to any miscarriage of justice. The juror was discharged long before the jury commenced its deliberations. Immediately after the juror was discharged, the trial Judge gave the strong directions to the jury which I have already quoted. If the juror who was discharged had made any contribution to discussions in the jury room before he was discharged, the remaining jurors, even if they did not already know, were expressly put on notice by what his Honour said that that juror had revealed himself as being biased and the remaining members of the jury would have been able to take that knowledge into account in evaluating anything that the discharged juror may have said in the jury room.
I would reject this ground of appeal.

Ground 5: The trial Judge did not give adequate directions relating to the character of the appellant.

Evidence was adduced at the trial that the appellant had no previous criminal convictions and had not previously been arrested. There was other evidence tending to suggest that the appellant was a person of previous good character. No evidence of previous bad character was adduced by the Crown.
The trial Judge gave lengthy directions on character at pages 31 to 33 of the summing-up. His Honour told the jury that if they found that the appellant was a person of good character, they could take that good character into account in two ways, firstly, on the question of whether the appellant was guilty of the offences charged and, secondly, on the credibility of her evidence. No objection was taken at the trial to the directions given by the trial Judge.
On the hearing of the appeal it was submitted that the trial Judge should have given the jury a direction to the effect that, before they could convict the appellant, they would have to find evidence of guilt convincing to the point where the evidence of the previous good character of the appellant could not prevail against it. Reference was made to the South Australian case of R v Trimboli (1979) 21 S.A.S.R 577.
In my opinion, leave to rely on this ground of appeal should be refused pursuant to r4 of the Criminal Appeal Rules.
In my opinion, the directions given by the trial Judge were in accordance with directions customarily given in this State and were quite sufficient. I do not accept that the trial Judge was required to give the direction which it was submitted he should have given. In R v Trimboli, contrary to what was submitted by counsel for the appellant, King CJ did not say that a trial judge was required to give the direction which it is submitted Judge Luland should have given (see 21 S.A.S.R 577 at 578).

In my opinion, for the reasons I have given, the appeal against conviction on count 1(b) should be dismissed and the appeal against conviction on count 3(b) should be allowed.
GILES J: I agree with the reasons given by James J, and add two matters only.
First, it seems to me that another possibility which could not be excluded beyond reasonable doubt may be added to the catalogue of such matters in relation to the intent to cause fear. It is that the appellant, at the time professing to Mr Nounrasi her continued love for the complainant, had an intention to cause fear to her rival Orn who was living at the flat, rather than to the complainant.
Secondly, as a belated submission at the time of his submissions in reply, counsel for the appellant raised what was really another ground of appeal to the effect that the verdict in relation to Count 1(b) was inconsistent with the verdict in relation to Count 2. In brief it was submitted that, in the state of the conflicting accounts of what happened in the car on 27 April 1999, if the jury was not satisfied that the appellant wounded the complainant with intent to murder, it could not have been satisfied that she maliciously wounded him. The rejection of guilt on Count 1(a), it was said, carried with it rejection of the complainant's evidence necessary to uphold Count 1(b).
I would not accept this submission. When one looks at the summing-up, the trial judge properly emphasised the need for the jury to be satisfied beyond reasonable doubt that there had to be an intention to kill. His Honour adverted to the appellant's statements at the time to the effect, "I am going to kill you", but went on to warn the jury that the danger of acting upon what a person says would be apparent and that people sometimes said things they did not really mean or have the intention to fulfil. Giving an example, his Honour told the jury that relying upon words alone could be very dangerous, and said that the jury had to look at all the relevant circumstances. In my opinion, it is a perfectly plausible scenario that the jury was not satisfied of an intent to murder whilst being satisfied in relation to Count 1(b).
I agree with the result proposed by James J.
HULME J: I agree with the orders proposed and with the reasons given by both of my brothers.
GILES J: The formal orders thus far should then be, and are, that the appeal in respect of the conviction on Count 1(b) of the indictment is dismissed, the appeal in respect of the conviction on Count 3(b) of the indictment is upheld, and that conviction is quashed. We direct that within 21 days the appellant put on any application which she may be advised to put on in relation to the sentence on Count 1(b), deliver her written submissions in support of any such application or otherwise in support of the course which she submits the Court should now take, and file and serve any evidence on which she wishes to rely in those respects. We also direct that within a further 14 days the Crown deliver its responsive submissions and give notice to the appellant of what course it wishes to take in relation to any evidence which has been filed.
The matter will be listed before the Registrar on a date seven weeks hence, and it will be the Registrar's task to find a time when the three of us are to be brought together again to deal with the matter.

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LAST UPDATED: 23/03/2001