Siale v The Queen

[2019] NSWCCA 80

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Siale v R [2019] NSWCCA 80
Hearing dates:	18 March 2019
Date of orders:	23 April 2019
Decision date:	23 April 2019
Before:	Bathurst CJ at [1]; Price J at [65]; Ierace J at [66]
Decision:	(1)   Grant the applicant leave to appeal. (2)   Appeal dismissed.
Catchwords:	CRIME – murder – mental element – intention to inflict grievous bodily harm – whether open to the jury to find the requisite intent given degree of intoxication.   CRIME – murder – specific intent – effect of intoxication.
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v O’Connor (1980) 146 CLR 64
Category:	Principal judgment
Parties:	Sateki Siale (applicant) The Crown (respondent)
Representation:	Counsel: W Terracini SC with T Hennessy (applicant) B Baker (respondent)   Solicitors: McAneny Lawyers (for the applicant) Solicitor for Public Prosecutions (respondent)
File Number(s):	2015/297019
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law - Criminal Citation: [2017] NSWSC 1298 Date of Decision: 4 August 2017 (conviction); 29 September 2017 (sentence) Before: Garling J File Number(s): 2015/297019

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 4 August 2017, a jury found Mr Sateki Siale (the applicant) guilty of the murder of Mr Kelly Ventigadoo (the deceased) after a trial in the Supreme Court of New South Wales. On 29 September 2017, the applicant was sentenced to a term of imprisonment of 24 years with a non-parole period of 17 years. The applicant sought leave to appeal against his conviction and the sentence imposed upon him. The sentence appeal was contingent upon the conviction appeal being allowed and a verdict for the offence of manslaughter being substituted.

The evidence at the trial of the applicant established that the applicant and the deceased lived on the same street. At approximately 12.30am on 11 October 2015, the applicant approached the deceased and the deceased’s parents who were standing outside the block of units in which they resided. The applicant smashed the glass bottle of beer that he was holding on a brick wall and struck the deceased’s head or neck area on two occasions. The deceased died from the multiple sharp force injuries to the head and neck. A trail of the applicant’s blood was traced from the driveway of the block of units back to his home after navigating a fence between two properties.

It was established at trial that the applicant’s girlfriend estimated that she had seen him consume 16 Corona beers and drink directly from a half full bottle of bourbon between 8.30pm until approximately 11 to 11.30pm on 10 October 2015. A sample of the applicant’s urine or blood was not taken to ascertain his blood alcohol concentration at the time. On the assumption that the applicant consumed 16-18 bottles of Corona beer and half a bottle of bourbon, two expert pharmacologists estimated that the applicant’s blood alcohol concentration was between 0.23g and 0.38g of alcohol per 100 millilitres of blood. Both experts gave evidence that a person with that blood alcohol concentration would suffer from severe cognitive impairment.

The main issue on the appeal was whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant had the requisite intent to be guilty of the crime of murder.

Whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended to cause grievous bodily harm to the deceased

The Court found that it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended to cause grievous bodily harm to the deceased. The question of whether the applicant’s level of intoxication precluded him from having the requisite intent was “very much a matter for the jury to determine”. The jury was entitled to rely on the evidence of the deceased’s parents to conclude beyond reasonable doubt that the applicant formed the requisite intention, notwithstanding his intoxication: Bathurst CJ [53]-[64]; Price J [65]; Ierace J [66].

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93 referred to.

Judgment

1. BATHURST CJ: The applicant, Sateki Siale, seeks leave to appeal against his conviction for the murder of Kelly Ventigadoo. The applicant also seeks leave to appeal against the sentence imposed upon him, but the sentence appeal was contingent upon the conviction appeal being allowed and a verdict for the offence of manslaughter substituted.

2. On arraignment, the applicant pleaded not guilty to one count of murder but guilty of assault causing death whilst intoxicated. The Crown did not accept the plea of guilty in discharge of the indictment.

3. Following a trial before a jury commencing on 25 July 2017 and concluding on 4 August 2017, the applicant was found guilty of murder. He was sentenced to a term of imprisonment of 24 years with a non-parole period of 17 years.

4. The application for leave to appeal was based on the narrow ground that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant had the requisite intent to be guilty of the crime of murder.

The facts

5. An agreed statement of facts was tendered at the trial. They were as follows:

“1.   That, as of 11 October 2015 the accused, Sateki Siale resided at 34 Garrong Road Lakemba with his mother Suliana Toatepi Siale, his father Sosaia Siale and four siblings.

2.   That, as of 11 October 2015 the deceased Mr Kelly Ventigadoo resided at Unit 2, 31 Garrong Street [Road] Lakemba.

3.   That at approximately 12:30am on the 11 October 2015 the accused approached the deceased who was standing, with his parents Mr James and Mrs Cynthia Venitgadoo outside of the block of units at 31 Garrong Road, Lakemba.

4.   That as the accused approached the driveway of 31 Garrong Road, Lakemba he was holding a glass bottle of beer in his hand.

5.   That the front of number 31 Garrong Road, Lakemba contained a drive way with a series of letter boxes built into a small brick wall.

6.   That the accused smashed the glass beer bottle on the small brick wall.

7.   That the accused then struck the deceased’s head or neck area with the bottle, the force of which caused the deceased to fall to the ground.

8.   That the deceased got back up and the accused struck him with the broken beer bottle on no less than one further occasion.

9.   That as a consequence of being struck by the accused the deceased sustained multiple sharp force injuries to the jawbone (mandible) on the right side, to the left side of the neck and the lower half of the left ear. The jugular vein on the left side of the neck and a branch of the left external carotid artery were both severed.

10.   That the injuries sustained by the deceased upon being struck with the broken bottle by the accused caused the death of the deceased.”

6. A further statement of agreed facts was also tendered. It was in the following terms:

“1.   That, the accused, Sateki Siale and Mr Keifer Hennings entered the Belmore Hotel Bottle Shop at around 7:24pm on Saturday 10/10/2015.

2.   That the accused and Mr Hennings purchased a carton of Corona Beer for $52.00.”

3.   That the accused purchased a packet of potato chips (90 grams) for $3.60. He paid cash for this purchase.

4.   That Mr Greg Phegan Licencee of Belmore Hotel, Belmore retrieved closed circuit television (CCTV) footage for the 10/10/2015. He made a copy of the CCTV footage and provided it to Detective Peter Phillp.

5.   That there were two camera angles that depict the accused and a Mr Keifer Hennings entering the store. The accused is wearing a dark coloured T shirt. Mr Keifer Hennings is seen in the store CCTV footage wearing a white shirt.

6.   That the relevant excerpts of the footage are as follows:

a.   Entry camera: 19:29:20 – 19:30:45

b.   Register Camera: 19:29:26 – 19:30:43”

The evidence at the trial

a   Mrs Cynthia Ventigadoo

7. Mrs Cynthia Ventigadoo was the mother of the deceased, who at the time of his death was aged 45 years. She gave evidence that the deceased had lived at Unit 2, 31 Garrong Road Lakemba for approximately 10 years (she initially referred to the deceased having lived at Unit 2, 32 Garrong Street, Punchbowl, but that was evidently mistaken).

8. Mrs Ventigadoo gave evidence that on 10 October 2015 she went to the South Sydney Juniors Club with her son, her husband and a friend. Mrs Ventigadoo said that she did not consume any alcohol at the club as she does not drink, but that her husband and son did. She said that she did not see how much her husband had to drink that night, but said that “he didn’t drink that much”.

9. On their return to the deceased’s unit block she, her husband and the deceased, went upstairs into the deceased’s unit for about 15 minutes and then went back down to the driveway where the car was parked. She said that her husband and the deceased were having a cigarette.

10. Mrs Ventigadoo said that her husband was speaking “just a little bit loud because he’s a bit deaf, but not that loud”. She said that she saw a male person walking towards them. She said that the man was carrying a beer bottle and was wearing a dark t-shirt. She said that she had never seen the man before. She said that the man approached her, the deceased and her husband and said, “What the fuck are you talking loud for? This is my street. I live here.” She said that he was near the unit’s letterbox when he said this and the deceased was standing behind her. She said that she put her hands on the applicant’s chest and told him to go home and that they were leaving. She said that the applicant did not say anything. She said the deceased told the applicant he lived in the street as well. The applicant then said, “What the fuck you said”. Mrs Ventigadoo described his tone of voice as angry.

11. After this Mrs Ventigadoo said the applicant smashed the beer bottle on the small brick wall near the letterbox. She said that he then came near where her car was parked and it was at that stage she told him that they “were actually leaving” and he should “just go home”. She said that her son, who was behind her, could not see him coming.

12. Mrs Ventigadoo said that the applicant came up on her left side. She said that he took the broken bottle and passed between herself and her vehicle to where the deceased was standing behind her. She said the applicant then “slashed” the deceased’s ears and throat and he dropped to the ground. She said the deceased got back up, but was not steady on his feet because the applicant had “hit him really hard”. She said the deceased was “bleeding everywhere”. She said the deceased was on the ground for about two minutes before he got back up. She said the applicant remained standing holding his broken bottle. She said when the deceased got up holding his ear and bleeding the deceased asked the applicant, “Why did you do that?”. She said that the applicant did not reply and hit him again with the glass bottle. She said that she saw the applicant hit the deceased, “towards the face or something. He just hit him and he fell backwards”. She said the applicant then, “just jumped over my son and he went”. She said he walked away in a northerly direction and she saw a male coming across to meet him. She described his walk as “just normal”.

13. In cross-examination she conceded that the lighting was very poor.

b   James Ventigadoo

14. Mr James Ventigadoo, the father of the deceased, gave evidence he suffered from hearing loss in both ears, the percentage loss of hearing from each ear was 15% and 46%. He gave evidence similar to that of Mrs Ventigadoo concerning the family’s visit to the South Sydney Juniors Club, stating that he had two small brandies at the Club, whilst the deceased consumed two “middies” of beer.

15. He gave evidence that when they were standing outside the units by their vehicle and the small brick wall he saw a man approach him, his wife and the deceased. He said that he had never seen the man before. He said that he saw the man break the bottle on the letterbox twice and “a right arm move… but I didn’t know if he was going to kill someone with this”. He said he saw the applicant’s right “arm lift up and down”, identifying that it was the arm that held the glass bottle.

16. Mr Ventigadoo said that he heard his wife call him and say that the deceased was on the floor. He said he did not hear the man that he saw approach say anything, and could not hear his wife say anything to the man. He said that the man did not say anything when he walked away. He said he did not run but walked quickly.

c   Dr Szentmariay

17. Dr Szentmariay was the forensic pathologist who performed an autopsy on the deceased. He stated that the deceased died of multiple sharp force injuries to the head and neck, resulting in blood loss and in death. He gave evidence of sharp force injuries along the jawbone (mandible) on the right side, a wound to the neck and a 10.5 cm cut on the neck which severed the jugular vein.

The applicant’s case at trial

a   Jessica Edwards

18. Ms Jessica Edwards was the girlfriend of the applicant at the time of the incident. She confirmed what the applicant stated in his interview with police, that he had gone and bought a watermelon earlier in the day. She stated that when she was in contact with him later in the evening he was at his cousin’s house. She stated that at about 8.30pm that night she went to see the applicant at his cousin’s house.

19. Ms Edwards stated that when she arrived she observed the applicant was “staggering from side to side” and had bloodshot eyes. She witnessed the applicant drink about 16 beers whilst she was there, and was also drinking straight from a half full bottle of bourbon. She said she also witnessed the applicant snorting some white powder.

20. Ms Edwards stated she had seen the applicant intoxicated before, but he was more intoxicated on this occasion because, “he wasn’t able to kind of form full sentences”. She said at approximately 11pm to 11.30pm, she took him home in her car. She stated that she had to help him to the car because he could not walk properly and that at one point during the journey home the applicant opened the door and vomited to the side.

21. Ms Edwards said that when she arrived at his home the applicant got out of the car and he was staggering and “not far from falling over”. She said that sometime later she saw the applicant trying to get over the fence that separated Number 38 and Number 36. She said that he fell over the fence and stated in cross-examination that he could barely get over it. She said that with the help of the applicant’s parents, she then put him in a car. She said that the applicant’s mother drove the car as she sat in the back and the applicant was in the passenger seat. She said that after the applicant finished vomiting, the applicant’s uncle came and picked him up from where the car was parked and took him into his car. .

22. In cross-examination, she confirmed that she saw him drink 16 beers but stated that was “a rough estimate” and she was not counting. She stated that she did not believe she was exaggerating the applicant’s condition or the amount of alcohol she had seen him consume. She said that she could not be sure that she knew at the time that intoxication might help the applicant.

23. Ms Edwards also rejected the suggestion that the applicant was not swaying and staggering up the road when she saw him after the assault occurred. She said that she kept watching him all the way up the road.

b   Mrs Suliana Siale

24. Mrs Siale was the mother of the applicant. She said that shortly before 1.07am there was a knock on her door and she remembered seeing Ms Edwards standing there. She said that she went outside the front door and saw the applicant in her neighbour’s driveway at 38 Garrong Road. She noted that he was alone, staggering, unable to walk straight, mumbling and was “completely irrational”.

25. She stated that the next thing she saw was the applicant’s bleeding hand and heard her husband yelling at him, “What’s wrong? What happened to you?”. She said the applicant was “still mumbling and trying to walk”. She said she also smelt a “strong stench of alcohol on him” when she was close to him.

26. Mrs Siale stated that she assisted the applicant to clean his bleeding hand and expressed concern about her husband’s yelling as she was concerned that he might “get into a fight” with the applicant. She confirmed that with Ms Edwards assistance they pulled the applicant into her car then drove around Lakemba and Belmore. She noted that whilst driving, the applicant was “dry retching as if he was going to vomit”, so she decided to stop the car. She confirmed that after he vomited she helped him back into the car and he fell asleep.

27. Mrs Siale said she sought assistance from her brother-in-law who came, put the applicant into his car and drove him to his house to sleep. She then said that during the course of the night she had a conversation over the phone with her husband who said the police had been at the house looking for the applicant. She said that she drove back to her brother-in-law’s house and got him to help her place the applicant into her car. The applicant was asleep until they reached her sister’s home at Campbelltown and remained asleep inside the house.

28. Mrs Siale said that she heard of the death the next day and believed that the applicant may have had something to do with it because he had blood on his hands. She said that she woke the applicant and asked him if he remembered anything from the night before and he said no. She said that she unsuccessfully sought to have blood tests taken of the applicant at three medical centres and she then took him to the police station at Campsie in company with Ms Edwards.

The police evidence

29. Detective Sergeant Johnston gave evidence that on 11 October 2015 he spoke to the applicant when he attended Campsie Police Station. He said that the applicant “spoke softly but clearly and appeared reluctant in making eye contact”. He noted that he could not smell alcohol on the applicant’s breath and did not believe the applicant was intoxicated at the time of the interview.

30. Detective Sergeant Johnston said the applicant told him that he had no memory of the previous evening, and that he woke up and saw the injury to his hand and his Mum told him that he killed his neighbour.

31. No samples of urine or blood were taken from the applicant to ascertain any levels of alcohol that may have been in his system. The detective stated this was a decision made in consultation with others because of the time lapse in between the time of the incident to the time when the sample would likely have been taken.

32. The applicant voluntarily participated in an interview with two police officers at Burwood Police Station. The applicant stated in the interview that he had purchased a box of Coronas and started drinking them with a friend of his. He then remembered opening a second carton of beer. He said the next thing he remembered was that he woke up in his aunt’s house, washed his hand and was told by his mother that he had killed his neighbour. He stated that he had eaten some chicken and watermelon that day.

33. Senior Constable Olsen confirmed that he traced a trail of the applicant’s blood commencing at or about the driveway of 31 Garrong Road, proceeding in a northerly direction along Garrong Road, then turning into premises at 40 Garrong Road, Lakemba. He said that from those premises it appeared the blood trail continued in a southerly direction back towards 34 Garrong Road, and that there was a bloodstain on the fence between 38 and 36 Garrong Road. The sketch, which was Exhibit J, showed that the applicant proceeded past his house at 34 Garrong Road, before returning to his home via the front yards of 40, 38 and 36 Garrong Road. The applicant climbed over the fence between 38 and 36 Garrong Road and down the side of Number 36 to get back to his home at Number 34 Garrong Road. Senior Constable Olsen said that he took measurements and prepared a drawing indicating the general location of the markers and distances. That plan became Exhibit J in the proceedings.

The expert evidence

34. Two expert pharmacologists, Mr Farrar and Professor Christie, were called and their reports tendered without objection. They each said that based on consumption of 16-18 bottles of Corona beer (355 millilitres) and half a bottle of bourbon, the applicant would have had between 0.23g and 0.38g of alcohol per 100 millilitres of blood (Mr Farrar’s opinion was the range was between 0.23g and 0.36g, whilst Professor Christie’s opinion was the range was between 0.25g and 0.38g).

35. Each of the experts gave evidence that a person with that blood alcohol concentration would suffer from severe cognitive impairment. They each stated that it would be expected that such a person’s ability to think clearly, make reasoned decisions, perform coordinated actions and understand the implications of their actions, would be severely or substantially impaired. They agreed that a person with that level of intoxication would not have had the capacity to plan a complex action, or have the foresight of the probability of death from a brief assault.

The relevant legislation

36. Section 18 of the Crimes Act 1900 (NSW) defines murder and manslaughter. Section 18(1) is in the following terms:

“18   Murder and manslaughter defined

(1)(a)   Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b)   Every other punishable homicide shall be taken to be manslaughter.”

37. Part 11A of the Crimes Act deals with intoxication. Section 428B includes murder as an offence of specific intent, whilst s 428C and s 428E are in the following terms:

“428C   Intoxication in relation to offences of specific intent

(1)   Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

(2)   However, such evidence cannot be taken into account if the person:

(a)   had resolved before becoming intoxicated to do the relevant conduct, or

(b)   became intoxicated in order to strengthen his or her resolve to do the relevant conduct.”

“428E   Intoxication in relation to murder, manslaughter and assault causing death

(1)   If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:

(a)   in the case of intoxication that was self-induced—evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or

(b)   in the case of intoxication that was not self-induced—evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A.

(2)   An offence under section 25A is not an offence of specific intent for the purposes of this Part.”

The parties’ submissions

a   The applicant

38. In his written submissions, the applicant contended that “the Crown case rested on [the evidence of] the deceased’s parents”. He submitted that there were “significant inconsistencies” in what they observed, particularly having regard to the fact that they were both standing right near the deceased.

39. The applicant in his written submissions also referred to the evidence of Dr Farrar and Professor Christie as to the applicant’s blood alcohol concentration having regard to what they assumed he had drunk and ate that night. He noted that it was an agreed fact that a carton of beer was bought and referred to the evidence of Ms Edwards as to how many beers she saw the applicant drink.

40. The applicant submitted that there was no evidence called to contradict the assumptions made by the experts which gave rise to their opinion. It was submitted that Ms Edwards was emphatic that she was telling the truth and not exaggerating the amount of beer she saw the applicant consuming.

41. The applicant submitted that “[f]or the jury to find the requisite intent, they would have to have placed little to no weight upon the expert evidence or the assumptions made”. It was submitted that “there was no rational basis” to reject the evidence of Ms Edwards or the applicant’s mother.

42. Senior counsel for the applicant submitted that the effect of the uncontested expert evidence was that it was not rationally open to the jury to exclude the reasonable possibility that the applicant’s degree of intoxication meant that he did not have the requisite intent.

43. Senior counsel for the applicant submitted that to the extent there was any inconsistency between the evidence of the deceased’s parents on the one hand, and the evidence of Ms Edwards and the applicant’s mother on the other, it did not affect the position. He submitted the applicant was “highly intoxicated”, there was no provocation, he was vomiting, had “had an enormous amount to drink”, was “unsteady on his feet and became violent. He further noted that the applicant stated he had no memory of the assault. He submitted that any advantage that the jury would have, could not apply to the expert evidence.

44. Senior counsel for the applicant rejected the suggestion that the fact that both blows were to the same part of the body, was relevant to the consideration of whether the applicant had the intent to commit grievous bodily harm, submitting it was “just a question of where the actual sharp end of the bottle came into contact with the face”.

b   The Crown

45. The Crown made two submissions on the issue of intent. First, it was submitted that it was open to the jury to conclude that the applicant was less intoxicated than suggested by Ms Edwards or the applicant’s mother, and that in those circumstances, it was open to the jury to be satisfied that the assumptions on which the opinions of Dr Farrar and Professor Christie were based were not established. Second, even if the evidence of Ms Edwards and the applicant’s mother was entirely accepted, it would remain open to the jury to conclude in light of all the circumstances that the applicant had the relevant intent despite his intoxication.

46. In relation to the first point, the Crown accepted there was “no question that the applicant was intoxicated”. However, it was submitted that the assumption that the applicant had consumed between 16 and 18 bottles of Corona and half a bottle of bourbon was entirely dependent on the evidence of Ms Edwards. It was submitted that the corroboration supplied by the CCTV footage of the case of beer being purchased and the empty bottles in the garage supplied no evidence of the consumption of alcohol by the applicant as distinct from the group as a whole.

47. The Crown submitted that Ms Edwards may have made a mistake in her estimation, noting that she said she was not counting the number of beers the applicant consumed, and that the effect of her evidence was that she was not there throughout the entire period that the alcohol was consumed. However, her evidence was that when she arrived at the garage the applicant was drinking beer but that while she was there he drank 16 beers (T 751). The Crown also noted that Ms Edwards did not say that the applicant drank the whole of the half bottle of bourbon, rather that he was taking alternate sips of Corona beer and bourbon.

48. The Crown also submitted that the jury may have found that the evidence of Ms Edwards and Mrs Siale exaggerated the level of the applicant’s intoxication. The Crown submitted that the unchallenged evidence was that the applicant was able to exit the car unaided, walk to the deceased and his parents unaided, smash a bottle, strike it twice across the deceased’s face and then able to walk, again unaided, back to his own backyard, including negotiating a small fence. The Crown also noted that Mrs Siale and Ms Edwards did not consider that the applicant’s intoxication was sufficiently severe to take him to hospital. It was submitted that in these circumstances the jury may have concluded that the first instinct of both women was to protect the applicant and, consciously or subconsciously, overestimate the applicant’s level of intoxication.

49. The Crown submitted that in those circumstances the jury was left with the evidence of the deceased’s parents as to the level of intoxication. It was submitted that any difference in the account of the parents was explicable, noting that the deceased’s father was partially deaf and his view was partially obscured as he was on the other side of the car from where the assault took place. The Crown noted the evidence of the deceased’s mother that the applicant walked 75 metres unaided and that the bloodstains marked on Exhibit J did not show the applicant staggering from one side of the road to the other.

50. The Crown submitted that issues of credibility and reliability were matters for the jury, but submitted that the most important of the Crown’s contentions was that even if the evidence of Ms Edwards and Mrs Siale was accepted, it was open to the jury to conclude that the applicant intended to cause the deceased serious harm. The matters relied upon as set out in the written submissions were as follows:

“(i)   The applicant was able to articulate what he was upset about. He said to the deceased’s father ‘what the fuck are you talking loud for? This is my street. I live here.’

(ii)   The applicant had the presence of mind to know where he was and where he lived. Significantly, the applicant’s words were readily understood by the deceased and his mother;

(iii)   The applicant deliberately smashed a glass bottle against the brick wall prior to striking it at the deceased’s head and neck area. The applicant first made a weapon of the bottle before striking the deceased. This act demonstrated that the applicant had both a purpose and presence of mind;

(iv)   After breaking the bottle, the applicant then negotiated a path between the car and the deceased’s mother, so as to approach the deceased;

(v)   When the applicant struck the deceased, the deceased immediately fell to the ground, whereas the applicant remained upright;

(vi)   After the applicant struck the deceased the first time, the deceased got up, obviously seriously injured, with his left ear bleeding. The deceased asked ‘what did you do that for?’ The applicant’s response was to strike the deceased in the face a second time, causing further serious injuries;

(vii)   Both of the applicant’s strikes were quick and precisely directed at the deceased’s face and neck. The deceased did not sustain any defensive injuries in the assault;

(viii)   After striking the deceased a second time, the applicant left the scene, unassisted, walked over 73 metres, getting over a fence, before walking around to the back of his home.”

51. The Crown also noted, referring to The Queen v O’Connor (1980) 146 CLR 64 that the fact that the applicant did not remember the incident was not enough as memory is different to intent. The Crown submitted that nor was it enough that the applicant would not have acted as he did if he was not intoxicated. She submitted that in the present case the assault was not an “automatic, unthinking or mindless response” as “there were various choices made by the applicant” in determining to create the weapon of the bottle and to strike the deceased not once, but twice in the face.

52. The Crown also noted that it was to be borne in mind that the intent required was not an intent requiring complex planning and foresight over abstract concepts.

Consideration

53. The principles on which the verdict of a jury will be set aside as unreasonable are uncontroversial. In Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, I summarised the principles as follows:

“[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

[85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice.”

54. However, as was pointed out by the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65], regard must be had to the fact that the jury is “the constitutional tribunal for deciding issues of fact”. The importance of taking into account the role of the jury was pointed out by the Court in that case in the following terms:

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”

55. In the present case, the question was whether it was open to the jury, in the sense described in the authorities, to come to the conclusion that the applicant intended to cause grievous bodily harm to the deceased. As was pointed out by Beazley JA, as her Honour then was, in Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93 at [105], the question of whether an accused’s level of intoxication precluded him or her having the necessary intent required for the offence in question was “very much a matter for the jury to determine”. Her Honour made the point in the following terms (James J agreeing):

“[105]   The question whether the appellant had the necessary intent can only be inferred from all of the surrounding circumstances. Whilst there was evidence that the appellant was intoxicated, it was very much a matter for the jury to determine whether his level of intoxication was such that he was not capable of forming the relevant intent. Likewise, the circumstances of the incident itself were matters that the jury were required to assess.”

56. In the present case, the applicant heavily relied on the reports of Mr Farrar and Professor Christie. In his first report of 2 May 2017, Mr Farrar stated that it was not possible to calculate the applicant’s blood alcohol concentration as the time over which he consumed alcohol and the actual quantity of alcohol consumed by him was not known. However he stated that taking into account the applicant’s inability to recall the assault, it was probable that his blood alcohol concentration exceeded 0.2g per 100 millilitres. He stated that generally speaking, a person with that blood alcohol reading would “exhibit substantially impaired judgment, impaired decision-making capacity and impaired cognitive ability, and may have an increased propensity for aggression and violence”.

57. In his second report of 12 July 2017, Mr Farrar made the assumption that the applicant consumed 16 to 18 bottles of Corona beer and half the contents of a bottle of bourbon between 6.00pm and midnight. He also assumed the applicant’s height and weight to be 1.7m and 125kg respectively. He stated in these circumstances the applicant’s blood alcohol concentration at the time of the assault was estimated to be not more than 0.36g per 100 millilitres and not less than 0.23g per 100 millilitres.

58. Mr Farrar stated that at that blood alcohol concentration there would be “substantial impairment of cognition and substantially impaired judgment and decision-making capacity”. He stated that a person with a blood alcohol concentration between 0.23g and 0.36g per 100 millilitres “would not have the capacity to plan a complex action, or have the foresight of probability of death arising from a brief assault”.

59. In his report Professor Christie made the same assumptions as to the applicant’s height weight and alcohol consumption as those made by Mr Farrar in his second report. He also took into account the evidence of Ms Edwards and Mrs Siale of his state of intoxication in reaching his conclusion. In that context, he stated that with very heavy intoxication and a likely blood alcohol concentration of above 0.25g per 100 millilitres, the applicant would “be expected to suffer severe cognitive impairment”. He stated that “[h]is ability to think clearly, make reasoned decisions, perform coordinated actions, as well as understand the implications of his actions and those of others would be severely impaired”. He also expressed the opinion that it was “not possible to state conclusively” whether the expected severe impairment of brain processes and obviously severe intoxication, would have affected the applicant’s mental process to the extent that he had no ability to form an intention to inflict grievous bodily harm upon the deceased.

60. It is important to note that neither of these experts stated that the applicant would not have the capacity of forming the intention to inflict grievous bodily harm on the deceased. Even if they had done so, it would be a matter for the jury to determine in light of all the evidence, including the expert opinions, whether they were satisfied beyond reasonable doubt of whether the requisite intention was formed. In the present circumstances, where the experts had not reached a concluded view on the issue, it plainly remained a matter for the jury to determine, taking into account the evidence including the expert evidence of the significant cognitive impairment which would have resulted from the applicant’s level of intoxication.

56. In my opinion, the jury was entitled to conclude, based on the evidence of the deceased’s parents, that the applicant formed the requisite intention. The applicant knew where he was notwithstanding his intoxication and was able to speak coherently to the deceased’s mother. More significantly, he did not simply randomly strike at the deceased with a bottle. Rather, he first broke the bottle, presumably so it would be a more effective weapon, moved around the deceased’s mother to get to the deceased, and struck the deceased in a particularly vulnerable part of his body. Even if that could be described as the thoughtless act of an extremely intoxicated person, his action in striking the deceased on the other side of his face, in circumstances where the deceased was already clearly wounded, was demonstrative of an intention to inflict grievous bodily harm.

57. Further, in considering the extent to which the deceased’s level of intoxication had impaired his faculties, the jury was entitled to take into account the evidence of the deceased’s parents that he walked normally from the scene of the incident. The trail of blood shown in Exhibit J showed that he was walking in a relatively straight line and not staggering across the road.

58. The jury, in my opinion, was entitled to rely on this evidence to conclude beyond reasonable doubt that the applicant formed the intent to inflict grievous bodily harm on the deceased. This ground of appeal has not been made out.

59. In the circumstances, I would make the following orders:

1. Grant the applicant leave to appeal.

2. Appeal dismissed.

65. PRICE J: On my own analysis of the evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant formed the intent to inflict grievous bodily harm on the deceased. I agree with the Chief Justice and the orders he proposes.

66. IERACE J: I also agree with the reasons of the Chief Justice and the orders proposed.

**********

Decision last updated: 23 April 2019