Phillips v R [2016] NSWCCA 159 (10 August 2016)

Last Updated: 10 August 2016

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Phillips v R
Medium Neutral Citation:	[2016] NSWCCA 159
Hearing Date(s):	22 July 2016
Decision Date:	10 August 2016
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; N Adams J at [25]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW – appeal against conviction – causing grievous bodily harm with intent – joint assault on victim – whether judge erred by not directing jury as to causation – whether verdict unreasonable because evidence incapable of establishing causation – where sole issue at trial was identification (recognition) – no error in failure to direct on matters not at issue in trial – leave to appeal refused
Legislation Cited:	Crimes Act 1900 (NSW) s 33(1) Criminal Appeal Act 1912 (NSW) s 5(1) Criminal Appeal Rules r 4 Evidence Act 1995 (NSW) s 191
Cases Cited:	Alford v Magee [1952] HCA 3; 85 CLR 437 ARS v R [2011] NSWCCA 266 Huynh v The Queen [2013] HCA 6; 295 ALR 624 Papakosmas v R [1999] HCA 37; 196 CLR 297 Pemble v The Queen [1971] HCA 20; 124 CLR 107 R v Greatorex (1994) 74 A Crim R 496
Category:	Principal judgment
Parties:	Richard Grant Phillips (Applicant) Regina (Respondent)
Representation:	Counsel: Ms A Francis (Applicant) Mr P Ingram SC (Crown) Solicitors: Bannisters Lawyers Solicitor for Public Prosecutions
File Number(s):	2012/392603
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	18 December 2014
Before:	Armitage DCJ
File Number(s):	2012/392603

JUDGMENT

1. HOEBEN CJ at CL: I agree with R A Hulme J and the additional observations of N Adams J.
2. R A HULME J: Richard Phillips (“the applicant”) was found guilty by a jury in the District Court of an offence of causing grievous bodily harm with intent to cause grievous bodily harm (s 33(1) of the Crimes Act 1900 (NSW)).
3. The Crown alleged that he was one of four people who were involved in a serious assault upon a man who sustained injuries that are conceded to have amounted to grievous bodily harm.
4. The applicant seeks leave to appeal against his conviction (but not against the relatively modest sentence that was imposed) on the basis that the trial judge erred by not directing the jury that it was necessary for them to be satisfied beyond reasonable doubt that he, personally, caused the grievous bodily harm. It is also contended that the verdict is unreasonable because the evidence was incapable of establishing that matter. These contentions were said to arise out of the fact that the Crown did not rely upon a case of joint criminal enterprise liability.
5. The problem is that the defence case at trial was that he was not a party to the assault upon the victim at all. The issue he relied upon was whether the Crown had proved beyond reasonable doubt that the victim had correctly identified him as one of the attackers. No argument was advanced as to whether he was a participant in a joint criminal enterprise or that what he did personally caused the victim grievous bodily harm.
6. The victim's description of the assault is consistent with there having been a joint attack upon him by persons who were intent on causing him serious harm. His evidence was that he was walking along a street in Redfern on the evening of Saturday 15 December 2012 when he saw four men jump out of a car. He saw the applicant, who he had known for quite a long time, come at him from his right hand side calling out "woman basher". (The Crown Prosecutor contended in his closing address that a motive for the attack was an allegation made by the applicant's niece of having been previously assaulted by the victim.)
7. The victim said that the applicant had an aluminium baseball bat in his hand which he used to strike the victim in the right-hand side of the face. A man who he thought was Todd Carroll approached from his left side and struck him to the shoulder and back of the neck with an iron bar. Later in his evidence he said that this blow struck him across the left-hand side of his face. The victim said he went to the ground. The two other men (who he did not recognise or otherwise identify) also approached. One of them had a stick or a branch. The victim said he was hit around the legs but he was unable to give a detailed description of this because he was dazed. The four men then left the scene. Ambulance and police officers attended and the victim was taken to St Vincent's Hospital.
8. On admission to hospital the victim was found to be suffering from:

● a closed head injury with multiple bruises to his face and head;

● a firm 4cm retroauricular [behind the ear] haematoma;

● smaller contusions and abrasions to his forehead, left cheek and occiput;

● a fractured mandible [jaw];

● multiple contusions and abrasions to his chest wall and limbs;

● a swollen and bruised left elbow;

● a 2cm deep laceration to his right elbow with surrounding haematoma; and

● a 5 x 8cm haematoma left pre-tibial area.

9. Counsel for the applicant in this Court accepts that a fractured jaw was capable of constituting grievous bodily harm.
10. In the absence of the jury panel-in-waiting, the learned trial judge asked defence counsel, "What's the issue?" Counsel for the co-accused, Todd Carroll, informed his Honour that it was identification. Counsel for the applicant neither demurred nor sought to qualify that statement.
11. After the jury were empanelled the judge made some opening remarks. They included that "the dispute in this case, as I understand it, is identification".
12. In the Crown Prosecutor's opening address it was stated, "What the issue is so far as this trial is concerned is as his Honour has said about identification". A short time later he elaborated somewhat: "The only real issue for you to determine is whether you are satisfied beyond reasonable doubt that Todd Carroll and Richard Phillips were two of the four people involved in the attack on [the victim] on 15 December 2012."
13. Cross-examination of the victim by counsel for the applicant confirmed that the correctness of the victim's identification (recognition) of the applicant was the sole issue in the trial.
14. The Crown case was clearly advanced upon the basis of there having been a joint assault by four persons who were intent on causing grievous bodily harm. The Crown Prosecutor's closing address included the following:

"[W]hat [the victim] says is that he was attacked by four men, he talks of the first having a baseball bat, the second having an iron bar, and one of the younger two men having a branch or a stick of some kind. Putting aside the involvement of the accused for a minute, you would accept that those people, whoever they were, being in possession of those implements, baseball bats, iron bars and sticks, and using them to strike someone, had the intention to cause really serious harm to someone. So whoever it was, you would find in my submission to you that they were intentionally causing someone grievous bodily harm. That brings me to the real issue in the case, ... are you satisfied by the evidence beyond reasonable doubt that Mr Phillips and Mr Carroll were two of the four men engaged in this assault upon [the victim] on the night."

15. No issue was raised in the closing address of counsel for the applicant (or the co-accused) about this aspect of the Crown case. Once again, the jury were given to understand most emphatically that his case (and that of the co-accused) was confined to a single contention: the victim's identification was incorrect.
16. The learned trial judge directed the jury that it was necessary that they be satisfied beyond reasonable doubt that (1) the accused caused grievous bodily harm to the victim and (2) the accused intended to cause grievous bodily harm to the victim. His Honour was not asked by either defence counsel to direct the jury about who amongst the assailants actually caused the grievous bodily harm.
17. It is self-evident that the jury were satisfied that the applicant intended to cause grievous bodily harm and that he had been correctly identified as one of the four men involved in the joint attack. Whether he, as opposed to one of the other assailants, actually caused the grievous bodily harm was not an issue in circumstances where there was no dispute about there having been a joint assault by persons who were intent on causing such harm. In other words, counsel for each accused effectively conceded that the victim was the subject of a joint attack by men intent on causing grievous bodily harm.
18. In oral submissions Ms Francis contended that, absent reliance by the Crown upon joint criminal enterprise principles or an express agreement as to facts (per s 191 of the Evidence Act 1995 (NSW)), it was the duty of the trial judge to direct the jury that they needed to be satisfied beyond reasonable doubt that the applicant caused the grievous bodily harm. She took the Court to the well-known authority of Pemble v The Queen [1971] HCA 20; 124 CLR 107 in which Barwick CJ said (at 118) that a trial judge has a duty to put to the jury any matters on which the jury, upon the evidence, could find for the accused. Menzies J said (at 132):

"The starting point is that once there is a plea of not guilty, the Crown must prove every element of any crime covered by the indictment before the jury can convict. ... Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury."

19. It is important to note that both statements of the principle refer to an issue that may arise "upon the evidence". And it is also important to have regard to further authority (to which we were not taken). In Alford v Magee [1952] HCA 3; 85 CLR 437 at 466 [28] the High Court referred to Sir Leo Cussen's "great guiding rule":

"He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny."

20. Simpson J (as her Honour then was) referred to this passage from Alford v Magee in R v Greatorex (1994) 74 A Crim R 496 at 504 and said:

"On appeal, it is too late to create a factual issue that did not ever arise during the trial."

21. In Huynh v The Queen [2013] HCA 6; 295 ALR 624 at 631 [31] the High Court affirmed the authority of Alford v Magee in the following terms:

"The contention that it is an error law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this court affirming the statement of the responsibility of the trial judge in Alford v Magee. The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues. ... Discharge of that responsibility will usually involve instruction respecting the elements of the offence and, where appropriate, the principles governing accessorial or joint enterprise liability. This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error."

22. The learned trial judge in this case complied with the prescript of Alford v Magee. It is completely unrealistic to now raise on appeal a point that was never in issue at trial. This case is an example of an "armchair appeal"; counsel who did not appear at trial picking over the transcript and creating arguments that did not occur to those who had the benefit of the complete atmosphere of the trial.
23. Leave is required in respect of Ground 1 which asserts that the verdict is unreasonable: s 5(1) of the Criminal Appeal Act 1912 (NSW). Ground 2 asserts that there was a miscarriage of justice on account of misdirections by the trial judge in respect of causation. No issue in this respect was raised by counsel at trial and, accordingly, leave is required under r 4 of the Criminal Appeal Rules.

Order

24. I propose the following order:

Leave to appeal refused.

25. N ADAMS J: I have had the benefit of reading the judgment of R A Hulme J in draft and I agree with the orders proposed by his Honour. These are my reasons for agreeing with those orders.
26. The applicant contended that a miscarriage of justice was occasioned on account of the trial judge’s misdirections in respect of causation.
27. Putting to one side the date and location of the offence, there were two elements of the offence that the Crown had to establish beyond reasonable doubt in order to prove its case against the applicant:
    • (1) That the applicant inflicted grievous bodily harm on Mr Stanley (the first element); and
    • (2) That the applicant intended to inflict grievous bodily harm on Mr Stanley (the second element).
28. No complaint is made regarding the trial judge’s direction concerning the second element. That direction, relevantly, was as follows:

“The Crown says that in determining whether each of the accused intended to cause a really serious bodily injury, you may look at the circumstances in which injury was inflicted to see what was in each of the accused’s mind, that is to say their intention. I am going off the sheet for a moment.
The Crown again relies here on the evidence of James Stanley that in Walker Street Redfern the accused Phillips hitting on the right side of the head or face with an aluminium baseball bat and that the accused Carroll came at him with an iron bar on the left hand side and struck him on the left shoulder in the base of the neck. He also said he was hit on the legs and that he was not sure how long the attack continued. Back on the sheet.
The Crown asked you to infer from the evidence which it relies on here that each of the accused intended to inflict grievous bodily harm on James Stanley. Because the Crown asks you to draw an inference from the evidence I have specified that each of the accused intended to inflict grievous bodily harm on James Stanley, it must be the only inference which is rationally available in the circumstances. If any other reference other than that either of the accused intended to inflict grievous bodily harm on James Stanley is rationally available in the circumstances, you must acquit the accused concerned. [emphasis added]”

29. The reference to the “sheet” in his Honour’s summing up was a reference to the hand written directions concerning the elements of the offence provided to the jury and marked MFI 7.
30. The trial judge’s direction concerning the second element reflected the Crown case at trial. The Crown case relied upon the evidence of Mr Stanley to the effect that the person said to be the applicant struck him to the right side of his face with a baseball bat. The jury was directed that the applicant’s intention to inflict really serious bodily injury could be inferred from that evidence. This direction was based on the applicant and his co-accused Mr Carroll being principals in the first degree, as can be seen from the underlined passages above that include references to the actions of each of the accused rather than the actions of the group of attackers as a whole.
31. The applicant’s complaint is confined to the trial judge’s direction concerning the first element which was in the following terms:

“That the accused caused grievous bodily harm to James Stanley. Grievous bodily harm in law means really serious bodily injury. Now I am going off the sheet. The Crown relied here on the evidence of James Stanley that in Walker Street Redfern the accused Phillips hit him on the right side of the head or face with an aluminium baseball bat and the that the accused Carroll came at him with an iron bar on the left hand side and struck him on the left shoulder and the back of the neck. He also said that he was hit in the legs and that he was not sure how long the attack continued.
The Crown relies also on the medical records and doctor’s certificate as to the nature of Mr Stanley’s injuries. Back on the sheet”

32. The trial judge later went on to summarise the Crown Prosecutor’s closing address regarding the element of causation as follows:

“The Crown makes the point that there is evidence in the hospital notes and in the doctor’s certificate as to the nature of Mr Stanley’s injuries. The Crown suggests that you will not have any difficulty in deciding that Mr Stanley’s injuries constitute grievous bodily harm. What you think of that is a matter for you ladies and gentlemen
The Crown makes the point that you must be satisfied both each of the accused inflicted grievous bodily harm upon the complainant beyond reasonable doubt, and you must be satisfied beyond reasonable doubt that each of them did so intending to cause grievous bodily harm, and that is of course the case.
The Crown says that the actions of the persons who attacked Mr Stanley are such that you should form the view beyond reasonable doubt that they intended to cause grievous bodily harm to him in so doing and, ladies and gentlemen, that again is a matter for you.” (emphasis added)

33. At no stage during the closing address did the Crown Prosecutor ever suggest otherwise than that his case on the first element was based on the applicant taking part in a group attack. Nor did either the applicant’s counsel at trial or that of his co-accused take any issue in their closing addresses with that aspect of the Crown case. Consistent with this approach, the Crown Prosecutor did not identify in his closing address which of the injuries enumerated in the judgment of R A Hulme J at [8] was relied upon to establish this first element, so as to link any particular injuries with any particular actions of either the applicant or his co-accused. Counsel for the applicant at trial took no issue at any time throughout the trial with the fact that the injuries in their entirety amounted to grievous bodily harm. Ms Francis conceded on behalf of the applicant in this Court that a fractured jaw is capable of constituting grievous bodily harm.
34. The practical result of the trial being conducted on the basis that the only real issue in dispute was identification was that the trial judge was not asked to direct the jury regarding the first element in terms that the Crown case was that the applicant was part of an agreement with three other men to attack Mr Stanley and inflict grievous bodily harm on him. If the case was not run as one of joint criminal enterprise, it is difficult to see how the Crown could prove beyond reasonable doubt that it was the applicant who broke the victim’s jaw rather than one of the other attackers.
35. In the circumstances it would have been preferable had his Honour been asked to direct the jury regarding the first element in terms that, in order for them to be satisfied beyond reasonable doubt that the applicant caused grievous bodily harm to Mr Stanley, they had first to be satisfied that he was part of an agreement with the other offenders to do so intentionally. If they were so satisfied, the Crown did not then need to prove what injuries were actually inflicted by the applicant. As the direction extracted at [31] above shows, the jury was not instructed either as to how they could convict the applicant as a principal (by linking his actions with any specific injury amounting to grievous bodily harm), nor, in express terms, how they could find that element established on the basis that the applicant was part of an agreement to inflict grievous bodily (in which case the Crown did not need to establish which particular injury the applicant inflicted).
36. The difficulty for the appellant is that no complaint was made about the direction on the first element at trial. Rule 4 of the Criminal Appeal Rules thus applies. Rule 4 is in the following terms:

"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

37. The effect of the rule was described by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]):

"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted...”

38. In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised the relevant authorities regarding the effect of Rule 4. After citing the above passage from Papakosmas, his Honour observed the following at [148]:

“Subsequent cases have established that the following matters are important in considering the operation of r 4:
The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]- [21].
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]- [13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]- [61].
An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

39. Although I am of the view that it would have been preferable for the direction to have been given in the terms set out above at [35], having regard to the transcript as a whole and in particular the conduct of the applicant’s defence at trial I am not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted. Accordingly, I would refuse leave to argue this ground and dismiss the appeal.

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