Sarjeant v The Queen
[2020] VSCA 45
•11 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0028
| TROY IAN SARJEANT | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2019 0053
| JAKE SHAUN GARRATT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 January 2020 |
| DATE OF JUDGMENT: | 11 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 45 |
| JUDGMENT APPEALED FROM: | DPP v Garratt (Unreported, County Court of Victoria, Judge Chettle, 21 December 2018) |
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CRIMINAL LAW – Appeal – Conviction – Recklessly cause serious injury in circumstances of gross violence – Complicity – Joint criminal enterprise – Whether verdicts unsafe – Whether evidence established ‘agreement, arrangement or understanding’ – Blow with broken bottle severed victim’s temporal artery – Whether ‘serious injury’ – Whether relevant that prompt medical intervention stopped bleeding – Whether use of weapon ‘planned in advance’ – Verdicts reasonably open – No error in trial judge’s jury directions – Leave to appeal refused on both applications – Crimes Act 1958 ss 15, 15A – Farha v The Queen [2018] VSCA 310, Peters v The Queen [No 2] [2019] VSCA 292 considered.
WORDS AND PHRASES – ‘serious injury’, ‘an injury that endangers life’, ‘planned in advance’.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant, Sarjeant | Dr M FitzGerald | Doogue + George Defence Lawyers |
| For the Applicant, Garratt | Mr D A Dann QC | Slater & King Lawyers |
| For the Respondent | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA
EMERTON JA:
Troy Sarjeant and Jake Garratt applied for leave to appeal against their convictions arising from an incident at the Commercial Hotel, Broadford on
1 October 2016. Both men were convicted of one charge of recklessly causing serious injury in circumstances of gross violence, contrary to s 15A of the Crimes Act 1958 (‘Crimes Act’). Sarjeant was sentenced by a judge of the County Court to seven years’ imprisonment with a minimum term before parole eligibility of five years. His alleged accomplice, Garratt, was sentenced to four years’ imprisonment with a minimum non-parole period of two years and six months.
Sarjeant’s grounds of appeal are:
Ground 1:The trial miscarried as the Learned Trial Judge erred in his directions to the jury in relation to proof of a serious injury.
Particulars
(a)The Learned Trial Judge erred in directing the jury to assess the injury as if medical intervention had not occurred.
(b)The Learned Trial Judge erred in failing to direct the jury to take into account the evidence of medical intervention in determining whether, at any point, the victim’s life was endangered.
Ground 2:The jury’s verdict on the charge of recklessly causing serious injury in circumstances of gross violence is unreasonable or unsupported by the evidence, in that the evidence was not capable of establishing beyond reasonable doubt that the victim had suffered a serious injury.
Garratt’s grounds of appeal are:
Ground 1:A substantial miscarriage of justice has occurred in circumstances where the jury were invited and permitted to reach conviction on the charge of Recklessly Cause Serious Injury in circumstances of gross violence on the basis of alleged ‘planning in advance’ that could only have taken place within a few minutes before the physical commission of the offence.
Ground 2:The guilty verdict of the jury is unsafe and unsatisfactory, in that the jury acting reasonably could not have been satisfied beyond reasonable doubt that the Applicant entered into an agreement/arrangement/understanding — that the offence of Recklessly Causing Serious Injury in circumstances of gross violence would be committed.
Ground 3:The Learned Trial Judge erred in failing to direct the jury that they would have to be satisfied that the evidence established that — in all the circumstances of this case — there was a stage where the [victim] was actually in danger of losing his life.
Ground 4:The verdict of the jury on the charge of Recklessly Cause Serious Injury in circumstances of gross violence is unsafe and unsatisfactory in that any jury acting reasonably could not have been satisfied that the evidence demonstrated that a situation was ever reached where the victim’s life was in danger.
Sarjeant’s ground 2 and Garratt’s grounds 2 and 4 allege, in different words, that the verdicts of recklessly causing injury were ‘unreasonable or unsupported by the evidence’. In considering these submissions, we shall apply the following principles:
·Section 276(1) of the Criminal Procedure Act 2009 (‘CPA’) obliges this Court to allow an appeal if it considers that the jury’s verdict is ‘unreasonable or cannot be supported having regard to the evidence’.
·This Court must undertake its own independent evaluation of the evidence as a whole in order to determine whether the jury must, as opposed to might, have entertained a doubt about an applicant’s guilt.[1]
·Setting aside a verdict is a serious step, not to be undertaken lightly, and the appellate court must take account of the jury’s advantage in having seen and heard the witnesses.[2] An appellate court must not simply substitute its own verdict for that of the jury.[3]
·In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appellate court that the court may conclude that no miscarriage of justice has occurred.[4]
·If, after conducting this independent evaluation, the court is of the view that 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 on that evidence.[5]
[1]Libke v The Queen (2007) 230 CLR 559; Mejia v The Queen [2016] VSCA 296, [140]; Inia v The Queen [2017] VSCA 49, [53] (‘Inia’); Conolly (a pseudonym) v The Queen [2019] VSCA 125, [7].
[2]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); R v Haselhoff [1998] 4 VR 359; R v Baden-Clay (2016) 258 CLR 308, 329–330 [65]–[66].
[3]Ibid.
[4]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); Inia [2017] VSCA 49, [53].
[5]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
The prosecution case
The prosecution case was that Sarjeant was the primary offender, guilty alternatively of intentionally or recklessly causing serious injury in circumstances of gross violence. Garratt was alleged to be complicit in Sarjeant’s offending, either by:
(a) entering into an agreement, arrangement or understanding with Sarjeant to commit the offence;[6] or
(b) intentionally assisting, encouraging or directing the commission of the offence.[7]
[6]See Crimes Act ss 323(1)(c), 324.
[7]Ibid s 323(1)(a).
The prosecution case against Garratt was put primarily on a joint criminal enterprise basis predicated on (a) above. The jury were directed in orthodox terms about statutory complicity and no complaint is made about those directions. The aiding and abetting directions in (b) above were very much subsidiary to the joint criminal enterprise directions, although we note that his Honour ultimately sentenced Garratt on an ‘aiding and abetting’ basis.
Factual background
1 October 2016 was AFL Grand Final day in Victoria. Sarjeant and Garratt had been drinking prior to attending the Commercial Hotel in Broadford. Both attended a barbeque in Broadford and drank throughout the afternoon. At around 10:30 pm, the two men went to the Commercial Hotel. Garratt was obviously very drunk. Sarjeant stated in evidence that he was very drunk as well. At some stage after their arrival, a card game commenced. Garratt was a participant in the blackjack game, as was the complainant, AB. Sarjeant did not join the game but was an observer. An argument developed between AB and Garratt. A fight followed between, initially, AB and Garratt. Sarjeant attempted to intervene and also became involved in the fight. These events were captured on CCTV, the footage of which was tendered at trial. We have viewed this and all other relevant CCTV footage that was tendered at trial.
The publican, Russell Neilson, evicted Garratt and Sarjeant from the hotel. AB stated in evidence that after the fight, Garratt and Sarjeant left the hotel. Around 15 to 20 minutes later, AB said, he saw Garratt through the window of the glass hotel door. He thought Garratt was waving to him or calling him out, so he walked towards Garratt. He was struck on the head and realised he had been struck with something sharp. He did not see Sarjeant. It felt like a single blow. He erroneously thought it was Garratt who hit him. He was taken inside, placed on the pool table and pressure was kept on the wound, which was to the temple area. An ambulance arrived, and he was treated and taken to the Royal Melbourne Hospital.
In cross-examination, AB rejected the suggestion that he was the aggressor, either inside or outside the hotel. He disagreed that he was angry and did not realise Garratt was outside until he saw him waving through the hotel window. He rejected the proposition that the blinds were down on both hotel doors. He denied saying, ‘I’m going to smash you’, as he went towards the hotel door. He accepted that he consumed at least 18 beers over that afternoon and evening. He said when he saw Garratt waving at him, he did not recall whether Garratt said anything. He accepted that at the committal, he said he did not see Garratt doing anything with his hands at the time that he observed Garratt through the window. He said that the only reason he went outside was because he saw Garratt there.
CCTV captured the exchange outside the hotel. As we have said, this was tendered at trial. In short compass, it showed Garratt in an obviously intoxicated condition. After a period, he appeared to take up a position outside the doors of the hotel. Sarjeant took up a position beside the door. At no stage does the vision capture AB, who did not get beyond the doorway into the camera range. A female[8] walked to the hotel door at around the time that Sarjeant threw two overarm strikes using a weapon (a broken bottle neck) in his right hand. We set out in more detail our observations and conclusions about the CCTV footage at paragraph 57 of these reasons.
[8]In evidence, this was stated to be Kelly Tacey, a bartender at the Commercial Hotel.
Sarjeant was interviewed by police on 2 October 2016. He denied attacking AB. At trial, he gave evidence and admitted this account was false. He explained that he was scared to tell the truth to police, and scared of AB at the time of the attack itself. AB had already attacked him inside the hotel and he only carried the broken bottle neck to protect himself from a further attack from AB. He maintained that he acted in self-defence. Garratt made a ‘no comment’ record of interview and did not give evidence at trial.
Other witnesses gave evidence about the events themselves and contentious issues that emerged during the trial. Those issues included:
(c) whether, at the relevant time, the blinds to the twin doors were up, down or partially down;
(d) whether AB was in an aggressive mindset prior to, and at the time of, receiving his head injury; and
(e) whether Garratt waved or said anything to AB immediately before the assault.
Blinds
AB stated that the blinds were, or at least one of them, was open at the time leading up to the assault. This was supported to some extent by Darren Connell,[9] who stated that at least one of the blinds was down. Beth Judson,[10] Kelly Tacey,[11] and Kate McCarthy[12] stated that the blinds were both down, and neither Russell Neilson[13] nor Jack Connell[14] could recall whether the blinds were up or down.
[9]A patron at the Commercial Hotel.
[10]Another patron.
[11]A bartender.
[12]AB’s partner.
[13]The publican.
[14]A patron.
Waving
AB stated that Garratt waved at him from outside the hotel, shortly prior to the assault. The CCTV footage demonstrates this to be untrue. Garratt stood a short distance outside the front door for 45 to 50 seconds. He appeared to be unsteady on his feet. We shall return to this aspect of his conduct later in these reasons.
Bait
As we have stated, the primary prosecution case against Garratt was that, pursuant to an agreement with Sarjeant, he would stand in a prominent position outside the hotel, acting, in effect, as a lure to AB to draw him to the front of the hotel so that Sarjeant could ‘glass’ him. AB stated that Garratt was calling out to him, although he retreated from this in cross-examination. A number of witnesses in varying ways stated that Garratt was vocal outside the hotel prior to the assault. In her statement, Kelly Tacey said AB and Garratt were yelling at each other, although she resiled from this in her evidence and stated she did not recall Garratt saying anything. Phillip Oliver[15] had ‘a couple of beers’ with ‘a couple of mates’ during the Grand Final, then went to the Commercial Hotel at around 10:00 or 11:00 pm for ‘a couple more’. He heard some mouthing off from outside the hotel, although it seems this was immediately after the pair of applicants was ejected and removed in time from the offending. Darren Connell stated that the applicants were banging on the door and were ‘out the front yelling’ and were ‘more or less just trying to make [AB] go outside’. He could not determine the words which were used.
[15]A patron.
AB’s demeanour
AB denied being aggressive, either at the conclusion of the card game or subsequently. The CCTV footage from inside the hotel demonstrates that AB started the fight near the pool table. AB stated he was calm at all times. Witnesses Kate McCarthy, Russell Nielson, Jack Connell, Darren Connell, Kelly Tacey, Phillip Oliver and Jake Hibbs-Hill[16] all assessed his demeanour as angry or very angry. AB denied trying to force his way outside. This contrasted with the evidence of Jack Connell, Darren Connell, Phillip Oliver and Russell Neilson. AB denied throwing a punch at Garratt; this contrasted with the evidence of Jack Connell, Darren Connell and Jake Hibbs-Hill.
[16]Another patron.
AB’s injuries
The blows struck by Sarjeant severed the superficial temporal artery at the side of AB’s head. We shall summarise the medical evidence in our consideration below of Sarjeant’s grounds 1 and 2, and Garratt’s grounds 3 and 4.
Sarjeant grounds 1 and 2 and Garratt grounds 3 and 4: was it an injury that endangers life?
Both applicants contend that the guilty verdicts are unsafe because the evidence did not permit a conclusion that the injury which AB suffered was a ‘serious injury’ within the statutory definition of that phrase. They also complain about what are said to be misdirections to the jury on that topic.
The Crimes Act relevantly defines a ‘serious injury’ to mean:
an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted.[17]
The prosecution case rested on the first limb of the definition. It was alleged that the severing of the superficial temporal artery was ‘an injury that endangers life’.
[17]Crimes Act s 15.
The contention for the applicants is that, because of the prompt and effective medical intervention which occurred, AB’s life was not at any point endangered. The applicants both contend that they did not ‘cause serious injury’.
Sarjeant relies on two grounds. The first was that the judge’s directions to the jury, in relation to proof of ‘serious injury’, were erroneous in that he:
(f) directed the jury to assess the injury ‘as if medical intervention had not occurred’; and
(g) failed to direct the jury to take into account the evidence of medical intervention in determining whether, at any point, the victim’s life was endangered.
The second ground is that the evidence was not capable of establishing that the victim had suffered a serious injury.
Garratt’s relevant grounds are to similar effect, but expressed slightly differently. First, he contends that the judge failed to direct the jury that
they would have to be satisfied that the evidence established that — in all the circumstances of this case — there was a stage where the [victim] was actually in danger of losing his life.
The unsafe ground contends that no jury acting reasonably could have been satisfied
that the evidence demonstrated that a situation was ever reached where the victim’s life was in danger.
The applicants rely on evidence given by a number of witnesses regarding the nature of the injury and the treatment AB received. First, the paramedics who attended at the hotel to treat AB said that he was alert, and his blood pressure and other vital signs were normal. They took steps to control the bleeding, by applying pressure to the wound, and this was effective.
Secondly, Dr Teresa Bridgart, an emergency department doctor from the hospital to which AB was taken, said that on arrival, AB was ‘haemodynamically stable’ — that is, his heart rate and blood pressure were within normal limits. Her evidence was that small arteries can ‘spasm’ or close off spontaneously, and this can slow the bleeding down or stop it completely.
Thirdly, Dr Karishma Jassall, the surgeon who treated AB after his admission to hospital, confirmed that his superficial temporal artery had been severed. Dr Jassall closed the laceration with sutures. In cross-examination, the surgeon agreed that the injury was an uncomplicated laceration, with no adverse long term outcomes. The immediate risk from such an injury was from blood loss, and this had been controlled by pressure and bandaging en route to the hospital.
When Dr Jassall first saw AB, she did not believe that she was dealing with ‘a life-threatening situation’. A male of AB’s size would, in her opinion, have had to lose a good deal more blood for the injury to be ‘significant physiologically’. AB had certainly not lost the amount of blood that would require urgent intervention. Dr Jassall did confirm, however, that a scalp laceration can bleed extensively ‘because it is a very vascular area’. If the wound had been left untreated, she said, ‘there could have been severe consequences’.
The evidence on which the prosecution principally relied came from a forensic physician at the Victorian Institute of Forensic Medicine, Dr Jo Ann Parkin. Dr Parkin did not see AB herself but had been provided with the notes of the treatment he had received. Dr Parkin’s evidence was that an injury to the temporal artery would be expected to cause a high rate of bleeding. An arterial bleed is ‘very difficult to stem’, and the record of AB’s treatment was consistent with there having been continued bleeding.
Dr Parkin said that blood loss from a vessel of this nature could result in death if the injury was untreated. In the absence of medical intervention, Dr Parkin said that a severed artery will continue to bleed. She said that scalp wounds were ‘notorious [because] they bleed and bleed and bleed’. But for the medical intervention, Dr Parkin opined that AB would have lost a significant amount of blood and subsequently, would have lost his life. She rejected the suggestion that death was merely a possibility in the absence of treatment:
No. It will continue to bleed. It’s an artery and he will die.
In her opinion, it was a life-threatening injury unless and until medical assistance averted the threat.
In his charge to the jury, the trial judge referred to the statutory definition of ‘serious injury’ and correctly reminded the jury that the prosecution relied on the first limb of the definition. After referring to Dr Parkin’s evidence, his Honour said:
What you are considering is … what you think of the injury that was inflicted. The charge is not causing an injury that if [it] was not treated, would be life-threatening.
And further:
In this case, it comes down to simply this:
Dr Parkin gave you the opinion that I just read to you, that this injury was life-threatening because [AB] could bleed to death if he were not treated. If you accept that, it is open for you to find that this was a serious injury. The question for you is, do you accept that, and are you satisfied beyond reasonable doubt, having regard to all the evidence in the case and the arguments directed to you, that it is a serious injury, and in that regard, did it threaten his life? Was it life-threatening?
Counsel for both accused took exception to those directions, arguing that it should have been made clear to the jury that they could take into account the availability of medical treatment in making their assessment of the injury. It was not correct, counsel submitted, for the jury to assess the injury ‘as if there was no medical treatment or intervention available’. His Honour responded:
I think they just have to determine whether or not this injury was, at the time he got it, a life-threatening … at the time it was inflicted, we’re not talking about half an hour later, whether it had the potential to kill him.
His Honour nevertheless proceeded to give a re-direction, the relevant part of which was in these terms:
I have already told you that serious injury falls within a scale of injuries. There are some at the high end, and there are others at the low end, and it is a question for you if this injury fits in that range of serious injury.
It is a question for you as to whether or not you accept that this was a life-threatening injury in all the circumstances of the case. You can take into account the fact that it could have — in determining whether or not it is serious, that it is the sort of wound that could have bled out, and he could have died, on the evidence of Dr Parkin.
The reality was, he did get medical treatment, but you determine in all the circumstances of the case whether the injury was serious, that is, whether it was an injury that was life-threatening, and that is all I want to add.
Shortly after the jury retired to consider their verdicts, they submitted the following question to the judge:
Is the medical intervention relevant to the seriousness of the injury?
Following further extended discussion with counsel, his Honour provided the following answer:
Life-threatening injuries may be able to be fixed with simple medical intervention. And, obviously non-life threatening injuries might require a number of substantial medical attention to fix them. So the medical attention does not determine the nature of the injury.
However, the requirement and availability of available medical attention and what was in fact done, may assist you in determining how serious the injury was in the first place, whether it was life-threatening. So it’s not determinative of the issue, but if something was easily fixed, you might think, ‘Well, that makes it less serious. It mustn’t have been that bad’, or if something was difficult to fix it may have been more — but it’s not determinative, because as I said, life-threatening injuries can sometimes be fixed quite quickly and easily. But non-life threatening ones might take more work.
But it is a factor that you can take into account in all the circumstances in determining objectively the injury itself. That’s what you’re looking at. The injury itself, sustained by [AB], as to whether it endangered his life. You can take into account in assessing that, its seriousness, whether it was serious, the medical attention and medical intervention and the result of it.
The submission for the applicants in this Court was that criminal responsibility for causing ‘serious injury’ depended on the actual consequences for the victim of the alleged offence. That is, an injury would only fall within the ‘endangers life’ limb of the definition if the evidence showed that the victim’s life was actually in danger — that there was a ‘real and practical’ danger of death. Counsel submitted that it all depended on the ‘degree of danger’ to which the victim was exposed. At the one end of the scale was the ‘hypothetical risk’ of death if the injury were left untreated. At the other end was the emergency situation where doctors were ‘struggling to administer the treatments that were necessary to avert death’.
It would follow, counsel accepted, that the identical injury might or might not satisfy the definition of ‘serious injury’, depending upon the point at which medical assistance was provided to the injured person. In the present case, it was said, early and effective intervention meant that AB’s life was never in danger. In other circumstances, where medical assistance was provided only after very substantial blood loss, it might properly be said that the victim’s life was in danger. Only in that circumstance of actual endangerment of life would the injury qualify as a ‘serious injury’ within the first limb of the definition.
In our view, this submission must be rejected. We begin with the words of the definition and with the contrast in language between the two limbs. As can be seen, the second limb includes an explicit temporal dimension. It will not be possible to say of an injury that it is ‘substantial and protracted’ until sufficient time has elapsed for the duration of the injury to be described as ‘protracted’. By contrast, there is nothing in the language of the first limb to suggest that a ‘wait and see’ approach to the assessment of the injury is required.
In our view, the phrase ‘an injury that endangers life’ directs attention to the danger created by the injury at the time it is sustained. Put another way, it is the character of the injury and specifically, its capacity to endanger life, which must be considered. Of course, the question must be addressed in relation to the injury actually caused. But the question of endangerment must necessarily be informed by what is known — and established by evidence, if necessary — about the natural course of events following the sustaining of an injury of that kind. The question is:
Having regard to the natural course of the relevant injury, did the infliction of the injury create the danger that the victim would lose his or her life?
On this view, the severing of an artery is an injury ‘that endangers life’. On the evidence of Dr Parkin and to a lesser extent, Dr Jassall, the natural course of such an injury is that the severed artery will continue to bleed until the person dies,[18] or until there are ‘severe consequences’.[19] The infliction of the injury creates the danger that the victim will lose his life.
[18]On the evidence of Dr Parkin.
[19]On the evidence of Dr Jassall.
It follows that an injury can be a ‘serious injury’ within the first limb even though the danger to life which the injury creates can be averted — and is, in fact, averted — by medical intervention. The same conclusion was reached by this Court in Peters v The Queen [No 2],[20] a case concerning the former definitions of ‘injury’ and ‘serious injury’. This Court concluded that the act of infecting a person with the hepatitis C virus was capable of constituting the infliction of serious injury, irrespective of the fact that in some instances, the infected person did not develop hepatitis. What mattered was ‘the potential adverse consequences of the disease’. This Court said:
[A]n injury can be serious even though it can be (and has been) remedied by medical intervention. Since the question is to be asked as at the time of the injury, the fact that medical treatment is expected to ameliorate its consequences cannot deny or undo the seriousness of the injury. The need for medical intervention may, rather, tend to show that the injury is serious.[21]
[20][2019] VSCA 292 (‘Peters’).
[21]Ibid [69].
It was common ground that the new definition of ‘serious injury’, inserted into the Crimes Act in 2013, was intended to narrow its scope. Peters was decided under the former definition, which relevantly provided as follows:
injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function;
...
serious injury includes—
(a) a combination of injuries; ...[22]
[22]Ibid [11].
The Explanatory Memorandum for the amending bill[23] stated as follows:
The new definition of serious injury is an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted. This replaces the current reference to a serious injury including ‘a combination of injuries’. The new definition raises the threshold for ‘serious injury’. Under the new definition, an injury need not be permanent to be considered ‘serious’. A broken jaw or a broken leg may constitute a ‘serious injury’ under this definition. A very short-term life-endangering injury would also constitute a ‘serious injury’.[24]
[23]Crimes Amendment (Gross Violence Offences) Bill 2012.
[24]Explanatory Memorandum, Crimes Amendment (Gross Violence Offences) Bill 2012, 3 (emphasis added).
In the Second Reading Speech, the Minister said:
[The] ‘endangerment’ limb of the new definition is the time at which the injury is sustained.
Statement of Compatibility
… This bill’s revision of the definitions of ‘injury’ and ‘serious injury’ also limit the application of the statutory minimum sentences to offences which result in severe injuries that are life-threatening or substantial and protracted. Their application is therefore strictly limited and directed to offences at the higher end of the range of wrongdoing.
New definitions of ‘injury’ and ‘serious injury’
…
The Crimes Act currently defines ‘serious injury’ as including a combination of injuries. This lack of detail has resulted in a very low threshold for offences involving serious injury. The new definition of ‘serious injury’ will be an injury that endangers life or that is substantial and protracted. The injury need not be permanent to be considered ‘serious’. However, it must be more serious than the combination of two relatively minor injuries, such as limited abrasions or bruising, as may currently constitute a serious injury. A broken jaw or a broken leg would constitute a ‘serious injury’ under the new definition, but two black eyes would not.[25]
[25]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5548 (Robert Clark, Attorney-General) (‘Second Reading Speech’).
In short, the legislature was concerned to establish a statutory threshold of ‘seriousness’, it having previously been a matter for the jury to assess on the basis of the ordinary meaning of the word ‘serious’.[26] As can be seen, the legislature’s focus in amending the definition was on the character of the injury caused. There is no suggestion in the extrinsic materials that the time of assessment of seriousness was to be postponed to await the unfolding of the consequences of the particular injury for the particular victim, or that the determination of seriousness was to depend on contingencies such as the timeliness of medical intervention in the particular case.
[26]Peters [2019] VSCA 292, [46]–[47].
In our view, the reasoning in Peters applies with equal force to the ‘endangers life’ limb of the new definition. The time for assessment of seriousness is the time the injury is sustained. The fact that medical treatment may ameliorate the consequences ‘cannot deny or undo the seriousness of the injury’.
If the applicants’ construction were adopted, it would produce inconsistencies in the application of the law which the legislature could not have contemplated. Put bluntly, the question of whether a person had caused ‘serious injury’ would be made to depend on how quickly an ambulance arrived to treat the injured person. That is, person A who severed a victim’s artery would not have caused ‘serious injury’ because medical intervention occurred before the victim reached the point where he or she was in ‘real and practical danger’ of dying. Person B, inflicting exactly the same injury, would be guilty of the offence merely because it occurred at a remote location, such that by the time medical assistance arrived, the victim was close to death.
For liability for a ‘serious injury’ offence to be made to depend on the availability and the efficacy of medical treatment for the particular injured person would represent a very significant change in legislative policy. As we have said, there is nothing in the statutory language or in the extrinsic materials to suggest that Parliament had any such change in mind. Axiomatically, this Court’s duty is to apply the law as enacted.
For these reasons, we consider that his Honour was correct to direct the jury that the issue of ‘seriousness’ of an injury must be determined at the time that the injury was sustained. We are also of the view that the jury’s verdicts as to ‘serious injury’ were well open on the evidence, particularly the evidence of Dr Parkin, which we have summarised at paragraphs 27 and 28 of these reasons. These grounds fail.
Garratt ground 1: ‘Planning in advance’
Garratt’s first ground of appeal contends that there had been a substantial miscarriage of justice because the jury
were invited and permitted to reach conviction on the charge of recklessly cause serious injury in circumstances of gross violence on the basis of alleged ‘planning in advance’ that could only have taken place within a few minutes before the physical commission of the offence.
The offence of recklessly causing serious injury to another person ‘in circumstances of gross violence’ was created in 2013. A maximum penalty of 15 years’ imprisonment was fixed. The new statutory concept of ‘circumstances of gross violence’ was defined in these terms:
(2)For the purposes of subsection (1), any one of the following constitutes circumstances of gross violence—
(a)the offender planned in advance to engage in conduct and at the time of planning—
(i)the offender intended that the conduct would cause a serious injury; or
(ii)the offender was reckless as to whether the conduct would cause a serious injury; or
(iii)a reasonable person would have foreseen that the conduct would be likely to result in a serious injury;
(b)the offender in company with 2 or more other persons caused the serious injury;
(c)the offender entered into an agreement, arrangement or understanding with 2 or more other persons to cause a serious injury;
Note
See Subdivision (1) (Complicity in commission of offences) of Division 1 of Part II.
(d)the offender planned in advance to have with him or her and to use an offensive weapon, firearm or imitation firearm and in fact used the offensive weapon, firearm or imitation firearm to cause the serious injury;
(e)the offender continued to cause injury to the other person after the other person was incapacitated;
(f)the offender caused the serious injury to the other person while the other person was incapacitated.[27]
[27]Crimes Act s 15A (emphasis added).
The charge laid against each applicant relied on paragraph (d) of sub-s (2), alleging that the applicants
planned in advance to have with them and to use an offensive weapon, namely a broken bottle, and in fact used that offensive weapon to cause the serious injury.
The submission for Garratt is that the ‘planned in advance’ element was not intended to capture ‘any planning, no matter how close to the physical commission of the offence’. According to the written case, that element would not be satisfied by
a timeframe which involved alleged planning only a few (or less than a few) minutes out from the physical commission of the offence.
Reliance was placed on a statement in the Explanatory Memorandum for the 2012 amending bill, that the concept of ‘planned in advance’ was to be distinguished from planning that occurred ‘moments prior to the commission of the offence’. Reference was also made to the Second Reading Speech for the bill, which contained the following passages:
The idea of planning in advance is intended to capture premeditation or preplanning, rather than intent formulated only moments in advance of the offending behaviour. It is not intended to capture someone who is pushed in a pub and then turns around and decides to king-hit the other person. That person can be charged with intentionally or recklessly causing serious injury. However, it is intended that planning in advance will capture, for example, someone who is pushed in a nightclub, goes home and decides to retaliate by attacking the other person, and then returns to the nightclub and causes serious injury.
…
The fourth circumstance targets offenders who have planned in advance to have with him or her and use a weapon, and then in fact used that weapon to cause serious injury to a victim. As I have mentioned, the idea of planning in advance is intended to capture premeditation or preplanning, not near-spontaneous action.[28]
[28]Second Reading Speech, 196 (emphasis added).
As this Court remarked in Farha v The Queen,[29] it is not immediately clear how the phrase ‘planned in advance’ differs in meaning from the simple word ‘planned’. As their Honours pointed out, it is of the very nature of planning that it precedes — that is, takes place in advance of — the action which is thus planned. Conversely, we would have thought there was little risk of a jury being persuaded that a ‘spontaneous or near-spontaneous’ action was either ‘planned in advance’ or ‘planned’.
[29][2018] VSCA 310, [51] (‘Farha’).
Here, as in Farha, it is unnecessary to explore the limits of the definition, for reasons that we shall explain under Garratt’s ground 2, it was well open to the jury to conclude that the applicants ‘planned in advance’ to use the broken bottle on the evidence of the CCTV footage.
Garratt ground 2: unsafe and unsatisfactory verdict
In substance, Garratt contends, under ground 2, that whatever activities Sarjeant carried out, the prosecution could not establish that he (Garratt) took any part in them. He contends that the prosecution evidence did not establish that he was complicit in the offending and thus the verdict of the jury was unreasonable and/or could not be supported having regard to the evidence.[30]
[30]CPA s 276(1)(a).
As we have observed earlier, the prosecution case was that Garratt agreed or reached an understanding with Sarjeant that Sarjeant would assault AB with the jagged neck of a broken beer bottle.[31] It was also part of that case that Garratt had participated in that agreement by making his presence obvious outside the hotel and thus luring AB to the front of the hotel. Alternatively, and very much more faintly, the prosecution contended that Garratt assisted and encouraged Sarjeant in Sarjeant’s offending.[32] The jury were directed along these lines and as we have said, no objection is taken to this aspect of his Honour’s charge.
[31]Pursuant to Crimes Act s 323(1)(c).
[32]Ibid s 323(1)(a).
In our view, the best and most complete evidence of the role played by Garratt is as depicted in the external CCTV footage. We shall set out those events and our conclusions.
It will be recalled that Garratt and Sarjeant were ejected from the hotel at around 12:30 am. AB remained in the hotel. The CCTV footage then captured the following:
·The applicants remained outside the hotel, smoking cigarettes, and walking up and down the street. They walked in and out of the view of the CCTV cameras positioned outside the hotel.
·Garratt was obviously substantially affected by alcohol. He was captured leaning against the hotel’s external wall, stumbling, dropping his cigarette, bumping into Sarjeant and holding his head in his hands.
·Sarjeant was not obviously affected by alcohol.
·Around three minutes before the offending, the applicants disappeared off screen for about 90 seconds. Immediately prior to moving off screen, Sarjeant can be observed holding the broken jagged neck of a glass bottle behind his back. He appeared to attempt to show the weapon to Garratt. It is unclear whether Garratt saw it at this stage.
·Sarjeant, still holding the weapon behind his back, moved back into camera range and took up a position near the door to the bar area.
·About 15 seconds later, Garratt came into view and stood beside Sarjeant. Sarjeant again appeared to attempt to show Garratt the broken bottle neck; Garratt turned his head in the direction of Sarjeant and appeared to look at the weapon. At this stage, both men were standing side by side, and Sarjeant was closer to the hotel door, adjacent to it. Garratt had his hands clasped together at the back of his head.
·Garratt then walked forward and turned towards the hotel door. He put his hands on his hips and then in his pockets. He appeared to be looking at the hotel doorway, although we consider it is not clear that he was directly outside the door at this stage. Sarjeant remained positioned to one side of the doorway, looking in its direction.
·Sarjeant walked to a position immediately adjacent to the doorway and appeared to be pointing with his hand. Garratt immediately walked to a position that appeared to be directly opposite the doorway, back approximately 1.5 metres from it. He stood there, swaying slightly, and appearing to look towards the hotel door. He remained in that position for around 45 to 50 seconds until just before the assault occurred.
·A female approached from beyond the range of the camera. Other evidence disclosed this to be Kelly Tacey. She walked to the outside of the door while both applicants remained in the positions we have observed. She appeared to be trying to hold the hotel doors shut.
·Sarjeant moved to the doorway and using a round arm action, Sarjeant appeared to strike his victim twice with the weapon. It is undisputed that these were the actions that caused the injuries to AB. As we have said, for about 45 to 50 seconds prior to these actions, Garratt had remained approximately in the position he had assumed after Sarjeant’s pointing motion. Immediately before the offending strikes, Garratt took one or two steps forward towards the door, and Sarjeant moved into the doorway and struck the victim, as we have described.
Both at the trial and on this appeal, Garratt disputed various assertions made by the prosecution about what the CCTV actually demonstrated. In particular, counsel for Garratt submitted:
(h) His client was ‘full as a boot’, thus adopting a term used by the judge in the course of the trial.
(i) The issue of whether Sarjeant beckoned Garratt into position is equivocal on the CCTV footage.
(j) It is also equivocal whether Sarjeant showed Garratt his broken beer bottle or, if he did, whether Garratt saw it.
(k) It is unclear on the CCTV footage whether Garratt was actually standing directly in front of the hotel door area in the short time leading up to the attack and, if he were, whether AB could have seen him. There was a related issue about whether the blinds to the glass hotel doors were up or down.
On these issues, we conclude as follows:
(l) It is clear that Garratt was substantially intoxicated. It is not said, nor could it be, that he was so inebriated as to be incapable of forming the relevant intentions. It is unarguable, however, that he was quite drunk.[33] This is a factor that goes into the circumstantial mix of factors that must be considered on the issue of mens rea in Garratt’s case.
[33]Quoting the judge’s pithy assessment of Garratt’s sobriety.
(m) Sarjeant beckoned Garratt into a position in line with the hotel door. Sarjeant appeared to point with his right hand to an area on the footpath. By itself, this action may not appear significant, particularly as Sarjeant had a cigarette between his fingers at the time and, for a moment at least, appeared to be studying his cigarette. We consider that it gains significance from other pieces of evidence in the case, not least of which is that Garratt appeared to walk immediately after this motion to the area to which Sarjeant pointed. He then remained in that approximate position facing the hotel for 45 to 50 seconds, until just before the attack.
(n) Sarjeant clearly attempted to show Garratt his broken beer bottle weapon approximately three minutes before the attack, and then one minute and 15 seconds before it. Whilst it may be equivocal whether Garratt actually observed the weapon in the first motion, we are satisfied that he turned his head and looked at it on the second occasion.
(o) It is unclear whether the hotel blinds were up, down, or at some position in between these extremes. Various hotel patrons and staff gave conflicting evidence on this. We can make no positive finding on this.
We are satisfied, on the basis of the entirety of the evidence, but most particularly, the CCTV evidence, that Sarjeant planned in advance with Garratt that Garratt position himself outside the hotel door so as to entice AB to a position where Sarjeant (to Garratt’s knowledge) proposed to strike AB with the broken neck of the beer bottle. It follows that we are of the view that the jury were entitled to accept this hypothesis as proven beyond reasonable doubt and thus to find Garratt as complicit in Sarjeant’s offending. We refuse Garratt leave to appeal on ground 2.
Conclusion
We refuse Sarjeant leave to appeal on grounds 1 and 2.
We refuse Garratt leave to appeal on grounds 1, 2, 3 and 4.
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