DPP v Andrews [2021] VCC 476 (21 April 2021)

Last Updated: 27 April 2021

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-20-00838

DIRECTOR OF PUBLIC PROSECUTIONS
v
BRETT ANDREWS

---

JUDGE:	HIS HONOUR CHIEF JUDGE KIDD
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2021
DATE OF JUDGMENT:	21 April 2021
CASE MAY BE CITED AS:	DPP v Andrews
MEDIUM NEUTRAL CITATION:	[2021] VCC 476

REASONS FOR JUDGMENT
---

Subject: Criminal law – trial by judge alone – verdict

Catchwords: Trial by judge alone – assault – intentionally causing serious injury – recklessly causing serious injury – CCTV evidence – inferences – inferring state of mind from nature of acts – intoxication – multiple blows – accused punched and kicked victim – youthful offender

Legislation Cited: Crimes Act 1958; Jury Directions Act 2015;

Cases Cited: Thomas [1960] HCA 2; (1960) 102 CLR 584; R v Stokes and Difford (1990) 51 A Crim R 25.

Judgment: Verdict of not guilty be entered on charge 1; verdict of guilty be entered on charge 2.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Office of Public Prosecutions of Victoria
For the Accused	Mr L. Cameron	Maloney Anderson Legal

HIS HONOUR:

Introduction

1. This is a case about an assault that took place on a street in Mildura in the early hours of 5 October 2019. Two men, including the complainant, Mr Dean Anderson, were walking to a location where they were to be picked up by a female friend. A group of men then came upon them, including the accused man, Mr Brett Andrews. There was a verbal interaction of sorts between one member of that group and Mr Andrews.
2. What is not in dispute in this case is that the accused man then launched an attack against Mr Anderson. The attack was unprovoked. This attack was captured fully on a closed-circuit television camera, which I will refer to as the CCTV footage, later collected by police.
3. In very short compass, it involved a clenched-fist blow to Mr Anderson's head, followed by another clenched-fist blow to his head. Mr Anderson then fell to the ground. The accused then kicked Mr Anderson when he was down, though the CCTV footage does not show where the kick landed. Very shortly afterwards, as he was trying to get up, the accused delivered another clenched-fist blow to the head of Mr Anderson.
4. As a result of this assault, Mr Anderson suffered two fractures to his jaw.
5. The primary charges on the indictment are intentionally causing serious injury and,^[1] in the alternative, recklessly causing serious injury.^[2]
6. It is not in issue that the injuries suffered by Mr Anderson constitute a serious injury and that they were caused by the accused.
7. The only issue in this case is whether the prosecution has proved the accused intended serious injury or, in the alternative, whether the prosecution has proved he was aware that serious injury would probably occur.
8. Most of the underlying facts are not in dispute. There are two which I will deal with before I address the question of the accused's state of mind. There is a question over whether the accused, with his group of friends, followed Mr Anderson down the street prior to the assault with an intention to confront or perhaps assault Mr Anderson. There is also a question over where the kick connected with Mr Anderson’s head.
9. Apart from those factual issues, the underlying facts are, essentially, accepted. The controversy in this trial is whether the prosecution has proved the requisite state of mind for each of the charges.

Overview of the evidence

Dean Anderson

10. The complainant, Mr Anderson, gave evidence that he was out socialising with his friend, Jack Stanley, in Mildura. Mr Anderson said that he had no issues with anyone during the night and left Dom's nightclub at about 3:00AM on 5 October 2019.
11. As they were walking away from the club and making their way home, Mr Anderson said that he heard someone yelling, 'Oi, oi'. He thought they might have been talking to someone else, so he kept walking. He gave evidence that a male then ran up to him from behind and said that his mates wanted to talk to him. Mr Anderson said he had never met this person before and said to him, 'I don't even know you guys.'
12. Mr Anderson said that a group of about six people surrounded him and one of them said to him, 'I want to fight you, big boy.' Mr Anderson said that he replied, 'I don't want to fight. I don't even know you.'
13. Mr Anderson gave evidence that he then got a whack from behind, or to quote, was 'king-hit’ from behind and that he didn't see it coming. He said that this first punch hit him ‘fairly hard’ and that he was a bit concussed. He said he had never been punched like that before. Mr Anderson said that he was on the ground when he was then punched or kicked again to the mouth. He said that he was pretty sure that it was a kick, but under cross-examination confirmed that he was not sure if it was a punch or a kick.

Jack Stanley

14. Mr Stanley gave evidence that he was walking about a metre or two in front of Mr Anderson when he turned around and saw Mr Anderson get 'king hit' by one male and then kicked to the upper part of the body multiple times by a group of four or five men. Mr Stanley said that he pulled out his phone to call the police and the male who king hit Mr Anderson said, ‘who the fuck are you calling?’ and chased him.
15. Mr Stanley gave evidence that he saw four or five men kicking Mr Anderson. Under cross-examination, Mr Stanley confirmed that he saw four or five men delivering multiple kicks to the ‘upper half’ of Mr Anderson's body, being from the torso and above. He said that he believed that the kicks were connecting with Mr Anderson's head. When pushed on this, he said that he was ‘90 per cent sure’ that they were to the head. Further, he said he wasn't sure if all of the kicks connected but that the majority of them did. Mr Stanley also confirmed under cross-examination that he could not attribute any particular kick to any particular member of the group.

Naomi Cocks

16. Ms Cocks gave evidence that she was talking to Mr Stanley on the phone and organised to pick him and Mr Anderson up so that they could get home safely. She said that as she approached Mr Anderson and Mr Stanley in her car, she could see a group of people walking behind them. Ms Cocks said that she parked her car out of the front of the Rivers store, and that she then saw Mr Anderson get hit to the head and go to the ground. Ms Cocks gave evidence that she then saw Mr Anderson get kicked. While she says that she saw him get kicked, she could not say who kicked him or where the kick connected.

Gus Wade Williams

17. Mr Williams’ statement was read into evidence by the informant. He gave evidence that he was out drinking with some friends including the accused and that he was drunk. He said that he saw his friend Reece Christian arguing with two males that he did not know. Mr Williams gave evidence that he then saw the accused punch a male to the jaw and then kick him, however he is also not sure where the kick landed.

Dr Ying Li Poh

18. Dr Poh's statement was read into evidence by the informant. Dr Poh was working as a junior medical officer in the emergency department at Mildura Base Hospital. Dr Poh gave evidence that Mr Anderson was brought into the emergency department via ambulance and that he informed her that he had been punched twice in the right jaw from behind. He denied being assaulted anywhere else on his body. The doctor said that Mr Anderson was alert and orientated, however his right lower mandible was visibly swollen and very tender. She said he was not able to move his jaw or close his mouth.

Dr Jason Schreiber

19. Dr Schreiber, Forensic Physician, did not see Mr Anderson himself but rather was provided with the medical material from the Alfred Hospital and Mildura Base Hospital and was engaged to provide an expert opinion. Dr Schreiber gave evidence that Mr Anderson's jaw was fractured on both sides of the face. Dr Schreiber explained that the jaw fracture injuries to both sides were consistent with having been caused by a single blow or multiple blows. Dr Schreiber said that significant force would have been required to cause the injuries. Dr Schreiber gave evidence that the injuries sustained by Mr Anderson were consistent with blunt trauma. Dr Schreiber said that the injuries were consistent with Mr Anderson having been punched or kicked. I will refer to Dr Schreiber's evidence in more detail later.

Callum Alchin

20. Senior Constable Alchin gave evidence that as he was following the ambulance transporting Mr Anderson to Mildura Base Hospital, he noticed two males walking along Deakin Avenue, towards Thirteenth Street. Senior Constable Alchin stopped and spoke to these two males just prior to 4.00 am, about half an hour after the assault had occurred. It was common ground between the parties that one of these males was the accused. Senior Constable Alchin activated his body worn camera prior into coming to contact with the accused and the other male. The entirety of their interaction is captured on the body worn camera footage. This was tendered into evidence.
21. When asked where they were coming from, the accused responded, 'Dom's', referring to Dom's nightclub in Mildura. He said that they left Dom's nightclub 'about half an hour ago'.
22. The accused denied being in the vicinity of Eighth Street and Madden Avenue earlier in the night. Further, when advised of the assault and the fact that there were four offenders, the accused pointed out to Senior Constable Alchin that there were only two of them present there, speaking with Senior Constable Alchin.
23. When asked whether he had a big night, the accused responded, 'Fucking oath, we did. Three days in a row, drinking.'
24. After about four minutes of speaking to the accused and the other male, Senior Constable Alchin moved away from the accused and back towards the police van to conduct checks against the names of the accused and the other male. The footage shows that when he returned to the accused, the accused was lying on his back, with his knees up. Again, I will return to this evidence in more detail later.

Bradley Harrop

25. Detective Senior Constable Harrop is the informant in this matter. The detective gave evidence about his conduct in the investigation, including attending the crime scene and overseeing the taking of photographs, visiting and speaking to Mr Anderson in hospital, taking photos of Mr Anderson's injuries, obtaining CCTV footage of the assault from the CCTV camera, and interviewing the accused.

The CCTV footage of the episode

26. The CCTV footage of the episode was tendered into evidence through the informant. This footage depicted the entirety of the assault. I will make reference to this evidence throughout my reasons. For the moment, it is convenient to provide a brief summary of what it depicts:
    • The footage depicts that Mr Anderson and his friend, Mr Stanley, approached the car driven by their friend, Ms Cocks, who had recently pulled into a car park. A group of five males, one of whom was the accused, then move into the camera’s view and move towards Mr Anderson and Mr Stanley.
    • All seven males are gathered around the parked car for approximately 30 seconds before the accused punches Mr Anderson once with his right fist to the right side of Mr Anderson's face. Mr Anderson's head can be seen to snap quickly as a result of the punch.
    • Less than three seconds later, the accused can then be seen to punch Mr Anderson's face with his left fist, it not being clear which side of the face it struck. Mr Anderson then appears to go to ground.
    • Approximately five seconds later, the accused delivers a kick with his foot in the direction of Mr Anderson. Mr Anderson cannot be seen in the footage at the time the kick is delivered; Ms Cocks' car having blocked the view of Mr Anderson.
    • Mr Anderson then attempts to get to his feet. As he is doing so, the accused delivers a third punch to Mr Anderson's head with his right fist. Mr Anderson again goes to ground after this punch.
    • Approximately 10 seconds after delivering the final punch, the accused can be seen to run towards Mr Stanley, Mr Anderson's friend. Mr Stanley realises that the accused is running towards him and turns and runs away. The accused then chases after Mr Stanley.

The record of interview of the accused

27. A digital video disc of the record of interview of the accused that took place on 10 October 2019, together with the transcript of that interview, was tendered through the informant.
28. The accused details his punches and kick, broadly consistent with what can be seen on the CCTV footage. He says he punched Mr Anderson and kicked him.
29. At one point, he says, 'I just walked up and saw them all rowing. So I stepped in and saw that Reece was drunk, so I - I said, "What you rowing with him for?" And he swore or something, and I was - I said, "What you rowing for?" We just have a fight, so I punched him. And then, yeah, I kicked him.'
30. When asked what he was thinking when he punched Mr Anderson, he said, 'I wasn't thinking.'
31. Later, he said, 'I don't know what I was thinking. Trying to get, ah, in a fight, but - yeah, I was thinking of leading to a fight and - yeah, but I didn't think it was going to be that bad.'
32. When asked what he thought was going to happen when he hit Mr Anderson, he responded, 'I don't know. Just turn and walk away.'
33. As for what he did immediately afterwards, he said, 'Chase the other fella, 'cause I thought he might have been recording it.'
34. As for his level of intoxication, when asked what he was doing on the night and who he was with, the accused said that he and his friends were drinking and that they 'had a few drinks'. At one point in the interview, the accused says that he was 'fucked off his head'. The accused also said that he'd been drinking for three days straight and it was the first time he'd been drinking in a while.
35. The tenor of these answers that I've quoted more or less reflects what he said throughout the interview. They also form the basis of the defence case.

Other exhibits

36. The following other documentary evidence was also tendered by the prosecution: photographs taken of Mr Anderson depicting his injuries after the assault, both pre and post-surgery; a diagram depicting Mr Anderson's injuries produced by Alfred hospital staff; a bundle of five photographs depicting the crime scene; and, one still from the CCTV footage, with an index identifying the persons at the scene during the assault.
37. I now turn to summarise the respective cases.

The prosecution case

38. The prosecution case rests heavily upon what can be seen on the CCTV footage of the assault. What this depicts the prosecution says is an assault caried out with an intention to seriously injure or at least carried out with an appreciation as to the probability of serious injury occurring.
39. The prosecution submitted that I ought not delineate the blows in any artificial way. This was effectively one continuous act with a number of blows being inflicted in quick succession.
40. It is submitted that when assessing all of the evidence, the only inference open is that the accused's intention, when he entered into this activity, was to cause a serious injury, and that this intent persisted throughout.
41. The prosecution submitted that he was voluntarily and purposefully engaging in this behaviour.
42. The CCTV footage shows, the prosecution contended, that the decision to throw the first punch wasn't a momentary decision. The accused did not run up to the group and react as he said in his record of interview. The prosecution says an inference can be drawn that the accused positioned himself so that Mr Anderson didn't see the first punch coming. He, and I quote the prosecutor, ‘scoped out the situation and decided he was going to help his friend.' He positioned himself and lined up Mr Anderson. This evinces, the prosecution contended, an intention to seriously injure.
43. This was followed immediately by a second punch, but this time he positioned his feet in a different way to get some force behind it.
44. All punches were directed to the facial area which, it was submitted, allows the Court to infer a purpose to cause serious injury. The blows were forceful. The prosecution point to the significant force needed to break a jaw in this way, as described by the forensic physician, Dr Schreiber. This too supports the case that the only inference open is that the accused intended to cause a serious injury.
45. The prosecution also submitted that I can find that Mr Anderson was kicked to the facial area by the accused. I will deal with this issue in detail separately.
46. The prosecution submitted that the accused was not so intoxicated that he could not reason or think through the consequences of his actions. His punches and movements required balance and coordination. Again, I will return to this issue when I come to consider the issue of intoxication.
47. In short, the prosecution submitted that the accused was intent on hurting Mr Anderson and intent on getting him to the ground and keeping him there. The prosecution said it can be inferred from all of the evidence that these were intentional and purposeful acts designed to inflict serious injury.

The defence case

48. The essence of the defence is that the accused acted impulsively, immaturely, whilst significantly intoxicated, without any prior awareness of the power of his punches, and ultimately without any real consequential thought as to what might result from his actions.
49. His conduct – the defence say – was a rash, impulsive, and thoughtless reaction to a moment of escalating verbal tensions between the two groups, motivated, as he was, to look out for this mate, Reece Christian, and perhaps to end the row which was occurring.
50. Reliance is placed upon his answers in the record of interview. I have already summarised above some of the answers emphasised by defence counsel to the effect that he just did not think about the consequences of his actions.
51. The defence says his answers reveal an immaturity and superficiality to his thinking at the time.
52. The defence submit the accused was only 18 years of age at the time and he had no prior criminal history. His immaturity and his lack of prior violent criminal history, or prior criminal history, make it less likely that he would have acted with criminal intent and less likely that he would have been aware of the impact of his punches.
53. The defence argued that I should consider that in the record of interview, the accused gave an honest, upfront and frank account of his involvement to police, including about his state of mind. Amongst other things, the defence point to the fact that even though he was not made aware that the police had the CCTV footage of the incident, his account of his actions (namely, the throwing of the punches and the kick) is essentially consistent with what is depicted in the footage.
54. The defence submitted that the evidence cannot establish that the accused kicked Mr Anderson to the head. As I said, I will deal with the argument on this issue in detail separately.
55. The defence contends that the 'unthinking' hypothesis is consistent with innocence, insofar as the serious injury charges are concerned.
56. The defence further contends that the 'unthinking' evidence should raise in my mind a reasonable doubt that the accused man engaged in the consequential thinking required in order to prove the serious injury charges brought by the prosecution.
57. Put another way, if I cannot exclude this 'unthinking' hypothesis advanced in the record of interview, then, the defence says, I cannot infer an intention to cause serious injury beyond reasonable doubt, or an appreciation that serious injury would probably occur.
58. As I will make plain in a moment, I accept that I must exclude this hypothesis as not being reasonable in order for me to convict.
59. The defence make the same point about the intentional element for the alternative charge of intentionally causing injury.
60. Finally, the defence made plain that it is not in issue that the accused has committed the offence of recklessly causing injury.

Directions and issues

61. I now move to the directions and issues in the case.

Evidence given remotely

62. All witnesses, including Mr Anderson, gave evidence remotely in this trial. I remind myself that the evidence of the witnesses must be given no greater or lesser weight for the fact that it was given remotely. I draw no inference adverse to the accused for the fact that Mr Anderson and other witnesses gave evidence from a remote location.

Fundamental principles

63. I remind myself of some fundamental propositions:
    • A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
    • It is for the prosecution to prove these charges; the accused does not have to prove anything.
    • The prosecution must do this by proving the accused's guilt of the charges beyond reasonable doubt.
    • It is only if I find that the prosecution has proven all of the elements of a charge beyond reasonable doubt that I may find the accused guilty of that charge.
    • It is part of my task to determine the facts in this case. I am required to do this by considering all of the evidence presented in the courtroom and not just the evidence that I have summarised. I now need to direct myself as to what is and what is not evidence. In this case, we had witnesses give oral evidence, the reading of witness statements into evidence by agreement and the exhibits, including CCTV footage and the record of interview of the accused. Nothing else is evidence in the case. This includes comments about the facts made by counsel. It is my duty to decide this case only on the basis of the evidence. I must ignore all other considerations.^[3]
    • I am the judge of the facts. That means I must dispassionately weigh the evidence logically and with an open-mind, not according to any passion or feelings. My duty is to consider the evidence using my intellect and not my heart.^[4]
    • I give myself the standard directions as to how I am to assess witnesses, including on the issues of credibility and reliability.^[5]

Elements of the offences and the alternatives^[6]

64. There are, in effect, four alleged offences before me in this trial: intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury, and recklessly causing injury.^[7]
65. To prove the offence of intentionally causing serious injury, the prosecution must prove the following four elements beyond reasonable doubt:

(i) that the complainant suffered a serious injury;

(ii) that the accused caused the complainant's serious injury;

(iii) that the accused intended to cause the complainant's serious injury; and

(iv) that the accused acted without lawful justification or excuse.

66. It is not in dispute that Mr Anderson suffered a serious injury, that the accused caused that serious injury, or that the accused acted without lawful justification or excuse in doing so.
67. What is disputed is the particular state of mind required to prove this offence, namely, that he intended to cause serious injury. Given that the state of mind with reference to serious injury is disputed, I must direct myself in relation to the term 'serious injury'.
68. The first element that the prosecution must prove is that the complainant suffered serious injury. It is a matter for me whether the injury that Mr Anderson suffered was a 'serious injury'.
69. Under statute, injury means –

(a) Physical injury; or

(b) Harm to mental health

whether temporary or permanent.^[8]

70. Under statute, serious injury means –

(a) an injury (including the cumulative effect of more than one injury) that –

(i) endangers life; or

(ii) is substantial and protracted.^[9]

71. For this element to be met, the prosecution must prove that the accused caused not only an injury, but a 'serious injury'. In this context, there are two levels of harm known to the law: 'injury' and 'serious injury'.
72. It is only if I am satisfied that Mr Anderson's injury is sufficiently grave – to meet one of the above descriptions – that it is a 'serious injury' that this first element will be met.
73. The injuries in question in this trial are lower jawbone fractures. The fracture to the right side of the jawbone was complicated, in that it was comminuted (or multi-fragmented). This fracture required the insertion of a metal plate and five screws to repair the fracture. The fracture to the left side of the jawbone was very close to the joint between the skull and the lower jawbone, which is required to open and close the mouth. This fracture required the insertion of two metal plates; the first with two screws and the second with four screws. There was also soft-tissue injury and swelling associated with the fractures. Without surgical intervention, it was Dr Schreiber's opinion that Mr Anderson was likely to remain disfigured in the face, have ongoing pain and have significant problems with eating solids and speaking for the rest of his life.
74. The prosecution case is put upon the basis that the injury in question is a serious injury because it is substantial and protracted. Whether the injury is a serious injury (in the sense that it is substantial and protracted) requires a value judgment, comparing Mr Anderson's injury with the range of injuries that a person may suffer.
75. In this case, the prosecution alleges, and the defence concedes, that Mr Anderson's injuries were serious (it was common ground at trial that the broken jaw injuries amounted to ‘a substantial and protracted injury’.) I should therefore have no difficulty finding this.
76. The second element that the prosecution must prove is that the accused caused Mr Anderson's (serious) injury. In this case, it is not disputed that the accused caused Mr Anderson's (serious) injury - or injuries. I should therefore have no difficulty finding this element proved.
77. The third element relates to the accused's state of mind. This is the only element of this offence which is in issue in this trial.
78. The prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that I find caused Mr Anderson's serious injuries, he intended to seriously injure Mr Anderson.
79. This element will not be satisfied if the accused only intended to injure Mr Anderson but happened to seriously injure him. For this element to be met, the accused must have intended to seriously injure Mr Anderson.
80. It is not, however, necessary that the accused intended to inflict the specific serious injury that Mr Anderson actually suffered. This third element will be satisfied even if the accused intended to inflict a different kind of serious injury.
81. If I find that this fault element has not been proved beyond reasonable doubt, then I must find the accused not guilty of intentionally causing serious injury.
82. I will address the arguments and the evidence on this issue below.
83. The fourth element that the prosecution must prove is that the accused acted without lawful justification or excuse. In this case, this is not in issue. I should have no difficulty finding this element proven. Self-defence or defence of another are not raised and are not in issue.
84. If I find the accused not guilty of intentionally causing serious injury, I must consider the offence of recklessly causing serious injury. This is an alternative to the offence of intentionally causing serious injury.
85. The only difference between the offence of recklessly causing serious injury and the offence of intentionally causing serious injury relates to the accused's state of mind, the third element of the offence. The other three elements of the offences, which are not in issue in this trial, are identical.
86. For the third element of recklessly causing serious injury to be met, the prosecution does not need to prove that the accused intended to seriously injure Mr Anderson. Instead, the prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that I find caused Mr Anderson's injuries – or injury – he was aware that those acts would probably result in Mr Anderson being seriously injured, but decided to go ahead anyway. That is, the accused knew that Mr Anderson was likely to be seriously injured by his actions.
87. It is not sufficient for the accused to have known that it was possible that Mr Anderson would be seriously injured. He must have known that that consequence was probable. It is also not sufficient for the accused to have known that it was probable that Mr Anderson would be injured by his actions. For this element to be met, the accused must have known that it was probable that his acts would seriously injure Mr Anderson.
88. In determining this part of the test, I must be satisfied that the accused himself actually knew of the probability of serious injury resulting to Mr Anderson. It is not enough that a reasonable person would have recognised that likelihood in the circumstances.
89. In determining whether the accused knew that Mr Anderson would probably suffer serious injury due to his actions, I can draw an inference from the probability that a reasonable person would have foreseen such a consequence in the accused's situation. However, I must remind myself that although this is a legitimate step in reasoning towards a conclusion about the accused's state of mind, I must not treat this factor as decisive at the issue. It is not enough that a reasonable person would have had such an awareness in the circumstances. I must be satisfied that the accused himself actually knew that it was likely that Mr Anderson would be seriously injured if he acted in that way.
90. At this point I note the direction which I will give myself about the care required when drawing an inference in relation to the existence of an element of the offence. I will deal with this further below.
91. If I find that this fault element has not been proved beyond reasonable doubt, then I must find the accused not guilty of recklessly causing serious injury.
92. The next offence that I may need to consider is intentionally causing injury. This is an alternative to the two serious injury offences on the indictment.
93. The offence of intentionally causing injury is very similar to the offence of causing intentionally causing serious injury, with one important difference: the accused only needs to have caused, and to have intended to cause, the complainant to suffer injury, rather than serious injury.
94. It is not disputed that Mr Anderson suffered injury, that the accused caused Mr Andersons’ injury, and that he acted without lawful justification or excuse.
95. The only element in issue with respect to this offence is whether he intended to cause injury. If I find that this fault element has not been proved beyond reasonable doubt, then I must find the accused not guilty of intentionally causing injury.
96. There is one more alternative offence that I may need to consider. Recklessly causing injury. This is an alternative to all of the above described offences.
97. This offence is identical to the offence of intentionally causing injury except for the third element – the accused's state of mind. The accused does not need to have intended to cause injury. Instead, he must have been aware that his acts would probably injure Mr Anderson.
98. None of the elements of this offence is in issue.
99. In short, if I find the accused of not guilty of intentionally causing serious injury, recklessly causing serious injury and intentionally causing injury, I should have no difficulty in finding him guilty of recklessly causing injury.

Drawing of inferences^[10]

100. While Mr Anderson and others gave direct evidence about this assault and its consequences, and while I have direct CCTV footage of the episode, I remind myself that when one has regard to the real issue in this case, it is in fact a case about the drawing of inferences.
101. The ultimate issue in this case is whether the prosecution has proved that the accused held the requisite state of mind at the time he caused the serious injury. That is the principal and most important inference which I am being asked to draw in this case.
102. Indeed, this inference is elemental and as such must be proved beyond reasonable doubt.
103. I remind myself that I must take care when drawing conclusions by inference or from indirect evidence. I must consider all of the evidence in this case and only draw reasonable conclusions based on the evidence that I accept. I must not guess and must take care not to jump to conclusions.
104. Importantly, where the inference relates to proof of an element, I may only convict the accused if I am satisfied that his guilt is the only reasonable conclusion or inference to be drawn from the whole of the evidence.
105. If there is another reasonable view of the facts which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.
106. More specifically, the defence in this case has advanced an argument that there is another reasonable view of the facts in relation to the accused's state of mind, which is consistent with the accused's innocence. The essence of the defence is that the accused acted impulsively, immaturely, whilst significantly intoxicated, without any prior awareness of the power of his punches, and ultimately without any real consequential thought to what might result from his actions.
107. I will analyse the defence version in due course. Suffice to say at this stage that I direct myself that in order for the prosecution to have proved the accused’s guilt beyond reasonable doubt, I must exclude this view of the facts or defence explanation in relation to his state of mind. In order to convict, I would have to conclude that this defence is not a reasonable view. I would have to reject it or exclude it beyond reasonable doubt.
108. Put another way, I may only draw an inference that the accused held the requisite state of mind if I have excluded the defence explanation as revealed in the record of interview.
109. I remind myself that the accused bears no onus of proof. It is not necessary for me to accept his record of interview version in order to find the accused not guilty. In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, I must acquit the accused if his version in the record of interview gives rise to a reasonable doubt. It is certainly not sufficient for me merely to find that the prosecution case is preferable to the defence case.
110. In fact, even if I reject the accused's record of interview account about his thought processes (or absence of them), it is not the case that I must convict him. In such circumstances I should put those parts of the record of interview to one side and ask myself whether the prosecution has proved the accused's requisite state of mind beyond reasonable doubt on the basis of the evidence I do accept.

Expert evidence and the issue of the first punch^[11]

111. I give myself the following directions about expert evidence.
112. Dr Jason Schreiber, Forensic Physician, gave evidence about the injuries to Mr Anderson because he is an expert in the field. To a lesser extent, Dr Poh also gave opinion evidence about her observations of Mr Anderson's injuries.
113. I have already summarised their evidence above.
114. Ordinarily, witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. This is because I am the judge of the facts, and so usually it is only my opinion that is relevant.
115. However, the law says that people with specialised knowledge or training are allowed to give their opinions about matters within their field of expertise if that may assist me, as the judge of the facts, in making my decision.
116. In this case, the evidence of Doctor Schreiber and as I said, to a lesser degree, Doctor Poh, assists me in determining some issues which I canvas below.
117. Before analysing these issues, I note that as I am a judge of the facts, I am not required to accept their opinions. That said, I will accept their opinions. The defence did not challenge Doctor Schreiber's expertise or his opinions and the same can be said with respect to Doctor Poh. The effect of their evidence was common ground between the parties and I can see no good reason to depart from their opinions in my reasoning.
118. It is not in issue that the injuries sustained here, namely the broken jaw in two places, constitute a serious injury. In my view, the evidence of Dr Schreiber concerning the nature of the injury, the immediate impact upon the functioning and comfort of Mr Anderson, the surgical intervention required, the pain experienced by him and the longer term issues still outstanding, confirm that that concession was properly made. I am satisfied beyond reasonable doubt about this.
119. Dr Schreiber gave evidence that the injuries sustained by Mr Anderson were consistent with blunt trauma. Doctor Schreiber said that the injuries were consistent with Mr Anderson having been punched or kicked.
120. Dr Schreiber gave evidence that two fractures to the jaw might have been caused by one blow such as a punch or a kick, or by two or more separate such blows.
121. Dr Schreiber noted the ring structure of the jaw extending from one side of the face to the other. He said this rigid ring structure predisposes the jaw for a fracture to occur at more than one location after one impact. I took his evidence to be that it is indeed likely that a strong punch to one side will fracture the location at impact as well as the other side. He gave an analogy with a pretzel, noting it is hard to break a pretzel at one location only.
122. An issue in this case is that the expert evidence allows for the reasonable possibility that it was a single punch alone which was causative of the serious injury. This means that the expert evidence allows for the reasonable possibility that it was the first punch alone which was causative of the serious injury.
123. The defence submit that this is of some moment when I come to draw inferences about the state of the mind of the accused.
124. The defence argued that the prosecution must establish beyond reasonable doubt that the accused possessed the requisite state of mind at the moment he delivered the first punch.
125. I certainly accept these propositions and I will keep them in mind when assessing the evidence.
126. The defence have argued that a number of things flow from this. In particular, it is said that it is a reasonable possibility, or it reasonably possible, that the accused had a lesser state of mind at the time of the first punch than he may have held afterwards. I will address these arguments later.
127. The other issue to which the expert evidence goes is the question of whether the kick struck the head of Mr Anderson. The evidence of Dr Schreiber does not establish that the accused kicked Mr Anderson to the head. The serious injury is consistent with having been caused by a kick, but is equally consistent with having been caused by one or more punches. Dr Schreiber's evidence does not resolve that controversy.

Prior consistent statements^[12]

128. In this case, the direct testimony of what occurred with respect to the assault was adduced through Mr Anderson and three eyewitnesses: Mr Stanley; Mr Williams; and, Ms Cocks. In addition, the accused has given his account in the record of interview. There are a number of indirect or hearsay versions of the assault that were also led in evidence.
129. For example, Dr Poh gave evidence of a version of the assault given to her by Mr Anderson.
130. Further, in some instances, the police statements concerning the assault, completed by the eyewitnesses, were cross-examined into evidence. For example, Mr Anderson was cross-examined about what he had said in his police statement. It is not suggested that there are any inconsistent statements. It seems to me that the out of court versions are largely consistent with the evidence given in court, and were no doubt adduced for context and clarification purposes. In each case they were adopted by the witnesses.
131. I give myself a direction that these prior statements or out of course statements concerning the assault are also evidence of the assault.

Good character^[13]

132. In this case, there has been evidence led from the informant that the accused is a person of good character. I accept that he is a person of good character. He has no prior convictions.
133. I remind myself that there are two ways in which I can use this fact.
134. First, I can use it when assessing the credibility of the accused's out of court statements and his denials of the prosecution case. I direct myself that as a person of good character, he is generally thought to be more trustworthy than other people. I may be less willing to accept the prosecution's evidence than if the accused was not a person of good character.
135. Second, I can use it when determining the likelihood that he committed the offences charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution’s allegation that the accused committed these offences than I would be if he was not a person of good character. Specifically, I may be less willing to accept that the accused formed the required state of mind in relation to the serious injury charges or in relation to the alternative intentionally causing injury charge. In a similar vein, the defence say that this good character supports the claim in his record of interview that he did not appreciate the power of his clenched first or really think about the consequences of his actions. The defence contend that the evidence of good character should be taken into account in these ways, and I will do so.
136. Of course, this does not mean that I must find the accused not guilty if I accept that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts. It can only help me to determine whether or not those facts have been proven. In addition, I should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.
137. In short, I will take into account the evidence of good character in the ways submitted by the defence.

Failure to give evidence^[14]

138. The accused did not call any evidence in this case or give any evidence himself. That is his right. I remind myself that it is for the prosecution to prove its case beyond reasonable doubt and the accused is not required to call any witnesses or to give evidence. The onus of proving the accused's guilt always remains upon the prosecution, regardless of whether the accused chooses to call or give any evidence himself.
139. This means that the fact that the accused did not call any witnesses or give evidence himself cannot be used as evidence against him. That fact is not evidence in the case. I remind myself that I must decide the case only on the evidence.
140. Similarly, the fact that the accused did not call any evidence or give evidence himself does not constitute an admission by the accused and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution's case in any way. It proves nothing at all.
141. I therefore must not draw any conclusions against the accused because he did not call any witnesses or give evidence himself, or even consider the fact that he did not call or give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt.
142. I also remind myself that I must not speculate about what the accused might have said if he had given evidence. I must decide this case solely on the evidence which has been given in court.

Intoxication^[15]

143. Intoxication has been raised as an issue in this case. The defence relies on intoxication as part of its defence that the accused did not think through the consequences of his actions and thus did not form the requisite intent or state of mind.
144. The accused provides evidence in his record of interview that is relevant to the issue of his level of intoxication. I have summarised those answers above, but they included that he had been drinking for three days straight and it was the first time drinking in a while.
145. The CCTV footage is also relevant in my assessment of the accused's level of intoxication. In my view, it provides the best evidence of his actions at the time of the event.
146. Following the assault, Senior Constable Alchin stopped and spoke to two males just prior to 4.00 am, about half an hour after the assault had occurred. As I indicated above, it was common ground that one of these males was the accused. As I indicated above, the entirety of their interaction was captured on body worn camera footage, which was tendered in this trial. This is also available to me to assess the accused's level of intoxication.
147. I direct myself on the issue of intoxication as follows.
148. The fact that a person acted under the influence of alcohol does not give rise to any specific defence or excuse. This means the person cannot avoid responsibility for his acts simply by providing evidence that he was intoxicated at the time he had committed those acts.
149. However, evidence of intoxication may be taken into account when considering what a person intended when they committed a particular act.
150. On the one hand, the fact that a person was intoxicated when he or she committed an act may make it more likely that he or she acted with a certain intention by providing an explanation or motive for his or her behaviour. This may be the case, for example, where the intoxication diminishes a person's ordinary inhibitions or creates a sense of self-confidence or aggressiveness.
151. On the other hand, the fact that a person was intoxicated may make it less likely that he or she acted with a particular intent. This may be the case, for example, where because of the effects of alcohol, a person doesn't realise that his or her actions will produce a certain result. Consequently, it may not be as easy to draw inferences from the actions of an intoxicated person as it is to draw inferences from the actions of a sober person.
152. As can be seen from these examples, the relevance of intoxication may vary depending upon the extent of the intoxication and the circumstances. While in some cases it may affect a person's intention or state of mind, in others it will simply reduce their inhibitions. The mere fact that, due to intoxication, a person does something which he or she would not have done when sober does not mean it was done unintentionally.
153. I remind myself here about the directions I have already given myself concerning the drawing of inferences. I remind myself that it is not for the defence to prove that the accused was so intoxicated that he acted without the necessary intention or state of mind. It is for the prosecution to prove that the accused acted intentionally or with the requisite state of mind, despite his level of intoxication.

Post-offence conduct

154. In this trial, the prosecution adduced evidence of post offence 'conduct'.^[16] This conduct was as follows:
     • The accused's conduct in chasing Mr Stanley after the assault, because he believed that Mr Stanley had filmed the assault with his phone.
     • The telling of a lie by the accused to Senior Constable Alchin after the assault. The accused denied being in the vicinity of Eighth Street and Madden Avenue earlier in the night. Further, when Senior Constable Alchin told the accused about the assault and the fact that police were looking for four offenders, the accused pointed out that there were only two of them there, present, with Senior Constable Alchin.
155. By the end of the trial, the prosecution relied upon this evidence as only being relevant to the drawing of inferences concerning the accused's level of intoxication, to an assessment of his cognitive capacity, as well as his physical state. It is also accepted that the telling of the lie is relevant to his credit when assessing the record of interview.
156. The defence accepted that this evidence was relevant and admissible for the above purposes.
157. I direct myself that this evidence is relevant only for these purposes. I direct myself not to rely upon the above evidence as incriminating conduct amounting to an implied admission of guilt. Furthermore, apart from the ways I have described, I draw no other adverse inference against the accused arising from the evidence. I certainly do not draw any inferences of bad character or propensity to engage in wrongdoing from this evidence.^[17]
158. Returning to the question of credit (in particular, relating to the telling of the lie to Senior Constable Alchin that they had not been in the vicinity of the assault), I give myself the following direction. If I find that the accused deliberately told a lie to Senior Constable Alchin, I can use that to help me assess his credibility. If I find that the accused deliberately lied about something, I may use that fact in deciding whether or not to believe other things that he said to police in his record of interview. That is not to say that just because I find that the accused lied about one matter, I must also find that he lied about everything else. But I can use the fact that he lied to help me in determining the truthfulness of his account given in his record of interview. It is one factor to take into account. The weight that I should give to this factor will depend upon how significant I find the lie to be.^[18]
159. It is up to me to decide whether the accused deliberately lied. There is a difference between rejecting a person's statements and finding that they deliberately lied. Sometimes people make mistakes, or get confused, or genuinely cannot remember a fact. While what they say may be wrong, it is not a lie. That is, I must decide whether any of the statements were untrue, and whether he knew they were untrue at the time. However, I must not reason that because the accused told a lie, he is guilty. Evidence that he told a lie is not evidence of guilt.^[19]
160. I do find that he lied to Senior Constable Alchin on the night of the assault. I do not think that is seriously disputed. In my assessment of his account given in the record of interview, however, I give this lie and his general conduct with Senior Constable Alchin little weight. The lie and the statement about there being only two of them were uttered on a different occasion from the record of interview. They were told on an occasion when he was denying any involvement in the offending. The issue I have to decide is very different. The accused man now acknowledges in his interview not only involvement but, indeed, wrongdoing. The controversy at trial turns on assessing the level of that wrongdoing. As shall become apparent, I have rejected the accused's claim that he did not think about the consequences of his actions. But, as I have said, his lie and his conversation with Senior Constable Alchin are of little moment in my overall assessment of his credibility.

Preliminary factual issues

161. There are two preliminary factual issues which must be resolved before I embark upon my overall analysis of the evidence in relation the accused's state of mind. These are, first, whether the accused followed Mr Stanley down the street with an intention to assault him, and second, whether the accused kicked Mr Anderson to the head, or intended to do so.

The 'following' issue

162. The prosecution submitted that it was ‘clear’ that the accused's group was following Mr Stanley and Mr Anderson. The prosecution said that this was a matter that supported the inference that the accused had formed the requisite state of mind. It was said that the act of following Mr Anderson down the street was inconsistent with the notion that this assault was a rash, spur of the moment decision.
163. In response, defence counsel submitted that the evidence is open to a far less sinister interpretation. That interpretation is simply that Mr Anderson and Mr Stanley were walking down the street towards Ms Cocks' vehicle, and the accused and his group also happened to be walking down the street some distance behind them.
164. Defence counsel submitted that no inference should be drawn that the accused or his group were following Mr Stanley and Mr Anderson for any significant period of time, or with any forethought of malice or of initiating a fight. I accept this submission. Based on all of the evidence, I do not consider it open to find that the accused himself followed Mr Stanley down the street with any intention of assaulting him.

The kick issue

165. A live question in the trial is whether the accused kicked Mr Anderson to the head when he was on the ground.
166. Mr Anderson is not sure if it was a punch or a kick which struck him when he was on the ground. He was also, at some level, concussed from the first two blows or at least disorientated. It is unsurprising his evidence on what then occurred is uncertain.
167. The CCTV footage depicts the accused kick with his left foot in the direction of Mr Anderson. Mr Anderson cannot be seen in the footage at the time the kick is delivered; Ms Cocks' car having blocked the view of Mr Anderson. It is not clear from the footage where the kick lands on Mr Anderson's body, or, indeed, whether it landed at all.
168. Importantly, the accused clearly admitted in his interview with police that he kicked Mr Anderson. He says, 'So I punched him and then, yeah, I kicked him.' Later in the interview, when asked to describe what happened, the accused said, 'I threw a punch at him, then he hit the ground so I kicked him and then chased the other fella.' Equally, in the interview, the accused said that he could not remember where he kicked Mr Anderson.
169. The prosecution acknowledged that the complainant himself could not say whether he was punched or kicked whilst on the ground, and that, from a viewing of the CCTV footage, it cannot be seen where the kick lands. The prosecution, however, submitted that the kick was delivered to the upper body area and that I can find that it was delivered to the facial area. In support of this submission, the prosecution pointed to the fact that Mr Anderson himself does not say that he received any injuries other than to his face.
170. The defence submitted that whilst the accused kicked Mr Anderson, where and how forcefully this kick connected is simply not known and not in evidence. Counsel for the defence submitted that there is simply insufficient evidence for me to find that Mr Anderson was kicked to the face or to the head. Counsel submitted that the CCTV does not show where Mr Anderson's kick connected with Mr Anderson's body.
171. In response to the prosecution argument in relation to the absence of any evidence of injuries to Mr Anderson's body other than to the head, defence counsel submitted that this absence of evidence does not necessarily lead to the conclusion that Mr Anderson was not kicked to any other part of his body.
172. Defence counsel submitted that it would be impermissible speculation for me to find that the accused kicked Mr Anderson to the head or that the kick caused Mr Anderson's injuries.
173. In considering the evidence as a whole, I am satisfied that the accused kicked Mr Anderson and that the kick struck him. When viewed within the context of the entire assault, I would not hesitate to draw the inference that it did land somewhere. The accused was not participating in a practice run or a pantomime; he was in complete control and Mr Anderson was defenceless. The accused's admission – or admissions – also establish this, namely, that the kick landed. That is what he effectively said. In my view, it is also clear from the CCTV footage that the accused delivered the kick with some vigour.
174. I am not, however, satisfied that the kick connected with Mr Anderson's head, or that the accused intended for the kick to connect with Mr Anderson's head. The state of the evidence is too vague from which to draw this conclusion. In this respect, I am unable to act on Mr Stanley's evidence. He is not the best historian of what occurred here. As both parties acknowledged in their addresses, his account that several persons were kicking Mr Anderson must be wrong. It is common ground that there was only one assailant here, the accused man, and there is no other evidence of there having been more than one kick. In the final result on this issue, I accept the defence submission that there is simply insufficient cogent evidence for me to draw the inference which I am invited by the prosecution to draw.
175. I now turn my analysis to the central issue, namely, the accused’s state of mind at the time of the assault.

My findings on the central issue: the state of mind element

176. The acts of an accused person may provide the most convincing evidence of intention or state of mind. An intention to cause serious injury, or the accused's awareness that when he committed the relevant conduct that it would probably cause serious injury, might be inferred from the nature of the accused's conduct, especially where the immediate consequence of the acts is obvious and must have been clear to the assailant.^[20]
177. In my view, that is so here.
178. I am satisfied, beyond reasonable doubt, that the nature of the accused's acts show that the accused foresaw the probability that serious injury (a substantial and protracted injury) would result from his punches, including his first punch.
179. As shall become apparent, I find that he held this state of mind throughout the assault and when each punch and, indeed, the kick was delivered.
180. I have reached this conclusion for a combination of the following reasons.
181. First, the three punches were all aimed, with significant force, directly at Mr Andersen's head, more specifically the facial area, an obviously vulnerable part of the body, where the danger of grave injury is obvious. In my view, the only reasonable inference open is that the accused intended that these blows would strike Mr Anderson's facial area, as indeed they did. I also infer that he chose that part of the body (as distinct from Mr Anderson's torso or his arms, for example) because he was seeking to maximise the impact of those blows. This is not a case where it might be said that the clenched-fist punches were intentionally thrown but the head was not targeted. Moreover, each of the blows against Mr Anderson were delivered with great vigour and force. I find that the accused really put his weight behind each of these blows. They were hard blows, including the first blow. As much can be observed on the CCTV footage. Mr Anderson himself said of the first strike that he was 'whacked' or 'king-hit' from behind.
182. Even though it is not known exactly where the kick landed, it was similarly delivered with significant energy. I can see as much from the CCTV footage.
183. There was also nothing half-hearted about the last clenched-fist punch, which struck Mr Anderson to the facial area when he was, effectively, on his knees or in a half-upright position.
184. Second, when each of the three punches and the kick was delivered, Mr Anderson was unable to protect himself. The first blow was, effectively, delivered from behind Mr Anderson. Mr Anderson did not expect the blow. I infer that the accused well knew that. The second blow came in the immediate aftermath of Mr Anderson having been stunned by the 'king-hit'. He was then kicked once, whilst lying, helpless and groggy, on the road. When struck with the last punch, the CCTV depicts that Mr Anderson was on his knees or in an only half-upright position, disorientated. He was plainly disabled and unable to offer any protection to himself. From a standing position, the accused struck Mr Anderson with a powerful, slightly downward punch to his head. Mr Anderson's defencelessness throughout the assault, and his consequential exposure to danger and harm, must have been apparent to the accused.
185. When he was interviewed by police, the accused was asked whether he thought Mr Anderson was in a position to defend himself once he was on the ground. The accused answered, 'probably not.' The defence argued that this answer was not an admission that the accused thought that way at the time of the offending, but was rather an answer given upon reflection, looking back. I accept this. I will put that to one side. But I infer that the accused well understood Mr Anderson's vulnerability from the objective facts themselves, as revealed by the CCTV footage.
186. Third, the fact that this assault involved multiple hard blows to a vulnerable person in quick succession illuminates the state of mind of the accused.
187. It is accepted that the assault was spontaneous, lacking in any personal motive, and was of very short duration (some 10 seconds).
188. Still, the conduct involved multiple applications of force: two punches to the head in quick succession while Mr Anderson was standing, followed by a kick to Mr Anderson once he had been felled and while he was on the ground, and finally by a further punch to his head when Mr Anderson was on his knees or in a half-upright position.
189. Further, prior to the first 'king-hit', the accused man can be seen approaching the interaction between his friends and Mr Anderson. He does so with apparent calmness. I think he can be seen standing back, weighing up the situation before launching into the attack. I infer that the accused then made a deliberate decision to take advantage of Mr Anderson's vulnerability when he 'king-hit' him, effectively, from behind.
190. The same can be said of his decision to kick him on the ground, and then the decision to throw the last punch, when Mr Anderson, as I said before, was on his knees (or in an only half-upright position), effectively incapacitated and grossly exposed. Immediately after the last punch, the accused appears to stand over Mr Anderson for a moment, again weighing up whether any further action was necessary. He only walks away after he is directed away by one of his friends.
191. I infer from the acts themselves that the accused acted with a continuity of purpose – to disable Mr Anderson by felling him and by ensuring that he stayed down. To adopt the colloquial, I think the accused wanted to 'floor' Mr Anderson – which is what he did, effectively, twice.
192. The number and nature of the blows, which were all forceful, showed an ongoing level of commitment on the part of the accused to achieve this goal. The combination reinforces the inference that he acted with resolve to expose Mr Anderson to the likelihood of grave harm. It was, in this sense, a calculated attack carried out with a degree of deliberation. This case can be contrasted with a case involving a split-second solitary strike, quickly regretted, where the drawing of inferences as to state of mind might be more obscure.
193. The defence has, however argued that the prosecution must establish, beyond reasonable doubt, that the requisite state of mind corresponds with the delivery of first punch. The defence submits this is because the expert evidence allows for the reasonable possibility that it was the first punch alone which was causative of the serious injury. More specifically, the defence has contended there is a reasonable possibility that the accused might have held a lesser state of mind at the time of the first punch, when the serious injury may have been caused, in the sense that he may not, at that very point in time, have fully appreciated the power of his clenched fist. It would not be sufficient for the prosecution to establish, the defence submits, that such an intention or recklessness arose after the time of the first punch. The defence submits that we cannot get into the mind of the accused man to know whether, at the time of the first punch, he had even considered that he would deliver any further blows.
194. As I have indicated above, I accept that there is a reasonable possibility that the serious injury was caused by the first punch. If that were so, this must have been accompanied by the requisite state of mind in order for the accused to be guilty of the serious injury offences charged.
195. However, I otherwise reject the defence fragmentation argument as artificial in the extreme. More specifically, it is fanciful to suggest that the accused may have held a different and lesser state of mind when he delivered the first punch than when he delivered the subsequent blows. This was no one-punch case.
196. I agree with the prosecution argument that what the accused did to Mr Anderson was done in one series of continuous movements, carried out in quick succession over a matter of seconds, with the same intent or state of mind throughout. The character of the attack, as revealed by the evidence, never changed. This was, from beginning to end, a gratuitous and unrestrained attack upon a vulnerable and exposed Mr Anderson, carried out with the same method (blows, largely with clenched fists to the head), the same level of ferocity and the same apparent purpose, namely to fell Mr Anderson and to keep him down. It was ‘single-minded’.
197. The question of whether the accused had the necessary intent or state of mind can only be inferred from all of the surrounding circumstances, including from all his punches to the head and his kick to the body of Mr Anderson. While I proceed upon the basis that the kick was not aimed at his head and did not strike his head, the strength of force with which the kick was delivered, as revealed by the CCTV footage, still sheds light upon the accused's aggression and frame of mind towards Mr Anderson.
198. Expressed in a slightly different way, each of the accused's blows illuminates his state of mind at the time he delivered the other blows.
199. Approached in this way, I have concluded that the accused held the same state of mind from the first punch to the last. I do not think that there is any realistic room, on the facts of this case, for any variation of the accused's state of mind. The close relationship in time, nature, method and purpose between each of the blows in this attack bespeaks of it being the one event, accompanied with a singular state of mind, as I said, from the first blow to the last.
200. Further, the first blow was delivered with such force that, even when viewed by itself, it supports a cogent inference that grave harm was contemplated. Dr Schreiber gave evidence that significant force would be required to cause the type of injury sustained. The lower jawbone is a solid structure because of the complex functions it performs, he said. To the extent that the term 'king-hit' is intended to convey a punch thrown with tremendous force, then this aptly describes the first punch which the accused delivered. As much is also apparent from a viewing of the CCTV footage.
201. Most tellingly, the accused was not, in my view, taken by surprise at the force or impact of his first or second clenched-fist punch to Mr Anderson's head. It was plain to the accused to see that he had felled Mr Anderson and largely disabled him, yet the accused did not back away or alter his behaviour or responses. Far from expressing concern or alarm at the consequences of his clenched-fist punch (the first or the second) or desisting, the accused persevered with his attack, unabated. In my view, this conduct is patently inconsistent with the hypothesis that he may have been unaware of just how dangerous his clenched-fist punch could be when used to deliver a hard, clenched fist punch to Mr Anderson's head, or that he held a lesser state of mind at the time of that first punch.
202. In short, the entirety of his conduct bespeaks a man who committed himself to a singular course. The seamless continuum of purpose across the 10 seconds conveys the presence of one continuing state of mind.
203. Fourth, I now turn to deal more directly with the defence raised in this case, namely, that a combination of factors, including his intoxication and his immaturity, raise the reasonable possibility that the accused just did not engage in any real consequential thought as to what might result from his actions.
204. I appreciate that these factors are all relied upon in combination and I need to address whether their combined force raises a reasonable doubt about his state of mind.
205. That said, for the purposes of analysis, they need to be broken down, to some degree.
206. Turning first to the evidence of intoxication.
207. The defence did not contend that the accused did not have the capacity to form a specific intent due to his level of intoxication. On the other hand, as the prosecution acknowledged, the accused was not 'stone-cold sober'.
208. I accept that the accused had been drinking and that he was under the influence of alcohol, to some extent. I have, however, concluded that he was not so intoxicated that he could not properly or sufficiently reason or make decisions about the consequences of his actions – or, more specifically, these actions.
209. Certainly, his level of intoxication did not so impair or cloud his capacity to avert to the consequences of his actions so as to raise a reasonable doubt about whether he formed the requisite state of mind (in relation to the recklessly causing serious injury charge).
210. The fact that he may have been drinking over three days does not, by itself, tell me much about his level of intoxication at the time of the assault.
211. The CCTV footage of the assault is the most powerful evidence available as to how the accused was conducting himself in the moments immediately prior to the incident, during the incident itself and immediately afterwards.
212. It showed him to be functioning reasonably. His punches were delivered with coordination and accuracy. He appeared balanced and in control of his movements. I have already canvassed the evidence which shows that the accused weighed up various decisions during the interaction, and that he acted with a level of purpose. I will not repeat that evidence.
213. He was also sufficiently alive to his environment to focus upon the risk of apprehension to which he was exposed by the possible filming of his assault by Mr Stanley. He was able to immediately respond by chasing after Mr Stanley, at considerable speed, with apparent purpose.
214. I place less weight on the fact that he told a lie to Senior Constable Alchin after the incident. The lie was not sophisticated. Similarly, I make the same comment about the fact that he noted that there were only two of them there present with Senior Constable Alchin, and not four. That said, these statements do generally show that he had his wits about him. I do detect some evidence of fatigue and intoxication from the body-worn camera footage. The accused speaks relatively slowly at times during the interaction and can also be seen to have his eyes closed for periods. Yet he remained appropriately responsive to all the questions asked of him by Senior Constable Alchin, and his demeanour was of a person who was reasonably lucid.
215. I accept that his intoxication may have affected his decision-making and reasoning with respect to the consequences of his actions, to some degree. I also think his intoxication might have indeed disinhibited him to some extent. It may offer some explanation for his unprovoked aggression. However, overall, I find intoxication in this case played a relatively modest role on both issues.
216. The defence also says that the attack was impulsive and immature reaction to a verbal altercation, which raises, the defence submit, the reasonable possibility that the accused acted without giving any or sufficient thought to the consequences of his actions.
217. I accept that the accused did engage with Mr Anderson because of this verbal altercation. I also make allowance for some immaturity and impulsivity on the part of the accused. This may offer (perhaps in combination with his intoxication) a partial explanation for his conduct.
218. It is, however, quite another thing to say that these factors, alone or in combination, materially obscured his capacity to engage in basic cause and effect reasoning, namely, assessing and contemplating the level of harm likely to be caused by a hard, clenched fist punch to the head of an unsuspecting victim, let alone several such blows.
219. There is no evidence (including expert evidence) that the accused's psychological profile at the time was such as to significantly diminish his capacity to reason about the consequences of his actions.
220. The verbal altercation also placed no pressure upon the accused.
221. The accused's actions were not responsive to a fast-changing emergency, or to a threatening situation which might have clouded his judgement or impaired his capacity to form a relevant state of mind. The accused appeared neither confused nor disoriented. I repeat my finding that the accused indeed appeared to size up the situation before launching at Mr Anderson.
222. In the end, I reject the explanation, effectively advanced in the record of interview, that the accused gave no real thought to the consequences of his actions. It is not a reasonable explanation. It is implausible. What the accused actually did (as revealed in the CCTV footage) is more powerful evidence of his state of mind than what he later said in the record of interview, after the event. The evidence establishes that he was in a position to appreciate the consequences of his actions, and I infer that he did. At the risk of repeating myself, the number of blows delivered by the accused, the consistent force and accuracy with which they were delivered, his repeated targeting of the head of a defenceless and exposed victim, and the apparent resolve with which he acted, leads me to the conclusion that the accused understood what he was doing and the probable consequences.
223. His claim of not thinking through his actions advanced in the record of interview are reflections made after the event, no doubt with some real regret. It was indeed a senseless act. To some degree, I see that the accused is acknowledging that this was a senseless act without any logical purpose, but I do not accept that it was an unthinking act in the sense that the accused acted without averting to the consequences of his actions. The defence explanation ultimately cannot alter proven facts, and those facts are most potently established by the CCTV footage of the assault itself.
224. Fifth, the defence effectively submit I should be slower to draw inferences with respect to his state of mind in relation to the serious injury charges, and the intentionally causing injury charge, than perhaps I might have been had a dangerous weapon been employed. So much is generally true and I am mindful of this point. That said, a clenched fist can be extremely dangerous when used to deliver a hard punch to a person's head. This too can say much about a person's state of mind.

Conclusion

225. I have concluded that the factors relied upon by the defence did not so impair or obscure the accused's thinking as to raise a reasonable doubt about whether he reasoned that his conduct engaged in here was likely to seriously injure. I am satisfied beyond reasonable doubt that he understood this danger but went ahead anyway.
226. On the other hand, factors like his intoxication, his youth and associated impulsivity, the absence of a weapon, the absence of a motive personal to the victim, and the relative brevity and spontaneity of the episode do collectively cause me to hesitate in finding to the criminal standard that the accused actually intended to cause Mr Anderson serious injury. It is a very high standard to find beyond reasonable doubt that he willed that outcome. After some consideration, I find myself drawing back from making the finding that the accused man intended to bring about serious injury. I find the accused man not guilty of Charge 1, intentionally causing serious injury.
227. As stated, however, I am satisfied beyond reasonable doubt that the accused foresaw the probability that serious injury would result from his acts. He knew or appreciated this much. He acted knowing that grave consequences would probably result. All the other elements of the offence of recklessly causing serious injury are not in issue. I am satisfied that all of the elements for this offence are made out and I find the accused man guilty of Charge 2, recklessly causing serious injury. They are my reasons.

---

^[1] Crimes Act 1958 (Vic) s 16.

^[2] Crimes Act 1958 (Vic) s 17.

^[3] Judicial College of Victoria, Victorian Criminal Charge Book, at [1.5.1].

^[4] Ibid.

^[5] Ibid [1.6.1].

^[6] Ibid [7.4.2.7].

^[7] Criminal Procedure Act 2009 (Vic) s 239.

^[8] Crimes Act 1958 (Vic) s 15.

^[9] Ibid. Note: it can also mean the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

^[10] Judicial College of Victoria, Victorian Criminal Charge Book, at [3.6].

^[11] Ibid [4.14.1.1].

^[12] Ibid [4.15.3].

^[13] Ibid [4.3].

^[14] Ibid [4.11.1]; Jury Directions Act 2015 (Vic) s 41.

^[15] Judicial College of Victoria, Victorian Criminal Charge Book, at [8.7.2].

^[16] Jury Directions Act 2015 (Vic) s 18.

^[17] Ibid s 27.

^[18] Judicial College of Victoria, Victorian Criminal Charge Book, at [4.6.4].

^[19] Ibid.

^[20] Thomas [1960] HCA 2; (1960) 102 CLR 584, 596-597; R v Stokes and Difford (1990) 51 A Crim R 25, 30.