Troy Robert Scoble v R Nos. SCCRM 94/104 and SCCRM 94/111 Judgment No. 4515 Number of Pages 6 Criminal Law and Procedure Jurisdiction, Practice and Procedure Sentence

[1994] SASC 4515

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Information - one count of assault occasioning actual bodily harm based on an incident involving two punches - defence of self- defence - charge properly laid and single verdict properly taken - verdict could properly have been based on either or both punches - verdict not unsafe - appeal against conviction dismissed.

Criminal law and procedure - Sentence - assault occasioning actual bodily harm - two punches breaking victim's jaw in two places - incident originating in nuisance and aggressive behaviour of victim - offender aged 24 years - prior conviction for assault occasioning actual bodily harm - imprisonment for six months not excessive.

HRNG ADELAIDE, 18 April 1994 #DATE 18:4:1994

Counsel for appellant:     Mr J D Edwardson

Solicitors for appellant:    Clelands

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of the crime of assault occasioning actual bodily harm.

2. The incident which gave rise to the charge occurred in a nightclub in Hindley Street late at night.

3. The alleged victim was a young man who had been drinking during the evening. He had gone into the nightclub at a time when he was considerably under the influence of liquor. He apparently made a nuisance of himself there. He was dancing by himself and, at some stage, approached a young lady who was there with the appellant and a male friend of the appellant.

4. The young lady, Ms Patterson, found the alleged victim's behaviour annoying and she showed her displeasure at his behaviour.

5. The appellant intervened in this situation. He delivered two punches which struck the alleged victim on the face. In consequence of those punches, the alleged victim was rendered unconscious; he sustained two fractures to the jaw and a laceration of the lip. The medical evidence was that the two fractures could have been caused by a single blow or could have been caused by separate blows. The circumstances under which these blows came to be delivered were the central issue in the trial.

6. The prosecution called a 19 year old disc jockey who was working at the premises. He gave evidence that he saw the alleged victim fall against a railing which surrounded the disc jockey's area. He then saw the appellant punch the alleged victim on the right side of the face with a clenched fist. Before that punch was delivered, the disc jockey saw that there was blood coming from the mouth of the alleged victim.

7. Ms Patterson was called by the prosecution and she gave evidence of the nuisance behaviour of the alleged victim, but she looked away and did not see the blows being struck.

8. The prosecution proved an interview by police officers with the appellant in which the appellant said that he had delivered two punches. He said that he intervened because the alleged victim was getting on the nerves of Ms Patterson, that he pushed the alleged victim away, and that the alleged victim turned around and took a swing at the appellant. The appellant thereupon punched him twice with a clenched fist to the head. He said:
    "Well, the first thing, he took a swing at me first and I've
    just - normal reaction - I've just hit him and it wasn't as
    though I just carried on with it, you know - if I wanted to,
    I could have gone on with it."

9. The appellant gave evidence in his own defence. He said that he saw the alleged victim making a nuisance of himself and annoying Ms Patterson. He intervened and pushed him away. The alleged victim then came at him swinging his arms at him and he punched him in the face. The alleged victim was struck in the face which had the effect of felling him. That evidence raised the issue of self-defence.

10. The principal argument advanced by Mr Edwardson, who appeared for the appellant before us arose out of certain directions given by the learned trial judge relating to the two punches. The learned judge made it clear to the jury that the offence charged was a single incident consisting of the two punches. However, in the course of the summing up, he suggested as a possible approach to the analysis of the case by the jury, that they might consider the position as it stood at the time of the delivery of each of the punches. On that basis, he then considered whether there was lawful justification for either or both of the punches and also whether it was proved that the bodily harm had resulted from the punches considered individually. At the conclusion of his consideration of the issues in relation to each individual punch, His Honor considered what the verdict would be arising out of those considerations. Unfortunately, he then concluded in each instance with the expression "That is in relation to that punch".

11. If the passage in which His Honor discussed that approach to the case stood alone, it might be thought that he was suggesting that there could be different verdicts in relation to the two punches which formed part of the incident. The passage must be understood, however, in the context of the summing up as a whole. His Honor, I think, made it clear to the jury that what was charged in the count in the information was a single incident and that it was necessary for them to be satisfied that that single incident consisted of a blow or blows which were not justified as self-defence and that that blow or blows resulted in actual bodily harm.

12. Mr Edwardson suggested that the charge related to the second punch only. I think it is clear that the prosecution did not particularise the charge in that way. The charge, as expressed, is apt to cover a whole incident. The two punches were so connected as to form part of a single incident. The incident was properly charged as a single offence. In my view, this was a single incident alleged to be assaultive in character and the appellant could not have been properly charged with or convicted of two crimes of assault arising out of this single incident. The Crown's opening referred to blows in the plural as being the subject of the charge and the learned judge, in his summing up, canvassed both punches as part of the alleged assaultive incident. It follows from that that the question for the jury was whether what occurred during this single incident amounted to an assault and whether that assault occasioned actual bodily harm. It was open to the jury to reach that conclusion on the basis that neither punch was justified and that the actual bodily harm resulted from one or other or both punches. It was also open to the jury to reach the conclusion that one of the punches was justified but that the other was not and that the actual bodily harm resulted from the punch which was not justified.

13. In dealing with each punch separately His Honor was discussing with the jury a possible approach to their consideration of the charge. He did not at any stage, however, in my opinion, leave to the jury the possibility of arriving at separate verdicts with respect to each punch. There was one count only in the Information and they were asked for only one verdict.

14. Mr Edwardson contended that by dealing with the matter in that way His Honor left open to the jury the possibility of the conviction upon the basis of the first punch only. He contended that that was not a course which was open to the jury. He based his argument upon the fact that the only evidence as to the occurrence of the first punch came from the appellant and that his evidence was that he genuinely thought that was reasonable and necessary to defend himself against the aggression of the alleged victim.

15. I think, however, that that overlooks two points in the case. The first is that if the jury accepted the evidence of the disc jockey as to the second punch, that could well influence their assessment of the state of mind of the appellant at the time of delivering the first punch. It may well have led them to reject his evidence that he delivered the first punch in the genuine belief that that was necessary for his own defence.

16. The second point is that even on the appellant's own version of what occurred, there was a real question for the consideration of the jury as to whether he was justified in delivering any punch as a measure of self-defence.

17. The alleged victim was engaging in nuisance behaviour. On the appellant's evidence he swung blows at the appellant and the appellant says that he had his back to a window and that that restricted his movements. But the jury might well have considered whether he could really have genuinely believed that it was necessary to punch this drunken man in the face in the way in which he did punch him and with the force with which he did punch him. Their assessment of his state of mind at that time might well have been influenced by their view as to whether the second punch was delivered in the circumstances deposed to by the disc jockey.

18. For that reason, although I suppose that it is far more likely that the jury's verdict was based upon the second punch, or, at least the second punch in combination with the first punch, it cannot be said, as a matter of law or reason, that it was not open on the evidence to the jury to convict on the basis of the first punch.

19. The nature of the blows inflicted were such that the inference was open to the jury that the physical damage caused was brought about, at least in part, by each of the two punches.

20. Mr Edwardson also argued that the learned judge, by reason of an expression which he used during the course of the summing up, had reversed the onus of proof with respect to self-defence.

21. His Honor, in discussing the second punch, said this:
    "In considering the position from the accused's point of
    view, that is upon the basis that both punches were
    administered before Margarson fell against the railing, if
    you were to be satisfied that at the time when either or
    both of those punches was or were delivered the accused
    genuinely believed or may have genuinely believed that that
    or those punches was or were necessary and reasonable to
    defend himself, then that is the end of the matter so far as
    those punches are concerned."

22. It is true that if that passage stood alone it would be a misdirection. It was not for the jury to be satisfied that the accused held that genuine belief but to be satisfied that the Prosecution had excluded the existence of that belief.

23. However, elsewhere in the summing up His Honor made it abundantly clear, not only in general terms that the onus was on the Prosecution to prove each of the elements of the crime beyond reasonable doubt, but specifically that the onus was on the Prosecution to exclude self-defence beyond reasonable doubt.

24. The expression which His Honor used in discussing the particular aspect of the case to which I have referred was inapt but there is no possibility, in my opinion, having regard to the summing up as a whole, that the jury could have been misled as to the true onus of proof.

25. It is not without significance in this regard, that the expression evidently did not strike counsel for the defence at the trial as likely to mislead the jury, as it clearly was not noticed by counsel and no point was taken at the conclusion of the summing up. I see no reason to doubt that the jury fully understood the appropriate onus.

26. It seems to me that there was ample evidence upon which the jury could reasonably come to the conclusion that the violence involved in the incident which was charged in the Information was without lawful justification and that that violence had caused the bodily harm to the alleged victim.

27. In my opinion the grounds of attack upon the conviction fail and the appeal against conviction should be dismissed.

28. There is also an appeal against sentence. The learned judge sentenced the appellant to imprisonment for six months.

29. Much was put to the learned sentencing judge in the appellant's favour and Mr Edwardson has repeated the salient points before us. The appellant is 24 years of age. He has regular employment. He is a baseballer who pursues a successful sporting career. The sentence of imprisonment will undoubtedly seriously interfere with aspects of that career and may well prove costly to him in a financial sense.

30. Nevertheless, this was a serious incident. The appellant is a big man and obviously a strong man. He had previous experience as a bouncer and obviously knew how to use his fists. The blows struck were obviously severe blows and caused quite serious injury to the alleged victim.

31. It is true that the incident began as a result of bad behaviour on the part of the alleged victim, but there was really no excuse for the violence which was inflicted upon him by the appellant.

32. The appellant has a previous conviction for assault occasioning actual bodily harm. I think in those circumstances this sentence was a proper sentence.

33. The learned judge decided against suspending the sentence and I think that that exercise of discretion is unassailable having regard to the previous conviction.

34. In my opinion, despite the unfortunate consequences which this sentence will have for this appellant and his career, there are no grounds upon which the court could interfere with it. In my opinion the appeal against sentence should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.