|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of Victoria - Court of Appeal |
Last Updated: 3 February 2012
COURT OF APPEAL
---
|
WHERE HELD
|
|
|
DATE OF HEARING
|
|
|
DATE OF JUDGMENT
|
|
|
MEDIUM NEUTRAL CITATION
|
|
|
DPP (Vic) v Lewis-Smith (Unreported, County Court of Victoria, Judge
Pullen, 6 August 2010 (date of verdict), 10 December 2010 (date of
sentence))
|
---
CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applicant assaulted victim at children’s football camp – Convicted of intentionally causing serious injury – Trial judge directed jury that it could not consider statutory alternatives of intentionally causing injury and recklessly causing injury if it was satisfied that applicant had caused victim serious injury – Exception taken – Trial judge redirected jury in general terms regarding process to be followed when considering alternative verdicts – Crown conceded on appeal that earlier direction was erroneous – Whether redirection adequately corrected earlier error – Leave to appeal against conviction granted and appeal allowed – Redirection was not sufficient to correct error – Applicant’s conviction set aside and judgment of conviction of intentionally causing injury entered pursuant to s 277(1)(c) of Criminal Procedure Act 2009 – Applicant sentenced to two years’ imprisonment with nonparole period of 16 months – R v Moon [1969] 3 All ER 803 – Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603.
---
|
APPEARANCES:
|
Counsel
|
Solicitors
|
|
For the Applicant
|
Mr M Croucher SC
|
Doogue & O’Brien
|
|
For the Crown
|
Mr P Kidd SC
|
Mr C Hyland, Solicitor for Public Prosecutions
|
WILLIAMS AJA:
1 On 6 August 2010, David Lewis-Smith, then a 54-year-old father of (at least) two children, was convicted after a trial in the County Court before her Honour Judge Pullen and a jury of one count of intentionally causing serious injury. On 10 December 2010, Judge Pullen sentenced LewisSmith to a term of imprisonment of four years with a non-parole period of two years and six months. LewisSmith now seeks leave to appeal both his conviction and the sentence imposed upon him.
2 LewisSmith and his two young sons attended a children’s football camp at the end of the 2007 football season. At that camp, one of LewisSmith’s sons was reproved by Wayne Naughton, the father of another child, for what Naughton perceived to be selfish and unseemly behaviour with respect to a trampoline upon which other children were playing or trying to play. The reproof included physically holding the boy as he walked him towards his father, the applicant, to be further reprimanded.
3 Upon seeing his son being ‘manhandled’ by Naughton, Lewis-Smith attacked Naughton ― punching him to the right side of his face with a clenched fist causing him to fall to the ground. He then punched Naughton to the left side of his face and continued punching him while he was on the ground. LewisSmith was ultimately restrained and eventually charged with intentionally causing serious injury and, in the alternative, recklessly causing serious injury.
4 The injuries which Naughton suffered included bilateral black eyes, a laceration to his right forehead and an uncomplicated blow out fracture to the floor of his left orbit. Notwithstanding the fracture to the eye area of Naughton’s skull, he played football the day after the assault and did not consult a doctor until later. His recovery was effected without significant medical intervention.
5 On its face, the jury’s verdict meant that it was satisfied beyond reasonable doubt that Lewis-Smith intended to inflict serious injury upon Naughton and in fact did so. It must also have been satisfied that Lewis-Smith was not acting in lawful defence of his son at the relevant time. In sentencing Lewis-Smith, the trial judge took into account two prior findings of guilt in respect of offences of violence, albeit offences which were then approximately 10 years old. Each involved the infliction of injury.
6 The applicant’s sole ground of appeal with respect to his conviction concerns a misdirection by the trial judge when dealing with the statutory alternatives of intentionally causing injury and recklessly causing injury. In dealing with those alternatives, the trial judge made the error of telling the jury that it could not consider them if it concluded that Mr Naughton had suffered a serious injury. In giving this direction, her Honour did not advert to the distinction between the mental elements applicable to the charged offences and those applicable to the statutory alternatives. She did not tell the jury that it could consider the lesser alternatives if it was satisfied that Mr Naughton had suffered a serious injury but was not satisfied that LewisSmith intended to cause or was reckless as to causing him serious injury. Her Honour said:
I am now going to turn to those two alternatives. You only turn your mind to those two alternatives, if you are not satisfied beyond reasonable doubt that the injury sustained by Mr Naughton was a serious injury. You only go to those two if you are not satisfied that his injury was a serious injury. If you are satisfied that the injury was a serious injury then you are only required to consider your verdicts on Counts 1 and 2. You only need to consider 2, if you find him not guilty of Count 1.If you are not satisfied beyond reasonable doubt that the prosecution have proven Mr Naughton suffered a serious injury, but are satisfied beyond reasonable doubt he suffered an injury, then you do have to consider these two counts.[1]
7 Subsequently her Honour again referred to the fact that the jury would only be considering the statutory alternatives if it was not satisfied that Naughton suffered a serious injury.[2] Shortly later again, she repeated, in substance, the original direction:
Now, as I say, the only difference between that and the offence of intentionally causing serious injury is the word serious is missing. It is the only difference. All the elements remain the same and I am not going to go over them again, I think I have now explained them.[3]
Her Honour then completed her directions as to the statutory alternatives in a conventional form.
8 In telling the jury that the only difference between the offences with which LewisSmith was formally charged and the lesser statutory alternatives was whether Naughton had suffered a serious injury or simply an injury, the trial judge’s directions were erroneous ― a conclusion not challenged by the Crown on this appeal. In making the statements that she did, her Honour neglected to inform the jury of the important difference between the mental elements of the offences with which Lewis-Smith was formally charged and those which applied to the statutory alternatives.
9 This error was brought to the trial judge’s attention by way of an exception to her charge taken at the appropriate time by Lewis-Smith’s counsel. After counsel took the exception, there followed considerable discussion during which he clearly articulated the error he correctly identified in the charge and sought a redirection. He referred to a danger of the charge, if uncorrected, inducing the jury to compromise with respect to the relevant mental element.
10 Notwithstanding opposition by the prosecutor, who argued that the judge’s directions to that point had sufficiently explained the elements of intentionally causing serious injury to the jury, her Honour, in the course of her charge, redirected the jury on this matter as follows:
The other point I wanted to clarify, if there was any doubt in anyone’s mind, is the process you must adopt when you go through these four alternatives, if you go through them all, but this is the process.
You then must look at the next charge, which is reckless cause serious injury. Again, if you are not satisfied beyond reasonable doubt of each and every one of those elements, whatever the element is, each and every one of those elements, you must find him not guilty and you then proceed to consider intentionally cause injury. Again, you must be satisfied beyond reasonable doubt of every single one of those elements before you can find him guilty.If you are not satisfied beyond reasonable doubt of any one of those elements, whatever the element is, you must find him not guilty and you then proceed to the charge of reckless cause injury. Again, you must consider each and every one of those elements. If you are satisfied the prosecution have proven each and every one of those elements then you must find him guilty. If the prosecution have not proven beyond reasonable doubt any one, no matter which one of those elements, you must find him not guilty.
You must not arrive at your verdict through a compromise, you understand. I will have more to say about that in just a sec.[4]
11 Provided the jury is conscious of the different elements comprising each of the offences to which the trial judge referred, this redirection appropriately instructs them, although her Honour does not appear to have completed what she intended to say concerning the question of ‘compromise’ by the jury. Apart from a subsequent passing reference, without explanation, to the jury’s duty not to compromise, she did not say anything further on this topic.
12 The arguments in this Court were succinct. Counsel for the applicant argued that because her Honour’s redirection did not draw the jury’s attention to her earlier erroneous direction and, in plain terms, correct the error, the jury was left, at least, in a state of confusion and quite possibly still under the misapprehension engendered by the earlier misdirection. In other words, the redirection did not correct the earlier misdirection such that this Court could be confident that no miscarriage of justice has occurred.
13 Counsel for the Crown argued that on many occasions throughout her charge the trial judge had spoken of the elements of each of the offences, including the elements of intentionally causing serious injury and intentionally causing injury, such that the jury could have been under no misapprehension as to the way in which it should approach its consideration of the evidence in reaching a verdict.
14 We cannot accept the Crown position. The trial judge’s failure to draw the jury’s attention to her earlier misdirection meant that her redirection might well have been seen by the jury as being subsequent to and qualified by what she had earlier, quite emphatically, said ― namely that the only difference between the offence of intentionally causing serious injury and that of intentionally causing injury was the severity of the injury. In R v Moon,[5] Salmon LJ, in the course of delivering the judgment of the Court of Appeal, said concerning the correction of an erroneous instruction to a jury:
It would be necessary, as counsel says, for the learned assistant recorder, or judge, or whoever has given the direction, to repeat the direction which he has given, to acknowledge that that direction was quite wrong, to tell the jury to put out of their mind all that they had heard from him about [the relevant topic] up to that moment, and then in clear terms, which would be incapable of being misunderstood by a jury, tell them plainly and simply what the law is.[6]
Although his Lordship was there speaking about a misdirection relating to the onus of proof, his comments are apposite in the present circumstances. The redirection in this case was not sufficient to correct the earlier error.
15 We consider that the application for leave to appeal should be granted, the appeal treated as instituted and heard instanter and allowed and the applicant’s conviction on the charge of intentionally causing serious injury set aside.
16 In his submissions regarding the disposition of this appeal, counsel for the applicant argued that the Court should, instead of ordering a new trial, exercise its power pursuant to s 277(1)(c) of the Criminal Procedure Act 2009 to convict the applicant of the lesser offence of intentionally causing injury. To follow this course, the Court must be satisfied both that the applicant could have been found guilty of that other offence and that the jury must have been satisfied of facts that prove he was guilty of it. The Court may then impose a sentence on the applicant that is no more severe than that which was imposed for the original offence.
17 Section 277(1) relevantly provides:
(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must—(a) order a new trial of offence A; or
(b) enter a judgment of acquittal of offence A; or
(c) if—
(i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and
(ii) the court is satisfied that the jury must have been satisfied of facts that prove the appellant was guilty of offence B—
enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; ...
18 The Crown concedes that it would be open to the Court in the circumstances of this case to adopt that course.
19 The misdirection giving rise to the successful appeal here relates to the consequences of the jury being satisfied as to the existence of a serious injury. The risk created by the trial judge’s misdirection was that the jury may have reached a verdict of guilty of the charged offence of intentionally causing serious injury in circumstances where it might not otherwise have been satisfied of the requisite intent to cause serious injury, as opposed to injury. In other words, the finding of guilt may have resulted from the misconception that, in those circumstances, a finding of guilt of the alternative statutory offence of intentionally causing injury was unavailable because it was satisfied that the victim had suffered a serious injury caused by the applicant.
20 In Spies v The Queen,[7] the High Court considered the operation of the New South Wales equivalent of s 277(1)(c) of the Criminal Procedure Act 2009, namely s 7(2) of the Criminal Appeal Act 1912 (NSW). Gaudron, McHugh, Gummow and Hayne JJ said:
The power conferred by s 7(2) of the Criminal Appeal Act is most likely to be exercisable in situations where the ‘other offence’ is one which is wholly within the ultimate facts of the offence on which the accused has been convicted and which the court sets aside in the appeal. The classic case is a conviction for assault occasioning grievous bodily harm where the court is of the opinion that the prosecution has failed to prove, or there has been a misdirection on, the issue of grievous bodily harm. In those circumstances, the entry of a conviction for common assault would be a clear case for the exercise of the power under s 7(2).[8]
21 It does appear in this case that, having regard to the evidence, the jury verdict necessarily means that the jury was satisfied of facts which prove that the applicant was guilty of the statutory alternative lesser offence of intentionally causing injury. In light of the misdirection, the applicant should be convicted of that offence.
22 Bearing in mind the submissions as to relevant sentencing considerations and assisted by the learned sentencing judge’s detailed and careful sentencing remarks, we consider that he should be sentenced to two years’ imprisonment with a nonparole period of 16 months.
23 The orders of the Court will be:
1. That the application for leave to appeal against conviction be granted.
2. That the appeal be treated as instituted and heard instanter and allowed.
3. That the conviction sustained by the applicant in the Court below and the sentence passed thereon be set aside.
4. That a judgment of conviction of intentionally causing injury be entered pursuant to s 277(1)(c) of the Criminal Procedure Act 2009 and the applicant be sentenced for this offence to two years’ imprisonment with a non-parole period of 16 months.
It is declared that the period of 489 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
The Court grants to the applicant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.
[1] Transcript of Proceedings, DPP (Vic) v Lewis-Smith (County Court of Victoria, Judge Pullen, 6 August 2010) 408 line 29 – 409 line 11.
[2] Ibid 409 lines 17–20.
[3] Ibid 410 lines 21–25.
[4] Ibid 454 line 21 – 455 line 19.
[6] Ibid 803.
[7] [2000] HCA 43; (2000) 201 CLR 603.
[8] Ibid 611 [23]. See also Hughes v The King [1951] HCA 34; (1951) 84 CLR 170.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2011/450.html