AW v R

Section 35(2) of the Crimes Act

1. In order to provide context to one of the directions the trial Judge gave the jury on Count 2, it is necessary to outline some legislative background to s 35(2) of the Crimes Act.
2. Section 35(2) of the Crimes Act currently provides: (2) Reckless grievous bodily harm A person who - (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty - Imprisonment for 10 years.
3. Prior to 27 September 2007, s 35 created the offence of malicious wounding or infliction of grievous bodily harm. The mental element of malice was defined in s 5 to include acts done "with intent to injure some person or persons… without lawful cause or excuse, or done recklessly or wantonly". On 27 September 2007, the Crimes Amendment Act 2007 (NSW) repealed and replaced s 35. Under the new s 35(2), it was an offence to cause grievous bodily harm to any person "recklessly". The mental element of recklessness was not defined in the Act beyond including "intention or knowledge".
4. In Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93, Beazley JA (James and Hall JJ agreeing) held that the element of recklessness required foresight of the possibility of the relevant consequence which, in relation to s 35(2), was grievous bodily harm: at [82]. In response to Blackwell, Parliament enacted the Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW), which relevantly introduced the requirement of recklessness "as to causing actual bodily harm" (being a lower standard than Beazley JA described in Blackwell).

The trial Judge's directions

1. Before giving the jury directions concerning the law, the trial Judge briefly summarised how the Crown and defence put their respective cases. His Honour described the Crown case on Counts 1 to 3 as comprising the applicant yelling at CS, dragging her inside the house by her hand, picking her up by her upper arms, lifting her over his head and throwing her to the ground in the hallway with such force that she bounced, breaking her arm. His Honour summarised the defence case on these counts as being "that this incident simply did not occur and that the injury to [CS]'s arm was in fact caused by her falling off the monkey bars at the premises where the family was then living".
2. His Honour then turned to the elements of the offences. In relation to Count 1, being the charge of causing grievous bodily harm with intent to do so, his Honour identified the elements of that offence as being that the applicant, at the time and place alleged: (i) caused grievous bodily harm to CS; and (ii) intended to cause grievous bodily harm. In relation to Count 2, his Honour identified the elements of the offence as being that the applicant, at the time and place alleged: (i) caused grievous bodily harm to CS; and (ii) did so recklessly. As to Count 3 which was the charge of assault occasioning actual bodily harm, his Honour identified the elements as relevantly involving that the applicant: (i) assaulted CS; and (ii) because of the assault CS suffered actual bodily harm.
3. Turning next to directions on the elements, his Honour stated that as all of the counts, save for one, involved an allegation that the applicant assaulted another person, he would start with what the law says is an assault. In that regard, his Honour directed the jury as follows: "i) A striking, touching or application of force by the accused to another person; and ii) That such conduct of the accused was without the consent of that other person; and iii) That such conduct was intentional in the case of counts 1, 3, 4, 5, 6, 7, 8 and 9 and in the case of count 2 was reckless, in that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he was about to do, but yet took the risk that it might happen; and iv) That such conduct was without lawful excuse. The Crown must satisfy you beyond reasonable doubt of each of these four elements before you can convict the accused of any of the counts 1 - 9 that are before you. The slightest touch is enough to amount to an assault and it does not have to be a hostile or aggressive act or one that causes the complainant fear or pain, although here it is the Crown case that the conduct of the accused relied upon was both hostile and aggressive and that he did in fact cause both fear and pain to each of the children. The conduct must be without the consent of the children and that does not appear to be an issue in this trial." [Emphasis added.]
4. Although the first element of the charges the subject of Counts 1 and 2, causing grievous bodily harm, would involve commission of an assault, assault was not an element of either charge. In its submissions, the Crown described the assault direction as redundant as to those counts.
5. The trial Judge next moved to the issue of intent and intention, stating: "Intention may be inferred or deduced from the circumstances in which an assault occurs, and from the conduct of an accused before, at the time of, or after he did the specific act that is relied upon. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time. In some cases, a person's acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving that specific result. Let me assist you with an illustration of that direction. It one person hits another on the head with a hammer, it is (you may think) both obvious and inevitable that that person will receive a serious bodily injury as a result. If, therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter for a jury to conclude that he did so with the intention of inflicting serious bodily injury upon that other person. You may think that there is no difficulty at all about coming to such a conclusion. But you must remember that you are considering the intention of the accused not what your intention might have been had you been in his position, nor the intention of any theoretical person."
6. Immediately following the direction on intent, the trial Judge gave the following direction on recklessness which was specific to Count 2: "Turning then to recklessness. The element of recklessness is relevant to count 2 and will be made out if you are satisfied beyond reasonable doubt that the injury to [CS] was inflicted recklessly by the accused. An injury is inflicted recklessly if the accused realised that grievous bodily harm may possibly be inflicted upon [CS] by his actions, yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that he actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm occurring." [Emphasis added.]
7. Next, in relation to the meaning of "grievous bodily harm", his Honour directed the jury that it meant "really serious bodily injury", and was a more serious form of injury than actual bodily harm. As to "actual bodily harm", his Honour directed them that the term included "any hurt or injury that interferes with the health or comfort of a person", noting that the hurt or injury did not need to be permanent but did need to have more than a fleeting or trivial effect on the person. In summarising the cases of the Crown and the defence the following day, the trial Judge noted that the Crown contended that the injury to CS's arm was really serious bodily injury, whereas the defence contended that the evidence in relation to CS's injury was not sufficient to allow the jury to conclude that the injury was "really serious".
8. At the conclusion of his Honour's summing up, the jury were handed a document containing written directions ("MFI GG"), which was approved by the Crown and Counsel for the defence. The trial Judge directed the jury that the document, titled "Elements Document", was "not to be in substitution for the detailed oral directions" that he had given. MFI GG commenced with the statement: "This document is to be read in conjunction with the oral directions given". In relation to Counts 1 and 2, MFI GG included the following directions on p 1: "Count 1 Intentionally cause grievous bodily harm The Crown must satisfy you beyond reasonable doubt that at the time and place alleged the accused; i. caused grievous bodily harm to [CS], and ii. intended to cause grievous bodily harm. Count 2 (first alternative to count 1) Recklessly cause grievous bodily harm The Crown must satisfy you beyond reasonable doubt that at the time and place alleged the accused; i. caused grievous bodily harm to [CS], and ii. did so recklessly."
9. On p 3 of MFI GG, under the heading "Assault", the following direction was given: "Assault An assault is: i. A striking, touching or application of force by the accused to another person, and ii. That such conduct of the accused was without the consent of that other person, and iii. That such conduct was intentional in the case of counts 1, 3, 4, 5, 6, 7, 8 and 9 and in the case of the alternative count 2, reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he was about to do, but yet took the risk that that might happen, and iv. That such conduct was without lawful excuse. …"
10. This part of the written direction dealing with the elements of assault was the same as the oral direction the trial Judge gave, extracted in [24] above. However, the written direction did not include that the Crown must satisfy the jury beyond reasonable doubt of each of those four elements before it could convict on any of Counts 1 to 9.
11. On the same page of MFI GG as the direction on assault there were directions as to intention, recklessness, grievous bodily harm, actual bodily harm and intimidation. Under the heading "Intent/Intention", the document referred to the words carrying their ordinary meaning and further stated: "Intention may be inferred from proved facts and circumstances. A person intends conduct if they mean to engage in it." Under the heading "Recklessness" was the following statement: "A person is reckless as to conduct if they foresee the possibility of causing harm and yet go ahead and commit the subject act".

The ground of appeal: the trial Judge's directions to the jury about the element of recklessness in relation to Count 2 were erroneous

1. It was common ground that for the purposes of Count 2, the Crown was required to prove that the applicant: 1. caused grievous bodily harm to CS; and 2. was reckless as to causing actual bodily harm to CS.

The applicant's submissions

1. The applicant submitted that the direction to the jury on recklessness should have conveyed that in order to enter a verdict of guilty, the jury "needed to be satisfied beyond reasonable doubt that [AW] was reckless in that he realised he may have caused actual bodily harm to [CS] by his actions yet went ahead and acted as he did" (emphasis in original). Instead of that direction, the trial Judge gave the jury either three or four misdirections, at least two of which were unfavourable to the applicant and resulted in a miscarriage of justice. In terms of the trial Judge's oral directions, the applicant relied on: 1. the direction as to the elements of the offence (see [23] above), which referred to recklessness without identifying what the applicant must be found to have been reckless about; 2. the direction as to recklessness in the alternative to intention, as part of the elements of assault (see [24] above); and 3. the separate direction on recklessness that I have set out at [27] above.
2. The second of the oral directions on which the applicant relied was replicated in MFI GG (with the omission to which I have referred at [31]). The applicant also contended that the written direction under the heading "Recklessness" in MFI GG was erroneous because it referred only to foresight of the possibility of causing "harm", without elaboration of what harm was required for the purposes of s 35(2) of the Crimes Act.
3. The applicant accepted that the third of the directions, which the parties described as the "Blackwell direction", was favourable to him because it imposed a greater burden on the Crown in terms of the mental element it needed to prove. However, the applicant submitted that at least two of the other directions were unfavourable to him, involving a lesser degree of harm than was required; and both appeared in MFI GG, by contrast with the Blackwell direction, which did not. The omission of the Blackwell direction from MFI GG "significantly undermined" any theoretical benefit it may have otherwise provided. The applicant relied in this respect upon the judgment of Simpson J in Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]. Her Honour emphasised that since the jury will have the written directions in the jury room, "it will be written directions to which the jury will have resort, perhaps repeatedly", such that the written word would "be likely to override the recollection the jury has of the oral directions".
4. The applicant submitted that the misdirections to the jury on recklessness resulted in a miscarriage of justice. The effect of the misdirections was that the element of recklessness was never correctly explained to the jury, meaning that the jury was not clearly informed of what they needed to be satisfied of before finding the applicant guilty on Count 2. The applicant contended that it was impossible for the various directions to be reconciled or understood in conjunction with each other, as they contained contradictory information capable of misdirecting the jury. In support of this contention, the applicant relied on Priday v The Queen [2019] NSWCCA 272 ("Priday"). The applicant also relied on Bazouni v R [2021] NSWCCA 256 ("Bazouni") in support of the proposition that by diminishing the necessary mental element, the trial Judge had made a significant legal error that constituted a miscarriage of justice. The applicant submitted that it would be a "rare case" where no miscarriage of justice would be found in circumstances like the present, where a misdirection was given regarding an essential element of the offence charged that was disadvantageous to an accused.
5. In relation to the application of the proviso, the applicant contended that it was not an appropriate case for its application given the significant departure from the requirements of a trial. The applicant submitted that the trial Judge's misdirections met that description for two reasons. First, it could not be established that the jury unanimously arrived at its verdict by the application of the same legal directions regarding the mental element of the offence, in circumstances where the relevant directions on that element were "erroneous, conflicting and confusing". Relying, by analogy, on Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 ("Lane"), the applicant described this as a unanimity issue, arguing that the misdirections were "too numerous and varied", leaving a real possibility that jurors pooled their determinations and arrived at the same conclusion on different factual bases. Second, the summing up was, in the applicant's submission, more reflective of an entirely different charge, such that it could not be said that the jury was asked to consider whether he had committed the offence with which he was in fact charged.
6. The applicant submitted that even if the proviso were to be applied, this Court would not conclude that there was no substantial miscarriage of justice. He accepted the Crown's submission that the primary issue in the trial was whether the act alleged had occurred, and that the effect of the jury's verdict was that it must have accepted that the applicant did cause grievous bodily harm to CS. However, he argued that the acquittal on Count 1 demonstrated that the jury was not satisfied that he had intended to do so. The rejection of his case in this regard did not lead ineluctably to the conclusion that the act occurred in precisely the manner that the Crown alleged. In particular, the applicant submitted that the description of the events as alleged by the Crown was primarily substantiated by the evidence of AS, rather than that of CS. As the applicant was acquitted of other counts which depended in large part on AS's evidence, it could not be inferred that the jury's verdict necessarily flowed from complete acceptance of her evidence.
7. The applicant also submitted that there was at least one other rational explanation on the evidence consistent with the conclusion that he was not guilty of Count 2. He submitted that it was open to the jury to conclude that he had acted "in a rage", and without turning his mind to the consequences of his actions or the possibility of inflicting actual bodily harm. Acceptance of that version of events would require a finding of not guilty in respect of Count 2. For that additional reason, the applicant submitted that it would not be appropriate for this Court to apply the proviso.

The Crown's submissions

1. The Crown accepted that the trial Judge should have directed the jury that the Crown was required to prove that the applicant foresaw the possibility of actual bodily harm. It also accepted that the jury was given three inconsistent directions regarding the meaning of recklessness, being foresight of the possibility of "grievous bodily harm", of "immediate and unlawful violence, however slight", and of "causing harm". The Crown's primary contention was that there was no miscarriage of justice having regard to the evidence before the jury and the manner in which the defence case was run. In the alternative, the Crown submitted that there was no substantial miscarriage of justice, and that this was an appropriate case for the application of the proviso.
2. In advancing its primary submission, the Crown relied on the decision of the High Court in Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 ("Hofer"), as explained by Beech-Jones CJ at CL in AK v R [2022] NSWCCA 175 ("AK") at [2]-[5]. The Crown emphasised that in Hofer, Kiefel CJ, Keane and Gleeson JJ concluded that a miscarriage of justice will occur where there is a "real chance" that what occurred affected the jury's verdict: at [47]; see also at [118] per Gageler J. The Crown also relied on Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 ("Edwards"), in which Edelman and Steward JJ stated that a miscarriage of justice will only have occurred where it is proven that the relevant error had "the capacity for practical injustice": at [74]. The Crown submitted that where the relevant legal error said to give rise to a miscarriage of justice is a misdirection, the question of whether a miscarriage has in fact occurred is "not a merely theoretical one", but rather one "grounded in actual prejudice or a non-negligible risk of real prejudice" to an accused: Morrison v R [2022] NSWCCA 158 at [38] ("Morrison").
3. The Crown contended that, consistently with the authorities, the misdirections here were not capable of affecting the jury's ultimate verdict. On the respective cases run at the trial, the jury were presented with two scenarios: that CS's injuries were the result of a mere accident (falling off the monkey bars), or were caused when the applicant lifted her over his head and slammed her onto the ground. Assuming the jury found that the conduct occurred, and caused grievous bodily harm, there was no scope to convict the applicant on the basis that there may have been a state of mind falling short of an intention to inflict grievous bodily harm but not involving a contemplation of actual bodily harm. The Crown relied in this respect on the nature of the act described by AS, whose evidence I have set out above. The Crown also relied on what CS said in her interview with police about having been "slammed" on the ground, and played extracts from the video of that interview in which she demonstrated how the applicant held her before throwing her.
4. The Crown submitted that CS's account was entirely consistent with AS's evidence, that the applicant had held CS by her arms at a height before throwing her to the ground. The Crown submitted that the jury's verdict of guilty in those circumstances must have involved acceptance of the actus reus as alleged. As Counsel submitted at the hearing, "[t]here was no room for the jury to find that he might have caused her grievous bodily harm in that manner with a mens rea falling short of a contemplation about full (scil actual) bodily harm".
5. The Crown submitted that cases such as Priday and Bazouni (in which miscarriage was conceded) were decided before the decisions in Hofer and Edwards, and further, concerned the application of the proviso on the basis that the relevant misdirections could not have affected the verdicts. By this submission, the Crown suggested that both Priday and Bazouni supported its contention that a misdirection as to the elements will not necessarily give rise to a miscarriage of justice. The applicant took issue with that submission, describing it as conflating the relevant tests in a manner that would leave no scope for the proviso to operate.
6. In the event that this Court found that a miscarriage of justice had occurred for the reasons the applicant identified, the Crown submitted that it would be appropriate for this Court to apply the proviso, relying on Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 ("Kalbasi"). The verdict indicated, in its submission, that the evidence of CS and her mother as to the actus reus giving rise to Count 2 had been accepted, and also that CS's broken arm amounted to grievous bodily harm. Those findings, the Crown submitted, could not have been affected in any relevant way by the trial Judge's misdirections. On the basis of those findings, the Crown argued that this Court could therefore accept beyond a reasonable doubt that the applicant lifted CS up over his head and "slammed" her onto the ground.
7. The Crown submitted that in both Kalbasi and Reeves v The Queen (2013) 88 ALJR 215; [2013] HCA 57 ("Reeves"), the High Court applied the proviso in circumstances where a misdirection as to an element of the relevant offence could not have affected the ultimate verdicts. Although it relied on these cases in aid of its submissions on the application of the proviso, the Crown maintained that both Kalbasi and Reeves, like Priday and Bazouni, supported its primary contention that a miscarriage of justice could not be demonstrated as there was no nexus between the misdirection and the verdicts.

Consideration

1. The first question to resolve is whether the conceded misdirections on recklessness constitute a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. The second question is whether, if there was a miscarriage of justice, it was nevertheless not "substantial" within the meaning of the proviso to s 6(1). I do not accept the Crown's submission that after Hofer, those two questions are to be approached by reference to the same inquiry. In so far as the Crown relied for this proposition on the observations of Beech-Jones CJ at CL in AK at [2]-[5], I do not consider that his Honour's reasons should be so construed. In any event, it is best to turn to Hofer. The separate judgments in Hofer proceed on the basis that the inquiries are separate and discrete.
2. Kiefel CJ, Keane and Gleeson JJ stated in Hofer that a miscarriage of justice to which s 6(1) refers "includes any departure from a trial according to law to the prejudice of the accused": at [41]. By contrast, "[t]he larger and different question raised by the proviso, which is reserved to an appellate court, of whether there has notwithstanding that departure been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment of whether guilt has been proved to the requisite standard": at [41]. Writing separately, Gageler J referred to the use of the word "prejudicial", in contradistinction to "innocuous" or occasioning "no real forensic disadvantage" as one of the means by which a finding of miscarriage of justice has been explained: at [120]. His Honour described the terminology as "unimportant provided it is understood that the requisite analysis in the context of finding a miscarriage of justice is factual": at [121]. His Honour continued: "The inquiry is into the tendency or propensity of an error or irregularity to have affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred in the trial that was had. The inquiry is not into the outcome of a hypothetical trial before a hypothetical jury in which the error or irregularity is assumed not to have occurred."
3. His Honour had earlier described the decisions of appellate courts before Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 ("Weiss") as having approached the questions of whether there had been a miscarriage of justice and whether a substantial miscarriage of justice had actually occurred "in much the same way: by asking in each case whether an identified error or irregularity in the conduct of the trial had deprived the appellant of a chance of acquittal": at [82]. The reframing of the inquiry on the proviso in Weiss had, in his Honour's opinion, "demanded greater precision in framing the inquiry to be undertaken by an appellate court finding a miscarriage of justice": at [122]. Gageler J encapsulated that inquiry at [123]: "Except in the case of an error or irregularity so profound as to be characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect', an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred."
4. Gordon J dissented in Hofer on the application of the proviso, but the approach that her Honour considered was required by s 6(1) of the Criminal Appeal Act was consistent with the other judgments of the Court. Her Honour stated at [130]-[131]: "The text of the provision reveals a fundamental difference between the two steps of first, deciding whether a ground of appeal is established and second, considering whether the proviso may (not must) be applied. One of the three kinds of grounds of appeal (verdict that is unreasonable or cannot be supported on the evidence; wrong decision of any question of law; and on any other ground whatsoever there has been a miscarriage of justice) will not be established if the mistake made at trial was one which could have had no effect on the outcome of the trial. That is, when considering whether a ground of appeal is established it is necessary and sufficient for the appellate court to conclude that the error might have made a difference. By contrast, when considering whether the proviso applies, the appellate court cannot apply the proviso unless it is persuaded that the admissible evidence at trial proved the accused's guilt beyond reasonable doubt. But that is a negative proposition. The appellate court cannot apply the proviso unless it is persuaded to that conclusion. Other considerations may show that the discretion which the proviso gives ('provided that the court may ... dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred') should not be exercised (emphasis added). The proviso cannot be applied unless the appellate court is positively persuaded of the accused's guilt beyond reasonable doubt. And it is the Crown that must persuade the court to the requisite standard." [Emphasis in original.]
5. The accepted error on Count 2 in the present case involved the trial Judge misdirecting the jury on the element of recklessness. The Crown accepted that the jury was given three inconsistent directions on this element. Taking them in the order in which they were given, in the first his Honour referred to recklessness in the context of the elements of the charge of assault. As I noted above, assault was not an element of the Count 2 charge, but his Honour referred expressly to Count 2, and it was the only count on the indictment that involved recklessness as an element. In directing that what was required was that "the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he was about to do, but yet took the risk that that might happen" (emphasis added), this direction as to recklessness involved foresight of a degree of harm that was well less than actual bodily harm. This direction was repeated in identical terms in writing, in MFI GG.
6. In the next direction the trial Judge gave regarding recklessness, his Honour referred to foresight of the possibility of "grievous bodily harm". That direction was also wrong in law but was favourable to the applicant. On that direction, the jury could only find him guilty if the Crown established that he foresaw the possibility of a more serious degree of harm than s 35(2) required. If the error were confined to this misdirection alone, I would not consider that it had the capacity to affect the basis on which the jury had actually reached its verdict.
7. The next direction as to recklessness appeared only in MFI GG. It described recklessness as foreseeing the possibility of "causing harm". The direction did not identify the nature and degree of the harm, the possibility of which the applicant needed to foresee; nor did it identify the "conduct" as to which the applicant would need to have had foresight of that possibility.
8. In circumstances where neither the Crown nor Counsel for the applicant sought any correction to any of the directions, oral or written, the directions were productive of uncertainty, if not confusion, as to what the Crown needed to prove in order to satisfy the element of recklessness. The first and third directions, which the jury had in writing, involved a departure from a trial according to law that was to the applicant's prejudice: Hofer at [41] and [47]. The errors could have had an effect on outcome of the trial: Hofer at [123], [130]; Edwards at [74].
9. The circumstances of the present case can be contrasted with those in Morrison, on which the Crown relied. In Morrison, this Court held that an error in the written directions was "immaterial" on the basis that it was far from the issues calling for resolution, and it was favourable to the accused in the sense that it removed a possible pathway for the jury to reach a conclusion of guilt: see [37]-[40]. Of some significance for present purposes, the Court observed that notwithstanding its first reason, the issue that was the subject of the misdirection (being whether the applicant had a reasonable basis for believing that the complainant consented to sexual intercourse) was not entirely divorced from the issues before the jury. It was included on the elements document that was read to the jury and some aspects of the Crown address were capable of being regarded as engaging it. The Court stated at [46]: "Accordingly, this ground is to be addressed on the basis that some consideration might have been given by the jury to whether the applicant had a reasonable basis for believing the applicant consented. But for the second reason below, we doubt that we would have concluded that the error was one which did not result in a miscarriage of justice, and it would thus have been necessary to consider the application of the proviso."
10. In the present case, the applicant accepted that the central issue at trial concerned whether the conduct causing grievous bodily harm occurred. However, as the applicant submitted, that did not relieve the jury of its obligation to determine guilt by reference to each element of the offence. At no stage was the jury properly directed by the trial Judge as to the second element; and two of the written directions were unfavourable to him. As the applicant further submitted, and unlike in Morrison where the misdirection concerned one of a number of pathways by which the Crown could prove the requisite mens rea, in this case there was but one pathway, in respect of which a number of misdirections were given.
11. Turning then to the proviso. Its operation was summarised by Kiefel CJ and Keane J in Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [20], by reference to Weiss and Kalbasi: "An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case. As explained in Kalbasi v Western Australia, this is because some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. The examples there given include cases which turn on issues of contested credibility or cases where there has been a wrong direction on an element of liability in issue. What they have in common is that the appellate court cannot be satisfied that guilt has been proved."
12. The proviso is capable of applying where a misdirection to a jury concerns an element of the charge. Whether there has been a substantial miscarriage of justice depends on the particular misdirection and the context in which it occurred: Kalbasi at [57].
13. Looking at the misdirections in context, and having regard to the whole of the record, there was significant force in the Crown's submission that once the jury rejected the applicant's case of the accident and accepted what had occurred as recounted, consistently, by CS and her mother, there was no room for the jury to find that AW might have caused CS grievous bodily harm with a state of mind falling short of actual bodily harm. Putting that submission another way, there could have been no doubt that in doing what CS and AS described - taking hold of CS by her upper arms, lifting her, and then throwing her onto the ground with such force that she bounced - the applicant must have contemplated at least actual bodily harm.
14. The difficulty is that having regard to the content of the particular misdirections, I cannot be satisfied that the jury understood what the mental element was that the Crown needed to satisfy to the criminal standard in order to find the applicant guilty. As the plurality observed in Lane, the course of authority "establishes that an error at trial may be such as to preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt": at [38].
15. I do not accept the applicant's submission that the effect of the misdirections was more reflective of a different charge, but the reasoning by analogy with Lane is of more force. In that case, the Court concluded that the proviso had been erroneously applied in circumstances where the basis of the verdict was uncertain as to the act or acts of the accused on which it was founded and where a unanimity direction had not been given. This case is not on all fours with Lane, but involves something of a similar issue. Here, the trial Judge gave a number of inconsistent misdirections on recklessness for the purposes of Count 2, two of which fell well short in terms of the degree of harm the possibility of which the applicant was required to foresee. In my view, the case is not one in which it is appropriate to apply the proviso.
16. It follows that the ground of appeal has been made out and the conviction on Count 2 should be quashed. The applicant accepted that the only remedy he could obtain was a retrial.

Consequential orders

1. The applicant was sentenced on an aggregate basis on Counts 2, 4, 6, 7 and 8. Although the convictions on Counts 4, 6, 7, and 8 are unaffected by the appeal, it was common ground that it would be necessary to re-sentence on those counts in the event that the appeal succeeded. As I noted at the outset of these reasons, the applicant submitted that this Court should re-sentence the applicant, whereas the Crown submitted that the matter should be remitted to the District Court for re-sentencing.
2. I have had the benefit of considering the further written submissions that the parties provided to the Court following the hearing, as to which there was common ground as to the applicable powers. Section 7(1) of the Criminal Appeal Act confers power on the Court to re-sentence. The precondition to the exercise of that power is that the Court be satisfied that the applicant "has been properly convicted": Ewan v R [2020] NSWCCA 85 at [89] ("Ewan"). As I have noted, there was no issue with the convictions on Counts 4, 6, 7 and 8. The Court's power to remit for re-sentence is conferred by s 12(2) of the Criminal Appeal Act which provides: The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.
3. Both parties referred to a number of decisions of this Court where it has either exercised the power to re-sentence or remitted matters for re-sentence, including Ewan, Baxter v R [2018] NSWCCA 281, BC v R (No 2) [2019] NSWCCA 142, Darestani v R [2019] NSWCCA 248, Allen v R [2020] NSWCCA 173, Watson v R [2020] NSWCCA 215, and Salgado v R [2022] NSWCCA 58. It is apparent from those cases that the decision as to whether to remit for re-sentence or to conduct the re-sentencing exercise is very much case-dependent.
4. In the present case, the most significant factor to my mind is the related nature of the counts for which the applicant stands to be re-sentenced and Count 2, for which a re-trial is required, in particular Count 6, which also involved CS. The need for a retrial diminishes the force of the applicant's reliance on the further delay and expense associated with a remittal.

Conclusion

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the conviction in respect of Count 2 on the indictment. 4. Order a new trial in respect of Counts 2 and 3 on the indictment. 5. Quash the aggregate sentence imposed in the District Court on 21 May 2021. 6. Remit the undisturbed convictions on Counts 4, 5, 6 and 8 of the indictment for re-sentence. 7. List the matter in the District Court Country Call-Over, Court 21A John Maddison Tower Sydney, on Wednesday 26 April 2023 at 9:00am to obtain a trial date before the District Court in Nowra.
2. DAVIES J: I agree with Mitchelmore JA.
3. HAMILL J: I also agree with Mitchelmore JA.

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